THE MAKING
OF THE
ENGLISH CONSTITUTION
449-1485
BY
ALBERT BEEBE WHITE
PROFESSOR OF HISTORY IN THE UNIVERSITY OF MINNESOTA
SECOND EDITION, COMPLETELY REVISED
G. P. PUTNAM’S SONS
NEW YORK AND LONDON
Oopyxigrlzt, 1908
by-
Albert Beebe White
Copyright, 1925
by
Albert Beebe White
C. C. t*. ASTIOK.r3”AC3AR, HYD.
Made ia tbe United States of America
PREFACE
A TEXT in English constitutional history which
is neither antiquated nor obscure has long been
needed. It has been the author's ambition to meet
this need. In preparing the present book, he has made
three main assumptions: that a college text in history
should be brief, and designed for the accompaniment
of much collateral reading; that it is impossible in the
medieval period, with which this volume is concerned,
to combine the narrative of English history and an
account of the making of the constitution; and that to
follow rigidly either the chronological or topical arrange¬
ment in a constitutional history of England does violence
to the nature of the subject. It has been taken for
granted that the student will use some good text to
acquaint himself thoroughly with the general history of
a period before attempting to study its institutions;
and, in the matter of arrangement, it has been the aim
to show the general evolution of the English government
as a whole, without, at the same time, artificially divid¬
ing the great topics into reigns or other time units. A
constant compromise between the demands of chronol¬
ogy and the desire for continuity in the treatment of the
theme in hand has been found necessary.
The emphasis throughout has been upon evolution
rather than upon description. The purpose has been
to furnish a logically satisfying account of the genesis
of each institution as far as present knowledge permits—
to show exactly how it has become what it is. This has
made it necessary to hold steadfastly to a given line of
IV
Preface
argument and to shim many alluring, and perhaps profit¬
able, bypaths; while, on the other hand, it has some¬
times entailed an apparent interruption of the theme in
order to develop a line of thought needed for logical com¬
pleteness. More time has been spent upon origins than
upon descriptions of finished products or upon defini¬
tions, in the belief that students should obtain much from
detailed and special works which would clog a general
account of institutional development.
On the basis of his experience as a teacher, the author
has brought out a college text upon the English constitu¬
tion which closes at 1485. At that date, the distinctively
creative period, the period when the constitution was
in the making, ended. In studying this period, it is pos¬
sible and, indeed, essential to separate sharply between
the work on the narrative and that on the institutions.
Moreover, upon the English middle ages, the scholar¬
ship of the last generation has been especially active;
but its work is at present in a complex and unformulated
state, and the average student should not be directed
immediately to the mass of monographs and detailed
works of reference; he needs an intermediary and guide.
The modem period, on the other hand, has not been pri¬
marily a period of creation; in it, the newly made con¬
stitution has been tested and developed, and institutional
concerns have borne a very intimate relation to the
events and conditions prominent in a general narrative;
it lacks the long sequences of institutional evolution
which characterise the middle ages. In studying it, the
narrative and the constitution must be handled almost
simultaneously, and its literature is much better pre¬
pared for the immediate use of the undergraduate. A
text-book dealing with the constitution after 1485 should
be a superfluity.
While it is the office of this book to present to stu¬
dents the results of scholarship and serve as an introduc¬
tion to the writings of the leading authorities, the author
is ready to claim that its general conception and con-
Preface
V
struction are largely his own. There has been no at¬
tempt to make an ideal allotment of space to the several
divisions of the subject. Here the author has been influ¬
enced by what he has regarded as desiderata in other
texts and by the present state of knowledge. He has
felt, for instance, that the judiciary has been slighted,
while Maitland’s work has made possible a treatment of
it which cannot be accorded some other topics which
have traditionally received more attention. More¬
over, classes in English constitutional history ought to
contain a good number of prospective lawyers. It seems
hardly necessary to seek to justify the copious quotations
from Maitland. If nothing further were accomplished
than properly to introduce the student to this scholar’s
writings, the author would feel quite content. In general,
there has been more of quotation than is customary;
but it is believed that when an important or difficult point
has been stated superlatively well, it is justifiable to use
such statement in a work of this sort, especially if it
originally appeared where it would not be likely to be
widely ready by undergraduates.
The present volume has not undertaken the com¬
plete analysis or exposition of documents or provided any
substitute for the first-hand study of documents in class.
In the case of any given document, only its most salient
feature, as bearing upon the matter under consideration,
has been pointed out. The bibliography, it is hoped,
contains most of the material likely to be of real service
to undergraduates. The author here takes pleasure in
acknowledging a debt, in the matter of bibliograph¬
ical data, to Professor Gross’s Sources and Literature of
English History. The indebtedness to the works of Mait¬
land, Stubbs, and Medley is apparent throughout, while,
in particular parts, the obligation to other well-known
authorities has been equally great. The author wishes
to make an especial acknowledgment of what he owes
Professor George B. Adams. It was Professor Adams
who introduced him to the study of the English con-
VI
Preface
stitution, and whose influence determined him to make
history his life-work; and, in the preparation of this book,
he has received encouragement and invaluable sugges¬
tions from the same source. The author is also
under obligation to Professors West and Anderson of
the University of Minnesota for much kindly encour¬
agement and counsel.
A. B. W.
The University of Minnesota,
NOTE TO REVISED EDITION
T HE revision of this book has, obviously, as its main
object to incorporate as much as is appropriate to a
work of this sort of the scholarly production of the last
seventeen years; and these additional years of teaching
the history of the English constitution should make for
wiser selection of material and emphasis. Also there has
been a quite complete rewriting. The main changes or
additions aredhese:
i Treating pre-Conquest Norman institutions as
coordinate with pre-Conquest Anglo-Saxon institutions,
both being background and antecedent to English con¬
stitutional history, which began in full measure in 1066.
This has been made the more feasible through Professor
Haskins’s researches, which have given some body to our
knowledge of pre-Conquest Normandy. And in this
connection it has seemed best to include a sketch of con¬
tinental feudalism.
2. The recent work of Professor Tout and others in
administrative history has made it possible to write a
new section on the organs of administration, and to
round out somewhat the treatment of the Council, bring¬
ing this aspect of government into better proportion to
the law courts and Parliament. Also there is a fuller
appreciation of what a commanding force in English
history lay in the contending interests of England’s pecu¬
liar aristocracy and the king.
3. There has been an attempt throughout to give
due weight to the public or semi-public work of the
vii
viii Note to Revised Edition
lower classes, work which they were doing largely tinder
command of authority higher up, and which it is believed
accounts to a considerable extent for the governmental
competence which English peoples have shown in modern
times. The detail of this work for the thirteenth century
is the result of the author’s research, and he may per¬
haps claim as his also the place and importance which
are assigned to this aspect of English constitutional his¬
tory.
4. Explanatory details, often in footnotes, have been
added in many places. Not a few of these have been sug¬
gested by student questions, and have been collected
through many years. Maitland’s Constitutional History
of England , which was published just too late to be used
in the first writing, has been especially helpful here; also
Professor Adams’s more recent books and articles. These
two scholars have remained to the author rich sources of
fact and idea, though the latter’s feudal contract thesis
has not been so closely followed as in the first edition.
Professor Adams’s death a few weeks ago must here be
mentioned as a very great personal loss and as removing
America’s chief student of English governmental his¬
tory. It has been possible to include in the bibliography
the title of his new book, which is now in press.
5. The “Suggestions for Collateral Reading” have
been omitted. It is believed that the frequent footnote
references and a bibliography containing many explana¬
tory comments make this feature unnecessary. The bib¬
liography has been compiled on the same principle as
before, with the interest of the instructor as well as the
student in view, with a bias away from traditional author¬
ities, and with renewed obligation to Gross’s Sources and
Literature of English History. It is hoped that it has been
brought reasonably well to date.
The author is grateful, for valuable suggestions, to
Professor J. F. Willard of the University of Colorado;
and to colleagues in the University of Minnesota: Pro¬
fessor N. S. B. Gras, Professor A. C. Krey, Dr. Faith
Note to Revised Edition
IX
Thompson, and Dr. D. H. Willson, the last two of whom
have read the entire manuscript. And it is specially
pleasant to recall the great help which came from the
years of association with Professor Wallace Notestein,
when he and the author collaborated in the general
course in English history at the University of Minnesota.
Rowe, Massachusetts.
A. B. W.
CONTENTS
PAGE
Bibliography ,.xv
Introduction , .xxxi
PART I. ' ENGLISH AND CONTINENTAL BACKGROUNDS
SECTION
I Anglo-Saxon. Institutions. 449-1066 . . 3
1. The Anglo-Saxon Conquest and Its Problems 3
2. The Local Government .... 12
a. The Classes of Men .... 12
■ b. The HundredandShireandtheir Courts 14
c. Origin and Early History of Boroughs 28
d. Anglo-Saxon Feudalism 33
3. The Central Government .... 45
a. The King.45
b. TheWitan.52
4. The Anglo-Saxon Church .... 58
5. • Conditions on the Eve of the Conquest . 65
II. Norman Institutions. 911-1066 ... 72
1. Continental Feudalism.73
2. ■ Normandy on the Eve of the Conquest . 81
PART II. THE NORMAN CONQUEST-ITS MORE
IMMEDIATE RESULTS. 1066-1100
I. Classes of Men and the Introduction of
Feudalism. 9 1
Contents
xii
SECTION PAGB
II. The Local Government.102
1. The Courts—Communal and Manorial . 102
2. Manor, Vill, and Tithing—Administrative
and Police Obligations.108
3. The Boroughs.no
III. The Central Government.114
1. The King and his Court . . . .114
2. Revenue and Taxation.119
IV. The Church.125
PART III. THE PERIOD OF CONSTITUTION MAKING.
1100-1485
I. Law Courts .139
1. The Central Common-Law Courts, the
Circuit Courts, and their Procedure . 139
2. The Displacement of the Old Local Courts
by a New Local System of Royal Courts 179
3. Origin and Early History of Equitable
Jurisdiction, Especially the Court of
Chancery.207
4. The Common Law.225
5. Relations of the State Courts and the
Church Courts.241
II. The Executive .254
1. The Genesis of Limited Monarchy . .255
2. The Council •.293
3. The Organs of Administration: Exchequer,
Chancery, Wardrobe, and Chamber . 306
Contents xiii
SECTION PAGE
4. The King’s Use of the People in Govern¬
ment .324
III. Parliament .337
1. The Origin of the House of Lords . . 337
2. Why there was a Middle Class in England.
Representation and Popular Election . 346
3. Origin of County Representation in a Cen¬
tral Assembly.358
4. Condition of the Boroughs in the Thir¬
teenth Century, and the Origin of their
Representation in a Central Assembly 364
5. Form and Composition of Parliament from
1265 to the Middle of the Fourteenth
Century.368
6. The Electors, the Elected, and the Elec¬
tion in County and Borough During the
First Two Centuries of Parliament . 383
7. Origin of the Chief Powers of Parliament:
Control over Taxation; Legislation; a
Share in Administration .... 396
8. Parliament in the Fifteenth Century . . 426
Index. 453
BIBLIOGRAPHY
■Adams, G.'B. “Anglo-Saxon Feudalism.” American Historical Review,
ii., n-35. New York, 1901.
Contends that the fundamental principles of political feudalism were brought
to England from the Continent through the Norman Conquest.
- An Outline Sketch of English Constitutional History. New Haven,
1918.
A brilliant condensation*
- Constitutional History of England. New York, 1921.
A short and valuable account of the whole field of English constitutional
history.
- Council and Courts in Anglo-Norman England. 1066-1272. New
Haven, 1926.
“A study of the operation and differentiation of legislative and judicial insti¬
tutions in England during the first two centuries after the Norman Conquest.”
Includes several papers published separately, especially in the Yale Law Journal
and the Columbia Law Review. Of high value for the student of legal and con¬
stitutional history.
- The Origin of the English Constitution . New York, 1912.
The author finds the germ of limited monarchy in the contract element in
feudalism. In this connection see also his 11 Magna Carta and the Responsible
Ministry,” American Historical Review , xx., 744-760.
- and Stephens, H. M. Select Documents of English Constitutional
History . New York, 1901.
The best collection of translated documents for the study of the constitution.
Andrews, C. M, The Old English Manor. Baltimore, 1892.
A useful account of the life and internal relations of the manor.
Anson, W. R. The Law and Custom of the Constitution. 2vols. Oxford,
1886. 4th edition, 1909. 5th edition (by Maurice L. Gwyer), in 3 vols.
Vol. L, 1922.
The book aims “to state the law relating to existing institutions, with so
much of history as is necessary to explain how they have come to be what they
are.” The historical explanations, briefly connecting the past with the present,
are very enlightening to the student.
XV
xvi Bibliography
Ashley, W. J. An Introduction to English Economic History and The¬
ory. 2 vols. London, 1888-1893. 3d edition of vol. i., 1894.
Yol. i. is useful to the student of history; ch. i. contains an excellent account
of the manor.
-- Surveys , Historic and Economic . London, 1900.
Contains valuable reviews and summaries of important books and articles on
medieval agrarian and urban history.
Attenborough, F. L. The Laws of the Earliest English Kings. Cam¬
bridge, 1922.
A convenient annotated text and translation of the laws from Ethelbert
Athelstan (inclusive).
Baildon, W. P. (editor). “Select Cases in Chancery.” Publications
the Selden Society , x. Introduction, pp. xi.-xlv. London, 1896.
Baldwin, J. F. The King's Council in England during the Middle Ages.
Oxford, 1913.
The standard work on the subject.
Ballard, A. The English Borough in the Twelfth Century. Cambridge,
1914 -
See also his The Domesday Boroughs. Oxford, 1904,
Barker, Ernest. The Dominican Order and Convocation. Oxford,
1913 -
Shows connection between development of representation in church and state
in the thirteenth century; but has not proved his contention for the Dominican
origin of the representative principle.
Bateson, Mary (editor). “Borough Customs.” Publications of the
Selden Society, xxi. Introduction, pp. xv.-clix. London, 1906.
“The chief purpose of this Introduction must be to explain how the borough
customs differed from the law of the land, why they differed, and in what way
they were brought ultimately into such harmony that borough custom has ceased
to be a matter of much practical interest.”
Beard, C. A. The Office of Justice of the Peace in England , in its Origin
and Development. New York, 1904.
Bell's English History Source Boohs. General editors: S. E. Winbolt
and Kenneth Bell. London, 1913, 1914.
The medieval period is covered in six volumes by various editors. Among
many illustrations of general English history, contains some material on the con¬
stitution not conveniently found elsewhere.
B£mont, C. Charles des Libertis Anglaises (1100-1305), publiees avec
tme Introduction et des Notes. Paris, 1892.
The most useful text of Magna Carta and its early confirmations. The Intro¬
duction and biographical notes are of much value.
Bibliography xvii
Bigelow, M. M. History of Procedure in England (1066-1204). Lon¬
don, 1880.
B6hmer, H. Kirche und Staat in England und in der Normandie im XL
und XII. Jahrhundert. Leipzig, 1899.
The best account of the constitutional effects of the Conquest upon the church,
and a valuable introduction to the relations of church and state until the Reform¬
ation.
Bolland, W. C. The General Eyre. Cambridge, 1922.
Lectures delivered in the University of London. A popular account, the
result of valuable research.
- The Year Boohs. Cambridge, 1921.
Lectures delivered in the University of London. The best brief account.
Brunner, H. Die Entstehung der Schwurgerichte. Berlin, 1872.
This work proved that the jury was of continental origin.
Cambridge Medieval History. Planned by J. B. Bury, edited by H. M.
Gwatkin and J. P. Whitney. Cambridge, 1911, etc.
Four volumes have appeared. In the first three are chapters covering Eng¬
lish history to the end of the Anglo-Saxon period. Of high authority, representing
some of the most recent research. Valuable chapters on feudalism.
Cannon, H. L. “The Character and Antecedents of the Charter of
Liberties of Henry I. ’ ’ American Historical Review , xv., 37-46. New Y ork,
1909.
Carter, A. T. History of English Legal Institutions. London, 1902.
4th edition, 1910.
An enlargement of his Outlines of English Legal History, London, 1899.
Chadwick, H. M. Studies on Anglo-Saxon Institutions . Cambridge,
1905.
- The Origin of the English Nation. Cambridge, 1907.
This and the preceding throw new light upon several Anglo-Saxon institu¬
tions, especially upon the origin of kingship.
Crump, C. G., and Johnson, C. “The Powers of Justices of the Peace.”
English Historical Review, xxvii., 226-238. London, 1912.
Davies, J. C. The Baronial Opposition to Edward II., its Character and
Policy; a Study in Administrative History. Cambridge, 1918.
Dicey, A. V. The Privy Council. Oxford, i860. Reprinted, London,
1887.
An excellent brief work.
Dowell, Stephen. A History of Taxation and Taxes in England. 4
vols. London, 1884. 2nd edition, 1888.
The best general work on taxation, but not satisfactory for the middles ages.
xviii Bibliography
Essays in Anglo-Saxon Law . Boston, 1876. “Courts of Law." By
Henry Adams. “Land Law.” By H. C. Lodge. “Family Law.” By
E. Young. “Legal Procedure.” By J. L. Laughlin.
Fortescue, Sir John. Governance of England. Edited by Charles
Plummer. Oxford, 1885.
Freeman, E. A. History of the Norman Conquest . 6 vols. Oxford, 1867-
1879. 2nd edition of vols. i.-iv. f 1870-1876. 3rd edition of vols. i., ii.,
1877 .
The most detailed work upon the subject. With a long introduction upon
the Anglo-Saxon period, it covers to the end of Stephen’s reign and concludes with
a supplementary sketch to 1272. Freeman’s generalisations must be accepted with
great caution. Many of them have been corrected through the work of Round
and other recent writers.
Fustel de Coulanges, N. D. The Origin of Property in Land. (Trans¬
lated by Margaret Ashley.) London, 1891. 2nd edition, 1892. 3rd
impression, 1904.
The author contends that primitive ownership of land was individualistic
and aristocratic. There is a valuable Introduction by W. J. Ashley.
Gardiner, S. R. A School Atlas of English History. London, 1891.
Reprinted, 1902.
Though supplemented in some respects by more recent atlases and by maps
published in various general historical works, this remains the most useful atlas of
English history for students.
Gee, H., and Hardy, W. J. Documents Illustrative of English Church
History . London, 1896.
The documents selected cover from the earliest times to the end of the 17th
century and are translated and edited in a scholarly manner.
Gneist, R. Englische Verfassungsgeschichte. Berlin, 1882. Translated
by P. A Ashworth: The History of the English Constitution. 2 vols.,
London, 1886. 2nd edition, 1889. A one-volume edition, 1891.
The best of the constitutional histories of England by foreigners and one of
the standard general works upon the subject.
Gras, N. S. B. The Early English Customs System. Cambridge, Mass.,
1918.
Gray, H. L. English Field Systems. Cambridge, Mass., 1915.
- “The Commutation of Villein Services in England before the
Black Death.” English Historical Review , xxix., 625-656. London, 1914.
Green, J. R. History of the English People. 4 vols. London, 1877-
1880. Reprinted, 8 vols., 1895-1896, and 1905-1908.
“An important general history of England, devoting much attention to the
social condition of the people.’’—-Gross.
Bibliography xix
Green, J. R. The Conquest of England (829-1071). London, 1883.
Reprinted, 2 vols., 1899.
A valuable study of the Danish invasions and conquest.
- The Making of England (449-829). London, 1881. 4th. edition,
2 vols., 1897. Reprinted, 1900, 1904, 1910.
Makes use of the topographical features of ancient England in studying the
invasions and settlements of the Anglo-Saxons. But see W. H. Stevenson, Dr.
Guest and the English Conquest of South Britain,” English Historical Review, xvil.,
625—642. London, 1902. Also T. W. Shore, Origin of the Anglo-Saxon Race, a Study
of the Settlement of England. London, 1906.
Green, Mrs. J. R. Town Life in the Fifteenth Century . 2 vols. Lon¬
don, 1894. Reprinted, 1 vol., 1907.
Covers the period from the Norman Conquest to the end of the middle ages.
Valuable especially for the later period.
Gross, Charles. “Modes of Trial in the Medieval Boroughs of Eng¬
land.” Harvard Law Review , xv., 691-706. Cambridge, Mass., 1902.
“Mortmain in Medieval Boroughs.” American Historical Review , xii.,
733-742. New York, 1907.
- {editor). “Select Cases from the Coroners' Rolls.” Publications
of the Selden Society , ix. Introduction, pp. xiii-xliv. London, 1896.
The Introduction contains the best account of the origin of the coroner and
throws light upon the early history of the jury.
_ “The Early History of the Ballot in England.” American His¬
torical Review , iii, 456-463. New York, 1898.
- The Gild Merchant: A Contribution to British Municipal History.
2 vols. Oxford, 1890.
The best work on the subject.
- The Sources and Literature of English History from the Earliest
Times to about 1483. London, 1900. 2nd edition, revised and enlarged, by
a committee for the Department of History in Harvard University, 1915.
The first important bibliography of English history, and a work of great com¬
pleteness and authority for the period it covers. Indispensable to the student of
English history. In the second edition there has been no attempt at completeness
beyond the end of the year 1910. “Only continuations and such notable books or
articles as were specially called to the attention of the committee have been in¬
cluded after that date.” _ ,
See also the bibliographies in the several volumes of The Pohttcal History of
England (edited by Hunt and Poole), The History of England (edited by Oman),
and appended to the chapters in the Cambridge Medieval History.
Haskins, C. H. Norman Institutions. Cambridge, Mass., 1918.
Supersedes earlier work upon the subject.
-- The Normans in European History. Boston, 1915*
Consists of eight lectures delivered in 1915. The first four espemallyhseful
to the student of English history, and a popular account of great, value.
xx Bibliography
Haverfield, F. J. The Romanization of Roman Britain. London, 1906.
4th edition, revised by George Macdonald. Oxford, 1923*
- The Roman Occupation of Britain. Oxford, 1924.
“Six Ford lectures by F. Haverfield, now revised by George Macdonald, with
a notice of Haverfield’s life and a list of his writings.”
Holdsworth, W. S. A History of English Law. 3 vols. London,
1903-1909. 2nd edition, rewritten. 7 vols., I9 22 > etc. Vols. i.-vi., 1922-
1924.
An authoritative detailed work. “The first volume deals with the history
of the judiciary, and in the succeeding volumes the history of legal doctrine is
carried down to modem times, and the general history of law to 1700.”
Holmes, O. W. The Common Law. Boston, 1881. London, 1882.
Hunt, William, and Poole, R. L. (editors). The Political History of
England. 12 vols. London, 1905-1910. i., From Earliest Times to 1066 .
By Thomas Hodgkin, ii., 1066-1216. By G. B. Adams, iii., 1216-1377.
By T. F. Tout, iv., 1377-1483- By C. Oman, v., 1483-1347. By H. A. L.
Fisher, vi., 1347-1603. By A. F. Pollard, vii., 1603-1660. By F. C.
Montague, viii, 1660-1702. By Richard Lodge, ix., 1702-1760. By
I. S. Lead am. x., 1760-1801. By William Hunt, xi., 1801-1837. By
J. C. Brodrick and J. K. Fotheringham. xii., 1837-1901. By S. J.
Low and L. C. Bandars.
A detailed narrative history, with valuable bibliographies in each volume.
Jenks, Edward. A Short History of English Law , from the Earliest
Times to the End of the Year 1911. London, 1913. 2nd edition, 1922.
In the second edition the history is brought down to the end of 1919.
- Edward Plantaganet (.Edward Z.), the English Justinian or the
Maker of the Common Law. London, 1902.
Contains a valuable discussion of Edward’s legislation.
- Law and Politics in the Middle Ages. London, 1898. 2nd edition,
1913.
A popular and concise discussion of the origin of various governmental institu¬
tions and principles.
Kerly, D. M. An Historical Sketch of the Equitable Jurisdiction of the
Court of Chancery. Cambridge, 1890.
Lappenberg, J. M., and Pauli, R. Geschichte von England {to 1309 ).
5 vols. Hamburg, 1834-1858.
Vols. iii.-v. still remain the most valuable detailed account of large portions of
the period from 1154 to 1509.
Larson, L. M. Canute the Great. New York, 1912.
Valuable account of Canute’s laws and government.
Bibliography xxi
Larson, L. M. The King’s Household in England before the Norman
Conquest. Madison, 1904.
Lea, H. C. Superstition and Force: Essays on the Wager of Law , the
Wager of Battle , the Ordeal , and the Torture. Philadelphia, 1886. 4th
edition, 1892.
The best account of the kinds of trial which antedated the jury.
Lead am, I. S. (editor). “Select Cases in the Star Chamber, 1477-
1509.” Publications of the Selden Society , xvi. Introduction, pp. ix.~cliv.
London, 1903.
Part i. of the Introduction contains an exhaustive discussion of the procedure,
composition, and jurisdiction of the Court of Star Chamber for the period under
consideration.
Liebermann, Felix. The National Assembly in the Anglo-Saxon Period.
Halle, 1913.
Believes that the central assembly after the Norman Conquest derived much
from the Whan.
McIlwain, C. H. The High Court of Parliament and its Supremacy:
An Historical Essay on the Boundaries between Legislation and Adjudication
in England. New Haven, 1910.
A valuable corrective of the common notion that Parliament has always been
primarily a legislature. Contains much about the common law’s origin and char¬
acter, and presents, as the background of modern divided governmental powers, the
fused powers of the middle ages and the Tudor period.
McKechnie, W. S. Magna Carta: a Commentary on the Great Charter of
King John , with an Historical Introduction. Glasgow, 1905. 2nd edition,
revised, 1914.
The best commentary upon the individual articles of the Charter. The Intro¬
duction is valuable.
Magna Carta Commemoration Essays. Edited by H. E. Malden, for the
Royal Historical Society. London, 1917.
Consists of nine essays (mainly by English and American scholars) written
apropos of the Magna Carta celebration on the seven-hundredth anniversary, 191S.
They are the result of much recent research on the Charter and closely related
subjects.
Maitland, F. W. Collected Papers. Edited by H. A. L. Fisher. 3
vols. Cambridge, 1911.
** Consists of some 68 papers originally published in various law reviews,
the English Historical Review, etc.; includes much of Maitland’s best and most
original work.”—Gross.
See especially “The Origin of the Borough,” in which the author emphasises
the importance, in municipal beginnings, of the group of midland boroughs having
a military origin; he finds in the burh~j?eace the germ of the borough court, and,
through it, of the borough government as a whole. [See also pp. 172-219 in his
Domesday Book and Beyond. For a criticism of Maitland’s theory, see James Tait
in English Historical Review , xii., 772-777]; “The Suitors of the County Court,"
xxii Bibliography
where it is argued that the duty of attending the shire court had become territorial-
ised, only those freemen attending whose holdings owed suit of court; and "The
History of a Cambridgeshire Manor," which traces the history of an individual
manor from the thirteenth to the fifteenth century.
Maitland, P. W. Domesday Book and Beyond: Three Essays in the
Early History of England. Cambridge, 1897. Reprinted, 1907.
A brilliant discussion of feudalism, the manor, the borough, classes in society,
and land tenures, in the Anglo-Saxon period.
- English Law and the Renaissance. Cambridge, 1901.
An illuminating discussion of the distinguishing characteristics and constitu¬
tional importance of the common law.
- Justice and Police . London, 1885.
This brief work shows admirably the historical relation between the present
theory and practice in justice and police and the medieval.
- (editor). Pleas of the Crown for the County of Gloucester. Intro¬
duction, pp. vii.-l. London, 1884.
The Introduction contains an excellent account of the procedure in the itin¬
erant justice court in the early thirteenth century.
-(editor). “Records of the Parliament at Westminster, in 1305.”
[Half-title: Memoranda de Parliamento.] Rolls Series. Introduction,
pp. ix.-cxxi. London, 1893.
The Introduction contains valuable comment upon the early Parliament and
Council.
-- Roman Canon Law in the Church of England. London, 1898.
Consists of six essays reprinted from the English Historical Review , and the
Law Quarterly Review. Essay iv. contains the best discussion of the matters at
stake between Henry II. and Becket.
-(editor). “Select Pleas in Manorial and other Seignorial Courts.”
Publications of the Selden Society , ii. Introduction, pp. xi.-lxxvii. London,
1889.
The Introduction gives the best account of private jurisdictions in the thir¬
teenth century; also the origin of the sheriff's tourn and of the leet.
-(editor). “Select Pleas of the Crown.” Publications of the Selden
Society , i. Introduction, pp. vii.-xxviii. London, 1888.
In the Introduction is an important discussion of the origin and early history
of the Courts of King’s Bench and Common Pleas.
- The Constitutional History of England. Cambridge, 1908.
"Early professorial lectures to law students; often very valuable and orig¬
inal.”—Gross.
- Township and Borough. Cambridge, 1898.
Deals primarily with the change of a rural community into an urban commun¬
ity, showing the persistence of many rural features and their later influence.
Bibliography xxiii
Maitland, P. W., and Montague, P. C. A Sketch of English Legal
History. New York, 1915.
Largely a reprint, under the editorship of Professor J. P. Colby, of articles
upon the chief epochs of English legal history contributed to Traill’s Social England.
Makower, F. Die Verfassung der Kirche von England. Berlin, 1894-
Translation: The Constitutional History and Constitution of the Church of
England. London, 1895.
The best general work on the subject.
Mayer, Ernst. Geschworenengericht und Inquisitionsproqess. Munich,
1916.
Deals with the origin of the jury and allied problems.
Medley, D. J. A Student's Manual of English Constitutional History.
Oxford, 1894. 5th edition, 1913. 6th edition announced.
A condensed but comprehensive presentation in topical form, based upon the
best authorities.
- Original Illustrations of English Constitutional History. Lon¬
don, 1910.
Documents grouped to illustrate important subjects, and “annotated through¬
out with extracts from other original material bearing on all important points. ,
Latin documents untranslated, but copious marginal abstracts are furnished.
Mitchell, S. K. Studies in Taxation under John and Henry III* New
Haven, 1914.
Morris, W. A. The Frankpledge System. New York, 1910.
- “The Office of Sheriff in the Early Norman Period.’’ English
Historical Review, xxxiii., 145-175. London, 1918.
An excellent study of the sheriff when at the height of his power.
Muir, Ramsay. Philip's New Historical Adas. London, I 9 11 * 2n< ^
edition. Hammond's New Historical Atlas for Students. New York, I 9 H*
4th edition, 1921.
Norgate, Kate. England under the Angevin Kings. 2 vols. London,
1887.
One of the best narratives of the last half of the twelfth century*
- John Lackland. London, 1902.
■ ... The Minority of Henry III. London, 1912.
This and the preceding are continuations of the author’s England under the
Angevin Kings , but are works of greater scholarly value.
Oman, C. W. C. (editor). A History of England. 7 vols. London, 19°+"
1914. i.. From the Beginning to 1066. By C. W. C. Oman. ii-> 1 _
1272. By H. W. C. Davis, m.,•1272-1485. By H. K. Vickers, iv.,
xxiv Bibliography
1483-1603. By A. D. Innes. v., 1603-1714- By G. M. Trevelyan.
vi., i^i4-18IS- By C. G. Robertson, vii., England since Waterloo. By
J. A. R. Marriott.
Oman, C. W. C. The Great Revolt of 1381. Oxford, 1906.
Pasquet, D. Essai sur les Origines de la Chambre des Communes .
Paris, 1914.
An interesting account of the beginnings of the Commons’ representation in
Parliament to the end of Edward I.’s reign, embodying some of the more recent
points of view.
Pearson, C. H. Historical Maps of England during the First Thirteen
Centuries. London, 1869. 3rd edition, revised, 1883.
The maps are: ' Brittania Romana, Brittania Cambrica, Saxon England,
Norman England, Monastic England. They bear the stamp of their author’s
originality and are accompanied by a valuable text.
Petit-Dutaillis, C. Studies and Notes Supplementary to Stubbs* Con¬
stitutional History. 2 vols. Manchester, 1908-1914. 2nd edition of vol.
i., 1911.
A valuable addition to Stubbs’ work, and a corrective to his conclusions on
several matters of importance.
Pike, L. O. A Constitutional History of the House of Lords . London,
1894.
A work of great value; throws light upon related institutions and consti¬
tutes a history of the English nobility.
- A History of Crime in England. 2 vols. London, 1873-1876.
- The Public Records and the Constitution. London, 1907.
A lecture delivered at All Souls College, Oxford, at the request of the Regius
Professors of Civil Law and Modem History. Contains an elaborate diagram
illustrating the evolution, from the Norman king’s court, of the chief courts and
departments of government of modem times.
Plucknett, T. F. T. “The Place of the Council in the Fifteenth Cen¬
tury.” Transactions of the Royal Historical Society. Fourth Series, vol. i.,
157-189. London, 1918.
Pollard, A, F. The Evolution of Parliament. London, 1920.
Represents recent points of view on Parliament's history: the king’s com¬
manding part in its making, its aristocratic character, its undifferentiated powers.
It is of value especially for the very late middle ages and for the Tudor period.
Pollock, Frederick. The Land Laws. London, 1883. 3rd edition,
1896.
Especially useful in explaining the changes after Edward I.’s time.
Bibliography xxv
Pollock, Frederick, and Maitland, F. W. The History of English
Law before the Time of Edward I, 2 vols. Cambridge, 1895. 2nd edition,
1898.
Has superseded all previous works on English law for the period which it
covers, and, in its lavish comprehensiveness, goes far to supplement and correct
the older constitutional histories.
Poole, R. L. (editor). Historical Atlas of Modern Europe, from the
Decline of the Roman Empire. Oxford, 1902.
The best historical atlas. It contains about one hundred maps with explan¬
atory text. Of these, seventeen relate to the British Isles.
- - The Exchequer in the Twelfth Century. Oxford, 1912.
The best work on the subject.
-“The Publication of Great Charters by the English Kings / 1 *
English Historical Review , xxviii., 444-453. London, 1913.
Putnam, B. H. The Enforcement of the Statutes of Labourers during the
First Decade after the Black Death , 1349-1359. New York, 1908.
See also her “The Justices of Labourers in the Fourteenth Century,'' English
Historical Review, xxi., 517-538. London, 1906.
Ramsay, J. H. The Foundations of England , b.c. 55-A.D. 1154. 2 vols.
London, 1898.— The Angevin Empire , 1154-1216. London, 1903.—
The Dawn of the Constitution , 1216-1307. London, 1908. —The Genesis
of Lancaster, 1307-1399. 2 vols. Oxford, 1913. —Lancaster and York,
1399-1485. 2 vols. Oxford, 1892.
“A very useful survey of the main facts of English history, if employed with
caution. Devotes much attention to military and financial operations.”—Gross.
Riess, L. “Der Ursprung des englischen TJnterhauses.” Historische
Zeitschrift, xxiv. (neue Folge), 1-33. Munich, 1888.
Riess believes that the early representatives to Parliament were summoned
primarily to inform the king of the condition of the local administration.
- Geschichte des Wahlrechts turn englischen Par lament im Mittel-
alter. Leipsic, 1885.
A'brilliant monograph. For a review of this and the same author's Der Urs¬
prung des englischen Unterhauses , see English Historical Review, v., 146-156.
Robertson, A. J. The Laws of the Kings of England from Edmund to
Henry I. Cambridge, 1925.
Texts, translations, and introductory notes.
# Round, J. H. Feudal England: Historical Studies of the nth and 12th
Centuries. London, 1895. Reprinted, 1909.
Especially valuable for the essay on the introduction of knight service, upon
which subject and the early effects of the Conquest in general Round is the lead¬
ing authority.
xxvi Bibliography
Round, J, H. Geoffrey de Mandeville: A Study of the Anarchy .
London, 1892.
The life of Geoffrey is presented as "the most perfect and typical presentment
of the feudal and anarchic spirit that stamps the reign of Stephen.” For a some¬
what different estimate of the degree of anarchy prevailing, see H. W. C. Davis
in English Historical Review , xviii., 630-641. Various matters of constitutional
interest are dealt with.
- Peerage and Pedigree: Studies in Peerage Law and Family History .
2 vols. London, 1910.
- The Commune of London and Other Studies. Westminster, 1899.
These studies are mainly on the twelfth century. In English Historical Re¬
view, xix., 702-706, G. B. Adams contends that London was a commune in the
technical, continental sense during a part of the reigns of Richard I. and John.
- The King's Serjeants and Officers of State , with their Coronation
Services. London, 1911.
Savine, Alexander. “Copyhold Cases in the Early Chancery Pro¬
ceedings ” [Henry VI.-Edward IV.] English Historical Review , xviii.,
296-303. London, 1902. “Bondsmen under the Tudors.” Transactions
of the Royal Historical Society , New Series, xvii., 235-289. London, 1903.
“English Customary Tenure in the Tudor Period.” Quarterly Journal of
Economics , xix., 33-80. Boston, 1904.
Seebohm, Frederick. The English Village Community: An Essay on
Economic History. London, 1883. 4th edition, 1890. Reprinted, 1896,
I 905 . I 9 I 3 -
A work which contained much new information upon classes and tenures in
the primitive settlements and precipitated a long contest over the question of the
freedom or servility of these settlements. In his later writing, Seebohm has modi¬
fied his theory of the Roman origin of the English village community while hold¬
ing to its essentially servile character.
- Tribal Customs in Anglo-Saxon Law. London, 1902.
Starting with the conclusions reached in his Tribal System in Wales, London,
i8$>5, 2nd edition, 1904, the author shows that tribal custom was one important
element in shaping Anglo-Saxon institutions.
Select Essays in Anglo-American Legal History. 3 vols. By various
authors. Compiled and edited by a committee of the Association of
American Law Schools. Boston, 1907-1909.
Contains some of the most valuable studies in this field made by English or
American writers.
Shepherd, W. R. Historical Atlas. New York, 1911.
Contains about a dozen maps of medieval England or the British Isles; also
maps of England's possessions in Prance.
Bibliography xxvii
Stephen, J. F. A History of the Criminal Law of England. 3 vols. Lon¬
don, 1883.
This and Pike's A History of Crime in England are the most detailed works
on the subject.
Stephens, W. R. W., and Hunt, William (editors). A History of the
English Church. 8 vols. London, 1899-1910.
The best general account of English church history. The first three volumes,
covering to the end of the middle ages, are by William Hunt, W. R. W. Stephens,
and W. W. Capes, respectively. See also Walter Lichtenstein, The Date of Separa¬
tion of Ecclesiastical and Lay Jurisdiction in England. Chicago, 1908.
Stubbs, William. Historical Introductions to the Rolls Series. Edited
by A. Hass all. London, 1902.
This publication in one volume of the "historical portions of the late Bishop
Stubbs’ Introductions to certain volumes of the Rolls Series” contains invaluable
material upon the reigns of Henry II., Richard I., John, Edward I., and Edward
II. "No better judge of the value of Henry II.’s work ever lived; no historian
has ever given us a truer and more forcible picture of King John.”
- Lectures on Early English History. Edited by A. Hassall. Lon¬
don, 1906.
Lectures 6, 7, 13, and 14 of his Seventeen Lectures on the Study of Medieval
and Modern History (3rd edition, Oxford, 1900) deal with learning and literature
at the court of Henry II. and the history of canon law in England.
- Select Charters and other Illustrations of English Constitutional
History from the Earliest Times to the Reign of Edward the First. Oxford,
1870. 9th edition, revised throughout, by H. W. C. Davis, 1913.
The best collection of constitutional documents for the use of students. The
Latin documents are not translated.
- The Constitutional History of England in its Origin and Develop¬
ment. 3 vols. Oxford, 1874-1878. 6th edition of vol. i., reprinted,
1903; 4th edition of vol. ii., reprinted, 1906; 5th edition of vol. iii., 1903.
While this great work is still the best general treatment of England’s medieval
constitution, many new points of view with respect to institutional origins have
arisen and it cannot be safely used, especially in the earlier parts, without constant
comparison with later work. The work of Gneist long stood near that of Stubbs
both in scope and authority. As a foreigner, Gneist was impressed with the local
origin of much in England’s administrative system and the importance of the
gentry, especially in the local government; these aspects of the constitution are
emphasized in his books. During the last generation, Stubbs and Gneist have been
supplemented by much valuable monographic writing, and Pollock and Maitland’s
great treatise on the history of English law touches many phases of constitutional
history.
- The Early Plantagenets (1135-1327). London, 1876. 5th edi¬
tion, 1886.
An excellent short narrative of the period, containing much of value to the
student of the constitution.
xxviii Bibliography
Taswell-Langmead, T. P. English Constitutional History . London,
1875. 8th edition, by C. Phillipson, 1919.
Especially valuable for the late middle ages and for the Tudor and Stuart
periods.
Thayer, J. B. A Preliminary Treatise on Evidence at the Common Law.
Part i, “Development of Trial by Jury.” Boston, 1896. Reprinted
with part ii., 1898.
The best general work on the jury; especially valuable for the institution’s
later history.
Thompson, Faith. The First Century of Magna Carta: Why it Persisted
as a Document Minneapolis, 1925.
Shows that for a century at least the Great Charter and the Charter of the
Forest were documents whose provisions were regarded as of practical value and
the bases of court decisions.
Tout, T. F. Chapters in the Administrative History of Mediaeval Eng¬
land. The Wardrobe , the Chamber , and the Small Seals. 2 vols. London,
1920.
Has greatly increased knowledge not only of the little known Wardrobe and
Chamber, but also of Exchequer and Chancery. These volumes, which cover
through Edward II., are to be followed by two volumes, "in which it is proposed
to carry on the subject to the revolution of 1399."
- The Place of the Reign of Edward II. in English History. Man¬
chester, 1914.
Establishes the importance of this reign in administrative history.
Traill, H. D., and Mann, J. S. (editors). The Building of Britain and
the Empire; a Record of the Progress of the People in Religion, Laws, Learn¬
ing , Art, Industry , Commerce, Science, Literature , and Manners, from the
Earliest Times to the Present Day. By various writers. New illustrated
edition. 6 vols. in 12. London, 1909.
First published under the title "Social England," London, 1894-1897.
Vinogradoff, P. English Society in the Eleventh Century: Essays in
English Mediaeval History. Oxford, 1908.
_ "Deals with military organization, jurisdiction, taxation, land tenure, manors,
social classes. Much of the material relates to the periods before and after the
eleventh century."—Gross. The author’s Growth of the Manor contains a study
of origins; his Villainage a study of the developed manor; this book the middle
ground between, and throughout centering in a study of Domesday Book.
“Folkland.” English Historical Review, viii., 1-17. London,
1893.
This article established the nature and significance of the long misunderstood
folkland . See also his "Transfer of Land in Old English Law,” Harvard Law Review ,
xx. f 532-548. Cambridge, Mass., 1907. And “Romanistische Einflusse im Angel-
s&chsischen Recht, das Buchland," Melanges Fitting, ii., 499-5 22. Montpellier
1908. ’
Bibliography xxix
Vinogradoff, P. The Growth of the Manor. London, 1905. 2 nd edition
1911.
Argues for the communal organisation of the primitive English tovmship and
its late manorialisation.
- Villainage in England: Essays in English Medieval Bistory,
Oxford, 1892.
These essays deal mainly with the twelfth and thirteenth centuries, and con¬
stitute the best work on the medieval_peasantry before the forces leading to the
end of serfdom became dominant.
- (editor). Oxford Studies in Social and Legal History . 3 vo j s
Oxford, 1909-1914.
White, A. B. “Some Early Instances of Concentration of Represent¬
atives in England.” American Historical Review , xix., 735 - 750 . New
7ork, 1914. “Was there a ‘Common Council’ before Parliament?"
Ibid., xxv., 1-17. New York, 1919.
- and Notestein, W. Source Problems in English History, New
York, 1915.
Of the medieval problems, two deal with important constitutional subjects
(the origin of the jury and of the Commons in Parliament), and include some
source material not available elsewhere in translation.
Willard, J. F. “ The English Church and the Lay Taxes of the Four¬
teenth Century.” University of Colorado Studies, iv., 217-225. Boulder,
1907. “The Scotch Raids and the Fourteenth-Century Taxation of
Northern England.” Ibid,, v., 237-242. Boulder, 1908. “Side-Lights
upon the Assessment and Collection of the Medieval Subsidies." Trans¬
actions of the Royal Historical Society. Third Series, vol. vii. } 167-1
London, 1913. “The Taxes upon Movables of the Reigns of Edward I.
Edward II., and Edward III.” English Historical Review, xxviii.,
xxix., 317-321; xxx., 69-74. London, 1913-1915. “The Assessment of
Lay Subsidies, 1290-1332.” Annual Report of the American Historical
Association for the Year 1917 , PP- 281-292. Washington, 1920.
These studies are a valuable contribution to the history of taxation ’ m g n g m
land.
Zinkeisen, Frank. “ The Anglo-Saxon Courts of Law. Political Sci¬
ence Quarterly, x., 132-144. Boston, 1895.
A good brief correction of some of the older misconceptions. See also his
Die Anf&nge der Lehngerichtsbarkeit in England. Berlin, 1893. Valuable account
of feudal jurisdiction, especially in the nth and 12th centuries,
ABBREVIATIONS
Adams, G. B., and Stephens, H. M. Select Documents of English
Constitutional History , referred to as A. and S.
xxx Bibliography
Maitland, F. W. The Constitutional History of England, referred to
as Maitland, C. H. E.
Pollock, F., and Maitland, F. W. The History of English Law before
The Time of Edward referred to as P. and M.
White, A. B., and Notestein, W. Source Problems in English History,
referred to as W. and N.
INTRODUCTION
E NGLISH constitutional history is not national his¬
tory; it is world history. The justification of its
study does not lie in national consciousness or preference,
but in the fact that through England’s governmental
story, and through that alone, can be known the advent
into the world of one great side of man’s attained civiliza¬
tion-political democracy.
Civilised man has drawn his religious inspirations from the
East, his alphabet from Egypt, his algebra from the Moors,
his art and literature mainly from Greece, and his laws from
Rome. But his political organisation he owes mostly to
English conceptions, and constitutional systems all over the
world are studded with words and phrases which can only
be explained by reference to the medieval English parliament . 1
One easily undervalues the thing that is familiar. The
principle of representation, habeas corpus, trial by jury,
the rule of the majority, universal suffrage—such things
we know from our youth up, and in this time, notable but
not peculiar in its spirit of reckless waste of the past, they
are often thought of as things rather easily dispensed
with and replaceable by ready-made substitutes. De¬
mocracy is based on the idea that government is every¬
body’s business—the hardest kind of obligation to enforce.
It is amateur government for the vast majority, and men
easily tire of being amateurs. It can only endure if people
have an overwhelming conviction of its value; and its
value can best be weighed and its working understood by
1 A. P. Pollard, The Evolution of Parliament, p. 3.
xxxii Introduction
a study of the long labour and suffering by which it has
been wrought.
The field of general English history is divided into the
following main divisions 1 :
a . Britain before the Roman occupation began, namely,
before 55 B.c. This is practically prehistoric Britain.
b. Roman Britain, 55 B. 0.-407 a.d.
c . England from the Anglo-Saxon conquest to the
Norman Conquest, 449-1066.
d. England from the Norman Conquest to the end of
the middle ages, the period when governmental institu¬
tions were in the making, 1066-1485.
e. The modem period, when through greater political
self-consciousness these institutions were tested and de¬
veloped, and in recent times greatly modified and ex¬
tended.
Constitutional history has nothing to do with the first
division, and very little to do with the second, from which
latter period little or nothing that is found in the later
English government came. Our institutional story has
its beginning in the third division, the Anglo-Saxon period.
It is exceedingly important to note, however, that it had
its beginning also on the continent. Through the Norman
Conquest its roots run back through Norman history to
France and the Frankish Empire, and draw from the
soil of the whole continental development since the fall
of Rome, and from Rome itself. Thus in its fullest sense
English constitutional history did not begin until the
Norman Conquest, because, until that time, there were
not present in England all the materials out of which the
constitution was to grow. There were, then, two great
introductory lines of development, two tap roots from
which the later constitution drew, the one Anglo-Saxon
and the other Norman, the one largely insular, the other
continental. 2 The coming together of these through the
1 Strictly speaking, of course, there was no English history in the island
of Britain until the coming of the Anglo-Saxons.
2 But it should be noted here, and the point will be illustrated in the
account which follows, that Anglo-Saxon institutions owed much to con-
Introduction
xxxiii
violence of the Conquest was bound to result for a time
in confusion and uncertainty, a period often identified
with the first two Norman reigns. This period was short
owing mainly to the vigour and governing genius of the
Norman kings; and already under Henry I. we catch the
familiar outlines of the new, permanent growth. Then
follows the great period of constitution making. This book
deals briefly and by way of introduction with the Anglo-
Saxon and Norman background developments, takes ac¬
count 'in cross-section summaries of the main tendencies
in the short period of post-Conquest confusion, and comes
to its main subject in the creative period following. It
closes with 1485, when much of the structural growth had
been completed and many generations of Englishmen had
been trained in governmental work and responsibility.
Full political self-consciousness, a new questioning of all
grounds of authority, and the struggle for political liberty
belong to the centuries following.
To study the constitutional history of England means
to study the origin and growth of those institutions which
have to do with the government of the English people.
It is true that nearly everything in a people’s life has at
least an indirect bearing upon the making of its govern¬
ment; but in the study of this subject it is a practical
necessity to fix the attention especially upon certain
phases of the people’s activity. Probably no two scholars
would agree as to just where the domain of constitutional
history ends and that of such subjects as legal or economic
history, political science or sociology, begins. Such agree¬
ment is neither possible nor necessary; there will always
be debatable ground. But one cannot go far upon the
wrong road, if he keep his eye fixed constantly upon the
sole purpose of his study—an understanding of how the
present English government has come to be what it is and
how in recent centuries it has touched and influenced
political thought and growth throughout the world.
tinental influences. Yet, speaking broadly, this contrast between the
insular and continental backgrounds holds true.
PART I
English and Continental Backgrounds
SECTION I
ANGLO-SAXON INSTITUTIONS. 449-IO66.
i. The Anglo-Saxon Conquest and its Problems —
The Anglo-Saxon period is filled with problems. Mait¬
land states an important truth about all early institutions
in what he says of early law:
The grown man will find it easier to think the thoughts of
the schoolboy than to think the thoughts of the baby. And
yet the doctrine that our remote forefathers being simple folk
had simple law, dies hard. Too often we allow ourselves to
suppose that, could we but get back to the beginning, we
should find that all was intelligible and should then be able
to watch the process whereby simple ideas were smothered
under subtleties and technicalities. But it is not so. Sim¬
plicity is the outcome of technical subtlety; it is the goal not
the starting point. As we go backwards the familiar outlines
become blurred, the ideas become fluid, and instead of the
simple we find the indefinite . 1
Some reasons for the difficulty which all scholars find in
understanding Anglo-Saxon, especially early Anglo-Saxon,
institutions may be stated. There was an actual com¬
plexity of custom, pettiness of detail, and endless local
variation. The people of those times neither thought
clearly nor spoke with precision about their own institu¬
tions', they were incapable of broad generalisation or
exact definition, and never thought of the possibility of
saving labour and doubt by striving for greater uniformity
1 Maitland, Domesday Book and Beyond, p. 9 -
3
4 English and Continental Backgrounds
and simplicity. Men were interested in the practical
problems of a particular time and locality. These traits
make any records, which they have left, very hard to
interpret. And these records, as we now have them, are
but odds and ends.
A prominent feature of the Anglo-Saxon government,
alike in the separate kingdoms and in England as a whole
after the approximate union of these kingdoms, was a
lack of co-ordination between central and local institu¬
tions. A great gap existed, which many Anglo-Saxon
kings strove sturdily, but for the most part unsuccessfully,
to bridge. At the centre were the king and the witan,
strengthened in later times by the king’s local officials, the
sheriffs; in the localities, were those institutions and cus¬
toms in hundred and shire, by virtue of which the people
lived in some degree of peace and administered a rude
justice. The local government was more important than
the central; that is, most of the real governing was done
by local means. To local institutions and customs, then,
especial study must be given, not because they are inter¬
esting puzzles, but because their subject-matter lies at
the root of our study. 1
In order to understand how the early Englishmen gov¬
erned themselves in their localities, we should be able to
answer such fundamental questions as these: Were the
majority of the men freemen or serfs? Was there a
nobility? How was the land held? Did the people live
together in villages or were they scattered? How were
their local assemblies made up ? ere there varying
grades of assemblies, and, if so, how were they related?
How were their laws made and how enforced? Though
they might be multiplied, these inquiries show the kind
of subject-matter and the important lines of investigation
in the early Anglo-Saxon period. 2
1 It will be seen that England is not alone concerned here but that
3 * ° f tte baSlC mattSrS ° f oonstitut i°^ history
’It should be said in advance that our knowledge of all Anglo-Saxon
local institutions » still incomplete, and that on maly importent matters
Anglo-Saxon Institutions. 449-1066 5
We deal here with the institutions of a country after
a great invasion and conquest have taken place. An in¬
vading people has more or less completely displaced the
former inhabitants. We must know at this point, at least
in summary fashion, something of the condition of the
people in Britain just before the conquest, something of
the conquerors and the manner of their invasion, and the
more immediate results of the contact of the two peoples.
These three subjects will be briefly discussed in the order
mentioned.
We cannot here consider at length the extent to which
the native Britons had become Romanised during the
four centuries in which Britain was a Roman province, or
how much Roman law and custom survived the with¬
drawal of the legions. 1 Britain was the last of Rome’s
provinces to be gained and the first to be abandoned.
Rome’s famous capacity for assimilation declined rapidly
not long after Agricola had finished his work; and, more¬
over, there were reasons why no great efforts were made
towards a complete colonisation of the island: Britain
was the most northern of the provinces, and while the
comparatively level regions of the south, east, and mid¬
lands offered no great obstacle, the hill country of the
west and north, even where it passed under Roman rule,
was much less affected and retained a distinct Celtic ele¬
ment in its life throughout the Roman period. But the
lowlands were Romanised; here prevailed “Roman town
life, the peculiar gift of Rome to her western provinces.”
Besides the five chief municipalities on or near the sites
of the later Colchester, Lincoln, Gloucester, York, and
scholars arc not in agreement. This book can attempt nothing more than
to reflect the present stage of scholarship on these questions. If the
problems themselves can be so stated as to be clearly understood, much
has been done; and enough is now known so that an intelligible story of
institutional development can be told.
1 These questions have been long and hotly debated and the contest is
not yet over. There can be no doubt, however, as to which side scholarly
opinion is more and more favouring. The older, and, as it may be called,
orthodox view seems likely to be sustained. It is essentially that given in
the text.
6 English and Continental Backgrounds
St. Albans, there were some ten to fifteen country-towns
which were a sort of provincial centres of the principal
native tribes. Here Latin was spoken and most of the
forms of Roman life observed, even to the laying out of
the streets and the construction of the houses. In the
country, there appear to have been the estates or villas
characteristic of Rome, but leaving too scanty traces for
positive statements about the agrarian system developed.
Latin was spoken to some extent in many of the country
districts—probably, in most of them, both Celtic and
Latin. Many roads were made, some for military pur¬
poses, more for the uses of ordinary communication be¬
tween towns. Migration to Britain was small. The
distance was great, and the Romans did not like the
climate. Traders came, but few of the upper classes, few
also of the labouring class. The midlands were always
thinly populated. When in the early years of the fifth
century the troops were withdrawn, there was no great
exodus of Roman inhabitants. It was rather that there¬
after Rome sent no more protecting legions and guiding
and controlling governors. The Romanisation of Britain
was all along the same lines as in the continental provinces,
but it is to be thought of as in fainter colours, less indelibly
impressed. Only about a generation intervened between
the abandonment of the province and the time when the
conquest by German tribes, long threatening, began in
earnest. It is wrong to suppose, as is often done, that
all traces of Roman administration soon disappeared.
There were bound to be attempts to continue the Roman
forms. The Britons could hardly have done anything
else. But they were trying to continue a system which
was beyond them, and its decay and their weakness were
sure to follow. Such a Britain, however willing to fight,
could not be successful against a determined attack from
any quarter. 1
* See P. J. Haverfield, The Romanisation of Roman Britain and The Ro¬
man Occupation of Britain; also his chapter on Roman Britain in The
Cambridge Medieval History , vol. i.
Anglo-Saxon Institutions. 449-1066 7
Of the Angles and Saxons in their native land, little is
known. 1 There is evidence that, before the conquest of
Britain, the Angles had kings and a well-defined military
class, and that they played the leading part in the under¬
taking. Probably other surrounding peoples besides the
Saxons added to the movement; but only in the case of
the Angles was there anything like a national migration. 2
It must often be repeated that the insular character of
Britain has been one of the most important factors in the
history of her people. That the Anglo-Saxons had to
come over-sea made the Germanic invasion of Britain
different from that of any other part of the Roman empire.
The boats were small and the sea tempestuous, and how¬
ever purposeful the movement may have been on the
part of the fighting class, the number of invaders could
not have been large at any one time. 3 Families, cattle,
and household goods were probably left behind at first.
It was only gradually and after much fighting that, pre¬
cisely after the fashion of the Danes, four centuries later,
the invaders became colonists and brought over what they
would permanently need. We may well suppose that
they were, for the most part, freemen, although the non¬
noble freemen probably did not come in great numbers
until the fighters had gained a hold upon the soil. There
would be small use in bringing slaves when plenty could
be had from among the conquered Britons, and without
doubt many wives came from the same source. It is also
probable that, whatever minor class distinctions existed
1 See Chadwick, The Origin of the English Nation , for valuable investi¬
gations of the original location of the Angles and Saxons and the early
civilisation of the Angles.
2 Chadwick conjectures that the invaders of southern Britain were
called Saxons by the natives because of one or more reigning families there
of Saxon extraction, and that, in general, Angles and Saxons were mingled
in the invasion, the Angles probably constituting the nobility. Kent, the
Isle of Wight, and part of Hampshire were settled by Jutes.— Ibid ., passim.
* The breadth of sea was not great. Probably most of the invaders
followed the route that had been the favourite one in their attempts on
Britain for nearly two centuries, along the continental coast to the Strait
of Dover and then across. The attack radiating north and south from
this central point accounts for the Roman name “Saxon shore” applied
to the British coast from the Wash to the Isle of Wight.
8 English and Continental Backgrounds
in the fatherland, the leaving old associations, a sea
voyage in small boats, and settling a new country, where
land was plenty but had to be fought for, had a levelling
and democratising effect. Moreover, the invasion and
conquest resulted, as they did also on the continent, in
the weakening for ever of the bonds of kinship and the
general kin organisation of the Germanic tribes, thus
paving the way for newer forms of social and political
life. The actual coming in of the Anglo-Saxons lasted
over a century, and it was two centuries before the island
was really conquered. That the invasion of Britain was
very slow should be carefully noted, for it helps account
for conditions in the succeeding period.
Of the immediate results of the contact between Britons
and Teutons, perhaps the most notable was that the
Britons were exterminated or quite completely displaced
in parts of the east and south (though there is some evi¬
dence of many Britons surviving in the extreme south¬
east and of less extensive “pockets” of them left in other
places), and that as the invasion extended west, larger
and larger numbers remained alive and on their land. 1
The ground was not contested with the same desperation
, 1 1? may be useful here to point out some important methods of inves¬
tigating early Anglo-Saxon history. The most obvious in the case of any
penod is, of course, to collect all the written records, public and private
organise them, study them critically, and draw conclusions. But, as has
been before stated, written documents relating to the period in question
are so scanty and unsatisfactory, that could they not be supplemented by
something else we could hardly hope to reach trustworthy conclusions,
lwo other methods of research have produced encouraging results and do
not seem exhausted. The first is the study of the land itself, the physical
geography and general topography of England. In the matter of the
Anglo-baxon conquest, much has been learned by the study of rivers
and mountains, the location of old forests and marshes. It can be learned
m this way what routes the various bands of invaders must have taken,
where their way was barred, and where the enemy was able to make a
^ °t>scure passages in the scanty records have thus been ex¬
plained. This study also gives hints of the manner of life after the con-
XS Vltal question. Nothing fades so slowly as the im-
£™ S +? laCie u P°n the appearance of a country by its early settlers—the
Trfr^nf TO* their houses, laid out their fields, and ploughed them.
wlU outlast by hundreds of years the state of soci-
llr £Bif 0 / UCe ^ t J err V But no of evidence is more likely to remain
r^Srch k thlt 0 nf k° l iand l e judiciously. The second method' of
research is that of working backward from a period about which consider-
Anglo-Saxon Institutions. 449-1066 9
by the natives when they had much territory to withdraw
to as when they found that territory growing dangerously
limited. This is not to deny, however, a sturdy resistance
at all times. On the other hand, the invasion spent its
force in the east, where the first comers settled down and
occupied the land. The remoter regions were taken up
more slowly by smaller bands that represented later,
straggling arrivals from the continent, or, as was often
the case, colonies that left the older and more thickly
settled places near the shore. Long contact had also
tempered the race hatred that seems to have been bitter
at first. The conquerors were learning that the Britons
were useful, and the latter were coming to choose a life
of greater or less servility rather than death. At the end
of the conquest, then, England’s appearance was far from
uniform, and this broad distinction between east and west,
not to mention minor ones, has to be constantly taken into
account. But in east as well as west a considerable Celtic
element was absorbed, and ethnologists see in the English
of to-day evidences of pre-Celtic strains.
A typical settlement in the east of England in the early
Anglo-Saxon period would consist of a group of families,
most of them connected by blood, living together in a
quite compact village. Each of the houses had its sepa¬
rate garden plot. Lying back of the houses, on all sides
of the village, was the arable land, in which each freeman
had his portion. This portion, however, did not lie all
in one place, but consisted of small oblong strips scattered
able is known to the period before about which little is known. If we get
a cross-sectional view of institutions during long enough time to note their
directions, relations, and the forces acting on them, much may be inferred
of the roads they have been travelling back in the shadowy region behind.
Taken by itself, this method carries but short distances, but when it can
be checked by even a little evidence of a different sort, its value becomes
great and the results illuminating beyond expectation. Green’s Making
of England contains instances (not all of them to be trusted) of the first of
these modes of study, while Maitland’s Domesday Book and Beyond is
the classic example of the second. Studies in anthropology also throw light
on race mixtures and survivals, and such studies have of late indicated a
greater continuance of pre-Teutonic peoples in Britain than had previ¬
ously been supposed.
io English and Continental Backgrounds
about in different parts of the arable fields. This strange
scattering of the individual holdings may have arisen from
extreme care to have all the holdings equal in value: the
quality of the land varying from field to field, it was pro¬
posed that each member of the settlement should have
some of every kind. It also may have been caused, or at
any rate continued, by pressure from above in cases where
lords had much control of the land and wished for their
own purposes to prevent the extreme inequalities and
confusion which would arise from equal division of lands
among children. The parcels of land being small were
necessarily oblong on account of the needs of ploughing,
it being economy of time and labour to turn the awkward
eight-ox team as seldom as possible. Outside the arable
land, lay meadow, pasture, woodland, and waste, in which
all the householders had their prescribed rights. The es¬
tates of individual villagers were in no way marked off
into separate holdings. Because many individuals did
not have a complete outfit of agricultural implements or
oxen enough it was the custom of the villagers to cultivate
their land by some system of mutual help. Such settle¬
ments as these were, doubtless, a reproduction on British
soil of something very similar which the Anglo-Saxons
had known in their ancient home. Some slaves there may
have been in all of them, furnished from the Britons or as
the result of strife among the invaders themselves; but in
these eastern settlements, the number must always have
been small. 1 Prom very early times we hear of lords and
rents, and there is little doubt that the fighters and the
churchmen were largely supported by payments in labour
and kind and that much of this must have been rendered
by freemen.
In the west, the typical settlement was quite different
and may have been influenced by previous Celtic arrange¬
ments, into which the conquerors fitted themselves, as
1 For a visualising of such a village community, see “Plan of a Medieval
mZiscter S&L ^ AtUS ' V - I04 ’ and maP I5b “ PutZ ^>
Anglo-Saxon Institutions. 449-1066 11
was so generally done by the Germanic conquerors of
Gaul. Instead of compact villages, there were elongated
villages, scattered hamlets, or isolated farmsteads, and
the number of slaves was large. 1 While the more com¬
plete driving out of the Celts in the east probably helps
to account for this difference in type of settlement be¬
tween east and west, yet there is much that is not at
present explainable; and there are striking exceptions: in
Essex, for example, the western type was the more common.
Between these two types of settlement, there were
doubtless many variations. There may also have been
places where the Roman villa, that great estate,
owned by one lord and worked by slaves and coloni ,
was taken possession of by the conqueror, who now
became the lord, and, as far as he was able, continued
this Roman agrarian unit without change. Evidence of
any survival of the villa system is not positive; and, as it
could never have been widespread in Britain, the extent
to which it survived the Roman evacuation, was continued
by the Britons, and finally adopted by the Anglo-Saxons,
must have been very slight. But though not traceable to
Rome, these Anglo-Saxon settlements appear to have had
an element of aristocracy, of landlordism, *n them from
the start, and this element strengthened as time passed.
So from earliest times there are traces of rights and claims
which seem to us individual and those which seem com¬
munal. It was no one’s thought to make a doctrinaire
separation between these. “Both principles were com¬
bined according to the lie of the land, the density of popu¬
lation, the necessities of defence, the utility of co-opera¬
tion.” 2
1 See the charts, illustrating the two types of settlement and their per¬
sistence to the present time, in Maitland, Domesday Booh and Beyond ,
between pp. 16 and 17* . ... ...
2 Vinogradoff in Cambridge Medieval History , ii, 637. The dilemma to
which historians formerly felt themselves bound, of tracing the develop¬
ment from communalism to individualism or else from individualism to
communalism, is vanishing with increasing knowledge; and we are now
face to face, as Maitland especially has shown, with the problem of tracing
progress from the vague to the definite.
i2 English and Continental Backgrounds
Not only was there lack of uniformity in the first Anglo-
Saxon settlements in Britain, but in the years following
there was constant opportunity for innovation. Colonies
were being formed in the newer districts, and men were
adopting that mode of life which seemed to suit best the
particular time and place, there was little accumulated
property, things were in no sense stable, and wars, famines,
or pestilences easily broke up existing conditions and gave
rise to new ones. “ Agrarian history becomes more catas¬
trophic as we trace it backwards/’ 1 and surely early
Anglo-Saxon society and institutions were extremely sub¬
ject to change. Although, taking the country as a whole,
the number of Celts that survived was large, yet, owing
to their subordinate condition, they contributed little in
language or institutions to the period that followed. 2
Thus as little that was Roman outlasted the period of
Roman occupation, so little that was either Roman or
Celtic survived the centuries of Anglo-Saxon conquest
and colonisation. The slowness of the invasion and the
resulting bitterness of the conflict 3 prevented the adop¬
tion by the conquerors of the manners and customs of the
conquered, while it gave every chance for change and inno¬
vation in the conquerors’ own institutions.
2. The Local Government. 4 —a . The Classes of Men.
—Perhaps there is no subject in early English history in
which one’s modem notions are so likely to lead him astray
as in this matter of the classes of men. We have here one
of the best examples of the general distinction between the
clear-cut ideas of modem times and the vague ideas of
the past. 5 This is especially the case in dealing with the
1 Maitland, Domesday Book and Beyond , p. 365.
2 Seebohm ( Tribal Custom in Wales) believes that tribal custom, both
Celtic and Anglo-Saxon, contributed to the manorial idea; that the tribal
chief, for example, had in him things which suggest and things which
actually helped to bring forth the later lord of the manor.
. s Continental history at this time teaches that sudden and overwhelm¬
ing invasion often resulted in little bloodshed or displacement of existing
populations. &
4 In this subject, the author is under constant obligation to the work of
Maitland, especially the Domesday Book and Beyond.
5 See above, p. 3.
Anglo-Saxon Institutions. 449-1066 13
difference between the freeman and the slave. Slavery
and freedom in modem times are usually so sharply sepa¬
rated that a possibility of confusing them seems absurd.
But in Anglo-Saxon times, conditions were very different.
To be sure, many were slaves because bom so, but the
class was constantly being recruited in other ways: foes
taken in battle, men in every way the equals of the con¬
querors, and of Teutonic as well as Celtic blood, became
slaves; members of a community who may have long lived
respected by their neighbours might, owing to a variety
of misfortunes, be obliged to bow their heads in the evil
time and part more or less completely with their freedom.
It was impossible with their loose ways of thinking to
allow the legal status of a man to be wholly uninfluenced
by his personality. “We may well doubt whether this
principle—'The slave is a thing, not a person’—can be
fully understood by a grossly barbarous age. It implies
the idea of a person, and in the world of sense we find not
persons, but men.” 1 With this caution in mind, the
Anglo-Saxon population may be divided as follows: at the
bottom of society were the slaves or serfs, men lacking
freedom, but not necessarily lacking all rights; next in
order came the non-noble freemen, the ceorls; and above
them the eorls or warriors, the main body of whom was
perhaps not much above the grade of the later gentry,
while the athelings or princely kindreds were a true no¬
bility. The status of this whole last class was based on
blood and not on office or service. But from the earliest
times are found traces of a nobility by service, and, with
the development of the kingdoms, the eorls declined and
the new nobility, the ihegns , gained in importance. This
•word originally denoted service, and the early thegns,
first mefitioned in the late seventh and early eighth cen¬
turies, were king’s followers. After the eighth century
they became a landed aristocracy of about the grade of
the later country gentlemen, though some notion of
Maitland, Domesday Booh and Beyond t p. 27.
14 English and Continental Backgrounds
their belonging to the king's household long clung to
them. 1 2
&. The Hundred and Shire and their Courts .—The
names and sizes of the territorial divisions next larger
than the township 2 varied greatly in early Anglo-Saxon
times. There were wapentakes in the north, lathes and
rapes in Kent and Sussex, shires in Wessex and Cornwall,
and hundreds in many parts of southern and central
England, especially Wessex. Generally, the southern
divisions were smaller than the northern, as would natur¬
ally be the case owing to the greater density of population
in the south. In Wessex, from the early tenth century,
the hundred became the normal unit, and there local
organisation gained some efficiency earlier than elsewhere.
A tradition ascribes to Alfred the division of England into
hundreds. When the Danelaw was gradually won back
by Alfred's son and grandson, and all southern and central
England were feeling the unifying influence of the strong
West-Saxon kings, many things were made over new,
especially in the reign of Athelstan, and it is quite probable
that a more complete local organisation and the use of the
term hundred thus started and spread outward from
Mercia and Wessex. Wapentake, however, still remained
the name used for the corresponding division in the north.
The hundred was the smallest governmental division of
Anglo-Saxon times, and serving chiefly a judicial purpose,
is often spoken of as the judicial unit. 3
1 Chadwick, Studies on Anglo-Saxon Institutions , furnishes detailed dis¬
cussions of the early official classes. See the same author's The Origin of
the English Nation , pp. 296, 297, for a theory as to why there were no freed-
men among the Anglo-Saxons. See also Larson, The King's Household
especially pp. 76-88.
2 Township is perhaps the most accurate and convenient term to apply
to the individual settlement or village. The township, while usually hav¬
ing some economic unity, was not a political division. The villagers may
have had meetings^ for the regulation of their common economic interests.
Some scholars believe that a petty court existed in the early township,
thus making the township a political unit, but there is no proof of this.
* The name hundred was possibly not native to Wessex itself, and may
have been borrowed from the continent, taking the place of an earlier and
varied terminology. Chadwick. Studies on Anglo-Saxon Institutions ,
pp. 239-248, and Liebermann in Deutsche Literaturzeitung, 1905, p. 12, sug-
Anglo-Saxon Institutions. 449-1066 15
The origin of the shire, the territorial division next
larger than the hundred, is better understood. Some
shires, as Kent and Sussex, are coterminous with the an¬
cient kingdoms bearing those names. These kingdoms,
when they passed under West Saxon control, gradually
became local divisions of a united England and were
classed as shires, a name which, unlike its earlier use, was
being applied to large instead of small divisions. 1 Other
shires, as Dorset and Somerset in Wessex, and Norfolk
and Suffolk in East Anglia, stand for early tribal divisions.
Thus these two classes of shires perpetuate boundaries as
ancient as the Anglo-Saxon conquest. In the midland
districts, the shires are much less ancient and of quite
different origin. When Edward the Elder and Athelstan
won back these districts from the Danes, they divided
them into shires for military and administrative purposes
and, in doing so, probably took little account of ancient
boundaries. Here the shire and its principal town have
often the same name, the town lying near the shire’s
gest that both name and organisation came from Scandinavia. For further
information on the early English hundred and, especially, its relation to
the continental hundred, see Stubbs, Constitutional History of England,
§ 45, and Select Charters , pp. 78-80. The source material following the lat¬
ter reference could be studied here with much profit. “ All Teutonic coun¬
tries know a unit, which, under the name of hundert t hcerath, hundred, hun-
tari , comprises a number of villages, and is, at the time when Teutonic
history begins, the primary judicial unit. The etymology of the name
points irresistibly to the conclusion that it was also, at one time, a mili¬
tary unit. But this is not to say that it had not an older character, and,
it may be, an older name. Dr. Meitzen has shown strong reasons for
supposing that it is a relic of the pre-agricultuxal stage, in which the
members of a clan fed their flocks and pitched their tents on a patch of
territory which afterwards, as agriculture developed, became divided
into villages . . . the extraordinary differences in the sizes and con¬
tents of the hundreds seem to show that they could hardly have been, in
origin, military institutions. ... A police institution they do, un¬
doubtedly, become; but this is later/’—Jenks, Law and Politics in the
Middle Ages, pp. 164, 165, In England the number of hundreds in a shire
and the size of hundreds vary greatly. For example, there are 5 in Leices¬
tershire, 9 in Bedfordshire, 17 in Cambridgeshire, 63 in Kent. In early
times the number of villages in a hundred varied all the way from 2 or 3 to
perhaps 20.
1 Many ancient local names that contain the word shire indicate that in
the earliest times it was often used for very small divisions, but with little
definiteness of meaning.
16 English and Continental Backgrounds
centre. This probably indicates that the towns are older
than the shires, the former having been used as fortresses
by the West Saxon kings or perhaps created for that
purpose. Worcester, Northampton, and Bedford are ex¬
amples of this group. The northern shires, representing
pieces of the ancient Northumberland and Strathclyde,
have, for the most part, originated since the Norman Con¬
quest . 1 It was undoubtedly the unifying and organising
activities of the West Saxon kings in the ninth and tenth
centuries that did much to change the earlier territorial
confusion into the two grades of local division with the
name hundred applied to the smaller and shire to the
larger.
In both hundred and shire, popular assemblies were
regularly held. That of the hundred, the hundred court,
as it is usually called, had to do with judicial matters only.
From the tenth century, it met normally every four
weeks . 2 It was competent to deal with cases of all sorts,
and a case once decided in it could not be carried to a
higher court. In fact there was no such thing as appeal,
in the modem technical sense, in the Anglo-Saxon judi¬
cial system. The hundred court, however, might, and
often did, refuse to entertain a case 3 or fail to reach a de¬
cision in one. Such cases might then be taken to the
shire court, and, if not decided there, to the king; and
occasionally cases were carried directly from the hundred
to the king . 4 But taking cases to the king was discour¬
aged. In early times the hundred court was convened by
1 See Stubbs, Constitutional History of England, § 48.
2 There seems no doubt that there were local popular courts in districts
including a number of townships long before there was any regular division
of the country into hundreds and shires. The use of a small territorial
division for police purposes, perhaps its creation to that end, appears
to have been one of the very earliest of governmental efforts among
Germanic peoples.
3 Perhaps because of its importance; but more often it was because of
some malice or disability under which the party to the suit was labouring, or
the unrighteous use of power on the part of a local lord.
4 See Stubbs, Select Charters , pp. 83, 86. “The suitor who comes before
the firing comes not to get a mistake corrected but to lodge a complaint
against his judges; they have wilfully denied him justice.” Maitland.
C. H. E. t p. 106. '
Anglo-Saxon Institutions. 449-1066 17
a hundred-man or hundred’s-ealdor, but after there were
sheriffs this official was replaced by a serjeant or bailiff
of the sheriff, appointed for each hundred, who convened
and presided. Probably most of the free landholders of
the hundred attended either in person or by deputy, and
this body of freemen did the judging, as far as any real
judgment entered into their procedure. There was noth¬
ing in the nature of a professional body of judges or
lawyers in England until long after the Norman Conquest.
The shire court was summoned twice a year by the
sheriff, and he, together with the ealdorman and bishop,
was present at the sessions. The ealdorman, originally
having an official character, was, towards the end of the
tenth century, fast becoming the independent local noble
with control over vast territories, and his attendance at
shire courts must have been increasingly irregular.
Whether he or the sheriff was the presiding or constituting
officer of the court, it is impossible to tell. The bishop
was there to declare the law of the church and look after
the interests of the clergy, for the court dealt with both
ecclesiastical cases and persons. All men of importance
in the shire seem to have attended as a matter of course;
but it is hard to make an accurate statement about the
others who came. It is conjectured that in very early
times this was a thoroughly popular assembly, and, in
those shires which perpetuated the boundaries of early
tribes or petty kingdoms, may have been a lineal descend¬
ant of a tribal assembly attended by the armed body of
freemen. But it had become burdensome to attend the
now regularly summoned and peaceful shire court. Trav¬
elling even a short distance was a difficult matter in those
days, and the time consumed by, the sessions and the
journey seriously interrupted the rural economy. At the
time we get our first certain knowledge of the make-up of
the court, there was no complete attendance of the free¬
men, and, very possibly, the process by which, after the
Norman Conquest, the burden of attending court {suit of
court) became attached to certain holdings of land rather
18 English and Continental Backgrounds
than enforcible against all freemen had begun . 1 But,
notwithstanding this, it may be said of the shire court, as
of the hundred court, that it was, and always remained,
an essentially popular assembly.
In these courts, a body of unwritten customary law was
being administered by the people from whom it had
sprung, and in whose hands it was undergoing a natural
development. It was, however, a primitive law, dealing
largely with criminal matters, but with no conscious dis¬
tinction between what was criminal and what was civil.
Deeds of violence were common, especially manslaughter,
wounding, and cattle-stealing. The Anglo-Saxon period
strikingly illustrates the transition from the early state of
society, in which men right their own wrongs, to the time
when something which may roughly be called the state
steps in between the wrongdoer and the wronged and
does the righting. The individual or the kin still had
much to do with it, but there were public courts which
prescribed just how it should be done and took a large
share in the procedure . 2
Apart from procedure in the actual presence of a court
of law, there were the ever recurring problems of the pur¬
suit and capture of a fleeing criminal, the forcing of any¬
one resting under any kind of charge or summons to
present himself before the court, and, when cases ended
with fines imposed, as so many did, the ensuring of the
fine’s discharge. The co-operation among neighbours,
townships, and later, larger units, to track down and seize
the fleeing wrongdoer must have been among the first
tendency characteristic of the middle ages to territorialise
public duties. To exact such duties of large bodies of men by dealing with
them personally overtaxed the slight executive powers of the time A
piece of land was a stable thing, always to be found, and could stand for a
fixed amount of public service to be enforced against its holder or holders
Se laterWl^L!? cha ^ 1 ? or personnel. The attempts ill
0 pen ° d un der lords all freemen who lacked
substantial landed property, the lords representing them in the courts
teuitonalismg of suit of court. Freeholding rather than per-
We^sSbetew,TXioteT eaSUre ° f at leaSt of the political
p or a valuable account of this procedure, see P. and'M ii so8-6m-
also Maitland and Montague, Sketch of English Legal History, ch. if ° 3 '
Anglo-Saxon Institutions. 449-1066 19
efforts of society to protect itself. This was the institu-
tion later called the hue and cry, and it may have been
called that or something very similar by the Anglo-Saxons.
When the cry was raised by someone who had suffered
violence or who saw evidence of a crime committed, as in
finding a dead body, the neighbours must join in pursuit
wherever the track seemed to lead, and if it led into
another township that township was expected to help.
Evidence of this institution appears first in the written
laws under Athelstan, and then much more clearly in
Edgar's Ordinance of the Hundred, where the co-operation
of even such large units as the hundreds was commanded.
Though it here emerges in written law, and the Ordinance
contained an important regulation of the custom, there
are indications of its much greater antiquity, especially
on the continent. The element of suretyship, the holding
of a man to his appearance in court, his discharging a fine
or other obligation, was something that in early times
rested with the kin. But when kin were few or wholly
lacking, there was an effort to place the obligation else¬
where, perhaps sometimes upon a man’s companions in
arms; later, after Christianity through its condemnation
of feuds and its insistence on individual responsibility
had weakened the tie of kin, the hundred was occasionally
held responsible; more often, after commendation was
frequent, a man’s lord . 1 But some notion of kin respon¬
sibility remained long and perhaps usefully in the realm
of police functions.
The summoning of the defendant to court was done, not
by an officer, but by the plaintiff himself, who had to be
very careful, however, to do it in the prescribed manner
and at a certain length of time before the meeting of the
court. The summons was often ineffective, and the
courts had a great deal of trouble in making their author¬
ity felt, especially in getting criminals before them. The
imposition of fines (usually in cattle and in this connection
constituting a kind of regulated distress upon the man or
1 On the later history of suretyship, see below, pp. 67-69 and 109, no.
ao English and Continental Backgrounds
those held responsible for him), which was the principal
means of compulsion, would, in many cases, amount to
little, and, as a last resort, the man who could be dealt
with in no other way was outlawed: that is, he was put
outside the protection of the law, so that he might be
killed at sight like a wild beast. Indeed the courts were
not so much thought of as compelling people to come to
t.Tiftm or abide by their decrees, but as places to which
parties could voluntarily resort, having a kind of gentle¬
men’s agreement to abide by the result. But supposing
both parties to the suit to be in court, the next step was
the taking of the fore-oath by the plaintiff. In this, he
stated his case according to a set form of words, and often
brought to swear with him a suit of witnesses —one or more
men who were ready in a preliminary way to support his
oath and thus establish a prima facie case. The fore-oath
was usually required except in case of manifest fact, like
a fresh wound. The fore-oath was followed by the equally
formal oath in rebuttal by the defendant. But it might
happen that he could not take it; the oath was a solemn
matter, and, if guilty, he might hesitate to stand before
his assembled neighbours and make the assertion which
carried with it a damning guilt . 1 On the other hand,
plaintiff or defendant might trip in repeating their
formulae, and any mistake, at this or any other point in
the procedure, was fatal to the cause of the one making
it. But if the defendant took his oath successfully, the
case might end at that point, and in his favour. Thus
the solemnity of the oaths, the fact that the court con¬
sisted of the neighbours of the parties whose affairs they
knew, and that the suit of witnesses often had especial
knowledge of the case would bring to an end many of the
less difficult points of dispute. But in the more baffling
cases it was now for the court to decide which party should
. 1 ^ connection with the importance of the oath throughout procedure, it
should be noted that at this tune there was a greater gap between mere
lying aM breaking an oath than now. Their great regard for oaths was
probably indicative, among other things, of their generally light regard for
Anglo-Saxon Institutions. 449-1066 21
make proof, what the proof should be, and what should
be the result of success or failure in the proof. This was
the real judgment in such cases, and was the point at
which the assembly, that is, the judging body, could make
itself felt in a rational way. The proof was usually
awarded to the defendant, and this action, considering
the character of the proof oftenest used, was, doubtless,
somewhat in his favour; but there might be considerations
that would lead to the opposite action. The judgment,
then, instead of coming where we should naturally look
for it, came in the middle of the procedure and before the
proof, which, in a distant way, corresponds to the modem
trial. This seems less strange when the nature of the
proofs is understood.
When once set in motion, the proofs took care of them¬
selves, so to speak; they needed no attention on the part
of the court except to see that they were carried out ac¬
cording to the letter of the accustomed form. They were
of two classes, oaths and ordeals. In the first class, were
the oaths of the oath-helpers, later called compurgators,
and the oaths of witnesses in those civil suits in which the
ownership of property was in question. Compurgation
was the commonest proof in what would now be considered
both criminal and civil cases. The man of unstained
reputation, unless he were under a specially serious charge,
would usually be given this proof. The oath-helpers
took their oaths, not because they knew the facts of the
case, but because they were willing to imperil their souls
to the extent of swearing with the man whose oath they
were to strengthen. In early times, the oath-helpers
were usually required from the party’s kindred, a further
illustration of the irrationality of the system. Later, this
custom passed away, and the idea came in that most of
the oath-helpers should belong to the same general class
in society as he with whom they swore. The value of
their united oaths was measured according to their num¬
ber and rank, a thegn’s oath equalling those of six ceorls.
Thus the gravity of the crime was reflected in the number
22 Jtsngiisii and Continental bctcKgrounas
and quality of the oath-helpers, as a result of which it
would, of course, happen that a man of low rank must have
a larger number for the same crime than a man of high
rank. A successful oath-helping does not seem to have
been considered so much a proving that the accused was
innocent (though it may have been that to some extent),
as something of a vicarious compensation; there had been
an atonement for the crime through the perilling of the
souls of a number of men . 1 Probably a more rational
way of regarding this proof existed in later Anglo-Saxon
times; indeed, the changes just noted indicate this.®
Proof by the oaths of witnesses became common through
the practice of having witnesses present when exchanges
of property were made . 3 If a man was engaged in a trans¬
action that he wanted witnessed, he must call upon the
bystanders at the time. If he did not he could not after¬
wards compel them to come to court to testify. The pro¬
duction of witnesses could not be on the basis of an after¬
thought. Such transactions had oftenest to do with
cattle, and the presence of witnesses became increasingly
imperative during the Anglo-Saxon period. Royal de¬
crees upon this matter were frequent and urgent, showing,
if other evidence were not abundant, how great a problem
cattle-stealing was in these primitive communities. If a
man’s ownership of certain cattle was called in question
and he was not able to bring forward any witness of his
purchase, it was practically an acknowledgment of theft.
Probably a man would also be allowed to show by oaths
of neighbours that cattle had been raised by him; but dis¬
putes about such cattle would seldom arise. At first
sight, these practices seem very much like our modern
witness system, but there is an important difference.
These ancient witnesses were not put on oath to answer
1 Speaking of the early time when kinsmen were oath-helpers, Mait-
land says: The plaintiff, if he thought that there had been perjury,
would have the satisfaction of knowing that some twelve of his enemies
We Jm^ evote ^ divine vengeance.”—P, and M. ii., 600.
There were two kinds of compurgation of differing severity, one
requiring verbal accuracy, in verborum observanciis, and one not
3 For instances, see Stubbs, Select Charters, pp. 74, 75, 84.
Anglo-Saxon Institutions. 449-1066 23
in court any questions that might be put to them in order
to bring out the whole truth about the matter under liti¬
gation. Only one party to the suit produced them and
they knew beforehand the set formula to which they must
swear. There was no elasticity, no equity; it was simply
the question whether they could take the one oath which
was to be the defendant’s proof.
The second kind of proof, the ordeal, might, if the court
so judged, be resorted to after the fore-oath and oath in
rebuttal, or it might follow a more or less unsuccessful
oath-helping. In the criminal cases other than cattle¬
stealing, there was no attempt to use witnesses, compurga¬
tion and ordeal being the only proofs. The ordeal was
used mainly in connection with the more serious wrong¬
doing and was a deliberate appeal to supernatural know¬
ledge (originally to the gods of fire and water) by men who
felt themselves powerless to penetrate the mysteries of
crime. The ordeals of hot and cold water and hot iron
were common, and the ordeal of the accursed morsel was
also used. The wager of battle, which was, properly
speaking, an ordeal, was not used by the Anglo-Saxons.
The ordeals, with their pain and risk, often caused those
to whom they had been awarded to hesitate, and there
were many last-moment compromises. A good many
primitive forms of justice performed their most useful
function in bringing about extra-judicial agreement . 1
In a procedure dealing largely with criminal matters,
we naturally look for punishments to follow the proofs,
but there was little punishment of the sort that might be
expected. There were no prisons, and capital punish¬
ment was rare. If we think of Anglo-Saxon courts as
helpless before the mysteries of ‘Tact/’ they were also
helpless in adapting the punishment to the crime 2 or in
x For a full discussion of the primitive methods of trial, see H. C. Lea,
Superstition and Force: essays on the wager of law, the wager of battle, the
ordeal, and the torture .
As to why the wager of battle was lacking in Anglo-Saxon law see P.
and M. i., 50, 5 *. „ , . ,
2 There was little classification of crimes. Secret slaying was much more
severely treated than open slaying. This was not wholly the root of our
24 English and Continental Backgrounds
assessing damages in civil wrongs. Nearly every kind of
wrong was righted by a fine, in origin a commutation of
the old blood feud into money payment that antedates
Christianity and was probably worked out very slowly
in primitive Germanic history. The fines had by this
time become so elaborated and definitely fixed by custom,
that, in imposing them, the court used little, if any, dis¬
cretionary power. If a free man was slain, the slayer had
to pay a fine, called the wer , to the dead man's kin, the
amount of the wer being determined by the victim's rank
in society . 1 A fine which was a compensation for any
other wrong was paid to the injured party, and was called
the boL Probably, in its broadest sense, the hot included
the wer, the fundamental idea being that it was a private
compensation proportioned to the injury done. The hot
was not a penalty. But in the case of most crimes, a fine,
called wite, was also paid to the state, this fine being of a
penal character . 2 In the shire court, part of this latter
went to the ealdorman, part to the king, and perhaps
something also to the sheriff. Under the later and
stronger kings, as the sphere of the royal peace extended,
the size and number of the fines going directly to the king
were growing rapidly, and there was perhaps approach¬
ing, however distantly, the idea that a crime is an offence
malice aforethought, hut was mixed up with primitive horror of witchcraft,
or of poisoning as probably connected with witchcraft; it was not avoid¬
able, not a fair fight. The tariff of fines went into great minutiae with re¬
spect to every kind of wound or mutilation.
1 There was probably a relation between wer and landholding. The
unfree did not have a perfect kin to swear for them in oath-helping or be
responsible for their wer. A man could not attain to a full wer till he held
land and could point to a number of generations of landholding kin back of
him. The wer was paid in cattle, and those only possessed cattle who had
the tribal rights in land. The wer of the ordinary freeman was usually one
hundred head of cattle, reckoned as two hundred gold shillings. These
were the “two-hundred men” spoken of so often in Anglo-Saxon law. The
thegns were the typical “twelve-hundred men.” The higher nobles, prel¬
ates and princes, had much higher wers.
2 A fine of this sort indicates a more mature society than the com¬
pensatory hot. But the wite was ancient and had undergone change. It
may have been at first a fee to the court, later appropriated by the king;
or it may have been compensation for a real or supposed violation of the
king s protection, later extended in a routine way to all cases.
Anglo-Saxon Institutions. 449-1066 25
against the state. A man who could not pay Ms fine
and to whom the help of kin was lacking might be reduced
to slavery, and in the case of offences by slaves there were
traces of the old system of private vengeance or corporal
punishments wMch the fine system had mitigated. Some
offences, often those against the king, no one could make
good by a fine. Such were known as botless , and in the
later Anglo-Saxon period constituted the primitive pleas
of the crown. 3
The last step in the proceedings in most cases was the
collection of the hot by the victorious party. This, like
the beginning of the case, was not attended to by an
officer, but by the man concerned. Here again, however,
the act had to be done at a certain time and in a certain
way, which had become fixed by custom. Public author¬
ity backed up the individual if he met resistance in Ms
lawful undertaking, even the king sometimes riding forth
with his followers to aid in coercing some notoriously con¬
tumacious wrong-doer. But, on the other hand, if the
man collecting the fine departed in the least from the
prescribed programme, he lost the benefits of his success¬
ful suit.
Anything that can be called a law of property among
the Anglo-Saxons was rudimentary and mixed up with
precautions against theft and charges of theft. There
was scarcely any law of contract; “business had hardly
got beyond delivery against ready money between parties
both present.” About the only transactions involving
future settlement were marriage and payment of wer and
some of the heavier fines. Here there was much of oath
and pledging. As to such trading disputes as there may
have been, the general law and courts seem to have taken
no account beyond the use of transaction witnesses al¬
ready noticed. There may have been town and market
courts for such purposes. Land law seems very meager
and vague. There was little buying and selling of land—
probably when it was sold the consent of the whole vil¬
lage must be gained. In the case of ordinary free land-
26 English and Continental Backgrounds
holders, there is no proof that they could will their land.
With bookland , 1 which signified fully as much a kind of
right over the people on the land as of proprietorship in
the land, all was different; the holder could often sell,
lease, or will. But bookland was in its early stages
when the Norman Conquest interrupted. Rules of land
inheritance varied, and there are instances of almost every
kind; but equal division among sons was commonest . 2
While it may be said that these Anglo-Saxons enjoyed
the freedom of living under a law which they themselves
had made—whether we are thinking of the scanty rules
of substantive law or their more elaborate law of court
procedure—a law that had not been imposed upon them
by any despotic central power, yet the rigid formalism
which they had developed was in itself a tyranny and
often defeated the ends of real justice. They were very
ready to accept something better when, after the Norman
Conquest, the king opened his own court to them . 3
In concluding the account of hundred and shire organi¬
sation, something further must be said of the shire’s two
most prominent officials, the ealdorman and the sheriff.
The ealdorman was theoretically an appointee of the
king; he had a distinctly official character, and might be
placed over a single shire or several shires, the latter being
usually the case. He was the shire’s chief man, com¬
manding its military force and having the position in its
court already described. But when ealdormen are first
heard of, they were making successful attempts to render
their positions hereditary, and were identifying themselves
with the interests of their localities rather than with those
of the king. As the king’s dominion approximated all
England under Alfred’s descendants, the ealdormen cov¬
eted corresponding extension of territory. They sought
1 See below, pp. 39-42.
2 See Pollock, Anglo-Saxon Law , Select Essays
History, i., 88 fL
in Anglo-American Legal
3 For some documentary material on the early hundred and shire courts
see Translations and Reprints (English Constitutional Documents) m
Anglo-Saxon Institutions. 449-1066 27
more and more shires and hence could not attend well
to shire business and the meetings of the shire court. In
the late Anglo-Saxon period, they were becoming a great
landed nobility, and in the eleventh century, now known
as earls y 1 they practically destroyed the country’s unity
and prepared the way for the Norman Conquest.
This change in the ealdorman undoubtedly accounts
for the rapid development in the tenth century of a lower,
single-shire official—the sheriff. We hear of divers kinds
of reeves from early times, among them, king’s reeves,
who seem mainly to have had charge of the king’s landed
interests; but the use of shire-reeves, that is, sheriffs, by
the king was not at all general until this time. The sheriff
was appointed by the king, and had very limited grants
of land. Although there appeared in the office of sheriff
the same non-official tendencies that affected the ealdor¬
man, and though he strove to enter into the ealdorman’s
dignity and power, yet, during the Anglo-Saxon period,
these tendencies did not have an opportunity to develop
far, and the sheriff remained substantially a royal official . 2
The maintenance of such officials was the first effective
reaching out by the central government to touch and in¬
fluence the local government. It was a hint, in Anglo-
Saxon times, of the long process that did much to shape
the government after the Norman Conquest. Ordinarily
there was one sheriff for each shire; he convened the shire
court, accounted for the king’s share of the fines in the
shire and hundred courts, assembled the militia at the
king’s command, and had general oversight of royal
property in his shire. He was a link between the centre
and the localities.
In estimating the extent to which the king was able to
make himself felt locally in the later Anglo-Saxon period,
mention must be made of the king's peacey one of the most
important of Anglo-Saxon beginnings. Persons or things
1 Owing to Danish influence, the word earl (from the Danish jarl) was
substituted for ealdorman. It should not be confused with the earlier
Anglo-Saxon eorl, which was a general word for the man of noble birth.
3 In a few cases the office of sheriff later became hereditary.
28 English and Continental Backgrounds
that were in any special way connected with the king were
likely to be considered as falling within his peace. It was
a serious matter to break the king’s peace; deeds of vio¬
lence against the king’s officers or servants or committed
in the king’s house or on the king’s highway were subject
to a severer penalty than those against ordinary persons
or in ordinary places. Thus there were two kinds of
peace in the country: the king’s peace which was limited
in its scope, and the general peace of the local courts . 1
But taking into full account all the efforts of the Anglo-
Saxon kings, through the sheriffs or otherwise, to extend
their authority in the localities, still the lack of co-ordina¬
tion between the central and local governments remained
great, and the local government, such as it was, would
probably have gone on without serious difficulty if the
king had ceased to be. As kings grew strong and the
country more united under the West Saxon dynasty,
there was a broadening of the scope of the king’s peace;
it took in more territory and covered more persons. It
was coming close to, if it had not already reached, its
recognised second stage, in which it applied generally,
but had to be claimed in proper form by the injured party
in order that he might reap its benefits in court. It was
left to Norman and Angevin kings to hasten it to its third
stage in which the courts took it for granted.
c. Origin and Early History of Boroughs .—In England,
the urban community, the municipality, is called a
borough, the term city being applied to those boroughs
which have, or have had, a cathedral church. The be¬
ginning of boroughs was the beginning of a special form
of government for the inhabitants of places so called, by
which they were placed in an exceptional position, and
were more or less cut off from the ordinary local organisa-
1 It is probable that this second form of peace was never thus con¬
sciously taken account of at the time, whereas the king’s peace was matter
of frequent mention. Indeed the whole question of the older peace is a
vexed one. Was it recognised and backed up by the king? And what is
the relation of all this to, or its evolution out of, the old private vengeance
idea?
Anglo-Saxon Institutions. 449-1066 29
tion. Govemmentally and economically they were little
alien units springing up in the rural hundreds and shires.
They must be taken into account in connection with
Anglo-Saxon local government; and they become ever
more important in governmental history. One is at once
faced by the question of origins. What was the thing
which made a place urban and the lack of which left it a
village or township? At first, he is inclined to think of
population as being the essential thing: when a community
reaches a certain size, it should be declared a borough and
receive the organisation and rights of one. But such a
conscious process could only take place after a consider¬
able number of boroughs existed and people knew what
was meant by one. What was the origin of the first
boroughs?
During the Roman period, there were cities in Britain,
as elsewhere in the Roman empire; and these cities suffered
the same devastations from the incoming barbarians as
the other cities of the empire north of the Alps. Much
that was material survived and, in several places, there
was undoubtedly a continuous population; but it is im¬
probable that the government of these cities lasted through
the century and a half of Anglo-Saxon invasion and con¬
quest. English municipal institutions had their origin in
the Anglo-Saxon period.
When the first English boroughs emerge from the dark¬
ness of the past, the things that distinguish them from
the ordinary townships are few. But it is clear that a
differentiation had begun: certain communities had
started to travel a different road from that of the ma¬
jority; and, though the divergence was at first small, we
know that many of these humble boroughs at length be¬
came true municipalities, and, on the way, set the example
to other communities that sought to adopt their forms
and attain their privileges. But the trouble is to account
for the first distinguishing traits of the borough. Prob¬
ably these did not spring from the same causes in all
cases, and, at present, it is not possible to distinguish
30 English and Continental Backgrounds
between and fully explain these causes. But the origin
of an important group of midland boroughs is known with
some certainty.
When Edward the Elder and his descendants were
winning back the territory that Alfred had ceded to the
Danes, they established many fortresses in order that
their hold upon the country might be secure . 1 In doing
this, they might choose an uninhabited spot, or they might
fortify a village or build a fortress near one. Such fort¬
resses were known as burhs, of which borough is a later
form. The burhs were, in a special sense, the king’s;
they were often thought of as his places of residence and
his peace reigned in them. Every Englishman’s house
was his castle, and it was thought a grievous offence
against him to break its peace; but to make a breach of
the peace in the king’s burh, to make burhbryce, was far
more serious. So a specially stringent peace, enforced by
severe penalties, reigned there. Fighters must be present
in these burhs, and the burden of maintaining them fell
upon the great men of the respective shires. "Where rural
communities had become fortified places, there was be¬
ginning a mixed population. A well-protected place,
and one where a special peace reigned was attractive to
those whose calling required security: artisans and traders
were drawn, and, if the burh were favourably situated, a
market might come to be held in it. Thus a new element
of population was added. Often the shire court was held
in what we may now venture to call the borough, and
increased its importance. But the boroughs more and
more needed courts of their own, and seem to have had
them quite generally by the late tenth century. Such
courts were co-ordinate with the hundred courts and so
took the boroughs out of the hundreds! jurisdiction. In
Edgar’s laws, along with the decree that the hundred
court be held every four weeks and the shire court twice
a year, there was that ordering the borough court three
1 See above, pp. 14, 15. Alfred himself probably began the fortress pol¬
icy, but it was extended rapidly into the midlands after his death.
Anglo-Saxon Institutions. 449-1066 31
times a year. Thus the differentiation was well started,
and yet there was no borough government apart from
the court, which was, no doubt, conducted much as was
the hundred court . 1 And there was no greater unity,
nothing looking more towards modem municipal corporate-
ness, than in any of the rural villages. All the elements
that had gone to form this primitive borough, the old
arable fields of the original settlers, with the pasture and
waste surrounding, and the rural traditions and customs
which these implied, the houses owned by the great men
of the shire, the descendants perhaps of those who kept
the early garrison, the people who looked to these men as
their lords, and, finally, the later industrial group, that
was tending to assimilate the rest—all these remained
clearly discernible, and traces of them lingered for a long
while. But what these midland boroughs had was a dis¬
tinctive name, a court that enforced a strict peace, a
position of importance in the shire, a somewhat shifting
and mixed population, and a beginning of industrial and
commercial activity. Yet by no means all the fortresses
built to hold the midlands were nuclei of boroughs.
After the idea of a borough had taken shape, there was
always the possibility of its being more or less consciously
adopted by centres of population where no king’s burk
had been. But it cannot be stated that all the boroughs
of later times either began as king’s burhs or received their
distinguishing governmental forms from places that had
so started. And it is not certain that the midland fortress
boroughs were the first places to differentiate from the
rural communities, though they seem to have furnished
a name that, by some means, became identified with such
differentiation. The fortified residences of great nobles,
monasteries, seaports, or any places well located for the
establishment of markets were centres about which people
might gather; and, to meet the judicial needs of such
* It lias been conjectured (Chadwick, Studies on Anglo-Saxon Institu^
tions ) that the court which met thrice yearly was made up of county
landowners who had houses in the borough, and that there must have
been more frequent meetings of the burgesses themselves.
32 JinglisJi and Continental Backgrounds
centres.- especially where trading was carried on, it seems
ilcely that special courts might grow and the institutional
distinction from the ordinary townships be established.
Populations which gathered about the residences of lay
or ecclesiastical lords were drawn by the industrial needs
of such establishments. Such needs were varied. The
labourers and craftsmen who met them came often from
the servile or semi-servile classes, and the rude towns
which they made were regarded as belonging to the lords.
Such industrial groups might also form upon the king’s
extensive lands, and, if they developed or acquired the
borough qualities, add to the number of boroughs that
he already had. At any point in the later Anglo-Saxon
period, there can be found a group of boroughs clearly
recognised as such, the old boroughs. These may have
originated in any of the ways mentioned. There can also
be found communities in all stages of progress towards
boroughs, and, in the case of some of them, it is impossible
to conclude whether or not they may be properly con¬
sidered boroughs. This was still the case at the Norman
Conquest. And by that time, forces which had been in¬
creasing the powers of the great landholders and depressing
the status of the middle-class freemen were more and more
bringing all boroughs under lords, who enjoyed financial
and judicial privileges in them.
The tenure by which real estate was held in the bor¬
oughs was known as burgage and was based upon a money
rent. It was a heritable tenure and much like free
socage, which latter was the most important of a group of
Anglo-Saxon free, non-noble tenures . 1 Burgage has been
described as a sort of town socage. How a tenure purely
at a money rent arose at such an early time is an interest¬
ing but obscure matter. Probably it was originally a
commutation of some earlier and more uncertain service . 2
1 The idea at the "root of the term socage is that of seeking or follow¬
ing; the socagers, sokemanni, are bound to seek, follow, attend the court
of the lord.” Maitland, C. H. B., p. 48. See below, p. 44 and note x,
and also on land tenure after the Conquest, pp. 94-96, ior.
2 Maitland, Domesday Book and Beyond, pp. 198—200.
Anglo-Saxon Institutions. 449-1066 33
Uncertain service was the characteristic of unfree tenure,
and when this was commuted into burgage tenure by the
lord of a semi-servile industrial group, it went far towards
marking off that group from an ordinary manor, and
started it towards the organisation and privileges of the
older boroughs.
As the boroughs grew in wealth through industry and
trade, it became possible for their lords to get a greater
income from them; and, as the royal boroughs were the
most numerous, the king profited most. The imposition
of various tolls was always the accompaniment of a
flourishing market upon any lord’s domains. As the
business of the borough courts increased, the fines received
from them by the king, as from the shire courts, increased.
Thus a substantial revenue was furnished the king from
his boroughs, consisting of rents, tolls, and fines. These
items, taken together, were known as th efirma burgi, and
formed part of the ferm of the shire for which the sheriff
was held responsible.
The boroughs were not slow to recognise that they
differed from the other communities, that they had special
needs, and that, as population and wealth increased, so
did their power to obtain privileges from their lords. To
gain the right to pay the sheriff th efirma burgi in the form
of a fixed, lump sum, instead of running the chance of its
increase and suffering the petty annoyance of having it
dealt with in detail, was the first important step towards
independence taken by the boroughs. To be able to deal
with the sheriff solely at the gate became an ambition.
But the story of the borough’s strife for independence
follows, rather than precedes, the Conquest. The facts
to note here are that the boroughs had come to contain
an important, middle-class population; that they had a
form of government of their own, an increasing esprit de
corps, and a knowledge of their own special needs.
d. Anglo-Saxon Feudalism .—With the consideration of
the boroughs, there has been completed a brief survey of
the Anglo-Saxon local government as it existed in the
34 English and Continental Backgrounds
earliest times of which we have any important knowledge.
But even while the boroughs were coming into existence,
and, in its beginnings, probably antedating them, a pro¬
found change was taking place in Anglo-Saxon society
and local government. It has been shown that, in their
conquest and occupation of the country, the Anglo-
Saxons produced different types of settlement: in the east,
the compact villages; in the west, the elongated villages,
scattered hamlets, and isolated farmsteads; also that in
the west there were more slaves . 1 By the end of the
Anglo-Saxon period, some improvement in the condition
of the slaves had taken place, but many freemen were
losing their rights in the land and were lapsing into a con¬
dition of more or less dependence upon great landholders.
In the east, certainly, the land had gotten into the hands
of fewer men, and manorial organisation was growing
within the old townships. In a manor, one man, the lord,
was getting a hold on the land which approached owner¬
ship; and lord and tenants formed an agrarian organisa¬
tion in which the latter, some of them typically servile,
worked co-operatively on the lord’s demesne, and besides
made payments in kind and money as rents for their land-
holdings as well as for protection and guidance. The lord
also held a court which the men of the manor were bound
to attend and in which they were tried . 2
Economic and semi-govemmental forces shared in the
change which brought forth manors, forces which, at the
start, are hard to distinguish and which tended constantly
to coalesce. In many parts of western Europe, as well
as in England, populations that had been wandering
tribes were becoming stationary, denser, more civilised.
As a result, a more efficient government and new economic
arrangements were needed; but it would have required a
1 See above, pp. 9-12.
2 But after manors developed, the township idea and organisation were
not wholly lost. ^ The manor was an economic unit, and might or might not
coincide territorially with the township. When the central government
had dealings with the local units it was with the township, not the manor,
as for example in police measures.
Anglo-Saxon Institutions. 449-1066 35
long time to evolve a permanent central power that could
meet the governmental need. In the meantime, it must
be supplied by some power that could be developed more
quickly, that is a local power. It occurs to one that there
was already in England a system of local government,
and that there was needed only a fuller development of
this. However natural this may seem, it was not what
took place, and a little reflection will show that no short
process could have made assemblies constituted as were
those of the hundred and shire efficient. The change was
relatively swift, and it meant that the land and the power
were to pass from the hands of the many into the hands
of the few. This was substantially what has happened,
under similar circumstances, in many parts of the world
and at many different times. In a broad sense of the
term, it was a feudal process; it was the acquisition of
economic advantage and some degree of political power
by private individuals . 1 Its results in England may be
called Anglo-Saxon feudalism. But the process was far
from complete at the end of the Anglo-Saxon period. The
forces causing it were neither so great nor so sudden as
they have, at times, been elsewhere, and the older local
organisation had strength and tenacity. Hence local
conditions in England, upon the eve of the Norman Con¬
quest, are hard to understand. There was neither the old
organisation and classification of men nor the new;
society and institutions were in a fluid state, and although
one can see in a way from what and to what they were
tending, he must be content with hazy ideas as to just
what they were. XX- ? X I
Of specific processes in this change commendation was
prominent. It was the act by which one man entered
into such a relation with another that the latter became
1 Historians to-day do not this great
change can be summarized as a change from commupfelSi individual¬
ism or vice versa or a change from freedom to servility. ^ It cannot be re¬
duced to such a simple formula.. One thing is sure: a primitive society of
landholding families was becoming through quite natural causes a soci¬
ety of landlords and tenants. But this economic change was accompan¬
ied by much else.
