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ESSAYS 


INTRODUCTORY   TO   THE  STUDY  OF 


English  Constitutional  History 


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ES  SAYS 

IXTRODL'CTORY   TO  THE   STUDY   OF 

English  Constitutional  History 

BY 
RESIDENT   MEMBERS   OF  THE   UNIVERSITY'   OF  OXFORD 

EOiTEO   BY 

HENRY  OFFLEY  WAKEMAN,  M.A. 

VBLLOW  or  ALL  SOULS  COLLECB.   TUTOB   OF   KEBLS  COLL£UC 
AND 

ARTHUR    H  ASS  ALL,    M..\. 

STUOKMT  AMD  TUTOS  OT  CMIUST  CHUKCH 


LONDON 
LONGMANS,     GREEN,     &     CO. 

AND  NEW  YORK:    15  EAST  iC""  STREET 

1894 

[JView  E<HHoh\ 


t>v% 


PREFACE. 

The  writers  of  the  Essays  contained  in  this  volume 
do  not  pretend  that  it  is  the  result  of  original  research, 
or  that  it  will  throw  any  additional  light  on  the  many 
unsolved  problems  of  English  Constitutional  History. 
Their  object  is  the  much  humbler  one  of  trying  to 
arrange  the  well-ascertained  facts  connected  with  the 
growth  of  our  institutions  in  such  a  way  as  may 
make  the  study  of  them  more  intelligible,  and  more 
attractive  to  beginners.  Each  Essay  attempts  to 
bring  into  strong  relief  the  central  principle  of  con- 
stitutional development  which  is  characteristic  of  the 
period  of  which  it  treats  ;  and  is  complete  in  itself, 
although  a  certain  unity  and  chronological  order  is 
preserved  throughout. 

The  picture  of  the  growth  of  the  Constitution  thus 
presented  is  doubtless  rather  a  photograph  than  a 
portrait.  The  leading  features  are  brought  into  ex- 
ceptional prominence  at  the  e.xpense  of  due  harmony, 
and  occasionally,  perhaps,  of  fidelity  of  effect.  Some 
features  are  thrown  too  much  into  the  background, 
or  are  altogether  obscured.  In  a  work  confessedly 
introductory  to  a  subject  so  difficult  as  Constitutional 
History,  it  was  thought  worth  while  to  run  the  risk 
of  much  unevenness  and  inadequacy  of  treatment  in 


vi  Preface. 

order  to  gain,  if  possible,  the  compensating  advan- 
tages of  clearness  and  simplicity.  Whether  the 
experiment  has  succeeded  it  will  be  for  the  reader 
to  judge. 

The  Constitutional  History  of  Dr.  Stubbs  has,  with 
his  permission,  been  taken  throughout  as  the  founda- 
tion of  the  work  ;  and  references  to  it,  therefore,  have 
not  been  inserted.  To  the  kindness  of  Dr.  Stubbs  in 
looking  over  the  proofs  of  this  volume,  and  to  his 
ready  sympathy  and  help  accorded  to  them  in  their 
undertaking,  the  authors  wish  to  express  their  deep 
obligation.  They  are  sensible  how  much  of  what 
there  may  be  of  value  in  the  following  pages  is  due 
to  his  suggestion  and  criticism. 

Oxford,  September,  iS86. 


In  preparing  a  Second  Edition  for  the  press,  little 
alteration  has  been  found  necessary  except  in  the 
first  Essay,  on  the  subject  of  which  a  good  deal  of 
light  has  been  thrown  by  recent  research.  The  wide 
and  accurate  knowledge  of  the  Rev.  A.  H.  Johnson, 
Tutor  of  Merton  University  and  Trinity  Colleges,  has 
been  of  great  assistance  in  the  revision  of  this  part  of 
the  work,  and  requires  special  recognition  and  thanks. 

Oxford, /«««tfrj',  1891. 


CONTENTS 


I.  THE  EARLY  ENGLISH  CONSTITUTION 

H.  Hensley  Henson,  M.A.,  Fellow  of  All  Souls  College        i 


II.  FEUDALISM 

W.  J.  Ashley,  M.A.,  Professor  of  Political  Economy  in 
the  University  of  Harvard,  formerly  Fellow  of  Lincoln 
College 4$ 

III.  THE  ANGLO-NORMAN  AND  ANGEVIN  ADMIMS- 
TRATIVE   SYSTEM  (1100-1266) 
C.  W.  C.  Oman,  M.A.,  Fellow  of  All  Souk  Ccllese  .    .     113 

IV.  PARLIAMENT 

Dudley   Julius    Medley,    M.A.,    Tutor    of    Keble 

College 159 

V.  CONSTITUTIONAL  KINGSHIP  (1399-1486) 

Arthur  Hassall,  M.A.,  Student  of  Christ  Church  .     .     224 


VI.  THE  INFLUENCE  OF  THE  CHURCH  UPON  THE 
DEVELOPMENT  OF  THE  STATE 

Hknry  Offley  Wakeman,  M.A.,  Fellow  of  All  Souls 

College 267 


ESSAY  I. 

THE  EARLY  ENGLISH  CONSTITUTION. 

The    Constitutional    History   of   the    English  General 
differs  essentially  from  that  of  the  other  Euro-  ^f*^"^/ 

'  towards 

pean  nations.  It  differs,  yet  it  is  not  vflxhontfetidaiism. 
points  of  resemblance.  In  England  before  the 
Conquest,  as  in  the  other  countries  of  Europe, 
there  was  a  tendency  towards  that  state  of 
society  and  government  which  we  call  feudalism ; 
and  that  tendency  was  neither  weak  nor  in- 
effective. It  worked  with  such  energy  as  to 
convert  a  constitution  founded  on  personal  re- 
lations into  one  permeated  from  pinnacle  to 
base  with  territorialism.  And  yet,  although 
this  was  so,  between  the  England  of  the  eleventh 
century  and  the  France  of  the  eleventh  centuiy 
there  existed  an  essential  difference.  For  in 
England  there  were  certain  forces  hostile  to 
feudalism  which,  owing  to  the  circumstances 
of  early  English  history,  retained  their  vitality, 
and  operated  as  a  check  on  the  triumphant 
tendency  of  the  age.     The  deep  divisions  of  the 

B 


2  The  Early  English  Constitution. 

English,  stereotyped,  so  to  say,  by  the  circum- 
stances of  the  conquest  of  Britain,  manifested 
themselves    in    perpetual    inter-tribal    wars,   in 
continuous  struggles  against  the  supremacy  of 
any  one  kingdom,  in  the  local  isolation  which 
handed    the    country   over    as   a   prey   to    the 
northern  invaders.     The  northern  invaders  them- 
selves projected  into  a  half-feudalized   society, 
a  society  kindred,  indeed,  but  more  primitive, 
personal,  and  free.     Beneath  all  and  through  all 
the  Teutonic  spirit  worked  with  unique  purity, 
with  unique  liberty.     These  are  the  great  forces 
antithetical  to  feudalism,  which  operated  as  such 
in   the   first   six   centuries    of  English   history. 
They  are  not  the  dominant  forces.     The  trium- 
phant tendency  of  the  age  is  towards  feudalism  ; 
but  they  act  as  checks  on  that  tendency.     The 
feudalism    which    is    developed     naturally    on 
English  soil,  the  feudalism  which  the  Norman 
knights    and     lawyers    remodel    into    a    more 
ordered  form,  is  a  half-feudalism,  a  feudalism 
awkwardly  elevated  on  a  sub-structure  of  free 
institutions  and  immemorial  customs. 
The  Early      The  machinery  by  which   a  barbarous  tribe 
poHty'       governs  itself  is  necessarily  of  a  very   simple 
description.      It    involves    an    anachronism    to 
bestow    on    such    primitive    arrangements    the 
name  of  a  constitution.     It  is  only  when  the 


Tfu  Early  English  Constitution.  3 

social  state  has  become  complicated,  and  the 
tribe  has  expanded  into  a  nation,  that  the  need 
arises  for  that  careful  adjustment  of  political 
power  between  various  classes  which  we  connect 
with  the  idea  of  a  constitution.  This  general 
observation  is  perhaps  less  true  in  the  case  of 
the  primitive  Germans  than  of  most  barbarians  ; 
for  the  system  described  by  Tacitus  in  the 
Germania  is  not  without  a  certain  order  and 
beauty  of  its  own  ;  yet  it  would  argue  ignorance 
or  folly  to  credit  the  primitive  Germans  with  the 
constitutional  theories  of  modern  times,  although 
they  may  truly  be  regarded  as  the  unconscious 
exponents  of  the  same. 

At  the  basis  of  the  Teutonic  system  lay  the  Ranks. 
threefold  division  of  ranks,  (i)  The  blood- 
noble — eorl — distinguished  by  the  higher  pecu- 
niary value  attached  to  his  life  {wergild),  and 
by  the  higher  legal  value  of  his  oath  ;  entitled, 
doubtless,  to  a  greater  share  in  the  conquered 
land  on  account  of  his  nobility,  but  without 
special  political  rights.  (2)  The  freeman — ceorl 
— possessed  of  full  political  rights,  his  place  in 
the  host  and  in  the  folk-moot  assured  to  him,  as 
also  his  share  in  the  conquered  land,  his  alod. 
(3)  The  dependent — ket — not  fully  free,  yet  not 
a  slave,  with  no  political  rights,  but  yet  personally 
free,  a  cultivator  of  the  land  of  another — the  man 


4  The  Early  English  Constitution. 

of  a  class  half-way  between  freedom  and  slavery, 
and  recruited  from  both,  destined,  perhaps,  with 
various  modifications,  to  become  the  villein  of 
the  Middle  Ages.    These  are  the  three  classes  of 
the  nation.    Below  them  is  the  slave,  the  chattel 
— theow — with  no  rights,  until  the  Church  suc- 
ceeds in  persuading  men  of  his  humanity. 
Allotment       The  English,  thus  divided  into  ranks,  migrated 
^  '^    '      into  Britain,  and  there  planted  themselves,  re- 
producing, we  may  be  sure,  the  combinations  of 
their  former  life,  as  far  as  was  possible  under  the 
The  new  conditions  of  migration  and  conquest.    The 

allotment  of  the  conquered  land,  which  followed 
the  victory  of  the  tribe,  settled  the  kindred  free- 
men in  free  village  communities  to  carry  on 
agriculture,  at  first  probably  on  a  system  of 
common  cultivation,  which,  however,  in  most 
cases  speedily  gave  way  before  the  principle  of 
individual  ownership.  On  the  larger  allotments 
of  the  kings  and  eorls  the  Icets  were  likewise 
grouped  in  dependent  communities,  similar  in 
organization,  but  owing  rent  and  services  to  a 
lord.  And  here  the  system  of  common  cultivation 
kntjwn  as  the  three-field  system  long  survived  in 
the  later  manor.  Under  this  system  the  arable 
land  was  divided  into  three  common  fields :  two 
were  sown  with  crops  every  year,  and  one  was 
left  fallow.    The  Britons  who  survived  the  cata- 


Tlu  Early  English  Constitution.  5 

strophe  which  robbed  them  of  their  land  were 
probably  settled  in  dependent  villages  on  the 
estates  of  the  king  and  nobles,  and  on  the  unal- 
lotted land  which  formed  the  national  property.^ 

The  townships  were  grouped  into  hundreds,  The 
in  combinations  which  possibly  reproduced  in 
fact  as  well  as  in  name  the  existing  divisions  of 
the  tribe  in  its  military  aspect.  More  probably, 
however,  the  hundred  had  already  lost  its  ori- 
ginal connection  with  the  host.*  Each  of  these 
divisions — township  and  hundred — possessed  its 

*  The  question  as  to  the  origin  of  the  Anglo-Saxon 
village  or  township,  and  as  to  the  character  of  the  early 
system  of  agriculture,  is  at  the  present  moment  a  subject 
of  much  controversy.  Those  who  wish  to  pursue  the 
matter  further  should  consult  Stubbs,  "  Constitutional 
History,"  vol.  i.  ch.  iii.  §  24;  ch.  v.  §  39;  Maine,  "Vil- 
lage Communities,"  lect.  iii. ;  G.  L.  von  Maurer,  "  Ges- 
chichte  der  Markenverfassung ; "  Fustel  de  Coulanges, 
"Recherches  sur  quelques  Probl&mes  d'Histoire,"  pp. 
145-186,  262,  320-326;  Seebohm,  "  English  Village  Com- 
munity," chs.  iv.  V.  viii.  ix.  x.  xi. ;  Denman  Ross, 
"  Early  History  of  Land-owning  among  the  Germans  ;** 
Pollock,  "  Land  Laws "  (Citizen  Series),  ch.  ii,  and 
Appendix  A  ;  Vinogradoff,  "  Early  English  Land  Tenure," 
Clarendon  Press  ;  Earle,  "  Land  Charters,"  introduction. 

'  The  origin  of  the  hundred,  by  some  attributed  to 
a  later  date,  is  a  matter  of  much  controversy.  The 
following  authorities  may  be  consulted :  Stubbs,  "  Consti- 
tutional History,"  vol.  i.  ch.  ii.  §§  16-18  ;  ch.  v.  §  45-47  ; 
Stubbs,  "Select  Charters,"  p.  68;  Fustel  de  Coulanges, 
"  Institutions  de  I'Ancienne  France,"  voL  ii.  p.  195,  ff, 
224,  flC 


6  The  Early  English  Constitution. 

own   court,  presided   over  by  its   own  elected 
officers. 
The  Folk-       Above   the   hundred   court   stood  the  Folk- 
^itma-     ™oot»  ^®  popular  assembly   of  the   tribe,   in 
S^o*'       which  every  freeman  had  a  voice;  while  sur- 
rounding the  king  himself  stood  the  assembly 
of  the  Wise  Men — the  Witenagemot, 

But  as  the  process  of  consolidation  advanced, 
changes  took  place  in  the  primitive  organi- 
zation : — 

(i)  The  Folk-moot  of  the  once  independent 

tribe   shrank    into   the    shire   court  of 

later  times  with  less  extensive  powers 

,  and  a  more  definite  sphere  of  work — 

mainly  judicial. 

(2)  The  Witenagemot  of  the  smaller  nation 

became  absorbed  in  that  of  the  conquer- 
ing race — circling  round  the  victorious 
king. 

(3)  The  Folk-moot,  or  popular  assembly  of 

the  rapidly  growing  nation,  lost  its 
vitality,  meeting  only  from  time  to  time 
on  some  great  occasions — such  as  the 
coronation  of  a  king — when  by  its  shouts 
it  expressed  its  approval  of  that  which 
had  already  been  decided  by  the  more 
aristocratic  assembly  of  the  Witan. 
ThtKing.       Kingship    may  have    been   created    by  the 


The  Early  English  Constitution.  7 

Conquest ;  it  may  have  been  a  more  primitive 
possession  of  the  race.  The  statement  of 
Tacitus,  that  some  German  tribes  had  no  kings 
seems  to  be  definitely  attached  to  those  tribes 
which  conquered  Britain,  by  the  description 
which  Beda^  gives  of  the  old  Saxons,  and  by  the 
curious  return  to  the  earlier  form  of  government 
in  Wessex,  which  is  recorded  to  have  followed 
the  death  of  Cenwalh.*  But  the  antiquity  of  the 
institution  is  of  little  importance.  It  is  certain 
that  as  soon  as  they  appear  in  the  light  of 
history  the  tribes  which  planted  themselves  in 
Britain  without  exception  were  ruled  by  kings. 

The  king  of  the  earliest  English  history  is 
bound  to  his  people  by  personal  ties.  As  his 
name  implies,  he  is  the  head  of  the  race,  the  kin ; 
he  represents,  symbolizes,  embodies  in  a  concrete 
form  the  unity  of  the  race.  He  is  both  the  rex 
and  the  dux  of  Tacitus,  because  perhaps  he  is 
always,  as  Hengest,  first  dux  (heretoga)  and 
then  rex  (cyning).'  Descent  from  Woden  is 
claimed  by  every  English  king,  but  it  is  not  his 
sacred  character  so  much  as  his  function  of 
leader  in  war  that  forms  the  basis  of  his  subse- 

*  •'Hist  Eccl.,*  V.  10,  p.  309,  eA  Moberly. 
'  Ibid.,  lib.  iv.  c  12. 

'  See  Anglo-Saxon  Chron.,sub  anno  448  and  455  (Rolls 
Edition,  voL  L  p.  aiX 


8  The  Early  English  Constitution. 

quent  power.  The  early  years  of  the  life  in 
Britain  were  necessarily  years  of  unceasing  war. 
The  hereditary  general  exercised  habitually  his 
extraordinary  powers.  His  special  privilege, 
the  possession  of  a  comitatuSy  now  was  most 
valuable.  War  multiplied  the  comites  (gesiths)  ; 
war  utilized  them  ;  war  gave  their  lord  the  power 
to  reward  them.  As  conquest  extended  the 
borders  of  his  kingdom,  the  king's  power  in- 
creased. He  emancipated  himself  from  close 
contact  with  his  subjects  and  lived  remote. 
Surrounded  with  his  court  of  sworn  dependents, 
guarded  by  their  swords,  more  and  more  sepa- 
rated from  the  daily  life  of  his  people,  beheld  by 
them  from  an  ever-growing  distance,  his  figure 
dilated  before  their  eyes,  he  became  more 
terrible  and  more  sacred. 

Two  events  in  particular  involved  a  great 
development  of  the  kingly  power — the  conversion 
of  the  English,  and  the  consolidation  of  the 
kingdoms. 
Influetue  That  Christianity  elevated  the  royal  power 
Church,  was  the  result,  not  of  the  Church's  self-abasement, 
but  of  her  lofty  conception  of  duty.  The  great 
service  she  bestowed  on  the  kingship  was  the 
sense  of  responsibility.  She  destroyed  the  divine 
descent  and  substituted  the  divine  mission. 
The  prestige  of  a  sacred  origin  was  supplanted 


Tlu  Early  English  Constitution.  9 

by  the  prestige  of  a  sacred  function.  In  holding 
out  a  lofty  ideal  of  the  kingly  duty,  the  Church 
wished  to  raise  the  kingly  character.  At  the 
same  time  she  preached  no  servile  obedience ; 
the  deposition  of  the  bad  king  was  the  natural 
judgment  of  Heaven,  and  accepted  as  such  by 
the  Church.  "  You  see,"  wrote  Alcuin  to  Ethel- 
red  of  Northumbria,  *'  how  your  ancestors,  kings 
and  princes,  perished  because  of  their  unright- 
eousness and  rapine  and  impurity.  Fear  you 
their  fate."  But  perhaps  the  Church  worked  in 
favour  of  the  crown  less  directly  than  indirectly. 
In  paving  the  way  for  national  union  by  her 
discipline,  her  doctrine,  and  her  consolidation 
and  organization,  by  counteracting  the  disruptive 
forces  which  were  always  threatening  to  break 
up  the  not  yet  consolidated  realm,  far  more 
than  by  hedging  round  with  the  august  rites  of 
unction  and  coronation  the  accession  of  a  new 
king,  did  the  Church  minister  to  the  growth  of 
the  royal  power. 

The  conquest  of  Britain  had  been  the  work  of  ConsoUJa. 
many  little  kindred  tribes,  acting  in  complete  kingdom*. 
independence  of  one  another ;  and  when  the 
migration  ceased,  the  eastern  half  of  England 
was  dotted  with  small  kingdoms,  alike  in  polity 
and  nearly  related  in  blood,  but  jealously  in- 
dependent of  outside  influences.    The  extension 


lo  The  Early  English  Constitution. 

of  the  conquest,  and  the  consequent  expansion 
of  these  little  states  over  the  country,  soon 
brought  them  into  contact  with  one  another ; 
and  that  contact  seems  to  have  been  invariably 
of  a  violent  nature.  The  slaves  exported  from 
the  island  to  the  Roman  market  were  no  doubt 
captives  taken  in  these  inter-tribal  wars.  The 
tendency  towards  consolidation  began  to  work. 
The  tribal  kingdoms  were  grouped  into  seven  or 
eight  larger  kingdoms,  forming  what  we  call  the 
Heptarchy.  One  kingdom  generally  acquired 
a  shadowy  supremacy  over  the  others.  Kent, 
East  Anglia,  Northumbria,  Mercia,  Wessex,  in 
turn  exercised  some  vague  supremacy  over  the 
other  kingdoms.  In  the  hands  of  the  West- 
Saxon  kings  this  vague  supremacy  was  changed 
into  a  permanent  dominion. 

This  process  of  consolidation  no  doubt  had 
its  origin  in  the  ambition  of  individual  kings. 
The  union  of  the  Heptarchic  Churches  in  the 
obedience  of  the  Archbishop  of  Canterbury 
led  the  way  to  the  union  of  the  Heptarchic 
kingdoms  in  the  obedience  of  the  King  of 
Wessex.  For  long  it  was  doubtful  which 
kingdom  would  obtain  that  supremacy.  The 
last  to  attempt  the  task  was  the  kingdom 
of  Wessex ;  and  the  supremacy  of  Wessex 
alone  became  permanent.     The  rival  kingdoms 


TIu  Early  English  Constitution.  ii 

had  had  their  day,  and  were  on  the  dech'ne.  Yet 
they  were  still  powerful,  independent,  and  irre- 
concilably jealous  of  one  another.  Something 
more  than  the  efforts  of  Egbert  were  necessary 
before,  in  any  true  sense,  a  kingdom  of  the 
English  could  be  said  to  exist  Such  a  result 
could  be  brought  about  by  nothing  less  than 
the  destruction  of  the  kingdoms,  and  the  extinc- 
tion of  the  local  dynasties.  The  rough  hand 
of  heathen  conquest  swept  away  every  English 
kingdom  but  one,  and  that  one  was  Wessex. 
Then  remained  the  doubtful  duel  between  the 
Dane  and  the  West-Saxon.  The  ability  of  the 
house  of  Cerdic  gave  the  victory  to  the  latter. 
The  treaty  of  Wedmore  (a.D.  879)  may  be 
regarded  as  both  the  record  of  the  unification 
of  the  English,  and  the  epitaph  of  the  independ- 
ence of  the  sub-kingdoms. 

The    northern    invaders    ministered    to    the  Thekin^$ 
increase  of  the  royal  power  in  two  ways.     First,  ^^es 
as  we  have  seen,  by  destroying  possible  rivals,  f'"'*^**^^- 
and  giving  the  West-Saxon  king  the  position  of 
the  sole  representative  of  the  English  race ;  in 
a  word,  by  rendering  possible  the  union  of  the 
English  under  a  single  rule.     But  they  did  more 
than  this ;  they  brought  about  a  change  in  the 
character  as  well  as  in  the  position  of  the  king, 
and  in  the  extent  of  his  realm.    We  have  said 


12  Tfie  Early  English  Cottstitution, 

that  the  early  English  king  was  bound  to  his 
subjects  by  personal  ties.  He  is  emphatically 
the  head  of  the  race.  By  what  ties  shall  he 
be  bound  to  the  alien  Northmen  whom  he 
conquers  ?  Obviously  he  is  not  connected  with 
them  by  blood-bonds.  He  is  the  conqueror  of 
their  country,  the  lord  of  their  land.  That  is 
his  title  to  their  allegiance ;  territorial,  not 
personal.  From  the  time  of  Edward  the  Elder, 
the  king  reigns  over  two  classes  of  subjects  by 
a  twofold  title.  He  is  king  of  the  race  to 
some;  he  is  lord  of  the  land  to  others.  His 
position  in  respect  of  the  one  is  personal ;  in 
respect  of  the  other  it  is  territorial. 

This  dualism  contains  within  itself  the  seeds 
of  change.  It  is  clear  that  one  title  or  the 
other  will  yield  ;  and  the  king  will  be  united 
to  his  subjects  by  an  uniform  tie ;  and  it  is 
equally  clear  that  the  title  to  yield  will  be  the 
personal  one,  because  it  is  not  transferable.  By 
no  stretch  of  imagination  can  the  man  of  the 
Danelaw  regard  the  English  king  as  the  head 
of  his  race,  of  one  blood  with  himself.  The 
personal  title  has  no  elzteticity.  Moreover,  it 
is  rapidly  becoming  obsolete,  even  among  the 
English,  for  even  from  the  earliest  times  there 
had  been  a  notable  exception  to  the  general 
rule  amongst  the  English  themselves.     There 


Tlie  Early  English  Constitution.  13 

had  been  one  class  of  subjects,  and  that  an 
ever-growing  class,  bound  to  the  king  by  ties 
which  were  indeed  personal,  but  were  not  ties 
of  blood.  The  right  to  keep  a  comitatus,  origi-  77u  cotm- 
nally  enjoyed  by  the  greater  men  of  the  tribe, 
had  come  to  be  the  peculiar  privilege  of  the 
English  king.  What  was  the  comitatus?  It 
was  a  body-guard  of  volunteers  bound  by  oath 
to  serve  the  lord  of  their  choice.  They  formed 
his  companions  {comites,  gesiths) ;  he  bestowed 
on  them  military  equipment,  maintenance,  pro- 
tection, and  reward.  They  returned  to  him 
service  and  allegiance,  the  means  of  gaining 
power  and  of  keeping  it.  The  tie  which  united 
the  princeps  to  his  comes,  the  ealdorman  to  his 
gesith,  was  the  oath  of  allegiance,  not  the  blood- 
bond.  War  has  its  effect  in  altering  the  position 
of  the  Coynes.  The  reward  of  victory  necessarily 
takes  the  form  of  a  grant  of  land.  It  is  not  a 
beneficium,  although  the  holder  owes  military 
service  to  a  superior  ;  for  the  beneficium  is  given 
as  the  condition  of  future  work ;  the  gesith's 
grant  is  given  as  the  reward  of  past  service. 
Yet,  clearly,  the  difference  will  wear  away  in 
time ;  and  the  service  of  the  thegn  will  be 
indistinguishable  from  that  of  the  feudal  knight 
or  vassal 

The  increase  of  the  king's  power  modifies  his 


14  The  Early  English  Constitution. 

relation   to  his   gesiths.     They  rise   in   power 
absolutely,   but    relatively  to   their  lord    they 
sink  into  a  lower  condition.     No  longer  com- 
panions {gesii/is),  they  become  soldiers  {thegns). 
This    land-holding,    service-owing    thegnhood 
constitutes   a    powerful    territorial    aristocracy, 
which    gradually    absorbs    the    older    nobility 
(Jf  blood,  and  develops  into  something  almost 
identical  with  the  feudal  baronage  of  later  times. 
Commen-        The    personal     relation     originally    existing 
between   the   king   and    his   people    had   been 
further  undermined   by  the    practice    of    com- 
mendation, a  practice  which,  in  the  stormy  period 
of  war,  was  very  common.     By  commendation 
a  freeman  placed  himself  under  the  protection 
of  some  powerful  person,  whom  he  acknowledged 
as  his  lord,  and  from  whom  he  received  protec- 
tion.    The    freemen  were    constantly  on    the 
decrease.     In  a   time  of  perpetual  commotion 
they  had  a  strong  inducement  to  surrender  up 
their  alods  into  the  hands  of  an  over-lord,  often 
the  king,  and  receive  them  back,  laden,  indeed, 
with  conditions  of  suit  and  service,  but  guarded 
by  his  powerful  protection. 

Thus,  perhaps,  we  can  understand  how  easy 
was  the  transition  from  the  personal  to  the 
territorial  conception  of  kingship,  how  rapidly 
the  newer  relation  absorbed   the  older  when 


The  Early  English  Constitution.  15 

once  the  commendation  of  the  conquered  Danes 
had  placed  the  two  relations  in  opposition. 
The  legislation  of  the  sons  of  Alfred  marks  the 
transition.  It  is  complete  when  Edmund  (a.d. 
943)  exacts  the  oath  of  fealty  from  all  his 
subjects.  The  English  king  does  not  cease  to 
be  the  head  of  the  race,  but  that  is  not  his 
most  prominent  function.  The  relation  between 
him  and  his  people  is  identical  with  that 
between  a  man  and  his  lord,  in  a  word,  it 
is  a  feudal  relation.  All  are  to  be  faithful  to 
Edmund,  "  Sicut  liomo  debet  esse  fidelis  domino 
suor 

The  changed  position  of  the  king  is  to  be  Develop^ 
traced  in  different  directions  :  in  legislation,  in  "the  royal 
the  maintenance  of  the  peace,  in  the  treatment  P^""^- 
of  the  folk-land,  the  constitution  of  the  Witan, 
the  assumption  of  imperial  titles. 

Alfred's  legislation  contains  the  first  law  o{ {\)Tre(U(m. 
treason  ;  *  the  law  which  separates  "  treason 
against  a  lord "  as  the  crime  for  which  alone 
no  money  bot  could  be  taken.  "//"  any  one 
plot  against  tlie  king's  life,  of  himself,  or  by 
harbouring  of  exiles,  or  of  his  men;  let  him 
be  liable  in  his  life  arid  all  that  he  has."* 
Edmund,   as  we  have   seen,   asserts    that  the 

»  "  Select  Charters,"  4th  edit.,  p.  6a. 
•  Ibid.,  p.  67. 


l6  Tfie  Early  English  Constitution. 

king  is  the  lord  of  his  people ;  and  a  law  of 
Ethelred  *  seems  to  make  absence  from  the  fyrd, 
or  national  levy,  when  the  king  in  person  con- 
venes it,  a  treasonable  offence  ;  the  wite  of  one 
hundred  and  twenty  shillings  suffices  for  ordi- 
nary neglect  of  the  fyrd.  There  can  be  little 
doubt  that  the  offence  of  treason  assumed  a 
special  importance  in  time  of  war ;  and  the 
fact  that  the  Danes  were  heathens  invests  the 
English  wars  against  them  with  a  semi-sacred 
character.  Treason,  perhaps,  involved  apostasy, 
for  it  was  an  offence  against  the  champion  of 
the  faith. 
(2)  Tht  Originally  the  peace,  the  unwritten  covenant 
kin^t  Qn  which  society  bases  itself,  was  maintained 
by  the  folk  itself;  the  hundred  and  the  shire 
had  their  own  "peace."  But  from  the  first 
there  had  existed,  side  by  side  with  this  general 
peace  of  the  folk,  a  limited  and  special  peace, 
the  grith  or  mund  of  the  king.  As  the  frith 
of  the  folk  was  maintained  by  the  national 
officers,  so  the  grith  of  the  king  was  maintained 
by  the  royal  officers.  The  king's  peace  ex- 
tended over  the  four  Roman  roads,  over  rivers 
and  navigable  streams,  which  are  the  highways 
of  commerce.  Three  times  a  year,  at  the  great 
festivals  of  Christmas,  Easter,  and  Whitsuntide, 
1  •*  Select  Charters,"*  p.  73. 


The  Early  English  Constitution.  17 

the  king  proclaimed  his  peace  over  all  the 
land.  The  divisions  of  the  shires  were  deter- 
mined by  him,  and  he  could  even  extend  his 
protection  over  the  estates  of  others.  It  is  not 
difficult  to  understand  how  the  king's  peace 
was  far  more  efficiently  maintained  than  that 
of  the  folk.  In  times  of  disturbance  the  con- 
trast would  be  emphasized.  It  would  become 
an  object  of  ambition  to  the  freemen  to  gain 
the  securer  protection  of  the  sovereign  ;  and 
when  the  first  great  Danish  war  had  come 
to  an  end,  and  society  began  to  repair  the 
injuries  received,  there  would  be  a  strong 
tendency  to  strengthen  the  central  power,  as 
the  one  power  able  to  maintain  the  peace  of 
the  land.  This  we  find  to  have  been  the  case. 
Alfred  organized  the  defence  against  external 
foes.  Edward  reformed  the  internal  condition 
of  the  country.  The  Witan  at  Exeter  were 
persuaded  to  "be  in  that  fellowship  that  he 
was,  and  love  that  which  he  loved,  and  shun 
that  which  he  shunned,  both  on  sea  and  land  ;  "* 
that  is  to  say,  the  nation,  speaking  by  its 
constitutional  representatives,  entered  into  the 
grith  of  the  king. 

The   peace  becomes   the   king's   peace ;    the 
courts  of  justice  become  his  courts ;  the  national 
»  "  Select  Charters,"  p.  64. 

C 


1 8  The  Early  English  Constitution. 

officers  become  his  officers.  ^' If  any  one  fail  to 
attend  the  gemot  thrice,  let  him  pay  the  king's 
oferhymes  .  .  .  if  any  one  will  not  ride  with  his 
fellows  (to  arrest  the  wrong-doer),  let  him  pay 
the  king's  oferhymes."  ^  To  neglect  the  court 
or  disobey  the  officers  is  to  insult  the  king,  and 
must  be  atoned  for  by  a  "  fine  for  contempt." 
(3)  Treat-  And  as  the  peace,  and  the  courts  of  justice, 
'Zik-^nd' ^^^  the  administrative  officials  cease  to  be  the 
folk's  and  become  the  king's,  so  does  the  folk- 
land  gradually  become  changed  into  the  king's 
demesne.  The  folk-land  was  what  we  have 
described  as  the  unallotted  land  which  remained 
over  after  the  settlement  of  all  claims.  It  was 
the  property  of  the  nation,  and  therefore  the 
management  of  it  remained  in  the  hands  of  the 
nation.  The  early  grants  of  folk-land  invariably 
express  the  consent  of  the  Witenagemot.  The 
king  grants  ^^  cum  consilio,  consensu  et  licentia  pro- 
cerum."  ^  But  from  the  time  of  Alfred  this  clause 
is  of  rarer  occurrence.  The  consent  of  the  Witan 
becomes  their  attestation.  No  longer  as  gran- 
tors but  as  witnesses  they  attach  their  names  to 
the  charters  ;  but  they  do  not  lose  their  right 
altogether  until  the  eleventh  century.  The 
reign  of  Ethelred  II.,  perhaps,  marks  the  change. 

»  "  Select  Charters,"  p.  66. 

'  Viae  Kemble's  "  Saxons  in  England,"  vol.  ii.  p.  226. 


The  Early  English  Constitution.  19 


The  king  exercised  an  ever-growing  influence  (4)  The 

Witen 
gemot. 


over  the  composition  of  the  Witenagemot.     The     *'"*^ 


free  elements — the  aldermen  and  bishops — were 
outnumbered  by  the  ethelings  and  king's  thegns. 
And,  perhaps,  this  easy  manipulation  of  the 
centraF  assembly  was  the  reason  why  it  suc- 
ceeded in  preserving  so  considerable  a  proportion 
of  its  ancient  powers.  The  king  could  effect  his 
purposes  with  less  risk  of  unpopularity  if  he 
effected  them  through  its  agency.  There  could 
be  no  object  in  destroying  so  useful  an  instru- 
ment. 

Two  rights  the  Witenagemot  succeeded  in 
retaining  throughout  the  whole  of  its  existence — 
the  right  of  legislation,  and  that  of  electing  and 
deposing  the  king. 

The  laws  of  Ethelbert  form  the  earliest  ex-  a  Legit- 
isting  fragments  of  English  legislation,  and  they  "^' 
were  issued,  so  Beda  informs  us,  cum  consilio 
sapientium}  The  earliest  extant  West-Saxon 
laws,  the  laws  of  Ini,  are  issued  by  that  king 
"  with  the  advice  and  by  the  teaching  of  Cenred 
my  father,  and  of  Hedde  my  bishop,  and 
Ercenwold  my  bishop,  with  all  my  ealdonnen, 
and  tlu  most  eminent  witan  of  my  people,  and 
also  with  a  great  assemblage  of  Gods  servants."  ' 
Alfred,  whose  reign  in  many  respects  marks  a 

»  Beda,  bk.  il  ch.  5.  «  "  Select  Charters,"  p.  61. 


20  The  Early  English  Constitution.^ 

great  advance  of  the  royal  power,  acknowledges 
in  ample  terms  the  action  of  the  Witan  in  his 
legislation.  *•  /  then,  A  If  red.  King  of  the  West- 
saxons,  showed  tJtese  [laws]  to  all  my  witan, 
and  they  then  said,  that  it  liked  t/tem  well  so  to 
hold  them."^  Athelstan,  perhaps,  was  the  most 
powerful  sovereign  of  the  house  of  Ccrdic,  yet 
his  reign  contains  an  emphatic  assertion  of  the 
legislative  right  of  the  Witan.  "  These  are  the 
dooms  which  the  witan  at  Exeter  decreed,  with 
t lie  counsel  of  Athelstan  the  king"^  In  Edgar's 
reign  the  theory  of  the^  kingship  reached  its 
highest  level,  although  the  zenith  of  real  power 
would  seem  to  have  passed ;  yet  the  "  peaceful 
king,"  like  his  predecessors,  legislates  "  with  the 
counsel  of  his  witan."  ^  Ethelred  II.,  a  prince 
not  without  a  strong  inclination  towards  absolu- 
tism, if  without  capacity  for  government,  freely 
acknowledges  the  right  of  the  Witenagemot  to 
make  laws.  "  Wise"  he  says, "  were  those  secular 
Witan  wJio  to  the  divine  laws  of  justice  added 
secular  laws  for  the  government  of  the  people  ; 
and  decreed  bot  to  Christ  and  the  king,  that 
many  should  thus,  of  necessity,  be  compelled  to 
right."  ^    The  conquering  and  imperial  Canute 

'  "  Select  Charters,"  p.  62. 

>  Kemble's  "Saxons  in  England,"  vol.  ii.  p.  210. 

»  "  Select  Charters,"  p.  71. 

*  Kemble's  "Saxons  in  England,"  vol.  ii.  p.  212. 


Tlie  Early  English  Constitution.  21 

retains  at  the  head  of  his  collection  of  laws  the 
customary  formula  ;  and  the  witness  of  his  reign 
completes  the  chain  of  evidence  on  this  subject. 

The   English   kingship  was   both   hereditary  f/J)  EUc- 

,  .  .  ,        .       /«*•»  and 

and  elective ;  that  is  to  say,  it  was  elective  depjsUion 
within  the  limits  of  a  single  family  ;  failing  that  "/^^^"S- 
family  it  was  elective  absolutely.  No  right  of 
primogeniture  was  recognized ;  the  nearest 
capable  relative  of  the  dead  king  was  elected ; 
obviously  in  most  cases  that  relative  would  be 
his  brother  or  his  eldest  son.  Alfred  succeeded 
his  brother,  and  no  voice  protested  that  Ethel- 
red's  children  were  wronged.  Edred  was  chosen 
by  the  Witan  on  the  death  of  Edmund,  whose 
two  sons  were  yet  children.  This  election  was 
no  mere  form ;  even  the  Danish  kings  found  it 
necessary  to  veil  the  fact  of  conquest  by  the 
fiction  of  a  forced  election.  At  the  very  close 
of  early  English  history  the  Witenagemot  exer- 
cised their  ancient  right  under  exceptional  and 
perilous  circumstances  in  the  election  of  Earl 
Harold. 

A  natural  deduction  from  the  right  of  electing 
the  king  is  the  correlative  right  of  deposing  him  ; 
although  the  occasions  on  which  the  latter  right 
was  exercised  were  of  comparatively  rare  occur- 
rence. The  Anglo-Saxon  Chronicle,*  under  the 
*  Anglo-Saxon  Chron.  (Rolls  Series),  voL  i.  p.  82. 


22  The  Early  English  Constitution. 

year  755,  records  the  deposition  of  Sigebert  by 
the  West-Saxon  Witan,  acting  under  the  leader- 
ship of  a  rival  claimant  of  the  throne.  "  This 
year  Cynewulf  and  the  West- Saxon  Witan 
deprived  Sigebert  of  his  kingdom^  except  Hamp- 
shire, for  his  unjust  doings."  In  A.D.  774,  the 
Northumbrian  Witan  deposed  Alcred  ;  and  the 
history  of  the  northern  kingdom  is  full  of  the 
sudden  and  violent  depositions  of  kings,  some 
of  which  at  least  must  have  been  regular  pro- 
ceedings, although  many  no  doubt  were  not. 
These  cases  belong  to  the  Heptarchic  period. 
After  the  consolidation  of  the  kingdom  under 
the  line  of  Cerdic,  three  cases  of  deposition  occur. 
When  Ethelwulf  returned  from  his  pilgrimage  to 
Rome,  we  learn  from  Asser,^  whose  evidence, 
however,  in  face  of  the  silence  of  the  Chronicle,  is 
scarcely  conclusive,  that  the  West-Saxon  Witan, 
at  the  instigation  of  Ethelbald,  deposed  him. 
The  Mercians  deposed  Edwy  in  favour  of  his 
brother  Edgar ;  and  the  Witan  of  the  whole  king- 
dom abandoned  Ethelred  II.  in  AD.  1013,  and 
accepted  Swegen.  In  every  case  the  action  of 
the  Witenagemot  was  the  result  of  dynastic 
intrigue  or  of  some  other  external  agency ;  and 
without  such  agencies,  it  is  more  than  probable 
that  neither  Ethelwulf,  nor  Edwy,  nor  Ethelred 
Asser,  ed.  Wise,  1722,  pp.  8-10. 


The  Early  English  Constitution.  23 

would  have  been  deposed.  Deposition,  it  must 
be  remembered,  involves  a  far  greater  exercise 
of  power  than  election  ;  for  it  is  in  itself  some- 
thing far  more  than  the  simple  undoing  of 
election.  The  king  is  king  by  virtue  of  some- 
thing more  than  election.  His  assumption  of 
the  crown  is  hedged  round  by  the  threefold 
sanction  of  election  by  the  Witan,  unction  and 
coronation  by  the  Church,  and  the  oath  of  alle- 
giance from  the  nation.  That  king  was  either 
very  guilty  or  very  unfortunate  whose  conduct 
brought  into  play  so  far-reaching  an  act  of  power. 

We  have  traced  at  some  length  the  develop-  Summary. 
ment   of  the   kingship,   because,   perhaps,   that 
development   is  one  of  the  most  characteristic 
features   of  early  history.     The   process  which 
changed  the  tribal  king  into  the  territorial  king, 
the  lord  of  the  land,  went  on  under  various  con- 
ditions  in   other  portions   of  the   constitution. 
Everywhere  the  personal  and  official  tended  to  be 
absorbed  by  the  territorial  and  feudal.     We  have 
observed  this  tendency  operating  in  the  case  of 
the  comitatuSy  changing  the  personal  relationship 
between  the  ealdorman  and  his  gesith  into  the 
semi-feudal  relationship  between  the  king  and 
the  land-holding,  service-rendering  thegns.     We 
have  seen  that  the  Danish  wars  had  results  in 
the  same  direction,  by  inducing  the  free  ceorls  to 


24  The  Early  Etiglish  Constitution. 

purchase  security  by  the  sacrifice  of  their  free- 
dom, and  by  substituting  the  territorial  for  the 
personal  relation  to  the  king.     We   must  now 
slightly  change  the  method  of  our  inquiry,  and 
mark  the  working  of  the  same  tendency  in  its 
results  on  the  judicial  and  military  organization 
of  the  country. 
Opposing        Feudalism  includes  two   essential  conditions, 
tn  English  which  may  serve  as  the  tests  or  marks  of  the 
fMiimltai     feudal   state.     The   one   condition   attaches   to 
History,      the  land  the  duty  of  military  service  to  an  over- 
lord ;  the  other  attaches  to  the  land  the  duty  of 
attending  the  court  of  the  over-lord.     The  feudal 
tenant,  in  short,  owes  his  over-lord  "suit  and 
service." 

By  applying  these  tests  to  the  England  of  the 
eleventh  century,  we  ascertain,  perhaps,  with 
the  greatest  exactitude,  the  extent  of  the  pro- 
gress made  by  the  feudal  principle,  and  the 
extent  to  which  the  institutions  of  the  country 
retain  their  primitive  freedom.  And  here  it  is 
necessary  to  remember  that  from  the  very  first 
among  the  English,  both  in  their  military  and  in 
their  judicial  institutions,  there  had  operated 
two  principles,  fundamentally  opposed. 

There  was  first  the  popular  principle  which 
lay  at  the  foundation  of  the  military  and  judicial 
arrangements  of  the  tribe.      This  principle  im- 


Tlu  Early  English  Constitution.  25 

posed  on  the  freeman  the  honourable  burden 
of  sharing  in  the  national  defence,  and  the 
important  privilege  of  trial  by  his  fellows.  The 
courts  of  justice  and  the  host  were  organized 
on  a  popular  basis  ;  indeed,  at  first  the  distinc- 
tion between  the  two  was  a  very  slight  one. 
The  judicial  arrangements  reproduced  for  another 
purpose  the  divisions  of  the  host.  After  the 
settlement  in  Britain,  the  judges  in  the  courts 
of  the  township,  the  hundred,  and  the  shire 
were  the  suitors  upon  whom,  as  upon  all  free- 
men, lay  the  burden  of  national  defence. 

Concurrently  with  the  popular  principle,  there 
operated  another  and  rival  principle,  which  may 
be  called  feudal.  This  lay  at  the  root  of  the 
comitatus.  The  companions  who  followed  their 
chief  to  battle  recognized  his  jurisdiction  in 
time  of  peace.  The  feudal  principle  removed 
them  to  some  extent  from  the  host  of  the  free- 
men, and  from  the  courts  of  the  folk. 

In  the  dim  past  of  the  earlier  history  of  the 
English,  these  rival  principles  can  be  perceived 
at  work.  Side  by  side  there  exist  upon  the 
soil  of  Britain  the  quasi-manorial  communities 
of  the  IcEts,  and  the  village-communities,  the 
townships  of  the  free  ceorls.  The  book-land 
of  the  gcsith  and  the  eorl  is  contrasted  with 
the  alods  of  the  freemen.     Eorls  coexist  with 


26  TJie  Early  English  Constitution. 

thegns,  the  free  ceorl  with  the  commended 
ceorl,  the  freely  elected  township-man  presid- 
ing over  the  moot  of  the  free  township  with 
the  lord's  nominee,  gerefa  or  bailiff,  presiding 
over  the  moot  of  the  incipient  manor. 

These  concurrent  principles  thus  embodied 
in  concrete  forms  are  found  in  collision  with 
one  another,  and  with  an  invariable  result. 
The  weaker  principle  yields  to  the  stronger. 
Feudaiiza-  On  the  side  of  the  military  organization  of 
military  the  nation  the  feudal  principle  encroached  on 
"tmt"^^'  ^^  popular,  as  commendation  transformed  the 
freemen  under  the  banner  of  the  sheriff  into 
the  dependent  following  of  the  thegn.  The 
host  which  the  ealdorman  led  forth  from  the 
shire  to  resist  invasion  was  indeed  the  folk  in 
arms,  the  primitive  host,  but  it  was  the  folk 
organized  to  a  very  large  extent  on  the  feudal 
model.  In  theory  the  immemorial  obligation 
of  the  fyrd  rested  on  every  citizen ;  in  fact, 
before  it  reached  the  mass  of  the  citizens  that 
immemorial  obligation  had  been  transmuted 
into  the  summons  of  an  over-lord.  The  course 
of  the  political  history  to  some  extent  counter- 
acted the  tendency  of  the  constitutional.  The 
early  English  wars  were  almost  exclusively 
wars  of  defence.  The  principle  which  dictated 
to  the  freemen  the  duty  of  the  fyrd  was  per- 


Tfie  Early  English  Constitution.  27 

petually  reasserted  by  being  perpetually  acted 
upon.  Had  it  not  been  so,  the  popular  organi- 
zation of  the  national  defence  might  have  easily 
sunk  into  the  insignificance  into  which  the 
kindred  organizations  of  the  continent  fell,  sur- 
viving only  for  the  lower  purposes  of  police. 
Watch  and  ward,  police  and  defence,  formed  the 
twofold  obligation  of  Xki'&fyrd.  In  the  organiza- 
tion of  the  national  defence,  perhaps  more  than 
in  anything  else,  the  primitive  popular  principle 
of  the  national  polity  succeeded  in  asserting 
itself  continuously  against  its  rival. 

On  the   side  of  the  judicial  organization  oiandofth* 
the  nation,  the  feudal  continually  gained  ground^^/sa- 
at  the  expense  of  the  popular   principle.     The  ''^''• 
process  was  somewhat  different     Here  it  was 
rather  by  narrowing  the  sphere  of  action,  than 
by  interfering  with   the  action   itself,  that  the 
advance  was   made.      The  jurisdiction   of  the 
popular  courts  was  ever  being  encroached  upon 
by  the  creation  of  rival  private  jurisdictions. 

It  has  been  already  pointed  out  that  the 
gesiths  or  thcgns  of  the  king  were  in  \{\s  gritk 
and  under  his  jurisdiction.  This  was  the  fact 
when  the  tribe  possessed  no  settled  territories, 
and  the  tie  which  bound  companion  and  chief 
together  was  purely  personal.  It  continued 
to  be  the  case  where  the  tribe  had  settled  in 


28  The  Early  English  Constitution. 

Britain,  and  the  personal  tie  had  begun  to  lose 
itself  in  the  territorial.  The  thegn,  with  his 
estate  of  book-land  carved  out  of  the  folk-land, 
owed  suit  and  service  to  the  king.  At  a  very 
early  time  it  became  a  common  practice  to 
couple  with  grants  of  land  grants  of  jurisdiction. 
This  was  expressed  by  the  later  formula  "  Sac 
and  Soc"  an  alliterative  phrase  of  which  the 
origin  and  exact  meaning  are  not  free  from 
obscurity.  It  would  seem  probable  that  in 
most  cases  the  grant  of  sac  and  sac  conveyed 
an  exemption  from  the  hundred-court  only,  not 
from  the  shire-court.  Yet  sometimes  the  latter 
was  also  included  :  a  notable  instance  occurs 
in  Domesday,  in  the  case  of  Worcestershire, 
the  sheriff  of  which  declares  that  in  seven  out 
of  the  twelve  hundreds  of  the  shire  he  has  no 
authority.  Grants  to  the  thegns  and  grants  to 
the  Church  removed  an  ever-increasing  portion 
of  the  population  from  the  jurisdiction  of  the 
royal  or  national  courts.  The  right  of  justice 
became  an  incident,  an  inseparable  incident,  of 
land  tenure,  until  the  thegn  with  his  normal  hold- 
ing of  five  hides  counted  among  the  privileges  of 
his  rank  the  possession  of  his  private  court. 
Consequent  The  feudal  principle,  making  territorial  all 
^al  relationships,  had,  indeed,  enabled  the  kingship 
P""^-        to  absorb  into  itself  the  national  powers ;  now 


The  Early  English  Constitution.  29 

the  same  principle  snatched  from  the  kingship 
the  substance  of  strength,  and  left  but  the 
shadow.  The  zenith  of  the  monarchy  synchro- 
nized with  the  rapid  rise  of  the  private  franchises, 
by  which  monarchy  was  in  danger  of  being 
reduced  to  a  name.  When  over  whole  districts 
the  royal  power  was  vested  in  powerful  local 
landowners — when  as  judges  and  land-ricas  these 
sat  as  presidents  in  the  hundred-courts  and 
received  a  share  of  the  profits  of  the  hundred, 
when  they  exercised  jurisdiction  over  the  lesser 
landowners — then,  indeed,  the  English  king  was 
menaced  with  the  lofty  impotence  of  the  feudal 
position.  This  state  of  things  did  not  exist 
before  the  reign  of  Canute  (a.d.  10 16-103 5) ; 
the  appearance  of  the  land-ricas  is  just  one 
of  those  facts  which  give  the  reign  a  revolu- 
tionary appearance.  Another  is  the  division 
of  England  into  the  four  great  earldoms  of 
Wessex,  Mercia,  East  Anglia,  and  Northumbria. 

That  division  seems  to  form  a  symmetrical  Division 
completion    of   the   process    which    had    been  dJm'itu"^ 
steadily  in  progress  during  five  centuries  towards -'^'^r.^''''^ 
feudalism.     The  anarchy  of  Edward  the  Con- 
fessor's  reign   was   the   logical   and    inevitable 
outcome  of  the  policy  of  Canute.      The  great 
earldoms  became  practically  hereditary  in   the 
families  of  their  first  possessors ;   the  power  of 


30  The  Early  English  Constitution. 

the  crown  was  as  nothing  before  the  power 
of  the  earls.  The  position  of  the  Confessor 
between  two  rivals  of  equal  strength  and  am- 
bition— by  turns  the  tool  of  both — can  only 
find  a  parallel  in  a  country  which  was  essentially 
feudal.  Edward  the  Confessor  may  share  with 
his  contemporary,  Henry  I.  of  France,  the 
position  of  the  typical  feudal  king.  Neverthe- 
less, the  political  anarchy  did  not  involve  any 
very  considerable  disturbance  of  the  organiza- 
tion of  the  country.  The  establishment  of  the 
great  earls  seems  to  have  left  untouched  the 
shire-system.  The  royal  writ  was  sent  to 
the  earl  and  bishop  and  sheriff  of  each  shire, 
although  all  those  officers  included  several 
shires  in  their  jurisdictions.  It  is  possible  that 
the  earl  presided  in  the  shire-court  by  a  deputy 
who  bore  the  discarded  title  of  ealdorman  ;  but 
this  is  mere  conjecture.  The  shire-moot  sur- 
vived the  changes  of  Canute's  and  the  anarchy 
of  Edward's  reign,  not  unaffected  by  them,  but 
still  retaining  a  very  considerable  proportion 
of  its  ancient  importance.  However  dilapidated 
in  its  composition,  and  depressed  from  outside 
by  the  progress  of  feudalization,  the  shire-moot 
embodied  in  its  organization  and  its  functions 
almost  all  that  remained  of  the  primitive  freedom 
of  the  English  polity. 


The  Early  English  Constitution.  31 

The  historic  shires  had  not  a  common  origin.  The  shire. 
Some  represent  the  primitive  union  of  several 
more  ancient  districts,  tribal  or  other,  in  a  federa- 
tion for  religious,  judicial,  and  political  purposes ; 
others,  especially  those  in  Wessex,  represent  the 
kingdoms  first  established  in  Britain  by  the  inva- 
ders; others,  more  especially  those  in  the  Norths 
represent  the  later  district,  into  which  the  country 
was  artificiallydivided  for  purposes  of  government 
by  the  West-Saxon  kings.    And  the  organization  Character 
of  the  shire  bears  witness  to  its  threefold  origin,  "ormmia- 
The  shire-moot  is  an  agglomeration  of  hundred-  '*^" 
moots ;  it  is  also  the  folk-moot  of  the  tribal  king- 
dom ;  it  is  also  theunit  forpurposesof  government 
On  the  one  hand  it  stands  in  intimate  relationship 
with  the  popular  courts  below,  and  on  the  other  it 
connects  itself  through  its  officers  with  the  Wite- 
nagemot  and  the  king.     Thus  it  brings  the  local 
machinery  of  the  hundreds  and  the  townships  into 
connection  with  the  central  government.     In  its 
popular  composition  it  bearswitness  to  its  popular 
origin.    In  its  self-sufficiency  it  commemorates  its 
ancient  political  independence.    In  its  relation  to 
the  central  power  it  reveals  the  design  of  its  later 
creation.    The  shire-moot  was  nothing  else  than 
the  collection   together  of  the   hundred-moots 
under  the  officers  of  the  shire.    As  such  it  included 
three  several  elements  :    the  popular  element. 


32  TJie  Early  English  Constitution. 

represented  by  the  reeve  and  four  men  from 
every  township  ;  the  feudal  element,  represented 
by  all  lords  of  land — shire-thegns — both  those 
who  attended  the  hundred-moot,  and  those 
whose  more  extensive  franchises  exempted 
them  from  attendance ;  the  official  element, 
represented  by  the  hundred-man  and  twelve 
"  senior-thegns "  from  every  hundred.  The 
Its  officers,  officers  of  the  shire  were  three :  the  bishop,  the 
ealdorman,  or  later  the  earl,  and  the  sheriff, 
representing  respectively  the  Church,  the  folk, 
and  the  central  government.  The  bishop  and 
the  ealdorman  were  members  of  the  Witenage- 
mot  It  is  quite  true  that  the  bishop's  diocese 
was  not  always  restricted  to  a  single  shire,  and 
that  both  ealdormen  and  sheriffs  exercised  juris- 
diction over  several  shires  at  once ;  still  the 
constitutional  fiction  supposed  a  bishop,  an 
ealdorman,  and  a  sheriff  to  every  shire,  and 
the  king  directed  his  writs  accordingly,  although, 
probably,  in  many  shire-moots,  bishops,  ealdor- 
men, and  perhaps  even  sheriffs,  only  appeared 
(I)  The  by  their  deputies.  Although  the  bishop  sat 
bishop.  1^  ^g  shire-moot,  and  expounded  there  the 
"  law  of  God,"  that  court  by  no  means  formed 
the  sole  sphere  of  his  judicial  activity.  Like 
other  great  landowners,  he  possessed  his  own 
franchise,  and,  as  a  spiritual  officer,  his  religious 


The  Early  English  Constitution.  33 

jurisdiction.  It  is,  however,  certain  that  the  close 
union  between  Church  and  state  dispensed  with 
the  rigid  definitions  of  their  respective  spheres 
of  action  which  marked  the  subsequent  age. 
The  piety  and  policy  of  the  English  tribes 
assigned  to  the  clergy  a  position  of  great  power 
and  dignity.  An  indication  of  this  is  to  be 
found  in  the  law  of  Ini/  which  decrees  that 
the  bot  for  the  bishop's  burg-bryce  shall  be  equal 
to  that  for  the  king's,  in  both  cases  one  hundred 
and  twenty  shillings,  while  the  penalty  for  a 
similar  offence  in  the  case  of  an  ealdorman  is 
fixed  at  eighty  shillings.  As  the  number  of 
bishops  increased  and  the  supremacy  of  the 
West-Saxon  kings  became  assured,  the  relative 
importance  of  both  underwent  an  immense 
change.  The  tenth-century  record  of  the 
wergilds  of  the  northern  people  witnesses  to 
this  change.'  There  an  archbishop  is  ranked 
on  an  equality  with  an  etheling,  and  a  bishop 
with  an  ealdorman,  while  the  king's  wergild 
is  estimated  at  a  much  greater  amount  and  on 
a  different  basis.  Although  the  relative  im- 
portance of  the  bishops  thus  diminished,  at 
the  close  of  the  early  English  period  they  still 
appear  in  possession  of  an  immense  influ- 
ence. Forming  the  most  homogeneous  and 
»  "  Select  Charters/  p.  62.  «  Ibid.,  p.  65. 

D 


ealdor- 


34  The  Early  English  Constitution. 

politically  capable  section  of  the  Witenagemot, 
exercising  a  considerable  influence  over  the 
national  courts,  adding  to  both  the  peculiar 
force  of  their  spiritual  position,  the  clergy 
exerted  an  extensive  and  beneficent  authority 
in  the  affairs  of  the  nation. 
(2)  The  The  ealdorman  is  the  most  imposing  figure 
among  the  officials  who  preside  at  the  shire- 
moot.  Perhaps  himself  the  descendant  of  the 
ancient  kings,  he  has  not  altogether  lost  his 
royalty.  Around  him  gather  the  cherished 
memories  of  the  tribe — memories  which  survive 
the  shock  of  West-Saxon  conquest,  and  preserve 
the  individuality  of  the  once  independent  folk. 
He  takes  his  place  as  president  of  the  court ; 
he  leads  forth  to  war  the  forces  of  the  shire. 
He  represents  the  popular  element  in  the  ad- 
ministrative machinery  of  the  country.  As  the 
king  symbolizes  the  unity  of  the  nation,  so 
the  ealdorman  symbolizes  the  unity  of  the 
shire.  He  typifies,  so  to  say,  its  individuality. 
Within  historic  times  the  king  and  Witenagemot 
would  seem  to  have  united  in  appointing  this 
officer ;  but  the  consent  of  the  shire  was  also 
expressed,  probably  in  the  ceremony  of  his 
installation.  The  ealdormanship  was  less 
affected  by  the  feudalizing  tendency  of  the 
time  than   many  other  institutions.     In  most 


The  Early  English  Constitution,  35 

cases  the  office  was  held  for  life  ;  the  cases 
when  son  succeeded  father  are  exceptional. 
The  king  seems  to  have  maintained  unimpaired 
his  authority  over  the  ealdormen.  Expulsions 
from  office  for  high  treason  or  other  offences 
are  by  no  means  rare,  and  the  Saxon  Chronicle 
records  one  instance  in  which  the  punishment 
of  death  was  inflicted.  "The  high  reeves  of 
the  Northumbrians  burned  the  Ealdorman 
Beom  at  Selet-un,"  is  the  brief  record  of  the 
Chronicle  under  the  year  780,*  Henry  of 
Huntingdon  assigns  the  severity  of  the  unhappy 
"consul"  as  the  cause  of  his  death.*  However 
that  may  be,  the  action  of  the  "high  reeves" 
is  suggestive  of  some  right  recognized  in  the 
suitors  of  the  shire-moot  to  call  their  ealdorman 
to  account  for  his  actions. 

The  power  of  the  ealdorman  was  great  enough 
to  justify  this  jealous  supervision.  He  presided 
over  the  internal  and  external  relations  of  the 
shire.  Before  him  were  borne  the  symbolic 
staff  and  sword,  for  in  his  hands  were  centred 
both  the  executive  and  the  judicial  authority 
of  the  shire.     He  declared  the  law  and  he  led 

•  Anglo-Saxon  Chron.,  vol.  i.  p.  93. 

"  Hen.  Hunt.  (Rolls  Series),  p.  126.  It  is,  however,  by 
no  means  certain  that  the  "  high  reeves  "  were  the  officers 
of  the  shire. 


36  The  Early  English  Constitution. 

the  host  Moreover,  he  was  a  member  of  the 
Witenagemot  of  the  realm,  where  he  occupied 
a  position  of  special  importance  as  distinctively- 
representing  the  nation.  His  dignity  was  equal 
to  his  power ;  it  was  hedged  round  with  various 
safeguards.  A  higher  wergild  and  a  weightier 
compurgatory  oath,  a  limited  right  of  sanctuary 
belonging  to  his  house,  the  heavy  penalties 
attached  to  insults  addressed  either  to  his 
dwelling  or  his  person,  marked  his  superiority 
to  every  subject  save  the  primate.  As  his 
power  was  great  and  his  dignity  lofty,  so  also 
was  his  income  considerable.  Public  lands,  a 
share  (probably  a  third  part)  of  the  profits  of 
jurisdiction,  voluntary  offerings,  a  share  in  the 
profits  of  war,  the  proceeds  of  the  regalia  on 
his  own  public  and  private  lands,  perhaps  in 
some  cases  the  right  of  coinage, — these  were 
the  main  sources  from  which  the  ealdorman 
drew  the  income  which  enabled  him  to  maintain 
the  state  befitting  his  position. 

One  circumstance  gives  an  unique  interest 
among  early  English  institutions  to  the  ealdor- 
manship.  It  alone  failed  to  perpetuate  itself 
in  any  recognizable  form  in  the  later  history 
of  the  constitution.  The  earl  who,  under  the 
Danish  dynasty,  supplanted  the  ealdorman, 
monopolizing  his  functions  and  almost  oblite- 


The  Early  English  Constitution.  37 

rating  his  name,  cannot  in  any  legitimate  sense 
be  regarded  as  perpetuating  the  office.  The 
earl  and  the  ealdorman  represent  rival  prin- 
ciples, and  the  triumph  of  the  first  is  also  the 
triumph  of  the  feudal  principle. 

The  third  officer  of  the  shire  was  the  gerefa, 
who  bore  the  name  of  shire-man  or  shire-gerefa,  (3)  "pt* 
whence  the  later  sheriff.  He  held  his  position 
by  royal  appointment,  in  which  the  Witan  had 
not  even  a  consenting  voice.  As  he  had  no  seat 
in  the  Witenagemot,  his  appointment  did  not 
directly  interest  that  assembly  as  did  that  of  the 
ealdorman  or  bishop.  It  would  seem  probable 
that  in  the  earliest  age  of  the  national  history  the 
sheriff,  like  his  fellow-officials,  owed  his  position 
to  popular  election ;  and  it  is  possible  that  the 
tradition  of  election  lingered  on  in  some  form 
of  acceptance  by  the  shire.  It  is,  however, 
certain  that  in  the  earliest  times  of  which  we 
have  any  record  the  sheriff  is  in  no  sense  a 
popular  official.  He  is  the  nominee  of  the 
king,  and  as  such  he  stands  contrasted  with 
the  ealdorman,  in  whom,  as  has  been  shown, 
the  idea  of  national  representation  is  centred. 
To  a  very  great  extent  it  is  true  to  say  that 
the  sheriff  acts  as  the  ealdorman's  subordinate, 
but  this  is  not  altogether  the  case.  If  in  time 
of  war  the  sheriff  follows  the   banner  of  the 


38  Tlte  Early  English  Constitution. 

ealdorman  at  the  head  of  the  freemen  of  the 
shire ;  in  time  of  peace  he,  not  the  ealdorman, 
is  the  "  constituting  officer "  of  the  shire-moot. 
Without  his  presence  no  shire-moot  can  be 
held.  He  alone,  in  the  absence  of  bishop  and 
ealdorman,  can  hold  a  shire-moot.^  Wulfsige, 
the  sheriff  of  Kent,  acting  by  himself,  decided 
an  important  dispute  about  the  title  to  some 
land,  in  which  the  Archbishop  St.  Dunstan 
appeared  as  one  of  the  litigants.  The  sheriff 
was  the  principal  fiscal  officer  of  the  shire.  He 
had  charge  of  the  royal  estates,  and  of  the  folk- 
land.  He  levied  all  fines  to  the  king,  seized 
the  lands  and  chattels  of  criminals,  and,  when 
the  pressure  of  the  northern  wars  compelled  the 
imposition  of  national  taxation,  collected  the 
taxes  levied  on  the  nation  by  the  Witenagemot. 
There  can  be  little  doubt  that  the  sheriffs  were 
guilty  of  oppression  in  their  fiscal  arrangements. 
"  This  is  the  alleviation^'  runs  the  law  of  Canute," 
**  which  it  is  my  pleasure  to  secure  to  all  the 
prople,  of  that  which  hath  heretofore  too  much 
oppressed  them.  First,  I  command  all  my 
reeves  that  they  justly  provide  for  me  on  my 
own,  and  maintain  me  therewith:  and  t/iat  no 
mem  need  give  them  anything  as  'feormfultum ' 

*  "  Dipl.  Aug.  oevi.  Sax.,"  p.  273. 

•  "  Select  Charters/'  p.  74. 


Tfu  Early  English  Constitution.  39 

unless  he  himself  be  willing.     And  if  any  one 
after  that  demand  a  ^wite'   let  him   be  liable 
in  his  wer  to   tfie  king."     The  duration  of  the 
tenure  of  the  sheriffdom  is  not  certainly  ascer- 
tained ;    it   seems    clear  that   the   office    never 
became  hereditary  before  the  Norman  conquest 
The   emoluments  of  the  sheriff  arose  for  the 
most  part  from  the  same   sources  as  those   of 
the  ealdorman.      Probably  he   also    possessed 
estates    attached   to   his    office,  shared   in   the 
judicial  profits  of  the  shire,  received  voluntary 
offerings  from   suitors,   and   a   portion    of   the 
plunder  taken  in  war.     According  to  the  law 
of  Edgar,*  the  sheriff  convened  the  shire-moot 
twice    in    the    year ;    he   proclaimed   on   those 
occasions    any  laws  which    the  king   and    his 
Witan    had    passed   in  the    interval,   and   the 
suitors    formally  accepted    them,  perpetuating 
in  the  ceremony  of  acceptance  the  long  obsolete 
right  of  legislation.     There  is  extant  an  address 
to    Athelstan    from    the    shire-moot    of    Kent, 
declaring  acceptance  of  the  recent   legislation 
of  the  Witan  at  Greatanlea.*     It  would   seem 
that  the  sheriff  required   from  the  freemen  a 
wedd  or  pledge  that  they  would  obey  the  new 
law.     This  arrangement   in   some  sense   made 

>  "Select  Charters,"  p.  71. 

•  Sec  Kemblc's  "  Saxons  in  £nj[land,"  vol.  ii.  p.  233. 


40  The  Early  English  Coftstituiion. 

amends  for  the  great  fault  of  the  Witenagemot, 
viz.  its  non-representative  character.  Instead 
of  the  constitutional  obligation  to  submit  to 
the  acts  of  its  representatives,  the  nation 
would  seem  to  impose,  as  a  preliminary  to 
submission  to  the  acts  of  its  wise  men,  the 
condition  of  its  own  acceptance. 

A  peculiar  constitutional  interest  attaches  to 
the  organization  of  the  shire,  for  thereby  was 
carried  forward  into  the  succeeding  age  the 
forms  and  something  of  the  spirit  of  the  ancient 
administration.  Under  all  the  weight  of 
feudalism  it  remains  a  memorial  of  the  free 
past,  until  in  the  twelfth  century  it  is  utilized 
by  the  royal  power  to  provide  a  simple  and 
sufficient  machinery  whereby  the  task  of  self- 
government  is  accomplished. 
impor-  The  union  between  the  social  and  the  con- 

'^ocZihis-  stitutional  history  of  a  people  is  intimate  and 
toryofthe  inseparable.      The    tendencies   which   work    in 

period.  ^ 

the  one  will  also  work  in  the  other.  The 
history  of  the  constitution  will  advance  pari 
passu  with  the  history  of  the  social  state.  The 
one  interprets  the  other.  We  have  said  that  the 
tendency  of  early  English  history  is  from  greater 
freedom  to  lesser  freedom,  from  liberty  to  feudal- 
ism ;  and  we  have  traced  the  unequal  struggle 
between  the  principle  of  primitive  freedom  on 


The  Early  English  Constitution.         41 

the  one  hand,  and  the  innovating  principle  of 
feudalism  on  the  other.  We  have  observed  the 
forces — internal  and  external — which  helped  for- 
ward, retarded,  or  mutilated  the  final  triumph  of 
feudalism.  Now  it  remains  to  mark  the  same 
tendency,  the  same  unequal  struggle,  the  same 
various  influences  at  work  in  the  social  history. 