36 English and Continental Backgrounds
his lord. It was a personal relation and for mutual bene¬
fit. The lord gave protection and guaranty, and was
often called the defensor or tutor of his man. In return, he
received the value of an armed retainer or some other more
or less clearly defined service. The object of the man in
getting a lord was to gain, by this private transaction,
greater security in troublous times than was afforded by
the crude local government, or it was to obtain some
economic advantage through connection with a great
landholder. Probably in most cases the man acted with
a mixed motive. Simple as this relation of lord and man
seems, it was capable of great variation: to become the
men of some lords, under some circumstances, meant an
actual rise in status; there was something honourable,
almost ennobling, about the act; on the other hand, com¬
mendation often lowered the man’s status, and, if it did
not mean an immediate loss of freedom, it looked in that
direction. There was no technical exactness, and the re¬
lation of lord and man might imply almost anything.
But one generalisation can be made at this point: the
class of non-noble freemen was becoming less homo¬
geneous, it was splitting. The change was that sharper
division into classes likely to result from a more settled
life and a denser population. No one was at first con¬
cerned with furthering it; it took place naturally, for it
solved a problem of the times.
One cannot fully understand any medieval relation
between lord and man until he knows to what extent the
tenure of land was involved, for a man’s legal status was
closely related to the character of his tenure and was
often affected by it. Indeed at this time the possession
of freehold land was coming to be the badge and guaranty
of full free status, whereas in an earlier state of society
free status ensured the possession of land. In Anglo-
Saxon commendation, land was sometimes involved and
sometimes not. The man might bring land to the lord
and, in some sort, hold it under him, being able to with¬
draw the land at any time and “go with it” to another
Anglo-Saxon Institutions. 449-1066 37
lord, and, in some cases, he might have no such power.
Also the land might come from the lord and be granted to
the man, in which instance the latter’s liberty in disposing
of it was probably less. There was less regularity in the
matter than in continental feudalism, in which, as be¬
tween lord and vassal, the greater right to the land lay
with the lord, and everybody must hold his land of some
one. In the Anglo-Saxon relation, the ownership of the
land, as far as there was any conception of ownership,
might lie with the man; men held land under their lords,
that is, under their protection and guaranty, rather than
of them. And yet, in the frequent lessening of the man’s
freedom to 4 ‘go with the land” where he chose, we may
see the lord gaining some right in the land, although what
it was may be too vague to express . 1
After commendation had become common, the kings
took account of it for a purpose of their own, and this
resulted in some extension of the practice and added some¬
thing to its character. As has been shown, a great weak¬
ness in Anglo-Saxon local courts was their inability to
make their authority felt; men were not easily gotten to
court or held to the court’s decrees. It was a police
problem. In early times, when the solidarity of the kin
was great, it was natural to look to the kin to hold its
members answerable . 2 Later, such police responsibility
was in part territorialised, and the hundred was made a
kind of police unit and was required to bring to justice
those who had committed crime within its bounds. But
this solution was inadequate; the state stall found it hard
to deal with the criminal who had little or no property.
The later and greater kings, who were striving to keep
the country in order and who saw that greater efficiency
in the local courts would increase their own revenue,
found in the new grouping of men under lords a way to
meet the police difficulty. Let the lords, men of substance
1 See Translations and Reprints (Documents Illustrative of Feudalism),
pp. 3 and 6, for a bit of illustrative source material on Anglo-Saxon com¬
mendation.
2 See above, pp. 18 , 19, 21, 22, 25.
38 English and Continental Backgrounds
and responsibility, be held liable for their men, and let
all landless men have lords. Let there be no more lord-
less and irresponsible men ■wandering about the country,
whom it was no one’s business to bring to justice and
from whom it was impossible to collect fines. Such was
the substance of many decrees of the later Anglo-Saxon
kings . 1 But the police function is a public one, a thing
properly belonging to the state and to be enforced by the
state’s officers. The state was here using the power and
position of private individuals at a point where its own
means of meeting a governmental problem broke down.
Such a shifting of a public burden to private shoulders is
a feudal process , 2 and thus commendation came to have
a significance that it did not have in its more purely
economic stage. The relation created by commendation
gave to the lord no judicial authority over his men. But
placing this police duty upon the lords, albeit in connec¬
tion with public courts, may seem the first step in gaining
such authority. As a matter of fact, however, private
courts in which freemen were tried, sprang from another
source; but commendation and what went with it brought
forth conditions favourable to their growth.
As already shown, the lord of a manor held his manorial
court mainly for his serfs. To hold a court for one’s un¬
free tenants, whether in the matter of civil disputes or of
crime, was not a concern of the state; the serfs were one’s
property, or largely that. And there is no doubt that as
the manorial system of agriculture developed, the freemen
1 _ Thus positive legislation extends the relation of dependence: it is
required that men must either have lands or have lords. The
man may be still fully free, may have political rights, but he is dependent,
lhe change has begun which makes freeholding, and not personal free-
dom, the qualification of political rights. The landless man is represented
*?• iri e f :ourts “ s lord; his lord begins to answer for him, he is losing his
right to attend on his own behalf, to sit there as judge and declare the
tow. Maitland, C. H. E., p. 149. These men were glad to escape the bur¬
den, and thus, perhaps, did suit of court begin to be identified with land-
holding. See above, p. 18, note 1, and below, p. 103. If landless men
m ac, l* ave lords, many small landholders were voluntarily seeking lords.
ror a fuller statement of the meaning of the term feudal, see below,
pp. 73 and note 1, 99, note 1.
Anglo-Saxon Institutions. 449-1066 39
of the manor would be drawn into its court in matters
touching their economic or property interests. But
private jurisdiction proper, the power of a lord to hold a
general criminal and civil court for freemen and enjoy
its profits, had its origin in grants of bookland. In their
earliest form, these were grants made by the king to some
church, that is, to some bishop or abbot, of certain rights
and privileges over a piece of land and the people on the
land. The grants were evidenced by a written document,
known as the land-book , and their permanence was further
ensured by the anathema of the church . 1 Folkland was
land that remained under the folklaw, that is, the
unwritten, customary law—land overwhich no right, based
upon a written charter or book , had passed . 2 The ques¬
tion, whether the king, in making his grants of bookland ,
bestowed the ownership of the land upon the church, is a
difficult one. Did he give the land to the church and
thus rob of their ownership all the people living on it?
A satisfactory answer cannot be given because, in the
middle ages, there was no sharp distinction between
private ownership and the public authority which the
state has over all its territory. The Latin word dominium,
then in common use, generally implied something of both.
It seems probable, however, that, in the early grants of
bookland , the king did not give away the land, the owner¬
ship of which as far as ownership was conceived of, re¬
mained where it was already; but he did give away rights
which, according to modem thought, no state could part
with without destroying itself, that is, distinctly public
rights. Yet the king could not carry this beyond a cer-
1 The idea of any kind of land grant by means of writing was undoubt¬
edly Roman in origin and came into England through the church, the
first to benefit by such grants. They introduced rights in the land which
were foreign to the old tribal land law. For the text of a land-book of the
tenth century, see Bell's English History Source Books , i., 79—82. ^ See also
Translations and Reprints (Documents Illustrative of Feudalism), pp.
8-10; 13, 14. . , ^ . ... T*
2 See Vinogradoff, Folkland , English Historical Review, m, 1-17* Be¬
fore Vinogradoffs work, it had been the accepted view of historians that
folkland was public land, the land owned by the folk as a whole.
40 English and Continental Backgrounds
tain point, for, -while he remained king, he was king over
; every foot of soil in his country, and, as such, there was
something which he could not give away.
Two questions may now be asked, the answers to which
should show the part played by bookland in the changing
Anglo-Saxon society. Did the grants establish a lasting
relation between grantor and grantee, and, if so, of what
kind? What were the things which the king gave away?
In answer to the first question, it may be said that there
was more of the out and out gift and less of the loan or
conditional grant in these cases than one, having in mind
the relations between the king and his great men at a
later time, might suppose. Usually there was a previous
obligation on the part of the king or the expectation of
future service from the grantee. But there may have
been cases where there was no relation between grantor
and grantee either before or after the transaction, cases
in which the king simply yielded to importunity or was
trying to bring better order into a locality by placing more
power in the hands of one man.
As to the second question, at least two things can be
named that the grantee might receive. One was the
right, when his men were fined in the courts, to take that
part of the fine, the wite, that had before gone to the king.
The other was the duty, in cases where a whole hundred
had been granted, of acting as presiding officer in the
hundred court. When, as was more often the case, only
part of a hundred was granted there was no immediate
placing of bookland holders at the head of courts; but the
taking of the fines that were imposed in the hundred court
seems to have been a long step towards it. Soon many
holders of bookland were presiding over courts in the parts
of hundreds that had fallen to them, the old hundred
court often surviving, in a reduced state, for those men
who were still on folkland. The point reached by this
process at the end of the Anglo-Saxon period varied much
from hundred to hundred. There were probably many
hundreds that remained practically untouched by it. It
Anglo-Saxon Institutions. 449-1066 41
will be readily seen how favourable was the state of so¬
ciety produced by commendation to the growth of courts
presided over by great landholders. These courts were
called hallmoots , probably to contrast them with the
open-air courts of hundred and shire. They must be
regarded as private courts, but the people of the time did
not so think of them. Private courts were new, and they
must wait some time before contrasting ideas of public
and private jurisdiction could arise. It was an institu¬
tionally unconscious age. Moreover, men were then
mainly interested in the financial side of jurisdiction.
They were not asking whose courts these were, but who
were to get the fines levied in them. They did not think
that the king had given any one a court, which was thus
changed from a public to a private court, but that he had
given some one the right to receive fines in a certain
district. On the eve of the Conquest, then, landlords
could not ipso facto hold courts for freemen. Where such
courts were held by them—and there were many instances
in Edward the Confessor’s reign—they did it as a special
privilege or franchise from the crown, and it was looked
on as a variant way of carrying on ordinary public juris¬
diction in part of a hundred.
It has been said that the grants of bookland were at
first made only to churches. Had they remained thus
limited, they could not have caused changes of great
importance. But their extension was inevitable, for there
were nearly as many motives for making such grants to
lay nobles as to bishops or abbots. The rapidly growing
class of ihegns was the class concerned. Whatever their
origin , 1 the thegns in the later Anglo-Saxon period were
forming a nobility of wealth and birth about the rank in
society of the later country gentlemen: a man 4 "throve to
thegnright” when he acquired a certain amount of land,
and the rank was heritable. An aristocracy was growing
through economic differentiation of the freemen. There is
much about the thegn that reminds one of the feudal
1 See above, pp. 13, 14.
42 English and Continental Backgrounds
knight of the continent and of post-Conquest England . 1
He was usually a warrior; but he fought on foot, he did
many things for his lord surely not included in knight-
service, and his service seems not so much based on his own
holding as something which he owed to his lord’s estate.
To thegns the kings made many grants of bookland.
Later, churches made them subgrants of the same char¬
acter out of grants originally received from the king, and
the thegns soon subgranted to other thegns or even to
churches. This process went on rapidly from the late
tenth century, and was uniting with the other economic
and political conditions, which have been noted, to pro¬
duce a change in society, feudal in character. But Anglo-
Saxon feudalism did not have a chance to work itself out.
Before it was at all complete, the Norman Conquest camp
and brought in new forces and ideas that immediately
dominated.
A sketch has been given of the classes in society before
this feudalising process made itself felt ; 2 it is necessary
here to inquire what they were after it had been at work
for some time and as we take our last look at Anglo-Saxon
local conditions. At the bottom, were the slaves or serfs,
as before; and here there had probably been less change
than elsewhere. But some change there had been, and it
was all in favour of the serf. In England, as on the conti¬
nent, Christianity had been doing something to better
his condition by persistently regarding him as a human
being, and, wherever opportunity offered, by attempting
to increase his rights. As early as the seventh century, the
church was insisting, albeit with little success, upon the
serf’s right to the personal property which he had himself
acquired. What has already been said about the difficulty
the medieval mind found in forming clear-cut ideas of
slavery of course applies here, as at the earlier time . 3
But despite this, there was probably a clearer line between
the legally free and unfree than anywhere else in society.
* See below, pp. 79 and note 1, 82, 97, 98.
See above, pp. 12-14. 3 ibid., p. i 3 .
Anglo-Saxon Institutions. 449-1066 43
Above the serfs, are found the names of classes and sub¬
classes, the status and relations of which are very hard to
understand. All within these classes technically freemen,
their actual freedom varied infinitely; and this is much
the same as to say that there was no uniformity in the
conditions and services upon which they held and culti¬
vated land. It was the size and character of their hold¬
ings that, more than anything else, determined their
status. The difference in their status was not legal but
economic. Following the evidence of Domesday on
classes and sub-classes , 1 we come next to the boors. The
boor received land, cattle, and tools from his lord, and to
his lord these reverted on his death. He paid for the use
of the land in fixed amounts of labour and in the products
of the soil. Above the boors, was the very broad class
of villeins. This word had different meanings at this
time . 2 In the use just made of it, it approached in in¬
clusiveness the old English word ceorl, and surely covered
everything between the boors and the sokemen —perhaps
it included the boors . In the villein class, there were three
subclasses: the villeins (the term used here in a narrower
sense), the borderers , and the colors. But these terms
were vague and the names of the subclasses varied much
from place to place. The holdings of this class varied
greatly in size, the normal holding of a man of the first
subclass being about thirty acres, while the cotars prob¬
ably had about five. The villeins (in the broader sense)
paid for the use of their land in labour and in kind, often
1 Maitland, Domesday Booh and Beyond , pp. 36-41. _ Writing more
recently and following the anonymous and undated Rectitudines Singularum
Personarum, Corbett makes the boors a numerous and more important
class, pointing out that the name Is a general one for peasant, in most
Germanic tongues; while he places the cotars next to the serfs. Cambridge
Medieval History , iii., 401-405. Terminology varied endlessly from place
to place; but the Domesday evidence seems the more reliable if one is to
venture the attempt at a general picture of Anglo-Saxon society at the
very end of the period. . _ .
2 Villein is from the Latin villanus, signifying one who lived in the
villa. In England, this was, of course, simply a borrowing of the conti¬
nental term, and does not imply a continuance of the Roman villa system.
It was a Latin translation of tunesman.
44 English and Continental Backgrounds
in money also. The land passed from father to son, and
the holder could not be evicted while all the regular
services were performed; but he probably had little
freedom to dispose of his land. As to whether he had
the right to quit the soil, it is hard to make a positive
statement, for he probably seldom attempted it. This
whole class shows the effects of the feudalising movements.
While legally free, and distinguished quite clearly from
the serfs, these villeins, owing to the hold the lords had
gotten upon their land and services, and the jurisdiction
which, in many cases, the lords had over them, were
practically quite unfree. In the north and east of England
there is evidence of a class of sokemen, the term freemen,
liberi homines (used in some narrow and special sense),
being also common. The men indicated by these names
are not to be sharply distinguished from the villeins;
probably in many cases, men who were called sokemen in
one shire would have been called villeins in another.
Taken as a whole, the class stood a little higher in the
scale of actual freedom; in one way or another, the soke¬
men were a little less dependent upon their lords. They
could choose their lords and were perhaps freer to “go
with their land” from one to another. Some of them
were lords themselves, but they were not, of course,
noble . 1 Above the non-noble freemen were the nobles,
the great landholders. These were the thegns, the earls,
and the great ecclesiastics. It will be seen that, with
fairly definite lines marking off the servile from the free,
and the noble from the non-noble, there lay between the
servile and the noble a vast body of men over whom a
change was passing, a change that had gone just far enough
to blur the old characteristics, but not far enough to bring
1 There is a theory which has some plausibility that the sokemen were
the descendants of the Danish freedmen or liesings. As members of the
conquering army they had to be given holdings and a position in the vills
somewhat above the Saxon villeins, and yet their former status precluded
their becoming lords of the land like the free, conquering Danes. It is to
be noted that very few sokemen are found in any part of England except
where the Danes conquered and settled. See Cambridge Medieval History ,
Anglo-Saxon Institutions. 449-1066 45
out clearly any new ones But the class was certainly
dividing; some may have been “thriving to thegnright,’’
but surely a much larger number was on its way to the
class below.
It will be noticed that in discussing these changes noth¬
ing has been said of the Danish settlements and conquests
of the ninth, tenth, and eleventh centuries. The ques¬
tion naturally arises whether there were no relations of
cause and effect between the Danish invasions and Anglo-
Saxon feudalism. There is so little direct evidence upon
the subject that no detailed statement can be made; and,
probably, it would be easy to overstate the Danish influ¬
ence. The Danes, who came from the continent in much
the same condition as to society and institutions as their
Anglo-Saxon predecessors, doubtless retarded for a time
the manorialising process in those districts in which they
became dominant; they tended to reproduce the earlier
conditions of the Anglo-Saxon settlers in the east. As to
the rest of England, the coming of the Danes seems to have
had just the opposite effect; it placed a burden of war
and defence upon the south and west, a burden that always
depressed a peasantry; and it brought on a period of dis¬
order and unrest favourable to the growth of private power
at the expense of the state. There were notable contrasts
between east and west in the late Anglo-Saxon period:
there were many more people in the east, Lincoln, Nor¬
folk, and Suffolk being the most densely populated coun¬
ties, Shropshire, Stafford, and Cornwall the least; land
was worth more in the east; also there were fewer slaves
there, and in general the peasantry, with lighter rents
and “works,” were less exploited.
3. The Central Government. — a. The King .—Like
most of the other Germanic peoples that invaded the
Roman empire, the Anglo-Saxons entered Britain under
the leadership of a king or kings . 1 But this is not to
ascribe a pre-conquest origin to all the petty royal lines
1 For evidence of early kingship among the Angles, see Chadwick, The
Origin of the English Nation , ch. vi.
46 English and Continental Backgrounds
that we hear of in England in the seventh and eighth
centuries. The necessity of leadership, of united action,
of mili tary efficiency, was the great source of kingship
among these early peoples. In the slow movement from
east to west in Britain, there was great opportunity for
disintegration, independent action, and the formation of
new groups. In the petty leaders of tribes or groups of
kin, was the stuff of which kings were made . 1 It would
not be long before a heroic halo would gather about
these primitive chiefs and a divine origin be created for
them. They were symbols of tribal or national unity
and consciousness; they were military leaders, and there
were very many of them. One is in constant danger of
associating with the word king ideas that may not be¬
long to it in the special time and place under considera¬
tion. The content of the word expanded greatly during
the Anglo-Saxon period, as the number of kings decreased,
until the idea that the king should be the civil head of a
centralised state was clearly present, though far from
realised. The kingship of Edgar or Cnute was vastly
different from that of Ceawlin or Ini.
The royal succession was regulated by that combination
of heredity and choice which was characteristic of most
of the early Germanic kingdoms; from a family that had,
in some way, become recognised as the royal family, the
most eligible member was chosen. The direct line of
succession was not generally departed from unless there
was some good reason, like a minority, for doing so . 2
But in certain instances, the designation of the last king
seems to have had some weight, and it was not unusual
for a king to associate his natural successor with him. It
is particularly important not to read modem ideas into
1 “The word cyning is in form a patronymic and would seem originally
to have meant ‘son of the family’ (i.e., presumably the royal family or
family of divine origin). If this suggestion is correct it would appear that
cyning was originally not a title of authority, but rather equivalent to the
modem word ‘prince.’”—Chadwick, Studies on Anglo-Saxon Institutions,
P-302.
But it is to be noted that the successive minorities of Edward the
Martyr and Ethelred II. did not interrupt the direct line.
Anglo-Saxon Institutions. 449-1066 47
the act of choosing these early kings. At no time dining
the Anglo-Saxon period was there a body of men that was
conscious of any recognised public right to elect the king.
There might be a formal acceptance, by the great men, of
him whom heredity or conquest had pointed out as their
lord and leader; and such warriors and populace as had
naturally gathered at the time and place at which a new
sovereign was to be proclaimed might show their approval
by acclamation. But these men, great and small, were
acting in a personal capacity, not as standing for the
nation. However, no presumptive king could feel at all
sure of his throne until he had received this recognition *. 1
No detailed account can be given of the growth of king-
ship" during this period. In the early days, there were
many small, distinct peoples with their petty kings or
chiefs. But throughout -mere was a tendency to coalesce
into larger and larger groups. The well-known seven
kingdoms, often called the heptarchy, represent one of the
longer stages in this process. These kingdoms were very
unequal in size and strength, and it was inevitable that,
sooner or later, the strong should lord it over the weak,
and that finally one kingdom should attempt to rule over
all the others. Unquestionably the Anglo-Saxons were
in a stage of civilisation fitted for larger political units
than those into which they had been broken by a pro¬
longed overseas invasion and conquest. In the seventh
century, the Northumbrian kings, though hotly rivalled
by Mercia, ruled more widely than any before them; this
supremacy passed to Mercia in the eighth century; then
to Wessex early in the ninth century, where it remained
with the descendants of Egbert until the Danish con¬
quest. The smaller kingdoms gradually lost their status,
and Kent, Essex (much reduced in size), and Sussex be¬
came shires ; 2 East Anglia soon shared the same fate, being
divided into two shires. Northumbria and Mercia lost
their identity as kingdoms during the great Danish in-
1 See Chadwick, Studies on Anglo-Saxon Institutions, pp. 357-366.
2 See above, p. 15.
48 English and Continental Backgrounds
vasions and settlements of the ninth century, most of
Northumbria and half of Mercia becoming the Danelaw.
Such unity as England attained in the Anglo-Saxon
period did not come from a union of kingdoms, but from
an expansion of West Saxon rule, under Alfred and his
powerful descendants, over some southern and eastern
shires that had once been kingdoms, and through con¬
quest in the tenth century of the lands that had been
seized and settled by Danes and Norwegians.
It was during the period of struggle among the early
kingdoms that Christianity spread throughout England;
and Christianity had much to add to the Teutonic con¬
ception of king, as well ideas derived from the Old Testa¬
ment as those of a strictly Christian origin. Kingship
was strengthened, made more grand and inviolable; for
the missionaries and other clergy understood, from the
start, that the central power was their natural ally against
the forces of disorder and division. The consecration of
the king, which included the anointing and the coronation,
became a religious ceremony, almost a sacrament, per¬
formed by the clergy. Although the crown existed in
heathen times, yet there was nothing that could properly
be called coronation; the custom of lifting the accepted
king upon the shields of the assembled warriors differed
widely from the solemn and dignified procedure after the
church had invested kingship with its sanction and
glamour. Probably the Anglo-Saxon king owed less to
this sanction and to any semi-religious or priestly char¬
acter which he might derive from the consecration than
was the case in many countries, France for instance. He
kept much of his old character of the accepted lord or
war-chief of his people. But the gift of Christianity was
substantial and the content of the word king was broaden¬
ing.
With the Christian religion, there came into England
some Roman ideas of government, probably in not very
distinct form or in very large numbers. But in Ethelbert
of Kent’s written laws we see beginning to work the idea
Anglo-Saxon Institutions. 449-1066 49
that a central power should be something more than a
military leadership. And the laws themselves, which had
a notable effect upon the legislative work of his successors,
were surely the result of Roman influence . 1 Several
instances are known in later Anglo-Saxon history where
continental and originally Roman influences affected the
action and ideals of kings. In the long-continued, and
apparently fruitless, attempts, repeated in almost the
same form generation after generation, to bring criminals
to justice and bolster up the weaknesses of the local
courts, we see a struggling of kingship towards a higher
realisation of itself. Some promptings were certainly
Roman; and it was in this general way, rather than
through the more tangible gifts of laws or institutions,
that Rome touched Anglo-Saxon government. The idea
that they could be something greater reached the Anglo-
Saxon kings from the continent, but they used crude,
Teutonic methods in striving to realise it. The large
differences between the late Anglo-Saxon kings and the
early may, then, be thus summarised: the late kings ruled
over larger and more diversified populations and had to
deal with new problems in government—they were no
longer petty kings; they had become Christian, and were
strengthened by the church's conception of monarchy;
they regarded themselves as civil rulers who were bound
to keep order and promote their people’s welfare . 2
The powers and privileges of a sovereign of the house of
1 In levying tribute from subject kings and perhaps in the use of the
hide as a unit of assessment the same influence is seen. The hide, of
which much is heard in later times, dates back surely to the seventh cen¬
tury; it was based on a unit of 120 and was not then a measure of land,
but appears to have had some reference to population. Modified and mis¬
understood, it remained for about four centuries the basis of reckoning
the military or financial obligations of various districts of England. For
its later use, when it generally meant 120 acres of land, see below, p. 119
and note 2.
2 The fact should not be overlooked that much of the activity m making
the local courts more efficient had a revenue purpose behind it. But most
governmental progress has lain in the operation of intelligent selfishness.
However, a society that could train the heathen Cnute into the kind of
Tri-n g he came to be was not without ideals. It also had not been without
some attainments in centralised government.
50 English and Continental Backgrounds
Alfred were very strictly limited by the customs of the
kingdom. But it cannot be said that the function of en¬
forcing this limitation was vested in a clearly defined way
in the king’s council. This council, known as the wiian , 1
an assembly of the great men of the realm, certainly exer¬
cised, at times, much power. The part that such men
played in the choice of king has already been noticed,
and we know that the king’s continuance in office often
depended upon their favour. In the performance of any
important act, their consent conferred an added authority.
But the relations of king and witan were never made clear,
and so great variations in practice were possible; when the
king was weak, the witan seemed to do all the governing;
when the king was strong, its share in government was
small. On his accession, the king must take a notable
oath. It was a threefold promise: first, that the Christian
church should be kept in peace; second, that all sorts of
injustice and violence should be forbidden all men; third,
that, in his judgments, he would exercise justice and mercy
that he might hope for the same from a just and merciful
God . 2 The Anglo-Saxon king was no irresponsible poten¬
tate; the people had no thought of such a ruler. Their
sovereign must not violate the customs and traditions of
the country, and, if he did not, there was nothing to pre¬
vent his attaining much actual power; if he did, the people
resisted him irregularly and personally rather than by
recognised public right.
As to his property, the king was, in many ways, situated
like a private individual; but probably no private individ¬
ual ever had so much. There was no land belonging to the
state as contrasted with that which the king held person¬
ally, just as there was no distinction between the public
treasury and the king’s private purse. There was not
governing enough done at the centre to make elaborate
machinery necessary; all was primitive, personal, and on
a small scale. The king’s revenue consisted, in the first
place, of what was paid him by the tenants on his land,
1 See below, pp. 52-58. 2 Ibid., pp. 115, 259.
Anglo-Saxon Institutions. 449-1066 51
just as in the case of any landlord; in the second place, of
his judicial income, the penal fines from the local courts;
in the third place, of purveyance. All medieval kings
travelled much, for much of their income was paid them
in kind and might have to be collected and used on the
spot. In their endless progresses through the kingdom,
they were conveyed and maintained largely at the expense
of the districts through which they passed, sometimes
taking commodities outright, sometimes below market
price. This was purveyance. Besides these chief sources
of revenue, there were many of a minor character, such as
the proceeds from mines and salt-works, wrecks, treasure-
trove, various special tolls, etc.
It will be noticed that no mention has been made of
taxation. In its usual and specific sense, a tax is “a
charge or burden laid upon persons or property for the
support of a government.” There was something of this,
no doubt, in purveyance, but only in an irregular and ob¬
scure way. There was but one true, national tax in the
Anglo-Saxon period, the Danegeld. This was a land tax
and is usually dated from the important levy of 991 ; x but
throughout the reign of Bthelred II., it was a tax, in the
strictest sense of the word, only from the point of view of
incidence, assessment, and collection. It was not a regu¬
lar levy to pay the expenses of government, but a matter of
emergency with nothing of the sort preceding it and with
no thought of its continuance in any form. But Cnute
did continue it and began its transformation into a regular
charge for the support of government. It was only upon
its revival by William the Conqueror, however, after an
interruption during the reign of Edward, that this trans¬
formation was at all complete. And it must be under-
1 There had been money raised to buy off the Danes at earlier times, but
it was from 991 that such levies became frequent enough to make possible
the development from them of a true tax. It is possible that lastage, a
system of export duties collected at certain ports, existed before the Con¬
quest and was something in the nature of a national or semi-national tax
more at that time than later. See N, S. B. Gras, The Early English Cus*
toms System , pp. 28-33.
52 English and Continental Backgrounds
stood that, neither in the Anglo-Saxon time nor for long
after, did the people of England grasp the idea that upon
them rested a direct financial obligation to support their
government. The king had his revenue; let him live on
that; let him “live of his own,” to use the common expres¬
sion of a later time. To the end of the Anglo-Saxon
period, central government was so personal and so slight
that it was not thought of as something in which all the
people had a regular and vital concern.
Our knowledge of how the Anglo-Saxon kings kept their
valuable possessions, such as their robes, regalia, and such
coined money as they had is very slight. The collection of
the Danegeld in addition to the regular revenue from the
shires, must at times have brought considerable treasure
into their hands. The heart of the king’s household was
his chamber, where he slept. Here or in some room or
closet adjoining, a wardrobe, his robes were kept. Cham¬
berlains had charge of these possessions and it was no light
charge in view of the king’s almost incessant travelling.
The chamberlains must be men of trust and they must be
agreeable to the king, for they were of necessity much with
him. The king’s money chest, his strong box, was in his
chamber, and as his lodgings moved so must it. A
chamberlain was the treasurer; there was no separate
office of treasurer. There is some evidence that very late
in this period, the king’s chamber in his castle in Winches¬
ter became something of an abiding place for his money,
that there was more of it there and for longer times than
in his other residences. But we can speak of no separate
treasury. All was simple and personal. But out of such
simple and personal things as chamber and wardrobe and
such personal service as that of the chamberlains were
to spring many public departments and offices in the
later time of greater sophistication and developed central
government. 1
b. The Witan .—The Anglo-Saxon kings governed in
connection with a body of men known as the witan, the
1 See below, p. 124, and Part III., § II., 3, passim.
Anglo-Saxon Institutions. 449-1066 53
wise men. 1 The origin of this assembly cannot be traced
with entire certainty. Tacitus states that the German
tribes which he knew had two assemblies: one was a
general meeting of the armed freemen of the tribe and
dealt with the more important matters; the other was a
meeting of the chief men of the tribe, and determined
lesser things and discussed in advance the greater, the
final decision of which lay with the larger body. Some
writers, who have been zealous to prove that the Anglo-
Saxon kingdoms were never without democratic, delibera¬
tive assemblies, have regarded the witan as a decreased
and degenerate survival of the larger of the old assemblies,
arguing that, whereas only the great men ordinarily
attended, the whole body of freemen had the right to do
so; and adducing, as proof of this, instances in which large
concourses of people were spoken of as being present.
This proof is unsatisfactory since such instances were
rare, and, what is of more importance, were occasions
upon which the populace would naturally gather, such as
the acceptance of a new king, the issuing of some edict of
war or peace, or the like. It is not necessary to explain
the gathering of a crowd at such times by a theoretical
right to attend the meetings of the witan; and there is
not the least evidence that these crowds became, in any
sense, part of the witan or engaged in any deliberations.
Furthermore, there is no proof that the primitive Anglo-
Saxons ever had a national assembly either in England or
upon the continent. But it is certain that the early
kings had councils consisting of members of the royal
family, officials, and great warriors, bodies that correspond
to the smaller assemblies described by Tacitus. From
such councils the witan seems to have descended.
The make-up of the witan cannot be clearly defined.
The name itself is vague and indicates a shifting personnel,
not one based on strict theory; but we may be quite sure
1 Witenagemot (witena, genitive plural of witan, plus gemot, assembly)
“does not appear to have been an official term."—P. and M. 1 , 40, note 4.
The best discussion of the name is to be found in Liebermann, The National
Assembly in the Anglo-Saxon Period, pp. 6-12.
54 English and Continental Backgrounds
that the “wisdom” of those summoned was measured
mostly in terms of wealth and power. The king de¬
termined largely who should attend. It ordinarily in¬
cluded the royal household, the great lay and ecclesiastical
officials, such as ealdormen, bishops, and great abbots,
and men whose wealth, influence, or attainments made
the king wish their presence or afraid to do without it.
As a general thing, the attendance of a large number of
men who held no official position indicated the king’s
power. Most of those whose influence was irksome or
threatening to the king would be in an official or semi¬
official position. Many thegns came in the later period,
and the great men who lived in or near the meeting-place
would be likely to come. 1 But it was always a small body,
generally much below one hundred. The sessions were
not long and there seems to have been little regularity in
its time of meeting; it was often on a great church festival,
as Christmas or Easter, but not uniformly so. It met at
least once a year, usually oftener.
The business of the witan was varied and unclassified;
it was the king’s advisory body, it gave him moral support.
But as has been said, the character of the king largely
determined its influence at any given time. In the very
late Anglo-Saxon period its authority was decreasing.
The power accumulated in the hands of the two or three
great families of earls weakened it. One should be espe¬
cially careful not to ascribe to the witan the traits of a
modem parliament. It was not a representative body,
and was not standing for the people’s rights as against
the king’s power or in any other capacity. In most that
it did, it acted in conjunction with the king; and, as far
as it stood for anything opposed to him, it would be pri¬
marily for the aristocratic interests of its members. Only
when, in the case of some very broad abuse, the interests
of all classes for a time coincided, may it have acted in
yPor a detailed discussion, of the composition of the witan, see Chad¬
wick, Studies on Anglo-Saxon Institutions, ch. ix., and Liebermann, The
National Assembly , pp. 28-42.
Anglo-Saxon Institutions. 449-1066 55
the people’s interest. While the witan’s routine work was
what we should call administrative, yet it had its share
in what was perhaps the most notable achievement of the
Anglo-Saxon central government—the written laws.
While most of the law of the country was local and un¬
written, unconsciously made by the people and admin¬
istered by them in the local courts, yet at intervals
throughout the period, kings, actuated by various motives,
put laws in writing which, taken together, make a unique
record in legislation for that time. At the beginning of
the seventh century Ethelbert of Kent issued ninety brief
laws, called dooms, 1 the first laws of a Teutonic people in
a Teutonic language. It is remarkable that so immedi¬
ately after acquiring an alphabet and the art of writing
from the Roman missionaries, writing should have been
used for Anglo-Saxon; yet the evidence is good that these
laws were from the start in the vernacular. The purpose
appears to have been to make clear the rights and special
privileges of the new Christian clergy and to publish a
long list of fines for a variety of misdeeds, perhaps thereby
striking a balance or compromise for the whole of Kent
amongst divergent local penalties. It certainly could not
have been an attempt to codify the Kentish law, as even
the most superficial reading will show. The Anglo-Saxons
did not feel the same need to preserve their native law by
codification as did the Germanic peoples who had in¬
vaded the Roman Empire on the continent and who were
living in the midst of a more numerous and more civilised
population who used the Roman law. Later Kentish
kings of the same century issued laws which were little
more than revisions of, and small additions to, Ethelbert’s
dooms. Then at the end of the century Ini began law¬
making for Wessex, his motive perhaps being to regulate
1 The use of this word shows that there was in mind no distinction be¬
tween a court judgment and this act of king and witan, which, lacking a
better term, we call legislation. Whatever of addition to, or modification ot,
unwritten custom these dooms contained seems not to have been incom¬
patible with their idea that law was a thing immemorial, fundamental,
not makable. See below, p. 411 fi.
56 English and Continental Backgrounds
the treatment of the Welsh, many of whom he ruled.
It seems likely that there were early written dooms in
Northumbria and East Anglia, and it is known that Offa
of Mercia made laws in the eighth century, but these have
been lost while those of the Kentish Icings and of Ini
have come down to us. After Offa there was an interval
of about a century in which no written laws were made.
Legislation was, in a sense, refounded and made a nor mal
function of the central government under the West-
Saxon dynasty by Alfred. Alfred’s laws differed some¬
what from those of earlier kings in that there was more of
the codifying purpose: he went through the earlier laws
to select the best, making, he says, small changes and addi¬
tions of his own. In Edward the Elder’s laws there was
regulation of the four-weekly court later identified with
the hundred, also more rigid provisions for buying and
selling before witnesses; Athelstan’s were broad in scope,
emphasising the lord’s responsibility and that every man
must have a lord, and they also experimented with groups
organised for the pursuit and apprehension of criminals,
a systematising of the probably older hue and cry obliga¬
tion in London and vicinity; 1 Edmund’s (perhaps under
Dunstan’s influence) were hostile to private war and the
kin responsibility in connection with the system of wers
and favoured the responsibility of each man for his own
acts; Edgar’s are notable for stressing church obligations,
rules for buying and selling, the hue and cry police groups,
and first show clearly the nature and times of meeting of
the different local courts. The written laws of Cnute,
the Danish conqueror of England who in this matter of
legislation as in so many others followed English custom,
were comparatively numerous, and were divided into
two parts or enactments, one ecclesiastical and one
secular. Though often called Cnute’s code only a small
part consists of earlier dooms. It was lawmaking of a
high order and brought the Anglo-Saxon dooms to a noble
conclusion, for the Confessor made no laws. By Cnute,
1 See below, pp. 67-69.
Anglo-Saxon Institutions. 449-1066 57
“the principle of equality before the law is distinctly
stated: the magnates were to have no unusual privileges
in the courts of justice.” 1
These Anglo-Saxon laws were in many respects like the
capitularies of the Carolingian sovereigns, but were not
contemporaneous; they were revived by Alfred just as the
Frankish legislation was declining, and continued through
a time when, on the continent, no laws were made by a
central power. They were the rule from Alfred’s time on,
coming from weak and strong alike, Anglo-Saxon and
Dane; they were the custom of the country. “The
Norman subdues, or, as he says, inherits a kingdom in
which the king is expected to publish laws.” 2 It is hard
to generalise upon their character, for we know so little
of their great background of unwritten custom. Were
they declaratory; were they consolidation— i.e. a balance
struck among local differences; were they new? All
three sorts, perhaps, are to be found in what was put
forth in most of these reigns, but who shall say in what
proportions? At any rate law was made on a scale and
with a continuity unprecedented in the new Europe. The
central government in England was working under
favourable conditions: the country was small, with com¬
paratively plain surface and definite boundary; for
some reason kingship did not destroy itself as it did
in many other places by dividing up the state among
sons or other relatives like a private inheritance; and
the church worked so closely with the state that no
rival ecclesiastical law grew. Through these laws one
gets the clearest indication and explanation of much that
was best in the Anglo-Saxon state. 3
The king and witan also constituted a high court of
justice. This was not a court of appeals, but a court of
1 L. M. Larson, Canute the Great; on Cnute’s laws see pp. 274-278.
2 P. and M. i., 20.
3 For a convenient annotated text and translation of these laws from
Ethelbert to Athelstan (inclusive), see F. L. Attenborough, The Laws of
the Earliest English Kings. Excerpts are to be found in Stubbs, Select Char*
ters and in many source books.
58 English and Continental Backgrounds
first instance for cases of great importance, for example
matters relating to bookland. Of the cases that for
various reasons failed to reach a judgment in the local
courts, those that were allowed to come before the king
were surely not all dealt with by the witan; some prob¬
ably came to a smaller group of councillors. 1 Despite
high-sounding functions it is to be remembered that the
real power at the centre was the king; the witan’s work
was small and distinctly advisory to the end; also that
the whole central power came into little actual contact
with the people. The witan did not have enough to do to
bring about, even in the course of centuries, a self-
conscious development of powers and privileges. It had
“germs which seemed fruitful enough in the seventh cen¬
tury/’ but they failed to develop. It
omitted to organise itself as an independent institution, to
determine rules as to who should be summoned and how, or
when and where a meeting should take place, to fix its com¬
petence, proceeding, recording, and executive force, and lastly
to limit its sphere over against the rival powers of the king,
court council, and ecclesiastical synod. 2
4. The Anglo-Saxon Church. — The Anglo-Saxon
church was in peculiarly close relations with the civil
government, both central and local. It is to account for
and explain these relations that its history is touched upon
here. The kingdoms of the heptarchy were Christianised
in the seventh century by missionaries, largely monastic,
coming either from the continent or from one of the king¬
doms that had already received the new religion. It was
the practice of these missionaries to gain first, if possible,
the favour of the king and great men, trusting that the
1 Liebermann (The National Assembly , p. 68) ventures to call such a
group “the king's judicial court, to which the plaintiff could apply who
at home in the local court had not been able to obtain a judgment or its
execution.”
2 Ibid., p. 89.
Anglo-Saxon Institutions. 449-1066 59
people, in large masses, would accept the religion of their
leaders. Such acceptances en masse were quite common,
and, in general, the Anglo-Saxons adopted Christianity
readily. Where resistance was made, it was usually on
political grounds, the prejudice felt against the religion of
an enemy, whether that enemy were the native British 1
or some neighbouring Anglo-Saxon kingdom. Christian¬
ity was not at first preached, to a great extent, to the
lower classes; it was, from the start, the religion of those
in authority, whether in the central government or in the
local courts. But as time passed, it worked downwards
and touched larger and larger numbers of people; it did
not come, as with the Germanic invaders on the continent,
from daily contact with a more numerous subject popula¬
tion that was Christian. It is also to be noted that
Christianity came to England through missionary efforts
straight from the pope, not from life in a Christianised
empire. Hence the Christian church in England was not
the medium through which passed imperial institu¬
tions—its bishops were not secular officers, as on the
continent.
There was little organisation in the newly established
church; in each little kingdom or subkingdom, at some
natural centre, perhaps a favourite royal residence, there
would be some sort of church establishment with a bishop
at its head, and with a mixed group of clergy usually living
under some monastic rule. From this point of light,
maintained by royal protection, missionaries were sent out
into the unconverted parts of the kingdom. It was a
system suited only to a half-Christianised country; it was
on a missionary basis.
The change from this primitive condition to a fully
1 The story of the failure of the early Roman missionaries to reach
grounds of understanding and co-operation with the British Christians,
and of the difference in ceremonies, reckoning Easter, etc., which helped
keep them apart, need not be repeated here. The Celtic forms disappeared
in Wales practically with the adoption, about 768, of the Roman method
of reckoning Easter. A student of Bede’s work, a monk of Holyhead, was
instrumental in this change. They lasted long in Scotland and Ireland.
60 English and Continental Backgrounds
established and permanent church was largely the work
of one man. This was Theodore of Tarsus, who was
archbishop of Canterbury from 668 to 690. With but
few important later changes, the church remained what
he made it up to the time of the Danish invasions and con¬
quests late in the ninth century. His greatest work was
the creation of the dioceses. The diocese, the territory
over which a bishop had control, was the fundamental
division in Roman church polity. It is sometimes said
that Theodore divided existing dioceses into smaller ones;
but, as just stated, the small kingdoms, considered as
fields for missionary effort, were about the only ecclesi¬
astical divisions before his time. Even granting that
early churchmen sometimes took account of the smaller,
tribal divisions in organising their work, it would be doing
violence to later ideas to call these dioceses in more than
one or two instances. 1 It had been the purpose of Pope
Gregory I., when he planned the Christianising of Eng¬
land, to have two co-ordinate archbishoprics established,
one in the south and the other in the north. This was not
carried out, however, and Theodore made his organisation
upon the basis of one metropolitan church, that at Canter¬
bury. It seems to have been owing to the influence of
Bede in behalf of northern England that the bishop of
York was made archbishop in 734. 2 During part of the
same century, owing to the political supremacy of Mercia,
Lichfield was recognised as an archbishopric. 3 But the
normal arrangement, from the time of Bede to the dis¬
ruption of the church in the north by the invading Danes,
was a division into two archbishoprics and seventeen
1 The dioceses of Canterbury and Rochester correspond to the ancient
divisions of_ east and west Kent. In very early times, these territories
often had different kings.
2 A bitter rivalry often existed between the two archbishops, leading
sometimes to the most undignified quarrels. The question of precedence
was not satisfactorily decided in Anglo-Saxon times. See below, p. 129.
3 It was made an archbishopric about 735 and ceased to be one through
action of the Synod of Clovesho in 803. King Offa of Mercia, in return
for the pope's concession in making a Mercian archbishopric, agreed to
pay him an annual sum of money. This was the beginning of the tribute,
later made general in England, known as Peter’s Pence.
Anglo-Saxon Institutions. 449-1066 61
bishoprics, the latter often coinciding with old tribal
boundaries. The bishops of these dioceses lived, for the
most part, in small places instead of in the cities, as was
the practice upon the continent. The English bishops,
in a very real sense, ruled over districts or peoples and
were far less fixed in residence than were the continental
bishops. The division of dioceses into parishes has been
ascribed by tradition to Archbishop Theodore; but the
parishes grew slowly, largely as great landholders cared
to build and endow churches for their estates—a parish
origin which was the origin also of the prevailing lay
patronage of the localities, the family which had built the
church and endowed it with lands retaining a kind of
proprietorship through naming the priest. But for long
many townships were only irregularly served by travelling
priests from such monastic groups as were in the diocese.
Parishes were not created by superior church authority,
and there was no complete system of parishes for several
centuries. The parish was usually merely the township
regarded ecclesiastically, the region under the care of a
single priest. In the wilder and more thinly settled part
of the country, a parish often included several townships
or hamlets, and, in some cases, has always continued to
do so.
In the little that can be said of the government of the
early church, we note especially how it was related to the
state. Church councils were very irregular. Two that
were held in the time of Theodore seem to have been for
all England; after that they were for the provinces of
Canterbury or York. These were regularly attended by
the bishops and many of the abbots, and, while their busi¬
ness was of course ecclesiastical, yet a good many laymen
of importance appear to have attended just as churchmen
were to be found in the witan. Church and state worked
together, for they had the same end in view, the maintain¬
ing of as much orderly unity as possible. Indeed it
seems probable that from early in the ninth century the
church council merged into the witan of the West Saxon
62 English and Continental Backgrounds
kings. 1 In this connection it is specially important to
note that the Anglo-Saxon church had as much unity
when England consisted of several separate and hostile
kingdoms as after an approach to a single state had been
reached under the West Saxon dynasty. Considerations
of geography and race had made it natural for the pope
and for others influential in its organisation in the early
days so to shape it. In the ecclesiastical realm, the Anglo-
Saxons must, from the start, have thought of themselves as
one people or at most divided into two provinces. Theo¬
retically the English church, like the other churches of
western Europe, remained under the control of the pope,
but its distance and its insularity worked towards a
weakening of the connection, and in practice that control
or any papal interference amounted to little.
In judicial matters, the union of church and state was
even closer. The clergy were amenable to the hundred
and shire courts in all matters of which these courts took
cognisance; they were under their jurisdiction to the same
extent that laymen were. Hence the presence of bishop
and priest. In criminal cases, a special procedure was
necessary in the case of clerks, and the bishop was in the
court, “in the relation of lord and patron,” to declare
what this procedure was. But the bishop was also re¬
garded as a learned and needed member of the court with
respect to its jurisdiction over laymen, especially in mat¬
ters touching morals. There were some distinctly clerical
offences, breaches of ecclesiastical regulations, heresy, and
the like, that
would not come before the popular courts, for they were not
breaches of the secular law; and they were not crimes for
which the penitential jurisdiction alone was sufficient. For
such, then, it is probable that the bishops had domestic
tribunals not differing in kind from the ecclesiastical courts
of later ages. 2
* See Joseph C. Ayer, Church Councils of the Anglo-Saxons, printed in
Papers of the American Society of Church History.
* Stubbs, Constitutional History of England , § 87.
Anglo-Saxon Institutions. 449-1066 63
In its penitential system, the church had a power, of a
semi-judicial character, a restraining influence, in matters
of morals, over both clergy and laity. 1
Monasticism was an important institution in England,
as elsewhere in the early church. As we have seen, Eng¬
land was Christianised largely by monks, and, in very
early times, monastic establishments were the chief cen¬
tres of Christian influence. About a dozen houses were
founded rather early in the seventh century, East Anglia
being a leader in this movement. The rule of St. Benedict
was introduced by Wilfrith in Theodore's time, but it
never became universal in Anglo-Saxon monasticism. In
fact, there was from the beginning too much irregularity
in the English system to ensure a long period of purity and
usefulness. Its decline became marked in the eighth
century; Bede speaks of it very early in that century.
But in the first flush of enthusiasm, when many men and
women of the nobility, and even of the princely families,
aided in founding monasteries and actually entered and
managed them (a source of corruption in the course of
time), there was a short period during which the good far
outweighed the evil. At this time, indeed, the whole
Anglo-Saxon church, and especially that of Northumber¬
land, stood for greater sanctity and learning than was to
be found elsewhere in Christendom, with the possible
exception of Ireland.
The Danish conquests of the ninth century threw large
parts of England back into heathenism. 2 Four or five
dioceses ceased to exist, and several were, for some time,
in a precarious and unsettled condition. The province
of York, of course, suffered most; and, even when the
newly settled regions had been reclaimed to Christianity,
1 It should be remembered also that bishops or abbots who had received
grants of bookland had, over the people on the land, that kind of jurisdic¬
tion that has been described above, pp. 40, 41.
2 Even in the time of Cnute, Denmark and Scandinavia were largely
heathen. Sweyn had been baptised, but was no Christian. Cnute was
nominally a Christian, probably before his conquest. Sweden was prac¬
tically heathen for some time after. In Norway, the two religions were
battling for supremacy in the eleventh century.
64 English and Continental Backgrounds
the northern archbishopric stood aloof from the southern,
and there was really less unity in the church than there
had been in the earlier centuries. This was simply a
reflection in the church of the political separation of
north and south which the Danish invasions and settle¬
ments caused. In the south, church and state were
brought into even closer relations than before; and in this
later time are found the first instances of archbishops of
Canterbury playing the part of statesmen and of advisers
and intimate friends of kings, something which became
more common after the Norman Conquest. Spiritually
the church declined after the Danish invasions. It lacked
recuperative power. The monastic abuses became greater
and the Benedictine rule was almost forgotten. Monastic
property was in many places in the hands of married
canons or lay sisters whose object was wealth and luxury.
Dunstan and other great churchmen of the tenth century
strove to better conditions and to bring into England the
principles of the Cluniac reform. 1 England had once
sent missionaries and scholars to the continent and been
regarded as a leader in religion and learning. Now the
relations were reversed, and monks were sent to France
to learn and reintroduce the Benedictine rule. There was
a temporary improvement, but the great continental re¬
form bore no permanent fruit in England. Cut off so
completely from papal leadership and influence at a time
when much of value might have been gained from them,
the English church, on the eve of the Norman Conquest,
presented a peculiar and provincial aspect. Owing to its
isolation and the ravages of the heathen Danes, it had
dropped behind in the general forward movement of
Christendom. An intimate connection with the state, rural
bishops living in close contact with the people, an irregu¬
lar and decadent monasticism, an undignified rivalry be¬
tween its two archbishops, great independence of the pope,
* J. Armitage Robinson, in his recent book, The Times of Saint Dunstan ,
while emphasising the importance of Dunstan's work, believes that its
inspiration and method were not so largely continental as has generally
been supposed.
Anglo-Saxon Institutions. 449-1066 65
some antiquity and barbarity of custom and ceremony—
these were the leading characteristics of the pre-Conquest
church.
5. Conditions on the Eve of the Conquest.—In taking
leave of the Anglo-Saxon period, we are concerned espe¬
cially to note those aspects of government which are
likely to remain of importance after a conquest which
brought in, not a large new population, but a new king
and the aristocracy of a conquering army in which were
many nobles or those who could appropriately become
nobles. The new ideas which such a conquest was bound
to bring with it would relate to the central power and to
large-scale landholding. What would remain important
would be the local government (full nine-tenths of all
the governing there had been in the Anglo-Saxon period)
and small-scale landholding. And it has been sufficiently
insisted upon that government and landholding had a
close connection in the middle ages.
Judged comparatively Anglo-Saxon England had been
peaceful. It was something over five centuries from the
time when the Angles and Saxons themselves had com¬
pleted their conquest and settled down to a fairly quiet
life to the Battle of Hastings. During that time there
had been the one great destructive episode or series of
episodes—the Danish invasions and conquest. But tak¬
ing those into full account there had been long periods and
large areas of country that had enjoyed peace. There
had been no important or long-continued peril on either
the Scotch or Welsh border. The Danish peril had been
the one great peril for deliverance from which the Anglo-
Saxons prayed. It is beyond question that insularity
with its comparative security had played its part in bring¬
ing the Anglo-Saxons to the eleventh century, through a
long period of settled life in which were the feudalising
tendencies incident to a growing population and demands
on government, with a large part of the people still neither
distinctly noble nor servile. It is the ever-present fear
and burden of war that splits a people into a fighting
66 English and Continental Backgrounds
nobility and an oppressed peasantry. This had happened
in many places on the continent as it had not on the
island.
A vast deal of study has been put on the question of the
freedom or non-freedom of the bulk of Englishmen both
before and after the Conquest, and the answer must be
that the bulk were not nobles or slaves and that they did
not understand technical, absolute freedom or non¬
freedom. It seems more profitable in a book which
touches human progress towards self-government, to
raise the question of public responsibility. To what
extent and in what ways were common men (whether
“free” or not) called upon by any public authority to do
things of a public nature which demanded and developed
qualities of initiative, self-reliance, judgment, self-control?
A slight knowledge of this period shows that the ordinary
Englishman was expected to do many things which had no
direct connection with the economic problem of daily
bread, and that he took these as a routine part of his life
as much as sowing and reaping his fields.
Attendance at the local courts—hundred, shire, bor¬
ough, or manor—immediately suggests itself as one of the
most routine obligations of the people. Who went and
how often are matters that have already been discussed. 1
1 See above, pp. 17,18. In the so-called Laws of Henry I. (Leges Henrici
Primi ), an important law book compiled about the middle of Henry I’s
reign and which was an attempt to state Anglo-Saxon law with the changes
made in it by the Conqueror and Henry I., is found the following famous
and puzzling statement: “If any of the king’s barons or others shall be
lawfully present at the shire court, he shall be able to acquit the whole
land which he has there in his demesne. It is the same if his steward shall
be lawfully present. If both are of necessity absent, the reeve and priest
and four of the better men of the vill shall be present for all who shall not
have been summoned to the plea by name. We have decreed that it be
observed in the same manner in the hundred . . . concerning the pres¬
ence of the lord and steward, or of the priest and reeve and better men.”
There is earlier evidence that the lord was coming more and more to rep¬
resent his landless men—the men of his household and his demesne lands,
without farms of their own—but we have no contemporary evidence of
the reeve and four men acting for the vill or any element in it in Anglo-
Saxon times. Yet this statement may contain genuine Anglo-Saxon cus¬
tom. If so, the practice probably arose late in the period; otherwise some
trace of it would be likely to appear. We shall hear much in the twelfth
and thirteenth centuries of the doings of the reeve and four men of the
Anglo-Saxon Institutions. 449-1066 67
But it is to be remarked here that an examination of the
make-up of these court assemblies will show that many
of the same men had to go to both hundred and shire,
some to both hundred and manor, and some to both
shire and borough. There were probably other duplica¬
tions, and we do not know how much in the way of market
or inferior borough courts. In all courts the critical de¬
cisions—when the case should end, who should furnish
proofs, and what the proofs should be—lay with the
people. They were the courts; neighbours judged one an¬
other. In connection with the whole procedure, espe¬
cially perhaps in connection with the tariff of fines, the
people must know much law, or call it the legal lore, of the
locality. They must keep up also with those amendments
and additions which king and witan were making, the
written laws. As to the litigants, a man conducted his
own case from summons to collection of fine, or he de¬
fended himself in litigation; and success depended upon
knowledge and observance of form. Litigation may seem
to us occasional and largely voluntary, but in this early
society there was little routine protection of person or
property: on many occasions in a man’s life he would prob¬
ably have to litigate or fight or suffer wrong. In the liti¬
gation of others there was great force of moral obligation
or social pressure which drew men in. They might be
asked to come in the suit of witnesses which established
a prima facie case, they might be called upon to witness
sales with much chance of bearing testimony on the
matter later in court, and especially in compurgation
men were constantly coming to court for their neighbours
(for compurgation was ceasing to be an affair of the kin),
and often ran great moral risks.
Something has been said of the hue and cry and surety¬
ship , 1 and something more must be said here, for these
vill. They embody an important representative idea, and we1 wonderb
the four men were chosen. It is one of the earliest traces of the re Pf^> '
tation of a group by any of its own members, and it showsL sc £? e xJSnen
public function performed by men, most of whom would not be f
* See above, pp. 18, 19.
68 English and Continental Backgrounds
institutions were developing fast just at the end of the
period. When the hue and cry was being organised in
the time of Athelstan and Edgar, the word tithing emerges
in connection with these police groups for the pursuit of
criminals, a word which raises unanswerable questions.
Athelstan’s London tithings were surely groups of ten.
What was the more general police tithing of Edgar—■
whether numerical, territorial, or a combination of the
two—cannot be stated . 1 It was organised with a man
at its head known as the tithingman, and, what is of most
importance, Edgar and later kings intended it to be and
tried to make it compulsory. As to suretyship, kings
were no sooner making use of the lord and man relation
to do away with lordless men and make lords responsible
for the appearance of their men in court and for the pay¬
ment of their fines, than we find the lords attempting to
shift this obligation. This was not simply to be rid of a
burdensome duty to king and public courts; but the lords
were more and more having courts themselves in which
they were the recipients of a goodly share of the fines.
They did not want to be sureties for fines which they
themselves were to receive. At this time it was an ac¬
cepted principle that one surety or pledge was enough for
the man of good reputation, and that pledge was usually
his lord. But the man of bad reputation was expected
to have more than one, a collective pledge, many or all
of whom were likely to be his kinsmen. The lords seem
to have seen in this a way of escape from their own burden.
More and more people were looked upon as “likely to be
accused,” and the lords furthered this. Before the end
of Cnute’s reign the collective pledge had lost its kin
character. It was composed of a man’s neighbours, and
the lord did not care whether they were kin or not. One
thing is sure, perfectly decent men were under pressure
to find pledge-groups which a little earlier would have
been appropriate only to those of suspicious character.
How great was this pressure or just how it was applied
1 See below, p. no.
Anglo-Saxon Institutions. 449-1066 69
cannot be told. Surely the kings were not trying to make
these pledge-groups universal and compulsory as they
were the tithings. But the two began to merge, probably
from about 1030. They were bound to do so once they
were .side, by side, for the groups were sure to overlap or
coincide in personnel and their duties bore a close rela¬
tion. . The supposed criminal which the tithing must pur¬
sue might be one of the tithing which, under the aspect
of pledge-group, it was bound under heavy fine to present
in court. How far the merging went before the Conquest
we cannot say, but not in the Anglo-Saxon period had the
king or any other authority made the pledge-groups uni¬
versal or an absolutely binding obligation. There was
something voluntary about them to the end of the period.
But these institutions are striking instances of public re¬
sponsibility resting upon the people. They are the
germs of. the later frankpledge, one of the most curious,
characteristic, and in many ways important of English
local institutions. 1
A duty resting upon all free Englishmen of this period,
and which goes back no one knows how far, is that often
referred to as the trinoda necessitas, the threefold obliga¬
tion. The first was the duty of serving in the militia,
a public service which the citizen owed the state. By the
later period this was, no doubt, in some degree territorial-
ised, 2 that is, in practice, a fixed, traditional number was
required from certain districts or holdings; but theoretic¬
ally and in times of need it was probably still enforcible
on the individual freeman. Second, was the duty of
keeping in repair the nearby fortress or occasionally of
building a new one; and third, the repair or building of
bridges. These duties were enforced against the thegns
as well as the common freemen, and very rarely was any¬
one exempted.
The thegns, beyond the trinoda necessitous, owed a
1 On the whole subject of the frankpledge, see W. A. Morris, The Frank -
pledge System.
2 See above, p. 18, note 1, and below, pp. 97, 98. One man to one hide
of land was supposed to be something of a norm in England.
70 English and Continental Backgrounds
variety of services or payments as a condition of their
bookland, many of which seem quite private with respect'
to their lords, economic in character, and look like rent.
But when, especially in connection with the king’s thegns,
we hear of equipping a warship, of guarding the king, or
keeping watch on the coast, or perhaps responsibility
for appearance in the militia of the accustomed quota
from their district, we glimpse a substantial class of
lower nobility, not notable for its privileges and exemp¬
tions, but for its public obligations. 1
But with the higher nobility things were different.
Economic forces were bringing control of the land into
fewer hands. As the kingdom grew larger and the de¬
mands upon the government greater, kings were con¬
strained to make grants of immunity and semi-jurisdic¬
tional authority and use the strength of private individuals
for public purposes. The higher nobility was coming
into the possession of a dangerously large power. The
old official class of ealdormen was affected by these
changes. The almost inevitable medieval transforma¬
tion was taking place—the local official was becoming the
local potentate. This was helped on by the kin g whose
reign is often taken as marking the highest point reached
by the Anglo-Saxon central government. Edgar was
confident of his own ability to control any element in the
realm; and, seeing inefficiency of executive authority
everywhere and having, for his time, high ideals of govern¬
ment, he sought by increasing the number of earls and by
placing more power in their hands, to obtain his end by
the easy but dangerous method of utilising private ambi¬
tion and local family pride. He sowed the wind and his
successors reaped the whirlwind. Under the weak
1 Of western Europe in general, VinogradoS says, (Cambridge Medieval
History, ii., 651): “The medieval view of government admitted, and
indeed required, that wealth and social influence should be accompan¬
ied by political power and public functions.” It is interesting to notice
throughout English history how slightly these prerogatives of the nobil-
ity looked in the direction of immunity or special privilege and how mark¬
edly in the direction of public duty and responsibility.
Anglo-Saxon Institutions. 449-1066 71
Ethelred II., tMs policy resulted in a marked decentralisa¬
tion ; each earl regulated the affairs of his locality to suit
himself, concerted action was destroyed, and a situation
created that made possible the conquest of England by
the Danes. Under the strong Cnute, the earls were kept
under control, but the system of local powers, as estab¬
lished by Edgar, was not rooted out; and under Edward
the Confessor a few great earls attained a power unknown
before. Since the Danish invasion of Alfred’s time, a
racial distinction had existed between northern and
southern England. This division was now intensified by
coinciding roughly with the territories controlled by great
families of earls. The existence of a north and south
England and the final bitter jealousy between the houses
of Leofric and Godwin constituted an important negative
cause of the Norman Conquest. Apparently too great a
strain had been placed upon the Anglo-Saxon central
government; that which served in Northumbria, Mercia,
or even Wessex, did not suffice for all England, especially
in time of war and rapidly changing economic conditions.
The central government was not in a healthy condition in
the eleventh century, and perhaps England was due to
pass through a further stage of feudal decentralisation
when she was rescued by the extraordinary results of the
Norman Conquest. But what needs especial emphasis in
conclusion is that there was yet a healthy if primitive
local government. It was healthy because the mass of
the English population was still neither too high nor too
low to be the ones to work it, and because it was the cus¬
tom of the country to expect most of the governing—most
of what served roughly to protect people’s lives and
property—to be done not by officials or even the land¬
lords, but by the people themselves.
SECTION II
NORMAN INSTITUTIONS. 9II-IO66.
M INDFUL of what has been said of the two main
sources, Anglo-Saxon and Norman, from which the
English constitution began its growth , 1 and having now
seen something of Anglo-Saxon institutions, we turn here
to the Norman background. As this is, in a sense, the
whole continental institutional past with roots running
back to Rome and perhaps further, it is obvious that but
a bit of it can be touched on here, just those parts which
we find expressed in Norman institutions and which
Normandy gave to England . 2
Normandy had existed as a duchy during the tenth and
eleventh centuries, just the period when the feudalism of
the continent was dominant. Hence when the Viking
conquerors of the lower Seine were learning the language
and adopting the mode of life of the more numerous con¬
quered population they were growing into the feudal life
of northern France. They were no isolated group. They
formed a vassal state of France and were acquainted with
1 See above, Introduction.
2 “The institutions of the duchy of Normandy occupy a unique place
in the history of Europe. They have their local interest, giving character
and distinctness to an important region of France; they furnished models
of orderly and centralised administration to the French kings after the con¬
quest of the duchy by Philip Augustus; and they exerted an influence of
the first importance upon the constitutional and legal development of
England and the countries of English law. Normandy was thus the chan¬
nel through which the stream of Frankish and feudal custom flowed to Eng¬
land ; it was the training ground where the first Anglo-Norman king gained
his experience as a ruler, and the source whence his followers drew their
ideas of law and government.” C, H. Haskins, Norman Institutions,
p. vii.
72
Norman Institutions. 911-1066 73
all the varying relations by which the many big and little
feudatories which made up France were held together,
and with the special position of one of those feudal powers
that held the royal title. Moreover, the Normans did
not go to England simply to reproduce their duchy there;
their duke was to become king, and the Norman nobles
were to become the vassals of a king, hoping to gain all the
independence and power that that seemed to them to im¬
ply. The feudalism that they knew and that they brought
with them was that of France, albeit with their own stamp
upon it. While it is impossible to deal here with the vast
subject of European feudalism, yet any account of what
the Normans brought to England makes some reference
to it necessary, enough at least to bring out those features
which distinguished it from the feudalism which had
been growing among the Anglo-Saxons.
1. Continental Feudalism.— Feudalism, in a broad
sense of the word, there has been in various parts of the
world and at various times; but the feudal system, historic
feudalism, that feudalism which is usually meant when
the word is used without adjective or explanation, is that
which originated in France in the early middle ages and
spread thence in western Europe. This feudalism differs
from others in that it was based upon the fusion of certain
Roman and German institutions, which, obviously, can
have been exactly paralleled at no other place or time. 1
Speaking of medieval European society in general Vinogra-
doff has stated “that there is a continuous development
1 The feudal practices of one place may differ much from those of another,
and the feudalism of one time from that of every other time: yet the
use of the same name indicates a similarity or analogy in fundamentals
that is true. All practices or states of society which have been commonly
called feudal have arisen from the same general condition and to meet
the same general needs. The occasion has been the same, but the local
stuff in the form of previously existing ideas and institutions which the
occasion has made use of and made over has, of course, always been differ¬
ent. For the origin of feudalism see Adams, Civilisation during the Middle
Ages , ch. ix., and Vinogradoff in Cambridge Medieval History, ii., ch. xx.;
for the developed feudal institutions, see Seignobos, The Feudal Regime
Emerton, Medieval Europe , ch. xiv,, and Vinogradoff, in Cambridge Medi¬
eval History , iii, ch. xviii.
74 English and Continental Backgrounds
from Roman or barbaric roots, and that there is no other
way to explain the course of events during our period but
to trace the working of both these elements of social life.”
There is no doubt that hostile frontier relations with
the Roman Empire and their later invasions of that
Empire occasioned among the Germanic peoples a relaxa¬
tion and gradual weakening of the various kin ties which
had been the most pronounced feature of their early
society. Rapid movements and rapidly changing condi¬
tions blurred the kin lines. Alongside the kin groups or
overlapping them appear groups or gilds of warriors
organised on a basis of equality—sometimes offensive,
sometimes defensive; and presently groups of young war¬
riors gathering under the leadership of some specially
notable chief who seems likely to lead them to glory and
to plunder. This last group, already prominent in the
time of Tacitus, is known generally by the Latin name
comitatus. It introduced among the free warriors new
notions of obedience and devotion to a chosen leader.
There was honour in the relation, and mutual obligation,
and strong bonds of fidelity even unto death. The chiefs
highest obligation was to his followers as theirs to him and
there was emulation among chiefs to get the largest and
best followings. On Roman soil, especially in Gaul, this
German institution came in contact with a Roman insti¬
tution that bore some analogy to it, that of patronage.
In the dangerous times of the later Empire when the gov¬
ernment could no longer protect its frontiers or keep order,
the weaker freemen in the provinces were gathering under
the patronage (patrocinium) of some great man in the
locality who, whatever the stipulated services of the men,
was thus building up at least a potential fighting force,
and who perhaps had a defensible place to which to flee
in time of great peril. In the centuries which followed,
these two practices tended to unite, as Frankish conquer¬
ors and Gallo-Roman population united, for it was not a
time of peace, and warlike groups had plenty of reason
for existence. The Roman practice had more definite-
Norman Institutions- 911-1066 75
C.C.L. ASKOKNAGAR, HYD.
ness of form;‘of stipulation of mutual obligation, the
German more gf sentimmtaad honour. These two were
the chief source ina^Sceditrt-ilfiSpa^^Factice of the
later lord and vassal relation. Both related to free men,
and only that aspect of feudal society which relates to
free men is here being traced. It is upper-class, political
feudalism, feudalism which touches the history of govern¬
ment, as opposed to the peasant, economic side—two as¬
pects which are more easily distinguishable ip continental
than in Anglo-Saxon feudalism. ^ 2 j 1 C / \ 4
After their conquest of Gaul, the Franks became sta¬
tionary, and this and contact with Roman ideas made
landholding a more prominent feature in their lives. In
early Frankish times, the Merovingian kings and some¬
times other great men who were in a position to do so
would make grants of land to their followers in reward for
military or other service. Whether these grants implied
further service or are to be looked upon as out and out
gifts is hard to say. Their ideas of landholding were of
the haziest. There was no very definite expectation
certainly, perhaps a kind of moral obligation. At any
rate by the early eighth century the Merovingian kings
seem to have had little available land and the line had
greatly declined in power. Then came the rise of the
Carolingian dynasty and the Arab attack from the south.
A new and more permanent fighting force, especially a
cavalry to meet the Arab horsemen, must be built up and
land must be the basis of it. In this emergency, Charles
Martel turned to the lands of the church, lands so largely
the gifts of kings and nobles in preceding generations.
Some of these lands were seized outright and some granted
by the churches to the king’s followers at the king’s com¬
mand. There must be more definite stipulation of service
than hitherto, and in these latter grants especially there
was used a form of lease, Roman in origin, but which had
undergone much change during centuries of occasional
use, especially by the church. This was the Roman
precarium, later more generally called beneficium. Origin-
76 English and Continental Backgrounds
ally a tenure wholly at the will of the grantor, it had grad¬
ually become a tenure for a term of years, then more
generally for life with perhaps some expectation of inheri¬
tance. Despite these changes, however, there lasted the
Roman idea that proprietorship, the superior right to the
land, lay with the grantor. Thus the circumstances of
the early and middle eighth century brought about a
combination that was momentous in shaping feudal insti¬
tutions. Grants of land were being made, but distinctly
conditional grants—conditioned on military service, and
that generally the new mounted service—to men most
of whom already occupied the vassal relationship. This
was the beginning of the union of fief and vassalage, the
land side and the personal side of the later feudalism.
But this was the formal, institutional background of
feudalism. The occasion for the spread of these forms
and relations until they became the leading factor, public
and private, in the lives of most freemen, came with the
break-up of the Carolingian Empire in the ninth century.
This Empire had grown to a rapid and brilliant appear¬
ance of unity and mature government as a result of the
crisis of Mohammedan invasion, the chance of three
generations of exceptional rulers, the last of whom was
Charlemagne, and much Roman imitation. With the
passing of this artificial phase, the new Europe got down
to its true basis, began its true advance; and its true basis
at that time was a feudal basis. Poor roads or none, lack
of all means of easy intercommunication, a population of
most divergent elements, without common traditions
and many of them with but the thinnest veneering over
their barbarism—these things meant a local outlook and
a local government, in which the strong man, whether he
happened to bear the title of an official or not, was sure
to be the commanding factor. The newly combined
institutions of vassalage and fief just fitted. The rulers
of the ninth century made grants of land in reward for
service as the Merovingians had done—sometimes volun¬
tarily, but more often because they could not well help
Norman Institutions. 91 1-1066 77
it—but now these grants took the form of the clearly
conditional benefice or fief, the condition usually being
military service. And other great landholders besides
the king were building up military followings in the same
way; subinfeudation, as we may begin to call it, became
common. Naturally such grants would usually be made
to those in the vassal relation to the grantor. ^ Even
Charlemagne had had difficulty in enforcing individual
military service upon the freemen of his realm, and now
such army as the central government could raise was
through the use of this nexus of private relations. More
and more men were successfully avoiding their public
responsibilities by entering into a private contract with
a local noble who was to be buffer and shield between
them and state authority. Petty, local fighting in private
quarrels became common. Military service had passed
largely into private hands and, so far as it was regulated
at all, it was by personal allegiances and attachments and
private contracts based on grants of land.
The other state function of the time, jurisdiction, was
going the same way. Already and slowly the great land¬
holders had been acquiring a partial jurisdiction over
some freemen on their estates, these freemen often through
economic relations being drawn into the courts held tor
serfs. But rapid advances in jurisdictional scope were
now being made by the great nobles. Sometimes through
the so-called grant of immunity the sovereign must per¬
force reward some prelate or lay noble or purchase ms
favour by making his estate immune from the state otn-
cials and practically conferring upon him the functions
of these officials. Again, a man who had been an official
might, with the breakdown of the central power, keep on
holding a local court, but now rather through his own
power and authority than as the agent of the state, t us
almost unconsciously making a public court into a
one. And perhaps oftenest of all there was out and ou
seizure of jurisdiction, for its revenue value and as a km
of unconscious move against the utter disorder which
78 English and Continental Backgrounds
threatened in those times. With the army and the
courts in private hands the feudalising process had gone
far.
A change that was well along before the collapse of the
Carolingian Empire and which was doubtless going on
with greater speed during that time was the passing of
the middle class, the common freemen, as an element that
really counted in society. The settling down of the
Germanic tribes of free warriors to a life in which the
forms and conditions of landholding were the most im¬
portant economic factor, the economic pressure of a
denser population, the continuation of wars on every
hand, and the passing of an effective central power were
the causes. Western Europe was fast giving shape to the
well-known medieval formula of a praying class, a fighting
class, and a working class—the three estates of clergy,
lay nobles, and peasantry. Of these, the peasantry was,
of course, vastly the most numerous. In it there were
few slaves, for the life of the time did not call for many
menial, personal servants; it was an agricultural life in
which land-tenure counted everywhere; the peasantry
were the half-free cultivators of the soil, attached to the
soil; they were predial serfs.
It is important to compare carefully the continental
movement just sketched with the rise of Anglo-Saxon
feudalism, and it will be found that they are parallel
movements at many points. But the differences are
striking. The Anglo-Saxon kingdom never reached the
degree of disintegration which the Frankish kingdom
suffered: public functions had not so fully passed into
private hands and were not so identified with landholding.
The middle class in the more peaceful England had not so
nearly disappeared; vague as were the boundaries of
status, there were still enough whom we may safely call
common freemen to count as an important element in the
state. Anglo-Saxon feudal institutions also lacked a
certain legal definableness which came on the continent
from a Roman institutional background. And in Anglo-
Norman Institutions. 911-1066 79
Saxon feudalism, while the economic side is much the
more important, it is impossible to distinguish so clearly
between the political and economic aspects. The dis¬
tinguishing traits of the political feudalism, found in
Normandy as elsewhere in France in the eleventh cen¬
tury, and which was brought into England by the Norman
Conquest, may be summarised. They related to a part
of society held together by a nexus of private contracts.
The relation of lord and vassal, whatever was the expecta¬
tion based upon inheritance of the fief, was in theory and
usually in practice, wholly voluntary, freely entered into
on both sides, and solemnised by the ceremony of homage.
It involved such negative duties on the part of the vassal
as not to attack his lord, reveal his secret, endanger his
castle, dimmish his judicial power, or hinder any of his
undertakings; and positively to render him counsel and
aid, usually in the form of attending his feudal court,
and of course, as the main condition upon which the fief
was held, a fixed yearly amount of military service. 1
The obligations of the lord, protection, backing, and a
like personal fidelity, while not so easy to particularise,
were equally binding. As between lord and vassal, the
better right to the fief was with the lord, evidenced by
the reversion of the fief to the lord at the vassal’s death
and the payment of relief when taken up by the new
vassal. We hear little of best right, of ownership; in land
tenure all was relative, not absolute; all up and down the
scale, everybody held land of some one. Attached to
this nexus of private contracts based on landholding were
public duties—the chief ones of those times, the levying
of a military force and the holding of courts of law. The
amount of jurisdictional power possessed by the different
grades of nobles varied greatly, but public courts, as such,
whether central or local, had practically disappeared.
Criminal jurisdiction, especially in the more serious cases,
1 The service might be some other than knight service provided it were
such as a noble could perform without tarnishing his nobility, but knight
service was so much the rule that the other forms were negligible.
80 English and Continental Backgrounds
was supposed to have come only by royal grant or usurpa¬
tion and was generally possessed only by the great nobles.
There was no system of appeal. If judgment defaulted
the case might be carried to the lord's lord; but a judg¬
ment by one’s fellow vassals, by one’s peers, was final
unless an appeal of false judgment were made to God and
a man fought his peers singly or en masse . At the top of
this feudal society was the king in a curious double posi¬
tion. Feudalism had taken possession of him; he was
lord of lords, suzerain, at the apex of the feudal hierarchy.
But there was a trace of the old sovereign left about him—
a dim theory of paramountcy, power, and right that denied
the whole feudal scheme and which would destroy it if
in process of time and circumstance it ever fell out that
the king got power enough to begin to unravel the feudal
tangle. Any short account of feudalism is bound to give
an impression of regularity or completeness which is
untrue. It would be impossible to overstate the con¬
fusion of the feudal relations: vassals holding often of
many lords with the problem of conflicting allegiances,
great nobles holding from lesser nobles, cross relations of
every sort, remnants of older forms of landholding and of
an older society in general, and now and again foregleams of
a new order towards which things were working. Long be¬
fore feudalism was mature or a system it had begun to die. 1
1 The common use of the word system in connection with feudal has been
abundantly productive of misconception. No one at the time or for cen¬
turies after thought of there being any such thing as a feudal system.
Different men could do different things, had different rights and liberties
which they tried to understand and enforce; there were considerations of
honour and personal attachment; there were local conditions and pecu¬
liarities. And men did not look much or know much beyond the locality.
Maitland has wittily pointed out that, as far as England is concerned, the
feudal system_was introduced by Sir Henry Spelman (1562-1641). “Now
were an examiner to ask who introduced the feudal system into England?
One very good answer, if properly explained, would be Henry Spelman,
and if there followed the question, what was the feudal system? a good
answer to that would be, an early essay in comparative jurisprudence.
*. * - If my examiner went on with his questions and asked me, when
did the feudal system attain its most perfect development? I should
answer, about the middle of the last century.” Maitland was writing in
the nineteenth. “Coke fa contemporary of Spelman’s] in his voluminous
works has summed up for us the law of the later Middle Ages, but in all
Norman Institutions. 911-1066 81
But such as it was it was the main thin g in life when
the Normans conquered England.
2. Normandy on the Eve of the Conquest.—The
circumstances of Normandy’s origin and her uniformly
able and masterful dukes had given her an independence
and power possessed by no other part of France north
of the Loire river. In all that related to central adminis¬
tration, Normandy early outstripped her neighbours such
as Anjou, Flanders, and the domains of the king of France.
But detailed knowledge of Norman institutions before
the time of the Conqueror himself is very slight. We
know something of what may be called the external his¬
tory of the duchy, of its relations to the French kings and
other neighbouring powers, and of its general reputation
and characteristics. But Normandy possessed not a
vestige of written law at this time, and there has remained
little evidence of any sort that throws light upon its in¬
ternal organisation. 1 It has been remarked of Normandy,
after her Scandinavian founders had absorbed the French
civilisation of the people whom they ruled and with whom
they were coalescing, that Normandy was French, but
French with a difference. This was certainly true of
Norman feudalism. Before the Conqueror was bom there
was feudal tenure, and probably also an assessment of
his books, unless I am mistaken, there is no word about the feudal sys¬
tem. . . . Spelman reading continental books saw that English law,
for all its insularity, was a member of a great European family, a family
between all members of which there are strong family likenesses.” He
worked out the idea of a common feudal law, a feudal system. “ The new
learning was propagated among English lawyers by Sir Martin Wright;
it was popularised and made orthodox by Blackstone. ’ * Maitland, C. H. E .,
p. 142.
1 Our knowledge of Norman government has in recent years been greatly
enriched by the studies of Professor Haskins, published under the title
Norman Institutions. But most of this book relates to the twelfth century.
Of the earlier period, Professor Haskins asserts that the earliest trustworthy
information respecting the government of Normandy falls in the lifetime
of the Conqueror and much of it is gleaned from that later part after the
battle of Hastings. In chapter i. is to be found the first comprehensive
account of the government of Normandy in the time of William the Con¬
queror, and to this chapter there is constant indebtedness in the present
sketch. The brief account of Norman institutions in P. and M. L, book i,
ch. iii., is still of great value. See also Haskins's more general and popular
book, The Normans in European History.
82 English and Continental Backgrounds
military service in some way proportioned to the fiefs;
there had also been grants of jurisdiction by the dukes.
But our fuller knowledge of Norman feudalism and of its
special traits comes from the Conqueror’s time. Norman
efficiency in organisation had, before 1066, fixed the knights’
services due from the great nobles to the duke in units
and multiples of five, these were being subdivided among
these great lords’ vassals, and the specific holdings which
owed them were known as knights’ fees. There was in
this a definiteness and orderliness not found elsewhere.
While thus organising the feudal force of knights, the
dukes do not seem to have relinquished the right to call
out all freemen, at least for defensive warfare. This made
them quite sure to recognise and maintain the Anglo-
Saxon militia duty, the fyrd, after the Conquest. While
it cannot be asserted that all free tenures were, by 1066,
of the feudal type, surely they were rapidly approaching
it. But while all feudal forms were spreading, there was
no approach to the private warfare and general license
which the feudal state of society usually meant. One
special guarantee against private war which was an estab¬
lished policy was that castles—the very life of feudalism—
could be built only by the duke’s permission and must be
turned over to him whenever requested. Of private
jurisdiction little more can be said than that it existed
as elsewhere in France, except that more high criminal
jurisdiction was reserved for himself by the duke and when
exercised by others it was specifically on the basis of a
ducal grant. Certainly in the localities there remained
some public courts where justice was administered on the
duke’s authority. The duke’s own central court, his
curia, was, like the feudal courts in general, a counselling
body and a court of law; it “was brought together for
purposes of counsel on matters which ranged from a trans¬
fer of relics to the invasion of England, and for judicial
purposes.” 1 Its make-up was somewhat shifting. Usu¬
ally there would be present members of the duke’s family,
1 Haskins, Norman Institutions , p. 55.
Norman Institutions. 911-1066 83
bishops, counts, some other great nobles, the household
officers, and some local officials, the vicomtes. A large
number of these would normally be the duke’s vassals, but
it is hard to say whether or not it would yet be the truest
characterisation of it to call it the duke’s feudal court. 1
In general, “the organisation of Norman society is feudal,
with the accompaniments of feudal tenure of land, feudal
military organisation, and private justice, but it is a
feudalism which is held in check by a strong ducal power.’’ 2
Of other matters of government there is not much to
be said. The duke’s fiscal system was particularly well
organised, distinctly in advance of the surrounding feudal
states. The rents from his lands, court fines, forfeitures,
feudal dues, tolls and other rights in markets and fairs,
salt works, fishing rights, and profits of coinage (to men¬
tion the more regular and important) furnished a large
income. In the accounting of this revenue a distinction
was made between what was regular and what was extra¬
ordinary or occasional, it was collected with much care
and system from administrative districts, the vicomtes,
and ducal grants of money were charged against receipts
in general from a district and not, as was the more primi¬
tive practice of the French kings, against an individual
domain or specific source of revenue. Such signs of
fiscal maturity we are not surprised to find early in the
reign of the man who, just before his death, conceived
and carried out the Domesday Survey. 3 Over the vi~
comti, which was an administrative district of considerable
extent and which had largely replaced the earlier hundred
and pagus, was the vicomte, a distinctly public official.
He collected the revenue, lead such military forces and
1 “What we know is that when the time for the conquest of England is
approaching, the duke consults or professes to consult the great men of his
realm, lay and spiritual, the opiimates, the proceres of Normandy. He holds
a court- we dare hardly as yet call it a court of his tenants-in-chief; but
it is an assembly of the great men, and the great men are his vassals. —
P. and M. L, 73.
2 Haskins, op. cit., p. 60. . . - .
3 As to whether the English Exchequer in any sense grew out of tins
Norman fiscal system, see ibid ., p. 4°
84 English and Continental Backgrounds
administered such justice in the locality as were not in
private hands, and was the duke’s general executive agent.
While there was some tendency in the office to become
hereditary, the dukes were always strong enough to keep
the vicomte an official. 1 There must have been forest
officials, for the forests, that is, the districts reserved for
the duke’s hunting, were extensive. There were forest
pleas, and offences committed in the forest and breaches
of the forest law seem to have been punished with special
severity. In all Norman courts crime was probably dealt
with more rigorously than in England; there was more
corporal punishment and less composition by fine. Also
the Truce of God, 2 introduced early in the Conqueror’s
reign, existed in Normandy for the same reason that it
did elsewhere on the continent, the mitigation of private
warfare; but the stem rule of the dukes made it less ne¬
cessary than in most other places. Yet William favoured
it, for it worked with Ms own policy, the maintenance of
public order.
The church in Normandy, in the separation of its organi¬
sation from that of the state and in its close relations with
Rome, differed from the Anglo-Saxon church as the whole
continental church did. Yet there were some special con¬
ditions in the Norman church. It embodied in a marked
degree the great reform movement that had begun at
Cluny and the monastery of Bee was a sort of northwestern
outpost of Cluniac influence. But wMle there was much
in the general Cluniac movement wMch tended to make
the church the rival or superior of the state, this side was
rigidly suppressed by the dukes in Normandy. As it
1 There were surely resemblances between the Norman vicomte and the
Anglo-Saxon sheriff. Haskins remarks, “Whether the Norman vicecomes
contributed anything more than his name to the Anglo-Saxon sheriff, is a
question to which no satisfactory answer can be given until we know
more of the functions of both officials.’* Norman Institutions , p. 46. Vice¬
comes was the word used after the Conquest to translate sheriff into Latin.
It was the Latin word for vicomte.
2 The church attempted to make the period from Thursday night to
Monday morning one in which there should be no fighting, a time of truce.
This part of the week was chosen in remembrance of Christ’s sufferings and
resurrection
Norman Institutions. 911-1066 85
purified and enriched the life of the church the movement
was welcomed, but the duke parted with no whit of his
control. He appointed the bishops and abbots, and could,
upon occasion, depose them; he attended church councils
and sanctioned their decrees; the monasteries were under
his special protection and control; and no great church¬
men were allowed to usurp in any district the functions
which the duke kept in the hands of his own local officials,
the vicomies. As to the status of the church courts and
the extent of ecclesiastical jurisdiction, the evidence is so
scanty and confusing that it is hard to formulate a
generalisation. But they clearly occupied a much more
important place than anything in the nature of church
courts among the Anglo-Saxons, 1 and all the evidence
points towards Norman practice being the background of
William’s famous ordinance separating the spiritual and
temporal courts in England after the Conquest. 2 For the
pope the duke had always a pious deference and respect,
without sacrificing a vestige of authority.
In conclusion it is particularly important to notice that
the peasantry was in a better condition than elsewhere in
northern France. There had been a peasant revolt in
Normandy in 996, a very early time for such a movement;
and while contemporary evidence tells only of its quick
and cruel suppression by Duke Richard II., it may have
had some good results. The fact of the revolt itself indi¬
cates a peasantry in no abject condition. At the time of
the Conquest, there was practically no personal servitude
in Normandy, no slaves; and many of the peasants had
rights that would justify us in reckoning them as freemen.
After the eleventh century, there was “no trace of serf¬
dom or the freeing of serfs, and the free position of its
far min g class 3 distinguished the duchy from most of the
lands of northern France.” 4 We have no means of know-
1 See above, pp. 61, 62. 2 See below, p. 131.
3 Aside from the fighters and the churchmen, there was little but a farm¬
ing class; at the time of the Conquest Noraiandy had little or nothing to
bring to England in the way of municipal institutions.
4 Haskins, The Normans in European History , p. 157.
86 English and Continental Backgrounds
ing whether these people had had public duties and respon¬
sibilities at all comparable with those of the corresponding
class in England; 1 but;England was conquered by a people
who surely had no traditions of a degraded and down¬
trodden peasantry.
1 See above, pp. 66-69.
PART II
The Norman Conquest—Its More
Immediate Results
i066-1100
87
INTRODUCTORY STATEMENT
'T’HE Norman Conquest, considered from any point of
1 is a difficult subject. Institutionally consid¬
ered, it is, perhaps, especially so. The first difficulty lies
in the vagueness and intricacy of the institutions of both
Anglo-Saxons and Normans, but there were in the Con¬
quest itself many sources of institutional influence and
development. The time and circumstances of the under¬
taking and the personalities and doings of the Conqueror
and his chief followers, as well as of his sons have to be
taken carefully into account. At a time when there was
little that was hard and fast about institutions and when
the upheaval of an invasion gave opportunity for change,
small things could mightily affect the future. It is, of
course, out of place here to give a narrative account of
what took place. It is the purpose rather to examine the
conditions of government and society after the Conquest
had wrought its first great change. It is not easy to deter¬
mine at just what point to make this survey since the
Conquest so profoundly affected all later English his¬
tory. However, as stated in the Introduction, it seems
truest to fact to regard the reigns of the first two Nor¬
man kings as the time of immediate results. In the
reign of Henry I. are clearly seen the beginnings of new
and permanent institutional forms, especially as related
to the central government; hence this reign, notwith¬
standing the formidable hiatus of the anarchy under
Stephen, has been connected with the later rather than
the earlier period. We shall, therefore, be mainly con-
89
go The Norman Conquest
cemed here with the latter part of the Conqueror’s reign
and -with the reign of William II.; but the consideration
of some matters will make it necessary to trespass occa¬
sionally upon a later time.
SECTION I
CLASSES OF MEN AND THE INTRODUCTION OF
FEUDALISM
I T was no purpose of the Conqueror to make changes
in English law and custom beyond what were neces¬
sary to a powerful and effective monarchy. He intended
to rule in the fullest sense of the word, but he had no pet¬
tiness of purpose which would lead him to mate arbitrary
changes for the mere pleasure of lording it over a con¬
quered people. Moreover, he had no idea that it was
necessary to make any general substitution of Norman or
French institutions for Anglo-Saxon. He was to rule
as an English king, and he believed that there were many
good features in the English system, and, doubtless,
felt the expediency of leaving undisturbed many things,
which, while they had nothing in particular to recom¬
mend them, might occasion discontent and heart-burning
in the removal. This, as nearly as it can be interpreted,
was the Conqueror’s initial attitude; but as years passed,
more change and severity were necessary than he at
first supposed, and many things came to pass that could
not have been foreseen.
In violent and sudden changes, the lower classes of men
and the smaller local institutions are the ones least af¬
fected at first. We have reason to believe that, in the
early years after the Conquest, the Anglo-Saxon serf,
villein, and sokeman lived on, very little disturbed in their
relative positions. The large tenures, those of their lords
or lords’ lords, might be changing hands and changing in
91
92 The Norman Conquest
character very fast without immediately affecting them.
But a change did reach them, at just what time it is
impossible to say, the beginning of which must be noticed
here. The status of the lower classes, that strange com¬
plexity of nomenclature and condition where freedom
faded imperceptibly into unfreedom, was beyond the
comprehension of the new Norman lords of the soil.
Perhaps they did not feel that it was worth while to try
to comprehend it, or they may have been largely uncon¬
scious of it. Vague as were many things in continental
status, the line between the servile classes and those
above them was usually quite distinct. Moreover, when
the Norman mind acted freely, it was likely to produce
what was clear-cut; and the Norman lawyers of the
twelfth century had many of the principles of the Roman
law to help them. A process began in England, which,
in the course of time, drew a tolerably clear line between
freedom and unfreedom. The large, confused Anglo-
Saxon class was being cut in two; a part, and that prob¬
ably much the smaller, was to pass into a better recog¬
nised condition of freedom, while more were to become,
by a gradual depression, a part of the servile class. The
process was not complete for a century or more after
the time we are now considering, but it is possible at this
point to see the beginnings of future well-known classes,
whose character fundamentally affected English govern¬
ment. The unfree class came to be known after the
Conquest as the villein class, and was made up of the
pre-Conquest serfs whose status had been raised, and the
pre-Conquest villeins whose status had been lowered.
It was much larger than the servile class before the
Conquest, but not so abjectly servile.
That this simplifying process greatly improved the legal
position of the serf can hardly be doubted. We need not
indeed suppose that the theow or servus of earlier times had
been subjected to a rigorously consistent conception of
slavery. Still in the main he had been rightless, a chattel;
Introduction of Feudalism
93
and we may be sure that his rightlessness had not been the
merely relative rightlessness of later days, free against all
but his lord. Indeed we may say that in the course of the
twelfth century slavery was abolished. That on the other
hand the villani suffered in the process is very likely. Cer¬
tainly they suffered in name. A few of them, notably those
on the king’s manors may have fallen on the right side of the
Roman dilemma “aut liberi aut servi,” and as free men holding
by unfree tenure may have become even more distinctly free
than they were before; but most of them fell on the wrong
side; they got a bad name, and were brought within the range
of maxims which described the English theow or the Roman
slave. Probably we ought not to impute to the lawyers of
this age any conscious desire to raise the serf or to debase the
villein. The great motive force which directs their doings
in this as in other instances is a desire for the utmost generality
and simplicity. . . . They reck little of the interests of any
classes, high or low; but the interests of the state, of peace
and order and royal justice are ever before them . 1
The class, thus formed, had the peculiarity of a dis¬
tinctly servile side and a distinctly free side. The former
was shown in their relations to their lords, in which were
present the usual servile disabilities. The villein whose
daughter married outside the manor or who married a
freeholder inside the manor must pay the merchet , or
marrying fine for loss of a worker, to his lord; and the
latter had many petty and vexatious rights over the prop¬
erty of his villein, which proves, however, that the villein
did have personal property that was recognised as his.
The villein was bound to the soil and to certain services,
payments in labour and in kind, which were determined
by the custom of the manor and which varied in their
amount and certainty in individual cases. To his land
and to his services, the villein could be strictly held; if
he fled, his lord had the right to bring him back by force.
On the other hand, to all persons except his lord, the
1 P. and M. i., 430, 431. For the depressing effect of post-Conquest tax¬
ation upon the middle classes, see below, p. 120.
94
The Norman Conquest
villein presented his free side; as against them, his right
to have his property and personal safety protected was
practically the same as that of the freeholder upon the
same manor. As the system of king’s courts developed,
its attitude towards the villein became a matter of great
importance as affecting his status. In a word, and by
way of anticipation, it may be stated here that the vil¬
lein, by the early thirteenth century, stood on a prac¬
tical equality with the freeman in a royal court in all
matters relating to its criminal jurisdiction. But it was
not for him a civil court; he could bring no action
there . 1
The men above the villeins, the non-noble freemen, are
known usually as freeholders. As the mass of Anglo-
Saxon tenures became somewhat simplified after the
Conquest, this class held normally by one of the socage
tenures, tenure in free socage, the ancestor of the mod¬
ern freehold, being the most important . 2 Most manors
contained a number of freeholders in addition to its
villein tenants; but a freeholder might have a manor
with freehold and villein tenants of his own. The services
of the freeholder were much the same as those of the
villein, but possessed a kind of definiteness that left
him who rendered them less at his lord’s disposal. The
freeholder lacked also the ascription to the soil and the
more personal incidents of servitude. But any general
description is likely to make the distinction between the
freehold and villein classes appear clearer than it actually
was. The more the investigator deals with details, the
more difficult he finds it to obtain a sure touchstone of
demarcation; even such servile marks as the payment of
the merchet become vague and unsatisfactory as guides.
What at first seems a less clear-cut test, definiteness of
service, has been found, in the long run, the best. It is
1 See below, pp. 194, 195.
2 See above, p. 32 ana note 1. After the Conquest, free socage was
more widely used and often by people of higher rank than in Anglo-Saxon
times. See Maitland, Domesday Book and Beyond , pp. 66 ff. Tins tenure
was commonly known o.s fee farm from the Conquest to Edward I.
Introduction of Feudalism
95
true that the villein’s service was often fixed as to its
sum total, but he did not know from day to day what
his lord would have him do; he was at his lord’s
disposal.
A matter which greatly complicated the relations of
all classes was what has been termed the divorce of ten¬
ure and personal status. At a time when ideas of land
ownership were very vague and several individuals of
different status ordinarily had rights in the same piece
of land at the same time, the services from the individual
holdings did not change as the tenants changed. Land
was stable and services traditional, and the medieval habit
of looking at the land rather than the shifting and chang¬
ing individual brought it about that the unit holdings
became identified with certain services whoever the
tenants might be: they always owed villein services or
they always owed freehold services . 1
. . . service due from each particular piece of land came to
be everything and the actual status of the holder of the land
a matter of comparative indifference. It is scarcely possible
to overrate the effect of this manner of holding land in break¬
ing up the social system of the middle ages. Great nobles
thought it no degradation to hold land on socage tenure of
mesne lords far below them in the social scale, or even to
undertake the more precarious liabilities of the unfree villein
holder . 2
In general, there seems to have been no limit to the num¬
ber of different tenures (except the number in existence)
by which the same individual might at once hold differ¬
ent pieces of land. Where there was divergence between
tenure and status, it was usually the man of higher status
1 Of course these unit holdings were bundled together in the fiefs, great
or small, held by nobles, on the basis of feudal service, from other nobles
or from the king. On the king’s manors or in his boroughs land owing free¬
hold or villein service would be held directly of him. Besides freehold or
villein service, the service or tenure in frankalmoin, a church tenure, could
stamp and identify a piece of land. See below, p. ioi, note I.
2 Medley, English Constitutional History , p. 39.
96 The Norman Conquest
holding the lower tenure, and the ordinary freeman might
be in danger of losing his free status by too long identi¬
fication with villein tenure. But notwithstanding the
various sources of confusion among classes, a great body
of the unfree, the tenants in villeinage, stands out clearly
enough from the freemen; and of the latter, there was a
large class of holders by socage tenure, the personal
status of most of whom was non-noble and free. The
existence after the Conquest, of a substantial non-noble
free class was a very important factor in later govern¬
mental development . 1
In turning to the consideration of the nobility, we come
upon an immediate and all-important result of the Con¬
quest. Owing to the initial resistance at Hastings, which
the Conqueror was pleased to consider treasonable, there
was an extensive confiscation of land in the south. The
long resistance in the midlands and north brought equally
sweeping confiscations there. Hence almost all the land
in England either changed hands or was regranted on new
terms to the old holders. It was through this process
that the principles of continental feudalism entered
England. The land was granted upon feudal terms by
no special design, but because the Conqueror was ac¬
quainted with no other. It was now held of the king,
that is, the better right lay with him and not with the
grantee, and it was held by definite contract for some hon¬
ourable service, ordinarily military service. Then the
men who held directly of the king, his tenants-in-chief,
might make subgrants of land to others, who would hold
of them upon the same conditions. But this did not touch
the lower tenures. When new grants were made to
nobles, they were invariably feudal, but the lower holdings
within these grants remained as before. However, the
feudal principle that all land must be held of some one
began to affect the non-feudal tenures. The socage ten¬
ures, while remaining throughout their later history un¬
changed in essentials, acquired after the Conquest a
1 See below, Part III., § II., 4, passim , and Part III., § III., 2.
Introduction of Feudalism
97
feudal tinge that gave them for a time a somewhat anom-
alous character . 1
The unit of military service was that of the single
knight, the warrior fully armed according to medieval
fashion. Hence the unit of military tenure was a holding
of such value as to support a knight. When the new
feudal tenures were created, they were reckoned in terms
of knights' services. The Conqueror might grant to one
of his followers an extent of territory from which forty
knights were required, to another, a holding furnishing
twenty or thirty knights, and so on. The number of
\ nights' services were almost always reckoned in multi¬
ples of five, as they had been in Normandy. Although
there was, of course, a relation between the amount of
land granted and the number of knights required from it,
yet no very accurate measuring unit seems to have been
used; the Conqueror probably fixed the numbers quite
arbitrarily. In many cases, surely, the number of knights
required was much below what the land might have fur¬
nished. Comparatively few tenants-in-chief owed over
fifty or sixty knights, and the sum of all was about five
thousand. It has been contended by some writers that
this system of knight service was simply a continuation,
under another name, of what is often called the thegnage of
Anglo-Saxon times. There was, however, an essential
difference, which is an illustration of the fact, already dis¬
cussed, that England before the Conquest did not possess
the principles of continental feudalism. What had been
growing in England was a more or less complete terri-
torialising of military service. The old militia idea that
x This feudal tinge appears in the universality with which these lands
were held of some lord, all rendered some kind of service, and all tended
to assume some of the more characteristic feudal dues, such as the regu¬
lar aids and the relief; another feudal trait, more slowly acquired but very
important, was primogeniture (see below, p. 349). But they lacked the
essential feudal characteristic of being held by an honourable service, that
is, political, the kind of service to be performed by a noble._ Free socage
tenure became increasingly popular, being a free tenure, with a definite,
non-military service and usually lacking the more vexatious feudal inci¬
dents, as wardship and marriage. Burgage, the characteristic tenure HI
boroughs, was a sort of “town socage. 0
98
The Norman Conquest
every freeman could be called upon to render military
service to the state no longer existed in its purity; the
obligation had been shifting from the individual to the
land. A certain amount of service had, for long, been
rendered from a certain extent of territory; hence, except
in cases of great emergency, just so many men and no
more were required from it . 1 It is, moreover, likely that
the large landholders were, to some extent, held respon¬
sible for the number of men their lands were to furnish.
But this practice was growing, as we have seen so much
else in the Anglo-Saxon system, without any principle on
which to base the facts; indeed, the facts were so varied
as to square with no principle whatever. They had
broken away from an old principle, but had not yet
reached uniformity enough to give rise to a new one;
there had not been in England, as on the continent, useful
ideas derived from an older civilisation that might serve
as hints and guiding forces in the yet complex and im¬
perfect facts. The thing that had been lacking and
that came in at the Conquest was the idea of a definite
contract as existing between lord and man. In the grants
made by the Conqueror to his followers or to the restored
and pardoned Saxon nobles, such contracts were made,
and the land was recognised as coming from him and a
superior right as remaining with him. This system of
knight service remained for a considerable time the chief
means of recruiting an army. The Norman kings, how¬
ever, did not abandon the old right of the Anglo-Saxon
kings to enforce a general levy of all freemen in case of
great necessity—Norman custom, as already shown, made
this natural 2 —and in the survival of this right the mili¬
tary system of England differed from that of the con¬
tinent, where, in most places, military service had been
more completely feudalised.
It has been often represented that, when William
brought feudalism into England, he consciously modified
it in several ways in the interest of his own power. But
1 See above, pp. 69, 70.
M, p. 82.
99
Introduction of Feudalism
William could have had no thought of introducing a
system that was to be modified. And, furthermore,
several things, necessarily resulting from the Con¬
quest, had an effect upon the feudal holdings and made
them differ somewhat from the continental type . 1 Most
prominent was the scattering of the large fiefs, which has
been ascribed to a deliberate plan of William to make it
difficult for his great nobles to concentrate their forces.
But it was an inevitable result of the piecemeal con¬
quest of the country; William conquered first the south¬
east and, shortly after, the south-west, and must hasten
to reward his clamorous followers in those regions; then
came the series of uprisings in the north, the confisca¬
tion of most of the land, and the consequent new grants
there *, and, last of all, the country about Chester and
the Welsh border was subdued, and many of the Norman
nobles, who had begun to get their allotments in the
south-east four or five years before, received their final
holdings in the regions last conquered. Moreoever,
when a Norman was, in any part of England, put into
the place of a rebellious Saxon lord, he was likely to find
the lands of his predecessor very irregular and scattered;
for the majority of the Anglo-Saxon nobles had never
gone far in rounding out their holdings.
A second effect of the Conquest was a sharper defin¬
ing of feudal obligation and incident. This resulted from
the rapid creation of so many new holdings. On the con¬
tinent, where the feudal landholding had grown step by
step through centuries, all sorts of anomalies and relics
of earlier forms of tenure remained; in conquered Eng¬
land, where things were being made over new and the
king was strong, there was a tendency to push the feudal
1 These differences progressed with time, but never to a point that
obscured the fact that post-Conquest feudalism was institutionally derived
from the continent. As a matter of nomenclature and to avoid confusion,
it may be useful to call the feudalism in England before the Conquest
Anglo-Saxon feudalism , that which William brought in continental feud¬
alism, and that which developed from it in England after the Conquest
English feudalism .
ioo The Norman Conquest
theory where it might help the king, and work out de¬
tails. In the reign of William II., there was a deliberate
attempt to exploit the feudal relations in the interest
of the king, which resulted in elaborating and defining
the feudal obligations. Erelong, as far as feudal law
was concerned, especially feudal land-law, England was
leading Europe. It may be remarked in conclusion that
the Salisbury oath, which is likely to strike one as a
marked assumption of power upon the Conqueror’s part,
was not a new kind of oath. There is evidence that such
an oath had been required at other times during his
reign, and he and his ancestors seem to have habitually
required the same in Normandy. It established in Eng¬
land the important principle that every man’s oath to
his lord was taken saving his allegiance to his king . 1
In this account of the classes of men and the introduc¬
tion of feudalism, the three leading land tenures of post-
Conquest England are presented, those whose leading
traits were to remain unchanged for about three centur¬
ies. Land tenure was now determining status more than
status land tenure; it is possible to speak of rights in land,
to find the better or possibly the best right, but out-and-
out ownership is an idea not appropriate to the time—
everybody held land of somebody for some kind of serv¬
ice, even the king sometimes being spoken of as holding
it of God; and much in the way of public duty or func¬
tion is exacted on the basis of land holding. For these
reasons a subject which seems one of propriety rights
cannot be left wholly to the field of private law or to eco¬
nomic history. It is “impossible to speak of our medieval
constitution except in terms of our medieval land law .” 2
For the purpose of summary and in connection with the
foregoing discussion, the following diagram presents the
three tenures from the three points of view of the pur-
1 Though. William I. did not consciously modify feudalism, it must not
be supposed that he was neglectful of his own interests; but he cared for
these in an eleventh century manner and not in the manner which some
modem writers have ascribed to him. See below, pp. 114.-116.
2 Maitland, C. H. E„ p. 24.
introduction of Feudalism
101
pose they served in society, the tenants who normally
held them, and the chief services paid—each of these
three points of view reflecting the same fundamental
idea of the tenure.
'Feudal f Purpose—Political
(Knight’s •! Tenants—Nobles
Service) [ Service—Honourable (usually military)
England’s
Medieval
Land-
tenures 1
Freehold
Purpose—Mainly economic (some feudal tinge)
Tenants Non-noble freemen
Service—Kind, labor, money—relatively definite
Villein
(Servile)
Purpose—Wholly economic
Tenants—Villeins
Service—Labor, kind, money—relatively indefinite
1 Besides these three tenures there were two others, less important, as
England’s medieval tenures are usually reckoned: serjeanty and frank-
almoin. The tenant in serjeanty ordinarily held some kind of office for
his land: honourable or exalted as in most of the grand serjeanties, more
petty or menial in the petty serjeanties. But there was nothing servile
about any of them; they were “free servantships.” Though it is impos¬
sible to draw a clear line between them, there is a general truth in regard¬
ing grand serjeanty as a variety of feudal tenure, and petty serjeanty as a
variety of freehold. Frankalmoin was a distinct variety of tenure, the
tenure by which the church held some of its land. Given to the church
for pious purposes, this land was exempted from ordinary secular serv¬
ices, and the church owed for it a rather vague obligation, in prayers or
otherwise, in behalf of the donor’s soul. For a discussion of these tenures,
see P. and M. i., pp. 240-251, 282-290.
SECTION II
THE LOCAL GOVERNMENT
i. The Courts—Communal and Manorial.—The
Anglo-Saxon local judicial system remained for some time
after the Conquest little changed. Its usefulness was
probably recognised by the new king, who certainly had
nothing better to put in its place, but who had maintained
some kind of local public courts in Normandy . 1 The pri¬
vate jurisdictions, which have been noted as seriously
cutting into the hundred courts, were now, in most
cases, the jurisdictions of Norman instead of Saxon
lords. But notwithstanding the substantial continuance
of the old system, certain important changes did begin
and certain new conceptions inevitably arose in the early
Norman period . 3
The possibility that already in the Anglo-Saxon period
the reeve and four men of manor or vill had, upon occa¬
sion, gone as representatives to hundred and shire courts
has been discussed . 3 Whether or not they did then, they
certainly did in the early Norman period whenever the
non-freeholding element on the manor was not repre¬
sented by the lord or his steward. The idea back of this
practice is very obscure, and the function of these rep¬
resentatives, at least in this early period, equally so ; 4
1 See above, p. 82.
2 These are briefly outlined here, and this consideration will serve as a
starting point for the consecutive study of the creation of the English judi¬
cial system in Part III, § I.
3 See above, p. 66, note 1.
4 The reeve and four men would ordinarily be villeins, and it is clear
that they were not regarded as suitors, that is, could not act as judges in
the courts. As to their connection with the frankpledge and later jury
system, see below, pp. 150,151,181.