Placing  side  by  side  the  picture  which  Tacitus  (1)  status. 
has  drawn  in  the  Germania  of  the  social  life  of 
the  Teutonic  tribes  of  the  first  century — a  picture 
which  all  subsequent  evidence  justifies  us  in 
believing  is  essentially  true  of  the  English  of 
the  fifth  and  sixth  centuries — and  the  picture 
which  William  the  Norman  caused  to  be  painted 
on  the  parchment  of  Domesday  Book  of  the 
social  condition  of  the  English  in  the  eleventh 
century,  what  conclusions  are  suggested  by  the 
comparison?  We  observe  at  once  that  the 
two  pictures  are  very  dissimilar,  yet  not  without 
some  points  of  resemblance.  The  one  presents 
to  view  a  free  society,  containing  within  itself 
the  seeds  of  feudalism.  The  other  portrays 
a  feudal  society,  containing  within  itself  the 
relics  of  primitive  freedom.  We  infer  then 
first  of  all,  the  continuous  development  of  the 
feudal  principle.  We  observe  further  that 
the  relics  of  liberty  are  unequally  distributed  t 
numerous  here,   invisible  there.     Here,  in   the 


42  The  Early  English  Constitution. 

shires  which  form  the  old  West-Saxon  kingdom, 
the  manorial  system  predominates,  and  alodial 
tenure  is  unknown.  There,  in  the  region  of  the 
Danelaw,  it  is  scarcely  an  exaggeration  to  affirm 
that  the  converse  is  the  case.  Sochmanni  and 
Liberi-tenenteSy  elsewhere  unknown,  form  in 
Lincolnshire  and  East  Anglia  a  great  propor- 
tion of  the  population,  Mr.  Seebohm^  has 
shown  with  admirable  clearness  the  distribution 
of  the  population  according  to  the  classes 
mentioned  in  Domesday.  Generally  it  is  true 
to  say  that  the  unfree  element  is  strongest  in 
the  south,  and  the  free  element  strongest  in  the 
Danish  districts. 

We  infer,  then,  in  the  second  place,  that  the 
development  of  the  feudal  principle,  though 
continuous,  was  not  symmetrical ;  and  that  an 
antagonistic  force,  a  check  on  the  process,  was 
found  in  the  northern  invasions. 
(2)  Land-  Turning  from  the  question  of  status  and 
applying  ourselves  to  that  of  land-tenure,  we 
find  an  enormous  mass  of  land,  once  the  national 
land  or  folk-land,  now  registered  in  the  Domes- 
day Book  as  the  Terra  Regis,  the  royal  demesne. 
We  find,  moreover,  the  king  regarded  as  the 
ultimate  owner  of  all  the  land  in  the  kingdom. 
The  cyning  of  English  antiquity  is  placed  in 
'  "  The  English  Village  Community,"  ch.  iii. 


The  Early  English  Cotistitution.         43 

contrast  to  the  king  of  the  survey  ;  and  we 
infer,  in  the  third  place,  that  the  development 
of  feudalism  has  involved  an  increase  in  the 
royal  power  and  a  change  in  the  theory  of 
kingship. 

It  is  not  necessary  to  pursue  the  inquiry; 
enough  has  been  said  to  show  that  the  history 
of  the  English,  both  constitutional  and  social, 
had  the  same  direction  in  the  period  before 
the  Norman  conquest  The  feudalization  of 
society  went  hand-in-hand  with  the  feudaliza- 
tion of  the  national  institutions  ;  nay,  the  latter 
was  but  the  expression  of  the  former. 

The  period  of  English  history  with  which  Summary. 
we  have  had  to  deal  is  in  no  way  a  simple 
one.  This  lack  of  simplicity  has  its  origin  and 
explanation  in  what  may  be  called  the  lack 
of  obvious  continuity.  There  are  not  wanting 
great  events,  but  they  stand  apart  in  little 
apparent  connection  with  the  course  of  the 
history.  There  is  no  symmetry  in  the  dubious 
continuity  which  closer  observation  perceives 
to  exist.  Even  the  development  of  the  royal 
power  which  certainly  constitutes  the  most 
luminous  fact  of  the  constitutional  history  is 
not  a  symmetrical  development ;  and  the  close 
of  the  epoch  leaves  royalty  in  a  weakened 
condition. 


44  The  Early  English  Constitution. 

The  view  that  regards  the  six  centuries  of 
early  English  history  as  the  arena  of  an  un- 
ceasing struggle  for  supremacy  between  the 
rival  principles  of  freedom  and  feudality,  ensures 
at  least  a  continuous  interest  in  the  history,  for 
unquestionably  that  struggle  is  the  predominating 
fact,  which  lies  at  the  root  of  all  the  inconsis- 
tencies of  the  period.  In  that  long  and  dubious 
contest  the  events  of  the  social,  political,  and 
religious  history  are  factors.  The  ultimate  out- 
come is  the  victory  of  feudality  ;  but  the  defeated 
principle  is  rather  driven  out  of  sight  than  de- 
stroyed. Freedom  has  capitulated  to  feudality, 
on  conditions  which  ensure  at  least  a  continued 
existence. 

It  is  precisely  at  this  crisis  that  the  Norman 
conquest  takes  place ;  and  it  is  because  it  takes 
place  at  this  crisis  that  its  importance  in  the 
constitutional  history  of  England  is  so  immense 
and  far-reaching. 


ESSAY  II. 

FEUDALISM. 

Sir  Francis  Palgrave  and  his  successors  The 
have  added  six  centuries  to  English  history  ;  we  conqutst, 
no  longer  think  of  the  story  of  our  country  as  *l^^^' 
beginning  at  the  Norman  Conquest,  or  that  the 
Engh'sh  of  Elizabeth  and  Edward  I.  were  a  dif- 
ferent nation  from  the  English  of  Alfred  and 
Egbert  Yet,  in  spite  of  all  insistence  on  the 
unity  and  continuity  of  our  history,  we  still  feel 
that  the  Norman  Conquest  brought  a  great 
change  in  the  character  of  English  institutions, 
and  this  belief  is  confirmed  by  the  abundant 
new  knowledge  we  have  gained  of  that  period. 
It  might  perhaps  be  expressed  in  some  such 
phrase  as  this :  the  Norman  Conquest  made 
England  a  feudal  state.  What  is  involved  in 
such  a  statement,  how  far  or  in  what  sense  it  is 
true,  are  the  questions  here  to  be  answered. 

The  essence  of    the   feudal   organization   o{  Feudalism 
society  was  that  it  rested  completely  on  land- 


46  Feudalism. 


system  of  tenure,  and  on  one  system  of  land-tenure — a 
tenuru  System  in  which  ownership  was  divided  between 
the  actual  tenant  of  land  and  the  lord  "of"  whom 
he  "held"  it,  and  in  which  the  relation  as  to 
land  was  accompanied  with  a  close  personal  tie 
between  the  lord  and  tenant,  involving  mutual 
duties  and  responsibilities.  He  who  was  lord 
to  one  man  or  set  of  men,  might  and  usually 
did  himself  hold  his  estate  of  a  superior  lord ; 
so  that  society  came  to  be  made  up  of  hundreds 
of  series  of  lords  and  tenants,  beginning  with 
the  villein,  who  was  lord  of  no  man,  and  ending 
with  the  king,  who  was  tenant  of  no  man.  The 
duty  of  the  lord  was  to  protect  his  tenant,  of 
the  vassal  to  serve  his  lord  ;  which  meant  that 
over  the  greater  part  of  Western  Europe  the 
vassal  followed  his  lord  to  the  field,  and  was 
■  subject  to  the  jurisdiction  of  his  courts.  And 
it  is  clear  that,  where  the  central  government 
was  weak,  the  result  inevitably  was  to  split 
up  a  state  into  a  number  of  petty  principalities  ; 
in  the  language  of  Guizot,*  to  fuse  together 
sovereignty  and  property,  by  giving  to  the  lord 
of  a  district  all  or  most  of  the  rights  over  his 
tenants  which  make  up  sovereignty. 
Origin  of  It  is  now  known  that  this  organization  dfd 
"  '  not  arise  on  the  Continent,  as  used  to  be  .sup- 
*  "  Histoire  de  la  Civilisation  en  France,"  ill.  29. 


Feudalism. 


47 


posed,  from  a  partition  of  conquered  lands  by 
the  chiefs  of  the  bcirbarian  tribes  which  overthrew 
the  Roman  empire.    Its  growth  was  gradual,  and 
was  due  to  the  converging  action  of  many  causes 
at  work  during  five  centuries.     Chief  of  these 
causes  were :  (i)  grants  of  benefices ^  ue.  of  estates 
to  be  held  in  usufruct — so  bringing  about  the 
division  of  ownership ;  (2)  commendation  of  in- 
feriors to  superiors,  which  created  the  relation  of 
vassalage,  and  came  to  be  inseparably  associated 
with  the  gift  of  a  benefice,  so  that  the  receiver 
was  bound  to  personal  fidelity  to  the  grantor; 
and  (3)  the  grant  to  territorial  lords  of  immuni- 
ties, or  exemptions   from   the   national   courts, 
which  completed    the  power  of   the  lord    by 
giving  him  jurisdiction.^     But  in  England  such  Differenct 
influences  had  either  been  absent,  or  had  played  England 
but  a  secondary   part     For    here   it   was   an  "^'^f^. 
institution  which  abroad  was  of  little   impor- 
tance, namely,  the  comitatus,  or  body  of  imme- 
diate companions  of  the  king,  which  did  most  to 
modify  the  older  system.     It  was  out  of  this,  as 
the  previous  essay  has  shown,  that  thegnhood 
had  arisen ;   and  thegnhood,  working  together 
with  grants  of  jurisdiction  and  the  police  system 

*  This  has  been  worked  out  most  clearly  by  Waitx ; 
but  for  substantially  the  same  explanation,  see  Hallam, 
*'  Middle  Ages,"  note  xi.  to  ch.  ii.,  and  vol  L  239 (ed.  1878). 


48  Feudalism. 

which  compelled  every  man  to  find  a  surety, 
had  certainly  made  England  before  the  Norman 
Conquest  very  much  like  a  continental  feudal 
state.  But  in  England  the  dominant  idea  was 
still  that  of  personal  relation — of  a  thegn  to  the 
king,  of  a  man  to  his  borh,  or  to  his  lord  by 
commendation,  and  not  that  of  territorial  obliga- 
tion— of  service  or  jurisdiction  because  of  land. 
Social  organization  did  not  yet  rest  on  tenure. 
Cotuf  Let  us   now  look   at  the   immediate  conse- 

f/^"      quences  of  the  Norman  Conquest.     In  the  first 
Conquest:  place,  all  land  comes  to  be  held  of  the  kingf, 

all  land       *^         '  ^' 

nmv  fuld  mediately  or  immediately  ;  he  is  the  supreme 
king.  lord  of  land,  and  all  men  are  his  tenants.  It 
may  not  indeed  at  first  sight  appear  that  the 
position  of  a  great  thegn  before  the  Conquest 
differed  from  that  of  an  important  tenant-in- 
chief  under  William  I.  The  thegn  forfeited  his 
land  if  he  did  not  obey  the  summons  to  the 
field.  Moreover,  although  thegnhood  did  not 
necessarily  imply  a  close  personal  relation,  as  of 
a  gesith,  to  the  king,  probably  most  thegns  were 
in  fact  in  such  a  relation,  or  were  descended  from 
men  who  were  gesiths  when  they  received  their 
estates  from  the  king.  The  thegn's  situation 
was  then  in  these  respects  roughly  parallel  to 
that  of  the  feudal  vassal.  The  important  differ- 
ence  is  this,  that   military  service   before  the 


Feudalism,  49 

Conquest  was  a  duty  equally  incumbent  on 
every  freeman,  as  a  freeman,  and  not  a  special 
duty  of  landholders  in  a  certain  relation  to  the 
prince.  Refusal  to  obey  the  summons  to  the 
host  was  visited  with  severe  penalties.  But 
although  the  penalty  in  the  case  of  a  thegn  was 
the  forfeiture  of  his  land,  it  was  not  because  such 
land  had  been  given  upon  definite  condition  of 
service.  His  land,  if  indeed  it  had  been  received 
as  a  grant,  had  been  given  in  absolute  owner- 
ship, as  a  reward  for  past  and  not  in  considera- 
tion of  future  service.  These  distinctions  seem, 
perhaps,  unimportant,  but  they  involve  a  differ- 
ence of  principle  which  it  is  essential  to  observe. 
The  thegn  was  regarded  as  having  complete 
property  in  his  land ;  the  ownership  of  the 
tenant-in-chief,  on  the  contrary,  was  but  partial, 
and  was  limited  and  conditioned  by  the  claims 
of  the  grantor. 

The  change  from  the  old  to  the  new  tenure  Means  by 
was  effected  in  two  ways :  by  grant  to  Normans  y^as 
of  forfeited    land,  and  by  confirmation  of  the  'ff'^'^*^- 
rights  of  Englishmen.     The  lands  of  those  who 
had  fought  for  Harold  at  Hastings  were  treated 
as  forfeited,  and  speedily  granted  to  William's 
followers  ;  and  the  subsequent  rebellions  of  the 
West    and    North    enormously    increased    the 
number    of   forfeited   estates    at    his  disposal. 

B 


50  Feudalism. 

But  the  only  method  of  holding  land  familiar 
to  the  Normans  was  the  feudal  tenure  just 
described.  The  natural  consequence  was  that 
William  conferred  these  lands  in  the  way- 
usual  on  the  continent,  i.e.  to  be  held  of  him^ 
subject  to  the  conditions  there  customary. 
Every  recipient  did  "homage,"  by  placing  his 
hands  between  those  of  his  lord  and  acknow- 
ledging that  he  became  his  "  man."  Henceforth 
all  the  great  lords  were  tenants-in-chief  of  the 
king.  And  the  same  was  the  case  with  those 
English  who  were  allowed  to  remain  in  pos- 
session of  their  lands.  Mr.  Freeman  has  shown 
that  the  evidence  of  Domesday  and  of  the 
English  Chronicle  points  to  a  general  redemp- 
tion of  estates  by  the  English  immediately 
after  William's  coronation.  "Archbishop  Ealdred 
consecrated  him  king,"  says  the  Chronicle,  "  and 
men  paid  him  tribute  and  delivered  him  host- 
ages and  afterwards  bought  their  land;"  "when 
the  English  redeemed  their  lands,"  appears  in 
Domesday  as  a  time  from  which  men  reckoned. 
We  can  scarcely  be  mistaken  in  inferring  that 
those  who  had  taken  no  part  in  resistance  to 
William  were  confirmed  in  the  possession  of 
their  estates  on  the  payment  of  considerable 
sums  of  money.  The  ordinary  Englishman 
would  think  that  it  was  unfortunately  necessary 


Feudalism.  5 1 

to  bribe  the  successful  Pretender.  Possibly,  if 
he  were  of  a  legal  turn,  he  might  look  upon  it 
as  the  payment  of  fyrdwite — a  fine  for  not 
coming  to  the  national  host  in  support  of  the 
man  who  claimed  to  be  rightful  heir.  But 
certainly,  to  William  and  the  Norman  lawyers, 
the  transaction  would  seem  much  more  than 
this.  It  would  seem  a  surrender  of  their  hold- 
ings by  the  English,  and  a  regrant  by  William 
on  feudal  terms.  Thus,  the  lawyers'  doctrine 
that  all  land  must  be  a  grant  from  the  crown, 
does  for  the  first  time  become  true  in  England.* 
The  consequence  is  clearly  marked  twenty  years 
later  in  Domesday.  There  it  is  assumed  of  all 
lay  land  that  lawful  posession  can  rest  only  on 
grant  from  William,  and  that  this  must  be 
proved  either  by  producing  a  writ  under  the 
king's  seal,  or  showing  evidence  of  livery  of 
seisin,  i.e.  a  formal  putting  in  possession  by 
a  royal  official. 

Much,  indeed,  of  the  land  which  had  at  first  Fution 
been  redeemed  was  forfeited  after  the   risings  "viniam's 
in  the  North  and  West,  and  given  to  Normans,^"/""*" 

°  '  »/j  impor- 

so  that  at  the  time  of  the  Domesday  survey  tamt. 
scarcely  any  of  the   lay   tenants-in-chief  were 
of  English  blood.      Yet  William  carefully   ab- 
stained from  ever  assuming  the  position   of  a 
*  Freeman,  '•  Nonnan  Conquest,"  v.  369. 


52 


Feudalism. 


conqueror  who  had  a  whole  country  at  his  dis- 
posal. He  throughout  maintained  the  fiction 
that  he  was  the  rightful  successor  to  the  throne 
of  the  Confessor,  and  that  changes  in  owner- 
ship were  consequences  simply  of  individual 
misconduct  Nowhere,  therefore,  was  there  an 
entirely  new  partition  of  territory.  The  usual 
practice  was  to  grant  to  a  Norman  an  English- 
man's forfeited  estate  in  a  particular  district 
as  a  whole ;  so  that  the  new  lords  stepped  into 
Results  of  precisely  the  same  positions  as  to  extent  and 
inland-^'  character  of  property  and  authority  as  were 
held  by  those  they  displaced.  It  is  not  difficult 
to  see  what  would  follow  from  such  a  substitu- 
tion. Every  important  English  landholder  had 
stood  in  the  position  of  patron  or  superior  to 
many  different  classes  of  dependents.  Obscure' 
as  is  the  early  history  of  the  manor,  it  may 
safely  be  said  that  by  the  middle  of  the  eleventh 
century  almost  every  township  was  in  some 
measure  subject  to  a  lord.  In  many  cases,  no 
doubt,  this  dependence  was  due  to  the  fact  that 
the  village  community  had  been  formed  by 
settlement  on  a  lord's  land  ;  but  in  many  others 
it  was  caused  either  by  the  voluntary  commenda- 
tion of  the  inhabitants  to  the  powerful  man  of 
their  district,  or  by  a  royal  grant  giving  to  such 
a    magnate    jurisdiction   over    the    inhabitants. 


holders 
as  to  the 
villagers, 


Feudalism.  53 

Certainly  the  condition  of  things  was  far  from 
being  uniform  in  different  parts  of  the  kingdom, 
and  wide  differences  remained  in  degree  of 
dependence.  Of  all  these  distinctions,  to  him 
unintelligible,  the  Norman  grantee  made  very- 
short  work.  Accustomed  to  the  Norman  manor, 
in  which  every  man  was  subject  to  the  jurisdic- 
tion of  a  seigneur,  and  held  his  land  of  him,  he 
would  treat  the  people  of  an  English  village  in 
the  same  way.  Such  and  such  men  were  some- 
how dependent  upon  him.  Such  and  such  men 
appeared  in  a  court  of  which  the  president  was 
his  steward,  and  of  which  the  fines  were  paid  to 
him  ;  "  then,  of  course,"  he  would  think,  "  such 
men  must  be  my  tenants,  must  hold  their  land 
of  me." 

But  as  yet  we  have  mentioned  only  the  two  eu  to  the 
extremes  of  the  feudal  scale,  the  tenants-in- 
chief,  and  the  villeins  or  villagers.  Between 
these  were  many  classes  and  gradations  of  rank. 
The  great  king's  thegns  had,  before  the  Con- 
quest, thegns  of  their  own,  who  were  also  in 
the  possession  of  land,  probably  often  of  whole 
townships.  Such  thegns  would  soon  be  regarded 
as  sub-tenants  of  the  Normans  who  had  taken 
the  place  of  their  lords,  as  holding  their  estates 
not,  as  before,  in  complete  ownership,  but  by  the 
grant  of  their  superiors  and  subject  to  the  rights 


54  Feudalism. 

of  those  superiors.  Moreover,  Domesday  shows 
that  many  of  the  smaller  English  landholders 
who  had  before  possessed  land  in  their  own 
right,  recognizing  no  man  as  their  lord,  were 
able  to  retain  their  land  only  on  condition  of 
sinking  into  dependence  as  tenants  of  a  neigh- 
bouring lord.  Thus  everywhere  the  simple 
feudal  tenure  took  the  place  of  the  confused 
congeries  of  rights  and  customs  which  had 
previously  existed.  Instead  of  the  two  thousand 
proprietors  in  their  own  right  of  the  time  of  the 
Confessor,  there  were  now,  including  ecclesi- 
astical holders,  some  six  hundred  tenants-in- 
chief^  The  greater  part  of  the  agricultural 
population  were,  doubtless,  immediately  subject 
to  these  tenants-in-chief,  so  that  their  lord  was 
the  only  person  between  them  and  the  king. 
But  there  were  also  almost  eight  thousand  sub- 
tenants, half  of  them  English  thegns,  holding 
of  greater  lords  manors  and  other  lands  upon 
which  were  freemen,  socmen,  and  villeins. 
Summary  The  Speedy  result  of  the  Conquest,  therefore, 
intmure.  '^^^^  *°  Complete  the  process  of  feudalization 
of  land-tenure  which  had  long  been  going  on ; 
to  effect  "  a  universal  assimilation  of  title ; "  to 
make  the  king  the  supreme  land-lord  ;  to  give 
to  the  relations  between  the  greater  landholders 
1  Gneist,  "Hist,  of  the  Engl.  Const.," i.  125  (Eng.  trans.). 


Feudalism.  5  5 

and  the  king,  and  between  these  and  the  mass 
of  the  population,  the  same  character  as  they 
bore  in  the  rest  of  Western  Europe. 

So  much  it  has  been  necessary  to  say  by  way  The  ques- 
of  introduction  ;  for  the  "  feudal  system  "  of  ^^^"rfd^ 
society  and  government  rested  on  the  feudal 
tenure  of  land.  The  question  remains,  what, 
in  the  first  place,  were  the  consequences  of 
feudal  tenure  in  the  organization  and  character 
of  society  ?  and  secondly,  what  were  its  con- 
sequences in  government  ?  Like  all  other  men, 
the  Conqueror  was  limited  by  the  conditions 
of  his  time  and  place.  For  him,  a  state  of 
sodety  other  than  one  resting  on  a  feudal  land- 
tenure  was  inconceivable.  And,  indeed,  from 
certain  of  the  results  of  feudalism,  the  central 
power  might  profit.  A  strong  monarch  found 
himself  much  helped  by  the  universal  recogni- 
tion of  certain  rights  belonging  to  him  as 
supreme  landlord,  as  suzerain.  On  the  other 
hand,  William's  experience  in  Normandy  had 
taught  him  that  vassals  were  likely,  and  Norman 
vassals  certain,  to  endeavour  to  become  petty 
princes  upon  their  territories,  and  reduce  the 
royal  authority  to  a  shadow.  The  policy  for 
a  monarch  who  saw  the  possibilities  of  the 
situation  was  obviously  to  prevent  government 
becoming  feudal,  while  permitting   land-tenure 


56 


Feudalism. 


Division 
of  the 
subject. 


I.  Social 
changes 
due  to 
feudal 
tenure. 


(a)  Mili- 
tary 
service. 


and  the  social  relations  based  on  it  to  become 
feudal.  And  such  a  policy  may  be  traced  in 
almost  every  measure  of  William  and  his  two 
successors. 

The  different  parts  of  the  subject  are  so 
inextricably  connected,  that  any  systematic 
division  is  impossible.  But  it  will  perhaps  add 
to  clearness  of  thought,  if  an  attempt  is  made 
to  distinguish  (i)  what  the  introduction  of 
feudal  tenure  brought  about  in  society,  (2)  what 
constitutional  results  sprang  from  it,  and  (3) 
what  results  in  government  the  policy  of  the 
Norman  kings  prevented. 

I.  It  has  already  been  pointed  out  that  the 
feudal  bond  was  of  the  nature  of  a  contract, 
and  that  the  tenant  held  his  land  on  condition 
of  performing  due  service  to  his  lord.  The 
service  which  was  of  by  far  the  greatest  impor- 
tance was  military  service.  At  first,  the  change 
in  this  respect,  produced  by  the  introduction 
of  the  new  tenure,  was  rather  in  idea  than  in 
fact,  in  that  men  were  bound  to  serve  the  king 
no  longer  merely  as  citizens,  as  members  of 
the  nation,  but  also  because  such  service  was 
the  condition  upon  which  they  held  their  estates. 
For  some  time  before  the  Conquest  the  cus- 
tomary quota,  at  any  rate  in  some  counties, 
seems  to  have  been  one  fully  armed  man  for 


Feudalism.  57 

every  five  hides  of  land  ;  and  probably  this  was 
roughly  the  amount  of  obligation  understood 
to  be  incurred  by  the  new  possessors.  Domes- 
day Book,  by  presenting  an  accurate  register 
of  property  and  its  value,  made  the  task  of  the 
royal  officials  in  duly  assessing  each  vassal's 
contingent  easier,  and  this  was  doubtless  one 
of  the  purposes  for  which  the  survey  was  de- 
signed. But  as  yet  the  burden  was  estimated 
in  rude  proportion  to  the  size  of  each  estate, 
and  weighed  on  the  whole  of  it ;  no  definite 
share  being  borne  by  any  particular  portion. 

On  passing  to  the  beginning  of  the  reign  oi  Division 
Henry    II.,   a    very    different    state  of    'Ccimgs^knighf s 
presents    itself.       That     king    demanded    and^'"' 
obtained  in   1159,  a  payment  from  his  vassals 
in  lieu  of  military  service.      This,  which  soon 
became   an  ordinary  method  of  taxation,  was 
known  as  escuage  or  scutage,  because  it  was  a 
certain  amount  for  each  scutum,  for  each  knight's 
fee.     But  such  a  measure  implies  that  the  whole 
country  was  already  divided  into  knight's  fees, 
i.e.  fiefs  or  holdings  from   each  of  which  one 
knight  was  expected  to  appear.     And   for  the 
next  two  centuries  the  knight's  fee  is  the  unit 
of    reckoning    for    most    military    and    many 
financial  purposes. 

Now  all  our  evidence  goes  to  show  that  this 


58  Feudalism. 

arrangement  was  the  result  of  a  gradual  process, 
which  occupied  the  hundred  years  which  fol- 
lowed the  Conquest.  With  wars  frequently 
recurring,  with  sovereigns  strong  enough  not 
to  let  the  vassals  forget  the  terms  on  which 
they  held  their  estates,  nothing  was  more  natural 
than  that  the  vassals  should  carve  off  portions 
of  their  land,  and  give  them  to  sub-tenants,  on 
condition  that  each  should  be  ready  to  serve 
when  summoned.  Thus  they  would  save  them- 
selves from  the  very  real  danger  of  not  being 
able  to  find  enough  knights  to  make  up  their 
due  quota  when  called  to  the  field.  The  piece- 
meal adoption  of  this  expedient  throughout  the 
century  is  easily  observable,  especially  upon  the 
lands  of  ecclesiastics,  for  whom  it  was  naturally 
more  difficult  than  for  laymen  to  find  men  to 
serve  for  them  on  an  emergency.  And  when 
the  division  was  completed,  and  the  whole  of 
the  country  parcelled  out  in  this  way,  the 
knight's  fee,  when  there  was  no  other  guide, 
was  reckoned  as  on  an  average  five  hides.  The 
estate  from  which  a  knight's  service  was  due 
was,  however,  sometimes  as  small  as  two,  some- 
times as  large  as  twelve  hides,  according  to  the 
conditions  of  the  enfeoffment,  which  may  have 
been  determined  by  grace  or  by  the  character 
of  the  land ;  and  indeed  it  would  seem  from  inci- 


Feudalism.  59 

dental  notices,  as  well  as  from  the  later  practice 
in  compulsory  knighthood,  that  the  knight's  fee 
was  commonly  measured  rather  by  value  than 
area,  usually  by  an  annual  value  of  twenty 
pounds.  The  obligation  to  knight-service  was 
limited  moreover  by  very  early  usage  to  forty 
days  in  the  year.  For  half  a  fee  twenty  days' 
service  was  given,  for  fractions  or  multiples  a 
similar  proportion  ;  and  it  may  be  remarked 
that,  until  the  end  of  the  twelfth  century,  no 
resistance  was  offered  to  demands  of  service 
abroad  as  well  as  at  home :  the  very  words  of 
the  oath  of  fealty  taken  by  the  tenants-in-chief 
declared  that  they  would  be  faithful  to  their 
king  within  England  and  without. 

It  will  now  be  apparent  that  the  conception 
which  used  to  be  assigned  as  the  explanation 
of  the  origin  of  the  feu^l  system,  is  really  that 
which  "  dominates  it  in  its  finished  form."  * 
That  feudalism  began  in  the  grant  of  land  on 
definite  condition  of  so  much  service  for  so 
much  land,  is  unhistorical ;  but  the  statement 
points  to  the  truth  that  the  necessity  of  military 
service,  its  definition  and  limitation,  are  the 
main  ideas  of  the  feudal  tenure  when  fully 
developed.  It  is  essentially  a  military  organi- 
zation. The  king  is  enabled  by  it  to  bring 
»  See  Pollock's  "  Land  Laws,"  ch.  iii. 


6o  Feudalism. 

The  milt-  together  the  feudal  array,  when  he  thinks  fit,  by 
before7nd  Summoning  the  tenants-in-chief,  that  is  those 
after  the  directly  holding  land  of  him,  to  fulfil  their  ob- 
ligations ;  while  these  vassals  are  in  the  same 
way  enabled  to  furnish  their  due  contingents 
because  their  sub-tenants  are  similarly  bound 
to  them.  It  is  easy  to  see  that  with  a  strong 
and  prudent  sovereign  such  an  organization 
must  have  enormously  increased  the  military 
power  of  a  kingdom  by  individualizing  respon- 
sibility. Before  the  Conquest  it  had  been  neces- 
sary for  the  sheriffs,  each  time  an  army  was 
needed,  to  negotiate  with  the  moots  of  every 
shire  as  to  the  number  of  armed  men  they 
would  provide.  Local  custom  varied,  and  a 
county  or  town  was  frequently  permitted  to 
send  a  smaller  number  than  its  due.  Even  if 
a  king's  thegn  did  not  appear  in  the  host,  it 
was  only  the  king's  thegn  himself  that  could 
be  punished.  But  after  the  division  into  knight's 
fees  had  taken  place,  the  extent  of  the  obligation 
of  each  military  tenant  was  unvarying  and 
exactly  known  ;  and  there  was  a  ready  means 
of  punishing  the  absence  even  of  one  knight. 
Thus  the  feudal  array  was  more  constant  in 
number  and  quality  than  any  force  which  an 
earlier  system  could  have  furnished. 
(3)  Prtmo-     p^  consequence  of  military  tenure  wMch  has 

geniture. 


Feudalism,  6 1 

lasted  till  to-day  is  primogeniture.  The  old 
Teutonic  law  of  inheritance  was  one  of  equal 
division  among  the  sons.  The  family  holding 
was  not  the  property  of  the  father  but  of  the 
family,  and  could  not  be  alienated  save  with  the 
consent  of  the  family.  But  by  the  beginning  of 
the  eleventh  century  such  a  rule  would,  in  Eng- 
land apply  probably  only  to  the  smaller  land- 
owners. The  greater  proprietors  held  their 
estates  as  book-land,  in  most  cases  as  grants 
from  the  king,  and  unless  the  original  instrument 
expressly  limited  the  grant  to  one  or  more  lives, 
or  prohibited  alienation  from  the  family,  the 
holder  could  dispose  of  it  as  he  pleased,  by  will 
or  by  grant  When,  however,  feudal  tenures  had 
been  introduced,  the  landholder  ceased  to  have 
complete  property  in  his  estate.  The  lord  had 
granted  it  in  order  that  he  might  be  furnished 
with  service.  It  could  not  be  permitted  that  a 
tenant  should  at  his  own  choice  put  by  will  or 
grant  another  man  in  his  place — a  man  who 
might  easily  be  on  the  worst  terms  with  the  lord» 
and  from  whom  the  lord  could  in  no  case  look 
for  the  gratitude  which  he  might  fairly  expect 
from  his  own  grantee.  Partition  between  sons 
was  almost  equally  objectionable,  when  applied 
to  what  was  in  idea  an  office  of  military  com- 
mand with  land  attached.     Such  considerations 


62  Feudalism. 

caused  primogeniture  to  be  insisted  upon,  and 
accepted  as  the  rule  for  all  lands  held  in  chivalry, 
by  military  service ;  and  the  tendency  towards 
the  extension  of  this  rule  was  so  strong  that  even 
in  the  case  of  socage  lands,  i.e.  lands  held  by  free 
tenants  doing  suit  and  service,  but  not  subject 
to  military  duties,  it  was  generally  adopted  by 
the  end  of  the  thirteenth  century. 

(7)  Feudal     As  to  what  were  called  the  incidents  of  feudal 

tna  s.  ^gj^yj.g^  j^  jg  readily  seen  that  they  are  all  de- 
ductions   from   this   military  conception.      The 

{\\for-  simplest  and  most  obvious  were /^r/^Z/wr^  upon 
^'^  violation  of  the  conditions  of  tenure  by  dis- 
obedience to  the  summons  to  war,  still  more  by 

(2)  escheat^  fighting  against  the  lord  ;  and  escheat,  the  return 
of  an  estate  to  its  immediate  lord  who  repre- 
sented the  original  grantor,  on  the  failure  of 
heirs  to  a  tenant.  Not  only  did  the  land  fall 
back  into  the  hands  of  the  lord  in  a  case  such 
as  this,  but  in  theory  it  was  resumed  tempo- 
rarily on  the  death  of  every  tenant.  On  the 
continent  the  grant  of  a  benefice  had  at  first 
been  for  life  only.  The  renewal  of  the  grant 
to  the  son  of  the  previous  owner  was  at  the 
lord's  pleasure.  And  although  the  hereditary 
character  of  fiefs  was  generally  recognized  before 
the  end  of  the  ninth  century,  a  trace  of  the 
older  practice  remained  in  the  necessity  for  the 


Feudalism.  63 

heir  to  obtain  investiture  before  he  could  law- 
fully enter  into  possession.  It  was  natural 
that  upon  such  an  occasion  a  present  should 
be  made  by  the  heir  to  his  lord,  and  out  of 
this  arose  the  demand,  as  a  right,  of  the  pay- 
ment known  as  a  relief.  The  word  itself,  (3)  reliej^ 
which  implies  a  taking  up  of  what  had  been 
laid  down,  indicates  the  difference  of  prin- 
ciple between  the  relief,  and  the  customary 
payment  before  the  Conquest,  known  as  heriot.  compared 
The  heriot  had  arisen  from  the  simple  personal  ' 

relations  between  the  king  and  his  immediate 
companions,  the  gesiths.  Upon  the  death  of 
a  gesith  the  horses  and  arms  which  the  prince 
had  bestowed  upon  him  naturally  returned  to 
the  lord.  Thus  it  remained  the  practice,  long 
after  the  gesiths  had  grown  into  a  territorial 
nobility  of  thegns,  for  the  heir  of  a  thegn  to 
pay  a  certain  number  of  horses  and  suits  of 
armour  to  the  king.  And  although  by  the 
time  of  Canute  this  payment  comes  to  consist 
partly  of  money,  the  ideas  underlying  heriot  and 
relief  remained  different.  The  heriot  was  a  cus- 
tomary payment  on  the  death  of  the  previous 
holder,  the  new  holder  succeeding  by  alodial 
right  ;  the  relief  implied  a  suspension  of 
ownership,  and  was  a  payment  by  one  not  yet 
in  possession  to  obtain  as  it  were  a  regrant  of 


64  Feudalism. 

lands  which  had  for  a  time  reverted  to  the  over- 
lord. 
(4)  ward-        When  an  heir  was  under  age,  the  lord  enjoyed 
'^'  the   right   of  wardship,   i.e.   of    managing   and 

receiving  the  profits  of  the  fief  until  the  tenant 
came  of  age.  When  the  lord  was  the  king,  the 
right  of  wardship,  with  the  profits  arising  from 
it,  was  often  sold  to  some  courtier  or  other  baron 
who  made  a  satisfactory  offer.  Between  guar- 
dianship  in  chivalry  and  guardianship  in  socage 
there  is  a  significant  contrast.  In  the  latter 
case  the  guardian  of  the  lands  is  the  nearest 
kinsman  who  cannot  succeed,  until  the  heir 
arrives  at  the  age  of  fourteen,  when  he  can 
choose  a  guardian  for  himself;  the  guardian 
must  manage  the  estate  for  the  benefit  of  the 
heir,  and  account  for  receipts  and  expenditure. 
But  in  the  case  of  lands  held  in  chivalry  the 
profits  go  to  the  lord,  because  in  idea  the  estate 
is  his  during  the  interval  ;  it  has  reverted  to  its 
original  grantor,  although  a  custom  which  be- 
comes a  law,  enforced  later  by  the  assize  of  mort 
d^ancestor,  obliges  him  to  put  the  heir  in  posses- 
sion when  he  comes  of  age.^  And  the  heir  can- 
not fairly  demand  more,  for  until  he  reaches 
manhood  he  cannot  render  that  military  service 
on  condition  of  which  the  estate  has  been  given. 
1  C£  Pollock,  "  Land  Laws,"  60,  61. 


Feudalism.  65 

In  the  case  of  an  heiress,  moreover,  the  lord  (5)  war- 
had  the  right  of  marriage,  «>.  the  right  of"^'^' 
marrying  her  to  a  person  of  his  choice,  usually 
on  consideration  of  a  payment  made  by,  or  on 
behalf  of,  that  person,  or  of  demanding  a  fine 
upon  her  refusal  to  marry,  or  in  return  for  leave 
to  marry  as  she  pleased.  The  heiress  would 
never  herself  be  able  to  render  the  military  ser- 
vice due ;  it  was  therefore  necessary,  so  it  was 
argued,  for  the  king  to  choose  a  husband  whom 
he  could  trust  to  perform  the  duty  for  her.  So 
important  was  it  to  prevent  lands  passing  into 
the  hands  of  the  king's  enemies,  that  the  sove- 
reign insisted  on  the  necessity  of  his  consent 
even  to  the  marriage  of  the  heiress  of  a  tenant- 
in-chief  during  her  father's  lifetime.  In  later 
times,  this  right  of  marriage  was  extended  to 
include  the  right  of  marrying  male  heirs  if  under 
age  to  wives  of  the  lord's  choosing.  This,  how- 
ever, was  based  on  a  strained  construction  of  a 
clause  in  Magna  Carta,  and  clearly  had  no  justi- 
fication in  the  theory  of  tenure.^ 

Such  were  the  incidents  of  feudal  tenure  till  Ranulf 
they  were  abolished  in  the  seventeenth  century,  and't^ 
They  grew  up  gradually  on  English  soil.    They/'^J|^' 
were  not  suddenly  introduced   from  abroad   at 
the  Conquest,  for  on  the  continent  and  in  England 

*  Digby,  "  History  of  the  Law  of  Real  Property,"  106. 

F 


65  Feudalism. 

alike  the  time  when  they  first  take  a  systematic 
shape  was  the  eleventh  and  twelfth  centuries. 
With  us,  indeed,  their  development  and  elabora- 
tion can,  with  much  probability,  be  assigned  to 
one  man,  the  minister  of  William  II.,  Ranulf 
Flambard.  In  the  reign  of  William  I.  they  are 
scarcely  to  be  seen  even  in  germ.  The  charter 
of  Henry  I.  at  his  accession,  the  main  purpose  of 
which  is  to  reform  the  abuses  introduced  by  his 
brother,  takes  the  incidents  for  granted,  and 
indeed,  recognizes  that  every  lord  has  the  same 
rights  over  his  vassals  as  the  king  over  his 
tenants-in-chief  Their  development  must  there- 
fore have  taken  place  in  the  reign  of  William  II. 
Now  Flambard  is  directly  accused  of  instigating 
a  policy  toward  the  lands  of  the  Church  which 
was  based  on  the  same  idea,  the  idea  that  an 
estate  reverted  to  the  king  whenever  there  was 
no  holder  who  could  perform  its  duties — in  the 
words  of  the  chronicler,  that  the  king  was  "  every 
man's  heir."  It  is  therefore  likely  that  it  was 
Flambard  who  shaped  the  burdens  upon  lay 
tenants.  In  so  doing  he  did  but  continue  the 
policy  of  the  Conqueror,  of  drawing  from  the 
theory  of  tenure  all  those  deductions,  but  those 
only,  which  profited  the  central  power.  Indeed, 
the  social  and  legal  growth  of  feudalism  went  in 
England  much  farther  than  it  did  abroad ;  for  it 


Feudalism.  67 

is  a  striking  fact  that  the  two  most  lucrative 
incidents,  wardship  and  marriage,  are  scarcely 
found  in  a  complete  form  anywhere  else  than  in 
England  and  Normandy.^ 

Hitherto  we  have  been  considering  the  rela-  (j)  Coi- 
tions of  military  tenants,  great  and  small,  to^f'^)^ 
their  lords,  and  the  unit  of  most  importance  in  manorial 

sysUm. 

this  connection  is  the  knight  s  fee.     Let  us  now 
take   the   manor  as  our  unit,  and  look  at  the 
relations  of  the  lord  to  his  manorial  tenants.     A 
manor  must  be  carefully  distinguished  from  the 
knight's  fee.     It  might  be  made  up  of  one  or 
more  knight's  fees,  and  the  lord  of  a  manor  often 
had  military  tenants  holding  whole  fees  or  parts 
of  fees   under  him.     Upon    most   manors,  the  Inhabi- 
majority  of  the  tenants  were  villeins  and  cottars,  manor  :'the 
bound  to  do  certain  semi-servile  work  upon  the  *^^'"» 
lord's   demesne,   but   possessing  an   hereditary 
right  to  their  holdings  so  long  as  they  performed 
those  services.     That  an  estate  should  possess  thefnt- 
the  character  of  a  manor,  and  that  its  lord  should 
have  a  right  to  hold  its  most  important  court, 
the  court-baron,   it   was   early   recognized   that 
among  the  inhabitants  there  must  be,  in  addition 
to   villeins,  at    least    two   freeholders.      These 
freeholders    were    either    military    tenants    or 

1  For  Flambard,  see  Freeman,  "Norman  Conquest," 
V.  372-382  ;  and  "  William  Rufus,"  L  334-342. 


68  Feudalism. 

socagers,  the  latter  being  bound  to  make  certain 
payments,  or  to  perform  services  sometimes 
little  less  onerous  than  those  of  villeins.  Mr. 
Seebohm,  in  his  recent  book  on  the  "English 
Village  Community,"  has  done  good  service  by 
making  us  see  more  clearly  than  was  possible 
before  the  nature  of  the  common  cultivation  of 
the  lands  of  the  manor,  and  the  way  in  which 
the  demesne  of  the  lord  and  the  holdings  of  the 
free  tenants  were  intermixed  with  those  of  the 
villeins.  He  has  also  shown  that  the  organiza- 
tion of  the  manor  is  of  earlier  origin  than  we  are 
wont  to  suppose.  But  m  taking  up  the  extreme 
position  that  all  the  inhabitants  of  what  after- 
wards became  a  manor  were  always  in  a  con- 
dition of  more  or  less  servile  dependence  on  a 
lord,  he  comes  into  evident  conflict  with  clearly 
ascertained  facts.  As  was  seen  when  speaking 
of  commendation,  we  can  distinctly  trace,  before 
and  after  the  Conquest,  the  way  in  which  free 
alodial  holders,  owning  no  man  as  their  lord 
save  the  national  king,  sank  into  dependence. 
After  the  Conquest,  indeed,  all  the  inhabitants 
of  every  township  are  found,  in  some  way  or 
other,  dependent  upon  a  lord  of  the  manor ;  but 
certainly  the  Conquest  itself  did  a  great  deal  to 
bring  this  about. 

It  may  however  be  confessed  that  little  was 


Feudalism,  69 

needed  to  complete  the  manorial  organization  ;  cviaw^j  iV 
the  really  important  changes  due  to  the  Conquest  ^jutlo"^ 
were  rather  (i)  the  more  or  less  compulsory  Conquest: 
adoption   of  military  tenure  by   many  of  the  holders, 
dependent  freeholders,  of  which  something  has 
already  been  said;    and   (2)  the    speedy  dis- as  to  slaves. 
appearance  of  slavery.     There  had  been  a  con- 
siderable class  of  theowsy  absolute  slaves,  treated 
as  farm  implements,  and  sold  as  chattels.     But,  Slavery 
as  has  been  justly  remarked,  there  was  no  room  ^ot. 
for   the  slave  in   the   feudal  theory.*     For  the 
feudal  principle  was  one  of  reciprocal  duties  and 
rights ;  a  class  without  rights  it  could  not  include. 
And  this  is  probably  the  explanation  of  the  fact 
that,  much  as  other  classes  were  depressed,  the 
position  of  the  slave  manifestly  improved.     The 
English  had  long  carried  on  a  brisk  slave  trade, 
especially   with    Ireland — a   trade    resulting    in 
iniquities  such  as  we  are  wont  to  think  peculiar 
to  more  modern  times.     All  that  previous  kings 
had  done  was  to  prohibit  the  sale  of  slaves  to 
heathens ;    the    Conqueror,   influenced    by    the 
higher  morality  which  accompanied  the  Church 
revival  of  his  time,  forbade  it  altogether  ;  and  his 
legislation  was  assisted  by  the  preaching  of  S. 
Wulfstan,  and  the  decree  of  Anselm's  Synod  at 
^Vestminster.     Henceforth  a  lord  would  find  it 
*  Freeman,  "  Norman  Conquest,"  v.  48a 


70  Feudalism. 

more  to  his  interest  to  settle  such  slaves  as  were 
not  needed  in  the  household  on  plots  of  ground 
taken  from  the  "  waste."  The  universal  tendency 
towards  making  services  fixed  and  definite 
would  lead  to  the  limitation  and  enrolment  even 
of  the  work  expected  from  a  slave.  These 
labour-dues  would  come  to  be  regarded  as  the 
condition  on  which  such  a  man  held  his  land ; 
so  that,  after  a  time,  his  position  would  only 
differ  from  that  of  the  villeins  proper  in  the  more 
Villeins  in  onerous    nature   of   his   services.      The   unreal 

gross  and      ....  r     i        i  •»»  • 

regardant,  distmction  of  the  lawyers  between   villeins   in 
gross  and  villeins  regardant — the  former  defined 
as  mere  chattels,  the  latter  as  unfree   only  in 
certain  respects  and  in  relation  to  their  lords — 
may  be  due  to  a  vague  recollection  that  among 
villeins  were  comprised  slaves  who  had  risen  as 
well  as  freemen  who  had  fallen. 
Manorial       In  the  manorial  courts  no  very  distinct  change 
courts:      ^^^  i^g  attributed  to  the  Conquest,  save  the  in- 
troduction of  new  names   for  old   institutions. 
Thus,  distinctions  are  soon  drawn  between  three 
"  courts  of  the  manor,"  and  different   functions 
(i)  the      attributed  to  them.     The  court-baron,  the  court 
'^bann        °^  ^^  "  barons "  in  the  old  sense   of  freemen, 
doubtless    represents    the  old    township   moot. 
The  lord  nominates  or  confirms  the  reeve,  and 
receives  the  profits  of  jurisdiction,  but  does  not 


Feudalism.  7 1 

interfere  with  the  customary  procedure.     Here, 
as  in  all  the  national  courts,  "  the  suitors  are  the 
judges,"  />.  all  those  who  are  present  at,  or  "do 
suit  at,"  the  court,  join  in  giving  the  decision. 
Every  manor  had  such  a  court-baron ;  and  every 
manor  had  also  a  court-customary,  which  dealt  (2)  the 
with  matters  arising  out  of  the  villein  tenures,  customary 
and  in  which  the  lord  or  his  steward  was  judge. 
But,  besides  these,   many  manors   had   also   a 
court-leet.      The   term  leet  everywhere   implies  (3)  the 
criminal  jurisdiction  ;  and   it  is  probable  that 
these  seigneurial  courts  arose  out  of  those  grants 
of  exemption  from  the  hundred  court  (the  lowest 
national  court  possessing  criminal  jurisdiction) 
which  were  frequent  in  the  centuries  before  the 
Conquest    These  grants   conferred  what,  from 
the  reign  of  the  Confessor,  became  known  as 
sac  and  soc.     And  there  is  this  negative  argument 
for  the  pre-Conquest  origin  of  the  manorial  court- 
leet,  that  had  it  been  introduced  from  Normandy, 
or  had  it  grown  up  after  the  Norman  invasion, 
it  would  certainly  have  taken  the  shape  of  a 
court  for  a  whole  barony,  or  group  of  manors, 
rather  than  that  of  a  court  for  a  single  manor 
For  it   is  a  singular  characteristic  of  English  English 
seigneurial  courts,  that,  except  in  the  case  oi  court " 
honours,  they  are  always  only  manorial  courts.  ^^'J^^ 
Even  when  a  lord  possessed  several  adjacent 


72  Feudalism. 

manors,  and  held  one  court  day  for  all  of  them, 
it  was  regarded  as  but  a  junction  of  many 
separate  courts  which  chanced  to  be  held  at  the 
same  time  and  place,  and  not  as  the  court  of 
a  whole  barony. 
Liberties.  More  dangerous  than  these  to  the  unity  of  the 
state  were  the  courts  of  the  great  liberties  or 
honours.  These  seem  to  have  originated  in 
grants  which,  before  the  Conquest,  had  placed 
many  hundred-courts  in  dependence  upon  some 
neighbouring  magnate,  some  land-rica  who  had 
been  made  the  king's  representative  over  a 
wide  district  Such  grants  would,  at  first,  pro- 
duce no  change  in  the  tenure  of  the  other  land- 
owners of  the  district,  many  doubtless  themselves 
lords  of  dependent  townships;  the  only  alteration 
being  that  the  bailiff,  who  presided  over  the 
suitors  at  the  hundred-court,  was  nominated  by 
this  great  neighbour,  who  also  got  a  share  of  the 
fines.  But  the  troubles  of  the  Danish  invasions 
would  tighten  the  bond  between  such  a  magnate 
and  the  inhabitants  of  various  ranks  who  were 
subject  to  his  jurisdiction ;  and  the  Conquest 
completed  the  process.  For  the  new  Norman 
lord  could  not  understand  how  a  man  could  do 
service  in  his  court  without  holding  his  land  of 
him.  Without  intending  injustice,  he  would  treat 
all  the  landowners  of  the  hundred,  or  larger  terri- 


Feudalism.  73 

tory,  as  his  vassals.  In  a  case  like  this  we  have 
the  nearest  approach  in  England  to  a  baronial 
court  of  the  continental  type. 

II.  Such  are  some  of  the  main  features  of  the  //.  CohsH- 
social  organization  which  resulted  from  the  intro-  changes 
duction  of  feudal  tenures.     It  must  have  been  ^^'J 
apparent  that   such  an  organization  could   not  tenures. 
have    been   without   important    results    in   the 
sphere  of  government     And  indeed  the  consti- 
tutional changes  were  numerous  and  far-reaching, 
— in  the  position  of  the  king,  in  the  constitution 
of  the  national  assembly,  in  the  organization  of 
justice,  and  in  the  method  of  taxation. 

To    the  king  it   meant  the  addition  of  the  (a)  In  the 
character  and   power  of  a  suzerain^  or  feudal  ^^ 
over-lord,  to  the  character    and    power    of   a 
sovereign^  or    national   leader    and    magistrate. 
We  have  seen   how   much  more  effective  the 
military  force  was  made  by  the  imposition  of 
feudal    responsibilities   upon    landholders ;   and 
this  is  only  a  particular  instance  of  a  general 
truth.     Compare,  for  instance,  the  relations  of  (i)  (wer 
great  ealdormen  and  thegns  with  the  Confessor,  ^'"^'^ '' 
and  those  of  earls  and  barons  with  the  Norman 
king.     Between  the  Saxon  king  and  the  great 
noble  there  was  no  other  tie  than  the  almost 
nominal   bond   of  thegnhood  ;    a  turbulent  or 
traitorous  magnate  would  need  to  be  tried  before 


74  Feudalism. 

the  Witan,  and  the  Witan  would  probably  acquit 
him.  But  William,  as  suzerain,  would  have 
much  less  difficulty  in  gaining  the  acquiescence 
of  a  court  of  peers  to  the  forfeiture  of  the  estates 
of  a  tenant-in-chief  for  breach  of  his  feudal 
obligation.  Not  that  the  mere  change  in  tenure 
gave  the  king  this  greater  power.  Had  there 
been  no  increase  of  strength  owing  to  other 
causes,  the  altered  tenure  would  rather  have 
brought  weakness.  But  the  point  to  be  noticed 
is  this,  that  the  feudal  theory  gave  the  suzerain 
a  right  to  punish  disobedience  at  his  discretion 
— a  right  which  was  intelligible  and  generally 
recognized,  and  which  there  was  a  uniform  and 
simple  means  of  enforcing  ;  and  that  such  a 
right  was  a  weapon  of  tremendous  efficacy  in 
the  hands  of  a  strong  king. 
(2)  aver  It  might  bc  urged  that  in  relation  to  his 
*"**"*  thegns  the  king  had,  before  the  Conquest,  taken 
up  much  the  same  position,  though  with  less 
power,  as  a  suzerain  after  the  Conquest.  But  at 
any  rate,  with  regard  to  the  towns  and  with 
regard  to  the  folk-land,  he  had  occupied  no  other 
position  than  that  of  national  king  ;  and  yet  here 
the  consequences  of  the  new  doctrine  of  tenure 
are  also  strongly  marked.  Some  of  the  towns 
had  doubtless  grown  up  on  the  lands  of  lords ; 
others,  arising  independently,  had  been  subjected 


Feudalism.  75 

by  royal  grant  to  the  jurisdiction  of  powerful 
neighbours.  But  since  in  the  minds  of  the  new 
lords  jurisdiction  and  land-tenure  were  inse- 
parably connected,  after  the  Conquest  all  towns 
soon  came  to  be  regarded  as  on  the  demesne  01 
him  who  had  the  jurisdiction,  and  their  inhabi- 
tants were  conceived  of  as  holding  from  him  by  a 
tenure  {burgage)  similar  to  socage.  Most  English 
towns,  however,  had  remained  independent  of  any 
private  lord,  and  subject  to  the  jurisdiction  of 
the  national  courts  alone.  But,  as  early  as  the 
beginning  of  the  tenth  century,  such  courts  were 
considered  royal  courts,  and  the  king  was  held 
to  be  the  fountain  of  the  justice  administered  in 
them.  And  thus  because  the  king  had  the 
jurisdiction,  and,  in  feudal  phrase,  there  could  be 
"  no  land  without  a  lord,"  these  towns,  including 
the  most  important  in  the  kingdom,  were  treated 
as  part  of  the  royal  demesne. 

Folk-iand  v/diS  peculiar  to  England,  and  absent  (3)  nvr 
in  other  Teutonic  states.  From  this  national 
reserve  of  land  grants  could  be  made  by  the 
king,  but  only  with  the  consent  of  the  Witan, 
Such  part  of  the  land,  however,  as  was  not  given 
in  grant  did  not  remain  entirely  unoccupied. 
Tenants  were  allowed  to  settle  upon  it,  and  over 
these  the  king  was  recognized  as  having  a  special 
jurisdiction.    The  folk-land  tended,  indeed,  from 


y6  Feudalism. 

the  first  to  become  the  private  property  of  the 
king.  After  the  eighth  century  the  consent  of  the 
Witan  to  grants  from  it  is  scarcely  more  than 
nominal.  And,  therefore,  the  change  was  insen- 
sible when,  after  the  Conquest,  the  folk-land 
shared  the  lot  of  the  towns  for  exactly  the  same 
reasons,  and  was  swallowed  up  in  the  royal 
demesne.  How  important  this  was  in  the  matter 
of  taxation  we  shall  see  later. 
(/3)  In  the  Lastly,  feudal  ideas  caused  important  modifi- 
*moruLrchy.  cations  in  the  very  theory  of  the  kingly  dignity. 
As  all  land  was  held  of  the  king,  it  was  natural 
to  regard  him  as  standing  in  much  the  same 
relation  to  his  country  as  a  lord  to  his  estate. 
The  royal  position  began  to  be  regarded  as  a 
possession  rather  than  an  office — a  contrast 
marked  by  the  use  of  the  term  King  of  England, 
instead  of  King  of  the  English}  In  consequence, 
Rttks  of  it  was  soon  thought  that  the  same  rules  applied 
to  the  succession  to  the  throne  as  to  the  succes- 
sion to  a  private  estate,  viz.  hereditary  succes- 
sion, and  in  default  of  heirs  bequest  or  adop- 
tion. This  had  long  been  accepted  as  law  in 
Normandy.  But  William,  anxious  to  make 
no  break  in  the  external  regularity  of  English 
tradition,    was    careful    to    recognize    the    old 

1  For  the    transition   from  "  tribal "  to   "  territorial " 
sovereignty,  see  Maine,  "Ancient  Law,"  io6. 


suuesston. 


Feudalism.  yj 

English  right  of  election,  and  his  own  personal 
preference  for  Rufus  prevented  him  from  putting 
forward  his  eldest  son  as  his  due  successor.  The 
ambition  of  Henry  and  Stephen,  and  the  death 
of  the  Etheling  William,  still  further  delayed 
the  recognition  of  the  feudal  rule  as  applicable 
to  the  crown.  Yet  it  is  seen  gradually  forcing 
its  way.  For  instance,  a  contemporary  chronicler 
speaks  of  Stephen's  seizure  of  the  throne  as 
"alike  against  human  and  divine  law — divine 
because  he  broke  his  oath,  human  because  he 
was  not  the  legitimate  heir  ; "  although  the  claim 
of  a  woman,  Matilda,  was  almost  equally  dis- 
cordant with  feudal  feeling,  and  Henry  H. 
showed  that  he  recognized  this  by  getting  him- 
self appointed  heir  by  Stephen.  The  form  of 
election  and  national  acceptance  still  remained, 
and  with  it  its  corollary,  the  principle  of  the 
right  of  deposition ;  but  by  its  side  appeared  a 
new  doctrine  of  far  greater  strength  and  in- 
fluence, that  of  hereditary  right. 

A  similar  substitution  of  the  new  for  the  old  (7)  /« f^ 
principle  is  seen  in  the  national  assembly.  It  assemify, 
had  been  the  Gemot  of  the  Witan,  the  assembly 
of  the  wise — of  those  to  whom  wisdom  was 
ascribed  in  virtue  of  their  offices  as  ealdormen, 
bishops,  or  ministri.  But  England  after  the 
Conquest  appears  rather  as  an  estate  divided 


7«i  Feudalism. 

among  tenants-in-chief  than   as  a  nation  with 

officials.      And   for  such   a   state  the   national 

assembly  is  naturally  one,  not  of  great  officials, 

which        but  of  tenants-in-chief,  sitting  in  virtue  of  their 

becomes  one  .        ,  .    -.        ,»,,  .  .    ,  ^         ■,    • 

<//^«a«/j.  tenure-m-chief.  There  is  no  violent  break  in 
»«•'  *</;  continuity ;  the  more  important  persons  in  the 
kingdom  are  still  summoned,  but  these  now 
hold  their  estates  directly  of  the  king,  and  the 
idea  common  to  all  feudal  states  at  once 
appears  that  the  qualification  for  membership 
is  that  a  man  should  be  directly  holding  of  the 
king.  This  was  the  theory  as  late  as  Magna 
Carta,  the  only  noticeable  modification  being 
that  a  distinction  has  arisen  between  the 
"  greater  barons  "  and  all  the  others  "  who  hold 
of  us  in  chief,"  the  former  receiving  a  personal 
summons,  the  latter  summoned  generally  through 
the  sheriff  The  adoption  of  the  feudal  theory 
affected  even  the  clerical  members,  although 
the  same  number  continued  to  be  sum- 
moned. The  lands  of  bishops  and  abbots 
came  to  be  looked  upon  as  holdings  in  capite 
of  the  king,  and  an  article  of  the  Constitutions 
of  Clarendon  laid  it  down  that  they  were  to  be 
held  "  as  a  barony."  To  the  old  character  of  the 
bishops  and  abbots  as  Witan,  was  now  added 
the  character  of  great  tenants-in-chief,  or  barons; 
though  it  does  not  follow  that  the  earlier  qualifi- 


Feudalism.  79 

cation  disappeared,  and  that  they  were  deemed 
to  sit  in  the  assembly  only  as  barons.  Indeed, 
their  very  presence  was  probably  due  to  the 
fact  that  William  wished  to  maintain,  as  far  as 
was  convenient  to  him,  the  old  form  of  the 
Witenagemot ;  for  in  Normandy  the  bishops  are 
said  to  have  been  excluded  from  the  Great 
Council  altogether.^  This  indication  that  Wil-  but  retaim 
Ham's  policy  was  to  give  to  these  assemblies  |"  ^J"^ 
the  character  of  Witenagemots  and  of  feudal  ^'""'^^■ 
courts  at  the  same  time,  throws  some  light  on 
a  question  which  has  been  vehemently  disputed 
— as  to  the  power  which  the  national  assembly 
possessed  in  the  Norman  period.  Gneist  has 
argued  that  the  gathering  was  merely  for  court 
display ;  that  its  consent  should  be  regarded  as 
necessary  in  taxation  and  legislation  is,  accord- 
ing to  that  writer,  to  antedate  later  ideas.'*  But 
it  is  certain  (i)  that  the  Witan  did  in  theory 
possess  such  a  right  of  sanction ;  (2)  that  con- 
temporary observers  did  not  think  that  the  old 
institution  was  abolished  and  a  new  one  created; 
(3)  that  the  English  Chronicle  continues  to 
speak  of  the  assembly  by  the  old  name,  and 
that  the  equivalent  sapientes  is  used  by  Latin 
writers  far  into  the  twelfth  century.     And  when 

*  Freeman,  "  Norman  Conquest,"  iil  290. 

*  "  History  of  the  English  Constitution,"  L  247,  250  n. 


8o  Feudalism. 

we  find  that  William  thinks  it  expedient  to 
say  that  he  legislates  with  the  common  council 
and  consent  of  the  magnates,  and  Henry  I.  to 
state  that  an  aid  was  given  him  by  the  barons. 
we  can  hardly  doubt  that  the  old  theory  of  the 
power  of  the  national  assembly  was  retained 
and  recognized.  On  the  other  hand,  it  is 
equally  clear  that  the  mention  of  counsel  and 
consent  was  as  yet  but  a  form,  and  that  in 
matters  of  legislation  and  taxation  the  Norman 
kings  were  practically  absolute. 
(«  In  The  growth  of  the  administrative  system  will 

/uduaturet  ^^  traced  in  the  essay  which  follows.  The  early 
history  of  the  central  judicial  and  administra- 
tive machinery,  of  what  was  subsequently  the 
Curia  Regis  and  Exchequer,  is  extremely  obscure; 
it  is,  however,  clear  that  its  development  was 
hastened  after  the  Conquest  by  the  new  needs  of 
government.  As  early  as  the  time  of  Ethelred 
II.  it  had  been  enacted  that  a  king's  thegn  should 
be  subject  only  to  the  soc  or  jurisdiction  of  the 
king  himself;  though  this  may  only  imply  that 
the  king  was  to  receive  the  fines  arising  from  such 
cases.  A  theningmannagemoty  a  court  of  thegns, 
is,  indeed,  once  mentioned  in  the  reign  of  Edgar 
as  that  before  which  an  important  suit  was 
brought,  but  the  sequel  of  the  story  shows  that 
the    shire-moot    could    insist    on    having   even 


Feudalism.  8 1 

weighty  matters  submitted  to  it  in  the  first 
instance.  Yet  the  mere  appearance  of  a  special 
court  of  thegns  is  in  itself  significant,  and  marks 
the  strong  tendency  in  England  towards  institu- 
tions like  those  of  the  continent.  After  the  Con-  owing  to 
quest  and  the  change  of  tenures,  the  creation  1^^^ 
of  a  feudal  court  for  tenants-in-chief  became  *>' Z^'"- 
necessary.  For  in  all  feudal  societies  the  prin- 
ciple is  asserted  that  a  man  ought  to  be  tried 
by  his  peers,  i.e.  by  those  who  hold  in  the  same 
way  of  the  same  lord.  The  immediate  lord 
has  the  jurisdiction ;  that  is,  the  courts  are 
held  in  his  name ;  he  or  his  representative  pre- 
sides, and  to  him  go  the  profits  of  justice ;  but 
the  judges  must  be  the  other  tenants  of  the 
same  fief.  Thirty  years  before  the  battle  of 
Hastings,  the  Emperor  Conrad  II.  had  given 
express  recognition,  in  the  famous  Edict  of 
Milan,  to  the  principle  that  no  man  should 
be  deprived  of  his  fief  but  by  the  judgment  of 
his  peers.^  The  claim  rested  on  a  just  con- 
sideration— that,  as  most  suits  arose  out  of  land, 
men  were  not  so  likely  to  receive  fair  treatment 
from  those  of  whom  they  held,  or  who  held  of 
them  and  of  their  equals,  as  from  men  who  were 
in  exactly  the  same  position  as  to  tenure.  In 
England  the  principle  quickly  received  the  stamp 
»  Hallam,  «  Middle  Ages,"  L  i66. 

G 


82  Feudalism. 

of  law.  In  the  so-called  "laws  of  Henry  I." 
it  is  laid  down  that  no  one  shall  judge  his 
lord,  or  pass  judgment  upon  him  whose  liege- 
man he  is.  Probably  the  county  court,  as 
Gneist  suggests,  would  continue  to  be  resorted 
to  for  petty  criminal  matters ;  for,  of  the  four 
or  five  hundred  tenants-in-chief,  there  would 
surely  be  enough  in  each  shire  to  furnish  the 
sheriff  with  a  jury  of  pares.  But  land  was  the 
chief  subject  of  litigation,  and  Henry  I.  expressly 
enacted,  in  an  order  issued  early  in  his  reign, 
that  "  when  henceforth  a  plea  arises  concerning 
the  division  of  lands,  if  it  is  between  barons 
holding  of  me  in  chief  {inter  barones  meos 
dominicos)  it  shall  be  tried  in  my  court,  and  if 
it  is  between  the  tenants  of  two  lords  it  shall 
be  tried  in  the  county  court."  This  proves,  at 
any  rate,  the  existence  of  a  court  for  the  trial 
Compost-  of  suits  between  tenants-in-chief.  As  to  the 
'curm.  '  composition  of  this  court,  controversy  is  still 
busy.  Gneist  proves,  what  needs  no  proof, 
that  there  was  no  recognized  body  of  great 
vassals  which  could  act  as  a  feudal  court  of 
peers ;  and  he  argues  that  whenever  a  case 
was  excepted  from  the  jurisdiction  of  the 
county  court  it  was  tried  by  special  com- 
missions appointed  by  the  king,  and  really 
acting  in  virtue  of  the  king's  absolute  authority, 


Feudalism.  83 

though  they  might  nominally  be  peers  of  the 
parties  engaged.^  On  the  other  hand,  in  one 
great  case,  that  of  the  Bishop  of  Durham,  in 
1088,  it  is  clear  that  all  the  magnates  were 
present,  as  at  a  national  assembly ;  and  sentence 
was  pronounced  in  the  name  of  "the  court  of 
the  king  and  these  barons."  All  that  can  be 
said  with  certainty  is,  that  in  the  reign  of 
Henry  I.  the  Curia  Regis  does  become  distinct 
from  the  Common  Council  of  the  realm,  and 
consists  of  officials.  Perhaps  in  the  two  pre- 
vious reigns  there  was  a  difference  in  fact 
between  the  small  body  of  officials  who  would 
act  in  ordinary  cases,  and  the  whole  assembly 
of  tenants-in-chicf,  who  might  come  together 
for  judicial  purposes  when  the  business  was 
important ;  but  probably  this  difference  in  fact 
had  not  yet  translated  itself  into  theory.  What- 
ever else  the  court  may  have  been,  and  however 
it  may  have  been  constituted,  it  was,  evidently 
enough,  a  feudal  court  of  peers,  meeting  needs 
arising  from  the  introduction  of  novel  ideas ; 
and  that  such  needs  had  to  be  met,  must  be 
reckoned  one  at  least  among  the  causes  which 
led  to  the  appearance  of  the  Curia  Regis  as 
a  separate  body  and  to  its  rapid  growth  in 
importance. 

*  L  257-261  (Eng.  trans.X 


84  Feiidalism. 


(«)  In  The  other  branch  of  the  central  administra- 

finance,  ^.^^^  known  later  as  the  Exchequer,  was,  we  can 
hardly  doubt,  somewhat  similarly  influenced  by 
the  results  of  feudal  tenure,  in  that  the  develop- 
ment of  the  financial  office,  which  was  certainly 
of  much  earlier  origin  than  the  Conquest,  was 
hastened  by  the  new  duties  thrown  upon  it.  For 
the  influence  of  the  change  on  the  amount  and 
character  of  the  royal  revenue  is  especially 
noticeable. 

Two  of  the  new  sources  of  revenue  have  been 
already  mentioned, — the  "  incidents  "  of  feudal 
tenure,  bringing  the  king  money  in  the  shape 
of  reliefs  and  payments  for  wardship  and  mar- 
riage ;  and  "scutage,"  the  commutation  for  mili- 
tary service  introduced  by  Henry  II.  Two 
Aids.  others  have  to  be  noticed — aids  and  tallage.  The 
right  of  demanding  aids  arose  from  the  close 
tie,  as  between  man  and  man,  which  the  relation 
of  lord  and  vassal  implied  and  the  words  of 
homage  expressed.  In  natural  agreement  with 
such  an  idea,  the  lord  could  call  upon  his 
vassal  to  assist  him  with  money  on  emergencies, 
although  the  vassal  was  understood  to  be  free 
from  taxation  as  a  rule,  because  he  defended 
his  lord  with  his  body.  These  emergencies  soon 
became  limited  to  three — the  ransoming  of 
the   lord   from  captivity,  the  knighting  of  his 


Feudalism.  85 

eldest  son,  and  the  marriage  of  his  eldest 
daughter — each  needing  an  amount  of  money 
such  as  was  not  usually  at  the  disposal  of  a 
feudal  lord.  The  same  claim  as  was  made  by 
the  king  upon  his  tenants  was  made  by  the 
barons  upon  their  tenants  ;  and  Magna  Carta, 
by  the  clause  forbidding  the  king  to  permit 
lords  to  take  from  their  tenants  other  than  the 
three  customary  aids,  recognizes  their  right  to 
take  these.  The  word  "aid"  came,  however, 
to  be  extended  to  most  other  imposts,  though 
the  word  itself  had  at  first  implied  a  free  assist- 
ance. Hence  it  became  necessary  to  lay  down 
in  Magna  Carta  that  aids,  on  other  than  the 
three  above-mentioned  occasions,  should  not  be 
imposed  save  by  the  Common  Council  of  the 
realm. 

Tallage,  a  tax  which  originated  under  the  Tallagt. 
Norman  kings,  though  it  is  not  given  the  name 
till  the  reign  of  Henry  II.,  may  similarly  be 
regarded  as  a  result  of  the  feudal  theory.  It 
was  an  impost  levied  at  the  king's  pleasure 
upon  the  royal  demesne,  including,  as  has  been 
pointed  out,  after  the  Conquest,  most  of  the 
towns  in  the  kingdom.  Probably  the  theory  on 
which  it  was  justified  was  this — that  as  military 
service  was  the  burden  of  a  special  class,  of  those 
holding  in  chivalry,  it  was  equitable  that  those 


86  Feudalism. 

who  were  exempted  from  this  duty,  the  socage  and 
burgage  holders,  should  contribute  by  taxation 
to  the  national  defence.  The  barons  claimed  an 
equal  right  of  tallaging  their  own  demesnes  ;  and 
it  was  not  without  a  struggle  that  the  Exchequer 
succeeded  in  establishing  the  principle  that  all 
such  seigneurial  tallages  needed  royal  consent. 
As  late  as  1305  Edward  I.  granted  leave  to 
the  barons  to  tallage  their  lands  as  he  had 
tallaged  his.  The  towns,  however,  on  baronial 
demesnes  had  long  succeeded  in  buying  exemp- 
tion ;  and  the  royal  right  itself  disappeared 
after  the  statute  of  1340.  Tallage  in  England 
was  never  so  important  as  its  parallel,  the 
taille,  in  France,  and  this  for  two  reasons  :  first 
because  the  maintenance  of  the  national  militia 
took  away  the  excuse  for  demanding  money 
for  national  defence  ;  and  secondly,  because  it 
proved  to  be  the  king's  interest  not  to  tallage 
the  towns  heavily,  in  order  to  induce  them  to 
increase  the  annual  payments  known  as  the 
borough  ferms} 
III.  Cer-  III.  We  now  turn  to  consider  the  question 
'bUfSai  wherein  and  why  England  continued  to  differ 
"f^u^b  ^'^^"^  ^  completely  feudalized  state  such  as 
the  Nor-  France ;  to  notice  the  dangers  to  which  it  was 
man  mgs.  g^^j^^j.^  ^^^  ^j^^  means  by  which  these  dangers 

*  Gneist,  i.  211  ». 


Feudalism.  87 

were  escaped.  The  tendencies  of  a  feudal  state 
may  be  described  in  two  phrases :  on  the  side 
of  the  king,  sovereignty  tended  to  disappear  in 
suzerainty ;  on  the  side  of  the  vassals,  owner- 
ship tended  to  become  sovereignty.  The  great 
tenants-in-chief,  and  smaller  sub-tenants  when 
the  immediate  lord  was  weak,  might,  and  in 
France  and  Germany  did,  succeed  in  becoming 
practically  independent  of  any  external  control. 
The  king's  authority  as  national  sovereign  was 
lost,  and  its  place  taken  by  narrowly  defined 
rights  over  those  immediately  holding  of  him. 
But  we  must  be  careful  to  avoid  exaggerations. 
As  Palgrave  has  said,  "  there  was  no  govern- 
ment in  mediaeval  Europe  founded  on  feudality," 
in  the  sense  of  accepting  as  a  principle  this 
limitation  of  royal  power  to  an  over-lord's  rights 
over  his  vassals.  It  has  recently  been  shown 
that  even  by  the  early  Capetian  kings  such  a 
limitation  was  neither  recognized  in  principle 
nor  conformed  to  in  practice.^  Yet  such  was 
in  the  main,  and  over  a  great  part  of  western 
Europe,  the  result  of  the  forces  at  work  ;  and 
such  results  might  seem  especially  probable  In 
England.  For  England  was  a  country  con- 
quered  by  men  penetrated  with   feudal   ideas. 

*  Luchaire,"  Histoire  des  Institutions  Monarchiques  de 
la  France,"  L  L  ch.  i. 


88  Feudalism. 

The  new  king  appeared  to  depend  on  his  vic- 
torious army  for  the  retention  of  his  prize  ;  and 
everywhere  else  the  existence  of  a  large  con- 
quered population  had  stimulated  the  growth  of 
baronial  independence.  To  understand  why  this 
did  not  occur  in  England  it  is  necessary  to 
realize,  before  everything  else,  the  position  as- 
sumed by  William  and  his  successors.  The 
Conqueror,  throughout  his  reign,  posed  as  the 
lawful  heir  of  the  Confessor.  The  battle  of 
Hastings  and  the  ravagings  of  north  and  west 
were,  in  this  view,  but  unfortunate  episodes 
which  did  not  prevent  the  king,  who  had  been 
elected  in  due  form  by  the  Witan,  and  crowned 
by  an  English  primate,  from  ruling  as  English 
kings  before  him,  with  unaltered  authority.  The 
policy  of  William  was  evidently  this, — to  use  all 
the  power  which  could  be  derived  from  the 
feudal  relation,  but  at  the  same  time  to  add  to 
it  all  the  power  of  the  English  monarchs.  Many 
an  old  institution  which  a  despot  with  a  free 
hand  would  never  have  devised,  he  found  it 
useful  to  maintain  as  weapons  against  feudalism. 
Danger  The   first   and   greatest   danger   was    lest    it 

ihouid       should  be  believed  that  the  tenant  was  bound 
their'l^ds  ^°  ^'^  immediate  lord  even  against   the  king. 

against  the  fhis   did   become  the  doctrine  in  France   and 
king. 

Germany,  and  from  it  the  deduction  even  was 


Fettdalism.  89^ 

drawn  that,  while  the  vassal  who  had  waged 
war  on  his  lord  was  worthy  of  forfeiture,  his 
tenants,  who  had  but  obeyed  his  summons,  were 
innocent  and  ought  not  to  be  punished.  Thus 
the  Etablissements  of  S.  Louis,  which  were 
designed  to  extend  the  royal  power,  though 
they  lay  down  that  a  tenant  is  not  bound  to 
serve  his  lord  against  the  king  if  the  king 
will  do  the  lord  justice,  yet  declare  that  "  if 
the  chef  seigneur  persist  in  his  refusal  to  do 
justice,  the  vassal  ought  either  to  follow  his 
lord,  or  resolve  to  lose  his  fief."  ^  For  here 
the  idea  of  personal  relation  and  duty  predomi- 
nated :  a  personal  tie  bound  the  tenant  to  his 
lord ;  there  was  no  such  bond  between  this 
tenant  and  the  king.  This  relation  was  created 
by  the  act  of  homage  and  oath  of  fealty ;  so 
that,  to  take  another  instance  from  the  reign  of 
S.  Louis,  when  that  king  was  going  on  crusade, 
Joinville  refused  to  join  the  barons  in  taking  an 
oath  of  faith  and  loyalty  to  the  king's  children, 
on  the  express  ground  that  he  was  not  the  king's 
man,  but  the  man  of  the  Count  of  Champagne.* 
He  was  not  willing  to  incur  obligations  which 
might  conflict  with  his  first  duty,  fidelity  to  his 
immediate  lord. 

1  Hallam,  "  Middle  Ages,"  i.  168  n. 
«  "  Mdmoires"  (ed.  Michel),  yj. 


90  Feudalism. 

Oath  of         Facts  such  as  these  make  us  understand  the 
'''*  significance  of  William's  action  at  the  assembly 
of  Salisbury  in   1 086.     The  Domesday  Survey 
had  just  been  completed  ;  henceforth  the  king 
could  learn  with  certainty  who  were  in  posses- 
sion of  the  soil.     His  next  act  was  to  make  the 
holders  recognize  that,  whoever  might  be  their 
immediate   lord,   their    duty   to   the   king  was 
paramount    to    their    duty   to    their    seigneur. 
William  wished  to  make  it  clear  that  he  was 
not  a  mere  feudal  suzerain,  and,  as  such,  only  in 
distant  relation  to  the  mass  of  the  people ;  but 
that  he  was  also  the  sovereign  of  the  nation,  and 
claimed  obedience  from   every  member  of  the 
nation.     And  so  "  he  ordered,"  says  Florence  of 
Worcester,  "  that  archbishops,  bishops,  abbots, 
earls,  barons,  sheriffs,  with  their  vassals  {cum  suis 
militibus),  should  meet  him  at  Salisbury ;  and 
when  they  had  come  together  he  compelled  their 
vassals  to  swediV  fealty  to  him  against  all  men." 
Contemporary  writers   plainly   intend   to   show 
that  the  oath  was  understood  to  be  one  binding 
them  to  the  king  even  against  their  immediate 
lords.     The  English  chronicler  puts   it  in  this 

*  way :  "  There  came  to  him  his  Witan,  and  all 

the  landowning  men  there  were,  over  all  Eng- 
land, whose  soever  men  they  were,  and  all  bowed 
down  to  him  and  became  his  men,  and  swore 


Feudalism.  91 

oaths  of  fealty  to  him,  that  they  would  be  faith- 
ful to  him  against  all  other  menP 

A  similar  attempt  to  stem  the  tide  of  feudalism 
has  been  made  by  Charles  the  Great ;  and  many 
a  king  had  tried  to  get  a  clause  inserted  in  the 
formulas  of  homage  and  fealty  which  should 
reserve  the  vassal's  duty  to  his  sovereign.  But 
efforts  to  preserve  the  reality  of  national  sove- 
reignty had  failed  on  the  continent ;  and  this 
oath  at  Salisbury,  important  as  it  is  as  a  declara- 
tion of  principle,  would  have  been  worthless  had 
not  the  king  possessed  means  of  enforcing  its  ful- 
filment. No  number  of  oaths  could  long  prevent 
the  vassals  of  a  great  lord  with  absolute  authority 
in  his  own  district  from  choosing  rather  to  follow 
their  lord  against  the  king  than  lose  their  fiefs. 
What,  then,  were  the  devices  of  the  Norman 
monarchs,  what  the  circumstances  assisting  them, 
which  so  limited  the  power  of  local  magnates  that 
their  vassals  could  dare  to  be  true  to  the  king  ? 

In  the  first  place,  William  and  his  successors  jifeam  by 
were  able  to  have  recourse  to  a  military  force  ^'J^^j^' 
other  than  the  feudal  levy,  namely,  the  old  Z'"'^'"'''^''- 
national  militja,  ovfyrd.  The  most  important  oitenanceof 
the  three  duties  binding  on  every  freeman  had  ' 

been  attendance  in  the  national  host  William 
was  not  slow  to  see  the  expediency  of  keeping 
men  aware  that  they  remained  under  the  same 


92  Feudalism. 

Instances  obligation.  Two  years  after  Hastings,  the  men 
^its  use.  of  the  already  conquered  districts  had  obeyed 
his  summons,  and  had  even  joined  in  the  attack 
upon  their  countrymen  of  Exeter.  And  men 
did  not  venture  to  resist  even  when  the  true 
character  of  the  fyrd,  national  defence,  was  dis- 
regarded, and  it  was  used  for  foreign  warfare. 
In  1073,  when  William's  first  conquest,  Maine, 
seemed  slipping  from  him,  an  English  army  took 
the  chief  part  in  the  campaign  which  ended  in 
its  subjugation  ;  and  in  1094,  ten  thousand  foot- 
men came  together  at  the  royal  summons  at 
Hastings,  though  only  to  be  robbed  of  their 
road-money  by  Flambard,  and  sent  home  agam. 
Far  more  important,  however,  are  the  instances 
of  the  use,  and  successful  use,  of  the  national 
militia  against  the  forces  of  feudal  anarchy  ;  for 
they  show  that,  in  spite  of  the  severities  of  the 
new  government,  the  great  body  of  the  conquered 
English  quickly  learnt  where  their  interest  lay  ; 
better  for  them  that  the  king  should  succeed  than 
the  barons  ;  better  one  tyrant  than  many.  After 
the  Conqueror's  death,  the  barons  twice  endea- 
voured to  place  Robert  on  the  throne  in  the 
place  of  his  sterner  brothers.  For  the  weak 
administration  of  that  prince  in  Normandy 
assured  them  that  he  would  hold  the  reins  laxly 
in  England.     The  first  of  these  attempts  fol- 


Feudalism.  93 

lowed  the  coronation  of  William  II. ;  it  was  In  1087. 
joined  in  by  the  foremost  "  French  "  magnates 
in  England — Robert  of  Mortain,  Robert  of  Mow- 
bray, Robert  of  Belesme,  Eustace  of  Boulogne, 
the  Bishops  of  Bayeux  and  Coutances.  Then 
William,  "  seeing  that  almost  all  the  Normans 
had  conspired  against  him,  summoned  the  Eng- 
lish," winning  them  by  promises  of  good  govern- 
ment With  English  help  he  took  castle  after 
castle,  drove  back  the  fleet  which  Robert,  like  a 
new  Conquerer,  had  sent  to  Pevensey,  and  finally 
captured  Rochester,  Odo's  stronghold.  "  Many 
Frenchmen  forlet  their  lands  and  went  over  sea," 
says  the  chronicler  briefly  of  the  consequences, 
"  and  the  king  gave  their  lands  to  the  men  who 
were  faithful  to  him." 

In  iioi,  the  struggle  seemed  likely  to  h&Fattof 
repeated,  this  time  between  Henry  and  Robert ;  BeUsnu. 
"  but  all  the  English,  knowing  nothing  of  the 
rights  of  any  other  prince,  remained  firm  hi 
fidelity  to  their  king,"  and  Robert  did  not 
venture  on  a  battle.  The  failure  of  Robert 
brought  with  it  the  punishment  of  his  greatest 
supporter.  Robert  of  Belesme  was  the  leader, 
and  worst  example  of  the  lawless,  self-seeking 
baronial  party.  Son  of  Roger  of  Montgomery, 
one  of  the  chief  followers  of  the  Conqueror,  he 
had  become  Count  of  Ponthieu  and  Alen^on  in 


94  Feudalism. 

France,  with  the  earldoms  of  Shrewsbury  and 
Arundel  in  England,  the  former  of  itself  a  petty 
principality.  He  had  assisted  Robert  in  his 
revolts  against  his  father,  and  in  his  rivalry  with 
his  brothers.  Power  had  created  in  him,  as  in 
Italian  despots  of  a  later  age,  a  taste  for  cruelty, 
so  that  he  became  a  byword  for  the  wanton  tor- 
tures he  inflicted.  The  presence  of  such  a  man 
was  a  constant  menace  to  the  royal  authority ; 
and  we  can  well  believe  that  when  he  was  driven 
out,  all  England,  as  Orderic  tells  us,  exulted, 
and  cried, "  Rejoice,  King  Henry,  and  thank  God 
that  you  have  now  begun  to  reign,  now  that  you 
have  conquered  Robert  of  Belesme,  and  driven 
him  from  the  borders  of  your  realm."  ^ 

A  conquest  by  Robert  of  Normandy,  aided  by 
men  like  Robert  of  Belesme,  might,  indeed,  have 
made  England  a  feudal  state  in  the  sense  in 
which  France  was  a  feudal  state.  But  the  help 
of  the  English  enabled  William  II.  and  Henry  to 
pass  through  the  crisis,  and  the  danger  was  never 
again  so  great.  And  so  the  importance  of  the 
English  militia  diminished,  until  Edward  I.  was 
able  to  make  out  of  it  a  system  of  police 
and  watch  and  ward.  Yet  for  a  long  time 
it  remained  one  of  the  forces  with  which  an 
ambitious  feudal  aristocracy  had  to  reckon. 
1  See  Freeman,  "William  Rufus,"  i.  179-184. 


Feudalism.  95 

It  rescued  Henry  II.  from  what  seemed  over- 
whelming difficulties  in  1173,  and  among  that 
king's  wisest  measures  was  the  Assize  of  Arms^ 
by  which  it  was  reorganized. 

And  if  we  look  at  the  position  of  a  g^eat 
baron,  and  observe  the  way  in  which  his  power 
was  limited  on  every  side,  we  shall  see  that  old 
English  institutions  were  useful  in  many  other 
ways  in  preventing  harmful  consequences  of 
feudal  theory.  Abroad,  baronial  power  showed 
itself  in  the  right  oi  jurisdiction,  in  the  right  of 
private  warfare  and  of  holding  castles,  and,  lastly, 
in  the  right  of  coinage.  Let  us  take  each  of 
these  in  order. 

The  right  of  jurisdiction  was  by  far  the  most  (2)  Preser- 
important.     One  of  the  questions  most  eagerly  ^the'mi- 
debated    by   mediaeval    lawyers    was    whether  '"^''' 

"'  ^  courts ; 

jurisdiction  was  an  inherent  part  of  a  fief;  and,  hindering 
though    there    were    not    wanting    those    'w\iO  grmvtk  of 
pointed   out   that   the   origin   of   the   two   wasj^^^?f 
different,  the  fief  being  derived  from  the  grantor's  '»<^- 
right  of  property,  the  jurisdiction  from  the  king's 
sovereignty,    yet    it    was    generally    recognized 
that  without  jurisdiction  there  was  no  true  and 
complete  seigniory,  and  the  adage  ran, "  Fief  and 
justice  make  but  one."  ^     The  result,  after  the 

*  Gasquct,  "  Institutions  Politiques  de  I'ancienne 
France,"  iL  ch.  ii. 


o6  Feudalism. 

practice  of  subinfeudation  had  become  general, 
was  this — that,  in  cases  of  appeal  for  refusal  of 
right  or  false  judgment,  the  royal  court  could 
not  be  reached  until  the  suitor  had  appealed  to 
several  intermediate  lords.  The  king's  authority 
to  do  right  and  redress  wrong  to  every  subject 
became  a  mere  fiction  ;  the  only  alternatives  were 
the  undue  power  of  the  lord  of  a  village,  or  the 
undue  power  of  his  superior,  the  lord  of  a  county. 
The  growth  of  such  a  state  of  things  was 
prevented  in  England  in  two  ways  ;  first,  by  the 
retention  of  the  popular  courts,  and  secondly, 
by  the  creation  of  a  central  judicial  system,  to 
which  the  Norman  and  Plantagenet  kings  were 
strong  enough  to  enforce  obedience.  First,  as 
to  the  popular  courts.  William  was  too  much 
of  a  statesman  not  to  see  that  in  the  organiza- 
tion of  the  local  assemblies  of  shire  and  hundred 
lay  the  peculiar  strength  of  the  English  consti- 
tution. Were  it  only  for  his  immediate  and 
personal  purpose  of  appearing  the  lawful  suc- 
cessor of  the  earlier  kings,  he  must  refrain  from 
interfering  with  such  a  system.  But  he  did 
more  than  abstain  from  innovation ;  he  took 
care  that  the  local  courts  should  be  maintained. 
For,  national  courts  such  as  these,  administering 
royal  justice  and  presided  over  by  royal  oflScials, 
the  sheriffs,  could  do  more  than  anything  else  to 


Feudalism.  97 

keep  alive  the  belief  that  justice  was  a  national 
right  and  not  a  seigneurial  perquisite.  In  a 
document  which  "  contains,  probably,  the  sum  of 
the  Conqueror's  legal  enactments,"  appears  the 
clause,  "  Let  the  hundred  and  county  court  be 
maintained  as  our  predecessors  decreed ; "  and, 
for  each  of  the  Norman  reigns,  records  remain  of 
the  trial  of  important  suits  in  the  shire  and 
hundred  moots.  Henry  I.,  in  a  charter  which 
was  intended  to  put  an  end  to  certain  abuses 
of  the  sheriff's  power  in  the  matter  of  these 
assemblies,  ordered  that  henceforth  his  county 
and  hundred  courts  should  meet  at  the  same 
times  and  places  as  in  the  reign  of  King  Edward. 
A  distinction  was  indeed  growing  up  between 
the  lesser  court  of  the  hundred,  held  monthly 
under  the  sheriff,  and  the  great  court  of  the 
hundred,  the  tourn  and  leet  held  by  the  sherifT 
twice  a  year,  especially  for  the  view  of  frank' 
pledge — a  sort  of  village  registration  for  police 
purposes.  And  other  changes  appeared,  such 
as  the  introduction  of  trial  by  battle,  and  the 
limitation  of  the  right  of  joining  in  judgment  to 
"  barons,"  i.e.  freeholders,  having  lands  in  the 
county.  But  the  really  important  points  are 
that  the  courts  are  maintained,  that  at  the 
great  hundred  court  all  owners  of  land — bishops, 
earls,  barons,  vavassors,  and  a  long  list  of  other 

U 


98  Feudalism. 

lords  and  their  representatives — are  still  ex- 
pected to  be  present,  and  that  it  is  still  held, 
according  to  the  "laws  of  Henry  I.,"  that  it 
is  the  duty  of  a  lord  to  there  present  his  accused 
"  man." 
(l)Creation  The  Other  weapon  of  the  sovereign  against  the 
Judicial  lords  was  the  Curia  Regis.  This  is  a  subject 
maehitury.  ^^ich  will  more  fitly  be  dealt  with  in  the  follow- 
ing essay  ;  but  it  may  be  well  to  mention  in  this 
place  some  of  the  methods  by  which  the  judicial 
authority  of  the  king  was  enlarged.  First  was 
the  increase  of  the  number  of  criminal  offences 
treated  as  matters  reser\'ed  to  the  crown.  Such 
cases  would  doubtless  be  tried  in  the  national 
courts,  and  taken  out  of  the  hands  of  the  mano- 
rial lords.  Another  plan  was  the  frequent  issue 
of  writs,  rarely  employed  before  the  Conquest. 
These  were  sent  through  the  sheriffs  to  the  lords 
of  manors,  especially  upon  matters  concern- 
ing land,  admonishing  them  to  do  justice,  and 
adding,  "unless  you  do  so,  the  sheriff  will  do 
it,  that  we  may  no  longer  hear  complaint  of 
failure  of  justice."  And  finally,  with  the  reign 
of  Henry  I.  begins  the  despatch  of  itinerant 
justices  through  the  counties  to  hold  civil  and 
criminal  pleas. 

Yet  great  dangers  long  remained.     Several  of 
the  more  powerful  lords  had  liberties  or  honours. 


Feudalism.  99 

in  which  all  the  courts  were  subject  to  them,  and 
from  which  in  some  cases  even  the  sheriff  was 
excluded  until  the  Assize  of  Clarendon.  Every 
lord  of  a  manor  who  had  only  a  court-baron 
coveted  a  court-leet  and  power  of  criminal  juris- 
diction, like  the  French  /laute  justice  vfith  its  scaf- 
fold. And  when  the  strong  hand  of  the  king  was 
removed,  the  anarchy  of  Stephen's  reign  showed 
what  the  Norman  conquest  would  have  made 
England  but  for  William's  policy.  Among  the  Jiesuits  in 
results  of  that  policy  may  be  placed  these  three "^X  Con- 
facts :  that  the  seigneurial  courts  remained  ^^^^ 
merely  courts  of  manors,  and  did  not  become 
courts  of  whole  baronies ;  that  no  gradation  of 
feudal  courts  arose  as  in  France ;  and  that  the 
right  of  appeal  directly  to  the  king  was  recog- 
nized from  the  first  The  final  end  of  the 
struggle  to  limit  seigneurial  power  may  be  seen 
in  two  statutes  of  the  reign  of  Henry  III.,  the 
statute  of  Merton,  forbidding  magnates  to  have 
their  own  prisons,  and  the  statute  of  Marlborough, 
enacting  that  "  no  one  for  the  future,  except  our 
lord  the  king,  shall  hold  a  plea  in  his  court  for 
false  judgment  in  a  court  of  his  tenant,  since  pleas 
of  this  kind  specially  pertain  to  the  crown."  ^ 

>  Compare  with  the  notices  of  the  subject  in  Stubbs  s 
"  Const.  Hist.,"  ch.  xi.  of  the  first  vol.  of  Gneist,  **  Hist  of 
the  Engl.  Const"  (Engl,  trans.). 


lOO  Feudalism. 


Three  par-  The  baronial  right  of  private  warfare  was 
^i^  never  recognized  in  England.  It  implied  that 
WPp'vait  there  was  no  superior  strong  enough  to  compel 
recourse  to  his  tribunal ;  and  weakness  such  as 
this  no  English  king  was  ever  obliged  to  confess. 
In  France,  on  the  other  hand,  the  right  of  a 
baron  to  prosecute  a  quarrel  by  arms  was 
repeatedly  acknowledged  by  the  king.  All  that 
could  be  done  was  to  lessen  its  evils,  as  by  those 
edicts  in  the  thirteenth  century  which  provided 
that  hostilities  should  not  begin  till  after  an 
interval  of  forty  days  from  the  offence,  nor  while 
the  king  himself  was  at  war  with  a  foreign 
enjmy.  But  in  England  private  war  was  always 
a  "crime"  and  an  "unusual  crime,"  as  the 
historian  says  of  Ivo  of  Grantmesnil,  who  was 
expelled  from  England  in  1102,  and  who  had 
tried  to  set  the  evil  example.  During  two 
periods  only  in  our  history  was  private  warfare 
at  all,  frequent — in  the  reign  of  Stephen,  and  in 
the  reigns  of  Henry  VI.  and  Edward  IV.  The 
evils  of  the  former  time  were  repressed  by  the 
strong  hand  of  Henry  II.;  those  of  the  latter 
called  for  the  rule  of  the  Tudors. 
(2)  PrivcUe      One  main  reason,  certainly,  why  England  was 

eastUt. 

unlike  France  in  this  respect  was  the  firm  hold 
which  the  sovereigns  managed  to  retain  over 
baronial  castles.     In  Normandy,  the  dukes  had 


Feudalism.  loi 

kept  the  right  of  garrisoning  such  strongholds ; 
in   England  a  licence  from  the  king  was  held 
necessary,  and  castellatio  sine  licentia  appears  in 
the  "  laws  of  Henry  I."  as  an  offence  which  put 
a   man   '*at  the   king^'s  mercy."     Stone  castles, 
indeed,  had  never  been  built  in  England  before 
the  Conquest ;  and  of  the  forty-nine  which  appear 
in  Domesday,  thirty  were  in  the  king's  hands. 
The  worst  feature  in  the  lawlessness  of  Stephen's 
reign  was  the  building  of  hundreds  of  castles  by 
barons  of  the  king's  party  with  his  permission, 
and  soon  by  every  baron  who  was  able  to  do  so. 
In  these  castles  were  wrought  the  worst  of  those 
iniquities  which  made  men  say  that  Christ  and 
His  saints   slept.     "All   became   forsworn   and 
broke  their  allegiance,"  cries  the  English  chro- 
nicler ;  **  for  every  rich  man  built  his  castles  and 
defended  them  against  the  king,  and  they  filled 
the  land  with  castles.     They  greatly  oppressed 
the  wretched  people  by  making  them  work  at 
these  castles,  and  when  the  castles  were  finished 
they  filled   them   with   devils   and    evil    men." 
Among  the  conditions  of  the  treaty  of  Walling- 
ford  was  the  destruction  of  such  adulterine,  or 
unlicensed,  castles ;  and  Henry  carried  out  his 
purpose  at  the  beginning  of  his  reign,  in  spite  of 
a  vigorous  opposition  which  forced  him  to  lay 
siege  to  several  of  the  fortresses.    Such  as  were 


102  Feudalism. 

allowed  to  remain  were  either  garrisoned  by  the 
king,  or  put  under  castellans  approved  by  him. 
(3)  Private  As  to  the  right  of  coinage  but  little  need  be 
coinage,  gj^j^j  j^  ^^g  generally  and  rightly  regarded  as 
a  most  essential  prerogative  of  sovereignty,  and 
it  was  one  of  the  rights  which  every  king,  as 
soon  as  he  was  able,  reserved  to  himself.  But 
while  the  French  monarchs  did  not  succeed  in 
this  until  the  end  of  the  fifteenth  century, — so 
that,  for  instance,  in  the  reign  of  Louis  IX.  there 
were  as  many  as  eighty  lords  who  struck  coin 
for  their  own  territories, — in  England,  except  in 
Stephen's  reign,  the  royal  monopoly  was  never 
attacked.  Under  Stephen,  baronial  mints 
appeared,  with  all  the  other  feudal  abuses. 
"There  were  as  many  kings,  tyrants  rather,  as 
there  were  lords  of  castles,"  says  a  contemporary 
writer  ;  "  each  had  the  power  of  striking  his  own 
coin,  and  of  exercising,  like  a  king,  sovereign 
jurisdiction  over  his  dependents."  Coins  remain 
which  were  issued  by  Henry  the  great  bishop 
of  Winchester,  and  by  Robert  of  Gloucester. 
But  Henry  H.,  in  the  treaty  of  Wallingford, 
insisted  on  the  removal  of  adulterine  coinage  as 
well  as  adulterine  castles,  and  from  his  reign 
England  has  possessed  a  uniform  royal  currency. 
Dangers         5q  f^^  the  dangers  we  have  been  enumerating 

peculiar  to  °  ^ 

England,    were  dangers  which   attended  feudal  tenure  in 


Feudalism.  103 

all  countries.  But  the  hardest  part  of  William's 
task  lay  in  overcoming  dangers  peculiar  to 
England.  England  before  the  Conquest  seemed 
on  the  point  of  splitting  up  into  three  or  four  The  great 
semi-independent  principalities.  This  was  an  "^ 
evil  which  had  been  growing  for  two  centuries ; 
for  scarcely  had  the  early  separate  kingdoms 
disappeared,  before  the  old  provincial  feeling 
and  the  weakness  of  the  central  authority  led 
to  the  creation  of  great  ealdormanries.  These 
ealdormanries,  known  later  as  earldoms,  com- 
prised several  counties ;  and  around  the  families 
which  gained  hereditary  possession  of  them,  all 
the  old  feelings  of  local  patriotism  and  provincial 
independence  speedily  revived.^  The  disasters 
of  Ethelred  II.  were  due  largely  to  his  untimely 
attempts  to  overthrow  these  too  powerful  magis- 
trates. Canute,  on  the  contrary,  taking  up  rather 
an  imperial  than  a  national  position,  accepted 
the  fact  of  provincial  separateness,  and  perhaps 
thought  that  disunion  would  make  it  more  easy 
to  rule.  At  any  rate,  during  his  reign  England 
was  divided  into  four  great  earldoms — Northum- 
bria,  Mercia,  Wessex,  and  East  Anglia.  Three 
great  princely  houses  arise  whose  struggles  make 
up  the  history  of  the  Confessor's  reign — that  of 

*  Compare  Green,  "  Conquest  of  England,"  p.  304 ;  and 
map  of  **  England  under  the  Ealdormen,'*  p>  316 


104  Feudalism. 

Siward  in  Northumbria,  of  Leofric  in  Mercia,  of 
Godwine  in  Wessex.  East  Anglia  is  tossed 
from  side  to  side,  held  now  by  a  son  of  Leofric, 
now  by  a  son  of  Godwine,  with  the  shifting 
fortunes  of  the  rival  families. 
Winiam'i  It  was,  therefore,  a  question  of  the  gravest 
ZfAe^  moment  what  action  William  should  take  in 
the  matter  of  the  ealdormanries.  If,  relying  on 
his  power  to  make  the  earls  his  servants,  he 
continued  the  old  system  of  dividing  the  country 
into  three  or  four  provinces,  it  was  likely  that 
the  Norman  magnates  who  thus  gained  over 
many  shires  the  power  of  ealdormen  in  moot 
and  fyrd  would  succeed  in  creating  hereditary 
principalities.  But  William  proceeded  very 
cautiously.  An  earl,  Ralph  Guader.was  appointed 
in  East  Anglia,  and  no  change  was  at  first  made 
in  the  character  of  the  office.  But  to  none  of 
his  followers  would  he  entrust  the  earldom  of 
the  whole  either  of  Mercia  or  Northumbria. 
Mercia  was  divided  between  Hugh  of  Avranches, 
as  Earl  of  Chester,  Roger  of  Montgomery,  as 
Earl  of  Shrewsbury,  and  Roger  of  Breteuil,  as 
Earl  of  Hereford  ;  Northumbria  was  partitioned 
between  Alberic,  Earl  of  Northumberland,  and 
the  Bishop  of  Durham ;  Wessex  he  kept  in  his 
l^r^qf  °^"  hands.  This  explains  the  significance  of 
1075.        the  conspiracy  of  the  earls   in   1075.     Two  of 


Feudalism,  105 

the  men  just  mentioned — Ralph  Guader,  whose 
earldom  of  East  Anglia  had  always  been  in- 
ferior to  the  other  three  provinces,  and  was 
getting  narrowed  to  Norfolk ;  and  Roger  of 
Breteuil,  who  would  fain  turn  his  earldom  of 
Hereford  into  an  earldom  of  Mercia — com- 
municated their  plans  to  Waltheof,  whose  name, 
as  son  of  Siward,  would  they  thought  win  them 
popular  support.  "Let  us,"  they  proposed, 
"  restore  England  to  the  condition  in  which  it 
was  in  the  time  of  that  most  pious  King 
Edward  ;  let  one  of  us  be  king,  the  other  two 
dukes,  and  so  let  us  share  all  authority  in 
England  between  us,"  But  the  revolt  was  soon 
suppressed,  with  the  aid  of  the  bishops  and  of 
the  English,  who  thus  early  saw  that  in  the 
undivided  authority  of  a  single  ruler  lay  the 
only  hope  of  good  government  If  William 
needed  to  be  taught  the  dangers  of  government 
through  earls,  this  experience  was  a  sufficient 
lesson.  Henceforth  the  earldoms  become  merely 
titular  dignities  ;  the  earls  cease  to  have  any 
connection  with  the  shires  from  which  they  are 
named ;  they  no  longer  command  the  host  of 
the  county,  or  preside  in  its  court.  Stephen's 
creation  of  merely  nominal  earls,  supported  by 
Exchequer  pensions,  completed  the  change ;  and 
in  later  reigns  it  was  not  from  the  jurisdiction 


io6  Feudalism. 

of  the  earls,  but  from  that  of  the  sheriffs,  that 
dangers  appear. 
Scattered  Even  without  the  power  which  the  authority 
estates.  ^^  ealdorman  would  give  to  a  baron  set  on 
aggrandizing  himself,  it  might  seem  that  the 
mere  possession  of  large  estates  would  tend  to 
make  the  great  feudatories  semi-independent. 
But  this  was  prevented  by  a  circumstance  which, 
taken  in  conjunction  with  other  acts  of  the 
Conqueror,  we  can  hardly  help  attributing  to 
definite  policy,  viz.  that  the  lands  granted  to 
each  of  the  great  barons  were  scattered  over 
many  counties,  and  seldom  lay  near  together. 
Some  forty  great  vassals  are  prominent  above 
the  rest  for  the  extent  of  their  possessions,  but 
in  every  case  their  manors  are  distributed  over 
more  than  six  counties,  and  several  have  them 
in  as  many  as  twelve  or  fourteen.  William's 
policy  as  to  the  earldoms  had  prevented  England 
from  being  split  up  into  three  or  four  great 
principalities,  comparable  to  French  duchies ; 
by  this  method  of  distributing  his  grants  he 
avoided  the  creation  even  of  fiefs  comparable 
to  Norman  counties.  For,  a  lord  whose  manors 
were  scattered  over  six  shires  could  not  round 
off"  his  territory  into  a  compact  whole  ;  he  could 
not,  as  we  have  before  seen,  create  a  central 
court  for  his  manors ;  and  what  was  still  more 


Feudalism.  1 07 

important,  he  was  watched  and  checked  by  half 
J  a  dozen  sheriffs,  each  ready  to  summon  the  fyrd 
and    the    lesser    tenants-in-chief    to    overcome 
revolt 

And  this  mention  of  the  sheriff  suggests  increased 
another  important  element  in  the  policy  of  the  ^^tht'*^**" 
Norman  kings.  Their  rule  gave  England  a  ^^f^ff' 
central  administrative  system  incomparably 
stronger  and  better  organized  than  anything 
that  appears  in  the  later  Saxon  reigns ;  and 
William  soon  recognized  the  value  of  the  sheriffs 
as  the  local  ministers  and  agents  of  this  central 
government.  The  office  of  sheriff,  the  special 
representative  of  the  king,  was  as  old  as  the 
shire  itself;  but  his  office  had  always  been  of 
quite  secondary  importance  when  compared  with 
that  of  the  ealdorman  who  stood  in  the  place  of 
the  old  tribal  chieftain,  and  still  more  when  com- 
pared with  that  of  the  ealdorman  of  later  times, 
who  ruled  over  several  counties.  But  now  the 
great  earldoms  disappear,  and  even  the  earls 
bearing  titles  derived  from  shires  cease  to  have 
any  official  connection  with  those  shires,  except 
that  they  receive  a  third  of  the  fines.  The  sheriff 
becomes  the  commander  of  the  national  militia 
and  of  the  lesser  tenants-in-chicf  in  his  shire; 
and  the  withdrawal  of  the  bishops,  after  the 
separation   of  the  spiritual  and  secular  courts. 


Io8  Feudalism. 


leaves  him  alone  in  the  shire-moot  Not  that 
this  arrangement  was  entirely  free  from  risk ; 
in  some  cases  the  office  of  sheriff  became 
hereditary,  and  when  to  this  was  added  the 
possession  of  great  estates  in  the  county,  a 
power  grew  up  dangerous  to  the  state  ;  but  this 
belongs  to  a  later  period.  That  the  sheriffs  were 
believed  to  help  in  the  maintenance  of  good 
order  is  shown  by  the  fact  that  their  restoration 
was  one  of  the  terms  of  the  peace  of  Wallingford. 
The  To   such   a   policy   the   creatipn  of  palatine 

iarUioms.  earldoms  was  an  exception  for  the  sake  of  the 
national  defence  —  Chester  and  Shrewsbury 
against  the  Welsh,  Durham  against  the  Scotch, 
and  Kent  against  France.  But  the  palatine 
earldom  of  Kent  disappears  with  the  fall  of 
Odo  ;  and  the  banishment  of  Robert  of  Belesme 
put  an  end  to  that  of  Shrewsbury.  In  Durham 
the  bishop,  in  Chester  the  earl,  were  the  lords 
of  all  the  lands  in  the  county,  issued  writs,  and 
held  baronial  courts.  These  made  the  nearest 
approach  to  the  position  of  a  great  continental 
feudatory,  and  even  of  these  one  was  a  church- 
man who  could  not  found  a  family.  { 

Summary.  We  can  now  answer  the  question  with  which 
we  set  out.  The  Norman  Conquest  did  make 
England   a  feudal   state  in   the    sense   of   in- 


Feudalism.  109 

troducing  feudal  tenure  with  many  of  its  con- 
sequences ;  it  did  not  make  it  a  feudal  state  in 
the  sense  of  making  its  government  feudal. 
We  have  seen  how  William  prevented  what 
might  have  been  the  worst  results  of  the  Con- 
quest. But  without  the  Conquest  England 
would  inevitably  have  fallen  asunder  into  a 
number  of  principalities,  and  union  would  have 
been  harder  to  secure  even  than  in  France. 
From  such  a  fate  the  strong  hand  of  William 
saved  this  country.  The  old  Saxon  princely 
houses  were  destroyed,  and  no  Frenchmen  were 
allowed  to  take  their  places.  An  alliance  with 
the  Church  and  the  support  of  the  English 
enabled  the  Norman  kings  to  establish  and 
maintain  their  authority. 

Their  success  must  not  be  wholly  ascribed  to  Haw  far 
politic  measures  ;  it  must  not  be  forgotten  that  *!^J^"^\^ 
the  England  they  had  to  rule  was  but  a  third  of /<'^»0'- 
the  size  of  France,  and  that  its  population  was 
far  more  homogeneous  ;   therefore  the  distance 
over  which  royal  authority  had  to  be  exercised 
was   less,    and   provincial   feeling   was  weaker. 
But  much  we  must  attribute  to  conscious  policy. 
The  maintenance  of  the  old  theory  of  sovereignty, 
the  retention   of  the   old   national   courts  and 
array,  gave  the  king  weapons  of  which  we  can 
trace  the  use.     And,  as  the  result,  "a  power- 


no 


Feudalism. 


Future 

const' 

quetues. 


Royal 


ful  and  well-served  monarchy,  and  a  baronage 
relatively  feeble,  were  the  two  important  charac- 
teristics which  distinguished  England  from  other 
European  states."  ^ 

Such  a  result  was  full  of  hope  for  the  future. 
The  overwhelming  power  of  the  king,  especially 
after  Henry  II.  had  armed  monarchy  with  an 
all-reaching  administrative  machinery,  led  to 
despotism,  and  despotism  to  revolt.  The  weak- 
ness of  the  barons  made  it  alike  necessary 
and  possible  for  them  to  obtain  the  aid  of  the 
great  body  of  the  people  in  their  revolt ;  and 
from  this  united  opposition  sprang  the  mediaeval 
parliamentary  constitution.  The  English  par- 
liament, again,  would  have  been  very  different 
from  what  it  was,  had  not  the  towns  been  kept 
from  assuming  an  isolated  position  by  a  royal 
authority  which  would  protect  them  from  the 
barons ;  and  had  not  national  institutions, 
notably  the  county  court,  been  retained  to 
unite  the  various  classes  of  Commons.^ 

We  ask,  finally,  what  had  all  this  "  policy  "  to 


Th^LT/^  do  with  the  mass  of  the  inhabitants  of  England, 

Hfe  oftht    the  small  landholders,  the  socagers  and  villeins 
peopk, 

1  Cf.  "Le  Parlement  en  Anglcterre,"  by  E.  Boutmy, 
in  the  Revue  des  Deux  Mondes,  clxxvi.  90  (1886),  where 
an  interesting  contrast  is  drawn  between  England  and 
France  in  the  eleventh  century. 


Feudalism.  1 1 1 

and  townsfolk,  above  whose  heads  it  was  being 
worked  out  ? — for  we  are  only  too  apt  to  think 
of  "  constitutional  development,"  and  to  forget 
the  condition  of  the  people.  What  the  people 
craved  was  that  they  might  be  allowed  to 
labour  in  quiet,  safe  from  the  violence  of  the 
strong.  Perhaps  the  most  pathetic  figures  in 
the  Middle  Ages  are  the  preachers  of  peace 
who  ever  and  again  appear,  like  that  carpenter 
in  Guienne  in  the  twelfth  century,  with  banner 
bearing  for  inscription,  "  O  Lamb  of  God,  grant 
us  Thy  peace  ; "  or  that  monk  of  Vicenza  in 
the  thirteenth  century,  who,  reminding  men  of 
the  words,  "  Peace  I  leave  with  you,"  reconciled 
the  cities  and  factions  of  Lombardy.^  They 
created  peace  for  a  time,  but  the  evils  of 
private  warfare  and  lawlessness  quickly  re- 
turned. By  the  truce  of  God  the  Church  tried 
to  do  what  the  state  had  failed  to  do — to 
secure  that  men  should  feel  themselves  free 
from  pillage  at  least  for  two  or  three  days  each 
week  ;  and  its  work  was  almost  in  vain. 

We  owe  it  to  the  strong  policy  of  the  Norman 
kings  that  abetter  state  of  things  was  established 
in  England.  "Among  other  things  is  not  to 
be  forgotten  the  good  peace  he  made  in  this 

»  Robertson,  "Charles  V.,"  Proofs,  21;  Symonds's 
"Renaissance,"  i.  551. 


1 1 2  Feudalism. 

land,"  says  the  English  chronicler  of  the  Con- 
queror; of  Henry  I.  in  like  manner:  "No  man 
durst  misdo  against  another  in  his  time.     He 
made    peace    for    man    and    beast."      Orderic 
puts  the  matter  simply :  "  The  foremost  counts 
and  lords  of  towns  and    audacious  tyrants  he 
craftily  overpowered ;  the  peaceful,  the  religious, 
the  mean  people  he  at  all  times  kindly  cherished 
and  protected.   ...    He  always   sought  peace 
for  the  nations  under  him,  and  rigidly  punished 
with  austere  measures  the  transgressors  of  his 
laws."     The  reign  of  Stephen,  when  the  nobles 
"  fought  among  themselves  with  deadly  hatred, 
and  spoiled   the  fairest   regions  with   fire   and 
rapine,"  seemed  all  the  darker  by  contrast     But 
with  the   accession  of  Henry  H.  the  time   of 
troubles  was   over ;    "  peace   and    justice  were 
recalled."     The  English  had  much  to  bear  from 
their  new  masters;  the  pressure  of  government 
was  heavy  and  constant ;  but  in  the  maintenance 
of  the  peace  of  the  country  they  found  a  suffi- 
cient recompense. 


ESSAY  III. 

THE  ANGLO-NORMAN  AND   ANGEVIN  ADMINIS- 
TRATIVE   SYSTEM   (1IOO-I265). 

The  essential  divergence  between  the  history  Character 
of  England  and  that  of  the  continental  states  %^Jisi 
is  shown  as  clearly  in  the  twelfth  and  thirteenth  *»»^J>*'>- 
centuries  as  at  other  epochs.  Beyond  the 
Channel  the  danger  to  society  lay  in  the  pre- 
dominance of  feudalism,  which  at  first  seemed 
likely  to  prove  fatal  alike  to  royal  power  and 
to  municipal  liberty.  On  this  side  of  the  straits 
of  Dover  the  fear  was  that  the  inordinate 
development  of  the  authority  of  the  king  would 
reduce  all  the  other  elements  of  the  constitu- 
tion to  impotence.  Henry  I.  was  obeyed  with 
a  punctuality  on  which  no  contemporary 
sovereign  of  Christendom — save  John  Comnenus 
in  the  far  East — could  reckon.  So  firmly  had 
the  English  administrative  system  taken  root 
by  the  middle  of  the  twelfth  century,  that  not 

I 


114  Tlie  Anglo-Norman  and 

even  the  anarchy  of  Stephen's  reign  could 
break  it  down.  Henry  11.  was  the  most 
powerful  king  in  Europe,  not  so  much  from 
the  extent  of  his  dominions,  as  from  the  order 
in  which  he  kept  them.  Even  the  weak  Henry 
HI.,  when  backed  by  the  forces  of  administra- 
tive tradition,  was  formidable  enough  to  task 
the  whole  energy  of  the  nation  in  his  repression. 
Strength  What  then  was  the  system  which  rendered 
English  the  English  monarchy  so  strong,  in  the  days 
adtntnii-  ^j^gn  other  states  were  suffering  from  the  worst 
system.  evils  of  feudal  anarchy?  It  was  a  system 
the  essential  principles  of  which  lay  in  the 
complete  subordination  of  all  the  branches  of 
the  administration  to  the  royal  power,  and  in 
the  ease  and  certainty  with  which  that  power 
could  make  itself  felt  throughout  the  land. 
It  reduced  the  dangers  of  feudalism  to  a 
minimum,  by  vigorously  enforcing  the  direct 
jurisdiction  and  authority  of  the  sovereign  over 
all  his  subjects,  great  and  small.  It  drew  into 
the  exchequer  all  the  proceeds  of  feudal  dues 
and  incidents ;  but  it  secured,  by  means  of  a 
separate  scheme  of  national  taxation,  that  the 
king  should  never  be  entirely  dependent  on 
his  feudal  revenues.  It  retained  the  power  of 
calling  feudal  levies  into  the  field  whenever 
it  might  be  necessary ;  but  it  relied  also  on  a 


An^et'in  Administrative  System.         115 

national  militia,  raised  by  the  king's  own 
officers,  and  drawn  from  the  whole  body  of 
freemen.  By  rendering  the  king  independent 
of  the  support  of  his  baronage  both  in  military 
and  fiscal  matters,  it  took  away  the  two  great 
levers  by  which  the  forces  of  feudalism  could 
hope  to  overturn  his  throne.  Consequently  it 
required  something  more  than  a  revolt  of  the 
tenants-in-chief  to  curb  the  tyranny  of  a  John 
or  end  the  misgovernment  of  a  Henry  III.  To 
prevail  over  the  royal  power,  the  baronage  had 
to  ally  itself  with  the  nation  ;  and  when  Magna 
Carta  was  exacted  and  confirmed,  it  .was  not 
feudalism  which  profited.  There  resulted  from 
the  victory  not  a  relapse  into  anarchy,  but  the 
establishment  of  a  new  form  of  constitution,  in 
which  neither  the  king  nor  the  baronage  held 
undisputed  sway.  From  the  reign  of  Edward  I. 
onward,  the  Commons  no  less  than  the  sove- 
reign and  the  greater  nobility,  have  an  appre- 
ciable influence  on  the  conduct  of  afiairs. 

Let  us  now  turn  to  the  details  of  this  adminis- 
trative system,  which  made  the  King  of  England 
master  in  his  own  land,  after  a  manner  of  which 
continental  rulers  could  have  no  conception. 

As  the  supreme  legislative  and  judicial  body  ^  ^'"^ 
in  the  realm,  we  have  the  King's  Great  Council, 
which  carries  on  in  a  measure  the  traditions  of 


Ii6  The  Anglo-Norman  and 

the  old  English  Witenagemot.  But  while  the 
Witan  had  been  essentially  national,  and  had 
possessed  in  all  matters  a  power  almost  co-ordi- 
nate with  that  of  the  king,  the  new  Great  Council 
gradually  grew  into  a  semi-feudal  body  of  the 
tenants-in-chief  of  the  crown.  No  violent  break 
appears  between  the  two  institutions,  because  the 
bishops  and  landed  magnates  who  would  natu- 
rally have  appeared  at  the  Witenagemot  were 
precisely  the  same  persons  as  the  great  tenants- 
in-chief  who  came  to  the  Great  Council.  The 
lesser  tenants-in-chief,  who  in  theory  were  sum- 
moned to  the  Great  Council  as  much  as  their  more 
important  compeers,  did  not  in  reality  present 
themselves.  Thus  the  assembly,  though  gathered 
on  a  new  theory,  presented  an  appearance  very 
similar  to  that  of  the  body  which  it  replaced. 
Three  times  a  year,  on  the  great  Church  festi- 
vals of  Christmas,  Easter,  and  Whitsuntide,  the 
Anglo-Norman  king  summoned  his  Great  Council 
around  him,  and  "  wore  his  crown  in  public  "  at 
the  solemn  session.  His  projects,  legislative 
and  financial,  were  laid  before  the  assembly,  and 
passed  by  its  "  counsel  and  consent ; "  while  the 
more  important  judicial  cases,  which  had  by 
process  of  appeal  come  up  to  the  highest  tribunal 
of  the  realm,  were  tried  and  decided  by  the 
same  body.     Even  greater  importance  attached 


Angevin  Administrative  System.         117 

to  the  Great  Council  as  the  body  which  chose 
the  king.  The  reigns  of  all  the  four  Anglo- 
Norman  kings  opened  with  a  disputed  succession, 
and  the  successful  prince  in  each  case  insisted, 
not  on  his  hereditary  right,  but  on  the  fact 
of  his  election.  It  is  true  that  the  councils 
which  elected  Henry  I.  and  Stephen  were 
mere  shadows  of  the  bodies  which  they  pur- 
ported to  represent,  hastily  summoned  and 
meagre  in  numbers,  yet  on  their  authority 
rested  the  claim  of  the  newly  chosen  king.  A 
ruler  whose  title  was  bound  up  with  the  rights 
of  the  assembly  which  had  crowned  him  could 
not  avoid  perpetuating  the  elective  theory  of 
kingship — a  theory  which  goes  far  towards  miti- 
gating absolutism.  The  French  kings  who  for 
eight  generations  passed  their  crown  on  in 
hereditary  succession  from  father  to  eldest  son,^ 
were  for  the  moment,  indeed,  powerless  before 
their  baronage  ;  but  by  the  undisputed  trans- 
mission of  the  royal  power  for  so  many  years 
they  caused  the  fact  that  the  French  throne  was 
elective,  no  less  than  the  English,  to  pass  into 
oblivion  ;  and  thus  laid  up  for  their  descendants 
claims  of  divine  right  which  could  not  be  foisted 
on  England. 

The   Great  Council  could  not  always  be  in  The  Curii 
session,  yet  there  was  continually  needed  some    '^"' 


Ii8  The  Anglo-Norman  and 

body  which  should  exercise  a  general  control 
over  the  administration  of  the  realm,  and  take 
off  the  king's  hands  the  details  and  drudgery 
of  government.  Around  the  person  of  the 
sovereign  were  grouped  a  body  of  officials  and 
advisers  (representatives  of  the  old  royal  "minis- 
tri "  of  Anglo-Saxon  charters)  who  fulfilled 
this  purpose.  Collectively  they  are  known  as 
"  Curia  Regis,"  a  name  which  the  Great  Council 
also  claimed  for  itself.  Apparently  they  could 
be  considered  as  a  permanent  committee  of  the 
larger  and  more  authoritative  body,  and  could 
therefore  employ  its  name.  But,  though  enjoy- 
ing administrative  and  judicial  authority,  they 
could,  of  course,  make  no  attempt  to  trench  on 
the  legislative  power  of  the  Great  Council,  or  to 
assume  its  privilege  of  sanctioning  extraordinary 
taxation.  The  members  of  the  Curia  Regis  fall 
into  two  classes.  The  first  consisted  of  the 
great  officers  of  the  royal  household,  whose 
privileges  in  England  (just  as  in  Germany  and 
France)  soon  became  hereditary.  These  were 
the  constable,  chamberlain,  steward,  marshal,  and 
butler,  whose  positions  descended  in  the  fami- 
lies of  Hereford,  Oxford,  Leicester,  Pembroke, 
and  Arundel.  But  these  functionaries  were  by 
no  means  the  most  important  part  of  the  Curia. 
If  the  king  had  been  compelled  to  act  through 


Attgevin  Administrative  System.        119 

them  alone,  his  power  could  never  have  estab- 
lished itself  with  that  firmness  which  charac- 
terized Anglo- Norman  and  Angevin  rule.  The 
fact  that  the  offices  were  hereditary,  and  their 
holders  great  nobles,  would  have  rendered  the 
control  of  the  king  over  them  almost  nugatory. 

The  really  important  members  of  the  Curia 
Regis  were  those  who  were  purely  royal  nomi- 
nees, appointed  by  the  king  and  removable  at  his 
pleasure.  These  were  the  Justiciar,  Chancellor, 
and  Treasurer,  with  some  other  less  dignified 
officials  who  bore  no  special  title,  and  appear 
as  "judices,"  "ministri,"  "barons  of  the  exche- 
quer," etc 

The  Justiciar  "capitalis  justitia,"  was  in  Eng-  The  jus- 
land,  as  in  Sicily  and  Aragon,  the  second  ^^*^' 
person  in  the  realm.  He  was  not  only  the 
head  and  president  of  the  supreme  legal  court, 
as  his  name  shows,  but  also  a  permanent 
prime  minister,  and  the  king's  chief  represen- 
tative. Whenever  the  king  was  over-sea  en- 
grossed in  the  affairs  of  his  broad  lands  in 
France,  the  justiciar  was  regent  in  England, 
"vicedominus  totius  Angliae,"  and  exercised  the 
royal  authority  in  his  master's  behalf.  When 
the  sovereign  was  at  home,  the  justiciar,  besides 
presiding  in  legal  business — the  amount  of  which 
was  enormous  in  a  country  like  England,  where 


120  TJie  Anglo-Norman  and 

the  privilege  of  appeal  to  the  supreme  court  was 
frequently  granted — acted  as  the  confidential 
minister  and  chief  of  the  executive.  The  Anglo- 
Norman  kings,  while  feudalism  was  still  danger- 
ous, avoided  placing  the  justiciarship  in  the  hands 
of  laymen  or  nobles.  Such  officials  could  not 
have  been  trusted  with  the  all-important  charge. 
They  chose  for  their  prime  ministers  Churchmen, 
usually  men  of  humble  fortunes,  whose  sole  claim 
to  their  position  rested  on  royal  favour.  Both 
as  ecclesiastics  and  as  "  new  men  "  the  justiciars 
felt  no  temptation  to  play  into  the  hands  of  the 
baronage,  and  kept  firm  to  their  allegiance  to 
the  king,  to  whom  they  owed  everything. 
William  II.,  the  most  unscrupulous  of  men,  found 
his  fitting  right-hand-man  in  the  rapacious 
Ranulf  Flambard.  Henry  I.'s  reorganization  of 
the  administration  was  carried  out  by  the  firm 
hand  of  Roger  of  Salisbury.  The  anarchy  of 
Stephen's  reign  is  marked  by  the  temporary  dis- 
appearance of  the  office — a  fit  sign  that  the  king's 
writ  had  ceased  to  run  throughout  his  realm. 
Henry  II.,  when  feudalism  had  made  its  last 
struggle  in  vain,  was  able  to  take  the  new  step 
of  nominating  laymen — even  laymen  of  rank — 
to  the  justiciarship.  His  baronial  nominees,  De 
Lucy  and  Glanvil,  did  not  belie  his  confidence. 
To  the  first  the  rapid  and  energetic  suppression 


Angevin  Administrative  System.        121 

of  the  rebellion  of  1173  was  due,  while  the  latter 
was  not  only  a  strong-handed  regent,  but  also 
the  author  of  our  first  English  constitutional 
treatise,  the  "De  Legibus  et  Consuetudinibus 
Angliae."  During  the  reig^ns  of  Richard  I.  and 
John,  and  in  the  early  years  of  Henry  III.,  the 
office  was  more  frequently  in  lay  than .  clerical 
hands.  Geoffrey  Fitz-Peter,  John's  great  justiciar, 
and  Hubert  de  Burgh,  the  noblest  figure  in  the 
first  decades  of  Henry's  reign,  give  us  a  new 
development  in  the  history  of  the  office,  appear- 
ing as  checks  on  their  masters'  power  rather 
than  his  mere  instruments.  This  aptly  marks 
the  fact,  that  the  irresponsible  exercise  of  the 
royal  p)ower  rather  than  feudal  anarchy  had 
become  the  gp-eat  danger  for  England,  so  that 
a  patriotic  minister  would  feel  more  concern  for 
the  constitution  than  for  his  master.  So  strong 
was  the  popular  feeling  in  their  favour,  that 
John  never  ventured  to  disgrace  Fitz-Peter, 
while  Henry's  attempt  to  oppress  De  Burgh  met 
with  the  strongest  resistance.  Hubert,  however, 
was  the  last  of  the  great  justiciars  ;  the  successor 
whom  the  king  appointed  to  him — Stephen  de 
•  Segrave — was  chosen  for  his  obedience  rather 
than  his  abilities,  and  was  hounded  out  of  office 
by  popular  clamours.  He  was  more  of  a  lawyer 
than  a  politician,  and  his  successors  continued 


122  The  Anglo- Norman  and 

to  develop  the  legal  rather  than  the  administrative 
side  of  their  functions.  By  the  reign  of  Edward 
I.  they  had  become  the  "  Lord  Chief  Justices  " 
whom  we  know  so  well,  and  their  political  im- 
portance had  passed  to  the  chancellors,  who 
were  now  the  first  ministers  of  the  crown. 

The  .    The  chancellor  had  originally  been  the  king's 

(hancilhr.        .  ,     ,     i  .     ,     ,  . 

private  secretary ;  seated  behmd  his  screen 
{cancella\  he  made  out  writs,  took  minutes,  and 
applied  the  royal  seal  to  documents.  Like  the 
justiciar,  he  was  at  first  almost  invariably  a 
Churchman,  one  of  the  king's  chaplains,  nor  was 
it  till  the  fourteenth  century  that  lay  chancellors 
appear  upon  the  scene.  Gradually  the  chancellor 
became  a  more  important  functionary ;  from 
being  charged  with  the  king's  correspondence, 
he  grew  to  have  a  considerable  share  in  settling 
what  that  correspondence  should  contain.  Becket, 
when  chancellor,  "  had  fifty  clerks  under  him, 
and  was  reckoned  second  from  the  king  in  the 
whole  realm."  "He  might  be  reckoned,"  says 
Dr.  Stubbs,  "  as  a  sort  of  secretary  of  state  for  all 
departments."  In  the  thirteenth  century  the 
chancellor  began  to  take  the  position  of  the 
justiciar  as  prime  minister,  and  his  disuse  of  his. 
own  old  functions  is  shown  by  the  fact  that 
Henry  HI.  first  of  all  English  kings,  kept  a 
"  secretarius,"  as  a  natural   consequence  of  his 


Angevin  Administrative  Systetn.         123 

chancellor  having  higher  matters  than  corre- 
spondence in  his  charge,  and  being  compelled  to 
abandon  the  care  of  details.  The  justiciar,  as 
we  said  before,  sank  into  a  purely  legal  official 
by  the  time  of  Edward  I. ;  but  it  was  well-nigh 
four  hundred  years  before  the  chancellor  suflfered 
the  same  fate ;  and  as  bearing  on  his  position, 
it  is  worth  while  to  remember  that  the  last 
clerical  chancellor  held  office  as  late  as  1625 
(John  Williams,  Bishop  of  Lincoln). 

The  third  of  the  great  offices  whose  gift  lay  Tfu 
in  the  hands  of  the  king  was  that  of  the  ^''"'""'' 
Treasurer,  who  had  charge  of  the  royal  hoard  at 
Winchester,  and  presided  over  a  stafif  of  officials 
charged  with  its  administration.  In  sittings  of 
the  Exchequer  Court,  he  was  considered  to  be 
even  more  directly  charged  than  the  other 
members  with  the  care  of  the  exact  accuracy 
and  due  observance  of  forms  at  the  board,  and 
he  was  thus  brought  into  closer  contact  with  the 
sheriffs  than  his  companions  in  the  committee. 

Besides  the  eight  officers  whose  names  we  Other 
have  detailed,  the  Curia  Regis  consisted  of  a 
number  of  minor  functionaries,  who,  according 
to  the  functions  which  they  happened  to  be 
exercising,  appear  as  "  barons  of  the  exchequer,** 
"justices,"  or,  if  they  were  ecclesiastics,  as 
"  king's  clerks," 


124  The  Anglo-Norman  and 

Functions  The  whole  body  of  the  Curia  Regis,  high 
clria  2ind  low  fulfilled  at  least  three  functions — con- 
^'Sif-  sultative,  fiscal,  and  judicial.  So  little  had  the 
different  parts  of  government  been  yet  differen- 
tiated, that  it  seemed  right  that  the  same  men 
should  act  as  the  king's  privy  council,  as  the 
commissioners  of  the  treasury,  and  as  the 
justices  of  the  highest  court  of  appeal  in  the 
realm.  To  realize  this  curious  fact  is  the  first 
difficulty  for  the  student  of  the  Anglo-Norman 
administrative  system.  The  exchequer  court 
and  the  privy  council  are  merely  the  same  men 
sitting  in  two  different  chambers,  to  deal  with 
two  different  subjects ;  and  similarly,  the  man 
who,  when  he  is  dealing  with  figures,  is  a  "  baron 
of  the  exchequer,"  becomes  a  justice  when  he 
deals  with  legal  questions.  From  this  one  body 
of  advisers,  administrators,  and  judges  we  may 
trace  the  development  of  institutions  which  now 
seem  as  far  apart  as  institutions  can  be — the 
ministry,  the  courts  of  law,  and  the  great 
government  offices  like  the  Treasury  or  the 
Foreign  office. 

The  Curia  Regis  followed  the  king  during 
his  presence  in  England,  moving  with  him,  and 
sitting  wherever  he  happened  to  be.  As  a  privy 
council  and  a  law  court  it  sat  as  his  movements 
dictated,  but  in  its  fiscal  character  there  was  a 


Angevin  Administrative  System.         125 

difference.  The  "  Court  of  Exchequer "  either 
from  the  first,  or  at  any  rate  from  a  very  early 
date,  fixed  itself  at  Westminster  to  hold  its 
great  Easter  and  Michaelmas  sessions.  There, 
no  doubt,  the  famous  chequered  table-cloth 
which  gave  the  court  its  name  had  first  been 
seen,  and  thither  came  the  sheriffs  \yith  their 
cumbrous  bags  of  silver  pence  to  render  their 
rents  to  the  king. 

Of  the  business  with  which  the  Curia  Regis 
was  conversant  when  it  sat  as  the  Court  of 
Exchequer  we  shall  have  to  speak  fully  when 
dealing  with  the  sheriff  and  the  royal  revenue. 
With  its  function  again  as  a  permanent  and 
handy  body  of  advisers,  always  at  the  king's 
side,  we  need  not  trouble  ourselves,  for  the  func- 
tions of  all  such  councils  are  much  the  same. 
But  of  the  judicial  aspect  of  the  Curia  Regis  Tfu 
a  short  account  is  necessary.  Before  it  Cdixnc^sysum 
firstly,  all  cases  between  the  king  and  his 
tenants-in-chief ;  secondly^  all  appeals  when  the 
parties  in  a  suit  imagined  that  the  popular 
courts  had  failed  to  do  them  justice  from  un- 
fairness or  impotence,  and  were  strong  or  rich 
enough  to  obtain  leave  to  appeal ;  thirdly,  special 
cases  called  directly  into  court  by  the  royal 
favour  without  having  been  previously  tried  in 
the  shire-court;   and,  lastly,  suits  which,  from 


126 


The  Anglo-Norman  and 


(l)  Itine- 
rant juS' 
tues. 


(2)  Court 
of  Kin^s 
Bench. 


(3)  CouH 
of  Ex- 
chequer, 


the  new  or  abnormal  character  of  the  questions 
involved,  had  no  precedent  by  which  they  could 
be  tried  before  the  lower  tribunals.  Such  were 
the  primitive  judicial  functions  of  the  Curia 
Regis,  but  ere  long  it  commenced  to  throw  out 
sub-committees  which  were  to  develop  into  new 
courts.  The  first  institution  evolved  was  that 
of  itinerant  justices.  Henry  I.  began  to  send 
out  members  of  his  Curia  Regis  to  visit  and 
hold  pleas  in  the  county  courts,  thus  relieving 
the  Curia  itself  of  some  of  the  cases  which  would 
otherwise  have  come  up  to  it.  Henry  did  this 
with  no  fixed  system  or  regularity,  but  his 
greater  grandson  stereotyped  the  custom,  and 
to  it  we  owe  our  existing  institution  of  justices 
of  assize.  It  was  Henry  H.  also,  who  chose 
out  and  fixed  at  Westminster  five  of  the 
members  of  the  Curia,  two  clerks  and  three 
laymen,  "  to  whom  he  ordered  the  complaints 
of  the  people  to  be  brought ;  reserving  for  him- 
self as  heretofore  the  harder  cases,  to  be  decided 
with  the  council  of  the  wise."  These  new  judges 
came  to  be  known  as  the  "Court  of  King's 
Bench,"  the  main  function  of  which  grew  to  be 
the  settlement  of  the  king's  pleas,  or  cases  in 
which  the  king  was  concerned.  Meanwhile  the 
Exchequer,  or  fiscal  session  of  the  Curia  Regis, 
had   also   assumed   the   secondary  aspect  of  a 


Angevin  Administrative  System.         127 

court  of  law,  dealing  with  revenue  cases,  and 
all  disputes  concerning  the  financial  side  of  the 
constitution.  Lastly,  by  a  clause  of  Magna 
Carta,  the  remaining  judicial  functions  of  the 
itinerant  Curia  Regis  were  taken  from  it  by 
the  article  which  stipulated  that  "  common  pleas 
should  not  follow  the  court,  but  be  held  in 
some   fixed    place."     This  leads    to   the   insti-  (4)  Court 

P     ,        r^  /.    ^  T^,  ,  .   ,    of  Common 

tution  of  the  Court  of  Common  Pleas,  which  puas. 
had  as  its  special  function  the  decision  of 
ordinary  cases,  where  two  subjects  were  the 
litigators,  and  the  crown  was  not  concerned. 
Thus  three  separate  courts  are  found  where 
in  the  early  Norman  days  but  one  universal 
judicial  and  fiscal  body  existed. 

This  short  sketch  of  the  higher  administra- 
tive machinery  of  England  ought  to  suffice  to 
show  how  extraordinarily  all  things  hinged  on 
the  personality  of  the  king.  The  Curia  Regis 
covered  all  the  spheres  of  government  by  its 
activity,  and  that  body  was  almost  exclusively 
of  the  king's  choosing ;  for  the  existence  of  the 
hereditary  ofllicial  element  of  the  great  officers 
of  the  household  in  it  counted  for  little. 

Over  the  administration  then,  the  king  had 
an  almost  absolute  control  in  normal  times. 
But  he  was  always  liable  to  the  occurrence  of 
extraordinary  circumstances,  which  would  drive 


sheriff. 


128  The  Anglo-Norman  and 

him  to  consult  the  Great  Council  of  the  realm, 
and  in  that  body  lay  the  sole  check  to  his 
power.  Luckily,  disputed  successions,  foreign 
wars,  and  the  need  for  extraordinary  taxation, 
sufficed  to  keep  the  traditional  importance  of 
the  Great  Council  alive,  and  prevented  the 
growth  of  absolute  monarchy. 
The  When  we  descend  to  the  details  of  adminis- 

tration in  twelfth-century  England,  we  soon  find 
that  the  whole  system  hinges  on  one  official. 
Into  whatever  branch  of  local  government  we 
inquire,  we  discover  ere  long,  that  we  are 
recapitulating  some  one  of  the  innumerable 
functions  of  the  sheriff.  An  account  of  his 
position,  and  of  his  relations  with  the  various 
institutions  in  shire  hundred  and  town,  gives 
an  almost  complete  picture  of  the  conduct  of 
affairs  under  the  Norman  and  early  Plantagenet 
kings.  It  is  the  sheriff  who  is  responsible  for 
everything ;  nothing  is  too  great  or  too  small 
for  his  attention.  It  is  equally  his  duty  to  go 
forth  to  war  at  the  head  of  the  armed  force 
of  the  county,  and  to  scrape  together  laborious 
shillings  in  petty  fines  for  non-attendance  at 
the  shire-moot  He  sits  month  by  month  in 
the  seat  of  judgment,  but  it  is  no  less  his  func- 
tion to  see  that  the  roof  of  a  royal  barn  in  his 
district  is  in  good  repair. 


Angevin  Administrative  Systetn.        129 

It  is,  accordingly,  in  the  highest  degree  neces- 
sary to  give  an  accurate  account  of  the  person, 
position,  and  duties  of  this  all-important  officer, 
the  intermediary  between  king  and  country  in 
well-nigh  every  matter  wherein  the  two  come 
into  contact. 

The  old  English  shire-reeve  was,  as  has  been  His  post- 

1  •  1  •  !«-•,,  '""*  before 

stated  in  an  earlier  essay,  a  royal  official  whose  the 
origin   goes  back   to  the   earliest  times.      He  ^^^. 
appears  even  in  the  laws  of  Ini.     For  centuries 
before  the  Conquest  he  had  been  accustomed 
to  act   for   the   king  in   financial   matters ;   to 
collect  for   him    the   dues   of   his  thegns,  the 
produce  of  his  royal  estates,  the  customs  of  the 
ports  which  lay  in  the  shire.     When  taxes  came 
into  being,  it  was  the  sheriff  who  had  to  get 
together  the   Danegeld  or  the  ship-money   of 
his  district.      Nor  was   this   all.      It   was   but 
natural  that  the  king's  fiscal  representative  should 
come  into  prominence  in  the  shire-court,  where 
the   settlement   of  money    matters   formed    so 
large  a  portion  of  the  agenda.      Accordingly 
the  shire-reeve  is  found   sitting  as  one  of  the 
three  presidents  of  the  shire-moot,  in  company 
with  the  two  greater  magnates,  ealdorman  and 
bishop,  whose  authority   was   exercised   in  the 
same  district.      As  early  as  the   legislation  of 
Athelstan  we  find  the  sheriff  given  a  yet  wider 

K 


130  The  Anglo-Norman  and 

sphere  of  action,  when  he  was  directed  to 
perform  a  duty  neither  fiscal  nor  judicial,  that 
of  "going  and  putting  under  surety  any  man 
who  is  untrue  to  all  people,"  that  is  of  exercising 
police  duties. 