102
The Local Government
103
^vt the entry for the first time of a clearly representative
principle into any part of the English polity is a matter
f importance. It is curious that it should have been at
the very bottom, in the realm of the unfree. As to free¬
men, the duty of attending the shire court became more
and more attached to certain holdings of land. 1 This
change was of slow and obscure growth and resulted in
many anomalies. The largest holdings did not always
owe suit of court, and the actual make-up of the court
under this system must have been a curious jumble
of high and low, rich and poor. Soon after the Con¬
quest, the earl and the bishop ceased to attend the court,
leaving the sheriff as the only presiding or constituting
officer—a change that was to affect fundamentally the
court’s future history. In view of the character of the
Norman vicomte, the sheriff would be a familiar kind of
official to the Conqueror, but it is clear that it was the
Anglo-Saxon sheriff and not the vicomte that we have in
England after the Conquest. Earl began to be a title
of nobility instead of signifying an office. This naturally
resulted from conditions in Normandy where the con¬
trol of the dukes had been so complete that no great
official power, or great power of any sort, had been allowed
in the hands of a local nobility; the counts, who in some
respects had corresponded to the Anglo-Saxon earls,
were few in number, practically confined to the ducal
family, and with no such relation to a local court as that
held by the earls. The day of the earls either as great
officials or as king-defying nobles was past. The bishop
withdrew from the shire court as a result of William’s
separation of ecclesiastical from lay jurisdiction. 2 The
court met, as formerly, twice a year, but it could be
summoned oftener by the king when he had any special
business that he wished it to transact. The time of meet-
1 Maitland, The Suitors of the County Court , English. Historical Review,
iii., 417-421. The territorialising of suit of court probably began in the
Anglo-Saxon period, but this has not been proved. See above, pp. 17, 18
and note 1. 2 See below, p. 131.
104 The Norman Conquest
ing and the make-up of the regular hundred court 1 unde
went no change in the early Norman period; by the
time it was held either by the sheriff or by some depufr
directly responsible to him.
In the reign of William II., the holding of the hundred
and shire courts fell into irregularity and abuse. To some
extent, the king was manipulating them in his own in¬
terest through his officer, the sheriff; but undoubtedly
the chief abuse was by the sheriff himself. The courts
were summoned capriciously, and unusual or extortion¬
ate fines were levied. This would have been impossible
in the Anglo-Saxon period when bishop and earl sat
with the sheriff and the popular character of the courts
was safeguarded by this balance of officials. Henry I.,
early in his reign, ordered that these courts be held as
they had been before the Conquest, thus correcting the
sheriffs" abuses of his brother’s time. 2 This was but a
small part of what Henry did. As has been remarked,
his reign opened the great period of constitution making,
and, more particularly, the twelfth-century judicial devel¬
opment. The later fortunes of these ancient courts will
be considered in that connection. 3
As to private jurisdiction Anglo-Saxon and continental
ideas and practice ran readily together. At the bottom,
manorial jurisdiction continued, as described above, and
spread as the manorial system of agriculture became more
universal. Private jurisdiction over freemen, criminal
as well as civil, the thing which had started in England in
bookland grants of jurisdictional rights in whole hundreds
or parts of hundreds, also continued and grew. With
the incoming of continental feudalism there was probably
less confusion of thought here than before; such courts
were no longer regarded as hundred courts or parts of hun-
^ 1 0 n the specially full meetings of the hundred court in Henry T.’s
time, meetings that were really becoming king's courts, see below, p. 181.
2 Henry had no intention to restore the earl and bishop to their pre-
Conquest position in the court.
3 The borough courts are mentioned below in the division on boroughs,
pp. in, 186, 187 and note x.
The Local Government
105
dred courts with changed presiding officers. Jurisdic¬
tion over freemen in private hands was a part of the
regular order of things on the continent, and thought
of as such. It was natural that a vigorous central power,
such as there was in England after the Conquest, should
assume that all such power in private hands had passed
there by royal grant, was strictly franchisal, and hence
could be taken back whenever the king saw fit. Histor¬
ically such a theory was partly, but not wholly, true. 1
We do not know that the Conqueror or his early succes¬
sors ever formulated it, but Norman conditions especially
seem to bear it out; and in England the lavish judicial
grants which the Norman rulers occasionally made cer¬
tainly implied that they had a good deal to give; and
where they found anyone exercising a jurisdiction so great
as to be prejudicial to themselves, they were fertile in
practical means to limit it. But there came a time when
an English king set himself to theorise on the subject, and
it will be useful, in that connection, to have in m i n d the
historical background. 2 It is possible in this period of
developed feudalism to distinguish a third type of pri¬
vate jurisdiction. A lord who had vassals, that is, men
who held from him on feudal tenure, had a jurisdiction
over them which included all matters relating to the law
of fiefs, the strictly feudal law. This was a civil jurisdic¬
tion, and of course was never acquired or supposed to have
been acquired by royal grant.
One great cause of confusion in connection with these
varieties of private jurisdiction is that the jurisdiction
in origin and principle was one thing and the court, the
physical thing of time and place, in which it was admin¬
istered, might be quite another. The scattering of the
fiefs, already described as a result of the Conquest, made
it hard for many of the great lords to hold courts for their
feudal vassals; they were too widely scattered. Such
courts were occasionally held, and in them would be
administered the feudal law of fiefs and also such degree
■ See above, pp. 38-41, 77, 78- 2 See beIow > PP- l88 > l8 9 -
106 The Norman Conquest
»
of criminal jurisdiction as the lord might possess over his
vassals. But such strictly feudal courts were never prom¬
inent in England and, as will be shown, ended early.
When such courts existed it was characteristic of t.tiprn
to have no regular time or place of meeting; the vassals
came when and where the lord summoned them. But
it was more common for the lord to exercise his jurisdic¬
tions in a regularly meeting local court. When a whole
hundred had passed under a lord’s control, the hundred
court would be the place to administer most of his juris¬
diction over freemen. But when, as was commoner, he
had only part of a hundred, that part would probably
coincide closely with one or more of his manors, and all
of his jurisdictional rights might be exercised in his
manor courts.
Another way of getting at the same matter is to enquire
in what courts the three classes of laymen, villeins, non¬
noble freemen, and nobles, would ordinarily appear. The
villein was entirely under the jurisdiction of his lord
in the manorial court; his lord’s steward presided and
his fellow serfs and probably the freemen on the same
manor were his judges. The non-noble freeman was under
the jurisdiction of his lord, where such jurisdiction be¬
longed to the latter of ancient right or had been acquired
through the new disposition of the land, or he might still
be subject to the hundred court, as yet a public court.
When the freeman was tried in the manorial court, he
was judged by the other freemen of the manor, probably
not often by the villeins. The noble was tried in the
lord’s feudal court and by his fellow vassals (in a special
sense he was judged by his peers) when his lord held
such a court. But where the fiefs were badly scattered,
it was more common for the lord to have local groups of
his vassals come to one of his manor courts and admin¬
ister his feudal jurisdiction in that connection. It would
be quite common, then, for all three types of private juris¬
diction to be administered in the manor court. Cer¬
tainly this became the rule by the end of the thirteenth
The Local Government 107
century. 1 As if this situation were not sufficiently con¬
fused, there was shortly to enter in a new and rival force
in the jurisdiction which the king was seeking to build
up for his own power and profit. The king, of course,
was part of the feudal scheme; he was suzerain, lord of
lords, at the apex of the feudal hierarchy. He had his
feudal court of vassals, albeit they were scattered through¬
out England and of course could not all attend. 2 3 But
he was sovereign as well as suzerain and a mighty sove¬
reign, and, beginning with the Conqueror, we find his
feudal court doing some extraordinary and unfeudal
things in the way of arbitrary interference in cases either
in the communal or private courts. The king’s court
was soon to be the most important factor in English
judicial history.
This sketch of the local powers and jurisdictions just
after the Conquest must include a mention of the pala¬
tine earldoms. The well-known object of these was to
erect a specially centralised, efficient, and interested power
on the dangerously exposed frontiers. William, whose
conquest had done so much to rid England of overpower¬
ful earls, perhaps did not at first feel ready to do entirely
without this favourite resource of immature governments;
but it is more likely that he accepted something of the
sort as a matter of course and that the traditional loca¬
tions of some such powers in Anglo-Saxon times were of
influence. Certain earls were given large, compact pieces
of territory which were made practically exempt from
state interference, as far as internal affairs were con¬
cerned. Chester, Durham, and Kent were the three
palatine earldoms established. As Kent was only granted
for life, little account need be taken of it. The two
others lasted long and had an important history. Sev¬
eral other holdings, especially those on the Welsh border
to the south of Chester, fell but little short of these in
i See G. B. Adams, Private Jurisdiction in England, American Histor-
ical Review, xxiii, 596-602.
3 See below, pp. 338,339.
108 The Norman Conquest
size, compactness, and freedom from control. But when
these greatest of private powers after the Conquest are
compared with the houses of Godwin or Leofric in Ed¬
ward’s time, the contrast is sufficiently striking.
2. Manor, Vill, and Tithing—Administrative and
Police Obligations. —Besides its court, the manor had
other features of a governmental or semi-governmental
character. In this period it is impossible to draw the line
sharply between what may be considered technically a
part of government, whether in public or private hands,
and what was not. Duties and responsibilities shaded
off from what was clearly governmental into what had to
do with private affairs and economic relations. But it
cannot be too much emphasised that one must not over¬
look these humble matters if he is to know the capacity
and training of some seventy per-cent of the English
population and their fitness for greater things. The lord
of the manor was no absolute monarch in his little domain
whatever theoretical rights and economic advantages he
may have had. Among those who helped in his admin¬
istration were many of the villeins themselves, and he and
his more personal officers were always restrained by man¬
orial custom. His
staff comprised the stewards and seneschals who had to act as
overseers of the whole, to preside in the manorial courts, to
keep accounts, to represent the lord on all occasions; the
reeves who, though chosen by the villagers, acted as a kind of
middlemen between them and the lord and had to take the
lead in the organisation of all the rural services; the beadles
and radknights or radmen who had to serve summonses and
to carry orders; the various warders, such as the hayward,
who had to superintend hedges, the woodward for pastures
and wood, the sower and the thresher; the graves of moors and
dykes who had to look after canals, ditches, and drainage; the
ploughmen and herdsmen, employed for the use of the domanial
plough-teams and herds . 1
* Vinogradoff in Cambridge Medieval History »iii., 481.
The Local Government
109
And, as already shown, the peasants constituted the
manor court; they judged. The steward was not judge,
he only presided. Such an organisation plus a system of
tenures and services fixed in manorial custom, which as
early as the twelfth century began to be embodied in
writing in the manorial rolls, bespeak a peasantry that
even on their unfree side, their relations with their lords,
were not wholly unfree.
But the manor had not obliterated the vill or township,
even where the two coincided. The organisation, if it
may be called such, of the vill is very obscure; but it
was the administrative and police unit for any authority
higher up, even to the king. It was used in assessing and
collecting taxes, in the care of roads, oversight of vaga¬
bonds, and, most important, the whole nexus of obliga¬
tions comprised now under the term frankpledge . 1 From
where we left tithing and collective pledge late in Cnute’s
reign 2 to their reappearance early in Henry I.’s, their
history is alm ost, wholly lost. But the decisive thing had
happened: the two obligations had been made equally
compulsory and the institutions welded together, and
undoubtedly after 1066. Dangers arising from Anglo-
Saxon hostility to Normans, frequent manslaughter, a
king strong enough to use any materials at hand, and
keen-sighted enough to know and appraise the novel and
obscure local customs of his new kingdom—these things
wrought the last great development in the frankpledge.
Now, except in a fringe of border counties, the whole
body of peasantry and some of the freeholders were
bound together in tithings, without choice of pledges or
associates, and were not only forced to pursue supposed
criminals, but bound to produce at court anyone of their
number who might be charged with one of the moie
serious crimes; and along with these main duties minor
1 The manor “consisted, as a rule, of a village comminuty with wide
though peculiar self-government and of a manorial administration super¬
imposed on it, influencing and modifying the life of the co mm u n ity but
not creating it.” Vinogradoff, op. cit., 473.
3 See above, pp. 67-69.
no
The Norman Conquest
police functions such as guarding prisoners, taking them
to gaol, etc. It was communal responsibility in crim¬
inal matters, 1 household retainers now being the only
ones allowed to find a single pledge, their lord. It prac¬
tically amounted to making every man in a community
responsible for every other man. And if the criminal
were not produced, the appropriate fine might be col¬
lected from the tithing; the whole tithing could not run
away and was not likely to be in league with the crim¬
inal. All r ppn were their brothers’ keepers. In south¬
west England, and irregularly in some other parts, the
tithing and vill are known to have coincided, and the
tithingman was simply the township reeve. In the mid¬
lands it was sometimes the manor. In considerable parts,
it has been found hard to tell whether it was territorial or
numerical. Where territorial it was probably oftenest the
vill; where numerical, the members must have lived
near enough to act together. It is known that where
tithing vills were too large to make good police units they
were often subdivided, that is, a tithing could be divided
into two or more frankpledge tithings. Thus in the
mass of English people, as members of manor or vill,
hundred or shire, there was much activity and responsi¬
bility aside from winning one’s daily bread from the
soil. Every man, free or unfree, was born to serve the
public weal, and here in post-Conquest England he was
serving it least often in a military way.
3. The Boroughs. —Although the Norman Conquest
resulted finally in greatly stimulating commercial and
industrial interests in England, its early effect upon the
boroughs was depressing. We have seen that in the late
Anglo-Saxon period the boroughs were more and more
regarded as being upon the domain of some lord, and
I A feature of this was the well-known “presentment of Englishry.”
A man found slain was assumed to be a Norman and the hundred in
which he was found was bound to produce the criminal or pay a heavy fine
unless it could present his EngUshry, that is, prove that he was an English¬
man.
The Local Government
in
that the king had far the largest number. 1 Under the
influence of continental ideas, all boroughs became lords’
boroughs soon after the Conquest. When the citizens
of the struggling continental municipalities of this period
were regarded individually, they were, as a rule, classed
as servile, and most of them were of servile origin. It
was natural that the new Norman lords of the English
boroughs should regard the burgesses in the same way.
This could not but tend to lower their status, but the
idea was so contrary to fact in England that its logical
results in the treatment of burgesses were not completely
realised. However, the somewhat arbitrary levying by
the lord of a payment called tallage from his boroughs
certainly originated in it. Tallage is to be carefully dis¬
tinguished from the old firma burgi, made up of the rents,
tolls, and court fines. 2
The boroughs also suffered severely from the devasta¬
tions which William I. found necessary to the complete
conquest of England. 3 But the stable peace which the
Norman and Angevin kings gave the country and the
commercial advantages of the closer connection with the
continent soon began to help the boroughs. This was
noticeable as early as the reign of Henry I., and from
that time the boroughs entered more regularly upon the
struggle for liberties and immunities which began slightly
before the Conquest. The things they, were seeking
varied somewhat according as they were king’s towns or
those of ecclesiastical or lay lords, but may be grouped,
in a general way, as follows: they wished their firma fixed
at a lump sum, and, in the case of the king’s towns, paid
directly to the king without the sheriff’s intervention;
they wished to be free from tallage and Danegeld; also
as little interference as possible from outside in choosing
their officers and in jurisdiction, every burgess being
amenable only to the borough court; they strove to les-
1 See above, pp. 32, 33. 2 Ibid., p. 33.
3 “The civic population recorded in Domesday fell from 17,000 to
7,000.” Medley, English Constitutional History, p. 455.
ii 2 The Norman Conquest
sen the network of tolls by which they were surrounded
and which hampered the coming and going of traders.
Henry L granted a charter to London which may be re¬
garded as inaugurating the boroughs' twelfth-century
struggle for independence. The privileges conferred by
this charter were great, considering the time, and it served
as an incentive to other boroughs.
The privileges of the citizens of London are not to be re¬
garded as a fair specimen of the liberties of ordinary towns;
but as a sort of type and standard of the amount of municipal
independence and self-government at which the other towns
of the country might be expected to aim. 1
The logical outcome of what the boroughs were aiming
at, just as in the case of continental municipalities, was
complete political separation. In all countries where the
feudal regime was supreme, the municipalities felt them¬
selves to be alien units in hostile surroundings. They
were, in many respects, the advance guards of the mod¬
em in the midst of the medieval. They learned early
the particularity of their interests; their hand must be
against every man as every man’s hand was against them;
the interests of the feudal warrior and of the citizen were
antipodal. Any possibility of the towns’ profitably shar¬
ing in the general government of the country was denied
by every condition of the time. Rather it was their pur¬
pose to wall themselves off, literally and figuratively, from
all governmental surroundings and, while profiting by
the growing industrial demands and by commerce, work
out their own institutional salvation. They learned the
most effective ways to use their increasing numbers and
wealth. To buy privileges was their great method, but
they knew how to use force upon occasion. These con¬
ditions were much the same in Germany, France, and
England in the twelfth century. In Germany, owing to
the break-down of the central government, the logical
1 Stubbs, Select Charters , pp, 128-130.
The Local Government
113
conclusion was finally reached, in many cases, in the
free cities. In France, it was measurably reached, for a
time, in the communes of the north and south; later, all
liberty, inside the city walls as well as out, was lost in
the absolute power of the king. In England, the bor¬
oughs never reached political isolation, nor were their
political rights taken away from them by an absolute
king; a unique set of conditions and series of events broke
down the barriers between them and important elements
of the outside population and eventually made it pos¬
sible for the burgesses to take part in the general govern¬
ment of the country. 1
1 See Part III., § III., 4.
SECTION III
THE CENTRAL GOVERNMENT
I. The King and his Court.—The most important
and far-reaching result of the Norman Conquest was the
strengthening of the central government. We have seen
the Anglo-Saxon constitution stronger in the lower part
of the structure than in the higher; now, without dam¬
age or violent change in the lower part, the higher was
transformed and strengthened and the way prepared
for the union of the two, which is the key to much of
the later constitutional growth.
In the Anglo-Saxon period, the central government con¬
sisted of king and witan; after the Conquest, it con¬
sisted of the king and his court. The word king, as apply¬
ing to the first two Norman rulers of England, had a larg¬
er content than it had had in Anglo-Saxon times or than
it had had in France. And it was not to remain long
unchanged; from reign to reign and century to century,
one has carefully to revise his conception of the English
kingship. It is, perhaps, needless to say that when Wil¬
liam conquered England he did not trouble himself about
a theory of royalty. He knew its practical limitations in
both England and France, and he determined to rid him¬
self of these as far as possible. The substance of power
was what he wished. He certainly did not propose to
emphasise any break in Anglo-Saxon policy caused by
the Conquest; he was the successor of Edward rather
than a conqueror introducing new notions. He laid
stress upon the promises of Edward and Harold, and, in
The Central Government
115
the coronation ceremony and the important coronation
oath, he followed the Anglo-Saxon form. 1 But he im¬
mediately began to rule as no Anglo-Saxon king had ruled,
and the introduction of feudal tenure and the ambitious
expectations of his followers did not reduce bim to the
empty kind of suzerainty held by the king of France.
English kingship changed because there had been a con¬
quest and because the Conqueror was what he was, and
because his successors were, for the most part, strong
men with a similar determination to rule. Had he been
succeeded by weaklings, there is no reason to suppose
that it would not finally have fallen back where it was
in the person of Edward the Confessor. The Norman
kings were not consciously working out an absolutism;
they thought it possible to obtain enough power under
the old forms. The facts preceded theory; political con¬
ceptions were hazy in the middle ages, and before any
theory of absolute monarchy arose the king’s power
began to be limited in a new way and a new set of ideas
began to form.
Notwithstanding this general precedence of fact over
theory, there is no doubt that there was some notion
connected with all medieval kingship that the king was
the source of law and the highest authority in administer¬
ing law. It had passed into Frankish kingship, as had
so much else, from Rome. It is easy to get a wrong
impression of the vividness with which this had ever been
present on the continent, and it did not displace old
Germanic conceptions of law. We see it quite clearly
in Charlemagne, but after him it had surely lost all re¬
flection in facts. It can also be traced in the Roman
gift to Anglo-Saxon kingship, and some Anglo-Saxon
kings tried to make it a reality. The Norman Conquest
appears to have strengthened this idea in England, and
it was to be an important force in the mak i ng of the
English judicial system. 2
1 On coronation oaths, see Maitland, C. H. E., pp, 98-100.
2 See Part III, § I.
n6 The Norman Conquest
The best concrete example of the great power that the
Conqueror was exercising by the end of his reign and,
doubtless, his most original piece of work, was the Domes¬
day survey. While it had no technical bearing upon his
relations to his people, either as feudal lord or sovereign,
it was of immense practical value in putting the resources
of the newly acquired country at his command. The
Domesday survey was really a census, undertaken on a
scale of magnitude and precision, which, for times when
anything of the sort was almost unheard of, testifies, as
nothing else does, to the organising genius and energy of
its author. William had conquered him a country; it
lay open and subdued before him and gave him an un¬
matched opportunity to do with it as he chose. He
would know his new acquisition to the smallest details,
its resources, its population, its local conditions and
history. The Domesday Book gives us a knowledge of
England in the eleventh century such as is possessed of
no other European country for the same period. 1
The early Norman kings in governing took counsel
with a body of nobles, a central court, that seems quite
analogous in general make-up to the ducal court of Nor¬
mandy. So many important parts of the English gov¬
ernment have grown out of this body that there has, not
unnaturally, been much interest shown in its origin.
Many scholars have felt great pride in tracing all the
best products of England’s later constitution to some¬
thing primitively Anglo-Saxon, and hence have dis¬
cussed this question with a considerable amount of bias.
The cause for pride seems so obviously to lie in the suc¬
cessful development of a primitive institution info some¬
thing of permanent value that one ought to be able to
approach the question of origins with an open mind.
The Anglo-Saxon witan would seem a natural and familiar
* The method of making the Domesday survey and the kind of material
collected are illustrated in documents 3 and 4 in A. and S., and in Trans¬
lations and R&prints (Statistical Documents of the Middle Ages), pp. 6-7.
The method by which the survey was made is of even greater governmental
interest than the fact of the survey itself. See below, p. 153.
Tiie Central Government 117
body to the Conqueror. It was a small council made up
of the great men, and that was like the Norman ducal
court. He would not be likely to question whether just
the same principle of attendance governed the two. As
to the counselling body which we find in England after
the Conquest, it seems from the start to have been largely
feudal; within half or three-quarters of a century it was
clearly made up primarily of the king’s feudal tenants-
in-chief. Some of the officials and members of the king’s
household attended on other grounds, but most of the
officials were his vassals. It is clear, and very important
to notice, that the king always felt he could invite whom
he chose whether vassals or not, as, for example, papal
legates; and the lesser tenants-in-chief could not all
attend, nor were they expected to. William was not
trying to change the witan into a new kind of council;
but as feudal tenure began to prevail, most of his coun¬
sellors would be those who held from him in chief. He
brought in continental feudalism because he knew no
other and, when he had done so and especially when his
sons had elaborated and defined more sharply some of
the feudal principles, any central council or court was
bound to be largely a feudal court. One must suppose,
then, that things would have worked out in about this
way if the Anglo-Saxon witan had never existed; and
if he is interested in, and bound to trace, an institutional
origin, it will be found in this instance to lead back to the
continent rather than to pre-Conquest England . 1
This council of the Norman kings did not have as well-
recognised a name as the Anglo-Saxon witan. It has been
the fashion of almost all modem English historians to
speak of it as “the Curia Regis,” taking these two Latin
words over into the English and capitalising or italicis¬
ing them as if they had come to be a name. But examina¬
tion of contemporary material shows that there was no
i Yet it is no wonder that those who continued the Anglo-Saxon Chron¬
icle after the Conquest spoke of the witan as if still existing. _ The new
central court certainly looked and acted like it.. And see also Liebermann,
The National Assembly of the Anglo-Saxon Period.
n8 The Norman Conquest
distinctive name; terms varied and were quite descrip¬
tive in character: it was the “king’s court,” the “royal
court,” the “court of the lord king,” and many other
such phrases, often to distinguish it from somebody else’s
court. Where the calling of it together is the prominent
idea, the term council {concilium) is often used, and if
the meeting were especially large, adjectives, such as
“general” or “great,” might be added . 1 Language also
might vary according to the function or activity of the
body which the writer had in mind. The word court
{curia) of this time had about the same meanings it now
has: the king’s court often meant the social or ceremonial
entourage or surroundings of the king with the royal
presence as the vital factor; it was quite likely also to be
applied to this counselling group when its judicial activity
was in mind, when it was acting as a court of law; or
the court of the king might even indicate a place of royal
residence or some part of it.
This varying and descriptive language shows an unde¬
veloped institution of varying activities, and such it was.
For this early period it may well be referred to as the
king’s court, with the understanding, however, that it
had no fixed name. It was the Conqueror’s custom, ap¬
parently from the beginning of his reign in England, to
celebrate the three great church festivals of Christmas,
Easter, and Whitsuntide by summoning large ceremonial
courts where there was much splendour and display. Un¬
doubtedly these not only served to impress people in
England and visitors from abroad with the wealth and
power of the king, but as occasions for transacting the
more important public business; this could be done after
the festive part of the occasion was concluded. Also
meetings of these great nobles might be summoned for
purely business purposes. But the central government’s
work was growing with marvellous swiftness after the
# 1 It was not, as has often been supposed, described as a “common coun¬
cil.” This error has led to much misconception of the character of this
early assembly. See Was there a “ Common Council ” before Parliament ?,
American Historical Review, xxv., 1-17.
The Central Government
119
Conquest, and when these meetings were over (and
they were usually short), some more inclined or more
fitted for public work remained behind and were becom¬
ing a more permanent group surrounding the king, some¬
thing more in the nature of his official household, but
still a group which may with equal correctness be called
the king’s court. There seems to have been no distinc¬
tion of function between these two, except perhaps that
matters of great moment might be reserved for the larger
body. It is more correct to say that there were not two
bodies, but larger and smaller sessions of the same body;
when the larger was in session the smaller was merged in
it. The king’s court aided in all kinds of king’s business,
apparently quite as it came up, with little or nothing at
first in the way of classification. But it did an amount of
business that had never been done by the witan, and the
beginning of a more permanent group of royal counsel¬
lors was extremely important.
2. Revenue and Taxation.—The Normans brought
into England no ideas on taxation that were in advance
of those already there. In fact, the Danegeld under
Cnute probably approached more nearly a tax than any¬
thing known to the Normans. Hence what has been said
of the king’s various forms of income as being the proper
an d sufficient support of king and government, the idea
that the king should “live of his own,” applies long after
the Conquest . 1 But a change in the Danegeld and
some changes in the ordinary sources of revenue and the
ideas connected with them, changes that formed starting
points for later development, need to be noted here.
The Conqueror renewed the Danegeld, which had been
dropped by Edward the Confessor, and trebled it. This
made it a tax of six shillings on every hide of land . 2
It was levied regularly, and Cnute’s idea of it as a regular
payment for the support of government was renewed.
From the Conquest, there has always been a land tax in
1 See above, pp. 51, 52.
2 The hide averaged about 120 acres. See above, p. 49, note 1.
i2o The Norman Conquest
England. William’s use of the Danegeld is a good ex¬
ample of his adoption of an Anglo-Saxon institution that
seemed likely to prove of value to him. The trebled
Danegeld was oppressive, resting heavily upon the Anglo-
Saxon middle class, and probably contributed to the
depression of status in that class which was a result of
the Conquest . 1 The desire for more accurate knowledge
of the wealth of his country, to serve as the basis for
the assessment of this tax, was an important cause of
William’s Domesday Survey. The data obtained served
for the assessment of the land tax for over a century.
Under feudalism, some of the requirements of state
were provided for in a precarious way by means of the
nexus of private contracts. Thus, if all these were kept,
the king would be able to lead into the field as many
knights as the land of the country was reckoned as owing
him. Where feudalism was thorough-going, it could in
no way lead to anything like modern taxation, for it
related only to nobles. The payments known as aids
which the king received from his tenants-in-chief were, in
theory, voluntary gifts to the overlord on certain excep¬
tional occasions when he was in special need of money—
ransoming his body when taken in war, the knighting of
his eldest son, and the first marriage of his eldest daugh¬
ter. If an aid were to be taken upon any other occasion,
the consent of the vassals must be expressly given . 2
When the king was able to take such unusual aids with
some frequency and regularity, their original character
was passing away and they were approximating taxation.
This change can be clearly seen in the thirteenth century.
Yet it was but class taxation; it was not national. It
fell upon a class of men, not a kind of property.
From his vassals the king also received a considerable
revenue through the so-called “incidents” of feudal ten¬
ure, the most important of which were relief, wardship ,
* See above, pp. 92, 93.
2 What is said of aids or most other elements, expressed or implied, in
the feudal contract applies, of course, to any lord and his vassals as well as
to the king and his vassals.
The Central Government
121
and marriage* In the reign of William II., came the
well-known abuse of these incidents, but it should be
remembered that much was then done in the way of devel¬
oping and determining them. While long valuable to
the king and to other lords of vassals as a source of in¬
come, they were not taxation; they were incidental to a
special form of private contract. But these contracts
were most of them for military service, and where the
feudal forms were drawn, as they were in England, in
the direction of centralisation and these contracts were
controlled by the suzerain, they served the state in a
really public way by supplying an army. That this was
recognised is shown by article eleven of Henry I.’s coro¬
nation charter:
To those knights who render military service for their lands
I grant of my own gift that the lands of their demesne ploughs
be free from all payments and all labor, so that, having been
released from so great a burden, they may equip themselves
well with horses and arms and be fully prepared for my service
and the defense of my kingdom.
In the reign of Henry I. or perhaps earlier, began the
practice of taking scutage or shield-money. A good many
of the king’s tenants-in-chief had not subinfeudated to
the extent of the full number of knights they owed the
king. This was especially true of the great ecclesiastics.
The deficiency was made up by their hiring knights or,
what the king probably preferred, by their giving the
1 At the death of the vassal, the possession of his holding reverted to
the overlord as a result of the latter’s superior right; when the heir of the
deceased vassal took possession of the land, the payment of the relief
was an acknowledgment of this. When the heir was a minor, the lord was
his guardian during minority and received more or less of the land’s in¬
come. The lord must have a voice in disposing of the hand of an heiress
in marriage, as her husband would become his vassal. ^ She was often
given to the highest bidder. It is not always easy to distinguish nicely
between the normal use and the abuse of these incidents. Although their
reason for existence had long passed from them, they and other minor
incidents remained sources of revenue until the abolishing of feudal ten¬
ures in the reign of Charles II. An excellent account of all the incidents
is to be found in McKechnie, Magna Cartaj pp. 59 ~^ 5 -
122
The Norman Conquest
king the money and letting him hire them. This seems
to have suggested that knights who had actually been
enfeoffed might, upon occasion, commute their service
for money. Most of the fighting was on the continent,
and the traditional forty-day service was unfitted for a
body of knights drawn from the island kingdom, especially
considering the delays which then attended transporta¬
tion. The idea suited both parties: the king could more
easily take money across the Channel and hire troops in
Brabant or Flanders than transport the heavily armed
knights and their horses, and the knights often preferred
to give money to personal service for a distant enter¬
prise in which they took no interest. Scutage did not
apply to the tenants-in-chief (except possibly the bishops
and abbots who could urge canon-law reasons against
taking the field in person) who must serve personally or
pay a fine—a fine which was not a commutation, but a
penalty for a broken contract and was vastly larger than
shield-money. At times, however, understandings were
reached in advance in regard to the amount of these fines,
the tenant-in-chief compounding for the entire service
he owed, and being then allowed to recoup himself in part
by collecting scutages from his knights. Scutage seems
to have been largely confined to knights on church baron¬
ies under Henry I., but in Henry II.’s reign was extended
to other knights and became a system for commuting
personal service which the sovereign manipulated much
to suit himself, and from which he derived much money.
Its chief significance relates not to revenue, however;
it was one of the forces which undermined the military
character of the English knights, marked them off from
continental knights, and made possible their notable career
in government . 1
A source of revenue that has the appearance of a tax
was the tallage levied upon his boroughs by the king; this
seems to have had its root in two conceptions: one,
that a lord had the right, on occasion, to take something
1 See below, pp. 347-351.
123
The Central Government
arbitrarily from the property of his unfree tenants, some¬
thing in the nature of a return upon property invested;
the other, continental in origin, that the citizens of a
municipality were unfree . 1 The king tallaged his towns
as a lord of tenants, not as king; hence he tallaged only
those on the royal demesne. Other lords could tallage
their towns; but it finally became the practice that they
should tallage only when the king did. Here again, it
was only a class that was reached, and that in a private
rather than a public way. Tallage practically ceased in
the fourteenth century. Thus for long after the Norman
Conquest there was no system of national taxation and
no conception of taxation, in any proper sense of the
word. The king had various sources of revenue. It goes
without saying that, as in the case of Danegeld, the Nor¬
man kings retained any important means of supply that
had attached to Anglo-Saxon kingship. As a matter of
fact, Danegeld was a tax, but it had been the offspring of
accidental necessity and had been retained, as any source
of revenue, however originated, was always retained. A
tax had preceded the idea of taxation. Generally speak¬
ing, the Norman king “lived of his own .” 2
That a vastly greater amount of money came year after
year into the hands of William the Conqueror and his
sons than had come to Anglo-Saxon kings is beyond ques-
1 See above, p. hi. The term tallage was not applied to this pay¬
ment until the reign of Henry II.
2 Although we reckon England a feudal country after the Norman Con¬
quest, it is interesting to notice, by way of summary, the limitations upon
feudal ideas and practice in this the heyday of feudalism; also to identify
the source of these in antecedent institutions, Saxon or Norman, or in the
operation of the king’s powerful self-interest:
1. It was not the law that there was no political bond between men
save the bond of tenure.
2. A man was not bound to fight for his lord unless that lord were the
king.
3. It was not the law that those not bound to fight by tenure need not
fight.
4. Royal revenue and taxation were not wholly feudalised.
5. Jurisdiction, whether or not by royal grant, was not all in private
hands.
6. The king’s court was not wholly feudal.
For a discussion of these points, see Maitland, C. H. E. t pp. 161-164.
124
The Norman Conquest
tion. The primitive strong box in the king’s chamber no
longer sufficed for a treasury. 1 Soon definite treasuries
appeared, at Winchester for England and at Rouen for
Normandy. Treasurers were for a time still chamber¬
lains, it is true, but all chamberlains were not treasurers
The treasury was becoming an administrative office, and
treasurers soon ceased to be chamberlains; they were
skilled clerks, specialists in finance. There was an organ¬
isation which in 1086 was capable of the Domesday sur¬
vey, and which developed rapidly as a result of the sur¬
vey. The rate of development along financial lines was
extraordinary. The king’s chamber and wardrobe still
contained treasure, royal goods and money, and chamber
and chamberlains were part of the travelling household.
But most of the money, with its keepers, was at Win¬
chester. 2 An increasing and varied revenue brought with
it many problems for adjustment and disputes for adju¬
dication. A judicial or semi-judicial side to the new treas¬
ury organisation grew; and the king and his counsellors,
the Norman king’s court or some portion of it, not infre¬
quently had to act virtually as a court of law in such
matters. It was the forerunner of the Court of Ex¬
chequer. 3
1 See above, p. 52.
2 Quite naturally Domesday Book was kept at Winchester
3 For the Exchequer as a financial
the early Norman longs, see below, pp.
ibid., pp. 174-177.
uigamsarion succeeding this one of
306-312; on the Court of Exchequer,
SECTION IV
THE CHURCH
r T*HE effects of the Norman Conquest upon the English
* church were many and fundamental. It not only
brought the primitive, insular church into closer touch
with continental conditions, but it did this at a time
when centralising tendencies, the exaltation of the papacy,
separation of church and state, and the strengthening of
the former at the expense of the latter were the ruling
influences at Rome and at many ecclesiastical centres.
The Clumac movement had reached its height and was
soon to be surpassed by the Hildebrandine principles,
which, carried to their logical conclusions, would have
made Europe a theocracy. Hildebrand had not become
Gregory VII. in 1066, 1 but was, and had been for some
years, the most influential man in the Roman curia . It
was a time of exceptional opportunity for the growth of
papal influence in Europe, and Hildebrand knew how to
take advantage of it. In France, Spain, Hungary, Bo¬
hemia, and even Scandinavia, local conditions were most
shrewdly used for spreading Cluniac ideas, and especially
for emphasising the authority of the pope—where possible,
in the concrete form of a papal overlordship of the feudal
type; where not, in any form that presented itself. 2
Most significant at just this time were the papal rela¬
tions with the Normans who were establishing them¬
selves in southern Italy. In 1059, Pope Nicholas II.
1 He became pope in 1073.
2 See Stephens, Hildebrand and his Times, ch. vni.
125
126 The Norman Conquest
granted to Robert Guiscard the title of duke of Apulia
and Calabria, but on condition that Robert do him hom¬
age and hold his dukedom of him upon a strictly feudal
basis. In 1064, Pope Alexander II. sent a consecrated
banner to Roger, Robert Guiscard’s youngest brother,
who was engaged in the conquest of Mohammedan Sic¬
ily. It was looked on as something in the nature of a
crusade against the infidel, and, as the conquest of Sicily
had been vaguely taken into account in the negotiations
of 1059, there was an expectation on the part of the pope
of holding the whole of south Italy and Sicily, the future
kingdom of Naples or the Two Sicilies, as a vassal state.
Here were Norman adventurers who won for themselves
a powerful state, with no shadow of legal right save what
may be thought derivable from papal grant and sanction,
and who then became vassals of the church. It seemed
natural for Norman rulers to come into this personal rela¬
tion with the papacy, for Normandy stood for very
advanced ideas in church reform. 1 When, therefore,
at this very time, the duke of Normandy proposed to
conquer England, a country over whose church the
papacy had almost no control and from whose chief
archbishopric the Norman Robert of Jumieges had been
recently and uncanonically driven, it is no wonder that
Hildebrand was interested, and looked on William’s
undertaking as a parallel on a grander scale of that of
the Norman Roger in Sicily.
The word Crusade was not yet heard in the Christian world,
nor was it to be heard till near thirty years later ... but a'
virtual crusade was preached against Harold and his adherents,
and all Europe knew that when William’s shipbuilding should
be ended and he should be ready to sail, his troops would
march to battle under the protection of a banner consecrated
by the successor of St. Peter. 2
* See above, pp. 84, 85.
3 Hodgkin, The History of England from the Earliest Times to the Norman
Conquest, p. 476.
The Church
127
One of William’s chief advisers and his close friend was
Lanfranc, who had been made prior of the abbey of Bee
in 1045 and was later abbot of a great monastery in
Caen, and was thus identified with the most advanced
continental thought on church reform. Lanfranc had
also been for many years famous as a theologian. His
relations with William increased the pope’s expectations
of church reform in England. But the expectations
did not stop with reform. Why should not the Nor¬
man kingdom in England follow the example of the
Norman dukedom in Italy, and guarantee its contin¬
ued co-operation with the pope by the close, vassal
relation?
William had been willing to profit by the moral sup¬
port and the prestige which the pope’s patronage had
lent his undertaking, but he did not intend to allow the
pope to gain any hold over England that would diminish
his own power. His policy was like that of his ancestors in
Normandy, who had favoured a pure and vigorous church
and under whom Normandy had become prominently
identified with church reform, but who had been mas¬
ters of everything in their duchy. About 1076, the
demand, which must have been expected, 1 came from
Hildebrand, now Gregory VII. It was that William
should do homage to the pope for England. The papal
legate, who brought this demand, bore also the request
that the old English payment to the pope, known as
Peter’s Pence, 2 be more diligently collected and sent. Wil¬
liam readily acceded to the latter, but to the demand
that he become the pope’s vassal for England he sent an
emphatic refusal, stating that he had not promised it,
* “It is quite witMn the limits of possibility that, in his negotiating
with Rome before his invasion of England, William may have given the
pope to understand, in some indefinite and informal way, that if he won
the kingdom, he would hold it of St. Peter. In accepting the consecrated
banner which the pope had sent him, he could hardly fail to know that he
might be understood to be acknowledging a feudal dependence.” Adams,
The History of England (1066-1216), p. 49. See ibid., pp. 38-50, for an
account of the effect of the Conquest upon the English church.
2 See above, p. 6o, note 3.
128
The Norman Conquest
and that his predecessors in England had never enterec
into any such relation with former popes.
William’s specific policy with respect to the church it
England is stated in the well-known rules that have
generally been ascribed to him. He would allow no one
in his kingdom to acknowledge a pope as true pope excepl
upon his authority; 1 no letters were to be received frorr
the pope that he had not first seen; the national synod o;
the church was neither to enact nor prohibit anything
which was not in accord with his will; no bishop could
excommunicate or bring to trial any of the king’s barons
or ministers except at his command. Whether these
rules were formulated by William or the chronicler whe
recorded them, 2 there is reason to believe that they rep¬
resent William’s purpose and practice, not only in Eng¬
land, but earlier in Normandy. Their enforcement meant
royal oversight of the relations between England and
Rome and a strict royal control of internal church polity.
This clear-cut, masterful attitude of the Conqueror
undoubtedly had an influence upon the relations of
church and state in England at many later times, and
worked itself into the English tradition that shared in
producing the important anti-papal legislation of the
fourteenth century. 3
Of the changes necessarily wrought in the English
church by the Conquest, enough can be seen in the early
post-Conquest period to make clear the general character
1 In a time of frequent anti-popes, and when the attitude of a country
towards claimants of the papal office might have political bearings, this
was a necessary principle for a sovereign who would really rule.
2 This was Eadmer, who was writing in Henry I. ’s reign. He was one
of the most reliable and intelligent chroniclers of the twelfth century. For
this passage, see Stubbs, Select Charters , p. 96.
3 Why Gregory VII., who must have been offended at what he probably
considered William's ingratitude and bad faith, never used coercive meas¬
ures in order to gain from the Conquest the advantages which he had
looked for, is an interesting question. The answer probably lies in the
greater importance the contest with the Emperor must have had in the
eyes of a pope of that period. And the practical difficulty of dealing with
so distant a country as England, filled with the traditions of an independ¬
ent church and having such a self-willed sovereign as the Conqueror, must
have been great.
The Church
129
of continental influence; but it created some conditions,
the results of which to church and state showed them¬
selves but slowly. The old problem of the relations of
the two English archbishops 1 faced Lanfranc as soon as
he became archbishop of Canterbury. While his author¬
ity was questioned in the province of York, he could not
carry out the reorganisation and reform w T hich seemed to
him imperative. That province coincided roughly with
the old Danelaw, the part of England that, under Edwin
and Morcar, had held aloof from Harold, and was the
hardest for William to subdue. It threatened the unity
of the church as well as the state. William naturally
favoured the claim of Canterbury; the question was
referred to Pope Alexander II., who, however, refused to
decide and sent it back to an English council. In 1072,
a council was held that judged unequivocally for Can¬
terbury. As the decision was based on historical grounds
and much documentary proof was adduced, it seems
likely that it was intended to be final. 2 Though this was
far from the case, yet it settled the matter for Lanfranc’s
lifetime 3 and gave him his chance to deal with the church
as a whole.
As Norman barons were given the lands of Saxon earls
and thegns, so Norman prelates filled the vacancies in
the English church, and many vacancies were made for
them. During the first three or four years after the
Conquest, the church was left quite undisturbed; here
as elsewhere it was William’s disposition to let things
1 See above, p. 60, note 2.
2 The documents were, for the most part, forgeries by Lanfranc. See
Adams, The History of England (1066-1216), p. 44, and Bohmer, Die TaX-
schungen Erzbischof Lanfranks von Canterbury, cited by Professor Adams.
3 It was again violently disputed in the reign of Henry I. In 1127, the
real matter at issue was dodged by the archbishop of Canterbury’s apply¬
ing for, and receiving, the office of papal legate, on the basis of which he
could exercise authority over the archbishop of York. This proved the
final, though logically unsatisfactory, solution of the problem; for in 1221,
Stephen Langton, archbishop of Canterbury, succeeded in establishing it
as a principle that the office which ^he held necessarily carried with it the
legatine power, and that an archbishop of Canterbury^ was papal legate
from the moment of the pope’s confirmation of his election.
130
The Norman Conquest
remain. But it became clear to him and to Lanfranc
that a general overhauling of the church was needed.
Probably they did not at first realise how serious were
the differences between the English church and that
which they had always known; its ignorance and its mar¬
ried clergy must have surprised them as much as its
archaic customs and its isolation. About Easter of 1070
a council met, at which three papal legates were present.
The removal of Stigand, archbishop of Canterbury, whose
irregular supersession of Robert of Jumieges had helped
win the pope to the support of William, was its first
work. From this beginning, the process of displacement
and filling of vacancies went on rapidly until, at the end
of the year, only two or three English bishops were left.
While the reign of William covered the period of the
great conflict between Gregory VII. and the Emperor
Henry IV. over the manner of investing prelates, Wil¬
liam did not abate in the least his part in the ceremony. 1
With this wholesale creation of Norman bishops and the
consecration of Lanfranc as archbishop of Canterbury
in August of the same year, the transformation of the
English church was well under way.
In the early years of William’s reign there was some¬
what the same merging of church synod in state council
that prevailed during much of the Anglo-Saxon period.
But such a confusion was contrary to the continental
distinction between church and state, and one marked
change is to be seen from the start: whereas the assem¬
bly might be summoned by the king, and barons as well
as clergy attend, the final decision in church matters
lay with the clergy. The church made its own laws. In
the course of time this real legislative independence
1 The _ compromise on the ceremony reached between Henry I. and
Anselm in 1106 did not mean that the king gave up at all his power really
to determine who the bishops should be. In this connection should be
remembered the double position of bishops who were now not only great
prelates but also vassals of the king holding baronies from him. Many of
the abbots were his feudal tenants-in-chief also, but the king did not so
generally interfere in their choice. They were usually chosen canonically
by the monks.
The Church
131
reflected itself in the personnel of the legislative body
and the synods were attended by clergy only. 1 While
this change was taking place, there was being created the
practically new diocesan synod. This was a democratic
assembly of the clergy of the diocese. It w r as important
at a later time in connection with the origin of the rep¬
resentative system in Convocation. 2 3 *
p~Soon after 1070, came William’s famous edict separating
f the lay and ecclesiastical jurisdictions; 5 it withdrew from
the local popular courts all matters touching a breach of
the ecclesiastical laws and transferred them to courts held
by the bishops. Perhaps this was the most striking and
sudden introduction of continental practice. But changes
were coming fast. When the new bishops and abbots re¬
ceived their endowments of land, it was made clear that
a part of the land was held as a barony; that is, the bishop
or, in most cases, abbot held land as a vassal of the king,
and the number of knights owed from each allotment was
fixed. Thus the English prelates came to have two
clearly distinguishable sides, the feudal and the ecclesi¬
astical, that one usually associates with the medieval
clergy. The new bishops also conformed to continental
practice in the matter of residence. The rural seats
were abandoned and the bishops lived in the largest
towns in their dioceses. The urban seats required more
attending clergy, and a development and better organisa¬
tion of the cathedral chapters resulted. The new bishops
moved about less and came in less personal contact with
the people of their dioceses, a change that came naturally
from their continental training and baronial rank.
The effect of the Conquest on the parish priests was
marked, though more gradual. The marriage of priests
1 Adams, The History of England (1066-1216), pp. 44, 45 - ^ 13 ^ter-
esting to note, in view of later history, that under Henry I. the Arch¬
bishop of Canterbury began to hold his provincial assembly at the same
time that the king held his court. See below, p. 379.
2 See below, p. 374. „ „. ^ ^ , ..
3 A. and S., document I. A discussion of this Ordinance and its relation
to later judicial history will be found in Part III., § I., 5 *
132
The Norman Conquest
was common before the Conquest, notwithstanding some
attempts at reform in the time of Dunstan; and the ordina¬
tion of sons of priests, a dangerous abuse, looking as it
did towards the formation of a clerical caste, was not un¬
common. Celibacy of the clergy was a leading principle
in the Cluniac programme. Far-sighted church reform¬
ers saw that the transmission of church property by
heredity and the building up of family interests would
work against the undivided devotion to the church and
the centralisation under the pope which they desired.
This might seem, then, a natural place for Lanfranc to
begin his reforms and push them with vigour. But he
was very shrewd and moderate in his dealings with the
lower clergy. By ruling that for the future no priests
should marry and no married clerks be ordained, he ac¬
complished his end slowly and without upheaval. The
Conquest unquestionably resulted in bringing the lower
clergy under better order and control.
In all countries where the reform movements had taken
root it had often come to pass that the right to present to
the parish church was vested in some neighbouring mon¬
astery; usually one of the monks received ordination for
this purpose, and the church in question was said to be
“reformed.” In this way the monastery gained nearly
complete control over the income of the living and over
the incumbent. This undermined the power of the bishop
and tended to make the priest the servant of the mon¬
astery. It was part of the long conflict between the
secular and regular clergy, in which the latter, whose
interests were always identified with centralisation and
the papacy, were strengthened by every monastic revival.
In England, lay patronage had been almost universal
before the Conquest, 1 although a few parishes had been
“reformed.” After the Conquest, many lay patrons,
with their continental penchant for making pious gifts to
monasteries, parted with their rights. This and the gen¬
eral effect of continental ideas upon the church depressed
1 See above, p. 6i.
The Church
m
somewhat the status of the parish priest, who, before
the Conquest, ranked with the thegn in the social scale.
Lay patronage suffered many invasions in the following
centuries. This change, like other ecclesiastical tenden¬
cies of the time, worked to break down, or prevent the
growth of, any national feeling in the church.
These reform movements had had their source largely
in monasticism. So naturally the English monasteries
underwent a change and renewing of life after the Con¬
quest. The appointment of abbots from the continent
who brought in the new standards of monastic life, the
struggle of the monasteries to free themselves from episco¬
pal control, and the founding of colonies of the great
Cluniac Congregation 5: ’ w T ere immediate changes. But
England was now open to all continental developments;
one after another, the new monastic orders of the twelfth
and thirteenth centuries were brought in and most of
them grew vigorously.
In general the Conquest incorporated England closely . . .
with that organic whole of life and achievement which we
call Christendom. This was not more true of the ecclesiastical
side of things than of the political or constitutional. But
the church of the eleventh century included within itself
relatively many more than the church of to-day of those
activities which quickly respond to a new stimulus and reveal
a new life by increased production. 1
1 Adams, The History of England (1066-1216), p. 47.
PART III
The Period of Constitution Making
i100-1485
135
INTRODUCTORY STATEMENT
P ROWING out of Anglo-Saxon and Norman material,
^ material brought together by the shock of conquest,
English governmental institutions entered upon their
great period of growth with the twelfth century. In the
last four centuries of the middle ages there were sketched
out most of the main features of England’s judicial, ad¬
ministrative, and legislative systems . 1 There followed
a time of developing and testing, of growing political self-
consciousness, of the entry of political idealism into men’s
purposes. But the middle ages was the time par excel¬
lence of structural growth in English government. It was
the time also when whatever degree of self-government we
have attained in modem times was largely made possible
through the enforced participation in government work
and responsibility of practically the whole English people.
It is needless to insist on the well-known fact that in
England there have never been sharp distinctions among
the judicial, executive, and legislative departments, surely
not in the immature middle ages. Yet no government
mature enough or important enough to study fails to make
some distinctions in practice along just those lines. How¬
ever, for a period when everything overlapped and almost
none of our modem categories were in the minds of the
people, the writer is conscious all the time of the artifi-
^ 1 The great institution whose making belongs almost wholly to modem
times is the cabinet system of government, the principle of ministerial
responsibility. But even here the problem was seen in the middle ages
and some notable attempts made to solve it. And it is of course in modem
times that Parliament—at first aristocratic, but since the Jate nineteenth
century controlled by the people—has gained its final victory over the
king.
*37
138 The Period of Constitution Making
ciality, the falseness of any scheme of arrangement, logical
or chronological. But he must either not write at all or
choose an untrue scheme and trust to cross-references
and the intelligence of the reader. There is some justifi¬
cation in taking the courts first, for so much was done in
the twelfth century in developing the king’s court and
founding the common law, though much was left for the
thirteenth and even later centuries . 1 The great, non-
specialised power of king and Council, interpenetrating
both courts and Parliament, will be treated next, and in
that connection the organs of administration through
which central executive authority operated, and the all-
important governmental work of the people in the locali¬
ties under the king’s command. But the barons fought
to control the king and Council, using and developing the
principle of the supremacy of the law;' and the barons
often believed and often made others believe that they
spoke for the nation. Thus the examination of a new,
extra-royal source of authority enters here and the begin¬
nings of limited monarchy. Parliament, dealt with third,
was becoming recognisable as such by the early fourteenth
century; and Parliament—made by the king and used
by him for his own purposes and, like most early features
of government, largely judicial in its work—had, before
the close of our period, shown that it could upon occasion
draw to an issue with the king and embody an authority
outside him, and also that its future lay in the field of
legislation.
1 “Of all centuries the twelfth is the most legal. In no other age, since
the classical days of the Roman law, has so large a part of the sum total
of intellectual endeavour been devoted to jurisprudence.”—P. and M.
1., iii. “In the natural course of all constitutional history the judicial
precedes the legislative.”—Shirley, Preface to Royal Letters [Rolls Series]
11., p. xviii.
SECTION I
LAW COURTS
i. The Central Common-Law Courts, the Circuit
Courts, and their Procedure.—As soon as the early dis¬
order resulting from the Norman Conquest had subsided,
the attempts to bridge the gap between central and local
government began. Kings who had a conquered country
before them, who felt their strength, would not be long
in finding occasion to make themselves felt at every point.
William II. brutally and directly seized wealth and power.
Neither he nor his famous minister was a statesman, and,
although they accomplished some things of importance
in their application of feudal principles to the church
and in developing the details of feudal obligation , 1 their
expedients, for the most part, appear gross and temporary.
A king and a minister of a different sort followed them.
The combined work of Henry I. and Roger of Salisbury,
his justiciar, was fundamental. Their aim was the
orderly, peaceful, and efficient government of the whole
country and the strengthening and aggrandising of the
central power.
The king had more work to do and the king acted offi¬
cially through his court. Hence this feudal council felt
keenly the pressure of business. In the earlier reigns, it
had been a comparatively simple and undifferentiated
body/but as it had more to do it developed. This de¬
velopment was the institutional manifestation of a grow¬
ing activity and effectiveness of the central power, and
1 See above, p. 121.
m
140 The Period of Constitution Making
was along four main lines. First, the more permanent
group of king's counsellors 1 became a more regular and
recognised body. Second, a classification of business
which had probably begun in the preceding reigns re¬
sulted in two sessions of this body spring and fall—with
an organisation and perhaps a membership specially
suited to the work—for financial business, to receive the
revenue brought from the counties by the sheriffs. It
was the early Exchequer. 2 Third, to give better atten¬
tion to the king’s interests in the localities, he sent out
members of his court from time to time on circuits,! or
4 ‘iters,” that they might from close, personal inspection
accomplish what they could not from a distance. Fourth,
the judicial work of the court began to extend beyond cases
in which the king or its members were personally con¬
cerned, and limitless possibilities of judicial growth were
opened when civil suits between man and man began to
be^enteija.iued. The two last r named developments need
further discussion here.
The practice of sending members of the court into the
localities to transact the king's business was fitful and
uncertain at first and was used only when there was some¬
thing exceptional to be done; but before the end of the
reign it had become an established custom. 3 The things
that these itinerant members did were the same in general
character as those done by the central body; they looked
after wardships and escheated property, inspected arms,
took oaths of fidelity to the king, saw whether any one
had left the kingdom or built a new castle, saw that the
king had his rights in such judicial matters as he might
be concerned in, attended to all matters touching the
royal revenue—in short, they did all the royal business
1 See above, p. 119.
. “ Ibid., p. 124. The primitive king’s court transacted any kind of
king’s business just as it happened to come up. Pressure of work taught it
the economy of time and labour in doing all of' one kind at one time.
Financial business was the first so classified."'' w "“ ,< '" ' ’ ‘ ’
} There were occasional instances of this practice in the earlier Norman
reigns and even before the Conquest. For an instance in the reign of Wil¬
liam II., see A. and S., document 6.
Law Courts
141
that they were instructed to do when they were sent
out. As it has been aptly expressed, they carried the
king’s court down into the locality and did a branch busi¬
ness there. They remind one strongly of Charlemagne’s
missi, and though they were probably not institutionally
derived from these, 1 the same general causes brought them
forth. Charlemagne was suspicious of the loyalty and
efficiency of his counts, and the missi were to check and
supplement the counts’ work. Henry I. was suspicious
of the sheriffs, and the English missi were to make known
or remedy the sheriffs’ shortcomings. These king’s mes¬
sengers were soon known as itinerant justices, but the
word justice must not be understood to mean that their
work was wholly judicial. It was nearly two centur¬
ies before that was the case. Itinerant justices might be
sent out on purely judicial business, and toward the end of
Henry I.’s reign were probably so sent with some regu¬
larity; but their usual work was of a general administra¬
tive sort.
The judicial work of either the Saxon witan or the early
Norman king’s court was small; it was confined to “great
men and great causes.” Many cases in which the prop¬
erty rights of the king were more or less directly con¬
cerned would come up for trial in the local courts. A
few instances are known in which, even before the Con¬
quest, the king sent a representative into a local court or
imposed his order upon that court to the end that a matter
in which he was involved might be speedily and satis¬
factorily concluded. After the Conquest, this royal
interference was more frequent. Logically, the next step
in extending this kind of interference would be to draw
the case entirely out of the local court and try it in the
king’s court, or what was virtually the king’s court owing
to the presence and influence of the king’s representatives.
And so itinerant members of the king’s court might be
1 Professor Hazeltine believes they were. See bis Introduction (p. xiii)
to Bolfand's The General Eyre. He believes there was a direct line of con¬
nection through Norman practice brought into England at the Conquest.
This certainly has not been proved.
142 The Period of Constitution Making
sent to perambulate a district trying royal pleas. 1 For
doing most of their work, but especially the judicial, the
itinerant justices probably had the counties before them
in specially full meetings of the county courts. 2
But the king might become interested in a case owing
to the position or influence of one of the parties, and
where he had no property concern whatever. The
plaintiff, despairing of speedy or satisfactory justice in
the local court, might be in a position to secure royal
interference. The king was restrained by no theories
about the boundaries of jurisdiction. He felt him self the
s ource of la w and h e was_ strong. and hejw^uld^terfere
wflere^t here seemed to him reason to do so . As such
interference became frequent, the payment of a sum of
mo ney by the plaintiff was th e commo ^
secu ring it ? WEenthe intervention had been bought,™"
the king sent an order to the defendant bidding him right
the alleged wrong. If thi s order were disobeyed , the
result was to bring the defendant before the J^glsuiQurt^
to show cause. This was a technical result, for the king’s
6r3erTiidbeen disobeyed, a nd disobedience of the king ’s
order had bee n a reserved crov qi^flga at least as far back
a s the time of Cnutj l It ^amounted to evoking* thecase
from theTocal court, where it would ordinarily have been
tried, into the king’s court. The commoner such a prac¬
tice became, the less likely was the defendant to be awed
by t he royal command , which thus became the first step
injy regular procedure . Also an order might be purchased
which directedH ielqrd of the pri vate court in which the
case was to be tried t oTdom u^ice to' ^Sie^aoplicant, and
which added thejbhr^at tha t if he did not the km g’s sheriff
would. T hese practic es fom ^adowedbo^TH^ writ of
right and_thc^jvri The royal order, being
f ’ ' K
1 See A. and S., documents 2 and 6.
# 2 Whenever the king dealt with the county it was with a unit, almost
like a corporation, and it was identified with the county court. This
identity is reflected in the language of the time; comitatus , the word always
used, may be translated either county or county court.
3 See below, p. 148.
JLaw Uourts
143
form al and i mpo rtant, was writtenHence it was called
a wr it, a name which, up to that time, hadborne no special
legal sense. These cases jwere. all civil and the rule be¬
came established that every c ivil case tried in the kingls
courts mu st originate wxtE~a writ., 1
With the opening of this possibility, men would try
to get their cases into the king’s court if there were any
advantage to be gained by the change. There was an
advantage in the better law and better methods employed.
The old procedure of the local courts was clumsy and
inflexible; owing to its formalism, it often failed to render
justice and was not fitted to meet the changing conditions
which followed the Conquest. The king’s court began
to supply what was essentially an equitable jurisdiction;
it was free from the trammels of the old formalism and was
doing justice by the most direct means possible. It was
a court made up of Frenchmen, where the French language
was used; but it did not simply transfer French or Norman
law to England. It made use of any principles, French
or English, which suited its need, and it did not hesitate
to strike out on new lines. 2 But men who wished to have
1 For a primitive writ belonging to the reign of Henry I., see A. and S.,
document 9.
2 “Of the law that this court administered we know little, only we may
guess that in a certain sense it was equity rather than strict law. On the
one hand the royal tribunal cannot have held itself straitly bound by
the old English law; the men who sat in it were Frenchmen, few of whom
could understand a word of English. On the other hand it must often
have happened that the traditional Norman customs would not meet the
facts, for a Norman count and a Norman bishop would be quarrelling
over the titles of their English antecessores, and producing English land-
books. Besides the king didn't mean that England should be another
Normandy, he meant to have at least all the rights that his cousin and
predecessor had enjoyed. . . His jurispr udence was “flexib le,”
“occasional,” “dealing with anunprecedenteH^Stafeof^adrs, meeting new
facts by new expedients, wavering as wavered the balance oF power be¬
tw een hi m and h l5 5arons_, capable of recefving'impre ssibns trom withou i,
influenced perhaps by Eombard learning, mdoefgttrfe
surroundings. In retrospect it would appear to a man of HMry’tT.V
daj^aS^something so unlike the laga Edwardi that it must be pronounced
distinctively unEnglish, and therefore distinctively Norman, and Norman
in a sense it was. It was not a jurisprudence that had been transplanted
from Normandy; but it had been developed by a court composed of
Frenchmen to meet cases in which Frenchmen were concerned; the lan¬
guage in which men spoke it was French, and in the end so far as it dealt
144 The Period of Constitution Making
their cases tried in this new court had to pay for the
privilege, they had to buy the originating writs. There
was thus a transaction profitable to both parties. Men
liked to get their cases into the king’s court, for they felt
surer of justice there; the king liked to have them buy
the privilege, for it swelled his revenue.
The central government was in a most vigorous condi¬
tion at the close of Henry I.’s reign. Almost any future
seemed possible for the fertile and adaptable royal court.
But it was a critical point in its history. This central
system was young and lacked the hard and fast qualities
of one of long standing, well known and taken for granted
by the people. It still needed guiding and sustaining.
When these were suddenly withdrawn by Henry’s death
and his successor’s ill-advised quarrel with the adminis¬
trative family, and the country experienced a long period
of civil war and general anarchy, the promising govern¬
mental beginnings passed away. That Henry II. had
a genius for government, that he came to the throne while
his grandfather’s system was still remembered, that he
himself had been trained to understand and appreciate it,
above all, that it had, during the anarchy in England,
been continued and perhaps developed in Normandy by
Geoffrey Plantagenet, Henry II.’s father, were vitally
important conditions of England’s later institutional
growth, especially along judicial lines.
Henry II. was a born lawyer , and his reign stands pre¬
eminent in the legal history of England. When he came
to the throne he saw lawlessness everywhere. His ambi¬
tion, like that of the Norman kings, was to gain for him-
with merely private riglxts, it would closely resemble a French coutume
P. and M. i., 107, 10S.
“Among the most permanent and momentous effects of that great
event” (the Norman Conquest) “was its effect on the language of English
lawyers, for it is not a small thing that a law-book produced in the Eng¬
land of the thirteenth century will look very like some statement of a
French coutume and utterly unlike the Sachsenspiegel, nor is it a small
thing that in much later days such foreign influences as will touch our
English law will always be much rather French than German.”— Ibid.,
i, 87.
Law Courts
i45
self the substance of power, really to rule England. The
first step was to bring the lawlessness to an end; and the
central principle of his reign may be said to have been
th e maintenance of p eace, the JBrptection _qL Jife«-and
property. He did not legislate upon a large scale; new
law came in a more incidental an d unc o nscious way. To
his mind, n^Ia w wa s not needed so much as the enforce¬
men t of the old. Indeed, new law was not a conception
of the times. But he found the old judicial machinery
unfit for the kind of enforcement that he proposed, and
it was not sufficient to renew that of his grandfather’s
time. Henry II.’s great work was the devising of methods
to meet practical judicial needs, and for this he displayed
a genius that has perhaps never been surpassed. So
permanent and fundamental did his new schemes for
enforcing the law prove that they profoundly affected the
body of the law itself, and what is most characteristic in
the English common law and procedure either originated
or was in some way foreshadowed in his reign.
Henry II.’s work has been summarised thus: “The
whole of English law is centralised and unified by the
institution of a permanent court of professional judges,
by the frequent mission of itinerant judges throughout
the land, by the introduction of the * inquest ’ or £ recog¬
nition ’ and original writs as normal parts of the
machinery of justice.” 1 The discussion of this work
may be introduced by briefly describing, in chronological
order (as far as that is known), Henry’s chief judicial in¬
novations. In the Constitutions of Clarendon, 2 1164,
we find a method of determining whether a certain piece
of land, about which there was some litigation pending
between an ecclesiastic and a layman, was a lay holding
or in frankalmoin, 3 whether it was lay fee or alms.
If the latter, the case was to be tried in the church
court; if the former, in the king’s court. Hence the
1 P. and M. i., p. 138.
2 A. and S., document 13, and W, and N*, pp- 370-375.
? See above, p. 101, note 1.
146 The Period of Constitution Making
preliminary question was one of importance and Henry
ordained that it should be determined by putting on
oath twelve men of the locality where the land lay
and causing them to state which it was. But this ques¬
tion might arise when it was preliminary to no
further question about the land, and this method of
determining it developed into a regular action in the
royal courts, known as the assize utrum. It became the
normal action, touching right in land, in use by parish
priests. There is some evidence that before Henry’s
time the same method had been occasionally used, but
he made it normal. In the Constitutions of Clarendon,
Henry also claimed successfully for the royal courts cases
involving the right to present to churches and also debt
cases. He further claimed the punishment of criminous
clerks who had been tried and convicted in the church
courts, but owing to the unfortunate ending of his con¬
flict with Becket he was not able to keep this.
Two years later, he instituted an action far more im¬
portant than the assize utrum. In the disorderly state of
society produced by the preceding reign, violent and un¬
just disseisins were common; men were thrust out of the
seisin or possession of their lands by the strong hand and
left to the doubtful and dilatory justice of the old courts
to recover it. To remove this abuse and bring order into
society, Henry determined to protect possession, as such,
by a summary process in his own court. Suppose A
claimed that without court judgment he had been recently
tinned out of possession by B. A could now obtain a
writ from the king ordering his justices to summon twelve
men of the locality where the alleged disseisin had taken
place, put them on oath, and ask them this question:
Has B since such a time, unjustly and without a judgment,
disseized A of such a holding? If the answer was yes,
A was restored to his possession. To be sure, B may have
had a better right to the land notwithstanding ^4’s pos¬
session of it, but this must be shown in the courts and a
judgment obtained. It was Henry’s purpose to have no
Law Courts
i47
more people turned out of their land except on the basis
of judgment regularly rendered in court. This new
process was known as the assize of novel disseisin. Old
disseisins could not well be taken account of; they must
be within easy memory. Arbitrary dates w~ere fixed
from time to time, all disseisins before which were not
considered novel. The assize of novel disseisin was a pos¬
sessory assize, which means that it dealt only with the
question of possession, not with the question of best
right. This was the first of the three famous possessory
assizes made by Henry. 1 In the document known as the
Assize of Northampton, 2 1176, is found the first mention
of the assize of mort ^ancestor (death of the ancestor).
This assize was to protect heirs, to prevent violent and un¬
lawful confiscations by overlords or others upon the death
of a property holder. The principle contained is this: if
a man died possessed of real estate and some one claimed
that he had had a better right to the property than the
dead man, he could not prevent the latter’s heir from tak¬
ing possession until he had received a judgment in his
favour by regular legal process. The question of fact,
whether the ancestor died possessed of the property, was
answered by the statement under oath of twelve men of
the locality. The third possessory assize had to do with
the presentation of clergymen to livings. Such presenta¬
tion was known as advowson. If a question arose as to
which of two persons possessed the advowson of a certain
church, twelve men of the locality were summoned and
put on oath to tell who presented to this church last, and
he who had done so was given the privilege of presenting
this time. But the claim might be made that, although
he did present the last time, he had had no right to. In
that case, remedy might be sought in the king’s court
also; but the determination of a question of best right was
1 Detailed study of the judicial history of the century following the Con¬
quest, both in England and Normandy, shows foreshadowings of this and
the other possessory assizes; yet Henry’s share in their making is shown
to have been a commanding one.
2 A. and S., document 16, article 4
148 The Period of Constitution Making
likely to be a long process, and, in the meantime, the
church must neither be kept vacant nor he who possessed
the advowson, in virtue of his having made the last pre¬
sentment, be turned out of his possession. The new ac¬
tion in the king’s court by which the possession of the
advowson was determined was known as the assize of
darrein (last) presentment .*
Acting on this same principle of protecting possession
and very likely at about the same time that the novel
disseisin was instituted, Henry began to interfere in ac¬
tions determining best right. He declared that no man
could call in question a tenant’s right to his free tenement
without beginning his proceedings by obtaining a royal
writ. This writ was known as the writ of right, and, al¬
though it did not necessarily bring the trial of the case
into the king’s court, it gave the tenant decided advant¬
ages and extended a royal procedure. The writ of right
was irregularly in existence before this. 1 2 * The new thing
that Henry did was to give the tenant his choice between
accepting the demandant’s offer of the wager of battle, or,
as it was termed, putting himself upon the grand assize.*
By this latter mode of proof, the question at issue was de¬
termined by the sworn statements of knights of the neigh¬
bourhood taken before the king’s justices. The writ
prcBcipe, 4 which came into use in the same reign, marks a
still further royal interference in proprietary actions. In
it, the king ordered the tenant to restore the land which
the demandant claimed or, if not, to appear in the king ’s
court “to show cause wherefore he has not done it.” 5
1 For illustrations of the three possessory assizes, see A. and S., document
24, and W. and N., pp. 60-64.
2 See above, p. 142.
. 3 Tiie wo fd assize, originally denoting a sitting or session, was at this
time assuming restricted and somewhat technical meanings. From a ses¬
sion of the king’s court, it passed to the set of decrees issued at that ses¬
sion, then to certain actions instituted by those decrees, and finally to the
procedure by sworn inquest which was the distinguishing feature of those
actions.
4 A. and S., document 20, and W. and N., pp. 58, 59.
s The origin of this writ is to be found in the early royal rights, the
cases reserved for the king’s own justice. Well known lists are in the
Law Courts
149
Henry II. seems to have issued this writ whenever he
chose, and in this way an action which involved the ques¬
tion of best right to land could be brought bodily into
the king’s court. In the proprietary actions concerning
advowson, that we have seen drawn into the royal court,
the same choice w r as given the possessor as in the case
just considered. In these instances, the king was getting
control of, and changing, old actions; the possessory
assizes were newer.
Henry II.’s third great judicial innovation w T as the use
in his courts of a new method of learning of suspected
criminals. The first mention of the method in this reign
was in another connection. In article 6 of the Constitu¬
tions of Clarendon, the king was correcting what he con¬
sidered an abuse in the church courts, as well as providing
a means for bringing to trial those whom individuals dared
not accuse. Men were not to be brought to trial on
unsubstantiated rumour, but if some individual were not
ready to come forward and make the accusation, twelve
freemen of the suspected man’s neighbourhood were to be
put on oath before the bishop and state their belief as to
whether he ought to be tried for the matter in question.
The sheriff, at the bishop’s request, was to bring these
men before him. Two years later, in the Assize of Claren¬
don, 1 this machinery of accusation received its epoch-
making extension. It is a notable instance of Henry’s
boldness and originality in dealing with the difficulties
and disorders which he found in the country. The prob¬
lem of bringing criminals to justice had remained to this
time unsolved, except for the old method of private ini¬
tiative—the appeal . The wronged man or his relatives
could appeal the suspect and the courts would take
cognisance of the case when thus started. There was the
Leges Henrici Primi and in Cnute’s laws. This one was the pbicitum
brevium vel preceptotuw tegis coittewiptoTutt*. It was a royal offence to dis¬
obey the king’s writ. Hence if the king orders A to restore land to B and
A disobeys, it is a case to be tried in the king’s court and will turn on the
question of the better right to the land.
1 A. and S., document 14, and W. and N., pp. 375 ~ 3 8 °*
150 The Period of Constitution Making
tacit assumption that crime concerned the individual and
not society; and through bribery, intimidation, or, in the
case of manslaughter, the indifference or lack of kin, very
many criminals were not brought to trial. Sooner or
later every advancing state has reached the point where
it recognises that crime wrongs society and that the prose¬
cution of suspects cannot be left wholly to private initia¬
tive. There is special interest in the way in which this
forward step was taken in England. Crime of all sorts
had increased with impunity in Stephen’s time, and here
the peace problem pressed upon Henry. With his hands
freer from continental matters than before, he now ad¬
dressed himself to it. His method was to make regular
in his own court the already slightly used machinery for
finding suspected criminals, and to impose new and cruel
punishments upon those convicted. Quick retribution
was to impend over every murderer, robber, or thief, or
those who harboured such. Twelve men from each hun¬
dred and four from each vill were to give information on
oath, based either on their own knowledge or on common
report, whether there were at that time in their localities
suspected murderers, robbers, thieves, or the receivers of
them. The men thus named were put to the old form
of proof, the ordeal. The Assize of Clarendon, whose
first article instituted this new procedure in the king’s
courts, was drawn up in view of an immediate journey of
the justices throughout the land. But the new method of
detection was not confined to the use of the justices; the
sheriffs were also to use it, and, when the old shire court
had declined and lost its criminal business, it became the
basis of a new, but limited criminal jurisdiction of the
sheriff. 1
In the Assize of Northampton, 2 ten years after the
Assize of Clarendon, the king was still fighting crime by
the same method, but forgery and arson were added to
the crimes that were thus being drawn into the royal
1 See below, pp. 181, 182.
2 A. and S., document 16, and W. and N., pp. 56-58.
Law Courts
15*
courts and the punishments were still more severe. It
was through these Assizes and the formation of the com¬
mon law in the period following, that the idea of felonies,
the specially serious crimes, was taking shape. The list
came to be homicide, arson, burglary, robbery, rape, and
larceny. Later there were other crimes made felony by
statute, and the death penalty, except in the case of
petty larceny, became the rule. 1 It should be noted
here that the men who presented suspects were not really
accusers; they did not commit themselves to a belief in
any one’s guilt. Nor were they witnesses; they gave
no testimony about crime. They simply constituted a
searching means of getting at popular report and belief;
this they were under oath not to conceal, and if such re¬
port reached justice or sheriff through another channel
they were liable to fine for non-fulfilment of their duty.
The representatives from the vills were probably largely
from the villein class; they would know the suspects of
their own class and be posted on all local rumour. They
reported to the twelve men of the hundred, most of whom
would be knights, and the latter made what use they chose
of this information in the final statement to the justices.
In this summary of Henry II.’s judicial changes, two
institutions have been mentioned that need further ex¬
planation, the writ and the group of neighbours put under
oath to answer questions at the royal command. A few
words will suffice for the first. The general meaning of
the word writ in the reign of Henry I. has been noticed;
also the fact that it had begun to have a special, legal
use in connection with the written orders sent out by the
king to ensure and hasten justice in cases in which he was
interested. 2 3 In Henry II.’s reign, the writ was a recog¬
nised institution and began to differentiate and become
technical. In each of the possessory assizes, the first
1 On the distinction between'clergyable and non-dergyable felonies, see
below, pp. 251, 252, note 4.
3 See above, pp. 142, 143.
152 The Period of Constitution Making
step was to obtain from the king a special form of writ
applying only to that particular action. There were also
writs suitable for opening each of the proprietary actions
over which the king’s court was getting control. A pro¬
prietary action for land, the commonest and most import¬
ant, was begun by the writ of right or the writ pracipe.
As actions became regular and frequent, their appropriate
writs became stereotyped; but as new actions passed under
the jurisdiction of the king’s court, new writs were made
to suit them, which, in the course of time, became stereo¬
typed also. These regular writs were known as writs of
course. Writs were sold and became an important source
of royal revenue; many people were willing to pay for the
better law and procedure of the king’s court. The draw¬
ing up and issuing of writs was an important function,
which, already in the twelfth century was an important
part of the work of the king’s secretariat, the Chancellor
and his staff. 1 Every civil case tried in the royal courts
originated with the purchase of the appropriate writ;
hence these writs have become known as original writs to
distinguish them from writs issued for any purpose after
the actions had begun. 2 The manufacture of new writs by
the Chancery was, under a strong king, an adaptable and
efficient means of extending the royal jurisdiction. 3 In
this lies the great importance of the original writ in the
judicial history of the twelfth and early thirteenth cen¬
turies.
1 See below, pp. 312, 313.
2 In the thirteenth century there grew a large class of writs known as
writs of trespass. This was because civil wrongs, “torts,” were regarded
as falling within the limits of a breach of the king’s peace. “Any wrongful
application of force, however slight, can be said to be made vi et armis et
contra pacern domini Regis. 1 * For illustration, see Maitland, C. H. E. t
pp. 113, 114.
3 “The metaphor which likens the chancery to a shop is trite; we will
liken it to an armory. It contains every weapon of medieval warfare from
the two-handed sword to the poniard. The man who has a quarrel with his
neighbour comes thither to choose his weapon. The choice is large; but
he must remember that he will not be able to change weapons in the middle
of the combat and also that every weapon has its proper use and may be
put to none other. If he selects a sword, he must observe the rules of
sword-play; he must not try to use a cross-bow as a mace.”—P. and M.,
ii., 561*
Law Courts
153
The group of neighbours who gave the king information
under oath will be recognised as a primitive jury. It is
necessary here to make some inquiry into the jury's
origin and early history. When William the Conqueror
wished information on some local matter, commonly
something about the value of land as bearing on the royal
revenue, he sent an official to the locality or an order to a
local official to summon a number of men -who would be
likely to know, put them on oath, and question them.
Their answers were written down and sent to him. This
process was known as inquisitio, that is, inquest or inquiry.
It was thus that William gathered the vast mass of local
data contained in Domesday Book. This sworn inquest
was the institutional germ out of which the modem jury
and much else of governmental interest have grown.
It has naturally been a question of great interest
whether William made use here of an institution which "was
Anglo-Saxon or one which he brought with him from the
continent. English scholars have been loath, in this, as
in the case of some other institutions, to abandon a na¬
tive origin. But at present no scholar denies that the
jury came from the continent; William was simply con¬
tinuing to use in England a machinery for getting local
information which had been used in Normandy. Like
many other Norman institutions, this had come from the
Frankish state. Itis known that the Carolingian sovereigns
of the eighth century used this method in learning about
lands and permanent rights. Between this eighth century
Frankish institution, then, and that of the first Norman
king of England there is an undoubted line of connection.
If the inquiry into origins be pushed a step further, a
problem is encountered. It may be said to begin with
that, like all Frankish institutions, the sworn inquest was
either primitively Teutonic or else Roman in origin. All
Teutonic peoples, of whose early customs we have any
considerable knowledge, had institutions which bore a
superficial resemblance to the one under discussion. In
dealing with Anglo-Saxon courts three institutions have
i54 The Period of Constitution Making
been briefly described that must be mentioned again here. 1
These were the suitors to the local courts who acted as
judges, the compurgators, and the sworn witnesses. Their
analogues are found among other Teutonic peoples, and
in looking for a possible germ of the jury these institutions
first attract attention. Here were representative men of
the community, and, in both civil and criminal suits,
their neighbours’ fate lay largely in their hands. Are
they not, then, like a jury? Looking at the matter in an
untechnical way, there is an element of truth in the sug¬
gestion. The developing English jury of the thirteenth
and fourteenth centuries derived some of its sanction and
spirit from the Teutonic notion of a popular and local
source of justice, which doomsmen, 2 compurgators, and
sworn witnesses all illustrate. But this is a matter quite
apart from the question of the jury’s institutional origin.
In returning to that, it is useful to contrast briefly the
sworn inquest of William I. with these three institutions.
The suitors of the local courts were judges largely in their
discretionary application of the proofs to the cases in
hand. 3 The compurgators were men who swore with
the plaintiff or defendant, basing the oath however upon
no knowledge of the facts of the case. The witnesses were
brought into court to swear to a set formula, the nature of
which they knew in advance. 4 The inquest was a royal
1 See above, pp. 17, 18, 21-23.
2 The name given to the group of suitors who often exercised the judg¬
ing function for the whole body.
3 “When both the jury and the body of doomsmen are already estab¬
lished institutions, the transformation of doomsmen into jurors may be
possible, and. this transformation may actually have taken place in our
manorial courts. . . . But that the jury should have originally grown
out of a body of doomsmen seems almost impossible.. ... A verdict,
even though it may cover the whole matter that is in dispute between the
litigants, even though* it may declare that William has a better right to
Blackacre than has Hugh, differs essentially from a judgment, a doom
adjudging the land to William. Even though the form of the verdict and
its conclusive force be such that the judgment must follow as a mere mat¬
ter of course, still between the sworn verdict and the judgment there is a
deep gulf.” P. and M., i., 139.
4 “The witness is called in by the party—the party to whom the proof
has been awarded—to swear up to his case; the juror is called in by the
sheriff or by the court to swear to the truth whatever the truth may be."
Maitland, C. H. E., p. 119.
Law Courts
i55
institution by "which men of a locality answered upon oath
questions put to them by some one acting under the royal
command, and about a matter, usually relating to land
and revenue, in which the king was interested. The
contrast is obvious. It cannot, perhaps, be dogmatically
denied that the early Frankish kings had adapted to their
own use and developed the Frankish institution that corre¬
sponded to the Anglo-Saxon sworn witnesses, but there
is no evidence of it. There is no possibility of the in¬
quest’s having come from either of the other two in¬
stitutions.
There existed, however, in the later Roman empire a
custom the same in all essentials as the one whose origin
we are discussing. It went by the same name, inquisitio,
was used by the central government, and for the same
general purpose. For the interval between the fall of
the empire and the eighth century no evidence has been
found, so that it cannot be asserted positively that this
was its origin; but in view of the amount of borrowing of
this sort that is known to have taken place, it is more
probable that the Frankish kings took the institution
from Rome in just the form in which they so long used it
than that they made over a practice of the native, local
courts into an instrument of central power.
The regret which some writers have evidently felt at
having to abandon an Anglo-Saxon, and even a Teutonic,
origin for the jury seems uncalled for when the matter is
properly considered. The sworn inquest was an existing
institution which English kings, courts, and people
chanced to seize upon, and which, in the course of cen¬
turies and through many unforeseen influences, they made
over into something that was in many respects radically
different. The primitive inquest was a piece of admin¬
istrative machinery which had nothing to do with a court
system, central or local; throughout its known history,
it had been an instrument of royal power, and probably
often, as in the hands of William the Conqueror, of royal
oppression. The matured judicial jury has done its
156 The Period of Constitution Making
service and won its renown in safeguarding the liberties
of the people from the encroachments of monarchy; while
through the jury outside the courts the king drew the
people into all sorts of public work and responsibility, 1
even the House of Commons growing largely out of the
jury principle. On the continent, the sworn inquest had
no such development. From Charlemagne to William the
Conqueror, it had remained almost unchanged, and every¬
thing which has made it a notable or admirable institution
it has gained on English soil.
There was little change in the inquest until the reign of
Henry II. William I. and succeeding kings had occasionally
used it in connection with judicial matters, 2 but there was
no regularity or special purpose in such use; if the king
were interested in a certain case and wished the facts, he
would use this method, just as in other subjects of local
inquiry. When Henry II. made use of it in determining
whether a disputed holding were free alms or lay fee, he
was not applying it to a new subject-matter; but when
this preliminary procedure in the king's court grew into
the assize utrum , this royal method of learning the truth
necessarily became the most important part of the pro¬
cedure in the new action. The same thing was true of the
other new actions of this reign; and, in the old actions
that were drawn into the king's court, the jury trial be¬
came optional with one or both parties to the suit. 3 It
1 See below, Pt. III., § II., 4, passim.
2 For examples, see A. and S., document 2, and W. and N., pp. 51-55.
3 In this connection arose the technical distinction between assize and
jury. The assizes, i.e. the grand assize and the four petty assizes (the three
possessory assizes and the assize utrum) were perfected by Henry II.
through definite legislation. In them the new procedure by jury— assize
it was called in these cases—-was obligatory. In them the question of fact
was formulated in the original writ and the first step was the summoning
of the jury by the sheriff. In other civil actions in the king’s court, the
original writs said nothing of a jury; but if a question of fact arose in the
pleadings it was optional with the parties whether or not this should be
submitted to a jury— jury here used in a narrower, technical sense to dis¬
tinguish it from assize. This might happen even in the assizes, where, if
through an exception raised by either party the question of fact came to
differ from that stated in the original writ, the parties might consent to
submit it to a jury, and, as it was said, the assize was turned into a jury.
The assizes were limited in number; the great growth of the jury in civil
Law Courts
i57
became quite naturally the normal method of trial in civil
cases in the king’s court, superseding the old proofs.
The jury of accusation, however, the jury which pre¬
sented suspected murderers, robbers, and thieves, seems
something new, for it did not answer the old questions
about property or revenue; it was the same machinery,
but employed upon a different subject-matter. It was
not however new, for, though not the normal use of the
inquest, the Frankish kings of the ninth century had em¬
ployed the sworn statements of men in the localities to
find out about delinquent officials or serious crimes, mat¬
ters that threatened the country’s peace. A use of the
inquest similar to this had at some time passed into the
Frankish church, probably by royal grant; and, in certain
places, this so-called synodal jury had become a well-
known institution. There is no conclusive evidence,
however, that a presenting jury had existed in either
England or Normandy before the time of Henry II. 1 In
the Constitutions of Clarendon, is a provision which sug¬
gests such a jury for cases in the church courts where “the
accused be such that no one will or dares to accuse them.”
actions was through the option of litigants. They had learned its useful¬
ness from the assizes. “In the course of time the jury, which has its roots
in the fertile ground of consent, will grow at the expense of the assize, which
has sprang from the stony soil of ordinance. " P. and M., i, 149.
1 This method of presenting criminals may have been occasionally
used by the Norman kings in connection with matters touching the royal
revenue, for there were fines and confiscations connected with crime.
But Henry II. had a broad peace purpose in addition to his revenue motives.
Regarding the famous and anomalous case of the twelve senior thegms in
the reign of Ethelred II., Maitland says: “ There is however one law
that must cause some difficulty. It is a law of Ethelred the Unready, pub¬
lished, so it would seem, in the year 997 and applicable only to the Danish
district. In it we hear how a moot Is to be held in every wapentake, and
how the twelve eldest thegns are to go out with the reeve and to swear upon
the relic that he puts into their hands that they will accuse no innocent
and conceal no guilty man. Certainly this looks like a jury of accusation;
but the context will make us doubt whether we have here a law of any
generality. There seem however to be good reasons for believing that
some of the Scandinavian nations came by a route of their own to something
that was very like the jury. . . . We cannot say a priori that there is only
one possible origin for the jury, we cannot even say that England was
unprepared for the introduction of this institution; but that the Norman
duke brought it with him as one of his prerogatives can hardly be disputed.”
—P. and M. i., 142, 143.
158 The Period of Constitution Mai
A similar provision, applying to the Norman church, had
been made in 1159. In these instances, Henry was prob¬
ably reviving a custom that had fallen into disuse. The
great thing that he did in the Assize of Clarendon was
to incorporate this decadent piece of procedure in his own
rapidly growing court. 1 Since then, there has always
been in the English court system a jury for presenting
criminals; it was the foundation of the modern grand
jury.
There were thus in the reign of Henry II. three clearly
distinguishable uses of the jury: the old, non-judicia l us%
in which the king employed the sworn inquest tcTget local
information; the trial jury in the civil cases which the
king was drawing into his courts; the accusing jury.
This reign may be regarded as the staHing^oiht of tfife
history of the judicial jury in England. Two main
changes or developments which appeared soon afterwards
have left the institution substantially as it exists to-day.
The first of these was the evolution of the trial jury in
criminal cases; the second, the process by which trial
juries became judges of fact, thus having placed upon them
the most responsible function in court procedure.
The need of a jury to try criminals was distinctly felt
in Henry II.’s reign. When accusing juries presented
murderers and others suspected of serious crimes before
the royal courts, the king found himself unwilling to abide
wholly by the result of the old form of proof, the ordeal.
His object was to rid the country of criminals and he did
not propose to be hindered by an antique procedure which
shifted the responsibility of finding the truth from man
to God. 2 In the same document that made the accusing
1 The sheriff had occasionally acted as crown prosecutor, though almost
all prosecution was left to private appeal. One might expect that the prob¬
lem of prosecution would have been met by building up the sheriff’s activ¬
ities along this line. But a king who instituted the “Inquest of Sheriffs”
would be likely to hunt for some other solution. Instead of trying another
official or group of officials, he turned to the people. For the bearing of
the frankpledge machinery on this matter, see below, p. 181, and for a
discussion of the whole theme of the king’s use of the people in govern¬
ment, Part III, § II, 4.
2 See above, p. 23.
Law Courts 159
jury regular in Ms courts, Henry instructed Ms justices in
these words:
Moreover the lord Mug wills that those who make their
law [i. e. go through the ordeal] and are quit thereby, if they
have a very bad reputation and are publicly and scandalously
decried on the testimony of many lawful men, shall forswear
the king's lands, to the effect that within eight days they
shall cross the sea unless the wind detain them; and with
the first wind which they have thereafter they shall cross the
sea, and they shall never return to England unless by the
grace of the lord king; and there let them be outlaws, and
if they return let them be taken as outlaws. 1
TMs not only showed dissatisfaction with the ordeal,
but gave a Mnt of what might take its place; it was be¬
cause a man’s neighbours believed in Ms guilt that he was
to be banished; and, when neighbours were regularly and
formally summoned to state the facts, there was a trial
jury in criminal cases.
It is impossible to give a detailed account of how the
new procedure grew. Our knowledge of how criminal ac¬
tions were conducted in the late twelfth and early tMr-
teenth centuries is scanty. But tMs was the time of jury
growth; the simple but adaptable inquest machinery was
being used by the king for innumerable purposes, and it
would have been strange if some form of it had not finally
met the new want wMch was felt in the criminal procedure.
1 Article 14 of the Assize of Clarendon. Men so dealt with were not
technically convicted—those convicted by failure in the ordeal were muti¬
lated—but Henry was in effect saying that he was wholly sceptical of
the ordeal as revealing God’s will and that men regarded as criminals by
their neighbours were better out of the country. After ten years’ experi¬
ence in dealing with criminals in his courts, Henry repeated this provision
in substance in the first article of the Assize of Northampton. See A. and
S., document 16, and W. and N., pp. 56, 57. ^ William Rufus had been
equally sceptical about the ordeal, but he did nothing constructive in
the way of supplementing or displacing it. “What’s that? ’’ cried Wil¬
liam, when he heard of certain men who had escaped by the ordeal. 1 4 God
is a just judge? Perish him who henceforth believes it. In the future let
men be answerable to me, not to God.” Eadmer, Historic, Novorum in
Anglia, p. 102.
i6o The Period of Constitution Making
For a long time, there was no conscious creating of a new
form of jury, but a tentative use of one or more of the old
forms. The presenting juries of the townships have al¬
ready been mentioned; it early seemed that such juries
from the four townships adjacent to the scene of the crime
would be a fit body to traverse the presentment which
perhaps they had already had their share in making.
The duties and methods of a new local official, the coro¬
ner, 1 may have furthered, perhaps suggested, this prac¬
tice. The coroner early ceased to be a justice, even in
petty cases, but his right to impanel a jury remained a
relic of his original and higher position. He became a
keeper of the pleas of the crown, 2 by which, was meant
that he held preliminary inquiries and kept records that
were to be used later by the visiting justices. Now the
juries which the coroners had used in such inquests were
supposed to have made some investigation of the crimes;
they would naturally have been drawn from the adjacent
townships, and might be resummoned to give their infor¬
mation to the justices. It was also not uncommon to
hold the accusing jury of the hundred to answer concerning
the guilt or innocence of those whom they had presented.
1 See below, pp. 196-198.
2 The idea of crown pleas appears for the first time with any distinct¬
ness in the reign of Cnute. A small number of serious cases was reserved
for the king, but it is hard to find a principle upon which the choice was
made, except, perhaps, a consideration of the revenue to be gained from
the fines and the limits imposed by the old conception of the king’s peace.
The Norman dukes also had their reserved cases. In the private and un¬
authorised collection of laws in Henry I.’s reign, known as the Leges Hen -
riti Primi, there is a long and heterogeneous list of crown cases, and, by
the large grants of jurisdiction which they sometimes made, the Norman
kings of England surely implied that they possessed an inclusive jurisdic¬
tional power. With the drawing of the important criminal cases into the
royal court in the reign of Henry II., the idea was rapidly taking shape that
these crimes, wherever and whenever committed, were breaches of the
king’s peace. The king’s peace was becoming coterminous with the coun¬
try, and all important breaches of it were crown cases. “I think we may
say that from the beginning of the thirteenth century onwards, all causes
that are regarded as criminal are pleas of the crown, placita corona, save
some petty offences which are still punished in the local courts, but even
over these the sheriff is now regarded as exercising a royal jurisdiction.”
Maitland, C. H. E., p. in. For the older conception of the king’s peace,
see above, pp. 27, 28; for further discussion, P. and M. i., 44-46, and Mait¬
land, op. tit., pp. 107-111.
Law Courts
161
It was commoner, perhaps, to turn to the jury of another
hundred and make it the traverse or petit jury in these
cases; but as it would not be likely to know the facts, it
became, during the reign of Henry III., the practice to
join several juries together and regard them as one trial
jury. These were often the hundred jury that had pre¬
sented the criminal, the jury of some other hundred, and
the juries from the four adjacent townships. Probably
from early times there was some sense of impropriety in
calling upon a man’s indictors to pronounce upon his
guilt or innocence. Yet it must not be forgotten that the
presenting juries did little more than state popular
rumour and might thus address themselves to the second
duty quite disinterestedly. It was not till 1352 that a
statute was passed barring a man’s indictors from serving
upon the jury that tried him, if they f< be challenged for
this cause by the party indicted.”
The use of a second jury in criminal cases at first merely
supplemented the old procedure; it served to bring out
more clearly the accused’s local reputation. Formally
the ordeal was the proof, but if a man came through the
ordeal successfully after a jury of his neighbours had pro¬
nounced him guilty, it went hard with him. In 1215 the
general council of the church in session at Rome issued a
decree that the clergy should no longer take part in the
ceremony of the ordeal. 1 This met an immediate re¬
sponse in England; the ordeal disappeared forever. This
meant no exceptional obedience to the pope on the part
of England, though the last year of John and the minority
following was a time of great papal influence; but it meant
that the English courts had a better procedure ready to
put in the place of the old. It was no small thing, how¬
ever, to make such a complete and conscious change at
that early date, and for a long time there is evidence of the
perplexities and difficulties that it cost. Although it
1 This was the twelfth ecumenical council, the “Fourth Lateran.* The
decree did not include the trial by battle, which was, in principle, a true
ordeal, for the clergy had no official connection with the ceremonies at¬
tending it.
162 The Period of Constitution Making
had apparently recommended itself as a more rational
method of proof, the jury was yet regarded as a lower type-
it was not of immemorial antiquity like the ordeal, and
it rested on a human basis. Largely on these grounds, it
appears, grew the idea that it could not be forced upon
any one as a method of proof. Except in the recently
created assizes, in which a man consciously chose jury
trial when he selected his assize, parties to a civil suit
had the option of a jury or one of the older forms of trial.
These were compurgation or trial by battle, according to
the nature of the suit, with many that were settled by
documents or witnesses to transactions. In the case of a
felony 1 in which a man was brought to trial by the appeal
of some individual, jury trial rapidly became an option,
sometimes with appellor sometimes with appellee. 2 But
when a man was indicted at the suit of the king, 3 that is,
presented to the justices or the sheriff by a jury, there was
no option left after the ordeal was abolished. 4 The state
was confronted by what seemed an insolvable problem;
the prejudices just mentioned made it loath to force a
man to put himself upon the country, and yet, if he re¬
fused to do so, there was no form of proof available. The
experiment was tried, in 1221, of forcing jury trial upon
1 See Maitland, C. H. E., pp. no, 229.
2 The king's courts, during the thirteenth century, were often getting
cases that began with appeal as well as indictment. This was through a
legal fiction by which the appellor claimed that there had been a breach of
the king’s peace although no person or place covered by the king’s peace
was involved. The king’s justices did not allow the appellee to call this
in question. This made it possible for the appellor to put the whole ques¬
tion at issue upon a jury. On the other hand by Bracton’s time, battle or
jury was regarded as a regular option of the appellee’s.
3 “The judges began to favour the indictment and to discourage the
appeal by all possible means. They required of the accuser a punctilious
observance of ancient formalities, and would quash his accusation if he
were guilty of the smallest blunder. Still throughout the middle ages we
occasionally hear of battles being fought over criminal cases.”—Maitland
mid Montague, A Sketch of English Legal History , pp. 61, 62. See further
in this reference for an interesting account of the famous Abraham Thorn¬
ton case in 1818 and the abolishing of trial by battle in 1819.
4 Compurgation seems to have been practically abolished for serious
crimes by the Assize of Clarendon which decreed proof by ordeal. At any
rate by the beginning of the thirteenth century it was no longer thought
pf a possible resource in such cases.
Law Courts
163
notorious felons* but the completeness with which it was
abandoned shows how it ran counter to the ideas of the
time. The state handled minor suspects* who refused a
jury, by forcing them to give pledge or even leave the
country; but it was not considered that a conviction had
taken place. Thus when suspected felons refused a jury,
they remained technically unconvicted and their property,
both real and personal, could not be confiscated or their
blood attainted; the consequences of their crimes could
not be visited upon their heirs. There was thus a strong
motive for continued refusal in instances where conviction
was a foregone conclusion. In these cases pledge or exile
was insufficient; the state could do nothing but keep the
men in prison until they consented to put themselves
upon the country. There was reason therefore for mak¬
ing the imprisonment as terrible as possible, and from
the * 4 strong and hard” prison of the thirteenth century
there came by a natural evolution the horrible peine
forte et dure which was not abolished until 1772. 2 It
should be understood that, in the vast majority of cases,
those indicted for crime willingly accepted jury trial.
We come now to the second important matter in jury
history after Henry IL’s reign. How did it come to pass
that the judicial jury became in England a feature of
government by the people, while on the continent the
same parent stock brought forth the canonical inquisition,
an institution so opposite in character? The early thir¬
teenth century was a critical time for the English jury;
the young institution was pliable, and the influences of
that time largely determined its future history. It but
narrowly missed travelling the road of its continental
cousin. The most prominent trait of all early juries was
their supposed or actual knowledge of the facts sought;
and when juries became a regular part of judicial pro¬
cedure, one is likely to think that they were nothing more
1 Pressing (with, weights a as heavy, yea, heavier than he can bear ), as
a means of making a man voluntarily (!) answer “By God and my coun¬
try* * to the question “How will you be tried?**, was used as early as 1302,
and became the commonest method.
164 The Period of Constitution Making
than witnesses and that the justices were engaged in ob¬
taining and weighing testimony. A good many details
might be collected from the early practice in favour of
such a view, and if the judges had at that time been a
little more inclined to deal with the jurors separately
questioning them solely on the facts of the case and keep¬
ing to themselves all discretionary functions, there would
have been an inquisition in England instead of a jury.
But though it may be granted that the early English
jury was nine-tenths witness, the one-tenth something
else was very important, for it was this which developed.
It is the purpose here to inquire what this element was
and why it persisted and grew. 1
Except in the four petty assizes, where it was an original
and necessary part of the procedure, the jury was at first
regarded merely as one among other methods of proof.
If the litigants chose it, they must abide by the result;
and the court would no more have thought of inquiring
into the action of the jury than of questioning or criticising
compurgation. 2 The thought of the judges was to reach
a conclusion by some of the known methods of proof
rather than to inquire into processes. They deemed the
jury in some respects preferable to the older proofs, but
the habit of thought was still too much dominated by the
immemorial practice of appealing to supernatural powers
in judical matters for rational distinctions to weigh
heavily. The older proofs furnished speedy and une¬
quivocal answers; the jury was expected to do the same.
It would have been impious to question how God reached
the conclusions which he revealed in the trial by battle
t> 1 discussion of this subject is based upon the admirable account in
P. and M., n., 622-627.
. * after a suit was ended the defeated party might proceed against the
jury through what was known as an attaint. An “attaint jury ’ 7 of twenty-
four passed on the preceding verdict, and if they found it false it was
rescinded and the first jury severely punished, usually by fine. Such pro¬
ceedings were expensive, but were increasingly common in the thirteenth
century and show that juries were still regarded as primarily witnesses.
Attaint was used throughout the middle ages, or until juries were quite
distinctly judges of fact furnished by witnesses in court.
Law Courts
165
or the older ordeals; there was little disposition to ask
how the jury reached its unanimous answer. It was
usually quickly reached; it was the “voice of the country”;
the litigants had placed themselves upon the country; it
was what was wished. The jurors drawn from a limited
district, the neighbours of the parties to the suit, embodied
in themselves when they came into court something that
would have seemed more valuable to the court, could the
comparison have been made, than the product of a ra¬
tional taking and weighing of evidence. The fact that
the jury reached its verdict in its own way and returned
a complete and final answer shows that there was likely
to be at least a slight judging element in what it did.
Moreover the jurors were not to be content with the
knowledge of the facts which they happened to have when
summoned; they were expected to make inquiries and
inform themselves as best they could before coming into
court. This entailed some weighing and judging of evi¬
dence. They were not mechanical transmitters of fact
like modem witnesses, but w r ere embryonic “judges of
fact ” from the first. Moreover, it should be remembered
that at that early time there were scarcely judges, in any
modem sense, in some courts where the jury was used.
The assembly still judged. The jury was a part of the
assembly, put under oath for a specific informing - j udg-
ing job. It was not so much, as it would have been later,
an alternative between a professional judge and a group
of citizens, but rather between groups, or between a
whole group and part of it. Even the king’s justices were
often more presiding officers than judges—seeing that the
courts did things according to new methods grafted on the
old. Thus for this reason also, the early establishment of
the English jury as a regular part of procedure was deter¬
mining its character.
Upon these characteristics depended the triumph, in
the course of the fourteenth century, of the principle of
unanimity in the jury. Its early position as one among
several kinds of proof tended to make it like them; if
166 The Period of Constitution Making
they spoke unequivocally, the jury must. “The veredic-
tum patrice is assimilated to the judicium, Dei." More¬
over, the jury being the voice of the country, that itself
looked towards unanimity. The majority dogma was
not clearly formulated, and if the country were to speak,
it must be through unanimity . 1 And the judging ele¬
ment favoured a unanimous verdict, for the juror did not
have to stand strictly upon his own personal knowledge;
he might be persuaded to change his opinion, or he mig ht
accept the fuller information of his associates. Here was
action and reaction, for the unanimous verdict favoured
the judging element: in most instances it could not be
reached without discussion and sifting. The judges re¬
garded unanimity not only as the most natural but the
most convenient requirement, and often used much pres¬
sure to obtain it. There were many exceptions to the
rule in early times, but the tendency was decidedly in
favour of unanimity, and that as the result of the primi¬
tive characteristics of the English jury and the circum¬
stances of its early use in the courts.
It may be impossible to state fully why the traits of
the jury just discussed persisted and triumphed over those
which at first seemed more obvious and important. Some
considerations, however, may be brought forward. Eng¬
land was quite uniformly orthodox during centuries when
heresy trials were growing frequent upon the continent.
The nature of the crime of heresy led very readily to the
separate examination of witnesses and the secret collection
of testimony accompanied by torture—an inquisitorial
procedure . 2 Had such trials been common in England,
1 Yet to begin ■with unanimity hardly meant the conscious unequivocal
consent of each member of the jury to the verdict; surely there was no
thought of unanimity as a punctilious safeguarding of the defendant. It
was a group answer that was insisted upon. The majority idea was used
in the grand jury (which consisted of twenty-three members) before the
end of the middle ages.
2 Juries of neighbours, finding their verdicts in their own way, might
always be expected to convict men of murder, theft, robbery, etc., in a
reasonable number of cases: but not of heresy, when a district was honey¬
combed with heretical beliefs.
Law Courts
167
the jurors might soon have become mere witnesses, and
there would have been in the hands of the state an engine
of tyranny instead of self-government. Another and
more important consideration is that the possessory assizes
were made with a jury as a necessary part of the procedure,
and that too a jury tinged with those traits of the older
forms of proof that we have been noting. Now these
assizes exactly met the needs for which they were de¬
signed; they grew very rapidly and struck deep root in
English soil. From these, the jury spread quickly but
voluntarily into other civil actions . 1 At the critical
period of jury history in the thirteenth century, when it
was being determined whether it should triumph over
other forms of proof, and, having so triumphed, what
should be the line of its own development, its necessary
use and its character in the possessory assizes were de¬
cisive influences. These popular actions were working by
their very presence for the spread of the jury, and that a
jury like their own. “Much was at stake during those
wakeful nights in which the Novel Disseisin was being
fashioned .” 2 Also dislike of the burdensome Norman
trial by battle played its part. But as trial by battle did
not exist in England before the Conquest, the other or¬
deals had had an exceptional spread, so that when they
were abolished there was a wide field ready to be filled
by the jury.
If, then, juries were to be finally judges of fact and not
witnesses, there would soon come a time when true wit¬
nesses would be needed. It was far into modem times
1 “Before the end of Henry III.’s reign it is a common incident in most
Vin ds of litigation that the parties agree to submit to the county some
question that has been raised by their pleadings. P. and M. u., 620. It
was spreading into such important new actions as waste, writs ox entry,
and trespass. In both criminal and civil procedure, the excepHo~-ib& ques¬
tion about an incidental point of fact brought up m the course of the
pleadings—was important in this connection. It was the custom to deter¬
mine such facts by a jury, and from them the jury advanced naturally to
the main questions of fact. . . .
2 P and M. ii, 632. “De beneficio pnncipis succuntur ei i>er recogrn-
tionem assisse novae dissdsinae multis vigiliis excogitatam et inventam.
Bracton/. 164b.
168 The Period of Constitution Making
before the idea entirely disappeared that the jury itself
might furnish at least a part of its facts. Throughout
the thirteenth and even in the fourteenth century, care
was often taken that some of the jurors, owing to the
locality or class whence they were drawn, should have in¬
formation useful in the trial and which they were expected
to impart to their fellows. But this had to be supple¬
mented more and more; the apparatus of informing the
empanelled jury was developing, and the witness was an
important part of it . 1 2 In the practice of the early thir¬
teenth century, it is possible to see a shadowy distinction
between what we should call a juror and a witness; but
this was long before they were distinguished in name or
consciously placed in separate categories, when, as it has
been expressed, the witness served on the jury. But as the
jurors became judges of fact, this distinction necessarily
grew; it was a century and a half however before it was
clearly understood and stated. Of the intervening steps,
we know little. Shortly before the middle of the four¬
teenth century, it was ordered that witnesses, in contra¬
distinction from jurors, were not to be challenged; that
witnesses “should say nothing but what they know as
certain, that is, what they see and hear,” while jurors,
placed under no such limitation, were “to tell the truth to
the best of their knowledge.” This must have ended any
serious confusion between the two. a
In this connection care must be taken not to ascribe to
the medieval jury too beneficent and modem a rdle. The
jury to-day seems thoroughly democratic; by it a man re¬
ceives the verdict of his equals; but the state of society
made this impossible in the middle ages. Except in the
1 But the fact that throughout the middle ages a man being tried for
crime could not employ counsel or compel unwilling witnesses to testify
in his behalf, shows how slowly the old conception of the jury died.
2 For discussion and references on this important change, see Thayer,
Evidence, pp. 100-102. After the institution of justices of the peace (see
below, pp. 198-206) summary trial without jury began to be given them
in a number of petty cases. This began in the 15th century and was much
extended in the 16th. It was being recognised that jury trial was too
cumbersome for a number of the lesser offences that had earlier received it.
Law Courts
169
manorial courts, jurors could only be drawn from the
class of freeholders and the whole mass of peasantry was
below that; in civil actions in the manorial courts, the
peasant might have a jury made up in part, or occasionally
wholly, of his class, but in criminal cases, which would not
be tried in these courts, his verdict was rendered by a
class much above him. On the other hand in the case of
men of standing and influence in the community, it was
hard, owing to the principle of unanimity, to obtain from
a jury an adverse verdict in any serious matter . 1 Yet a
great thing had been done; a great experiment in self-
government was being unconsciously tried. There are
five general steps in judicial procedure: first, (in criminal
actions) the prosecution; second, ascertaining the facts;
third, declaring the law; fourth, the judgment; fifth, carry¬
ing the judgment into effect. A little reflection will show
that the first two of these present new facts in each case
and entail great responsibility, while the last three (espe¬
cially in consideration of the circumscribed field in which
court judgments could operate in the middle ages) w T ere
relatively mechanical. Regarding the judiciary as the
most fundamental side of government, it is fair to say
that the two most vital steps of government's most
frequent and important activity were placed in the hands
of representatives of the people. Why did the kings do
this? The answer must be drawn from the detailed
account of the jury's institution and growth in England;
they found it a means of building up their own courts and
revenue, they disliked the old forms of proof, they dis-
1 “After some hesitation our law had adopted its well-known rule that
a jury give no verdict unless the twelve men be all of one mind. To
obtain a condemnatory unanimity was not easy if the accused was a man
of good family; one out of every twelve of his neighbours that might be
taken at random would stand out loyally for his innocence. Bribery could
do much; seignorial influence could do more: the sheriff, who was not
incorruptible, and had his own likes and dislikes, could do all, since
was for him to find the jury.” Maitland and Montague, Sketch of English
Legal History , p. 65. Maitland believed that if it had not been for the
drastic railing of jurors to account by king and Council, in the time of
the Tudors and Stuarts, the institution might not have survived. As to
the grand jury it ha-s undergone very little change since the end of the
15th century. See Maitland, C. H. E. f p. 212.