When  the  English  ealdormanries  grew  larger 
and  larger  in  the  tenth  century,  till  they  came 
to  resemble  feudal  states  rather  than  mere 
administrative  divisions  of  the  kingdom,  it  must 
have  become  less  usual  to  see  the  ealdorman 
appear  in  person  at  every  meeting  of  the  shire- 
moot.  The  more  the  shires  in  his  sphere  of 
authority,- the  less  frequent  must  his  visits  have 
been.  By  the  reign  of  Edward  the  Confessor, 
they  must  have  grown  to  be  the  exception 
rather  than  the  rule.  Godwine,  for  example, 
with  eight  or  nine  shires  under  his  hand,  would 
have  found  his  life  a  burden  if  he  had  to  attend 
every  shire-moot  of  each  of  his  subject  districts. 
It  may  well  have  been  the  same  to  a  certain 
extent  with  the  bishop.  When  the  dioceses 
were  reconstituted  after  the  Danish  invasions, 
some  were  large  to  a  cumbersome  degree.  A 
prelate  whose  bishop-stool  was  fixed  at  Dor- 
chester on  the  Thames,  while  his  diocese 
stretched  up  to  the  Humberj  cannot  have  been 
a  very  regular  attendant  at  Leicestershire  or 
Huntingdonshire  courts.     With  the  sheriff,  how- 


Aft^ei'in  Administrative  System.         131 

ever,  it  was  different  He  was  the  one  president 
of  the  shire-moot  whose  presence  could  be  fore- 
seen with  certainty.  Naturally  then  it  was 
the  sheriff,  not  either  of  his  greater  associates, 
who  was  the  constituting  authority  of  the 
assembly.  Without  bishop  or  ealdorman  the 
moot  could  be  held,  but  the  sheriff's  presence 
was  obligatory  for  its  validity.  Already,  then, 
in  the  days  of  the  later  kings  of  the  house  of 
VVessex,  the  sheriff  was  not  without  his  impor- 
tance. Where  the  ealdorman  stands  to  represent 
the  tendency  to  disruption  in  the  loosely  com- 
pacted realm,  the  sheriff  stands  opposite  him 
to  represent  that  direct  royal  authority  which 
was  the  one  unifying  principle  in  England. 
Yet  the  tide  of  the  times  was  running  against 
him.  If  there  had  been  no  Norman  conquest, 
the  ealdormanries  would  probably  have  drifted 
into  quasi-feudal  states  of  a  continental  type 
in  which  the  direct  interference  of  the  king  in 
local  matters  would  have  ceased.  In  such  a 
state  of  things  the  sheriff  must  either  have  dis- 
appeared, or  have  become  the  officer  of  the  earl 
rather  than  of  the  king — have  figured,  in  short,  as 
"vice-comes"  in  a  real  sense, and  not  in  name  only. 

But  the  disruptive  tendencies  in  England  j/aw  of. 
were  roughly  checked  by  the  Conquest.  Whcn-J^'^^ 
he  was  firmly  seated  on  the  throne,  William  I.  9""*- 


132  The  Anglo-Norman  and 

completely  broke  up  the  system  of  the  great 
earldoms.  By  the  time  that  Domesday  Book 
was  compiled,  there  were  only  four  shires  in 
England  which  were  under  the  authority  of 
an  earl — Northumberland,  Shropshire,  and  the 
"palatine  earldoms"  of  Durham  and  Chester. 
In  the  rest  of  the  land  there  was  no  longer  any 
great  dignitary  to  stand  between  the  shire  and 
the  king's  direct  authority.  But  the  feudal 
danger  was  not  gone ;  it  had  only  changed  its 
shape.  The  royal  power,  if  not  imperilled  by 
high  officials  bearing  sway  over  groups  of  shires, 
had  yet  to  make  itself  supreme  over  the  new 
baronage.  The  French  and  Norman  adventurers, 
who  had  joined  as  partners  in  William's  great 
undertaking,  intended  to  preserve  as  much  local 
independence  as  they  could.  The  greatest  of 
them  were  only  prevented  by  the  scattered 
position  of  their  estates  from  becoming  as  for- 
midable as  the  old  ealdormen.  To  keep  them 
in  check  William  naturally  utilized  the  already 
existing  machinery  of  the  sheriffdom,  the  im- 
portance of  which  he  largely  increased.  In 
consequence  of  the  disappearance  of  the  earl, 
and  the  withdrawal  of  the  bishop  with  all  his 
ecclesiastical  pleas  to  his  own  reorganized 
spiritual  court,  the  sheriff  had  no  longer  any 
coadjutors  in  the  administration  of  the  district. 


Angevin  Administrative  System.        133 

He  absorbed  the  military  functions  of  the  earl, 
and  became  charged  with  the  duty  of  leading 
the  men  of  his  shire  to  war.  Moreover,  he  was 
now  the  sole  judicial  as  well  as  the  sole  financial 
official  of  the  district  Thus  he  was  made 
strong  enough  to  face  the  baronage.  William 
conferred  the  sheriffdoms  of  England  on  trusty 
followers,  drawn  for  the  most  part,  not  from  the 
higher  ranks  of  the  Norman  nobility,  but  from 
the  crowd  of  smaller  men  more  immediately 
dependent  on  himself.  In  a  few  cases  he  tried 
the  dangerous  experiment  of  conferring  the 
shrievalty  on  men  whose  landed  possessions 
were  large  enough  to  render  their  private  in- 
terests incompatible  with  their  position  as  royal 
officials.  In  some  instances  he  even  allowed 
son  to  succeed  father  as  sheriff — a  custom  the 
hazardous  nature  of  which  may  have  been  dis- 
guised by  the  fact  that  the  French  and  Norman 
"vicomtes,"  to  whom  the  English  sheriffs  were 
assimilated  in  name,  passed  their  office  down  in 
their  family.  If  the  shrievalty  had  universally 
become  hereditary  in  the  houses  of  local  mag- 
nates, it  would  have  constituted  a  power  only 
less  dangerous  than  that  of  the  old  earl.  But 
it  was  only  in  a  few  counties — in  Westmoreland, 
for  example — that  the  dignity  became  perma- 
nently transmissible.     In  most  shires  the  sheriff 


134  ^^  Anglo-Norman  and 

continued  to  be  a  royal  officer  appointed  and 
removed  at  pleasure.  A  strong  sovereign  like 
Henry  II.  could  at  one  blow  displace  all  the 
sheriffs  of  England,  and  hold  the  great  "  In- 
quest" of  1 1 70  to  investigate  their  past  conduct 
The  Regarding  the  sheriff,  then,  as  the  instrument 

f^^^i^  by  which  the  kingly  power  made  itself  felt  in 
matters  of  local  government,  let  us  inquire  into 
the  details  of  his  functions.  And  as  he  was 
/.  Fiscal,  originally  a  fiscal  officer,  it  is  natural  to  take  first 
into  consideration  his  responsibilities  in  money 
matters.  Of  these,  down  to  their  smallest 
details,  we  have  an  excellent  account  in  the 
lengthy  "  Dialogus  de  Scaccario,"  a  document  of 
the  reign  of  Henry  II.,  which  gives  invaluable 
information  as  regards  the  royal  revenue, 
(a)  Sufer-  The  primary  duty  of  the  shire-reeve  in  the 
VheToSl  earliest  times  had  been  to  do  for  the  king  what 
estates.  j^g  reeve  of  any  private  man  was  accustomed  to 
do  for  his  master — to  supervise  his  estates,  and 
collect  their  rents  and  dues.  This  naturally 
continued  to  form  part  of  the  sheriff's  functions 
in  Norman  times.  He  had  to  exercise  control 
over  the  bailiffs  of  all  the  royal  manors  in  his 
county,  to  receive  from  them  the  proceeds  of 
each  estate,  and  to  go  through  their  accounts. 
For  the  punctual  collection  of  the  sums  due  by 
tliem  he  was  responsible.     He  would  also  have 


Atigevin  Administrative  System.         135 

to  see  that  the  buildings  on  each  manor  were  in 
good  order,  and  the  stock  maintained  at  its 
proper  amount.  To  give  an  example  of  the 
minute  responsibilities  of  the  sheriff,  we  find — 
"Hugh  de  Bosco,  sheriff  of  Hants,  allowed 
£1  9J,  4/f.  from  his  accounts,  for  having  stocked 
the  king's  lands  of  Mienes  with  12  ox^n  at  3 J. 
each,  and  100  sheep  at  4//.  each  ; "  *  and  "  Thomas 
of  Cirencester,  sheriff  of  Somerset  and  Dorset, 
allowed  for  the  expense  of  42  quarters  of  wheat, 
75  quarters  of  oats,  and  5  quarters  of  beans,  used 
as  seed  on  the  manor  of  Camel."  With  the 
charge  of  the  royal  estates  the  sheriff  usually 
received  that  of  the  royal  castles  in  his  shire 
also.  And  just  as  he  was  responsible  for  keeping 
in  repair  a  farm-building,  so  was  he  responsible 
for  maintaining  a  fortress  in  a  defensible  state- 
It  is  unnecessary  to  point  out  the  immense 
importance  of  this  charge.  The  whole  character 
of  mediseval  warfare  was  settled  by  the  well- 
nigh  impregnable  strength  of  the  mediaeval 
fortress.  A  king  facing  an  unruly  baronage  had 
no  more  important  possession  than  his  castles, 
and  the  person  in  whose  charge  they  were  placed 
took  over  an  enormous  responsibility. 

With  the  custody  of   the    king's    territorial  W  ColUe- 
possessions  in  the  shire,  goes  logically  that  of  "yirw."  - 
*  Madox,  **  Hist  of  the  Exchequer,"  p.  643. 


136  The  Anglo-Norman  and 

his  claims  to  payment  from  the  towns  and 
burghs  in  royal  demesne,  that  is  of  all  which 
were  not  in  private  hands,  but  lay  directly  under 
the  king's  authority — far  the  larger  number  of 
the  populous  places  of  England.  The  "ferm" 
of  these  localities  was  in  theory  the  composition 
paid  by  each  in  return  for  not  having  to  support 
the  king  and  his  household  for  a  given  time. 
By  the  Conquest  the  "ferms"  of  the  different 
towns  were  well-known  definite  sums ;  but  it 
would  seem  that  their  collection  was  one  of  the 
sheriff's  richest  opportunities  for  peculation.  He 
appears  to  have  drawn  from  the  burgesses  not 
merely  the  amount  at  which  their  town  was 
assessed,  but  as  much  more  as  he  could  wring 
out  of  them,  all  the  surplus  going  to  his  own 
pocket.  Hence  the  first  effort  in  the  direc- 
tion of  municipal  independence  made  by  the 
English  burghs  was  the  attempt  to  gain  from 
the  king  permission  to  pay  him  their  "ferm" 
directly,  without  having  to  use  the  sheriff  as 
intermediary.  What  body  it  was  which,  by 
making  direct  application  to  the  king,  suc- 
ceeded in  depriving  the  sheriff  of  his  right  to 
collect  the  "firma  burgi,"  we  shall  endeavour 
to  decide  in  a  later  paragraph,  when  we  come 
to  deal  with  those  parts  of  the  administrative 
system  of  the  twelfth  century  which  grew  up 


Angevin  Administrative  System.        137 

from   below   rather  than   were    imposed    from 
above. 

Returning  to  the  sheriflTs  fiscal  duties,  we  (7)  Collec- 
must  note  that  his  next  great  responsibility  ^j^^f„ij 
was  for  the  collection  of  the  tax  which,  down '''"'  ^«'^- 
to  Henry  II.,  was  known  as  Danegeld,  and 
which,  after  that  king's  reign,  although  nominally 
abolished,  was  practically  retained  as  an  occa- 
sional impost  under  the  title  of  "  Carucage." 
Its  character  in  Anglo  -  Norman  times  was 
that  of  a  land-tax,  assessed  at  a  given  suni 
— originally  two,  afterwards  six  shillings — on 
each  hide  of  land.  But  so  many  estates  were 
wholly  or  partially  freed  from  Danegeld  by 
various  pleas  and  exemptions,  that  its  incidence 
was  most  arbitrary  and  unequal.  The  lands, 
for  example,  of  all  royal  ministers  and  officials, 
of  the  sheriffs  and  the  constables,  no  less  than 
of  the  barons  of  the  exchequer  and  the  justices, 
were  wholly  untaxed.  Many  monasteries,  too, 
were  either  entirely  exempt,  or  had  secured  the 
privilege  that  all  their  estates,  however  exten- 
sive, should  be  reckoned  as  a  single  hide,  and 
pay  as  such  only.  The  unprivileged  majority, 
remote  from  court  favour  and  consequent 
exemptions,  held  the  tax  in  special  detestation ; 
and  a  promise  to  abolish  it  was  always  the 
most  popular  item  in  a  programme  of  reform 


138  The  Anglo-Norman  and 

which  a  king  could  put  forth.  When  "  Caru- 
cage"  replaced  Danegeld,  these  inequalities 
were  removed.  Every  caruca,  or  hundred  acres, 
no  matter  to  whom  it  belonged,  was  now 
charged  with  the  payment  of  a  uniform  quota 
of  taxation.  The  monasteries  protested,  but 
when  Richard  I.  denied  them  access  to  any 
court  of  justice  till  the  tax  should  be  paid,  they 
were  driven  into  a  speedy  submission. 

The  "Ferm"  and  "Danegeld"  of  which  we 
have  spoken  represent  that  part  of  the  royal 
revenue  which  proceeded  from  what  may  be 
strictly  and  accurately  called  taxation ;  but  the 
sheriff  was  also  charged  with  the  collection  of 
the  proceeds  of  the  law  courts,  and  of  feudal 
dues  and  incidents. 
(8)  Collec-  It  may  be  suspected  that  the  large  profits 
'j^iMi  which  prompt  justice  brought  to  the  royal 
^"'^'  exchequer  in  the  way  of  fines,  account  for 
much  of  the  zeal  with  which  the  Anglo- 
Norman  kings  enforced  the  action  of  the 
national  courts.  These  profits  fell  into  three 
divisions.  Firstly,  in  all  cases  tried  in  the 
shire-courts  wherein  a  fine  was  involved,  one- 
third  of  that  fine  went  by  primitive  English 
custom  to  the  king,  just  as  another  share  accrued 
to  the  earl ;  and  thus  the  first  item  in  the 
sheriff's  Judicial  budget  was  the  "  third  penny" 


Angevin  Administrative  Systttn.        139 

of  the  shire-moot  fines.  Secondly,  there  were 
certain  offences,  the  trial  of  which  was  more 
especially  in  the  king's  hands,  and  any  fines 
that  accrued  from  these  went  wholly,  and  not 
partially,  to  the  exchequer.  These  "  pleas  of  the 
cro\vn  "  were  tried  by  the  sheriff  in  the  capacity 
of  a  royal  "Justice."  The  most  important  of 
these  offences  was  "  murder."  That  name 
originally  meant  both  the  secret  slaying  itself, 
and  the  fine  of  £^6,  paid  by  the  hundred  in 
which  the  assassination  had  taken  place,  in  case 
of  its  being  impossible  to  prove  that  the  victim 
was  an  Englishman.  But  what  had  originally 
been  a  precaution  on  the  part  of  William  I. 
against  the  slaying  of  his  Norman  followers,  soon 
came  to  be  the  ordinary  method  of  procedure 
in  all  cases  of  secret  homicide.  The  reason 
was  that  within  a  century  the  English  and 
Norman  races  had  become  so  hof>elessIy  mixed, 
that  it  was  impossible  to  speak  with  certainty 
about  the  pureness  of  the  blood  of  any  free- 
man. The  crown,  unwilling  to  lose  its  fines, 
decided  that  every  murdered  man  should  count 
as  a  Norman  unless  it  could  be  absolutely 
proved  that  he  had  not  a  drop  of  un-English 
blood  in  his  veins  ;  and  the  persons  of  whom 
this  could  be  proved  were  soon  so  few  that 
"murder"  passed   into  being  the  name  for  all 


140  The  Anglo-Norman  and 

cases  of  assassination.    In  the  time  of  Richard  I. 
the  pleas  of  the  crown  were  taken  from  the  sheriff, 
and  given   to   a  new  officer  called   "  coroner," 
chosen  in  the  county  court  by  the  suitors  there 
assembled,  and  so  a  national  rather  than  a  royal 
functionary.      Gradually   losing   all    his   duties 
save  that  of  inquest  in  cases   of  murder,  the 
coroner  drifted  into  his  present  modest  position. 
Thirdly,  there  was  yet  another  way  in  which 
the  county  court  and  also  the   hundred   court 
contributed    to    the    king's    revenue.       Fines 
were  due  from  all  who  failed  to  attend  them, 
and   these  were   carefully  gathered   in  by  the 
sheriff,    and    formed    an    appreciable    item    in 
the   accounts  which  he  had  to  present  before 
the  Exchequer  at  his  Easter  and  Michaelmas 
visits. 
(»)  CoUec'       From  the  branches  of  the  sheriff's  accounts 
'uud£       which  were  concerned  with  judicial  profits,  we 
dues.         turn  to  the  feudal  dues.     The  Anglo-Norman 
kings,   while    careful   enough   to   deprive  their 
vassals  of  the  privileges  which  made  feudalism 
profitable  to  the  subject,  were  strict  in  enforcing 
those  of  its  usages  which  benefited  the  royal 
exchequer.      First  came  the  three   legal  aids, 
which  the  king  might  raise  on  the  occasions  of 
his  eldest  son's  knighthood,  his  eldest  daughter's 
marriage,  and  his  own  captivity  in  war.     Next 


Angevin  Administrative  System.        141 

we  have  reliefs — the  fines  paid  by  a  successor 
on  taking  over  the  lands  of  a  deceased  relative. 
William  11.  had  made  them  a  profitable  means 
of  oppression,  but  by  the  time  of  Henry  II.  the 
sums  payable  on  a  barony  or  knight's  fee  had 
become  settled  at  ;^  100  and  £$  respectively. 
Wardship  was  perhaps  the  next  most  irnportant 
feudal  incident.  The  power  over  the  lands  and 
persons  of  heirs  who  were  under  age  could 
easily  be  turned  to  account  by  an  oppressive 
king ;  the  former  by  reckless  exhaustion  of 
the  stock  and  soil  of  the  estate,  the  latter  by 
using  the  right  of  giving  away  the  minor  in 
marriage,  and  receiving  large  sums  from  those 
who  gained  by  the  transaction.  The  sheriff, 
entitled  as  the  royal  representative  to  keep  an 
eye  on  all  wards  and  the  persons  appointed  as 
their  guardians  by  the  king,  was  doubtless  able 
to  make  his  profit  from  them.  King  John  and 
his  officials  were  specially  noted  for  their  abuse 
of  wardship,  a  fact  which  has  secured  a  con- 
siderable space  in  Magna  Carta  for  clauses 
relating  to  its  limitation.  There  were  also 
other  minor  sources  of  the  king's  feudal 
revenue,  among  which  may  be  mentioned 
escheats, — the  reversions  of  land  to  him  from 
the  extinction  of  a  family  or  the  treason  of  a 
tenant, — fees  for  permission  to  transfer  estates 


142  The  Anglo-Norman  and 

in  other  ways  than  that  of  strict  hereditary- 
succession,  and  fines  exacted  for  the  violations 
of  forest  law — e.g.  for  " essartSy'  or  illegal  clear- 
ings in  woods,  and  for  non-attendance  at  the 
forest  courts.  In  the  reign  of  Henry  II.  a  new 
item  was  added  to  the  feudal  profits  of  the 
crown  by  the  institution  of  "  scutage  in  com- 
mutation of  service."  This  was  a  composition 
raised  in  lieu  of  the  forty  days'  personal  service 
in  the  royal  army,  to  which  every  holder  of  a 
knight's  fee  was  liable  by  the  conditions  of 
his  tenure.  The  knights  readily  accepted  the 
scheme,  while  the  king  found  himself  able  to 
raise  with  the  funds  of  the  scutage  a  permanent 
force  of  mercenaries,  who  formed  a  much  more 
efficient  army  than  the  untrained  feudal  levies. 
The  amount  of  this  composition  was  almost 
invariably  twenty  shillings  on  each  knight's  fee. 
The  sheriff     For  all  these  branches  of  the  royal  revenue 

before  the       ,  ,       .«.  .,  ,  ,t,     .  , 

Exchequer  the  sheriff  was  responsible.  1  wice  a  year  he 
Court,  appeared  before  the  Exchequer  Court  and  went 
through  the  whole  of  his  accounts  with  the 
barons  of  the  exchequer.  The  payments  were 
made  in  huge  masses  of  silver  pence — the  only 
coins  current  in  the  kingdom — which  were  paid 
over  by  weight,  not  by  tale,  that  the  king  might 
not  be  cheated  by  clipped  pieces.  Each  sherifTs 
payment  of  pence  was  also  carefully  tested  with 


Angevin  Administrative  System.         143 

the  crucible  ;  samples  being  melted  down,  to  see 
that  the  king  might  not,  while  receiving  good 
weight,  be  deceived  with  base  metal.  The 
accounts  were  kept  by  the  very  primitive 
method  of  tallies,  which  were  notched  laths  of 
wood,  on  which  the  sums  were  indicated  by  the 
cuts.  They  were  split  down  the  middle,  and 
one  of  the  halves  was  carried  away  by  the 
sheriff,  while  the  other  remained  with  the 
exchequer.  It  was  useless  to  tamper  with 
the  signs  on  one  half  while  the  other  was  in 
existence,  and  thus  there  was  little  danger  of 
quarrels  over  past  accounts. 

We  have  now  to  pass  to  the  sheriffs  next  //.  MUi- 
class  of  functions — his  military  capacities.  The  *"'^' 
kings  of  England  never  committed  the  defence 
of  the  realm  exclusively  to  the  feudal  levies. 
The  old  theory  of  ihcfyrd — the  nation  in  arms 
— was  consistently  kept  up  ;  and  now  that  there 
was  no  one  corresponding  to  the  old  ealdorman 
to  take  the  command  of  the  armed  men  of  the 
shire,  that  function  fell  (unless  the  king 
appointed  some  special  commander  for  the, 
occasion)  into  the  hands  of  the  sheriff.  In  the 
case  of  a  prolonged  and  distant  expedition 
that  official  would  not,  of  course,  have  been 
long  spared  from  the  routine  of  his  home 
duties.    But  in  the  case   of  sudden   levies  to 


144  The  Anglo-Norman  and 

meet  unexpected  dangers,  the  exercitus  scirarum 
would  be  raised  and  led  by  their  sheriffs.  Such 
an  occasion  was  the  mustering  of  the  army 
which  defeated  the  Scots  at  the  Battle  of  the 
Standard,  when  the  sheriffs  of  Yorkshire  took 
command.  Similar  examples  are  found  in  the 
suppression  of  the  feudal  revolt  of  1173,  and 
in  the  siege  of  Bedford,  held  by  Fawkes  de 
Breaut^'s  followers,  in  1224.  In  the  fourteenth 
century,  however,  the  sheriff's  authority  in  the 
province  of  war  was  practically  superseded  by 
the  issue  of  "commissions  of  array,"  which 
set  other  persons  to  muster  men  in  the  king's 
name.  But  the  formal  abrogation  of  the 
sheriff's  military  power  did  not  take  place  till 
Queen  Mary  appointed  a  lord-lieutenant  for 
each  English  county  in  1556. 

We  have  now  dealt  with  the  deliberative  and 
judicial  bodies  which  assisted  the  king  in  the 
supervision  of  the  administration  of  England, 
and  with  the  rv,yal  officials  through  whom  the 
details  of  the  administration  were  carried  out. 
All  these  personages  were  but  portions  of  a 
simple  but  efficacious  system  for  bringing  the 
king's  will  to  bear  on  the  nation.  They  are 
all  royal  and  not  national  in  character,  and 
are  in  no  sense  representative.  In  the  higher 
branches  of  administration  it  appeared  as  if  that 


Angevin  Administrative  System.        145 

share  in  the  government  of  the  realm  which  in  the 
days  before  the  Norman  conquest  had  fallen  to 
the  Witenagemot,  an  assembly  which  undoubt- 
edly represented  the  nation,  had  been  entirely 
transferred  into  the  hands  of  the  sovereign.  But 
when  we  descend  to  the  lower  administrative 
machinery  of  the  land,  we  find  that  the  state 
of  things  is  entirely  diflferenL  Representative 
institutions,  far  from  disappearing,  come  more 
and  more  to  the  front,  and  the  elective  method 
which  was  one  day  to  give  England  her  House 
of  Commons  makes  its  first  essays  in  local 
administration  and  local  finance,  as  a  prepara- 
tion for  its  extension  in  the  thirteenth  century 
to  the  broader  and  weightier  affairs  of  the 
whole  country.  This  movement  is  a  growth 
from  below,  strongly  contrasting  with  the  work- 
ing of  the  higher  branches  of  government,  where 
everything  was  unrepresentative,  and  rested 
ultimately  on  the  mere  will  of  the  sovereign. 

On  all  local  institutions  in  England  feudalism  Lccaiad- 
was  superimposed  ;   but  the  new  arrangements  ^^"''^"" 
did  not  replace  those  which  previously  prevailed, 
but  rather  coexisted  alongside  of  them.     Thus  in 
the  manor  the  lord  held  his  Court  Customary  (1)  Afano- 
to  deal   with   his   tenants   in   accordance   with  ^ru. 
feudal  usage,  and  his  Court  Leet  (if  he  possessed 
the  grant  of  sac  and   soc)   to  try  their  petty 


146  The  Anglo-Norman  and 

criminal  offences.     But  side  by  side  with  these 
survived    the  Court    Baron,  which   represented 
the  old  assembly  of  the  freemen  of  the  township 
gathered   in   their   moot   to   pass   bye-laws  for 
themselves,  and  transact  their  own  local  business. 
Moreover,   the   king,   being    interested    in    the 
hundred-moot    and    shire-moot,    by   reason    of 
the   profits   which    he    drew   from    them,    was 
naturally  determined  to  keep  the  courts  of  the 
lords   of  the   manor  in   due  subordination.     It 
was  his  object  to  secure  that  as  little  litigation 
as  possible  should  be  carried  on  before  the  lord's 
representative,  and  as  much  as  possible  before 
his  own,  the  sheriff  and  the  itinerant  justices. 
Hence  it  came  that  the  manor  courts  remained 
comparatively   unimportant,   and   all   affairs   of 
weight   came   either   before   the   courts   of  the 
hundred  and  shire,  the  free  assemblies  of  the 
people  of  the  smaller  or  larger  district,  who  met 
as  common  subjects  of  the  crown,  not  as  common 
tenants  of  any   feudal  superior,  or  before   the 
itinerant  justices,  who  were  purely  royal  officers. 
(2)  The      The  hundred  court  need  detain  us  only  while 
cmru        w^  mention  that  twice  a  year  it  was  the  scene 
of  the   "View  of  Frankpledge,"  when  all  the 
inhabitants  of  the  hundred  had  to  present  them- 
selves before  the  sheriff,  to  prove  that  they  were 
duly  enrolled   in   a   "tithing"   of    ten   persons 


Angevin  Administrative  Systan.         147 

mutually  responsible  for  each  other's  good  con- 
duct. The  fact  that  the  supervision  of  local 
police  machinery,  save  in  a  few  exceptional  cases 
where  a  lord  enjoyed  special  privileges,  was 
placed  in  the  hands  of  the  king's  officer,  to 
the  exclusion  of  feudal  influences,  is  a  point 
to  be  clearly  marked  when  the  outlines  of  the 
English  constitution  are  discussed. 

The  shire  court  deserves  more  notice.     It  is  (3)  7S^ 
remarkable   as   the   first   body   in    England    in  ''*"*''''^'- 
which  a  system  of  representation  prevailed.     In  {a)itde- 
the  twelfth  century  it  was  no  longer  attended  ^'''fA  '^' 

'  °  prtnapU 

by  the  whole  population  of  the  county,  but  \iyofrfpre- 
landholders  and  their  stewards,  together  with 
the  reeve  and  four  men  from  each  township 
as  representatives  of  their  fellows.  Being  thus 
already  composed  in  great  part  of  delegates,  it 
was  easy  and  natural  for  the  shire-moot  to  carry 
the  principle  of  representation  a  step  further,  by 
choosing  committees  to  represent  itself.  Such 
a  delegated  body,  for  example,  were  the  "  twelve 
legal  men"  or  "knights"  of  the  Constitutions  of 
Clarendon,  who  were  to  decide  whether  dis- 
puted lands  belonged  to  the  Church  or  not; 
the  four  knights  who  were  to  begin  proceedings 
at  the  judicial  iter  of  1 194;  and — far  more  im- 
portant— the  "  four  discreet  men  of  the  county," 
who  were  to  meet  John  at  Oxford  in  12 13,  "to 


148  The  Anglo-Norman  and 

talk  with  him  concerning  the  affairs  of  the  king- 
dom." This  last  should  be  specially  noted  as 
the  first  attempt  to  make  the  Great  Council 
representative  rather  than  feudal.  For  if  to 
that  assembly  there  once  came  men  who  were 
not  tenants-in-chief,  but  representatives  of  each 
county,  the  whole  character  of  the  supreme 
deliberative  body  of  the  realm  would  have  to 
be  altered.  It  would  be  a  prototype  of  the 
modern  representative  parliament,  rather  than 
a  development  of  the  feudal  institution  which 
figured  in  twelfth-century  history.  It  is  pro- 
bable, indeed,  that  these  "  four  discreet  men " 
of  12 1 3  were  chosen  by  the  sheriff  rather  than 
by  the  full  county-court ;  but  their  importance 
lies  in  their  representative  function,  not  in  the 
method  of  their  election,  and  in  the  following 
essay  we  shall  show  how  the  idea  thus  sketched 
out  by  John's  writ  became  the  instrument  of 
popular,  not  of  royal  influence.  When,  indeed, 
elected  representatives  were  officiating  in  town- 
ship, hundred,  and  shire  for  other  purposes — 
for  example,  in  assessing  taxes  like  the  "  Saladin 
tithe"  of  1 1 88 — it  was  not  to  be  supposed  that 
they  would  not  in  course  of  time  rise  to  fulfil 
the  highest  function  of  all,  that  of  representing 
the  shire  at  the  Great  Council. 

Turning  to  the  judicial  aspect  of  the  shire-> 


Angevin  Administrative  System.        149 

moot,  we  find  that  during  the  twelfth  and  (fi)  its 
thirteenth  centuries  its  independent  action  was^j^J.,. 
gradually  being  superseded  by  that  of  the 
king's  itinerant  justices.  But  this  did  not  mean 
that  royal  authority  was  simply  absorbing  the 
last  privileges  of  the  English  freeman.  The 
crown  of  its  own  accord  took  the  nation  into 
partnership  in  this  matter.  We  have  already 
seen  how  it  placed  the  holding  of  the  "pleas 
of  the  crown  "  in  the  hands  of  a  coroner  chosen 
by  the  shire,  in  1194.  The  ordinary  meeting 
of  the  county  court,  indeed,  grew  unimportant 
in  comparison  with  those  extraordinary  meetings 
in  which  the  itinerant  justices  appeared.  But 
when  the  justices  presided  therein,  the  accused 
persons  whom  they  were  to  try  were  "  presented  " 
by  a  jury  of  twelve  knights  or  legal  men  from 
each  hundred,  who  were  in  00  way  chosen  by 
royal  influence,  but  were  strictly  representatives 
of  the  district.  Moreover,  when  the  ordeals  and 
judicial  combats  which  survived  far  into  the 
twelfth  century  finally  fell  into  disuse,  their 
place  was  filled  by  the  finding  of  another  kind 
of  jury,  who  decided  on  the  truth  or  falsehood 
of  the  facts  which  had  formed  the  basis  of  the 
"  presentment"  made  by  the  first  jury.  In  these 
two  bodies — the  one  whose  duty  was  present- 
ment, and  the  other  whose  duty  was  inquest — 


150  The  Anglo-Norman  and 

we  have  the  origin  of  the  modern  grand  jury 
and  petty  jury.  The  first  secured  that  no  man 
should  come  before  the  justices  unless  a  body 
which  ultimately  represented  the  shire  should 
hold  that  there  was  a  primd  facie  case  against 
him,  while  the  second  decided  whether  that  case 
was  borne  out  by  the  facts.  Thus  there  was  an 
ample  check  on  the  irresponsibility  of  the  royal 
judges,  and  oppression  was  rendered  difficult  in 
ordinary  times.  It  was  only  by  the  terrorism 
of  a  tyrant  that  the  juries  and  the  bodies  which 
chose  them  could  be  so  overawed  as  to  make 
their  functions  in  the  courts  formal  and  nugatory. 
Such  oppression  would  not  stand  alone,  but 
•would  be  the  manifestation  in  one  province  of 
administration  of  a  general  misrule  which  would 
render  the  ruler  who  employed  it  unbearable. 
Bad  justice,  in  short,  would  be  the  forerunner 
of  insurrection,  wherein  feudal  and  national 
elements  would  unite,  to  the  confounding  of  the 
oppressor.  Such  a  sequence  may  be  found  in 
the  series  of  events  which  led  up  to  Magna  Carta- 
Tiie  towns.  To  Complete  the  account  of  the  local  adminis- 
tration of  England  in  the  twelfth  century,  we  must 
pass  on  to  the  towns,  of  which  we  have  avoided 
much  previous  mention,  in  order  to  deal  with 
their  position  in  a  single  and  separate  section.  In 
the  days  immediately  after  the  Norman  conquest 


Angevin  Administrative  System.        151 

the  English  towns  were  simply  townships,  or 
clusters  of  townships,  which  differed  from  the 
humblest  villages  only  in  two  respects.  Firstly,  TJieir 
they  had  obtained  the  right  of  having  a  fixed  ^^*  ' 
"  Firma  Burgi,"  and  were  thus  aware  of  the 
maximum  demand  which  the  sheriff  could 
legally  make  on  them  for  that  particular  item 
of  the  royal  revenue.  But  for  other  exactions, 
being  considered  to  be  in  royal  demesne  land, 
unless  they  were  formally  in  the  hands  of  one 
of  the  great  tenants-in-chief,  they  were  still 
liable  to  the  sheriflTs  oppression.  Secondly, 
for  judicial  purposes  the  towns  had  been  "  made 
equal  to  hundreds;"  that  is,  their  inhabitants  did 
not  appear  at  the  moot  of  the  hundred  in  which 
they  were  locally  situate,  but  had  a  "  port-moot " 
of  their  own,  which  was  equal  in  status  to  a 
hundred-moot  To  endeavour  to  get  rid  of  the 
sheriffs  tax-collecting  visits,  and  to  turn  him  out 
of  the  port-moot,  were  the  objects  of  all  towns, 
and  attempts  to  secure  these  ends  are  the  first 
marks  of  progress  toward  municipal  libeity  in 
England.  To  be  able  to  treat  with  the  king, 
and  to  guarantee  to  him  the  superior  profits 
which  alone  could  induce  him  to  grant  the  town 
the  boon  it  craved,  some  responsible  body  had 
to  be  found.  As  to  the  identity  of  that  body, 
the  most  various  views  have  been  held,  but  it 


152  The  Anglo- Nonna7i  and 

is  safest  to  hold  with  Dr.  Stubbs  that  the 
organization  which  treated  with  the  king  com- 
prised the  fully  qualified  citizens  of  the  place, 
the  "tenants  in  burgage"  of  the  crown,  who 
held  lands  and  houses  within  the  borough,  and 
formed  the  port-moot  This  body,  if  it  bound 
itself  by  association  into  a  definite  unity,  would 
be  called  a  "  communa,"  and  the  right  to  form  a 
"communa"  is,  therefore,  the  first  which  a  town 
would  crave.  Throughout  the  twelfth  century 
the  various  centres  of  population  in  England 
obtained  charters  making  them  responsible  for 
their  own  ferm,  and  free  from  certain  specified 
forms  of  exaction  by  the  sheriff.  As  early  as 
1 100,  London  obtained  another  grant  in  the 
province  of  judicature.  This  was  the  charter 
of  Henry  I.,  which  practically  gave  the  city 
authority  over  the  whole  shire  of  Middlesex,  by 
conceding  to  it  the  right  to  elect  two  sheriffs,  who 
were  to  be  responsible  for  all  within  the  county 
boundary,  just  as  were  the  sheriffs  of  other 
shires.  Of  course,  when  the  representative  of 
the  crown  became  elective,  the  oppressive  charac- 
teristics of  his  office  gradually  disappeared.  But 
in  this  matter  London  was  far  ahead  of  all  other 
towns.  The  very  inferior  privilege  of  exemption 
from  the  ordinary  meetings  of  the  county  court 
was  not  obtained  by  other  places  for  a  century. 


Angci'tn  Administrative  System.         153 

and  freedom  from  those  more  important  county 
courts  where  the  itinerant  justices  appeared,  was 
never  won  at  all,  save  by  those  cities  which  in 
far  later  times  came  to  be  reckoned  as  "  counties 
in  themselves." 

The  English  borough  constitutions  are  of  a  Their  con 
most  composite  and  confusing  character.  This  J'*'"'""'^' 
results  from  the  interfusion  of  the  systems  of 
the  old  township,  the  communa,  and  the  guild. 
Of  the  two  first  we  have  spoken  ;  the  last 
requires  a  few  words.  Guilds  with  social  or 
religious  purposes  have  already  been  mentioned 
as  characterizing  the  period  before  the  Conquest 
But  it  is  the  Guild  Merchant,  or  association  for 
trade  purposes  of  the  citizens  of  the  town,  with 
which  we  have  now  to  deal.  All  fully  privileged 
inhabitants  of  the  town  being  members  of  the 
guild,  its  personality  was  at  first  practically  the 
same  as  that  of  the  town  itself,  so  that  a  charter 
to  the  guild  was  much  the  same  as  a  charter  to 
the  "communa"  of  the  place.  Richard  I.,  for 
example,  heads  his  charter  to  Winchester  as 
granted  "to  the  men  of  Winchester  in  their 
MercJiant  Guild"  instead  of  to  the  citizens.  The 
organization  of  the  guild  was  that  of  brethren 
electing  aldermen,  and  from  the  early  identifica- 
tion of  the  guild  with  the  town,  comes  the  fact 
that  the  name  of  alderman  is  now  found  as  that 


154  The  Anglo-Norman  and 

of  a  municipal  dignitary,  though  the  first  bearers 
of  the  title  were  but  the  chiefs  of  a  trades  union. 
For  such,  in  fact,  was  the  original  meaning  of 
the  guild  merchant.  In  the  thirteenth  century 
the  guild  became  so  much  the  shape  in  which 
the  town's  identity  was  imagined  to  lie,  that  it 
obtained  permission  to  make  its  own  bye-laws 
binding  on  all  the  community.  But  presently  as 
the  guild  merchant  grew  exclusive, a  class  arose, — 
mainly  from  immigrant  villeins  from  the  shires, — 
who  were  not  included  in  it,  and  between  the  privi- 
leged and  the  unprivileged  a  bitter  strife  grew  up. 

The  alderman  therefore,  was  the  representative 
of  the  guild  ;  the  mayor,  on  the  other  hand,  was 
the  representative  of  the  "communa"  of  the 
place ;  for  the  last  and  crowning  privilege  of 
a  town  constitution  was  that  its  "  communa " 
should  be  "  concessa"  i.e.  not  a  mere  private 
association,  but  a  body  made  legally  recogniz- 
able, with  the  privilege  of  choosing  a  mayor 
as  its  formal  head  and  representative.  The 
town  councillor,  on  the  other  hand,  has  an  older 
pedigree,  representing  the  old  organization  of 
the  township  with  its  leet-jury,  before  communa 
or  guild  had  been  thought  of. 

The  development  of  the  constitutions  of  the 
various  English  towns  was  most  irregular.  In 
the   twelfth    century   every    different    stage   of 


Angevin  Administrative  System.         155 

immunity  from  the  sheriff's  interference,  and 
every  form  of  judicial  independence,  was  con- 
temporaneously existent  London  had  a  mayor 
and  communa  when  many  other  places  had 
barely  compounded  with  the  king  for  their 
"  ferm,"  and  all  the  intermediate  degrees  between 
those  two  points  could  be  illustrated.  But  by 
the  reign  of  John  even  the  least  privileged 
place  had  at  any  rate  acquired  a  personality  and 
legal  status,  if  nothing  more ;  and  thus  it  was 
possible  for  the  English  towns  to  take  that 
important  place  in  the  politics  of  the  realm 
which  they  assume  after  the  reign  of  Henry  III., 
a  place  which  as  mere  townships  they  would 
never  have  occupied. 

Having  never  felt  the  evils  of  feudalism,  but  Opposition 
as  having  fully  experienced  the  disadvantages ^^^^^ 
of  the  strong  hand  of  the  royal  official,*  the'^'^"^'** 
towns  had  their  own  particular  bent  and  poli- 
tical  notions.      These  tended   towards   opposi- 
tion to  the  crown,  so  soon  as  it  was  clear  that 
the  strength  of  the  crown  was  no  longer  needed 
to    prevent    the    chronic    outbreak    of    feudal 
anarchy.     The  last  throes  of  that  struggle  had 
been  seen  in  the  rising  of  1174.     It  is  from  that 

♦  We  should  except  from  this  general  statement  towns 
like  Leicester  or  St.  Alban's,  which  were  not  in  royal 
demesne,  but  were  subject  to  a  lord,  lay  or  spiritual 


156  Tlie  Anglo-Norman  and 

date,  then,  that  we  may  vaguely  trace  the  desire 
to  curb  the  royal  power  as  arising  in  the  boroughs. 
Naturally,  therefore,  they  take  sides  with  the 
baronage  in  the  reign  of  John,  and  their  parti- 
cipation in  the  struggle  against  tyranny  is 
marked  by  the  name  of  the  mayor  of  London, 
placed  half-way  down  the  list  of  the  great 
twenty-five  who  undertook  the  enforcement 
of  the  instrument  of  English  liberties. 
Summary  A  few  words  suffice  to  sum  up  the  general 
course  of  English  constitutional  history  in  the 
times  of  the  Anglo-Norman  and  earlier  Planta- 
genet  kings.  We  have  investigated  the  leading 
characteristics  of  a  period  whose  main  feature 
is  the  development  of  administrative  organiza- 
tion. We  have  seen  how,  while  feudal  separa- 
tion reigned  over  the  greater  part  of  Europe, 
one  state  at  least  was  guided  into  a  centralized 
and  bureaucratic  autocracy,  in  which  all  things 
ultimately  depended  on  the  will  of  the  king. 
Yet  from  the  very  moment  at  which  the  crown 
won  its  last  victory  over  feudalism,  another 
movement  begins  to  make  itself  felt  As  long 
as  anarchy  had  been  impending,  any  firm  central 
government — even  an  oppressive  one — would 
be  received  with  acquiescence  by  the  nation. 
But  when  the  danger  was  over,  the  heavy  yoke 
of    the  Anglo-Norman    administrative    system 


Angevin  Administrative  System.        157 

began  to  seem  more  burdensome.  When  the 
working  of  its  machinery  came  under  the  control 
of  a  versatile  but  callous  and  reckless  tyrant, 
who  was  ready  to  utilize  all  the  opportunities 
for  oppression  which  it  afforded,  baronage  and 
people  alike  rose  in  revolt  But  the  revolt  is 
orderly :  the  baronage  do  not  demand  a  return 
to  feudal  anarchy  ;  the  people  do  not  commence 
a  Jacquerie,  The  one  take  their  stand,  not  on 
local  independence,  but  on  their  legal  position 
as  advisers  of  the  crown  ;  the  other — borrowing 
a  term  from  the  borough  constitution — speak 
of  themselves  as  the  "  communa  "  of  the  whole 
realm ;  the  orderly  association  of  all  freemen, 
not  the  tumultuous  assembly  of  insurgents. 
Order  and  legality,  however  oppressive  they 
had  been  in  the  government,  had  so  impressed 
themselves  on  the  nation,  that  even  its  revolt 
was  legal  and  orderly.  It  formulates  its 
demands  as  the  accurate  definition  of  already 
existing  rights,  not  as  the  grant  of  fresh  privi- 
leges ;  and  all  English  reforms  ever  after  have 
taken  this  same  shape,  as  assertions  of  old 
customs,  not  as  new  departures  towards  ideal 
principles.  Magna  Carta  aims  at  the  practical 
redress  of  visible  wrongs,  not  at  the  establish- 
ment of  a  limited  monarchy  or  any  other 
theoretical  end.     This  was  its  strength  and  its 


158     Anglo-Norman  Administrative  System. 

weakness.  Its  strength  lay  in  the  clear  and 
business-like  way  in  which  the  means  are  adapted 
to  the  end,  showing  that  its  framers  knew 
exactly  what  they  wanted.  Its  weakness  is 
seen  by  the  fact  that  it  provides  no  permanent 
machinery  for  keeping  the  conduct  of  affairs 
in  the  same  line  in  which  they  had  been  set, 
and  by  its  neglect  to  guard  against  the  recru- 
descence of  royal  tyranny  in  new  forms.  There- 
fore the  struggle  was  not  ended  by  the  charter, 
but  had  to  be  fought  out  again  fifty  years  later. 
It  was  not  till  the  permanent  and  regular  check 
of  a  representative  parliament  replaced  the 
inadequate  check  of  a  feudal  "Great  Council," 
and  the  irregular  ultima  ratio  of  armed  revolt, 
that  the  overgrown  power  of  the  king,  backed 
by  the  machinery  of  the  Anglo-Norman  admin- 
istrative system,  was  reduced  to  a  fair  balance 
in  the  equipoise  of  the  constitution. 


ESSAY  IV. 

PARLIAMENT. 

The  government  of  England  has  never  been  Relations 

,.,,,.  TT  .     between  the 

theoretically  a  despotism.      However   great   \r\  king  and 

actual  practice  the  king's  power  may  have  been,  ^clJ^f 

there  was  always  a  central  assembly,  whether  ^'M' 

Magna 

called  the  Witenagemot  or  the  Great  Council,  the  Carta. 
members   of  which  were  never   dependent   for 
their  right  upon  the  mere  personal  will  of  the 
sovereign,  and  whose  counsel  and  consent  were 
theoretically  necessary  to  all  legislation. 

It  has  been  pointed  out  in  a  former  essay 
how  the  Great  Council  became  feudalized,  and 
the  king  compelled  to  find  his  strength  outside 
the  feudal  council.  The  result  was  that  the 
king  assumed  the  position  of  protector  of  the 
people,  and  sought  to  upset  the  baronage  by 
fostering  a  central  power  based  upon  the  popular 
institutions  of  the   country,   strengthened   and 


l6o  Parliament. 

drawn  into  intimate  contact  with  the  royal 
government  The  measures  of  Henry  I.  and 
Henry  H. — the  establishment  of  itinerant  justices, 
the  creation  of  a  new  class  of  official  baronage, 
the  destruction  of  the  great  feudal  liberties,  the 
development  of  the  jury  system — all  helped  to 
make  the  royal  power  a  pure  despotism,  of 
which  the  whole  people  had  become  the  willing 
instruments.  But  the  danger  of  this  position 
was  apparent  on  Henry  U.'s  death.  The  king 
was  now  so  powerful,  both  inside  the  kingdom 
and  also  in  the  consideration  of  foreign  nations, 
that  it  was  easy  for  an  unpatriotic  sovereign 
to  play  the  tyrant.  The  frequent  absences  of 
Richard  I.  left  the  working  and  consolidation 
of  his  institutions  in  the  hands  of  ministers 
whose  primary  object  was  to  please  their  absent 
master ;  and  at  John's  accession  we  find  how 
the  misuse  of  the  royal  power  challenged  the 
nation  to  display  all  its  capacities  of  resistance 
and,  finally,  of  unity.  The  situation  which  gave 
an  opportunity  for  this  was  entirely  of  John's 
own  making.  The  power  of  the  feudal  baronage 
had  been  broken.  The  royal  authority  was 
popular  in  England,  and  associated  with  tradi- 
tions of  success.  The  Church  had  supplied  the 
king  with  his  most  useful  ministers.  There  was 
no  disposition  among  the  various  elements  of 


Parliament.  i6i 

society  to  combine  together ;  and  all  the  profes- 
sional skill  in  administration  was   enlisted   on 
the  side  of  the  king.     Sixteen  years  of  John's  National 
rule  threw  all   these  various  elements  into  an  J^  "^ 

irresistible  national  combination.     The   loss   of*^^""' 

jrohn. 
Normandy  equally  deprived  the  baronage  and 

the  king  of  external  aid,  set  the  king  face  to 
face  with  the  people,  and  raised  the  two  im- 
portant questions  of  foreign  favourites  and  of 
foreign  service.  The  surrender  of  the  kingdom 
to  the  pope  forced  the  clergy  into  a  definite 
attitude.  Hitherto  they  had  been  the  opponents 
of  oppression  in  all  forms.  Now  that  the  alli- 
ance of  their  two  masters  had  cut  off  the  pos- 
sibility of  appealing  from  the  nearer  to  the  more 
remote,  they  had  to  choose  between  two  con- 
flicting duties — that  which  they  owed  to  the 
pope,  and  that  which  was  due  to  their  country. 
To  these  two  causes  was  added  the  generally 
oppressive  working  of  the  system  which  Henry 
H.  had  placed  in  the  hands  of  the  king.  The 
people  now  began  to  regard  the  king  as  their 
greatest  foe  instead  of  their  protector.  In  the 
face  of  a  common  danger  all  classes  drew 
gradually  together.  The  king  had  alienated 
even  the  official  baronage,  the  trained  ad- 
ministrators of  the  country,  whose  duty  it  was 
to  guard  the  traditions  of  government.     Under 

M 


1 62  Parliament. 


their  leadership   these   traditions  were  reduced 

to  writing   and    forced   upon   the  king.      The 

Impor-       result  was  Magna  Carta,   purporting  to  be  no- 

'mo^     thing  new,  but  merely  the  declaration  of  old  law. 

Carta.       Some  of  its  provisions  had  been  for  generations 

among  the  recognized  customs  of  the  country ; 

others  had  grown  recently  out  of  the  exigencies 

of  the  time.     It  was  useful  to  have  a  definite 

statement  of  the  customs  of  the  land  to  which  all 

classes  could  appeal.     Such  a  code  is  the  mark 

of  transition  from  the  stage  of  organization  to 

that  of  law.     But  the  chief  importance  of  the 

charter  does  not  consist  in  this.    It  consists  rather 

in  the  witness  which  that  document  bears  to  the 

rearrangement  of  the  political  forces  of  which  it 

was  the  result     This  was  the  work  of  the  period 

which  runs  from  the  granting  of  the  charter  in 

121 5    to  its   final   confirmation   by   Edward    I. 

in  1297. 

TJufeudal     No  constitutional    advance  was   possible   so 

^becomes      ^*^"S  ^^  ^^  efforts  of  the  popular  leaders  could 

national,    j^g  neutralized  by  the  action  of  a  royal  council 

composed  of  foreigners  and  favourites.     The  loss 

of  Normandy  and  the  feeling  of  national  unity 

which  had  found  expression  in  the  charter,  gave 

redoubled    meaning  to  the  outcry  against  the 

employment  of   strangers   in   the  government. 

The  king,  on  his  side,  was  equally  determined 


Parliament.  l6j 

to  revenge  himself  for  the  desertion  of  the 
official  baronage  by  forming  a  body  whose 
foreign  origin  should  render  them  entirely  de- 
pendent on  himself.  It  was  the  question  of 
personal  as  opposed  to  national  rule  which  was 
in  debate,  and  it  is  because  the  barons  do  not 
at  first  understand  this  that  the  struggle  lasts 
so  long.  They  treated  the  whole  matter  as 
one  between  themselves  and  the  royal  favour- 
ites |who  stood  between  them  and  the  offices 
which  they  regarded  as  rightfully  theirs.  For 
the  personal  rule  of  the  king  they  only  substi- 
tuted an  oligarchical  government  composed  of 
the  most  important  members  of  their  own  body. 
Their  internal  quarrels  increased  the  confusion 
of  the  country.  The  machinery  of  government 
became  an  elaborate  system  of  committees, 
composed  for  the  most  part  of  the  same  series 
of  members.  But  this  was  not  all.  Magna  Carta 
had  drawn  a  distinction  between  the  greater 
and  lesser  tenants-in-chief,  who  were  all  equally 
entitled  to  be  consulted  in  matters  of  taxation. 
There  was  considerable  risk  that  the  most  power- 
ful section  of  the  baronage  would  recur  ,to  the 
old  feudal,  anti-national  position.  There  was 
also  a  danger  that  the  remainder  of  the  tenants- 
in-chief  would  form  themselves  into  a  caste.  In 
this  state  of  things  it  was  more  than  probable 


164  Parliament. 


that  the  struggle  for  power  would  end  in  a 
mere  scramble  for  booty,  and  that  the  charter 
would  thus  have  increased  the  division  between 
classes,  instead  of  drawing'them  closer  together 
into  a  national  bond.  That  such  was  not  the 
result  was  mainly  due  to  the  activity  of  the 
knights  in  the  county  courts,  and  to  the  oppor- 
tune advent  of  the  friars,  whose  self-sacrificing 
work  tended  in  no  mean  degree  to  modify  the 
selfish  feelings  which  were  fostered  by  the  state 
of  the  political  world. 
Formation  It  was  by  the  formation  of  a  party  which 
w^^^'^  could  claim  the  support  of  both  the  lesser 
f-af-iy.  tenants-in-chief  and  the  friars,  that  the  solu- 
tion of  the  constitutional  question  was  worked 
out.  The  inadequacy  of  the  constitution  as 
arranged  by  Magna  Carta  could  no  longer  be 
concealed.  Henry  merely  used  the  lesser  tenants- 
jn-chief  in  order  to  recover  his  lost  prerogatives 
from  the  hands  of  his  self-imposed  ministry ; 
but  the  power,  when  regained,  was  used,  not  for 
the  benefit  of  his  supporters,  but  to  promote  the 
return  of  the  foreign  kinsmen  and  the  inter- 
ference of  the  pope.  In  the  three  years,  1261- 
1264,  the  real  solution  of  the  difficulty  was 
discovered.  That  solution  was  the  outcome 
of  a  popular  movement  whose  causes  may  be 
traced   most  definitely  within  these  three  years. 


Parliament.  165 

In  the  first  place,  there  was  a  section  of  the 
oligarchical  party  whose  members,  though  im- 
pelled partly  by  ambition,  had  in  some  degree 
the  welfare  of  the  kingdom  seriously  at  heart. 
Such  men  must  have  begun  to  understand  that 
the  only  way  of  preventing  the  plunder  of  the 
people,  either  by  king  or  barons,  would  be  to 
give  them  a  position  inside  the  central  organiza- 
tion of  the  state.  McM"eover,  the  pressure  exer- 
cised on  the  people  by  the  union  of  pope  and 
king  had  begun  to  cause  the  people  themselves 
to  take  active  measures  in  their  own  behalf. 
The  movement  took  outward  expression  in  a 
number  of  rough  rhymes,  both  in  Latin  and 
English,  which  were  soon  scattered  broadcast 
over  the  country.  Thus  there  had  been  found 
pens  to  formulate  the  popular  complaints ; 
there  were  only  wanting  brains  and  hands  to 
organize  and  enforce  them.  It  was  as  yet 
early  to  hope  for  these  within  the  body  of 
the  people.  But  now,  as  ever  at  a  crisis,  there 
were  members  of  the  baronage  ready  to  espouse 
the  popular  cause.  The  conduct  of  the  king 
rendered  necessary  the  employment  of  force. 
Henry  used  the  aid  of  the  pope  to  absolve 
him  from  all  pledges,  and  employed  the 
credit  of  the  country  in  the  pursuit  of  purely 
personal  aggrandizement      The  popular  party 


1 66  Parliament. 


Policy  of    came  together  under  the  leadership  of  Simon 
Montfort.   de  Montfort,  and  the  battle  of  Lewes,  in  May, 

1264,  left  De  Montfort   practically  dictator  of 
the   kingdom.      From   May,   1264,   to  August, 

1265,  he  was  the  first  man  in  England;  and 
in  that  period  he  had  succeeded  in  finding  the 
method  in  which  the  constitutional  question 
could  be  answered.  Earl  Simon's  supporters 
were  drawn  from  the  ranks  of  the  clergy,  the 
knightly  class  throughout  the  country,  and  the 
commercial  classes  of  the  towns,  whose  trade 
had  been  ruined  by  the  king's  exactions  at  a 
moment  when  they  were  growing  in  organiza- 
tion and  in  wealth.  The  assembly  to  which  he 
appealed  for  help  was  one  composed  of  these 
elements.  The  higher  clergy  had  been  accus- 
tomed to  attend  the  national  assembly  from 
time  immemorial.  On  several  occasions  of 
late  representatives  had  been  brought  up  from 
the  shire  courts.  But  no  king  had  yet  thought 
of  including  the  towns  in  the  Great  Council. 
No  doubt  the  immediate  reason  for  the  sum- 
mons of  the  boroughs  was  the  dearth  of  the 
baronial  following  on  Simon's  side,  and  the 
strenuous  support  which  the  townsfolk  had 
given  him.  The  occasion  however  found  them 
fully  prepared  for  the  honour  thrust  upon  them, 
since    the  methods  of   local  government  had 


Parliament.  167 

familiarized  Englishmen  with  the  two  ideas 
of  representation  and  election.  Such  was  the 
origin  of  the  assembly,  which  foreshadowed 
the  perfected  Parliament  of  the  three  estates. 

But  for  Earl  Simon  the  complete  solution 
was  not  possible.  He  had  fought  as  the  head 
of  a  section  both  of  the  people  and  of  his 
own  class,  but  the  inevitable  break-up  of  a 
party  founded  on  the  twofold  and  generally 
incompatible  basis  of  private  interest  and  pub- 
lic utility  did  not  necessarily  mean  that  the 
movement  had  been  without  result  The  vic- 
tory lay  with  the  royal  party,  but  only  remained 
with  it  permanently  because  the  representa- 
tive of  royalty  in  the  future  himself  stepped 
forward  as  the  exponent  of  those  ideas  which 
had  been  embodied  in  the  popular  movement. 
When,  in  1295,  Edward  summoned  the  Vds- jiu  Model 
liament  which  became  the  model  for  all  „,^^ 
future  national  assemblies  entitled  to  that  "95* 
name,  and  when  in  1297,  his  last  attempts 
at  arbitrary  power  gave  way  in  the  presence 
of  the  organized  national  force  which  he 
had  been  so  instrumental  in  moulding  into 
shape,  the  lesson  of  the  last  eighty  years 
had  been  learnt ;  the  rule  of  feudalism  in 
any  form  whatsoever  was  at  an  end.  The 
Confirmatio   Cartarum   was   but   the   interpre- 


i68 


Parliament. 


Growth 


tation  of  the  central  article  of  Magna  Carta, 
forced  on  the  king  by  a  growing  and  vigorous 
nation. 

In  order  to  understand  the  full  significance 

fJe'es7£.  °^  *^^  ^^^^®  ^^'^^  *^^  constitution  had  reached 
in  1295,  it  will  be  necessary  to  examine 
individually  the  several  portions,  or  as  they 
were  technically  called,  Estates,  of  which  the 
Parliament  was  composed.  According  to  the 
mediaeval  theory,  these  were  three :  (i)  the 
spiritual  estate ;  (2)  the  baronage ;  and  (3) 
the  commons.  The  assembly,  so  composed,  was 
called  together  in  strict  accordance  with  defi- 
nite rule ;  and  it  is  because  the  forms  observed 
in  1295  were  those  which  ultimately  became 
stereotyped  upon  the  constitution,  that  we  are 
justified  in  considering  the  assembly  of  that 
year  as  the  first  normal  Parliament. 

The  first  or  spiritual  estate,  which  comprised 
the  whole  body  of  the  clergy,  may  be  divided 
into  two :  (l)  the  lords  spiritual ;  (2)  the  lower 
clergy. 

The  lords  spiritual  included  the  bishops, 
abbots,  some  few  priors,  and  the  heads  of  two 
or  three  religious  orders.  The  original  qualifica- 
tion of  the  spiritualty  to  take  part  in  national 
assemblies  had  been  founded,  like  that  of  all 
members  of  the  Witenagemot,  on  their  wisdom,' 


I.  7^ 

spiritual 
estate. 


(I)  The 

lords 

s^ritual. 


Parliament.  169 


But  after  the  Norman  conquest,  unlike  the 
temporal  baronage,  they  had  merely  added  the 
claim  of  tenure  without  impairing  the  original 
title  by  which  they  had  been  called.  At  a 
moment  when  tenure  inclined  to  be  the  basis  of 
all  political  claims,  the  greater  members  of  this 
hierarchy  were  the  possessors  of  large  baronies. 
They  sat  in  the  Great  Council  of  the  realm,  side 
by  side  with  the  great  barons.  Their  superior 
learning  made  them  the  most  indispensable 
members  of  that  body.  To  all  outward  ap- 
pearance they  were  barons,  and  a  very  formidable 
class  of  barons. 

But  notwithstanding  the  importance  and 
numbers  of  the  spiritual  lords,  there  were  con- 
ditions which  rendered  it  far  easier  for  the 
king  to  limit  both  the  number  and  the  power 
of  the  spiritualty  than  that  of  the  temporalty. 
The  sees  of  bishops  had  never  in  England 
become  hereditary.  Abbots  and  priors  were 
usually  glad  to  escape  the  burden  of  attendance 
at  the  Great  Council.  It  was  always,  there- 
fore, possible  for  the  king  to  send  writs  of 
summons  only  to  those  upon  whom  he  could 
depend. 

The  results  of  this  were  seen  when  the  as- 
sembly, which  had  been  founded  on  a  feudal  or 
a  class  basis,  gave  way  to  one  which  brought 


1 70  Parliament. 


the  whole  nation  face  to  face  with  the  sovereign. 
All  the  bishops  and  the  baronial  abbots  were  still 
included  among  the  members  whose  presence 
the  king  especially  desired.  The  jealousy  of 
the  rest  of  the  clergy  on  behalf  of  clerical  im- 
munities, and  the  double  relation  in  which  they 
stood  towards  king  and  pope,  led  them  to  ignore 
the  numerous  and  persistent  efforts  of  Edward  I. 
and  his  successors  to  give  them  a  voice  in  the 
government  of  the  land,  and  to  meet,  as  an 
estate  by  themselves,  outside  the  national  as- 
sembly. 
(2)  General  We  have  seen  that  the  bishops  and  higher 
^clarn^*^'  clergy  enjoyed  their  baronial  tenure  in  common 
with  those  of  the  laity  who  were  summoned  to 
the  national  council.  Nevertheless,  they  found 
themselves  far  more  in  harmony  with  the  meaner 
brethren  of  their  order  than  with  the  great 
barons  with  whom  they  were  thrown.  The 
whole  body  of  the  clergy  was  trained  to  common 
action  in  synods  and  ecclesiastical  councils. 
Such  councils  were  frequent,  and  contained  a 
complete  organization  of  the  whole  spiritual 
body,  both  prelates  and  cathedral  chapters, 
archdeacons  and  parish  priests.  Moreover,  not 
only  had  the  clergy  their  separate  courts,  but  in 
the  acceptance  and  use  of  the  canon  law  they 
were  amenable  to  an  entirely  different  code  and 


Parliament.  1 7 1 

standard  of  judgment.  The  sole  point  of  political 
or  constitutional  contact  which  remained  to  any 
portion  of  the  clergy  with  the  laity,  was  now  found 
in  the  baronies  of  the  prelates  and  the  abbots. 
So  long  as  taxation  fell  upon  the  land  alone,  the 
bishops  were  forced  into  union  with  the  temporal 
members  of  the  central  council.  But  when  taxa- 
tion was  extended  so  as  to  include  the  spiritual 
revenue  obtained  from  tithes  and  ofTerings,  the 
various  ranks  of  the  clergy  were  drawn  together 
by  an  interest  common  to  themselves  apart  from 
the  laity. 

In  matters  of  taxation  it  had  been  common 
for  the  king's  officers  to  treat  from  time  to  time 
with  the  clergy  in  their  ecclesiastical  assemblies. 
But  the  more  general  character  which  taxation 
had  now  assumed,  necessitated  a  more  general 
machinery  of  collection  ;  and  this  was  found  in 
the  summoning  of  the  Convocations,  begun  by 
Stephen  Langton  in  1225,  but  not  completed  in 
form  until  1283.  By  the  final  regulations  the 
archbishop  of  each  province  issued  summonses 
to  his  senior  suffragan,  empowering  him  to  col- 
lect on  a  certain  day,  at  a  certain  place,  all  the 
bishops,  abbots,  priors,  heads  of  religious  houses, 
deans  of  cathedrals  and  collegiate  churches,  and 
all  archdeacons  in  person  throughout  the  pro- 
vince, and  at  the  same  time  to  direct  that  there 


1/2  *  Parliament. 


should  be  chosen  in  each  diocesan  synod  two 
proctors  to  represent  the  clergy  of  the  diocese, 
and  in  each  cathedral  and  collegiate  chapter  one 
proctor  to  act  on  its  behalf. 
Represm-  In  early  times  the  organization  of  the  Church 
the  clergy,  had  led  the  way  for  that  of  the  state.  Ever 
since  Magna  Carta,  however,  the  two  had  ad- 
vanced together.  Now  that  Edward  I.  desired 
to  define  the  relations  between  the  several  estates 
of  the  realm,  he  sought  to  unite  the  two  pro- 
vinces in  one  body.  This  was  to  substitute  for 
two  spiritual  assemblies,  one  temporal  represen- 
tation of  the  spiritual  estate,  and  thus  to  transfer 
to  the  national  council  the  temporal  powers 
which  had  hitherto  been  wielded  by  a  purely 
spiritual  assembly.  With  this  object  in  view, 
after  several  preliminary  attempts  at  securing 
a  partial  representation  of  the  clergy,  Edward 
finally,  in  1295,  formulated  a  complete  temporal 
representation  of  the  spiritual  estate.  By  a 
clause  in  the  general  writ  to  the  clergy,  known 
from  its  opening  word  as  the  "  praemunientes  " 
clause,*  the  king  directs  the  bishops  to  pre- 
monish  the  clergy  to  appear  with  him  in  the 
Parliament  in  the  following  way :  (i)  The  deans 
and  priors  of  cathedrals  and  the  archdeacons 
in  person  ;  (2)  one  proctor  as  the  representative 
1  Stubbs,  "  Select  Charters,"  p.  484. 


Parliament.  173 

of  each  cathedral  chapter ;  (3)  two  proctors  as 
representatives  of  the  clergy  of  each  diocese. 
From  the  very  first,  however,  the  clergy  showed 
great  reluctance  to  obey  this  summons.  The 
old  feeling  of  the  value  and  importance  of 
clerical  immunity  from  lay  control  still  existed. 
For  nearly  thirty  years,  from  13 14  to  1340,  a 
separate  letter  was  addressed  to  the  two  arch- 
bishops at  the  summons  of  each  Parliament, 
admonishing  them  to  compel  the  attendance  of 
the  clerical  representatives.  But,  as  far  as  the 
king's  object  was  concerned,  this  extra  summons 
had  no  effect  The  summonses  of  the  arch- 
bishops to  Convocation  were  obeyed :  the  sum- 
monses under  the  "  praemunientes  "  clause  were 
a  mere  matter  of  form,  and  the  only  result  was 
that  another  session  of  the  clerical  Convocations 
was  held  under  their  usual  form,  which  dis- 
charged their  accustomed  business  of  voting  a 
free  gift  for  the  royal  needs.  The  crown  in  the 
end  accepted  its  defeat,  and  though  to  this  day 
the  praemunientes  clause  is  inserted  in  the  parlia- 
mentary writs  of  summons  to  the  bishops,  no 
further  pressure  ever  has  been  put  upon  the 
clergy  to  bring  them  into  the  assembly  of  the 
estates. 

The  qualifications  by  which  a  temporal  peer  //.  Estate 
acquired  the  right  to  sit  in   Parliament  wcre^^     " 


174  Parliament. 


Quaiifi.  three  in  number:  (i)  tenure  by  barony;  (2) 
^pe^  "^  receipt  of  a  special  writ  of  summons ;  (3)  crea- 
tion by  patent 
{i)  Tenure.  The  Great  Council  of  the  Norman  kings  had 
been  composed  of  all  tenants-in-chief  of  the 
crown.  It  was  not  long  however  before  a  dis- 
tinction arose  in  that  body.  Those  of  its  mem- 
bers who  were  the  possessors  of  a  large  number 
of  knights'  fees  were  especially  dignified  with  the 
title  of  barons ;  while  the  holders  of  a  single 
knight's  fee,  the  obligations  of  which  were  dis- 
charged by  the  personal  attendance  of  the  holder, 
had  to  rest  content  with  the  simple  appellation 
of  knight,  which  they  shared  in  common  with 
the  whole  body  of  tenants-in-chief  and  of  knightly 
landowners  who  held  of  other  lords.  An  attempt 
(2)  Sum-  has  been  made  to  show  that  this  distinction 
mons.  existed  from  the  first ;  but  as  we  have  to  note 
so  often  in  English  history,  the  practical  differ- 
ence preceded  the  legal  recognition  of  its  ex- 
istence. This  difference  is  found  as  early  as  the 
charter  of  Henry  I.  By  the  reign  of  Henry  II. 
it  is  clearly  marked.  But  its  final  recogni- 
tion is  established  in  the  celebrated  clause  of 
Magna  Carta  (§  14),  which  prescribes  the  mode 
of  summons  to  the  Great  Council — "  summoneri 
faciemus  archiepiscopos,  episcopos,  abbates,  co- 
mites,  et  majores  barones,  sigillatim  per  litteras 


Parliament.  175 


nostras ;  et  praeterea  faciemus  summoneri  in 
general!,  per  vicecomites  et  ballivos  nostros, 
omnes  illos  qui  de  nobis  tenent  in  capite."  The 
difference  thus  definitely  expressed  was  shown 
in  more  ways  than  one.  The  barons,  who  were 
entitled  to  a  special  summons,  were  wont  to 
deal  in  all  money  matters  direct  with  the  royal 
exchequer,  instead  of  being  merely  handed  over 
to  the  tender  mercies  of  a  royal  official  in  the 
person  of  the  sheriff,  whose  transactions  were 
directed  in  accordance  with  certain  definite  rules. 
Moreover,  the  greater  baron  came  to  a  military 
levy  at  the  head  of  all  his  tenants,  whereas  his 
lesser  brother-in-arms  arrayed  himself  with  the 
local  forces  under  the  guidance  of  the  sheriff. 
These  differences  were  all  the  growth  of  custom, 
and  would  scarcely  of  themselves  have  organized 
the  whole  feudal  array  into  two  entirely  in- 
dependent bodies  or  classes  of  men.  3ut  the 
separation  thus  begun  was  very  conclusively 
marked  by  the  article  of  Magna  Carta,  to  which 
allusion  has  been  made  above. 