170 The Period of Constitution Making
trusted the sheriffs, and they found that the thing worked
There was in England the right kind of stuff out of which
to make juries . 1
With this discussion of the jury, is concluded the ac¬
count of the new business and the new methods which
the king’s court was assuming in the late twelfth and
early thirteenth centuries. But the increased business
had an important influence upon the court itself; its
old structure and organisation had become insufficient,
and it is necessary to consider next how it was adapted
to the new demands. The king had been making the ju¬
dicial business of the country his own; an important
specialisation of his court for judicial business resulted;
a court in the modem sense of the word was made out of
the king’s court, where the word court has its broader
and earlier meaning. Certain specialisations of this court
in the reign of Henry I. have been noticed . 3 These were
all revived at the beginning of Henry II.’s reign, but no
one of them was a thorough-going judicial specialisation.
But during his reign and the century following, two of
them, the itinerant justices and the Exchequer, under¬
went a development along judicial lines that transformed
them.
The Assize of Clarendon marks an important turning
point in the history of the itinerant justices. After that,
the criminal cases that were being drawn into the king’s
court 3 and the new possessory actions formed the principal
1 The Plantagenet kings were seeking to develop the jury in much the
same way in Normandy and Anjou, probably not much in Aquitaine.
But the royal courts grew more slowly in these less homogeneous provinces,
no common law was growing, and when they were lost to England they
gradually slipped back into the condition of the rest oi France, where the
old sworn inquest had been changing into the canonical inquisition. But
u when all has been said, the almost total disappearance in France of
the old enquUe du pays in favour of the enquite of the canon law, at the very
time when the inquisitio patrim is carrying all before it in England, is one
of the grand problems in the comparative history of the two nations.”
P. and M, ii., 604.
a See above, pp. 139, 140.
3 Ibid., p. 162, note 2, on how cases begun by private appeal as well as
by jury presentment were getting into the king’s court.
Law Courts
171
part of their business, and one hesitates no longer to call
them judges. They might not now all be members of the
central court, but some of each group almost always were.
In either case, however, they were doing, as formerly,
king’s business; the court which they held was his court.
Long after Henry II.’s time, they did king’s business of a
non-judicial character, often along with their judicial
work, but it is not surprising that in this legal reign the
English missus dominions was becoming a specialist in
judicial matters. If a constantly increasing number of
actions were to be tried in the king’s court, that court
must become to some extent itinerant, unless almost all
litigants and juries were to bear the burden and expense
of long journeys. This new need seized upon the already
existing itinerant justice system, and the circuit court
developed. After the Assize of Northampton, which in
1176 still further extended the work of the itinerant
justices, they were increasingly used to the end of the
reign. There was little regularity in sending them out, in
the extent or location of their circuits, in their personnel,
or in the contents of their commissions. The king seems
to have apportioned his increasing business between his
court at Westminster and his courts in the localities as
its varying amount and nature from year to year or month
to month suggested.
The century following Henry II. was still a time of
experiment and gradual development in the itinerant
justice system, or the system of commissions as it may
perhaps be more properly called. There came to be two
main classes of commissions, those of a minor character
and the general iters. The more important minor com¬
missions were for gaol delivery or the possessory assizes.
The individual commission of gaol delivery applied to a
specific gaol named therein; it did not order an inquiry
through a jury of presentment, but dealt simply with those
persons found in the gaol at the date set; it might, how¬
ever, involve the trial of some of the greatest criminal
cases. This commission was often entrusted to knights
172 The Period of Constitution Making
resident in the shire concerned, in which case, of course
there was nothing itinerant about it. For the possessory
assizes, commissions were issued often. In Magna Carta
it was provided that they be hel d,.four-times a jyear; but
the provision was changed t o once a y ear in th e reissu e of
1217, and this was long the rule. The Charter also pro¬
vided that these assizes be held in ea ch county b y two
jiastices sent from the c entral court t ogether with four
k nights of the cou nty chosen by the co unty cour t; but
this rule was not strictly kept, and the thirteenth century
tendency was to entrust this work more and more to
professional justices. However, the use of knights in the
administration of royal justice was growing in other
directions and was a characteristic and important de¬
velopment of this period. The local gentry in England
were destined, in one way or another, to do much
governing. 1
The general iter of this period, the iter ad omnia placita ,
was in a special sense the iter or eyre. Of this, the famous
iter of 1194 may be taken as an early example and proto¬
type. 2 The justices who were sent out on such visita¬
tions had tremendous commissions; they not only tried
all sorts of cases, but were still, as in the earlier time, col¬
lectors of revenue, and might be charged to attend to any
kind of king’s business. Henry III. got a great revenue
by their means. They put local juries on oath for a great
variety of purposes, their visitation being a prolonged
inquiry into every matter that could possibly concern the
king. The hundred juries—the “dozens,” as they were
called—who must report every least breach of the law
since the last eyre, were specially burdened and ran every
chance of fine or imprisonment for mistake or lapse of
memory. But scarcely a man in the county, of whatso¬
ever class, could have missed some kind of duty, expense,
or responsibility in these prolonged visitations. The
later scheme, by which business might still go on at West¬
minster for a certain locality after a commission had been
1 See below, pp, 198-206, 3(51-357- * A. and S., document 21.
Law Courts
i73
issued for that locality, had not yet been thought of. The
moment a commission was issued, all business included in
the commission stopped for the entire circuit to be visited;
and if commissions were issued for all England, all the
business named was forthwith suspended at the centre.
This lead to a glut of work in the local sessions of the
justices and greatly increased their length. Thus these
general visitations were altogether formidable and burden¬
some 1 —“those tedious old iters, ” Maitland calls them.
They became one of the standing grievances against
Henry III, and the people were outspoken in their com¬
plaints. It became a sort of unwritten law in his reign,
apparently as a result of the general outcry, that they
should be made only once in seven years. This remained
the practice until they ended in the next reign.
One of the great legal reforms of Edward I. had to do
with the itinerant justice system; the Statute of West¬
minster II., 1285, inaugurated a new regime that in some
of its principal features has lasted to the present day. It
reorganised one of the minor commissions, that of Assize,
and instituted the nisi prius principle. The commission
of Assize replaced the old general iter, and the justices
were relieved of the mass of non-judicial business which
had so long been a relic of their earliest history. This
commission had been that for holding the possessory
assizes and now included only cases concerning real prop¬
erty, but before the end of Edward III.’s reign it had ex¬
panded so as to include almost every action, criminal as
well as civil. However, the very rapid contemporary
development of the justices of the peace 2 so reduced the
work of the itinerant justices that their visitations were
never of the old prolonged or burdensome character.
1 A most vivid account of the general eyre, especially its burden upon
the people and their involvement in local government, is to be found in
W. C. Bolland’s little book, The General Eyre. One chronicler, writing of
the Cornwall visitation of 1233, makes the picturesque statement: Eodem
anno fuerunt itinerantes justiciarii in Comubia; quorum metu, omnes ad
sylvas fugerunt. Annals of Dunstable, p. 135.
2 See below, pp. 198-206.
174 The Period of Constitution Making
Through the nisi prius principle the people were relieved
in another way. The most burdensome thing in the
administration of central justice had been making juries
come to Westminster. It was now ordered that the As¬
sizes should be held three times a year (later this was
changed to twice, in the northern counties once), and
when a question of fact arose in the pleadings in a case
that had been placed on the docket at Westminster, an
order was sent to the sheriff of the county concerned to
have the jurors at Westminster on a certain day unless
before that day the justices of assize had come into the
county. As they went twice a year they would regularly
come before the day named, and the question of fact would
be tried “at nisi prius." The judgment, however, ex¬
cept in many cases later specified by statute, would be
rendered in the central court where the case had origin¬
ally been placed on docket. With these changes, the
system of commissions assumed the chief features that
it has since borne. Its history in the thirteenth and four¬
teenth centuries shows how rapidly the king’s courts were
absorbing the judicial business of the country and how
necessary it was that much of that business be done in
the localities.
The second of the king’s-court specialisations of Henry
I.’s reign, which began to receive important judicial de¬
velopment in the reign of his grandson, was the Exchequer.
This institution had little about it at the start that sug¬
gests a court—the more permanent group of royal coun¬
sellors, especially those becoming skilled in finance, sitting
spring and fall before the chequered table to balance the
king’s accounts with the sheriffs. It was an administra¬
tive body of a special sort, a financial bureau. 1 In the
course of two centuries, it became also a court. The
early Exchequer controlled the king’s treasure; nothing
could be paid out without its direct order or unless it saw
that a proper authority were ordering the expenditure,
for there was no treasury department distinct from it.
1 See below, pp. 306-312.
Law Courts
175
It .received all moneys due to the king; 1 at Easter and
Michaelmas, the sheriffs made their reckoning with this
body for all sums due from their respective shires and had
their accounts audited. It dealt with the king's debtors.
It was through a development of this last function that it
first did judicial work. In dealing with debt cases, it
developed a summary procedure peculiarly its own; while
aiming to deal impartially between king and subject, its
position as guardian of the king’s financial interests made
it especially careful that the king should receive his due.
It could also entertain the case of one who had a claim
against the king. The king could not be sued, but king
and counsellors might accept the claimant’s petition that
the case be investigated. This was an extension of the
- Exchequer’s judicial work, and it was supposed to asso¬
ciate with itself the two chief justices when questions of
law were involved. After it had to all intents and pur¬
poses become a court of law, its administrative work and
its traditions hardly allowed it to be so considered; the
Barons of the Exchequer knew the “course of the Ex¬
chequer,” not the common law. But finally, despite this
supposition, it began to entertain cases between subject
and subject, and thus did violence to any existing theory
of its functions. These cases were for the most part debt
cases, and the persistence with which they were taken to
the Exchequer, rather than to the law courts where they
belonged, is only to be explained by the benefit derived
from the speedy and severe methods which the Ex¬
chequer had worked out in collecting the king’s debts. 3
In the reign of Edward I., the Exchequer was forbidden by
\c/jt
1 This was not true later; in the thirteenth and fourteenth centuries
large sums were received directly by the “ wardrobe. ” See below, pp. 317,
318.
3 A class of cases, semi-judicial in character, brought often, but not ex¬
clusively, to the Exchequer was that which related to “final concords”
or “fines of land.” These usually started as fictitious, collusive suits be¬
tween parties, one of whom wished to sell and the other to buy a piece of
land. By a payment of money a “fine” or final concord was reached and
the transaction was recorded by an indenture. This was the end sought by
the parties, the authority and security of a record in the king’s court when
there was no other satisfactory way of recording a real estate transaction.
176 The Period of Constitution Making
statute to accept such cases; but the prohibition seems to
have been little heeded, and, partly by the use of legal
fiction 1 and partly by the express permission of the king,
it drew to itself more and more of the common pleas. 2
This change of function was accompanied by a change
in personnel. When as in the reign of Henry I., the Ex¬
chequer was little else than king’s counsellors sitting for
financial business, it of course included such great officials
as the Justiciar and the Chancellor; but with the increased
judicial business of Henry II.’s time, specialisation began.
The Chancery, the writ-issuing department, became
separated in the reign of Richard I., and both Chancellor
and Justiciar ceased to attend early in Henry III.’s reign.
As early as Henry II. ’s time they were often represented
by their clerks. This left the Treasurer as the presiding
officer of the Exchequer, and a Chancellor of the Ex¬
chequer was appointed as the keeper of its official seal.
But more important in showing the transition from the
old feudal to the new official regime, is the fact that the
king now appointed its members, the Barons of the Ex¬
chequer. It was no longer a feudal body or part of a
feudal body. It was a group of appointed officials, whose
work was rapidly becoming judicial, but a trace of whose
feudal origin chanced to survive in their name; they were
never called judges, but barons. 3 In the reign of Edward
1 The plaintiff usually claimed that he was indebted to the king and was
prevented by the defendant from discharging his debt. This brought
the case technically within the competence of the court by making it a
concern of the king’s revenue, and the court allowed the defendant to
make no denial of the plaintiff’s claim.
2 The Exchequer also upon occasion acted as an administrative court;
it tried collectors who stole the king’s money or were accused of fraud.
But some of these cases were tried by specially authorised commissioners.
See Transactions of the Royal Historical Society , 3rd Series, vii., 187, 188.
For this point and reference I am indebted to Professor J. F. Willard.
3 The first recorded appointment of a definite group of persons as
“Barons of the Exchequer” was in 1234. The court began to keep plea
rolls in 1236. But to the end of the middle ages it was not thought of
as so technically and exclusively a court of law or financial bureau as to
have lost wholly its early character of a group of royal counsellors or to
have been thought of as wholly distinct from the parent king’s court or
Council. Undoubtedly the jurisdiction in equity which it acquired, or
rather revived, in the Tudor period was based on an omnicompetence
derived from such origin and continued association.
Law Courts
177
I., the Treasurer ceased to have anything to do with the
Exchequer’s judicial business, and a Chief Baron became
the presiding officer of the court. 1 With but slight
changes, the Court of Exchequer remained as it was organ¬
ised in this reign down to its absorption in the High
Court of Justice in 1873. Early in the seventeenth cen¬
tury, the finance department had become completely
separated from it. But it should be remembered that
this department is as straight a descendant from the
original Exchequer as the court, and that the term Ex¬
chequer is as properly applied to it.
It was the great extension of the king’s judicial business
in the reign of Henry II. and the period following which
developed a common-law court out -of the original Ex¬
chequer. The same cause brought forth the other two
common-law courts. The first definite and purposeful
move towards the creation of a central court in the modem
sense of the word was when Henry II., in 1178, designated
from his council or official household a body of five men,
clerks and laymen, who were to devote themselves ex¬
clusively to doing justice. It was a specialisation; 2 the
increasing judicial work could not be left to the occasional
and unskilled performance of tenants-in-chief. And yet
it was, in a way, subordinate to this very group; it was
provided that matters too hard for it were to be brought
to the audience of the king and his counsellors. This
body of judges became known as the Bench, from the na¬
ture of their seat when doing justice. Until the reign of
John, there was little further development of the court.
This king often had, when travelling, a party of justices
in his train, his council in whole or in part, who did justice
1 The Chancellor of the Exchequer also never became a common-law
judge; he was connected only with that Exchequer which was a revenue
department. An interesting instance of survivals is that the Chancellor
of the Exchequer was regarded as technically entitled to sit as a judge
with the “Barons,” and a newly appointed Chancellor might as a matter
of form so sit and hear a few cases. This down to 1875.
2 It was not a complete specialisation to begin with; any of the five
might at the same time be Barons of the Exchequer and attend to vari¬
ous lands of long’s business. , .
178 The Period of Constitution Making
in his presence en route, while the Bench remained at
Westminster. Thus arose a distinction between the body
of judges who habitually did justice in the king’s presence
(coram rege ) and those who remained at the centre and
usually did justice without the king. That this distinc¬
tion was recognised before the end of John’s reign is
shown by the well-known clause in Magna Carta: “Com-
m on pleas shall not follow our court, b ut shall be heidln
s ome fixed pla ce.” 1 So many were seeking justice at the
king’s court that it had become a matter of importance to
know w here the common ple as, t he civil su its between
man and man, were to be take n. During the long minority
of~Kenry III., there was no coram rege court as distin¬
guished from the Bench at Westm inster; but upon the
king’s coming of age, or very soon after, the same differen¬
tiation appeared as in the preceding reign, and from that
time there was, besides the Exchequer and the Bench,
another central court, scarcely as yet to be distinguished
from the council, the characteristic of which was the king’s
presence. This was the beginning of the Court of King’s
Bench , a court which quite naturally came to deal with
the important crimin al case s, the pleas of the crown. 2
As theTater medieval kings gradually ceased their peregri-
nations, this court, like the others, became stat ionary
at Westminste r. The Bench always remained the tech ¬
nical nameHfor the courtT whose m ai n business comprised
the , civil suitsTie Fween man and man , b ut it came to be
more generally calle d Common B ench or Common Bl eas.
Thus originated the three central, common-law courts,
Exchequer, King’s Bench, and Common Pleas. Yet these
were never quite co-ordinate. Exchequer and King’s
Bench were gradual unconscious growths from the su¬
preme source of judicial authority, the king and his coun¬
cil, and always kept traces of their high origin. Indeed
it was not until about the beginning of Edward III.’s
1 Yet it is to be noticed that the barons, in this article, did not specify a
court but a class of cases. The groups of judges were hardly as yet defin¬
able courts.
2 See above, p. 162, note 2.
Law Courts
179
reign that the Exchequer was distinctly a common-law
court; it was slow to lose its higher, essentially equitable,
jurisdiction. The Common Pleas was much more the
creation of a definite time and ordinance and bore marks
of inferiority to the other two. 1
To begin with each had its proper business; the King’s
Bench, the pleas of the crown, including all breaches of the
king’s peace; the Common Pleas, the ordinary civil actions;
the Exchequer, matters touching the royal revenue. This
is but a rough statement; really the spheres of the King’s
Bench and Common Pleas overlapped, and this facilitated
the practice of stealing work from the Common Pleas which
was begun by the King’s Bench and adopted by the Ex¬
chequer, for more business meant more money. In the end
it came about that while each court had some work all its
own, each could entertain any of the common civil actions . 2
2. The Displacement of the Old Local Courts by a
New Local System of Royal Courts,—The immediate ef¬
fects of the Norman Conquest upon the old local courts,
a 1 For a useful diagram illustrating these and other developments of the
king’s court, see G. B. Adams, The Descendants of the Curia Regis, Amer¬
ican Historical Review, xiii., 11-15. But see also his The Origin of the
English Courts of Common Law, Yale Law Journal, xxx., 798-813.
2 Maitland, Justice and Police, p. 35. The differentiation of the King’s
Bench from what might, at the end of the thirteenth century, be termed
the king’s council (see below, pp. 296, 297, and note 1) was very gradual.
“For ordinary purposes” the King’s Bench consisted “of a few pro¬
fessional judges, . . . but at any moment this court can be afforced
by the presence of the king, of his councillors, of numerous barons and
prelates”; in either form this was the old coram rege court. But in the
reign of Edward I., can be noted the beginning of the final complete separa¬
tion of the King’s Bench, a limited court of professional judges, from a
larger and vaguer king’s court or what stood for that at this later date.
But when that separation had taken place and the old court had brought
forth its third judicial offspring, we find that neither in its smaller nor its
larger form, neither as Council nor as House of Lords, had that body
divested itself of all its judicial power. And the judicial power which
remained was of a higher order than that which it had transmitted. “A
court which is to stand above the king’s bench is being evolved out of the
old court held coram rege.”—Maitland, Introduction to Memoranda de
Parliamento, pp. lxxx.-lxxxi., passim. See also below, pp. 208, 209. The
passing of the chief justiciar, 1268, (ibid., p. 216, note 3) marked progress
in the separation of judiciary and executive. From that time each of
the central, common-law courts had its Chief Justice—in the case of the
Exchequer known as Chief Baron.
180 The Period of Constitution Making
both communal and private, have been discussed. 1 Vfe
begin here with the situation as found in the early part of
Henry I.’s reign. Private jurisdiction was increasing
under the impulse of continental thought. Henry had
attempted to correct the irregularities in the hundred and
shire courts for which the sheriff had been largely responsi¬
ble in his brother’s time, and the sheriff, a royal officer
had become the only presiding and constituting official
in those courts. This last fact, taken in conjunction with
a livelier conception of the king as the source of law and
the masterful character of the posf-Conquest sovereigns,
leads one to look for an important change in the local
courts. There are clear indications that the change was
beginning under Henry I.
There were meetings of the county court that re¬
quired such full attendance and entertained such a class
of cases as make it clear that they were different from the
ordinary meetings. Their composition was strikingly
like that of the later itinerant justice courts; cases in
which the king was specially concerned were tried there,
and also cases between the vassals of different lords, such
as on the continent would usually have been carried before
a suzerain’s court. 2 When the king ordered this specially
full attendance for doing this kind of business and the
presiding sheriff was perhaps more emphatically the king’s
representative than wont, the shire court had, for the
time, become a king’s court. It is probable also that in
the course of the reign itinerant justices were sent out
with some regularity and that such courts were summoned
to meet them. 3
1 See Part II., § II., i.
2 Such cases might also be tried in the court of the defendant’s lord.
3 Three instances of a king's court in the locality in the reign of William
I. have been found. They were summoned by royal writ, justices presided
and were distinctly in loco regib , the judgment was of the same force as
that of the central court; and, while a baronial element and the county
court were present, they were not essential to the court’s authority, which
was centrally derived and royal, not local. See G. B. Adams, The Local
King's Court in the Reign of William I., Yale Law Journal, xxiii., 490-510.
See also his study of Henry I.’s writ concerning the hundred and shire
courts (for the text of this writ, see Stubbs, Select Charters , p. 122) and
Law Courts
181
In the same reign, there is evidence of specially full
meetings of the hundred court, held twice a year when
necessary, whose main purpose was view of frank pledge.*
This was an examination of the pledge groups to see if
they were full and properly organised, and the special
meetings of these courts held for such purpose and over
which the sheriffs presided must be considered essentially
king’s courts; they were to enforce a piece of police ma¬
chinery devised by the king. Thus during Henry I.’s
reign, both shire and hundred courts were, upon occasion,
king’s courts, and were always potentially such.
By the Assize of Clarendon, 1166, a new power was given
the sheriff, the use of the presenting jury; and it has been
suspected that Henry IL’s adoption of this procedure in
his own courts, was suggested by the frankpledge system.
“The machinery w T as apt for the purpose; the duty of
producing one’s neighbour to answer accusations could
well be converted into the duty of telling tales against
him.” 2 The sheriff used this jury in the semiannual
meetings of the hundred court, where view of frankpledge
was held, criminal cases were initiated that were to be
concluded before the itinerant justices, and many minor
criminal matters disposed of. This court came to be
known as the sheriff’s tourn. 3 It was his semiannual visi¬
tation of the hundreds of his shire for the purpose of crimi¬
nal jurisdiction. In such a court, where he was as dis¬
tinctly a royal justice as the itinerant justice was in his
court, the sheriff naturally assumed more of the judging
function; he was not a mere presiding officer or one who
looked out for the royal interests in a court that derived
its authority from a source outside the king, as he had been
in the old communal courts. This being the character
some related passages in the Leges Eenrid Primi in American Historical
Review, viii., pp. 487-490.
1 For the origin of frankpledge, see above, pp. 67-69, 109, 110. ^
2 Maitland, Introduction to vol. ii. of the Selden Society Publications,
p. xxxvii. ,
3 The word tourn or turn was not, until after the thirteenth century,
used as a sufficient description of the court; it was Curia visus jranci-
plegii domini regis apud B . coram vicecomiti in turno suo.
182 The Period of Constitution Making
of the town, it naturally became a court of reco d it
the other king’s courts. By this is meant that itk ^
record of its proceedings and judgments, which
thus be used as precedents. 1 0u “*
The invasion of the old local court system by the kin ’
jurisdiction has become sufficiently marked, as we
this point, to make it appear certain that the formerl
finally disappear. The relations of the two were y™
confused during the next century and a half; and tv,
makes it necessary here to distinguish and summarise
the later history of the old system, as far as it is possible
to do so, before continuing the discussion of the new
system which the king was putting in its place. The last
epoch in the history of the shire court, the hundred court
and the private courts will be considered, taking each
separately and in the order named. 2
By the end of Henry II.’s reign, the shire court seems to
have met much oftener than twice a year, its custom in
the Anglo-Saxon period. Henry I. had decreed semi-
annual meetings, but had in mind the occasional necessity
of greater frequency. The increase of business, which re¬
sulted from a more rigid enforcement of justice and more
use of the local courts by the king, made the exception the
rule by the end of the twelfth century. By that time
also, by the use of commissions, the shire court, when
summoned for certain specified kinds of business, was
changed into a king’s court,* and as such forms no part
of the present subject. By the system of commissions, the
old communal court was shorn of much of its jurisdic¬
tion. The itinerant justice and the sheriff in his toum
Wn 0Ca i i 0urts ’ both public and private, began to imitate the
to a the middIe of thirteenth cea-
century after the kings courts began the practice. These
records, of course, had no public authority.
diction ^L det ^ ed a £S° u ? t °, f th ® by which this older juris-
obscOTe^o^+i ^ 0 ? 111 e \- Th u further ^ is traced, the more scanty and
withChichi dedSed ™ 11 “ beCOme ’ a pr °° f “ itself of the steadkss
3 See above, pp. 142,180.
Law Courts
183
were absorbing criminal justice, and the old courts’ civil
jurisdiction was being eaten into by the possibility of
evoking cases into the king’s court by writ. The enor¬
mous popularity of the possessory actions, which could
only be brought in a royal court, made the work of the
shire court seem small; and as these actions often gave
rise to corresponding proprietary actions, they constituted
a positive drain upon the old court.
In Henry III.’s second reissue of Magna ^Car ta, 1217,
there was a regulation that the shjxeLCQint be held month¬
ly, the language implying that it jhad been. held pftener. 1
It was becoming distinctly a court for the lesser civil
cases, held at frequent intervals for the accommodation
of the people. 2 In it, the old procedure, compurgation,
survived; it did not adopt the jury as did the private
courts. It used jury trial only when the king’s court
sent some case into it in order that it might be tried in the
locality. The shire courts clung to the old procedure
because the dwindling number and importance of their
cases hardly made it worth while to attempt anything
new, but the result was undoubtedly a hastened decline.
No one was interested in their survival. They were the
courts of the people, and the people were finding it more
to their advantage to get their cases tried in the king’s
courts.
A further weakening resulted from a decreasing attend¬
ance. Suit of court had always been regarded as a burden
and attempts had been made to avoid it; now there was no
need of enforcing it so rigidly as in times past. The
Statute of Merton, 1236, made it no longer necessary that
all freeholders who owed suit of court should attend in
person; they might send substitutes. Some of the greater
landowners, who had now little concern with this court,
1 Stubbs, Select Charters, p. 343.
2 “It entertains some of the initial proceedings in criminal cases, but
for the more part it is a civil, non-criminal court; it has an original jur¬
isdiction in personal actions; real actions come to it when feudal courts
make default in justice; cases are sent down to it for trial by jury from the
king’s court.”—P. and M., L, 530.
184 The Period of Constitution Making
were attempting to withdraw from it entirely, and dur¬
ing the thirteenth century many of them, especially those
who represented great religious houses, purchased or
were freely granted charters of exemption. Some
simply stopped coming and, in course of time, claimed
and obtained exemption through prescription. Thus by
the late thirteenth century, the shire court was for
small cases and small people.
A clause of the Statute of Gloucester, 1278, was so
interpreted as to make the cases grow still smaller.
The clause in question seems on its face to have quite
another object; it says that none is to have a writ of trespass
in the king’s courts unless he will affirm that the goods taken
away were worth forty shillings at the least. This seems
to have been construed to imply a very different rule, namely
that no action for more than forty shall be brought in a
local court. 1
By 1290, this had become law, and, as money decreased
in purchasing power, the number of cases brought before
a shire court grew steadily less. By the end of the fif¬
teenth century, its judicial work was of little importance;
yet it continued into modern times a court for petty civil
suits. But no statute brought this side of its activity
to an end or changed the limitation set in 1278 until the
erection of the new county courts in 1846. The shire
court had always had some functions that were not judi¬
cial, and it lasted for the purpose of electing such local
officials as coroners and verderers and, a far more im¬
portant matter, the knights to represent the shire in
Parliament. 2
Much that has been said of the process by which the
shire court ceased to be a judicial body applies to the
hundred court, but there are some distinctive points in
1 Maitland, Introduction to Select Pleas in Manorial Courts, p. lvi.
2 The freeholders no longer attended when it was acting as court of
law, the sheriff or his deputy constituting the court. The freeholders
went only when members of Parliament were to be elected.
Law Courts
185
the latter’s history. By Henry II.’s time, the hundred
court was also meeting more frequently than it had be¬
fore the Conquest or for some time after; it was probably
meeting every two weeks. In 1234, Henry III. sent out
orders to his sheriffs that it should be held every three
weeks. This change was probably owing to a decrease
in business which resulted from the same forces that were
weakening the shire court. The hundred court came to
be known as Curia Parva Hundredi, apparently in con¬
trast with the sheriff’s ionrn. Its business, at the end of
the twelfth century, was confined to petty civil cases. 1
The statutes of Merton and Gloucester had the same effect
upon its make-up and competence as In the case of the
shire court.
But another process greatly hastened the hundred
court’s extinction. Before the Conquest, the jurisdiction
over many parts of hundreds and over some whole hun¬
dreds had passed into private hands, though there was
little consciousness of this change. 2 After the Conquest,
the process went on more rapidly, the country was cov¬
ered with manors, and, by the end of the thirteenth
century, little was left of the old hundredal jurisdication.
Petty civil cases for all classes could be taken care of by
the private courts and the shire courts; and, moreover,
the interpretation placed upon the Statute of Gloucester
was carrying an increasing number of small suits straight
to the king’s courts. In fact, this went so far that, in
course of time, it produced an unfortunate condition of
things; while there came to be a satisfactory provision
for local criminal jurisdiction, far too many civil cases
had to be brought to the courts at Westminster—a great
burden to the litigants. 3 Thus the old communal hun-
1 The hundred court's “competence seems much the same as that of
the county court, though its powers are confined within narrower geograph¬
ical limits; but real actions do not come to it, nor do we hear of actions
being transmitted to it by the king's court."—P. and M., i., 530.
2 See above, pp. 40, 41.
3 Only in part of these would the nisi prius principle (see above, pp. 173,
174) work any relief. The slight civil jurisdiction which the justices of
the peace (see below, pp. 198-206) acquired was negligible; these amateur
186 The Period of Constitution Making
dred court became a superfluity and soon had no work to
do; but no formal act brought it to an end. 1
Before speaking of the decline of the second flags of
local courts, those in private hands, a word should be
said of the borough courts. 2 The boroughs had been
steadily acquiring privileges during the twelfth century,
and their courts were flourishing. These courts were
destined, in the course of time, to become assimilated, in
a general way, to the new royal, local system, and were
to be permanent in all the more important boroughs.
But until they had thus gained some common character¬
istics, it is hard to generalise about them. 3 They still
corresponded loosely to the hundred courts, but, as has
been shown, 4 boroughs had passed under lords, and the
extent to which, in the thirteenth century, they were
independent of their lords’ jurisdiction varied infinitely.
The boroughs were naturally suspicious of the new¬
fangled methods of the king’s courts, which seemed so
potent in extending royal jurisdiction, and were, at this
time, holding to the old forms. The more important
sessions of the borough courts were probably supposed to
be attended by all the burgesses, who were to find the
judgments after the fashion of the suitors in the shire
and hundred courts. But, as in the shire courts, there
was a tendency, from early times, to place this function
justices, most of whom had no regular legal training, handled criminal
cases, even involving the death penalty; but the intricate land law and
other technicalities of civil rights were not to be entrusted to them. It
was not until the nineteenth century that proper provision was made in
the localities for minor civil jurisdiction.
*The provision in the County Courts Act of 1867 to the effect that no
action, which can be brought in a county court (in the later sense), shall
be brought in a hundred or other inferior court that is not a court of rec¬
ord may perhaps be said to mark in a distant way the formal ending of
hundreds! jurisdiction.
2 For a full account of the borough courts and the law administered in
them, see Miss Bateson’s Introduction to Borough Customs, vol. ii. (Sel-
den Society Publications.)
, 3 “The cities and boroughs—vills, that is, which have attained to a cer¬
tain degree of organisation and independence—have courts of their own.
But of these municipal courts very little can be said in general terms;
they are the outcome not of laws, but of privileges. ’ ’—P. and M., i., 532.
4 See above, p. 111.
Law Courts
187
in the hands of a selected group. Where such a group be¬
came identified with the body of borough officials, the
government of the borough became very aristocratic.
To some boroughs was granted, in the thirteenth century,
their own view of frankpledge, and this effectually drew
them from under the sheriff’s jurisdiction. 1
Like the old communal courts, the private courts also
began to be straitened in their jurisdiction by the ex¬
tension of royal justice in the reign of Henry II. 2 But in
their case, there was material for a struggle against the
growing power. Justice was profitable, and the lords who
possessed it wanted to retain what they had; there was
little chance of their getting more. Grants to individuals
of judicial authority, as well as of various immunities,
were still common in the late twelfth and during the
thirteenth century; but the general terms, used in such
grants at an earlier time, were carefully limited. As the
idea grew that criminal justice was the king’s business,
and as capital punishment took the place of fine, the
amount of such justice granted to individuals grew stead-
1 Miss Bateson’s comment, suggested by the passing of borough cus¬
toms, can be appropriately quoted in connection with our consideration
of the general decline of the old, local system of justice. “The Must on
antique time would lie unswept ’ if all the objects of borough ambition
had been attained and retained, but, provided the dead past be not re¬
stored to tyrannise over us, at a safe distance we may admire its pic¬
turesque ruins and half regret the cruel work of dissolution done by the
common law in the name of reformation. For the sake of uniformity of
worship, many quaint rites have been abandoned; in the great temple of
the common law the side chapels are altarless and empty. The justice of
the local courts has been ruthlessly condemned as incompetent, provin¬
cial, archaic, unprogressive, unable to adapt itself to a new state of society.
The old local justice is 4 antiquity forgot, custom not known/ because m
the system of national justice the general destroyed the particular, no
doubt for good reason. And yet for the true understanding of the 4 jus et
consuetudo regni/ founded upon a rock-bed of unwritten tradition, on
general immemorial custom, it may be well to stoop to examine the un¬
worthy particular.. In borough custom we have a neglected series of rocks,
not primary in antiquity, but full of the signs of life, and the extinct forms
which it permits us to handle have a place in the history of the making
of the common law .”—Borough Custom , ii, dvi. (Selden Society publica¬
tions).
2 The best account of private jurisdictions in the thirteenth century
(with many hints of their earlier history) is to be found in Maitland's
Introduction to Select Pleas in Manorial Courts (Selden Sodety Publica¬
tions).
188 The Period of Constitution Making
ily less. And when the kings began to reflect upon the
amount of criminal jurisdiction which some individuals
already held, they did not critically study the past in
order to understand the matter; they came to the con¬
clusion that, while there might be a kind of civil and
petty criminal justice that went with the possession of a
manor, this higher kind could never have been lawfully
acquired except by definite royal grant. 1
That this distinction was not clear at the time of the
Conquest, nor for long after, it is hardly necessary to
state. But it led directly to an act of Edward I. which
had a profound effect upon the later history of private
courts. Jn 1278, he issued the Writ Quo Warranto,
which demanded by “what warrant” those who were exer¬
cising what he was pleased to consider regalian rights were
doing so. 2 It was assumed that, if they could not show a
written grant from the king, the only means of acquiring
such rights in Edward’s time, they were to be deprived of
them. This roused such protest that Edward abated his
demand; he may possibly have foreseen the necessity
of this from the first. Those who could show an unbroken
exercise of these rights from the coronation of Richard I,
were allowed to retain them. But two important things
were accomplished. In the first place, any further ac¬
quisition of such rights was out of the question; and,
mindful of the possibilities of forfeiture and deprivation
which a powerful monarchy always possessed, it is easy
to see that the exercise of high judicial power by private
individuals would, at no distant time, pass away. In
1 On the origin of private jurisdiction, see above, pp. 38-41, 77, 78, 105.
2 In 1274 Edward had sent commissioners throughout the country to
collect information about the franchises. This was recorded in what are
known as the Hundred Rolls, because it was gathered from hundred to
hundred—an interesting parallel to the gathering and recording of the
Domesday material. Edward then spent three years in looking the material
over and deciding what use he would make of it. His decision, embodied in
the Writ Quo Warranto, is in the preamble to the Statute of Gloucester.
The barons’ pleas or replies to the writ are contained in the Placita de
Quo Warranto. This was Edward's first important governmental meas¬
ure and shows how necessary he thought it was to check the growing feudal
assumptions.
Law Courts
189
the second place, the theory that part of the jurisdiction
was exercised by royal grant, and part by manorial right,
w~as so emphasised that it soon became an established
principle. This principle resulted in a distinction between
courts that must next be examined.
Private courts had been quick to adopt the new royal
procedure of jury presentment and trial, though the lim¬
ited number of suitors on some manors interfered with
this. For private courts in England we re, for the most
part, manor courts. 1 A distinction began to be made in
the judicial work which the lord did in these courts.
He might be doing work analogous to that of the sheriff
in his town, if by grant or prescription it had come to
him. But this was criminal jurisdiction and view of
frankpledge; it was, according to the view we have just
noticed, a strict regality and could only be carried on
under royal commission. Hence a court which did this
was a royal court, a court of record; it must be sharply
distinguished from a court which the lord held as of his
own right, which he held because he had tenants. A new
and distinguishing name, that of Leet, was applied to it.
This name, whose earlier history is very obscure, was
probably first used in this connection in the reign of
Edward I. From that time, we hear of Leets, the adjec¬
tive use of the word, as in Court Leet, not appearing
until well into modem times. Here, then, was one part
of the old, private jurisdiction, modified in its content
and procedure by innovations from the king’s courts, and
finally taken up into, and made a part of, the royal judi¬
cial system; the lord’s steward who conducted this court
now conducted it as a royal officer. Thus it passes out
1 The courts of great honours, the feudal courts made up of vassals,
had always been less important in England than on the continent; and
now they were practically extinct, not only through the invasion of the
royal courts and the limitations placed upon grants of justice, but through
an important series of legislative acts of Edward I. which checked subin¬
feudation and tended to break down the feudal hierarchy. A careful study
should be made of documents 39, 40, 4 2, and 45 in A. and S. For a dis¬
cussion of these acts, see Stubbs, Constitutional History, $ 179, passim;
also Medley, English Constitutional History, pp. 313, 314.
190 The Period of Constitution Making
of the field of our immediate consideration; but it may be
added that it survived the middle ages, still in a quite
vigorous condition, and, though more and more limited by
a new and better local machinery, the justice of the peace
system, some traces of it are to be seen at the present day,
While the Leet was, in theory, a jurisdiction quite sepa¬
rate from that which the lord possessed in his own right,
it was customary to exercise both in the same manor
court. It now remains to ask what was this residuum of
truly private jurisdiction and what was its fate. It is
heard of under the name of Court Baron, 1 a name that
came into common use at the same time as Leet. It
follows from what has been said of the Leet that the
Court Baron had a civil jurisdiction. Now the typical
manor contained both freemen and villeins, the freemen
usually being in a marked minority. Thus the Court
Baron, as had always been the case with manor courts, was
made up of these two classes. A distinction between
them had appeared in the procedure; it seems to have done
no violence to the idea of judgment by peers for inferior
to be judged by superior, but superior could not be judged
by inferior—villeins were judged by freemen and villeins,
freemen only by freemen. But now something had arisen
which farther distinguished the classes in these courts;
it was the increasing use of the jury there. The lord
could, by his own authority, make his villeins take oath
as jurors; but the jury was a royal institution, and by the
accepted theory of this period, no one could do the same
by freemen without a royal commission. 2 This split in
the personnel and procedure of the Court Baron was soon
1 The significance of the word baron in this connection is not at all clear.
The terms by which private jurisdictions were ordinarily known in earlier
times were Libera Curia and Halimote. The former usually indicated
the higher judicial authority of a lord, but did not signify a court of free¬
men as opposed to unfree. The latter, lasting on from Anglo-Saxon
times, probably meant hall-court, thus distinguishing the court held in
the hall of the manor from the old open-air courts of hundred and shire.
2 This was laid down as law in article 18 of the Provisions of Westminster,
1259 (see A. and S., p. 66), and was embodied in the confirmation of these
Provisions known as the Statute of Marlborough, 1267.
Law Courts
191
reflected in nomenclature; the Court Baron (in a narrower
sense) was the lord’s private court for his freemen, while
the Court Customary, that which administered the cus¬
tom of the manor, was his villein court. 1
The later history of these two courts was not at all the
same. The Court Baron soon became decadent. The
fact that the king’s courts were so desirable and possible
a place for freemen to bring an increasing variety of ac¬
tions was, of course, the main reason for this. But there
were, besides, a number of causes which developed in
the middle and latter part of the thirteenth century . 2
A change in the law of distraint, which made it possible
for a lord to distrain his tenant for rents or services with¬
out judgment of a court, made his own court of less value
to him; for that had been the place where he could most
readily obtain such judgments. In 1285, the lord was
given an action in the king’s court which made it possible
for him to eject his freehold tenant for default of service.
The forty-shilling clause in the Statute of Gloucester had,
through its peculiar interpretation, the same effect in
limiting the competence of the Court Baron that it had
in the case of the communal courts . 3 But perhaps the
most decisive matter was the threshing out, in the thir¬
teenth century, of the question whether a lord’s court
should be a court of appeal from the courts of his vassals.
Such appeal had evidently been the practice in some
countries and there was clearly a struggle. But the
lesser vassals were opposed to it and so was the king.
Bracton argued somewhat uncertainly about it on the
basis of the wording of the writ of right, 4 which told the
lord to do right in his court and that if he did not the
1 A lawyer's theory developed that in the Court Baron and Court Cus¬
tomary the assembly judged and the lord's steward merely presided, while
in the Leet the steward judged. But probably this distinction was not
much adhered to and the practice of the individual manor was likely to
be determined by its own tradition.
3 Maitland discusses all these causes in his Introduction to Select Pleas
in Manorial Courts, pp. Hi.—lx.
3 See above, pp. 184,185.
4 For the origin of the writ of right, see above, pp. 142, 148.
192 The Period of Constitution Making
sheriff would. This implied that, in default of justice
the case had been taken immediately from the court of
first instance to the king's court. But the writ of right
had to do with only one class of cases, albeit a very im¬
portant class. In the Provisions of Westminster, how¬
ever, is found a statement which covered the matter
broadly and conclusively: “None but the king from
henceforth shall hold pleas in his court of a false judgment
given in the courts of his tenants; because such pleas do
especially belong to the king’s crown and dignity .” 1 “We
may regard this as a turning point in the history of the
feudal courts. If a great baron had been able to make his
court a court not merely for his immediate tenants but also
a court with a supervisory jurisdiction over their courts, it
would have been worth his while to keep his court alive;
it might have become the fountain of justice for a large
district. But a court merely for the suits of his great free¬
hold tenants, some dozen or half-dozen knights, was hard¬
ly worth having and became less worth having as time
went on .” 2 There were, of course, many lords, whose
freeholders were not knights having manors and hence
courts of their own; with them this matter of appeal has
no concern. For the reasons enumerated, then, the
Court Baron, the civil jurisdiction which lords, big or
little, had over their freehold tenants ended long before
the close of the middle ages. Something approaching it
was perhaps occasionally used in connection with the
jurisdiction over villeins . 3
The villein court, the Court Customary of the manor,
lasted much longer. But forces were at work in the four¬
teenth and fifteenth centuries that were undermining it.
1 A. and S., p. 66. This was in 1259. The words false judgment are
important, for it was by enforcing the principle here stated that progress
was made towards building up the modern conception of appellate juris¬
diction. For an account of the origin of appeal from court to court, see
P. and M. ix., 664-669.
3 Maitland, Introduction to Select Pleas in Manorial Courts , p. lix.
3 It must be remembered that the Court Customary, the villein court,
was for those who held by villein tenure whether personally villeins or
not. On divergence of tenure and status, see above, p, 95.
Law Courts
i93
It has been seen that the outward mark of unfreedom in the
case of the villein w r as that he could not bring an action
in the king s courts, and that these courts came to their
conclusion upon an individual's status by ascertaining the
degree of uncertainty in his service. 1 Two changes, 2 which
began in the thirteenth century, so fundamentally modified
manorial conditions in the two following centuries as to
do aw r ay with this uncertainty of service. The first was
the commutation of payments in kind and labour to pay¬
ments in money. The increasing use of money as a med¬
ium of exchange made it possible for the lord to give
something for labour other than land, and for the tenant
to give something for land other than labour. A man
could leave the manor with some chance of placing him¬
self more advantageously elsewhere; at least, he could sell
his labour wiiere he could get the most for it. This tended
to break up the manorial economy and to make labour
free. Fugitives from manors increased; and such fugi¬
tives, if no proofs were brought to the contrary, were
always accounted free before the king's courts. 3 This
rise in the position of the servile classes was favoured by
the Black Death of 1348, which, for a time, placed the
peasantry upon the right side of the labour market, and
possibly to a slight extent by the peasant revolt of 1381.
The growth of copyhold tenure was a partial reflection
of this change. 4 This tenure certainly looked toward
that definiteness in the kind of service to be rendered from
day to day which was the touchstone of the royal courts
1 See above, pp. 94, 95.
* These changes were caused mainly by economic and social forces that
can not be considered here. See Cheyney, The Disappearance of English
Serfdom, The English Historical Review, xv., 20-37; Page, The End of
Villainage in England; Gray, The Commutation of Villein Services in Eng¬
land Before the Black Death, English Historical Review, xxix., 625-656;
and for some illustrative documents, W. and N., Problem IV. (A Fourteenth-
Century Labor Problem).
* See Frances G. Davenport, The Economic Development of a Norfolk
Manor , 1086-1565.
4 In copyhold tenure, instead of the service being based upon the mem¬
ory of man, an entry of the service was made upon the manor roll, and ordi¬
narily a copy of this, in the nature of an indenture was placed in the hands
of the peasant.
194 The Period of Constitution Making
in determining the free status of him who sought remedy
in them. But the tenure still retained some servile
characteristics, as, for instance, in the form of alienation’
and when, a century or more later, it came to a question
of the lord’s right to evict his copyhold tenant, the king’s
courts usually upheld that right. 1
The second change was the lord’s parcelling out of his
demesne into leases at a money rent. Where this was
done, the lord ceased to be an immediate employer of
labour. The labour service of his villeins and all the petty
litigation and consequent fines connected with it—an im¬
portant part of the manor court’s work—ceased to be of
consequence to the lord. He was becoming pure land¬
lord. “That fundamental relation between the lord and
the villein, that the former could force the latter to stay
on his land and work for him, was now a relation without
special interest or value.” 2
It should be constantly kept in mind in connection
with these two changes that the royal courts favoured
liberty, that is, they sought to draw to themselves as
much litigation as possible. When the question of villein
status was raised, the burden of proof rested upon the
lord, and it was usually a considerable burden; the kind
1 This was certainly a denial of the free character of the tenure as such.
But there were decisions in 1467 and 1481 to the effect that a copyholder
could bring an action against his lord if evicted contrary to the custom of
the manor. This was to recognise manorial custom as part of the com¬
mon law enforcible in the king's court, and cut down the business of the
Court Customary. The occasion of the evictions, whose number has prob¬
ably been greatly exaggerated, was the enclosing of large tracts of land for
sheep raising. This use of land was found increasingly profitable in the
late fifteenth and early sixteenth centuries. After this particular motive
for seizing copyhold land subsided, the nature of the tenure ceased to be a
burning question, and copyhold served, in most essentials, as a free tenure.
The rapid decrease in the value of money resulting from the development
of Mexican and South American mines made the money payments of the
copyholder trifling and he finally became about as much an owner of land
as the freeholder. But he could not vote for the knights of the shire who
represented the county in Parliament; from 1430 to 1832 this right be¬
longed only to the forty-shilling freeholders (see below, p. 390). During the
last century, this tenure has been rapidly disappearing.
2 Cheyney in English Historical Review, xv., 36. “A legal relation of
which neither party is reminded is apt to become obsolete; and that is
what practically happened to serfdom in England."
Law Courts
i95
of proof to be accepted was limited and the court was
strict. The Court Customary was thus being weakened
along two lines. Economic changes in the manor were so
modifying society and the relations of lord and peasant
as to remove its raison d'etre; as it became less and less
a source of income to the lord, he would cease to strive
to maintain it. Secondly, the all-absorbing royal courts
were ready to take advantage of every change which
might be construed as adding to the ranks of freemen,
and thus of possible litigants. There were other ways in
which individual villeins became free in the later middle
ages which it is unnecessary to discuss here. Only a
glance at the changes which affected the whole class has
been attempted. The Court Customary did not die
suddenly; it was decadent at the end of the middle ages,
but had some importance well into modem times. How¬
ever, the forces which were to bring it to an end have
been seen in full operation in the fourteenth and fifteenth
centuries. With this court is completed the list of the
older local courts which fell before the royal system. It
remains now to finish the consideration of the attempts
of that system to put into the localities something that
could work in harmony with itself, and that could furnish
that local administration of justice which, in some form,
is always necessary. 1
It is essential to any judicial system that much criminal
business be done quickly and on the spot. Frequent as
judicial iters might become, the king would find it neces¬
sary to have resident criminal justices. From what has
been said of the sheriff’s tourn, it might seem that that was
destined to meet this need. But hardly had the tourn
come into existence before the king found that he must
have something more and something different. The
sheriff was too great a local, landed personage to be en¬
trusted with a power that would have to be extended in
many directions as the peace-keeping and administrative
1 See above, pp. 180-182.
196 The Period of Constitution Making
activities of the central government multiplied. Henry
II.’s dissatisfaction with the sheriffs and the grounds for
it are shown in the famous Inquest of the Sheriffs. 1 The
situation called for the creation of a local official who
should be strictly under royal control and to whom part of
the sheriff’s work should be given. Such a creation we
find in the establishment of coroners in the reign of Henry
II. There is evidence of something like a coroner in
Henry I.’s time, when occasional mention was made of
justices who were to “keep the pleas of the crown.” It
was in the earlier reign that the conception of crown pleas
first became at all clear. 2 Like Henry I.’s other devices
coroners, if there were any, disappeared under Stephen!
Henry II. *s cor oner was a local j ustice, chosen probably bv
th e shire cou rt an d trom~fche classof knig hts. TTighoi^
a justice implies that he tried c ases and could empanel a
j ury to make presentments. If he had not actually tried
cases, he could not, according to the ideas of the time,
have used a jury. But he also kept thejpleas of the crown,
and this came to be his special workjit meant that he
held prelim inary he arings and kept a record of l ocal
criminal matters f or later u se b y sherif f or itin erant jus tice.
This wasHls principal work in Richard’s reign, as is shown
by the well-known mention of him in the commission of
the itinerant justices in 1194.* This has often been re¬
garded as the order creating the office, but the coroner’s
previous existence has been proved, and this order was
undoubtedly for the purpose of making coroners general
throughout the counties and fixing their number and
duties. But that the coroner did not cease to be a justice
at least until 1215 is proved by article 24 of Magna C arta,
which forbad the sh eriff as well as the coroner to ho ld
p tearof the~crown . :r "The sheriff continued to be a justice
in~fheTesser criminal cases and in civil cases, but the
1 A. and S., document 15. 2 See above, p. 160, note 2.
3 A. and S., p. 30; W. and N., p. 93: "Moreover, in each county let
there be chosen three knights and one clerk keepers of the pleas of the
crown.”
4 A. and S., p. 46; W. and N., p. 386.
Law Courts
197
coroner’s judging functions became slender and his duties
largely those which he has since kept. But there were,
for a time, a vagueness and elasticity about them which
allowed exceptions and which are a reminder of the original
motive in making the office. During the thirteenth cen¬
tury, the coroner held inquests in cases of sudden death
or injury, and preliminary hearings in criminal cases in
which appeals had been made; his place in the county
court was often much like that of the sheriff, and he might
try civil cases there; he could even hold the sheriff’s town*
But aside from his judicial functions, and of more im¬
portance than some of them, was his work as a local admin¬
istrative official of the king. In this, he supplemented or
took the place of the sheriff. In fact, he was often so
much like the sheriff that it is hard to see what the dis¬
tinction was. One thing is certain: the kings intended
that these locally elected knights, two or four to each
shire, should check the power of the single aristocr atic
sheriff, under whom ther e might in deed be mor e than one
shire.. At about the same time t he choo sin g of certain
juries was taken fr om the sherif f and imposed* on the
county court—another royal means of limiting the sheriff
and seeking good l ocal s ervice by making the pe ople help
injt/l
' But the coroner did not wholly solve the local govern¬
ment problem. Before the end of the thirteenth century,
local complaints were made about him as well as about
the sheriff. Just why limitations were so early placed
upon the coroner’s judicial activities is hard to tell. 1
Inasmuch as the final solution of the problem was found
in groups of local magistrates appointed by the king, one
is led to surmise that the trouble with the coroner lay in
his elective character, but our imperfect knowledge of
the conditions of the time prevents us from understanding
why. But the coroner was the king’s first experiment in
1 The right to empanel a jury which the coroner still has is a survival
of that transient twelfth-century phase of his existence when he was a
bona fide justice.
198 The Period of Constitution Making
building up a local government in harmony with the
rapidly growing central government, and he hit upon
knights as the class best fitted for this purpose. These
facts, together with the considerable local importance
which the coroner continued to have, are reasons for no¬
ticing him in this connection. 1
Besides the local use of knights just mentioned, we have
seen their increasing importance on all sorts of juries and
their association with justices in holding the assizes; and
when gaol deliveries were entrusted to local commissions,
knights might have to exercise criminal justice of the
highest sort. This last-mentioned use of knights was,
as will soon appear, a very interesting foreshadowing.
But we have now to consider knights in a new capacity,
as conservatores pads or custodes pads , or, without special
designation, their use, on certain occasions, for purposes
connected with keeping the peace. Here they were
clearly supplementing the work of both sheriffs and
coroners, and were often regarded as a check upon the
sheriffs. The king was still dissatisfied with the policing
and general administering of the localities. It is interest¬
ing to note how early in the history of the coroners this
new use of knights began. In 1195, the justiciar, Arch¬
bishop Hubert Walter, issued an edict by which knights
were appointed to take oaths throughout the kingdom
from all over fifteen years old. By this oath, men bound
themselves not to be thieves, robbers, or the receivers of
such, to join in the hue and cry, etc.; and malefactors
taken as a result of the edict were first to be delivered to
the knights and the knights were to deliver them to the
sheriffs. 2 In the “writ for enforcing watch and ward and
the assize of arms” 3 in 1252, the king assigned two knights
to each sheriff, the three to co-operate in taking oaths
throughout their shire that proper arms be borne, con¬
stables appointed, and other matters looking to the preser-
1 A most satisfactory account of the origin and activities of coroners is
in Gross’s Introduction to Coroners' Rolls (Selden Society Publications,
vol. ix.).
2 Stubbs, Select Chatters , pp. 257, 258. 3 Ibid., pp. 362-365.
Law Courts
199
vation of the peace attended to. By the Provisions of
Oxford, 1258, four knights from each county were chosen
to keep the pleas of the crown; 1 but, in their case, this
function was to be interpreted broadly 1 they were expected
to do almost anything in the way of detecting criminals
and preparing cases for the itinerant justices. Equally
broad powers, but with more detailed instructions on the
use of the posse comitatus and the pursuit of criminals, were
given to the custodians of the peace appointed in 1264. 2
Such was the increasing need of knights that as early as
1224 the king began issuing writs for what is known as
“distraint of knighthood”;* they were to compel all
whose land brought an income of twenty pounds a year,
whether they held from the king or others, who “ought
to be knights and are not,” to receive the insignia of
knighthood within a specified time. The evident disin¬
clination to become knights is striking testimony to the
many duties of the class. In the early years of Edward
I., knights were, upon several occasions, put to uses simi¬
lar to those just mentioned. In the famous Statute of
Winchester, 4 1285, Edward repeated, with important
additions, the assizes of arms and watch and ward; and
in the elaborate arrangements for keeping the peace, in
the local “constables chosen” and “justices assigned,”
there was an advance in the royal attempts to devise an
effective local government controlled by, and in harmony
with, the central.
The decline of the sheriff’s power kept pace with the
increasing local use of knights. The Statute of Marl¬
borough, 1267, exempted from the sheriff’s tourn all above
the degree of knights unless they were specially summoned.
Many boroughs were allowed their own view of frank¬
pledge, thus taking an important duty from the tourn.
Edward II. continued the use of the new local guardians
of the peace, with some enlargement of function on the
1 A. and S.» p. 57. 2 Stubbs, Select Charters , pp. 399, 400.
3 W. and N., pp. 96, 97; A. and S., pp. 70, 71.
200 The Period of Constitution Making
administrative side. Year after year commissions were
issued appointing them until they were an indispensable
and regular part of government; and at the beginning of
Edward III.’s reign, they were about to receive the powers
and organisation which gave their office its completed
form. They were appointed by the king, not locally
elected. This point must receive some notice here. The
coroner failed to supply the desideratum in the local gov¬
ernment, perhaps because of his elective character. It
was natural that he should have been locally elected, for
he originated at just the time that the king was learning
the wisdom of taking from the sheriff the appointment of
certain juries, and assigning it to the county courts. But
in the thirteenth century a new method was tried; the
kin g himself, probably from locally furnished lists, ap¬
pointed the knights who were to be keepers of the peace.
And, as far as can be learned, this remained the method,
with the exception of a few occasions early in Edward
I.’s reign. On those occasions, local election was used,
and, it may be added, was often used at other times to fill
vacancies when death or other cause suddenly terminated
the service of those appointed by the king. The system
of royal appointment has been justified by the later his¬
tory of the justice of the peace. He was a king’s official
and his court a king’s court, a court of record. 1 2 His
appointment by the king seems to have been an indis¬
pensable element in securing the satisfactory correlation
of central and local jurisdiction and administration. 3
After some interruption late in Edward II.’s reign,
conservators of the peace were again appointed in 1327;
and in 1328 is the first indication of their exercising a real
1 One among the justices in each county was charged to keep the record;
he was the custos rotulorum. In the Tudor period, the Lord Lieutenant of
the county, who was a sort of honorary head of the justices and who
often recommended who should be appointed, was generally custos rotu¬
lorum.
2 In the reign of Edward III., Parliament presented some urgent peti¬
tions that justices of the peace be elected. There was also a demand that
sheriffs be elected. The king firmly and, as it has^proved, wisely, with¬
stood these demands.
Law Courts
201
judging function. But, for some time after that, judging
was not their ordinary work; they were still “little more
than constables on a large scale.” In 1330, some of
their duties were defined and enlarged and their relations
to the justices of assize made clear. After speaking of
the justices of assize, the statute continues:
. . . also there shall be assigned good and lawful men in
every county to keep the peace; and in the said assignments,
mention shall be made that such as shall be indicted or taken
by the said keepers of the peace, shall not be let to mainprise
[bail] by the sheriffs, nor by none other ministers, if they be
not mainpernable by the law; nor that such as shall be in¬
dicted, shall not be delivered but at the common law . . .
and that the said keepers shall send their indictments before
the justices, and they shall have power to enquire of sheriffs,
jailers, and others, in whose ward such indicted persons shall
be, if they make deliverance, or let to mainprise any so in¬
dicted, which be not mainpernable, and to punish the said
sheriffs, jailers, and others if they do anything against this act. 1
It is easy to see how such an official would cut into the
parallel work of the sheriff’s town, weakened as this court
already was. From this time, this last judical stronghold
of the sheriff steadily declined until its practical extinction
in the reign of Edward IV. 2 It was in 1361 that the
judicial work of the keepers of the peace was made regular
and important, and in the same year they were first called
justices of the peace. An act of that year granted them
the power to “hear and determine at the king’s suit all
manner of felonies and trespasses done in the same county
according to the laws and customs aforesaid”; and there
was added significantly: “And the king will, that all
1 A. and S., p. 101.
2 The triumph of the justices over the sheriff culminated in 1494. By
statute they were “empowered to entertain complaints against the sheriff
as to extortions practiced by him in the county court, and to convict him
and his officers in a summary fashion.’^ This kind of summary trial with¬
out jury is being given to the justices in a number of cases. “ The prac¬
tise begins in the fifteenth century and becomes very usual in the sixteenth;
parliament is discovering that for petty offences trial by jury is a much too
elaborate procedure.” Maitland, C. H. E., pp. 208, 209.
202 The Period of Constitution Making
general inquiries before this time granted within any
seignories, for the mischiefs and oppressions which have
been done to the people by such inquiries, shall cease
utterly and be repealed.” 1 By this act they first became
really justices. From this time till the end of the middle
ages, there was no crime except treason that could not be
tried before the justices of the peace. Thus they and the
justices of assize were, on the criminal side, doing the
same work, and (much that had formerly been done by
the justices itinerant was now done by these justices
resident. 2 It was an awkward situation, and not until
after the Tudor period was a serious attempt made to dis¬
tinguish between the two jurisdictions.
As the new local courts encroached upon the town's
business of indicting and holding preliminary hearings,
the sheriffs became more and more solicitous about their
declining jurisdiction and the accruing profits. They
were tempted to many abuses, especially the entertain¬
ing of accusations made for purposes of extortion. There
was an increasing outcry against these misdeeds during
the fifteenth century, and in the first year of Edward IV.
an act was passed to the effect that in the future
the above persons [sheriffs and their various deputies] should
not have power to arrest anyone, or levy fines by colour of
indictments so taken; but they should deliver all such indict¬
ments to the justices of the peace at their next sessions of the
peace, under the penalty of forty pounds. 3
On the face of it, this would seem to take away from the
town everything except view of frankpledge, but in after
1 A. and S., pp. 127, 128.
2 This parallelism of jurisdiction and the early popularity of the justices
of the peace are illustrated in the petition of the commons, in the oppres¬
sive and troublous early reign of Richard II., " that during the war justices
in eyre and of trailbaston shall not go on circuit among the said poor com¬
mons, but that the justices of the peace hold their courts according to the
tenure of their commission. "—A. and S., p. 143* Justices of trailbaston
(first heard of in 1304) were circuit justices specially commissioned to deal
with the organised bands of lawless followers and desperadoes known by
that name. On the lack of civil jurisdiction allowed to justices of the
peace, see above, p. 185, note 3.
3 Reeves, History of the English Law , ii., 10.
Law Courts
203
years uncertainty arose as to just what it had been the
intention to include in this restriction. It was finally
interpreted as applying to felonies and all the more serious
crimes, also to new matter made punishable or actionable
by statute. In this crippled condition, the tourn outlived
the middle ages, and the sheriff, who had been a dangerous
local power for four centuries and against whom a long
line of strong kings had waged relentless war, was fast
becoming a minor executive officer in the county. 1
The justices of the peace, as judges acting under royal
commission, of course used the jury procedure of the older
royal courts; but they had to deal with many petty
offences which demanded a summary process. The
variety of their work led to a distinction in the business
and names of their sessions of court. A single justice
exercised many police functions and was empowered by
statute to deal with a few petty offences. His principal
business was to conduct preliminary hearings. 2 Two or
more justices could act together in what came to be
known as Petty Sessions; they sat usually, but not neces¬
sarily, at an accustomed time and place and for a definite
part of the county, often the hundred. They dealt with
many cases summarily 3 and with some that required jury
trial. The chief court held by the justices was, from the
1 The sheriffs were much hated in the fourteenth century as exploiters of
the counties. They took the counties at a rent and got what they could
out of them. This started an attempt by Parliament, evidenced by a
series of acts, running from 1354 to 1444, to make the sheriff an annual offi¬
cer. This succeeded in the fifteenth century and was decisive in the sher¬
iff’s decline. He was no longer the military and police head of the county.
He carried out the courts’ orders, such as seizing property, making arrests,
keeping the gaol, and hanging felons. The office became undesirable and
much of the work was often left to an undersheriff, for whom the sheriff
was responsible. By the seventeenth century it was hard to get men to
take the office of sheriff; but they could be, and were at times, compelled
to do so. Yet in his low estate the sheriff still kept his ceremonial dignity
—“he is the greatest man in the county and should go to dinner before the
Lord Lieutenant.” On the sheriff's decline, see Jenks, Government of the
British Empire, p. 326.
2 That is, committing to prison or letting out on bail before trial, or
dismissing the charge. .
3 Below the indictable offences was growing a class of pettier offences
which could be tried without jury before the justices of the peace. They
were all created by statute.
204 The Period of Constitution Making
fourteenth century, and is still, known as Quarter Ses¬
sions. It was, in theory, made up of all the justices of
the county; but all seldom attended, even in the early
days when there were few justices to the county. It
finally became established that two might constitute a
legal session. The origin of Quarter Sessions was in an
act of 1362
that in the commissions of justices of the peace, and of la¬
bourers, 1 express mention be made, that the same justices
make their sessions four times by the year, that is to say, one
session within the utas of Epiphany, the second within the
second week of Mid-Lent, the third betwixt the feasts of
Pentecost and Saint John Baptist, the fourth within the
eight days of Saint Michael. 2
This court tried the great criminal cases that were outside
the competence of the Petty Sessions, and also heard
appeals from that court and from the court held by a
single justice.
In studying his origin, it has been seen that the justice
of the peace, or keeper of the peace as he was first called,
was a police officer, a sort of head-constable, before he
became a judge; this earlier character he never entirely
lost. Another set of functions, the administrative, of
which he had always had some, became very important
toward the end of the fourteenth century. Much effort
was expended in attempts to enforce the labour legisla¬
tion of that century; the justice became the chief medium
of communication between the king and the localities,
all minor officials were made answerable to him, and
1 These were justices given a special commission to enforce the Ordi¬
nance and Statute of Labourers of 1349 and 1351 (A. and S., pp. 114-117).
They might or might not be identical with the justices of the peace. After
1368, no separate commission for enforcing the labour statutes was issued;
that function was included in the commission of the justices of the peace.
In 1427 they were even empowered to fix the legal rate of wages. See Miss
B. H. Putnam, The Justices of Labourers in the Fourteenth Century. Eng-
lish Historical Review, xxi., 517-538. See also her The Enforcement of the
Statutes of Labourers.
2 A, and S., p. 129.
Law Courts
205
Quarter Sessions became a veritable governing body for
the shire.
Until 1439, there was no legislation which bore directly
upon the qualifications for this office. Knights had usu¬
ally been appointed; but there is evidence that men of
smaller substance were occasionally justices, for the abuse
of the office for purposes of extortion became serious
enough to be taken account of by the government. An
act of 1439 contained this clause:
the king willing against such inconveniences to provide remedy
hath ordained and established, by authority aforesaid, that
no justice of peace within the realm of England, in any county,
shall be assigned or deputed, if he have not lands and tene¬
ments to the value of xx pounds by year. 1
This annual value was the old measure of the knight's
fee. This fixed the policy of identifying the new office
with a class of men above bribery and of consideration
and authority in their neighbourhoods. In modem times,
the office has become purely honorary; but from the reign
of Richard II. until after the close of the middle ages, a
fee of four shillings a day was allowed the justices. The
number of justices for each county was limited by statute
in 1388. This limitation was not strictly regarded, how¬
ever, and the number became variable with a general
tendency to increase. 2
Thus by the middle of the fifteenth century, England's
local, aristocratic system of government had been made,
' 2 “Towards the close of Elizabeth's reign no less than fifty-five are
enumerated in Devonshire alone. The smallest counties now contain many
more than six; while the most numerous magistracy—that of Lancashire—
reaches to more than 800. The whole number must be little short of
20 000* but considerably less than half of these are ‘active’ justices who
have taken the requisite oaths and received from Chancery the necessary
writ of power.”—Medley, English Constitutional History f p. 425*
boroughs early acquired their own justices whom they elected. Where
such was the case, it was stipulated in the charter whether the borough
was independent of the county justices or whether borough and county
justices had concurrent jurisdiction. The borough justices also have their
Quarter Sessions. And there are borough coroners.
206 The Period ot Constitution Maiang
with most of the features which have conditioned its suc¬
cess and fame in modern times. No such system was
possible outside of England, for no other country in
Europe possessed that peculiar middle class of country
gentry. It might seem that the king’s depriving the
sheriffs of local power and bestowing it in augmented form
upon the justices of the peace, was merely breaking down
one feudalising and disintegrating element in order to set
up another. But the gentry possessed just the degree of
approach to the class below and of distinction from
the higher nobility to be an instrument for this
local work. Knights were too self-respecting and sub¬
stantial to become petty eye-servants, too small to
make any setting up of local authority upon their own
private account seem attainable. “It is such a form of
subordinate government for the tranquillity of the realm
as no part of the Christian world hath the like, if the
same be duly exercised.” 1
1 Cited from Coke's Fourth Institute , p. 170, in Maitland's Justice and
Police , p. 93. Chapter viii. of the latter work is the best brief account
of the county magistracy as it exists to-day. Jenks comments upon the
uniqueness of England's local government in his Law and Politics in the
Middle Ages , pp. iSc-184: “The comparative success of England in the
matter of local government has given her a unique place among Teutonic
countries, if we except, perhaps, Scandinavia. With this possible excep¬
tion, England, and England alone, has succeeded in reconciling the abso¬
lute supremacy of the State with the existence of local independence.
While the State in France became a rapacious bureaucracy, tempered only
by municipal and feudal disintegration; while the State in Germany died
of inanition, and gave place to a crowd of absolute principalities, whose
rulers treated their subjects as food for the cannon, or as milch kine for
the supply of taxes; the State in England developed into a strong unity,
whose elements yet maintained that vivid consciousness of local life
which is essential to the existence of a free and self-respecting nation.
The State in England has not ruled through feudal proprietors; therefore
there have been no hereditary local despots who have defied her mandates.
She has not destroyed the old landmarks; therefore her subjects have not
felt themselves to be helpless atoms under the heel of a bureaucracy. Her
officials have not been a privileged caste of adventurers, speculating in
their offices, and exempt from the ordinary rules of law; therefore they
have respected the rights of the citizen, and are by him regarded neither
with j ealousy nor with fear. The State has boldly used the local units as the
basis of its own organisation. . . . In England the State has fearlessly
left to local control much that a timid State keeps in its own hands—police,
road-making, sanitation, education. The result of the whole policy has
been to foster, if not to produce, some of the best features of the English¬
man’s political character; his deep respect for law, his independence in
Law Courts
20 7
3. Origin and Early History of Equitable Jurisdiction,
Especially the Court of Chancery.—Royal prerogative,
the king’s sovereign power as exercised m Ms central
court or council, had not, in putting forth such mighty
judicial branches &s the common-law courts and the itin¬
erant justice system, 1 drained itself of authority or ex¬
hausted its ability to create. It has been shown how, in
the* reign of Henry L, there were two regular manifesta¬
tions of this central court: the fuller meeting of tenants-
in-cHef, summoned at the three great yearly festivals
and at other times as occasion required, and the small body
of officials and barons in attendance on the king, which
the increasing business of the central government kept
quite continuously in session. 2 The larger body, after
the dropping out of the minor barons and a partial change
in the basis of attendance, was, in the early fourteenth
century, the embryonic House of Lords; 3 while what
there was left of the smaller body, after it had thrown off
the court system, was the early Council. 4 But in both
of these, there remained the undifferentiated prerogative
power of the king; in conjunction with the king, either
might exercise what would now be distinguished as execu¬
tive, legislative, or judicial functions. And even at the
date named, any conscious distinction between the two
bodies themselves must have been slight. One could
quite imperceptibly become the other. The smaller had,
perhaps, a more official character—certainly there was a
large body of officials—but it was attended by such of the
prelates and barons as the king wished at his court, and,
by a quite arbitrary summons of more prelates and barons,
it might become the larger body. While the bulk of judi¬
cial business had, of course, gone to the court system,
the face of authority, his self-reliance, his practical good sense, his will¬
ingness to compromise, his sincere though silent patriotism.” The lack
in continental countries of almost everything which characterises England’s
local system has led many continental writers to pick out the local magis¬
tracy as the most distinctive and valuable feature of the English con¬
stitution.
1 'See Part III, § I., x. 2 See above, pp. 116-119.
3 See below, pp. 341,342. ■* Ibid., pp. 296-299.
208 The Period of Constitution Making
these original bodies still retained the power to deal at
first instance with any case, criminal or civil, which the
king cared to bring before them. They entertained many
cases of a special character, and had, as was natural, a
kind of supervisory jurisdiction over the ordinary courts.
While finally ceasing to be an administrative body, the
House of Lords carried over from its earlier history, and
has always retained, certain judicial functions. When it
was the king's feudal court, the king’s vassals were judged
in it by their fellow-vassals, their peers; in it, as in any
feudal court, was judgment of peers {judicium parium).
In the House of Lords, any English peer has the right to
be judged, in capital crimes, by his fellow peers. 1 In the
procedure, known as impeachment, which developed late
in the fourteenth century, the House of Lords judges and
the House of Commons prosecutes. 2 In the same century
it was established that the Lords constituted the highest
court of appeal for all England, 3 a position they have con¬
tinued to hold except in a few classes of civil cases which
are appealed to the Council. And to the end of the Lan¬
castrian period, and even later, the large number of pri¬
vate petitions of legal right received by Parliament con¬
stituted the chief routine judicial work of the Lords. 4
When the Lords were engaged in this judicial work,
they were known by the technical and curious name of
1 That is, for treason or felony. The House of Lords constitutes the court
and judges both fact and law if Parliament is in session at the time of
trial. If not, the king appoints a Lord High Steward who chooses twenty-
three peers to act with him; he judges the law and they the facts. After
1688 all the peers have had to constitute the Lord High Steward's Court
in cases of treason. A statute of 1422 secured these rights of trial to peer¬
esses. For lesser crimes, misdemeanors, and in civil litigation peers are
judged by the king's justices; and in cases of felony their special rights
have often not been claimed. The last trial of a peer by his fellow peers
was about 1840.
2 See below, p. 424. For a description of the modem, central judicial
system, see Maitland, Justice and Police , chs. v. and vi.
3 As a court of ^appeal the House of Lords is, more technically, said to
have jurisdiction in error. This draws the important distinction between
trying the same facts twice (which was repugnant to the English law) and
correcting errors in law. Through the attaint jury, however (see above,
p. 164, note 2), the same facts were tried twice.
4 See below, pp. 397, 398, andpp. 414, 415.
Law Courts
209
“king in parliament”—curious, because it perpetuated an
idea derived from the primitive relation of the king and his
feudal court, long antedating anything that could properly
be called Parliament. 1 But there was also a tribunal
called “king in council,” and this was the Council, the
descendant of the smaller continuous court, acting in its
judicial capacity. 2 We have seen that both bodies might,
at the beginning of the fourteenth century, entertain any
civil or criminal case. While the larger, which was to be
the House of Lords, specialised its judicial activity along
the lines just mentioned, and generally followed the rules
of common law, the smaller, the future Council, retained
the earlier and broader competence, and tended to adopt
the methods of equity. During the fourteenth and fif¬
teenth centuries, there developed from the latter, in both
the criminal and civil fields, something of great importance
in English judicial history.
The criminal side can be dealt with briefly. The late
fourteenth and the fifteenth centuries were, for England,
a time of degeneration and lawlessness among the nobility.
Starting in the factional strifes and personal hatreds of
Edward II.’s time, the lawless tendencies were stimulated
by the endless foreign war. It was the time of livery and
maintenance . In suits to which the great and powerful
were parties, juries were so bribed or intimidated that a
fair trial in the ordinary courts was exceptional. Just
when Englishmen first began to realise what a valuable
and unique thing the jury was, it was being proved a fail-
1 On tlie earliest use in England of the word parliament, see below,
pp. 362-364.
2 Speaking of “the king in parliament” and “the king in council, ” Mait¬
land says: “And the two are not so distinct as an historian, for his own
sake and his readers’, might wish them to be. On the one hand those of
the king’s council who are not peers of the realm, in particular the judges
and the masters of the chancery, are summoned to the lord’s house of par¬
liament, and only by slow degrees is it made plain to them that, when
they are in that house, they are mere 1 assistants’ of the peers and are only
to speak when spoken to. On the other hand there is a widespread, if not
very practical, belief that all the peers are by rights the king’s councillors,
and that any one of them may sit at the council board if he pleases.”—
Maitland and Montague, Sketch of English Legal History, pp. 116, 117.
210 The Period of Constitution Making '
ure in a certain class of cases. It had become established
that cases involving capital punishment could only be
tried by a jury, but there was still a very useful sphere of
activity for a court not bound by established rules of
procedure and which could not be bribed or intimidated.
The Council became such a court, acting on its own origi¬
nal judicial authority and on several statutes of the Lan¬
castrian period which specially empowered it to deal with
certain cases. 1 It exercised a sort of supplementary
criminal jurisdiction, and punished severely by fine or
imprisonment. Rioting, conspiracy, and bribery furn¬
ished it much work; and of special importance was its
activity in bringing perjured jurors to justice. Here was
a method of preventing the complete degeneration of the
criminal jury; when the juror accepted a bribe or yielded
to fear, he knew that he might be severely dealt with for
it. The way of the fifteenth-century juror was hard, the
local terror on one side and fine or imprisonment at the
hands of the Council on the other. The procedure of
the Council was summary, and, in other respects, in
sharp contrast to that of the common-law courts. It
has been described as doing justice in an ‘ ‘ administrative
way.” It utilised many of the methods of the canon law.
It took short cuts to justice, and exercised what may be
termed a criminal equity. 2 3 It is evident that the Council
in this capacity might easily be a blessing or a menace to
the nation; much depended upon the character of its
1 “ It is impossible to draw any precise line between those offences which
the Council punished, acting as a government, and those which it noticed
in the character of a law court; and such a distinction, could it be made,
would only mislead, for it would hide what is the characteristic feature of
the period under review, the inseparable combination in the Council of
political and judicial authority.”—Dicey, The Privy Council , p. 106.
3 “It sends for the accused; it compels him to answer upon oath written
interrogatories.. Affidavits, as we should call them, are sworn upon both
sides. With written depositions before them the lords of the council, with¬
out any jury, acquit or convict. The extraction of confessions by torture
is no unheard-of thing.”—Maitland and Montague, Sketch of English Legal
History , p. 118. The Council's use of torture began in Edward IV.'s reign.
For the new forms of writs of summons, especially the sub poena , and the
significance of their issue under privy seal, see J. F. Baldwin, King's Court
and Chancery , American Historical Review, xv., 753, 754.
Law Courts
211
members, more upon the character of the king and whether
the king controlled it or was controlled by it. Its value
was great throughout the middle ages and during parts
of the Tudor period. Naturally the common-law judges
were jealous of it and there was much agitation against
it in Parliament; but agitation was in vain while this
criminal justice was exercised moderately and well. 1
The civil jurisdiction of the Council, like its criminal
jurisdiction and the appellate jurisdiction of the House of
Lords, had its root in the idea that the king was the source
of law, and in his administration of the law through his
court. This original undeveloped court or council gave
1 This^ criminal jurisdiction of the Council, as well as its growing civil
jurisdiction, was meeting with great opposition in the fourteenth century.
Statutes to limit or abolish it were passed in 1331, 1351, 1354, 1363, 1364,
1368. Later under Henry IV. and Henry V. the House of Commons
brought in bills to the same end, but the king vetoed them. But Par¬
liament was inconsistent and showed on several occasions that it was
glad to have a court which could act in this summary way. There were
notable instances in 1363, 1388, 1430, and 1453. Hence it is hard to tell
whether by the end of the fifteenth century the criminal jurisdiction of the
Council was legal or not. By that time the efforts against it had ceased,
and the people seem to have become reconciled to its moderate use of this
power. But the fourteenth-century statutes were unrepealed and were
used by the Long Parliament as a ground for abolishing the Star Cham¬
ber. This was the name used in later history for the Council when acting
as a court, and the name was of ancient origin: in Westminster, “a new
pile of buildings, between the great hall and the palace, and next to the
exchequer receipt, was begun at least as early as 1346. ... It was ex¬
pressly appointed for the use of the council, and was thenceforth so used.
It was called the 'star chamber’ from the first, though it was quite as
often referred to as 'the council chamber next to the receipt of the ex¬
chequer.”’—J. F. Baldwin, Antiquities of the King's Council, English His¬
torical Review, xxL, 16. Under the Stuarts, all the evil possibilities of the
court were realised; controlled by a despotic sovereign, it invaded the
liberty of the subject and did the exact opposite of its earlier service of
protecting the people against oppression. Consequently the Long Par¬
liament, in 1641, so regulated the Council's judicial capacity as to abol¬
ish this court. The idea, which obtained at this time, that the Star Cham¬
ber Court originated in the statute of Henry VII. (1487), which placed
this criminal jurisdiction in the hands of certain specified men— most of
them councillors—and which, for a time, practically took this work from
the Council as a whole, was without historical foundation. See further
J. S. Leadam, Select Cases in the Star Chamber , pp. ix.-Lxxi. (Selden Soci¬
ety, vol. xvi.) It should be remembered that the Star Chamber never
became a court and jurisdiction separate from the Council in any such
way as the Court of Chancery did. To the end it was little else than the
Council acting in its judicial capacity. Hence its abolishment nearly
wiped out the judicial functions of the Council.
212 The Period of Constitution Making
birth to special courts of law, but they were all king’s
courts. The king was less closely identified with them
however, than with their parent, his Council, and there
were no definite boundaries to the judicial powers remain¬
ing in it. 1 Such boundaries would have been paradoxical
for the king’s prerogative power was as yet but slightly
limited and the Council was the king in action. As such
it could exercise a concurrent, a supervisory, or a supple¬
mentary jurisdiction. We are next to examine the condi¬
tions in the fourteenth century w-hich made it necessary
for the Council to develop a new line of activity in civil
cases.
The system of writs, by which the common-law courts
gained their civil justice, and which laid the foundation
of the common law itself, has been described; as also the
rapidity with which new writs were created and the gen¬
eral adaptability of the new civil jurisdiction. 2 This
condition lasted till about the middle of the thirteenth
century. From that time, new forces began to limit the
creation of writs; that is, they limited the creation of
new actions, and hence tended to fix and stereotype the
common law. The writ-making power had been in the
hands of the Chancellor, always a learned ecclesiastic of
the king’s Council. Jn his increasing business, he had
gathered around him a staff of assistants, known as Masters,
1 It was but slowly, however, and well into the fourteenth century before
Exchequer and King's Bench had lost this larger and vaguer competence
and had become clearly differentiated from the Council. See above, pp.
176, note 3, 178, 179.
2 Ibid. , pp. 142-144,151, 152. The common law, that is, the law com¬
mon to all the country which the king was developing through his courts,
was equity to start with; it sprang from the royal prerogative, sought the
ends of justice irrespective of existing forms, and gave remedy where the
old courts (communal and private) failed. The original writs before they
became stereotyped are quite analogous to orders and actions of the
fourteenth-century Council in reply to petitions for grace or remedy against
the rigours of a^ common law now become stiff and formal. In some of
the earliest original writs (as prcecipe ) we even get a hint of the wording
of an old petition. Equity was no new thing in the fourteenth century;
its essence dates back to 1066. For a discussion of this matter and an ex¬
cellent summary of its literature, see G. B. Adams, The Origin of English
Equity, Columbia Law Review, xvi,, 87-98; and The Continuity of English
Equity, Yale Law Journal, xxvL, 550-563.
Law Courts
213
who were also ecclesiastics, and, like the Chancellor,
learned in the Roman law. The first important objection
to the issuing of new writs was when Henry III. made his
unfortunate attempt to rule without ministers and writs
were being issued without a Chancellor in an irresponsible
and unusual way. The common-law courts were be¬
coming established with their benches of judges. These
judges were not always ecclesiastics, as formerly; and
there had gradually formed a body of men, who might not
very improperly be termed professional lawyers, lhere
were already a body of law and a procedure that, in the
eyes of such men, could not lightly be modified, and prece¬
dent was becoming very important in the administration
of justice. The objection soon went beyond the matter
of the irregular issue of writs: the Chancellor, on his sole
authority, must not make new writs. To make new writs
was to make new law, and the idea was growing that the
law was nearly complete. By the Provisions of Oxford,
1258, the Chancellor was to swear “that he will seal no
writ, excepting writs of course, without the commandment
of the king and of his council who shall be present.” 1
Moreover the judges took it upon themselves to decide
whether or not writs issued by the Chancellor were inno¬
vations; they did this by refusing, if they saw fit, to allow
the use of such novel writs in the actions for which they
were issued. This was such an arbitrary and mischievous
checking of the law’s natural growth that a sort of com¬
promise was attempted in 1285 in the Statute of West¬
minster, the Second:
And whensoever from henceforth it shall fortune in the
chancery, that in one case a writ is found, and in like case
falling under the law, and requiring like remedy, is found none,
the clerks of the chancery shall agree in making the writ, or
etiall adjourn the plaintiffs until the next parliament and write
the cases in which they cannot agree, and refer them to the
next parliament, and by consent of men learned in the law,
1 A. and S., p. 58.
2i4 The Period of Constitution Making
a writ shall be made, lest it might happen hereafter that the
court should long time fail to minister justice unto com¬
plainants. 1 2
But even this slight power to innovate, merely creating
writs for actions which were similar to those already hav¬
ing writs of course, was opposed by the judges and soon
became inoperative. 3 “Henceforth the common law was
dammed and forced to flow in unnatural artificial chan¬
nels. Thus was closed the cycle of original writs, the
catalogue of forms of action to which nought but Statute
could make addition.” 3
The mention, in the Statute of Westminster, of Parlia¬
ment as a place of legislative authority and the use of the
word statute suggest that Parliament was about to solve
the difficulty by making new laws for new cases. But
there was no Parliament in 1285 in the sense in which the
word is now understood. In this act, it probably meant
nothing more than the king’s Council. But there was a
Parliament by the middle of the fourteenth century, and
the principle was being asserted that no new law of a perma¬
nent character could come from any other source. Had
Parliament then proceeded to legislate in a copious and
intelligent way, the need felt at that time would have been
met substantially as at present. But this early Parlia¬
ment stoutly opposed the making of new writs, and did not
itself produce their equivalent. After an extraordinary
outburst of legislation under Edward I., when Parliament,
if we may speak of one at all, was in its primordial frag¬
ments, there ceased, with a few noteworthy exceptions in
the fourteen century, to be important law-making until
the Tudor period. 4 This brings the situation squarely
1 A. and S., p. 76.
2 This very legislation of Edward I.'s reign, so abundant and funda¬
mental, fostered the idea that the Chancery was not the proper source of
new law.
* Maitland, J Station's Note Book.
4 “Parliament seems to have abandoned the idea of controlling the de¬
velopment of the common law. Occasionally and spasmodically it would
interfere, devise some new remedy, fill a gap in the register of writs, or
Law Courts
215
before us. Where were the new cases to go for which
the “dammed-up” common law and its courts did not
provide ?
It cannot be denied that, as time passed, a good many
small leaks began to show in the dam. While fearfully
afraid of avowed innovation in the law, the common-law
judges were not unmindful of changed conditions or of the
value of gaining new kinds of cases. But they must be
gained through such juggling with the old law as would
make it appear that there was nothing new. 1 There
was much, however, for which the common law did not
provide, or for which it provided inadequately; cases of
fraud and seizures at sea were of this sort. Plaintiffs be¬
gan to seek relief, in such matters, at the higher and more
ancient tribunal from which the common-law courts them¬
selves had sprung, the king in his Council. There might
be grounds for this action other than the inadequacy of
the common law to cover their cases: they were poor and
unable to bear the expense of ordinary litigation, or their
poverty rendered the law’s delay disastrous; they were
labouring under some local prejudice and distrusted jury
trial, or they were contending with a wealthy lord who
circumvent the circumventors of a statute. But in general it left the ordi¬
nary law of the land to the judges and the lawyers. In its eyes the com¬
mon law was complete or very nearly complete. And then as we read the
statute-roll of the fifteenth century we seem for a while to be watching the
decline and fall of a mighty institution. Parliament seems to have no¬
thing better to do than to regulate the manufacture of cloth."—Maitland
and Montague, Sketch of English Legal History , p. 106. But despite the
legislation of Edward I.*s reign and the wording of some fourteenth-cen¬
tury parliamentary assertions, one must conclude, on the basis of what
actually happened, that the idea of making new law by Parliament or any
other authority was but slightly developed in the middle ages. See also be¬
low, pp. 298, 418-420, for the effect upon statutory legislation of the
separation in the fourteenth century of Parliament and Council.
1 “In the fifteenth century there were great judges who performed
what may seem to us some daring feats in the accommodation of law to
new times. Out of unpromising elements they developed a comprehen¬
sive law of contract; they loosened the bonds of those family settlements
by which land had been tied up; they converted the precarious villein
tenure of the middle ages into the secure copyhold tenure of modem times.
But all this had to be done evasively and by means of circumventive fic¬
tions. Novel principles could not be admitted until they were disguised
in some antique garb.”—Maitland and Montague, Sketch of English Legal
History, pp. in, l?2.
216 The Period of Constitution Making
could buy or intimidate the jury and to whom delay was
indifferent. On the same plenary conception of his ju¬
dicial power, which authorised the king to pardon the
criminal condemned by the common-law courts , 1 he could
entertain in his Council the cases of these poor petitioners . 2
Thus, in the fourteenth century, the Council exercised
more and more, what it had never fully ceased to exercise,
a justice concurrent with, and supplementary to, that of
the common-law courts.
But the Council was a large, unprofessional body, and
if this line of activity were to increase and become regular,
some specialisation must take place within it. The king
could not attend to it personally, and the whole Council
could not. For two main reasons, the Chancellor was the
member of the Council to whom it was increasingly in¬
trusted. He had become the king’s chief minister by the
end of the thirteenth century, and presided over the
Council in the king’s absence . 5 If petitions were not
1 Speaking of the bearing of the royal prerogative upon England’s whole
judicial development, Professor Adams says: “The essential fact is the
existence of the king's prerogative; that is, of a power recognised as above
the ordinary everyday machinery of the state, whatever that may be at
any given time, and free therefore from the rules and regulations which
condition the running of that machinery. For this reason it is at liberty to
act as above the law to secure any sufficiently important object, the fur¬
nishing of justice to all, the enforcement of the rule of conscience, the es¬
tablishment of a system of criminal equity, the suspension of a statute for
a special purpose, the creation of a new offence by proclamation, or the
pardoning of a convicted criminal.” The Continuity of English Equity,
Yale Law Journal, xxvi., 550-563.
2 “Odd though this may seem to us, that court which was to become a
byword for costly delay started business as an expeditious and a poor
man's court.”—Maitland and Montague, Sketch of English Legal History,
p. 122.
3 The Chancellor was taking the place of the Justiciar, who, from the
Norman Conquest, had been the greatest official and had represented the
king in the latter’s frequent and long absences on the continent.. Henry
III. tried to be his own Justiciar. He finally was forced to appoint one,
but after the office became vacant in 1268 there was never another ap¬
pointed. This led to the rise of the Chancellor and marked progress in
the separation of the judicial and executive departments. Edward I.’s
Chancellor, Robert Burnell, was his leading adviser. “The Chancellor
first appears in England under Edward the Confessor. He was the chief
secretary, head of the king's chaplains, and keeper of the royal seal. The
name was derived from the cancelli or screen behind which he worked.
Owing to the literary qualifications of the office, in the early days it was
always in the hands of an ecclesiastic.” Medley, English Constitutional
Law Courts
217
brought directly to the king, they naturally went to the
man who most regularly represented him. 1 And the
Chancellor was a learned man with a corps of learned as¬
sistants, who knew the civil, that is, Roman, and canon
laws. The common-law judges had many a time bor¬
rowed the principles of Roman law in dealing with new
problems; an official specially versed in that law could
most appropriately entertain unusual cases. On general
principles, trained men were needed to deal with civil
cases, the most important of which had to do with the
increasingly intricate land law. Criminal cases brought
before the Council, might be handled summarily by the
king and the whole body; civil cases must be examined in
the Chancery. 2 It may be remarked further that the
Chancellor was more at leisure than he had for long been;
the writ business was declining—the chief reason, as has
been shown, for the Council’s growing judicial activity.
An ordinance of 1290 ruled that petitions to king and
Council must come through the hands of the Chancellor
or other minister. This was but a slight beginning, but
it emphasised the Chancellor’s position and early in the
next century a good deal of the Council’s civil jurisdiction
was being virtually turned over to him. By the end of
Edward II.’s reign, it had become a regular, perhaps the
History, p. 408. Also in the later days he was usually a bishop, although
there were a few lay Chancellors in the fourteenth century. See below,
PP i In^he early days these were not always sent to the Chancellor; some¬
times they went to the Treasurer. There was rivalry between Chancel¬
lor and Treasurer; there was a struggle. Practical reasons were leading
petitioners to select the Chancellor among the Councillors: his influence,
his writ-issuing function, his executive power in enforcing the law. Dur¬
ing Edward III.'s reign, reference through the Chancellor became regular.
2 This distinction arose first probably through the choice which the
suitor had between methods of treatment. The Chancellor used the great
seal while the Lord Privy Seal was becoming an increasingly important
member of the Council. By writs of privy seal cases could be concluded
more quickly and at less cost than by those of the great seal, but the
latter gave greater security. Finally it became an established pnnciple
that while “great criminal trials required the power and expedition of
nriw seal procedure, claims to title sought the security afforded by the
Instruments of the great seal.” There is much valuable matenal on this
whole subject in Baldwins The Kings Council, ch. x., Council and
Chancery."
218 The Period of Constitution Making
most important, part of his work. Moreover, suits to
which the king was a party, suits which, before this, the
king had apportioned quite evenly between the common-
law courts and the Council, he now preferred to have tried
before the Chancellor. Nevertheless, Chancery emerged
as a court separate from the Council gradually, almost
imperceptibly. For a long time, civil cases, like criminal,
were brought to the “king in Council,” and were heard
directly by him and his Council or were turned over
to the Council’s chief official as the royal convenience or
the nature of the case dictated. 1 As time passed, an
increasing number actually went to the Chancellor. 2
But in either case, the work was done in the Council, and
no one was conscious that anything new was being made.
Finally it was an accomplished fact; in Richard II.’s
reign, it could no longer escape notice that out of the
Council a new court had grown, and men began to speak of
it as such. But even at that time, it was hardly a sepa¬
rate jurisdiction; it was rather a permanent and recognised
judicial committee of the Council, constantly drawing its
authority from that body.
While Chancery grew, it used new principles and de¬
veloped a new procedure. Indeed, its growth depended
upon its ability to do this. As, at an earlier time, the
king’s court and its first offspring, the common-law courts,
were plastic, and developed a law and procedure vastly
different from the antique formalism of the Anglo-Saxon
court system, 3 so now Chancery was measurably in the
same relation to these common-law courts, now them¬
selves growing old and formal. But history was not to
1 At first there was little distinction between the petitions presented to
Parliament and those to the Council. At each session of Parliament com¬
mittees of hearers and triers of petitions were appointed. The Council
dealt with those left over and those presented when Parliament was not
in session.
2 In Edward III.’s reign, the form of petition was often to Chancellor
and Council. This was transitional, and soon the address was to the Chan¬
cellor only. In the same reign the Chancellor began to administer jus¬
tice on his own authority without a preliminary writ.
3 See above, p. 143 and note 2.
Law Courts
219
repeat itself to the extent of Chancery’s assimilating or
exterminating these courts. The common law was virile,
but needed supplementing at a time when it refused to
grow fast enough and was not being helped by statute.
It was Chancery’s use of new principles 1 and procedure
that was mainly responsible for its recognition as a dis¬
tinct court. The procedure was partly derived from the
ecclesiastical courts and was partly a new creation to
meet existing needs.
In flagrant contrast to the common law, it forced the
defendant to answer on oath the charges that were brought
against him; it made no use of the jury; the evidence con¬
sisted of written affidavits. 2
The Chancellors’ training in Roman and canon law
did not lead to a wholesale borrowing of that law for their
court, as has often been taken for granted. They did not
abandon the common law and adopt a new system. While
they knew of the equitable jurisdiction of the Roman
Prsetor, they did not attempt to adopt the results of that
jurisdiction. Rather, both Roman Praetor and English
Chancellor, mutatis mutandis , acted under the same funda¬
mental authority, the authority of the sovereign as source
of law, to deal with the law as occasion required. 3 When
1 Chancery was giving new remedies. For instance, if a man broke his
contract all that the common-law courts could do was to fine him. The
Chancellor could force him, on pain of imprisonment for contempt of
court, to keep the specific contract.
2 Maitland and Montague, Sketch of English Legal History , p. 125.
3 This principle, as far as the nations of western Europe are concerned,
originated in Rome. Of its ultimate source there and its disposition dur¬
ing the Republic, Sir Henry Maine says: “At the crisis of primitive Roman
history which is marked by the expulsion of the Tarquins, a change oc¬
curred which has its parallel in the early annals of many ancient states,
but which had little in common with those passages of political affairs
which we now term revolutions. It may be best described by saying
that the monarchy was put into commission. The powers heretofore ac¬
cumulated in the hands of a single person were parcelled out among a num¬
ber of elective functionaries, the very name of the kingly office being re¬
tained and imposed upon a personage known subsequently as the^ Rex
Sacrorum or Rex Sacrificuius. As part of the change, the settled duties of
the supreme judicial office devolved on the Praetor, at the time the first
functionary in the commonwealth, and together with these duties was
220 The Period of Constitution Mating'
Chancery is spoken of as a court of equity or the Chan n
as exercising an equitable jurisdiction, the meaning kit,
while the common law was used as far as possible •
was found that its use resulted in what was not eauitaKi
or in conformity to the dictates of conscience then it
modified or supplemented as the ends of justice seemed
require. In doing this, the Chancellor might use V
Roman or canonical learning, but he more often preferm
to extend or modify some already existing principle
the common law. 1 He was, as it has been expressed mak
ing an appendix to the common law. He was not con
cerned with making a new body of law; he dealt witl
each case singly as it arose. Generalisation was not hi!
function, and, m the early days, past decisions were no-
much used as precedents. “Sufficient for the dav are tk
cases in that day’s cause-list.”
The common-law judges were not friendly to this up
start jurisdiction, and protest against it often found voici
in Parliament. 2 In the early days, before Chancery at
tempted much supervisory jurisdiction, the chief objectioi
was against its purely common-law practice. When th<
transferred the undefined supremacy over law and legislation whid
always attached to ancient sovereigns, and which is not obscurely relate!
to the patriarchal and heroic authority they had once enjoyed ”-IS
Law, pp. 61, 62. Since the Norman Conquest, the English kings had bea
more and more putting their judicial authority into commissionTb
analogy between the fourteenth- and fifteenth-century Chancellor and tin
Roman Prastor is m many respects striking. a ™
1 “ To restrain an unconscionable or inequitable use of legal rights is no>
(such seems the theory) to override the law, it really is to do what tbi
law means to do, but is prevented from doing by causes not to be fore
seen. . ■ • But we may perhaps mark the character of equity by callini
it supplemental law From the first the theory had been that equity ij
come not to destroy but to fulfil, and the success of the Chancery, wbicl
was jealously watched by Parliament, had depended on at least an out
ward observance of this theory. —Maitland, Justice and Police pn 36 38
As to whether or not the introduction of the rule of conscience was '4
fundamental as to constitute a new beginning, back of which we cannol
trace the histoyy of modem equity,; see the discussion in W. S. Holdsworth,
The Relation of the Equity Admimsteied by the Common-Law Judges to thi
Equity Adrmnisterea by the_ Chancellor, Yale Law Journal, xxv., £23. ^
G. B. Adams, The Continuity of English Equity, ibid., xxvi s So-363 H
will be seen that the view adopted in the present text is that it was not
2 See above, pp. 213-215.
Law Courts
221
common law had a sufficient remedy, the fact that a party
to a suit was poor or feared his powerful opponent was not
regarded a good reason for drawing such suit from the
court where it naturally belonged. This side of Chan¬
cery’s business never became important, and in time
tended to decrease. To its supplementary or equitable
jurisdiction, Parliament was not able to urge very valid
objections, and the common-law courts tacitly, though
grudgingly, conceded that here the new court had a reason
for existence. But though Chancery’s work in this line
was soon considerable, it was desultory, the field of ac¬
tivity was vague. No important, definable class of cases
had been appropriated. Had this condition continued,
Chancery could hardly have become a separate jurisdic¬
tion, and its later history would have been radically
different and far less important.
About the end of the fourteenth century, a special
kind of business, growing out of the inadequacy of the
land law, was brought into Chanceiy in such quantity
that it was soon looked on as the peculiar jurisdiction of
that court. Under the common law, it -was impossible to
will land, and the feudal accompaniments of tenure were
often felt to be burdensome and antiquated. Was there
no possibility of enjoying the use and profit of land while
escaping the responsibilities of ownership? Was there no
way in which a man could determine who should have the
use of his land after him? Necessity w T a$ the mother of
invention, or rather of extension and adaptation. For
the required method existed already, but had been con¬
fined to a narrow sphere. In the thirteenth century, a
method had been often used by which the Franciscan
friars, who by the rule of their order could own no prop¬
erty, enjoyed the use of real estate while not technically
owning it. A man disposed of lands and houses to a
party who was to be its legal owner, but who, by the
terms of the transaction, was to hold them to the use of a
certain body of friars. This expedient had been occa¬
sionally used from very early times, but it never became
222 The Period of Constitution MaKing
prominent until the peculiar need of the friars led to its
rapid extension after their coming to England. In its
early use, its success depended entirely upon the good
faith of the legal owner of the property; when the con¬
tract was made between him and the grantor, he was
bound in honour to hold the land to the use stipulated. 1
Because the device had been so seldom used before the
thirteenth century, it had obtained no recognition in the
common law; for when it came into more frequent use that
law had passed its receptive period. So if the owner chose
to disregard his honourable understanding, there was no
legal remedy for the party to whose use the property had
been given. However, the beneficiaries being for the most
part clergy, it is probable that the church courts sometimes
took account of such breach of contract. At any rate,
the friars could always invoke the terrors of excommunica¬
tion and interdict against unfaithful legal owners.
The king took little account of this method of benefiting
the friars, but he was becoming greatly alarmed at the
amount of land passing into the ownership of the church
in general. Hence the Statute of Mortmain, 1279, which
prohibited further alienation of land to the clergy . 2 The
problem of dodging this statute immediately arose. The
method was at hand. Friars could not own land because
of their rule; by the Statute of Mortmain, the rest of the
clergy 3 could own no more land than they already had.
To meet the second case, as the first, legal ownership
might be vested in a person or persons, who, for substan¬
tial reasons, entered into a private understanding to allow
the use of the land to the church. Thus the practice of
uses was greatly extended as the fourteenth century pro¬
gressed. An act of 1392 effectually put a stop to it as far
'When friars were the beneficiaries, the legal owner was very often a
borough.
3 A. and S., pp. 71, 72.
3 The language of the statute limited its application to the monastic
clergy, but in its later interpretations this limitation was not observed.
See Gross, Mortmain in Medieval Boroughs , American Historical Review,
74 **
Law Courts
223
as the church was concerned ; 1 but before that time, it had
occurred to laymen that here was a neat way to accomplish
for themselves certain things not provided for by the
common law.
Assuming the feoffees to uses 2 to be willing and faithful
instruments of the beneficial owner, his advantages were
great. Though he were involved in the civil strife of York
and Lancaster, and dealt with as a traitor by victorious
enemies, the land would be secured for his children; for it
legally belonged not to him but to the feoffees to uses, and
therefore was not forfeited by his attainder. For the same
reason nothing was payable to the overlord on his death;
there could be no legal succession while any of the feoffees
remained alive, and herein was the convenience of naming
several in the first instance. The numbers might be kept
up from time to time by new conveyances, as is the common
practice to this day with bodies of trustees established for
charitable and public purposes. 3
It will be seen from this how the beneficiary could vir¬
tually will the land. While the legal ownership could not
be regulated by will, the extra-legal use could be disposed
of in a purely informal way; the beneficiary could declare
to the legal owners where the use should go after his
death. With outgrown land laws and much to make
ownership burdensome, the idea of uses just fitted the situ¬
ation and became so popular that a large part of the
land of England was affected by it in the early fifteenth
century . 4
X A. andS., p. 155. . , , , ,
2 This was the technical term for legal owners.
3 Pollock, The Land Laws , p. 93.
4 At the beginning of the fourteenth century, nearly all free tenures m
England were subject to the law of primogeniture. By the system of uses,
provision could be made for younger sons and daughters. This furnished
a powerful motive for extending the system. Primogeniture still holds in
the descent of real estate. If there are no sons the land is divided equally
among the daughters. Thus feudalism has its traces m present land-
law. But land can be willed. By a statute of Henry VIII. (1540), all
land held in fee simple, except feudal tenure, could be willed, and of feudal
land two-thirds. With the abolition of the feudal tenures m 1662, all
freehold land could be willed.
224 The Period ot Constitution iviajong
But uses were not recognised by the law, and the crucial
question was where an authority could be found to force
the legal owner to keep his honourable agreement. For
when the practice became general, trusting to personal
honour proved an inadequate guarantee. The same re¬
source was found as in other cases in which the common
law failed to provide a remedy; the distressed beneficiary,
who was being defrauded of his equitable rights, appealed
to the Chancellor as the depository of the king’s all-
powerful and over-riding justice. The Chancellor inter¬
fered and, by fine or imprisonment, forced the legal
owners to keep faith. It was not long before this work,
developing subdivisions and minutiae that cannot be ex¬
amined here, was the chief and characteristic business of
the Court of Chancery. Thus during the last two centur¬
ies of the middle ages, a transformation of the land laws
was well under way, 1 and a new court with a special juris¬
diction had arisen. For Chancery’s monopoly of this new
field completed its separation from the parent stem; 2 by
the reign of Edward IV., the Chancellor, in his judicial
capacity, no longer acted for the Council. His court
had already created considerable supplementary law, and,
1 On this strange method of changing a body of law, Maitland com¬
ments: “It is an exceedingly curious episode. The whole nation seems to
enter into one large conspiracy to evade its own laws, to evade laws which
it has not the courage to reform. The Chancellor, the judges, and the
parliament seem all to be in the conspiracy. And yet there is really no
conspiracy: men are but living from hand to mouth, arguing from one
case to the next case, and they do not see what is going to happen.”—
Sketch of English Legal History, p. 123. It is apparent that, as this way of
manipulating legal ownership grew more common, the number of occa¬
sions upon which the great landholders could collect reliefs, and the king
reliefs and primer seisins (see above, p. 121, note 1), would decrease.
There is some evidence that king and lords were becoming aware of this
during the fifteenth century; but Henry VIII. was the first king who was
-*uily aroused to the situation. He attempted to cope with it by forcing
through Parliament the famous Statute of Uses in 1536. For a discussion
of the failure and the peculiar legal results of this statute, see Pollock,
i he Land Laws, pp. 97-106. For further discussion of the Chancellor’s
jm^diction, see W P Baiidon, Introduction to Select Cases in Chancery
(beraen Society, vol. x.).
* Ye ^his separation did not deprive the Council of all its civil jurisdic¬
tion. At the present day it is, through its judicial committee, practically a
court of appeal from the ecclesiastical courts and from the courts in the
crown colonies and dependencies.
Law Courts
225
with the evolution of the common-law courts in mind it
is not hard to understand that there would come a time
when the Chancellor's conscience had become u a technical
conscience” and his court as much bound by precedent as
its predecessors. 1
4. The Common Law.—England's exceptional legal
history has been an important element in determining
the final character of English government. In the period
covered by this book, the main features of the law were
established. It is therefore proper here, without touch¬
ing the detail of substantive law, to speak briefly of
these distinguishing traits; especially to note their con¬
stitutional bearing. The term common law is at present
used in more than one sense and often vaguely.
It has been thus defined:
(a) In its most general sense, the system of law in force
among English-speaking peoples, and derived from England,
in contradistinction to the civil or Roman law and the canon
or ecclesiastical law. (b) More appropriately, the parts of
the former system which do not rest for their authority on
any subsisting express legislative act; the unwritten law. In
this sense common law consists in those principles and rules
which are gathered from the reports of adjudged cases, from
the opinions of text writers and commentators, and from
1 For a brief summary of the later history of Chancery, see Ilf alley,
English Constitutional History , pp. 410-413. Maitland has summed up the
constitutional significance of the two late judicial developments with which
this section has been concerned: “Somehow or another England, after a
fashion all her own, had stumbled into a scheme for the reconciliation of
permanence with progress. The old medieval criminal law could be pre¬
served because a Court of Star Chamber would supply its deficiencies;
the old private law could be preserved, developed, transfigured, because
other modes of trial were limiting it to an appropriate sphere. And so our
old law maintained its continuity . . . The Star Chamber and the
Chancery were dangerous to our political liberties. Bacon could tell
King James that the Chancery was the court of his absolute power. But
if we look abroad we shall find good reason for thinking that but for these
institutions our old-fashioned national law, unable out of its own resources
to meet the requirements of a new age, would have utterly broken down,
and the ‘ungodly jumble’ would have made way for Roman jurisprudence
and for despotism. Were we to say that equity saved the common law,
and that the Court of Star Chamber saved the constitution, even in this
paradox there would be some truth.”— Sketch of English Legal Eistory t
pp. 127, 128.