Thus  there  was  now  added  by  law,  as  well  as 
custom,  to  the  old  qualification  of  tenure,  the 
new  one  of  summons.  Nor  is  it  long  before 
we  find  that  this  summons  is  in  some  cases, 
especially  in  those  of  the  baronial  members  of 
the  royal  council,  sufficient  qualification  of  itself 


1/6  Parliament. 


for  appearance  in  Parliament.  One  great  object 
of  Edward  I.  was  to  stamp  out  as  far  as  possible 
the  importance  which  the  feudal  idea  of  tenure 
exercised  in  determining  the  political  life  of  the 
country.  It  is  in  relation  to  this  well-known 
feature  of  his  policy  that  he  has  been  styled  the 
creator  of  the  House  of  Lords,  as  much  as  he  is 
generally  acknowledged  to  be  the  creator  of  the 
House  of  Commons. 

Nor  did  Edward's  innovations  cease  here. 
These  special  writs  of  summons  were  issued 
fresh  for  each  Parliament :  they  were  only  avail- 
able for  that  individual  assembly,  and  could  not 
of  themselves  "express  or  found  a  permanent 
right."  It  was  natural,  however,  that  they  should 
generally  be  sent  to  the  same  persons,  namely, 
to  those  whom  it  would  be  impolitic  to  omit. 
Edward's  plan  of  procedure  did  much  to  en- 
courage and  to  stereotype  this  system,  which 
served  to  mark  off  the  greater  barons  still  more 
distinctly  from  the  general  throng  of  the  tenants- 
in-chief. 
(3)  Paient.  The  creation  of  a  barony  by  letters  patent  is 
a  later  method.  At  first  used  only  in  the  case 
of  a  few  earldoms,  it  was  some  time  before  it 
was  extended  so  as  to  apply  to  the  lower  rank 
of  nobility.  The  first  instance  of  its  use  is  in 
1387,  when  Sir  John  Bcauchamp,  of  Holt,  was 


Parliament.  i  "jy 

created  Lord  Beauchamp,  Baron  of  Kidder- 
minster, in  hereditary  possession  for  himself 
and  his  heirs  male.  This  specification  of  the 
manner  in  which  the  barony  should  descend 
was  what  especially  marked  off  this  new  method 
of  creation  from  the  old  ;  for  a  barony,  the  claim 
of  which  to  representation  in  Parliament  came 
from  reception  of  a  special  writ,  often  descended 
to  heiresses.  This  form  of  creation  became  the 
usual  method  of  bestowing  a  right  to  a  seat  in 
the  House  of  Lords  in  the  time  of  Henry  VL 
The  position  thus  accorded  to  the  new  barons 
could  not  well  be  denied  to  the  older  members, 
whose  only  claim  had  hitherto  been  founded  on 
the  regular  reception  of  a  writ  of  summons. 

Helped  by  the  employment  of  one  or  other  Grffwtk  of 
of  these  methods,  the  greater  barons  g^SiduaWy  ij^^^^j 
and  silently  acquired  a  community  of  interest '^ 'V' "''*''' 
which   welded   them   into  a   permanent    body,  rea/m. 
The  council  of  feudal  barons  became  the  House 
of  Lords.     Not  that  the  royal  right  of  summons 
was  ever  surrendered  ;   it  merely  assumed  the 
shape  of  a  permanent  attribute  of  a  particular 
body  of  men.     The  problem  that  remained  to 
be  worked  out  was  simply  one  of  giving  legal 
form  to  what  had  already  been  accomplished  in 
fact.     Such   legal   recognition  may  be   said  to 
have  begun  in  1322,  when  the  earls  and  bsron.s 

N 


178  Parliament. 

as  peers  of  the  realm,  passed  sentence  upon  the 
Despencers.  The  position  which  they  assumed 
on  that  occasion  was  again  asserted  in  1331, 
when  the  same  body  passed  sentence  upon 
Mortimer,  protesting  at  the  same  time  that  they 
were  not  bound  to  sit  in  judgment  upon  "  others 
than  their  equals."  This  was  no  new  power 
that  the  barons  were  assuming.  The  duties  of 
a  high  court  of  justice  had  belonged  to  the 
Great  Council  of  the  realm,  and  the  barons  had 
assembled  too  often  in  that  council  to  merge 
at  a  moment's  notice  in  the  Parliament  of  the 
whole  nation,  the  organization  and  the  powers 
which  they  had  hitherto  enjoyed  apart.  Nor, 
as  it  happened,  was  such  a  surrender  in  the 
least  degree  necessary.  When  the  greater  barons 
were  reinforced  in  Westminster  Hall  by  repre- 
sentatives of  the  shires  and  boroughs,  it  is  not 
likely  that  the  various  estates  ever  voted  to- 
gether. At  the  best,  the  different  estates  occu- 
pied different  portions  of  the  same  hall.  And 
ere  the  old  privileges  of  the  feudal  regime  had 
quite  disappeared  before  the  encroachments  of 
the  popular  representatives,  an  important  event 
had  happened.  Soon  after  the  accession  of 
Edward  III.  the  lords  and  commons  had  de- 
finitely divided  off  from  each  other  into  two 
separate  assemblies.     This  prevented  the  neces- 


Parliament.  179 

sity  of  any  surrender  on  the  part  of  the  lords 
of  any  power  or  privilege  which  they  had  pos- 
sessed as  members  of  the  Great  Council,  pro- 
vided that  the  retention  of  such  did  not  interfere 
with  the  rights  of  the  commons.  Of  these  the 
most  important  was  the  right  of  judicature,  a 
right  which  the  commons  never  attempted  in  the 
Middle  Ages  to  usurp.  Under  shadow  of  this  right 
the  pares  of  Magna  Carta  were  now  acquiring 
a  technical  meaning.  So  much  is  this  the  case, 
that  in  1341  the  pares  terrce  claim  a  fellowship 
in  rank  with  each  other  apart  from  the  rest  of 
the  community,  when,  in  response  to  the  claim  of 
Archbishop  Stratford  to  be  tried  by  his  peers, 
the  lords  report  to  the  king  "  that  on  no  account 
should  peers  be  brought  to  trial  except  in  full 
Parliament  and  before  their  peers."  The  final 
stage  was  reached  on  the  accession  of  the  house 
of  Lancaster,  whose  legal  title  to  the  throne 
depended  on  its  recognition  by  Parliament  It 
was  plain  that  if  this  recognition  was  to  be  a 
legal  and  constitutional  act,  it  must  proceed 
from  a  body  constituted  in  accordance  with  old 
custom,  and  not  from  an  arbitrarily  summoned 
assembly  of  partisans.  After  this  time,  therefore, 
the  council  of  prelates  and  barons  assumed 
a  more  definitely  fixed  form.  Summonses  were 
invariably   sent   to   the    same   people,  and  the 


1 80  Parliament. 


method   of  creation   by  patent   finally  decided 
the  status  of  the  members  of  the  House  of  Peers. 
We  have    now  enumerated   the   constituent 
elements  of  the  House  of  Lords.     It  remains 
for  us  to  trace  to  its  origin  the  English  House 
of  Commons. 
///.  Estate     The  third  estate  is  not  a  division  drawn  from 
commons,    the  Consolidation  of  classes.     It  owes  its  origin 
rU^^"    rather  to  the  overthrow  of  caste  distinctions,  and 
is  the  expression  of  political,  not  of  social,  rela- 
tions and  interests.     Briefly  speaking,  the  body 
of  the  commons  signifies  two  things :  first,  the 
freemen    drawn    together   into    definite    bodies 
for  the    accomplishment   of    special   purposes ; 
secondly,  the  represented  freemen  in  contradis- 
tinction to  the  magnates.     The  whole  body  is 
a  formation  of  the  thirteenth  century  and  is  the 
outcome  of  the  political  exigencies  of  the  times, 
finding  their  expression  through  the  medium  of 
the  ancient  machinery  of  local  government.     It 
is  made  up  of  two  clearly  defined  factors — the 
knights  of  the  shire,  and  the  representatives  of 
the  boroughs. 
{\)pu  In  speaking  of  the  growth  of  the  estate  of 

of  the         temporal  lords,  it  has  been  mentioned  that  the 
'*""'•         membership  of  the  feudal  council  belonged  to 
an  increasingly  large  and,  as  far  as  the  varying 
extent  of  their  individual  possessions  was  con- 


Parliament.  i8l 


cerned,  a  very  miscellaneous   body ;    and  that 
it  was  the  royal  power  of  summons,  constantly 
exercised  in   the  same  direction,  which  finally 
reduced   this    body  to    the   size   of   the   more 
modern  House  of  Lords.     We  saw  further  that 
the  practical  use  of  this  power  of  summons  was 
to  bring  together  out  of  the  whole  feudal  body 
such  only  of  its  members   as   the   king  either 
desired  or  was  obliged  to  summon.     The  latter 
class  —  those  whose    presence  was   practically 
necessary — would  naturally  be  the   tenants   of 
the  largest  lands.    They  seem  to  have  acquired  History 
the  special  designation  of  majores  barones^  and,  ^^  "'^ 
on  the  showing  of  Magna  Carta,  to  have  ex- 
pected a  special  summons  addressed   to  them 
in  person.     The  rest  of  the  royal  tenants,  dis- 
tinguished as  minores  barones,  or  often  simple 
knights,   had   to   rest    content   with  a   general 
summons    which    reached    them    through    the 
sheriff.     The  constitutional  recognition  of  this 
position  in  Magna  Carta  practically  upset  the 
feudal  basis  of  society  established  at  the  Norman 
conquest.      It  was  because  the  Conqueror  had 
done  all  that  lay  in  his  power  to  prevent  the 
extension  of  this  feudal  basis  to  the  government, 
that  society  had  broken  up  so  soon.     There  can 
be  no  stability  in  a  country,  and  therefore  no 
power  of  progression  in  an  orderly  line,  unless 


1 82  Parliament. 


the  basis  of  the  constitution  tallies  with  that  on 
which  the  social  relations  are  formed.  The 
distinction  between  a  special  and  a  general 
summons  had  existed  previous  to  Magna  Carta, 
but  the  constitutional  recognition  of  the  dif- 
ference which  then  took  place,  must  have  de- 
graded to  the  lower  class  many  who,  by  the 
occasional  receipt  of  a  special  summons,  con- 
sidered themselves  entitled  to  a  place  among 
the  viajores  barones.  And  now  that  this  was 
no  longer  forthcoming,  the  only  members  of  the 
body  of  tenants-in-chief  who  would  be  likely  to 
put  in  an  appearance  would  be  such  as  might 
find  it  convenient  or  positively  necessary  to 
attend.  In  this  consisted  the  whole  difficulty  of 
the  situation.  Unless  some  new  method  were 
discovered  whereby  the  basis  of  the  constitution 
could  be  enlarged,  the  government  threatened 
to  become  a  permanent  oligarchy  of  a  strictly 
feudal  type.  The  clause  of  Magna  Carta  would 
not  be  a  solution  of  old  difficulties,  but  merely 
the  origin  of  new.  Moreover,  in  his  struggles 
with  the  great  feudatories,  the  king  had  relied 
much  on  the  help  he  had  received  at  the  hands 
of  the  provincial  knights  and  the  freeholders. 
It  was  scarcely  probable  that  he  would  abandon, 
at  the  moment  when  he  most  wanted  it,  what 
had   hitherto  been   his   most   effisctive   weapon 


Parliament.  1 83 

against  the  feudal  oligarchy.  From  12 15  to 
1254  the  question  remained  undecided.  It  was 
finally  solved  by  action  taken  in  the  absence  of 
the  king,  by  those  who  stood  in  his  place.  It 
was  during  one  of  Henry  III.'s  expeditions  to 
Gascony  that  his  usual  demand  for  money  was 
transmitted  to  his  viceroys,  the  queen  and  the 
earl  of  Cornwall  Their  first  application,  to  the 
bishops,  met  with  a  flat  refusal  on  the  plea  that 
no  such  grant  could  be  made  apart  from  the 
beneficed  clergy.  Afraid  of  a  second  refusal  on 
a  similar  pretext  from  the  barons,  the  viceroys 
averted  such  a  mischance  by  directing  the 
sheriffs  of  each  county  to  cause  the  election  of 
two  knights,  who  should  declare  in  a  great 
council  at  Westminster  the  amount  of  aid  which 
their  constituents  would  grant 

At  this  point  we  are  met  by  two  questions 
under  which  it  will  be  convenient  to  group  all 
that  seems  necessary  at  present  to  be  said 
regarding  the  knights  of  the  shire.  These 
questions  are,  first,  How  was  it  that  the  knights 
were  ready  to  undertake  the  function  which 
such  a  position  seems  to  involve,  and  to  submit 
to  this  further  separation  from  tlieir  nominal 
peers?  or,  in  other  words.  What  social  causes 
were  at  work  to  separate  the  majores  and 
minores  barones?    The  second  question  is  con- 


1 84 


Parliament. 


(o)  Separa- 
tion be- 
tween the 
tnajorei 
and 
minores 
barones. 


cerned  with  the  constituents  of  the  knights : 
Who  exactly  were  these  knights  intended  to 
represent,  being,  as  they  were,  members  of  the 
baronage,  elected  in  the  court  of  the  freeholders  ? 
It  is  not  necessary  to  dwell  further  upon  the 
fact  of  the  separation  in  the  ranks  of  the  feudal 
baronage,  nor  upon  the  constitutional  method  by 
which  it  was  marked.  Neither  the  one  nor  the 
other  will  permanently  remain  fixed  in  our  minds 
unless  we  understand  the  social  conditions  which 
caused  them.  In  the  first  place,  it  is  probable 
that  the  greater  barons  regarded  with  jealousy 
the  equality  of  suffrage  which  the  inferior 
tenants-in-chief  may  have  claimed  with  them- 
selves. This  jealousy  would  be  much  increased 
after  the  clause  of  Magna  Carta,  which  had  no 
doubt  been  framed  partly  with  the  intention  of 
preventing  the  king  from  flooding  the  council 
with  a  number  of  his  followers,  sufficient  to  out- 
vote the  greater  barons.  It  was  natural,  however, 
that  the  lesser  barons  should  not  resign  their 
constitutional  position  ^spares  without  a  struggle. 
Nor,  in  fact,  did  they  do  so  until  the  selfish 
policy  of  the  greater  barons  had  shown  them 
that  such  obstinacy  would  only  result  in  their 
becoming  the  tool  of  one  or  other  of  the  dividing 
factions,  so  long  as  of  themselves  they  were  too 
weak  to  form  an  opposition. 


Parliament  185 

The  tension  in  this  position,  moreover,  of 
jealousy  on  the  one  side,  and  of  tenacious  asser- 
tion of  old  privileges  on  the  other,  increased 
immensely  as  social  relations  became  more 
complicated,  owing  to  frequent  changes  in  the 
ownership  of  lands.  Many  causes  had  contri- 
buted to  this.  The  Crusades  had  effected  great 
changes  by  the  alienations,  mortgages,  and 
partitions  to  which  they  had  given  rise.  Again, 
the  only  method  of  acquiring  new  land,  now 
that  the  whole  country  had  been  parcelled 
out,  was  by  subinfeudation,  i.e.  by  accepting 
land  at  the  hands  of  some  lord  on  condition 
of  discharging  the  feudal  service  which  was 
due  for  it.  By  the  employment  of  this  method 
many  tenants-in-chief  had  become  sub-vassals 
that  is,  they  held  land  under  men  who  were 
themselves  not  tenants  -  in  -  chief.  Thus  the 
methods  of  holding  property  became  so  compli- 
cated, that  all  idea  of  a  lower  rank  as  attaching 
to  the  position  of  a  sub-vassal  disappeared.  And 
when,  in  1290,  subinfeudation  was  forbidden  by 
the  statute  Quia  Emptores,  and  every  future 
sub-vassal  became  an  immediate  vassal  of  the 
crown,  the  old  feudal  grades  were  quite  broken 
down  ;  for  such  new  crown  vassals  could  not 
well  take  precedence  of  old  sub-vassals  who  had 
been    for    generations    in    possession    of   their 


1 86  Parliament. 


estates.  It  was  then  a  comparatively  simple 
matter  for  the  kings,  owing  to  the  waning 
influence  exercised  by  considerations  of  feudal 
tenure,  to  ordain  that  all  possessors  of  the 
quantity  of  property  which  was  requisite  for 
the  status  of  a  knight,  should  forthwith  accept 
the  privileges  and  responsibilities  of  that  posi- 
tion, no  matter  on  what  tenure  they  held  their 
lands.  Thus  the  very  causes  which  were  divid- 
ing up  the  body  of  the  tenants-in-chief,  were 
giving  to  those  of  them  who  held  by  mere 
knightly  tenure,  interests  in  common  with  the 
mesne  tenants  and  freeholders  of  the  shire,  the 
principal  element  in  the  local  court.  At  the 
same  time  the  barons  also  were  drawing  apart 
both  in  the  Great  Council  as  well  as  in  the  local 
courts.  For,  although  in  these  latter  their  in- 
fluence was  still  very  powerful,  yet  their  presence 
had  been  excused  by  the  provisions  of  several 
statutes.  Here  then  in  the  shire  court,  the 
minor  tenants-in-chief  banished  from  the  Great 
Council,  found  a  new  and  enlarged  field  for 
their  energy.  Nor  was  this  difficult  as  soon  as 
they  had  reconciled  themselves  to  the  loss  of 
their  old  position.  For  some  time  past  they 
had  been  used  to  share  with  the  mesne  tenants 
and  freeholders  in  every  department  of  local 
government.     They  had   served   on   the  juriej, 


Parliament.  1 87 

by  means  of  which  most  of  the  judicial  work 
of   the  country   was    carried    on ;    their    votes 
were  counted  among  those  of  the  other  mem- 
bers of  the    county   court    in   the    election   of 
coroners  for  the  conservation  of  the  peace,  and, 
after  1277,  of  the  custos  paciSy  in  whom  originated 
the  later  office  of  justice  of  the  peace.     These 
same    minor   tenants-in-chief,  too,   had   helped 
to  elect  and  had  themselves  served  as  the  re- 
presentatives in  each  county  for  the  execution 
of  remedial    measures,  such  as  were  necessary 
in  accordance  with  the  terms  of  Magna  Carta. 
Finally,  the  minor  tenants-in-chief  had  played 
their  part  in  the  juries  elected  to  assess  taxa- 
tion.    It  was  this  last  matter  with  which  the 
local  courts  were  especially  busy  between   12 15 
and    1254,   and    which    possibly   at    the    same 
time    reconciled   the   minor  tenants-in-chief  to 
the    loss    of   their    old    position    in    the   Great 
Council,  while  it  almost  certainly  supplied  the 
necessary  clue  to  the  method  of  procedure  by 
\\hich  they  were   again  to  be  included  in  the 
great  assembly  of  the  kingdom.     It  is  important 
to  note  the  chief  dates  in  this  connection.     In 
1220  we  find  that  two  lawful  knights  were  chosen 
in  full  county  court  to  assess  and  collect  the 
carucage ;  in   1225  it  is  four  elected  knights  of 
each  hundred  who  assess  and  collect  the  fifteenth 


1 88  Parliament. 


that  had  been  granted  by  the  Great  Council  in 
return  for  a  reissue  of  Magna  Carta  ;  in  1232 
an  undefined  number  of  knights  is  assigned  for 
the  purpose  of  merely  collecting  the  fortieth,  the 
assessment  being  accomplished  by  different 
machinery;  and  lastly,  in  1237,  a  similar  ex- 
pedient is  employed  for  the  collection  of  a 
thirtieth  of  movable  goods  throughout  the 
nation.  Thus,  in  1254,  when  it  was  doubtful 
whether  a  grant  could  be  obtained  from  the  laity, 
the  method  by  which  their  willingness  might  be 
ascertained  was  not  far  to  seek.  The  minor 
tenants-in-chief  had  cast  in  their  lot  with  the 
general  body  of  freeholders  in  matters  of  local 
concern.  This  partnership  was  henceforth  to 
extend  to  national  affairs.  At  the  same  time, 
they  themselves  returned  to  the  national  council 
under  a  new  qualification — that  of  elected  local 
representatives,  under  cover  of  which  position 
they  were  the  means  of  introducing  to  that 
council  an  entirely  new  element  in  the  person 
of  the  freeholder. 

At  this  point  we  enter  on  our  second  question 

— Who  were  the  constituents  of  the  knights  of 

the  shire  ? 

(/5)  Whom      The  more  ancient  writers  on  our  constitution, 

knigfusof  as  represented  by  Hume  and  Blackstone,  main- 

^^in^itnti  ^^'"  ^^^^  originally  the  tenants-in-chief  of  the 


Parliament.  1 89 


crown  were  alone  suitors  of  the  county  courts, 
and  consequently  sole  electors  of  knights  of 
the  shire.  They  proceed  to  account  for  the 
position  occupied  by  the  knights  a  century  after 
the  consolidation  of  the  estates  in  Parliament, 
by  supposing  that  at  the  break-up  of  the  feudal 
system,  and  in  the  ensuing  confusion  between 
various  kinds  of  tenure,  tenants  of  mesne  lords 
introduced  themselves  as  members  of  the  county 
court.  In  opposition  to  this  view,  we  have  that 
maintained  by  modern  constitutional  writers, 
that  the  knights  were  the  representatives  of  the 
freeholders  of  the  county,  by  whom  they  were 
elected  in  the  county  courts.  The  proofs  of 
this  position  are  abundant 

In  the  first  place,  the  question  practically 
turns  on  the  composition  of  the  county  court 
at  the  time  when  knights  were  first  elected  to 
the  national  council.  A  description  of  the 
composition  of  a  shire  court,  before  it  was  put 
to  the  use  of  electing  representatives,  is  to  be 
obtained  from  the  "  Leges  Henrici  primi,"  *  where 
not  only  is  there  given  an  exhaustive  list  of  the 
constituents  of  the  court,  but  the  use  of  the  word 
"  Vavassores,"  which  is  generally  understood  as 
referring  to  the  tenant  of  a  mesne  lord,  and  not 
to  a  tenant-in-chief,  seems  conclusive  proof  that 
>  Stubbs,  "  Select  Charters,"  p.  105. 


igo  Parliament. 


the  court  was  not  limited  to  the  tenants-in-chief. 
For  the  constituent  elements  of  the  court,  in  the 
period  during  which  its  chief  business  was  the 
election  of  parliamentary  representatives,  we  are 
able  to  appeal  to  many  of  the  hundred  rolls, 
which  contain  instances  innumerable  of  tenants 
of  mesne  lords  who  owed  suit  and  service  in  courts 
of  hundred  and  shire.  But  we  cannot  afford 
yet  to  put  this  question  aside.  Had  the  knights 
been  merely  representatives  of  the  lesser  barons, 
their  reappearance  in  the  national  council  was 
not,  as  Hallam  remarks,  a  very  extensive  inno- 
vation. The  position  and  presence  of  mesne 
tenants  in  the  county  court  is  very  strongly 
marked.  In  a  writ  for  the  collection  of  scutage, 
issued  in  1235,^  we  find  mention  of  "  omnes  milites 
et  lib  ere  tenentes  qui  de  iis  tenent  per  servitium 
fnilitare"  where  it  seems  as  if  these  free  tenants 
who  held  by  military  service  were  themselves 
entitled  to  the  name  of  "  milites,"  and  were 
equally  eligible  with  the  tenants-ln-chief  to  be 
elected  as  knights  of  the  shire.  Moreover,  the 
hundred  rolls,  to  which  allusion  was  made  just 
now,  tell  us  that  these  mesne  tenants  were  often 
in  possession  of  larger  lands  than  the  knights  of 
the  shire,  and  were,  therefore,  presumably  of 
greater  weight  in  the  county.  In  the  face  of  this 
'  Stubbs,  "  Select  Charters,"  p.  364. 


Parliament.  191 

knowledge,  it  seems  unreasonable  to  suppose 
that  men  of  this  rank  would  have  been  passed 
over.  Again,  proof  positive  is  supplied  us  from 
the  writs  for  electing  to  Parliament,  in  which  the 
sheriffs  are  enjoined  to  send  "  dtws  milites  de 
discretwribus  et  ad  laborandum  potentioribus  de 
comitatu"  while  by  other  writs  the  knights  are 
to  be  chosen  "  in  plena  comitatii"  and  "  deassensu 
ejusdem  comitatus."  ^  These  expressions  seem 
to  admit  of  no  such  interpretation  as  the  older 
constitutional  writers  would  put  on  them.  A 
final  argument  is  found  in  the  avowed  policy  of 
our  kings  to  stamp  out  the  influence  which  feudal 
theories  exercised  upon  political  life  in  the 
country.  It  is  scarcely  necessary  to  show  proofs 
of  this.  From  the  Oath  of  Salisbury  to  the  Dis- 
traint of  Knighthood,  our  history  is  full  of  them. 
Was  Edward  I.,  of  all  people,  we  may  ask,  in  the 
least  likely,  especially  after  the  experiences  of  his 
father's  reign,  to  stereotype  the  feudal  method 
o'  government?  The  English  system  of  county 
administration  was  not  the  product  of  feudal  insti- 
tutions. Before  the  representatives  of  counties 
ever  were  summoned  to  the  national  assembly, 
numberless  elections  had  been  held  in  the  county 
courts,  and  these  had  been  carried  out  in  accord- 
ance with  the  particular  constitutions  of  these 
»  Stubbs,  "  Select  Charters,"  pp.  477,  481,  486. 


192  Parliament. 

courts  as  they  had  descended  intact  from  early 

English  times.     It  remains  to  trace  the  growth 

of  the  knights  into  a  distinct  community,  with  a 

repi  esentation  in  the  councils  of  the  nation. 

Growth         Enough  has  been  said  to  show  that  it  is  in 

knights  of  their  common   representation    by    the   knights 

the  shire    qj-  ^j^g  shire,  that  the  lesser  landowners  of  the 

into  a  ' 

separate     country  find  their  bond  of  cohesion.     But  it  was 

on  the  one  hand  necessary  that  these  repre- 
sentatives should  come  together  frequently,  in 
order  that  they  might  learn  the  secret  of  united 
action  against  their  enemies  ;  while  on  the  other 
hand  it  required  several  summonses  to  give 
them  a  permanent  place  in  the  national  assembly, 
and  to  reduce  their  representation  along  with 
that  of  the  other  estates  to  a  recognized  and 
accepted  form.  In  12 13  summonses  were  issued 
to  the  sheriff  to  bring  four  knights  to  a  great 
council ;  the  assembly,  however,  is  not  known 
to  have  met  We  have  already  noted  the  circum- 
stances under  which  the  knights  were  first  sum- 
moned in  1254,  as  representatives  from  the  shires. 
In  1 261,  again,  the  barons  summoned  three 
knights  to  an  assembly  of  their  own.  In  1265 
Simon  de  Montfort  summoned  two  knights  from 
each  shire  to  his  celebrated  Parliament.  With  the 
accession  of  Edward  I.  instances  are  multiplied. 
Both  in  1273,  and  again  in  1282,  each  shire  sent 


Parliament.  193 


four  knights  ;  but  on  the  latter  occasion  they 
met  at  two  separate  places.  This  defect  was 
remedied  in  1283,  when  the  knights  were 
brought  together  on  the  same  day  and  at  the 
same  place  as  the  lords.  In  1290  the  knights 
were  summoned,  two  months  after  the  magnates, 
and  then  only  to  ratify  what  had  been  already 
done.  In  1294  they  met  again  with  the  tem- 
poral lords,  but  without  the  clergy ;  and  in 
1295  they  came  with  the  rest  of  the  estates  to 
the  Model  Parliament 

The  second  of  the  two  factors  which  made  up  {2)  The 
the  composition  of  the  third  estate  in  Parliament  "iv"^the 
was  found  in  the  representatives  of  the  cities  ^'"'S^' 
and  boroughs.  The  history  of  their  growth  has 
been  traced  in  a  former  essay  up  to  the  time 
when  the  most  powerful  of  them  were  obtaining 
recognition  of  their  corporate  existence  apart 
from  the  rest  of  the  shire.  But  even  those  most 
completely  equipped  with  machinery  for  self- 
government,  maintained  considerable  connection 
with  the  organization  of  the  shire.  For  instance, 
each  borough  still  sent  twelve  burghers  to  repre- 
sent the  community  in  the  full  assembly  of  the 
shire  court  which  was  summoned  to  meet  the 
itinerant  justices.  It  was  under  view  of  the  sheriff 
that  the  great  towns  elected  their  own  coroners, 
mayors,  bailiffs,  and  constables,  and  managed 

O 


194  Parliament. 


the  rest  of  their  machinery  for  carrying  out  the 
Assize  of  Arms,  and  the  duties  of  Watch  and 
Ward,  while  the  sheriff  also  still  led  the  military 
contingents  which  the  towns  supplied  in  accord- 
ance with  the  provisions  of  the  Assize  of  Arms. 
Their        The  results  of  this  continued  connection  with  the 

connection     .  .  .  i  i       , 

with  (he  shire  court  were  most  important,  though  they 
*•  were  perhaps  rather  of  a  negative  than  of  a  posi- 
tive nature,  and  are  only  apparent  when  a  com- 
parison is  instituted  between  the  growth  of  our 
own  constitution  and  that  of  any  other  mediaeval 
state.  In  the  first  place,  this  habit  of  merging 
themselves  for  certain  purposes  with  the  larger 
district  out  of  which  they  had  been  carved,  pre- 
vented the  English  towns  from  ever  approaching 
to  the  position  of  the  municipalities  of  France 
and  Spain,  namely  powerful  corporations  acting 
on  their  own  behalf,  and  forming  a  separate  estate 
with  interests  and  an  organization  of  its  own. 
Certainly  at  first  there  seemed  no  slight  chance 
of  their  emulating  their  continental  brethren, 
for  both  Simon  de  Montfort  in  1265,  and  Ed- 
ward I.  in  1283,  recognized  the  boroughs  as 
separate  entities,  in  summoning  their  repre- 
sentatives by  writs  directed  to  the  magistrates 
of  each  individual  town.  It  seems  almost  by 
a  lucky  chance  that  the  permanent  writ  was 
one  which  kept  up  the  connection  between 
county  and  town,  by  directing  that  the  elections 


Parliament.  195 

of  such  representatives  should  be  returned 
through  the  sheriff  of  the  county.  But  a<?ain 
it  was  probably  to  the  enhanced  importance 
gfiven  to  the  governing  bodies  of  the  towns  by 
the  summons  of  such  representatives,  that  we 
owe  the  stunted  condition  of  many  of  those 
bodies.  At  the  time  when  they  were  first  called 
on  to  send  representatives,  the  towns  were  in  all 
stages  of  corporate  development  In  some  few 
cases  they  were  governed  by  a  mayor  and  alder- 
men, but  the  more  common  government  was 
through  a  borough  court,  often  monopolized  by 
the  local  merchant  guild,  or  through  a  leet  jury 
with  a  tendency  to  restricted  membership.  It 
was  not  till  the  fifteenth  century  that  charters  of 
incorporation  began  to  be  given  to  the  towns, 
wherein  was  legalized  the  restricted  franchise 
which  probably  had  hitherto  been  the  rule.  For 
the  present,  as  we  shall  have  reason  to  see  later, 
representation  was  regarded  as  a  burden  rather 
than  a  privilege,  and  the  sheriff  was  often  able  to 
return  his  own  nominees.  The  question  natu- 
rally arises,  Why  were  the  towns  summoned  to 
Parliament  at  all,  if  their  representation  there 
was  and  continued  for  so  long  to  be  unreal? 
The  answer  must  be  found  in  two  directions; 
partly  in  the  importance  of  the  towns  them- 
selves, partly  in  the  needs  of  the  kings. 


196  Parliament. 


Reasons  The  larger  towns  of  more  advanced  organiza- 
being  sum-  ^Jon  had  from  time  immemorial  been  treated  as 
mo7ud.  something  above  the  mere  villages  or  townships, 
as  they  were  called,  of  the  surrounding  country. 
The  burhs  of  the  early  English  had  boasted  of 
an  organization  akin  to  that  of  the  hundred ; 
while  London,  to  whose  position  the  lesser  towns 
persistently  aspired,  was  treated  like  a  shire  with 
sheriffs  of  its  own.  Moreover,  in  the  dealings  of 
the  exchequer,  the  towns  had  long  been  treated 
as  separate  entities.  In  early  days  the  sheriff  of 
the  county  had  often  attempted  to  raise  the 
whole  of  the  sum  for  which  he  was  responsible 
as  ferm  of  the  shire,  by  extorting  it  out  of  the 
burghers  of  some  wealthy  town.  In  self-defence, 
then,  the  towns  had  demanded  this  separate 
recognition,  and  though,  as  we  have  just  seen, 
considerable  connection  with  the  shire  organiza- 
tion remained,  they  had  succeeded  in  expelling 
the  sheriff  from  the  presidency  of  their  local 
courts.  Now  too  that  they  were  acquiring 
magistrates  of  their  own,  and  seemed  to  be 
aspiring  to  the  position  of  the  French  communa, 
it  was  a  mere  piece  of  wise  policy  on  the  part  of 
the  rulers  to  prevent  them  from  taking  up  a 
position  outside  the  national  council.  But, 
apart  from  motives  of  policy,  there  was  the  great 
and   ever  pressing  question    of  money,  which 


Parliavien  t.  1 97 

finally  determined  the  summons  of  the  towns. 
They  were  the  portion  of  the  community  whose 
wealth  could  be  most  immediately  realized. 
All  towns,  no  matter  on  whose  demesne  they 
were  situated,  paid  a  fixed  contribution  towards 
the  ferm  of  the  shire  ;  but  the  tallage,  which  was 
the  chief  tax  to  which  they  were  liable,  the  king 
had  to  share  with  all  his  tenants-in-chief,  since 
it  was  only  from  towns  situated  on  his  own 
demesne  that  he  was  able  to  exact  it  It  was  a 
remnant  of  the  feudal  and  class  principles  of 
taxation,  which  in  the  midst  of  the  break-up  of 
feudalism,  he  was  attempting  to  abolish.  More- 
over the  new  method  of  taxation  of  moveables 
was  far  more  lucrative  than  the  old  tallage.  If 
however  the  king  wished  to  make  this  new 
method  a  permanent  reality,  he  must  submit  to 
its  grant  by  the  national  assembly,  in  which 
body  he  must  include  representatives  of  the 
towns,  as  the  people  from  whom  the  greatest 
amount  of  the  new  taxes  would  be  levied. 

The  union  of  the  representatives  of  the  shires  Common 
and    the   towns   in  Parliament  is   perhaps  the  ^th  the 
most  important  fact  in  English  history.     It  was  fj"*^^''  ^ 
by  no  means  of  sudden  growth.     The  represen- 
tatives of  the  boroughs  were  at  first,  at  any  rate, 
of  an  altogether  different  class  to  the  knights 
of  the  shires ;  of  different  education  and  seem- 


1 98  Parliament. 


ingly  different  interests ;  unused  to  stand  face 
to  face  with  royalty  or  to  act  in  a  corporate 
body.  Moreover,  although  the  two  bodies  of 
knights  and  burgesses  came  together  long  before 
the  reign  of  Edward  III,,  it  was  not  until  then 
that  all  possibility  of  their  being  severed  came 
to  an  end,  while  there  seemed  every  probability 
of  the  interposition  between  them  of  two  other 
estates — those  of  the  lawyers  and  the  merchants 
— with  a  representation  not  local  but  profes- 
sional, whose  strong  professional  interests  would 
have  cut  the  ground  from  under  the  feet  of  both 
knights  and  burgesses. 

On  the  other  hand,  many  causes  operated  to 
bring  the  two  bodies  together.  Chief  among 
these  was  the  common  representative  character 
of  both.  True,  the  absolute  number  of  the 
knights  was  fixed,  while  that  of  the  burgesses 
for  a  long  time  fluctuated  considerably  ;  but  the 
individual  members  in  both  bodies  were  subject 
to  the  same  law  of  change  from  one  Parliament 
to  the  next,  and  such  change  would  lead  the 
individuals  to  seek  strength  in  concerted  action. 
Their  interests,  again,  were  different  rather  in 
degree  than  in  kind.  They  were  both  based  on 
local  rather  than  on  professional  considerations, 
and  in  this  respect  were  united  in  interest  against 
the  peers  on  the  one  side,  and  the  lawyers  and 


Parliament.  199 

the  merchants  on  the  other.  But  after  all,  the 
social  difference  between  the  two  bodies  lay 
rather  in  the  past  than  in  the  present.  The 
merchant  of  the  towns  often  settled  in  the 
country,  and  took  up  his  position  as  member  of 
the  shire  court  Alliance  with  his  family  was 
now  a  boon  to  be  sought  by  the  impoverished 
possessor  of  a  portion  of  a  knight's  fee.  Nor 
was  the  legislature  behindhand  in  urging  on  the 
fusion  of  the  two  classes.  Distraint  of  knight- 
hood came  opportunely  to  smoothe  away  any 
distinction  based  on  tenure  which  might  remain ; 
while  the  rule  of  the  constitution  which  sum- 
moned the  burgesses  through  the  sheriff  and  the 
machinery  of  the  county  court,  drew  closer  the 
bonds  which  were  knitting  together  the  two 
portions  of  the  third  estate. 

It  has  been  maintained  that  the  towns  were  Thtory 
first  summoned  to  Parliament  in  order  that  the^^  ^^ 
king  might  the  more  easily  exact  the  tallage ;  ^^^^^'Jon  to 
and  that   therefore  it  was  only  on  the  theory  j«w/a/«w. 
of  its  being  in  ancient  demesne  of  the  crown  that 
any  town  was  called  upon  to  send  representatives 
to  the  national  councils.     This  is  the  contention 
of  those  who,  arguing  from  the  analogy  that  the 
constituencies  of  the  counties  were  limited  to 
the  tcnants-in-chief,  urge  the  all-imp)ortance  of 
tenure  in  determining  early  political  relations. 


200  Parliament. 

The  fluctuations  in  the  number  of  borough  re- 
presentatives may  seem  to  show  that  sometimes, 
at  any  rate,  this  principle  may  have  prevailed, 
and  we  actually  find,  in  the  writ  for  the  collec- 
tion of  an  aid  issued  after  the  Model  Parliament 
of  1295,  the  statement  that  '^  cum  .  .  .  cives,  bur- 
gcnses  et  alii  probi  homines  de  dominicis  nostris, 
civitatibus  et  burgis  ejusdem  regni  septimam  de 
omnibus  bonis  suis  mobilibus  .  .  .  nobis  curialiter 
concesserint  et  gratanter."  ^  But,  on  the  contrary, 
the  writ  of  1296  says  that  a  similar  grant  has 
been  made  by  "cives,  burge?ises  et  alii  probi 
homines  de  omnibus  et  singulis  civitatibus  et  burgis 
nostri  de  quorumcunque  tenuris  aut  libertatibus 
fuerint  et  de  omnibus  dominicis  nostris,"  while 
even  in  1295  the  writ  of  summons  issued  to  the 
towns  makes  no  mention  of  demesne.^  After 
all,  the  writ  for  the  collection  of  an  aid,  quoted 
above,  was  probably  only  an  old  form  applied, 
without  much  definite  meaning,  to  new  circum- 
stances. But  in  addition  to  this  evidence  from 
writs,  we  have  lists  of  the  boroughs  whose  repre- 
sentatives were  summoned.  This  supplies  us 
with  both  positive  and  negative  evidence,  for  we 
are  able  to  gather  the  names  of  many  boroughs 
which  sent  members,  though  they  were  not  in 
ancient  demesne ;  while  we  miss  the  names  of 
»  Stubbs,  "  Select  Charters,"  p.  486.  *  jbid. 


Parliament.  20I 

many  which  we  know  from  elsewhere  to  have 
occupied  that  position  towards  the  king. 

A  claim  to  extreme  antiquity  for  the  presence  Groivth 
by  representatives  of  the  boroughs  in  the  national  to  a  share 
council  has  been  based  upon  certain  ambiguous  J^^^, 
phrases  of  the  chroniclers,  and  upon  assertions 
advanced  by  the  towns  of  St.  Albans  and  Barn- 
staple, of  certain  pl^vileges  which  had  originated 
with  their  connection  from  very  early  days  with 
the  central  assembly.  But  the  former  are  too 
indefinite  to  form  the  basis  of  any  positive  theory, 
while  the  claims  of  the  latter  have  been  proved 
to  be  false.  It  is  possible  that  some  of  the 
richer  tenants-in-burgage  may  have  attended 
royal  councils  side  by  side  with  other  freeholders, 
and  in  12 13  we  have  a  distinct  assembly  of 
representatives  from  towns  on  the  demesne  of 
the  crown.  The  first  definite  instance,  however, 
of  a  borough  assembly  for  true  parliamentary 
purposes  is  found  in  Simon  de  Montfort's  sum- 
mons, in  1265,  of  the  representatives  of  a  number 
of  separately  enumerated  towns  through  the 
magistrates  of  each.  This  example  was  not  lost 
on  Edward  I.  In  1273  four  citizens  came  from 
every  city,  along  with  the  other  constituent 
elements  of  the  national  assembly,  to  take  the 
oath  of  allegiance  to  Edward  in  his  absence. 
In   1282  it  was   Edward's  definite  act  which 


202  Parliament, 


gathered  into  council  two  men  from  every  city, 
borough,  and  merchant  town,  summoned  on  this 
occasion  through  the  sheriff.  In  the  next  year 
twenty-one  boroughs  were  summoned  by  name, 
by  writs  addressed  to  the  magistrates  of  each. 
This  however  was  not  for  taxation,  but  to  give 
a  colour  of  national  consent  to  the  condemna- 
tion of  the  Welsh  prince  Oavid.  Finally  in 
1295  came  the  perfected  writ,  which  directed 
the  sheriff  of  each  county  to  cause  the  election 
of  two  members  from  each  city  and  borough 
within  his  county.  Thus  was  brought  to  its 
final  form  the  assembly  of  the  three  estates,  the 
Parliament  of  the  nation. 
Develop-  We  have  now  traced  how  the  Witenagemot  of 
^thTconsti-  ^^  early  English  polity  and  the  Great  Council 
tutionand  of  the  Norman  and  Angevin  kings  developed, 

powers  of 

Pariia-  undcr  the  influence  of  the  principle  of  represen- 
'^  '  tation  and  the  pressure  of  political  necessity, 
into  the  perfected  Parliament  of  1295  ;  and  we 
have  discussed  the  character  and  qualifications 
of  the  three  estates  of  the  realm  there  gathered 
together  in  the  national  representative  assembly. 
The  history  of  constitutional  advance  under  the 
immediate  successors  of  Edward  I.  falls  prac- 
tically under  two  headings.  The  first  deals  with 
the  consolidation  of  the  form  into  which  Edward 
had  succeeded  in  moulding  the  heterogeneous 


Parliament.  203 

elements  of  which  his  Parliaments  were  com- 
posed. The  second  division  will  be  concerned 
with  the  more  important  matters  of  govern- 
ment, in  which  the  national  element  asserted 
its  claim  to  a  voice. 

In  dealing  with  the  forms  of  Parliament  as  /.  The 
we  find  them  gradually  fixed  in  the  fourteenth  •^^^. 
century,  it  will  be  convenient  to  give  an  account  "'^^' 
of  the  summons  of  Parliament,  of  the  election 
of  its  members,  of  the  distribution  of  its  elements 
as  a  deliberative  body,  and  of  the  frequency  of 
its  meetings. 

The  summons  of  Parliament  and  the  determi-  (0  Sum- 
mons. 
nation  as  to  the  time  and  place  of  its  meetmg 

have  in    the   law   of    the   constitution    always 

belonged  to  the  sovereign.     Practically,  in  the 

fourteenth  century,  it  was  decided  in  the  King's 

Council.     Along  with  the  development  of  the 

means   of   national   action,   we   find   a  similar 

development  in  the  machinery  through  which 

the    royal    prerogative   was    in    future    to    be 

exercised.      The    initiation    of    all    legislative 

action  rested  in  theory  with  the  king,  and  the 

financial  and  legal  business  to  be  laid  before 

the  Parliament  was  prepared  beforehand  in  the 

Council. 

The  time  and  place  of  the  assembly  having 

thus    been  fixed,  the  method    by  which    the 


204  Parliametit, 


members  were  to  be  brought  together  had 
been  practically  settled  by  Magna  Carta.  The 
lords  spiritual  and  temporal,  and  the  judges 
and  occasional  councillors  who  attended,  were 
summoned  by  special  writs  of  one  stereotyped 
form,  with  slight  appropriate  variations.  For 
while  the  spiritual  lords  were  called  "cum 
cceteris  praelatis,  magnatibus  et  proceribus,"  the 
temporal  lords  came  "cum  praelatis  et  ccsteris 
magnatibus  et  proceribus,"  while  the  omission 
altogether  of  the  word  ceteris  from  the  writs 
addressed  to  the  judges  excluded  them  from 
claiming  a  position  as  peers  of  Parliament 

The  general  writs  of  summons  which  were 
directed  to  the  sheriff  to  secure  the  attendance 
of  members  from  the  shires  and  boroughs,  need 
only  be  commented  on  in  so  far  as  they  speci- 
fied the  class  of  persons  who  were  to  be  chosen 
as  representatives  of  the  shires.  The  whole 
series  of  writs  is  well  worth  examination ;  but 
here  it  is  only  necessary  to  notice  that  the 
variations  in  them  seem  to  arise  principally 
either  from  the  dearth  of  knights,  which  neces- 
sitated the  election  of  esquires  ;  or  from  the 
attempts  of  lawyers  to  use  their  election  to 
Parliament  as  a  means  of  furthering  themselves 
in  their  profession  ;  or  from  the  candidature  of 
sheriffs  and    others  who    have    some    sinister 


Parliament.  205 

design  which  may  be  served  by  their  presence 
in  the  national  assembly. 

The  writs  having  been  issued  forty  days  in  (2)  -^^ 
advance  of  the  period  fixed  on  for  the  assem- 
bling of  Parliament,  time  was  thus  allowed  for 
the   election   of  members   for   both   shire   and 
borough. 

The  former  were  elected  in  the  monthly 
session  of  the  county  court,  from  which  by 
the  fourteenth  century  most  persons  of  posi- 
tion in  the  shire  had  obtained  the  privilege 
of  absence.  The  sheriff,  therefore,  had  to  issue 
a  special  summons  for  a  parliamentary  elec- 
tion ;  and  this  fact  practically  placed  the  elec- 
tion in  his  hands,  for  either  he  could  collect  a 
body  of  his  friends  who  would  vote  in  accord- 
ance with  his  wishes,  or  by  omitting  to  issue 
any  summonses  at  all,  he  could  return  his  two 
candidates  unopposed.  To  this  he  was  helped 
by  the  fact  that  representation  was  at  first 
regarded  as  a  burden,  and  there  was  consider- 
able difficulty  in  finding  willing  members.  This 
evil  was  apparent  at  a  very  early  date ;  for  in 
1372  we  find  a  statute  which  forbids  the  election 
of  lawyers  and  the  candidature  of  sheriffs,  while 
in  1376  a  petition  is  presented,  praying  that  the 
knights  might  be  chosen  by  common  election 
from  {de  Us)  the  better  folk  of  the  shire,  and  not 


2o6  Parliament. 


merely  nominated   by  the  sheriff  without  due 
election. 

Nor  was  the  result  very  different  in  the  case 
of  the  boroughs.  Certainly  their  electoral  assem- 
blies were  more  definitely  fixed  than  those  of 
the  counties,  and  the  elements  were  more  per- 
manent ;  but  the  final  steps  in  the  election  of  the 
members  took  place  in  the  county  court,  their 
names  were  returned  on  the  document  which 
contained  the  names  of  the  knights,  and  the 
towns  were  no  more  able  than  the  counties  to 
find  persons  willing  to  undertake  the  difficulties 
of  a  journey  to  Westminster.  The  sheriffs,  there- 
fore, no  doubt  could,  and  probably  often  did 
return  the  borough  members  as  well  as  those 
of  the  shire.  In  the  ordinary  method  of  pro- 
cedure however  it  is  probable  that  the  bailiffs  or 
a  customary  deputation  of  burghers  announced 
to  the  sheriff  in  the  shire  court  the  names  of 
those  who  had  been  chosen  in  the  assembly  of 
their  borough. 

It  has  been  noted  above  that  both  shire  and 
borough  members  were  difficult  to  find,  and 
that  the  whole  duty  of  representation  was 
regarded  as  a  burden  rather  than  a  privilege. 
(3)  Pay-  From  the  point  of  view  of  the  electors,  this 
^l^eff  unwillingness  arose  from  the  fact  that  wages 
"were  paid  to  their  representatives,  at  the  rate 


Parliament.  207 

of  four  shillings  a  day  to  a  knight,  and  two 
shillings  a  day  to  each  of  the  borough  members, 
both  during  the  sitting  of  Parliament  and  for 
a  specified  time  before  and  after.  The  repre- 
sentatives, on  their  side,  were  anxious  to  avoid 
the  difficulties  of  travel  and  the  neglect  of 
private  business  which  so  long  an  absence 
entailed.  Eventually  the  legislature  had  to 
provide  that,  by  a  process  called  manucaption, 
two  sureties  should  be  found  who  should  make 
themselves  responsible  for  the  appearance  of 
each  member  in  Parliament 

The  attendance  of  members  having  been  thus  (4)  Stpara* 
secured,  the  estates  assembled,  generally  though  Houses. 
by  no  means  universally,  at  Westminster.  It  is 
possible  that  at  first  each  estate  sat  by  itself, 
while  it  is  certain  that  each  voted  its  own  sup- 
plies in  different  proportions.  Some  time  elapsed 
before  the  barons  would  merge  themselves  in 
the  national  assembly,  or  the  knights  of  the 
shire  discover  that  their  interests  were  identical 
with  those  of  the  burghers.  At  what  precise 
date  the  different  estates  finally  arranged  them- 
selves in  two  Houses  is  a  matter  of  some 
dispute.  Hallam  is  inclined  to  refer  the  divi- 
sion to  13 1 5,  but  it  is  not  till  1332  that  there 
is  a  distinct  record  of  the  separate  session  of 
the  estates  as  they  are  at  present  constituted. 


2o8  Parliament. 


The  time  of  separation  may  perhaps  be  gene- 
rally placed  about  the  commencement  of  the 
(5)  The  reign  of  Edward  III.  The  question  naturally 
"fp^lia-  arises,  How  often  was  the  country  called  upon 
ment,  ^q  gend  its  representatives  to  Westminster  ? 
We  have  seen  that  all  representation  was 
regarded  as  a  burden,  and  no  doubt  the 
frequency  of  the  summons  accentuated  this 
opinion ;  for  frequent  Parliaments  could  in 
the  eyes  of  the  people  mean  little  else  than 
an  increase  of  taxation.  Patriotic  statesmen, 
however,  saw  in  the  constant  summons  of  the 
popular  representatives  a  check  upon  the 
arbitrary  power  of  the  sovereign.  The  demand, 
therefore,  for  annual  Parliaments  is  confined 
to  times  of  political  excitement,  when  it  is 
generally  obtained  from  the  king.  But  when 
the  excitement  died  away  the  burden  was 
again  felt,  and  transgression  of  the  law  became 
common.  About  1344  the  practice  of  granting 
supplies  for  two  or  three  years  in  advance  was 
begun,  which  obviated  the  necessity  under 
which  the  king  had  hitherto  lain,  both  actually 
as  well  as  by  law,  of  an  annual  assembly  of  the 
representatives  of  the  nation. 
6)  Rela-        It  is  interesting  to  notice  that  from  the  first 

tions  of  the  .  ,         , 

two  Houses  2l.  distmction  was  considered  to  exist  between 
^^^        the  functions  of  the  two  Houses.     The  writs  of 


Parliament.  209 

summons  directed  to  members  of  the  first  two 
estates  define  their  function  in  the  majority  of 
cases   as   "  tractaturi  et  consilium   vestrum  im- 
pensuri" — a  mode  of  expression   which   seems 
to  mark  their  theoretical  position  pre-eminently 
as  counsellors  of  the  crown.     The  knights  and 
burghers,  on  the  other  hand,  are  to  be  elected 
"  ad   consentiendutn    et  faciendum "    what    has 
already  been  determined  by  the  common  counsel 
of  the  kingdom.     The  function  of  the  commons 
is  thus  shown  to  consist  in  assent,  as  contrasted 
with  the  advice  expected   from  the  magnates. 
The  laws,  whether  in  the  form  of  Saxon  dooms, 
or  of  Norman  and    Plantagenet   charters   and 
assizes,  had  ever  been  enacted  "with  tlie  counsel 
and  consent''  of  the  central  assembly.    As  the 
commons  acquired   a   share   in   this    assembly, 
the   practice   at   first   was   to   include   them   in 
the  formula  by  which  the  assent  of  that  assembly 
was  expressed  ;  after  1 3 1 8  laws  are  enacted  "  by 
assent  of  the  prelates^  earls,  barons,  and  com- 
monalty of  the  realm"     But   as   the  commons 
secured  a  more  definite  position  in  relation  to 
the  other  estates,  another  alteration  takes  place 
in  this  formula;  after  1327  legislation  is  carried 
out  "  by  assent  of  the  prelates,  earls,  and  barons 
at  tlie  request  of  the  cotnmons."     Finally,  when 
we   consider  the  order  of  growth  and    distri- 

P 


2 1  o  Parliament. 

bution  of  the  various  important  attributes  of 
a  central  representative  assembly,  we  find  that 
as  soon  as  ever  the  two  Houses  begin  to  vote 
their  money  in  a  definite  form,  taxation  is 
said  to  be  granted  "by  tlie  commons  with  the 
advice  and  assent  of  the  lords"  From  the  enu- 
meration of  these  facts  two  considerations  seem 
to  result ;  first,  that  it  was  co-operation  rather 
than  advice  which  was  regarded  as  the  function 
of  the  commons ;  and  secondly,  that  the  claim 
of  the  third  estate  to  be  consulted  in  financial 
matters  was  allowed  before  any  part  was  assigned 
to  it  in  legislation  or  in  general  political  de- 
liberation. The  second  of  these  two  conside- 
rations will  be  more  apparent  by  a  separate 
examination  of  the  power  actually  exercised  by 
the  commons  in  each  of  these  three  matters,  from 
the  calling  of  the  Model  Parliament  in  1295,  to  the 
death  of  Edward  III.  in  1377.  And,  as  the  most 
important  power,  we  deal  first  with  taxation. 
II.  Growth  The  final  form  assumed  by  the  national 
"f^^        council  may  be  said  to  have  been  due  to  the 

powers  ' 

of  the        double   cause  of   necessity   and   of  policy;   of 
necessity,  because  the  classes  which  stood  out- 
side the  feudal  status  were  acquiring  a  formidable 
(I)  Taxa-   power ;   of  policy,   because   the   new    forms   of 
'*^-  taxation  begun  by  Henry  H.  produced  more  for 

the  royal  exchequer  than  the  old  feudal  methods. 


Parliament.  211 


Previous  to  1295  the  taxes  were  negotiated  with 
each  estate  by  a  special  commission  issued  from 
the  exchequer.  Since  1282,  however,  if  not 
before,  the  coming  change  was  manifest  The 
failure  in  the  amount  of  subsidies  so  negotiated 
had  led  to  an  increased  frequency  in  the  sum- 
mons of  a  national  assembly,  until  it  culmi- 
nated in  1295  in  the  complete  and  methodical 
representation  of  all  the  estates.  Money  was 
now  granted  by  each  estate,  at  first  in  different 
proportions  and  in  different  ways,  until  1334, 
when  the  proportions  were  settled  as  one-tenth 
of  all  property  from  the  boroughs  and  the  clergy, 
and  one-fifteenth  from  the  counties,  the  exact 
amount  payable  by  each  township  being  at  the 
same  time  permanently  fixed ;  but  the  method 
of  separate  negotiations  with  the  several  com- 
munities is  now  quite  superseded.  The  result 
of  this  new  method  is  seen  in  1297,  when  a 
combination  of  circumstances,  greatly  resem- 
bling that  which  led  to  Magna  Carta,  placed 
Edward  I.  in  the  hands  of  the  council  of 
estates  to  which  he  had  so  lately  given  form, 
and  the  authority  of  which  he  had  so  soon 
attempted  to  overpower.  Having  been  sum- 
moned for  the  express  purpose  of  granting  taxes 
to  the  king,  their  position  would  indeed  be  a 
mockery,  were  they  to  allow  him,  in  the  face 


212  Parliament. 


of  their  privilege,  to  levy  contributions  on  the 
country  at  will.  The  great  act  of  the  Confir- 
matio  Cartarum  makes  Edward  say  that  "for 
no  occasion  henceforth  will  we  take  such  manner 
of  aids,  tasks,  or  prises,  but  by  the  common 
assent  of  the  realm  and  for  the  common  profit 
thereof,  saving  the  ancient  aids  and  prises  due 
and  accustomed."  This  was,  no  doubt,  an  exten- 
sion to  the  national  assembly  of  estates,  of  the 
power  which  in  Magna  Carta  had  been  acknow- 
ledged to  reside  in  the  Great  Council.  But  there 
were  still  loopholes  through  which  the  king  could 
escape  from  being  completely  dependent  for  his 
supplies  upon  the  goodwill  of  his  people ;  nor 
was  it  until  each  of  these  was  in  detail  closed 
up,  that  the  privilege  of  being  the  sole  means 
by  which  money  could  be  obtained  definitely 
belonged  to  the  representatives  of  the  people. 
<a)  Tall'  The  Confirmatio  Cartarum  had,  in  prohibiting 
^^''  the   taking   of  aids,   tasks,   and   prises  without 

consent  of  Parliament,  in  no  way  interfered  with 
the  right  which  the  king  possessed  in  his  capacity 
of  landlord,  of  taking  tallage  from  the  towns  in 
his  demesne ;  for  the  levy  of  that  tax  had  never 
been  dependent  on  a  grant  from  the  Great 
Council,  Now,  however,  that  the  feudal  methods 
were  dying  out  and  that  the  towns  were  repre- 
sented  in   Parliament,  there  was  no  object  in 


Parliament.  213 

maintaining  the  right.  Yet,  as  if  to  preserve 
it,  each  of  the  Edwards  once  during  his  reign 
issued  orders  for  the  collection  of  a  tallage — 
in  1304,  13 12,  and  1332.  It  was  not  likely 
that,  as  the  commons  felt  their  strength,  they 
would  permit  the  continuance  of  this  anomaly. 
In  1340  the  statute  of  that  year  decreed  that 
no  aid  or  charge  should  henceforth  be  made  but 
by  common  assent  of  the  various  estates  in 
Parliament  This  statute  is  a  supplement  to  the 
Confirmatio,  and  was  intended  to  include  every 
kind  of  tax  that  was  not  authorized  by  the 
assembly  of  the  nation. 

The  customs  demand  a  slightly  more  detailed  ()8)  Cus- 
treatment  The  privilege  of  licensing  trade  had  ^'^^ 
ever  been  held  to  belong  to  the  king,  as  the 
representative  of  the  nation  in  all  external 
dealings,  and  as  the  judge  between  man  and 
man.  In  return  for  this  permission  it  had  been 
the  royal  custom,  previous  to  1275,  to  deal  with 
each  of  the  chief  commodities  of  trade  in  the 
country  in  a  slightly  different  manner.  The 
wine  had  been  subject  to  "  prisagc,"  or  the  right 
of  the  king's  servants  to  take  from  each  wine- 
ship,  on  coming  into  harbour,  a  toll  at  the 
rate  of  one  cask  from  every  ship  containing 
between  ten  and  twenty ;  and  two  casks,  but 
no   more,  if   the  number  rose   above   twenty. 


2 14  Parliament. 


The  wool  was  generally  seized  at  the  port 
until  a  payment  in  the  shape  of  a  ransom  had 
been  exacted,  while  of  the  general  merchandise  a 
proportion  was  levied  as  a  kind  of  toll  or  licence 
to  trade.  In  1275  these  arbitrary  methods 
of  dealing  with  the  trade  of  the  country,  which 
was  now  growing  to  some  importance,  were 
supplanted  by  a  definite  parliamentary  grant 
of  fixed  tolls,  which  is  known  as  the  Antiqua 
or  Magna  Custuma.  The  king's  officers  were 
allowed  to  levy  at  the  ports,  from  merchandise 
going  out  of  the  country,  half  a  mark  on  every 
sack  of  wool,  and  on  every  bale  of  three  hun- 
dred fleeces,  or  woolfels,  as  they  were  called  ; 
and  a  mark  for  the  export  of  each  last  of 
leather.  These  would  fall  naturally  on  the 
foreign  merchants,  and  would  not  interfere  with 
the  internal  trade.  In  1 303,  however,  the  king 
began  his  surreptitious  dealings  with  the  foreign 
merchants,  and  by  the  Carta  Mercatoria  obtained 
an  increase  of  these  customs  on  exports  of  wool 
besides  a  fixed  rate  on  other  commodities,  in- 
cluding wine,  to  the  amount  of  fifty  per  cent. 
These  duties,  which  were  known  as  the  Parva 
et  Nova  Custuma,  were  not,  strictly  speaking,  a 
breach  of  the  Confirmatio,  for  they  had  been 
negotiated  with  foreigners  who  had  nothing  to 
do  with  the   grant   of   that    document.     The 


Parliament.  21$ 

lords  ordainers  in  131 1  made  short  work  with 
these  increased  customs,  but  they  were  re- 
stored by  Edward  II.  on  his  recovery  of  power 
in  1322,  were  confirmed  on  Edward  III.'s  ac- 
accession,  after  which  time  they  became  part  of 
the  ordinary  revenue  of  the  crown,  and  were 
transformed  into  a  parliamentary  grant  by  the 
Statute  of  Staples  in  1353. 

But  this  had  little  effect  upon  Edward  III.'s 
financial  dealings.  The  institution  of  staples, 
which  restricted  the  sale  of  wool  to  certain 
towns  in  which  it  was  collected,  had  been 
begun  by  Edward  I.,  and  had  made  it  very 
easy  to  tamper  with  that  important  article  of 
commerce.  The  Statute  of  Staples  merely  fixed 
the  number  of  the  staple  towns,  and  placed  the 
whole  system  on  a  more  permanent  footing 
It  was  the  enthusiasm  roused  by  the  French 
war  that  enabled  Edward  III.  thus  to  transgress 
the  Confirmatio,  and  to  tax  the  country  by 
secret  negotiations  with  the  merchants  without 
going  to  Parliament  at  all.  The  commons 
pursued  a  policy  of  considerable  skill.  At  their 
next  session  they  generally  authorized  the  exac- 
tion which  had  been  made  without  their  assent, 
judging  that,  if  the  right  of  granting  the  subsidy 
now  passed  unquestioned,  their  demand  to  with- 
draw the  grant  could  not  well  be  resisted  when 


2 1 6  Parliament. 


the  opportunity  for  so  doing  presented  itself. 
The  king,  on  the  other  hand,  was  content  with 
the  momentary  advantage  which  he  gained  from 
the  possession  of  the  money.  The  commons 
had  not  long  to  wait.  We  have  already  noticed 
the  statute  of  1340,  which  was  aimed  at  pro- 
hibiting the  levy  of  any  taxation  unauthorized 
by  the  estates.  This,  however,  proved  in- 
sufficient ;  the  Statute  of  Staples  rendered  it 
increasingly  easy  for  the  king  to  meddle  with 
the  wool  and  necessitated  a  final  declaration  of 
the  parliamentary  position  in  the  statute  of  1 362, 
confirmed  in  1371,  to  the  effect  that  neither 
merchants  nor  any  other  body  should  henceforth 
set  any  subsidy  or  charge  upon  wool  without 
consent  of  Parliament  The  desired  result 
seems  to  have  been  at  length  attained,  and  the 
king  ceased  to  tamper  with  the  chief  article  of 
English  commerce. 

Hitherto  we  have  been  dealing  with  the 
customs  levied  on  the  export  trade.  The  foreign 
merchants  were  comparatively  easy  to  deal  with, 
because  they  were  in  the  special  protection  of 
the  king.  But  the  English  merchants  as  a  body 
might  also  be  disposed  to  come  to  terms.  The 
import  trade  was  large  both  in  wine .  and  in 
general  merchandise.  In  1308  Edward  II.  per- 
suaded  a   number  of  merchants  to  compound 


Parliament.  '217 

for  the  royal  right  of  prisage  by  paying  a 
definite  duty  of  two  shillings  on  every  tun  of 
wine  which  they  brought  into  the  country.  No 
further  step  was  taken  in  this  direction  until 
1347,  when,  during  Edward  III.'s  absence  in 
France,  the  council,  under  his  son  Lionel  of 
Antwerp,  agreed  with  the  English  merchants 
that  they  should  pay  a  duty  of  two  shillings  on 
every  tun  of  wine,  and  sixpence  on  every  pound 
of  general  merchandise.  With  this  irregular 
exaction  Parliament  dealt  as  with  all  others. 
In  1373  it  was  formally  granted  for  two  years, 
and  thenceforth  became  a  regular  portion  of 
the  royal  income  under  the  name  of  tunnage 
and  poundage. 

Besides    these    exactions,   there   were    other  (7)  ■ft"'- 

r  '  ,       ,  .  »T^,      veyance. 

means  of  oppression  open  to  the  kmg.  The 
first  of  these  consisted  in  purveyance,  or  the 
right  of  the  king,  in  the  journeys  of  his  court 
through  the  country,  to  the  use  of  his  subjects' 
goods.  This  had  been  a  right  from  time  im- 
memorial, but  the  size,  extravagance,  and 
ubiquity  of  the  court  of  Edward  III.  rendered 
it  peculiarly  burdensome  in  his  reign.  Despite 
numerous  legislative  enactments,  this  abuse  re- 
mained unchecked  until  1362,  when  it  was  by 
statute  abolished,  except  for  the  personal  wants 
of  the  king  and  queen. 


2i8  Parliament 


(8)  Pay-         In  commissions  of  array,  the  principle  of  pur- 

tnentfor  ,     ,  ,  e 

soldiers^     veyance  was  extended  to  the  purposes  of  war. 

^^^  Despite  the  provisions  of  the  assize  of  arms 
and  the  statute  of  Winchester,  Edward  II.  and 
Edward  III.  took  forced  levies  of  soldiers  out- 
side their  counties,  and  then  compelled  the 
counties  and  townships  to  pay  the  wages  of 
these  troops.  Again  statutes  were  of  little  avail 
until  1352,  when  it  was  enacted  that  it  was  only 
by  grant  of  Parliament  that  any  one,  who  was 
not  bound  to  do  so  from  obligations  of  his 
tenure,  should  be  compelled  to  furnish  armed 
men  to  the  king.  A  confirmation  of  this  statute 
was  secured  in  1404. 

There  were,  however,  some  sources  of  royal 
revenue  over  which  the  commons  did  not  so 
easily  succeed  in  obtaining  control.  Such  were 
the  three  customary  feudal  aids,  of  which  the 
two  most  frequently  called  for — that  for  the 
knighthood  of  the  son  and  the  marriage  of 
the  daughter — were  subjects  of  discussion  until 
the  time  of  the  Tudors.  Moreover,  the  king  had 
a  great  reserve  fund  in  the  Italian  bankers,  who 
on  the  banishment  of  the  Jews  in  1290  had 
become  the  chief  creditors  of  the  crown.  Nor 
was  he  ashamed  to  put  himself  under  obliga- 
tions to  foreign  princes  or  to  the  pope,  nor  even 
to  beg  in  his  needs  for  such  aid  as  the  prelates, 


Parliatnent.  2 1 9 

the  monasteries,  and  other  corporate  bodies 
were  disposed  to  accord^him.  And,  lastly,  the 
votes  of  the  clerical  tenth  scarcely  came  under 
the  Confirmatio.  As  long  as  the  king  chose 
to  regard  the  clerical  grants  as  free  gifts,  it  was 
impossible  for  the  commons  to  interfere. 

In  matters  of  legislation  the  chief  authority  (2)  Z<^v. 
lies  with  that  portion  of  the  community  which 
exercises  the  right  of  initiating  measures.  In 
early  times  alterations  of  the  law  are  a  for- 
midable matter,  so  that  though  we  find  almost 
all  modifications  of  existing  legislation  previous 
to  Edward  II.  initiated  by  the  king  or  his 
council,  the  king  at  the  same  time  had  the 
power  of  issuing  ordinances  which  were  in 
theory  temporary  explanations  of  the  law  as 
it  stood.  Hence,  though  we  may  distinguish 
between  a  statute  and  an  ordinance  by  saying 
that  the  former  necessitated  the  concurrence  of 
the  three  estates  for  its  enactment  or  abrogation, 
whereas  the  latter  was  issued  by  the  king  through 
his  council,  yet  in  actual  fact  we  find  the  two  to 
have  often  been  confused  As  late  as  1 290  the 
commons  were  considered  as  having  no  part  or 
lot  in  legislative  measures ;  for  the  statute  of 
Quia  Emptores  was  passed  by  the  magnates  in 
that  year  before  the  commons  were  summoned 
to  assemble.  But  as  the  third  estate  obtained  in- 


220  Parliament. 


creasing  recognition  as  a  portion  of  the  national 
assembly,  this  position  must  necessarily  alter. 
The  right  of  petition  had  ever  belonged  to  the 
commons,  whether  individually  or  assembled  in 
their  local  courts.  The  exercise  of  such  right 
would  come  with  redoubled  meaning  when  it 
was  enforced  by  a  whole  estate  of  the  realm. 
Moreover,  the  acknowledgment  of  their  collateral 
right  of  voting  all  supplies  was  a  weapon  in  the 
hands  of  the  commons  of  which  they  would  not 
be  long  before  they  availed  themselves.  The 
acknowledgment  of  Edward  II.,  in  1322,  that 
"matters  to  be  established  touching  the  estate 
of  the  king  and  his  heirs,  the  realm  and  the 
people,  shall  be  treated,  accorded,  and  established 
in  parliaments  by  the  king,  and  by  the  assent  of 
the  prelate,  earls,  and  barons,  and  the  com- 
monalty of  the  realm,"  though  a  little  prema- 
ture, expressed  the  goal  towards  which  the 
constitution  was  tending.  But  there  were  two 
stages  to  be  reached  before  the  power  of  the 
commons  in  legislative  affairs  w£is  recognized 
in  its  entirety.  It  was  necessary,  in  the  first 
place,  that  they  should  make  their  money  sup- 
plies depend  on  the  redress  of  their  grievances, 
or  at  any  rate  on  the  obtaining  of  answers  to 
their  petitions.  It  was  further  necessary  that  they 
should  ensure  that  the  statute  which  resulted 


Parliament.  221 

should  be  a  direct  answer  to  the  petition  which 
it  was  supposed  to  embody.  The  first  stage 
was  reached  when  the  commons  adopted  the 
method  of  putting  off  their  vote  of  supplies  until 
the  last  day  of  the  session.  Of  this  the  first 
occasion  is  in  1339.  The  second  stage  was  not 
reached  until  late  in  the  reign  of  Henry  VI., 
when  the  form  of  bill  was  substituted  for  that  of 
petition. 