226 The Period oi Constitution Malang
popular usage and custom, in contradistinction to statute
law. (c) More narrowly that part of the system just defined
which was recognised and administered by the king’s justices
in contradistinction to the modifications introduced by the
chancellors as rules of equity in restraint or enlargement of
the customary and statutory law. 1
Beside this, may be placed the history of the term. Com¬
mon law first meant a law that was common to all Eng¬
land, a law not for this or that county or borough. It
was thus used in the twelfth and thirteenth centuries.
It was next used in opposition to statute law, as the latter
developed during the fourteenth century; then, in opposi¬
tion to equity when the Court of Chancery became im¬
portant in the fifteen century. By that time, the concep¬
tion of it as a body of law older than, and in important
ways distinguished from, two other bodies of law had
crowded out the original meaning of common. The first
of the present usages, just cited, seems to have come from
applying to the whole of England’s law the name of its
most characteristic and historically important part. It is
an untechnical use, but serves to distinguish England’s
law and legal history from those of other European coun¬
tries.
Had no system of king’s courts grown after the Norman
Conquest, the Anglo-Saxon law, administered in the local
courts, would, it is to be supposed, have continued to
develop. It seems, from what is known of continental
history, that from such a law, administered in courts so
isolated from one another, no law common to the whole
country could have grown. Without the common courts,
there could not have been the common law. Rather, the
differences, which existed among the localities when condi¬
tions were primitive and the people fairly homogeneous,
would have become ever greater. The kind of law used in
«The Century Dictionary. This definition has been quoted in full to
USa * eS ' to aVdd ^P^ions in the
Law Courts
227
the twelfth-centmy Mug’s courts has already been no¬
ticed—its adaptability, the variety of its sources . 1 What
needs insistence here is that these courts were common
courts. They were opening wider to all litigants; ever
more regularly were justices sent to travel through the
country and administer law. The same men went on
various iters and gave the people the same law the country
over. The reign of Henry II. was distinctly the time when
the foundation of the common law was laid, both as to
content and its characteristic of commoness. But legis¬
lation was informal and largely unconscious;
... a few written or even spoken words communicated
to his justices, whom he was constantly sending to perambu¬
late the country, might do great things, might institute new
methods of procedure, might bring new classes of men and
things within the cognisance of the royal court. Some of his
ordinances—or “assizes,” as they were called—have come
down to us; others we have lost. No one was at any great
pains to preserve their text, because they were regarded, not
as new laws, but as mere temporary instructions which
might be easily altered. They soon sink into the mass of
unenacted “ common law.” Even in the next, the thirteenth,
century some of Henry's rules were regarded as traditional
rules which had come down from a remote time, and which
might be ascribed to the Conqueror, the Confessor, or any
other king around whom a mist of fable had gathered. 2
From the middle of the twelfth to the middle of the
thirteenth century was the time when the common law,
as distinct from statute law or equity, was made . 3 Those
who then had most to do with it were trained in the
Roman and canon laws; and it was influenced from Roman
sources, not by much actual borrowing, but by the un¬
conscious effects of spirit and method. It has been well
1 See above, p. 143 and note 2.
a Maitland and Montague, Sketch of English Legal History, pp. 77, 78.
3 Its growth, at that time, through the making of writs has been dealt
with above, pp. 151, 152, 212, 213.
228 The Period of Constitution Making
said that, at that time, the common law was sufficiently
inoculated with the Roman law to make it unlikely to fall
under the latter’s completer sway at a later period. 1 In
the last half of the thirteenth century, there was a radical
change of attitude in the guardians of the law. Law was
no longer in the hands of ecclesiastics; a class of profes¬
sional lawyers was forming. As the common law became
more fixed and circumscribed, 2 any attempt to modify or
enlarge it, especially from what was doubtless regarded
as a rival system, was looked upon with disfavour.
The two great treatises of Glanville and Bracton, the
one coming at the beginning and the other at the end of
the common law’s creative century, were most important
in England’s legal history. Late in Henry II.’s reign was
written a Treatise on the Laws and Customs of England,
ascribed to Ranulf Glanville and always passing under his
name. 3 The impulse to write such a treatise, a very re¬
markable performance for the time, probably came from
the revived interest in Roman law characteristic of the
twelfth century. But there is little Roman law in the
work, and the author shows no desire to adopt it; it is
not Roman even in the matter of arrangement. The law
of the king’s court is the subject, little or no attention
being paid to the law administered in other courts; and
there is more about procedure than about substantive
law. Though the Treatise was unofficial, it had a great
influence upon the law and procedure with which it dealt.
It was an able attempt to formulate and arrange a very
vague and elusive material, and put into durable condi¬
tion many valuable things that might otherwise have been
lost. Its coming at the end of Henry II.’s reign was ex¬
tremely opportune.
Equally timely was the greater work of Bracton, Con-
1 See the citation from Brtmner in Maitland, English Law and the Ren¬
aissance, note 55.
* See above, pp. 214, 215.
* It was perhaps written by Glanville’s nephew, Hubert Walter; but
the authorship will probably never be known with certainty. See Mait¬
land's article on Glanville in the Dictionary of National Biography.
Law Courts
229
cerning the Laws and Customs of England . It was written
about the middle of the thirteenth century* and is by far
the most important law-book which appeared in England
in the middle ages. It owes much more to Roman law
than Glanville’s work* about one-fifteenth of it being
borrowed from the Summa of Azo, * e a legist who stood at
the head of the Bolognese school of law early in the thir¬
teenth century.” There was also much that was Roman
in Bracton’s arrangement. But with the exception stated,
the law that Bracton gives is English. It is not theoreti¬
cal, an ideal system; but emphatically the law of his time,
the law that had been made by adjudged cases, and the
cases that he cites are many. 1 Just as this work appeared,
the forces tending to fix the common law were making
themselves felt. Although, like Glanville’s, this was a
private undertaking, it hardly needs to be said that such
a comprehensive and sympathetic statement of English
law coming at that time became an authority of the highest
influence.
An epoch in legal history was closing with Bracton. A
new system of courts, with appropriate iaw r and procedure,
had been made; borrowing from the Roman law, at least
for a long time to come, was at an end; the making of new
writs, that is, new forms of action, was no longer easy;
there w r as a system of legal forms . 2 One is, at first, sur¬
prised that a law and procedure so young and mobile under
Henry II. should have grown old and rigid in his grand¬
son’s reign. The truth seems to be that the time was too
r About two thousand such citations are found in the famous “note
book” which in all probability was the work of Bracton. It has passed
under the name of Bracton’s Note Book and contains transcripts from the
rolls kept by the Bench, the court held coram rege, and the itinerant
justices^ g y stem resem bies the Roman formulary system, especially in the
way it grew, fcut was not derived from it. It could not have been, for the
lawyers of this time were interested, if at all, in the finished product of
Roman law, the Justinian Code, not in the history of that law; they prob¬
ably did not know it had passed through an evolution analogous to that
through which English law was passing. “ Edward I. has been called the
English Justinian. ’ The suggested comparison is not very happy ; it is
something like a comparison between childhood and second childhood.
Maitland, C. JET. J 3 ., p. 18.
230 The Period of Constitution Making
early to obtain, by any process, a permanent and rational
system of equity. England passed rather rapidly from
“the old oral and traditional formalism” of the Anglo-
Saxon period to this “new written and authoritative
formalism” which “in part supplanted and in part rein¬
forced it.” But the advance of the new over the old was
very great. That there was any break from the old sys¬
tem and a time when new courts exercised an equitable
jurisdiction for all England, a time of legal growth on a
splendid scale, was owing to the Norman Conquest.
And the new formalism was a common formalism, while
the old was not.
The development of the new formalism was not an un¬
mixed evil. When a man chose an action in the late
thirteenth century, he embarked on a sure course, all was
marked out for him; in an unspeakable mass of rules, an
attempt was made to provide for every contingency.
This meant that the discretionary power of the judges was
small. With the judges of the three common-law courts
so fully under royal control as they were for four centuries
after this, the formulary system must be regarded as hav¬
ing been an important safeguard of the subject’s liberty.
The modem development has been to give the judge more
freedom, to allow him, in many particulars, to suit the
action to the peculiarities of the case; “but discretionary
powers can only be safely entrusted to judges whose
impartiality is above suspicion and whose every act is
exposed to public and professional criticism.” 1
It must not be thought, however, that the judges of the
later middle ages were wholly powerless to initiate; they
were always making some new law when they made their
judgments. But their judgments of law were based upon
the verdicts of jurors drawn from the people, and these
verdicts were increasingly judgments of fact; the judges
applied the law to facts judged by the people. This kept
■***•*•%%
Law Courts
231
the law from theoretical flights which might have borne
it away from the domain of the practical and serviceable.
The law never escaped from the people; they were making
their law or keeping it from being made. No absolutism
was running the people into the mould of a foreign, or
theoretically perfect, law. On the contrary, the law has
reflected all the peculiarities and conservatisms of the
English people at any given time. This went far to make
it ineradicable; the people could not get along without it
because it was a part of them.
Another agency that helped make the English common
law permanent had its origin at just the time the law was
completing its period of rapid growth. The great English
law schools, the Inns of Court, are first dimly seen about
the end of the thirteenth century. They became thor¬
oughly established in the reigns of Edward III. and
Richard II. It is an interesting fact that the common law
did not find its home in the universities. There the
ground had been taken by the civil and canon laws, and
the teaching of these had become so identified with uni¬
versity work that when there was an English law to teach
it seemed an unnatural thing to give it a place beside
them. 1 No one consciously founded the law schools;
they grew out of the needs of the time which determined
their location and most else about them.
In the first half of the thirteenth century, it was be¬
coming evident that English justices would soon cease to
be drawn from the clergy. The spirit of this period of
papal power and church unity was to keep the clergy from
taking part in lay affairs. If they touched such things, it
should be as masters, not participants. It was especially
unseemly for bishops to sit on the bench and dispense a
x “ The voice of John Wyclif pleading that English law was the law that
should be taught in English universities was a voice that for centuries
cried in the wilderness. ... It was 1758 before Blackstone began his
ever famous course at Oxford. The chair that I cannot fill was not estab¬
lished until the trans-Atlantic Cambridge was setting an example to her
elderly mother.”—Maitland, English Law and the Renaissance , pp. 25, 26.
Maitland was Downing Professor of the Laws of England in the Univer¬
sity of Cambridge.
232 The Period of Constitution Malang
layman’s law, which dealt with much that was a contami¬
nation to an ecclesiastic. A series of canons, forbidding
the clergy to deal with secular law, began to appear, and
were not without effect. The clergy became more careful
to withdraw when the death sentence was pronounced or
a matter considered to which they might not listen with¬
out scandal; and many were the devices of elision and
abbreviation in wording by which their share in such
affairs was concealed and their consciences saved. 1 But
it was harder to conceal a breach of the new rules in the
case of the higher clergy, and bishops were found less and
less among the justices; their places were taken by laymen
who had come to a knowledge of the law by filling subordi¬
nate positions in the courts. At the end of Henry III.’s
reign there were more laymen than clerks connected with
the courts, and, though there were clerical justices
throughout the reign of Edward I., the end was in sight.
A body of lawyers, practising in the king’s courts, had
formed and many justices came to the bench who had al¬
ready served as advocates. To speak of a class of pro¬
fessional lawyers and lay justices, who had been lawyers,
seems modem, and, in truth, Edward I.’s reign, in many
ways, marked the beginning of the modem period in the
legal history of England.
When English law severed its connection with ecclesi¬
astics, it was separated from the Roman law and also from
the learning and literature of the time. The danger that
absolutism might be fostered by the absorption of too
much Roman law was past, and there was also little possi¬
bility that the law of the future would be blessed with any
great legal treatise such as Bracton’s. The divorce of law
and learning brought bad results. Edward I. knew this
and, in 1290 and 1292, instituted commissions of inquiry.
By the second commission, it was suggested that prom¬
ising students be gathered from the various parts of Eng-
> “Take him away and let him have a priest ” was one of the euphemisms
which by a pious fiction saved the clergymen who heard them from a
sliare in their grim reality.
Law Courts
233
land and placed near the courts at Westminster, with the
evident intention of having them trained for service in
those courts. The origin and early history of the Inns of
Court are not known in detail, but here was the situation
out of which they grew. A common law was recognised;
some sense of its national character was dawning, of its
distinction from Roman or canon law; it was in the hands
of laymen and it could not be taken for granted that these
men had received any training, legal or other, at the uni¬
versities—as a matter of fact, they got their knowledge of
the law and entered its higher service through training in
its courts. And these courts w T ere at Westminster; this
was the home of the common law, not Oxford or Cam¬
bridge. Young men looking to a legal career gathered in
the vicinity, and the four great law schools w ? ere bom:
Lincoln’s Inn, the Inner Temple, the Middle Temple, and
Gray’s Inn. It is not the place here to say anything of
the organisation or work of these schools. But their
character was unique; in origin essentially fraternities of
lawyers, and always remaining such, they undertook the
training of students, -worked out a system of instruction,
government, and discipline of their own, had their own
preparatory schools, and conferred “what in effect were
degrees, and degrees which admitted to practice in the
courts.” 1
The importance of the law schools in this connection
was their influence in making the common law enduring.
They were thus largely responsible for that law’s share in
England’s governmental destiny. This achievement is
summed up in Maitland’s saying that “taught law is
tough law.” It would
x Maitland, English Law and the Renaissance, note 60; see this note also
for literature upon the subject. “What is distinctive of medieval Eng¬
land is not parliament, for we may everywhere see assemblies of estates, not
trial by jury, for this was but slowly suppressed in France. But the Inns
of Court and the Year Books that were read therein, we shall hardly find
their like elsewhere.”— Ibid., p. 27. “They were associations of lawyers
which had about them a good deal of the club, something of the college,
something of the trade-union. * *—Maitland and Montague, Sketch of
English Legal History , p. no.
234 The Period of Constitution Making
be difficult to conceive any scheme better suited to harder
and toughen a traditional body of law than one which, while
books were still uncommon, compelled every lawyer to take
part in legal education and every distinguished lawyer to
read public lectures . 1
In the law schools, were used the Year Books, also a pe¬
culiar product of the English court system and a further
proof that at the end of the thirteenth century a new era
in English law had begun. 2 In 1292, just when Edward
was investigating the decline in legal learning which
resulted from the withdrawal of the clergy, the Year
Books began. They continued, with almost no inter¬
ruption, until 1535. They were
so called because there was one for each regnal year. They
are anonymous law reports, written in French, containing the
discussions of the judges and counsel on the points of law,
and the grounds of judgment in important cases tried before
the royal justices either at Westminster or in Eyre. . . .
According to an old legal tradition, these reports had official
sanction and were drawn up by reporters in the employ of the
crown. 3
However, they were probably not official, but notes taken
by law students, their private note-books. 4 These re¬
ports, continued with such regularity and fulness, are
proof of the persistence of the spirit of conservatism and
1 English Law and the Renaissance, pp. 27, 28.
2 A valuable account of the Year Books in general is given in Maitland,
Year Books of Edward II. t vol. i., pp. ix-xx. (Selden Society, vol. xvii).
3 Gross, Sources and Literature of English Histoty, p. 450.
4 “Are they not the earliest reports, systematic reports, continuous
reports, of oral debate? What has the world to put by their side? In
15TO, in 1400, in 1300, English lawyers were systematically reporting what
of interest was said in court. Who else in Europe was trying to do the
Mte, to get down on paper and parchment the shifting argument, the retort,
the quip, the expletive? Can we, for example, hear what was really said
m the momentous councils of the church, what was really said in Constance
and Basel, as we pan hear what was really said at Westminster long years
before thebegmmng of ‘the conciliar age’? ” “The Year Books contained
more medieval conversation than had survived in any other authentic
source. H. A. L. Fisher, Frederick William Maitland, p, 164.
Law Courts
235
respect for precedent which marked the time of their
birth, and they aided greatly in its preservation. Since
no more law was to be made, the matter of chief interest
was to know how successive judges had used already exist¬
ing principles and procedure. During the fourteenth
and fifteenth centuries, precedent was built upon prece¬
dent and the mass of recorded rules was reasoned upon
and refined to the last extreme of logic in the academic
atmosphere of the Inns of Court, until the common law
had become a wonder and a terror to every one outside the
legal fraternity. Since Edward I., the law of England
has undergone no such fundamental change as it experi¬
enced in his time. The modem lawyer may trace back
his legal traditions through more than six centuries, but
the attempt to follow them into the wonderful, creative
century before Edward I., in many cases, proves fruitless. 1
It has been shown how the law of England was made a
common law to all freemen and all localities; how it was
shaped by the people, their legal garment made bit by
bit and fitting into the national character; how it was
“toughened” by teaching and the unbroken yearly record
of its application. In the middle of the sixteenth century,
when England was passing into the full tide of Renais¬
sance influence and worship of the Roman law was at its
height in Europe and receptions 2 were the order of the day,
the vitality of English law was put to a severe test. From
the middle of Henry VIII.’s reign to the early part of
Elizabeth’s, there were many evidences of its decline.
Other European countries received the Roman law be¬
cause their old law was not a common law, was not a vital,
growing law with a hold upon the people, in short, be¬
cause it was an impossible law for states advancing rapidly
in unity and civilisation. As far as can be judged, Eng¬
land narrowly escaped a reception, for all the surface
forces—and many of them were powerful—were working
x But the number of such cases has been greatly lessened by the work
of Pollock and Maitland which deals mainly with that century.
9 The technical term for the adoption of the Roman law by a nation.
236 The Period of Constitution Making
for it. But she escaped for the simple reason that she
had a law that measurably sufficed her, a law with such
deep and tough roots in the national life that to tear it
away would have been a sort of national suicide. When
England passed from the medieval into the modem, she
did not, like some of her sister countries, leave the medie¬
val law behind. 1
The political importance of this preservation of the old
law can hardly be overstated.
The English common law was tough, one of the toughest
things ever made. And well for England was it in the days
of Tudors and Stuarts that this was so. A simpler, a more
rational, a more elegant system would have been an apt
instrument of despotic rule. At times the judges were sub¬
servient enough: the king could dismiss them from their
offices at a moment's notice; but the clumsy, cumbrous sys¬
tem, though it might bend, would never break. It was ever
awkwardly rebounding and confounding the statecraft which
had tried to control it. The strongest king, the ablest min¬
ister, the rudest lord-protector could make little of this “un¬
godly jumble.” 2
z Maitland’s brilliant lecture. The English Law and the Renaissance,
should be read in this connection. It is with a sort of congratulatory
enthusiasm, possible only to one who had entered so deeply into the life
of the crotchety but salutary old system, that he speaks of its safe passage
of the crisis and of its recovering strength. “When the middle of the cen¬
tury is past the signs that English law has a new lease of life become many.
The medieval books poured from the press, new books were written, the
decisions of the. courts were more diligently reported, the lawyers were
boasting of the independence and extreme antiquity of their system. We
were having a little Renaissance of our own: or a gothic revival if you
please. . . . That wonderful Edward Coke was loose. The medieval
tradition was more than safe in his hands.”—P. 29. “Sir Edward Coke
the incarnate common law,” he calls him in another place, who “shovels
out his enormous learning in vast disorderly heaps. Carlyle's felicity has
for ever stamped upon Coke the adjective 'tough—‘tough old Coke
upon Littleton, one of the toughest men ever made.’ We may well trans-
c? 1 l 7^?*? the man to the law that was personified in him.”—
Sketch of English Legal History, p. 113.
Ibid. pp. 113, U4._ Roman law had these same traits “during the
ages ot its growth, and it is well to remember that, as Roman law took on
a more scientific form, and was reduced to an organised system, its life
growth ceased. History does not show any necessary con-
t 7° . events ; hut certainly, if the formation of a
tbe b ^ ls of tbe English common law is to mean that
our law and institution-making power is past, then every Anglo-Saxon may
Law Courts
237
A final struggle between king and people would probably
have come in the seventeenth century even if the old law
had been replaced by the Roman, “but it would hardly
have been that struggle for the medieval, the Lancastrian,
constitution in which Coke and Selden and Prynne and
other ardent searchers of mouldering records won their
right to be known to schoolboys / 11 and one can hardly
feel much hope for the people in such hypothetical con¬
flict, the Stuart kings having the Roman law for their ally.
But to say nothing of the political side of the matter, of the
absolute monarchy which the Roman law has been apt to
bring in its train, it is probably well for us and for the world
at large that we have stumbled forward in our empirical
fashion, blundering into wisdom. The moral glow known to
the virtuous school-boy who has not used the “crib” that
was ready to his hand, we may allow ourselves to feel; and
we may hope for the blessing which awaits all those who
have taught themselves anything. 2
In conclusion, a word needs to be said about the equity
of the Court of Chancery and about statute law. Of the
former it is only necessary to remark, by way of reminder,
that English equity was, notwithstanding its adoption
of new and important principles, essentially a supplement
or appendix to the common law, and that because of it
that law was much better fitted to meet the requirements
of the sixteenth century and pass successfully the crisis
which it then encountered. 3
Statute law began nominally in the thirteenth century.
But there had always been law made by the central gov¬
ernment, by the king in Ms Council; and king and Council
have continued, upon occasion, to make it. In the four¬
teenth century, a new law-making element, the House of
most heartily pray that our law may long remain unscientific/'“Adams
Civilisation during the Middle Ages, p. 100, note 2 .
1 Maitland, English Law and the Renaissance, p. 30.
2 Maitland in Sketch of English Legal History, p. 37-
3 See above, pp. 218-225.
238 The Period of Constitution Malang
Commons, came into existence, and statutes, in some¬
thing nearer the later sense of the word, were made by
king and Parliament. Some acts of the thirteenth cen¬
tury are traditionally called statutes which are really
ordinances, made by king and Council; and some had an
anomalous origin and are, strictly speaking, neither ordi¬
nances nor statutes. 1 For several reasons Magna Carta
has been regarded as the beginning of England’s written
law and hoTHi’first"place'iiTthe statute book. 2 The in-
TormaKy - If earlier legislation led to its rapid absorption
in the mass of unwritten tradition. 3 But the events
leading to Magna Carta and the document itself were
extraordinary; by the frequency of its confirmation, it was
kept before men’s minds and its greatness seemingly en¬
hanced; and under Edward I., a class of secular lawyers
began to be interested in England’s legal history. Yet the
Great Charter is not a statut e. It i s largely a c o mpac t
bet ween king and baron s, putting in writing certain par te
of fe u 5 al_c ustom which especially needed emphas is owing
t° Joh n’s .abuses. It contains also sundr y se mi-fe udal
or n oil-feu dal grants to other classes oTp eop^ and there
are elements of compromise andjhaxgain. It had immedi¬
ate ends m view and aimed at restoring the customary law.
It did not create n ew law, but in later yeam ^jhfoFits
clauses, often - misunderstood, had a profound influence
upon legislation. 4 --- '
1 See further on the origin of statutes and their early relations to ordi-
nances, below, pp, 412—419.
i ^ T f e r S ^ es ° f «ie Realm is that of the confirmation of
1225. The text of the Great Charter issued the eleventh of Februarv
1225 (ninth year of Henry III), is of exceptional importance. In the
5^5 ^ 18 defil J 1 ^ 1 7 e a g. d . h f s ne ^ er been modified (save in a single point
“ any ?! <official confirmations and copies which have been
published since. ^ It is the one text that has always been appealed to either
in the courts or m the houses of Parliament, or in law book's. In its form
it approaches closely the redactions of 1216 and 1217, and therefore differs
0f ; 215 - 'S e Charter of the Forest was rlnewed and
a f t ^ e ^f ne time * Tii ey are now the first statutes of the kW-
oomerstone of its written constitution. ’ '—Translated
frron Btoont, Charles des Ltbertes Anglaises, pp. xxix.. xxx
* bee above, p. 227.
4 For further discussion of Magna Carta, see below, pp. 266-286.
Law Courts
239
Two acts of Henry III.’s reign have been called statutes:
the Statute of Merton, 1236, and the Statute of Marl¬
borough, 1267; both were probably products of king and
great council. 1 There was still no system of keeping
rolls and it was largely a matter of chance which acts
were preserved and, of these, which were known as
statutes. 2 But “statute rolls” began under Edward I.
and the term has been quite generally applied to the im¬
portant acts of his reign. 3 In making some of these,
there was concerned one or other of the new elements
which, with the evolving House of Lords, later formed
Parliament. Also there was probably the beginning of
the idea, which became prominent in the fourteenth cen¬
tury, that the function of the statute was the affirmance of
the common law or the removal of some abuse which
interfered with it, the statute thus sharing largely the
permanence and fundamental nature of that law—an idea
which by implication would limit the ordinance to some¬
thing in the nature of a temporary administrative ruling.
It was a transition period, and it is hard to say whether
or not there was a new form of legislation. Be this as it
may, the statutes of Edward I., the written laws made by
the central government, have borne a most important
and special relation to the common law T . Coming just
1 It was in the assembly which made the Statute of Merton that the
lay barons made their oft-quoted statement, “We refuse to change the
laws of England.” The clergy had been arguing for a change of the law
to suit the canonical principle that children bom before the marriage of
their parents were to be counted legitimate after the marriage. Then came
the recorded reply of the barons: Nolumus leges Anglia mutare. See above,
p. 183, for a provision of the Statute of Merton.
2 By the beginning of Edward III. ’s reign it was settled that nothing was
to be entered on these rolls that had not the assent of king, lords, and com¬
mons. The legislative formula of a statute as finally worked out at the
end of the middle ages is as follows: “The king our sovereign Lord
Henry VII. at his Parliament holden at Westminster ... by the assent
of the Lords spiritual and temporal and the commons in the said parlia¬
ment assembled and by the authority of the same parliament hath done to
be made certain statutes and ordinances in manner and form following.
„ 3 “ 1 Statutum' seems to be a popular rather than a technical term
before the reign of Edward I., and it is possible that the non-techmcal
employment of it may have survived longer in isolated cases to the con¬
fusion of the modem historian,”— Professor Mcllwain in Magna Carta
Commemoration Essays, p. 140.
240 The Period of Constitution Making
at the end of that law’s rapid extension through new writs,
they formed a new starting point and laid down principles
upon which, with but little conscious creation, much new
law was based and elaborated. Especially was this the
case with land law. Such statutes as Mortmain, De
Donis Conditionalibus, and Quia Emptores 1 were funda¬
mental. 2 But such legislation was exceptional; in the
two following centuries, the common law was left to
elaborate itself, little important supplemental material
being furnished by Parliament. In the Tudor period,
important legislation began again and it has since steadily
increased in quantity. Hence it might seem that all
law-making power would finally pass to Parliament and
that the independence of the judicial system, with its
self-developing body of law, would end. But this has not
proved to be the case.
That the common law has been radically revolutionised by
statute on some subjects in very recent times, as, for example,
in real estate law, is not an evidence of the decline of this
self-developing power. It is rather due to the rapid and
revolutionary change in society itself, which demands equally
rapid and revolutionary change in the law to accompany it.
The statutes themselves are subjected at once to the ordinary
process of common-law development in the interpretation
and application of them made by the courts. 3
Thus had England’s common law—common law (in
the narrower sense), equity, and statutes—remained in-
^ P e R e %iosis, Westminster the Second, and
^ estmmster the Third. See A. and S. f documents 40, 42, 45.
. ! . Bla ^stone, m order that he might expound the working of the law
m his own day in an intelligible fashion, was forced at every turn to take
A»r^ 1 lf reacJerS J?t f 16 ml< ? dle a & es ' anc * eve n now, after all our reforms,
StlU iT A° m tun S *?. time compelled to construe statutes of
v? day ' t n< L Were ? arllament to repeal some of those statutes
n ° substitute, the whole edifice of our land law would fall
down with a crash.’'-—P. and M., i., xxxiv.
* Adams, Gw/isa/ihw during the Middle Ages , p. 100. note 1 “In
P“fStates, the existence of a written constitution as fundamental law
^P^tant and valuable extension of this principle in the
pwer which the courts have assumed, without express sanction to declare
therefca^^ anchroid’I. legisktUre institutional and
Law Courts
241
complete and unscientific, but alive and growing; not a
ready-made system brought in from outside and imposed
upon the people, but made by the people and adminis¬
tered by them. The common law has been a potent ally
of constitutional government.
5. Relations of the State Courts and the Church Courts.—
In the later middle ages in all the countries of western
Europe, lay jurisdiction was more or less invaded by
that of the church. 1 The discussion of the English
court system cannot be concluded without notice of
the causes and extent of this invasion in England and
its bearing upon the effectiveness of the judiciary. In
the Anglo-Saxon period, there had been no such in¬
vasion; this was because England was not touched by the
increased church unity and influence resulting from the
Carolingian patronage and the pretensions of the forged
Decretals. Criminous clerks were tried in the popular
courts; litigation between clerks and between clerks and
laymen and the enforcement of many of the laymen’s
ecclesiastical obligations found place there also. Only
for holding clerks to their clerical duties, did anything
in the nature of an ecclesiastical court exist, although there
seems to have been an occasional attempt to close civil
differences between clerks by extra-judicial arbitration.
It has been seen how, by the Conquest* England was
brought into the current of continental influence, and how
this immediately showed itself in the church, checked
1 “Starting from the words of the apostle against going to law before
unbelievers, growing at first as a process of voluntary arbitration within
the Church, adding a criminal side with the growth of disciplinary powers
over clergy and members, and greatly stimulated and widened by . the
legislation of the early Christian emperors, a body of law and a judicial
organisation had been developed by the Church which rivalled that of the
State in its own field and surpassed it in scientific form and content.”—
Adams, The History of England (1066-1216), pp. 27S, 279. It will be use¬
ful, in this discussion, to keep in mind that the church drew cases to its
courts upon two general grounds: something clerical about the parties
to a suit, or something clerical about the suit itself. Now clerical persons
might do unclerical deeds and unclerical persons could litigate few causes
in which ingenuity might not discover some trace of the clerical. "With this
double hold, there was opened up before the church a jurisdictional vista
practically without end.
242 The Period of Constitution Making
only by the Conqueror’s will. 1 The most striking of
the early results of this influence was the so-called separa¬
tion of the lay and ecclesiastical courts. At some time
between 1070 and 1076, William, stating that the episcopal
laws had not up to his time been observed in England
according to canonical principles, ordained:
. . . that no bishop or archdeacon shall any more hold
pleas of episcopal laws in the hundred or bring to the judg¬
ment of secular men a cause which pertains to the rule of
souls, but whoever shall be impleaded according to the
episcopal laws for any cause or fault, let him come to the
place which the bishop shall choose and name for this, and
there let him answer for his cause or fault, and not according
to the hundred, but according to the canons and episcopal
laws let him do right to God and his bishop. However, if
anyone lifted up by pride shall scorn or refuse to come to
episcopal justice, let him be summoned once and a second and
a third time; but if neither so will he come to amendment
let him be excommunicated, and if there be need for enforcing
this, let the power and justice of king or sheriff be furnished.
And he who summoned to the bishop’s justice refuses to come
shall satisfy the episcopal law for each summons. This also
I prohibit and by my authority forbid, that any sheriff or
reeve or minister of the king or any layman shall interfere
with laws which pertain to the bishop, or that any layman
bring another man to judgment without the justice of the
bishop. And let judgment be passed in no place except in
the episcopal seat or in that place which the bishop shall
appoint for it . 2
This shows, first, that laymen, as well as clergy, were
now to be tried before church courts for breaches of church
law; second, that laymen were forbidden to concern them¬
selves with the administration of church law or, for an
offence against it, to bring any one to a court other than
the bishop’s; but that, third, the authority of the king
* See Part II., § IV.
Latin text in Stubbs, Select Charters,, pp. 99, 100,
Law Courts
243
might be exerted to enforce the bishop's summons.
William assumed that it was clear to every one what
breaches of church law were. There is certainly no hint
from his reign of “any immunity of clerks from secular
jurisdiction or temporal punishment.” Simply, the old
local courts no longer dealt with laymen’s failures to meet
their church obligations.
Between the time of this ordinance and the famous
controversy between Henry II. and Becket, the jurisdic¬
tional claims of the church made a great advance. It
was then that there took place in England what has been
aptly called the “reception of Gregorianism.” This
might easily be taken to mean too much, but the English
church did become deeply and lastingly affected by the
principles of the great pope; and such a change in so im¬
portant an element of the population necessarily touched
the government, and that most markedly in the judiciary.
The unknown author of the Leges Henrici Primi, writing
under Henry I., said that all ordained clergy “are to be
accused before their prelates for all crimes, both the great¬
est and the lesser.” This writer borrowed so much from
continental principle and practice that it is hard to tell
how far this reflects English custom in his time. But
there is reason to believe that it is not wholly contrary
to fact, and it may safely be concluded that there was
some attempt, in Henry I.’s reign, to accuse and try
criminous clerks in the bishop’s court. William’s ordi¬
nance said nothing about criminous clerks, and he un¬
questionably intended, at the time of its issue, that they
should be dealt with as they always had been in England;
for it was clearly concerned with changing Anglo-Saxon
and not Norman practice. But it should be noticed that
there were three distinguishable parts in the criminal
procedure: accusation, trial, and punishment. William
had come from the continent and dealt with prelates who,
for the most part, had had a continental training; and,
apart from what this particular ordinance said or did
not say, Maitland thin k s
244 The Period of Constitution Making
it very possible that Lanfranc would have demanded and the
Conqueror conceded the general principle that the trial of the
accused clerk must take place before the spiritual forum;
[but doubts] whether more than this would have been con¬
ceded or even demanded, whether as much as this could
always be obtained. 1
If the accusation were in a lay court, a sort of possession
of the case was obtained which made possible a share in
the punishment. The church could not pronounce a
judgment -which involved loss of life or limb; hence it was
essential to the peace of the country that the civil au¬
thority be able to supplement, in case of heinous crimes,
the church's degradation of the clerk. It is significant
that no one denied Henry II.’s claim that the procedure he
advocated w r as the actual practice in the time of his
grandfather. 2 We may venture, then, to sum up the
competence of the church courts during the three Norman
reigns. They had jurisdiction over all clergy and laymen
in matters falling within the domain of the canon law,
and, by their interpretation, that domain spread and
many civil cases were being drawn from the lay courts.
They had the trial of ordained clergy who had been
accused of crimes in the lay courts, and, in cases where a
blood judgment would have been rendered in a lay court,
turned the degraded clerk over to the secular arm for
further punishment. But there must have been many
exceptions to this rule, if one may venture to call it such;
there were probably instances in which criminous clerks
had accusation, trial, and sole punishment in the church
court, and it is certain that in some cases the church did
not even get the trial.
^ In the reign of Stephen, the church courts made their
highest pretensions and attained their widest jurisdiction.
Stephen’s temperament and the circumstances of his
succession led Mm, early in his reign, to make broad and
unwise promises to various individuals and classes. His
1 P• and M. i, 454. 2 See below, pp. 247-249.
Law Courts
245
second charter, which he felt under the necessity of grant¬
ing the spring after his coronation, was largely occupied
with concessions to the clergy. He gave them all they
wanted, and along a variety of lines.
The English Church would have reached at a stroke a
nearer realisation of the full programme of the Hildebrandine
reform than all the struggles of nearly a century had yet
secured in any other land, if the king had kept his promises. 1
In the matter of ecclesiastical jurisdiction, he said:
I permit and confirm justice and power over ecclesiastical
persons and all clerks and their effects, and the distribution
of ecclesiastical honours to be in the hands of the bishops. 2
This certainly brought the accusation of the clerk, as well
as the trial, within the church court and was a grant of
civil jurisdiction in all that pertained to church property.
But Stephen did not keep his promises. He struggled
stoutly against the concession about criminous clerks,
and it is known that there were instances in his reign in
which criminous clerks were accused, tried, and punished
in the king’s court. On the whole, however, the church
was more successful in the contest than the king. In civil
jurisdiction, the church went far beyond what wns con¬
templated in the charter, for such jurisdiction was gained
not only in the purely spiritual causes, as for example matters
relating to matrimony and contentions over land held in
frankalmoin, but also the investigation as to whether a piece
of land pertained to frankalmoin, cases concerning wills,
tithes, advowson or presentation to churches, and contracts
secured by an oath. 3
The great work of Gratian, known as the Decretum,
appeared about 1142. This was a fruit of the twelfth-
century revival in the study of Roman and canon law.
1 Adams, The History of England (1066-1216), p. 201.
2 A. and S., p. 8 .
3 Translated from Bohmer, Kirche und Staat, pp. 399, 400
246 The Period 01 constitution Making
Gratian was a monk of Bologna, the centre of the revival,
and was a teacher in the law school there. Church law
had been very disorderly, and his was the first important
attempt to codify it. Such codification and clarifying
as Gratian gave it could not but increase its availability,
heighten its authority, and stimulate the already expand¬
ing church courts. The Decretum came at a time when
England was especially open to its influence. So many
things were working to the same end that England, long
exceptional in the nationality of her church and her inde¬
pendence of the pope, was no whit behind France or Italy
in her progress towards the Gregorian ideal.
When the great ruler and lawyer, Henry II., came to
the throne, he had to face the results of nineteen years of
weak rule, many of them of sheer anarchy. It is only to
be noticed here how he dealt with the advancing jurisdic¬
tional claims of the church, which Stephen’s reign had so
favoured. Four considerations go far to account for
Henry’s action when, in 1163, he was at last free to look
into England’s internal abuses. First, he found criminous
clerks no small element in the horde of unpunished crimi¬
nals who were making governmental progress impossible:
' ‘it was said that a hundred murders had been perpetrated
by clerks during Henry’s reign before the king took ac¬
tion.” 1 Second, he was conscious of the crippling of gov¬
ernment that must follow if men belonging to an organisa¬
tion so independent of, and out of harmony with, the
state could control a vast civil jurisdiction. Third, he
genuinely appreciated the good government of his grand¬
father’s time, and proposed to make it his model in his
work of restoration. Fourth, the ideas of his time were
not without their influence upon him and he had a great
respect for established law; he probably respected Gra-
1 P. and M. i., 454, note 1. It is not to be supposed that the higher
clergy or many of the priests or even deacons were committing heinous
crimes. They were committed by those in the lowest clerical orders, who
took such orders as the concomitant of a minimum of education, and most
of whom probably did not look forward to the life of a priest. But they
formed a part of Henry's great peace problem. See above, pp. 144, 145.
Law Courts
247
tian f s Deeretum; at any rate, as Ms straggle with the
church drew on, he may have seen the strategic advantage
of being able to claim harmony with it.
Some flagrant miscarriages of justice with respect to
criminous clerks were the immediate cause of Henry's
action. His preliminary negotiations with Archbishop
Thomas and the bishops indicate that the practice of
inflicting lay punishment upon the convicted and degraded
clerk had largely lapsed under Stephen, for he received
very unsatisfactory replies when he demanded the attitude
of the clergy upon this point. Becket took an extreme
position, and must have seemed to Henry to be distinctly
heading a state within a state. Late in 1163, Henry in¬
structed some of the elder barons of his court, who sup¬
posedly knew the customs of his grandfather's time, to
draw up a statement of such customs as bore upon Ms
controversy with the church. The result was a document
of sixteen articles, presented at a meeting of the great
council at Clarendon in January, 1164. It is known as the
Constitutions of Clarendon. 1 While not strictly confined
to the points of judicial controversy between church and
state, those points are the most prominent in the docu¬
ment. In the third article, is a statement of the most
crucial matter, the procedure in the case of criminous
clerks. The language is brief and somewhat obscure,
but Maitland's interpretation is now generally accepted
and seems conclusive:
A clerk who is suspected of a crime is to be brought before
the temporal court and accused there; unless he will admit
the truth of the charge, he must in formal terms plead his
innocence; this done, he will be sent to the ecclesiastical
court for trial; if found guilty he is to be deposed from his
orders and brought back to the temporal court ; royal officers
will have been present at his trial and will see that he does
not make his escape; when they have brought him back to
the temporal court, he will then—perhaps without any further
1 A and S.» document 13, and W. and N., pp. 370-375-
24B The Period ot Constitution Making
trial, but this is not clear—be sentenced to the layman’s
punishment, to death or mutilation. 1
Becket objected to three parts of this procedure: the
preliminary hearing in the lay court, the sending of the
royal officer into the church court, the infliction of the
layman’s punishment upon the deposed clerk. The first
two of these were clearly contrary to the Decretum; but
Henry felt that he had conceded all that he could when
he allowed the canonical trial, and seemed disposed to
emphasise the fact that he was not contradicting the canon
law. These were all important points, but the question
of punishment was vital. Becket rested his objection
upon the principle that a man should not be punished
twice for the same offence. But the Decretum does not
seem to contemplate the case under consideration in con¬
nection with that principle, and Becket was quite original
in his application of it and in the prominence which he
gave it. He argued that degradation was the extreme
punishment of the church and was sufficient for the first
offence; if the man committed a second crime, he did it
as a layman and would receive the layman’s punishment.
Henry regarded it as subversive of law and order to allow
every clerk to commit one crime for which there was no
adequate punishment. There was small chance of their
coming to an agreement. Henry’s position was substan¬
tially correct historically; it represented the practice of
his grandfather’s time. Becket’s position was correct
canonically, with the probable exception of the matter of
punishment. Henry’s position was certainly in harmony
with the requirements of good government.
In the Constitutions of Clarendon, Henry not only at¬
tacked the chinch’s claim to exclusive jurisdiction over
clerks, but also its claim to some important civil actions.
In the first article, he demanded all advowson cases. In
the ninth article he drew into his court a preliminary pro-
1 P. and M. L, 448. For a full discussion, see Maitland, Roman Canon
Law in the Church of England, essay iv.
Law Courts
249
cedure in cases where there was litigation over land be¬
tween clergy and laymen, and this procedure later grew
into an independent assize. 1 2 In article fifteen, he de¬
clared that “pleas of debt due under pledge of faith or
without pledge of faith are to be in the king’s justice. 5 * * * * * ’*
Henry was put in the wrong by the murder of Becket
and w r as forced to renounce, or seem to renounce, what he
had claimed in the Constitutions. A chronicler thus
recorded this abjuration: “He also swore that those cus¬
toms inimical to the churches of his land which had been
brought in in his time he would utterly do away with.” 3
Considering his former claim that these customs were all
those of his grandfather’s time, this does not appear to
have been a very thorough renunciation.
From Henry’s time, there was a decline from the Consti¬
tutions of Clarendon in the royal control over the trial and
punishment of criminous clerks; while in civil jurisdic¬
tion, the kings not only kept in their courts what was then
claimed, but continued to draw business away from the
church courts. On the latter subject, nothing further
needs to be said here, for at an early date the civil juris¬
diction of the church ceased seriously to hamper that of
the state. 4 But notice must be taken of the immunity of
the clergy from lay jurisdiction, for it proved a serious
breach in the efficiency of the English government until
the Reformation. Becket was murdered in 1170 and
Henry was reconciled to the church, through his abjura-
1 See above, pp. 145, 146.
2 Cases in which the debt had been secured by an oath were being taken
by the church courts on the ground that the chinch was the guardian of
oaths. See above, p. 241, note 1.
s Gesta Regis Henrici Secundi Benedicii Ahhatis, i., 33. #
4 “ . . . still the sphere that was left to the canonists will seem to
our eyes very ample. It comprehended not only the enforcement of eccles¬
iastical discipline, and the punishment-yby spiritual censure, and, in the
last resort, by excommunication—of sins left unpunished by temporal
law, but also the whole topic of marriage and divorce,_ thoselast dying
wills and testaments which were closely connected with dying confes¬
sions, and the administration of the goods of intestates. Why to this day
do we couple * Probate * with * Divorce’? Because in the Middle Ages both
of these matters belonged to ‘the courts Christian.’ 11 —Maitland and
Montague, Sketch of English Legal History, pp. 41, 42.
250 The Period of Constitution Making
tion and other engagements into which he entered, in
1172. After the murder, it was impossible for him to en¬
force his claims over criminous clerks; the matter was
passed over in silence. In the years that followed, how¬
ever, the clergy got into some logical difficulty by having
it pressed home to them that if the clerical murderer
of a layman could escape punishment by death, there
ought to be reciprocity and the lay murderer of a clerk
enjoy the same immunity. The fact that Becket’s
murderers were unpunished lent some point to this argu¬
ment. The clergy began to feel uncomfortable, doubting
whether their lives were safe. This situation made it
possible for Henry, in 1176, to gain a concession; but in
doing this he was forced to a more formal allowance of the
church’s claims over criminous clerks than he had yet
made. A papal legate was in England at the beginning
of the year, and he conceded that Henry could try clerks
in his own court for forest offences; on the other hand, he
received a letter from Henry to the pope in which the
king agreed that murderers of clerks should not be exempt
from punishment, and that, except for forest offences
and cases which grew out of a clerk’s holding a lay fee
with a lay service attached, no clerks should be brought
in person before his courts. 1 This concession may be
regarded as formally inaugurating “benefit of clergy.”
The precise terms upon which the clergy enjoyed their
“benefit” varied from age to age, but, in general, they
became more lax. The core of “benefit of clergy” was
this: when an accusation was brought against a clerk in a
lay court, his bishop might appear and demand that he be
turned over to the church court for trial; bishops regularly
made this demand, and there could be no further punish¬
ment than the church courts were competent to inflict. 1
1 Adams, The History of England (1066-1216), p. 319.
. 2 strangest factor in the survival of this practice in England is that
it was out of harmony with the best authority in the church itself. Mait¬
land says: “ . . that opinion, though owing to his (Becket's) martyr¬
dom it was suffered to do immeasurable mischief in England by fostering
crime and crippling justice, was never consistently maintained by the
Law Courts
251
In the thirteenth century, the clerk who had been arrested
by the sheriff was imprisoned by the bishop until the
coming of the itinerant justices, when he actually ap¬
peared before them and was accused. Late in the century
after accusation and transmission to the bishop’s court,
the justices submitted his case to a jury and obtained a
verdict. This was not his trial, but if the verdict were
guilty his property with its income was held for the king
until his fortune in the bishop’s court were known. But
the ecclesiastical trial became a farce. Compurgation
was still used, an antiquated form of proof that, under
the changed conditions, had lost what little virtue it had
ever possessed as a method of ascertaining the truth. 1
It was especially useless when a clerk selected the com¬
purgators from his own order. The church might inflict
severe punishments, as life imprisonment; but such seem
to have been seldom used.
There were still, in the thirteenth century, some valua¬
ble limitations to benefit of clergy: the privilege had not
been extended to the lower orders of the clergy, where most
clerical crime lay, but was confined to ordained clergy,
monks, and nuns; the worst forms of treason were not
within its operation; and, in the lighter offences, the mis¬
demeanours, clerks were dealt with as laymen. But
canonists; had it been maintained, no deposed or degraded clerk would
ever have been handed over to the lay power as a heretic or a forger of
papal bulls. As a general principle of law, Becket’s theory about double
punishment was condemned by Innocent III.; the decree which condemns
it is to this day part of the statute law of the Catholic church.”—P. and M.
it 455*
1 Besides its use in the ecclesiastical courts, compurgation continued
in the old local courts, its. strongest hold being in the boroughs. It is in¬
teresting that in London it was much affected by jury practice, with the
result that compurgators were not to be chosen by the accused himself,
nor were any of them to be related to him by blood or marriage; while
on the other hand he might challenge them for reasonable cause. It could
also be used in personal actions in the king f s courts, and in real actions it
was used in incidental questions, such as the denial of the summons by the
tenant. Certain actions in which the defendant might have recourse to
compurgation could be brought in the nineteenth century. But such
actions were avoided; means had been provided for bringing others in
their place. Compurgation was prohibited by statute in 1S33. See Thayer,
Evidence, pp. 25-28, 34.
252 The Period of Constitution Making
before the end of Edward IJl. J s reign, benefit of clergy had
acquired most of the well-known characteristics which
have made it approbrious: its extension to the lower cleri¬
cal orders, the right of the clerk to prove his clergy even
if his bishop refused to demand him, and the farcical
method of proof by reading. 1
One of the worst evils of the later Middle Ages was this
“benefit of clergy.” The king’s justices, who never loved it,
at length reduced it to an illogical absurdity. They would
not be at pains to require any real proof of a prisoner’s sacred
character. If he could read a line in a book this would do;
indeed, it is even said that the same verse of the Psalms was
set before the eyes of every prisoner, so that even the illit¬
erate might escape if he could repeat by heart those saving
words. 2 Criminal law had been rough and rude, and some¬
times cruel; it had used the gallows too readily; it had pun¬
ished with death thefts which, owing to a great fall in the
value of money, were becoming petty thefts. Still cruelty in
such matters is better than caprice, and the “benefit of clergy”
had made the law capricious without making it less cruel. 3
The state did occasionally break through the privilege in
specially flagrant cases, and was even assisted by the
church in doing so; but with slight exception the abuse
remained as described until acts in the reigns of Henry
VII. and Henry VIII., and later, did much to abolish it.
It was long after these acts before it entirely ceased. 4
a Reeves, History of the English Law , ii, 324-326; 428-430.
The “neck-verse” was the beginning of the fifty-first psalm: “Have
mercy upon me, 0 God, according to thy lovingkindness: according unto
the multitude of thy tender mercies blot out my transgressions ”
* Maitland and Montague, Sketch of English Legal History , pp. 72 7%.
. 4 In x 49^ a statute deprived all but ordained clerks of benefit of clergy
ui case of wilful murder. Other statutes follow which take away clergy
from all men m particular cases—thus in 1536 certain piratical offences,
in 1547 highway robbery, horse-stealing, stealing from churches, in 1^76
rape—and so forth, and thus felonies are divided into two classes known as
clergyable and unclergyable. Then again under an act of 1487 it was
provided that a person not really in orders should have his clergy but once
and should be branded m the thumb, so that the fact of hiiconviction
might be apparent. In 1622 . . women for the first time obtained a
privilege equivalent to the benefit of clergy.”— Maitland, C, p .
Law Courts
253
230. “Rut it lingered on until comparatively recent times, and even in
cases where it was withdrawn from all others who had hitherto claimed it,
an Act of Edward VI. saved it for ‘a Lord or Peer of the Realm though he
cannot read/. Readers of Esmond will remember the escape of Lord
Mohun by this means from the penalties of his successful duel with Lard
CastlewoodA— Medley, English Constitutional History, p. 611. Benefit of
clergy was abolished by statute in 1827.
SECTION II
THE EXECUTIVE
' I ’HE courts of law dealt with criminal charges and civil
* actions, and Parliament came finally to be the main
source of general legislation: of both courts and Parlia¬
ment the king was a vital part, and their acts were expres¬
sions of his authority. But outside of them there was a
large and not clearly defined sphere of action for the king—
for the king acting through his Council or some more
special organ of administration or some official. And
as an increasingly professionalised bench or an aristo¬
cratic element in Parliament might more or less conscious¬
ly contest the ground with the king for the substance of
power, so in this third sphere he had to meet a distinctly
baronial advance. This sphere is usually referred to
rather vaguely as the executive or administrative side of
government. These terms mean something in modem
political life and they probably mean something for the
period with which we are dealing. But, wrote Maitland,
they
suggest that the work in question consists merely in executing
or administering the law, in putting the laws in force. But in
truth a great deal remains to be done beyond putting the
laws in force—no nation can be governed entirely by general
rules. We can see this very plainly in our own day—but it is
quite as true of the middle ages:—there must be rulers or
officers who have discretionary coercive powers, power to do or
254
The Executive
255
leave undone, power to command that this or that be done
or left undone. 1
In view of the breadth and character of this work, he
suggests governmental as a better descriptive term than
executive or administrative. But that, on the other hand,
might easily seem to include all of the state’s activities.
His statement, however, emphasises, as should be done,
what the king did in the middle ages apart from courts of
law or Parliament. The extent of the king’s authority
in general and these activities in particular form the
subject of this section. 3 Yet there was no thought that
the so-called executive powers were solely the king’s or
that he had no others. It will be seen that Parliament
came to touch the administration at important points
and also remained a court, and king and Council were
never devoid of legislative or judicial powers. These
categories of government were more fused than separated.
Language constantly leads us astray. But we must use
such language as we have as best we can, and, while
repressing yearnings for definition, try to live in the time
and see how kings and others strove to meet the problems
of ordered society.
1. The Genesis of Limited Monarchy.—The courts
were the king’s; they were his achievement, working
skilfully and masterfully upon the material at hand.
Before going on to a consideration of his other w’ork in
government, it is necessary to notice that long before
the end of the middle ages the king could not do as he
pleased in the sense that "William the Conqueror could.
He was limited. The principle had become established
that the king was under the law, and there were elements
in the population that knew it was their interest and
1 Maitland, C. H. E., p. 196.
3 An important part of this has already been taken up in connection
with the king’s appointive officials, the justices of the peace, the local
magistracy. They were judges and held most important courts of law,
but at the same time, as has been shown, they were general administrative
officers.
256 The Period of Constitution Making
believed it to be their function to keep him under. The
administrative system which he built was not the admin¬
istrative system of a despot, and the Parliament which
he called into existence came finally to identify itself
with the nation.
After William I. had conquered England and the early
attempts of the English to throw off the yoke had been
put down and enough time had passed to bring out the
nature of his government, certain of his subjects began
to show much resentment and disappointment. In one
sense, they were not his subjects; they were his vassals.
They were bound to him by the private tie, the feudal
contract, rather than the public tie which relates the
subject to the state. Indeed, at that time there was little
of this public relation in its purity. The men of the great
servile class were under various obligations to their lords
which made it impossible for them to hold any full rela¬
tion of subject to a sovereign state; the vassals of the
king’s vassals had private contracts with their lords which
made their relations to the king only mediate. The
object of the Salisbury oath was to bring all freemen
under immediate obligation to the sovereign, but it could
only accomplish its purpose slowly. The non-noble
freemen were the only people who approximated to our
conception of subjects. But they were not the ones to
resent William’s government. Free as they were, they
were more concerned with the rule of their own Norman
or Saxon overlords, who, notwithstanding the definite
terms of their service, might oppress them in many ways.
It was not, however, because the lower classes were less
closely related to the king that they did not resent his
severity; it was because there was, for them, no such
definite source in law or precedent whence the idea of
resistence could come. The German barbarians had
found no such thing in the Roman empire; there power
was all on the side of the state and obligation all on the
side of the individual. It was essentially the same in
the empire of Charlemagne; and that empire had fallen
The Executive
257
to pieces, not because of any constitutional attack upon
it, but because emperors and subjects alike had been
unable to maintain their Roman imitation. In the ruins
of this empire, there grew among the upper classes a set
of relations, termed feudal, in which lord and vassal
were bound to each other by a contract freely entered
into and entailing mutual obligations. 1 If one of the
parties to the contract broke it, the other might try to
force him to keep it or might regard the relation as dis¬
solved. Indeed these military contracts were distinctly
the source of the principle of armed resistance to wrong.
A baron w r as a sovereign with respect to his men and his
fiefs; hence “such common arrangements as had to be
made in medieval society had to be effected on the same
lines as modem international conventions.” The king
could declare his will only in his own demesne; if it touched
the territory of his vassals it must have their consent.
But the sovereign barons were far from being of equal
influence, either in the feudal court or outside, and in
England the suzerain’s voice was very influential. Some
barons were much greater than others—“voices were
rather weighed than counted”—and the majority prin¬
ciple was not yet. It depended on circumstances and
place whether, in feudal society, the pull was towards
the centre, the king’s control, or the circumference,
feudal licence. As transplanted in England it was to¬
wards the centre; in the Latin Kingdom of Jerusalem
towards the circumference.
William the Conqueror did not turn out to be the kind
of king that his vassals had expected; he did not treat
them as the French kings treated their vassals. He did
not consciously modify feudalism when he came into
England or deliberately undertake to weaken his vassals.
But he was as strict and stem a king in England as he
had been duke in Normandy; he was great enough to
play the same part on the larger stage. His followers
seem not to have expected this; they thought he would
1 See above, Part I., § II., i.
258 The Period of Constitution Making
be like other kin gs and they like other king’s vassals.
He found in the English sheriff a means to accomplish
things in the localities and he instructed him to hold
pleas involving royal interests even within the holdings
of great lords. The profits of this jurisdiction went to
the king and lessened the judicial income of the vassal.
Peace was maintained, and the rights of private warfare,
which surely, it was thought, belonged to a king’s vassals
even if not to a duke’s, were rigidly suppressed. Many
of William’s vassals felt that what he was doing amounted
to a breach of Ms contract. They rose against him, and,
despairing of making Mm recognise their rights, they
purposed to break all relations with Mm and drive him
from the land. Thus occurred, in 1075, the first true
feudal revolt in England. It was a revolt not against
William as king, but as suzerain. It was the first of a
series of such revolts wMch lasted with little change in
character for about a century. The barons had to learn
in England, as a result of the king’s power, “a lesson
foreign to their class anywhere else in the world of that
time, the lesson of combination with one another.” In
France combinations of the barons were much less com¬
mon. There they could hope for independence and
looked on one another as rivals. They fought one
another as well as the king. Hence their risings had
“more of a personal and less of a public character.” 1
When William II. came to the throne, he not unnatural¬
ly had a revolt of these barons on Ms hands at the very
outset. It is interesting that he began to make verbal
promises of good laws, especially a mitigation of the
forest laws. He did this in order to gain the support of
the English and of as many Normans as possible. But
during Ms reign, with the help of Flambard, he broke
feudal custom in more specific and exasperating ways
than his father. Dues and the rights of overlords with
respect to marriage, wardsMp, and other feudal incidents
were becoming fixed by custom, and hence were covered
1 Adams, Civilisation during the Middle Ages, pp. 334, 335.
The Executive
259
by the feudal contract without specific mention. These
he abused beyond measure, and the rising of the northern
nobles under Mowbray in 1095, generally known as
Mowbray’s revolt, -was of the same feudal type as the
preceding. It ended in the same way. a royal victory.
These Norman kings were strong, and so slight was
racial or national feeling that they had the support of
the Anglo-Saxon lower classes. This was the normal
medieval alignment. The king, standing for some
degree of law and order, had the support of the church
and of the cultivators of the soil, who had more to fear
from the local tyrant than from the distant one: the lay
noble’s hand was against every man and every man’s
hand against him.
But another line of development was springing up
alongside that just noted, and grew 7 out of the Conquest.
The Norman kings of England, mighty as they were,
were forming the habit of making formal, public promises.
It was natural that William the Conqueror, in maintain¬
ing the fiction that he was the lawful successor of Edward
the Confessor, should take the coronation oath of Anglo-
Saxon kings—the threefold promise to protect the church,
to rule justly, and to do away with wrongs. But the
special circumstances of his coronation could not be
wholly overlooked, and he appears to have added to the
oath “that he would govern this nation as w T ell as any
king before him had best done, if they [the people] would
be faithful to him.” Before 1075, came his short charter
to London, the beginning of written promises to muni¬
cipalities in England. 1 William II. also used the old
coronation oath, and he also added to it in a way that
seems to admit some dissatisfaction with his father’s
rule or a craving of suspended judgment for his own.
He also sought Lanfranc’s needed support by a promise
to be guided by him in all matters. In recruiting help to
put down the revolt of 1088, he made lavish promises.
Says the Anglo-Saxon Chronicle,
1 Stubbs, Select Charters, p. 97.
260 The Period of Constitution Making
He then sent after Englishmen and told them his need, and
desired their support, and promised them the best laws that
ever were before in this land; and every unjust impost he
forbade, and granted to men their woods and liberty of the
chase, but it stood no while.
In a severe illness in 1093 William believed he was at the
point of death, and apparently in terror at his own mis¬
deeds he made a formal promise of a sweeping character.
This act is described by a contemporary:
An edict was published, confirmed by the royal seal, that all
captives in all parts of his dominion should be released, that
all debts should be irrevocably remitted, that all abuses
hitherto inflicted should be done away with forever. More¬
over, there were promised to all people good and holy laws,
maintenance of uncorrupted justice, and such a severe inves¬
tigation of wrongs as would deter others.
This account, by a very intelligent and reliable chronicler, 1
shows a written promise, something in the nature of a
general edict or charter, and contains what is essentially
an acknowledgment by William that others had rights
as against Mm. The tide of promises was rising. TMs
was the background when a most sudden emergency
brought Henry I. to the throne. Under the circumstances
he had every motive to issue a set of written promises.
His brother’s abuses were specific and notorious; they
broke the spirit and the letter of the tacit contract wMch
bound every lord and vassal; they had outraged a part
of the population wMch could be easily reached and
appealed to by a formal charter; they were susceptible
of a clear, contractual statement. But not only did
Henry’s situation cry out for a charter at the time of Ms
* TMs was Eadmer. For the passage cited see Stubbs, Select Charters ,
p. 109. The text of William II.'s edict has been lost; we know of it only
through the chronicler. It is interesting that Eadmer’s account of Henry's
charter is very similar to his account of William’s. If Henry's had been
lost we should have the same knowledge and opinion of it we now have of
William's.
The Executive
261
coronation —other kings and 111 other countries had come
to the throne when such a set of formal promises might
have been good for them—but there was here in the his¬
tory just preceding, the working out of the promise idea into
the written charter; when the emergency arose at Henry's
sudden succession the developed idea was there, ready to
be seized upon and used. And so Henry I.’s charter of
liberties was conceived and brought forth—a great charter,
as it was sometimes called, until a greater took the name. 1
In the multiplication of originals of this charter and in
the provisions made for their safe-keeping there is evi¬
dence of the high value set upon it and a purpose that
knowledge of it should not be lost. 2
This charter made very definite promises to correct
specifically mentioned feudal abuses of William. In the
reaction bound to follow his brother's reign, Henry thus
emphasised, either through necessity or policy, his con¬
tractual relation to his tenants-in-chief. But throughout
his reign, he was strong enough to break his promises
freely, and there was no revolt except the inevitable
exploratory one at the beginning of his reign which
resulted so disastrously to his enemies. Yet the very
regularity of his tyranny, while rather extending the
powers of the crown, tended also to strengthen the con¬
tract idea; he was not capricious; with respect to a portion
of his population, he was acting upon a recognised set of
principles . 3
When Stephen came to the throne, he felt it necessary
to strengthen his doubtful claim by a brief confirming
charter. He merely confirmed “the liberties and good
laws,” with no mention of their having been abused and
* A. and S., document 7; W. and N. t pp. 367-370.
2 See Poole, The Publication of Great Charters by English Kings, English
Historical Review, xxviii, 444-453. On the origin of Henry’s charter, see
H. L. Cannon, The Character and Antecedents of the Charter of Liberties of
Henry I., American Historical Review, xv., 37 ~ 46 -
3 Much more was this the case if we accept the statement of Stubbs that
the coronation charter was “probably reissued from time to time as he
found it necessary to appeal to the sympathies of the people against their
common enemies.”— Select Charters t p. 116.
262 The Period of Constitution Making
with no specific points of correction. 1 A few months later,
he found it necessary to gain the support of the church
by a charter which made very sweeping concessions. 2
The church included a class necessarily in close, but often
ill-defined, relations with the king. Stephen limited his
power by allowing the church a greater independence
than it had ever had; two rather vague clauses were
probably intended to concede the investiture rights
reserved by Henry I. in his compromise with Anselm and
the trial of criminous clerks. Stephen was a great prom¬
iser but a bad fulfiller of promises. He purchased the
support of individuals and of all sorts of groups with
promises. The contract idea was common as in no reign
before, but it was abused and made commonplace. The
barons steadily gained power from the crown, his reign
was one long feudal revolt, and they built castles, coined
money, and waged private war—things anathema in the
reigns before. For the first time—and the last—there
was thorough-going feudal license in England.
Henry II., at his coronation, ignoring what had hap¬
pened in the intervening reign, confirmed the laws and
liberties of his grandfather in a general but emphatic
charter, and mentioned Henry L’s having granted these
in charter form. 3 The rapid progress of centralisation
under this king, especially in the foundation of the king's
1 A. and S„ document io. 2 Ibid., document xi.
3 The text of this charter reads: “Hemy by the grace of God King of the
English, duke of Normandy and of Aquitaine, and count of Anjou, to all
earls, barons, and his faithful French and English greeting. Know that I to
the honour of God and of holy church and for the general betterment of my
whole kingdom have granted and restored and by my present charter con¬
firmed to God and holy church and to all earls and barons and to all my
men all the concessions, grants, liberties, and free customs which King
Henry my grandfather gave and conceded. Likewise also all the evil cus¬
toms which he removed and gave up, I give up and grant shall be removed
for myself and my heirs. Wherefore I will, and firmly command that
holy church and al! ^rls and barons and all my men have and hold all
those customs, grants, liberties, and free customs, freely and quietly, well,
in peace, and fully, from me and my heirs for them and their heirs, as
freely, quietly, and fully in all respects as King Henry my grandfather gave
and conceded and by his charter confirmed to them. Witness Richard de
Lud at Westminster.” See Latin original in Stubbs, Select Charters , p.
The Executive
263
court system, has been noted. 1 He hit feudalism in the
old way, forbidding private castles and garrisons and
fighting in anyone’s quarrel but the king’s, and in the
new way of a suddenly increased assault upon the feudal
court revenue. In 1173, began the last purely feudal
revolt in England, almost a hundred years after the first
one. Again the understood contract between lord and
vassal—whose content varied from age to age, but was
always a reality—had been broken and the barons made
an unsuccessful attempt to hold the king to its terms.
By the close of Henry IL’s reign we have this interesting
but explainable paradox: the kings of England were
stronger than the kings elsewhere in Europe, and yet
they w r ere the only kings who made formal, written agree¬
ments when they were crowned. In addition to the
points brought out in the foregoing sketch it should be
noted here that there had not been one primogenitary
succession to the English throne since the Conquest—
not that anyone had opposed primogeniture as such,
but the chances of family circumstance and personality
had ruled that way. Primogenitary successions would
not be favourable to coronation agreements; non-primo-
genitary successions, because more likely to be disputed,
would. 2
Richard I.’s succession was primogenitary, and there
was no coronation charter. Also, probably in part owing
to the crusading preoccupation, there w T as no feudal
revolt then or throughout the reign. By the end of the
twelfth century one party to the feudal contract, namely,
the king, appears to L^ve been so uniformly successful
that all contract element was likely to pass away, and
the king be limited with respect to no portion of his
1 See above, pp. 1^4 ff.
2 In France hereditary circumstance had been such that primogeniture
had been the unbroken rule since the accession of the Capetian house in
987, and was to be for about a century and a half more. Twelfth-century
kings in France were not nearly so powerful as English kings: there had
been no Conquest and the average of royal ability was lower; but in the
early firm establishment of the primogenitary rule later French kings found
a great asset in their strife for power.
264 The Period of Constitution Making
population. From 1066 to £1199, there had been but
one weak reign; taking into account also the tremend¬
ous fact of the Conquest itself, one sees how absolute
monarchy was being attained in England almost at a
stride. The memory of past events was short in the
middle ages. Would Henry L’s charter be forgotten,
and w r ould English kings grow so all-powerful as to de¬
stroy their character as suzerains by continued, suc¬
cessful violation of much that that character implied?
The fact that feudalism in many of its aspects was
then waning in England looked towards an affirmative
answer.
The issue was to be settled in John’s reign, but an
event late in the reign of Richard first demands attention.
At the end of 1197, Richard commanded his English vas¬
sals to unite in providing a force of three hundred knights
to serve him for a year on the continent. “The union of
the military tenants to equip a smaller force than the
whole service due to the lord, but for a longer time than
the period of required feudal service, was not uncom¬
mon. ni The constant necessity which the English kings
were under of fighting upon the continent, while there
was little need of fighting in England, was bound to sug¬
gest such expedients. This particular demand received a
decided refusal from the bishop of Lincoln, a man of the
highest character. His example was followed not only
by many clergy, but by laymen. It was stated that the
military tenants of England were not bound to render
service outside the country, and Richard drew back before
their united stand. There was no good feudal precedent
for this in England or elsewhere; the letter of the law or
custom was on the king’s side. Yet it is not surprising
that such a protest should have at length arisen. The
English Channel lay between the king’s English and
French possessions; England was a natural unit. To
use the feudal contract for a forty-day personal service
as the basis for making English vassals regularly pay for
1 Adams, History of England (1066-1216), p. 383.
The Executive 265
soldiers to fight in Normandy or Aquitaine seemed a
breach of the spirit of that contract—and that, too,
whether the soldiers were mercenaries hired on the con¬
tinent or equipped knights sent from England. But it
was not a national resistance to taxation, as has some¬
times been stated. There was, properly speaking, no
taxation and no idea of constitutionality concerned in
the case. The bishop of Lincoln based his stand upon
specific customs and privileges of the church of Lincoln
which he felt bound to uphold; and those who followed
his lead had in mind their individual liberties, not a
general notion of liberty. The significance of the episode
lies in the fact that, upon the eve of John’s reign, the
contract idea in the English feudal population still had
vitality.
If the authenticity of the reported speech of the arch¬
bishop at John’s coronation could be trusted, rather
sweeping conclusions might be drawn about the consti¬
tutional importance then attached to the election of a
king. It is stated that the archbishop said on that
occasion that no one had the right to succeed another to
the throne on the basis of any foregone principle, but
that he must be chosen by the whole realm, God’s guidance
having been asked; and it is further stated, that when
privately asked later why he had said this, the archbishop
answered that he had a premonition that John would at
some time bring injury and confusion upon realm and
crown, and lest he should have free rein in his evil course
he had asserted that he was made king by election rather
than by hereditary succession. The chronicler who
wrote this did not begin his work until some thirty-five
years after the event. But there is evidence that it was
generally believed before John’s death that the arch¬
bishop had made some such statement. While these
ideas cannot be accepted for the occasion of John’s
coronation or for the year 1199, it is extremely important
to note that such sophisticated notions of elective king-
ship were present and recorded in the first half of the
266 The Period ol Constitution Making
thirteenth century . 1 However, it seems to have been
a different train of events, connecting up with previous
charter history, which led most directly to a limiting of
the king’s power.
Among John’s abuses his perv ersion of scutage was
notable; he took it at wrong tim es 'and in wrong am ounts.
He was making it less a strict commutation of feudal
1 How slender was the conception of elective monarchy in the Anglo-
Saxon period has been noted above (pp. 46, 47), For more than a century
after the Conquest, there were scarcely any definite principles of royal
succession. There was an ill-defined but inclusive idea of heredity, with
the addition of certain vague criteria of designation, age, general avail¬
ability, recognition by the great men of the realm, eta But each suc¬
cession had its exceptional elements. William I. was king by conquest,
but he did not venture to assume'the crown offered him by Edgar and the
great men until he had consulted, and received the assent of, his own
Norman vassals. With the establishment of the Norman house, it seems
to have been taken for granted that the crown was hereditary; it was often
so spoken of. William II. was designated by his father, and made good
his position by promptly seizing the treasury and gaining the support
of Lanfranc. Henry I. gained the crown by prompt action upon the
death of his brother, securing the treasury at Winchester and gaining the
approval of the magnates and others who happened to be present. His
coronation charter and his masterful personality secured his position.
Stephen got the throne instead of the designated and direct heiress Matilda,
by promptly going to England, while she remained on the continent. Lon¬
don supported him at the outset^ and he gained one influential group
after another through lavish promises. Much is heard of “election’' in
connection with his succession, but an examination of what actually took
place shows that it meant a formal assent after a quid pro quo —not any¬
thing which we should regard as a constitutional election. Henry II. was
looked upon as Stephen’s successor before the latter’s death because of
the strong claims derived from his mother, a powerful ecclesiastical back¬
ing, his own manifest ability, the weakness of Stephen, and the death of
Stephen's oldest son. Richard I. became king because, as Henry II.’s
elder and abler son, there was no reason why he should not. Primogeni¬
ture, a principle which originated in feudalism in the inheritance of fiefs,
was sure sooner or later to influence succession to the crown. It had long
been the unbroken rale in French succession. John came to the throne,
however, instead of the primogenitary claimant, Arthur, under Richard’s
designation, but mainly because the old fear of a minority was still stronger
than the new principle. The nine-year-old H§nry III. was made king
because he was John's oldest son and the English people preferred a minor¬
ity to the rale of the foreigner, Louis of France. Beginning with this suc¬
cession, primogeniture prevailed, in normal times; but violent misrule,
with resulting usurpation and action by Parliament, might interfere with it!
It had not come soon enough to interfere with the evolution of the prin¬
ciple that the king was under the law.
A reflection of the growth of a determinate, hereditary succession is
found in the disappearance of the interregnum. , Until the succession of
Edward I., between the death of a king and his successor’s coronation,
there was no king; the king’s peace was dead and confusion and lawless-
The Executive 267
service, and more a sub sidy imposed at. .the
But his abuses were manifold, and this is not the place
for an enumeration of the causes of Magna Carta. It is
true that there was hardly an element among his people
that did not have a grievance, but some were only op¬
pressed indirectly. Those who bore the brunt of his
oppression were his vassals. All the feudal abuses of
William II. were repeated in aggravated form. John
broke every jprovirion which a feudal contract of his time
could possibly have contained/* Finally, most of his
vassals refused TcTfollow him to the continent, basing
their refusal on the same grounds offered in Richard's
reign. The uprising which resulted in Magna Carta
was not a purely feudal revolt , of which the last instance
was in 1173-4. The church w as here concerned, and
not simply in its baronial character; and the barons had
a substantiaThackf^g in the discon tent of_the^ lower
classeiT There was in it the hint ofa national revolt .
^Whence came the possibility in England of anything
even approaching a national revolt at a time when such
a thing was impossible elsewhere in Europe? The regular
arrangement of forces in earlier conflicts had been king,
church, and lower classes against feudal nobility.
Throughout the middle ages, in Europe, the lay nobles
stood alone; their interests could not be identified with
those of any other class. While people and church saw
a lesser danger in the growing power of the king than in
the power of numerous local tyrants, there was no possi-
ness sometimes resulted. Edward I/s succession was a transition in this
matter. He was on crusade when his father died; but four days later, upon
his father’s burial, a considerable number of prelates and barons took the
oath of allegiance to him notwithstanding his absence. From that time,
he was regarded as king, and was the first so regarded before coronation.
With the succession of Edward II., the change was complete; he became
king by the fact of his father’s death.
1 See Mitchell, Taxation under John and Henry II L t pp. 361-366.
3 Yet John was not original at every point. It has been too often as¬
sumed that every abuse corrected in the Charter must have been begun
by John. Extortionate reliefs on the baronies, for example, go back to
Henry II.
268 The Period of Constitution Making
bility of winning power from the king on the part of the
nation. In England, from the Conquest to the end of
the twelfth century, the feudal nobility had received such
a succession of staggering blows that royalty reached at
a stride a position which it took centuries longer to reach
in Prance or Spain. Also in England large parts of the
nobility had been forced by strong kings to stay at home
and quit fighting and were used by the kings in all sorts
of governmental work. The English knighthood was
not the continental knighthood. It was a knighthood
with which church and middle class might make common
cause. Stephen Langton became the brains of the
barons* movement. 1 When a chronicler told how the
Londoners, at the critical point m the rising against John,
on their own motion entered into negotiations with the
barons and actually opened their gates to a feudal army,
he recorded a very great event. The simple but funda¬
mental causes of this difference in England’s history were
insularity, the Norman Conquest, and the remarkable
post-Conquest sovereigns.
The atrocious character of John’s reign was suited in
every detail to rouse the opposition of every element
that could make itself felt. The situation is significant
beyond exaggeration, not so much in making national
opposition possible at an early date, for opposition with¬
out a guiding principle would have wasted itself; but in
bringing it about just early enough to use to the full
feudalism’s principle of contract 2 and to revive the long
interrupted series of royal charters of liberties. How
* The stand of the church was doubly notable, for English churchmen
were not only uniting with their age-long enemies, the lay nobles, but were
at the same time defying the pope, John's overlord and ruler. It is interest¬
ing that in John's reign the term “English church" (Anglicana ecdesia )
was being used. A chronicle {Annals of Waver ley) has it for the year 1207.
See Stubbs, Select Ckirters, p. 268. And it is used twice in article 1 of
Magna Carta—perhaps its first use in an official document. One cannot
help wondering what of national stirrings in the church in England the
rise of this term reflects.
* See below, pp. 270,271. In decadent continental feudalism, the nobility
retained a character which made co-operation with church or people impos¬
sible long after the contract idea had become obscured.
The Executive
269
John would have been dealt with had Henry I.'s charter
not been discovered it is hard to tell. It had been a long
time since 1154, and a charter of liberties was not in mind.
The barons had long felt keenly enough John’s violation
of feudal custom, but they had been beating about with
no practical expedient in mind short of the last violent
extremity of expulsion from the throne. Then Stephen
Langton found the old charter, made the suggestion, and
forthwith sentiment crystallised about the charter idea.
The mere mention, however, of something national about
the rising of 1215 tends to exaggerate that feature of it.
It was mainly a feudal revolt; the suzerain had broken his
contract, and his vassals proposed to compel him in
some way to keep it, or else sever their relations with him
and take to themselves a new overlord.
The Charter 1 of course reflects its origin. The early
articles are predominantly feudal and show the use that
was being made of Henry’s charter. Like William II.,
John had abused the feudal incidents, and here was the
correction, set forth with care and detail. But on reach¬
ing article twelve, something is found not contained in
the earlier document. This article touched a major
1 A. and S., document 29; W. and N., pp. 380-396.
2 For the reason for mentioning London in this feudal connection, see
Adams in English Historical Rgoiew t srix., 702-706.
270 The Period of Constitution Making
without the consent of the vassals. They did not mean
to deny the principle of scutage or say that consent was
necessary to normal commutation of bona fide feudal
service; later dealings between king and barons makp
this plain. What they did mean was that John’s per¬
versions of scutage must be brought under control and
that no “gracious aid,” i.e. an aid beyond the three
allowed in feudal custom, should be taken without con¬
sent. That the “common counsel” referred to was
simply that which the king found in his feudal court is
made certain by the detailed description, in article four¬
teen, of how such counsel was to be taken. 1 But in the
period following the Charter, feudal ideas and practices
were rapidly disappearing; taxation developed along
several lines; the Charter, though, with this, among
other articles, omitted, was frequently confirmed, and
the contract idea running throughout it was thus kept
alive—and that in a period when people were not scien¬
tific in their use of history and did not enquire what the
contract covered or meant at an earlier time. The result
was that, -whereas in 1215, in this matter of aids and
scutages, the king’s vassals held him to the feudal law,
at the end of the century the nobles, assuming to speak
for the nation, said that the king should not levy taxes
without general consent.
A completer illustration is found in article sixty-one.
This article sets forth the contract principle in more
general terms. It says, in effect, that there were recog¬
nised customs and laws, such as those just set down,
which the king was bound to keep, and that if he did not
his people could compel him to keep them; and it pro¬
vided the clumsy machinery of the twenty-five barons
to this end. Feudalism was clearly the source of this
idea. The feudal contract was the formal ground for this
whole baronial movement, that which saved it from
8 For a discussion of the famous phrase commune consilium , especially
as to whether or not it was an assembly name, see American Historical
Review, xxv., 1-17.
tents ot tne several articles is concerned, might easily be
overstated; other than feudal abuses were corrected, and
non-feudal classes were to some extent concerned. But
a study of either the remote or immediate causes leaves
one in no doubt as to where the animus of the movement
lay; the initiative was taken by the barons and the bulk
of the work was done by them. Magna Carta powerfully
emphasised the contract between the suzerain and his
tenants-in-chief, and between the tenants-in-chief and
their vassals. Writers in modem times have tried to
bring this famous document under some well-known
category, to see in it, for example, something of a “fun¬
damental law” or “frame of government” or statute.
History , American Historical Review, xix,» 220) exquisitely presents this
two-fold aspect: 44 Many a fact of history is like the grain of sand that
intrudes within the shell of the pearl oyster. Tiny and insignificant it is
quickly lost to sight and knowledge; but about it are deposited the en¬
sphering layers of myth and legend till a glimmering treasure is produced
that excites the mightiest passions of men. Under the charm of its beauty,
art, religion, civilisation is developed; through the lust to possess it a
dynasty is overthrown, an empire falls into ruin. The historian may crush
the pearl and bring to light the grain of sand; but he cannot persuade us
that the sand made all the intervening history, ” Magna Carta was not
u tiny and insignificant” in 1215, but it did undergo the sea-change. It
has long been a myth, a very powerful myth; and most people would agree
that, judged by almost any interpretation of history, it has been a benefi¬
cent myth . 4 Its story is unquestionably importantbut has long been neg¬
lected. Bemont's brilliant but brief sketch in his Chartres des Liberies
Anglaises (pp ; xxvL-lxxvi.) made a beginning; and a detailed study of
the Charter in the thirteenth century has just appeared in Dr. Faith
Thompson's The First Century of Magna Carta: Why It Persisted as a
Document .
270 The Period of Constitution Making
■without the consent of the vassals. They did not
to deny the principle of scutage or say that consent was
necessary to normal commutation of bona fide feudal
service; later dealings between king and barons make
this plain. What they did mean was that John’s per¬
versions of scutage must be brought under control and
that no “gracious aid,” i.e. an aid beyond the three
allowed in feudal custom, should be taken without con¬
sent. That the “common counsel” referred to was
simply that which the king found in his feudal court is
made certain by the detailed description, in article four¬
teen, of how such counsel was to be taken. 1 But in the
period following the Charter, feudal ideas and practices
were rapidly disappearing; taxation developed along
several lines; the Charter, though, with this, among
other articles, omitted, was frequently confirmed, and
the contract idea running throughout it was thus kept
alive—and that in a period when people were not scien¬
tific in their use of history and did not enquire what the
contract covered or meant at an earlier time. The result
was that, whereas in 1215, in this matter of aids and
scutages, the king’s vassals held him to the feudal law,
at the end of the century the nobles, assuming to speak
for the nation, said that the king should not levy taxes
without general consent.
A completer illustration is found in article sixty-one.
This article sets forth the contract principle in more
general terms. It says, in effect, that there were recog¬
nised customs and laws, such as those just set down,
which the king was bound to keep, and that if he did not
his people could compel him to keep them; and it pro¬
vided the clumsy machinery of the twenty-five barons
to this end. Feudalism was clearly the source of this
idea. The feudal contract was the formal ground for this
whole baronial movement, that which saved it from
1 For a discussion of the famous phrase commune consilium, especially
as to whether or not it was an assembly name, see American Historical
Review, xxv., 1-17.
The Executive
271
being a mere unformulated protest against oppression.
The feudal character of Magna Carta, as far as the con¬
tents of the several articles is concerned, might easily be
overstated; other than feudal abuses were corrected, and
non-feudal classes were to some extent concerned. But
a study of either the remote or immediate causes leaves
one in no doubt as to where the animus of the movement
lay; the initiative was taken by the barons and the bulk
of the work was done by them. Magna Carta powerfully
emphasised the contract between the suzerain and his
tenants-in-chief, and between the tenants-in-chief and
their vassals. Writers in modem times have tried to
bring this famous document under some well-known
category, to see in it, for example, something of a “fun¬
damental law” or “frame of government” or statute.
Whatever of these it has come to be or to symbolise in
its long later history, 1 to the barons who made it, it was
a declaring of those points in law, largely feudal, which
were at issue between them and John; these were the
substance of a contract or treaty which they forced upon
the king, their side of the treaty being a tacit under¬
standing that on this basis they would continue to regard
him as overlord and king; and in putting this treaty into
1 Magna Carta in 1215 was one thing; Magna Carta in later history has
been quite another. The imagery of the late Professor Dunning (Truth in
History , American Historical Review, xix., 220) exquisitely presents this
two-fold aspect: “Many a fact of history is like the grain of sand that
intrudes within the shell of the pearl oyster. Tiny and insignificant it is
quickly lost to sight and knowledge; but about it are deposited the en¬
sphering layers of myth and legend till a glimmering treasure is produced
that excites the mightiest passions of men. Under the charm of its beauty,
art, religion, civilisation is developed; through the lust to possess it a
dynasty is overthrown, an empire falls into ruin. The historian may crush
the pearl and bring to light the grain of sand; but he cannot persuade us
that the sand made all the intervening history.” Magna Carta was not
“tiny and insignificant” in 1215, but it did undergo the sea-change. It
has long been a myth, a very powerful myth; and most people would agree
that, judged by almost any interpretation of history, it has been a benefi¬
cent myth. Its story is unquestionably important, but has long been neg¬
lected. Bemont’s brilliant but brief sketch in his Chartres its Liberies
Anglaises (pp. xxvi-lxxvL) made a beginning; and a detailed study of
the Charter in the thirteenth century has just appeared in Dr. Faith
Thompson’s The First Century of Magna Carta: Why It Persisted as m
Document.
272 The Period of Constitution Making
words they drew upon the forms of contemporary land
grants. 1 The historical backgrounds, the antecedent
ideas or developments which the circumstances of John’s
reign brought together and made into Magna Carta (and
these had not been total strangers before), were the feudal
contract, the habit of united action on the part of Eng¬
lish nobles, the growth of a nobility with which church
and townsmen could co-operate, and the evolution of the
written formal promises or charters of the post-Conquest
kings. To understand how the king’s power became
limited in England it is highly important to watch the
further history of the charter idea.
The reign of John was followed by a long minority,
practically a new thing in English history. In order to
ge t every poss ible backing for the new long, the Charter
was reissued in great" haste, but with a respiting clause
which referred to the omission, among others, of the
clauses just considered.* Changed conditions, especially
1 It is a notable feature of the Charter that the barons brought forth no
new scheme of government which they wished to substitute for the great
creations of the Norman and Angevin kings; they were ready to accept
these almost in toto. It may indeed be said that the English baronage by
1215 was made up of men who could largely appreciate and value the won¬
derful achievements in government of recent years. What they wished
was not to destroy, but to control; and the same may be said of baronial
conflicts with the king until the baronial opposition was lost in a move¬
ment that was truly national.
2 The clause reads: 4 ‘But because certain articles were included in the
earlier charter which have seemed difficult and doubtful, that is to say
concerning the assessing of scutages and aids, the debts of Jews and others,
freedom of going from or returning to the realm, forests and foresters’
warrens and warreners, and the customs of counties and of river banks and
their guardians, it has pleased the said prelates and magnates to hold these
in respite until we have further counsel, and then we shall provide most
fully for these matters and others which may come up to be amended,
which pertain to the common weal of all and to the peace and position of us
and our realm." Latin original in Stubbs, Select Charters, p. 339. It was
hard for the barons to formulate in words just what they desired in the
matter of scutages, and now that John was removed corporate consent to
aids seemed unnecessary and often inconvenient. In the reissue of 1217,
the difficulty of framing a scutage clause was gotten around by simply
making the king say (in article 44) “Scutage shall henceforth be taken as
it was accustomed to be taken in the time of Henry II. our grandfather.”
This was really what the barons wished and the easiest way to indicate it.
The provision about aids and corporate consent disappeared from the
Charter forever. But Henry III. “never took an aid except by the consent
of the great council. It is likely that this was due to the growth of corpor-
The Executive
273
the fact that the Charter was now voluntarily put forward
in the name of the boy king instead of being won at the
sword's point from an old incorrigible like John, and lack
of time for careful consideration made it seem best to go
slowly on several points. What definite change there
was, was probably in the interest of the central power,
but the Charter was still a compact. In 1217 came the
second reissue. This reflects mature deliberation on all
points, and the forest articles appeared in an enlarged
form as a separate charter. Hence the regular reference
thereafter to 44 the Charters.” 1 The third reissue during
Henry III.’s minority was in 1225, and it was then that
the Charter took its final form. Apparently soon after,
the wording of John’s Charter passed out of mind, and
until well into the seventeenth century Magna Carta
meant the contents and phrasing of the 1225 reissue. 3
This reissue is notable also as having been granted
specifically in return for a tax—a true tax, not a feudal
aid—thus for the first time linking up Magna Carta with
national taxation; 3 and for the inauguration of the custom
of accompanying a confirmation of the Charters by a
solemn pronouncement of excommunication against all
who might infringe them. Henry’s minority, when Louis
of France was forced to leave England and John’s foreign
mercenary leaders were driven from their fat holdings
and from the country, was a time when English national
feeling was becoming a factor in events. Englishmen
were proud that they were Englishmen and distinguished
themselves sharply from Frenchmen. It was a time
favourable to new ideas or the re-rooting of old ones.
ate feeling among the magnates, rather than to a desire to conform to
article 14. However that maybe, the method followed was the same as that
provided in the dropped articles.” Mitchell, Taxation under John and
Henry III., p. 367; for a discussion of this whole matter, pp. 359-369.
1 Magna Carta first got its name “great” to contrast it with its shorter
and less important offspring, the charter of the forest. See English Hi$~
torical Review, xxx., 472-5; xxxii., 554, 555.
a B&nont's Charles des Liberies Anglaises, with its valuable introduction
and notes, serves best for a study of the various editions of the Charter.
See also Stubbs, Select Charters, pp. 292-351, passim,
3 See below, p. 417 and note 2,
274 The Period of Constitution Making
The charter idea was striking deep into the soil. The
elaborate provisions for preserving originals and multi¬
plying copies of John's Charter plus these minority re¬
visions would go far to keep royal charters of liberties
from ever again being forgotten. And though the text
of John's Charter passed out of mind, yet nobody forgot
that a charter had been wrung from him. The striking
events of his reign with this impressive and dramatic
denouement had fixed the attention not only of England
but of many parts of the continent.
But the time was still critical and much depended upon
the character of Henry III. Had he been a strong and
intelligent ruler, the contract idea might have died with
the rest of feudalism. But his weakness, meanness, ex¬
travagance, and love of foreigners did the work that was
necessary. England has been indeed fortunate in the
distribution of her good and bad kings. There was no
chance to forget the Charters in Henry III.’s reign; to
make the king confirm them gave his exasperated sub¬
jects something to do that seemed rational; for many
years there was a dawn of hope each time he solemnly
swore to observe them. But finally men began to realise
with how mean and petty an individual they were dealing.
Since the Norman Conquest, with one exception, Henry
was the first king who had not been feared, and it is
interesting to note the increasing freedom with which
his shortcomings were denounced to his face. 1 It would
have been dangerous to stable government to have had
such a condition last long; but something of this sort was
needed to break the tremendous prestige of the Angevin
monarchy. As the reign progressed, so did emphasis
on the Charters. When Henry was declared of age in
1 The chronicler Matthew Paris reports (1244) that “the magnates of
England convening on Nov. 2, when the king most insistently, not to say
most impudently, asked them again for a money aid, so many times injured
and deluded they with one voice refused him to his face.” (Stubbs, Select
Charters, p.327.) See also the very lively dialogue between the king
and the Prior of the Hospitallers cited in Taswell-Langmead, English
ConshMtoml History , p. 294.
; was great fear shown throughout
ght attempt some act of repudia
the administration of certain art:
t of critical dissensions between
1 1237 a notable confirming charte
;e for a tax, again the solemn <
ication. with the king crying out c
its political thought, references
w poorly the king had kept his
jrell-known great council that
ninisters, the king repeatedly
and promising to keep them
upon which were in the nature
of a supplement to Magna Carta—the first such; in 1253
a most notable instance of the ceremony of excommunica¬
tion and anathema against infringers of the Charters,
with the kin g participating and the pomp and terror of
the church at their height and the Charters referred to
in words that stamp them as fundamental and unchange¬
able by any earthly power—followed by the king’s
attempt to gain from the pope a release from his oaths;
in 1254 the papal support of the Charters made clear, and
measures taken in some of the bishoprics for renewed
miKiini-hr—rpnHino' in county and hundred courts and
ind in both English and French
visions of Oxford Parliament. There followed the rise
of Simon de Montfort, the civil war, and the last seven
peaceful years, when the results of the conflict appeared
1 See below, pp. 360-362.. . ,. .,
3 Matthew Paris’s account of the discussions in this council is highly
interesting. See Stubbs, Select Charters, pp. 360-362. Whatever this and
the assembly of 1244 may have been formally standing for, there was an
atmosphere of nationality and maturity in them, if the chronicler reported
them aright, which foreshadowed a new era.
276 The Period of Constitution Making
in the administration of Prince Edward. The rising of
1258 was, in essential features, like that of 1215, a barons’
affair. Its immediate result was the attempted form of
government outlined in the Provisions of Oxford. 1 Here
was a repetition of the device, originated in article sixty-
one of the Charter, to put the government into the
hands of an aristocratic group, but with much elabora¬
tion of detail. It is no matter of regret that the experi¬
ment failed, for an aristocracy, once established, would
have been more difficult to deal with than the king.
But the Provisions of Oxford served to continue and
emphasise the idea that, under sufficient provocation,
the king might be deprived of his power.
In the spring of 1265, shortly before the tide turned
against the triumphant Simon, Henry III. confirmed the
peace made the preceding year and at the same time the
Charters. Perhaps the most striking clause in the
famous sixtv-first article of the Great Charter was that
in which John was made to admonish his people to rise
against him, in case he broke the law, and by the use of
force bring him again to the lawful way. This was
repeated with great distinctness in this confirmation by
Henry III. After premising unlawful acts of the king or
Prince Edward, the language concludes:
... it shall be lawful for every one in our realm to rise
against us and to use all the ways and means they can to
hinder us; to which we will that each and every one shall
henceforth be bound by our command, notwithstanding the
fealty and homage which he has sworn to us; so that they
shall in no way give attention to us, but that they shall do
everything which aims at our injury and shall in no way be
bound to us, until that in which we have transgressed and
offenced shall have been by a fitting satisfaction brought
again into due state, according to the form of the ordinance
of the aforesaid, and of our provision or oath; this having
done let them be obedient to us as they were before. ... 2
* A, and S., document 34.
Ihid. t document 36.
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277
Such a legalising of rebellion was full of possibilities; it
leads one to question what would happen if a king refused
to be thus limited and so repeatedly broke his laws and
agreements that there was no possibility of his people’s
again being obedient as they were before. The answer is
undoubtedly found in what the barons had attempted to
do with the incorrigible John.
Sometime between 1235 and 1259, Bracton wrote his
great work, De Legibus et Consiietudinibus Anglia . 1 In
the first book, in treating of the “dignities” of various
persons and classes, he set forth the dignity of a king in
words which reflected the history of his time. They are
worthy of remembrance as the first formulation of a great
principle and for their precision and force:
For the king ought not to be under man but under God and
under the law, because the law makes the king. Let the king
therefore bestow upon the law what the law bestows upon
him, namely dominion and power, for there is no king where
will rules and not law . 2
When one reflects that this was written only a half-
century after Richard’s reign, some conception is gained
of what the first half of the thirteenth century meant in
1 See above, pp. 228, 229.
a “ Ipse autem rex, non debet esse sub homrne, sea sub Deo et sub lege,
quia lex facit regem. Attribuat igitur rex legi, quod lex attribuit ei, vide¬
licet dominationem et potestatem, non est enim rex, ubi dominatur volun¬
tas et non lex.”—Bracton, De Legibus (edited by Twiss in the Rolls Series),
i., 38. At that time there was no incompatibility in the thought of a king
below the law and yet not below a man or any body of men. The source
or abode of law was not defined. Law was independent of man, even of
God. Also there was no clear notion as to whether the church was below
the state or vice versa; there was no conception of an ultimate abode of
sovereignty. Before the Reformation, which was at bottom a searching
enquiry into authority, Austin’s doctrine of sovereignty was impossible.
An annotation of Bracton’s text, probably during the revolt of 1264-5,
carried the idea of limitation much further: “The king has a superior,
that is God; also the law by which he has been made king. Also Ms court,
that is to say earls and barons, because earls [comites] are called associates
of the king, and he who has a fellow has a master; and therefore if the king
be without restraint, that is without law, they ought to put restraint upon
him.” See discussion in Maitland, C. if. 22 ., pp. 101-103.
278 The Period of Constitution Making
English history, 1 That this principle—the king is tinder
the law—was enshrined in Bracion’s authoritative law
book for men of later generations to ponder and quote
was undoubtedly a great force making for limited mon¬
archy. It put the law forever on that side.
Henry’s surrender of the administration, during the
last seven years of his reign, to the able and law-respecting
Edward was in itself a confirmation of these attempts to
bring him under law. The bad reigns of John and Henry
had done a great work; for three quarters of a century,
the idea of compelling a contumacious king to keep the
law had been driven again and again into men’s minds.
Perhaps it cannot be said that there was limited mon¬
archy. The men who had felt the situation most keenly
were the barons, those who had always been in contrac¬
tual relations with their suzerain. Class feeling had not
changed to national feeling in 1272.
In the reign of Edward I. f many things contributed to
the passing of feudalism. Little can be done here but
name some of the more important. Before his accession,
Edward seems to have had in mind some direct limitation
of private jurisdiction, for almost immediately upon his
arrival in England he sent commissioners throughout the
country to enquire into the nature and extent of the
franchises. Their report was embodied in the “Hundred
Rolls,” which contain much valuable information about
local government. This enquiry resulted in the Statute
of Gloucester, 1278, whose main purpose was to limit
and regulate the private courts. The assumption seems
to have been made—perhaps not seriously even at first—
that every holder of important franchises must produce
some written royal warrant for them or else surrender
1 In France, till the reign of Philip Augustus, the power of the kings had
been far behind that of the post-Conquest kings of England; but at the
very time that Bracton was writing, the principle was being enunciated
there that the will of the king is the highest law. Up to this point and
even afterwards, the French and English governments were in many
respects alike, but the parting of the ways had been reached and the diver¬
gence was rapid.
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279
them. At any rate, itinerant justices, armed with the
Writ Quo Warranto, were sent to investigate each case.
It was soon found impossible, without causing a barons’
rebellion, to carry out such a procedure in a thorough
fashion. Notwithstanding the dictum of Bracton that
no prescription held against the king, those who could,
prove an uninterrupted exercise of their rights back to the
coronation of Richard I. (the limit of legal memory) were
allowed to keep them. But the great thing that was
accomplished was the establishment of a definite policy
of the crown to make no further grants of judicial powers
or immunities. As the franchises w T ere always liable to
escheat to the crown through failure of heirs or forfeiture,
under the policy inaugurated by Edward the jurisdictional
side of feudalism was bound eventually to disappear. 1
Edward’s land legislation had the same animus. The
Statute of Mortmain, 3 while not a direct blow to feudal¬
ism, was calculated to strengthen the state by stopping
a kind of land alienation that was depriving the state of
its proper resources. The Statutes De Donis Condi-
tionalibus and Quia Emptores, especially the latter,
caused decided modifications of the normal feudal results
following alienation of land. De Donis made possible a
strict entail of estates which greatly increased the chances
of escheat to the original grantor or his heirs, while Quia
Emptores prevented subinfeudation, a process essential
to,live feudalism. 3 Edward had the great lords on his
1 “Speaking roughly we may say that there is one century (1066-H66)
in which the military tenures are really military, though as yet there is
little law about them; that there is another century (1166-1266! during
which these tenures still supply an army though chiefly by supplying its
pay; and that when Edward I. is on the throne the military organisation
which we call feudal has already broken down and will no longer provide
either soldiers or money save in very inadequate amounts.”—P. and M-,
i., 252, 253.
3 A. and S., document 40.
j Ibid., documents 42 and 45. Quia Emptores confirmed the usual
practice of the king's courts in the thirteenth century of allowing free
alienation (t'.e., without the overlord's consent) to all but the king's ten-
ants-in-chief; but by stopping subinfeudation the purchaser held, not of
the seller, but of the seller’s overlord. If possible these acts of Edward I.
should here be studied from the documents, with the help of one of the
short histories of English law.
280 The Period of Constitution Making
side, for the more land and vassals a lord had the more
would be his benefit from these measures, and the king
himself as the greatest landholder and suzerain would
profit most of all. If the principle of Quia Emptores
were to be rigidly enforced, then, through the natural
operation of escheat, all freemen would finally come to
be tenants-in-chief of the king—or rather his subjects,
for then all proper meaning of tenancy-in-chief would
have passed away.
The great conflict of 1297, although led by two earls
and outwardly as much an affair of the nobility as the
risings of 1215 and 1258, was clearly less feudal. The
king was attempting to lead into the foreign service not
only his feudal levy, but every one in the country whose
lands furnished a yearly income of £20 or over; and his
taxation (there is now no hesitation in calling it such)
affected all classes. 1 Thus the resistance, however
prominent a part in it was played by the nobility, was not
a resistance to feudal abuses primarily; it was not merely
to hold the king to his feudal contract, but to limit a
sovereign's unlawful assumption of power. Of course in
the thought of the moment, the baronage and the prelates
were acting on selfish motives while putting themselves
forward as champions of the nation; but such had been
the changes in society and such the development of taxa¬
tion that when they were standing for themselves they
were standing for the nation and must recognise the fact.
The change from class feeling to national feeling was
coming—“the most important and least understood thing
in English history.” 2 The men of 1297 did not under¬
stand the change, and believed that the difficulty lay in
the fact that the Charters had not been properly en¬
forced. Over seventy years had passed since the wording
of the Charters had been changed.* While there is no
1 See below, pp. 407-409.
3 Mcllwain, High Court of Parliament, p. 16.
. 3 The difficulty of an unchanging and finally unchangeable text, was at
times gotten around by a kind of supplement at the time of confirmation,
sometimes incorporated in the confirming order. Something of the sort
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281
doubt that during that long time their prestige had grown
rapidly, their wording acquiring a kind of prescriptive
immutability, and Magna Carta especially was beginning
to be a symbol of the law's supremacy, yet it is also true
that to the end of the thirteenth century at least, they
were very practical documents whose articles were not
so out of date but that they were the subject of detailed
controversy with the king or his officials and of frequent
administration in the courts. 1
The protest which was drawn up in July, 1297, under
the leadership of the Marshall and Constable, earls of
Norfolk and Hereford respectively, purported to be in
behalf of archbishops, bishops, abbots, priors, earls, and
the whole community of the land [tola ierre communitas);
in its articles prominence was given to the word communi¬
tas; and in article four there is mention of the omission
or neglect of the articles of Magna Carta, the king being
besought to correct this abuse. 2 The great enactment,
Confirmatio Cartarum^ sealed by the king in November,
will be considered in connection with the origin of Parlia¬
ment. 4 It is enough to note here that in it was laid
down the principle of no taxation without the consent
of the taxed. It was not a restoration of the long omitted
article twelve of Magna Carta; but the principle there
declared that the suzerain could not arbitrarily levy
exactions upon his vassals was here replaced by a national
principle determining the relation of sovereign to subjects.
There was an unhappy sequel to this seemingly grand
conclusion of the struggle of Edward’s reign. The barons
Has been noticed earlier (1244 and 1265); but tlie most important instance
was the inclusion of the great clauses on taxation in the confirming order
of 1297. In 1301, the “Articles upon the Charters” (Artiaili super Car¬
tas), a document of twenty articles of which the first was the confirming
order, was a vigorous and detailed statement of contemporary abuses and
points of controversy. See summary headings of these articles in Stat¬
utes of the Realm, i., 136-141. . . . ,
1 This has just been shown m convincing detail in Dr. r aith Ihompson s
The First Century of Magna Carta.
3 Bdmont, Charles des Liberies Anglaises , pp. 76-78.
3 A. and S., pp. 86-88. 4 See below, pp. 407-409.
282 The Period of Constitution Making
seem never quite to have believed that Edward fully and
with no mental reservations granted what Confirmatio
stated. Edward, on his part, was piqued and hurt at
this lack of confidence, and probably used, in dodging the
spirit of the Charter, much of that “legal captiousness ”
with which Stubbs has credited him. The last decade
of his reign was a period of intense charter consciousness
and controversy; bitterness and recrimination mounted,
until Edward in obtaining from Pope Clement V., in
1305, a release from the oaths taken in 1297, confirmed
the barons’ suspicions. Bemont has well stated the
situation:
... at the Parliament of Lincoln (January, 1301), the
first article of the petition addressed to the king was “that
the two charters of liberty and of the forest be entirely ob¬
served in all their articles from this time forward.” This
precedent was fortunate: henceforth, and during the entire
fourteenth century at least, most of the Parliaments began
thus and the express consent of the king {Placet; il plet au
roy) was carefully entered upon the rolls. 1 The precaution
was not unnecessary: this is seen when Edward, finall y a t
peace with France and Scotland, asked and obtained from
Pope Clement V. absolution from all his oaths and the annull¬
ing of the charters (1305, 29 Dec. . . .). The best king of
the thirteenth century had done then as the worst; like John
Lackland, Edward I. had avowed that he had granted the
Great Charter “voluntarily and spontaneously”; at heart
neither the one nor the other ever believed that he had abdi¬
cated the least particle of his authority. This unfortunate
Sif ^’s reckoning that Magna Carta was
confirmed 15 times under Edward III., 8 times under Richard II., 6
^ " nder Henry V.; and that, to sum up, the Great
Charter and that of the forest have been expressly established, confirmed,
or promulgated by 32 acts of Parliament.” He adds: “These figures can
*en as exact; they show the value that the nation attached to these
repeated amfinnations; but also of what little importance the king made
them. Translated from Chartes des Libertes Anglaises, pp. xlix., 1. Yet
whatever the king thought or did, as often as he confirmed the Charters,
so often did he ineffect assent to Bracton’s dictum that the king was
ChlrteS 11 L laW '- t ? e fourteenth and fifteenth centuries the
included at the beginning of the many manuscript collec¬
tions of statutes which were bong compiled and circulated. V
The Executive 283
attitude lasted as long as the old order of kingship, that is to
say to the end of the seventeenth century. 1
One may hesitate to judge quite so harshly a king who
gave so many examples of fidelity to trust, and Edward
and his successors surely recognised some abiding su¬
premacy of law symbolised in the Charters, but there is
here a valuable caution against attributing to these kings
the conscious and willing constitutionality of recent times.
In passing from a reign in which the vigor and wisdom
of the king were so great and in which there were not a
few public men of distinction into the miserable reign
following, the first feeling is one of loss and misfortune;
and in looking forward through the whole list of kings
between Edward I. and the first Tudor, one is conscious
of a distinct stepping down from earlier royal standards
of thought and achievement. But with reference to the
establishment of limited monarchy, it was not an un¬
mixed evil that Edward I. was not followed by kings as
great as himself. With Parliament not yet effective, it
is to be doubted whether the principle of resisting a king
who broke the law had become so fixed in the people that
it could not have been uprooted. It was a long time,
however, before there was an opportunity to forget the
principle or before there was a king able to defy it with
much chance of success. In Edward II.’s time, public
men were mediocre or worse; yet governmental institu¬
tions grew in a natural and healthy way—indeed it was
a tiinp of notable development in certain departments.*
Growth was not disturbed by violent impulsions or repres¬
sions. It was only the third year of the reign when the
king’s inability and wrongheadedness resulted in the third
experiment of putting the government into the hands of
a commission of nobles. The commission was known in
this instance as the Lords Ordainers. The Ordainers
forthwith decreed that the Charters be observed, issued
orders against the most pressing grievances, and then
1 Charles des Libertis Anglaiscs, pp. xlvii., xlviii. * See below, pp. 321-323.
284 The Period of Constitution Making
proceeded to draw up a document of forty-one articles
which was presented to the king and was put in force in
1311. These articles were called the New Ordinances to
distinguish them from certain preliminary ordinances of
the year before. 1 They dealt with the problems and
abuses of the time, several of which lasted over from the
preceding reign. Administration of justice, conduct of
officials, appointment of the great officers of state with
the counsel and consent of the baronage and with the
ceremony of being sworn in Parliament, management of
the royal property, forbidding the king to go to war or
quit the realm without the barons’ consent in Parliament,
annual Parliaments, the declaring of Edward L’s customs
duties illegal and contrary to Magna Carta—these were
the matters of chief importance. The act which repealed
the New Ordinances in 1322, when Edward was under
control of the Despensers, had a significant clause defining
the competence of Parliament. 2
But the great fact looking towards limited monarchy
in Edward II.’s reign was his deposition. It might seem
that such an event would have been almost its attain¬
ment and final guarantee; but it is necessary, in weighing
the value of what occurred, to consider carefully the
cause. Edward was not deposed because he had made
a deliberate attack upon the constitution; he had not the
bent of mind or force of will. He was deposed because he
was lazy and incompetent, one whose qualifications, such
as they were, fitted him for anything but kingship, one
whose birth was his misfortune. The articles of accusa¬
tion, 3 which have a deeply tragic interest, say, among
other things, that
throughout his reign he has not been willing to listen to good
counsel nor to adopt it nor to give himself to the good gov¬
ernment of his realm, but he has always given himself up to
unseemly works and occupations, neglecting to satisfy the
needs of his realm.
1 A. and S., document 51. 3 Ibid., p, 97. See below, pp. 399, 400,413, 414.
3 A. and 3 ., document 55.
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285
In the fourteenth century, the machinery of government
could not ran itself and allow the king to be a figurehead.
Medieval kings, good and bad, were laborious; their
government was personal in a way hard for moderns to
understand. A king who would not work was an im¬
possible king. This is not quite the whole story about
Edward II.; he did some positive things that aroused
enmity, and his reign would have dragged on longer had
it not been for Ms wife and Mortimer. But the chivf
trouble was that the country was drifting into misrule
through lack of governance, and it was felt that a change
was absolutely necessary. The method used was awk¬
ward and looks a good deal like revolution: writs to sum¬
mon a Parliament to depose him were issued in the king’s
name and he -was made to sign a formal abdication.
Parliament clearly thought it had full power to depose a
worthless king, but was troubled to find legal machinery.
But whatever the cause or the method, there was a
deposition, and, in an uncritical age, it would be sure to
serve powerfully as a precedent.