The  right  of  deliberation  and  assent  in  matters  (3)  Ad- 
of  general  political  concern  had  ever  been  an^^"'^"' 
acknowledged  attribute  of  the  national  council ; 
but  not  such  as  required  the  presence  of  the 
greater  portion  of  that  body  for  its  due  recog- 
nition.    The  principle  enunciated  by  Edward  I. 
in  1295,  that  "what  touches  all  shall  be  approved 
of  all,"  would  seem  to  include  this  right  also  for 
the  successors  of  the  feudal  gathering  of  tenants- 
in-chief.     In  the  Parliaments  both  of  1301,  the 
celebrated  Parliament  of  Lincoln,  and  in  that  of 
1309,  we  find  the  commons   taking   an  active 
part  in  the  presentation  of  a  list  of  grievances 
which  included  matters  of  general  welfare.     It 
is,  however,  to   the  wars  of  Edward  III.  that 
we  can  refer  the  first  definite  recognition  of  the 
commons'    rights    in    this    respect.     With    the 
object  of  gaining  support  for  his  wars,  Edward 
pursued   the  policy  of  keeping  the  nation   in 


223  Parliament. 

good  humour  with  his  schemes,  by  constantly 
consulting  their  representatives.  By  this  means 
he  hoped  to  find  a  way  through  their  hearts  to 
their  purses.  But  the  commons  preferred  that 
the  sole  responsibility  for  these  unknown  dangers 
should  remain  with  the  king,  and  steadily 
refused  to  express  any  opinion  in  the  matter 
of  the  war,  though  they  readily  welcomed 
peace  when  it  was  offered  them.  In  judicial 
matters,  again,  though  they  never  assumed  the 
position  of  a  court  of  law,  they  made  no  scruple 
of  complaining  of  the  manner  in  which  jus- 
tice was  administered.  Petitions  were  frequent 
against  the  sale  of  writs  in  chancery,  against  the 
judicial  functions  usurped  by  the  royal  council, 
against  the  delay  of  justice,  the  interposition  of 
great  lords  on  behalf  of  suitors,  and  many  other 
similar  iniquities.  The  right  of  impeachment 
was  the  one  judicial  right  which  was  claimed 
and  made  good.  The  proceedings  of  the  last 
year  but  one  in  Edward  III.'s  reign,  when  the 
Good  Parliament,  as  prosecutors,  arraigned  the 
king's  ministers  before  the  lords,  mark  the 
beginning  of  an  important  epoch  in  the  struggle 
between  the  royal  ministers  and  the  represen- 
tatives of  the  people. 

Thus  far  has  been  traced  the  formation  of 
the   Parliament  of  the   three  estates,  and   the 


Parliament.  223 

entrance  of  the  commons  on  their  career  of 
victory.  Their  most  important  privileges  have 
been  asserted  and  won  ;  the  acquisition  of  others, 
necessary  to  the  existence  of  a  vigorous  national 
rule,  but  subordinate  to  those  which  have  been 
thus  hastily  sketched,  is  a  mere  question  of 
time.  It  will  be  the  object  of  the  succeeding 
essay  to  show  how  the  powers  thus  snatched 
as  it  were  by  accident  from  the  crown,  grow 
and  develope  into  well-ascertained  and  clearly 
defined  constitutional  rights. 


ESSAY  V. 

CONSTITUTIONAL  KINGSHIP. 

Relations  The  thirteenth  century  saw  the  foundation  of 
crmtmand  ^^  parliamentary  constitution  ;  the  fourteenth 
^^^''^''^' century  is  marked  by  the  development  of  the 
of  the  four-  rights   of  the   House  of  Commons.     The   full 

teenth  ceil'  .    .  ...  ... 

tury.  extent  of  the  constitutional  growth,  due  in  great 
measure  to  the  necessities  of  Edward  III.,  is 
very  clearly  illustrated  by  the  proceedings  of  the 
Good  Parliament  The  weakness  of  Richard  IL 
enabled  the  estates  to  follow  up  their  advantage, 
and  secure  fresh  precedents  on  behalf  of  repre- 
sentative government.  But  satisfactory  relations 
between  the  Parliament  and  the  monarch  were 
by  no  means  established  in  the  fourteenth  cen- 
tury. Side  by  side  with  the  constitutional 
development,  the  royal  prerogative  grew.  "The 
history  of  the  national  growth  is  thus  inseparable 
from  the  history  of  the  royal  prerogative."     Had 


Constitutional  Kingship,  225 

Richard  II.  been  a  man  like  Edward  I.,  or  even 
like  Edward  III.,  a  collision  might  have  been 
by  mutual  concessions,  averted.  Richard's  ill-  Therevo- 
advised  and  premature  attempt  to  formulate  the  ,^^  "^ 
principles  on  which  Edward  III.  had  acted,  and 
to  establish  an  absolute  government,  was  doomed 
to  failure.  His  temporary  success  showed  how 
fragile  were  the  supports  upon  which  the  consti- 
tution, as  yet  barely  a  hundred  years  old,  rested. 
His  alienation  from  all  the  political  classes  by 
his  arbitrary  acts,  and  by  the  suspicion  of  his 
sympathy  with  the  objects  aimed  at  by  the  vil- 
leins and  the  Lollards,  enabled  Henry  of  Lan- 
caster to  come  forward  as  the  representative  of 
the  widespread  discontent.  Having  secured  a 
leader,  the  Parliament,  supported  by  the  Church, 
deposed  Richard  and  chose  Henry  king.  A 
great  constitutional  revolution  had  taken  place ; 
the  nation  had  deposed  one  king  and  had  ac- 
quiesced in  the  accession'of  another.  In  doing 
so,  Parliament  on  the  one  hand  ensured  con- 
stitutional progress,  on  the  other  hand  imposed 
a  definite  check  on  the  hopes  of  the  villeins, 
and  the  more  revolutionary  schemes  of  the 
Lollards.  The  threatened  destruction  of  the 
constitution  was  averted  by  the  accession  of 
Henry  of  Lancaster,  and  the  postponement  of 
questions  "between  the  labouring  and  propertied 

Q 


226  Constitutional  Kingship. 

classes,"^  as  well  as  of  questions  between  the 

Church  and  the  nation,  to  a  time  when  the  last 

struggles  of  a  lawless  aristocracy  had  died  away, 

was  certainly  a  happy  thing  for  England. 

Compart-       The   succcssful  termination  of  the  revolution 

'revolutions^^  I399>  ^^^^  that  of  1688,  not  only  enabled  the 

^399      nation  to  confirm  to  a  great  extent  the  rights 

already  won,  but  proved  a  guarantee  of  further 

progress.     Both    Henry   IV.  and   William   III. 

came  to  the  throne  with  a  parliamentary  title. 

For  some  sixty  years  after  each  revolution  the 

influence  of  the  aristocracy  predominated  in  the 

country.     Edward  IV.  and  George  III.,  under 

vastly  different  circumstances,  and  with  means 

very  dissimilar,  succeeded    in  establishing,  each 

in  accordance  with  the  ideas  of  the  times,  a  strong 

personal  government 

Therevo-       Under  Edward  IV.  and  the  Tudors,  it  became 

"xqamces-  possible  to  Carry  out  the  objects  which  Richard 

^'^P* ,       II.  had  aimed  at  at  least  half  a  century  too  soon. 

though 

premature.  At  the  end  of  the  fourteenth  century  the  baron- 
age was  all-powerful,  the  Church  aristocratic  and 
strong,  the  commons  accustomed  to  look  to  the 
nobles  rather  than  to  the  king  for  political  guid- 
ance. England  required  a  firm  rule  administered 
by  kings,  willing  like  the  Tudors  in  after-times, 

^  "  Introduction  to  English  History,"  by  S.  R.  Gardiner 
and  J.  Bass  Mullinger,  p.  93. 


Constitutional  Kingship.  227 

to  respect  the  externals  of  the  constitution,  to 
allow  development  in  accordance  with  the  wish 
of  the  people  as  expressed  in  Parliament,  but  at 
the  same  time  able  to  repress  disorder  at  home 
and  to  give  England  peace  abroad. 

The  Lancastrian  rule,  though  promising  in  its 
opening  years,  was  on  the  whole  a  constitutional 
disappointment.  The  foreign  policy  of  Henry  V., 
and  the  weakness  of  Henry  VI.,  gave  an  oppor- 
tunity to  the  great  lords  to  illustrate  their  selfish- 
ness, their  personal  rivalries,  their  overgrown 
power,  and  the  ever-increasing  divergence  be- 
tween their  interests  and  those  of  the  rest  of  the 
people.  During  the  latter  half  of  Henry  VI.'s 
reign  anarchy  spread  over  a  great  part  of  the 
country.  The  political  education  of  the  English 
nation  was  not  sufficiently  advanced  to  enable  it 
to  carry  out  a  system  of  self-government,  nor 
strong  enough  to  control  the  insubordination  of 
the  aristocratic  elements  of  society.  This  insub- 
ordination culminates  in  the  Wars  of  the  Roses, 
which  brought  about  the  downfall  of  a  dynasty 
personally  incapable  of  giving  to  the  nation  the 
order  and  good  administration  it  demanded. 

The  Tudor  government  gave  to  the  body  of 
the  people  protection  of  life  and  property,  a  firm 
administration  of  justice,  and  a  foreign  policy 
eminently  popular.     Above  all,  the   House  of 


228  Constitutional  Kingship. 

Commons  was  able  quietly  to  strengthen  itself 
against  the  time  when  the  question  between  Par- 
liament and  the  royal  prerogative,  prematurely 
raised  under  Richard  IL,  was  fought  out  and 
decided  in  the  seventeenth  century. 
The  real         Henry  of  Lancaster   came   forward    as    the 

meaning  of  ^       r      i  •      •    i  ,  i         •  r 

theacces-  Opponent  of  those  prmciples  the  adoption  of 
^Henniv.  ^^^^^  ^^^  cost  Richard  his  throne ;  as  the  sup- 
porter of  the  claims  of  Parliament  to  rights 
asserted  during  the  fourteenth  century.  Parlia- 
mentary authority  had  for  the  time  triumphed 
over  royal  prerogative,  and  the  Lancastrians 
endeavoured,  during  the  first  half  of  the  fifteenth 
century,  to  govern  England  as  a  constitutional 
kingdom.  Till  1447  the  rule  of  the  Lancastrians 
is  strictly  in  accordance  with  the  declaration  of 
Archbishop  Arundel  in  the  first  Parliament  of 
Henry  IV.,  that  the  king  would  be  governed 
by  "  common  advice,  counsel,  and  consent ; " 
and  from  1447  till  the  outbreak  of  the  civil  war 
the  government  was  rather  weak  than  uncon- 
stitutional. The  rule  of  the  Lancastrians  was 
in  many  ways  important  in  the  history  of 
Parliament.  The  working  of  constitutional 
government  was  improved  ;  both  Houses  assert 
and  secure  valuable  privileges  ;  the  House  of 
Lords  is  consolidated ;  statutes  are  passed 
regulating  the  qualification  of  electors  and   of 


Constitutional  Kingship.  229 

members  of  the  House  of  Commons.  Parlia- 
ment is  more  busied  with  enforcing  rights 
claimed  from  the  crown  in  the  previous  century 
than  in  gaining  new  ones,  and  though  many 
of  these  rights  are  little  heard  of  during  Yorkist 
and  Tudor  times,  they  formed  important  pre- 
cedents for  the  leaders  of  the  parliamentary 
opposition  to  the  Stewarts.  Hence,  though  it 
is  true  that  the  fifteenth  century  is  not  a  period 
of  constitutional  development ;  yet  under  the 
Lancastrian  kings  rights  previously  acquired 
were  firmly  established,  and  placed  on  too 
secure  a  foundation  ever  to  be  in  danger  of 
being  again  successfully  attacked. 

In  the  attempt  of  the  Lancastrians  to  govern 
England  constitutionally,  in  the .  results  of  that 
attempt  upon  Parliament,  and  in  the  causes 
of  its  failure,  the  history  of  mediaeval  constitu- 
tionalism is  comprised. 

With  the  accession  of  Henry  IV., "  the  experi-  /.  The  at- 
ment    of    governing    England    constitutionally  tHe  jLan- 
seemed  likely  to  be  fairly  tried."     The  events  ''^"'''" 

'  '  to  goverti 

of  Richard's  reign   had   clearly   demonstrated,  England 
not  only  the  selfishness  and  faithlessness  of  the  tionaUy. 
nobles,  but  also  the  very  insecure  foundations 
on  which  the  power  of  the  House  of  Commons 
rested,  its  dependence  on  leaders,  and  its  power- 
lessness  when,  deprived  of  those  leaders,  it  was 


230  Constitutional  Kingship. 

brought  face  to  face  with  a  determined  king. 
And  it  may  seem  surprising  to  find  this  House 
of  Commons,  a  few  years  after  the  revolution 
of  I399>  ii^  ^^  improved  position,  exercising 
great  influence  on  the  government  of  the  country 
-^an  influence  which  to  some  extent  it  main- 
tained in  the  reign  of  Henry  VI.,  when  the 
aristocracy  held  the  predominating  power.  Had 
Henry  IV.  succeeded  with  an  unquestioned  title  ; 
had  his  exchequer  not  been  exhausted  ;  had  he 
enjoyed  good  health,  and  been  free  from  rebel- 
lions at  home  and  dangers  from  abroad  ;  had 
Henry  VI.  come  to  the  throne  a  full-grown  man, 
with  the  capacity  of  his  father  or  grandfather 
the  constitutional  position  of  the  House  of  Com- 
mons would  not  have  been  such  a  prominent 
feature  in  the  history  of  Henry  IV.'s  reign,  and 
the  power  of  the  lords  would  have  been  restricted 
within  due  limits  under  Henry  VI. 
TheLan-       The  Lancastrian  scheme  of  government  was 

castrian 

scheme  to  rule  the  country  m  alliance  with  Parliament, 
Z.^"^'  and  to  make  Parliament  the  direct  instrument 
of  government.  In  the  adoption  of  this  pro- 
gramme by  Henrj'  IV.,  and  the  adherence  to 
it  by  his  son  and  grandson,  we  see  no  mere 
reaction  against  the  claim  of  Richard  to  an 
unlimited  prerogative.  The  period  is  one  "in 
which  political   liberty,  at  any  rate   in  theory, 


vtent. 


Constitutional  Kingship.  231 

reached  its  highest  point  during  the  Middle 
Ages ; "  *  and  the  Lancastrian  scheme  was  a 
definite  attempt  to  put  into  practice  a  view 
of  the  English  constitution  which  implied  a 
belief  that  the  English  people  were  in  an 
advanced  stage  of  political  development 

As  a  matter  of  fact,  liberties  were  given  to 
the    nation    which,   as   events    showed,   it   was 
unable  to  appreciate  or  to  use.     Nevertheless, 
the   effort    of   the    Lancastrians    was    honest 
well   meant,  and,  till   the  period   of  civil    war, 
faithfully  adhered  to.      Throughout  the  whole  Position  of 
period   no   attempt   is   made  to   impose   taxes  ,„  J^cmrd'- 
without  Parliament,  no  sign  is  given  of  a  wish  °^'  "^^ 
to   return   to   the   unconstitutional    position   o{  scheme. 
Richard    II.      Great   freedom    of   deliberation 
is  enjoyed   by   both    Houses.      The  commons 
interfere  with  all  parts  of  the  administration  ; 
they  are  consulted  on  matters  connected  with 
both  home  and  foreign  affairs.     These  illustra- 
tions are  sufficient  to  show  how  close  was  the 
alliance  between  the  Lancastrians  and  Parlia- 
ment    We  will  now  proceed  to  consider  how 
that  alliance  was  brought  about 

In  the  early  days  of  the  fifteenth  century  H<nv  the 
Parliament  was  by  no  means  looked  upon  as^^^^^^ 

*  Fortescue,  "The  Governance  of  England."    Intro- 
duction by  C.  Plummer,  p.  3. 


232  Constitutional  Kingship. 

eroram  and  the  great  Controlling  power  in   the   state.     A 
ameabout.  Strong  executive  had  been  necessary  during  the 
whole  of  the  fourteenth  century,  and  the  execu- 
tive work  had  been  done  either  by  the  kings 
with  the  aid  of  their  council,  or  by  the  council 
during  the   minority  or  weakness   of    a   king. 
The  royal  This  royal  council  was  a  most  powerful  engine, 
and,  till  the  accession  of  Richard  II.,  was  re- 
garded with  jealousy  and  suspicion  by  Parlia- 
ment.    Its  origin  may  be  traced  to  the  reign  of 
Henry  II. ;  it  was  brought  into  great  prominence 
during  the  minority  of  Henry  III.     It  became  in 
the  thirteenth  century  a  permanent  council,  and 
its  position  was  further  defined  by  Edward  I. 
Subordinate   to   the   king,  exercising  with   the 
king  executive  functions,  besides  wielding  exten- 
sive appellate  and  judicial  powers,  it  naturally 
incurred  the  jealousy  of  the  Great  Parliamentary 
Councils  of  Henry  III.,  and  of  the  Parliaments 
of  the  fourteenth  century.     Attempts  were  made 
by  Parliament  at  one  time  to  secure  the  nomina- 
tion of  councillors,  at  another  time  to  restrain  the 
authority  of  the  council.    From  its  wide,  indefinite, 
though  salutary  judicial  powers,  was  formulated 
Court  of    in  Edward  III.'s  reign  the  Court  of  Chancery, 
Chancery.  ^j^Qgg   equitable  jurisdiction  was   permanently 
established  under  Richard  II.     As  the  interests 
of  the  civil  jurisdiction  of  the  council  and  the 


Constitutional  Kingship.  233 

Court  of  Chancery  were  identical ;  the  frequent 
opposition  of  the  commons,  from  Edward  III.'s 
reign  to  that  of  Henry  VI.,  was  directed  against 
the  judicial  powers  of  both  bodies.     With  the 
accession  of  Richard  II.,  the  Privy  Council,  as  The  Privy 
it  was  then  called,  entered  upon  a  new  period  „^2^ 
of  its  history.      It  was  obvious  that  as  Parlia-  ^y^f^ 
ment  grew  stronger,  frequent  collisions  would 
take  place  between  the  legislative  body  and  a 
council  exercising  large  and  undefined  executive 
powers  and  responsible  only  to  the  king. 

The  council  itself  took  advantage  of  the 
minority  and  the  indolence  of  Richard  II.,  in- 
creased "its  functions  and  grew  more  powerful; 
while  Parliament  endeavoured,  at  times  with 
success,  to  control  the  nomination  of  the  mem- 
bers of  the  council,  who  are  now  appointed  annu- 
ally, bound  by  special  oath,  and  receive  fixed 
salaries.  Instead  of  being  "subordinate  to,  it 
has  become  a  power  rather  co-ordinate  with  the 
king,"  and  tended  to  control  the  prerogative. 
If  Richard  had  been  successful  in  establishing 
a  despotism,  the  council  would  have  occupied 
a  position  such  as  it  held  under  the  Tudors — 
"feeble  against  the  crown,  as  it  was  mighty 
against  every  one  else."^  His  failure  brought 
forward  again  questions  which  had  been  pressing 
»  "  The  Privy  Council,"  by  A.  V.  Dicey,  p,  23. 


nve. 


234  Constitutional  Kingship. 

The  revo-  for  solution  throughout  the  century :  How  were 
xv^both  ^^^  powers  of  king  and  Parliament  to  be  recon- 
conserva-    ciled  ?   how  werc  the  relations  of  council  and 

tive  and 

progres-  Parliament  to  be  settled  ?  The  accession  of 
Henry  IV.  brought  with  it  an  answer  to  these 
questions.  He  had  inherited  and  had  already 
acted  upon  the  principles  attributed  to  Thomas 
of  Lancaster.  Limitation  of  the  royal  power  by 
a  council,  patronage  of  the  clergy  and  the  com- 
mons,— these  were  the  principles  on  which  the 
house  of  Lancaster  had  risen.  He  thus  continued 
the  best  features  of  the  baronial  policy  of  the 
thirteenth  and  fourteenth  centuries. 

The  events  of  1399  only  confirmed  him  in  this 
popular  attitude.  His  title  was  weak,  the  crown 
revenues  were  insufficient ;  he  had  come  to  the 
throne  as  the  advocate  of  constitutional  prin- 
ciples, the  champion  of  the  nation  against  the 
policy  of  Richard  H.,  who  had  not  only  roused 
the  fears  of  the  propertied  classes,  but  had 
threatened  the  growing  powers  of  Parliament 
itself.  A  common  impulse  united  all  the  poli- 
tical classes  in  opposition  to  the  insupportable 
tyranny  of  Richard.  The  revolution  gave  the 
throne  to  a  dynasty  bound  by  its  traditions,  by 
the  very  circumstances  of  the  revolution,  to  re- 
verse the  policy  of  Richard,  to  adopt  repressive 
measures   against  the  Lollards,  whose  opinions 


Constitutional  Kingship.  235 

were  at  that  epoch  political  and  destructive 
rather  than  religious  and  reforming,  and  at  the 
same  time  to  govern  on  constitutional  principles. 
The  temporary  union  of  nobles,  clergy,  and  com- 
mons, brought  about  by  the  exigencies  of  the 
moment,  soon  broke  up  after  the  accession  of 
Henry.  His  financial  necessities,  the  frequent 
rebellions  of  a  powerful  section  of  the  baronage, 
the  continual  danger  from  France  during  the 
early  years  of  his  reig^,  and  his  broken  health 
in  the  later  years,  all  tended  to  compel  him  to 
rely  upon  the  support  of  the  clergy  and  the 
Parliament  A  policy  of  persecution  was  directed 
against  the  Lollards,  who  threatened  the  posses- 
sions rather  than  the  doctrines  of  the  Church. 
Parliament,  and  especially  the  Lower  House,  was  Parlia- 
completely  won  over  by  Henry's  honest  attempt  ^^j  '^^ 
to  settle  definitely  the   relations   between   the  ''"■'^'  "'• 

^  strutmnt 

executive  and  legislative  organs.  As  long  as  ofgovtrn- 
jealousy  existed  between  the  Parliament  and  the 
council,  the  working  of  constitutional  govern- 
ment was  rendered  impossible.  By  making  the 
executive  organ,  the  council,  work  harmoniously 
with  the  legislative  organ,  the  Parliament,  i.e, 
by  suffering  Parliament  to  influence  the  appoint- 
ment of  members  of  the  council,  and  by  thus 
eliminating  all  jealousy  between  these  two  bodies, 
the  Lancastrians  were  enabled  to  allow  Parlia- 


236  Constitutional  Kingship. 

ment  to  become  the  direct  instrument  of  govern- 
ment.    From  1404  to  1437  this  plan  is  carried 
out.     Councillors   are   appointed   for  the   most 
part  agreeable  to  the  commons,  and  subject  to 
the  supervision  and  wishes  of  Parliament.     This 
period  is  most  distinctly  the  period  of  mediaeval 
constitutionalism. 
Relations       During  the  reigns  of  Henry  IV.  and  Henry  V., 
the  Privy   ^^^  number  of  commoners  in  the  Privy  Council 
Council     ^^    considerable.      In    1404    Henry,    at    the 

and  far-  ^   ^  •' ' 

liament  request  of  the  commons,  nominated  a  council 
Henry  IV.  of  tweuty-two,  which  included  seven  com- 
and  Henry  njoncrs.  In  1406  wc  have,  perhaps,  the  best 
illustration  of  the  relations  existing  between 
king  and  Parliament  in  Lancastrian  times.  In 
that  year,  at  the  suggestion  of  the  commons, 
the  king  nominated  a  fresh  council  of  seventeen, 
which  included  three  commoners.  These  coun- 
cillors were  compelled  to  swear  to  obey  thirty- 
one  articles,  which  regulated  their  powers  and 
duties.  The  king  was  to  be  guided  entirely 
by  the  advice  of  this  council,  which  was  itself 
controlled  by  Parliament.  A  vote  of  confidence 
in  the  council,  passed  by  the  commons  in  the 
same  year,  shows  the  importance  attached  by 
Parliament  to  the  maintenance  of  its  control 
over  the  council.  Henry  continues  the  same 
policy  in    1410;    and   during   the    later  years 


Constitutional  Kingship.  237 


of  his  reign  the  council,  nominated  according 
to  the  wishes  of  Parliament,  governed  England. 
Henry  V.,  though  in  a  stronger  position  than 
his  father,  continued  his  father's  policy.  Lol- 
lardy  is  put  down.  The  nobles,  ever  ready 
to  quarrel  with  king  or  commons,  found  vent 
in  the  French  war  for  their  constant  uneasiness. 
Henry's  success  abroad  and  his  admirable  rela- 
tions with  his  Parliament  at  home,  which  implied 
a  corresponding  confidence  between  Parliament 
and  the  council,  enabled  the  trial  of  a  great  con- 
stitutional experiment  to  be  continued  for  some 
thirty  years. 

With  the  long  minority  of  Henry  VI.  the  Under 
Privy  Council  attained  to  the  height  of  its  ^'""^  ^^' 
power  in  the  Middle  Ages.  During  this  minority 
the  English  nation  had  a  real  opportunity  of 
testing  its  own  fitness  for  self-government  Till 
1437  the  members  of  the  council  were  nomi- 
nated in  Parliament,  and  consequently  the 
council  possessed  the  full  confidence  of  Parlia- 
ment It  acted  not  only  in  its  ordinary 
capacity,  but  also  as  a  council  of  regency 
exercising  all  the  functions  of  sovereignty.  The 
harmony  existing  between  it  and  Parliament 
is  proved  by  the  enormous  powers  wielded  by 
the  council.  Its  work  was  prodigious.  To  it 
was  entrusted   financial   business,   considerable 


238  Coyistitutional  Kingship. 

legislative  and  taxative  powers,  and  the  manage- 
ment of  trade.  Its  judicial  authority  was  no 
longer  regarded  by  Parliament  with  suspicion. 
Even  ecclesiastical  and  police  matters  came 
under  its  notice.  It  was  responsible  for  the 
administration  of  justice  and  the  preservation 
of  order  at  a  time  when  the  public  peace  was 
continually  broken,  and  local  disorder  often 
threatened  to  assume  the  proportions  of  private 
war.  The  council  can  then  at  this  period  be 
regarded  as  a  political,  a  legislative,  a  judicial, 
and  an  administrative  body. 

During  the  minority  of  Henry's  reign — a 
critical  and,  financially  speaking,  a  most  em- 
barrassing time — the  council  was  mainly  com- 
posed of  lords ;  and  the  government  of  the 
country  by  the  council  well  illustrates  "the 
capacity  of  the  nobility  for  rule."  ^ 
The  Great  When  a  decision  was  required  on  some  knotty 
question  for  which  the  Privy  Council  refused 
to  be  responsible,  a  Great  Council  was  called. 
These  Great  Councils,  summoned  frequently  by 
the  Lancastrian  kings,  usually  consisted  of  a 
number  of  nobles  and  knights  who  were  not  ol 
the  Privy  Council.  "  They  may  be  regarded," 
says  Dr.  Stubbs,  **  either  as  extra-parliamentary 

^  Gneist, "  History  of  the  English  Constitution  "  (Trans- 
lation), ii.  p.  74. 


Constitutional  Kingship.  239 


sessions  of  the  House  of  Lords,  or  as  enlarged 
meetings  of  the  royal  council." 

The  resumption  of  personal  government  by 
Henry  in  1437  marks  the  time  when  the 
Lancastrian  scheme  of  making  Parliament  the 
direct  instrument  of  government  begins  to  break 
down.  In  1437  the  king,  perhaps  with  the 
advice  of  Cardinal  Beaufort,  began  to  nominate 
members  of  the  Privy  Council  absolutely.  The 
council  ceased  to  be  in  subordination  to  Parlia-  Parlia- 
ment, and  henceforth  becomes  gradually  the  to  control 
creature  of  the  king  and  his  party,  and  is  found  ^q'J^^ 
often  in  opposition  to  Parliament.  Instead  of 
Parliament  controlling  the  council,  the  council, 
through  its  influence  on  the  elections,  tends  to 
control  Parliament  Though  Henry  continued 
to  retain  a  considerable  hold  on  Parliament  from 
1437,  and  in  a  greater  degree  from  1447,  when 
Beaufort  died,  he  relied  less  and  less  on  Parlia- 
ment, and  more  and  more  on  his  council.  In 
1450,  in  the  dispute  between  Somerset  and 
York,  the  court  and  council  supported  the 
former,  the  commons  the  latter. 

Parliament,  in  these  later  years  of  Henry  VI.'s 
reign,  was  weak,  while  the  council,  mainly  com- 
posed of  the  king's  friends,  was  strong.  The 
attempt  of  the  nation  at  self-government  had 
failed,    with    the    cessation    of    parliamentary 


240  Constitutional  Kingship. 

control  over  the  council.     That  body  begins 
to  take  up  the  position  it  held  under  the  Tudors, 
when,  dependent  on  the  king  and  independent 
of  all  other  influences,  it  governed  the  country. 
To  this  council,  rather  than  to  Parliament,  the 
nation  at  the  end  of  the  fifteenth  century  looked 
for  the  enforcement  of  order  and  good  govern- 
ment^ 
II.  The         The  effort  of  the  Lancastrians  to  make  Parlia- 
Pariia-      Hicnt  the  direct  instrument  of  government  had, 
lu^^^it^f  ^  rnight  be  expected,  no  unimportant  results 
the  Lan-    on   the   parliamentary  constitution   itself     The 

castrians 

to  govern  ccntury,  however,  does  not  see  new  rights 
comtitu-  acquired  so  much  as  old  claims  reasserted  and 
tionally.      made  good,  tendencies  already  at  work  continued 

and  hardened. 
The  House  During  the  fourteenth  century  the  hereditary 
'^  '  ^'  character  of  the  House  of  Lords  had  been 
steadily  gaining  ground.  The  first  instance 
of  a  barony  being  created  by  letters  patent 
occurs  in  the  reign  of  Richard  II.,  though  earl- 
doms had  been  created  before  by  charter  and 
even  by  patent,  and  were  always  hereditary. 
The  constitutional  position  of  the  Lancastrians 
prevented  them  from  regarding  the   House  of 

*  On  the  subject  of  the  Privy  Council,  the  reader  should 
consult  Mr.  Plummer's  admirable  notes  to  Fortescue's 
"  Governance  of  England." 


Constitutional  Kingship.  241 

Lords  as  an  assembly  the  personnel  of  which  de- 
pended on  their  own  authority.  Hence,  though 
this  is  in  effect  done  long  before,  the  hereditary 
right  of  the  peers  to  a  summons  to  Parliament 
was  acknowledged,  and  the  House  of  Lords 
became  a  small  compact  body  in  which  the 
spiritual  element  predominated. 

With  considerable  judicial  powers,  the  House 
of  Lords  had  the  advantage  of  a  continuous 
existence.  Its  members  formed  the  majority 
in  the  Privy  Council,  and  in  their  attendance 
at  the  Great  Councils  summoned  to  assist  the 
Privy  Council  with  advice  "it  is  probable  that 
the  theory  which  gives  to  all  the  peers  of  the 
realm  the  right  of  approaching  the  king  was 
reduced  to  practice."  In  spite  of  the  capacity 
of  the  nobles  to  rule,  and  the  influence  they 
exercised  over  the  commons  during  the  first 
decades  of  the  century,  their  family  jealousies 
and  selfish  factiousness,  by  bringing  about  the 
Wars  of  the  Roses,  threw  the  whole  political 
organization  into  confusion,  destroyed  the  utility 
of  the  mediaeval  peerage,  and  left  to  another  line 
of  kings  the  task  of  reconstructing  the  House  of 
Lords  out  of  fresh  materials. 

It  is  in  the  position  and  powers  of  the  House  The  ffwe 
of  Commons  that  we  can  find  greater  attempts  "Jno^T 
at    expansion,  though  these  attempts  do  not 

R 


242  Constitutional  Kingship. 

result  in  much  more  than  the  recognition  of  the 
House  of  Commons  as  a  coequal  part  of  the 
legislature.  During  the  fourteenth  century  the 
progress  of  Parliament  had  been  rapid.  Since 
the  middle  of  the  reign  of  Edward  III.  the  two 
Houses  had  definitely  ceased  to  sit  together. 
The  events  of  that  and  the  following  reign  had 
enabled  the  commons  to  take  a  leading  part  in 
gaining  important  rights  in  matters  of  legisla- 
tion, administration,  and  taxation,  and  by  the 
end  of  the  century  they  were  recognized  as 
holding  a  position  of  "  legal  equality  "  ^  with  the 
lords.  Though  the  commons  had  in  the  reign 
of  Edward  HI.  acted  to  a  great  extent  inde- 
pendently of  the  nobles,  their  position  was  by 
no  means  very  secure.  This  helplessness,  when 
deserted  by  the  nobles  and  confronted  by  a 
strong-willed  king,  determined  to  use  the  great 
influence  of  the  crown  upon  the  elections,  was 
clearly  illustrated  in  the  reign  of  Richard  H. 
Henry  IV's.  policy,  however,  was  to  strengthen 
Parliament,  and  especially  the  Lower  House,  in 
order  to  secure  its  support.  In  his  reign  and 
in  that  of  his  successor,  the  commons  claim  im- 
portant rights,  and  take  up  a  position  not  again 
held  till  the  seventeenth  century.     To  quote  Dr. 

*  Fortescue,  "The  Governance  of  England."    Intro- 
duction by  C.  Plummer,  p.  14. 


Constitutional  Kingship.  243 

Stubbs,  *  Never  before  and  never  again  for  more 
than  two  hundred  years  were  the  commons  so 
strong  as  they  were  under  Henry  IV." 

In  1401,  taking  advantage  of  the  financial 
needs  of  the  king,  they  demand  that  redress 
shall  precede  supply.  In  1404,  on  their  request, 
a  sum  of  money  was  appropriated  to  the  defence 
of  England,  and  the  royal  household  was 
attacked.  In  the  same  year  they  claim  the 
right  of  freedom  from  arrest  In  1406  they  gain 
the  right  of  having  the  royal  accounts  audited, 
and  in  1407  that  of  originating  money  grants. 
In  1406  and  1410  two  important  acts  were 
passed,  to  regulate  the  county  elections,  and  to 
check  the  undue  influence  of  the  crown,  the 
great  lords,  and  the  sheriff  on  the  choice  of 
representatives  for  the  House  of  Commons.  In 
Henry  V.'s  reign  the  commons  still  further 
regulated  the  county  and  borough  elections,  and 
in  1414  secured  a  "great  constitutional  boon," 
by  gaining  the  assent  of  the  king  to  their 
petition,  that  from  henceforth  "  statutes  be  made 
without  altering  the  words  of  the  petitions  on 
which  they  are  based."  From  1407  their  right 
to  deliberate  on  all  matters  of  public  interest 
was  recognized.  The  instances  of  matters  of 
domestic  policy  being  treated  by  them  are 
numerous.     In  Henry  IV.'s  reign  they  interfered 


244  Constitutional  Kingship. 


with  all  parts  of  the  administration.  Questions 
connected  with  foreign  policy  were  frequently 
brought  before  them  and  discussed.  Henry  V. 
laid  before  the  commons,  as  well  as  the  lords, 
his  negotiations  with  the  Emperor  Sigismund 
in  1416.  In  1445  Suffolk  recounted  his  services 
to  both  Houses.  Early  in  Henry  V.'s  reign 
the  commons  urged  the  king  to  labour  for  the 
closing  of  the  great  schism.  In  1425  the  three 
estates  forbade  the  Duke  of  Gloucester  to 
make  war  on  Burgundy.  From  the  accession 
of  Henry  VI.  the  commons  gradually  ceased 
to  exercise  so  predominant  an  influence  on 
the  government  of  the  country  as  they  had 
done  in  the  reign  of  Henry  IV.  The  appoint- 
ment of  a  council  in  Parliament  to  carry 
on  the  government  during  the  king's  minority  ; 
the  ever-increasing  influence  of  the  great  lords 
both  in  the  council  as  well  as  in  the  elections  ; 
the  nomination  by  the  king,  after  1437,  of  the 
members  of  the  council,  all  tended  to  relegate 
the  commons  to  a  position  less  prominent  than 
that  which  they  had  held  in  the  earlier  years  of 
the  century.  Nevertheless  to  some  extent  they 
maintain,  till  the  beginning  of  the  troubles  which 
were  to  end  in  civil  war,  that  importance  which 
they  had  inherited,  and  continue  to  take  no 
small  part  in  the  affairs  of  the  country. 


Constitutional  Kingship.  245 

In  1429  they  are  allowed  to  have  freedom  Privilege 
from  arrest,  though  this  right  is  not  established  ment. 
by  statute,  and  in  1433  they  obtain  definite 
recognition  of  the  right  to  immunity  from 
molestation  for  "  members  of  either  house 
coming  to  Parliament  or  council  by  the  king's 
command."  In  1430  an  act  was  passed  re- 
stricting the  right  to  vote  in  county  elections 
to  the  forty-shilling  freeholders,  and  in  1433 
and  1446  other  regulations  were  made  in  the 
same  definitive  spirit 

In  this  reign,  too,  the  commons  began  to 
introduce  the  practice  of  legislating  by  bills  in 
place  of  petitions.  We  also  find  them  dezding 
with  matters  of  general  interest  In  1426  they 
urge  that  Beaufort  and  Gloucester  should  be 
reconciled  ;  in  1432,  by  a  petition,  they  secure 
Beaufort  from  the  risks  of  praimunire ;  in 
1433  they  ask  for  the  issue  of  a  "  proclamation 
for  the  suppression  of  riotous  assemblies ; "  in 
1450  they  impeach  Suffolk. 

Jack  Cade's  rebellion  in  1450  illustrates  the  Home  of 
helplessness  of  the  government     Suffolk's  im-  f^'^ZToii 
peachment,  though  constitutional  in  form,  was  ^*^*^'**^''^» 
rather  the  first  act  in  the  drama  of  the  quarrel 
between  York  and  Lancaster,  than  a  legitimate 
step  in  the  history  of  the  growth  of  the  House 
of  Commons.    The  way  in  which  it  was  evaded 


246  Constitutional  Kingship. 

shows  the  helplessness  of  king  and  council  in 
the  face  of  an  opposition  backed  by  public 
opinion,  and  based  on  the  great  family  interest 
of  York. 

Already  "  the  Parliaments  were  too  imperfect 
and  too  one-sided  to  be  regarded  as  fair 
tribunals."  The  towns  throughout  the  country 
were  very  inadequately  represented,  and  that, 
coupled  with  the  fact  that  the  knights  of  the 
shire  were  falling  under  the  influence  of  the 
great  lords,  tended  to  make  the  House  of 
Commons  very  oligarchical.  The  Duke  of  York, 
at  the  close  of  1450,  is  able,  like  Richard  II., 
to  influence  the  elections,  and  secure  a  House 
of  Commons  favourable  to  himself,  and  opposed 
to  the  court  and  council.  In  145 1  freedom  of 
speech  is  violated,  at  the  instance  of  the  king, 
by  the  imprisonment  of  Thomas  Young,  a 
member  of  the  Lower  House,  who  had  brought 
forward  a  motion  declaring  the  Duke  of  York 
heir  to  the  throne.  In  1453  the  duke  himself 
violates  the  right  of  the  commons  to  freedom 
from  arrest  by  imprisoning  Speaker  Thorpe,  a 
Lancastrian  and  an  enemy.  A  few  months 
later  the  first  battle  of  St.  Alban's  was  fought, 
the  Wars  of  the  Roses  had  begun,  and  parlia- 
mentary independence  disappears. 

The  willingness  of  the  Lancastrians  to  rule 


Constitutional  Kings/tip.  247 

constitutionally  had  a  decidedly  beneficent  (and  Summary 
permanent)  effect  upon  the  advance  of  the//^„^^' 
power  of  Parliament,  and  even  in  the  reijni  oi^°^'°f 

^  '  °  Commons. 

Henry  VI.  we  have  seen  that  the  commons  to 
a  great  extent  maintained  their  position. 

Though  at  first  sight  it  might  seem,  from  the 
definitive  statute  of  1430,  and  from  the  loss 
of  all  independence  of  the  Parliaments  which 
sat  during  the  later  and  more  troubled  years 
of  Henry  VI.,  that  things  went  back ;  it  is 
nevertheless  true  that  the  seeming  retrogression, 
as  seen  in  the  invasion  of  the  claims  of  the 
commons  to  liberty  of  speech  and  freedom  from 
arrest  were  only  temporary,  due  to  the  special 
circumstances  of  a  time  when  illegal  acts  super- 
seded constitutional  rights ;  and  that  on  the 
whole  Parliament  maintained  its  position  and 
privileges  till  the  year  1450.  It  is  clear,  from 
the  events  and  legislation  of  the  reign,  that  a 
"growing  value  is  attached  to  a  seat  in  the 
House  of  Commons."  Even  from  the  opening 
of  the  civil  war  to  the  accession  of  Henry  VIL 
the  leaders  on  both  sides  were  always  anxious 
to  get  the  recognition  of  Parliament  for  their  acts 
or  claims.  Richard  III.  received  the  crown  at 
the  invitation  of  the  representatives  of  the  three 
estates.  It  is  true  many  of  the  rights  claimed 
by  the  commons  were  claimed  prematurely.    The 


248  Constitutional  Kingship. 

right  of  impeachment  exercised  in  1376,  1386, 
and   1450  is  not  again  used   till   the  reign   of 
James  I.     The  right  of  appropriating  supplies 
for  specific  purposes,  and  the  right  of  appointing 
auditors  of  the  public  accounts,  do  not  become 
established  principles  until  the  reign  of  Charles 
11.     Freedom  from  arrest  and  liberty  of  speech 
were  asserted  with  varying  success  in  the  six- 
teenth and  the  early  part   of  the  seventeenth 
centuries.     Parliament  had  not  gone  back  under 
the  Lancastrians.    Valuable  precedents  for  future 
and  more  peaceable  times  were   gained,  when 
the    nation    had    recovered    from    the    general 
confusion  attendant  on  the  later  years  of  the 
fifteenth  century. 
///.  Fail-       The  effort  of  the  Lancastrians  to  make  Parlia- 
^Uncas-      ment  the  direct  instrument  of  government  had 
^*^h"  of    ^^^^^^'     ^^    *^^  century  advanced   it  became 
govern-      morc  and  more  evident  that  they  had  attempted 
a  task  beyond  their  powers.     And  yet,  from  the 
circumstances  of  their  rise,  they  were  bound  to 
carry  on   a   constitutional   policy.     Henry  IV., 
Bedford,  and  Beaufort  were  all  men  struggling 
against  forces  which  must  sooner  or  later  get 
the  mastery.      The   ever-increasing  exhaustion 
of  the  country  was  followed  on  Beaufort's  death, 
in    1447,   by   weakness    of  administration   and 
a  consequent  growth  of  anarchy.     The  catas- 


Constitutional  Kingship.  249 

trophe,  however,  does  not  come  until  France 
is  lost,  and  York  is  put  forward  as  the  heir. 
The  fall  of  Henry  and  the  house  of  Lancaster 
was  due  nominally  to  the  superior  claim  of  the 
house  of  York  to  the  throne.  Just  as  the 
personal  wrongs  of  Henry  of  Lancaster  were 
made  the  excuse  for  the  revolution  of  1399,  so 
the  claims  of  the  legitimate  heir  furnished  the 
reason  for  the  deposition  of  Henry  VI. 

No  superior  claims  of  birth  could,  however, 
have  been  successful  against  a  dynasty  which 
had  for  three  generations  occupied  the  throne, 
had  not  the  Lancastrian  government  shown 
extraordinary  weakness.  Dr.  Stubbs  has  charac- 
terized the  Lancastrian  period  as  "  the  trial  and 
failure  of  a  great  constitutional  experiment ;  '* 
and  the  failure  of  Henry  VI.  to  govern  England 
after  Beaufort's  death  was  so  obvious,  that  men 
saw  in  a  change  of  dynasty  the  only  possible 
remedy  for  the  existing  state  of  things.  Apart 
from  the  unpopularity  of  the  queen,  the  want 
of  confidence  in  the  ministers,  and  the  con- 
spicuous failure  of  an  unpopular  foreign  policy, 
the  weakness  of  the  executive  at  home  had 
become  glaringly  conspicuous. 

As  early  as  1450,  two  bishops  had  been  mur- 
dered, in  addition  to  the  rebellion  of  Jack  Cade. 
Between  1450  and  1461  things  went  from  bad 


250  Constitutional  Kingship. 

to  worse.  The  insecurity  of  the  country  dis- 
tricts, due  in  great  measure  to  the  presence  of 
bands  of  soldiers  and  vagrants,  increased  with 
alarming  rapidity ;  and  with  the  lawlessness  of 
the  great  lords,  and  the  imperfect  enforcement 
of  the  law,  marked  the  abeyance  of  all  govern- 
ment, and  rendered  the  cry  for  reform  under  a 
strong  and  efficient  government  irresistible. 

The  Wars  of  the  Roses  in  their  first  beginning 
seemed  an  answer  to  the  national  demand  for 
a  complete  change  of  policy,  but,  after  the  first 
battle  of  St.  Alban's,  they  developed  into  a 
struggle  between  two  dynasties — a  struggle 
regarded  by  the  nobles  as  a  mere  faction  fight, 
in  which  the  family  jealousies  which  had  been 
germinating  for  a  hundred  years  might  be 
settled.  In  these  wars  the  nation  was  essentially 
interested  only  so  far  as  it  seemed  likely  to  gain  a 
ruler  able  to  curb  the  factious  and  selfish  nobility. 
The  accession  of  Edward  IV.  brought  no  final 
settlement  of  the  baronial  strife.  Hence  both 
Edward  and  Richard  III.  were  forced  to  have 
recourse  to  a  sort  of  reign  of  terror,  which  tended 
to  weaken  the  noble  class  still  further,  and  ren- 
dered constitutional  government  impossible.  It 
was  not  till  after  the  battle  of  Bosworth  in  1485, 
that  the  national  aspirations  were  satisfied  with 
the  accession  of  Henry  VII.     By  that  time  the 


Constitutional  Kingship.  251 

nation  had  definitely  learnt  that  the  great  lords, 
following  the  example  set  them  by  the  clergy 
more  than  a  hundred  and  fifty  years  previously, 
preferred  their  own  class  interests  and  personal 
aggrandizement  to  their  inherited  position  as 
leaders  of  the  commons.  Deprived  of  the  suf)- 
port  and  leadership  of  the  Church  and  baronage, 
the  nation  saw  that  a  strong  ruler  with  wide 
powers  was  the  only  hope  for  the  attainment 
of  peace  and  orderly  government  Henry  VII. 
and  his  council  were  enabled  to  give  the  country 
that  freedom  from  foreign  aggression  and  internal 
disorder,  that  enforcement  of  justice,  and  that 
security  of  life  and  property  which  had  been 
so  earnestly  desired  during  the  greater  part  of 
the  fifteenth  century,  and  which  were  so  neces- 
sary for  the  prosperity  of  trade  and  the  cultiva- 
tion of  letters. 

The  house  of  Lancaster  fell  through  "  want  The  house 
of  governance."      Its   fall    brought    about    the  terfcii 
complete  overthrow  of  the  scheme  for  making 'f^^^^y 
Parliament  the  direct  instrument  of  government,  .^'^''^" 

once. 

and  placed  a  check  on  the  constitutional  expan- 
sion of  the  commons.    The  "  lack  of  governance " 
was  an  evil  inherited  from  the  fourteenth  century, 
in  which  the  independence  of  the  great  lords  ^'^Z'^;'^ 
had  already  proved  a  source  of  danger.     Ever  ishtuss 
since  Edward  II.'s  reign,  the  object  of  the  great  %^J.^"^ 


252  Constitutional  Kingship. 

lords  was  to  secure  the  government  of  the 
country  in  their  own  hands.  The  military 
system  which  car^e  into  force  during  the  hundred 
years'  war,  and  by  which  armies  were  raised 
by  contracts  made  between  the  crown  and 
nobles  or  others,  enabled  the  lords  to  maintain, 
after  the  war  was  over,  bands  of  retainers  clad 
in  livery,  who  constituted  a  very  serious  evil  in 
the  reign  of  Henry  VI.  Edward  III.'s  reign 
saw  also  carried  out  successfully  a  definite 
scheme  for  uniting,  by  a  well-devised  system 
of  marriages,  and  by  the  foundation  of  a  new 
nobility,  the  interests  of  the  great  lords  to  those 
of  the  crown.  Henry  HI.,  Edward  I.,  and 
Edward  H.  all  seem  to  have  had  the  same  idea, 
and  to  some  extent  carried  it  out  Edward  HI. 
was,  however,  the  first  king  who  developed  this 
policy,  not  only  in  the  hope  that  the  crown 
might  be  able  to  check  baronial  discord,  but 
also  in  order  to  control,  by  means  of  territorial 
influence,  the  elections  to  the  House  of  Commons. 
Almost  simultaneously  with  their  close  connec- 
tion with  the  crown  can  be  observed  a  rapid 
decline  in  the  numbers  of  the  nobles,  side  by 
side  with  increase  of  their  wealth  and  estates. 
This  decline  in  numbers  is  due,  partly  to  the 
legislation  and  policy  of  Edward  I.,  partly  to 
the   consolidation  of   the   mediaeval   baronage. 


Cofistituiional  Kingship.  253 

As  soon  as  the  idea  of  an  hereditary  peerage 
became  fixed,  the  number  of  peers  diminished, 
estates  tended  to  accumulate  into  fewer  hands, 
and  the  gap  between  the  lords  and  commons 
became  wider.  To  quote  the  conclusive  words 
of  Dr.  Stubbs,  "it  is  difficult  to  overrate  the 
quantity  of  land  which  during  the  Middle  Ages 
remained  in  the  hands  of  the  great  nobles." 
"  Taken  in  the  aggregate,  the  landed  possessions 
of  the  baronage  were  more  than  a  counterpoise 
for  the  whole  influence  of  the  crown  and  the 
other  two  estates  of  the  realm."  The  accession 
of  Henry  IV.  found  the  great  lords  wealthy, 
exclusive,  with  vast  estates  and  bands  of 
retainers,  allied  to  the  Church,  closely  connected 
by  marriage  with  the  crown,  possessed  of  im- 
mense local  influence,  and  ready  on  every  occa- 
sion to  use  the  pernicious  custom  of  maintenance. 
They  no  longer  aspired  to  act  as  leaders  of 
the  commons,  but  rather  desired  to  crush  the 
independence  of  that  body.  The  events  of 
Richard's  reign  had  demonstrated  their  selfish- 
ness, untrustworthiness,  and  faithlessness ;  his 
deposition  had  demonstrated  their  power. 

It  was  soon  apparent  that  the  lords  by  no 
means  approved  of  Henry  IV.'s  policy  of  propi- 
tiating the  commons,  and  it  seemed  doubtful  if 
the  alliance  between  king  and  commons  could 


254  Constitutional  Kitigship. 

hold  its  own  against  the  tremendous  territorial 
influence  and  power  of  the  great  lords. 

The  demand  for  "abundant  governance"  is 
frequently  heard  in  the  reign ;  robbery  and 
marauding  were  common ;  territorial  rivalries 
had  developed  as  early  as  1404  into  a  private 
war ;  dangers  from  Wales  and  France,  and  three 
open  rebellions,  showed  how  precarious  was  the 
position  of  Henry  IV.  and  the  commons.  By  his 
firmness  and  sagacity  the  king  held  the  balance 
between  the  commons  and  the  lords,  and  enabled 
the  former  to  attain  the  climax  of  their  power 
in  the  Middle  Ages  ;  but  it  was  only  the  foreign 
war  of  Henry  V.  which  prevented  the  absence 
of  firm  internal  administration  from  being  more 
prominent  than  it  was  during  his  short  reign. 
With  the  accession  of  Henry  VI.  the  influence 
of  the  lords  in  the  government  of  the  country 
became  paramount.  In  spite  of  the  genuine 
attempt  of  the  council  to  govern  with  authority, 
private  wars  and  general  public  disorder  increase 
as  the  reign  advances.  To  check  riotous  con- 
duct at  county  elections  Parliament  passed  the 
restrictive  act  of  1430 ;  and  in  1433  the  commons 
asked  for  the  suppression  of  disorderly  assem- 
blies. But  no  legislation  could  deal  with  the 
yearly  increasing  mischief.  The  lords  began  to 
quarrel  among  themselves,  and  the  parties  of 


Constitutional  Kingship.  255 

Beaufort  and  Gloucester  are  but  a  preliminary 
stage  of  the  Wars  of  the  Roses.  The  two 
parties  struggled  for  supremacy  in  the  council 
and  for  influence  over  the  king,  while  the  dis- 
organization of  the  country  districts  assumed 
formidable  proportions.  We  have  seen  as  the 
reign  advanced  how  Parliament  failed  to  control 
the  council ;  equally  disastrous  was  the  failure 
of  the  council  to  control  Parliament  by  influenc- 
ing the  elections,  and  to  check  the  growing 
evil  of  local  faction.  At  the  same  time,  the 
House  of  Commons  became  more  and  more 
composed  of  the  nominees  of  great  men  selected 
for  purely  personal  or  factious  purposes. 

Thus  the  "family  settlement"  policy  of  Edward 
III.  had  results  unlooked  for  in  the  fourteenth 
century.  Instead  of  the  crown  checking  the 
quarrels  of  the  nobility,  the  nobles  introduced 
into  the  royal  house  their  own  spirit  of  rivalry 
and  jealousy.  Instead  of  the  crown  controlling, 
through  the  nobles,  the  elections,  the  great  lords 
were  found  in  the  later  years  of  Henry  VI.'s 
reign  influencing  the  elections  in  opposition  to 
the  crown. 

The  Lancastrians  had  followed  the  "hereditary 
traditions  of  the  baronage  "  in  aiding  Parliament 
to  maintain  and  strengthen  its  position.  It  was 
the  lords  themselves  who,  by  their  own  territorial 


2S6  Constitutional  Kingship. 

rivalries  and  personal  aims,  threw  away  the 
leadership  of  the  commons,  and  rendered  the 
exercise  of  government  by  Henry  VI.  impossible. 
In  the  Wars  of  the  Roses  the  baronage  com- 
mitted suicide,  and  enabled  Henry  VII.  to  crush 
the  power  of  the  remaining  nobles,  to  maintain 
peace  at  home  and  abroad,  to  govern  by  means 
of  ministers,  to  be  supreme  over  the  Church. 
Richard  II.  had  probably  desired  to  carry  out 
such  a  policy,  but  he  had  made  the  mistake  of 
advancing  an  extreme  theory  of  prerogative, 
and  attempted  to  put  his  theory  into  practice 
when  the  power  of  baronage  and  Church  was 
unbroken,  when  the  nation  disliked  his  foreign 
policy,  and  distrusted  him  and  his  ministers. 
(2)  Social  Social  causes  did  much  to  strengthen  the 
andindus-  g^cat  lords  and  to  render  the  task  of  govern- 

trial  disor-  ment  difficult.     While  the  fifteenth  century  was 
ptntzatton. 

a  more  prosperous  time  for  the  governed  classes 
than  the  fourteenth,  it  was  a  century  of  social 
disorganization  ;  a  period  of  continual  struggles 
in  the  towns  where  the  craft  guild  system  was 
passing  away ;  a  century  which  witnessed  an 
industrial  and  agricultural  revolution  which  had 
been  developing  with  rapidity  ever  since  the  Black 
Death,  and  which,  like  most  revolutions,  brought 
with  it  social  disorder.  The  Black  Death  was 
followed  by  dearness  of  labour,  and  a  consequent 


Constitutional  Kingship.  257 

rise  in  wages,  which  the  statutes  of  labourers 
were  unable  to  check.  The  landlords,  compelled 
to  recognize  the  new  state  of  things,  and  seeing 
the  impossibility  of  making  "  farming  with  hired 
labour  pay,"  *  began  to  allot  out  portions  of  land 
to  such  as  could  pay  the  rent.  In  this  way 
the  class  of  tenant  or  yeoman  farmers  was 
formed.  But  the  villeins  who  remained  on  the 
land,  finding  their  services  more  rigidly  claimed 
than  ever,  showed  great  discontent,  and  in  the 
rebellion  of  138 1  made  their  well-known  attempt 
to  get  rid  of  all  claims  on  them  for  service. 
Their  attempt  failed,  but  a  great  change  in  the 
use  made  of  land  gradually  enabled  them  to 
secure  the  objects  aimed  at,  and  to  set  them- 
selves free  from  their  masters.  This  great  change 
in  agriculture  was  simply  the  gradual  substi- 
tution of  sheep- farming  for  the  system  of  tillage 
which  had  existed  since  early  English  times. 

The  growing  of  wool  had  throughout  the 
fourteenth  century  been  exceedingly  profitable 
and  the  great  wealth  of  the  landowners,  in  that 
and  the  following  century,  was  very  largely  due 
to  the  sale  of  wool.  This  agricultural  revolution, 
though  very  beneficial  to  the  landowners,  was, 

^  Cunningham,  "Growth  of  English  Industry  and  Com- 
merce," p.  196 ;  also  see  bk.  jiL,  chaps,  i.  and  ii.  for  an 
excellent  account  of  the  revolution. 


258  Constitutional  Kingship. 

while  it  lasted,  extremely  disastrous  to  the 
poorer  population  of  the  country  districts. 

Sheep-farming  required  much  less  labour  than 
did  tillage,  and  consequently  great  numbers  of 
the  peasantry  either  flocked  into  the  towns,  or 
swelled  the  ranks  of  the  vagrants,  who,  ever 
since  the  Black  Deatti,  had  been  a  growing 
evil  These  vagrants  formed  a  great  element 
of  disorder  in  the  rural  districts,  and  their 
appearance  coincided  with  the  gradual  break-up 
of  the  manorial  system  and  the  lessened  respon- 
sibility of  the  lords  of  manors,  who  hitherto  had 
performed  a  most  useful  function  as  the  "  social 
police  "^  in  the  country.  The  villein  had  declared 
his  right  to  do  what  he  liked  with  his  labour. 
In  the  fifteenth  century  the  lord  of  the  manor 
asserted  his  right  to  do  what  he  liked  with  his 
land. 

The  break-up  of  the  manorial  system,  the 
decline  of  the  political  influence  of  the  Church, 
and  the  ever-increasing  paralysis  of  the  central 
government,  combined  to  render  life  and  property 
insecure  in  the  country  districts.  "  Social  dis- 
orders followed  in  the  wake  of  industrial  dis- 
organization."* In  a  period  of  transition,  of 
social  reconstruction  such  as  was  the  fifteenth 
century,  the   country  required    a   clergy  intent 

*  Cunningham,  p.  222.  '  Ibid.,  p.  219^ 


Constitutional  Kingship.  259 

on  diminishing  the  sufferings  of  the  poor,  land- 
owners not  wasting  their  substance  on  retainers, 
but  exercising  a  beneficial  influence  on  the  local 
government  of  the  counties,  at  the  head  of  the 
state  a  king  and  council  in  which  was  to  be 
found  the  greatest  administrative  talent  in  the 
kingdom.  Is  it  a  matter  of  wonder  that,  under 
the  existing  circumstances,  the  control  over 
the  country  districts  gradually,  though  surely, 
escaped  from  the  weak  hands  of  Henry  VI. 
and  his  advisers,  and  that  local  rivalries,  aided 
by  the  social  distress,  were  allowed  to  develop 
into  a  great  and  suicidal  civil  war? 

These     social    disorders    were    considerably  (3)  faiiun 

of  the 

aggravated  by  the  long  continuance  and  ulti-  Fntuh 
mate  failure  of  the  French  war.  Henry  IV., 
compelled  by  his  necessities  to  abstain  from 
an  aggressive  foreign  policy,  with  difficulty  held 
his  own  against  the  feudal  houses.  His  suc- 
cessor plunged  the  nation  into  a  tedious  war, 
which,  however  unprincipled,  was  popular  with 
all  classes,  and  postponed  for  some  forty 
years  the  renewal  of  internal  dissensions.  His 
brilliant  successes  prevented  men  seeing  how 
impossible  the  conquest  of  France  really  was. 
The  death  of  Bedford  and  defection  of  Burgundy 
brought  home  to  Beaufort,  and  later  to  Suffolk 
and  Somerset,  the  advisability  of  limiting  their 


26o  Constitutional  Kingship. 

ambition   to  the   retention   of  Normandy   and 
Guienne  alone.     The  marriage  of  Margaret  of 
Anjou  to  Henry  VI.,  by  which  it  was  hoped 
that   the  possession   of  these   provinces   might 
be   made   secure,   proved    unfortunate   for    the 
Lancastrian  dynasty.     Her  influence  caused  the 
exclusion  from  the  council  of  all  but  her  own 
party,  upon  whom  fell  the  national  wrath,  when, 
in  1453,  the  final  expulsion  of  the  English  took 
place.     The  loss  of  prestige   and   the  damage 
to  trade  incensed  the  nation  against  the  sup- 
posed   authors    of   the    failures    abroad.     The 
general   resentment   did    much   to  render    the 
Yorkist   opposition    successful,   while    the  war 
itself  had  enabled  the  great  lords  to  acquire  in 
the   country  an   ascendancy  incompatible  with 
constitutional   government     Crowds   of  armed 
and  liveried  retainers,  fortified  houses,  the  pre- 
sence of  large  numbers  of  turbulent  soldiers  but 
lately  returned  from  the  wars,  together  formed 
an  element  of  disorder   in   the  country  which 
made  the  administration  of  the  law  well-nigh 
impossible.      Henry    V.'s    foreign    policy    had 
merely    postponed    the    unavoidable    struggle 
between   the   crown  and   the  feudal   houses  to 
a  time  when  the  great  lords  were  in  a  stronger, 
and  the  king  in  a  weaker,  position.    The  interval 
of  sixty  years  only  rendered  the  outbreak  of 


Constitutional  Kingship.  261 

disorder  more  organized,  more  general,  and  more 
intense. 

It  might  have  been  expected  that  the  House  (4)  Tfu 
of  Commons  would  act  as  a  check  on  the  great  of  the 
lords,  and  having  gained  apparently  a  strong  "'""^^^^ 
position  under  Henry  IV.,  would  be  able,  even 
when  deprived   of   the  aid   of   that  sagacious 
monarch,  to  maintain  an  independent   attitude 
towards,   and   exercise   a   controlling   influence 
over,  such  tendencies  to  lawlessness  and  insub- 
ordination.    The  strength  of  the  commons  must 
not,  however,  be  estimated  from  the  principles 
advanced  in  1406,  or,  indeed,  from  their  general 
position     under     Henry     IV.       "  Prematurely 
Richard  had  challenged  the  rights  of  the  nation, 
and  the  victory  of  the  nation  was  premature." 

The  nation  in  reality  was  not  ready  for  the 
self-government  offered  by  the  Lancastrians. 
Parliament  was  not  fit  to  become  the  direct 
instrument  of  government.  Owing  to  the  cir- 
cumstances of  his  accession,  and  to  his  consti- 
tutional leanings,  Henry  IV.  carried  on  the  true 
Lancastrian  policy  of  propitiating  the  clergy 
and  the  commons,  though  that  policy  left  the 
central  power  not  sufficiently  strong  even  in 
his  day  to  curb  satisfactorily  the  disorders  of 
the  times.  In  fact,  even  during  Henry's  reign 
it  was  apparent  that  the  commons  were  strong 


262  Constitutional  Kingship. 

because  it  was  his  policy  that  they  should  be 
strong.  Their  attacks  on  the  property  of  the 
Church  were  promptly  checked,  and  towards 
the  end  of  his  reign  he  showed  considerable 
firmness  in  dealing  with  them.  The  prominent 
position  the  commons  had  taken  up  in  his  reign 
could  not  be  maintained  in  the  reign  of  his 
grandson,  whose  minority,  followed  by  his  in- 
capable rule,  rendered  the  commons  subservient 
to  the  influence  of  the  great  lords.  Henry  IV., 
Henry  V.,  Bedford,  and  Beaufort,  each  in  turn 
continued  to  carry  out  the  Lancastrian  system 
of  government,  and  Henry  VI.  always  showed 
a  great  regard  for  Parliament ;  but  with  the 
death  of  Beaufort,  the  "  mainstay  "  of  the  Lan- 
castrians, it  became  evident  how  absolutely 
unready  the  nation  was  for  self-government 

The  commons  were  themselves  partly  to  blame 
for  the  collapse  of  all  government.  They  failed 
to  see  that  the  real  remedy  lay,  not  in  attacking 
ministers  like  Suffolk,  but  in  strengthening  the 
central  power.  They  did  not  comprehend  that 
the  paralysis  of  government  could  only  be 
checked  by  enabling  the  central  power  to  make 
its  authority  felt  through  the  length  and  breadth 
of  the  land.  The  local  insubordination  which 
was  devouring  England  must  at  all  hazards 
be    checked.     As    the    century  advanced,   the 


Constitutional  Kingship.  263 

commons  became  more  oligarchical.  The  act 
of  1430,  followed  later  by  the  act  of  1446,  by 
which  none  of  the  rank  of  yeomen  were  to  be 
eligible  for  election  to  the  House  of  Commons, 
illustrates  their  growing  exclusive  spirit  Eng- 
land was  by  no  means  ready  for  a  system  of 
government  in  many  points  more  adapted  to 
the  nineteenth  than  the  fifteenth  century. 
Parliament  had  been  given  power  for  which 
it  was  unfit,  the  commons  had  asserted  their 
right  to  privileges  which  they  were  unable 
to  regard  as  fully  established.  The  fact  was. 
Parliament  existed  more  for  the  benefit  of  the 
sovereign  than  it  does  at  the  present  day.  It 
was  not  regarded  as  the  great  controlling  power 
in  the  state.  Even  in  Henry  IV. 's  reign  it  did 
not  meet  every  year.  For  the  necessary  execu- 
tive and  for  much  legislative  work,  the  nation 
was  accustomed  to  look  to  the  king  and  council, 
with  whom  the  real  control  of  matters  was 
usually  found.  The  powers  gained  by  the 
commons  under  Henry  IV.  had  been  prema- 
ture. That  they  were  premature  the  events  of 
Henry  VI.'s  reign  amply  prove. 

The  civil  war   finally  set   the  commons  free  (5)  PoveHy 
from  all  dependence  on  the  nobles,  and  under  mss  ofiht 
the  Tudors  they  learned  to  assume  an  attitude  '^^'^'' 
of  independence  which  enabled  them  successfully 


264  Constitntiofial  Kingship. 

to  oppose  the  Stewarts.  To  a  great  extent  the 
commons  had  reh'ed  on  leaders  during  the  reign 
of  Richard  11.  Their  prominent  position  during 
Henry  IV. 's  reign  was  due,  as  we  have  already 
seen,  to  that  king's  consistent  support.  But 
neither  the  weakness  and  blindness  of  the 
commons,  nor  the  social  distress  consequent  on 
the  break-up  of  the  manorial  system,  nor  the 
lawlessness  of  the  nobles,  would  have  been 
sufficient  to  overthrow  the  Lancastrian  house, 
had  not  Henry  VI.  been  absolutely  deficient 
of  all  administrative  ability,  and  had  not  all 
three  kings  lived  in  a  period  when  the  poverty 
of  the  crown  constituted  a  very  serious  draw- 
back to  the  efficiency  of  the  government.  During 
Henry  VI.'s  long  minority,  the  nation  was  with- 
out a  strong  king  at  the  very  moment  when 
the  lords  were  becoming  unmanageable.  At 
the  end  of  his  minority  Henry  showed  himself 
insensible  to  the  *  responsibility  of  leadership," 
so  incumbent  on  a  ruler  in  those  days,  when 
it  was  of  supreme  importance  that  the  strength 
of  the  crown  should  far  outweigh  the  power 
of  the  nobles.  Without  the  "manliness  of 
Richard  II.,"  ^  he  had  none  of  the  administrative 
qualities  of  Henry  IV.  or  Bedford.     It  is  doubt- 

*  Gairdner's  introduction  to  "  The  Paston  Letters,"  vol. 
i.  P-  53- 


Constitutional  Kingship.  265 

less  true  that  he  inherited  difficulties  not  of  his 
own  making.  The  French  war  bequeathed  to 
the  country  by  Henry  V.  produced  exhaustion, 
and,  ending  in  defeat,  largely  contributed  to  the 
fall  of  the  dynasty. 

The  poverty  of  the  crown  and  the  low  con- 
dition of  the  exchequer  were  other  sources  of 
weakness  for  which  Henry  was  by  no  means 
responsible.  Henry  IV.  had  owned  one-fifth  of 
England  at  his  accession,  but  during  his  reign 
and  those  of  his  immediate  successors,  the  wealth 
and  possessions  of  the  king  decreased  in  pro- 
portion as  the  wealth  and  possessions  of  the 
great  lords  increased.  The  charge  of  extrava- 
gance can  hardly  be  brought  against  the 
Lancastrian  kings.  "  Richard's  fall  initiated 
a  long  reign  of  economical  administration,"  and 
the  commons  interfered  not  only  with  the  admin- 
istration of  the  royal  household,  but  also  with 
the  state  expenses.  When  the  king  was  expected 
to  provide  for  the  intema.l  peace  of  the  kingdom 
and  the  due  administration  of  justice,  to  defend 
the  coasts,  to  support  an  efficient  navy,  to 
keep  up  the  marches  and  to  maintain  Calais, 
which  as  early  as  1410  had  begun  "to  be  a 
constant  drain  on  the  resources  of  England,"  it 
was  perhaps  to  be  expected  that  the  commons 
should  be  desirous  to  see  his  private  revenue  on 


266  Constitutional  Kingship. 

such  a  satisfactory  basis  that  the  king  could 
live  "  of  his  own,"  and  only  apply  to  them  when 
the  national  exigencies  made  the  demand 
necessary.  The  most  obvious  method  for  placing 
the  crown,  financially  speaking,  on  a  sound 
footing,  and  for  making  the  king  sufficiently 
nch  "to  pay  his  own  way,"  was  to  authorize 
a  general  resumption  of  grants  of  land  by  the 
crown,  and  to  prevent  the  king  from  alienating 
in  the  future  the  property  of  the  crown.  This 
was  by  no  means  a  new  idea.  Since  Stephen's 
reign  frequent  attempts  had  been  made  to 
recover  alienated  crown  estates,  and  to  stop  a 
practice  begun  by  that  monarch. 

At  the  very  outset  of  Henry  IV.'s  reign  the 
question  of  a  resumption  was  raised  by  his 
council.  In  1404  the  knights  of  the  shire,  who 
had  already  been  enabled,  owing  to  Henry's 
financial  necessities,  to  take  the  place  of  the 
barons  as  constitutional  leaders,  proposed  a  re- 
sumption of  "all  grants  and  annuities  given 
since  1367,"  in  order  that  Henry  should  live  "of 
his  own."  In  1450  an  act  of  resumption  was 
actually  passed,  and  re-enacted  in  145 1,  by 
which  "all  the  grants  made  since  the  king's 
accession  were  annulled,"  and  in  1456  a  fresh  act 
was  passed.  These  acts  were  too  late,  and  con- 
tained too  many  exceptions  to  be  of  any  real 


Constitutional  Kingship.  267 

benefit  to  the  tottering  Lancastrian  dynasty, 
while  the  grant  of  tunnage  and  poundage  for 
life,  made  in  1453,  only  enabled  Henry  to  rule 
for  a  time  without  Parliament.  Had  a  thorough 
act  of  resumption  been  passed  early  in  the  period, 
had  the  crown  lands  been  made  really  inalien- 
able, the  royal  revenues  would  not  have  been  in- 
ferior to  those  of  many  great  nobles  in  the  land. 

The  Lancastrian  kings,  instead  of  having  to  Gmeral 
weaken  their  own  position  and  the  future  of'*^****'*^ 
their  dynasty  by  allowing  Parliament  to  exercise 
governmental  functions  for  which  it  was  unfit, 
might,  with  the  aid  of  a  council  composed  of 
men  chosen  on  account  of  their  capacity,  have 
established  an  efficient  government  able  to 
guide  the  disorderly  elements  of  society  through 
a  time  of  transition,  and  thus  saved  their 
dynasty.  As  it  was,  Henry  VI.'s  failure  to  rule 
the  country  only  aggravated  the  dangers  which 
were  gathering  round  his  house,  and  threatening 
its  very  existence.  He  was  unfortunate  enough 
to  live  in  a  period  which  saw  the  end  of  a  system 
of  government  unfitted  for  the  age,  and  the  ab- 
sence of  any  new  system  in  its  place.  The  utter 
weakness  of  his  character  rendered  him  abso- 
lutely unfit  to  carry  on  the  policy  which  had 
taxed  all  the  powers  of  Henry  IV.  in  less 
•difficult   days.     Besides,   in    Henry    IV.'s  reign 


268  Constitutional  Kingship. 

that  policy  required  important  modifications. 
The  increase  of  the  power  of  the  great  lords 
required  an  immediate  corresponding  increase  in 
the  powers  of  the  crown.  The  foreign  policy 
bequeathed  by  Henry  V.,  the  poverty  of  the 
crown,  the  growing  social  difficulties,  all  de- 
manded a  strong  administration  at  the  head  of 
the  state.  The  honesty  and  piety  of  Henry  VI.'s 
character,  and  his  adherence  to  the  policy  of  his 
house,  failed  to  make  up  for  his  incapacity  to 
rule  in  days  when  a  "  strong  hand  in  reform,  in 
justice  and  in  police,"  was  required. 


ESSAY  VI. 

THE  INFLUENCE  OF  THE  CHURCH  ON  THE 
DEVELOPMENT  OF  THE  STATE. 

It  was  from  Archbishop  Theodore  that  the  Difficuitus 
Church  of  England  derived  the  organization  ^^^£^ 
necessary  to  fit  her  to  enter  into  relations  with  ^'SIl 
the  State,  and  exercise  an  influence  upon  the 
political  growth  of  the  nation.  The  Heptarchic 
kingdoms  owed  their  Christianity  to  different 
sources:  Kent  to  the  Roman  mission  of  S. 
Augustine,  Northumbria  and  Mercia  to  the 
Scoto-Irish  missions  of  Aidan  and  Chad, 
East  Anglia  to  the  labours  of  Felix  a  Bur- 
gundian,  Wessex  to  those  of  Birinus,  an  Italian, 
and  Sussex  to  the  devotion  of  Wilfrid.  The 
Church  was  thus  herself  in  danger  of  losing 
the  inestimable  boon  of  unity  which  she  was 
giving  to  the  nation.  Each  separate  kingdom 
might  have  had  a  Church  of  its  own,  differing 
in  traditions  from  its  neighbours,  and  proudly 


270         Tlie  Influe^ice  of  tJie  CImrch  on 

accentuating  each  difTerence  as  if  that  alone 
was  the  one  point  of  importance  in  the  Christian 
system.  There  were  plenty  of  subjects  of  dis- 
pute which  might  well  have  grown  to  almost 
impassable  barriers  between  the  Churches,  had 
it  not  been  for  Theodore's  practical  good  sense 
and  power  of  organization.  When  half  England 
owed  its  faith  to  Irish  sources,  it  was  not  improb- 
able that  a  system  like  that  of  Ireland  might 
have  been  introduced ;  where  the  ecclesiastical 
power  lay  in  the  hands  of  abbots  of  large  and 
ill-defined  monastic  communities,  and  bishops 
were  merely  officials  who  received  episcopal 
orders  for  the  purpose  of  transmitting  the  suc- 
cession. It  is  true  that  at  the  synod  of  Whitby, 
held  in  664,  just  before  Theodore's  consecration, 
Oswy,  and  north  England  with  him,  had  accepted 
the  leadership  of  Rome  in  some  matters  of 
discipline  and  in  the  question  of  the  observance 
of  Easter.  Yet  in  parts  of  Mercia  and  Wessex, 
on  the  Celtic  borderland,  the  influence  of  British 
Christianity  was  not  yet  dead,  and  it  was  still 
possible  that  on  questions  such  as  those  of  the 
observance  of  Easter  and  the  primacy  of  Rome, 
some  of  the  English  kingdoms  might  separate 
themselves  from  the  unity  of  Western  Europe. 
Policy  of  From  these  dangers  Archbishop  Theodore 
Thtodon.   ^^^^    ^^    infant    Church.       He    more    than 


the  Dei'elopmmt  of  the  State.  271 

doubled  the  number  of  bishops,  making  the  (i)  Epis- 
boundaries  of  the  new  dioceses  coincide  ^s'^spmH- 
far  as  possible  with  the  territorial  limits  oi^^'*^' 
the  tribes  which  had  originally  settled  in  the 
land,  and  placed  the  seat  of  the  bishop  almost 
invariably  in  a  small  village,  where  his  inde- 
pendence would  be  more  secure  than  in  a 
town.  He  then  instituted  a  synod  of  all  the 
bishops,  to  be  held  under  the  presidency  of  tlie 
Archbishop  of  Canterbury  every  year,  and  so 
provided  for  combined  action  and  personal 
direction.  The  system  thus  begun  by  Theodore 
soon  spread  further.  Just  as  each  bishop  was  (2)  The 
allotted  a  defined  area  of  no  very  considerable  system. 
size,  if  the  sparseness  of  population  is  considered, 
for  the  management  of  which  he  was  responsible 
to  the  archbishop  ;  so  each  township,  or,  when 
the  population  was  small,  a  collection  of  town- 
ships, was  formed  into  the  parish  for  the  spiritual 
necessities  of  which  the  parish  priest  was  respon- 
sible to  the  bishop.  So  by  degrees,  quite  apart 
from  the  missionary  work  of  the  monasteries, 
England  became  divided  for  spiritual  purposes, 
into  the  definite  areas  of  parishes  and  dioceses, 
for  the  ministrations  of  which  definite  ecclesi- 
astical authorities  were  responsible.  In  later 
times,  when  England  gained  political  ,unity  in 
much  the  same  way  as  she  had  at  this  time 


2/2  The  Influence  of  the  Church  on 

gained  ecclesiastical  unity,  the  State  took  advan- 
tage of  the  local  area  which  had  now  become 
so  well  known,  and   the  parish,  instead  of  the 
township   or  the  hundred,  became   the  recog- 
(3)  i^f^ifcfl- nized   unit   of   local   government.     The  origin 
unity  and  of  parishes,  though  not  directly  due  to  Theodore, 
^^A»-     vy^as  the  natural  result  of  his  system,  which  was 
to    make    the    Church    of    England    national 
instead   of  provincial,  and   English   instead  of 
Kentish,    Mercian    or    West    Saxon.      By    the 
ecclesiastical  unity   thus  achieved,  he   gave   to 
the  English  people  a  foretaste  of  the  political 
unity  to  which  they  might  one  day  attain,  and 
to  the  English  Church  a  position   apart  from, 
and  in  some  respects  superior  to,  the  kingdoms 
amongst  which  she  was  placed.     This  enabled 
her  to  develop  her  o\vn  organization  with  great 
freedom,   to    gain    a    considerable    amount    of 
political  liberty  and   privilege,  and  even  to  do 
much  in  guiding  the  policy  of  the  different  state* 
among  the  difficulties  which  surrounded  them. 
It  is  this  independent  position  of  the  English 
Church  which    makes  her   history  so  different 
from  the   neighbouring  state-ridden  Church  of 
Gaul. 
Character       Let  US  try  and  picture  to  ourselves  the  leading 
English     characteristics    of   the   early    English    Church, 
Church,     ^jjgfj^  jjj  ^jjg  eighth  ceniury,  she  emerged  from 


the  Development  of  the  State.  273 

the  hands  of  Archbishop  Theodore — who,  far 
more  than  Augustine  or  even  Aidan,  has  a 
right  to  be  considered  her  real  founder — and 
began  to  exercise  a  leading  influence  upon  the 
development  of  the  national  life. 

She  was  in  full  communion  with   the  great  (?)  ^*^' 

ttotti  with 

Church  of  the  West.  She  held  the  sarne  faith,  the  rest  of 
was  organized  on  the  same  pattern,  and  was  ciom!'"*' 
governed  in  the  same  manner,  as  had  been 
distinctive  of  the  Catholic  Church  since  the 
apostolic  age,  namely  by  bishops  and  synods. 
But  partly  owing  to  insular  position,  partly 
to  the  influence  of  the  Scoto-Irish  missionaries, 
who  had  taken  so  large  a  share  in  the  final  con- 
version of  the  northern  kingdoms,  partly  per- 
haps to  the  traditions  of  British  Christianity 
which  still  lingered  in  the  countries  bordering 
on  Wales  and  Strath clyde,  she  retained  a 
measure  of  self-government  and  real  indepen- 
dence which  was  unique  among  the  Churches 
which  acknowledged  the  patriarchal  dignity  of 
Rome. 

The  dioceses    of   England   were  sixteen   in  (2)  Dio- 
number, — and,  indeed,  did  not  amount  to  more  "**** 
than  eighteen  until  the  Reformation, — of  which 
twelve  formed  the  province  of  Canterbury  and 
four  the  province  of  York ;    but  as  the  latter 
province  was  of  comparatively  small  importance 

T 


274         T^f^  Influence  of  the  Church  on 

until  after  the  Norman  conquest,  and  was 
almost  cut  off  from  the  general  growth  of  the 
national  life  for  a  century  or  more  by  the 
Danish  invasions,  the  real  interest  of  eccle- 
siastical affairs  centred  round  the  province  and 
see  of  Canterbury  ;  and  as  Canterbury  was  close 
to  London,  and  soon  became  absorbed  in  the 
leading  power  of  Wessex,  the  archbishops  very 
early  began  to  exercise  a  great  influence  upon 
politics. 
KX^Gmiern-  ^^^  business  of  the  Church  was  transacted 
i^ent.  mainly  by  the  bishops,  either  in  their  synods — 
national,  provincial,  or  diocesan — or  personally, 
in  virtue  of  their  own  spiritual  authority.  It 
would  seem  that  most  ecclesiastical  legislation 
received  the  sanction  of  the  State  either  by 
the  admission  of  the  king  or  ealdorman  to  the 
synod  in  which  the  laws  were  passed — though 
it  is  not  probable  that  they  actually  took  part 
in  the  passing  of  the  laws — or  by  the  subsequent 
confirmation  of  the  Witan.  There  is  no  doubt 
that  the  aid  of  the  temporal  power  was  given, 
to  the  ecclesiastical  authority  in  carrying  out 
the  law  so  passed,  which  thus  became  part 
of  the  law  of  the  State  as  well  as  of  the 
Church,  and  was  administered,  like  other  law 
in  the  hundred-moots  and  shire-moots.  It  is 
even  probable    that   the  State  recognized  and 


tlu  Development  of  the  State.  275 

enforced  sentences  of  the  bishop,  given  in  his 
own  private  court,  in  matters  which  affected  the 
morals  and  discipline  of  the  clergy.  However 
this  may  be,  the  bishops  certainly  enjoyed  a 
limited  jurisdiction  of  a  temporal  character  by 
common  law,  besides  the  considerable  spiritual 
authority  which  they  exercised  over  both  clergy 
and  laity,  apart  from  the  common  law,  in  virtue 
of  disciplinary  canons  and  the  codes  of  morals 
called  penitentiaries,  the  rules  of  which  were 
generally  recognized  as  binding  upon  the  con- 
science. Relations  between  Church  and  State,  (4)  Rela- 
so  close  and  so  liable  to  become  confused,  are  ^^ 
highly  characteristic  of  the  rough-and-ready  ^'^J-'^A,^ 
illogical  way  in  which  the  early  English  con- 
stitution developed.  They  were  only  possible 
in  a  society  in  which  the  conception  of  law 
was  in  its  infancy,  where  legislators  and  jurists 
did  not  distinguish  over  nicely  between  law 
and  morality,  and  were  content  to  make  both 
coincide  with  religion.  They  could  not  stand 
for  a  moment  under  the  keen  criticism  of 
Norman  logic,  nor,  indeed,  could  they  have 
long  withstood  the  disintegrating  effect  of  the 
spread  of  knowledge.  Directly  men  began  to 
sec  that  it  was  possible  that  it  might  not  be 
the  duty  of  the  State  to  punish  all  actions  which 
were  contrary  to  the  law  of  God,  a   distinction 


2"^^         The  Infliietice  of  tlie  Church  on 

was  established  between  law  and  religion  which 
necessitated  the  separation  of  two  systems, 
which,  though  both  dealt  with  human  action, 
yet  dealt  with  it  from  different  points  of  view 
and  with  different  objects,  the  one  for  the 
protection  of  society,  the  other  for  the  welfare 
of  the  sinner's  soul.  During  the  whole  of  the 
period  before  the  Norman  conquest  that  dis- 
tinction can  be  seen  gradually  asserting  itself, 
and  it  was  only  owing  to  the  sluggish  tempera- 
ment of  the  Englishman  and  the  political 
troubles  of  the  nation,  that  the  system  we  have 
been  describing  existed  so  long.  A  series  of 
relations,  in  which  two  essentially  distinct  func- 
tions, the  temporal  and  the  spiritual,  are  con- 
tinually being  discharged  by  the  same  persons, 
in  the  same  assemblies,  with  the  same  sur- 
roundings, and  under  the  same  conditions,  are 
obviously  impossible  except  in  a  peculiarly  or- 
ganized society,  where  the  spiritual  element  is 
the  stronger  in  intellect  and  takes  the  lead  ; 
where  the  statesmen  and  people  are  docile,  and 
not  inclined  to  inquire  closely  into  the  principle 
of  arrangements  which  work  fairly  well. 

The  relation  of  the  Church  and  the  State 
in  early  English  times  may  not  unfairly  be 
described  as  the  establishment  of  the  State  by 
the  Church.     When  William    I.  and  Lanfranc 


the  Development  of  the  State.  277 

altered  this  by  recogpiizing  the  authority  of  each 
in  its  own  sphere,  they  were  only  carrying 
quickly  into  effect  what  must  inevitably  have 
come  about  slowly  in  the  course  of  a  few  years. 
By  substituting  an  alliance  between  the  two 
powers  for  what  had  been  almost  an  absorp- 
tion of  one  by  the  other,  they  were  taking  a 
necessary  step  onwards  in  the  progress  of  the 
national  life  ;  though  by  so  doing  they  raised 
for  the  first  time  in  English  history  the  problem 
of  the  due  adjustment  of  the  relations  between 
the  two,  which  has  always  hitherto  proved,  and 
must  always  prove,  insoluble. 

At  first  the  maintenance  of  the  clergy  was  (5)  Mam- 
provided  for  by  free  offerings  of  the  people,  oi'f^J'^^f^^ 
which  tithe  was  the  most  important  item.  At 
the  Legatine  Council  of  ySij  that  which  had  been 
a  religious  obligation  on  the  faithful  was  made 
legally  binding  upon  the  whole  as  a  Christian 
people,  and  the  payment  of  tithe  to  the  bishop 
became  just  as  much  an  obligation  of  law  as  the 
payment  of  taxes  to  the  king.  Considerable 
freedom  was,  however,  still  permitted  as  to  the 
church  or  parish  to  which  each  individual  land- 
owner should  make  the  necessary  payment 
Although  in  theory  the  whole  tithe  of  a  diocese 
ought  to  be  paid  to  the  bishop,  and  by  him 
divided  among  the  several  parishes  at  his  dis- 


2/8  The  Influence  of  the  Church  on 

cretion,  the  practice  soon  grew  up  of  devoting 
the  whole,  or  some  considerable  part  of  it,  to  a 
monastery  in  return  for  privileges  accorded  to  the 
benefactor.  It  was  not  until  the  year  1200  that 
the  final  appropriation  of  tithe  to  the  mainte- 
nance of  the  parochial  clergy  was  made  universal, 
by  which  time  a  very  considerable  portion  of 
the  tithe  of  England  had  become  annexed  to 
religious  houses,  and  was  accordingly  forfeited 
to  the  king  on  the  dissolution  of  the  monas- 
teries in  the  reign  of  Henry  VIII,,  and  by  him 
granted  out  or  sold  to  private  owners. 
(6)  Monas'  The  monasteries  formed  the  greatest  glory, 
and  gave  rise  to  the  greatest  abuses  of  early 
English  Christianity.  In  the  earlier  days  of 
the  conversion  the  monastery  was  the  station 
of  the  missionaries,  the  home  of  the  bishop,  and 
the  school  of  the  priesthood.  When  the  Church 
had  won  the  ground  and  was  endeavouring  to 
justify  her  occupation  of  it,  it  was  the  monastery 
which  trained  the  younger  candidates  for  the 
mission  field,  and  which  supplied  the  necessary 
teaching  for  a  cultured  clergy.  English  Chris- 
tianity became  distinctly  tinged  with  monasti- 
cism.  It  became  the  fashion  for  Englishmen 
and  Englishwomen  to  retire  into  monasteries 
either  permanently  or  for  a  limited  time,  with- 
out wholly  throwing  off  the  cares  or  the  plea- 


tents. 


tJie  Developtnent  of  the  Sate.  279 

sures  of  the  world.  Retirement,  in  an  age  of 
roughness  and  of  loneliness,  to  houses  which 
were  larger,  more  comfortable,  and  better  built 
than  most  of  the  houses  of  the  time,  where 
society  was  easily  obtainable,  and  the  restraints 
of  religious  rule  certainly  light,  perhaps  hardly 
perceptible,  made  no  very  great  demands  upon 
the  self-denial  of  the  inmates. 

But  there  were  other  evils  besides  this  laxity 
of  administration  from  which  the  monasteries 
suffered.  Among  them  abuse  of  patronage  was 
by  no  means  the  least.  Kings  and  great  men 
soon  began  to  look  upon  the  monasteries,  of 
which  they  were  the  benefactors,  in  the  light 
of  their  private  property  ;  and  there  is  evidence 
to  show  that  even  an  hereditary  succession  of 
monastic  estates  in  particular  families  was  com- 
paratively common. 

By  the  ninth  century  this  spirit  of  Xsxxty  Effect tf 
which  was  thus  visible  in  the  monasteries  had  itmuuTt*. 
extended  to  the  whole  Church.  During  the 
long  period  of  political  confusion,  which  lasted 
until  the  time  of  Egbert,  while  one  kingdom 
after  another  was  enjoying  a  brief  period  of 
pre-eminence,  from  which  it  was  sure  to  fall  back 
into  a  condition  of  chaos  worse  than  before,  the 
Church  became  the  only  constant  factor  in  the 
State  polity.     To  the  bishops,  accordingly,  fell 


28o         The  Influence  of  the  Church  on 

so  considerable  a  portion  of  political  power, 
that  in  some  cases  it  would  seem  that  the  Church 
actually  played  the  part  of  king-maker.  This 
could  not  fail  seriously  to  affect  the  spiritual 
authority  of  the  clergy.  Insensibly  the  standard 
of  clerical  life  begins  to  sink  among  the  secular 
clergy,  as  it  had  already  sunk  amongst  the 
regulars ;  and  with  it  sinks  the  standard  of 
education  and  culture.  Bishops  are  found 
worldly  enough  to  lead  their  men  into  the  battle- 
field. On  the  accession  of  Alfred  in  871,  the 
ignorance  of  Latin  was  so  great  that  there  were 
no  clergy  south  of  the  Thames  who  could  under- 
stand their  breviaries,  and  the  books  in  the 
monastic  libraries  were  perishing  from  neglect 
Upon  a  Church  so  deteriorated  the  Danish 
conquest  came  like  a  whirlwind.  Northumbria, 
hitherto  celebrated  for  its  learning,  became 
almost  divided  oflf  from  the  rest  of  England. 
The  power  of  the  northern  primate  became 
seriously  curtailed  by  the  extinction  of  the 
dioceses  of  Hexham  and  Whithern.  This  isola- 
tion of  the  north,  coming  as  it  did  just  at  the 
time  when  the  centre  of  political  power  finally 
settled  itself  in  the  south,  deprived  his  province 
of  the  benefit  of  the  revival  of  learning  and 
discipline  associated  with  the  names  of  Alfred 
and  of  Dunstan,  and  made  the  inaccessible  north 


tlu  Development  of  the  State,  281 

permanently  lag  behind  the  now  united  south  in 
the  path  of  civilization.  It  is  not  till  after  the 
Norman  conquest  that  the  northern  primate 
attempts  to  assert  anything  like  an  equality 
with  his  brother  of  Canterbury.  It  is  not  till 
the  end  of  the  eighteenth  century  that  the 
north  of  England  plays  a  leading  part  in  direct- 
ing the  affairs  of  the  country. 

In  the  century  following  the  conversion,  the  Altered 
Church  had  taught  England  to  be  one,  and  had  ^h^ckurck 
^thereby   assumed   a   position    of    independence  <rf''rthen- 

vtvalunaer 

almost  unique  among  national  Churches.  In  Alfred. 
the  revival  which  immediately  followed  the 
attacks  of  the  Danes,  the  initiative,  on  the  con- 
trary, came  from  the  king,  and  not  from  the 
Church.  It  was  the  royal,  not  the  ecclesiastical, 
power  which  won  back  for  England  her  unity, 
and  which  taught  her  to  lead  captive  her  Danish 
conqueror.  It  was  the  royal  power,  not  the 
ecclesiastical,  which  restored  to  the  Church  her 
dominion  over  the  conquered  districts  of  Eng- 
land, and  which  infused  into  her  a  new  desire  for 
knowledge  and  stirred  a  love  of  learning.  The 
natural  consequence  of  this  was  that  the  spiritual 
power  became  more  closely  united  to,  and  more 
dependent  on,  the  royal  power  than  before. 
With  the  growth  of  dependence  came  a  corre- 
sponding loss  of  initiative.    During  the  tenth  and 


282         The  Influence  of  tJie  Church  on 

eleventh  centuries  the  Archbishop  of  Canterbury 
takes  his  place  as  the  trusted,  often  the  chief, 
adviser  of  the  king.  The  bishops  play  a  large 
part  in  the  assemblies  of  the  Witan.  Provincial 
and  diocesan  councils  are  held  more  rarely. 
English  ecclesiastics  begin  to  look  abroad  for 
assistance  and  improvement.  The  connection 
with  Rome  becomes  closer,  and  English  monas- 
ticism  is  reformed  on  the  pattern  of  that  of  Gaul. 
Under  Edgar  the  Church  is  seen  openly  directing 
and  controlling  the  national  policy.  Dunstan, 
although  the  leader  of  a  great  clerical  reformation, 
fs  yet  much  more  a  great  statesman  than  a  great 
ecclesiastic.  He  is  the  first  of  a  long  line  of 
English  ministers  who,  without  forgetting  their 
ecclesiastical  position,  still  less  unmindful  of  the 
privileges  of  their  order,  have  yet  devoted  their 
time  and  their  talents  mainly  to  the  secular 
work  of  carrying  on  the  government  of  the 
country.  In  such  men  the  close  connection 
between  Church  and  State  appears  to  the  best 
advantage,  when,  like  Dunstan,  they  busy  them- 
selves in  removing  all  traces  of  difference  between 
Danes  and  Englishmen,  in  establishing  the 
supremacy  of  the  English  king  firmly  over  all 
the  subject  princes  of  the  island,  in  furthering 
the  cause  of  religious  education  ;  to  the  worst 
advantage,  when,  like  Ranulf  Flambard,  they  lend 


the  Development  of  the  State.  283 

themselves  to  be  the  ministers  and  sycophants 
of  an  unprincipled  despot  In  the  last  few  years 
of  early  English  kingship,  when  the  foreigji  and 
the  national  party  under  Edward  the  Confessor 
were  rehearsing  the  struggle  afterwards  fought 
out  on  the  hill  of  Senlac  and  amid  the  fens  of 
Ely,  it  is  round  Church  questions  that  the 
rivalries  centre.  The  foreign  appointments  of 
the  Confessor,  the  intrusion  of  Stigand  into  the 
vacated  seat  of  Robert  of  Jumi^ges,  the  relations 
of  Harold  to  the  antipope  Benedict,  are  the 
questions  which  give  strength  and  weakness  to 
one  side  or  the  other,  which  decide  men's  actions, 
and  do  much  to  determine  the  issue  of  the  final 
appeal  to  arms.  It  is  significant  how  much  the 
party  of  Godwine  owed  to  a  body  whose  support 
they  had  never  taken  particular  care  to  secure. 
When  we  find  that  successive  kings  as  different 
as  Edward  and  Harold  become  the  benefactors 
of  the  Church  by  the  monastic  foundation  of 
S.  Peter's  of  Westminster  and  the  secular  foun- 
dation of  Holy  Cross  at  Waltham,  and  that  great 
ealdormen  like  Leofric  of  Mercia,  are  noted  for 
liberality  in  the  foundation  of  monasteries,  it 
is  clear  that  the  Church  was  powerful  enough 
for  the  great  men  of  the  day  to  wish  to  gain  her 
favour.  It  is  more  difficult  to  say  how  far  this 
partial    loss  of  independence  and   incj:ei^e^f 


284         The  Influence  of  the  Church  on 

worldliness  helped  to  bring  about  the  national 
failure,  in  the  face  both  of  Danish  and  of 
Norman  conquerors,  which  is  the  distinguishing 
feature  of  the  history  of  England  in  the  eleventh 
century.  Perhaps  it  is  not  unfair  to  assume  that 
the  ease  with  which  English  statesmen  and 
English  ecclesiastics  had  succeeded  in  retaining 
their  dignities  and  emoluments  under  Canute, 
made  them  unable  to  appreciate  the  danger  to 
the  liberty  and  independence  of  the  institutions 
of  the  nation,  both  ecclesiastical  and  civil,  which 
was  threatened  by  the  invasion  of  the  Normans  ; 
too  ready  to  acquiesce  nervelessly,  if  unwillingly, 
in  the  rule  of  a  foreigner,  whose  close  connection 
with  the  papacy  and  whose  absorbing  interests 
in  Normandy  could  not  fail  to  bring  England 
under  influences  quite  other  than  those  which 
had  hitherto  affected  her  national  growth. 
Jhe  Nor-       The  effects  of  the  Norman  conquest  are  seen 

man  con-  .  .        ,       ,  .  r     1       /-..         < 

quest.  at  their  greatest  m  the  history  of  the  Church. 
They  are  far  more  simple  and  far  more  imme- 
diate than  those  which  are  noticeable  in  civil 
matters,  but  the  general  tendency  of  both  is 
the  same.  In  other  words,  William  I.  was  a 
man  who  thoroughly  understood  his  own  mind, 
and  intended  to  have  his  will  obeyed  implicitly 
by  all  his  subjects.  His  policy,  therefore,  with 
regard  to  the  Church  was  similar  in  all  respects 


the  Development  of  tlie  State.  285 

to  that  which  he  adopted  towards  the  State ; 
and  it  mattered  not  whether  he  was  dealing 
with  a  powerful  and  successful  pope,  or  a  weak 
and  discredited  archbishop.  In  all  cases  he 
would  be  fair,  as  he  counted  fairness,  give  to 
each  his  acknowledged  due,  be  strictly  just  but 
never  generous,  and  take  care  that  under  no 
circumstances,  as  far  as  he  could  foresee,  should 
any  rival  be  allowed  to  the  power  of  the  king 
within  his  realm  of  England.  Norman  barons 
had  disputed  his  succession  to  his  duchy. 
Norman  landowners,  strong  in  the  undivided 
allegiance  of  their  vassals,  had  joined  his  rival 
of  France  in  his  earlier  wars.  Norman  arch- 
bishops and  bishops,  sprung  from  feudal  families, 
enjoying  what  were  almost  hereditary  honours, 
had  attempted  to  use  the  authority  of  the 
Church  to  favour  the  plans  of  his  enemies. 
They  had  even  been  inclined  to  question  the 
binding  force  of  the  papal  blessing  upon  his 
English  expedition. 

He  would  take  care  that  no  such  dangers 
should  threaten  his  English  throne.  English 
barons  were  to  be  carefully  prevented  from 
obtaining  large  united  territorial  possessions. 
English  landowners,  one  and  all,  were  to  be 
dependent  on  the  king  and  responsible  to  him 
alone.      English  archbishops  and  bishops  were 


286         The  Influence  of  tJie  Church  on 


to  be  merely  his  nominees,  for  as  yet  they  were 
not  even  clothed  by  feudal  law  with  the  quali- 
fied independence  of  feudal  lords.  All  traces 
of  hereditary  right  in  English  sees  and  English 
abbacies  were  to  be  rigorously  swept  away. 
Above  all  things,  the  unity  of  interest  between 
ecclesiastic  and  baron,  which  might  not  improb- 
ably threaten  the  supremacy  of  the  Crown, 
was  to  be  turned  into  jealousy  and  suspicion. 
The  clergy  were  cut  off  from  a  participation  in 
much  of  the  ordinary  administration  of  justice, 
and  a  common  interest  in  the  law  of  the  land,  by 
the  establishment  for  them  of  a  judicature  and 
a  legal  system  of  their  own  in  all  matters  not 
wholly  secular.  Placed  thus  under  the  authority 
of  courts  of  their  own,  governed  by  the  canon 
law  and  not  the  common  law,  they  became  re- 
sponsible in  the  last  instance  to  the  pope  and  not 
to  the  king,  but  the  avenue  to  the  papal  court 
was  carefully  barred  by  the  necessity  of  first 
obtaining  the  assent  of  the  king  before  the 
appeal  to  the  pope  was  allowed  to  be  lodged. 
Character       In  carrying  out  this  policy,  William  had  the 

of  Lxu^ 

ft  arte.  advantage  of  having  at  his  side  one  who 
combined  in  a  singular  manner  the  zeal  of  an 
ecclesiastic  with  the  wisdom  of  a  statesman. 
Lanfranc,  like  Dunstan,  was  well  fitted  to  be 
the  guide  and  adviser  of  a  great  king  in  eccle- 


the  Development  of  tJte  State.  287 

siastical  affairs.  His  unerring  tact  enabled  him, 
unlike  Dunstan,  to  avoid  making  the  advice 
of  a  friend  to  grow  into  the  dictates  of  a 
minister.  He  had  a  further  advantage  over 
Dunstan  in  that  he  was  bom  in  Italy,  and 
had  received  the  training  of  a  lawyer.  Long 
before  William  had  even  planned  his  expedition 
to  England,  Lanfranc  was  well  known  through- 
out the  West  as  one  of  the  greatest  of  European 
scholars.  Italian  by  birth  and  Norman  in  spirit, 
he  knew  the  strength  and  the  weakness  of  the 
papal  system,  now  growing  to  maturity  under 
Hildebrand.  He  had  himself  been  more  than 
once  the  special  advocate  of  Rome.  He  was 
now  the  trusted  minister  of  a  king  who  prided 
himself  on  admitting  no  superior  authority  to 
his  own  in  his  realm  of  England.  \  If  only  \}s\&  Nature  of 
centralization  of  Rome,  its  business  capacity,  i^fon 
its  moral  power,  its  legal  system,  could  be  ***** 
made  to  work  harmoniously  with  a  constitution 
which,  depending  on  no  principle  and  embody- 
ing no  theory,  had  yet  hitherto  given  to  the 
people  of  England  a  large  amount  of  personzd 
independence  and  political  self-government, 
and  was  in  the  future,  with  all  the  changes 
introduced  by  the  conquest,  to  save  them  from 
the  anarchy  of  unchecked  feudalism  and  the 
misery  of  unchecked  tyranny  :  if  the  relations 


288         The  Influence  of  the  Church  on 

between  Church  and  State  could  be  so  regulated^ 
that  the  moral  power  of  the  Church  might  pre- 
vail to  prevent  the  despotism  of  the  king  from 
degenerating  into  tyranny ;  and  the  jealousy  of 
the  king  invoked  to  prevent  the  independence 
of  the  Church  from  degenerating  into  unpatriotic 
privilege,  how  great  might  be  the  future  of 
England !  It  was  a  policy  well  worthy  of  two 
such  men  as  William  and  Lanfranc,  but  to 
carry  it  out  successfully  it  was  necessary  that 
many  Williams  and  many  Lanfrancs  should 
successively  direct  the  fortunes  of  England,  in 
order  that  a  time  of  steady  and  orderly  govern- 
ment might  appease  the  heart-burnings  conse- 
quent on  the  Conquest,  and  make  Englishmen 
not  merely  contented  with,  but  attached  to,  the 
new  state  of  things.  Such  a  time  of  much-needed 
Meamret  rest  was  not  Secured.  Under  Lanfranc's  guid- 
fram!  ance,  William  remodelled  the  old  English  system. 
All  traces  of  uncanonical  irregularity  were  first 
swept  away,  Stigand  was  deposed,  and  bishops 
consecrated  by  him  obliged  to  receive  recon- 
secration.  Normans  were  appointed  to  all  the 
most  important  ecclesiastical  offices.  The  re- 
lations with  the  papacy,  which  had  for  some 
time  been  far  from  cordial,  were  now  drawn 
much  closer.  Peter's-pence  was  regularly  paid, 
the   approbation   of   the   pope  was    sought   in 


the  Development  of  tJie  State.  289 

most  matters  of  importance,  his  authority  in 
legal  and  moral  questions  was  more  invoked. 
William,  indeed,  refused  in  decided  terms  the 
claim  for  homage  made  by  Hildebrand,  and  laid 
down  in  the  clearest  possible  way,  in  what  he 
called  the  customs  of  the  English  Church,  the 
absolute  right  of  the  king  to  decide  for  his 
subjects  to  whom  their  spiritual  allegiance  should 
be  given,  to  control  the  enforcement  of  Church 
legislation,  and  to  check  the  admission  of  papal 
messages  ;  yet,  inasmuch  as  the  opportunities 
given  to  the  pope  to  exercise  authority  were 
naturally  much  increased  by  the  incorporation 
of  England  into  the  society  of  western  nations, 
it  was  only  to  be  expected  that  those  oppor- 
tunities should  be  fully  and  freely  used. 

We  find,  therefore,  the  Church,  as  influenced  Results  of 
by  the  Norman  conquest  and  moulded  by  the  o/miiTavt 
genius  of  William   and    Lanfranc,   assuming   a?"''^'"'* 

°  '  °       franc. 

position  much  more  defined,  and  representing 
interests  much  more  distinctively  her  own  than 
before.  She  is  now  a  society  within  the  State, 
with  other  objects  than  those  of  the  State, 
organized  purposely  as  a  power  apart  from  the 
State.  She  absorbs  most  of  the  intellect,  and  con- 
sequently embodies  most  of  the  political  thought, 
of  the  nation.  She  is  ruled  by  a  hierarchy 
thoroughly    imbued    with    the    high    ideas    of 

U 


290         The  Itifltience  of  tJie  Church  on 

spiritual  prerogative  dominant  on  the  continent 
She  is  closely  attached  to  the  papacy,  which  is 
the  concrete  expression  of  those  ideas.  Yet  she 
continues  to  recruit  the  ranks  of  her  priesthood 
from  men  who  have  learned  to  value  traditional 
independence  and  constitutional  freedom.  Taking 
to  herself  as  far  as  possible  the  cognizance  of  all 
legal  questions  affecting  morals,  she  no  longer 
makes  English  law  coincide  with  Church  disci- 
pline, but  nevertheless  quickens  its  growth  by 
the  spur  of  her  own  rival  system  of  the  canon 
law — a  system  more  scientific  in  character  and 
more  extensive  in  scope. 
Position  of     Church    and    State    are    now    organized    as 

th:  Church 

in  relation  separate  and  possibly  rival  institutions.  Above 
'  both  is  set  the  king,  with  a  sway  undisputed 
over  the  State,  and  limited  over  the  Church  by 
her  spiritual  independence,  but  nevertheless 
powerfully  affecting  her  every  movement.  In  the 
king  is  found  the  point  in  which  the  two  systems 
combine.  He  is  the  champion  of  national 
freedom  against  the  pope,  of  ecclesiastical  order 
against  the  baronage,  of  uniformity  in  govern- 
ment against  clerical  privilege.  He  is  therefore 
inevitably  found  sometimes  on  the  side  of,  but 
more  frequently  opposed  to,  ecclesiastical  autho- 
rity ;  on  its  side  when,  like  William  I.  or  Henry  I., 
he    requires    its    aid    against    feudal    anarchy, 


the  Development  of  tJu  State.  291 

against  it  when,  like  William  II.  or  Henry  II, 
he  finds  ecclesiastical  authority  interfere  with 
the  free  exercise  of  his  own  methods  of  govern- 
ment Hitherto  Church  and  State  together, 
have,  under  the  leadership  of  the  Church,  taught 
England  to  gain  her  unity,  given  to  England 
her  national  feeling,  and  formed  for  her  in  no 
slight  measure  her  polity.  In  the  future  we 
have  to  trace  how,  as  separate  powers,  sometimes 
in  alliance,  sometimes  in  enmity,  always  in 
competition,  each  assists  in  the  growth  of  the 
other,  and  helps  to  evolve  out  of  the  chaos  of 
conflicting  interests,  something  of  the  orderly 
principles  and  practical  good  sense  characteristic 
of  the  English  constitution. 

During  the  period  that  elapsed  between  the  Alliance 
Conquest   and   the    death    of    Henry    II.,    the  church 
dangers  which   threatened   the   prosperity  and^^^^ 
the  liberty  of  Englishmen  came  from  the  feudal  """^  '■*< 
baronage.     The  alliance  between  the  Crown  and 
the  people  is  close  throughout,  and  the  people 
gladly  support  the  supremacy,  and  even  acquiesce 
in    the  tyranny,  of  the   Crown,   because  they 
recognize  that  in  the  Crown  is  found  the  only 
efficient  safeguard  against  the  far  worse  tyranny 
of  the  nobles.     The  influence  of  the  Church  was 
thrown  on  the  same  side.     It  was  to  Lanfranc 
and  the  English  that  William  Rufus  owed  his 


292         The  Influence  of  the  Church  on 

crown.  Henry  I.  recognized  Anselm  as  the 
chief  adviser  of  himself  and  his  people.  When 
Anselm  himself  becomes  the  champion  of  papal 
pretension,  the  bulk  of  the  clergy  are  found  on 
the  side  of  the  national  king.  It  was  when 
Stephen  quarrelled  with  the  bishops  that  he 
began  to  lose  the  confidence  of  the  country. 
Even  the  monks,  who  are  found  a  few  years 
later  such  ardent  champions  of  papal  preroga- 
tive, were  at  this  time  thoroughly  national  and 
patriotic  in  feeling.  The  devolution  of  the 
Crown,  the  suppression  of  the  feudal  risings,  the 
maintenance  of  orderly  government,  are  due  in 
no  slight  measure  to  this  close  alliance  between 
the  Crown,  the  Church,  and  the  people,  under  the 
Norman  kings.  Other  results  flowed  from  it 
Growth  of  of  more  questionable  advantage.  The  Norman 
IJujytr  sovereigns,  lawyer-like  in  rnind,  anxious  to 
eccUn-  stretch  legal  principles  in  their  own  interests  as 
far  as  possible,  determined  never  to  forego  any 
advantage  which  the  letter  of  the  law  might  give 
thera,  desired  to  be  served  by  men  who,  free 
from  hereditary  ties  and  class  sympathies 
should  be  wholly  devoted  to  the  service  of  their 
masters.  Such  a  class  of  men  was  found  in  the 
lawyer  ecclesiastics  like  Roger  of  Salisbury  and 
William  Giffard — men  whose  legal  ingenuity  had 
been  sharpened  by  knowledge  of  the  law  of  the 


tJie  Development  of  the  State.  293 

Church,  who  had  learned  business  habits  in 
administering  the  affairs  of  a  great  household. 
From  being  merely  the  servants,  they  grew  into 
the  advisers  of  the  king.  From  being  ministers, 
they  became  statesmen.  The  administrative 
reforms  of  Henry  I.  and  Henry  H.  were  largely 
carried  out  by  men  of  this  stamp.  As  a  reward 
for  their  services  they  received  ecclesiastical  pre- 
ferment They  brought  the  knowledge  of  legal  Their  in. 
principle  and  procedure  which  they  had  gained  „^^/yi^ 
from   the  civil   and   canon   law,   to    assist    the  ^f."^^'**- 

ttOH. 

development  of  royal  authority,  and  the  establish- 
ment of  a  system  of  procedure,  sufficiently  intri- 
cate to  require  the  assistance  of  a  professional 
class  for  its  administration.  Thus  the  feudal 
nobles  became  gradually  ousted,  not  merely 
from  the  business  of  the  country,  but  even  from 
their  own  jurisdictions,  but  the  Church  herself, 
though  spiritually  the  weaker,  became  politically 
the  stronger,  from  having  among  her  principal 
officers  the  men  in  whose  hands  the  duty  of 
administering  the  affairs  of  the  country  mainly 
lay. 

The  Crown  and   the  Church   were   thus  in-  Quami 
creasmg  m  power  side  by  side — the  Crown  by  church 
being  the  centre  of  the  opposition  to  the  feudal  ^r^' 
baronage,    the  Church  by  her  connection  with 
a  wider  world  abroad,  by  her  official  relations 


294         The  Influence  of  the  Church  on 


Its  consti- 
tutional 
import 
tance. 


with  the  Crown  at  home,  and  by  her  hold  on  the 
affection  of  the  people  as  representing  a  power 
higher  than  that  of  mere  force.  A  contest  was 
inevitable  between  the  two,  directly  either 
attempted  to  assert  complete  freedom  from  the 
control  of  the  other.  It  is  here  that  the  consti- 
tutional importance  of  the  struggle  between 
Church  and  State  in  the  twelfth  century  really 
lies.  If  Ranulf  Flambard  and  William  Rufus 
had  succeeded  in  making  ecclesiastical  offices  in 
all  points  subject  to  the  ordinary  law  which  regu- 
lated lay  fiefs,  if  bishoprics  had  been  degraded 
into  mere  pieces  of  patronage  belonging  to 
the  king — property  which  he  might  deal  with 
as  he  liked,  if  Henry  II.  had  succeeded  in  im- 
posing the  royal  supremacy  completely  upon  the 
Church,  the  liberties  of  Englishmen  would  have 
suffered  no  less  than  the  privileges  of  the  Church. 
To  look  at  the  struggles  between  Henry  I.  and 
Anselm,  and  between  Henry  II.  and  Becket, 
simply  as  struggles  between  royal  supremacy 
and  clerical  privilege,  is  merely  to  look  at  one 
side  of  the  question. 

The  Church  had  joined  with  the  Crown  and 
the  people  to  suppress  the  power  of  the  feudal 
nobles.  The  Crown,  thus  rendered  supreme 
over  the  feudal  state,  armed  itself  with  the 
weapons    of    feudalism    to    enforce    a    similar 


tJu  Development  of  the  State.  295 

supremacy  over  the  Church.  At  the  same  time, 
the  Church,  stirred  by  the  success  of  the  papacy, 
conscious  that  it  represented  a  higher  moral  ideal 
in  government,  was  trying  to  use  the  weapon 
of  the  canon  law  to  render  itself  independent 
of  the  control  of  the  Crown.  The  complete 
victory  of  either  would  have  been  fatal  to  the 
well-being  of  the  nation,  for  the  Church  repre- 
sented the  only  idea  of  moral  government 
attainable  in  that  age  of  force,  and  without  the 
idea  of  moral  government,  constitutional  liberty 
is  impossible ;  while  the  Crown  represented  the 
only  idea  of  national  unity  attainable  in  an  age 
of  feudalism,  and  without  national  unity  con- 
stitutional liberty  could  not  be  won.  It  was 
just  because  neither  was  completely  victorious, 
but  because  each  was  victorious  in  its  own 
sphere,  that  the  ultimate  achievement  of  liberty 
was  assured.  In  the  question  of  investitures 
the  symbols  of  spiritual  power  remained  with 
the  Church,  and  those  of  the  temporal  power 
with  the  king.  By  the  Constitutions  of  Claren- 
don Henry  obtained  a  recognition  of  the  doc- 
trine that  in  his  realm  of  England  the  king 
is  over  all  persons,  ecclesiastical  as  well  as  civil, 
supreme.  By  the  abrogation  of  the  constitutions 
on  Henry's  penance,  the  Church  received  a 
guarantee  that  this  royal  supremacy  would  be 


296         The  hifluence  of  the  Church  on 


Altered 

relations 

between 

Church 

and  State 

in  consf 

quence. 


exercised  with  due  regard  to  her  superior  moral 
claims.  Each  of  the  rival  powers  was  thus  vic- 
torious in  its  own  sphere,  and  by  its  victory  was 
able  first  to  forward  the  complete  unity  of  the 
nation  under  the  king,  and  then  to  limit  the 
king's  authority  when  it  threatened  to  degenerate 
into  tyranny,  by  the  checks  of  the  independent 
rights  of  the  Church  and  of  the  people,  as  we 
find  them  laid  down  in  Magna  Carta. 

Looking  at  the  relations  between  Church  and 
State  at  the  time  when,  by  the  penance  of 
Henry  II.,  the  struggle  may  be  said  to  have 
ended,  we  are  conscious  of  a  great  change  in 
the  position  of  both  parties.  The  Crown  is  now 
completely  free  from  feudal  rivalry.  It  has 
successfully  established  in  central  and  local 
government  a  system  of  administration,  both 
fiscal  and  judicial,  of  which  it  is  itself  the  head, 
and  to  which  it  supplies  the  motive  power. 
It  has  further  surrounded  itself  with  a  body 
of  officials,  owing  their  position  wholly  to  the 
royal  pleasure,  and  entirely  dependent  upon 
the  royal  favour,  to  whom  is  committed  the 
duty  of  administering  a  strongly  centralized 
system  of  royal  government.  The  bureaucracy 
of  modern  despotic  and  republican  governments 
is  strangely  anticipated  by  the  house  of  Anjou. 

The  only  check  to  an  administrative  tyranny, 


the  Development  of  the  State.  297 

in  which  judges,  legislators,  and  ministers  are  all 
dependent  on  the  king  and  the  king  alone,  is 
found  in  a  Church  as  highly  organized,  with 
an  administrative  system  of  judges,  legislators, 
and  ministers  of  her  own,  almost  independent 
of  the  king.  The  Church  claimed  to  represent 
a  higher  morality  than  that  of  the  State,  and 
to  give  effect  to  it  by  the  system  of  appeals 
to  the  pope,  now  well  established.  She  was 
enabled,  by  the  knowledge  of  the  civil  law  but 
lately  revived,  and  the  canon  law  lately  codified 
by  Gratian  and  Ivo  of  Chartres,  to  oppose  a  legal 
system  to  that  of  the  Crown  as  perfect  and  more 
scientific.  She  trained  for  the  service  of  the  king 
most  of  the  ministers  to  whom  the  task  of  ad- 
ministering the  affairs  of  the  kingdom  were  en- 
trusted. When  she  added  to  her  independent 
organization  and  intellectual  superiority  a  unity 
of  purpose  which  was  strengthened  by  the  en- 
forcement of  celibacy,  and  a  zeal  which  was 
stirred  by  the  development  of  monasticism,  she 
became  a  rival  too  strong  for  the  Crown  to 
overcome — a  power  capable  of  awakening  the 
slumbering  energies  of  a  nation  which  had  not 
had  time  wholly  to  forget  the  traditions  of  its 
old  freedom. 

The  exactions  of  Richard  I.  and  the  tyranny  Atliameof 
of  John  broke  the  alliance  between  the  Crown  wUh  tht 


298         Tlie  Iiijliicnce  of  the  Church  on 

iarvtts  and  and   the   Church,   which,   though   it   had    been 
a?Hmjf//4/r  sorely  strained  by  the  struggle  of  the  twelfth 
Crmtm.      century,  had    yet    existed    since    the   days   of 
William  I.     From  the  death  of  Hubert  Walter 
in  1205,  the  influence  of  the  Church  is  thrown 
on  the  side  of  the  barons  and  the  people,  in 
opposition   to   the   Crown.      It   is   the   Church 
which,  under  the  leadership  of  Stephen   Lang- 
ton,  obtains    Magna  Carta  from  John,  on  the 
basis  of   the  charter   of  Henry  I.      It   is   the 
Church   which,  on    the   death    of   John,   takes 
the    lead    in   settling  the   government   in    the 
hands  of  the  regent  Pembroke,  on  the  basis  of 
Magna  Carta.      But  although  the  influence  of 
the  Church  was  on  the  popular  side,  and  did 
much   to   gain   and   establish    popular    liberty, 
ecclesiastical    feeling   was    not    by   any   means 
FormaticH  unanimous.      The    unconditional    surrender    of 
"parties  in   Jo^"  to   ^^e  pope   threw  all    the   influence  of 
^;*f     .      the   papacy   on    the   side   of    the    tyrant,   and 

Church  s 

(a)  the  caused  the  rise  of  a  party  in  England  which, 
(fi)  the  being  primarily  devoted  to  the  interests  of  Ihe 
naiwtuL  pope,  found  itself  usually  supporting  the  autho- 
rity of  the  king.  Thus  was  formed  an  alliance 
between  despotism  in  Church  and  State  which 
proved  terribly  detrimental  to  both.  The  papacy, 
in  constant  opposition  to  the  best  feeling  of 
the  Church  and   the  free  instincts  of  the  nation 


tlie  Development  of  the  State.  299 

forfeited  her  claim  to  represent  a  higher 
morahty.  The  king,  too  often  seen  to  be  the 
servant  and  the  tax-gatherer  of  the  pope,  for- 
feited all  right  to  be  considered  in  an/  way  as 
the  representative  of  the  nation.  We  thus 
find  in  the  Church  of  the  thirteenth  century 
two  distinct  parties.  The  one  compl-ised  the 
royal  nominees,  the  foreign  ecclesiastics  and 
the  regular  clergy,  both  monks  and  friars, 
who,  strongly  attached  to  the  papacy,  and 
supporting  the  claims  made  by  the  popes  to 
govern  England  as  a  papal  fief  in  virtue  of 
the  submission  of  John,  lent  their  assistance 
to  a  discredited  crown,  willing  to  purchase  it 
by  unworthy  deference  to  a  foreign  power.  The 
other  consisted  of  the  leaders  of  the  constitu- 
tional baronage,  the  bulk  of  the  secular  clergy 
and  of  the  commonalty  of  the  land,  who,  actu- 
ated by  strong,  almost  unreasoning,  dislike  of 
foreigners,  and  in  constant  opposition  to  the 
king,  were  anxious  to  resist  papal  encroach- 
ments, not  because  they  denied  papal  preroga- 
tive on  principle,  but  because  they  desired  to 
limit  it  as  well  as  that  of  the  king  by  the  checks 
of  legal  precedent  and  national  right.  Pope 
and  king  were  therefore  united  by  adherence 
to  a  common  principle  and  opposition  to  a 
common    enemy.     Church    and  people  found. 


300         The  Influence  of  the  Church  on 

The  latter  themselves  threatened   by  a  common  tyranny. 

*Chur^      Men  like  Grosseteste  and  Edmund  Rich,  second 

party,  the  ^o  none  in  their  loyalty  to  the  papacy  as  an 

of  Earl      institution,  were  compelled  to  head  the  protest 

of  the  con-  against  the  abuse  of  papal  power.     In  the  rising 

'b^^i^  of  the  barons  under  Simon  de  Montfort,  and 

party.        in  the  Provisions  of  Oxford,  the  political  charter 

of  the  rising,  the  Church  made  common  cause 

with  the  people,  and  sanctioned  a  resort  to  force 

on  behalf  of  liberty,  as  the  only  ultimate  appeal 

in  a  constitution  still  imperfect 

In  the  great  constitutional  struggle  against 
Edward  I.,  which  resulted  in  the  confirmation  of 
the  charters,  and  the  acknowledgment  by  the 
king  of  the  principle  that  taxation  without  con- 
sent of  Parliament  was  illegal,  the  Church  under 
Archbishop  Winchilsey,  played  no  small  part 
It  was  the  opposition  of  the  clergy  to  the 
taxation  levied  by  Edward  that  stirred  the  oppo- 
sition of  the  baronage.  It  was  the  combined 
action  of  the  two  estates  that  forced  the  king  to 
yield.  The  motives  of  the  spiritualty  were,  it  is 
true,  by  no  means  wholly  patriotic.  By  the  bull 
clericis  laicos,  Boniface  VIII.  had  asserted  the 
principles  of  clerical  pretension  and  caste  exclu- 
siveness  in  their  worst  forms,  by  denying  the 
right  of  the  temporal  power  to  tax  the  clergy  at 
all ;  and  the  bishops  in  supporting  him  pressed 


tlu  Development  of  the  State.  301 

their  spiritual  allegiance  to  the  pope  further 
than  their  duty  to  their  country  could  possibly 
warrant  Nevertheless,  directly  opposition  to 
the  royal  demands  was  begun,  the  clergy  found 
sympathizers  with  their  actions,  if  not  with  their 
motives,  from  among  the  baronage,  and  the 
question  was  at  once  raised  to  a  higher  platform, 
and  fought  out  and  decided  on  the  higher  ground 
of  constitutional  principle,  instead  of  the  lower 
one  of  clerical  privilege.  By  the  institution  o^  Recogni- 
Parliament  Edward  I.  gave  the  answer  to  the  'l^ruJaity 
great  question  how  it  was  possible  to  combine  <"««<'^''^* 
national  institutions  with  monarchical  govern-  realm. 
ment,  and  the  Church  received  the  reward  of  her 
patriotism  by  the  full  recognition  of  the  spiri- 
tualty as  an  estate  of  the  realm.  The  power 
which  had  taken  the  lead  in  the  gaining  of 
liberty  under  John,  had  done  so  much  to  con- 
solidate liberty  under  Henry  III,,  was  under 
Edward  I.  to  form  an  integral  and  important 
part  of  the  institution  of  Parliament,  by  which 
liberty  was  to  be  finally  guaranteed  and  de- 
veloped. ^^^JU^f"^^^^^"^^ 

By  the  organization  of  Parliament  the  struc-  influence 
ture  of  the  English  constitution  was  complete.  ^^'^'^^ 
The  principle  of  representation  thus  applied  to*^"''*' . 
matters  of  government,  when  combined  with  the  of  the  eon- 
hereditary  principle  by  that  time  become  domi-  """'"^    ' 


302         The  Influence  of  the  Church  on 

nant  over  the  Crown  and  the  nobility,  brought 
about  the  balance  of  constitutional  forces  known 
as  a  limited  monarchy.  From  the  time  of 
Edward  I.  the  question  of  what  kind  of  govern- 
ment England  was  to  have  was  settled.  It  was 
to  be  a  limited  monarchy — government  by  king 
and  Parliament.  In  the  decision  of  that  ques- 
tion the  Church  had  played  an  important  part, 
both  politically  and  constitutionally — politically 
by  severing  her  old  alliance  with  the  Crown,  and 
giving  herself  over  more  or  less  unreservedly  to 
the  cause  of  liberty  as  maintained  by  the  barons 
and  people  in  their  struggles  with  John  and 
Henry  III. — constitutionally  by  the  influence 
she  exerted  on  the  actual  result  of  the  frame- 
work of  the  constitution,  on  the  legislature,  and 
on  the  executive.  We  will  now  go  on  to  con- 
sider this  latter  point  more  in  detail. 
(I)  Repre-  Representation. — The  principle  of  represen- 
tation is  the  key-note  of  the  English  constitu- 
tion. It  is  by  the  application  of  that  principle 
to  the  different  parts  of  government  that  the  will 
of  the  nation  is  brought  to  bear  upon  the  action 
of  its  rulers,  and  that  some  guarantee  is  obtained 
that  the  policy  of  the  country  will  be  directed  in 
accordance  with  the  interests  of  the  whole  body 
of  electors,  and  not  in  favour  of  one  particular 
class.     Foreign    writers    have    often    remarked 


scntation. 


the  Development  of  the  State.  303 

upon  the  ease  with  which  this  great  constitu- 
tional principle  established  its  supremacy  among 
English  institutions.  Although  it  would  be  too 
much  to  attribute  this  entirely  to  the  influence 
of  the  Church,  there  is  no  doubt  that  her  ex- 
ample  did  much  to  pave  the  way.  Representa- 
tion was  a  mode  of  obtaining  the  opinion  of 
large  numbers  of  people  quite  familiar  to  eccle- 
siastical statesmen  like  Roger  of  Salisbury, 
Becket,  and  Hubert  Walter,  to  whom  is  mainly 
due  its  development  as  the  leading  principle 
of  civil  administration.  Ecclesiastical  councils, 
diocesan,  provincial,  or  national,  had  been  based 
on  this  principle  from  the  earliest  times.  The 
close  connection  between  Church  and  State 
which  had  existed  before  the  Conquest  had 
accustomed  men's  minds  to  a  system  which  was 
reasonable  in  itself  and  convenient  in  practice. 
The  number  of  important  councils  summoned  by 
the  popes  during  the  twelfth  and  thirteenth  cen- 
turies had  shown  how  valuable  might  be  the  sup- 
port given  by  a  body  of  representatives,  coming 
from  different  parts  of  Christendom,  to  a  cause 
which  claimed  to  depend  upon  moral  right 
rather  than  upon  force.  The  plan,  familiar  to  an 
ecclesiastical  body,  of  electing  proctors  to  repre- 
sent their  case  when  disputes  arose,  before  the 
courts  of  pope  or  the  king,  possibly  suggested 


304         The  Influence  of  the  Church  on 

the  similar  machinery  of  the  election  of  sworn 
knights  to  nominate  the  recognitors  of  the 
Great  Assize.  Naturally,  therefore,  when  in 
the  thirteenth  century  it  was  found  necessary 
to  enlist  in  some  definite  way  the  support  of 
the  whole  nation  in  the  effort  to  secure  for  all 
classes  the  benefits  won  for  them  by  Magna 
Carta,  recourse  was  had  to  a  principle  of 
government  which,  through  the  example  of  the 
Church,  was  well  known  to  the  people ;  and 
which  had  brought  to  the  Western  Church  in  its 
contest  with  the  emperor  just  the  very  kind  of 
strength  which  the  nation  was  now  seeking  in  its 
struggles  with  the  Crown. 
{2)  Legal  T/te  Legal  system.  —  In  the  forms  of  the 
froce  ure.  j^g^^j  system,  as  gradually  developed  in  the 
twelfth  and  thirteenth  centuries,  the  influence  of 
ecclesiastical  procedure  is  more  marked.  The 
reason  is  not  far  to  seek.  The  ecclesiastical 
system  of  law  preceded  the  national  system  in 
time  and  excelled  it  in  precision.  Disciplinary 
canons,  formally  passed  with  all  the  authority  of 
a  large  representative  assembly,  and  claiming  by 
that  authority  permanently  to  bind  the  action  of 
Western  Christendom,  were  well  known  and 
commonly  obeyed,  while  Norman  legislation 
was  still  in  the  tentative  form  of  assizes  and  pro- 
visions.   The  canon  law  had  been  codified  and 


the  Dei'dopment  of  the  State.  305 

systematized  by  Ivo  of  Chartres  and  Gratian 
before  the  statute-book  began  to  be.  It  is  not 
until  the  law  takes  the  fully  defined  form  of 
statute  under  Edward  I.  that  the  analogy  to  the 
ecclesiastical  canon  is  complete.  There  is 
reason  to  think  that  the  practice  of  the  royal 
courts  was  copied  direct  from  the  courts  ecclesias- 
tical. The  Church  holy  days,  appointed  to  be 
observed  by  the  canon  law  by  the  cessation  of 
all  litigation,  were  equally  observed  in  the  royal 
courts.  The  forms  of  pleading  by  which  suits 
were  begun  were  substantially  the  same ;  the 
same  rules  of  practice  obtained,  and  even  appa- 
rently the  same  law  of  evidence.^  Records  of  pro- 
ceedings were  ordered  to  be  kept,  in  imitation  of 
the  documents  found  so  useful  in  ecclesiastical 
litigation.  At  the  same  time,  it  must  be  remem- 
bered that  directly  the  common  law  became 
elaborated  into  a  system,  the  jealousy  shown  by 
the  common  lawyers  of  both  the  canon  and  the 
civil  law  was  most  obstinate.  After  the  time  of 
Henry  III.  the  influence  of  the  ecclesiastical  law 
and  procedure  ceased  to  be  the  direct  influence 
of  an  example,  and  became  merely  educational, 

*  This  is  the  view  of  Mr.  J.  G.  Phillimore  (see  "  Oxford 
and  Cambridge  Essays:"  Essay  on  the  Influence  of  the 
Canon  Law),  but  the  procedure  of  both  the  canon  and 
common  law  may  have  been  taken  from  the  civil  law. 

X 


3o6         The  htjiuence  of  the  Church  on 

i.e.  that  of  a  rival  system  of  jurisprudence,  the 
study  of  which  was  interesting  and  necessary  to 
the  properly  trained  jurist,  but  was  without  direct 
bearing  on  the  practice  of  the  courts. 
(3)  Vindi-       Vindication  of   individual  right. — We    have 

cation  of  ,  i        ^i  ,  •  i  .  .  r 

individual  seen  that  the  Church,  owing  to  her  position  of 
"^  independence,  was  the  only  power  that  was  able 

to  withstand  the  authority  of  a  king,  guarded 
and  supported  by  a  bureaucracy  of  his  own 
nomination  ;  and  we  have  seen  how  the  Church 
used  that  power  in  order  to  defend  her  own 
privileges  against  Henry  II.,  and  national 
liberty  against  the  tyranny  of  John.  But  it  was 
not  only  by  the  occasional  assertion  of  general 
principles  that  the  Church  helped  to  nourish 
and  develope  the  growing  plant  of  liberty.  In 
all  questions  which  affected  the  personal  rights 
of  the  individual,  she  is  found  witnessing  to  a 
higher  civilization  and  truer  standard  of  duty. 
From  the  first  the  Church  had  always  set  her 
face  against  the  institution  of  slavery,  and  had 
succeeded  in  mitigating,  and  eventually,  in  the 
twelfth  century,  in  putting  an  end  to  it,  chiefly 
through  the  efforts  of  men  like  Wulfstan, 
Remigius,  and  Anselm.  Since  then  personal 
slavery  has  been  unknown  in  England.  The 
practice  of  ordeal,  both  in  the  coarse  old  English 
forms  or  in  the  more  chivalrous  Norman  form 


the  Development  of  the  State.  307 

of  wager  of  battle,  was  equally  obnoxious  to  the 
spirit  of  Christianity,  and  the  refornm  of  criminal 
procedure  carried  out  by  Henry  II.  received  the 
support  of  the  Church  all  the  more  readily,  because 
it  was  seen  that  thereby  the  use  of  the  ordeal 
would  be  greatly  lessened.  A  few  years  later  no 
difficulty  was  experienced  in  carrying  out  the 
abolition  of  the  ordeal  altogether  in  obedience  to 
the  decisions  of  the  Lateran  Council  of  121 5. 

In  matters  of  unjust  taxation  the  Church  is 
found  still  more  decidedly  in  the  forefront  of 
the  battle.  To  Becket  we  owe  the  first  refusal 
of  a  subject  to  pay  a  tax  to  the  Crown  which 
he  believed  to  be  unjust ;  when  he  refused  in 
1 163,  to  admit  the  king's  right  to  levy  Danegeld  * 
on  Church  lands  as  a  part  of  the  ordinary 
revenue  of  the  Crown — a  refusal  as  bold,  if  not 
so  patriotic,  as  that  of  John  Hampden  centuries 
later.  To  Hugh  of  Lincoln  is  due  the  credit  of 
being  the  first  who  maintained  successfully  the 
doctrine  that  lands  in  England  were  not  taxable 
by  the  king  for  the  maintenance  of  a  foreign 
war,  with  which  England  had  no  concern. 
Geoffrey,  Archbishop  of  York,  went  into  exile  in 
1207  rather  than  consent  to  the  levying  of  a  tax 
upon  the  clergy  of  a  thirteenth  on  moveables, 

*  There  seems,  however,  to  be  some  reason  to  doubt  if 
this  tax  was  Danegeld.  See  English  Historical  Review^ 
October,  1890. 


3o8         The  Influence  of  the  Church  on 

which  they  had  not  in  any  way  consented  to 
give.  Robert  Grosseteste,  Bishop  of  Lincoln, 
the  friend  and  adviser  of  Simon  de  Montfort,  led 
the  opposition  to  the  attempt  of  the  king  to 
take  a  tenth  of  the  revenues  of  the  clergy  in 
1252,  on  the  pretext  of  a  crusade,  and  pro- 
tested, with  a  freedom  unusual  in  that  age, 
against  the  unholy  alliance  of  king  and  pope  to 
plunder  the  English  nation  and  Church.  To 
Winchilsey,  quite  as  much  as  to  Bohun  and 
Bigod,  is  due  the  obtaining  of  the  confirmation 
of  the  charters  by  Edward  I.,  by  which  taxation 
was  put  under  the  control  of  Parliament.  These 
are  but  a  few  instances  of  the  kind  of  warfare 
carried  on  by  the  Church  on  behalf  of  public 
and  private  liberty,  both  against  the  king  and 
against  the  pope,  during  the  period  we  are 
dealing  with.  That  the  constitution  of  England 
was  eventually  under  Edward  I.,  formed  on  the 
basis  of  a  monarchy  limited  by  law  and  guided 
by  Parliament,  by  which  was  secured  to  each 
individual  the  enjoyment  of  public  and  private 
rights  guaranteed  by  the  law  and  defended  by 
Parliament,  was  due  in  no  slight  measure  to  the 
constant  influence  of  Church  opinion  on  the 
side  of  liberty,  to  the  educating  effect  of  Church 
principles,  to  the  example  of  Church  polity, 
and   to    the  self-denying    patriotic   labours   of 


the  Dti'elopment  of  the  State.  309 

men  like  Stephen  Langton,  Edmund  Rich,  and 
Winchilsey,  the  leading  minds  among  the  clergy. 

Under  Edward  I.  the  mediaeval  English  state  Character 
system  attained  complete  development  By  the sHtution" 
organization  of  the  country  in  three  estates  of  ^'^f^L^/ 
the  realm, — the  spiritualty,  the  baronage,  and 
the  commonalty, — under  a  king  whose  authority 
over  all,  though  supreme  in  principle,  was  limited 
in  fact  by  the  united  action  of  the  three  estates 
assembled  by  representation  in  Parlament,  the 
nation  acquired  a  means  of  bringing  influence  to 
bear  upon  the  government  which  could  not  fail, 
in  times  of  royal  necessity,  to  amount  to  little 
less  than  a  control  of  the  royal  policy.  It  is  the 
great  merit  of  Edward  I.  that  he  sought  to  make 
his  government  rest  upon  the  national  will,  and 
looked  upon  the  union  between  the  Crown  and 
the  people  as  the  surest  source  of  strength.  In 
pursuance  of  this  policy  he  summoned  the 
famous  Model  Parliament  of  1295,  in  which  all 
three  estates  of  the  realm  were  adequately 
represented.  Although  the  completeness  of  the 
design  was  somewhat  impaired  by  the  per- 
sistent refusal  of  the  clerical  proctors  to  attend 
the  meetings  of  Parliament  throughout  the 
fourteenth  century  except  upon  compulsion  ;  yet 
as  the  bishops  and  abbots,  who  sat  as  barons 
in  the  Upper  House,  formed  a  majority  of  that 


310         The  Influence  of  tJte  Church  on 

house,  the  interests  of  the  Church  were  not  likely 
to  be  overlooked,  nor  could  the  Parliament,  even 
without  the  presence  of  the  clerical  proctors,  be 
considered  in  any  way  insufficiently  representa- 
tive of  the  spiritual  estate.  The  character  of 
the  constitutional  warfare  is,  therefore,  somewhat 
altered.  In  Parliament  an  institution  has  been 
found  tolerably  representative  of  the  interests  of 
the  whole  nation,  an  organization  capable  of 
asserting  those  interests  against  the  Crown  or 
the  Church,  a  power  which,  when  once  it  has 
obtained  control  of  taxation,  must  by  the  law 
of  necessity  go  on  to  obtain  control  of  policy. 
The  history  of  the  constitution  of  England 
during  the  fourteenth  and  fifteenth  centuries  is 
the  history  of  the  gradual  acquisition  of  political 
power  by  Parliament  at  the  expense  of  the  king, 
and  by  the  commons  at  the  expense  of  the 
king  and  of  the  nobility,  and  the  constitutional 
importance  of  the  Church  "/ill  be  found  jn  the 
influence  she  brought  to  bear  upon  the  com- 
Altered  batants  on  either  side.  No  longer,  as  in  former 
of  the  in-  times,  does  she  educate  political  opinion  ;  no 
Ou*Church  longer  docs  she  stand  forth  as  the  champion  of 
in  come-     popular  right,  or  the  representative  of  popular 

quenu,         r    r  o  ^  ^ 

instincts.  Her  place  m  these  matters  is  taken 
by  Parliament  The  more  that  her  organization 
is  perfected,  the  more  that  definite  theories  oi 


the  Development  of  tJte  State.  3 1 1 

the  nature  and  limits  of  her  authority  are 
enunciated,  the  more  does  she  tend  to  become 
an  imperiutn  in  imperio,  intent  upon  the  main- 
tenance of  her  own  class  interests,  less  and  less 
sensitive  to  the  pulse  of  the  national  feeling. 
Just  as  the  national  will  is  being  brought  to  bear 
more  directly  upon  government,  and  is. affecting 
constitutional  growth,  the  Church  is  beginning 
to  lose  her  hold  upon  the  nation.  The  influence 
she  exercises  upon  the  development  of  the 
constitution  arises  no  longer  from  the  fact  that 
she  represents  the  best  thought  of  the  nation, 
but  from  the  fact  that  she  is  in  herself  a  great 
institution,  rich,  educated,  and  strong,  the  policy 
of  which  cannot  fail  to  affect  powerfully  the 
fortunes  of  any  country  in  which  she  is  planted. 