In the discussion of Parliament’s growth of power, it
will appear how T , throughout Edward Ill’s reign, the
arbitrary action of the king was limited by his dependence
upon the country for the great sums of money needed
for the war with Prance. 1 A king so placed could never
have refused to confirm the Charters even had he wished
to, A notable confirmation in 1368 declared that
at the parliament of our lord the king . . . it is assented
and accorded, that the Great Charter and the Charter of the
Forest be holden and kept in all points; and if any statute be
made to the contrary, that shall be holden for none. 2
This making the Charters a specially inviolable portion
of the fundamental common law w T as continuing and
confirming a way of regarding them that had begun by
1 See below, pp. 400, 410, 419.
* This clause was referred to several times in the debates on the Peti¬
tion of Right in 1628.
286 The Period of Constitution Malang
the middle of the thirteenth century. 1 As with the
passing of time the articles drawn in 1217 and 1225
became really less applicable to the affairs of life, the
venerable documents were nevertheless not a lesser but
a greater force: through what they stood for as a unit,
as a symbol, through having certain susceptible articles
of the Great Charter (the wording of some made this
extremely easy; 44 the expansible nature of the Charter 5 '
is marked) stretched and misconstrued to fit new con¬
ditions, by having new articles associated with them at
the time of some of the confirmations, and by being
vaguely connected with certain statutes which dealt with
some of the more general principles of public law. 2
The constitutional significance of Richard II.’s reign
lay largely in his deposition, a deposition more important
than that of Edward II. Leading up to it are some
matters of interest. Richard early showed himself extra¬
vagant, improvident, and addicted to favourites. The
Parliament of 1386 proposed to impeach his Chancellor
and appoint a commission of reform. The king's reply
showed his lofty conception of the royal prerogative.
Then the fate of Edward II. was recalled, and the king
was reminded of it in words that show clearly the use
that was being made of the early precedent. 3 The king
yielded, the Chancellor, the Earl of Suffolk, was im¬
peached, 4 and a commission of reform, consisting of
eleven members, was appointed. It was given broad
powers and was to continue for one year. It can not be
considered a commission of regency, for Richard was
nineteen years old and Parliament’s act was the result
of his misgovemment rather than of his incapacity. It
was a late instance of the device, used with John, Henry
III., and Edward II., of placing the government in time
1 See above, p. 275.
3 There was later reference, especially in the seventeenth century, to a
mysterious “six statutes” which, with Magna Carta at their head, appear
to have been thought of as a specially honourable company— a sort of
basic, inviolate core.
1 A. and S., document 94* 4 Ibid., document 93,
authority were a methodical attack upon the restraints
* For further detail, see Taswell-Langmead, English Qmstihttumal His¬
tory, pp. 272, 273.
* A. and S. f documents 100, 101.
288 The Period of Constitution Making
which. Parliament had already placed upon the sovereign.
In his deposition, therefore, among the various motives
which actuated it, there was distinctly the purpose to
preserve the laws and customs of the realm. An attack
had been made upon them, the case of Edward II. was
in mind, Richard II. was rejected, and a king who would
rule under the law was put in his place. Richard was
made to declare himself “wholly insufficient and useless,”
and the act of Parliament which confirmed his deposition
was based upon his “crimes and shortcomings,” his
“very many perjuries” and the “default of governance
and undoing of the good laws.” 1 As with Edward II.,
the deposition of Richard II. lacked satisfactory legal
procedure. His act of abdication was under duresse
and he was then deposed by a Parliament which he had
been forced to summon. He might at a future time
plead constraint against his abdication, likewise against
the legality of this Parliament and its act. “This is
perhaps the reason why very soon afterwards Richard
disappeared from the world.” 2
When Edward II. was deposed, he was succeeded by
his son; Richard II. was succeeded by his cousin, who, if
a woman could transmit the title, had no primogenitary
claim. In private law it had become established that the
line claiming through the elder son had the greater right
even though the claim had descended through a woman.
If this applied to title to the crown, then Henry of Lan¬
caster had no good claim as long as there was a male
descendant of his uncle Lionel Duke of Clarence, albeit
that descent was solely through Lionel’s daughter.
There is no doubt that Henry felt this and said as little
as possible about hereditary descent. 3 He was king by
1 Documents I 02-104 in A. and S. illustrate the deposition of Richard II.
2 Maitland, C. H. E., p. 192.
* The foolish claim which may have been hinted at in the words, “as I
toat am descended by right line of blood coming from the good lord king
Henry 1IL (A. and S., p. 164), which were used by Henry when he made
his oral challenge of the crown, had no foundation in fact and probably
^ 4 ® 5 ) credence at the time. See Oman, History of England (1377—
The Executive
289
conquest and by consent of Parliament, and the assump¬
tion on the part of Parliament in this instance, that it
not only could depose a king but break the order of suc¬
cession seemed a very important advance in its control
of monarchy. This special dependence upon Parliament
fixed the character of Henry IV.’s reign. 1 It did much
to fix the character of all three Lancastrian reigns. Sir
John Fortescue, who was chief justice of the King's Bench
under Henry VI. and whose famous writings distinctly
foreshadow the interest in political theory of a later time,
set forth a conception of kingship current in the Lancas¬
trian period:
A king of England cannot, at his pleasure, make any altera¬
tions in the laws of the land. . . . He is appointed to pro¬
tect his subjects in their lives, properties, and laws; for this
very end and purpose he has the delegation of power from
the people, and he has no just claim to any other power but
this.
And Fortescue felt keenly the difference which existed
between England and France in this regard:
There be two kinds of kingdoms. . . . And they differ in
that the first king may rule his people by such laws as he makes
himself, and therefore he may set upon them tails and other
impositions, such as he himself will, without their assent.
The second king may not rule his people by other laws than
such as they assent unto. And therefore he may set upon
them no impositions without their own assent. 2
1 “He kept the throne only because he proved a statesman of sufficient
ability to conciliate a majority of his subjects. He had to perform miracles
of tact, energy, and discretion, in order to keep that sufficient majority of
the nation at his back. He succeeded in the task and ultimately^won
through all his troubles to a period of comparative safety and tranquillity.
It was a weary and often a humiliating game, for Henry had to coax and
wheedle his parliaments where a monarch with a strictly legitimate title
would have stood upon his dignity and appealed to his divine right to
^ govern.” Oman, History of England (1377-1485!, p. 154. In a later con¬
nection (see below, pp. 434,435), there will be occasion to note the relations
of Parliament and Council to 1 the king and to each other in this reign.
2 Cited in Taswell-Langmead , English Constitutional History, pp. 288,
289, and Maitland, C. H* E. t p. 198*
290 The Period of Constitution Making
In several respects conditions were exceptional in the
Lancastrian period, conditions reflected in such writings
as Fortescue’s, but it is not too much to say that the lines
of development just sketched had brought forth limited
monarchy in England.
The bitter faction fights which led to the Wars of the
Roses, bringing out the rival claims to the throne of
Lancaster and York, did much to develop and clarify
ideas about primogenitary succession, especially the
matter of female transmission of title. “When in 1460
the Duke of York laid his pedigree before the lords with
a formal demand for the crown, legitimism makes its
first appearance in English history.” 1 The principle of
heredity which had long obtained in private law now
became the rule for the royal title, and on this basis the
Yorkist line came to the throne in 1461. 2 They were
legitimists and were recognised as such, 3 and there was,
as might be expected, a greater manifestation of inde¬
pendence and security. Yet the Yorkist sovereigns did
not act as if they were without limitation, however much
the logic of their position might have countenanced such
action. How things would have gone had they remained
on the throne it is hard to say. As it was, their short and
troubled tenure did not break the principle of limited
monarchy, and it is certain that civil wars and weak or
bad kings had, by 1485, so hurt the central power that
England’s greatest need was a strong and able royal line.
The overthrow of Richard III. and the succession of
Henry of Richmond as a distinctly parliamentary sov¬
ereign, with a most slender hereditary title and to the
prejudice of many more legitimate claimants, would
* Maitland, C. E. p. 194.
a Under stress of circumstance in 1328, when recognition of female
transmission would have brought the English Edward to her throne
Prance took the opposite view, and transmission of the royal title through
the male line only was the rule as long as monarchy lasted. -
* The language of the parliamentary recognition of the Duke of York as
heir to the throne and of the act validating the acts of the Lancastrian
sovereigns brings out clearly the legitimacy of their claim. A and S
documents % 28,129. ’ '
The Executive
291
seem likely to result in an extreme and, under the cir¬
cumstances, dangerous limitation. That this was not
the case was due to the extraordinary ability and tact of
the Tudors . 1 2
Under the Tudors and the Stuarts, especially the latter,
the royal prerogative was a subject of much controversy,
and the constitutionalists of the Stuart period often cited
Lancastrian precedents and even harked back to the
royal limitations, real or supposed, of Edward I.’s time.
What was, then, the royal prerogative of the later middle
ages? Substantially what Prothero has described it as
being in the sixteenth century:
The prerogative of the crown consists in the peculiar rights,
immunities, and powers enjoyed by the sovereign alone, in¬
cluding the precedence of all persons in the realm. These
privileges rest partly on statute, partly on custom and prece¬
dent. But they are not vague and indefinite: they are known
and capable of description. 3 They do not amount to an
emancipation from law; on the contrary, they are limited by
it. This is the view of Bracton; . . . But these recognized
and definite powers do not exhaust the rights of the crown,
because circumstances may occur which are provided for
neither by law nor custom. . . . Thus beyond the definite
1 “The thing which was peculiar to England and decisive in its con¬
stitutional history was not the creation of Parliament nor the invention
of the representative system, however important and interesting some
peculiarities of detail may be in both particulars. The peculiar and deter¬
mining fact was that Parliament, at the moment when it came into exist¬
ence as a distinct institution, found ready to its hands, as a result of a line
of development independent of its own, a traditional policy of opposition
and of the control of the sovereign, based upon detmite principles and
rights.” —Adams, in American Historical Review, v.„ 655, 656. Each
scholar is likely to find the distinctive feature along the line of his own
research—Maitland found it in the Inns of Court and the Year Books—
but surely we are not in much danger of overstating the distinction or
importance of England’s conception of monarchy as worked out in the
middle ages.
2 For example, to summon, prorogue, or dissolve Parliament; to create
peers and practically to name the bishops; to make boroughs parliament¬
ary boroughs; to veto bills; to make ordinances and exercise the dispen-
- sing and suspending powers (on these various rights relating to Parlia¬
ment see above and below, pp. 130, note 1, 343~4. 394» 418-21, 427); im¬
munity from being sued or prosecuted; chief command of army and navy;
to appoint or dismiss justices and almost all other officials, high or low.
292 The Fenod ot Constitution Making
prerogative and outside the area occupied by the law, there
is, and must be, a vague and undefined power to act for the
good of the State. ... On this lawless province, law and
custom gradually encroach, either in the interest of the sover¬
eign or of the subject, . . . The less advanced the State,
or, in other words, the less complete the control of law and
custom, the larger will be the area over which the sovereign
is free to act. It was still very large in the days of the Tudors. 1
There was little attempt to define the royal prerogative
in the fourteenth and fifteenth centuries. 2 There was
dearly a recognition of those definite functions and rights
of the crown which constitute the prerogative in the first
sense; and there are indications that most of the sovereigns
ascribed to themselves extensive powers beyond and were
not so much impressed by the limitations implied in
confirmations of the Charters and similar acts as were
the people. 3 When it has been shown what power
Parliament had gained by the end of the fifteenth century,
a collision between crown and House of Commons in the
“lawless province” will seem quite inevitable. Interest
in the theory of sovereignty and authority in general was
rising steadily in the fourteenth and fifteenth centuries;
the conditions in Christendom—Babylonian Captivity,
Great Schism, Ecumenical Councils—forced it. Then
came the Protestant Revolution with its infinite curiosity
about all sorts of sovereignty, its deadly blow to ex
cathedra authority, and a religious passion injected into
political thought. The conflict was near and men began
to concern themselves with “forming clear notions of
authority and defining its abode.” 4
1 Prothero, Statutes and Constitutional Documents, pp. cxxii.-cxxiv.
passim.
2 However, the great Statute of Treasons of 1352, with the further but
passing definitions of 1397 and 1414, and the beginning of “constructive
treasons*’ through free interpretation of the statute, looked in that direc¬
tion.
3 See above, pp. 282, 283.
4 Cowell, in his famous Interpreter , misquoted Bracton where he cited him
as saying that the king “ is above the law by his absolute power.'’—Prothero,
Statutes and Constitutional Documents , p. 409, and above, p. 277 and note 2.
The Executive
293
2. The Council.—In his work of general administra¬
tion the king always acted with or through some body
of men, who counselled him with varying degrees of influ¬
ence. Before the end of the middle ages, there existed
a very definable Council which had its traditions, whose
members took a prescribed counsellor's oath, and which
exercised important and distinctive functions. The
Council did not become an administrative department:
it was the king’s advisory tody with respect to a11 phases
of government; it retained judicial and legislative fea¬
tures derived from the undifferentiated competence of
the royal court. But with the development of the courts
of law and of Parliament, the work of the Council was
more and more in the administrative field, though until
the fifteenth century at least, the measures upon which
it determined were carried into execution through the
more specialised organs of administration. 1 From a
very early time after the Conquest there is evidence of a
rather hazily recognised group of king’s counsellors. It
has already been pointed out that, with the swift growth
of central business, the king’s court was not only his
more or less regularly summoned feudal council, but that
also it was the men who remained behind after the short
meetings were over, those whose business was more and
more the business of government. 2 Henry I. at the
beginning of his reign in the letter recalling Anselm says
that he entrusts himself and the people of all England
to Anselm’s counsel “and to the counsel of those who
Prothero comments upon Cowell's account of the prerogative: “ Cowell de¬
scribes the prerogative as "that especial power, pre-eminence, or privilege
that the king hath above the ordinary course of the common law/ and this
was the watchword of the royalists. * It required only an alteration cf one
word to enable Blackstone to adopt Cowell’s definition, but in substitut¬
ing the phrase, 1 out of the ordinary course of the common law/ for that
which Cowell uses, he substituted a constitutional doctrine for one destruc¬
tive of the constitution. The whole quarrel between the Stuarts and their
Parliaments lies there /’—Statutes and Constitutional Documents, p. cxxv.
x See below, Part III., § II., 3. In the Tudor period, king and Council
acted directly; the Council was not a mere advisory group whose measures
were executed by other bodies. And there was much looking towards
this in the fifteenth century.
2 See above, pp. 118, 119.
294 The Period of Constitution Making
ought along with you to counsel me”— 1 language that is
bound to suggest that the king had a group in mind whose
function was counselling, and that probably a group more
restricted than the whole body of vassals who owed
him counsel. What determined who these were, who
should remain behind when the summoned meeting was
at an end? The officials remained and some others, but
there are no distinctive marks by which it can be told
just who the others were. The king’s will, their own will
and convenience, the business on hand, the part of the
country where the king happened to be—such things as
these probably determined. It was a group very subject
to change. The chronicles of Henry II.’s reign are full
of references to the household of the king, evidently the
official household in most instances. It seems to have
been most actively engaged in public business; it traveled
with the king; in it were the household officers already
on their way to becoming state officials; from its member¬
ship he appointed the five who became “the bench,” the
beginning of the Court of Common Pleas . 2 Whether
this household was the core of the counselling group or
the whole body it is hard to tell from the language used,
but it certainly did much work. Perhaps all that can
be generalised for the period down to the death of John is
that the officials were in practically continuous discharge
of their duties; that the king had with them at frequent
intervals, if not in permanent session, others who for the
time were regarded as his counsellors; that this body was
becoming less feudal both in make-up and business; and
that in it were already beginning to appear groups with
more specialised functions—gradual and unconscious
differentiations such as itinerant justices or Exchequer,
or conscious creations like “the bench.”
1 Stubbs, Select Charters, p. 120.
3 A chronicle states, “by the advice of the wise men of his realm he
chose five, two clerks and three laymen, and they were all of his private
household” (de privata familia sua). Stubbs, Select Charters, p. 155. The
rather frequent use of this term “private household” in this reign, in
cases where it evidently does not mean the royal family, may indicate
the presence of an inner, more confidential group of advisers.
sellors was especially active; it was practically a regency.
Most of the royal letters were issued with its authorisa¬
tion and it was regularly referred to as the council or the
king’s council. It is clear, as was natural under the cir¬
cumstances, that there was a more vivid conception of
the counselling group at this time than before. This has
led some writers to assign the origin of the Council to
this period. There certainly was a hastening of a natural
evolution, but the counsellors did not then acquire their
more technical distinguishing characteristics. Their work
during the early thirteenth century was very extensive
and very hard to define, for it rested on no theory other
than the king’s plenary power and would have no theoreti¬
cal limitations. They shared the king's diplomatic work,
advising him upon peace and war, and in his dealings
with rebellious subjects. He might at any time consult
them about routine administrative work; many of the
public and private orders that he issued bear evidence
that he had done so. They were quite regularly con¬
cerned with forest matters, the surveys being carried out
under their oversight; also with church matters, the filling
of vacancies and points upon which royal and ecclesiastical
interests clashed; and with the government of Ireland,
Poitou, and Gascony. During the minority, the coun¬
sellors had much to do with straightening out the Ex¬
chequer, which had broken down late in John’s reign;
and since regulating taxation was one of their special
duties and many financial obligations to the crown were
then in an uncertain state, they sat as a sort of board of
equalisation. Their judicial province was large, but of a
distinctly supervisory character. They sent mandates
to the courts telling them what to do under exceptional
circumstances, as when Innocent III.’s bull interfered
with the ordeal; they told into what courts unusual cases
should go, and judges often asked them for instruction
upon points of law; they were a court of first instance for
many cases touching barons, sheriffs, or judges; they
296 The Period of Constitution Making
were often appealed to by litigants who claimed that
the judges had been unjust or the law wrongly
construed.
But there could not be a Council, in the later sense,
until there was some approach to a distinctive and con¬
tinuous membership. This was quite sure to come
owing to the increase of executive business and to the
maturing and defining influences with which time touches
all undeveloped institutions which are free from active
causes of decay. The long contest of Henry III.’s reign,
which began as soon as the minority ended, centred
much in the Council. Henry favoured foreigners—some
of them it is true very able men—or officials who had
risen to power distinctly through his service and favour.
He was opposed by the baronial group, standing for its
old powers and privileges and seeking to express itself
either in the summoned meeting of barons now beginning
to be called a parliament or in the more permanent group
of royal advisers, the Council. This struggle was bound
in time to bring out clearer notions of the Council’s make¬
up and powers, and the results began to show before the
reign ended. In the twelve-thirties there is mention of a
counsellor’s oath and of an appointed and sworn council
group, and in 1257, just at the crisis of the reign, appeared
the first council-oath form which has come down to us,
the form which was to be the basis of all later ones.
From the beginning of Edward I.’s reign the swearing of
councillors became the rule. This does not mean that
from that time there was such a clear-cut membership,
that everyone who may be called a royal councillor took
the oath, but the oath development “was the means of
suggesting a permanent membership and of making clear
the duties of a councillor.” 1
The reigns of the three Edwards make a fairly well-
defined period in the Council’s history. The Council
was the centre and nucleus of early Parliaments, and it
was during this time that separation and distinction
1 Baldwin, The King's Council, p. 71,
The Executive
297
began. 1 We read much in the early fourteenth century
of the barons 5 hostility to * 4 evil counsellors/" and inves¬
tigation shows that in the barons" vernacular ‘‘evil” often
meant low-born, that is, low-born in comparison with
their own status. They were not controlling the Council
as they wished. This raises the question whether the
use of these more humble counsellors, knights many of
them, marked a new policy upon the part of the king.
Probably from early times there is to be found a distinc¬
tion in the counselling group between those greater
barons who looked upon themselves as the more legitimate
hereditary royal counsellors and the lesser men. knights
or others, some feudal tenants of the king and some not,
whom it was the king's pleasure to employ. Surely
1 Maitland has said: “. . . it seemed necessary to remind readers
who are conversant with the 1 parliament? T of later days, that about the
parliaments of Edward I.’s time there is still much to f e discovered, and
that should they come to the decision that a session of the king’s council
is the core and essence of every parliamentzi nu that the documents usually
called ‘parliamentary petitions * are petitions to the king and his council,
that the auditors of petitions are committee? of ihq council^ that the
rolls of parliament are records of the business done by the council,—some¬
times with, but more often wot bout, the concurrence of the estates of the
realm,—that the highest tribunal in England is not a general msemrdy of
barons and prelates, but the king’s council, they will not be departing very
far from the path marked out by books that arc already physical
Memoranda de Parliament, p, Ixxxviii. From certain destriprive terms,
applied loosely by the chroniclers to bodies of men of whose technical
character they had little knowledge, it has sometimes been supposed that
there was more than one kind of king’s council at this time, Maitland
remarks: 44 The one point about which 1 venture to differ from what seems
to be the general opinion of modern historians "and 1 am uncertain as to
whether the difference is real) is that 1 cannot bud in the official language
of Edward 1. ’s time any warrant for holding that the king has more than
one concilium » or rather consilium; any warrant, /hat is, for holding that
this term is applied to two or three different bodies of persons, which are
conceived as permanently existing bodies, or any warrant for holding
that the term should be "qualified by some adjective, such as cemmune,
or magnum , or or dinar ium. . . . One thing is clear: an order sending to
their homes the prelates, earls, barons, knights, and other commoners,
4 sauve les Evesques, Contes et Barouns, Justices et autres, qui Fount du
Counseil nostre seigneur le Roy/ is an intelligible order.” Ibid., Introduc¬
tion, p. Ixxxviii., note 1. This conclusion has been borne out by the de¬
tailed investigations of Baldwin. Later in the fourteenth century, these
descriptive terms did receive some official recognition; but their use re¬
flects no multiplication of councils. As the Council assumed a distinctive
character in the thirteenth and fourteenth centuries, it very" commonly
bore the French name, Conseil. In Latin it had from the early thirteenth
century been quite regularly called Consilium.
298 The Period of Constitution Making
Henry II. and John had many of the latter class in their
official households. The truth seems to be that these
earlier kings were strong enough to be served by whom
they chose, while in the fourteenth century a more con¬
tinuous and effective baronial opposition was possible.
Reform councils, devised of course by the barons, appear
to have been artificial and were certainly ephemeral—
great lords trying to enter and control a council which
was normally and historically made up to a considerable
extent of the king’s choices from a different class. But
whatever the truth on this point may be, continued
friction between lords and king over the composition of
the counselling group seems to have been an important
cause of divergence between Parliament and Council, to
have prevented the council core of the early Parliament
from becoming a mere division or “house” of that body. 1
From political motives the lords came to look on the
Council as something different from themselves and, for
certain purposes, something less than themselves. These
descendants of the large and small sessions of the king’s
court were no longer the same; the difference became
qualitative and not simply quantitative; the great coun¬
cil, the Parliament (with or without the representative
knights and burgesses), 2 the developing House of Lords
was one thing, the Council not a wholly different thing,
but becoming more so. In their judicial work, the use of
the common law by the former and equity by the latter
was both a result and a cause in this change. 3 And it is
also true that the judges of the central courts, who sat
with both Lords and Council, merely advised the former,
while, until late in the fourteenth century, they both
advised and voted in the latter. The counsellor’s oath
was the subject of occasional modification and definition,
in the reigns of Edward I. and Edward II., but was always
' This separation and general mistrust of the Council accounts in part
for the decline in the amount and value of statutory legislation after
Edward I., and for the rise of equity; for the Council was the natural place
for the preparation and initiation of royal measures. See above, pp 214 21s
See below, pp. 397-400. 1 See above, pp. 208, 209.
The Executive
299
reminiscent of the form of 1257. 1 Payments to counsel¬
lors for their services became frequent early in the four¬
teenth century; these were sometimes annual salaries,
sometimes annuities, and, for minor members, clerks, etc.,
day wages. But there mas nothing in the nature of a
consistent salary system before Richard 1 L In Edward
IIL’s reign it was thought necessary to have a more per¬
manent and commodious meeting place, and soon after
1340 work -was begun upon a building between West¬
minster Hall and the palace destined for the Councirs
especial use. At the end of this reign the Council was
still large and its membership vague. It might include
foreigners, favourites, minor officials, or honorary mem¬
bers. But these people did not share equally the hard
routine work. That was doubtless done by a rather
small group: an evidence of this is that only part of the
members received salaries. As to how far such a group
coincided with the members who had taken the coun¬
sellor's oath it is impossible to say; but there was no
certainty as yet that the regularly sworn members would
always be in control. The Council was doing much work
in all lines, especially the administrative, and its relations
with the king were intimate.
As time passed, and Parliament (now including the
Commons) became more conscious of its place and possi¬
bilities in government, there were signs of a clash with the
Council. Late in Edward IIL’s reign the situation was
growing difficult; the circumstance of Richard's minority
made the clash certain. As when Henry III. was a minor
the unformed body of counsellors undertook new duties
and responsibilities, so in Richard’s minority the Council
saw occasion to extend its work and authority. From
the Good Parliament, 1376, to the end of Henry VI.’s
minority, 1437, was a distinct period in the Council’s
history. It was the time when Parliament made vigor-
x a study of the oath forms is most instructive from the point of view of
the new oaths derived from the counsellor’s oath for officials or depart¬
ments that were differentiating from the Council, as the Justices and
Barons of the Exchequer.
300 The Period of Constitution Making
ous attempts to curb and manipulate the Council; or, for
some occasions, it would be more correct to say, when the
baronial faction dominating Parliament sought to attack
the barons in the Council. It emerged without having
succumbed to Parliament's attacks, but it had undergone
some important changes. The history of the Council
during this period may be approached by noting what
were Parliament's purposes regarding it. The most
important was to gain control over its personnel. The
formal appointing power lay with the king, under the
advice of the lords and prelates; but the Commons tried
to specify the qualifications of councillors, wished to
be informed of names in advance of appointment, and
tried to make sure that its expressed preferences should
be regarded after the dissolution of Parliament. There
was also an attempt to make the Council a. smaller and
more definite body than it had been. Parliament's idea
seems to have been that it should consist of the Chan¬
cellor, the Treasurer, the Keeper of the Privy Seal, a few ‘
prelates, earls, and barons, and a sprinkling of knights.
When this influence was uppermost, the Council had a
membership of from twelve to fifteen; but whenever Rich¬
ard was able to assert Ms will it swelled out into larger
numbers with the royal appointment of favourites, lesser
officials, “evil counsellors” of the traditional type. It
was believed, moreover, by Parliament that frequent
changes were helpful, and there were some rather un¬
successful attempts to have yearly Councils. In the
second place, Parliament tried various regulative mea¬
sures. With a small and certain membersMp and all the
members sharing in the work with substantial equality,
it seemed proper that all should be placed upon a definite
salary basis, that salaries be paid by the year or the day,
and that annuities be done away with. Parliament also
undertook to dictate what business the Council should do
and how it should do it; and in this connection came
those attempts, already noticed, 1 to limit the Council's
1 See above, pp. 220, 221,
The Executive
301
judicial pretensions. Finally, Parliament, by means of
impeachment, set itself to supervise the conduct of coun¬
sellors and keep them from the many kinds of corruption
incident to their position. 1
Most of this parliamentary control was lost during
Richard’s last two years of personal and despotic rule,
but the same kind of pressure was resumed in the Lan¬
castrian period. Parliament, however, probably exerted
more real authority over the Council in the early years
of Richard’s reign than ever before or after. But the
Council was in no sense made over new; its later develop¬
ment "was along lines already fairly matured rather than
on the basis of the statutory attempts at regulation in
tnis reign. Yet this time of parliamentary pressure left
some indelible traces: the Council was never again so
large and vague as it had been under Edward III.; its
membership was of a higher order and under a greater
sense of responsibility; and, though it never lost its legis¬
lative and judicial functions, it was at this time that
it became established as primarily an administrative
body.
During the reign of Henry IV., there were times when
king, Council, and Parliament worked together in remark¬
able, if somewhat strained, harmony. The control of
Parliament was such that the phrase ‘'ministerial respon¬
sibility” is bound to suggest itself, and under this vigorous
supervision the Council reached a high degree of efficiency.
In the notable governmental scheme of 1406, which
received the king’s assent, is seen a small administrative
group working with the king and yet bound to reflect the
sentiment of Parliament. 2 But the plan as a whole was
* The articles of impeachment drawn in 1386 against the earl of Suf¬
folk, who had been Chancellor, excellently illustrate the nature of fcur-
teenth-centurv “graft.”—A. and S., document 93 - . ,. . ,
2 For further comment on the governmental significance of this period,
see Pt. III., § III., 8. “When in 1406 the house of commons told the king
that they were induced to make their grants, not only by the fear of God
and love for the king, but by the great confidence which they had in the
lords then chosen and ordained to be of the king’s continual council, they
seem to have caught the spirit and anticipated the language of a much
later period."—Stubbs, Constitutional History, § 367.
304 The Period of Constitution Making
great change except some recovery of Council control by
the king; but with the rise of the Earl of Suffolk and the
king’s marriage to Margaret of Anjou, whose arrogance
and lack of knowledge of the English government were
disastrous factors in the case of a king weak and periodical¬
ly insane, the Council rapidly declined. It was no longer
consulted on high questions of policy, and had only the
pettier matters of administration to attend to; parlia¬
mentary control was at an end, and those features for
which Parliament was responsible in the preceding period
were passing away. Cade’s rebellion in 1450 was a move¬
ment largely political, and a prominent demand was for
reform in the Council; we hear, as of old, of “evil coun¬
sellors” and the neglect of great lords. The masterful
lords or prelates who controlled the king now, or who
later upon occasion controlled even the Yorkist kings,
were not doing it as members of a recognised and regulated
organ of government. There were efforts at reform in
the years following, but they were unsuccessful, and by
1453, the year of the final debacle in France, the Council
had reached a state of great weakness. There was some
revival during the two following years while the Duke of
York was in power, but the Wars of the Roses were at hand
and “manifestly the real issues of the time were passing
from the control of parliaments and councils into the
fields of battle,” and in the late years of the reign the
Council almost ceased to exist.
There was no important recovery under the Yorkists.
Council and Parliament suffered together, as was bound
to be the case with legitimist sovereigns who at the gamp
time were not statesmen and had no important programme
or constructive policy. The Council continued to func¬
tion in a small administrative way and was of considerable
size, but its judicial work was almost nil. There was
some renewal of activity in the latter field under Richard
III., and then the unhappy period was at an end, for¬
tunately a period so short that the memory of the Lan¬
castrian Council remained. In Fortescue’s Governance
The Executive
305
of England, written in the reign of Edward IV., was set
forth the theory of the Lancastrian Council, set forth
with emphasis, for Fortescue believed that the Council
should play a great role in government. But he had seen
the end of the Lancastrian period and of the Council's
greatness, and he understood how the Council had con¬
tributed to its own downfall by baronial and oligarchic
purposes and by injecting into a great public body much
business of a personal and selfish sort. He sought to
picture a Lancastrian Council purged of its greatest evils.
The story of the complete and sudden rehabilitation and
reorganisation of the Council under Henry VII. and
Henry VIII. and its prominence all through the Tudor
period is a great story, but it does not belong in this
book. 1 Yet it may be remarked that the Tudor Council
was always a Council under royal control and that its
1 To the end of the middle ages the one word Council was the name
oftenest applied to this body, although a number of adjectives descriptive
of its traits occasionally accompanied the noun and even gained some
official recognition. Among these, 41 secret” and u private” appear, evi¬
dently contrasting the smaller and more confidential council with the
summoned great council or Parliament. But the modern term Privy
Council did not become a common or accepted name until the Tudor
period and resulted from a change which belonged to that period, but a
change which had roots in the past. The medieval king travelled much,
and usually had with him a group of counsellors; in the reigns of Richard
II, Henry IV., and Edward IV. this group became more distinct and
definable within the Council than was wont, but did not acquire a name.
It reappeared under Henry VII., and was recognised and organised by
Henry VIII. The great pressure of business was bound to produce some
such differentiation. At the same time a distinction was being made
between ordinary counsellors and privy counsellors. The more regular
and intimate counsellors and those of higher rank were the latter; those
of lower rank and used for their more technical knowledge in various
lines were the former. The group around the king when it consisted
mainly of privy counsellors, as was generally the case, was called the
privy council; the bulk of the Council was at the^star chamber in West¬
minster. As the more imoortant counselling functions lay with the newly
organised group which followed the king—the group which became more
regularly called the privy council—the larger Council, the direct deriva¬
tive of the Council of earlier days was little more than the Council acting
in its judicial capacity, that is, the Court of Star Chamber. For the smaller
and more definite Star Chamber membership prescribed by Henry VII’s
statute of 14S7 (see A. and S., document 136) did not outlast the early
years of Henry VIII.’s reign. When, then, the Court of Star Chamber
was abolished by the Long Parliament in 1641, the only Council left was
the Privy Council, the branch organised under Henry VIII. This is the
origin in substance and in name of the Privy Council of modem times.
306 The Period of Constitution Making
greatness was a different greatness from that of its Lan¬
castrian predecessor.
3. The Organs of Administration: Exchequer, Chan¬
cery, Wardrobe, and Chamber.—As already stated, 1 the
Council was the king's general advisory body retaining
its early governmental competence even after courts and
Parliament had differentiated and become fundamental
features of government. The Council was not a special¬
ised executive body. A measure determined on by the
king alone or by king and Council
might be embodied in a writ of great seal, and so become an
act of Chancery. It might be translated into a writ of privy
seal and thus become a function of the Wardrobe. If it
mainly concerned finance, it was very likely to result in a
writ under the seal of the Exchequer, and accordingly the
executive agent was the Exchequer. 2
Exchequer, Chancery, and Wardrobe were all specialisa¬
tions out of the earlier counselling and governing group
that has been referred to as the king's household or
court; and all of course—the Exchequer especially—did
much routine administrative work which could in no im¬
mediate sense be considered an execution of the meas¬
ures or orders of either king or Council. The Exchequer
was the first of these specialisations, and it has been
shown that even under the Conqueror financial organi¬
sation was growing most rapidly and already had rather
special administrative and even judicial features. 3 Per¬
haps the Conqueror’s chief care in government was to
increase his revenue and to develop and organise every¬
thing which had to do with its collection. These traits
were prominent in his sons’ reigns, and it is easy to under¬
stand that the first highly developed department of ad¬
ministration had to do with finance.
About the middle of Henry L’s reign, a new method of
1 See above, p. 293.
* Tout, Chapters in Mediaeval Administrative History , ii, 147,
* See above, pp. 123, 124,
The Executive 307
accounting was instituted which had revolutionary
results. The exchequer, the checkered table, was a form
of the abacus, and was introduced into England from
France, probably from Laon where there was a famous
school. Treatises upon exchequer reckoning were being
written at Laon and the school was frequented by Eng¬
lishmen. 1 Undoubtedly the founding of the exchequer
method in England was the work of Henry I.’s great
justiciar, Roger of Salisbury, and his kin. It indicates
a revolution in the method of auditing accounts; it means
the introduction of a precise system of calculation worked
out by counters on a chequered table and recorded on rolls.
Thenceforward the Treasury was limited to the payment
and storage of money; the business of account and the
higher work of judicature passed to the Exchequer . 1
How highly trained and specialised an exchequer staff
there "was in Henry I.’s reign it is impossible to say.
The whole Exchequer institution was in the king’s house¬
hold, in his court, and that court was then substantially
feudal; but it is hard to think of the Exchequer as having
been wholly or largely in the hands of the king's feudal
vassals.
Through its great reorganisation in Henry II.’s reign,
after practical non-existence during much of the reign of
Stephen, the Exchequer reached a high degree of technical
development and efficiency. Our knowledge of it for this
time is very full owing to one of the most remarkable books
of the English middle ages, the Dialogue Concerning the
Exchequer written by Richard Fitz-Neal, grand-nephew
of Roger of Salisbury, a member of “the most characteris¬
tic official family of his time.” 3 This account tells of the
1 The word scaccarivm, exchequer, meant a chess board, a board divided
into squares. The exchequer system was introduced into Normandy from
England, Henry I. being also Duke of Normandy after u06.
3 Poole, The Exchequer in the Twelfth Century, pp. 40, 42*
3 “The Dialogtis, which was completed in 1178 or 1179, was written by
Richard Fitz-Neal, treasurer of England, 1158-98, and bishop of London,
1180-98. It is in the form of a dialogue between a master and his discipie,
and consists of two books. The first book describes the organisation of
308 The Period of Constitution Making
appearance of the sheriffs spring and fall before the table
to render payments of the regular revenue owed the
Mug from the counties; and besides the sheriffs, the
bailiffs of the honours and royal boroughs which accounted
separately. 1 Half was owed at the Easter term and half
at Michaelmas. The sittings and the ceremony at the
table are described in detail. It was an oblong table
about ten feet by five. At one narrow end which may
be thought of as the head of the table, sat the chief officers.
When the Mng attended a session, as he sometimes did,
he of course presided. When he was absent the Justiciar
was supposed to represent him here, as in all other capa¬
cities. On the Justiciar's right sat someone (the Bishop
of Winchester at just this time) supposed to keep a
watchful eye on the Hng's more personal financial in¬
terests, the forerunner probably of a royal remembrancer , a
and on his left the Chancellor; then further, on a bench
extending beyond the table, Constable, Chamberlains,
and Marshal. But before the end of Henry II.’s reign,
Chancellor and Constable were probably not present in
person at the routine financial meetings; they would be
represented by their more technically trained clerks—
when points of difficulty arose they would come, especially
if those points were of a judicial nature. At the opposite
end of the table sat the particular sheriff or bailiff, who
was rendering his account; at his left another man watch¬
ful of the king’s personal concerns directly across from
his fellow at the upper end of the table; and at the sheriff's
the exchequer, its writs and rolls, and the functions of its officers. The
second book treats of proceedings in the exchequer, the collection of
debts, the manner in which accounts are rendered by the sheriffs, and the
various sources of royal revenue. The treatise also contains much infor¬
mation regarding other institutions. ’’—Gross, The Sources and Literature
of English History , p. 418.
1 About fourteen boroughs and a varying number of honours so ac¬
counted. Guardians of temporalities of vacant bishoprics and of escheats
accounted at the Exchequer; also guilds of craftsmen paying yearly license
duties, though probably the sheriffs accounted for some of these.
In original meaning, apparently, a man whose office it was to bring
to the king's remembrance or attention those items of revenue or phases
of financial administration which were of special concern to him person¬
ally. *
The Executive
309
right, along a bench extending beyond the table, probably
other sheriffs and bailiffs awaiting their turns. The long
side of the table to the right of the officers was devoted
mainly to those in charge of the rolls. Nearest the head
of the table was the Treasurer; next him the writer of
the treasury roll, the “great roll of the pipe" it came to
be called 1 ; then the writer of the Chancellor's roll, a dupli¬
cate roll kept at first as a kind of check upon the treasury
roll; and below' him the Chancellor's clerk and the clerk
of the Constable’s office. The other long side of the
table was mostly for the reckoning and receipting. Prob¬
ably in the center was the calculator who could thus reach
in either direction and manipulate the counters; at his
right those who cut the tallies which were the evidence of
receipt, and at his left the clerk of the writing office, an
important official in charge of the Chancellor’s waiting
staff. The original, fundamental part of the sheriff’s
payment was the “farm” of the county, including mainly
the rents from the king’s lands and the fines from the local
courts. But the sheriffs often had other things to account
for: the profits of royal justice in the itinerant justice
courts, Danegeld, scutage, aids, etc. There is no doubt
that from the twelfth century the “farm” amounted to
relatively less in the king’s income and the other revenue
paid in by the sheriff relatively more. 1 This is but a
hint of the detail and technicality as they had developed
at the famous table in the course of the twelfth century.
In the period following, as was bound to be the case in a
progressive government, there was constant change and
elaboration; but there will always be a special interest
in the picture which Henry II.’s famous Treasurer drew,
moved to the performance, no doubt, by his own sense
of the uniqueness and greatness of the institution with
which he and his family had been identified.
t Undoubtedly because the individual strips of parchment, called mem -
brums, on which it was written, would roll up and look like a tube or
pipe.
*The “farm” suffered greatly under Stephen, when much royal land
was alienated.
310 The Period of Constitution Making
In the reign of Henry II. the Exchequer accounting
and auditing was held regularly at Westminster, though
it could then and for long afterwards, upon special occa¬
sion, be held elsewhere. The treasury was still at Win¬
chester, but it had now become what it was to start with,
a storehouse. But the receipt of much money at West¬
minster made a temporary storage there or in London a
necessity; and the packing of it in chests and the carriage
of these to Winchester were burdensome. Quite naturally
the treasury at London came to supersede that at Win¬
chester, and this was accomplished by the early part of
Henry's III.’s reign. It was one of the many changes
in the late twelfth and early thirteenth centuries which
■were making London and Westminster the recognised
seat of government. So far as the treasury had been in
any sense a department of government it was now ab¬
sorbed by the Exchequer, and there was no treasury as a
separate financial department until after the middle
ages.
By the late twelfth century the Exchequer was manned
largely by skilled specialists in finance, and before long
its judicial side was specialised, professionalised—the
Barons of the Exchequer were justices of a court of special
competence, not ordinary feudal barons. 1 This means
that the Exchequer had gone, or was very rapidly going,
“out of court.” It did not follow the king, it was not a
part of his personal entourage or household, its members
were not giving him counsel on general policy or un¬
specialised points of administrative detail. It was
splitting off from the parent stem of the king’s court.
In the time of Henry III.’s attempted personal govern¬
ment there was some effort to reverse this process, but it
had no lasting effect. The Chancellor pretty definitely
left the Exchequer at the beginning of John’s reign. His
clerk remained, but hardly as the Chancellor’s represen¬
tative. The king appointed him. He was keeper
of the Exchequer seal, a duplicate of the king’s
1 See above, p. 176 and note 3.
The Executive
$n
seal, 1 the existence of which before the end of the twelfth
century is an evidence of the Exchequer’s separation from
the king's court. This official was scon one of the most
important in the Exchequer, and finally became its head,
the Chancellor of the Exchequer.
When the Chancery" ceased to have any oversight or
control in the Exchequer, and the writer of the Chancel¬
lor’s roll served no longer to check the treasury roll, the
function was served by two royal remembrancers whose
forerunners can probably be seen at the table in Henry
II.’s reign as described in the Dialogue. To begin with,
confidential agents of the king, they- became regular
Exchequer officials, skilled in routine; and, as the Treas¬
urer became a grand official having less and less to do
with financial detail, this part of his work fell largely to
the remembrancers. But in the thirteenth century the
Treasurer as well as the king had his remembrancers,
those of the king dealing more especially with the occa¬
sional or exceptional forms of revenue, those of the
Treasurer with the fixed revenue. In the higher realm
of Exchequer policy and supervision, the Treasurer s
place was being taken by the Chancellor of the Exchequer.
Before the end of the thirteenth century the Exchequer
had taken over in part the national accounts—those
things which did not relate to any one county, honour,
or borough—as, the forests, the Channel Islands, the
customs duties, and, in the fourteenth century*, Wales,
Gascony, and Ireland. At the same time, while the
Exchequer year still had tw r o terms which began at the
old times, the old short periods had passed; now* the
Exchequer was in almost continuous session. Its judicial
work helped towards this as wel as its increasing financial
work. Its year tended to become like the years of the
Benches. But while its financial competence w*as ex¬
panding in one direction it w~as being cut into in another;
the king had gone a long way in building up a financial
1 See below, pp. 312, 318. The Exchequer thus came to have its own
sealing department, and the resulting control of its official documents.
312 The Period of Constitution Making'
department under his more personal control. The com¬
pletion of even a slight summary of financial administra¬
tion in the later middle ages must, however, follow some
notice of other developments in and out of the royal
official household.
The Norman kings of England had their chapel and
the chaplains of this, along with their other duties, were
the king’s writing staff. At the head of these was the
Chancellor, who by Henry I.’s reign was keeper of the
king’s seal. Perhaps he had kept the seal earlier; per¬
haps there was a Chancellor who kept the seal of Edward
the Confessor, who first of English kings had a seal.
The seal was a revival, after the dark ages, from the
Roman Empire. Its appearance in England was due to
the continental influence under Edward. His seal was
a double-faced, pendant seal, and the Conqueror’s seal
was based upon it. At about the same time feudal
nobles were beginning to use seals, which were displacing
signatures and crosses of witnesses, and in some parts
of Europe (not England or northern France) partially
displacing the employment of professional notaries.
The heading of the king’s secretariat and the keeping of
the king’s great seal, which meant much control of the
documents authenticated by it, were the basis of the
Chancellor’s power as a great officer of state and the
development under him of the Chancery as a great de¬
partment of administration.
The class of the king’s letters which in the course of the
twelfth century became the technical judicial writs had
a notable effect upon the department which issued them:
they greatly increased the work and importance of the
Chancellor and his force, and they brought the Chan¬
cellor for the first time into close and professional contact
with the judiciary. 1 Chancery grew rapidly under
1 On the judicial writs see above, pp. 142-144, 151,152. It has been con¬
venient to deal earlier with Chancery's development, in the fourteenth
and fifteenth centuries, as a court of civil equity. See Part III., § I., 3.
The Executive 313
Henry I. and in Henry II/s time was a well developed
secretarial department in the official household, mightily
affecting the growth of law through its making of writs.
Chancery was in the same building as the Exchequer,
perhaps in the same room in which spring and fall the
Exchequer sat. The Exchequer when in session had
occasion to use the Chancery clerks, and the limited
periods of the Exchequer kept it from interfering much
with the Chancery. At that time there was no notion
that different offices or departments should have separate
buildings, or officers separate rooms. Indeed there was
not yet much separation in the king’s great official family.
But the Chancery staff kept growing with the great in¬
crease of writs and royal letters and documents of all
sorts, Becket did much to exalt an office which had been a
humbler office before him, and there was further increase
in its dignity through "William Longchamp at the begin¬
ning of Richard I/s reign. 1 But perhaps it was Hubert
Walter’s great work as Chancellor that brought Chancery
to the point of separation from the Exchequer at the
beginning of John’s reign and inspired the beginning of
the great Chancery enrolments.
In the matter of enrolments the Exchequer came first
with the pipe rolls which began under Henry L, and were
renewed and made continuous under Henry 1 L These
perhaps suggested the plea rolls of the king’s courts,
which began regularly in 1194. Then came the Chan¬
cery rolls, which began with the charter rolls in 1199 and
were followed almost immediately by the patent and
close rolls. 2 To the exceptional efficiency and regularity
i Soon the Chancellors were too great and dignified to do much routine
work and we begin to hear of vice-chancellors. . .
3 These three types of royal letters had been differentiating under
Henry II and appear under these names with the beginning of enrolments.
Charters, letters patent, and letters close “were the instruments by which
the kings of England made grants and transacted much public business of
importance. 4 By the first their more solemn acts were declared, by the
second their more public directions promulgated, and by the third they
intimated their private instructions to individuals. 1 These three senes of
records contain grants of lands, offices, privileges, and the like to indi¬
viduals or communities, mandates to royal officers, etc.; the patent and
314 The Period of Constitution Making
of the English secretarial department we owe this mag¬
nificent set of Chancery enrolments which furnishes
from the beginning of the thirteenth century an unbroken
record of administration such as is to be found in no other
country in Europe. The Anglo-Norman and Angevin
Chancery was leading Europe, for Anglo-Norman and
Angevin kings were leading Europe in nearly everything
which related to centralisation and governmental com¬
petence. It was the time of the English kings’ greatest
power. 1
Till the end of Henry JI/s reign the Chancery was
clearly a part of the royal household, still travelled with
the king. But with the exaltation of the Chancellor’s
office in the years following there were longer and longer
absences of the Chancellor and his staff from the travelling
household; with its increased size and functions the Chan¬
cery v T as inevitably becoming more stationary and less
personal to the king; it was becoming an organised office
of state, it was “going out of court.” In the thirteenth
century this process was favoured by the barons in their
rivalry with the king, for they could more easily control
a department thus separated from personal contact with
him. But Henry III. felt this situation and resented it,
and on this point there arose a long strife between king
close rolls also comprise truces, treaties, diplomatic correspondence, and
documents concerning the revenue, judicature, and other branches of the
English government. Royal charters and letters patent, though they often
resemble each other as to their contents, are distinguished from each other
as regards their form. The charters are addressed ‘to the archbishops
bishops, abbots, priors, earls, barons/ etc., and are executed in the pres¬
ence of various witnesses; whereas letters patent are addressed 'to all to
whom these presents shall come/ and are usually witnessed by the king
himself. ^ . . . Letters patent were so called because they were delivered
open, with the great seal pendant at the bottom; but in this respect thev
do not differ from charters. Letters close . . . were mainly royal man¬
dates addressed to one individual or more; therefore they were closed and
sealed up on the outside ”—Gross. Sources and Literature of English His-
tory, pp. 463, 464. The letters close are of the most value to the historian
They contain the greatest variety of information, telling directly much
about government, especially royal policy with respect to local government
(see below, pp. 325, 326), and more or less indirectly about economic,
social, and other phases of the people’s life.
1 See above, pp. 263, 264, 268.
The Executive
3 i 5
and barons which left its stamp upon all the later history
of Chancery. Henry early in his reign sought to keep
a more personal control, even to the point of trying to
be his own Chancellor. Such attempts so weakened the
general administration as to throw the weight of the
argument on the baronial side. In 1244 the barons
demanded the choice of Chancellors in the great council
(then just beginning to be called a parliament', Chan¬
cellors who, of course, would be of the independent,
aristocratic type. There followed a time of strife during
which the Chancellorship was either in abeyance or
present in such a faint replica as hardly to deserve the
name. The consequent governmental disruption was
one of the many things which led to the crisis of 1258 and
the following war. In this period the old office of Jus¬
ticiar, the vice-regal office necessitated by the long royal
absences from England in the earlier time, went out of
existence. The royal triumph of 1265 together with the
attained dignity of the Chancellorship were forces which
counted against its revival, and its non-revival helped to
make the office of Chancellor the highest office in English
officialdom. At the end of Henry III.’s reign it is fair
to say that king and barons had had something of a
drawn battle over Chancery—the restored Chancery of
the late years of the reign bore marks of baronial “con¬
stitutionality” and also of royal-court control. On the
whole Chancery was going out of court very slowly,
much more slowiy than the Exchequer had. Even under
Edward I. the Chancery clerks were theoretically in the
household. But by the last years of Edward II. a great
change had taken place, a change produced by time and
also a change which like so many others in this reign
resulted from the governmental maturings and readjust¬
ments forced by the king’s incompetence. The Chan¬
cellor was no longer to be regarded as a household officer,
he was the chief minister of state. The bureaucratic
features of Chancery were becoming marked. The
Chancellor was building up a “household” of his own
316 The Period of Constitution Making
consisting of the Chancery clerks—a well organised
professional group offering an attractive career. This
group did its administrative and secretarial work little
disturbed by whether the Chancellor for the time repre¬
sented royal or baronial preponderance in state affairs.
Chancery had definitely gone out of court.
When the Exchequer went out of court it took from the
court the receipt of money, though not of all money;
when Chancery was going out of court it was taking the
great seal and secretarial department. Their going meant
a growth in officialdom, a governmental maturing; it also
meant, or was coming to mean, more baronial control.
In either case it meant less primitive, personal govern¬
ment by the king. But the king was powerful and the
time early; it was to be a long time before government in
England was to cease to be personal and the main motive
force to lie outside the king, whether with aristocracy or
with the people. Hence at this point the process of
reduplication began; the king must have a finance de¬
partment personal to himself and a secretarial staff with
him, under his personal control, and we begin to hear of
theChamber, the personal core of thehousehold, becoming
a second treasury and of a small seal for the Chamber to
authenticate documents. New finance and secretarial
departments were beginning. Yet one must be cautious
in describing these changes. When we say that the
Exchequer and Chancery had gone out of court and that
the Chamber remained in the court or household, that is
not the same as to say sharply that Exchequer and Chan¬
cery were public, belonged to the state, while the Cham¬
ber was in the king’s private establishment. Such dis¬
tinctions pertain to modem times, not to the middle ages.
In a sense all features of government—courts, Parliament,
Council, organs of administration—even England itself,
were the king’s in something of a personal way; while on
the other hand the growing Chamber organisation was
far from being what at present would seem personal and
The Executive
317
private, even for a king. These departments which had
gone out of court were less under royal control, had in
part escaped from the king, were at least debatable ground
for king and barons to fight over. The barons of Eng¬
land, not without some justification, thought themselves
entitled to speak for the nation, what is more remarkable
they sought not to destroy but to fulfill: they kept the
efficient things of government things which bore no
feudal trace and which had been made by the royal
enemy. The king in a formal sense, mas the nation.
When he found himself losing in the fight to control
Exchequer and Chancery, he began, sometimes instinc¬
tively, sometimes more or less consciously, to manoeuvre
for the lost ground. He began to shape out of the yet
undifferentiated household duplicate offices and seals,
and with patience and finesse, under cover of terms,
technicalities, and fictions, he sought really to do again
what earlier kings had done. But the king was doomed
finally to lose, as he had lost before. He was under the
law. The barons of the later middle ages felt it their
function to keep him under. A king under the law could
not, in their thought, be untrammeled in finance and
general administration. That he should be was hostile
to the personal interests of the barons; but they rather
grandly identified their personal interests with the con¬
cerns of the nation, and the king’s subordination to law
was an early expression of the national idea. A very
brief account of the way in which these forces found
expression in administrative institutions must be given
here.
The Exchequer never received all the royal revenue.
As this finance department became less personal to the
king, as it went out of court, he became more concerned
about what was to be paid into the Chamber. When
we first catch sight of the Chamber as a'‘second treasury/’
already traditionally some officers were accounting to it
rather than to the Exchequer; perhaps there were already
“chamber manors” in the twelfth century, certainly
318 The Period of Constitution Making
early in the next century; and some types of revenue
which went regularly to the Exchequer might be quite
capriciously diverted to the Chamber. Also the Chamber,
before the end of the twelfth century, was doing a good
deal of general administrative business and kept a roll
which is to be distinguished from the Chancery rolls;
and the increasing absences of the Chancellor and con¬
sequently of the great seal from the royal presence caused
another and more personal royal seal to come into exist¬
ence, By the reign of John there were three seals: the
great seal kept by the Chancellor, a duplicate of the great
seal kept in the Exchequer, and a small seal or privy seal
kept by a clerk in the Chamber. But as Chancery went
out of court slowly, there was confusion and overlapping:
Chamber documents sometimes sealed in Chancery and
documents authenticated with the small seal appearing
in the Chancery enrolments. However, after 1208, most
Chamber documents received the small seal and not many
years afterwards no such documents were inserted in the
Chancery rolls. At the same time the feudal element in
the Chamber was being displaced by a clerical, official
element.
No sooner was this Chamber organisation well started
than we begin to hear, already in the reign of John, more
of the Wardrobe and less of the Chamber, and the Ward¬
robe continued to figure as the heart of the royal house¬
hold for at least a century. We have noticed that there
was an importance attaching to the king’s sleeping place
and storage place, his chamber and his wardrobe, in
early times. 1 There was a wardrobe servant before the
Conquest. By Henry II.’s time the royal wardrobe was
an important place of safe deposit with a considerable
staff. In John’s reign, the term applied both to a place
and the things kept in it. We hear much of the carts
and horses or boats that carried the stuff of the wardrobe
on the king’s constant journeys. There were the house¬
hold arms and armour, saddles and harness of the horses,
* See above, p. 52.
The Executive
319
and the chests and bags in which the robes, etc., were
carried. Also the king's more private hoard or purse
was divided between chamber and wardrobe, with some¬
times so much money in the wardrobe that it had to be
carried in casks. Facilities for safe-keeping developed
in the wardrobe were making it in the same reign a place
of deposit for important documents. Its elaborated
staff extended all the way from the clerk who kept its
roll and cared for its treasure and documents /forerunner
of its later “keeper” or treasurer) through various ser¬
geants and valets down to the carters and the drivers of
the pack-horses. In just what way the wardrobe got
the start over the chamber at this time as the phase of
the royal household which was to receive the new political
development is not clear. Quite possibly because it had
such an equipment of chests and bags, because it was a
storage place and not a sleeping place. The grander the
king the more stuff he had and the more important the
wardrobe in contrast to the chamber. Perhaps it was
partly a matter of language: as the wardrobe bulked larger
in men’s attention they would be more likely, in referring
to the arcanum of the royal household, to say wardrobe
than to say chamber. At any rate it would be hard to
prove that any other household arcanum had a political
growth or significance for a full century.
As Henry III.’s reign began the Wardrobe was growing
as a finance and general administr ative organ; it was
beco mmFa domeslicTE anSrv. In the matter of expen¬
diture, its business related to the unusual as contrasted
with the routine expens es: it sought to finance court
festivities and military .undertakings at home or abroad.
There was marked Wardrobe development resulting
from Henry’s Poitevin expedition in 1230, and already
there was a trace of war office and admiralty. The royal-
baronial struggle of this reign touched the Wardrobe as
other parts of government, though its development
depended more upon a normally maturing state. The
royal triumph of 1227 had been followed by a baronial
320 The Period of Constitution Making
success, and then in 1234 began Henry’s great experiment
to bring all the baronial-national departments which had
split off back under the royal-household-personal control.
The barons triumphed in the Barons’ Wars, keeping in
1258, as always, most of the machinery which had devel¬
oped in earlier times of royal control. Henry had been
making much use of the privy seal, and during the
Ch ancello r’s abeyance, the._great _seal_.was o ften kept in
the Wardrobe. Now Henry sought to fight the Provision^
of Oxford with the small seal, an interesting comment
upon the relation of that seal to the great seal now again
kept by a baronial Chancellor. There is evidence that
the validity of Henry’s grants during the troublous years,
whatever seal he used, was later regarded with suspicion,
and many documents it was thought best to have re¬
sealed. 1 The privy seal had become distinctly the Ward¬
robe seal and was in the custody of Wardrobe clerks.
The vig orous p e rsonal government of Edward T . em-
phasised”every phase of household administration and
retarded any tendency of the Wardrobe to split off and
become a separate department of. state. Indeed Edward
m aintained "clo se relations ‘ with the Chancery, and even
the Exchequer. Yet it was a time of" rapid development.
Early uTThe reign the Wardrobe attained a stable organ¬
isation, with officers and staff ; 2 though still travelling
much, it was corning”to have headquarters in London,
with a storehouse or treasury distinct of course from that
of the Exchequer; 3 and Wardrobe officials were becoming
very influential in general government, sometimes forming
a kind of inner ring in Council or Parliament, and .incur¬
ring the opposition of the barons who were seeking to
1 About this time there is occasional mention of a “royal ring” used for
some lands of authentication—possibly a foreshadowing of the “signet”
of the fourteenth century.
2 Its head was the Treasurer or Keeper, not to be confused with the
Exchequer Treasurer. The Controller of the Wardrobe, head of its sec¬
retarial department, became the keeper of the privy seal, now less a ner-
sonal seal of the king than formerly.
’. Il3 Ijhis r eign its treasury passed from Westminster to the Tower
ims is now tne regalia got to tlie Tower, never to leave.
The Executive 321
uphold the Exchequer and Chancery. The most striking
development came late in the reign, and was the result of
war. The magnitude of Edward’s military undertakings
was far beyond anything of the sort that English kings
had known before. The Wardrobe in wartime became
very powerful. It managed both army and navy and
was in general the ruling force in the state. For the time
being Exchequer and Chancery were not at all prominent
and were perforce co-operating with the Wardrobe. 1 But
opposition to too much personal rule, especially as shown
in the use of the Wardrobe and privy seal, was the great
factor in the years of desperate struggle following 1297.
It found clearest expression in the “Articles upon the
Charters” of 1300, where such exercise of power was
represented as^infringing, Magna Carta and the common
law. Thus the reign ended, not so differently from" Hie
reign of his father, with which one is likely to contrast
it at all points: after a long period of quiet, again baronial
opposition to personal rule, aristpcracy. claiming to speak
for the nation versus autocracy aimed with,new btlisau-
cratic'apparatus.
UndeFtEe’weak Edward II. this Wardrobe organisation
1 While the forms were kept for the Exchequer, the Wardrobe was becom¬
ing the real financial department. Some of the general taxes went directly
to the Wardrobe and, under the king’s direction, it was expending money
it had received from the Exchequer. It was mor e pla stic than the Ex¬
chequer and was taking the lead in solving the financial problems’ of the
timb^the development of the use of tallies from a receipt into a credit
system, and the handling of the short-term foreign leans. It “was to a
large extent hnth jgar o ffice and admiralty, as^ well as the body ruling the
household and state. It was even more specifically the army pay-omce ?
the t!Snln^TTfun5sTiy T of recruiting and national service, the clothing and
stores department, the ministry of munitions, the board of ordnance and
the controller of such engineering, mechanical, and fefihfiica! ^services as
then existed, the an^*§STice corpsCIfid’ the ministry* bTInformaticn.
Moreover, all that it did for the army it also did for the navy. . . —
Tout, Chapters in Medical Administrative History , ii.„ 143. Nevertheless,
Edward was badly in debt and Ms finances confused late in his reign-
much more confused than at the end of Henry Ill’s reign. It was years
after Edward’s death before his accounts were settled. War had its usual
demoralising effect upon the state.
Notwithstanding the somewhat forced harmony between Chancery
and Wardrobe in this reign, the most important permanent grants must
be authenticated by the great seal even if they had already passed through
the Wardrobe and received the privy seal.
322 The Period of Constitution Making
was bound to be attacked. It was not mentioned by
name in the New Ordinances, but was clearly aimed at
in the provisions to restore the Exchequer, to limit the
royal right of prisage, not to disturb or delay the law of
the land by letters under privy seal, to appoint a com¬
mission to hear complaints against the king’s ministers,
and to remove the evil, i. e. household, counsellors. As
the reign progressed, the incompetence of both Edward II.
as leader of the court party and of Lancaster as leader of
the baronage led to a combination of some of the saner
elements from each; and the circumstances of the reign
begat much political planning of a reforming nature.
The Wardrobe had been the informal part of government,
free, untrammelled, the thing the king used in order to set
up anew his power against Exchequer or Chancery. Now
the attempt was to make the informal part of the admin¬
istration formal—at least in times of peace; to define the
Wardrobe, limit it, stereotype it, cut out its “abuses,”
keep it from playing a national role. The origin of an
independent keeper of the privy seal is to be found in the
provision of the New Ordinances appointing a suitable
clerk for that function who was to be responsible to
Parliament. Thus baronial influence started the process
by which the office of privy seal began to be a distinct
office in the Wardrobe and finally, with its staff, went out
of the Wardrobe to become an independent office of state.
Before the end of Edward III.’s reign, the Keeper of the
Privy Seal ranked next after the Chancellor and the
Treasurer among the great ministers of the Crown.
When the barons were getting control of the Wardrobe
under Edward II., they thought they were getting con¬
trol of the essential administrative household. But the
old process of duplication began once again. What the
king proceeded to do, with considerable temporary suc¬
cess, was to duplicate the Wardrobe machinery under an
old name, chamber; when the “reformed” Wardrobe
proved less useful to the king, the heart of the personal,
household organisation was reappearing as the Chamber.
The Executive
323
While the Despensers were in power the Chamber growth
was rapid. With the baronial control of the privy seal,
new and more personal seals began to appear I the secret
seal, the griffin seal, etc.), kept in the Chamber. And
the Chamber began to have a treasury with its special
sources of revenue. Indeed for this period it would not
be hard to show three treasuries, for Exchequer, Ward¬
robe, and Chamber respectively; and four chanceries,
i. e. secretarial departments, each with its appropriate
seal, for Exchequer, Chancery, Wardrobe, and Chamber.
But this duplication of the Wardrobe by a revived Cham¬
ber was superfluous; it accomplished nothing but con¬
fusion. Duplication could be carried to such lengths as
to be absurd. By 1322, the anti-royal forces had pretty
well nipped the Chamber in the bud. In the course of
the fourteenth century some Wardrobe offices went out
of court and became offices of state, while some parts of
the Wardrobe organisation slipped back into purely
domestic phases of the royal household. 1 In the Lan¬
castrian period the king had little chance to play the
game of personal government, but later in the fifteenth
century there was a renewal of household activity, and
much administrative work was passing from the Chan¬
cellor to the king’s Secretary. Secretary only gradually
became a title of office; it meant at first any confidant of
the king. The Secretary, or one of the secretaries, had
been keeping the king’s signet which was the latest of
the king’s personal seals and the signet office was develop¬
ing; the future lay with the Secretary—the future of
personal government—but that future was the Tudor
period.
In France the king had been able to maintain one great
royal chancery, which, because it was the place for sealing
with the great seal was the source of all the great min¬
istries, and was an important basis of the king s absolute
power. There had been no charter history in France
1 Chancery’s growth as a court (see above, pp. 216-218) kept it from
regaining any household control at this tune.
324 The Period of Constitution Making
comparable to that in England, the baronage for many
reasons was a different baronage, and the slogan that the
king was tinder the law did not arise. The English king
had not been able to hold his chancery to a unity. The
long-continued and constantly shifting royal-baronial
conflict was the main cause of the repeated duplications
and the existence at any given time of departments of
government relatively personal to the king and of others
more baronial, or, as the barons would probably have been
pleased to term them, more national. The results of
aristocratic opposition in England are to be found in
Parliament, though not until the late middle ages and
not very consciously worked out; they are to be found in
all the long history of Magna Carta and in the depositions
of two kings in the fourteenth century; but they are also
to be found in these unpremeditated and peculiar develop¬
ments in the sphere of what we may venture to term
general administration.
4. The King’s Use of the People in Government.—■
Some of the ways in which the mass of the people took
part in government have been shown. In the Anglo-
Saxon period there was much that indicates that the
local government was older and more important than
the central government; the people were still, at the end
of the period, running their local courts in a way that
reminds us of a time when it was that kind of govern¬
ment, sprung from the people’s initiative, or nothing. 1
In the early post-Conquest time, the local government,
now feeling the stem touch of authority from the center,
continued important and, as in the case of the frank¬
pledge system, was being completed and organised; and
it reached down to, and demanded the service of, the
very lowest classes. 2 But what was to be the permanent
policy of the great Norman and Angevin kings ? How
were they to meet the problems of local law and order
and the minutiae of local administration? It is not hard
to imagine the first indication of an answer to these
x See above, pp. 66-69. 2 Ibid., pp. 108-Tio.
The Executive
325
questions even in the reign of William the Conqueror.
Most of the information in his vast Domesday investi¬
gation was obtained from sworn groups of the people;
he hated to trust even the extortion of the survey to
officials; and we read the tremendously significant record
of how
he sent inquisitors after inquisitors and men not acquainted
in the districts to which they were sent, in order that those
who followed after might check the re port of those who went
first and lay open their falsifications to the king. 1
The kings that followed showed the same tendency. The
sheriffs were under suspicion, and a long series of attempts
to limit them began with the coroner and ended with
the characteristically English ami-official justices of the
peace. 2 There was also, and naturally, much develop¬
ment in the officials of central justice and administration.
But in the localities there arose no hierarchy of officials,
no bureaucracy. The increasing problems of government
were not solved that way. The enormous extension of
juries in Henry II.’s reign was fundamental in fixing the
royal policy; perhaps the most notable thing in govern¬
ment which -was taking place in England from the twelfth
century to the end of the middle ages was that the king
was getting his work done largely by the people, and
that with practically no compensation. The striking
illustrations of this are the king's use of the Commons in
Parliament, and the juries. But important as these are,
they give but a feeble notion of the burden of public work
and responsibility which rested on the people; and this
section, dealing with the king's power and policy and
with general administration, seems the best place in
which to attempt to indicate the mass of that work.
The Chancery enrolments beginning with John's
* See the excerpt from Robert of Hereford’s chronicle in Stubbs, Sekct
Charters ? p. 95.
3 See above, pp. 196-202.
326 The Period of Constitution Making
reign, 1 the plea rolls which began earlier, and Bracton’s
great work telling so much of early thirteenth-century ju¬
dicial practice, make it possible for us to form some con¬
ception of the intimate and continuous political influences
under which common men lived in the thirteenth century,
and, apart from the study of individual institutions, to feel,
almost from the point of view of the people themselves,
something of the total burden of tasks and trusts which
was descending upon them from central authority. This
is not easy to do—to sense this burden apart from cate¬
gories and forms. We talk of judicial-jury or frankpledge
or assize-of-arms obligations, and the mind easily takes
these and sets them apart as things well known and
discounted. But the king was not thinking in these
terms. Categories and forms were there, but they were
different; the king was getting his work done, judicial or
other, in the way that best suited him at the time and
most swelled his revenue. The jury method passed
untroubled back and forth over the yet dim boundary of
a court of law. Courts of law were more and more the
king’s, and the stamp of king’s business set a common
mark on all things it touched. Separation between
judicial and administrative functions was progressing
very slowly, and most of what may be called local govern¬
ment, whether drawing its authority from the age-old
local communities or from the king, was carried on under
judicial forms.
In judicial process 2 (this is not limited here to what
actually happened in the presence of a court of law) the
people were much concerned in the steps which preceded
or accompanied the appearance of the parties in court:
the burden of suit of court in county, hundred, and
manor have already been considered; also the matters
’Seeabove, p. 313 and note 2.
In this enumeration of the people’s tasks some features of judicial
process are mentioned which it has not been possible to discuss, which are
appropriate only to detailed works on legal history; yet it is hoped that
their general character is made sufficiently clear to serve the present pur¬
pose.
The Executive
327
of arrest and pursuit including the hue and cry with its
wearisome and perilous obligation upon all over fifteen,
of the large coroners' juries charging a homicide, apprais¬
ing goods of the accused, determining deodands, 1 and the
local knights upon whom was laid, sometimes alone, the
responsibility of holding the assizes or gaol deliver/; the
local summoners were not officials and the uses of them
were manifold, many involving a journey to a court in
addition to the summons and much accurate formality
in wording, time, etc.; those who were ; often apparently
perforce) sureties for others in the earlier steps, and also
all the -way through judicial process were very numerous;
and all the essoins, i. e. excuses, with which procedure
was cumbered involved essoiners who were not mere
messengers of excuse, and who, non-officials as they were,
must often carry out highly technical investigations.
In the second place, people were used in all that was
incidental to indictment or appeal in criminal and to the
pleadings in civil suits: here were the suits of witnesses
brought to establish a presumptive case, the men accom¬
panying appellor and appellee to the judicial duel, the
presenting juries including usually knights, freemen,
and villeins, the bearers of the record of presentments—
a message not to be intrusted to the sheriff, the electors of
the grand-assize juries; and many more or less incidental
uses of men, largely in the early steps of process and most
of them juries for determining minor points arising in the
course of the pleadings. In the matter of proof, or trial
proper, there were still the compurgators, regular in some
cases and in some courts for nearly all cases; there were
still also the proof witnesses, including transaction wit¬
nesses, charter witnesses, and the suits of witnesses pro¬
duced on both sides and examined by the court in some
few questions of fact whjsh had not yet passed to the
1 Things immediately instrumental in anyone’s death ! 'as_ an axe, a
cart, a tree, etc.) were by an old legal notion regarded as forfeited to
God; such things went to the king to be used supposedly lor py us purposes.
It was often difficult to determine just what things were deccana.
328 The Period of Constitution Malang"
jury; but of course most important here and for the
whole of procedure were the juries: the trial juries in
criminal cases after 1215 normally groups of forty-four
men, largely a second job for the presenting juries; the
grand-assize juries which must pass on the most solemn
questions of best right to land or to patronage; the
incessantly used juries in the four petty assizes every one
of which must make a view of the property in question, a
view often detailed and difficult, juries of whom unanim¬
ity was already required and obtained often by the use
of additional men through the process of afforcing, juries
subject to attaint and punishment by appeal to a new
jury of twenty-four knights; and besides these established
uses, the jury was already making its way through volun¬
tary choice of the litigants into the criminal cases begun
by appeal and into the forty to fifty civil actions then in
use, several of which involved view; and there were juries,
specially treated juries, in those Bills in Eyre which cu¬
riously foreshadowed the equitable jurisdiction of the
Court of Chancery. Fourth, in final process, were often
juries to make extents of lands or rents as basis of remit¬
tance or acknowledgment of one party to another, to
survey questionable boundaries at the end of a writ-of-
right case, juries to assess damages when such were
awarded as a subsidiary remedy, and the endless juries
for affeering (i. e. assessing) the amercements in the
king’s court and in the courts of county, tourn, and
manor; and there were knights who bore the record from
county courts to Westminster when a case was carried
up through writ of false judgment.
This has been merely to name the leading uses, or
rather groups of uses, of the people in some way con¬
nected with legal procedure. There were something
over eighty of such uses at this time, and two of them,
summons and pledge, were employed in from fifty to
sixty different ways. Taking England over, some of
these, as suit of court, summons, pledge, essoin, assize
juries, affeering juries, must have occurred thousands of
The Executive
329
times each year. The number of references to be found
in the records is enormous.
It should be noted here that in some of these instances
men were playing a part in procedure, r. g, pledges,
essoiners, suit witnesses, some of the proof witnesses,
compurgators, who appear to have done so more or less
voluntarily. The ideas and methods of the time, per¬
haps a kind of social pressure—kinship, good m-ighborli-
ness, the custom of the locality—drew them in. Any
thing, however cumbrous, which involved people and not
officials pleased the king. He preferred pledges to making
good gaols and having good gaolers. But in most and the
most important of these functions the people were acting
under command. Much could be said of the responsi¬
bility and difficulty of many of these, among which the
juries, getting their own information, with their frequent
views, their judging of fact and judging of law in order to
give the categorical answers usually required, and their
not infrequent trips to London in units of twenty-four,
are familiar but not exceptional. The obscurer groups,
in many instances, did as much work and took as great
risks. The king’s justices were umpires, but the people
had to play the game.
Largely outside the realm of the courts were the
frequent extents, or surveys, on the manors made by
means of manorial juries to verify the terras of the cus¬
tomary tenures, the duty of nominating or electing man¬
orial officers resting upon the inhabitants of the manor,
the obligation upon many of the middle and lower classes
to purchase and possess armour under the Assize of Arms
and the possible militia service implied, soon to be sup¬
plemented by watch and ward, and the duties of the
posse comitatus resting upon all males over fifteen. The
obligations which men bore as members of the local
community, the vill, were many—the vill’s representation
on the presenting juries, at the eyre courts, ar.d or cor¬
oners’ juries, and its hue and cry obligations are always
mentioned with those institutions; and in this connection
330 'I'He Fenod. ot Constitution Making
we hear of a larger group with communal obligations—
the 14 four neighboring vills” 1 which had many petty but
burdensome things to do. Moreover, the parish was
already appearing as a 4 4 unit of local obligation ”: upon
the parishioners rested the responsibility for the upkeep
of the church, providing ecclesiastical apparatus, audit¬
ing churchwardens’ accounts, and levying an embryonic
church rate—functions which on the continent rested
mostly upon the incumbent.
Less familiar, but of the same general character as all
the preceding, were the king’s direct and personal uses of
the people in getting special jobs done and his local in¬
terests safeguarded. These uses are most miscellaneous
and dovetail endlessly, but may be roughly classified as
follow: estimates and oversight connected with building
and repairing the king’s houses and castles, running all
the way from extensive work on a whole building to a
gate, a window, or a shelf; furnishing the greatest variety
of data relating to land, custodies, and the rights to them
or the services connected with them; oversight of trans¬
portation or estimating the cost of transportation: money,
armour, prisoners, venison, lumber, most often the king’s
wine, and here and in some other cases including purchase
or estimate of value; fixing the value of land, surveying
it, laying out a highway, etc.; reckoning certain expenses
1 Perhaps there was an original notion of the four points of the com¬
pass of the neighbourhood. The expression had a meaning when the
duties arose in connection with a crime or other localised event; but in
many cases apparently it was but a traditional way of expressing vill obli¬
gation. Sometimes the work was done by one vill and sometimes by
four, but we know almost nothing of the ways in which such duties were
regulated and enforced. In the boroughs the parishes or wards had cor¬
responding duties. The vills were to “take charge of felons, to lead them
to gaol and even to the gallows; to receive the head of a culprit who had
been decapitated by summary justice; tc hold and account to the king
for deodands and the lands and chattels of felons; to watch any person who
had fled to sanctuary, and to be present at his adjuration of the realm; to
send for the coroner when a sudden death occurred; to guard the dead
body until the coroner came, and to be present at the view and burial;
to make good the loss incurred by merchants of the staple through the
unlawful seizure of their goods; to repair hedges, bridges, dikes, and
ditches; to appraise and take charge of wrecks on behalf of the king.”—
Gross, Select Coroners ’ Rolls (Introduction), pp. xxxix., xL
The Executive
33 i
of the king’s domestic household, usually of a special
kind borne by some individual and not provided in the
regular way; estimating the value of agricultural equip¬
ment, crops, or live-stock; determining the king's forest
boundaries and rights and many things incidental, as
well as checking up on the doings of forest officials; special
or temporary care of the king's horses and dogs and the
purchase of horses for the king; oversight of equipment
and supplies for the king’s sailors and providing lumber
for shipbuilding; estimating the cost of working laud, and
stocking it, also the amount of seed needed for it. and
purchase of the seed; cost of provisioning castles and
maintaining garrisons; having charge : usually for a short
time) of all sorts of goods, from collected tax money to
the property of suspected jews; estimating the value of
land in connection with agricultural equipment, cattle,
etc.; assessment and collection of taxes; assessing damages
and losses, usually those which the king for seme reason
felt obligated to make good; and, beyond these, miscel¬
laneous employments which cannot be classified and
which surpass in variety what the most lively imagination
might picture as falling within a thirteenth-century
king’s interest. All of these uses of the people show a
habit of mind, a method, of these powerful kings who
could do business as they chose, a bent away from official¬
dom in local affairs. And all of this, in courts and out,
marks the Plantagenet sovereign’s view of his relation
to the localities and what local government ought to
be in the long period of decline of the old communal
system.
No less varied than the subject matter of these inquiries
and trusts is their degree of difficulty or responsibility.
The use of local men is often merely to witness a thing
that they may certify it if question arise later, or they
may be called upon to state facts of memory or tradition
when the alternative is their testimony or nothing.
From these extremes of mechanical action by impercep¬
tible degrees the cases vary to elaborate estimates, judg-
332 The Fenod ot Constitution Making
maits, or difficult charges in which witnessing and
memory are lacking and responsibility is large.
Viewed as a whole, these uses of the citizens in govern¬
ment, in courts of law and outside, present a burden
which seems unbearable. There must have been ways
of mitigating them, some devices of collaboration or of
doing service by turns. But with whatever allowance,
it must be concluded that unpaid-for work and risks for
the state made one of the two or three leading facts and
shaping influences in the lives of, say, the hundred
thousand knights and freeholders or indeed also in those
of the possible three hundred thousand peasants of that
time. As compared with the direct and final use of
officials there was involved a vast amount of trouble,
from planning and instruction on the part of the king or
his ministers to the endless summonses, selections, and
assemblings in the localities. It is a great wonder that
the king in the interest of what he thought efficiency and
personal profit believed it was worth while. It is a greater
wonder and a notable commentary upon medieval Eng¬
lishmen if it really was. But to look at another side, it
seems pretty clear that, for better or for worse, the lives,
the limbs, the property, the prosperity or adversity, the
happiness or sorrow of the bulk of the English population
in three-quarters of the crises of their lives depended
upon the knowledge, discretion, good will, or judgment of
their neighbours. This was self-government; but self-
government not in spite of the king but at the king’s
command.
There is not space here to follow the detail of this
local work in the centuries following the thirteenth; and
indeed this feature of English history has not yet been
sufficiently studied in the late middle ages to make this
possible. But there is much to indicate that though
forms and methods changed and some of the old local
institutions, especially the communal and manor courts,
were passing away, yet the fundamental principle that
the people must bear the chief burden of local government
The Executive
333
was not changed. Wei! before the end of the middle ages
there were signs that the old ecclesiastical unit, the parish,
was receiving an extension of duties and Rovers which
bade fair to make it a notable feature in local govern¬
ment. Religious houses had succeeded in pretty well
swallowing up the permanent endowments which sup¬
ported the parish churches—lands and tithes. As a
result churches must be closed and priests dispensed
with or rates must be assessed on the parishioners, rates
heavy and regular, quite different from the slight and
occasional church rate which may be glimpstd in the
thirteenth century. Assemblies of parishioners met in
the “vestries” of the churches and mere presided over
by priest or churchwardens. Their main business was
levying the rates, and such assemblies came to be known
about the time of the Reformation as Vestries, though
some of them were called, and continued to be called,
town-meetings, 1 A tax-levying power was something
that might easily extend itself, rates begat rates, and
erelong the Vestries were taxing the parishioners for
other than church purposes, and the parish 'was becoming
a dual personality' —it was the parish and the civil parish.
The Vestry became a body that had many things to do,
and w r as the only authority, except Parliament, which
could levy a tax. The flowering of the civil parish
belongs to the sixteenth and seventeenth centuries,
but its roots were deep in the middle ages. It was taking
up into itself not a few of the functions and officials of
older decadent local institutions: from the old police
unit, the vill, from the hundred, from the manor with its
court leet, court baron, and court customary. 2 The
civil parish was like the legatee of several impoverished
estates, but who in sum total managed to come into a
*On tlie relation of the English parish and the New England town¬
meeting, see W. and N., Problem VI. The quest for democratic origins
has shifted since we no longer assume an immemorial town-meeting going
back to the German forests, and we place our feet upon very solid ground
when we begin to talk about the sixteenth-century civil parish.
2 See above, pp. 109, no, 182-195.
334 The Period of Constitution Making
humble yet substantial property. It was a queer jumble
of the ecclesiastical, economic, and governmental, of
things new and old; its officials reflected all times and a
most checkered history; there w r ere things about the civil
parish as new as Elizabethan statutes and others older
than Alfred. The chief importance of its mention here
is, however, the fact that it strikingly embodies in the
later time the principle of unpaid public service resting
upon the humblest of the people. The parish
as an administrative unit was regarded by no one as an
organ of autonomous self-government. It was, if we may coin
a new phrase, an organ of local obligation— a many-sided in¬
strument by which the national government and the estab¬
lished church sought to arrange for the due performance of
such collective regulations and common services as were
deemed necessary to the welfare of the state. And they did
this, be it noted, not by the creation of a salaried hierarchy
of government officials, working under the control of the
king, but by the allocation of unpaid offices and burden¬
some duties among the ordinary citizens serving more or
less in turn; and . . . by the strict subordination of these
amateur parish officers to a superior organ of local self-govern¬
ment, the justices of the peace of the county or municipal
corporation . 1
The chief offices of the parish, such as those of church¬
warden, constable, surveyor of the highways, and over¬
seer of the poor, though they
differed widely in their origin, in their antiquity, and in their
scope, had many attributes in common. They all rested upon
a different basis from the modern conception of a public offi¬
cial They were unpaid. Service in them was compulsory,
with certain legal exemptions, upon all who belonged to the
parish . 2
1 Webb, English Local Government from the Revolution to the Municipal
Corporations Act: the Parish and the County, pp. 40, 41. While Webb
thus emphasises what is undoubtedly the most significant feature of this
local government, it was not within the purpose or scope of his investiga¬
tion to relate it to the history of earlier institutions or the tradition of royal
policy with respect to local affairs.
2 Ibid., p. 15.
The Executive
335
In the matter of local officials something has been said
of those of the county; and the most important of these,
justices of the peace and sheriffs, served practically gratis.
But the line between official and non-official is often hard
to find in English history. When individuals could buy
themselves free from public burdens, the services which
we find mentioned seem both official and non-official;
and such burdens and the attempts to escape from them
appear to have been as numerous in the fourteenth or
fifteenth century as in the thirteenth: petitions.to the
king during the year 1384 reveal over thirty jobs or
offices from which men were buying themselves free.
Surely it is a thing to be remarked in the history of a
country that it was so administered that people, in the
ragft of so many offices, far from wishing to buy them¬
selves in, were eager to buy themselves out. And the
question occurs, how far and why has the government of
English-speaking peoples remained non-professional—
essentially amateur—and what is the value of such
government. "Without presuming to answer so broaci a
question, the opinion may yet be ventured that English
kings, wor kin g in what they believed to be their own
personal interest, so used the English people in govern¬
ment, laid upon them for centuries such burdens and
responsibilities, that they went far towards creating the
Englishman’s governmental sense and competence.. Such
varied and long-continued service—sendee unpaid and
occasional and hence unprofessional—must, it seems,
have brought about special aptitudes, ways of reacting
to conditions or problems, the competence, method,
atmosphere which determine the working of any political
form. If through England largely self-government has
come into the world, here may be something of value m
understanding its beginning; and doubtless we should
speak less of a native genius for self-government and more
of the long and hard course of training through which
the English people, much of the time unwilling pupils,
passed. When Charles I., on the scaffold, said,
336 The Period of Constitution Making
For the people . . . their liberty and freedom consists in
having government. . . . It is not in having a share in gov¬
ernment; that is nothing appertaining to them,
it was a long line of his own predecessors that had done
much to make the statement untenable even in the limited
sense in which Charles meant it.
SECTION III
PARLIAMENT
i. Origin of the House of Lords—In the thirteenth
century a fundamental change was beginning in the larger,
summoned meeting of the king’s court, the great council. 1
When the change was completed, that body had become
the House of Lords. At the same time there were being
added to it certain new elements which w-ere finally to
form the House of Commons. These were the two great
processes in the making of Parliament, with the first of
which we are here concerned. In dealing with this
subject, it is especially necessary to rid the mind of
modem preconceptions; the very w r ord Parliament pro¬
duces involuntary mental images of the fully developed
institution that are certain to interfere with the under¬
standing of its beginnings . 2 One must be willing to
take one step at a time and to be mindful that the great
institutional creations of medieval England were not the
products of purposeful building for the future, but that
1 See above, pp. 116-118.
1 “When states are departed from their original Constitution, and that
original by tract of time worn out of Memory; the succeeding Ages view¬
ing what is past by the present, conceive the former to have been like to
that they live in; and framing thereupon erroneous propositions, do like¬
wise make thereon erroneous Inferences and Conclusions.” Cited from
Sir Henry Spelman’s Of Parliaments by Professor Mcllwain in his High
Court of Parliament, p. 166. The latter comments; “In no. nation’s his¬
tory has this been more true than in English history, and in no part of
Tfriglish history more than in the history of Parliament. The hardest
thing for a historian of institutions to do, and the thing he oftenest fails to
do, is ‘to think away distinctions which seem to us as dear as sunshine’;
and yet, as Professor Maitland says, ‘this we must do, not in a haphazard
fash !™ , but of set purpose, knowing what we are doing.’ ”
337
338 The Period of Constitution Making
they grew slowly through the adaptation of means to
immediate ends, that there was a careful preservation of
the valuable things of the past and a spirit of caution
and compromise which allowed to each of several con¬
tending interests its due consideration, and that physical
environment and many things which can be ascribed to
nothing but pure chance played important parts.
It has been shown that the great cou ncil was mainly
feudal; but unlike the feudal courts of other lords it
might at times contain men who were not tenant s-in-
chief, for the king was more than suzerain. This sum¬
moning of others was particularly marked in the reign of
Henry II., a king whose rule was so vigorous and all-
embracing that he needed a variety of counsel. From
the beginning, the will of the king was an element in
determining his court's make -up. The class of king’s
vassalsTn^ESpand was very diverse within itself; while
it contained all of the very great landholders, there were
also within it many small holders. Probably from the
time of the Conqueror, there was some recognised cleavage
between those who held much land of the king and those
who held little. In the reign of Henry I., the great ten-
ants-in-chief, who led their own vassals to the feudal
host, received a special form of summons to the host,
and there was probably ^corresponding difference in the
for m of summons to c ourt s ervice; at any rate there was
sudk a difierenceTnTHenry II.’s reign. Hence arose the
distinctions between the major ba rons and th e mi nor
borons, of whom we begin to hear.in the twelfth century. 1
Attendance in the king’s court was not regarded as a
privilege, but as a burden in most instances. This was
especially true of the minor barons who were less able to
1 Baron was not a title of dignity, but a term applying to all who held
land of the king on the basis of military service. Only the major barons
held, baronies (a. barony normally equalled 13 )4 knight’s fees). On the
original meaning of baron, see Maitland, C. H. E., p. 65. Finally the
word became solely applied to major barons; but vagueness in its use
lasted long. “The bat ones of one clause of the great charter seem to be
the barones majores of another.” See also J. H. Round, “Barons” and
“Knights” in the Great Charter in Magna Carta Commemoration Essays.
Parliament
339
bear the expense and who found little at the court to
profit or attract them. They were coming to regard
military and court service, their strictly kudal duties*
as burdensome* and were giving more attention to their
lands with a view to making them financially profitable;
their interests were becoming localized . 1 The different
methods of summoning major and minor barons received
formal recognition in article fourteen of Magna Carta,
which was undoubtedly the work of the barons whose
interests it favoured . 2 An individual summons was to
be sent to the greater barons, while to all the lesser ttn-
ants-in-diief was sent a general summons through the
sheriffs. This latter was.generally regarded as permis¬
sion to stay away, which was what the minor barons
wished. The make-up of the great council came to be
quite dependent upon the will of the sovereign and
tenancy-in-chief less^ a basis for attendance, though it
did not disappear for centimes; in other'words, peerage
by writ of supimpns was taking the place of the feudal
principle in determining the composition of the king's
court.
The question naturally arises whether there was in the
thirteenth century a distinct class of major barons who
might always expect the special summons or whether
receipt of the summons determined membership in the
class. As in most medieval institutions, one finds here
vagueness and irregularity, where he might expect adher¬
ence to a fixed principle. In Henry III.’s reign, there
were certainly many barons so great and powerful that
they would always expect or demand a summons. In
the meeting of 1255, for instance, complaint was made
that all had not been summoned who, by the provision
of the Charter, should have been. On the other hand,
the special summons made its recipient a major baron
1 See below, pp. 347-350. , .
a But it is to be doubted that they had in mind the formulation of a
general rule for all meetings of the great council; strictly interpreted the
rule is made to apply only to meetings summoned for the purpose of grant¬
ing an aid or a scutage.
340 The Period of Constitution Making
if he had not been one before . 1 But attendance was felt
to be a burden except in cases of special interest, as* when
an unusual’aid was demanded; and there were instances
in the thirteenth century when the lesser tenants-in-chief
attended for such reasons; certainly they always could
attend. 2 It was doubtless for this reason that article
fourteen of the Charter provided for a statement in the
summons of the business to be transacted, that the timo
and place of meeting be clearly indicated, and that the
summons be sent at least forty days in advance. The
personnel of successive meetings varied much; for the
distinction between major and minor barons was not
sharply drawn, and there was a wide province between
the very large and the very small holders in which the
king’s will acted freely. This remained the condition
until well into the reign of Edward III.; there could be
no change until attendance upon a central assembly had
become a thing to be desired. 3 The capriciousness of
^ 1 u Thus we seem to be involved in a circle—who is entitled to the spe¬
cial summons? He who holds a barony. But what estate is a barony?
One which entitles its owner to a special summons.”—Maitland, C H.
p. 81. The practice of sending the general summons to minor barons
through the sheriffs may have been kept up during the reign of Henry
III. But it was soon abandoned because these men were, with the rest
of the shire, represented through the now regularly elected knights. There
was now no distinction in political status between knights who held di¬
rectly of the king and knights who held of mesne lords.
2 It should be remembered also that when the feudal host was in arms
it could act as a great council; knight service and court service were what
vassals owed their lord and there was no reason why the two could not
be combined^ upon a single occasion. On such occasions many minor
tenants-in-chief would be likely to be present.
^ Maitland has commented instructively upon the barons* “right” to
attend the “parliament” of 1305: “We must put duty in the first line,
right in the second. We have learnt to do this when discussing the con¬
stitution of those county courts which send knights to the house of com¬
mons; must we not also do it when we are discussing the constitution of
the house of lords and of the council? In 1305 the baron who had come
frorn Yorkshire or Devonshire, had been compelled to stay three weeks in
London at his own cost, for he was paid no wages. Did he very much
want to spend another three weeks there hearing dreary petitions concem-
mg the woes of the Scots and Gascons? At a later time a desire for polit¬
ical power or social pre-eminence will make the English baron eager to
insist on his right to a writ of summons, eager to take a part, however
subordinate, m all that is done by the house of lords. But in Edward L’s
day the baronage is hardly as yet a well-defined body, and it may be that
there are many men who, unable to foresee that their ‘blood* is being
Parliament
Mi
the king’s summonses shows that no new principle that
would make a regular and self-conscious assembly was
being introduced.
The change began as a result of Edward III/$ con¬
ti nuous demands..for money and the increasing business
brought before the barons; they were vitally concerned
in the money grants and in some of the other business,
and the g rowi ng activity and responsibility of the assembly _
graduallybegot’Tdeas of political power and honour.
Late in Edward libs reign, the barons had first spoken
of themselves as geers of the realm and this is perhaps the
first indication that "honour was being attached to the
old burden of suit of, court./ If a baron received one
summons, he began to expect another at the next meeting.
He by no means always got it, but the tendency of the
fourteenth century was away from capricious summonses.
And if he continued to receive summonses throughout his
life, it raised the presumption that, after his death, Ms
heir would receive them, for it was an age when all valu¬
able rights were likely to become hereditary.* But the
conditions of Edward III/s reign did not last; any notions
of political prestige connected with summons to a great
council were not deep-seated, and throughout the fifteenth
century the old feeling that attendance was a burden was
often uppermost. Yet the fuller meeting of the old
king's court was being metamorphosed into an assembly
which peers attended on the basis of a hereditary" dignity
without reference to tenure. 3 The change was not
* ennobled* for ever and ever, are not best pleased when they receive a
writ which tells them that, leaving their homes and affairs, they must
journey and labour in the king’s service, and all this ^ at their own cost.
Thus for many years one great constitutional question can remain _ in
suspense. It is not raised, no one wishes to raise it. So long as the king
does not impose taxes or issue statutes without the consent of the baron¬
age, the baron hopes that the king will mind his own business *and it is
his business to govern the realm) and allow other folk to mind theirs* 0 *--
Introduction to Memoranda de Parliamento, pp. lxxxvi., Ixxxvii.
1 Pike, Constitutional History of ike House of Lords f p, 109^
2 This was not regarded as a binding rule at any time in the middle
ages. See Pollard, Evolution of Parliament t p. 99.
3 When in later times baronies came to be alienated, /he question arose
whether the right to sit in the House of Lords went with the land to the
342 The Period of Constitution Making
complete in the reign of Richard II., for relics of the old
feudal, tenurial basis lasted a surprisingly long time; but
a comparatively small and quite compact body of heredi¬
tary peers had taken shape.
While it is true that fourteenth-century peers attended
what we may venture to call the House of Lords (it was
first so called in the reign of Henry VIII.) because they
received writs of summons from the king, it should be
remembered that they were barons by tenure already.
The writs did not make them barons; to use the old
terminology, they made them major barons, or, in lan¬
guage more suited to the time, the writs did not deter¬
mine who should be barons—which was still a ma tter of
tenure—but which of the barons should be peers of the
realm. As all the peers were barons, it was natural that
the inheritance of the dignity of a peer should be regulated
by the rules which applied to the inheritance of fiefs.
Hence in default of male heirs, the dignity might pass,
like the barony, to an heiress. No peeress was ever sum¬
moned to the House of Lords , 1 but she might confer
upon her husband a presumptive right to the king’s writ
of summons. In the later middle ages, there were man y
instances in which the husbands of such heiresses were
summoned to Parliament as peers.
A change took place in the fifteenth century which
eventually brought to an end this method of transmitting
a peer’s dignity and which was the last important step
new family. It was decided that it remained in the old family notwith¬
standing the alienation.
1 Perhaps the nearest approach to the summons of a woman to Parlia¬
ment was the case of “four abbesses who in 1306 were cited to a great
council held to grant an aid on the knighting of the Prince of Wales.”—
Maitland, C. H. E., p. 168. But a chronicler in 1265, writing of the parlia¬
ment held just after the battle of Evesham, states: “At the feast of the Exal¬
tation of the Holy Cross a great parliament was held at Winchester, to
which were called all the magnates of the land, and all the wives of the
earls, barons, and knights killed in battle or remaining captives in prison.”
Annates Monastics, ii., 366. The Waverley Chronicle, in which this state¬
ment is made, was contemporaneous from 1219 to 1266 and is regarded
as one of the chief authorities for Henry III.’s reign, especially for the
time of the battle of Evesham. Lacking the summoning writs and like
statements in other chronicles, we must probably always remain in doubt
about the Waverley Chronicler's accuracy on this point.
Parliament
343
in the structure of the modem House of Lords. It had
become the practice, by the end of the fourteenth century,
to create titles of dignity by letters patent; these were
open letters which differed from charters only in their
less formal attestation. The title of earl had been con¬
ferred in this way since Stephen’s reign, and the new
titles of duke and marquess were so conferred in the
late fourteenth century, and viscount in the fifteenth. 1
In the letter creating the title, it was possible to regulate
the succession of the title. In 1387, was the first and,
for a long time, the only instance of the creation of a
baron by letter patent; this baron was also declared by
the letter—and it was the object of his being made
baron—an hereditary lord of Parliament. Such creations
became common in the reign of Henry VI. It was a time
of bitter strife among the nobility, and it was often found
useful for the party for the moment in power to be able
to raise men to the peerage who did not happen to be
barons. By the end of the century, it had become the
normal method of creating peers. The king could
regulate the succession in any way he chose; but in prac¬
tice, the title was made to pass to male heirs only, and
that under the principle of primogeniture. The advan¬
tages of the new system were obvious; heiresses could
no longer confer the dignity of a peer upon their husbands
and thus carry it into new families which might not be
agreeable to the king or the existing peerage, and the
king was now able not only to make a baron a peer, but
any one. It seems clear, however, that these advantages
were not seen at first; personal and immediate motives
ruled, especially during Henry VI.’s reign when the letters
* The first dukedom was created in 1337 by Edward III. for his oldest
son. His other sons were later made dukes. In 1397 Richard II. com erred,
the first dukedom outside the royal family. He also made tee first ir.ax-
auess These titles were adopted from the continent; _ they gave social
precedence, but had no legal standing. They "implied no territorial
power or jurisdiction over the place whence the tit.e was derived. Jbven
the old title of earl, though always taken from a county or countv town,
had long ceased to imply anything of the sort % ^—Mait.and, C. H 166,
167. The titles in order of importance were du&e, marquess, ear., viscount.
344 The Period of Constitution Making
patent were, so to speak, becoming the fashion. A
gradual recognition of the broader advantages kept them
in fashion. 1 It is obvious that through the use of letters
patent the term baron would gradually lose all its old
feudal meaning. 2
Here a query necessarily arises concerning the spiritual
lords. No principles of inheritance could apply to them.
How were they faring during these changes? Bishops
and abbots had been summoned to jthe king’s/feudal
court by virtue of the baronies they held, that is", because
they were tenants-in-chief. They were major barons in
the twelftii-century sense; and they were wise and.in¬
fluential, and hence important as counsellors. Though
the king’s will continued to determine who were to be
major barons, the bishops received the writs of summons
with practically unbroken uniformity; their importance
tenurially and otherwise, placed them beyond question!
But with the abbots and priors who were barons, the
king exercised the same capriciousness as with the lay
barons of corresponding grade. Also, as with theTay
barons, the capriciousness decreased under Edward III.-
certain abbots and most priors were scarcely ever sum¬
moned. The abbots as a class were disinclined to attend. 3
When the barons began to call themselves peers, the
prelates were considered as fully peers as the lay barons,
for the technical basis of their attendance was the same.
This continued to be the case until well along in the
fifteenth century. But a different conception finally
1 The Crown actually used its power of creating peers to overcome an
adverse majority in the House of Lords in 1711. The Tory ministers who
negotiated the Treaty of Utrecht did not control the House, and Queen
Anne created twelve peers (calling up three eldest sons and creating nine
new peerages) to give them a majority. In 1832 a threat of creation
served to pass the Reform Bill through the Lords, and the sam.. wa s true in
the case of the Parliament Bill of 1911.
subject of the new titles of dignity and the letters patent, see
otubbs, Constitutional History , § 428.
3 tfnder Edward L there were seventy-two abbots that at one time or
another attended his assemblies—sixty-seven in the “Model Parlia¬
ment. This number fell to twenty-seven under Edward III., and this
remained the number until the dissolution of the monasteries. See below.
PP* 345 » 370 - 373 , 37 6, note 1.
Parliament
345
arose as a result of the clergy’s inability to share fully
the judicial work of the Lords . 1 They could not be
present when judgment was passed involving loss of life
or limb s for the canons forbade it; and tiny held aloof
from their right to be tried by their peers through their
strict adherence to the principle that no lay court could
try them , 2 Hence the idea gradually took shape that
they could not be regarded as peers, while they were
certainly lords of Parliament, After the dissolution of
the monasteries in Hc-nry VHIds reign the bishops were
the only prelates in the House of Lords* and in 1692 a
formal declaration was made by that House that bishops
were not peers, but only lords of Parliament. The
fifteenth-century change from writs of summons to letters
patent could have no effect upon the prelates, for no letters
patent could create them; their right to attend Parliament
always drew its sanction from their ancient baronies.
In view of later history we are especially interested in
the meetings of barons or peers which were summoned
at the same time as were the representatives of counties
and boroughs and we think of these lords and commons
as the later recognised ‘"houses” of Parliament, and
almost perforce speak of them as such. But a contem¬
porary could not think of a "‘house” of lords when the
lords so often met as a great council by themselves . 5
Especially in the fifteenth century when there were fewer
Parliaments than in the century before were such great
councils frequent. They were probably often regarded
as an increase or affording of the king’s ordinary or per¬
petual Council' — the difference in numbers was not very
great—and in these two bodies the fifteenth century
nobility sought to control the king. 4
The number of lay lords summoned during the four¬
teenth and fifteenth centuries averaged from forty to
fifty or a little over; the spiritual lords numbered a few
x See above, pp. 231, 232.
a “It is a very doubtful question what would now happen if a bishop
committed felony or treason.”—Maitland, C, IL E. f p. 171.
a See below, p. 372 and note 1. « See above, p. 207.
346 The Period of Constitution Making
more. But often, especially during the Wars of the
Roses, the number of lay members fell considerably below
this, leaving the prelates in a majority. 1 The dissolution
of the monasteries in the next century gave a permanent
majority to the lay members.
2. Why there was a Middle Class in England. Rep¬
resentation and Popular Election.—Having seen the
structural transformation of the great council into the
House of Lords, we begin the study of the House of
Commons by enquiring into the conditions which made
possible the adding of new elements to the changing
central assembly. The addition was made in the thir¬
teenth century and the new elements represented a great
middle class. What was this middle class? It will be
remembered that at the time of the Norman Conquest
English society was in a peculiarly unsettled condition.
Many freemen were being depressed in status and were
taking on characteristics of servility. With some the
change had gone so far that they might well be ranked
with the servile classes; others were in a doubtful, inter¬
mediate position. Unquestionably forces were at work
which looked toward that complete disintegration of the
non-noble, free class which was taking place upon the
continent. But the important point to note here is
that the process had not been completed in England and
that the Norman Conquest was reached with a consider¬
able body of non-noble freemen, a true middle class, still
existent. The immediate effect of Norman clear thinking
and vigorous action upon the broad Anglo-Saxon class
which lay between the manifestly servile and the noble
was to push many individuals farther down than they
had been before, and, on the other hand, to render the
1 The number of lay lords was never over fifty tinder Henry IV. , and
only once reached forty under Henry V. Under Henry VI. the minimum
was twenty-three and the maximum fifty-five, and in Edward IV. ’s reign
the maximum was fifty. In the fifteenth century the number of abbots
summoned was down to twenty-seven, but with the two archbishops and
the twenty-eight bishops there were fifty-seven spiritual lords when all
attended.
Parliament
347
free status of the remainder more distinct. Surviving
the Conquest, and, in a manner, created by it, was a
class of non-noble freemen. 1
A second source of the later middle class lay in the
lower orders of the nobility. These consisted of the
numerous small tenants-in-chief, the so-called minor
barons, and the small sub-tenants of the king's greater
vassals, or, where the feudal hierarchy extended so far,
the tenants of sub-tenants. Any of these might hold
only a single knight's fee. or perhaps not even the land
requisite to a knight and be reckoned as esquires. As
the twelfth century progressed, a split appeared in the
nobility; the interests of these smaller holders were
becoming differentiated from those of the greater barons.
The strong Norman and Angevin kings, who made wars
to cease and kept order in the country, were cutting the
lesser nobles off from their feudal activities. Where
there was subinfeudation and knight service was owed to
others than the king, the contract was as clearly present
as between the king and his knights; but English kings
were soon able to bring it to pass that no man could use
his knights in a private quarrel. “The only quarrel in
which anyone is bound to fight is the king s quarrel.
And the acceptance of scutage from the knights was
exempting them from service in the king s foreign wars.
Fighting with their neighbours was the normal occupation
of small feudatories; if they could not do this, there was
nothing left but to stay at home and attend to their
estates. The possibility of increased revenue from their
estates began to suggest itself; the financial side of their
position absorbed more of their attention; they were
soon on the way to landlordism. This change brought
1 The free classes outside the boroughs are particularly in mind here,
for it was in that part of the population that the principle of r^r^enta-
tion and election, important m the origin of the House cu Commons, are
first seem But it should be remembered that the burgesses were largely
of free origin, and that burgage tenure was a variety of free socage,-the
characteristic tenure of the non-noble free classes. For an account of das
conditions in the twelfth century ; see above s Part JUL, f 1 .
348 The Period of Constitution Making'
them into closer contact with the class next below them
and their interest became more identified with their
localities. There thus began, as early as the twelfth
century, the process by which the lower orders of the
nobility in England were dissociated from the higher and
approached the non-noble freemen.
Besides these results of their stern rule, there must be
noted the effect upon the whole nobility of what may
possibly be termed a policy of the post-Conquest kings.
They were able to keep any class of nobles from gaining
such immunities or privileges as to mark it off in the eyes
of the law from the other freemen.
Our law hardly knows anything of a noble or of a gentle
class; all free men are in the main equal before the law. For
a moment this may seem strange. A conquered country is
hardly the place in which we should look for an equality,
which, having regard to other lands, we must call exceptional'.
Yet in truth it is the result of the Conquest, though a result
that was slowly evolved.
With the strange complex of classes left from Anglo-Saxon
times, a strong king could do what he pleased.
• - . he can make his favour the measure of nobility; they
are noble whom he treats as such. And he does not choose
that there shall be much nobility. Gradually a small noble
class is formed, an estate of temporal lords, of earls and
barons. The principles which hold it together are far rather
land tenure and the king’s will than the transmission of noble
blood. Its members have political privileges which are the
counterpart of political duties; the king consults them, and
is in some sort bound to consult them, and they are bound
to attend his summons and give him counsel. They have
hardly any other privileges. During the baron’s life his chil¬
dren have no privileges; on his death only the new baron
becomes noble. 1
But this is using the word noble in a narrow and English
sense. The formation of this new and limited nobility
1 P. and M., L, 4.09.
Parliament
349
will be recognized as the evolution of the House of Lords.
It was a nobility that did not tend to increase, for the
title went only with the tenure and the tenure was becom¬
ing strictly primogenitary.
The early prevalence of the primogenitary principle
was also a result of the Norman Conquest, Primogeni¬
ture originated in feudalism. The overlord wished a
certain and undivided source to which he might look for
the service owed by the fief; the vassal would naturally
divide his holding equally among his sens. Owing to
this clash of interests, the growth of primogeniture was
slow and was not completely established in Normandy
at the time of the Conquest, The Norman kings of
England had far more vassals than any other English
overlord and tvere therefore more interested in the en¬
forcement of the principle. They were strong enough to
enforce it, and were strong enough not to be afraid to
enforce it, that is, they had no vassals so powerful that
they were tempted to favour some principle of partition
in order to weaken them. Thus England got in advance
of the other countries of western Europe in the adoption
of primogeniture as the rule of succession in land law 1 ;
and the younger sons of barons lacked both the baronial
tenure and the baronial title. They went to swell the
class of low r er nobility, which in England is properly
termed gentry, a word which indicates nobility. For the
gentry were of noble blood and performed only honourable
services for their lords. In any country but England,
they would have been reckoned every whit as noble as
the greatest barons. But the strong kings in England
had formed at the top of the general body of nobles a
select number, who, being the only ones in possession of
political and legal privileges, came finally to be reckoned
the only nobles. Thus the gentry were distinguished
from the non-noble freemen only by their noble blood,
1 Like some other features of feudal tenure, primogeniture began to
affect the freehold tenures. u It belongs in origin to a military system;
slowly it spread from the military tenants to the socagers, it ceased to be
the mark of a class, it became common law.’*—Maitland, t, H. B.% p. i$7*
350 The Period of Constitution Making
which carried with it the social privilege of wearing coat-
armour, a practice which arose in the twelfth century. 1
The characteristic member of the class of gentry was
the knight. But the younger sons of a knight might
never attain to knighthood either in tenure or title.
Title is mentioned, for there were knights—often those
knighted on the field of battle—who were not holders of
the knight’s fee; on the other hand, there were those
who possessed knight’s fees who had never been dubbed
knights. The divorce between tenure and status 2 showed
itself everywhere, and intermarriage might easily occur
between gentle and simple; notwithstanding the use of
coat-armour the line between the gentry and the non¬
noble freemen was often blurred, and there was a sharper
line of demarcation between the greater and lesser nobles.
Upon the continent, there was a great gulf between the
pettiest noble and the class below; in England, there was
a narrower chasm at this point with many means of
crossing.
The sources of a substantial middle class in England
(without taking into account the borough population)
may now be summarised: a non-noble, free class survived
the Anglo-Saxon period; the Conquest resulted in makin g
the status of a portion of that class more distinctly free;
there were many small nobles after the Conquest; the
masterful post-Conquest sovereigns deprived these nobles
of their important feudal traits, made them landlords in
close touch with their localities and the class below;
royalty also allowed no legal advantages to the nobles
as a whole, but made a small class of hereditary coun¬
sellors a nobility in a special sense, and finally the only
nobility; the gentry, thus lacking the name and dis¬
tinguishing marks of a nobility, more readily approached
1 It must not be supposed, of course, that the kings contributed to this
change with the conscious intent of fashioning a unique nobility in Eng¬
land; they acted merely as it suited their purposes to deal from time to
time with this important part of their population. The thing was done
before it was understood what was done.
* See above, p. 95.
Parliament
35i
local interests and the class of freeholders, and the move¬
ment was further aided by the characteristic English
breach between tenure and status and the early triumph
of primogeniture*
In the second half of the twelfth century, the local
activity of knights and freeholders in judicial and revenue
matters strikingly illustrates the common interests of
the two classes and probably itself contributed to thrir
approach. In it lay the origin of the machinery which
later suggested the calling of local representatives to the
centre. With its consideration, wc take up the second
part of the theme; having noted the conditions which
made a true middle class, we next consider the line of
development which led to its representation in a central
assembly. When Hear } 7 II. incorporated the sworn
inquest in the procedure of the royal courts and outlined
the work of a presenting jury, he furnished an appro¬
priate sphere of activity for a middle class, a class ac¬
quainted with, and interested in, the affairs cf the locality, *
The sources leave one in no doubt about the people
employed upon these early juries; they marly always
specify knights or free and lawful men. Towards the
end of the century, the language often indicates that
knights were preferred. These men were regarded as
representing the knowledge and opinion of their neighbour¬
hood; indeed, their representative character when they
acted in these capacities was always marked . 3
1 See above, pp. 156-158. , .
2 “The sworn inquest seed found a favourable soil m England.^ 4 It was
sown... ‘ ~ “ “**“*'' “*
at the i
ine sworn in quest secu luuuu a auu iu, t
in a country where there was a fairly large class of men which was
2 same time! respensibk, welt-informed, and hcnesL The three quali-
and sometimes truth-telling, would not have a wile range cf information
able for perjury. ~-~ ~-- ~ .. .,
more often combined. And England, m the centuries following the Aor-
man Conquest, had more such men. England had a middle class. —
W. and N., p. 36.
352 The Period of Constitution IVialSllg
But the sworn inquest in its non-judicial use also con¬
tinued, and was receiving a great extension about the
end of the twelfth century. In the Assize of Arms, 1181
a jury of “lawful knights or other free and lawful'men”
were to assess their neighbours’ wealth with a view to
determining their proper military equipment. 1 This
was in principle the same thing as to assess them for
taxation. By the Ordinance of the Saladin Tithe, 2 1188
the same method of assessment was to be used when a
man was suspected of having paid less than he ought
In this instance, it was in connection with a true tax'-
and from this time, assessing juries were increasingly
employed for the new personal property taxes. The
itinerant justices’ commission of 1194 3 shows the great
variety of the information elicited from the knights and
lawful men of the hundreds, much of it of a non-judicial
character. In this tame document, is the first official
mention of coroners, who had been in existence since
some time in the reign of Henry II. The coroner was
then in the first stage of his development, a minor local
justice who disposed of many small criminal cases and
held preliminary hearings on more important ones
preparatory to the visitation of the justices . 4 The
coroners were regularly drawn from the class of knights.
Thus there is much evidence that, if the knights had with¬
drawn from the camp and the court, they were finding
plenty to do at home, and that the king regarded them
and the class next below them as most useful in develop¬
ing his court system, his revenue, and the general efficiency
of his local control. Indeed as soon as the enrolled royal
letters. (the enrolment began early in John’s reign) lift
the veil on the detail of local administration, one mar¬
vels at the variety of information and service which
the king was getting from the people. In his own in¬
terest he was making the people assume burdens and
l 4 ; p. 24; W. and N., pp. 90, 91.
• . Mi. » pp. pp
Parliament
353
responsibilities without number. It was the English
method. 1
In these dealings with the middle class, the kings were
developing little by little a representative machinery and
were certainly becoming conscious of it as such. Some¬
thing of the representative idea is present in almost any
kind of government, and it is useless to seek the origin of
so general a principle. But there was a gathering .of
things more specific along this line in England the
tithingman represented the tithing, the lord or steward
represented the manor in the local courts or when they
could not the reeve and four men did, and every kind of
jury represented its neighbourhood—it was the neigh¬
bourhood's knowledge or opinion or both that the juries
furnished. While there is much of the principle of repre¬
sentation in medieval church polity, yet in England its
rise and gradual -working out to a conscious principle in
government lie quite clearly outside the church, and
nothing contributed so much to its growth as the phe¬
nomenal use of juries of all kinds from the reign of Henry
II. 2 Popular election is not a necessary accompaniment
x “Norman and Plantagenet rulers were learning much about local
institutions and conditions—about hundred and shire courts, about t tith¬
ing and frankpledge, about the boroughs, about freeholder* and knights.
They saw always more work to do, more information to be sought, new
ways to develop their courts, to swell their revenue, to keep the country in
peace. The work was so varied that all sorts of men, official and unoffi¬
cial, might be employed. Some of it, indeed, could be better done by
unofficial means; there were temporary and isolated jobs in plenty. And
so in this turbulent time, when the crash of the Conquest had broken bar¬
riers and opened ways and England was making ready for her next great
reach forward in civilization, these new relations between center and local¬
ity were big with possibilities. Knight and freeholder—the stuff out cf
which the House of Commons was made—had entered upon their appren¬
ticeship in public service; and many principles and devices were being
hammered out in the daily practice of local administration which had an
unguessed future before them in the broader sphere of national polity. —
Yet its presence m the church surely favoured its growth; the king’s
great advisers and administrators were churchmen. Perhaps the earnest
clear expression of the representative principle in connection with the royal
administration in England was when Henry II. summoned the prior and
14 five or more of the more discreet and wiser*’ monks from each of twelve
vacant abbeys to meet with him for the purpose of electing abbots, and
instructed these representatives to bring with them “letters of the con-
354 The Period of Constitution Making
of representation, and surely did not accompany it at
this time. The representative juries were used by the
king, and their choice by a royal officer would, in most
cases, in no way incapacitate them for uttering the
knowledge or opinion of their neighbourhood. For it
must be clearly understood that for centuries after this
there was no thought of repiesentation or popular election
as governmental methods to be used by the people for
their purposes in government. The whole early devel¬
opment of popular election in England was by the kin g
and to serve his interests.
Elections by groups of people were probably known to
the Anglo-Saxons—the manorial reeves were chosen by
the villagers, no one knows how far back, and as soon
as there were tithingmen they were probably elected by
their tithings. But the line of development which led
to elections to Parliament, to election and representation
as a notable feature of government, began with Henry II.
He was exalting the jury and he was suspicious of the
sheriff. Juries dealing with extremely important matters,
matters touching property and permanent rights, might
not safely be left to the direct and uncontrolled choice of
vent to the effect that the others who remained at home would regard as
valid whatever he [the prior] and those who came with him might do."
See W. and N., pp. 89, 90. But the whole local administration, especially
where the king touched it, was becoming shot through with the representa¬
tive method. Indeed there could be no wide use of the people in govern¬
ment in such a country as England without representation, and the Plan-
tagenet kings were determined to use the people widely. See above, Part
III., § II., 4. See E. Barker, The Dominican Order and Convocation, for
an attempt to prove that Parliament derived its representative principle
from the orders of Friars. Professor G. B. Adams has this to say of the
origin of representation: "Scholars have not yet come to an agreement
among themselves as to the source from which the Idea embodied in
the representative system, as we understand it, was derived. It seems
altogether likely that the final decision will be that the idea was derived
from one source and the institutional forms, through which it was given
expression in the constitution of the state, from another. At any rate it
seems certain that the representative idea is first to be found expressed,
in language which conveys something like the modem meaning, in docu¬
ments relating to the synods and councils of the church. On the other
hand it is equally clear that the preliminary, formal steps by which non-
feudal representatives were introduced into the great council were taken
entirely free from influence of the church ."—Constitutional History of
England^ p. 173.
Parliament
355
the sheriff. Such were the grand-assize juries, juries
which determined in perpetuity between litigants the
better right to land . 1 Apparently from the start the
choice of this jura’ was removed one step from the sheriff:
four knights, tmdoubtedly named by the sheriff, chose
twelve knights, usually including themselves . 3 Th ; s
was a momentous beginning. In those great general
iters which were beginning late in the twelfth century,
the hundred juries often had to give inform,at ion upon
revenue and general administrative matters which would
closely touch the sheriff's work. Note the way in which
such juries -were to be chosen for the great iter of 1194:
In the first place there are to be chosen four knights from
the whole county, who upon their oath shall choose two
lawful knights from each hundred or wapentake, and these
two shall choose upon their oath, un knights from fine sev¬
eral hundreds or wapentakes; cm if knights he kicking, law¬
ful and free men, so that these twelve may at the same time
make answer upon all the heads fer the whole hundred or
wapentake.
These jurors were put a step further from the AeriftA
The reference to the coroners in this same commission to
the itinerant justices in 1194 is in these words: * 4 More¬
over, in each county let there be chosen three knights
and one clerk keepers of the pleas of the crown. As
has been shown coroners were made for the purpose of
cutting in on the sheriffs’ powers . 4 We only need to go
a little ways in the thirteenth centum’ to find proof that
coroners were regularly elected in the county courts, and
it is probable that they were so elected from the start.
1 See above, p. 148. , , ,
2 In practice they often chose sixteen, sometimes as many as twenty,
to provide against the challenges of the tenant who might tot hepresent
at the election. Sometimes six or more electors were named by the therm,
bU i band & ^document 21: W. and X., pp. oa, 93 ; One must readthr-oug
the articles of this eyre to understand the king $ anxiety *o ge. impartial
juries, free from shrieval influence.
4 See above, p. 196.
356 The Period of Constitution Malang
This seems to have been the earliest connection between
the local use of representative knights for governmental
purposes and popular election. 1 By the time of Magna
Carta, undoubted instances are found of the popular
election of knights for various local purposes. In article
18 of the Charter, there is mention of “four knights of
the county chosen by the county,” who were to act with
the itinerant justices in holding the possessory assizes.
The last word in the quotation might well be translated
“county-court,” as the Latin comitatus means that also,
and the county court was the only assembly through which
the county could act. In article 48 of the same docu¬
ment, in providing for an inquisition into the bad forest
customs, it says that these “shall immediately be en¬
quired into in each county by twelve sworn knights of
the same county, chosen by the honest men of the same
county.” This language admits of no doubt that there
was election in the county courts. As a final example,
and one cf much significance because it relates to the
use of knights in assessing and collecting a tax, the
language of a writ of 1220 for collecting a carucage may
be cited. It is addressed to the sheriff of each county:
. . . two shillings, to be collected by your hand and the
hands of two of the more lawful knights of your county,
who are to be elected to do this by the will and counsel of all
of the county in full county court. And so we command you,
firmly and strictly enjoining that, having summoned your
f ull county court, by the will and counsel of those of the
county court, you cause to be elected two of the more law¬
ful knights of the whole county, who shall better know, wish,
and be able to prosecute this business to our advantage;
and having associated them with you, you are immediately
1 “The machinery for the election of coroners seems to have been the
mould which shaped the representation of the shires in parliament; the
coroners were prototypes of the parliamentary knights of the shire. Elect¬
ed knights of the shire were also employed for other local purposes, but
in a more casual or transitory way than in the case of the coroner. This
latter office was a permanent institution, which must have helped to habitu¬
ate the nation to the idea of county representation.”—Gross, Select Cora -
ners* Rolls, p. xxxv.
Parliament
357
to cause that grant to be assessed and collected from the sev¬
eral ploughs throughout your whole bailiwick, , . . 1
Just this method of assessing and collecting a tax was
far from permanent, but the use of local knights for these
purposes was permanent and was big with possibilities.
The Norman kings had never been wholly satisfied with
the sheriff. They had kept this part of the Anglo-Saxon
system as something which promised to be useful in
conducting and safeguarding the royal interests and
because he resembled the Norman vicomie; but the sheriff
was resident in his shire, and was usually a great noble
with landed and other interests there; he was subject to
the influences, always potent in the middle ages, which
tended to destroy the really public character of the resi¬
dent official. Henry I. and Roger of Salisbury had begun
to use the itinerant justice to oversee the sheriff and take
part of his work from him. The shortcomings of the
sheriffs in Henry II.’s time and what the king thought of
them is well shown in the famous “Inquest of the Sher¬
iffs”;’ and although fewer great nobles were appointed
to the office afterwards, the possibility that public in¬
terests would be neglected for private interests still
existed. The knights or others, when chosen for the
purposes just discussed, were doing king’s business; they
might be called upon to tell about the doings of the
sheriff himself. Doubtless the king came to feel that
some form of popular choice was a safer way of obtaining
these representative men and of being certain of an
unbiassed statement from them. A machinery was
developed, largely independent of the sheriff, for learning
the truth about local affairs, getting at the locality’s
needs, and hearing its complaints. 3
1 A. and S., document 30; W. and N, f p. 96.
2 Ibid., document 15 and pp. 88, 89. . _ .
3 Speaking of election, Professor Pollard {Rmmtm of Parmment, p.
152) penetratingly comments: “Election does not, in the middle ages,
reveal the person of the elector, and means no more than the selection by
the persons authorised to select. It is a matter of cosnxnon knowledge
that knights of the shire ware selected in the county court, but by whom
358 The Period of Constitution Making
3. Origin of County Representation in a Central
Assembly. 1 —Having seen some of the local uses to which
the king was putting knights and other freemen, the next
development to be examined is the gathering together of
local juries at some central point and the earliest appear¬
ance of such collected groups in connection with the
king’s council, small or large. As the king was question¬
ing or consulting local men with increasing frequency
upon all sorts of subjects, cases would be bound to arise
in which there would be economy of time and effort in
gathering groups to one point and carrying on the business
en masse rather than for the king or his commissioners to
travel about and talk to each group or jury in its locality.
Such a method was bound to suggest itself early and there
was no reason why the king should not adopt it. Almost
as soon as the royal letters begin to be recorded in John’s
reign, they furnish us with examples of this concentra¬
tion. How much earlier it was used cannot be known—
probably not a great deal, for the instances are very few
early in the reign, but are much more numerous in the
latter part. The scale upon which concentration was
used, the kinds of groups gathered, and the nature of the
business transacted varied infinitely. All that it meant
was that a strong king was carrying on his business as
best suited him. For example, in 1204 he summoned
for the same day and place twelve men to be sent from
each of the Cinque Ports to meet the Archbishop of
Canterbury and the sheriff of Kent “to talk about the
king’s affairs” and “to do the king’s service as directed”;
they were really chosen is merely a matter of surmise." This contains a
truth important to have in mind throughout the early history of parliament
(see below, Part III., § III., 6); and yet it seems that in his treatment of
election Professor Pollard neglects the evidently purposeful change made by
the king in the method of selecting local unofficial agents to do his work.
As the thing worked out in practice there must have been some lessening
of shrieval influence as a result of these various county-court selections
which he used. Otherwise it would be impossible to account for the long-
continued and careful insistence upon them; there must have been obtained
as a rule some expression of the popular estimate or will—not that the
people were seeking it, but that the king wished it and must certainly have
believed that he was getting it.
1 W. and N., Problem III .—Some Antecedents of the House of Commons .
Parliament
359
in 1207 all those having to do with the coinage, in sixteen
specified cities or boroughs, were summoned to assemble
in Westminster on a day namtd to give advice about
coinage and to hear the king’s command; in 1205 a -cir.-
mons was sent to all the ports in England containing
various directions about shipping and ordering that the
reeve with “two of the more discreet and v;« alt hit r mr n”
of each port be at Portsmouth on a day nam A to nv, el
the king or his commissioners and to answer questions
and show what had been done in each port an-nt the
king’s commands. We are watching such praetk. s
because we know that years afterwards they ltd to pro¬
found changes in England's central assembly, but it is
obvious that anything of this sort was the farthest from
the thought of contemporaries. Two cases of concen¬
tration in 1213 have been much discussed because until
recently they have been thought the earliest and because
they have seemed especially in the line of House-of-
Commons development. On July 21, John, who had
been released from excommunication the day Ik fore,
summoned the reeve and four lawful men from certain
of his demesne vills throughout the counties of England
to meet at St. Albans on August 4 to assess the damages
and losses which the church had suffered at hri hands.
Undoubtedly only those vills were concerned which had
had charge of the confiscated property, most of which had
been seized by the king in 1208. The reeve and four
men would be serving as juries of assessment in this case
and it was evidently thought easier to concentrate the
juries in this nation-wide investigation than to get their
statements in their several localities. The fact that the
meeting probably was not held does not detract much
from its interest; it was certainly in mind, and was a
broad and important application of the concentration
method . 1 The other case is from November, when this
writ was issued;
1 The chroniclers are silent about the meeting, a lend of meeting the
writers would have been almost certain to mention, and later in
360 The Period of Constitution Making
The king to the sheriff of Oxford, greeting. We command
you that all the knights of your bailiwick, who have been
summoned to be with us at Oxford fifteen days after All
Saints’ Day, you cause to come with their arms; likewise
the barons in person, but without arms; and you are to cause
to come to us there at the same time four discreet knights of
your county to speak with us about the affairs of our king¬
dom. Witness myself at Witney, the seventh day of Novem¬
ber.
In the same way it is written to all the sheriffs.
The unarmed barons referred to would evidently con¬
stitute a great council. We cannot be sure that this
assembly met; but whether it did or not its summons is
of more significance than that of the August meeting,
for here all the counties of England were to be represented
by knights, the business sounds public and important,
and county representatives and the great council would
have been meeting at the same time and place. x There
are other less interesting cases of concentration in the
last four years of John’s reign. It was a recognized
method of doing business which the king used when it
suited his convenience.
The method was not forgotten during Henry III.’s
minority, 2 and in 1227 is the earliest known general con¬
centration of popularly elected knights of the shire.
For a year or two there had been friction between sheriffs
and people, especially over the article of Magna Carta
the summer the Archbishop of Canterbury seems to have taken the ini¬
tiative in ordering local inquests on the same subject. Probably from
July 21 to August 4 was too short a time to get such a meeting together,
and of course John was not overly zealous. The summoning writs of this
assembly are not extant, and a chronicler’s account, based apparently
upon a writ which he had before him, is brief and somewhat dubious. This
has caused considerable discussion in recent years about what was actually
intended. See H. W. C. Davis, English Historical Review, xx., 289, 290;
G. J. Turner, ibid. , xxi., 297-299; A. B. White, American Historical Re¬
view, xvii, 12-16, D. Pasquet, Essai sur les Origines de la Chambre des
Communes, pp. 46-52.
1 For further discussion, see American Historical Review , xxii., 87-90;
$25-329.
2 In 1225 the Cinque Ports appeared before the great council in London
by two instructed representatives each.
Parliament
361
which prescribed how the sheriff should hold the county
and hundred courts. On August 13 the following writ
was sent to the sheriffs of England:
The king to the sheriff of . . . greeting. We command
you that in your full county court you say to the knights and
good men of your bailiwick that they elect from among them¬
selves four of the more lawful and discreet knights, who are
to be before us at Westminster, three weeks after the feast of
St. Michael, for the whole county, for the purpose of there
showing the complaint, if they have any, against you in
regard to the articles contained in the charter cf liberties
granted to them; and you yourself are then to be there to
show reason for the demand which you make against them.
. . . And you are to have there the summoners and the
names of the knights . . . and this writ. Witness the
king at Northampton, the thirteenth day of August, the
eleventh year, etc.
This language leaves no doubt that the four knights
were to be regarded as representatives in the sense that
they were to speak for the whole county. It is equally
certain that they were to be popularly elected in so far
as that could be accomplished in the county courts of
those days. And they were to come up from their
respective counties to meet at the same time and place.
Before whom or with whom were they to gather at West¬
minster? The writ gives no hint and the chronicles do
not, but in view of the many activities of the king’s
Council throughout the minority just closed, the kind of
business to be considered at this meeting, the expected
presence of the king, and the place of meeting, it seems
safe to conclude that it was the Council. We read
nothing of a great council meeting on that date.
The main purpose of assembling these knights of the shire
was, it is clear, to get information—information of an unoffi¬
cial sort, the people’s side of the story. . . . They were
juries representing the honesty and knowledge of their re¬
spective localities; and popularly elected in order that this
362 The Period of Constitution Making
their jury character, might not be contaminated by shrieval
influence. But all kinds of juries did more than furnish facts
in a mechanical way; to some extent they judged facts,
even at this date. It is hard to believe that one hundred
and forty knights from all parts of England met at West¬
minster on a mission which must have interested them deeply
without some comparing of grievances, interchange of opin¬
ion, or, if you please, deliberation. And surely the subject-
matter was political. 1
If it became the fashion for the king thus to gather local
representatives, if it was done often enough, some kind
of assembly consciousness was likely to result. But
such things come slowly. In the years following 1227
there were occasional and partial concentrations of
various elements and for various purposes, as in the
period before, usually without popular election or an
important public purpose. But the method was not
forgotten, and in 1254, while Henry III. was in Gascony
in desperate need of money, the regents, in the king’s
name, summoned a meeting of two representative knights
elected in each shire and representative clergy from each
diocese “to arrange what kind of aid they wish to furnish
us in so great need.” But there could not have been
much “arranging” at Westminster, for the writs in the
case of both laity and clergy make clear that the discus¬
sion and real determination of the amount of the aid
were to take place in shire courts and diocesan synods,
and that the representatives were to come to Westminster
with definite instructions. However, here were again
united representation (of a sort), popular election, and
concentration on a nation-wide scale. As in 1227, it
appears to have been the smaller, permanent Council
before which the representatives appeared.
It is interesting to notice that not long before this the
word parliamentum was beginning to be used for meetings
of what we have been calling the great council. Collo-
1 On this general subject, see Some Early Instances of Concentration of
Representatives in England . American Historical Review, xix.. 735-750.
Parliament
363
quium began to be so used in the latter part of the twelfth
century, and continued to be upon occasion. One cannot
help wondering whether the increased business and more
active discussion of the larger, summonc d king's court
were not, from Henry I Ids time, reflected in new descrip¬
tive terms. Certainly the words were appropriate.
The first use of parliamcntnm in this application 7 that
has yet been found was in 1259. From this tinw erp it
was used with gradually increasing frequency, while the
older terms, concilium and colloquium cor.tinmd, 1 2 3 But
it was long before parliament had acquired the meaning
with which one is familiar to-day. Speaking of its use
as late as the end of Edward Ids reign, Maitland says:
A parliament is rather an act than a body cf persons. One
cannot present a petition to a colloquy, to a delate. It is
only slowly that this word is apprepirated to cclkquics cf a
particular kind, namely, those which the king has with the
estates of his realm, and still mere slowly that it is trans¬
ferred from the colloquy to the body of men whom the king
has summoned. As yet any meeting of the kina's e-unci!
that has been solemnly summoned for general business seems
to be a parliament. . . . The personification of 8 * par¬
liament,which enables us to say that laws are made by,
arid not merely in, parliament, is a slow and subtle process . 3
There is no single word or phrase which can adequately
describe the confused parliamentary foreshadowings of
the thirteenth century; this would seem to make it
logically imperative, at every mention of them, to enter
into long and repetitious explanations. 4 On practical
1 Parliamenium was a common enough Latin word ofyhis period for
various kinds of discussions or interviews, formal or informal. It and
colloquium seem quite synonymous.
2 See Early Uses of u Parliamentum” Modem Language Review, yx,
92,93, and Was there a u Common Council 11 before Parliament 4 American
Historical Review, xxv., p. 17.
3 Introduction to Memoranda de Parliament p. lxvii. and note 1.
4 “If we speak, we must speak with words; if we think, we must think
with thoughts. We are modems, and our words and thoughts cannot but
be modem. Perhaps, as Mr. Gilbert once suggested, it is too late for us to
be early English. Every thought will be too sharp, every word will imply
364 The Period of Constitution Making
grounds it will be necessary occasionally to use the word
parliament in a kind of anticipatory sense.
There was a turning point in the central use of locally
elected representatives during the civil wars late in
Henry III.’s reign, and Simon de Montfort was playing
a leading part. In 1261 he summoned three knights
from each county to treat with the magnates “concerning
the common interests of the kingdom,” and the king
issued writs with the intention of drawing these same
knights to a colloquy ( colloquium ) on the royal side. In
June, 1264, Simon in the king’s name again summoned
knights to meet with “the prelates, magnates, and others
of our faithful,” this time four from each of twenty-nine
counties, “chosen with the county’s assent ... to
treat with us of the aforesaid matters” (described earlier
in the writ as ‘‘our affairs and the affairs of our kingdom”).
In these cases the representative knights of the shire were
surely meeting at the same time as the great council and
the language implies their share in public considerations
of the most important sort. In December of 1264
Simon’s famous parliament was summoned—famous
because, in addition to the great council and two knights
from each shire, there were to be sent to London two
citizens from each city and two burgesses from each
borough. 1 Here appeared the other representative ele¬
ment, which, along with the knights of the shire, was
eventually to constitute the House of Co mmo ns It is
necessary to say something of the conditions and cir¬
cumstances which lay behind borough representation.
4. Condition of the Boroughs in the Thirteenth
Century, and the Origin of their Representation in a
Central Assembly.—We have seen the boroughs of the
twelfth century striving for liberties and immunities,
their general object apparently an institutional isolation
too many contrasts. We must, it is to be feared, use many words and
qualify our every statement until we have almost contradicted it.”—
Maitland, Township and Borough, p. 22.
1 A slight but interesting exception was that the Cinque Ports wore to
be represented by four each. See W. and N., p. 104.
Parliament
365
such, us was uttuiucd in some places by the? continental
cities . 1 By the middle of the thirteenth century, there
were borough governments of the most diverse types,
with perhaps a general oligarchic tendency* There was
more of the corporate character in the older and larger
boroughs, and their government was in the hands of a
limited circle of burgesses or magistrates 2 ; in many cf the
newer and smaller towns, the government was still popu¬
lar, and in some it ever remained so. 3
But more closely related to the present subject is the
question of how far the boroughs had succeeded in cutting
themselves off from outside control, from the general
government of the country. Here also were various
conditions, which grew out of the struggles and negotia¬
tions between the boroughs and their overlords: fer the
dispositions and abilities of the overlords to keep control
of the borough governments were very cifferent.
Some were almost independent republics, some were mere
country townships that had reached the stage at which they
compounded severally for their ferm, but were in all other
1 See above, Part 11 , § 11 , 3 .
a The corporation in England had its origin in borough history hut was
not fully developed much before the end of the mi idle age*. * Maitland
has strikingly cautioned against perverting history by finding oorperations
before they really existed: "‘If , . we introduce the persona ficia too
soon, we shall be doing worse than if we armed Hen gist and Horsa with
machine guns or pictured the Venerable Bale correcting proofs for the
press.”
a “Any complete generalisation upon the constitutional history of the
towns is impossible for this reason, that this history does not start from
one point or proceed by the same stages. At the time at which they began
to take a share in the national counsels through their representatives, the
class of towns contained communities in every stage of development, and
in each stage of development constituted on different principles. Hence,
by the way, arose the anomalies and obscurities as to the nature of the
constituencies, which furnished matter of deliberation to the House of
Commons for many centuries, and only ended with the Reform Act of
1832. The varieties of later usage were based on the condition in which
the borough found itself when it began to be represented.” The matter
“ is noticed here in order to show that the obscurity of the subject is not a
mere result of our ignorance or of the deficiency of record, but of a confusion
of usages which was felt at the time to be capable of no general treatment;
a confusion which . . . prevailed from the very first, and occasioned
actual disputes ages before it began to puzzle the constitutional lawyers.”
Stubbs, Constitutional History of England, § 211 .
366 The Teriod of Constitution Malan|
respects under the influence of the sheriff and the county
court . 1
But the important fact is that the boroughs, as a class,
had not by this time gone so far upon the road to inde¬
pendence as to make the obtaining of their representation
impossible, or to give that representation, if obtained,
such exclusiveness or class consciousness that it could
not co-operate with the representatives of any other part
of the population. The king demanded the boroughs’
presence by twelve burgesses in those full meetings of
the county courts convened by the sheriffs for the itin¬
erant justices, thus to some extent holding them under the
royal jurisdiction. The sheriffs enforced the Assize of
Arms within them, and led their military levies as part of
the national militia. And there were among the boroughs
no leagues or combinations by which they could shape a
common policy.
Juries had been used for getting information, and
specifically for assessment purposes , 2 inside the boroughs
as well as out; and the regular representation of boroughs
in the great eyre courts, where such varieties of business
were transacted, may have suggested to Simon de Mont-
fort the possibility of their representation in a central
assembly , 3 but it is more probable that the suggestion
came from the general practice of concentration,, which
for more than half a century had, upon occasion, been
applied to boroughs on both a large and small scale, as
1 Stubbs, Constitutional History of England, § 213.
3 See Assize of Arms, art. 9, A. and S., p. 24; W. and N., pp. 90, 91.
3 It is interesting to note that these local courts contained all the de¬
ments which constituted the later Parliament. But Parliament was not
being modelled after thein for the simple reason that no one was consciously
making Parliament, and in the development of central assemblies for his
own ends the king does not seem to have gotten any suggestion from the
county courts. A part of the first clause of a writ to assemble such a
court in 1218 reads: “ The king to the sheriff of Yorkshire, greeting. Sum¬
mon by good summoners all archbishops, bishops, abbots, earls and barons,
knights and freeholders of your whole bailiwick, and from each vill four
lawful men and the reeve, and from each borough twelve lawful burgesses,
throughout your whole bailiwick, and all others who are accustomed and
ought to come before the justices itinerant. . . . ”—W. and N., p. 94.
Parliament
367
to other dements of the population,' The motive which
led him to summon burgesses at this time was undoubtedly
the weakness of his hold upon the upper < lapses. He
sought to counterbalance this by getting the support of
the middle and lower classes, and c-'jc-mally thi^ burgher
dass which might prove very useful norm daily. It is
hardly necessary to state that ce Montf’r*.’? ‘ parlia¬
ments” were not national assemblies, but rr.ectvtg- *T
the adherents and representatives ri a party at a c
when the country’ was divided in civil .-■‘rife. But the
machinery’ of borough representation at the e.ntvr was
not lost. Of its future use in Central assemblies or that
any’ new kind of assembly was being shaped, Simon de
Montfort had, of course, no more idea than any of h : s
contemporaries . 2 A hundred years earlier Henry II.
had, from time to time, added such element? to the feudal
core of his council as the business of the ocea>km sug¬
gested. Since that time the growth of ideas of represen¬
tation and local election were making it easier fr.r the
king to call up and use such parts of his people as he
chose. But the purpose and result were still much the
same.
Having up to this point dealt with antecedent con¬
ditions and causes and the bare beginnings of what may’
be called an embryonic Parliament, the subject now
broadens and three rather general divisions naturally
suggest themselves: first, the external history’ of the
institution, its form and composition through the critical
changes of its early y r ears until it attained some stability ,
in these respects and developed its characteristic features;
secondly, the electorate through the first century and a
half of Parliament’s life; thirdly, how Parliament grew
1 See above, pp. 358, 359, 362. .
* Professor Adams believes that "borough representatives wk y have
been summoned to the great council by the dose of the century_ if ?:rryn s
writs had never been issued and for reasons yen- different fr:m t.'.r-e
which influenced his action." His grounds for this opinion are the rapiiy
growing importance of the boroughs in the thirteenth century ana, t**e
fact that the 11 stricter feudal ideas” were passing away.
368 The Period of Constitution Making
conscious of itself, developed its powers, and became a
source of initiative and authority.
5. Form and Composition of Parliament from 1265
to the Middle of the Fourteenth Century.—The period
from Simon de Montfort’s Parliament of 1265 to the end
of the century was a critical and experimental time in the
life of the young institution.- It might be more truly
said that there was no new institution until 1295 or there¬
abouts; there was no thought of it as such in the minds
of the men of that generation. They knew only of
certai n new pra ctices, the qu estioning'~orgrou ps o f locall y
e lected representatives about taxation and -Qthe r matt ers
in which the kin g was interested .
To show how no one was thinking of a new assembly
of any definite form and at the same time to see the active
use of the new practices, one needs only to glance at this
period. In May of 126 s. just aftemthe roval. victory at
Evesham and not more than two months.aft e r . JSimon ’s
fa mous Parliamen t ended, the king summoned, in_addi-
tion to the barona ge, from each cathedral chapte r
two of your more discreet canons for the said day and place,
who are to have full power to deal with us in your stead along
with the aforesaid prelates and magnates in regard to the
business stated, and to do in your name what you yourselves
w ould be able to do if you were present there. 1
In the ass embly of 1273 , the first of Edward I.’s reign,
were present the three elements necessary to a Parlia¬
ment in the later sense: the great co uncil, representatives
of the shires, re presentatives of the cities and boroughs .
The purpose of this assembly was mainly to s wear aUe-
giance to the new soverei gn, not yet returned from the
Holy LandTEutf a few matters incident to the new reign
were dealt with tentatively. Again in the first assembly
of 12J5 the sam e three elemen ts were gathered and it is
notable for instituting the “ ancient’* custom on wool ,
1 Stubbs, Select Charters, pp. 406, 407.
Parliament
369
wrollslls, and hides—the f oundation of the customs _
system. 1 * At a second 'year, rep re-
sefiTS^es of tlie shires wire present and a money gra nt,
a fifteenth of mo vables, \oa~*rrongtd„ In I2\3 there
were |wo ve ry peculiar assemblies, Mod of tTTe nobles
were with tKe king on the Welsh campaign, 11 .-nee the
first, which met in January two divider*-, r re at York
and the other at Xcrtliarr.ptt n . wa - without thy b aronag e.
It consisted c>£ reprew ntatiw > r : the shir, r* on i 1 ^roughs.
To these were added ay re tentative * of the eoih. Ira!
dergy. The purpose tf this wa^ un ioubtt dlv fnetwial;
it was characteristic of Edward L, who aime i at a brood
repr esenta ,tk£^,haa^ for jfals maacy jssacts. and was con¬
sistent with the whole representative movement of the
thirteenth century. The two places of meeting, north,
and souffil seem to have been suggested by the Convoca 4
tions of Canterbury and York. a It i< interesting that it?
was regarded as nothing extraordinary fox knights and
burgesses to xneet # and do business in the absence of, the
n obiS bv. A second assembly of this year met in Sep¬
tember, at Sfexes^bury on the Welsh border. Thus the
nobles, who were still under arms against the Webb,
could be present, and to them were added representatives
of the shires and of certain specified boroughs. The main
object mentioned in the writs was to judge David of
Wales, but it was added that “other matters“ were also
toHoe attended to. The Statute JDe ^ Mereatoribus of
ActonJBupiell was dated October the twelfth at Acton
B urne ll, and -was the pro ductTof the.delib eratio ns of the
bu rgess es -who had withdrawn to that place from the
Shrewsbury assembly. But its language retained the
stereotyped form, “the king by himself and his council
hath ordained,” etc. 3 This second assembly of 12S 3
1 See below, pp. 405-411.
* Perhaps there were other reasons. Professor Pollard believe? that
there was a real danger of the development of provincial estate? instead
of one national assembly. See Evolution of Parliament , pp, 137J.
3 A. and S., document 41. In this use of the weri ecurrd wrye con¬
silium seems really to mean a body of men rather than the couuse. which
370 The Period of Constitution Making
is then noteworthy in not containing any cler gy—appar¬
ently because i ts business did not concern - them —and
in its jiivid ing, the nobles remaining at Shrewsbury to
perform their mor e proper function in judging thp P nn^
David while~~tEe~b urgesse s withdrew to another place to
deal with a cornmerciaL matter. The king was certainly
not~cbniciously fashioning a general assem bly: on the
contrary, he usually adhered to the idea that_that^hich
co ncerned only on e class should be dealt with by that
cl ass alo ne. Early in 1290 , a meetin g of the bar ons
acted upon the purely feudal mat ter of granting the king
an aid inci dent to the marriag e of hi s oldest danght w1
Later in the year, this same body made the famous
sta tute of Quia Empto res, a statute which especially
con cerned the greater landholde rs. Only a wegk-^fter,
there were added representatives of the shir es, apparently
for the sole purpose of n egotiating a money gra nt. In
1 2QA , there was a mee ting o - ? the ba rons and t he repres en¬
tatives o f the shi res. The p urpo se was l argely financi al,
and a “ tenth” was gra nted. The towns were al so taty d,
granting a sixt h, but were dealt wi th separa tely through
co mmiss ioners. 2 Late in 1295, after an earlier meeting
of the barons, was summoned the assembly distinguished
in later history as the Model Parliam ent.
It is probable that the use of the term Model Parlia¬
ment has led to the popular ascription to Edward I. of
ideas quite in advance of any which he ever entertained.
It is proper to remember this Parliament and its date as
important in parliamentary history; but there is always
danger in using any event as marking an epoch, an exag¬
geration of its epoch-making character. The reason
was given, was undoubtedly indicated the smaller, permanent council.
'This body was then taking on such technical and definable characteristics
that it may soon be considered a separate body. See above, pp. 296,297.
1 Though here were feudal nobles acting on a feudal matter, it should be
remembered that there were many tenants-in-chief who might he held for
the aid who would not be found in the greatT council as it was then can-
.. . .." .. . .~ 1 . """ ". ,:_l
^This was not a tallag e; a t allage wasJtevie&jpn mov ables and rents,
whereas the sixth was levied on movables.
Parliament
37 i
why Edward I. summoned such an inclusiv e and, from a
later point of view, model aase -mblv was the financial
p ressu re of the unprecedented .combination, ci wap s wETch
he had on hand. He needed money a.- neior before, and
he used the means to obtain it which his exp eric-nee in
the past thirty years and his instin.Is a- a practical
statesman suggested. He ncvled th e heir; of all class es
and, as far as conditions allows.-i, hv t-c-k them iul into
his confidence. It can hardy he thought that the repre¬
sentatives were really a~kvi to give their con-ent to
taxation, but their good will could he game 1 and c ->
sultatioajprith them certainly htlp. d in a?->-.ssmi-.nt and
c ollec tion. There was no theorizing, and the high-
sounding adaptation from the Thccdorian Code to be
found in the summons to the eh-rgy was probably the
insertion of a clerical official in the Chancery, 1 To
1 “As a most just law, esta'Cirhed tr trie tt'i.c ir-me '-f •acred
princes, exhortsmiLdt-crces t hat what all Vr.-A - Vo
soaiso, ve^vewlently divb ! V jr nM
m com mon?^—A 7 asd S., p. *2. TTe Emm, ue:c<xn:e aTiTHbr'V hu zum
en&tschen Pa r hment Mitkiilzer, yp x-14, fer a L-rm.i n of tm .lur*e
and the author's conception of the tree myoit ** f ruby ror myjy r: in
Parliament. Said Maitland, “The making r l ?r«r;d *tho*r:e^ Liv r.e/rr
been our strong point. The theory -a huh hie up* n the ruria m v wvVitrfcS
a borrowed theory which has never penetrated far wh:k- Em na«”> wkal
principles must be sought for in cut of the way p*ac es. A : *rrr.a {< 1 f no
importance unless and until there is acme great iesire wit kite it ya-uo? is
one of the few Latin words that English lawyers needy T\e. Er.gMh l;is-
tory can newer be an elementary subject, We axe n A Iym.al en -'Ugh to be
elementary.” Fisher, F. W. Maitland, p, 161. But it \h<>u! 1 be known
that the famous clause in the clerical summons was rv t without thirteenth-
century precedent. It is recorded by the chronicler Wend wer that at the
Christmas me eting of the a wzLJxi 1224, after the festival had been cele¬
brated, Hubertoe Burgh told of the injuries which the king had buffered
in Ms French possessions, and then reminded the carls and barons that they
had suffered damage in their holdings there also, “anil since many are m the
cause, the aid of many will be necessary.** A. tax of “a hfteen th ’* was
granted. Matthew Paris, Chronica Major a , Also m tin e famous
cou ncil of X 2JL1 which propo sed to elec t the king’s ministers, it iw- stated
that thexmnisters “ou ght toT STreeatec! l~wh 5 mSgriSklicm. for as they
are to transact the business of aUT so In th eir .choice theusasurrt cue
sh ould find p lace.” Ibid. f iv., . 366 ~y§ 17 ^ T/ .Alf '“"and “eyeiwp^e’ 9 no doubt
wereJimmied t o barons in their thou ght; but yet it was a notable utterance
and one may easily see in if muen luture history. The recording dire riders
were of course churchmen and they may hare drawn on un-English ^ nirces
for their phrasing, but it is impossible to read the contemporary narratives
of the early and middle tMrteenth century without the conviction that
political thought in England was unusually vigorous and told. There is
372 The Period of Constitution Making
suppose it a great principle, weighed and set forth by
Edward I., would be out of harmony with the events and
spirit of earlier and later history. The^Parliament of
1295 was simp ly a fa ct, great in itself, andmade^rorn-
ujent b y the cri sis which occasioned it; it worked by its
o wn we ight, and, fitting in with the trend of even ts, it
was not forgotten and became a preoqd pnt i n Engli sh
constitutional history. Engs ha d been workin sTtoward
the use of the re presentative principle in national affairs
Now events seemed to demand a completer application^
that principle than before, and the emphasis thus placed
upon it permanently affected both king and people.
With no regularity in the application of this principle
to national assemblies before 1295, it must not be under¬
stood that there was a close approach to it afterwards,
but merely that a long step had been taken in that direc¬
tion. The frequency with which the king, throughout
the middle ages and even occasionally afterwards, sum¬
moned the lords without at the same time summoning
county or borough representatives is the chief indication
that there was little notion of a new assembly with a
fixed make-up. Such meetings may very properly be
called great councils, as earlier. Their continuance
shows why contemporaries could not talk of a “house”
of lords. How could the lords be a “house” when it was
quite as normal for them to meet by themselves as in
conjunction with the commons? 1
The M odel Parliam ent contained the body of prelates
and greater^ barons which was to become t he House o f
Lgrds. The lay members of this body numbere d forty -
a background here of later constitutional development that is not well
known.
For the writs of summons to the Model Parliament, see A. and $.,
document 46. Particular attention should be paid to the last paragraph
of the summons of county and borough representatives, where the
purpose and spirit with which they were summoned is clearly shown.
* The l ast, time t he lord s met alone wa s in the seventee nth centuiy.
The king occasionallyLdealF Tfidiv^ other elemeStrffiftoF 1295,
Note the instance in ' when tne crfcjggns an d burgess es J< were~com«
tarry" afterthe dismissal of the knights.—A, and S., document
Parliament
373
eight in this meeting, seven carls and forty-one barons
below the rank of tarb" The prelates, summoned by
v irtue of their baronial tenure, comprised the two arch¬
bishops, eighteen Lpriv-py sixseven abbots, and tie
heads of three religious orders, the Hospitallers, Templars,
an^TlIie * Order of Pempringham. The bishops were
ordered to cite befon hand pmmunienkfi 1 the deans or
priors of their cathedral chapters, tb. archdeacom their
ohe B reyrc Sc r.tativv j roe tor , cbafcitr,
and two representative pr^et .rs from the pan-h
of eacETdioceise- Bevlues the clergy and the nobility,
this Parliament contained a > represcntatioa .oLJkirty-
seyen .shires by^two knighis. taeli 2 and of one hundred
and Jen cilies and boroughs by two cities or_ burgesses
eaebd
A pause must be made here for some explanation of
what lay back of the element of clerical representation
which the king was occasionally bringing to his assemblies.
While, during the thirteenth century, the representative
principle was being applied to lay assemblies, the clergy
had been perfecting a system by which the Convocations
of their two great arehiepiscopal provinces, Canterbury
and York, were becoming bodies quite perfectly repre¬
senting all classes of their order. 4 In taxing the clergy,
or indeed for other purposes, the king occasionally made
use of this machinery, s which he found ready to his hand,
just as he used an analogous machinery in taxing the
1 The clause introduced by this word, which has always been retained in
the writ summoning the bishops, is often spoken of as the pramunterUes
clause. See A. and S., p. S3. IjJa &s been .frhe
©ad of the fourteenth centurv. See bSowCjC 37 $*
2 This was' the''numb^"bfshires under the king’s routine administration
at this time. It did not include the old palatine counties of Chester and
Durham. Neither the county nor city of Chester was represented in
Parliament till 1543; and Durham not until 1672.
i It has been estimated that at one time or another during the reign
of Edward I. one hundred and suctY=six..diie s and boro ughs were regre-
seated.
4 See Ernest Barker, The Dominican Order ami Convocation, Part II.,
The English Convocation .
s See above, p. 353 and note 2.
374 The Period of Constitution Making
laity. It is not the place here to study in detail the origin
and growth of Convocation, but some of its features
must be noticed in order to understand the early histoiy
of Parliament.
B efore the thirteenth cen tury, there were two pri ncipal
ecclesiastical assemblies: diocesan synods, which^were
qmte^eSaustive meet ings ofTEe clergy . of the diocese*
and p^indal^ynods attended, in each of’ the".arcbie-
piscppal provi nces, by the bisho ps, some of the abbo ts
and later the archd ea cons . Until the thirteenth century,
as far as t he clerg y had been consulted at all abo ut money
grants, there had been ne gotiation by roy al offidalTwrih
the in dividu al dioce ses, sometimes proEaEly^Ihrough the
di ocesan syn ods. But this had been much more a matter
of demanding and collecting than of c onsulting or a sking
c onsent . If there were to be real consultat ion of the
clergy, it must be in a body where comcerteAnoilon of
the higher clergy would be possible, namely, in the
pr ovincia l synod. The i ntense oppos ition to Tohn’ s
misrule made it necessary for him to treat the clergy
with more consideration, and he was the ftrst kin g to
make any approach to a consultation of the provincial
s ynods on money grant s. The successful stand led by
the Bishop of Lincoln against the unusual aid proposed
late in his brother’s reign shows that the time was ripe
for such a development. 1 The new importance attaching
to the provincial synods, as bodies consulted in matters
of taxation, was probably the leading cause of their devel¬
opment into representative Convocations in the course
of the century. In 1226 , proctors represen ting the
c athedral chap ters and the monasteries were - added to
the ojbdjelements. But it was not until 1273 a nd 1277
that the parochial clergy began to be represen ted."anTit
was in a series of meetings, 1280 to 1283, under the stress
of Edward’s demands for money, that in the provinces
both of Canterbury a nd Yor k the e cclesiastical asse mblies
t ook onlheir final fo rm; all elements of the clergy were
1 See above, pp. 264, 265.
Parliament
375
e ithe r present in person or by representatives, and the
two old provincial 'wur. &»T.ad h^oiiil'Tyro’rcpresyntative
Convocations. ' Th«u 7 u£ly m< t at the same* time an?
were often thought of and spoken of as the Convocation
of t he w hole church. 5 #* ' <
These Convocation,-, cnr.,?vP,d of the following, who
attended in person: ; i-krra’> row priors, the d*. ans of
cathedral and collegia’,, church; archd.aecns, ar.i the
heads of certain religion- .-rd.rs. Th;. nprttentative
elements were the tv ■* procf"? from * a;h dr,e .w 'in
York from, each archdeaconry; r: pr-■ ntir.g tin parish
clergy, and one proctor for each cathv dral ar.i collegiate
chapter. Of course Convocation was a purely ecclesiasti¬
cal body in purpose and make-up. although the king
might consult it on civil matters, esp.dally taxation.
But during the same century that this body was grow¬
ing, a parallel and related dtvvlopm. nt was in progress
which ended in complete ecclesiastical r>. presentation in
the Parliament of 1295. 1 2 3 The king was shewing a
greater and greater inclination to summon clergy to lay
assemblies, but the manner of summons and the ele¬
ments summoned were largely determined by the con¬
temporary development of the* Convocations. As far
back as 1177 Henry__II. summoned dcans_ and arch¬
deacons to afnotafcle great council. 1 John upon at least
one - CTO&sion summoned ‘the cleans_ to _regresent the
cathedral chapters, and there is an interesting instance
in 1207 in which the p relates refused to hind the janp_
represente d clergy of the dioceses in the matter of a
1 For illustrative docuir.ents, see Stubbs, Select Cr.ar!tr$. pp. 444-447-.
2 Barker's study. The Dcminiczn Qf&er end Co’nz proves this.
He says (p. 75% “The development of representation in Church z.tA
State must not be figured in the mini as the aiv an ic c i two parallel lines
in two separate squares; it is the growth of one idea. , ^ But his
thesis that Dominican influence played the commanJing part in all this
has not been generally accepted, R oval praetires in the line r f represent a-
tion, election, and concentration were well along fceiore there was any
Dominican Order.
3 Benedicts Abbas, Gesta, i, 145. Thin wa^the council summoned to
make the award in the dispute submitted to Henry 11. by the cings of
Castile and Navarre.
376 The Period of Constitution Making
tax which the kin g demande d ; 1 and there were later
instances of this attitude. Cathedral deans were sum¬
moned to a p arliament in 1265 , and there were a few
other cases, which it is not necessary to notice, before the
very important one of 1283. It can be understood now
that the significance of that case lay largely in the fact
that the king usedJhis sys i££EL X>f clerica l ^ represen tation
in a lay ass embly in the very year .th at, it was perfected
in the ecclesiastical assembli es. It might fairly be expect¬
ed that if the king were to continue his use of the system,
it would be in the completed form which it had just
attained. In 1294, Edward summoned an assembly r.f
t he cler gy, with all t he representative eleme nts then used
in Convocation, but it seems to have met at a different
time from" the lay portion of his Parliament, although
summoned for the same purp ose, namely,~revenue. The
next year in the Model Parl iament, the” frill clerical
representation was s ummo ned at the same time~as~~the
oth er elem ents, and perhaps with the idea that all these
elem ents con stituted, for the time at least, a single body.
Thus the clergy became a part of the embryomc'paxlia-
ment; part of them, the repr esentatives, were there
p urely as cler gy, while the p relates had" a double basis
for summo ns. 2 “ ~
In studying the origin of the English Parliament, one is
too likely to pause at the date 1295, as if the great insti¬
tution were then already completed or nearly so. It
should not be forgotten that had Parliament remained
what it was in that year there would be little cause for
interest. Certain very fundamental changes in its
make-up and internal arrangement must take place, some
of which appear entirely accidental, before it could
1 Stubbs, Select Charters, p. 268.
a Probably the technicalJjasis remained their old baronial tenure. All
the bi shops were barons, and the abbots stressed ihe baronial BSsis—this
becaus&TEey did n5l Wish to attend and insisted that they should not un¬
less they held by baronial tenure. No abbot became a prominent states¬
man; the int ernationalism of the regular clerg y worked against their
interest in na@naT ,, |ibTit'tcsr 1,1 Se^abbveTppTT^ 344 and note 3,
Parliament
377
become a power rii govcrrmwat in any way apart from
the king. It rr^y 1 vui that tin re tv r: riivv states
in toe Pariiamtnt of 12}$ urar^u tie pi vri oi tht- time
seem rcither to have tab, d n r trivnyht a mdi tstates):
the first estate, cl m rr..; do s.e nd i way;. fry nubility;
the thircTeat&te, burg* 7ri i firfo 4 stake would, cT
course, include doe yrdaPr 7be uur* ther ado* as
barons, as wdl as tin r * r **■ :/ / v, f h r;o* If trip ^.eond
estate contprfo.d aUJay n,*y >, it fir. t :r;du 1 tut only
the batons cut to ' ^ ; r, - iriivno VrdgoS m t ri, sh ru as
well. Per the \oedhw tea t* dim ally re? ks. ar*J,
though doty canu 1 distinctly ard ton ova 4y mprn. x nt:ng
the counties that chose them, their formal and historical
position seems at first to have drawn them to die barons
and away front their mem natural mm nates, the, btfjy
gesses. just how these* people' sat . r dead in West-
minster Hall is a d: a! fori moot r P^dusor Pollard
pictures the council or .great council sitting on a platform
with the representative eltmails coming into its prt since.
They did not sit together, for the commons [citricns and bum
gesses], at least, stood in the presence if the brig and council-.
and the attitude of Edward I. was somewhat pariarehai
. . . The corninc-ns, at least, were strr niru n o d n )i iojl ed.de,
but tojxmsent to decisio ns; and the object or’ their presence
wasTnot to t ie the hand s of the council, but to unloose the
pockets of their congtjtii.e pts. 1
1 Evolution of Parliament, p, 54, On the three estate?, see ifad . ch. iv.
Professor Pollard believes that the I lea of the three .estate? was ro f pres¬
ent in England until the fifteenth century and was then largely a French,
imitation.
The use of the term “parliament” a + tkcjj^innirg orithe £ OTtoe&th
century is admirably illustrated by the of. 1 3 *5. TdaiViiiri says
of it: “It was a full parliament in our sense o f th at term. The thre§.
estates of the realnTf^tmnrijnf' arifThs ^SSfo’The great pftuelerV
of T2y'5 RMrieffi loIidwed^HHTEFTEr wnFT*of summons were punctually
obeyed, the assembly was a large cneW It was opened at Westniimter
on the 28th of February. “This assembly was kept together fur past
three weeks. On the 21st of March a proclamation was rrade tilhng the
archbishops, bishops and other prelates, earls, barms, knight?, citizens,
and burgesses in general that they might go home, but must be ready to
appear again if the king summoned them. These bishops, earls, barons,
justices, and ©there who were members of the council were to remain
378 The Period of Constitution Making
Of course there were no 4 ‘houses” in an assembly of this
sort, but if the mobile material of 1295 had, as might
seem natural, hardened along the lines of clergy, nobles
and third estate into a three-house body, one might expect
its failure on at least two grounds: in the first place in
three-house assemblies, two of the houses are likely to
intrigue against or outweigh the third, and an assembly
ill-balanced and divided against itself results; in the
second place, if the knights were to continue to sit with
the barons, it left the burgesses the only true repre¬
sentatives of the non-noble class, the only people in the
assembly that could be termed commons; and in the
middle ages, the urban population was not of sufficient
consideration or strength to make by itself an effective
“house.” The knights would have been left in an un¬
natural and ineffective position; and these representative
knights, as has been shown, were the most valuable and
English of all the elements in Parliament; they stood for
what was then to be found in no other country, a sub¬
stantial middle class outside the city walls. And unless
the middle class outside the city walls could, through its
representatives in Parliament, unite with the middle
class inside the city walls through its representatives,
there could be little to guarantee the rights and liberties
of the English commons against the encroachments of
nobility and crown. 1 The great historic English Parlia¬
ment was no foregone conclusion in 1295.
behind and so were all those who had still any business to transact. But
the 1 parliament * was not at an end. Many of its doings that are recorded
on our roll were done after the estates had been sent home. The king
remained at Westminster, surrounded by his councillors and his parliament
was still in session as a‘full’and‘general’parliament as late as the 5th and
6th of April. ’ ’—Introduction to Memoranda de Parliamento , pp. xxxv., xxxvi.
/It should not be supposed that the separation of the lesser from the
higher nobility was complete in 1295; if it had been, it would be difficult
to account for the position taken by the knights when summoned to Par¬
liament. In fact, it was just at this time, aided by the statute of Quia
Emptores, that the process was going on most rapidly. Let it not be for¬
gotten, however, that it was not in anything belonging to this immediate
period that this most fateful movement had its source, but, as has been
shown above (pp. 347-353) »long before and in events and conditions lying
at the basis of English history.
Parliament
379
The first great change after 1295 was the withd r awal
fro m .Ct gfrT^^cTTrkW ' 'ft happened to
be a t£new^^ \\*ry s mu rive about being
taxed by the state- Boniface Ylli~\vaa poyca whose
mo ment ous conflict with I^hrfp IV. ofl : ran;.e was opened
upon thi s very issue. The <hs'*y knew that the ling
siimmoned them "to a lay a^vmbly that he might the
more readily tax thorn Tfci: i Ita that honour attached to
representative memharship in w:h at: mvvrrbiy was
foreign to the time: v n : n evntativ^ilt-ugy or laymen or
their constituents themya! summer. Jla: 1 a burdtn which
wal TTa ker: ’with reluctance. All the prejudices of the
clergy drew them away from this kind of association with
laymen; the whole trend cf events umce the Norman
C onqu est had been towards sejjaration between clerical
and jav .instit utions under the impube c,i the “refQxm.”
movements on the continent. The clergy mere beaming
conscious ofT ihemsdyes as a distiinf and superior ordegy
They" had just perfected their own Convocation, where
they could negotiate taxes just as well and without
compromising their dignity hv becoming members of a
secular body. Their reluctance to attend Parliament
was probably at first regarded by the kin" as a jrind of
ins ubordin ation: but money was ^hat he w,apted and,
if he could ge t, that as well from Convocation, he was
har dly in a posit ion to fighf out a purely theoretical issue.
The representative clergy began to show*Their disin¬
clination to come to Parliament soon after 1295, and for
about forty years the king made some attempt to secure
their presence; then, although the pramunientes clause
was retained in the writs to the bishops and there was
occasional attendance of a few, the matter ceased to be
an object with the king, and the clergy, ip their Convoca¬
tion granted subsid y for s ubsidy as granted by Lordsned
ComniofiTin Parliament. 1
* For an illustration, see A. and S,, documents 66 and 67. Down to
1 ^0 the clergy were summone d, as th e laity,, ad fnnendum^dL xurnsentien-
dum. After that, the form was more "often qd c onseniiendun , which be¬
came stable in 1377. They could consent by being “sHent ,Ty not coming.
380 The Period of Constitution Making ~
The withdrawal of the clergy left two estates in Parlia¬
ment. The clergy who rem ained, the bishops and part
of the abbots, remained as barons,
wereTeftthen thesecond estate and tlie third estate the
nobles and the burgesses. Though a two-house assembly
may be superior, as such, to a three-house assembly
yet it cannot work well unless there is some equality
between the houses. If the knights continued to rank
themselves with the nobility, the houses of this English
assembly would be unevenly matched, and the question
whether the k nights of the shire would permanently c ast
in their lot with th e lords o with the burgesses was per-
hapsTKe most c ritical in the wEoIeTii^^
There is evidence of uncertainty upon their part fr^TSie
beginning and, although there are several instances in
which it is known that they sat and voted subsidies with
the barons, and this may be fairly considered their normal
action in the early years, they sometimes seem to have
regarded themselves almost as a separate estate and to
have sat and voted alone. Their first approach to the
burgesses was to join them in petition; “ the closing- vg ^rs
of Edward II.’s reign and the opening years of Edward
nfTs seem to be marked 'b y theearliestcommon -petit ions
of the knigh ts and burgesse s who came to constitute the
ho use of comm ons.* 77 " This well illustrates their situation;
they were naturally with the burgesses, for they found
themselves w anting to ask for the same thi ngs, whi le for m¬
a lly they were noble s and in formal action still t ook their
pos ition as sucfi 7 But the change once started grewrapid-
ly, and before the end of the fourteenth century the rep¬
resentative TmigKtsfof thelhirewere regularlyatting and
voti ng wifTtKe repr^en tative citizens a nd burgesse s. A
House of Commons wasloemg made” There was nothing
1 Pollard, Evolution of Parliament, p. 119.
2 But like all English changes it was not complete; instances of separate
action continued—one has been found as late as 1523. Ibid., pp. x 12, 113.
The knights not only furnished position and influence in the developing
lower house, but till the end of the middle ages they usually surpassed
the burgesses in numbers. See below, p. 394.
Parliament
381
striking or spectacular connected with tills change, one
of the greatest events in the hraray cf the English govern¬
ment . it was tin* working out of forces and traditions,
seme of them era terra old, rare *ri trim recent* bat
numen us and working vrirriy and IrrraraKy, No
one thought that anythin,: r.
We pause to eirpkvire :i ri
English kktery, h:vv irrah
small change.
nkal-he woe taking place,
:ra we knew how much
rli history, lay in that
A money com
on wo¬
of the
stooSPfor
Trir
the
cl toe az :
tv? i rtr | oil
Tro
4,„
oh ini&La&t g cau se
, lik*) the burgesses,
ns ui ;oe community; united
action would be j* great advantage on the atttrr.pt to
controTt axati on , and this united altera seemed possible
ancPnot unnatural as the result li ad previous English
history. It must be remembered that these repr^scuta-
tives were not yet legislat ors,,,oxiJLniir^^ ; they were
a c oncentration , oi tocal i( unofficial groups. 1 And how
had tlie Eng been using such groups, whether gathered
in one place or consulted locally? Very often to £ive
inform ation bea ring on his revenue, and then to.b^lp and
a 4xjse in its as sessment ^ a nd colle ct lop . To be sure the
representatives Jn Parliament in the early fourteenth
century didT"a little .more, t han this; they did, in some
sort, consent to taxation, although this function could
be easily' 11 'overstated^and they certainly furnijshedLthe
king, t hrough petition and otherw ise, with local informa-
tion which proved a. check upon th e woxrio f.hi&jQffi .pjals T ^
especially the sheriffs. These he still distrusted, and
their arrogant anefoppressive behaviour often bore heavily
upon the people. This last-mentioned use of represen¬
tatives was increasing in importance. 2
* “The members came to Westminster not as sent from sovereign con¬
stituencies, but as summoned by a sovereign lord; t hey attended n ot as
dele gates with im pgEati xfl-mandates to d o what tpdryra .stiLufflt s told
themTTStiFlS the unfort unatean&!^ ^ select ed by,, their
fellows to carrWo oTTEeT^umemSits of the ctoto T—P o!!Srd T Ewiutim
of Parliament, p. QqT*"""' ''
3 Riess, in his Gesckkkte ies Wahlreckts sum mglhchen Par lament, ch. h»
regards the checking and controlling of the royal officials in their local
382 The Period of Constitution Maiang
Professor Pollard's picture of the look and behaviour of
an early Parliament when dealing with a money grant,
which he deduces from the slight evidence that has been
left, is most interesting.
There is reason to believe that from Edward I/s time the
king's council sat in the midst of this assembly on four wool¬
sacks facing one another, ... [an arrangement adapted
to] confidential deliberation. Outside this inner ring there
sat, to the right of the throne, the spiritual lords, and to the
left the temporal lords, and facing the throne there stood the
commons. To them the demand for aid would be particularly
administration as the first object with E dward I. in summoning local reo-
reSSSEStives to Parliame nt; he believes that in ConUrmaEo con ^HTTrij; a t.
atibiwg^t^gended*, except in a purely formal way, be yjmd tenants-in-
chief, but thatThis formal co n sent came gradually bv forceofTiiSiyr ffi and
favo uring circumstances to SeealsoRiess. Der
Ur sprung d^~englischerT~UnterJiauses~m Jtiistorische Zeitschrift, lx., 1-33.
On p. 3, he says : “To a ttain a genu ine and r egular co ntrol of t he loca l
a dminist ration and to carry out e specially the assessm ent a nd collectio n 0 f
taxes with the least possible friction were the most substantial reasons for
which Edwar d I. added to t he English constitu tion as a perfected and
enduring institution th e system' "bTrepfes^afTon that had earlier been
only sporadically connected _ with itT In speaking of what- the Commo ns
did in th e Parliament of 130 5, Maitland says : “ The kmg, so "tar as we
know. QM'noTasFTEe mlormone v. nor did he desire their consent to any
n ew la w. The doctrmethat in these daysThe" representatives ofthe shires
and towns were called to parliament, not in order that they might act in
concert on behalf of the commons of England, but in order that each might
represent Lieiuiti the Jang m council the grievanc es an d the interest of the
particular community, c ounty or borough, th £t s ent him thither/ may
easily be pressed too far, but we shatTprobably tKink that there is no little
truth in it, if we ask what the knights and burgesses were doing, while the
king and his councillors were slowly disposing of the great mass of peti¬
tions, many of which were presented by shires and boroughs. Officia l
tes timony the cou ncil can easily ob tain; but it wants unofficial tftstimn riy
alsCTT if desires to know' wEaT men are saving in remofe^parts^ En gland
about the doings of sh eriffs, escheaS rsTlind^Sieirllke."and the possibil ities
of be considered. Then again there are many ap¬
pointmen ts to he m ade"; tor example, it is the fashion at this time to
entrust a sSaxeoTfhe wor k of delivering the county g aol to some knight
of t he co unty, very often oneofthel^ rep resentmgorlias
represe nted that coun ty, at a parliam ent/ Withoutden ying that the
g erm oflT T HotiseT o £ commons yeady e xists, without denying that its
me mbers Sol a m eetings , discus s fEeir common affairs and common grie v¬
ances,' . 7 T we may still believe" that The courim nsiT^
advice, instructions to pa rticular knights anH^ur^ss ^ j 5 feF~airwe
shall have fotStTback upontne words o± the writ of summons:—the com-
mojiers h ave b een told to come in order that they may do what shall be
ord 5 iied. ,T '—Introduction lu Mmnurtindade Parhamento, pp. ixxv., lxxvi.
Parliament
383
&ddrt5red, and thm the grri 1 rn nf bom nr.d what lo answer
wcuM nr:;,, Pr:l :k y trite r ml i 1 j a vv y;n id opinion,
nr/i pmririy dkvr.hr* n: ;rrmr , v »n w mirvrv
at the lack rrhh 4, cm w %, *y r* V» ** , ;t » 1 ...cm* :r; the
fn.nt the v\ rHrimv : k , 1 m ; - 'jcar :rc? hr ncrv
Hty of refusal; tin.: 5 v r*h n a* f v rririt 21 their
daring but hrih 0.0 oh-I a h , * r* «t fri Ir la k t,
for thanstkas an! Ih : „ an : 1 *b_ r;.u*::: j an 1 murmur¬
ing, the chaar her .r oh; r iwrv r ri the our/o nr.hr
suggest that n t roirili : r ;v ; tor ri irv rrrh, oiri that
the cimrr.'rr >’ writ ^.< m * crib h tor r:r roc th
and then errrn rich: with rn :nt hhkV m v ,„r. Cm rne
such rcevhn it rrrrt have 1 mr ;.md *hr thy ri.ikd
cfctrw t:rv mi c x hair rvrrrim * " *. th :r ( ik.r, and
that his answer, whether rwrwvrrtrr ur. in unity or hut m
small ojjrity, kkwhl 0 . or; him 1 uprkh ' :r, lira upon
all. Ti:e ceminors th 1 n Irorg;J * at -f ytrh.r » rh to dis¬
cuss in scxrc mono t rivat. |o.- thkr k uw. vh differences
They only rcapymrul in ] arbrimetit v 1 n they had reached
a resolution which raw rr „rtrl ly toe Speaker; and he
alone had liberty of speech in parliament, 1
Soon sessions in separate buildings became regular: the
lords in the Mug's parliament chamber and the mrntmm
in the chapterhouse of Westminster Abbey * 2
6 , The Electors, the Elected, and the Election la
County and Borough During the First Two Centuries of
Parliament.— In discussing the beginnings c£ representa¬
tion and election, the king's early use of them for local
purposes, his concentration of local groups at convenient
points, the resulting gradual growth of a representative
element in the national assembly, and the joining of
knights and burgesses In a lower house, nothing has been
said of the way in which the elections were conducted
or how they were regarded, and but little of the per¬
sonnel of the elected. Probably not much detail on
these subjects will ever be known. For the fact, already
x Evolution of Parliament , p. 121,
2 ft” estminster was th e usual but not the only place where Pa rliament!
we riyhelcHnTI^^ Several were held in
Y orkand a few other places.
384 The Period ot constitution Making
often stressed, that Parliament grew while no one had
the least idea of what it was to be or its importance, ex¬
plains why no one wrote about its elections. 1 But the
leading features can be stated with some confidence. 3
The representatives of the shires were probably always
knights in the very early Parliaments; but the burdens
of representation so far outweighed any advantages
that seemed possible that those whose property made
them eligible to knighthood, through the provisions of
the Distraint of Knighthood, 3 often paid the fine required
by that act rather than assume the local duties which
knighthood carried with it or risk an election to Parlia¬
ment. The result was that, throughout the fourteenth
century, many below knightly rank were returned from
the counties. No positive law upon the subject was
enacted, but the kings made various attempts to have
knights returned, the writs of summons usually demand¬
ing that “belted” knights be chosen. Beyond this, the
requirements and disabilities seem to have been these:
the county representatives must be inhabitants of the
county electing them and must be men of ability, con¬
sideration, and property; and in the fourteenth century
statutes were passed excluding sheriffs and lawyers from
Par liame nt, on the ground that with them more particular
interests than those of the community in general were
uppermost. 4 A statute of 1445 summed up most of the
ideas of previous times, but shows that the king had had
1 It was not till late in the fourteenth century that the first description
of Parliament was written, the brief and somewhat unreliable Modus
Tenendi Parliamentum. See Stubbs, Select Charters , pp. 500-506. This
gives no description of elections.
a T his is owing largely to the painstaking researches of Riess. His mon¬
ograph, Geschichte des Wahlrechts zum englischeti Parlament tut Mittelalter,
is the authority upon the subject.
3 Beginning at least as early as 1224, there is a long senes of enactments,
known under the general term Distraint of Knighthood, whose object was,
under penalty of fine, to make all who had the property qualifications for
knighthood assume its name and insignia. ^ Men were avoiding knight¬
hood in order to escape the public duties which the king was crowding on
the knights. The long-continued Distraints of Knighthood are striking
evidence of the extent of the knights’ unwilling share in government. For
the text of the 1224 enactment, see W. and N., pp. 96, 97.
* A. and S., document 80.
Parliament 385
to concede the point about belted knights. It states
that
the knights of the shire for the parliament , , , shall be
notable knights of the same v unties for the which they shall
be so chosen, or otherwise such notable esquires. g<. ntknsen of
birth of the same counties, as shall be able to be knights. 1
The knights of the shire (the elected representatives
of the counties had come to be so called whether they
were actually knights or not) were elected in the county
courts. Many writers have been inclined to think that
these knights were at first elected solely by their own class
and went to Parliament as representatives of that class.
There has seemed to be an a priori logic in supposing,
when the minor tenants-in-chief ceased as a class to
receive the special writs of summons and chosen members
of the class went up from the counties, that their class
only was concerned in the transaction . 1 3 * The theory
falls to the ground however when tested by the evidence.
In all the local activities of elected knights (with no dis¬
tinction between knights who held of the king and those
who held of mesne lords), activities which suggested and
led to representation in a central assembly, they were
certainly regarded as standing for the best knowledge
and judgment of the whole community; and knights
were often associated in this work with the non-noble
freemen below them, the provision appearing repeatedly
that when there were not knights sufficient the number
was to be filled out with free and lawful men. 5 More-
1 A. and S., document 125. The belted knight, the knight girt with the
sword ? was of course the one who had assumed the knightly insignia and
name. But Distraint of Knighthood had been ineffectual, and now poten¬
tial knights could be sent to Parliament. After a time they ware not al¬
ways potential.
a But it is a curious fact that the language and circumstances of the
writ of 1254, the writ that has loomed so large in the early history of Par¬
liament* make it practically certain that on that occasion the knights who
represented the counties were not tenants-in-chief, but subtenants.
3 For examples* see art. i, Assize of Northampton; art. % Assize of
Arms; the commission of 1194. A. and S. or W. and N., passim.
386 The Period of Constitution Making
over, the business upon which they were employed had
no limitation to a single class. And in coming to the
later representative activities of the knights in Parlia¬
ment, the language of the summoning writs is very cleai
to the effect that they were to come for the whole county
and were to be elected in full county court. This idea
is expressed so many times and in such a variety of ways
as to leave no doubt that the whole court was supposed
to be concerned in the electing, and that the knights
went up to Parliament representing all the elements of
the county as found in the county courts. 1
Who went to the county court? It is impossible to
answer by a definite enumeration; for long before this,
suit of court had become attached to certain holdings of
land, and the tenants of these were bound to this duty by
the terms of their tenure. It would not often be the
large meetings of the county courts, summoned to meet
the justices, that elected the knights; only forty days
lay between the issue of the summoning writs and the
meeting of Parliament; so it was usually the ordinary
monthly meeting of the court, at which there was likely
to be but a small attendance beyond those concerned in
the cases to be tried. There would be no flocking to an
election in which, in the nature of things, there could be
no interest. Especially it is to be remembered that there
were no villeins in the county court. Thus England’s
peasantry, about two-thirds of the population, had
nothing to do with electing the county representatives
and cannot be regarded as represented by them. When
it was stated that the knights were to represent the
4 "whole county” the context makes it quite clear that it
was the county of the county court that was in mind.
As to the electoral process, one’s mind is so filled by
the modem paraphernalia of ballot-boxes or voting
machines, election judges, accurate counts, majorities,
and pluralities, that he is likely to forget that such things
are the product of a very long evolution, These thir-
1 See above, pp. 361, 362, 364.
Parliament
3 »7
teenth and fourteenth century elections, which antedate
party and interest and all consciousness of the value of
the franchise, may seem unworthy to be reckoned popular
elections at all. Yet modem popular elections are their
lineal descendants. Names were probably proposed to
the assembled court by the sheriff or other influential
men of the county. If they met with approval, there
was general acclamation and the election was complete.
But some one might be bold enough to object; if his
objections seemed valid and he could gain a backing,
his point was made good and other names were proposed.
It was thus only in the acclamation and in the right to
dissent that the popular element consisted. And yet
in theory—and this is very important—these_elections
w ere by the court; any^mber might propose n ames and
any might dissent.
~No one cared to take part in these elections, not only
because there was little inspiration in electing people to
places they did not want, but because wages had to be
paid them. These became fixed under Edward II. at
four shillings a day for the knights of the shire and two
shillings for the burgesses. 1 Abstention from the election
- might be urged as an excuse for not sharing in the pay¬
ment of the wages. Few were able to make good such a
claim, but the possibility worked with other forces so to
belittle the election that the sheriff often practically
named the knights who were to be returned, and, when
he had an object for doing so, he could usually manipulate
the elections to suit himself. 2
1 By Elizabeth’s time wages bad ceased to be paid to the county mem¬
bers, though not legally abolished. But many boroughs continued to
pay their representatives until the late seventeenth century. The amount
paid varied in the later time. Since 1911 members of the House of Com¬
mons, who do not get salaries as ministers or other officials, receive £400
per year.
3 In 1376 a petition was sent to the king by the Commons asking that
the knights be chosen by the better folk of the shires and not by the sher¬
iffs alone. The king replied that they were to be chosen by the whole
county. This shows the continuance of the sheriffs’ undue influence, but
undoubtedly also indicates an increasing interest on the part of the people.
As late as 1410, an act was passed restraining abuses by the sheriffs in the
election returns. See A, and S., document 1x3.
388 The Period of Constitution Making
In this condition the shire elections remained until the
one thing which could cause change occurred. At the
end of the fourteenth century, places in Parliament were
less matters of indifference; hence more interest in electing
men to those places and developments in the electoral
process. There were two things in the reign of Richard
II. that began to threaten the influence of the class of
knights and esquires, the country gentlemen, the smaller
landlords. The peasant agitations then culminating
showed that there was a class below whose rights and
power must be reckoned with, and the long war with
Prance had resulted in increased power and arrogance of
the great nobles. Livery and maintenance were begin¬
ning; the nobles returned from the continent with bands
of followers whom they were loathe to dismiss; they often
brought increased wealth, and always high-flown ideas of
their superiority to the classes below them. They were
the essence of the tawdry, decadent feudalism of the
English and French courts of that time. The knights
felt themselves in danger of being crushed between the
upper and nether millstones. In Parliament they could
make themselves felt; they could enact “statutes of
l abour ers” on the one han d or join the. kinp'Tn' his at-
tem pts to cur b a grasping aristocracy on the other. 1
There is no evidence ol sucETheightened interest on the
part of the borough members.
This approach of king and Commons, or at least the
knights of the shire, was one of the most striking features
of Richard’s reign. In fact the Commons, under the
knights’ lead, began to take the independent position
between Lords and king which became characteristic in
the fifteenth century. A new significance began to
attach to their election to Parliament. Should the rising
peasant class, whose interests they thought so contrary
to theirs, or the insolent followers of the great nobles
share in the county elections? Prom the end of Edward
1 See fbpve, pp. 193, 204, note 1, 209. See also the Statute of Mainten¬
ance and Livenes, 1390, A. and S., document 96.
Parliament
3°y
III.’S reign, there is evidence that numbers of people
attended the elections who were not properly suitors to
the county court. An act of 1406, 1 decreeing that
knights be elected not only by suitors duly summoned to
the court for the purpose of election but by all who might
be present, appears so out of harmony with the more
definitive legislation soon to follow and with what one
would naturally expect from the Commons as to suggest
an exceptional situation just at that time. The Commons
had been bringing forward an unusual number of peti¬
tions looking towards an interference in the government
and a limitation of the royal power—some of these per¬
haps at the suggestion of the Lords themselves. Possibly
a temporary estrangement arose between king and Com¬
mons because of this, and was made use of by the Lords
to carry through an act by which they hoped in the end
to gain control of the lower house. If no restrictions
were placed upon the county electorate, they might ex¬
pect, by means of the votes of their retainers, not only
to' prevent the return of specially obnoxious knights, but
possibly to compass the election of some of those retainers
themselves. 2 But by 1413, the situation had changed.
Henry IV. was dead and the new king and Commons were
in harmony. A statute of that year decreed that knights
elected to Parliament be resident at the time of election
in the counties which chose them and that the electors
be of the same county in which they voted. 3 This
removed much that was dangerous in earlier practice and
which was sanctioned by the act of 1406, but not all.
In 1430, was passed the famous disfranchising statute. 4
It leaves no doubt of the interest now taken in the county
elections. The statute mentions great troops of people,
residents of the county, who come to elections, and, by
their presence, cause danger of “manslaughter, riots, bat¬
teries, and divisions’’; and there is this significant clause:
whereas the elections of knights
1 A. and S., document in. J Riess, Wahlrecht, pp. 87, 88.
J A. and S., document 115. < Ibid., document 121.
390 me Teriod oi (Jonstitution Making
have now of late been made by very great and excessive
number of people ... of which most part was by people of
small substance, or of no value, whereof every of them pre¬
tended a voice equivalent, as to such elections to be made,
with the most worthy knights and esquires.
In these words, confirmed by the disfranchising pro¬
vision which follows, is perhaps the first recognition in
English history of election as a political right. 1 After
there had been a representative Parliament for nearly a
hundred years, is first found this idea which, on the basis
of modem notions of Parliament, one would have expected
from the beginning. The disfranchising clause limited
the electorate to residents of the county, “whereof every
one of them shall have free tenement to the value of forty
shillings by the year at the least above all charges.’’
Then follows another statement of great significance:
and such as have the greatest number of them that may
expend forty shillings by the year and above, as afore is said,
shall be returned.by the sheriffs of every county, knights
for the parliament
a clear statement of the majority principle . 3 All
the election writs in the remainder of Henry VI.’s reign
’Riess, Wahlrecht, p. 91. Yet even after 1430 this seems not a very
/i 1611 ° ne refl !°? I 0r how mafl y centuries the franchise fixed
by this statute was accepted almost without protest;’ and certainly reore-
T^s a iirik m Pa S h ?f leil l 5 ?? , not bought a privilege in the boroughs. In
borou^^the 0 ^ 11 ^ 6 ^ 7 had petitioned “ to be restored as ancient
boroughs, on the ground that long discontinuance did not forfeit the right-
and much curious learning was displayed in the arguments. . . Where-
lT aS held that such discontinuance could not involve loss or for¬
feiture, because this elective right was not a franchise In the nature of
a possession or privilege, but of a service pro bono publico. The resolution
therefore, was the restoration to both boroughs of the
In , Ci ^ ed 111 Porster ’ s & J ° hn Elilt C 122 .
they could speak of elective right” and strive for it, but the ear-
uSdTthe argumenf P aad Was cleveri y and successfully
.PP- 91 , 92) has regarded this as the first legal exnres-
aon of the majority principle to be found in the middle ages But smriv
/rowsions of Oxford, I2S 8.. The Chance?to wa 7 to swlar
that he would not do several specified things “without the assent nf the*
g-ftcounol or of the major part,” that he S win^l^w aS c 0 “ r ^v to
the ordinance “made by the twenty-four, or by the major part.” ^he
Parliament
39i
repeated the provision. The statute of 1445, requiring
county representatives to be of gentle birth, completed
this important line of legislation. What the disfran¬
chising statute meant is seen not only by the reflection that
forty shillings of that time had the purchasing power of
over £30 to-day, 1 but also that only freeholders could
vote. A large and worthy class of people was kept from
political rights for four hundred years; but the Commons
were dealing with real dangers in the fifteenth century;
they were fighting for political existence. It must be
acknowledged that in the centuries following the forty¬
shilling freeholders exercised well the great power vested
in them. 2
guardians of castles were to surrender them only on the authority of the
king expressed through the “honest men of the land elected as his council,
or by the major part.” The fifteen who were to be the king’s council were
to be confirmed by the “twenty-four or by the major part of them.” And
the king declared his adherence to that which his “counsellors, all or the
greater part of them . . . have done and shall do. . . .” Stubbs,
Select Charters , pp. 385-388, passim . A careful search would probably
show many other expressions of the principle before 1430.
1 When the discovery of precious metals in America made money of less
value, the forty-shilling freehold did not stand for a high property qualifi¬
cation; but the copyholder or leaseholder could not vote no matter how
much his land was worth. “The qualification, however, was broader
than might appear at first glance, since the term freehold was applicable
to many kinds of property. Annuities and rent charges issuing from free¬
hold lands were considered sufficient qualification, if they were of 40s.
value; dowers of wives and even pews in churches might also be considered
freeholds.” See further illustrations of curious freeholds and a general
discussion of the British electoral system before the reforms, in Seymour
and Frary, How the World Votes , i., ch. iv. These authors estimate that
as late as 1831 there were “less than 250,000 county electors in England
and Wales, and the proportion of county voters to population was probably
not as high as one to thirty-five.”
2 In 1294 it had been suggested that no freeholder whose estate brought, in
less than 40s. per year could be made to serve on a jury in the county court
(perhaps suggested by the 40s. limit recently placed on county court actions.
See above, p. 184). This was to lessen the heavy burden of jury service.
It was promptly acted upon to escape also the burden of suit of court, for
by that date there was little reason to attend the court except jury service,
and there were now very few cases in the county court in which juries
were used. Hence thereafter the normal county court did not contain
these poorer freeholders. The statute of 1430 merely placed the franchise
in the normal, the legal, county court. For the lesser freeholders had so
long used the privilege of staying away that now that it was a privilege
to go, their presence could be regarded as illegal by force of prescription.
This shows the statute of 1430 not the novel and reactionary measure
sometimes represented, but, like most early statutes, declaratory of the law.
392 The Period oi Constitution iviaKing
The subject of the electorate in the boroughs presents a
serious problem at the outset. The usual writs of early
times simply ordered the sheriffs, to return so many
citizens and burgesses from such cities and boroughs as
lay in their respective counties. 1 It was not long, how¬
ever, before certain cities and boroughs are found regularly
represented in Parliament, while with others the right or
rather the burden of representation had disappeared.
So haphazard has the line between these two classes
appeared that there has seemed to be no reasonable
explanation of it. The main difficulty has been in
attributing more value to borough representation than it
then had either in the thought of the king or of the
boroughs themselves. It has been thought that if in so
weighty a matter as representation in Parliament some
boroughs were represented while some were not, the
central government must have had a weighty reason for
making the distinction. But it was not a weighty matter;
the king levied taxes upon the individual boroughs any¬
way; 2 and, if he found a respectable number of burgesses
present, enough to give information and confer with him
about his proposed taxes, the fact that the others had
failed to come was a matter of indifference. The respon¬
sibility of dealing with the individual boroughs was left
to the sheriffs, and there is little indication that penalties
were imposed by the king upon the boroughs that failed
to respond. To the boroughs representation was a bur¬
den, and there were several instances in which the king
formally granted relief from it for specified reasons.
The growth of a recognized and rather small class of
1 Simon de Montfort dealt with the boroughs dire ctly, and t he same th ing
was done in one or two instanc e^ L, p uFltsoo n
became jhe mle^ the sheriffs .
* Whm the tax known as the tenth and fifteenth became fixed in character
early in the fourteenth century (see below, pp. 403, 404), the boroughs ap¬
pear to have had a special reason to escape representation if possible. The
represented boroughs paid the tenth, the rate fixed for urban property,
while the unrepresented boroughs paid the fifteenth of the rural districts.
And of course the boroughs which escaped representation escaped pay¬
ment of wages to representatives.
Parliament
393
represented boroughs is to be explained through the
relations between the sheriffs and. the boroughs in their
respective counties . 1 Some boroughs had become wholly
independent of the hundreds in which they lay, not only
in internal administration, which was true of all, but in
external relations. In the matter of summons to Parlia¬
ment, the sheriff dealt with such boroughs directly, not
through the hundreds’ officers. Dealing directly with so
powerful a king’s officer, these boroughs were the ones
most regularly represented. In some of the distant
counties, as Somerset, Devon, and Cornwall, the sheriffs
adopted the same direct summons in the case of boroughs
not independent of their hundreds and these were thus
brought into the class of represented places. The reason
for this was that when the sheriffs communicated with
boroughs through the hundreds’ bailiffs, there was a
tedious procedure, subject to chances and interruptions,
before the names of the chosen, representatives were
ready to be sent to the Chancery; and apparently in these
distant counties, the addition of the long and slow journey
from and to London made it impossible to get the returns
in before Parliament convened. Hence here the sheriffs
came to deal over the heads of the hundreds’ bailiffs.
A third class of boroughs lay in the great “liberties”
(usually much larger than hundreds): these must be
dealt with through the bailiffs of the “liberty.” In this
case, not even in the distant counties did the sheriff
venture to disregard the mediumship of the bailiffs, and
these boroughs, almost without exception, early ceased
to be represented in Parliament. Thus the boroughs
dealt with through the minor officials found it easier to
dodge the disagreeable duty. It may seem a trifling
matter to have produced so marked a distinction among
the boroughs of England, in the course of time the source
of marked political results; but in the early years of an
institution, when everything is in flux and small im-
1 Of course the really big towns of the south must always return mem¬
bers, and the same was true of the cathedral cities.
394 The Period of Constitution Malang
portance is attached to the beginnings of things really
great, petty and obscure influences may play a great
rble. 1 ' There was a general d ecline in t he number of
boroughs receiving the summons from th e one hundr ed
mit fenc of j 53 vrarg T 7 Tclav to^ about 144 5 when only
ninpt v-nine were summo ned. Then there was a slow
turning of the tide; eight new boroughs were added later
in Henry VI.’s reign, and Edward IV. added or restored
five. Under the later Tudors there was a rather rapid
increase. But there is much evidence that there was a
tremendous gap between the number of boroughs receiving
the summons and nominally returning members and the
number of burgesses actually present at a session in
Westminster. A careful study of the expense records
indicates that in many, perhaps most, Parliaments of the
fourteenth and fifteenth centuries the number of burgesses
fell below the stable seventy-four knights always present
for the thirty-seven shires. Thus it was not alone in
status and influence that the knights were above the
burgesses in the early Commons, but in numbers also. 2
The sheriff had about as much opportunity to manipu¬
late borough as comity representation. The writ ordering
the election passed through his hands and he might be
induced not to send it. Such suppression of writs seems
to have occurred occasionally in the last half of the
fourteenth century and later, when the list of boroughs
that commonly sent representatives had become quite
fixed. 3 Moreover, it was possible for the sheriff, since
the names of the borough members had to be returned
through him together with the results of the shire elec¬
tions, to change the names. This left the boroughs quite
powerless since the Chancery did not ordinarily go back
of the sheriff’s returns. There was no reason for this
abuse until seats in Parliament were regarded as worth
something. It was somewhat lessened through the peti-
1 For a full discussion of this subject, see Riess, Wahlrecht , ch. ii.
2 Pollard, Evolution of Parliament, pp. 316-319.
* A statute of 1382 provided for the punishment of sheriffs who omitted
boroughs that had before sent members.
Parliament
395
tions of individual boroughs or actions originating in the
House of Commons, and also by the new charters of in¬
corporation granted to some boroughs; these virtually
placed the electorate in oligarchies which carefully
guarded their rights and created a greater esprit de corps. 1
By the end of the fifteenth century, about eighteen im¬
portant boroughs had been granted the organization of
shires with sheriffs of their own. 2
The variety of borough governments, the slight inter¬
communication, and the small value set upon represen-
tation in Parliament resulted in lack of uniformity in the
’matter of election. The sheriff sent to the borough’s
bailiffs a copy of the writ received from the king requiring
that borough to send two representatives to the ensuing
Parliament. Ordinarily the choice was then made in
one of three ways depending upon the kind of government
the borough had developed: the bailiffs themselves made
the choice; they called a meeting of the most important
burgesses and consulted them in the matter; they called
a general meeting of the burgesses, in which case the
election was conducted much as it was in the county
courts, with a real, if slight, popular element in it. 3 The
1 As a rule the later the charter the more aristocratic was the borough
organisation. Here is seen the beginning of the small, close corporations
which came to control so many boroughs and in which the right of election
to Parliament was vested. These corporations perpetuated themselves
by co-option and often came to be controlled by some great noble who by
purchasing property in the borough practically bought the right to name
its representatives in Parliament.
2 London had become a county back in the reign of Henry I. The next
was not until 1373; this was Bristol. Then York in 1396. There followed
Newcastle, Norwich, Lincoln, Hull, Southampton, Nottingham, Coventry,
Canterbury. In some of the boroughs that became counties the 40s.
freehold qualification for the franchise was adopted.
3 Probably the last way was the commonest in the early years of Parlia¬
ment, but the tendency was away from anything like popular election.
It was generally looked on as a burden and not a right. In some boroughs
in the middle ages various devices for secrecy in connection with voting
were tried; these became commoner under the Tudors, when also ballot
voting was not uncommon. But all this was in connection with electing
town officers, almost always the mayor. Here there was competition and
intense interest. With one possible exception nothing of the sort has
v. ?en found in connection with parliamentary elections. ^ See Gross, The
Eo,; 1 '* History of the Ballot in England, American Historical Review, iii,
456-463.
396 The Period of Constitution Making
bailiffs sent the result to the sheriff, who included it in his
statement of the county election which was sent to the
Chancery. 1 Till the Tudor period the boroughs returned
residents or “neighboring gentlemen whom they regarded
with respect”; but the Tudors’ attempts to control elec¬
tions developed the practice of electing at times men in
distant parts of the country.
7. Origin of the Chief Powers of Parliament: Control
over Taxation; Legislation; a Share in Administration.—
What has already been said of the functions of the repre¬
sentative elements in the early Parliament has shown
them narrow and subordinate. The Commons were
present to vote taxes—which, paradoxical as it may
seem, dic fnot imply the right to refuse th em; tCLpgtition
humbly f to an swer questio ns? Thealmost servile part
played by the third estate in the French Estates General
of title same period was not unlike that of the corresponding
element in the English assembly. To be sure, the knights
of the shire, from their antecedents and local influence,
were accorded more consideration than the burgesses,
and in the union of these elements lay the greatest possi¬
bilities. But it was all possibility at the beginning of
the fourteenth century, and we turn now from the study
of its structural beginnings to see how Parliament grew
conscious of itself as something apart from the king and
started on the road to power; how it became an institu¬
tion fitted some day to gain or uphold the principles of
constitutional monarchy. Only the beginning of the
development is dealt with here, substantially what was
included in the fourteenth century; but in that period
nearly all Parliament’s activities were outlined.
A preliminary consideration is to account for the early
remarkable vitality of Parliament. In order that Par¬
liament should gain power of any sort, there must be
reasonably frequent meetings; the more frequent they
were in the early days, the more rapidly would grow the
1 On the general subject of the borough franchise, see Riess, Wdhlreckt,
pp. 59-62.
Parliament
397
esteem in which the institution was held. A new insti¬
tution is easily killed by adverse circumstances, by long
interruptions. It was of prime importance in Parlia¬
ment’s early history that there were almost yearly ses¬
sions. The battle of an institution is half won when it
has become to the popular mind something regular and
necessary.
Two things account for this early vigor: first, Parlia¬
ment was the country’s high court, and as such had much
and important judicial business; second, the political
'history of the fourteenth century was of just the sort to
■make such an assembly indispensable. When Henry II.
in 1178 created the Bench, 1 he decreed that any matter
which was too hard for these five justices should be
reserved for the royal audience. But this did not mean,
as Henry made clear, "that he was to decide it himself
alone, but that it was to come to him in his court, in that
body of royal counsellors, small or large, which with him
was the highest power in the realm. In the course of the
thirteenth century this more ample judicial authority is
sometimes seen in that body of justices which do justice
coram rege, and which finally became a court of pre¬
scribed powers, the king’s Bench; sometimes in the whole
body of baronial or other counsellors, including justices,
which surround the king, the thing which we begin to call
the king’s Council—and this seems higher; sometimes
in the summoned body of great barons which swallows
up the Council for the time being and meets more often
on the great church festivals—and this seems highest of
all. There is no hierarchy of courts here in which there
is appeal from court to court, but the last is the highest
in that it includes the others and no doubt the most
difficult points were kept for it. But this summoned
meeting of barons, in which there was much parleying as
well as judging, began to be called parliament at least as
early as 1239, and the name stuck and finally displaced
the older ones. Now sometimes when representative
1 See above, p. 177.
398 Tiie renod ot Constitution Mating
knights or burgesses were gathered by the king they
appeared before the Council, the body always in session,
but sometimes before the larger summoned council, before
a parliament 1 —sometimes before or with this body
when it was talking over some political matter with the
king, like taxation, 2 sometimes when it was holding one
of Its more routine sessions and judicial matters were
uppermost. From 1298 on this last was the most com¬
mon ; the short sojourn of knights and burgesses in West¬
minster at least partly overlapped in time with, and had
some other connection with, the high court of parliament.^
Indeed if the commons were to meet at all with the great §
council or parliament, it would normally be at judicial"
sessions, for most sessions were judicial. “The Rolls of
Parliament show that a larger part of the work of the
‘ Parliam ent ’ was what ^veTSouCT
sistmF"oF"S 5 os ecases tEiiTTiadT )^ 0T too
nov el for t he jud ges in the separate courts.” this
kind of work did not Teem a^fdpnate 7 ‘'“Traditionally
or otherwise, for the commons, it was the general prac¬
tice that “the cases were settled before these came to
give their advice or their money, or were left until they
had gone home again.” 3 But the point of importance
here is that more and more it was the practice, when
knights and burgesses were summoned, to unite them for
a part of the session at least with the “parliament” in
one of its ordinary meetings; and that when, as was bound
to happen, all these together were thought of as one
assembly and the name parliament had spread over them
all, the resulting Parliament of the fourteenth and fif¬
teenth centuries had all the life and vigor that its judicial
work was bound to carry with it. 4
1 Examples can be noted above, pp. 360-362, 364.
* The so-called_ Model Parliament of 1295 is an instance.
3 Mcllwain, High Court of Parliament, p. 25.
. 4 Professor Pollard places great stress upon this point. “It was to a
high court of law and justice that the taxing and representative factors
of parliament were wedded; and it was this union that gave the English
parliament its strength. Its absence, the divorce between French park-
Parliament
399
But if there had not been substantial political reasons
for the frequent summons of representatives and if
English knights had not formed a kind of natural bridge
or means of approach between barons and burgesses, it
is hard to see how this union with “parliament” could
have become a habit, with the resulting single-assembly
idea. The misrule and inefficiency of Edward II. caused
local oppressions and a demand for frequent meetings
of the body in which complaints might be made and
remedies sought. An article in the New Ordinances of
x 1311 says:
Inasmuch as many people are oppressed by the king's min¬
isters, . . . and for such oppressions can find no remedy,
save through the common parliament: we do ordain, that
the king shall hold a parliament once in the year, or twice, if
need be, and that in a convenient place.
This was a baronial scheme and no more may have been
meant by 44 parliament” than the great council, and yet
the representatives of shires and boroughs would have
been the natural bearers of mass petitions about the
“oppressions.” In 1322, when the Ordinances were
revoked under the leadership of the Despensers, these
royal favourites found it convenient, on personal grounds,
in taking their stand against the barons, to proclaim a
principle, which surely did not represent the practice or
even the general theory of the time, but the statement of
which must have had its importance:
but the matters which are to be established for the estate of
our lord the king and of his heirs, and for the estate of the
merits and estates, was fatal to orderly constitutional development in
France." It was the "judicial functions which made parliament the high¬
est law court in the land and gave it a framework and organisation strong
enough to save it from the shipwreck that overtook mere representative
bodies everywhere else." Evolution of Parliament, pp. 43, 55 * -^ut this
does not tell the whole story, much as we owe Professor Pollard for his
vigorous emphasis and clear statement,—as there is a slight attempt to
show in the text. The comparative constitutional history of England and
France is largely an unworked field.
4 oo The Period of Constitution Making
realm and of the people, shall be treated, accorded, and
established in parliaments, by our lord the king, and by the
assent of the prelates, earls, and barons, and the common¬
alty of the realm; according as it hath been heretofore accus-
tomed. 1
There is no doubt that “parliament” here was used as
including knights and burgesses. Early in the next
reign, 1330, while local abuses were still grievous, and,
from the context of the clause, because of them, again is
found the enactment “that a parliament shall be holden,
every year once, or more often if need be.” 2 Then began^
the great drama of Edward III.’s reign, a war drama
from beginning to end, a reign of fifty years, during which
there was constant and unusual need of money. Taxes
must be negotiated through Parliament, and the letter of
the statutory requirement of 133° was almost kept, for
there were forty-eight Parliaments in fifty years. The
late years of this reign and the whole of the following
were another period of factional strife, and there has
already been noted the importance in the history of the
commons of Richard IP’s intrigues with them against
the lords. 3 Thus for a full century after 1295 there were
political reasons for many Parliaments—Parliaments
which contained commons as well as lords. 4
1 A. and S., p. 97. Possibly it was the intention to express the same idea
earlier in Edward II.’s coronation oath. “Sir, do you grant to hold and
keep the laws and righteous customs which the community of your realm
shall have chosen (guas vulgus elegerit—les quids la communaute de vostre
roiaume aura esleu), and will you defend and strengthen them to the honour
of God and to the utmost of your power? I grant and promise.” See
Maitland, C. H. pp. 99, 100.
2 A. and S., p. 101. This was confirmed in 1362: “For redress of divers
mischiefs and grievances which daily happen a Parliament shall be holden
every year, as another time was ordained by statute.” Cited in Taswell-
Langmead, English Constitutional History , p. 251.
* See above, pp. 388, 389.
4 “There were no parliaments in 1364, 1367, 1370, between 1373-6,
1387, 1389, 1392, 1396, or between 1407-10. On the other hand in a con¬
siderable number of years there were two parliaments, in 1340 there were
three, in 1328 four.” Maitland, C. H. £., p. 178. In connection with
these very frequent Parliaments it must also be remembered that there
were no permanent taxes. Taxes were granted usually for a single occa-
Parliament
401
( The knights of the shire and the burgesses were from
the start conscious of the financial purpose which drew
them to Parliament. Especially was this purpose em¬
phasised by the circumstances which attended the sum¬
mons of the Model Parliament and the events of the two
succeeding years. Parliament was a taxing body from
the first. It was natural then that the first great contest
with the king should have been financial and that the
fi rst power to be developed should have been control over
t axation . Conscious control of taxation was the basis of
all that Parliament came to do in government which lay
^outside of the royal initiative. Something must be said
t of the development of the taxing idea since early post-
b'.^juest times and the circumstances of Parliament’s
a i ^rtion of control in the reign of Edward III.
' r* **
A.—When the king got together the different estates
in Parliament and taxes were dealt with, it was evidently
upon the assumption that taxation was a thing in whic h
all classes w ere concerned , a national taxation . It has
been shown that for a considerable time after the Norman
Conquest there was no understanding of taxation in the
modem sense. 1 The king had various sources of revenue
and means of supplying the needs of government, but his
attention was fixed upon classes of men. Each class had
a specialty, in some cases based upon private contract
or proprietary relations, for supplying the royal needs.
The king made his demands upon this, that, and the other
class of the population as opportunity dictated and upon
this, that, and the other different ground. Although the
action of later kings, such, as John and Henry III., tended
toward the transmuting of these old grounds into a public
obligation, yet the system gradually passed into disuse
sion, or at most in a few instances for two or three years. There was a
change in this respect in the fifteenth century through the development
of the tunnage and poundage taxes. See below, pp. 406, 427- .
1 S. K. i\ 4 i tr 4 , P n , Taxation Under John and Henry III., p. 2. i his is an
important authority on taxation in the pie-Parliamentary period.
402 The Period of Constitution iviaiang
as feudal ideas waned, and out of it national taxatior
did not grow. National taxation is characterised bj
fixin g the attention upon kinds of property rather than
upon classes of men, by taxing at one time all of a certain
kind of property irrespective of who holds it. Its s cope
is the nation, not the class, and its basis was public, n ot
private.
The - added expense of Henry II. ’s governmental ma¬
chinery, foreign wars, the third crusade, Richard’s ran¬
som, and a gradual rise in prices from about 1190 to the
middle of the next century created a situation which
demanded new sources of revenue as well as the develop¬
ment of old ones. The Danegeld, 1 which, as far as it
went, had been essentially a national tax, disappeared
under its old name early in Henry II.’s reign, but some
thing like it was levied occasionally throughout his lif .
In 1194 , however, a new baa^of_ass£S Sment for the la nd
ta x came into u se, the carucate or ploughland of one
h undred acre s. The tax levied on the carucate "was
known as carucage and was fi rst used in connection with
Richard’s ranso m. It was again levied in 1198, when"an
elaborate new assessment by the jury method was under¬
taken. Caruca ge was a n ational t ax, it was net-limited
t o men of a cla ss; and in the next century it was im ¬
portant, but that particular method of reaching lanrf
through taxation did not last beyond the reign of Henry
III. How large a part in the origin of taxation was
played by the Crusades and the popes as their managers
is coming to be well understood. The situation in the
East constituted a need international and pressing, in
meeting which the state was ready to co-operate with
the church; and feudalism, fitted for local undertakings,
was found wanting. In 1166 the first tax in England on
personal property as such, a tax of sixpence in the pound,
was levied for the relief of the Holy Land. The manage¬
ment of the third Crusade was openly undertaken by the
church, and money was to be raised by a tax on revenue
1 See above, pp. 119, 120.
Parliament
403
and movables. This was the famous Saladin Tithe. 1
An ordinance of 1188 imposed it upon England; the first
clause reads, “Every one shall this year give in alms a
tenth of his revenue and movables.” This new scheme
for raising money was not likely to be lost sight of in
such a reign as Richard I.’s; and when his great ransom
was raised it was used for the first time in a domestic
concern, and at a higher rate. From this time, the tax
was levied with more or less frequency and at greatly
varying rates; and the difficulty in assessing personal
property and income was met by the use of juries of
neighbours that has been noted as so important in leading
to the origin of representation in Parliament. 2 At first
some account was taken of the different classes of people,
as clergy, barons, knights of the shire, burgesses; but
^ rtly owing to the union of the last two elements in
"parliament and partly as a result of the inherent neces¬
sities of such a tax,
the old distinction between Estates gave way to a new dis¬
tinction based on the differen ce between town and country,
or, roughly, between reafand personal property and while
the ordinary proportion granted for dwellers outside a char-
t ered town was one-fifteen th, one-tenth was the set tled sha re
ofmhabitants of a parhamentaryEoroug li- 3
After 1332, because it was felt that this tax was being
excessively levied and because of the charge of corrupt
practices in connection with the 1332 assessment, it was
really decreased by allowing no new assessment of the
old type. In 1334, as a result of negotiations and agree¬
ments between the collectors and the townships and
boroughs, a sum of about £38,000 was raised. After
that this sum was taken as a fixed charge and, properly
1 A. and S., document 19; W. and N. f pp. 91, 9 2 *
3 Medley ^%nglfsh Constitutional History , p. 55a Boroughs and coun¬
ties had not necessarily been taxed at the same tune; the tenth had sorn^
times been levied at one time and the fifteenth at another. On the taxing
of the non-Parliamentary boroughs, see above, p. 392 and note 2.
404 The Period of Constitution Making
proportioned between town and country and with but
slight variation from time to time to meet a special
exemption or take account of some local calamity, was
known as the tenth and fifteenth . J With carucage and
the tax on movables
modern taxes began. In the first place, the basis of the se
levies^was property n ot ten ure; men paid (^ectl ynbo^th e
king, no matter of whom they In
the second place, Though the members of the council which
granted these aids may have thought that each acted for him¬
self, individually, yet the result of the deliberations was to
create a un iform tax, p roportional to the amount of property.
FinallyT^hem ^liin er y of asses sment and cSlecHon" was heW
(in taxation) am was national, not felidal?^ ~~ “
Perhaps the most notable development in this connection
in the thirteenth century was the growth of corporate
action on the part of the great council. In dealing in
money matters with such a king as Henry III. the barons
learned over and over again the lesson which had first
become plain to them in the drive for Magna Carta, that
in union there was stren gth. In the twelve-forties par¬
ticularly we note the rapidly growing use~oFsuch words
as communitas and universita s and the development of
stock^nlirase^ d enoting united actio n. B aronia l as the
great council was it m^ andTmore spoke as if it were
spe aking fox Jj be natio n, and it was rapidly learning to
drive a bargain with a shifty king and to attempt the
co ntrol of the expenditu re as well as the granting of
m§n§^ Indeed out of the feudaTno^^
co uld, not take an unusual aid from his vassalsjs dthout
th eir con sent wa s emerging th e_jflQii on that the nation
_ 1 J : F. Willard, The Taxes upon Movables of the Reign of Edward III
English Historical Review, xxx., pp. 69-74. For a discussion of the older
method of assessment, see Professor Willard’s The Assessment of Lay Sub¬
sidies, 1290-1332 , Annual Report of the American Historical Association
for the year 1917, pp. 283-292.
Mitchell, Taxation under John and Henry III , pp. 351, 332
Parliament
405
coul d not be taxed without its consent ; and the baronial
assembly curiously pictured itself as consenting or dis¬
senting for the nation. Much in the parliamentary
experience of the fourteenth century, when the nation
was in a sort represented, was anticipated in the baronial
dealings with Henry III.
Indirect taxes, in the form of cus toms duti es, had a very
obscure and t itful beginn ing and until the reign of Edw ard
I. played no important part in political action or thought .
But undoubtedly they antedate the ta xes on movab les.
They seem to have originated at the r oyal init-iatiVp and
to have b$en suggested, by. the very many local custom s
or tolls of the towns or fairs. They were usecTby kings
in the twelfth century, were on both exports and imports ,
and were most of them short-lived. They fell a prey to
~iie localism from whence they sprang; that is, they were
,^aten into by exemptions in the case of towns favoured as
& result of influential lords or The payment of money,
and they often passed into the hands of private nobles
thr ough infeudati on. 1 For a time in the re ign of Joh n
a more' thoroughgoing attempt was made to meet the
moun ting cost o f war, and a fifteenth, an ad valorem
du ty on exports and imports, w as levied. Then for a
halFcenturyT little or nothing is heard of this sort of
thing, when the “n ew aid” of 12(7 6. an ad valore m tax
on foreign trade, was instituted. The rate of this is not
known; neither is it known whether or not it lasted till
I2£5, the year in which was laid the “comer stone of t he
l ater customs system .” This was the “ ancient c ustom.”
granted by the first Parliament of 1275 , and was
half fl maxTr from each sack o f wool and half a mark fr om
each three hundied woolfells which make a sack and a mark
1 Some of these may date back to the Anglo-Saxon peri od, but their
antiquity is uncertain. The more prominent appear under the names of
lastage (on exports) anct scavage (on imports). See above, p. 51, note 1.
J'ojadiscusaonof thissuBl®!l, see N. S. B - ."Cras, English. Customs Revenue
up to 1275, Annual Report of the American Historical Association for the
Year 1917, pp. 295-301.
406 The Teriod of Constitution Making
fr pm each last of h ides 1 that issue ts jom th e realm as well in
IrSancTanTWales as in England.
This became the legal “ancient ” c ustom or tol l and any
hi gher rate w hich the king might seek to levy was called
a maMote , an evil tol l. Wool and hides were the great
English exports and such was the demand for them in
continental markets that England was long able to tax
these exports. Indeed in the matter of wool production
England had no real competitor except Spain; England
and Spain sold to the same market and yet a high export
duty was possible. The New Custo m of 1303 , besides
new and increased export du SesTco ntained reg ulations of
far-reaching importa nce in the matter of impo rt duties.
The New Custom dealt only with alienm^ diants residSi t
in England, granting them extensive trading privileges
return for the duties, but two of these, 2s. per tun on in^
ported wine and 3d. per £ value o n most other imp orts
and m any ex ports, served as models or prototypes of the
later well-known subsidy of tunnage and poundag e, paid
by bot h denizens and alie ns, and which in 1373 took the
general form which was to last for centuries, 2 It has
often been said that the import duties arose from the
king’s a ncient right to regulate trade with foreig n coun¬
t riesjm d t he exporTSu^^
their passing out ot tiie country affording a favorable
opportunity to assess certain kinds of movables. But
export duties certainly preceded any general tax on
movables, and these legalistic theories, though playing'
a part in later political thought, appear to have followed
an accomplished fact.
1 That is, cowhides. A last was a bundle of 200 hide s. A mark was
3§.4cL -” ^ —
, 3 In 1373, tunnage and poundage was a tax of 2s. per tun on imported
wine and 6d. per £ on general merchandise, imported or exported; but
with certain exemptions, the most important being exported wool and
hides, the duty on which of course had its special rates and history. In
tunnage and poundage “the chief developments following this were the
increase of the rate, the granting of the subsidv for the life of the king,
Mid the exemption of certain commodities from the tax.” Gras, Early
English Customs , p. 82. *
Parliament
407
In general, war has been the necessity that. fat.Wpr|
taxation. With the exception of the resistance to the
DaiusEf invasions, the wars of the Anglo-Saxon period
were petty. Those invasions resulted first in a wider
and more regular enforcement of the trinoda necessitas,
and finally brought forth the Danegel cL TRg~TJnr rnfl.n
dukes had fought at no great distances, and feudalism
served the military requirements of the duchy fairly well.
After the Conquest, one of th e most important roots of
taxation and of resistance to taxation in Baglaurl was
the*a ttemp t to make feudal servic e ex tend across the
Channel. Hence in the early protests the nobility
naturally took the lead. 1 But the income an d, personal
pr operty ta xes, also the offspring of war , were being more
and more used. All classes were concerned in these;
and as the indirect taxes were develope d during the
thi rteenth c eptpry, and gained recognition jn the reig n of
Edward I.fpowerful spedal in terests bec ame involv ed in
the problem of taxat ion. In the struggle of 1297, the
greatnoE 3 Hritill led, but all classe s were"~more~concerned
than in any preceding conflict and were learning the
less on of resistance to taxation as they could not in 1215.
Thus, just as Parliament was coining into existenc e, the
pe ople of England were learning that they could and must
co ntrol the king’s taxing power.
The vital promises made by the king in Confirmatio
Cartarum 2 read:
Moreover, we have granted for us and our heirs, as well
to archbishops, bishops^ abbots, priors, and other folk of
holy Church, as also to earls, barons, and to all the commun¬
ity of the land, that for no business from hencefo rth shall we
take such manner of aids, mises, nor prises, 3 from our realm.
1 For a discussion of the relation of feudal service to taxation, see above,
p. 120.
2 A. and S., document 48; W. and N., pp. 396-398.
3 These terms, of which it is dangerous to venture a technical rendering,
have the general meaning of “aids, exactions, nor seizures,” “seizures”
either equalling or including purveyance. See above, p. 51. There had
been an attempt to regulate purveyance in Magna Carta, article 28.
Parliament
409
•with the succeeding article dealing with the customs
duties, t o include both direct and indirect taxation ! But
the~kings~presumed themselves p ermitt ed, wi thout con -
sulting anyone, to levy the regular feudal aids and scutage ,
to taHagetheir doma m~towns , and to dodge th e custom s
a rticle by entering~int o private negotiations with mer¬
chants, especially a lien merchan ts who wo uld be in no
covered bv Confirmatio . These merchants were
granted valuable privileges in return for the increased
duties which they agreed to pay. 1 * III This veiling of a tax
under the form of a private bargain, in which, however,
one of the parties had small chance of dealing on an
equality, was the most important of these subterfuges;
for the export of wool, comparatively small before this,
was growing with great rapidity. Feudal aids, scutage,
and tallage of the royal domain were already antiquated,
played little part in the coming conflict, and were of no
consequence after the three Edwards. 2
The first real issue was upon indirect taxation. The
Commons, conscious that they were not strong enough
absolutely to prohibit the king’s breaking the letter or
the spirit of the customs article, adopted the device of
formally voting the money for which he had arranged
and would obtain anyway. They thus tacitly asserted
the principle that no money grants could be made without
their consent. The king made no objection to this
assumption of authority, provided he got the money; but
Parliament must have had a dawning perception that
such repeated assertion of principle was bound to bear
1 Purveyance, Commissions of Array, an d Distraint o f K'nivTithood were
minor IoOTS-of in dffECTTTggation ''retaine d PT lonyTor. a considerable
time, see Medley, English constitutional History, p. 256. Legislation
against purveyance began with. Magna Carta and continued to the end
of the middle ages, with but partially satisfactory results.^
* Tow ard T t.allaved the demesne m_i 3 Q 4 » Edward II. m 1312, Edward
III art?32.. But Parliament remonstrated with the king on this last
occasion and he abandoned the undertaking. Apparently this was the
last attempt to tallage. The amount of the aids became fixed by statute
in 13 so, the same for the king as for other’lords; and scutage was decadent.
By the middle of the fourteenth century the king s arbitrary power in
connection with these old levies was at an end.
410 The Period of Constitution Making
fruit. Edward III., under the pressure of the new war
with France, showed, in 1340, his intention to levy a
generally increased custom on wool and hides, similar to
the maltote of his grandfather. Parliament, to prevent
the arbitrary action, made a regular grant of the custom
to be in force for a specified time, and containing a pro¬
vision that after the expiration of that time no custom,
beyond the ancient custom, that is, the one established
in 1275, should again be levied. This was almost im¬
mediately followed by a statute which contained a
broader prohibitive provision. Referring especially to a
large subsidy granted at the same time that the increased
tariff had been arranged, it stated that the people should
not
be from henceforth charged nor grieved to make common
aid or to sustain charge, if it be not by the common assent
of the prelates, earls, barons, and other great men, and com¬
mons of our said realm of England, and that in the Parlia¬
ment. 1
This was a reassertion, after nearly half a century of
intermittent conflict, of the principle of 1297, and the
added clause respecting Parliament is very significant.
That Parliament was strong enough to gain this acknowl- _
edgment from Edward III. indicates that the victory
was practically won, the principle of parliamentary con¬
trol of taxation established. Scarcely ever after was it
called in question; the energy and ingenuity of kings was
expended rather in dodging it. The date 1340 is, there¬
fore, a most important one in the growth of Parliament’s
power. An act of 1362, confirmed in 1371, to the effect
that no one, without the consent of Parliament, could
negotiate any charge upon wool, seems to have brought
to an end the private dealings with merchants. 2 How-
1 A. and S., document 59.
3 For a specific instance of resistance to such dealings, 1343, see A. and
* <V ment ; 6 5 * T he Ordinance of the Staples, 1353, shows something
ot the merchants strangers' 1 and of the rate of the customs duties in that
year; M, document 74.
\
"W!
Parliament
411
ever, the results of those dealings, having passed into
custom, continued to advantage the king, and the maltote ,
so resisted in 1340, became a regular charge upon wool
through parliamentary action before the end of the reign. 1
It seems to have been the earlier idea that clergy, Lords,
and Commons should make their money grants separately.
In a way this remained true of the clergy, who granted
money in Convocation; but the Commons really con¬
trolled, for Convocation became bound by custom to
grant at the same time and proportionately with Parlia¬
ment. By the end of the fourteenth century Lords and
Commons were making their grants together, and the
Commons, who bore the real burden of taxation, were
coming into the foreground—according to the formula
which came into use in I3Q 5> the grant was made by the
Commons with the asse nt of theZ Lords . 2 ~ ~~
B/—In connection with the dooms which king and
witan made in the Anglo-Saxon period, it has been re¬
marked 3 that the use of this word shows that there was
in mind no distinction between a court judgment and
this act, which, lacking a better term, we call legislation;
both were to them the utterance of existing law , a thing
immemorial, fundamental, not makable. There had
been remarkably little change in this notion of law and
legislation down to the fourteenth century. William
the Conqueror's “laws” were administrative adaptations
of existing law; while under Henry II. there were laws
“ made,” as we must say, which were in origin administra¬
tive directions with no formality of intention, or being in
the realm of procedure, as were many of his assizes, were
not thought of as touching the realm of law at all. If
the king were strong enough and wise enough he might
thus powerfully legislate without knowing it. When
the king did this sort of thing, he ordinarily acted through
his court, his council small or large—and his court was,
1 Parliament was bound in time to recognise that the so-called maltote
was not an exorbitant charge.
3 See below, pp. 429, 430. 3 See above, p. 55 and note 1.
412 The Period of Constitution Making
more than anything else, a court of law. The king sought
counsel and information, but he was not dealing with a
national assembly standing over against him and repre¬
senting another interest. When the barons resisted the
king, they did it individually or in groups with force of
arms, they did it as a feudal nobility; they did not fight
out issues in parliamentary manner in an assembly. When
the king acted formally it was through his court; it was
the king in action.
During the thirteenth century, the oneness of king and
court—especially in the form of the great council—was
less marked than before. The union of barons at Runny-
mede and the constant call for united action against
Henry III. could not but be reflected in the temper and
work of the great council, and to us there seems to have
been the beginning, though of course unrecognized at the
time, of some law-declaring authority outside the king.
Something has already been said 1 of the curious and
changing “legislation” of the thirteenth century and the
early uses of the word statute, but here, where attention
is more centered upon a developing assembly, it should
be emphasized that some slight distinction was being
made between a routine applying of law and an applica¬
tion which had such novelty in it as to imply change.
In the latter case the consent of the barons was more and
more felt to be necessary. When representatives of
counties and boroughs were being added to the great
council an element of confusion was introduced so great
as to do violence to any theory—had a theory really
existed. The king might get information, advice, con¬
sent from any element of his people thus brought to the
center, and the ordinance, or whatever one may choose
to call it, based upon this action, was enforcible. But
this constituted no recognition of a right on the part of
these elements to a share in legislation. There was no
i dea of legislation as a right to be soug ht or shared. In-
deecTlegislation as an act of government distinguishable
* See above, pp. 237-240.
Parliament
413
from judicial or administrative action was not thought of.
These powers of government, as we regard them, were
then one, an undifferentiated power. But it is permis¬
sible, indeed necessary, in tracing governmental growth,
to label and classify individual exercises of this power
according to which aspect—judicial, legislative, admin¬
istrative—appears uppermost. The ^statutes’’ of Ed-
w ard I/s reig n appea r distinctly legislative^
of most governmentaTlvo^^ cen¬
turies they were prematurely such. But they imply no
n ew source of l aw-declaring power. Quia Emptores,
1 2.2P, relating
was d eclared bylS^
of Merchan tsipn owedaconsulta tion with the burgesses
alone, and in both cases the i ntroductorvTor mula was
ancient and th e sam e. Yet the statut e rolls began in
thi?felgn; the JSng^ or someone in authority felt that there
were acts importe d to record , acts appro-
pria tely grouped under the descriptive word statu ta ,
things established or fixed. Yet whether or not reflected
in formula or recognized as a general principle, the idea
was fitfully present that we have glimpsed early in the
t hirteenth centu ry, that in the more formal declarat ions
of laja^it was necessary f or the king to have a somewh at
ge neral consent or^BaHEuig T^l^ corona-
tion oath of Edward II., and most distinctly in the docu¬
ment revoking the New Ordinances, 1322. The import¬
ant clause, already quoted in another connection, must be
repeated here:
. . . but matters which are to be established for the estate of
our lord the king and of his heirs, and for the estate of the
realm and of the people, shall be treated, accorded, and
established in parliaments, by our lord the king, and by
the assent of the prelates, earls, and barons, and the com¬
monalty of the realm; according as it hath been heretofore
accustomed. 1
1 A. and S., p. 97. See above, pp. 399, 400.
414 The Period of Constitution lviaKing'
This was perhaps a bit of political theorising by the
antibaronial party. But it is significant that such a
theory could have been formulated. Supposing, how¬
ever, this theory to have become realised most perfectly,
it could still only have meant that the king had to obtain
the consent of Parliament to measures he himself pro¬
posed; there was nothing in it to interfere with the
monopoly of initiating measures which he had always
possessed. No assembly can progress at all hopefully
in the direction of any kind of legislative activity that
is to give it an independent position in the state nn1p< ? s
it has the means and the power to introduce measures
of its own. To understand how the English Parliament
gained these another side of its early history must be
examined.
As the knights and burgesses began to sit more regularly,
for part of the session at least, with the great council,
now usually called a parliament, it was as a rule in a ses¬
sion of parliament when that body performed its regular
duties as a high court. 1 This judicial side of the work
continued and has never wholly passed away. This
work came to Parliament in the form of petitions. These
petitions were received without charge and were of the
most varied sort, most of them from individuals. Many
of them alleged the law’s delay or stated some other bur¬
den or disadvantage under which the petitioner found
himself; some of them were because the Chancellor could
not issue a new writ which the case seemed to demand or
presented some other phase of novelty or difficulty.
These petitions came first to the “receivers and triers”
who were often appointed in advance of a session of
Parliament. The receivers were clerks whose work was
merely mechanical; the triers were judges plus, ordinarily,
some earls and barons. The triers dealt finally with
many petitions, sending them to the ordinary courts
where they belonged, which was a virtual rejection, send¬
ing them to the courts with an order for some special
1 See above, pp. 397, 398.
rarnament
4 i 5
treatment, often an order which brought a dilatory pro¬
cedure to a swift close, later many to the Court of
Chancery, and in the case of the more difficult bringing
them to Council or Parliament—the triers themselves, of
course, being a part of the Council, and the Council of
the great council or Parliament. Whether or not the
Commons ever really shared in this more routine work of
the High Court of Parliament it is impossible to say. It
was a work that declined as the developing court of
Chancery and later the Star Chamber drew large parts
of it away. And yet it has been estimated that as
late as the end of the middle ages nearly half the work
of Parliament was judicial. However from the early
fourteenth century this phase of Parliament’s work
decreased while something else increased. It grew less
as a court, it grew more as a political body; the judicial
aspect waned, the legislative became more prominent.
But to see this we must return to petitions.
The right of every subject to petition the sovereign
had always existed. Early petitions may be divided
roughly into two classes: most petitions, as later, came
from individuals or very small groups and dealt with
individuals’ wrongs and came to the king and his court,
either as the small or great council; but occasionally there
had bee n petitio ns, or perhap s remonst rances, presented
by lar ge bodies of men acting toget her and dealing wi th
matters ol quite general concerm Such had been the
barons’ articles upon which. Magna Carta was based, the
petition of J25& which residteTlnTThe Provisions,__of_
O xford ; and the Confirmatio of 12,02. with it s all-impo rt-
ant added articles on taxation , came from a petition of
just this type and may be rej^rded as a sort of crowning
pre-Parliamentary instance. These movements had re¬
sulted in documents, most notable and influential docu¬
ments, but hard to classify. In the fourteenth and fif¬
teenth centuries the individuals’ petitions were dealt
with by triers and Parliaments as stated above. They
were in the judicial field, they were matters of private
416 The Period of Constitution iviaKing-
law. The common petitions, after knights and burgesses
were regularly in Parliament, would naturally arise there.
Parliament was representative, it was often enough in
session, it was fitted to express public sentiment, it could
replace the irregular and revolutionary risings which had
been the only means of voicing general grievances. These
petitions were rather in the realm of public law, they
were political. 1
The growth of the common petition was the natural result
of the collection of knights and burgesses in a common gath¬
ering at Westminster and of the collective answer the crown
required to its requests for money. Members from divers
constituencies could hardly fail to fall into a habit of com¬
paring notes, possibly at first in informal conversation and
afterwards in more regular ways, with respect to the peti¬
tions with which they were charged; and sooner or later
they would be impressed by the extent to which these indi¬
vidual petitions had a common foundation in the normal
behaviour or misbehaviour of the ministers of the king,
judges, sheriffs, escheators and so forth. Before long it must
have occurred to the shrewder among these early parliament¬
arians that it would be wise to pool their petitions and their
powers of pressure upon the crown. It was an elementary
form of union, for which the crown itself had paved the way
by demanding common grants of aids and subsidies from
the commons at Westminster instead of demanding them
from individual “ communitates ” throughout the coun¬
try; ... 2
1 While we thus see a qualitative as well as a quantitative difference
between the individual and common petitions, this was hardly in mind
at the time. “ By no sharp line can the petitions of the assembled lords and
commoners be marked off from the general mass of those petitions which
are to be expedited in the parliament by the king and his council. At a
somewhat later date the line will be drawn; the petitions of the assembled
commons, the petitions of 'the community of the land/ will be enrolled
along with the king’s answers to them; petitions addressed to either of
the two houses will be enrolled, if they have received the assent of both
houses and of the king; but the ordinary petitions presented to the king
and council by those who have grievances will not be enrolled, though as
of old many of them will be answered in parliament by committees of aud¬
itors.” Maitland, Introduction to Memoranda de Parliament, pp, Ixxiv., #
Ixxv.
a Pollard, Evolution of Parliament, pp. ii8, 119.
Parliament
4i7
The “powers of pressure upon the crown” were at
hand. Bargaining with the king for concessions of one
kind or another in return for money had been an expedient
thoroughly tried out by the barons in the course of the
thirteenth century. An important early instance was
the third reissue of Magna Carta. In the last article
the clearest possible statement of the bargain was put in
the mouth of the king.
In return for this concession and the grant of these liber¬
ties and of the other liberties contained in our charter of lib¬
erties of the forest, archbishops, bishops, abbots, priors,
earls, barons, knights, free tenants, and all of our realm have
given to us a fifteenth part of all their movables. 1
The circumstances of Henry III.’s reign and his personal
character fostered this bargaining spirit and many illus¬
trations of it could be given. It was not Inst p-ven in the
masterfu l reign of Edward I. and came out prominently
in the tr oubled last decade of that r eign. As it became an
established pnnciple early in thefourteenth cent ury that
t h e kin g could not tax without P arliament’s con sent and
as Farliament gained practice and grew conscious of itself
from frequent meetings, there came to be a more routine
use of the old thirteenth-century bargain. Parliamen t
found itself possessed of a valuable commodity in exchange
for which it might expect something of equal value from
the king; it had money or the pow er to gran t mon ey and
the king had the right "to grant petitions . Upon this
cornerstone most of t he powers of Parliament have be en
builL The gran t of money was postponed until after
re drftRR of prleva nces: Th is device was used by Parlia ¬
ment as early as 130 9, and it soon became customary to
postpone money grants until the end of the session. 2 It
1 Stubbs, Select Charters, p. 350. .
1 Taswell-Langmead, English Constitutional History, pp. 248-250.
The Commons allowed a tax “upon this condition that the king should
take advice and grant redress upon certain Articles, in which their griev¬
ances were set forth.” The list of grievances is an interesting one. In
A. and S., document 66, is a grant of tenths and fifteenths for ft limited
4 i 8 The Period of Constitution Making
seems to have been early the intention and understanding
on the part of the Commons that when a common petition
had been assented to by the Lords and granted by the
king the resulting regulation should have the force and
permanence of a “statute,” as that term was coming to
be used under the three Edwards. 1 This was specifically
demanded in 1327. “ The common petition is_thns th o
root of the hous e of commons as a separate legi slative
asseinbiyT”'*"
TEeTdng, however, possessed several methods of render¬
ing these granted petitions ineffective, and he used them
with skill and persistence, some of them lasting long after
the infant stage in parliamentary legislation. The king
h ad the right to legislate outside of Parliament , ordi-
nar ily taking such action througETii s' Council. It was the
oldlorm of legislation, not clearly defined,'the expression
of the king’s early plenary power to declare law or ad¬
minister it; it was the letter patent, or the ordinance—to
time and on conditions (1344), and document 68 is an excellent example of
a grant on conditions (1348). A much later instance is in document 114
(1413), See also Gneist, History of the English Constitution , p. 367, note.
In the reign of Richard II., the postponement of money grants to the end
of the session was one of the matters dealt with in the famous replies of
his judges to the list of questions put to them by the king. The time of
his tyranny proved but a temporary setback to the attempts of the Com¬
mons in this line.
* See above, p. 239 and notes 2 and 3. Could statutes be made on petition
of the clergy as well as of the Commons? It seems at first to have been the
understanding that they could. There were two great divisions of human
affairs, spiritual and temporal^ king and Lords could enact in the former
on request of the clergy and in the latter on request of the Commons.
Bu t m 137 7 the pommons^l emanded that no statute or ordinance be mad e
on “ie dergy withouFTheir consent. The point' was.really
settled, indeed haa oeen, Dy the mthdrawal of the clergy, as clergy, from
Parliament. Yet the continuance of clerical summons (see above, p. 379)
made it impossible for the clergy to claim that laws were being declared
about them m an assembly from which they were excluded. The peti¬
tioning part of Parliament was the Commons. All through the fourteenth
century and occasionally in the fifteenth, the language of the granted peti¬
tion made this clear: “b y advice and assent of the T,nr^g of special
request of the Commons.*' "Later' nr the, tiftfip.ntb ppnttiry jt was more
commonly - by the advice and assent of Lords and Commons. ” The Lords
were not thought of as petitioners; ordinarily, as far as they were con¬
cerned, the king could initiate—much of the old royal court dung to them,
x et on occasion they introduced measures.
* Fqfedj Evolution of Parliament , p. 120.
Parliament
419
give it the more appropriate name for this later period.
At the close of a session of Parliament the petitions upon
which action had been taken would need to be enrolled,
and, until well into the fifteenth century, it was left al¬
most wholly to the Council or to the judges to determine
what petitions should receive the formality and perma¬
nence of statutory enrolment and what not. And of
course either Council or judges were quickly responsive to
the king’s will. When therefore a granted common peti¬
tion, one in which the Commons had united, received the
less formal enrolment it was felt that the king had not
acted in good faith. It ran counter to the dawning no¬
tion that a statute was something more solemn and perma¬
nent, and, however dimly, that another law-declaring
power had collaborated with the king in making it. 1
There were, however, not many instances of such action by
the king after this distinction had become clear. But
king and Council still made ordinances and these were
sometimes used to limit or injure a statute which the king
had not been able directly to prevent. 2
A further difficulty lay in the king’s assumption of the
) right to annul a statute . This illustrates the difference
between ordinances and statutes and worked powerfully
at the time to clarify thought upon the matter. The
king had been able to annul an ordinance because he had
made it. He could destroy that which rested upon his
sole authority. Edward III. tried to annul a statute.
In 1341, a radical measure was passed, an important pro¬
vision of which was th at ministers and judges be appointed
b y Parliamen t; the king,f inder threat of no subsidy , was
fo rced to assent to it, and it became a statute. 3 After
1 The development of these ideas is seen in the protests and requests of
the years 1353 and 1354. See A. and S., documents 75 and 76.
3 But for a time in the reign of the despotic Richard II. they were seri¬
ous. “What is the use,” asks a contemporary, “of statutes made in par¬
liament? They have no effect. The king and his council habitually alter
and efface what has previously been established in parliament, not merely
by the community, but even by the nobility/* Cited in Maitland, C, H. 22 , t
pp. 187, 188.
3 A. and S., document 62.
420 i ne renoa or constitution Making
Parliament was dissolved, the king declared the statute
null and sent a notice to that effect to all the sheriffs. 1
That this was regarded as an unwarranted action is shown
by the facts that the next Parliament regularly repealed
the statute and that this is the only known instance in
which the king went to such an extreme. When the king,
by countenancing Parliament’s repeal, acknowledged that
he could not annul a statute, he acknowledged that there
was now in England a second source of legislative au¬
thority. It was no longer a matter of a specially solemn
kind of ordinance with a large backing, with the king still
in theory the one source of law; but a statute, to make
which another source of law appeared alongside. The old
theory had been broken, and the people, through their
e lected representati ves, made writtemlaw . More and
more king, Lords, and Commons were coming into co¬
ordinate relation, any one of the three by refusing to co¬
operate exercising a veto power. 2 Ordinances grew less in
number and importance; they were looked on more as
temporary or emergen cy me asures. There has been a
fieldToFTSemnSPffie intervals between Parliaments or
upon occasions when immediate action was necessary.
They were known later as Orders-in-Council. Even in
this scope, they did not remain a means of infringing
statutes; for Pa rliame nt finally got such control over king
and Council as to control their legislation.
But there were other less radical means of attacking
statutes. An important and long-continued one was the
1 A. and S., document 63. The language of the annulling order is interest¬
ing; it illustrates the notion that law was something which could not be
changed even by a statute. This statute was annulled because it was “ ex¬
pressly contrary to the laws and customs of our realm of England, and to
our prerogatives and rights royal.” The king then goes on to represent
that he granted the petition practically under duress and that “the said
parliament otherwise had been, without dispatching anything, in discord
dissolved.” Which means, ^ of course, no more than that Parliament
was pursuing its regular policy of postponing money grants to redress of
grievances. The king had consented in order to get money, and then
claimed that his consent was “pretended.”
a The last time the veto power was exercised by the sovereign was in
1707. It could not be used after the cabinet system of government came
into existence. Since 1911 the Lords have had only a suspensive veto^
Parliament
421
king’s use of the dispensing, and suspending powers.
These grew out of the same root as his power to make or
annul an ordinance. The maker of a regulation could dis¬
pense with its operation in individual cases or suspend it
for a time in certain classes of cases. Some exercise of a
dispensing power is necessary for any executive; for no
rules of law, however good, can be enforced with absolute
rigidity without at times working injustice. The right
to pardon those convicted of crime is the commonest form
of such power. But there is evidence that the fourteenth-
century kings so used the dispensing and suspending
powers as to make Parliament fear for its statutes. How
consciously they did this to fight Parliament it is hard to
tell. The dispensing power, which was then the more
common, was in the eyes of Parliament, as truly an in¬
vasion of their domain as the making of a new writ in
Chancery or the extension of the jurisdiction of the Coun¬
cil. 1 It was often used in the reign of Edward III.
practically to license crime, pardons being given before
the accused were brought to trial; and the character of
the crimes, of which the king seems often to have known
little, discredited it still further. Attempts were made by
the Commons in 1328, 2 1330, 3 1347, and 1351 to do away
with the abuse, but, despite promises by the king, it
continued. Under Richard II., a statute was passed for¬
bidding the issue of pardons in the case of serious crimes,
unless they specified the nature of the crime and contained
the name of the culprit. This principle, although often
violated, has remained in the law of pardons. At the
end of the century, nothing had been done to regulate the
dispensing power outside the matter of pardons, and it con¬
tinued a vague and dangerous factor in the royal prero¬
gative. The suspending power was then seldom used, but
in it lay even greater possibilities of despotic action.
Since statutes usually began as petitions, it was neces¬
sary in engrossing the granted petition as a law, putting it
1 See above, pp. 213, 214 and note 2, 220, 221, 300, 301.
* A. and S., document 56. J Ibid., document 57.
422 The Period oi constitution Making
in statutory form, to make changes in its wording. An<
these changes might extend to unwarranted changes ii
sense. This work was entrusted, as was natural, to th<
judges of the common-law courts. As members of th<
Council these judges were, until the middle of the four¬
teenth century at least, full-fledged members of Parlia¬
ment, and thereafter its authoritative advisers in all
matters relating to the law. In view of this fact and the
fact that the embryonic statute came to them usually as
the barest outline of principles, the judges would naturally
interpret their task liberally. It
meant not merely the penning of the statutes; it extended
to the form, and probably, to some extent, to the subject
matter itself. The brevity of the statutes when completed
shows how much these judges who framed them were inten¬
tionally leaving to be interpreted by themselves or their col¬
leagues in the light of the individual circumstances through
which the statutes would be brought before them in the
courts. 1
This whole situation inhered in the fact that legislation
had had its genesis in petition. Until a new method of
initiating statutes had arisen Parliament could never feel
sure that it had really made them. 2
C.—In its endeavours to control taxation and in its
development of the statute-making power, Parliament felt
bound to assume or see k some resoonsib ilit ^Tu TtEFadmin-
is trative sid^oL^rovernment . How inevitable thisTwas
has already been incidentally shown. It remains now to
notice more directly the beginning of a line of develop¬
ment which has, in modem times, resulted in complete
harmony between the executive and the legislature, with
the latter, representing the people in substantial control.
. I McIIwain, High Court of Parliament, pp. 324, 325. “Why should a
juage have any great awe of a statute, which perhaps he himself, or, at
most, his predecessors in office, had helped to make; of which possibly
the whole form and expression had been the work of himself, and his
colleagues of the Bench? ” Ibid.
3 See bdow, p. 432.
Parliament
423
f
In using these terms for departments of government, it
must be remembered that men in the fourteenth century
knew no such distinctions. It is easy to think that a
struggle for liberty on the part of the people began at this
time, the people for the first time being able to act in an
effective way through a representative Parliament; 1 and
in one sense such a struggle did begin. But the partici¬
pants were not conscious of it as such. The king was not'
upholding royal prerogative against government by the
people; he was simply resisting something which was tak¬
ing away his power, without seeking to justify his action
upon any dogmatic basis. The House of Commons was
conscious of administrative abuses; its constituents were
suffering from them; it sought an extension of power to
remedy these abuses; but uninfluenced by a theory of
government by the people. And there was no limit to the
power it sought; for, being unconscious of any categories
of government, it could know of no propriety in observing
limits beyond which the legislature should not extend its
activities. There was no legislature as such, and no self-
conscious emulation among powers which were “sepa¬
rated.” So king and Parliament began their long conflict
in the naive, short-sighted, unidealistic fashion in which
nearly all medieval conflicts were fought. However, the
relations between the two in the fourteenth century were
far from continuously hostile; in many instances, they
worked together for common ends with much good feeling.
In the strict sense they were not two: “the king in his
council in his parliament” was as yet the undivided high¬
est authority in the realm.
As the first business of Parliament was to grant money,’
a natural extension of its activity was towards ensuring
honesty and accuracy in its collection and in showing an
interest in its expenditure. 2 In 1340, parliamentary com¬
missioners were appointed to audit the accounts of the
1 Only a few people were represented in the Commons if we t hink of
representation as conditioned at all upon election.
3 See the closing words of article i in the famous statute of i 34 ®> and.
S., p. 105; also document 61.
424 1 lie .Period of Constitution Making
collectors of recent subsidies 1 ; and in 1353 a subsidy was
granted with the stipulation that it was to be used only
for the war. This interest in public business, in the char¬
acter and work of public officials, accounts largely for the
extreme statute of 1341 2 ; the auditing commissions were
renewed, the appointments of important public, officials
and judges were to be sanctioned by Parliament, and in
that body these men were to swear to the observance “of
the Great Charter, and the Charter of the Forest, and all
other statutes, without breaking any point.”* This act
went too far, and in the following Parliament the king
secured its repeal. When, in modem times, control of
the ministry was finally secured, it was by a different
method, but the statute of 1341 is undoubtedly prophetic.
However, there was one permanent achievement in this
line dating from the fourteenth century: parliamentary
i mpeachmen t, the first instance of which was i n 1^76 - 4
The historical and legal basis of impeachment lay in
Parliament regarded as a high court and in the Commons
as the grand inquest or jury of the nation. It was the
trial before the Lords of persons, generally officials, im¬
peached or indicted (the two words originally meant the
same) by the Commons for a public offence; the Lords
ju dged, the Commons jp rosecuted. This bringing to
trial the king’s most powerful ministers, in a manner
likely to secure justice as it could not be secured in the
royally dominated or locally intimidated courts, and for
offences which, though serious, might not be technically
admissible there, was the one clear-cut technical method
of controlling the crown which the middle ages bequeathed
to modem times.
. 1 A., and S., document 61. For later examples of parliamentary supervi¬
sion of accounts, see ibid ., documents 83-86. For other instances of parlia¬
mentary interference of this general sort, see Maitland, C. H. E., p. 184.
1 See above, p. 419. 3 A. and S., p. 108.
*Ibid., document 82. See also the interesting impeachment of Suf¬
folk in 1386. Ibid., document 93. Treason was first defined by statute
m 1352- (Ibid., document 72.) This may have suggested inHiVting
men for treasonable offences in Parliament. On the origin of impeachment,
see Medley, English Constitutional History, pp. 175, 176.
Parliament
425
Two more general ways in which Parliament touched
administration remain to be mentioned. Throughout
the fourteenth century, the Commons were diligent in
pointing out abuses, especially in judicial administration,
the burden of the complaint being that the king’s judges
and other officials, notably the sheriffs, did not vigorously
and impartially enforce the laws. 1 To get such informa¬
tion was one of the original objects with the king in sum¬
moning representatives, and he made much use of it.
He took the Commons into his confidence and quite
regularly asked their advice upon judicial matters and
upon the best methods of holding his officials in check.
The second matter had to do with Parliament’s participa¬
tion in foreign affairs. In the reign of Edward III., the
war with Prance was the greatest subject of popular
interest, while the troubles with Scotland were of no
small importance. Voting money to maintain these
undertakings almost necessarily made Parliament a coun¬
sellor at the crisis, when it came to questions of concluding
peace or continuing the war. In 1319,
straightway after Easter a parliament was held at York
where it was unanimously agreed that our Lord the King
and all his barons should journey towards Scotland in the
next month after the feast of St. John the Baptist.
In 1333,
the King by the Chancellor asketh whether it were best to
treat with the French by way of amity or marriage accord¬
ing to the offer of the French. The Commons think the
way of marriage the best.
In 1369,
the king held a parliament at Westminster, where was con¬
sidered what is best to do about the rebellion of France, not-
1 Taswell-Langmead, English Constitutional History, pp, 248-250; A. and
S., pp. 94, 95, and documents 56 and 57.
426 The Period of Constitution maKingf
withstanding her writing and her oaths. There it was con¬
cluded the king should challenge his right again. 1
Parliament was thus consulted many times and often
expressed its mind freely, but in the latter part of the
reign it was less inclined to give positive advice. It prob¬
ably felt that too avowed a partnership with the king
might be embarrassing when it came to financial dealings
with him. 2
8. Parliament in the Fifteenth Century.—There was
a slowing up of institutional growth after the fourteenth
century. The growth by no means stopped, but, con¬
trasted with the three preceding centuries, the fifteenth
was a time of practice and precedent, of a djustm ents, the
w orking ou t of details. There was in it also a hint of
modern political self-consciousness. Men began to ask
questions about, and look appreciatively upon, institutions
which had been made without awareness and accepted
without comparison or curiosity. Some of the fifteenth-
century history of Parliament has of necessity been cov¬
ered in the foregoing topics; the purpose here is supple¬
mentary, to deal with matters which specially character¬
ise the period or which could not be conveniently brought
in earlier.
Two acts of the fourteenth century have been noted
which provided that Parliaments be held annual ly or
more frequently if necessar y. 3 The kin g had been in the
habit of assembling his feudal court for short sessions at
least three times a year: the judicial side of its work was
probably the chief cause of this regularity and frequency.
It was with this court, now called Parliament, that knights
and burgesses were being assembled for part of the session
at least early in the fourteenth century. But its rapidly
decreasing work as a court of law made it unnecessary to
*For these references (Chronicles of Edward I . and Edward II., ii., 56;
Cotton’s Abridgment , p. 9; Capgrave, Chronicle of England, p. 226), I am
indebted to Professor Notestein.
3 For Parliament’s efforts and accomplishments in controlling the Coun¬
cil early in Richard II. ’s reign, see above, pp. 299-301.
3 See above, pp. 399,400.
Parliament
427
meet so often, and annual Parliaments came nearer to being
the rule in the long reign of Edward III. The sessions
remained short; the knights and burgesses especially felt
it a burden to be called from home, where they had im¬
portant concerns which these trips to Westminster badly
disturbed. But as the political importance of Parliament
grew and it was found that things could be done there of
use to the representatives and their constituents as well
as to the king, richer men were returned from both county
and borough, and they were not in such a hurry to get
home. Also the scheme of voting taxes for more than one
year began to be used in the reign of Edward III.; and
before the end of the fourteenth century, it was found that
a Parliament might on occasion be prorogued instead of
dissolved, thus making it unnecessary to have a new elec¬
tion for every new session. For these reasons, annually
elected Parliaments ceased. Sovereigns never seem to
have felt obliged to adhere strictly to the statutes requir¬
ing them, and in the fifteenth century these fourteenth-
century statutes, though still unrepealed, were unheeded.
The frequency of new Parliaments and the frequency and
length of sessions came to be determined almost wholly
by the circumstances and needs of the time. The power
of the king to summon, prorogue, or dissolve Parliament
at pleasure was unquestioned. Henry V., Henry VI.,
and Edward IV. were less dependent upon Parliament for
money than were the earlier kings. Tunnage and poun d¬
age gave them a more regular revenue, and forced loans'
and later, benevolence s, helped. In Edward IV.’s reign
of twenty-two years there were but six Parliaments, and
there was a period of five years in his reign during which
Parliament did not meet. Yet there is no evidence that
he or any other pre-Tudor king was attempting to fight
Parliament or build up a tyrannical power by doing with¬
out Parliament.
The origin of the Speaker of the Commons is very ob¬
scure. The Commons did not have the privilege as indi¬
viduals to address the Crown, to present petitions, to
428 The Period of Constitution Making
make formal replies to questions addressed to them.
These things must be done through some one of their
number appointed for the purpose. Their discussions
were carried on, not in the Parliament house, but in West¬
minster Abbey, and when a decision was reached they
returned across the street, and one chosen to speak: for
them made the formal reply in their hearing in Parliament.
Such was the origin of the Speaker, of whose existence we
get but a scanty trace in Edward III.’s reign, but whom we
must suppose regularly functioning in that reign, or per¬
haps earlier. Whether the Commons chose him or had
any voice in his choice we do not know. In the reign of
Richard II. the Speaker appears as a well recognised
official, but did not in any true sense represent the body
for which he spoke, being usually controlled by one or
other of the factions in the nobility. Under the Lancas¬
trians he more distinctly belonged to the Commons.
They named him, but the nomination was subject to the
Crown’s assent. There was little esprit de corps among
the Commons and so little mutual acquaintance in the
case of a newly elected House that a sovereign who so de¬
sired could practically name the Speaker. This was
regularly the case during most of the Tudor period. The
political importance of the Speaker might be great, for he
was the official medium of communication between the
Commons and the king; a servile Speaker could render
the work of the House abortive in many ways. Of the
procedure of the Commons in the middle ages, of their
sessions and debates when they sat by themselves across
the street and wrought out the answers or requests which
the Speaker delivered at their head in Parliament, or how
or when he became their presiding officer, there is nothing
known. The earliest surviving records of the proceedings
of the House of Commons are for 1547. In the fifteenth
century the Speaker was almost always one of the shire
representatives, but with the rise in importance of the
borough members at the end of the century this ceased to
be the rule.
Parliament
429
There were some important fifteenth-century changes
in Parliament’s exercise of power and in the relations of
Lords and Commons. The interruption to the practice
of postponing money grants to redress of grievances in
the despotic last years of Richard II.’s reign, was a matter
of concern under his Lancastrian successor. In 1401, the
Commons prayed the king that they might know his
answers to their petitions before any money grants were
made. Henry refused this on the partially unhistorical
ground that it had not been the practice of his prede¬
cessors. 1 But he could not hold this position. Under
all ordinary circumstances, the Commons could hold out
longer without granted petitions than the king could with¬
out money. Kings in England had built up no standing
army, no professional military force under their control;
they could not take their subjects’ property by the strong
hand, and the C ommons’ consent was a necessit y. There
was quite a steady growth in the practice of postponing
money grants throughout the fifteenth century, and grants
with more or less specific conditions attached were the
rule.
There arose, however, in 1407 a problem which involved
the relation of Lords and Commons in the matter of money
bills. It was readily disposed of in favour of the Com¬
mons, but it was important. The king and Lords had had
a conference about a grant of money to be made by the
Parliament then in session and concluded upon a tenth and
fifteenth and a half. This was clearly regarded as settling
the matter, but of course the Commons would have to
assent. Accordingly they were asked to send a deputation
to the conference, and the twelve men sent were told what
the king and Lords had determined and were then bidden
report it to their associates, with the implication that
speedy acquiescence was expected.
Which report having been made to the said commons, they
were greatly disturbed, saying and affirming that this was in
1 A. and S., document 109.
430 The Fenod ot Constitution MiULOg
great prejudice and derogation of their liberties; and when
our said lord the king heard of this, not wishing that anything
should be done at present or in time to come, which could in
any way turn against the liberty of the estate, for which they
were come to parliament, nor against the liberty of the lords
aforesaid, willed and granted and declared, with the advice
and assent of the said lords, in the following manner. That is
to say, that it is lawful for the lords to discuss among them¬
selves assembled in this present parliament, and in every
other in time to come, in the absence of the king, concerning
the estate of the realm and the remedy needful to it. And that
in like manner it is lawful for the commons, on their part, to
discuss together concerning the state and remedy aforesaid.
Provided always-that the lords on their part and the com¬
mons on theirs, make no report to our said lord the king of
any grant granted by the commons, and agreed to by the
lords, nor of the negotiations of the said grant, before the said
lords and commons shall be of one assent and of one accord
in the matter, and then in the manner and form customary,
that is to say by the mouth of the speaker of the said com¬
mons for the time being, to the end that the said lords and
commons should have the agreement of our said lord the
king . 1
The words “ granted by the commons and agreed to by
the lords” renewed the formula of 1 30^ and certainly show
that it was the intention to have the initiative in mon ey
gran^lie jwith^the Common s: and it became, in the fif-
teenth century, a recognised principle that all money bills
must originate in the lower House. To be sure, the Com¬
mons had the right not to concur in a grant originating
with the Lords or, as in this case, with the king and Lords,
but they foresaw the amount of pressure which might be
brought to bear in favour of a money bill once formulated
and that the right to formulate it was no empty one. 2
* ^his i s P ai *t ot the so-called “schedule of indemnity ” which the king
ordered entered on the roll of Parliament. A. and S., document 112.
2 , JJ ls 1 was the beginning of a long and important line of development.
By the late seventeenth century this right was interpreted as meaning
.h^t t ne . Lords could not am end n- monev bi ll: they must acce pt all or re-
jectau. By the nineteenth century the Lords had practicaKy lost the right
Parliament
43 i
The right of each House to carry on its preliminary dis¬
cussions independently of the other and both independ¬
ently of the king, and that the king was to have no con¬
cern in a bill until the Houses had become a unit—axio¬
matic principles of parliamentary government—were
being worked out under favouring Lancastrian conditions.
They were broken often under Tudors and Stuarts, but
there were fifteenth-century precedents for later parlia¬
mentary historians to cite.
In leaving the subject of money bills, it should be added
that, before the end of the middle ages, the king had hit
upon two famous ways of dodging the principle, set forth
in 1340, that there could be no taxation without the con¬
sent of Parliament. Forced lo ans began with Richard II.;
they were, as the name implies, negotiated without the
option of the lender, and their payment was always im¬
probable. In the reign of Edward IV., the b enevolenc e
was invented. This was theoretically a free, but actually
a forced, gift taken by the king from the wealthier people
of the realm. Benevolences were often winked at by the
Commons, who felt that if the king got his money in this
way he would be less likely to burden the poorer classes
with regular taxation.
The difference between a forced loan and a benevolence
or free gift is not easy to grasp; for a loan taken at the king’s
pleasure might also be repaid in his own good time, and with
a complaisant Parliament to back him the distinction entirely
disappeared. 1
These devices were used to great effect by Tudors and
Stuarts and were supplemented by that last and most
famous dodge of constitutional taxation, the Stuart
to reject. For an excellent short account of this evolution, see Taswell-
Langmead, English Constitutional History , pp. 549 “ 55 1 * This complete con¬
trol of money bills by the Commons is the key to much of the great epi¬
sode of the Lloyd-George Budget and the Parliament Act, 1909-1911. See
W. and N., Problem VIII.
1 Medley, English Constitutional History , pp. 577, 578.
432 The Period of Constitution Maying"
“ship-money.” They were not used after the Great Re¬
bellion. z ~
It has been seen that a vexatious means of defeating
Parliament’s legislation was the alteration of the wording
of granted petitions by the judges who engrossed them
as statutes. 2 At the beginning of Henry V.’s reign,
this was made a matter of formal protest by the Commons.
The king replied that nothing should be “enacted contrary
to their asking whereby they should be bound without
their assent.” 3 But despite this promise, there was still
danger that the thing might be attempted upon occasion.
A great advance towards remedying this evil began appar¬
ently about the middle of the century; it was to do away
with the petitionary language and introduce bills, which
were, in form and language, completed statutes and be¬
came such by the united assent of Commons, Lords, and
king. 4 It was a slow change, but was completed before
the end of the first Tudor reign.
Later on the House of Lords also began to originate Bills,
which were sent thence to the Commons; and it gradually
became the established rule of Parliament, that with the
exception of Money .B ill s., which - must come from the Com ¬
mons. and of Bills affect ing the Peera ge (e.g., for the resti¬
tution of forfeited honours), which must come from the. T.nr da,
a ll other Bills might be originated in either House. 5
/
l x In the reign of Richard III., a statute was passed abolishing benevo¬
lences (A. and S., document 133). This was afterwards disregarded on the
ground that Richard was a usurper, which made laws passed during his time
invalid.
3 See above, pp. 421, 422.
s A. and S., document 117.
4 Although, after the use of bills the judges had no opportunity to make
changes, the sovereign might introduce modifications before the royal
assent was given. Elizabeth seems to have been the last sovereign to do
this. In the fifteenth century the form of the sovereign’s assent to a bill
was, what it still is: Le toy le veut. The veto was in the polite words:
Le toy s'avis era.
5 Taswell-Langmead, English Constitutional History , p. 293. In recent
years the House of Lords has almost wholly ceased to initiate legislation.
Ministries, no matter to what party they belong, introduce their measures
in the House of Commons.
Parliament
433
The courts attempted during the fifteenth century to
supplement fourteenth-century legislation on the dispens¬
ing power. 1 Subtle distinctions were drawn between the
cases in which the king could and could not exercise
the pardoning power. It was found difficult to apply
these in the practice of the courts, and perhaps their only
result was the evolution of the principle that the pardoning
power could not be so used by the king in behalf of an
offender as to deprive a third party of a claim growing
out of the offence. As to the suspending power, attempts
were made to limit it, but little progress was made. Both
of these powers were abused by later sovereigns, especially
the Stuarts. By the Bill of Rights, the suspending power
was abolished, while the dispensing power was placed
under effective parliamentary control. 2
The advances which Parliament made in the Lancas¬
trian period in its control over taxation and legislation
were small in comparison with the easy and sweeping suc¬
cesses which it seemed to gain over the administration.
The hard-fought beginnings in this line which belong to
the fourteenth century, when masterful kings resisted
and, in some lines, Parliament drew back from the as¬
sumption of too great responsibility, gave place to such
sudden and thorough-going control over king and minis¬
ters that one begins to question its genuineness. Especially
does one wonder at the sudden boldness and initiative
of the Commons, and the suggestion has been made that
the Commons, as the petition-making body, was some¬
times the channel through which petitions passed that had
had their inspiration with the Lords. Such things might
easily be done when the purposes of the two did not diverge
too far, and in some of these Commons’ demands upon
Lancastrian kings there may be an echo, or more than
an echo, of the old baronial jealousy of the royal
1 See above, p. 421.
a A. and S., pp. 464, 469. For further information on the dispensing and
suspending powers, especially in modem times, see Anson, Law and Cus¬
tom of the Constitution , L, 297-305; ii., 228-230.
434 The Period of Constitution Making
power. 1 Henry IV. was a parliamentary sovereign in a sense
in which none of his predecessors had been; to secure his
fam ily upon the thron e he fel t obliged to be on good terms
wim his peop le] The first andlnoiFconspicuous att'feihpt
of P arliam ent in the administrative line was to control
the a ppointmen t of ministers and hold them strictly
responsible tor their acts; TEiTwasliKe resumptiorTbf a
policy that was very marked in the early part of Richard
II.’s reign. 2 Formally, Parliament seldom, if ever,
attempted to come quite so near the actual appointment
as had been rashly proposed back in 1341; 3 but during
most of the Lancastrian period, the king’s appointees were
practically nominated by Parliament.
In 1406, the Commons gained the king’s assent to a
lengthy petition of thirty-one articles that, at first sight,
seems a great achievement in constitutional government.
In the first article, the king was required to
elect and name sixteen counsellors and officers pleasing to
God and agreeable to his people, on whom he could rely,
to advise him and be of his Continual Council until the next
Parliament, and a reasonable number of whom should be
continually about his person.
One cannot read of this limited group of counsellors and
officers, some of them to be specially near the king, and
of the implied dependence upon Parliament without the
thought that here was a suggestion of the Cabinet. It
indicated the direction which governmental development
would take when, after long and hard experience, the
people through Parliament came to their final and maturer
control of the executive. In the articles following, there
was much about the limitations, functions, and responsi¬
bility of the members of the Council and the officials,
even providing for their being sworn in Parliament to
1 This suggestion has come to me in a paper by Professor J. E. Neale on .
The Commons' Privilege of Free Speech in Parliament, the manuscript of ■
winch has been, placed in my hands through the kindness of Professor ^
Notestem.
3 See above, p. 300. s Ibid., pp. 4x9, 424.
Parliament
435
observe the common law and the statutes, and much about
economy in administration and the king's household. 1
For a time in the reign of Henry IV., king, Council, and
Parliament worked together in an astonishing, if some¬
what artificial, harmony.
Notwithstanding this activity in holding ministers
responsible, it so happened that, after the reign of Richard
r II., Parliament found few occasions to exercise its power
I of impeachment until the notable case of the Duke of
Suffolk in 1449. But during the rapidly changing Parlia¬
ments in the period of civil war and bitter personal ani¬
mosities immediately following, the judicial procedure of
impeachment was found too slow in dealing with political
enemies. Bi lls of attaind er (also called acts of pains and
penalties ) came into use, and until,, xd^x. there was not
another impeachment. These bills were a variety of the
private bills growing out of the individual petitions which
Parliament entertained, and like all such were partly
legislative and partly judicial in character. They con¬
tained the accusation and provided for the punishment of
the persons against whom they were instituted, and were
introduced and passed like other bills. 3 Thus there was
no need, as in impeachment, to bring in evidence or go
through the forms of court procedure. The man c harg ed
i n the bill was condem ned unheard,. The courts, as was
natural, came to look askance^Ttnese acts, but dared not
directly impugn the doings of the High Court of Parlia¬
ment. Sometimes bills of attainder were useful in deal¬
ing with powerful misdoers, the nature of whose offences
made it hard to furnish evidence at all satisfactory to a
tribunal which regarded itself as strictly a court of law.
But punishing men by legislation has, for the most part,
been an abuse, whether as in the Yorkist period, a means
1 For the provision quoted and a summary of the articles, see Taswell-
Langmead, English Constitutional History, pp. 296-298.
a On the origin of Bills of Attainder, see Stubbs, Constitutional History,
§371; Pike, Constitutional History of the House of Lords, p. 229; Anson,
Law and Custom of the Constitution , i., 337 ; Medley, English Constitutional
History , pp. 176, 177.
436 The Period of Constitution Making
of wreaking factional vengeance, or when the Tudor
sovereigns used their obedient Parliaments to rid them¬
selves of their personal opponents.
Further administrative gains of Parliament in the
Lancastrian period were its victory in the matter of
a uditing public expendit ures, a function claimed under
Edwardin^ andltsgreaEly extended counsels in matters
of national policy. 1 In 1406, the public accounts were
asked and, the king being ill at the time, it was answered
in his name that 4 "kings were not wont to render ac¬
counts/' This, however, seems to have been but a feeble
remonstrance, for Parliament continued to press for them,
and in 1407 the accounts were voluntarily produced by
the king. From that time, this right of Parliament was
never directly denied. In counselling the king, Parlia¬
ment no longer showed fear of assuming responsibility,
as in the preceding century. So fully did it feel in control
of the granting and expenditure of money that all critical
questions arising in the conduct of the war with France
were considered by it, and there were few matters of na¬
tional importance in which the king did not take into his
confidence the representatives of the nation. In conclud¬
ing this summary of Parliament’s fifteenth-century means
of controlling the king, it should be stated that in the
right to audit public accounts and in impeachment and
bills of attainder Parliament had something more perma¬
nent and practical than resulted from its schemes to gain
complete control by dictating the ministry.
An evidence that Parliament was maturing was the
emergence of what came to be known as its privileges .
Customs grow in an aging institution, taking the form
often of immunities or rights. In an institution of grow¬
ing importance, one which has to guard against attack
or loss of power, some of these begin to stand out as
specially valuable and become definable and technical. 2
1 See above, pp. 423-425.
3 “In the wide and loose application of the word ‘privilege'the privileges
or peculiar functions and usages of the house of lords are distinguished,
Parliament
437
In the sixteenth cent ury it became the custom at the
opening of Parliament for the Speaker of the House of
Commons to make formal request of the sovereign to
r ecognise the customary privileges of the Ho use. This
was done regularly in the reign oTEHzaEetE7isolated
instances are found earlier, but whether they indicate a
custom we have not the means of knowing. Many
p rivileges were sough t by the Commo ns before the end of
Eli zabeth's reign, but three, whose origin goes back to
early times, have been regarded as fundamental. The
three are these: f reedom ofjaccess to the sovereign throug h
their Speaker; freedom fr om arrest or molestation during
the "fm 5 e"oT Parliam inf ^^
can be said of their medieval beginnings, but much is left
in the dark, especially relating to freedom of speech, be¬
cause no records survive earlier than 1547, of what the
Commons did in their separate meetings in the Chapter
House. The Parliament Rolls tell only of their answers
and decisions reported in Parliament by their Speaker.
Freedom of access was almost always recognised by the I
sovereign. Each peer ha d the right on the ground that he *
was an hereditary counsellor of the crown. This did not
mean, of course, that he was a member of the Council; the
right went back to the parent stem of both Council and
House of Lords, the king’s feudal court, in which the
vassals were in personal relation with their suzerain. The
from those of the house of commons; the privileges of individual members
of the house of lords may be distinguished from the privileges of individual
members of the house of commons; both again have common^privileges
as members of the parliament; and the lords have special privileges as
peers, distinct from those which they have as members of a house co-ordi¬
nate with the house of commons.” Stubbs, Constitutional History of
England, §448. It is with the “common privileges as members of the
parliament” that we are concerned here, and it was in this connection
that the term took on its technical meaning. Y et, as will be seen, the polit¬
ical significance of the privileges lay almost wholly in connection with
the House of Commons and there was where the struggle for them took
place. They are not to be confused with the functions or powers of Par¬
liament considered in Part III., §IIL, 7 - For a detailed enumeration
under the categories named in the passage cited, see Stubbs, op. cit. t
§§ 448—453.
1 For the first record of the exact words in which the request was made
see Prothero, Statutes and Constitutional Documents , p. 117.
438 me renoa oi constitution Making
Speaker of the House of Commons was the result of a grow¬
ing demand for a regular intermediary between that body
and the king. Through him the king spoke to the Com¬
mons and the Commons to the king. Also he became—
and the importance of this grew with the growth of legis¬
lation—the spo kesman between Co mmons and Lords.
Very early in the history of the Speaker we find him
ing himself against captious treatment on account of any¬
thing he might say through ignorance or carelessness. In
1401, Sir Arnold Savage asked that
if he should say anything through ignorance, negligence, or
in any other way which was not agreed to by his companions
or which should be displeasing to the king, or too little through
lack of wisdom, or too much through folly or ignorance that
the king would excuse him therefor, and that it might be cor¬
rected and amended by his said companions. 1
This was long felt to be a point to be guarded in connec¬
tion with freedom of access: in 1562 the Speaker had sub¬
stantially the same point in view when he asked
that in repairing from the Nether House to your Majesty or
the Lords of the Upper House, to declare their (the Com¬
mons’) meanings, and I mistaking or uttering the same con¬
trary to their meaning, that then my fault or imbecility in
declaring thereof be not prejudicial to the House, but that I
may again repair to them, the better to understand their
meanings and so they to reform the same. 2
It was freedom of speech through the Speaker, and is of
course to be distinguished from that of individual Com¬
mons in the private discussions of their House. To have
at all times the right to petition, counsel, or remonstrate
with their sovereign through their chosen representative
and have a favorable construction placed on his words
'A. and S., document 107. Such requests or protestations go back at
least as far as 1377.
3 Prothero, Statutes and Constitutional Documents, p. 117.
Parliament
439
was justly regarded by the Commons as a fundamental
privilege.
In connection with most early assemblies that were in
any way identified with the king, is to be found some idea
of a royally sanctioned safe-conduct; the king’s peace was
to abide in his assembly and was to extend to the mem¬
bers in coming to it and returning from it. Naturally,
these royal sanctions applied to Parliament. But as time
went on, molestation of members was more likely to be
through some process of law than through direct bodily
injury or restraint. 1 Unless Parliament could keep its
membership intact, free from outside interference, whether
or not the interference was with the motive of embarrass¬
ing its action, it could not be confident of any accomplish¬
ment. Early in Henry IV.’s reign, a request was made
that threefold damages be exacted of anyone assaulting
members on their way to Parliament. This request was
not granted, but what the king considered a substantial
protection was being enforced at that time. In 1430,
Parliament asked that the general principle be laid down
that no one of your said lieges, that is to say, lords, knights
from your counties, citizens, burgesses, in your parliaments
to come, their servants or familiars, be at all arrested nor
detained in prison during the time of your parliament, except
for treason, felony, or surety of the peace as was said before.*
But this the king was not ready to grant. However, he
allowed at the same time a specific instance of such im¬
munity in the case of a member’s servant who had been
arrested in an action of trespass. In 1332, a statute was
passed allowing double damages in case of assault upon
a member on the way to Parliament. In I 453 > came the
famous case of Speaker Thorpe, the only exception to the
privilege of freedom from arrest in the fifteenth century
and manifestly the result of the bitter partisanship of
1 But there may be a “modem importance of this point as a pointy of
privilege, rather in the threat of violence than in the actual infliction.
Stubbs, Constitutional History, § 452.
1 A. and S., document 122.
440 The Period of Constitution iviaKing^
the time. 1 There were many cases in the last half of
the century which confirmed the privilege, one of the most
prominent being that of Walter Clerk, who represented
the borough of Chippenham in 1460. 2 By the end of
Edward IV. ’s reign, the privilege had become established,
as also a method of procedure in case of its breach. '
The privilege was in no case extended to imprisonment for
treason, felony, or for security of the peace: it was loosely
allowed to the servants in attendance on members, and it
was claimed for a time preceding and following as’well as
during the session. The length of this period was variously
stated, and has not been legally decided. The general belief
or tradition has established the rule of forty days before and
after each session. 3
The third privilege, freedom of speech, was by far the
most important, though there could be no surety of its
exercise until freedom from arrest had been established.
When a king conceded freedom of speech, he was, con¬
sciously or unconsciously, conceding that Parliament was
a higher power than he; conversely, there could be no
assured government by the people, or any part of the peo¬
ple, unless their representatives had unquestioned pos¬
session of this privilege. Thus only the House of Com¬
mons was concerned in its vindication, and only in its
connection with that House could it be a matter of consti¬
tutional importance. 4 In the early Parliaments there
could be no issue on this point. Knights and burgesses
1 Thorpe was a Lancastrian and an enemy of the Duke of York- he
was arrested at the latter’s instigation for non-payment of a fine imposed
for a trespass. The Lords consulted the judges, who somewhat grudgingly
admitted that the privilege should be allowed, but carefully disclaimed"™
right to determine the matter, which, they said, lay wholly with the Lords.
The Lords, under Yorkist influence, decreed that Thorpe should remain in
prison.
’ T J? e / ec °, r j of this case especially well illustrates how the matter was
re f^ed a nd de^t ™th ft tins time. See A. and S„ document 127
3 otiibbs, Constitutional History, § 452 1
tW^ LordS v° f c 2 urse ’ P?ff ss the right equally with the Commons, and
thus it is considered one of the common privileges of Parliament. But it
^ never to have been an issue with the Lords. As Stubbs says, “he
Ste WoHords ^ attempted t0 sto P ******
Parliament
441
were there to do the king’s bidding. What little private
discussion they had on money or other matters which he
laid before them would not be likely to take a form of any
importance to him. They said what they chose, and no
one cared. But in the last quarter of the fourteenth
century and early part of the fifteent h conditions were
different. It was a time when t he country was sharp ly
divided into factions—the long pause in the Hundred
Years War brought turbulent elements back to English
shores; many people were tiring of the heavy taxat ion,
now that there seemed no very good reason for it; in 1377
that eccentric youth Richard II. came to the throne; and
on almost any basis of reckoning Parliament was in the
neighbourhood of a hundred years old, the Commons now
something more than a gathering of discrete juries to
answer the king’s questions. Under these circumstances
there could hardly fail to be things said and done in
Parliament that would rouse the king’s ire and bring on
bickerings and discussions which might easily harden into
notions of privilege. There was a feeling after something,
an evidence of a slowly rising clash of interests that dif¬
ferent types of occasion brought to the surface. The first
hazy tentatives in the direction of a free speech issue took
shape along the following lines: First, whether or not the
Commons should keep to the royal agenda, the program
laid before them in the king’s name at the beginning of
the session. Richard II. asked his judges whether Parlia¬
ment had the right to postpone his points (largely relating
to supply) and talk about others. Second, the Commons
wanted the king to accept information of their doings and
sayings only through responsible and approved channels.
Leakages and tattlings would be sure to distort and would
put them all in fear. Third, the direct issue, could men
be punished for their words in the Commons, words that
fell short of anything treasonable? 1
1 For a detailed account of the beginnings of the privilege of freedom of
speech in Parliament, see Professor Notestein’s paper in W. and N., pp.
161-176.
442 The Period of Constitution Making
In 12 Q 7 , a bill was introduced in the House of Commons
containing one clause which particularly angered the
king. It attacked the extravagance of the cour t, assert¬
ing that many bishops, lords, and ladies were living there
at the king’s expense. Richard felt that this was in special
derogation of his prerogative and demanded the name of
the man responsible for this clause. Acting for the Com¬
mons, the Speaker gave the name of Thomas Haxey.
It has been assumed that Haxey was a clerical proctor,
attending even at that late date under the preemunientes
clause. 1 But there is no absolute proof that he was a
member of Parliament. His bringing in a bill does not
prove it. However that may be, the king and Lords im¬
mediately enacted an ordina nce making it treason to
mo ve in Parliament anything touching the kitip^s royalty.
and under this ex post facto law Haxey was, two days after,"
condemned to death. Perhaps the king had no real in¬
tention to execute him; at any rate, the archbishop
claimed benefit of clergy for him and the claim was al¬
lowed by the king. Three months later, he was released.
But the first Parliament of Henry IV., assembled in the
Fall of 1399, was not satisfied to let the matter rest in
this condition. They claimed that “the said Thomas
was adjudged a traitor, and forfeited all that he had, con¬
trary to the right and custom which had been used before
in Parliament, in destruction of the customs of the com¬
mons.” And they asked the king
to amend that judgment and make it void as erroneous; and
to reinstate the said Thomas fully in his rank, estate, goods,
etc. ... as well in fulfillment of the right as for the sav¬
ing of the liberties of the said commons. 2
1 See above, pp. 373,379. The Commons assumed at this time a humble
attitude and raised no claim of privilege. Possibly, as a clerical proctor,
they did not regard Haxey as a member of their House and possibly he
was not; but there is no doubt that they were intimidated by king
and Lords, for they acknowledged an impropriety in entertaining the "
* A. and S., document 105.
Parliament
443
A reversal of the former judgment appears upon the roll
of Parliament. While we cannot be sure that the Haxey
case was a vindication of a member’s right to free speech
in the Commons, yet the language used proves that the
Commons felt that their customs and liberties had been
invaded, and the offence lay in the introduction of a bill
obnoxious to the sovereign, as so often in the reign of
Elizabeth.
The second Parliament of Henry IV., assembling in
January, 1401, was well placed to follow up this beginning.
The needs of the king were great, as shown by the open¬
ing speech of the Chief Justice. This gave the Commons
a hold upon Henry which they were quick to see; they
were a little nettled at the tone of the speech, which bade
them give more than usual attention to the affairs of
the nation and cautioned no one to go home until the busi¬
ness was over; and they were fortunate in the temper of
their Speaker, Sir Arnold Savage. His first address to the
king suggests those regular requests for privilege with
which the Parliaments of Elizabeth were opened. He
asked “that the said commons should have their liberty
in parliament as they had had before this time and that
this protestation should be recorded in the roll of parlia¬
ment ” This ‘ ‘ seemed honest and reasonable to the king!
and he agreed to it.” The Speaker further prayed that
the Commons might have “ good advice and deliberat ion
on thematters brought before them “without being
suddenly called upon to reply to the most important
matters at the end of parliament, as had been done before
this time.” The king replied that it was his intention
“to follow this order of action and that he did not imagine
any such subtlety, also that they should have good advice
and deliberation from time to tune as the need de¬
manded.” 1 Three days later, a further point was pressed.
The Speaker, in another address to the king, stated on be-
f half of the Commons
1 A. and S., document 107.
444 The Period of Constitution Making
how on certain matters moved among them, it might happen
in the future that certain of their companions, out of com¬
plaisance to the king, and for their own advancement, should
recount to our said lord the king such matters before they
had been determined and discussed or agreed upon among the
commons, by reason of which the said lord our king might
be grievously moved against the said commons or some of
them.
The reply of the king was
that it was his will that the said commons should have delib¬
eration and advice, to discuss and treat of all matters among
themselves, in order to bring them to a better end and con¬
clusion, in so far as they know how, for the welfare and hon¬
our of himself and of all his realm. And that he would not
hear any such person or give him credence, before such mat¬
ters had been shown to the king, by the advice and with
the assent of all the commons, according to the purport of
their said prayer. 1
Thus was the right of free and ample deliberation guaran¬
teed to the Commons at the beginning of the Lancastrian
period. In 1407, substantially the same promise was
repeated. 2 Then little is heard of the right until the
arrest of Speaker Thorpe in 1453. 3 Two privileges were
invaded in this case: Thorpe was arrested while he was a
member of Parliament and manifestly because of things
he had done and said in Parliament. It has already been
seen how unsatisfactorily the case resulted for the Com¬
mons, who practically acknowledged their defeat by al¬
lowing him to remain in prison and choosing another
Speaker. Thomas Young, a burgess for Bristol, was im¬
prisoned and suffered considerable loss of property for
something which he said in the Parliament of 1451. Four
years later, he presented a petition to the Commons, in
which he told them that they
1 A. and S., document 108. a Ibid., pp. 176, 177.
3 See above, pp. 439, 440, note 1.
Parliament
445
ought to have their freedom to speak and say in the house of
their assembly as to them is thought convenient or reasonable
without any manner challenge, charge, or punition therefore
to be laid to them in anywise. 1
Compensation was procured him at the king's order.
But
matter of privilege as it was, the prayer is for personal and
private indemnity: the commons seem to have no remedy
but petition, and no atonement is offered to their injured
dignity. So the case stands in the last years of the Lancastrian
rule. 2
Nothing can be added for the Yorkist period.
Clearly the conception of a Parliamentary right of free
speech had made progress in the reigns of Richard II. and
Henry IV. And yet the sum total of evidence is disappoint¬
ing. It would be hardly worth recording . . . were it not
that these early notions and precedents, however vague they
seem to us, were to be much used by the protagonists of priv¬
ilege at a later time. Strong bulwarks of liberty have some¬
times been erected on slight foundations. The truth is that
in the late fourteenth and early fifteenth centuries Parlia¬
ment was so little aware of its possible powers that it did not
conceive clearly the dangers besetting it. . . . How little
conception of a constitutional principle there was is best
shown by a consideration of the period of nearly a century and
a half that follows. 3
It is far easier to show the breach than the observance of
any lines of conduct looking to the preservation of the
privilege that had been tried in the earlier time. Then in
1576 Peter Wentworth’s great words sounded the note of
aHnew eraTanB^ not interrupted until not only
* Cited in Stubbs, Constitutional History , § 451.
a Ibid. 3 W. and N., pp. 170, 171,
446 The Period of Constitution Malang"
freedom of speech but its corollary, the supremacy oi
Parliament, had been won. The Bill of Rights says the
last word upon the subject when rt declares: “That the
freedom of speech and debates or proceedings in parlia¬
ment ought not to be impeached or questioned in any
court or place out of parliament.” 1
We are in the habit of talking of a ‘ 1 Lancastrian con sti-
tution” and thinking of that period as a time when the
Co mmons gained a premature control of king and Coun cil,
and in ways which hint of much that ismodernTn the
English form of government. Was the period so peculiar
and important in these ways that we should so think of
it? Or is the Lancastrian constitution mostly a myth
which exists because “Elizabethan and seventeenth-
century orators had a knack for weaving from thin Lan¬
castrian threads' thick cords to bind their kings?” Did
the Commons play as large a part as, from the Rolls of
Parliament, they appear to have played? These are
questions which are being asked by present-day investi¬
gators, and it is impossible yet to answer them. It is
true that Parliament had gained power slowly in the four¬
teenth century, and that in the early fifteenth, with Lan¬
ca strian kings having a parliamentary titl e and con¬
stan tly d fimuien Lupon Parliament formon ev. it rapidly
gai ned control of the administration . And it is also true,
and an important further point, that while the king was
being thus limited, a formidable power was gathering in
the hands of the higher nobility; in some respects, it was
a rebirth of feudalism. It has been noticed how the
Hundred Years’ War brought forth generations of lawless
nobles, whose misdeeds are usually summarised under the
practices of livery and maintenance. 3 All the guarantees
of liberty which lay in jury trial, in an uncorrupted bench,
and elections to Parliament were weakened. Parliament
wa s_getting control over the king, bu t it was not' g etting,
and was, pot of a character to get, control over the thing
that was then more dangerous ——~~—~
1 A. and S., p. 465. 3 See above, pp. 209, 388.
.Parliament
447
The activity of parliaments from the middle of the fourteenth
to the middle of the fifteenth centuries was transitory and,
unsubstantial; it was due to the w eakness of the mon archyl
and t he factions of the peer age, and was not based upon any
bro ad~hational ambition for self-government or sense oif polit¬
ical responsibility/
The replacing of the Lancastrians by the legitimist York¬
ists and the far more important and masterful Tudors
has sometimes been regretted as constitutional retrogres¬
sion. But at the end of the .fifteenth centm-v England’s
hope lay in an executive strong enough to humble the nobi l¬
ity . The Wars of the Roses marked a bad time. They
were the nobles’ own wars; the rest of the people suffered,
but were not interested. There was nothing to do but wait
until enough blood had been let to relax the vigour in that
nexus of old family feuds and personal bitternesses which
dated clear back to the reign of Edward II. All parts of
the constitution fared badly enough. If asked which
suffered the least, one must probably say, the House of
Commons. It was pretty openly and regularly packed,
and reflected the sentiments now of the red, now of the
white rose. But it is significant that it was packed; the
party in power did not attempt directly to override it.
And this was also true after the Yorkists had gained the
throne. Legitimists as they were, they had to have Par¬
liaments, and they did not think of the House of Com¬
mons as something to be ignored or browbeaten; rather
as a part of the government to be reckoned with and
manipulated. And surely the House of Commons reached
1485 much less shaken than the House of Lords; it had
stood for the most substantial part of England’s popula¬
tion; the momentous union of knight and burgess had
vindicated itself. There was a refreshing and immediate
clearing of the air when the first Tudor was on the throne.
He seemed the embodiment of sober and orderly strength.
His coming was a prophecy that the destructive forces
1 Pollard, Evolution of Parliament , p. 319.
448 I He Fenoa ot constitution Maying
fostered by the long wars would be controlled, and that
England’s medieval constitution would continue until
Englishmen had learned to value it and strive for it. The
field was cleared for the conflict between the great middle
class, trained in government for many centuries, and the
succession of incomparable Tudor and Stuart personalities.
Of the features of the constitution characteristic of the
modem period it is safe to say that the most matured by
1485 were the courts and common law, These‘”were 'al¬
ready v^ tmdifionB ==::: dSng the subject of
thought, and of writings that had become classical. And
on the whole the courts had developed a procedure that
safeguarded the subject from oppression. The substance
of habeas c orpus w as already in exist ence; unanimous jury
verdicts were necessary to convict in all serious criminal
charges, and questions of fact in civil suits were usually
determined in the same way; public officials, even when
acting directly for the king, were not immune from
damage suits or indeed from trial on criminal accusations,
and the facts were judged by juries. The king was clearly
under the law, though just what law and who upon all
occasions should hold him to it had not been worked out.
In this connection the baronage had played a part in
England that the corresponding class had played in no
other country. When we say that the government of
England in the middle ages was becoming constitutional
we mean that it was becoming aristocratic. But when
the batons fought against the king, it was not, generally
speaking, that they had a different macEuiery of govern¬
m ent to nut in operatio n: t £ev w ere j ^dv^^^
instit utions, forms, and methodsnvhich the kin g and his
mor e perso n al adyiser^ Ji ad been making. What they
wished was to control those institutio ns an d put their o wn
menJrd^he^ olaces of trust and power . Baronial victor¬
ies did not, as a rule^ weakening of the
government; a large part of the more professional staff
in the various departments were allowed to continue their
Parliament
449
work undisturbed, whether the great ministers, the heads
of those departments, were essentially baronial or royal
appointees. We may say that the baronage was not na¬
tional or popular—only, consciously or unconsciously,
posed as such. Yet the birth in the thirteenth century
of a conception of national, popular control of government
and its appropriation by the baronage were events of
great significance for the future. While not going the
length of some present-day scholars and regarding
Parliament to the end of the middle ages as a kind of ad¬
dendum to baronial factions, yet the voice of the aris¬
tocracy was heard in Parliament as no other voice. The
English barons grasped after privilege and power and
there are dark places in their history, but on the whole
from the time of Magna Carta they played a game that
was constructive and upon a high plane of intelligence.
How they came to be what they were and their share in
the m akin g of the English constitution have yet to be
adequately told. English kings had made no standing
army; to all appearance they had not tried. Perhaps the
baro nial opposition had been a force too stea dy and well-
considered. to have given them, after the decline of the
feudal army, an opportunity. B ut since the k ing-could
n ot use a militia to take taxes without consen t, the people
we re safe from this kind of despotism , except the rich w ho
might he reached through forced loans or benevolences.
Also the" now venerable principle that there could be v no
taxation without consen t of Parliam ent no doubt had
soxSrftohTeven upon thelninds of kings. The part played
by the people in English government went back, in some
of its phases, beyond record; but since the Conquest the
use of the people, especially in local government, had
worked into a settled royal policy. A share in govern¬
ment, even at the end of the middle ages, was not felt to
be a privilege except in the case of a few: the great minis¬
ters, possibly some members of Parliament or the local
magistrates, and minor officials who received stipends and
to whom government service was a means of livelihood.
450 The Period of Constitution Making
But to the great mass it was a burden so long borne ;
be a commonplace of life, as much a heavy accompanii
of life as bodily ills and weariness. A share in go^
ment was not a boon, but a duty that someone musl
and it had been the king’s will that very many sh
share in it. This long training surely did much to n
modem democracy possible. Professor Henry J<
Ford has recently said
Where liberal institutions have been successful they s
to have been dependent upon some past discipline mainta
by coercive authority, and as that decays liberal institut
seem to lose their ability to discharge the primary duti<
government. 1
Are we using up the political virtue stored during
past discipline as we are using up the fuel deposited
past geologic age, and are we coming to a time when
must look to some new source of supply?
In what were fifteenth-century people interested? !
to any great extent in forms of government, in theorie
public policy. These things which in modem times h
seemed worth the extreme of personal sacrifice touc
the minds of but very few. There were Fortescue ar
few others, to whom government was a study, but polit
theory had not been and was not an important fo.
Political problems were gotten through and crises i
on the basis of isolated precedent, with some instincl
fair-play and opposition to tyranny which had becc
the flavour of the whole working constitution; but v
the guidance or incentive of few general principles c
ceived to have values and sanctions in themselves,
there were ringing words, impassioned utterances, tl
were likely to be for faction or family, for national
personal loyalties; they were not for limited rnonan
per se, not for the people, not for liberty—in a word, tl
were for some people and some things, not for abstractic
1 Representative Government , p, 307.
Parliament
45i
When Peter Wentworth, in 1576, began his great speech
with “Sweet is the name of Liberty, but the thing itself
a value beyond all inestimable treasure,” he was saying
what could not have been said the century before. As
remarked at the beginning of this book, the period with
which it is concerned is primarily that of structural
growth in the constitution, also the time when many
generations of Englishmen got their hard discipline in
government; but full political self-consciousness, the
questioning of grounds of authority—first in the church
and then in the state—and the struggle for political lib¬
erty belong to the centuries following. The final out¬
lawing of absolute monarchy in the seventeenth century
and the principles of popular government then set forth
were made possible by the structure of the medieval
constitution, acted upon by maturing political thought
and democratic ideals sprung from the Protestant Revolu¬
tion, and also by the English people’s long training in
public duties and responsibilities.
INDEX
A
Abbots, grants of booklani to, 39,
41, 63, note 1; members of the
witan, 54; attend church councils,
61; in Normandy, 85; after Con¬
quest, 131, 133; in House of
Lords, 344-346, 373; in Convoca¬
tion, 374, 375
Access to sovereign, 427, 428, 437,
438
Aids, 120, 269, 270, 309, 370, 404,
407-409 and note 2
Alfred, 14,26,30 and note 1,48, 50,
56, 57 , 334
Angles, 7 and notes 1 and 2
Anne, 344, note 1
Appeals, none from court to court
in Anglo-Saxon system, 16, 57,
58; lord’s court not a court of,
191, 192
Appropriation of supplies, 423,424
Arrest, freedom from, 439, 440
Assize, 148, note 3, 227; and jury,
156, note 3; commission of, 173,
174 ; 327
Assize, Grand, 148, 355
Assize of Arms, 199, 326, 329, 352,
366
Assize of Clarendon, 149, 150, 158,
159 and note x, 162, note 4, 170,
181
Assize of darrein presentment, 147,
148
Assize of mort i'ancestor, 147
Assize of Northampton, 147, 150,
159, note 1,171 _ _
Assize of novel disseisin, 146, 147,
167
Assize utrum, 145,146,156
Athelings, 13
Athelstan, 14,15, 56, 57 > note 3, 68
Attainder, bills of, 435, 436
Audit of accounts, 423, 424, 436
B
Baron, Court, 190-192
Barons, and Statute of Merton, 239,
note 1; versus the king, Pt. Ill,
§ II, 1, passim; 448, 449; major
and minor, 338-342; minor, as
part of a middle class, 347-351
385
Barony, prelates holding by, 131;
as basis for summons to early
Parliament, 338, note I, 340, note
1, 376, note 2
Battle, trial by, lacking in Anglo-
Saxon system, 23 and note 1;
after Conquest, 161, note 1, 162
and note 3, 164, 327
Becket, Thomas, 243, 247-251
Bede, 59, note 1, 60, 63
Benefit of clergy, 151, note 1, 250-
253, 442
Benevolences, 431,432, note 1,449
Bills replace petitions,432 andnote4
Bishops, in shire courts, 17, 62;
grants of bookland to, 39, 41, 63,
note 1; members of the witan, 54;
character of, in early church, 60,
61; in early councils, 61; in Nor¬
mandy, 85; leave shire courts,
103; right of excommunication
limited, 128; displacement of,
after Conquest, 130; changes in,
after Conquest, 131; courts of,
242, 243; relations to benefit of
clergy, 250-252; in House of
Lords, 344-346r 373 ; in Convoca¬
tion, 374,375i ns barons, 376 and
note 2
Black Death, 193
BooUand , 26, 39-42, 58
Boors, 43 and note 1
Borderers, 43
Boroughs, origin and early history
of, Pt I, § 1 ,2, c; early courts of,
453
454
index
Borouglis— Continued,
30-32; effect of Conquest upon,
Pt. II., § II., 3; their courts in
later times, 186, 187 and note 1;
justices of the peace and coroners
in, 205, note 2; account to Ex¬
chequer, 308 and note 1; general
condition of, in thirteenth cen¬
tury, 364-366; representation of,
in central assembly, 364, 366, 367
and note 2, 373 and note 3; the
electorate in, 392-396
Bot, 24, 25
Bracton, 162, note 2, 191, 228, 229,
277 and note 2, 278, 282, note 1,
291, 292, note 4, 326
Britain, before Anglo-Saxon con¬
quest, 5, 6; Anglo-Saxon invasion
of, 7-12
Burgage tenure, 32, 33, 97, note 1
Cabinet, 137, note 1, 434
Canon law, 210, 217-219, 227, 231,
232, 245, 246, 249, note 4
Canterbury, Archbishop of, 59;
rivalry with Archbishop of York,
60, note 2; relations with king,
64; relations with Archbishop of
York settled after Conquest, 129
and notes 2 and 3
Carucage, 356, 402
Ceawlin, 46
Celtic survival in England, 5-13,
passim; 59 and note 1
Ceorls, 13; value of their oaths, 21
Chamber, the king's, 52, 124, 316-
319, 322, 323
Chancellor, 176, 212, 213, 216 (and
??T te 3)“22°, 224, 225, 300; Pt.
ill., § II., 3, passim; 414
Chancellor of the Exchequer, 176
177, note 1, 311
Chancery, as secretariat, 152 and
note 3; Pt. III., § II., 3, passim;
394, 421; as court, 211-226, 237,
238; enrolments of, 313 and note
2, 325, 352
Charles 1, 335, 336
Christianity, 19, 24, 42; effect of,
upon kingship, 48, 49; see church
Church, grants of bookland to 39-
42, passim; 50, 55, 57; general
account of, in Anglo-Saxon period,
Pt- § L, 4; Norman, 84, 85;
effects of the Conquest upon, Pt. ,
II., § IV.; courts of, Pt. Ill
5; relation to Magna Carta
268 and note 1
City, a cathedral borough
Roman cities in Britain 2
presented in Parliament
Borough
Clergy, in communal courts, 1
cease to deal with secular
231, 232; criminous, 243
representation of, 368-370,
376; withdraw from Parliai
379; share in legislation
note 1
Clerk, case of, 440 and note 2
I Cnute, 46, 49, note 2, 51, 5^
note 1, 63, note 2, 68, 71,
119, 160, note 2
Coke, Sir Edward, 80, note 1
note 1, 237, 282, note 1
Commendation, 35-38, 41
Common law, sources of, 143
note 2, 212, note 2, 239-
limited, 212-215; relations
equity, 218-220; general acc
of, Pt. Ill, § I., 4
Common Pleas, Court of, 177-
294 and note 2, 397
Commons, in Parliament, 15
source of law, 237-239; see
control the Council, 299,
become a part of Parliament,
P’k* § IJP * 2-6; gain po^
Pt. III., § IIL, 7; fifteenth
tury development, Pt. III., §
8
Commutation of service, by vas
121, 122; by villeins, 193
Compurgators, 21, 22, 67, 154,
and note 4, 251 and note 1, 3.
Confirmatio Cartarum, 281, ,
409, 415
Constitutions of Clarendon,
146, 149, 157, 247-249
Convocation, 131, 369; origin
373-376; as a taxing body,
4 11
Copyhold tenure, 193 and not
194 and note 1, 215, note 1
Coroners, 160; origin and early
tory of, 196—198; in boroughs,
note 2; relations torepresenta
and election, 352,355,356, nol
Cotars, 43 Jr
Council, king’s, 119, 138, 169, 1
1, 176, note 3, 179, note 2; jt
diction of, 207-218, 224, not<
Index 455
Council— Continued
legislation of, 237, 238, 418, 419
and note 2; general account of,
pt. Ill, § II., 2; relation to
Wardrobe, 320; Parliament and,
287, 361 and note 3, 398, 415, 434,
435 . 437 .
Counties palatine, 107, 108, 373,
note 2
County, see Shire
Court, king’s, prototype in Nor¬
mandy, 82, 83 and note 1; early
development of, Pt. III., § I., 1,
passim; 207, 426; as source of the
Council, 293-296, 437; as source
of the House of Lords, 337 - 34 L
437; new elements added to, 358-
364, passim
Customary, Court, 191-195
Customs duties, 51, note 1, 368,
369, 405 " 4 H
D
Danegeld, 51, 52, m, ^ 9 , 120,123,
309, 4 ° 2 , 4°7
Danelaw, 14, 15. 4®, I2 9
Danes, effect of invasions of, 44,
note 1, 45, 47, 4^; effect of, upon
the church, 60, 63, 64; Anglo-
Saxons’ chief peril, 65; a cause of
Conquest, 71; relation to taxation,
51, note 1, 407
Despensers, 284, 323, 399 I
Dioceses, creation of, 60, 61
Dispensing power of the king, 421,
433
Dissolution of Parliament, 291, note
2, 427
Distraint of knighthood, 199, 3 8 4
and note 3, 4°9, note 1
Domesday survey, 43 and note 1,
116 and note 1, 120, 124, note 2,
153, 188, note 2, 325
Dunstan, 56, 64 and note 1, 132
E
Ealdorman, in the shire court, 17;
becomes local noble, 26, 27 and
note 1; in witan, 54; loses official
character, 70, 71
Earls, origin of, 27 and note 1; great
families of, 54 , 7<>, 7 H le f ve s \ ne
court and change m character,
103; creation of title, 343 an d
note 1
Ecclesiastical councils, 6i, 128; gen¬
eral character of, after Conquest,
130, 131 and note 1
Ecclesiastical courts, 62; separated
from lay courts, 131; relations to
lay courts, Pt. III., § I., 5
Edgar, 19, 30, 46, 56, 68, 70, 71
Edmund, 56
Edward the Confessor, 51, 56, 71,
108, 114, 115, 119, 216, note 3,
259, 312
Edward the Elder, 14, 15, 30, 56
Edward the Martyr, 46 L note 2 w
Edward I 7 V I 75 ,^ 7 ^, 188^189,
i$9, 200, 214, 216, note 3, 229,
note 2, 232, 234, jt$$, 238-240,
note 2, 266, note 1, 276, 278-284,*—
296-298, 315, 320, 321, 340, note
1, 344, note 3,363, 368-372^374,
376, 377 , 38W aote 2, 3^392,^
note C, 394, 405, 407-4097 note 2, w
4iS» 417
Edward II., 199, 200, 209, 217, 266,
note 1, 283-286, 288, 298, 315,
321, 322, 341, 380, 387, 399, 4°9»
note 2, 413, 447
Edward III., 173 , 178, 199 , 200,
217, note 1, 218, note 2, 231, 239,
note 2, 252, 282, note 1, 290, note
2, 299, 301, 322, 340, 34 L 343 »
note I, 344, 380, 388, 389, 4°°,
401, 409, note 2, 410, 419-421,
425, 427, 428, 436
Edward IV., 201, 202, 210, note 2,
224, 305 and note 1, 346, note i,
394, 427, 431, 440
Edward VI., 253
Egbert, 47
Election, of Anglo-Saxon kings, 46,
47; of post-Conquest kings, 265,
266 and note 1; origin of popular,
W-357; of members of Parlia¬
ment, Pt. III., § HI, 6
Elizabeth, 235,334,387, note 1,432,
note 4, 437, 443, 44 6
Enclosures, 194, note 1
Englishry, presentment of, no,
note 1
Eorls, 13
Equity, 143 and note 2; of the Ex¬
chequer, 176, note 3; general ac¬
count of equitable jurisdiction,
Pt III., § I., 3; 230
Ethelbert of Kent, 48, 55, 57, note 3
Ethelred II., 46, note 2, 51, 7 h *57,
note 1
Exchequer, 83 and note 3, 124,
140 and note 2, 294; Court of,
456
Index
Exchequer— Continued
174-177, 299, note 1, 310; finan¬
cial department, 306-313, 316,
317, 320-323, passim
F
Feudal jurisdiction, in Normandy,
82, 83; in England after Conquest,
104-108,187-189 and note 1, 278,
279
Feudalism, Anglo-Saxon, Pt. I., § I.,
2, d ; 65, 70, 71; continental, Pt. L,
§ II., 1; brought into England, 96-
101; influence of contract element
in, Pt. III., § II., 1, passim
Fines, in Anglo-Saxon courts, 23
(note 2)—25, 33, 51; in Norman
courts, 83; of land, 175, note 2
Firma burgi, 33, in
Folkland, 39 and note 2, 40
Fortescue, 304, 305, 450
Franchise, see Election
Frankalmoin, 95, note 1, ioi, note 1,
145
Frankpledge, 67-69, 109, no,* view
of, 181; view of, given to some
boroughs, 187; 326, 353, note 1
Freedom of speech, in Parliament,
429-431, 438, 440-446
Freeholders, 18, note x, 38, note x,
94-96, 101, 109; as jurors, 169,
351 and note 2; in the county
court, 184, note 2; part of a mid¬
dle class, 346-353 and note 1; as
electors to Parliament, 390, 391
and notes 1 and 2
Friars, as beneficiary holders of
property, 22 x, 222; and the repre¬
sentative principle, 353, note 2,
375, note 2
G
Glanville, 228 and note 3, 229
Grand jury, 149-151, 157-161, 166,
note i, 169, note x, 327
H
Hamlet, Anglo-Saxon settlement in
west of England, 11 and note 1;
included in parishes, 61
Harold, 114, 126, 129
Haxey, case of, 442 and note 1, 443
Henry I, 89, 104, in, 112, 121, 122,
129, note 3, 130, note 1, 131, note
x, 139,141, 143 (note'x)-i4
160, note 2, 174, 176, 1 8
196, 207, 243; coronation c
of, 260-262, 264, 266, note
293 , 306, 307, 3x2, 313, 33i
note 2
Henry II., 122, 123, note i; Pi
§ I., 1, 2, passim; 227-22
111., § I., 5, passim; 262, 26'
note 1, 294, 298, 307-311
3 J 4 , 3 i 8 , 325, 338 , 351-353
367 , 375 , 397 , 402, 411
Henry III, 161, 172, 173, 176
183, 185, 213, 232, 239,
note 1, 272 (note 2)-278,
288, note 3, 295, 296, 298,
314 , 315 , 3 i 9 “ 32 i, note 1,
34°, note 1, 342, note 1, 360
402, 404, 405, 412, 417
Henry IV., 211, note 1, 282, n<
288 and note 3, 289 and nc
301, 302, 305, note 1, 346, n<
389, 434 , 435 , 439 , 442 , 443,
Henry V., 211, note 1, 282, nc
302, 346, note 1, 389, 427, 42
Henry VI., 299, 302-304, 343,
note 1, 390, 394, 427
Henry VII., 2x1, note 1, 239, nc
252 and note 4, 290, 305 and
1, 432, 447
Henry VIII., 223, note 4, 224,
Xj 235, 252, 305 and note 1,
345
Heptarchy, 47
Hide, 49, note r, 119 and note
Hue and <xy, 18, 19, 56, 67, 68,
Hundred, 4; and hundred court
1., § I., 2 % b; as police unit,
grants of bookland in, 40,
clergy in court of, 62; its c
after Conquest, Pt. II., § II
in Henry I.’s reign, 180, 181; 1
history of, 184-186 and not
ecclesiastical cases removed fi
242; relations to boroughs, 39
I
Impeachment, 208, 286, 301
note 1, 424 and note 4, 435, 4
Incidents, feudal, 120, 121
note 1
Ini, 46, 55, 56
Inns of Court, 231-234, 291, noi
Inquest of Sheriffs, 158, note 1, ]
357
Inquisitio, 153-156, 351
Index
457
Investiture contest, 128, note 3, 130
and note 1 ^
Itinerant justices, 140-142,170-174,
180, 181, 202 and note 2, 294, 328
J
John, 161, 178, 238, 264-274, 278,
286, 294, 298, 310, 313, 318, 325,
352, 358-360, 374, 375
Judges, freemen as, 17,154 and note
3; of common-law courts oppose
new law, 213-215; hostile to
Chancery, 220, 221; limitations
of, 230; Richard II/s use of, 287;
and early Council, 295; in the
Council, 298; word statutes, 422
Jury, 145, 149-151; origin and early
history of, 153-170; used by itin¬
erant justices, 172; used by
sheriffs, 181; in manor courts, 189,
190; used by justices of the peace,
203; corruption of, 209, 210; rela¬
tion to common law, 230, 231; a
means of using the people in
government, Pt. III., § II., 4,
passim; related to the beginnings
of Parliament, 351-364, 366
Justices of the peace, 168, note 2,
173, 185, note 3; origin and early
history of, 198-206; 255, note 2
Jutes, 7, note 2
K
Eon, 8, 18, 19; as compurgators, 21,
22, note 1; responsibility of, 25,
37; leaders of, as early kings, 46
and note 1; on continent, 74;
effect of lack of, upon prosecution
for crime, 150
King, 4,16; relations to local courts,
16 and note 4, 24 and note 2, 25;
his peace, 27, 28 and note 1, 439;
his peace in the burhs, 30; bor¬
oughs on his domain, 31; revenue
from boroughs, 33; uses commen¬
dation, 37, 38; grants bookland,
39, 40, 70; Anglo-Saxon, general
account of, Pt. I., § I., 3, a; rela¬
tions with witan, Pt. L, § I., 3 i.
relation to church and its councils,
58, 61, 62; and post-Conquest
feudalism, 96-100, passim; effect
of Conquest upon, Pt. II., § III.,
1; revenue of, after Conquest, Pt.
II., § III., 2; relations to church
after Conquest, Pt. II., § IV.,
passim; development of courts of,
Pt. III., § I., 1, 2, 3, passim;
becomes a limited monarch, Pt.
III., § II., 1; relations to adminis¬
tration, Pt. III., § II., 2, 3,
passim; his use of the people, Pt.
III., § II., 4; shares in forming
House of Lords, Pt. III., § III.,
i; helps to make a middle class,
348-350; Parliament gains powers
at expense of, Pt. III., § III., 7;
some adjustment of relations
with Parliament, Pt. III., § III., 8
King's Bench, Court of, 177-179
Knights, in continental feudalism,
76, 79 and note 1; in Normandy,
82; in England after Conquest,
97, 98, 101, 121; commissions en¬
trusted to, 171, 172; general local
importance of, 196-199, 205, 206;
king’s local use of, Pt. III., § II.,
4, passim; 351-357; as part of a
middle class, 349-351; elected to
central assembly, 360-362, 364;
in early Parliament, 377, 378 and
note 1; join the burgesses in
Parliament, 380, 381; how elected
to Parliament, 384-391
L
Lanfranc, 127,129 (and note 2), 130,
132, 259
Langton, Stephen, 129, note 3, 268
Law, Anglo-Saxon, 18,25,26,55-57;
Norman, 81; after the Conquest,
see Common law, Statute law.
Equity; relation of kings to, Pt.
III., § II., 1, passim
Lawyers, 17, 213, 228, 232; ex¬
cluded from Parliament, 384
Lay patronage, 61, 132, 133
Leet, Court, 189-191, note 1
Legislation, of the witan, 55-57; of
church councils, 128, 130; of the
king’s court, 143 and note 2, 227,
411; of Edward L, 189, note 1,
278-280; slight in early Parlia¬
ment, 214 and note 4; a new form
of, 239, 240, 412, 413; origin of, in
Parliament, 412-422
Letters patent, 313 and note 2; crea¬
tion of peers by, 343-345
Livery and maintenance, 209, 388
and note 1, 446
Loans, forced, 431, 449
458
Index
London, Henry I.'s charter to, 112;
William I.’s charter to, 259; men¬
tioned in Magna Carta, 269 and
note 2; treasury at, 310, 320, note
3; becomes a county, 395, note 2
Lords, House of, 207; jurisdiction of,
208 and notes 1 and 3, 209, 211;
origin of, Pt. IIL, § III., 1; 348,
349. 372 and note 1, 373; attempts
to control Commons, 389; share
in impeachment, 424; relation to
money grants, 429, 430 and note
2; initiates legislation, 432 and
note 5; freedom of speech of, 440,
note 4
Lords Ordainers, 283, 284; their
Ordinances, 399, 413
M
Magna Carta, art. eighteen, 172;
art. seventeen, 178; of 1217 con¬
tains regulation touching shire
court, 183; art. twenty-four, 196;
heads the statute book, 238 and
note 2; causes and fundamental
principles of, 266-272, 404, 449;
later editions and confirmations,
272-286, 321, 324, 417; art. four¬
teen, 339, 340; arts, eighteen and
forty-eight, 356; friction over
administration of, 360, 361; on
purveyance, 407, note 3, 409, note
1; delation to Confirmatio Car-
tarum, 408, to “articles of the
barons,” 415; officials to swear to,
™ 4 ?4.
Majority principle, 166, note 1, 390
and note 2
Manor, 34; see Feudalism; 93 94
102, 108, 109 and note 1, 185
Manorial jurisdiction, 34, 77, 104.,
106, 169, 185, 189 4 ’
Marriage, a feudal incident, 121 and
note 1
Merchet, 93, 94
Militia, Anglo-Saxon, 69, 70; Nor¬
man, 82; after Conquest, 97, 98,
329, 449; see Assize of Arms
Ministerial responsibility, 273 287
297, 301; Pt. in., § ii
.419,424,434-436
Model Parliament, 344, note 3, 370-
373» 376, 398, note 2, 401
Monasticism, Anglo-Saxon, 63, 64:
after the Conquest, 132, 133
Mortmain, see Statute
Movables, tax on, 352, 402-4
N
Nationality, in early churc
consciousness of, in 13th ce
273, 275, note 2, 280, 404, ,
Normandy, general account 1
fore Conquest, Pt. I., § *
relations to papacy in el<
century, 125-127
O
Oath, fore-oath and in rebutt,
of compurgators and witi
21—23; of Anglo-Saxon kii
coronation, 50; retained at
nation after Conquest, 115
the councillor's, 296, 298, 2c
note 1, 302; Edward II.'s
note 1, 413
Offa, 56, 60, note 3
Ordainers, see Lords Ordainers
Ordeal, in Anglo-Saxon proc<
21, 23 and note I; supersed
jury, 158, 159 and note 1, 16
note 1, 162, 164-166, 295
P
Papacy, relations of Anglo-£
church to, 60 and note 3, 64
the Normans in the eleventf
tury, 85, 125, 126; Willia
and, 127 and note 1, 128
notes 1 and 3, 130; and M
Carta, 275, 282
Pardoning power, 421, 433
Parishes, origin of, 61; people’
tivities in, 330, 333 and no
Parliament, 138; attempts to
jurisdiction of the Council,
and note 1; limited legislatic
in early times, 214 and no
238-240; attempts to co
group in Council, 287; atta
by Richard II., 287, 288;
tions to early Council, 296,
306, passim; relation to
robe, 320; origin and early his
of, Pt. III., § III.; origin oi
name, 362-364, 397
Peasant revolt, 193, 388
index
Peers, 341 - 346 . 348 ,349; bills affect¬
ing, 432; their access to sovereign,
437
Peine forte et dure , 163 and note 1
Penitential system, 62, 63
Peter’s Pence, 60, note 3, 127
Petitions, received by the Council,
215-218, 297, note 1; related to
Parliament’s legislation, 414-419,
421, 422, 432
Petty Sessions, 203, 204
Pipe rolls, 309 and note 1, 313
Pleas of the crown, 160, note 2, 178,
196, 199
Pope, relations to Anglo-Saxon
church, 60, 62, 64; and William
I., 127-130; and Edward I, 282;
see Papacy
Prasmunientes clause, 373 and note
i» 379 > 442
Prerogative, royal, 291, 292, 442
Primogeniture, 223, note 4, 263 and
note 2, 266, note i» 290, 343, 349
and note I
Privileges of Parliament, 436 (and
note 2)~446
Privy Council, 305, note 1
Provisions of Oxford, 199, 213, 275,
276, 415
Purveyance, 51, 407, note 3, 409,
note 1
Q
Quarter Sessions, 203-205
R
Ranulf Flambard, 139, 258
Redress of grievances, 417 and note
2, 429
Reeve and four men, 66, note 1, 102
and note 4
Relief, feudal, 79, 120, 121 and note
x, 267, note 2
Representation, 54, 66, note I, 103,
151; origin of, 353"357; of coun¬
ties in a central assembly, Pt.
III., § III., 3; of boroughs, 366,
367; of counties and boroughs in
early Parliament, 368-373; of
clergy, 353 and note 2, 373“376
Revenue of the crown, from local
courts, 24 and note 2, 49, note 2;
from boroughs, 33; in general in
Anglo-Saxon period, 51, 52; after
the Conquest, Pt. II., § HI., 2;
459
from sale of writs, 152; see Taxa¬
tion
Richard I., 176, 188, 196, 263-266,
note 1, 305, note 1, 374, 402, 403
Richard II, 205, 218, 231, 282, note
1, 286-288, 299, 301, 303, 305,
note 1, 342, 343, note 1, 388, 400,
417, note 2, 419, note 2, 428, 429,
431, 434, 435, 441, 442, 445
Richard III, 290, 304, 432, note 1
Roger of Salisbury, 139, 307
Roman, influence upon early Bri¬
tain, 5, 6; cities in Britain, 29; in¬
fluence on land grants, 39, note 1;
influence on Anglo-Saxon central
government, 48,49, 59, on feudal¬
ism, 72-76, 92, on post-Conquest
kingship, 115; origin of inquest,
155; law, influence of, 217, 219
and note 3, 220, 227-229 and note
2, 231-233, 235 and note 2, 236,
note 2, 237; origin of seals, 312
S
St. Albans, council of, 359 and note
1
Saladin Tithe, 352, 403
Salisbury oath, 100, 256
Saxons, relations with Angles in
conquest of Britain, 7 and note 2;
“Saxon shore,” 7, note 3
Scutage, 121, 122, 266, 267, 269,
272, note 2, 309, 409 and note 2
Seals, 217, note 2; Pt. III., § II., 3,
passim; 306
Secretary, 323
Serjeanty^ 101, note 1
Sheriff, 4; in shire court, 17, 24;
origin and importance of, in
Anglo-Saxon period, 27, 33; com¬
pared with Norman vicomte, 84,
note 1; becomes chief official in
shire court, 103, 180; abuses of, in
local courts, 104; limited by itine¬
rant justice,^ 141; his tourn, 150;
corrupts juries, 169, note 1; ac¬
counts to Exchequer, 140, 175,
308, 309; origin of his tourn, i8o~
182; distrust of, 195, 196; de¬
creasing powers of, 196, 197, 199,
200, note 2, 202, 203 and note 1;
choice of certain juries taken
from, 354-357; abuses of, as a
cause of early representation in
I Parliament, 381 and note 2; ex-
I eluded from Parliament, 384; his
460
Index
Sheriff— Continued
share in elections to Parliament
387 and note 2, 392-396; Com-
mons report shortcomings of, 42 s
Shire, 4; and shire court, Pt. I, § I,
2, b; relations with early bor¬
oughs, 30-33; clergy in court of,
02; its court after Conquest, 103,
104; itinerant justices in, 142 and
note 2; in Henry I/s reign, 179-
181; later history of, 180,182-184*
^rly elections in, 355-357; repre-
sented m a central assembly, Pt.
•ill., § ill., 3; composition of full
shire canfrt m thirteenth century,
366 and note 3; elections to Par-
. hament m, 386—390
S ™ ( ?5 1 de Montfort, 275, 276, 364,
3 06-368, 392, note 1
Slaves, Anglo-Saxon, 7, 10, 11, 13
34 > 42 , 45; on continent, 78 ; not
in Normandy, 85; after the Con¬
quest, 91-94
Socage tenure, 32 and note 1, 94
(and note 2)-97, note 1
Sokemen, 32, note i, 44 and note 1,
Speyer of Commons, 427,428,437-
Star Chamber, Court of, 211, note 1
225 note 1, 305, note 1, 415
Statute law 226, 237-240, 412-422
Statute of Gloucester (1278), 184,
185, 188, note 2, 191, 278; La¬
bourers (1351), 204, note 1, 388-
Maintenance and Liveries (4390)
388, note 1; Marlborough (1267),
W’ Merchants
' Merton (1236),
1 ^ 5 , 2 39 and note 1; Mort¬
main (1279), 222 and note 3, 240
p d “ ote L 279 ; Quia Emptorts
(1290), 240 and note 1, 279 and
note 3 280 370, 378, note 1, 4T3.
Uses (1536), 224, note x- West¬
minster II. (1285), 173,213 2?1
*’ 279; Winchester
UJ85), I99
oS®’ * 196 ' 244-246,261,262
266, note 1, 343 ’
Stuarts, 169, note 1, 211, note 1
Succession' to*the 47'
38, note 1 66, note 1, 67 and no
i; after the Conquest, 102-10
I0 6, 154 and notes 2 and 3- 4
crease in numbers in later time
c 183, 184, 326, 386 lme
Suspending power of the sovereigi
421 , 433
T
T f af e ’ 122, X2 3 and note 1
note 2° 2 ' 4 ° 7 ' note Wane
Taxation AngIo-Saxon,_ 51 and not<
1, 52, m feudal period, Pt. II
| Vo? 65 ’* 67, V 0 ' 272 ’ notf
2 > 2 73, 295, 3 2 *, note i, 330 «<
357 ; of clergy, 373 ~37&,%9 Ind
note X; consent to, by earlvfeDre
sentatives in Parliament, 381 and
2; national, origin of, 401-
f n V r ^ance to, 407 and note 3,
4 p> Parliament gams control of
400, note 4, 408-411 449. re ] a '
l\7 a ly^ amentary Nation,
417 and note 2, 429, 430 and note
2, unlawful methods of, 431 a
and note 1 ™ 1 432
? fte ® nth - 370 , 392, note
Theoic 3 an . d . aot f 3 , 404 and note x
’ 0 2F a of - 1 3 i 14; value of
f ^ the ^r. 24, note
Ti, 1, j Utles 41 . 42, 54, 69, 70, 97
Theodore, Archbishop of Canter-
T,, b ury, ( 60, 6x, 63
i; t ?P e s , c 0 a p 439, 440, note i, 444
Tithing, 68, 69, 109, no 444
< to?l ,33 .’n| 1 ’ ^ 3 ’ 1I2 ’ 4 ° 5 ; “evil
t,™ 1 £ od > 4 I0 > 4 11 and note 1
r<w», sheriff s, X50; origin of, 181
a ? d P te 3 , l8 2 ; 189; inadequacy
195; decline 0 f, 197, 199-203;
affeenng Junes in, 328
township, early Anglo-Saxon, 9-1 x
14, note 2, 16, note 2, 19, 34 an< j
P* e 2; as parish, 61,- as titling,
110, obligations upon, 320 -2^0
^ ^ te I; and civil parish,’ 330,
333 , 334
Treason, 251, 292, note 2, 424, note
4 , 439 , 440 , 442
Treasurer, 52, 124, 176, 177, 217
note 1, 300, 309, 311 ’
Truce of God, 84 and note 2
Tudors, 169, note 1,176, note 3,200,
note 1, 211, 236, 240, 291, 293,
note 1,305 and note 1,395 note 1
396 , 428,431, 436, 447, 448 3 ’
index
461
Tuimage and poundage, 400, note 4,
406 and note 2
U
Universities, 231 and note 1, 233
Uses, 221-224; Statute of, 224, note
1
V
Vestry, 333
Veto power, 291, note 2, 419, 420
and note 2, 432, note 4
Vill, see Township
Villa, Roman, 6, 11, 43, note 2
Villeins, 43 and note 2, 44; after
the Conquest, 91-94, 101, 102,
note 4, 106, 108, 109, 151; in the
manor courts, 190; passing of,
192-195, 215, note 1, 327, 388
W
Wages, of justices of the peace, 205;
of councillors, 299, 300; paid to
representatives in Parliament,
387 and note 1
Wapentake, 14
Wardrobe, the king's, 52, 124, 306,
318-323
Wardship, feudal, 120, 121 and note
1
Wer, 24 and note 1
William I., 51, 81-85; Pt. II,
passim; I 53 “ I 5 6 » 242-244, 255-
259, 266, note 1, 306, 312, 325,
338, 41X
William II, 89, 90, 100, 104, 126,
*39» *59> note 1, 258-261, 261,
note 1, 267, 269
Witan, 4, 50; general account of,
Pt. I, § I, 3, b ; 61, 1x6, 117 and
note 1, 119, 141
Wite, 24 and note 2, 40
Witnesses, in Anglo-Saxon proced¬
ure, 20-23, 25, 67, 154 and note 4,
155; after Conquest, 327, 329;
modem, origin of, 164, note 2,
167, 168 and notes 1 and 2
Writs, 142-144; of right, 142, 148;
of prcecipe , 142, 148 and note 5,
212, note 2; in general, 151, 152
and notes 2 and 3; Writ Quo
Warranto, 188 and note 2, 279;
creation of, limited, 212 (and note
2)-214; see Chancery, as secre¬
tariat
Y
Year Books, 233, note 1, 234 and
note 4,235,291, note 1
York, 5; becomes seat of archbishop,
60 and note 2,61; effect of Danish
invasions upon, 63, 64, 129; rela¬
tions of archbishop of, with arch¬
bishop of Canterbury settled
after Conquest, 129 and notes 2
and 3; House of, on the throne,
290 and note 3, 304, 427, 445,447;
city of, receives organization of
shire, 395, note 2
Young’s case, 444, 445
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