It  will  be  convenient  to  treat  of  the  influence 
of  the  Church  on  the  State  during  this  period 
by  considering  her  relations,  first  to  the  pope ; 
secondly  to  the  king ;  and  thirdly  to  the  people. 

Relations  of  the    Church   to  tlte  pope. — The  Relation 
hierarchical  theory  of  the  Church,  which  insisted  ^^/ 
on   the  superiority  of   the   spiritual   over    the  ^'^/^"fT 
temporal    power,  and    exalted    the  claims    oitfuoryof 
the  papacy  as  the  visible  embodiment  of  the  church. 
spiritual     power    over    all     ties    personal    and 
national,  received  in  the   thirteenth  century  in 
England,  an  acknowledgment  more  than  ordi- 


312         The  Influence  of  the  Church  on 

narily  submissive,  owing  to  the  fact  that  Eng- 
land had  been,  since  the  reign  of  John,  a  fief 
of  the  Holy  See.  Men  were  prepared  to  admit 
the  supremacy  of  the  pope  as  Vicar  of  Christ  in 
matters  of  faith  and  morals.  By  many  he  was 
regarded  as  their  feudal  suzerain.  They  were  not 
clear-headed  enough  accurately  to  distinguish 
the  claims  he  made  upon  them  in  his  spiritual  or 
temporal  capacity.  So  it  happened  that,  while 
the  feudal  exactions  levied  because  England 
was  a  fief  of  Rome,  were  for  a  long  time  more 
easily  acquiesced  in,  because  of  the  moral 
prestige  of  the  papacy ;  still,  on  the  other  hand 
when  the  exactions  became  so  intolerable  as 
to  excite  indignant  opposition  in  the  nation, 
that  opposition  was  directed  almost  as  much 
against  the  spiritual  claims  of  the  pope  as 
against  the  abuses  of  his  temporal  government. 
Those  who,  under  king  or  barons,  were  seeking 
to  prevent  excessive  papal  taxation  found  them- 
selves also  compelled  to  put  a  limit  to  papal 
appeals,  to  renounce  papal  suzerainty',  to  check 
papal  patronage,  and  to  vindicate  national 
independence.  The  papal  system  had  become 
so  highly  developed  that  it  was  impossible  to 
excite  opposition  to  any  part  of  it  without 
affecting  the  whole. 

Clerical  taxation   was   one  great   matter   of 


the  Development  of  the  State.  313 

dispute.     After   the  thirteenth  century,  hardly  {2)  Tax- 
ation of  the 
any  attempt  was   made  by  the  popes  to  tax  cUrgy  by 

the  whole  nation,  and  by  the  final  repudiation  *'^M'- 
of  the  papal  suzerainty  in  1366  all  ground  for 
such  claims  was  taken  away ;  but  the  exac- 
tions on  the  clergy  continued  with  more  or 
less  severity  throughout  the  mediaeval  period, 
although  their  pressure  sensibly  abated  after 
the  popes  had  removed  to  Avignon.  First-fruits 
of  bishoprics  and  other  offices  seem  to  have  been 
paid  with  some  degree  of  regularity  from  the 
beginning  of  the  fourteenth  century.  Papal 
demands  for  subsidies  were  refused  even  by 
Richard  II.  and  Henry  VI.,  but  the  tax  of  a 
tenth  of  ecclesiastical  revenue  was  frequently 
imposed,  and,  though  in  name  it  was  granted 
voluntarily  by  the  provincial  synod,  it  was  in 
reality  a  compulsory  tax  levied  by  the  pope 
and  enforced  by  the  king.  Impositions  of  this 
sort,  regularly  levied  from  time  to  time,  could 
naturally  only  be  collected  with  the  consent 
of  the  king,  and  gave  him  convenient  oppor- 
tunity to  exert  pressure  on  the  pope,  when 
he  found  it  desirable.  Besides  these  regular 
sources  of  revenue,  the  pope  obtained  large 
sums  from  the  English  clergy,  in  the  shape  of 
fees  for  appointments  and  dispensations  and 
bulls  of  various  sorts,  which,  being  less  under 


314         The  Influence  of  the  Church  on 

the  guardianship  of  the  State,  formed  a  ready 
(3)  Papal  engine  of  fiscal  tyranny.  Patronage,  however, 
patronage.  ^^^  ^  more  serious  abuse  than  taxation,  and 
one  which  affected  the  interests  of  the  nation 
more  nearly ;  for,  as  the  bishops  and  abbots 
formed  the  majority  of  the  House  of  Lords,  the 
question  with  whom  their  appointment  lay  was 
one  of  the  most  serious  constitutional  import. 
It  is  not,  therefore,  surprising  to  find  that  the 
kings  fought  hard  to  retain  the  decisive  voice 
{<x)Ap-  in  the  nomination  of  bishops.  Over  the  election 
tf^ishops.  ^^  abbots  they  could  hardly  expect  to  be  able 
to  obtain  much  control.  Nor,  indeed,  did  it  so 
much  matter,  as  the  abbots,  besides  being  in 
a  position  of  less  influence  than  the  bishops, 
were  much  less  regular  in  their  attendance  in 
Parliament  Historically,  the  question  of  the 
appointment  of  bishops  was  a  somewhat  com- 
plicated one.  Before  the  Conquest  the  nomina- 
tion was  usually  made  by  the  king  and  Witan, 
though  there  are  some  instances  of  election 
by  the  clergy  of  the  diocese.  The  Norman 
kings  at  first  nominated  bishops  in  their  Great 
Council,  but  during  the  progress  of  the  struggle 
about  investitures  it  came  to  be  the  usual  practice 
that  although  the  king  nominated  the  candidate, 
the  form  of  election  was  allowed  to  the  cathedral 
chapter ;  while  the  bishops  of  the  province  con- 


the  Development  of  the  State.  315 

firmed  the  appointment  and  the  temporalities 
were  granted  by  the  king.  In  12 14  John  granted 
to  the  chapters,  by  a  charter  which  was  confirmed 
by  the  pope,  the  right  of  free  election,  subject 
only  to  the  approval  of  the  Crown.  Long  before, 
however,  the  popes  had  themselves  succeeded 
in  obtaining  a  voice  in  the  matter  by  the  grant- 
ing of  the  pall  to  all  metropolitans,  without 
which  they  rarely  dared  to  exercise  jurisdiction, 
and  by  establishing  their  right  to  decide,  in  the 
last  instance,  all  cases  of  disputed  elections — a 
right  which,  in  the  thirteenth  century,  they 
construed  to  include  the  privilege,  not  merely 
of  deciding  between  rival  candidates,  but  of 
deciding  against  them  all,  and  of  consecrating 
a  nominee  of  their  own  instead. 

In  the  thirteenth  century,  by  means  of  the 
skilful  use  of  this  appellate  jurisdiction,  so  gene- 
rally recognized  and  often  invoked,  the  popes 
succeeded  in  getting  the  nominations  of  the 
metropolitans  in  many  cases  entirely  into  their 
own  hands,  and  obtaining  a  large  share  in  the 
appointment  of  the  suffragan  bishops.  In  the 
succeeding  century  they  completed  the  edifice  by 

quietly  assuming,  by  means  of  provisions,  direct  [B)  Pro- 

visions, 
patronage   over   appomtments  as  to  which   in 

former  times  they  had  only  exercised  the  rights 

of  a  judge  of  appeal.     Ever  since  the  middle  of 


3i6         The  Influence  of  the  Church  ofi 

the  thirteenth  century  the  pope  had  persisted  in 
claiming  to  appoint,  by  provision  as  it  was  called, 
their  own  nominee  to  benefices  in  England,  in 
derogation  of  the  rights  of  the  patrons.  The 
barons  and  people  had  from  the  first  fought 
hard  against  the  innovation,  and  the  bishops 
themselves  had  done  their  best  to  avoid 
obedience ;  yet  so  well  established  had  that 
practice  become  by  the  beginning  of  the  four- 
teenth century — chiefly  owing  to  the  connivance 
of  Henry  III.  and  Edward  I. — that  in  13 13 
Clement  V.  thought  the  time  had  come  when  he 
might  safely  extend  it  to  bishoprics.  During 
the  whole  of  the  century  the  system  continued 
to  flourish,  generally  by  arrangement  between 
pope  and  king,  in  spite  of  Act  of  Provisors, 
which  was  passed  by  Parliament  in  1351  and  re- 
enacted  in  1390  with  the  express  object  of  putting 
an  end  to  it  The  weakness  of  the  papacy  at 
the  beginning  of  the  fifteenth  century  through 
the  Avignonese  captivity  and  the  Great  Schism, 
naturally  checked  the  successful  assertion  of 
illegal  and  universally  detested  claims.  Henry 
v.,  by  restoring  to  the  chapters  the  right  of  free 
election  during  the  schism,  seemed  to  have  dealt 
a  severe  blow  to  the  papal  pretensions  ;  but  the 
reunion  of  Western  Christendom,  under  the  able 
and  aggressive  Martin  V.,  made  matters  worse 


the  Developmmt  of  the  State.  3 1 7 

than  ever.  A  king  like  Henry  VI.,  weak  in  mind, 
the  prey  of  court  factions,  and  dependent  upon 
clerical  support,  was  in  no  condition  to  resist,  and 
from  that  time  to  the  Reformation  most  of  the 
bishops  seem  to  have  been  appointed  by  pro- 
vision, although  the  pope  always  took  care  never 
to  pass  over  a  candidate  strongly  desired  by  the 
king.  The  exercise  of  patronage,  therefore,  Results  of 
during  the  Middle  Ages,  whatever  its  fluctua- \othe'''^ 
tions,  tended  to  dissociate  the  clergy  more  and  Church. 
more  from  the  life  of  the  people.  Whether  it 
was  being  exercised  mainly  by  the  popes  in 
favour  of  Italian  or  English  officials  of  the 
Roman  Curia,  or  whether  it  was  being  exercised 
by  the  king  in  favour  of  his  own  courtiers  or 
lawyer-ecclesiastics,  the  nominees  of  both  equally 
lived  apart  from  the  life  of  the  Church  and  of  the 
nation.  They  had  too  little  in  common  with  the 
bulk  of  the  clergy  whom  they  ruled,  or  the  people 
to  whom  they  ministered.  They  formed  an  official 
class,  obnoxious  to  all  below  them,  and  envied  by 
all  about  them, — a  class  the  prejudices,  nay,  the 
very  existence  of  which  gave  point  to  the  attacks 
of  Wycliffe,  rendered  impossible  the  attempted 
reformation  of  Colet  and  More,  and  left  the 
Church  helpless  and  defenceless  when  the  strong 
arm  of  the  royal  power  was  turned  against  her 
by  Henry  VIII. 


3i8         The  Influence  of  the  Church  on 

(4)  Papal  Jurisdiction. — We  have  seen  how  in  matters 
«/A  •  of  patronage  the  popes  used  their  position,  as 
the  supreme  arbiters  of  Christendom,  to  acquire 
a  direct  control  over  the  higher  appointments  in 
the  English  Church.  A  similar  system  of  tactics 
was  pursued  in  matters  of  jurisdiction.  Before 
the  Conquest,  practically  speaking,  there  were 
no  appeals  to  Rome  at  all.  Under  the  earlier 
Norman  kings  they  became  comparatively  com- 
mon, but  the  previous  assent  of  the  king  was 
always  required  before  the  appeal  was  lodged, 
and  the  removal  of  the  dispute  to  Rome  was 
therefore  more  that  of  a  reference  to  an  arbiter 
than  an  appeal  as  of  right  to  a  final  court.  Never- 
theless, as  the  practice  of  appealing  to  Rome 
became  more  frequent,  the  idea  of  an  arbitration 
died  away,  and  by  the  accession  of  Henry  11.  it 
had  become  pretty  universally  acknowledged 
that  the  Roman  Curia  was  the  final  court  of 
appeal  in  ecclesiastical  cases.  This  was  the 
practice  which  Henry  II.  tried  to  abolish  by 
the  Constitutions  of  Clarendon,  and  there  was 
no  part  of  the  Constitutions  more  actively  can- 
vassed by  the  adherents  of  Becket  than  that 
which  provided  that  the  court  of  the  archbishop, 
acting  under  the  special  mandate  of  the  king, 
should  be  the  final  court  of  appeal  in  ecclesias- 
tical matters.    Great  care  was  accordingly  taken 


the  Development  of  the  State.  319 

that  the  abrogation  of  this  provision,  after  the 
death  of  Becket,  should  be  full  and  unmis- 
takable. From  that  time  to  the  passing  of  the 
Statutes  of  Przemunire  in  1393,  the  stream  of 
appeals  to  Rome  flowed  free  and  unchecked, 
except  by  the  fact  that  after  the  legal  reforms  of 
Edward  I.,  if  justice  and  not  delay  was  the  object 
of  the  suitor,  he  could  obtain  his  object  much 
more  satisfactorily  in  England  than  at  Rome. 
Even  the  trenchant  provisions  of  the  Statutes 
of  Praemunire  did  not  wholly  put  an  end  to  the 
practice.  There  were  still  some  cases  for  which 
the  English  law  was  inadequate  to  deal.  There 
were  often  occasions  in  which  it  suited  the  king 
to  play  into  the  hands  of  the  pope.  Up  to  the 
very  beginning  of  the  Reformation,  the  papal 
authority  on  questions  of  marriage  was  unchal- 
lenged. Enough  of  the  appellate  jurisdiction  Their  con- 
was  left  to  make  men  feel  that,  in  the  matter  effects. 
of  ecclesiastical  jurisdiction,  recourse  was  still 
necessary  to  a  foreign  tribunal  and  a  foreign 
system  of  law ;  and  although  the  influence  of 
that  system  and  the  power  of  that  tribunal  had 
been  considerably  curtailed  by  the  national 
policy,  still  enough  remained  to  show  that 
the  Church  had  to  a  great  extent  ceased  to 
be  national.  Englishmen  were  proud  of  their 
national  constitution,  they  were  proud  of  their 


320         The  Influence  of  the  Church  on 

national  king,  they  were  proud,  and  justly  proud, 
of  their  national  system  of  law.  In  the  legal 
system  of  the  Church,  and  especially  in  the 
appellate  jurisdiction  of  the  pope,  they  found  the 
only  exception  to  the  triumph  of  the  spirit  of 
nationality.  All  the  more  readily,  therefore,  did 
they  embrace  the  opportunity,  when  it  was 
offered  them  in  the  sixteenth  century,  of  re- 
nouncing once  and  for  ever  this  "  foreign  jurisdic- 
tion." The  constitutional  importance  of  the 
appellate  jurisdiction  of  the  papacy  lies  in  the 
fact  that  it  did  much  to  pave  the  way  for 
the  closer  union  of  the  civil  and  ecclesiastical 
judicatures,  which  has  obtained  from  the  Refor- 
mation up  to  the  present  time,  and  which  is 
based  upon  a  theory  of  a  royal  supremacy  not 
very  different  to  that  expressed  by  Henry  II.  in 
the  Constitutions  of  Clarendon. 
(5)  Lega-  Just  as  the  popes  used  their  position  of 
dktion.  referees  in  the  case  of  disputed  elections  to 
bishoprics  to  gain  the  power  for  themselves 
of  nominating  bishops;  so  they  used  the 
acknowledgment  of  their  authority  as  final 
judges  of  appeal  in  ecclesiastical  causes  in  order 
to  acquire  the  right  of  direct  interference  with 
ordinary  ecclesiastical  administration  by  means 
of  legatine  commissions.  There  were  two  kinds 
of  legates  known  to  the  Roman  system.    Legati 


the  Development  of  the  State.  321 

a  latere  were  special  commissioners  sent  by  the 
pope  for  a  particular  purpose,  whose  authority 
accordingly  ceased  when  the  purpose  was  accom- 
plished. Of  this  nature  were  the  legations  of 
John  of  Crema  in  the  reign  of  Henry  I.,  and 
of  Otho  and  Othobon  in  the  thirteenth  century. 
Ordinary  legates^  were  resident  representa- 
tives of  the  pope  in  England,  whose  authority 
varied  from  time  to  time,  just  in  proportion 
as  the  nation  w^s  inclined  to  admit  or  repudiate 
the  claims  of  the  papal  supremacy.  The  very 
appointment  of  a  resident  representative  who 
was  ex  hypothcsi  to  exercise  some  authority, 
however  vague,  over  the  national  Church,  was 
an  assertion  of  a  superiority  which  was  not 
likely  to  pass  unheeded  either  by  the  clergy 
or  the  king.  William  I.,  Anselm,  and  Henry  I. 
all  refused  to  acknowledge  that  any  such  power 
lay  in  the  pope.  It  was  only  cither  during 
troubled  times  like  those  of  Stephen,  or  when 
king  and  primate  were  at  variance  as  during  the 
quarrel  of  Henry  H.  and  Becket,  thSt  the  popes 
were   able   successfully  to   maintain   legates  of 

*  These  legates  are  sometimes  inaccurately  called 
Legati  nati.  The  Legaius  natus  was  an  ex-officio  legate, 
a  man  who  exercised  what  were  considered  legatine  func- 
tions by  virtue  merely  of  his  office,  without  necessarily 
having  a  legatine  commission.  The  archbishops  always 
had  commissions. 


322         The  Influence  of  the  Church  on 

their   own,  in  the  persons  of  Henry   of  Win- 
chester and  Roger  of  York.      Usually  a  com- 
promise was  arrived  at  by  the  appointment  of 
the  Archbishop  of  Canterbury  as  legate.     From 
the   time   of  Langton  (1221)   this   became  the 
usual  course,  and  from  the  middle  of  the  four- 
teenth century  the  commission  was  also  given  to 
the  Archbishop  of  York  to  act  in  the  northern 
province.     So  jealous  were  the  authorities  both 
of  Church  and  State  of  any  attempted  encroach- 
ment   on    the    part    of  the    pope,   that  when 
Martin  V.  suspended  Archbishop  Chichele  from 
the  office  of  legate  for  not  procuring  the  repeal 
of  the  Statutes  of  Praemunire  and  Provisors,  and 
made    Henry  Beaufort,  Bishop   of  Winchester, 
his   special    legate    for    the    Hussite    Crusade, 
animated  and   formal   protests  were  made   by 
the  king's  proctor  and  the  primate  against  the 
sending  of  a  legate  to  England,  except  at  the 
request  of  the  king,  in  much  the  same  terms  as 
those  u.sed  by  Henry  I.  three  centuries  before, 
although   tRere   is  no   evidence   that   Beaufort 
intended  in  any  way  to  interfere  with  the  ordi- 
Iticonsti'   nary  jurisdiction   of  the   archbishop.     Still,  in 
rendu.       spitc  of  the  great  care  which  was  thus  taken 
to  prevent  any  acknowledgment,  even  by  inad- 
vertence, of  the  right  of  the  pope  to  interfere 
by   legation    or    otherwise  with    the    ordinary 


the  Development  of  tlu  State.  323 

administration  of  ecclesiastical  affairs  in  Eng- 
land by  the  bishops  and  archbishops  of  the 
national  Church,  there  is  no  doubt  tliat  the 
appointment  of  the  archbishops  as  legates  of 
the  apostolical  see  did  much  to  create  confusion 
in  the  minds  of  men.  It  might  be  made  to 
appear  that  the  authority  which  they  exercised 
over  the  Church  was  delegated  to  them  by  the 
pope,  and  not  inherent  in  their  own  office. 
They  were  looked  upon  as  primarily  the 
ministers  and  servants  of  a  foreign  power.  The 
system  they  represented  was  felt  more  and 
more  to  be  divorced  from  the  national  life. 
Even  Wolsey,  independent,  strong-minded,  bold 
as  he  was,  anxiously  sought  the  legatine 
authority,  as  the  strongest  weapon  he  could 
use  with  which  to  bring  about  the  reformation 
of  the  Church  which  he  desired  and  in  part 
accomplished :  so  ingrained  in  the  national 
mind  had  become  the  idea  that  the  source  of 
all  ecclesiastical  jurisdiction  was  to  be  found 
at  Rome. 

Relations  of  the  Church  to  the  king.  —  We  Rttatiom 
have  seen  how  strongly  in  the  Middle  Ages 
was  held  the  belief  in  the  spiritual  supremacy 
of  the  pope  ;  and  how,  under  the  double  incen- 
tive of  hierarchical  theory  and  political  neces- 
sity,  the   popes   had   asserted   that   supremacy 


324         The  Influence  of  the  Church  on 

so  as  to  make  the  Church  of  England,  as  time 
went  on,  more  and  more  papal,  and  less  and 
less  national ;  until  she  became  an  iinperium  in 
iniperio,  regarded  as  a  foreign  excrescence  in  the 
midst  of  the  national  growth,  strong  as  a  part 
of    the   common    Christianity   of    Europe,   but 
weak  as  a  source  of  healthy  national  life.     The 
Theory  of  counterpart    to    the    theory    of    the    spiritual 
porai        supremacy  of  the  pope  is  that  of  the  temporal 
supremacy,  supremacy  of  the   king,  and  in  England  this 
doctrine  was  held  no  less  firmly  by  clergy  and 
laity   alike.      It   is    round    the   adjustment    of 
the  relations  of  these  two  rival  principles,  so 
easy  to  be  stated  as  abstract  propositions,  so 
difficult    to    be   translated   into   fact,   that    the 
chief    problems   of  Church   and    State   centre. 
The  pope   represents   the  principle  of  cosmo- 
politanism, the  king  that  of  nationality.     The 
one  may  degenerate  into  mere  foreign  aggres- 
sion, the  other  into  a  blind  and  stupid  insular 
exclusiveness.     By  the   healthy  rivalry   of  the 
two    forces,    rigorous    independent  and  sympa- 
thetic life  is  best  promoted,  and  in  the  union 
of  the  two,  to  further  their  own  personal  and 
selfish   interests,  is   found    the  greatest  danger 
to  both.     Generally  speaking,  the  king  during 
the  fourteenth  century  was  the  advocate  of  the 
Church  against  the  pope,  and  sometimes  against 


the  Development  cf  the  State.  325 

the  clergy  themselves,  but  an  advocate  who  never 
failed  to  exact  a  handsome  fee  for  his  services. 
Nor  was  this  to  be  wondered  at.  The  friars, 
who  had  done  so  much  to  renovate  the  Church 
in  the  thirteenth  century,  and  were  always  the 
humble  henchmen  of  the  papacy,  were  now  at 
the  zenith  of  their  fame,  and  some  of  the  thir- 
teenth-century primates  were  taken  from  their 
ranks.  The  papacy  was  filled  at  the  beginning 
of  the  century  by  the  most  ambitious  and 
most  self-assertive  of  popes,  Boniface  VIII. 
During  the  long  reign  of  Henry  III.  England 
had  earned  at  Rome  the  expressive  title  of  the 
milch  cow  of  the  papacy.  It  was  to  be  expected,  ^ 
therefore,  that  the  papal  claims  would  be  national 
fully  maintained  by  Boniface  and  the  higher  ^^amj/^M/ 
clergy,  and  that  the  duty  of  preserving  the^^/^* 
rights  of  the  Church  and  people  against  their 
own  natural  leaders  would  fall  upon  the  king. 
But,  on  the  other  hand,  it  was  equally  certain 
that  if  the  king  interfered  on  behalf  of  the 
Church  against  the  pope,  no  barren  victory 
in  the  mere  interests  of  justice  would  content 
him.  He  would  use  the  prestige  thus  gained  Results  of 
to  establish  the  authority  of  the  Crown  so 
firmly  upon  the  clergy  as  seriously  to  inter- 
fere with  their  independence.  The  Church  found 
herself,  therefore,  between  two  fires,  and  took 


326         TIu  Influence  of  the  Church  on 

shelter  with  the  one  party  or  the  other,  as  the 
more  immediate  necessities  of  the  moment 
seemed  to  suggest.  The  kings,  true  to  the  great 
principle  of  defending  themselves  against  the 
admission  of  an  authority  co-ordinate  with  their 
own  into  the  administration  of  affairs  in  their 
kingdom,  were  never  over-careful  to  gauge 
too  conscientiously  the  character  of  the  power 
which  they  were  demanding.  The  popes,  while 
they  never  forgot  that  they  were  still  the 
spiritual  heads  of  Christendom,  were  yet  so 
mixed  up  in  the  turmoil  of  politics,  that  they 
found  themselves  compelled  to  go  any  lengths 
and  make  any  sacrifices  in  order  to  keep  their 
revenues  and  their  patronage.  It  is,  therefore 
by  no  means  easy  to  trace  the  exact  constitu- 
tional importance  of  each  question  in  dispute 
as  it  arose.  In  the  matter  of  the  appointment 
of  bishops  and  the  appointment  of  legates,  as 
we  have  seen,  a  compromise  was  effected  between 
the  king  and  the  pope,  by  which  the  interests 
both  of  the  Church  and  of  the  people  were 
(I)  C/mira/ cynically  sacrificed.  In  the  matter  of  clerical 
'iion"'*"^  representation,  on  the  contrary,  the  exclusive 
spirit  of  the  clergy  completely  triumphed. 
After  a  few  useless  attempts  to  induce  them 
to  take  their  places  in  Parliament,  Edward 
III.  allowed  them  to  tax  themselves  in  provin- 


tlu  Development  of  t/u  State.  12 j 

cial  synod.  The  Convocations  met  when  sum- 
moned by  the  archbishops,  and  their  meetings 
did  not  necessarily  correspond  with  the  meetings 
of  Parliament  They  transacted  business  of  all 
sorts  connected  with  the  Church  besides  the 
money  grants,  without  let  or  hindrance ;  and 
although  certainly  from  the  beginning  of  the 
fifteenth  century  it  seems  to  have  been  an 
established  custom  that  the  clerical  grant  should 
bear  a  certain  fixed  proportion  to  the  Parlia- 
mentary grant,  no  compulsion  on  the  matter 
on  the  part  of  the  king  was  ever  exercised, 
perhaps  because  the  necessity  for  such  inter- 
ference never  arose. 

With  regard  to  many  of  the  privileges  of  the  (2)  Anti- 
spiritualty   it  was   far    otherwise.     Throughout  ^ugiskuion. 
the    fourteenth    century    the    kings    found    it 
necessary  to  call  to  their  aid  the  assistance  of 
their  Parliaments  to  check  the  growth  of  clerical 
pretensions,  both  on  the  part  of  the  pope  and  of 
the  national  clergy.     In  the  reign  of  Edward  I., 
two  important  acts  were   passed   to   keep   the 
spiritual  estate  in  due  subordination,  i.e.  (i)  the 
act   de  Religiosis,  passed    in    1 279,   which,  by  (a)  De 
rendering  the  consent  of  the  king  necessary  for 
the  acquisition  of  land  in  mortmain  by  religious 
houses,  both  checked   their  growth  in  wealth, 
which  was  becoming  a  serious  political  danger, 


328         The  Influetice  of  the  Church  on 

and  preserved  the  dues  and  services  of  the  land 
(i3)  Cir-  to  the  lords ;  and  (2)  the  writ  Ciraimspecte 
'^'miu.  '  Agatis,  which  is  with  some  probability  assigned 
to  the  year  1285,  and  which  put  a  stop  to  the 
encroachments  of  the  ecclesiastical  courts  by 
recognizing  their  right  only  to  hold  pleas  on 
matters  purely  spiritual.  In  the  succeeding 
reigns  the  pretensions  of  the  pope  were  more 
formidable  than  those  of  the  clergy.  Petition 
and  remonstrance  followed  each  other  in  quick 
succession  during  the  first  half  of  the  fourteenth 
century  against  the  system  of  Provisors,  but 
with  no  result.  At  last  Parliament,  wearied  with 
the  struggle,  took  the  matter  into  its  own  hands, 
and  passed  in  the  year  135 1  the  famous  Statute 
(7)  Pro.  of  Provisors,  which  was  repeated  with  additional 
penalties  in  1365,  and  subsequently  re-enacted 
and  confirmed  in  1390.  By  this  act  the  rights 
of  patrons  were  maintained,  and  forfeiture  and 
banishment  were  denounced  as  punishments  upon 
any  one  who  procured  promotion  by  papal 
provision.  It  is  noticeable  that,  although  the 
lords  spiritual  refused  their  assent  to  the  act, 
it  was  nevertheless  always  treated  as  a  perfectly 
valid  statute,  was  recognized  by  the  legislation 
of  Henry  IV.  and  Henry  V.,  and  although 
frequently  disregarded  in  practice,  was  never- 
theless constantly   appealed   to  as   embodying 


tlu  Development  of  tJie  State.  329 

the  law  on  the  subject  As  the  Statute  of 
Provisors  dealt  with  patronage,  so  the  Statute 
of  Praemunire  dealt  with  administration.  In  (8)  Pra- 
1353  an  ordinance  was  passed  inflicting  the''' 
penalty  of  outlawry  upon  all  who  refused  to 
answer  for  prosecuting  abroad  suits  cognizable 
in  the  English  courts.  This  ordinance  was 
embodied  in  a  statute  in  the  year  1365,  and  the 
statute  was  amplified  and  re-enacted  in  a  final 
form  in  1393,  in  spite  of  the  protest  of  the  lords 
spiritual.  By  this  act  any  one  who  procured 
from  the  court  of  Rome  any  bull  or  process 
which  touched  the  king's  crown  or  dignity,  was 
to  suffer  the  penalties  of  a  praemunire,  i.e.  out- 
lawry. Thus  the  kings  obtained  a  weapon  of 
the  strongest  possible  character,  to  use  against 
the  pope  if  necessary.  How  greatly  it  was 
dreaded  is  shown  from  the  feverish  anxiety 
evinced  by  the  popes  to  get  it  repealed,  if 
possible,  but  that  any  immediate  use  was  made 
of  it  seems  to  be  improbable.  In  the  next 
century,  of  course,  it  formed  the  pretext  by 
which  Henry  VIII.  laid  the  clergy  at  his  feet. 
In  these  two  statutes  Parliament  asserted  and 
maintained,  on  behalf  of  the  Church  and  realm 
of  England,  an  independence  of  action  with 
regard  to  the  pope  and  the  clergy  which  forms 
a:  link  between  the  policy  of  the  Constitutions 


330         The  Influence  of  the  Church  on 

of  Clarendon  in  the  twelfth  century,  and  that 
of  the  great  Reformation  statutes  of  the  six- 
teenth. Although  the  lords  spiritual,  from 
motives  either  of  duty  or  of  fear,  refused  their 
assent,  there  seems  little  doubt  that  these  pro- 
visions were  a  source  of  advantage  and  security 
to  the  Church  and  the  clergy,  as  well  as  to  the 
king  and  nation. 
(3)  Legis-  In  the  fifteenth  century  the  Church  found 
against  herself  threatened  with  a  new  danger,  that  of 
^''"y-  heresy,  and  the  king  with  a  new  enemy,  that 
of  socialism.  The  doctrines  of  VVycliffe,  as 
adopted  and  taught  by  his  followers  the  Lollards, 
struck  equally  at  the  hierarchical  system  of  the 
Church  and  the  monarchical  system  of  the  State. 
If  the  prelates  found  their  own  position  en- 
dangered by  the  theory  that  personal  grace  is 
the  foundation  of  ecclesiastical  authority,  Henry 
IV.  found  his  government  weakened  and  his 
dynasty  threatened  by  the  Lollard  attacks  upon 
property,  and  their  close  alliance  with  the 
remnants  of  Richard's  party.  The  common 
danger  urged  Church  and  king  to  combine  in 
enforcing  the  series  of  sternly  repressive  measures 
which  have  been  looked  upon  as  the  great  blot 
upon  the  Lancastrian  government  and  the 
mediaeval  Church.  The  statutes  directed  against 
heresy  were  three  in  number.     The  first,  passed 


tlu  Development  of  tlie  State.  331 

under  Richard  II.,  was  aimed  against  Wycliffe's 
poor  priests,  and  authorized  the  Imprisonment 
by  the  sheriffs  of  preachers  certified  by  the 
bishops  to  be  teachers  of  heresy.  The  second, 
passed  under  Henry  IV.  in  1401,  is  the  famous 
statute  de  heretico  comburetido,  and  provided  that 
teachers  and  maintainers  of  heresy  should  be 
liable  to  be  imprisoned  by  the  bishops  until 
abjuration,  and  on  refusal  to  abjure,  or  on  relapse 
after  abjuration,  should  be  handed  over  to  the 
sheriffs  to  be  burned.  The  third,  the  statute 
against  Lollardy  of  1414,  passed  by  Henry  V. 
after  Oldcastle's  attempt  at  revolution  had  failed, 
authorized  the  justices  to  inquire  after'  heretics, 
and  to  deliver  them  to  the  spiritual  court  for 
trial.  Upon  conviction  they  would,  under  the 
act  of  1401,  be  re-delivered  to  the  king's  officers 
for  punishment  By  this  act,  therefore,  heresy 
was  made  an  offence  against  the  common  law 
as  well  as  against  the  canon  law,  punishable  in 
the  case  of  the  obstinate  and  the  relapsed  by 
death.  It  was  put  in  force  with  some  severity 
during  the  few  years  following  Oldcastle's  rising, 
but  the  vast  majority  of  prosecutions  ended  in 
penance  and  recantation,  and  it  does  not  appear 
that  more  than  sixty  persons  in  all  suffered  the 
extreme  penalty.  In  estimating  the  importance 
of  this  legislation,  we  may  at  once  dismiss  from 


332         The  Influence  of  the  Church  on 


Comtitw 

tional 

resuUs. 


our  minds  the  idea  that  there  was  anything  pecu- 
liarly horrible  to  the  ideas  of  that  age  in  the 
punishment  awarded.  Death  by  burning  was  a 
form  of  punishment,  well  known  to  the  English 
common  law  as  well  as  to  that  of  most  countries 
in  the  Middle  Ages,  for  some  crimes  of  more 
than  ordinary  magnitude;  and  it  existed  un- 
repealed in  our  law-books  almost  to  the  present 
century.^  Horrible  as  it  appears  to  us  with  our 
finer  instincts,  it  was  not  so  considered  in  that 
cruel  time,  and  even  from  the  point  of  view  of 
simple  humanity  it  may  perhaps  be  thought  to 
compare  not  unfavourably  with  the  lingering 
torture  of  death  by  the  rack  and  the  weight, 
dealt  out  to  political  prisoners  in  the  more 
enlightened  age  of  Elizabeth  and  James. 

But  while  acquitting  the  Lancastrian  dynasty 
from  the  charge  of  special  bloodthirstiness,  and 
admitting  to  the  full  that  the  danger  to  the 
peace  and  good  order  of  society  from  the 
Lollards  was  great  enough  to  warrant  ex- 
ceptional measures — a  proposition  which  is 
abundantly  proved  by  the  contents  of  the  Lollard 
confiscatory  proposals  in  the  Parliament  of  1410 

*  The  punishment  of  death  by  burning,  for  high  and 
petty  treason  committed  by  a  woman,  which  included  the 
murder  of  a  husband  by  a  wife,  was  not  abrogated  till 
1790  by  the  Act  30  Geo.  III.  c.  48.  See  Stephen's  "  His- 
tory of  the  Criminal  Law,"  vol.  i.  p.  447. 


the  Development  of  the  State.  333 

— we  cannot  but  pronounce  the  legislation  itself 
to  have  been  of  serious  detriment  to  the  well- 
being  of  the  constitution.  In  these  acts  the 
Crown  had  for  the  first  time  called  in  the  assist- 
ance of  the  spiritual  arm  to  aid  the  secular 
government  in  the  performance  of  its  own  proper 
duties.  Procedure  which  existed  for  the  benefit 
of  the  soul  was  used  to  secure  the  safety  of  the 
State.  Opinions  held  and  words  spoken  became 
criminal  matters,  cognizable  by  tribunals  which 
were  looking  quite  as  much  to  the  security  of 
the  government  against  the  traitor,  as  to  the 
security  of  the  Church  against  the  heretic.  Thus 
the  precedent  was  formed  and  the  foundation 
laid  for  that  long  series  of  acts,  ecclesiastical  in 
form  but  civil  in  intention,  which,  from  the  verbal 
Treasons  Act  of  Henry  VIII.*  to  the  "Act  for 
preventing  the  Growth  of  Popery  "  of  William 
1 11.,^  have  been  the  disgrace  of  the  statute-book, 
and  among  the  worst  engines  of  kingly  and  par- 
liamentary tyranny. 

The  Relations  of  the  Church  to  tlie  People. —  Relations 
The   relations   of   the    Church    to   the    nation,  ^fi^, 
though  the  most  important  of  all  in  her  own 
internal  history,  are  the  least  important  from  the 
point  of  view  of  constitutional  development,  for 
in   that  particular  their   influence  must   neces- 

»  26  Hen.  VIII.  c  13,        «  u  and  12  Will  III.  c  4. 


334         The  Influence  of  tlu  Church  on 

sarily  be  but  indirect.  Still,  the  indirect  in- 
fluence of  an  institution  which  filled  so  large  a 
place  in  the  national  life,  and  even  in  the  period 
of  its  decadence  did  so  much  to  mould  the 
thought  and  dominate  the  intellect  of  the  Middle 
Ages,  cannot  but  have  been  large  enough  to 
warrant  a  brief  glance  at  its  relations  to  the 
people  themselves. 

In  the  thirteenth  century  the  Church  was  seen 
at  her  best.  The  clergy  were  taken  from  every 
class  of  society,  from  the  relations  of  the  king 
to  the  humble  friar  who  was  the  poorest  of  the 
poor.  They  led  the  nation  in  its  struggle  for 
liberty,  they  inspired  it  with  the  love  of  art, 
they  taught  it  all  that  it  knew  of  science  and 
literature.  In  the  centuries  that  followed,  a 
breach  between  the  Church  and  the  people 
began  to  show  itself  The  clergy  became  ex- 
ceptionally wealthy  and  exceptionally  numerous, 
but  the  wealth  became  principally  vested  in  the 
larger  monasteries  and  in  some  of  the  bishoprics, 
The  while  the  bulk  of  the  clergy  remained  poor.     As 

^priau.  ^he  system  of  founding  chantries  for  the  saying 
of  Mass  for  the  repose  of  the  departed  became 
developed — owing  partly  to  the  long  French  wars 
— England  became  filled  with  a  number  of  priests 
dependent  upon  the  chantries  for  a  miserable 
stipend,  vowed   to  a  celibate   life,  without   re- 


tJie  Development  of  tJie  State,  335 

sponsibility  for  the  welfare  of  any  human  being, 
without  any  duties  or  employment  except  the 
technical  one  of  their  daily  Mass.     Under  these 
circumstances  it  was  not  to  be  wondered  at  that 
they  became  a  loss  to  the  nation  and  a  scandal  to 
the  Church,  and  helped  to  lower  instead  of  raise 
the  standard  of  morality  in  the  community.  It  was 
possible,  as  the  history  of  Archbishop  Chichele 
shows,  for  men  of  humble  origin  to  rise  to  the 
highest  places  of  position  in  the  Church.     The  Character 
requirement  of  learning  in  every  candidate  iox  prUsthood 
ordination  was  rigorously  insisted  upon  ;  but  as^^^^^' 
time  went  on  that  learning  became  shared  hy  to^i^^o*' 
the  laity  in  daily  increasing  numbers,  and  the 
avenues  for  promotion  daily  became  more  and 
more  closed   to  men  of  humble  origin,  by  the 
closer   connection  between  the  clergy  and  the 
great  families.     In  the  fifteenth  century  England 
was  the  prey  of  the  great  families.     The  Mor- 
timers, the  Poles,  the  Percies,  the  Courtenays, 
the   Beauchamps,  the    Beauforts,    the    Nevilcs, 
absorb  every  office  in  Church  and  State.     The 
Lancastrian   kings,    forced    to    ally   themselves 
with  the  influential  clergy,  did  not  dare,  and  the 
Yorkists  did  not  care,  to  interfere.     The  cause  of  Th« 
the  Church  becomes  identified  in  men's  vcixxidiS  comes aiUea 
with  the  cause  of  the  nobles.      Lollardy  is  at^J^^ 
once  seized  upon  by  the  more  democratic  of  the 


336         The  Influence  of  the  Church  on 

people,  because  they  see  in  it  a  weapon  which 
can  be  used  against  an  aristocratic  Church.  Even 
the  lavish  gifts  that  seem  to  redeem  the  false- 
ness of  the  century,  and  endow  it  with  such  ex- 
quisite beauties  of  art,  are  prompted  more  often 
by  the  sentiments  of  aristocratic  patronage  than 
Divorce      by  the  nobler  spirit  of  self-sacrifice..    The  fact  is, 

between  the  ,  ,       ^,         ,     ,  , 

Church  that  just  as  the  Church  became  more  and  more 
'tuuiotu  organized  as  a  separate  institution  in  the  country, 
affecting  the  national  life,  instead  of  herself  being 
the  expression  of  the  highest  part  of  the  national 
life,  so  she  ceased  to  be  wholly  representative  of 
the  people.  When  the  clergy  became  a  fully  de- 
veloped estate  of  the  realm,  owning  a  large  part 
of  the  wealth  of  the  country,  paying  a  large  pro- 
portion of  the  taxes  of  the  country,  absorbing  a 
large  number  of  the  offices  of  government,  pos- 
sessing a  majority  of  the  House  of  Lords,  having 
a  separate  legislature  of  their  own,  paying  an 
allegiance,  however  limited,  to  a  foreign  power, 
jealously  guarding  from  outside  interference  a 
system  of  judicature  of  their  own  which  they  were 
at  once  incapable  of  reforming,  and  unwilling  to 
permit  to  be  reformed,  the  Church  acquired  in- 
terests of  her  own  to  defend  which  were  anta- 
gonistic to  the  interests  of  the  country,  she  had 
privileges  to  maintain  which  were  dearer  to  her 
than  her  responsibilities.   She  exercised  her  great 


iJu  Development  of  the  State.  337 


influence  in  politics  and  on  the  nation  primarily 
for  her  own  selfish  advantage,  and  only  secon- 
darily for  the  people,  whose  trustee  she  was. 
Accordingly,  when  the  crash  came,  and  the 
reformation  she  had  refused  to  undertake  for 
herself  was  forced  on  her  from  without,  she 
received  a  fitting  reward  for  the  past  by  the  loss 
for  ever  of  her  undisputed  rule  over  the  inner 
life  of  all  Englishmen,  and  by  the  fatal  gain  of 
an  influence,  perhaps  greater  than  before,  over 
the  politics  of  the  nation. 

To  try  and  construct  ideal  theories  of  the  due  Theoria  of 
relations  between  Church  and  State  is  a  task  as  and'^S/au^ 
unprofitable  as  it  is  interesting,  for  if  the  verdict 
of  history  is  to  be  accepted,  such  relations  never 
have  existed  since  the  Church  emerged  from  the 
catacombs,  and  will  never  exist  if  the  experience 
of  the  past  is  at  all  an  earnest  of  the  course  of 
the  future.     Certainly  the  problem  does  not  get 
less  complicated  as  time  goes  on.     The  aim  of 
the  statesman  has  been  rather  to  maintain  such 
a  balance  between  the  two  forces  as  should  avoid 
injustice  to  either,  and  leave  each  independent 
enough  to  be  able   to  develop  freely  its  best 
energies  in   its  own   sphere.     The  difficulty  is  Diffintlty 
exactly  analogous  to  that  experienced  by  poli-  probUm. 
ticians  in  every  limited  monarchy,  namely,  how 
best  to  apportion  power  between  the  king  and 

Z 


338         The  Influence  of  the  Church  on 

the  people.  It  is  easy,  of  course,  to  reduce  the 
sovereign  to  a  mere  ornamental  figure-head 
shorn  of  all  independent  political  power.  It  is 
equally  easy  to  endow  him  with  such  an  extent 
of  personal  authority  as  to  enable  him,  if  he 
chooses,  to  impose  his  will  upon  his  people.  The 
difficulty  of  finding  a  middle  course,  and  con- 
structing such  a  union  between  the  two  as 
should  prevent  harmful  rivalry,  and  enable  each 
force  to  bring  its  own  powers  to  bear  upon  the 
healthy  growth  of  the  constitution,  took  England 
alone  two  revolutions  and  four  centuries  of 
internal  struggle  to  solve,  and  it  cannot  be  said 
that  the  solution,  when  found,  wholly  satisfied 
the  conditions  or  entirely  commended  itself  to  a 
patriotic  mind. 

In  the  Middle  Ages,  the  theorizing  on  the 
subject  of  Church  and  State  chiefly  sprung 
from  the  assertion  of  the  superiority  of  the 
spiritual  power  over  the  civil  by  Hildebrand 
and  his  successors.  Gregory  VII.  himself  found 
it  necessary  to  lay  an  intellectual  foundation 
for  his  hierarchical  assumptions,  and  to  defend 
them  by  reeisoning  in  the  quarrel  with  the 
Policy       emperor  which  inevitably  followed.     Kings  and 

adopted  by  ..... 

kings.  statesmen  were  content  merely  with  guardmg 
themselves  against  the  results  of  such  theories, 
when  they  took  the  form  of  definite  encroach- 


the  Development  of  the  State.  339 

ments  on  the  civil  power.     Acts  such  as  Circum- 
specte  AgatiSy  and  the  Statute  of  Praemunire,  did 
not  affect  to  proceed  upon  any  theory  of  Church 
and  State — such,  for  instance,  as  that  of  the 
nationality  of  the  Church  in  England,  which  was 
laid  down  afterwards  by  Henry  VIII.,  in  the 
preamble  to  the  Statute  in  Restraint  of  Appeals 
of   1534 — but   ignoring,  not   controverting,  the 
papal  position,  merely  laid  down  certain  rules, 
bv  which   certain   particular   privileges   of  the 
clergy  were  curtailed.     It  is  true  that  the  hier-  Rivai 
archical  theories  of  Hildebrand  received,  in  the  i„  the 
twelfth  and  thirteenth  centuries,  a  further  de-  ^^*"**- 
velopment  at  the  hands  of  writers  like  John  of 
Salisbury   and   Thomas  Aquinas,  and   became  (i)  Thomas 
formulated  as  the  orthodox  doctrine  on  the  sub-    ^""""' 
ject  in  the  schools.     The  friars,  especially  the 
Dominicans,  ardently  embraced  them,  and  fur- 
thered  them   by  every  means  in    their  power, 
both  by  thought  and  action.      It  is  significant 
that  in  England  the  greatest  difficulties  between 
Church  and  State  arose  when  the  primates  were 
friars.      It  is  equally  true  that  in  the  fourteenth 
century,  when  the  papacy  had  become  to  a  great 
extent  discredited,  there  grew  up  at  the  Univer 
sity  of  Paris  a  school  which  denied  the  authority 
of  the  pope  in  temporal  matters  altogether. 
Marsiglio  of  Padua  and  William  Ockham,  the 


340  TJie  Influence  of  the  Church  on 

(2)  Mar.     foremost   representatives   of    this    school,   were 
'pcuiucl     prepared  to  maintain,  in  the  broadest  possible 

way,  the  incapacity  of  the  clergy  to  interfere 
at  all  outside  the  purely  spiritual  sphere.  They 
even  apparently  went  so  far  as  to  base  eccle- 
siastical authority  on  the  consent  of  the  Church 
rather  than  on  the  transmission  of  Divine  power. 
These  theories,  with  the  exception  of  the  indirect 
influence  they  exercised  on  the  mind  of  Wycliffe, 
never  bore  practical  fruit  It  was  not  the  victory 
of  any  rival  theory  that  dispelled  the  illusion 
of  the  mediaeval  papacy  in  the  minds  of  men, 
but  its  own  degeneracy.  The  greater  the  hier- 
archical assumption,  the  worse  did  the  miserable 
reality  appear.  Men  could  no  longer  give  a 
blind  adherence  to  an  institution  which,  claiming 
to  be  divine,  had  resulted  in  the  Great  Schism, 
and  produced  the  popes  of  the  fifteenth  century. 
In  England,  where  the  battle  between  the  civil 
and  spiritual  powers  was  less  pronounced,  the 
necessity  for  a  theory  was  less  recognized. 
Until  the  time  of  Wycliffe,  there  is  no  one 
whose  theories  become  in  any  sense  powerful 
factors  in  determining  the  relations  between 
Church  and  State.  Until  then,  such  opinions 
had  remained  in  the  academical  circles  of  the 

schools,   and   had    never  been   applied   to  the 

(3)  W^f* 

liffe.  hard  facts  of  politics.     Even  Wycliffe's  theories 


the  Development  of  the  State.  341 

on  government  were  too  scholastic  in  form  and 
visionary  in  substance  to  have  much  influence 
on  the  constitution.     As  an  enthusiastic  single- 
hearted  enemy  of  abuses,  whether  in  individuals 
or   in   institutions,   he   won    his   way   into  the 
hearts  of  his  fellow-countrymen.     As  the  un- 
folder  of    a   reasoned   scheme   of   constructive 
reform,  he  never  convinced  their  intellects.     The 
relations  between  Church  and  State  in  England 
grew  and  varied  from  time  to  time,  just  as  the 
relations    between   king   and    Parliament   grew 
and  varied,  not  in  accordance  with  any  fixed 
rule  or  accepted  ideal,  but  simply  in  obedience 
with    the    particular    need    of    the    particular 
occasion.     Even  at  the  period  of  her  greatest 
degeneracy  as    a    national    institution,  in    the 
fifteenth  century,  the  Church  never  wholly  lost 
her  old   prestige   and   position,   as   the   leader 
of   the   English   people    and    the    moulder  of 
their  national    life.      Still    in    the    theories   of 
WyclifTe,  as  in  the  rapacity  of  the  popes,  in  the 
selfishness  of  the  kings,  and  in  the  worldliness  of 
the  clergy,  is  to  be  found  one  of  the  causes  which 
helped  to  produce  the  religious  rebellion  of  the 
next  century,  and   to  determine  the  peculiar 
course   which   it    took    in    England.      By  the 
Reformation  another  attempt  was  made  to  settle 
the  due  relations  of  Church  and  State  in  Eng- 


342  Influence  of  the  Church. 

land — an  attempt,  perhaps,  which,  although 
appealing  to  principle  and  based  on  historical 
precedent,  will  hardly  be  considered  by  the 
historian  to  have  produced  results  more  finally 
satisfactory  than  those  which  v/e  have  been  con- 
sidering in  the  Church  of  the  Middle  Ages. 


INDEX. 


Abbots,  78,  168,  169,  171,  309 

Administraiion,  Norman  and  An- 
gevin, I 13-115,  124,  156-158, 
291-293 

Aids,  the  three  legal,  84,  140 

Alcred,  deposition  of,  2a 

Alcnin,  9 

Alderman,  154,  195 

Alfred,  15,  17-19,  21,  280 

Alienation  of  Crown  lands,  264,265 ; 
restrictions  on,  265,  266 

Alod,  3,  25 

Anjou,  Margaret  of,  263 

Anselm,  69,  292,  321 

Appeals  to  Rome,  297,  312,  318-320 

Aquinas,  Thomas,  theory  of  Church 
and  State,  339 

Arundel,  Archbishop,  228 

Aaser,  22 

Aflsize  of  Arms,  95,  194,  218 

,  Clarendon,  99 

,  Mort  d'ancestor,  64 

,  the  Great,  304 

Athelstan,  20,  39.  129 

Bseda,  7 

Bailiff,  26,  72 

Bankers,  Italian,  218 

Barnstable,  201 

Barons,  under  Henry  II.,  121,  155 

——.John,  156,  157,  161-164;  be- 


come national,  168, 174-180,  183, 
195  ;  under  the  Lancastrians,  234- 
241,  249-256,  260,  263-264 
Barons,  under  the  Norman  Kings, 

92.  93,  131-133 
Battle,  trial  by,  97 
Beauchamp,  Lord,  177 
Beaufort,  Cardinal,  245,  248,  249, 

25s,  262,  322 
Becket,  122,  303,  307,  321 
Bedford,  248,  262,  264 
Beneficium,  13,  47 
Beom,  35 
Bigod,  308 
Birinus,  269 
Bishops,  32,  33,  37,  78,  79, 108,  132, 

169,  170,  172,  183,  309,  314,  315 
Black  Death,  256,  258 
Bohun,  308 

Boniface  VIIL,  300,  325 
Book-land,  25-27,  61 
Borh,  48 

Bosco,  Hugh  de,  250 
Bosworth,  battle  of,  250 
Bot,  33 

Breautc,  Fawkes  de,  144 
Burgage,  75 
Burgbryce,  33' 
Burgh,  Hubert  de,  I3I 
Burgundy,  244 
Butler,  office  of  royal,  1 18 


344 


Index. 


Cade,  Jack,  rebellion  of,  245,  249 

Calais,  265 

Canon  Law,  influence  of,  297,  304- 

30s 

Canterbury,  Archbishop  of,  10 

Canute,  29,  30,  38,  103 

Carta  Mercatoria,  214 

Carucage,  137,  138,  187 

Castellatio,  lOI 

Castles,  loi 

Cenwalh,  7 

Ceorl,  3,  25 

Chamberlain,  ofBce  of,  I18 

Chancellor,  office  of,  119,  122,  123 

Chancery,  Court  of,  232 

Chantry  Priests,  character  of,  334 

Charles  the  Great,  91 

Charles  II.,  248 

Charters,  the  Select,  121,  173,  189, 
190,  200 

Chester,  earldom  of,  I08 

Chichele,  Archbishop,  322,  335 

Chivalry,  tenure  in,  62 

Chronicle,  Anglo-Saxon,  7,  21,  35, 

Church,  4,  8,  9,  10, 28,  32,  in,  160, 
172,  225,  226,  250,  252,  255,  257, 
261 ;  and  State,  relations  between, 
before  the  Norman  Conquest,  274- 
277  ;  after  the  Norman  Conquest, 
290;  under  the  Angevin  kings, 
296 ;  under  the  later  Plantagenets, 
302,  310;  theories  of,  337-342; 
the  national  policy  of,  under  Nor- 
man and  Angevin  kings,  289-298  ; 
aristocratic  character  of,  under 
the  Lancastrians,  226,  253,  335 

Circumspecte  Agatis,  writ  of,  328 

Clarendon,  assize  of,  99 

,  constitutions  of,  78,  147,  295, 
318,  320,  330 


Clement  V.,  316 

Clergy,    166,    168,    172,    173,    183, 

234.  235,  251,  256,  258,  261 
Coinage,  right  of,  I02 
Comitatus,  7,  12,  13,  23,  25,  47 
Commendation,  14,  47 
Commissions  of  Array,  144,  218 
Commons,  estate  of,  115,  145,  168, 

176,    180,  seq.;    215-222,    224, 

226,  227,  229,  232,  23s,  236,  241- 

248,  252-254,  261-263 
Communa,  154,  157  ;  French,  196 
Comnenus,  John,  113 
Confirmatio  Cartarum,i62,l67,  212, 

213,  215,  219,  300 
Conrad  II.,  81 
Constable,  office  of,  I18 
Convocation,  327 
Coroner,  140,  149 
Cornwall,  Earl  of,  183 
Council,  the  Great,  1 15-1 17,  127, 

128,  148,  169,  174,  182,  187,  212; 

the   Royal,    159-162,   203,   222, 

231;   the  Privy,  124,   233-240; 

under  the  Tudors,  240,  251  ;  of 

Oxford,  147,  148  ;  Ecclesiasticah, 

170-173;  Lateran,  307 
Court  Baron,  67,  70,  146 
Court  Customary,  71,  145 
Court  of  Common  Pleas,  127 
Court  of  King's  Bench,  126 
Court  Leet,  71,  145 
Crusades,  effects  of,  185 
Curia  Regis,  8o-«4,  89,    117-II9, 

123-127 
Customs,  213-217 
Cynewulf,  22 

Danegeld,  137,  138,  307 
Danelaw,  12,  42 


Index. 


345 


Danes,  il,  14,  17,  21,23,  36,42, 
72,   130  ;   effort  of  in\-asions  of, 
upoD  the  Church,  279-281 
David  of  Wales,  202 
Despencers,  the,  17S 
Dialogus  de  Scaccario,  134 
Domesday  Book,  41,  42,  132;  sur- 
vey, SO.  5>.  54.  loi 
Dunstan,  38,  280,  282,  286,  287 
Dorham,  bishopric  of,  104,  108 

Ealdonnan,  32-3S,  73,  103,  107, 
130-132,  283 

Earl,  29,  30,  32,  36,  37,  177,  240 

Earldom,  103- loS,  177,  240 

Earls,  conspiracy  of,  105 

Early  English  Church,  organization 
of,  272,  S(q. 

East  Anglia,  41 

Edgar,  20,  22,  39,  80,  282 

Edmund,  14,  15,  21 

Edred,  21 

Edward  the  Confessor,  29,  30,  54, 
71.  73.  103.  283 

Edward  the  Elder,  17 

Edward  I.,  86,  115,  162,  167,  172, 
176,  191,  192,  194,  202,  211,  2I2v 
221,  225,  232,  252,  302,  309,  327 

Edward  II.,  216,  218-220,  251,  252 

Edward  III.,  178,  198,  208,  210, 
215,  217,  218,  221,  224,  225, 
232,  242,  251,  252,  255,  326 

Edward  IV.,  226,  250 

Edwy,  22 

Egbert,  279 

Elections,  145,  187.  190,  191,  205 ; 
attempts  to  influence,  242,  243, 
245,  246,  252,  254,  255 ;  legisla- 
tion  on,  243,  245,  254 ;  of  kings, 
77.  "7 


Eorl,  3,  4,  25 

Escheats,  62,  141 

£ssarts>  142 

Etablissements  of  S.  Louis,  89 

Ethelbald,  22 

Ethelbert,  19 

Ethelred  II.,  15,   18,  20,  22,  80, 

103 
Ethelwulf,  22 
Exchequer,  8q,  84,  86,   I20,  123- 

126,   140,    142;  barons  of,  119, 

123 

Feudalism,    I,   2,    24-30,   40-44; 
checks  upon,  120,  121,  132,  133, 

140,  145.  147,  148,  155-157.  159. 

160,  182,  197,  294,  295 
Fines,  collection  of,  138-140. 
Firmaburgi,  135,  136,  151,  155 
Fitz  Peter,  Geoffrey,  121 
Florence  of  Worcester,  90 
Folkland,  5,  15,  18,  28,  42,  74,  75 
Folkmoot.     Set  Witenagemot. 
Forest  law,  142 
Forfeiture,  62 

France,  wars  with,  254,  259 
Frankpledge,  97  ;  view  of,  146 
Friars,  the,  164,  339 
Frith,  16 
Fyrd,  15,  26,  27,  SI,  91-93, 107,  143 

Gascony,  expeditions  to,  183 

Geoffrey,  Archbishop  of  York,  307 

George  III.,  226 

Germania  of  Tacitus,  3,  6, 41 

Gesith,  48,  63 

Glanvil,  120,  121 

God  wine,  130 

Gratian,  297,  30$ 

Grith,  16,  17 


346 


Index. 


Grossteste,  Robert,  308 
Guader,  Ralph,  104,  105 
Guienne,  possession  of,  by  the  Eng- 
lish, 260 
Guilds,  153,  154,  195,  256 

Harold,  21,  283 

Haute  Justice,  99 

Henry  I.,  66,  77,  82,  83,  97,  98, 

112,    113,    117,    120,    152,    160, 

189,  321 
Henry  I.,  of  France,  30 
Henry  H.,  57,  77,  85,  95,  100,  102, 

no,  112,  114,  120,  141,  142,  160, 

161,  174,  210,  232,  318,  321 
Henry  IH.,  99,  loi,  102,  106,  114, 

115,  122,  183,232,252,  325 
Henry  IV.,  225,  229,  230,  234,  242, 

243.  253,  259,  261,  262,  263,  264, 
265,  267,  328,  330 

Henry  V.,  227,  236,  243,  259,  262, 

265,  268,  315,  328 
Henry  VI.,  177,  221,  227,  230,  237, 

244,  247,  249,  252,  255,  256,  259, 
262,  263,  266,  267,  268,  313,  317 

Henry  VII.,  247,  250,  256 
Henry  VIII.,  278,  317,  329,  339 
Henry  of  Huntingdon,  35 
Henry  of  Winchester,  102 
Heptarchy,  the,  10 
Heresy,  I^slation  against,  330,  331 
Heriot,  63 

Hildebrand,  287,  338,  339 
Honour,  71,  72,  98 
Hundred,  5,  31, 32,  72,  97, 146,  190, 
196 

Immunity,  47 
Impeachment,  245,  248 
Ini.  3.3 


Iter  of  1 194,  147 
Itinerant  Justices,  126,  149,  150 
Ivo  of  Chartres,  297,  305 
Ivo  of  Grantmesnil,  100 

James  I.,  248 

Jews,  218 

John,  115,  141,  155,  156,  160,  161, 

315 
Joinville,  89 
Judicial  organization,  24,  25, 27,  28, 

125  seq. 
Juries,  149,  150,  187 
Jurisdiction,  47,  95 
Justices  of  the  Peace,  187 
Justiciar,  119,  123 

King,  7-23 ;  election  ol,  77 ;  de- 
position of,  21,  32 ;  demesne 
of,  18,  42  ;  power  of,  in  Angevin 
times,  115,  121,  127,  128,  132, 
"SOj  ^55  >  position  of,  in  Lan- 
castrian times,  252,  263,  264-267  ; 
position  with  regard  to  the  Church, 
in  Norman  times,  289-296 ;  in 
Plantagenet  times,  296-304 ;  324- 
330  ;  in  Lancastrian  times,  322, 

330-332 
Knight's  fee,  57,  59,  142,  174 
Knights  of  the  shire,  164,  166,  l8l- 

^9h  19S,  199.  205,  245,  264 

Lancaster,  Henry  of,  225,  228 

Lancaster,  Thomas  of,  234 

Lancastrian  kings,  179;  principles 
of,  228,  234,  261 ;  scheme  of 
government  of,  230-239,  254 ; 
failure  of  scheme  of,  248-268 

Land,  allotment  of,  4 

Landrica,  29,  72 


Index. 


347 


Lanfranc,  276,  2S6-289,  291 
Langton,    Stephen,  171,  298,  308, 

322 
Lawyers,  198,   199,  205 ;  influence 

of,  on  the  Church,  292,  293 
Lt^al  system,  influence  of  the  Church 

upon,  304,  305 
L^ates,  320-323 
Lewes,  battle  of,  166 
Liberties,  72 
Lincobi,  Hugh  of,  307 
Lincobishire,  41 
Lionel  of  Antwerp,  217 
Lcet,  3,  4,  25,  33,  35 
Lollards,  225,  234,  235,   330-332, 

335 
London,  152,  196 
Lords,  House  of,  176,  177-180,  231, 

236,  240,  241,  309,  336 
Lords-lieutenant,  144 
Louis,  S.  (ix.),  89 
Luqr,  De,  120 

Magna  Carta,  65,  78,  85,  115,  127, 
141,  150,  157,  158,  162,  163,  164, 
168,  172,  174,  175,  179,  181,  182, 
187,  203,  211,  212,  296,  298,  304 

Manors,  25,  52,  53,  67,  68,  71,  98, 
99,  145,  146,  258 

Marriage,  65 

Marshal,  office  of,  118 

Marsiglio  of  Padua,  theory  of 
Church  and  State,  339 

Martin  V.,  316,  322 

Mary,  Queen,  144 

Matilda,  Empress,  77 

^fayor,  office  of,  154,  156,  195 

Merchants,  19S,  212-216 

Mcrcia,  104 

Milan,  edict  of,  81 


Military  organization,  24,  26,  252 
Monasteries,    influence    of,    before 

the  Norman  Conquest,  278 
Montfort,  Simon  de,  166,  167,  176, 

192,  194,  201,  300 
Mortimer,   178 

Norman  Conquest,  44,  45,  48,  54, 
58,  60,  68,  69,  72,  75-77.  80,  81, 
108,  109, 131,  169,  181,  284-293 

Normandy,  loss  of,  161,  162;  re- 
tention of,  by  Henry  VL,  260; 
final  loss  of,  260 

Northumbria,  104 

Ockham,  William,  339 
Odo  of  Bayeux,  93,  108 
Oferhynes,  18 
Oldcastle,  Sir  John,  331 
Ordinance,  219 
Oswy,  270 

Palatine  earldoms,  108,  1 32 
Parliament,  the   Model,   167,    193, 
200,  210,  309  ;  of  1301,  221  ;  of 
Lincoln,   221  ;    the  Good,   22c, 
224  ;  representation  of  the  clei^ 
in,  172,  173,  301,  326;  opposition 
of,  to  the  royal  prerogative,  225, 
227,  310 ;  under  Edward  HI.  and 
Richard  II,,  232-234,  266  ;  under 
the  Lancastrian  kings,  228-231 
Patent,  174,  177,  240 
Peers,  tenure  of,  174-180,  240 
Petition,  right  of,  220-222 
Pleas  of  the  Crown,  139,  140 
Pope,  relations  of  the  Church  to, 

288,289,311^(7. 
Pramunicntcs  clause,  173 


348 


Index. 


Praemunire,  statute  of,  329 
Prerogative,  the  royal,  224,  227,  233 
Prisage,  213,  214 
Privil^es  of  Parliament,  245-248 
Provisions  of  Oxford,  3cx> 
Provisions,  Papal,  315 
Provisors,  statute  of,  328 

Ranulf  Flambard,  65,  66,  92,  120, 

282,  294 
Rebellion  of  1 173-4,  121,  155 
Reliefs,  63,  141 
Remigius,  306 
Representation,    influence    of    the 

Church  upon,  301-304 
Resumption,  acts  of,  265,  267 
Retainers,  252,  260 
Revolution  of  1399,  225,  226,  230, 

234,  261 
Rich,  Edmund,  308 
Richard  I.,  138,  153,  166 
Richard   II.,   224,  225,   228,  230, 

231,  233,  234,  242,  246,  255,  261, 

263,  264,  313 
Richard  III.,  247,  250 
Robert  of  Belesme,  93,  94,  108 
Robert  of  Gloucester,  102 
Robert  of  Normandy,  92,  94 
Roger  of  Breteuil,  104,  105 
Roger  of  Montgomery,  104 
Roses,  Wars  of,  227,  241,  246,  250, 

255.  256,  263 

Sac  and  soc,  28,  71,  145 

S.  Albans,  201  ;  battle  of,  246,  250 

Saladin  tithe,  148 

Salisbury,  assembly  of,  90,  91,  191 

Salisb)iry,  Roger  of,  120,  292,  303 

Scutage,  57,  142 

S^;rave,  Stephen  de,  121 


Sheriff,  32,  37-39,  97-99,  107, 108, 
134-144,  146,  183,  191-196,  202, 
204-206,  243 

Shire,  31,  34,  37-40,  80,  96,  107, 
108,  128-134,  I40,I44»  147-150, 
188-193 

Shrewsbury,  earldom  of,  108 

Sigebert,  deposition  of,  22 

Sigismund,  Emperor,  244 

Slavery,  action  of  the  Church  with 
regard  to,  306 

Socage,  62 

Somerset,  239 

Standard,  battle  of  the,  144 

Statutes,  219,  228 ;  of  Marlborough, 
97  ;  of  Merton,  99 ;  de  religiosis, 
327  ;  quia  emptores,  185,  219 ; 
of  Winchester,  218  ;  of  Staples, 
21 5,  216  ;  of  Praemunire,  329 ;  of 
Provisors,  316,  328;  of  1430,  245, 
247,  263  ;  of  1446,  245,  263  ;  of 
Labourers,  257 ;  against  heresy, 
330,  331;  in  Restraint  of  Appeals, 

339 
Stephen,  77,  99, 100-102,  114,  117, 

120,  266,  321 
Steward,  office  of,  118 
Stigand,  283,  288 
Stratford,  Archbishop,  179 
Suffolk,  244,  245,  262 

Tallage,  85,  212,  213 

Tallies,    accounts    of     Exchequer 

Court  kept  by,  143 
Taxation,  57,  84-86,  114,  134-138, 

148,  210-219,  310;  of  clergy  by 

king,    307-308,    326,    327;    cf 

clergy  by  pope,  312,  313 
Thegnhood,  47,  48,  53,  73,  80,  81 
Theningmannagemot,  80 


Index. 


349 


Theodore,  Archbishop,  269-272 
Theow,  4, 69 
Thorpe,  Speaker,  246 
Three-field  system,  4 
Tithe,  277 

Tithing,  in  Frankpledge,  47 
Toum  and  leet,  97,  205 
Towns,  74,  86,  150-155  ;  represen- 
tation of,  193-202 
Township,  4,  5 
Treason,  15,  16,  119,  123 
Treasurer,  office  of  royal,  119,  123 
Trial  by  combat,  149 

ordeal,  149 

Truce  of  God,  lit 
Tudors,  the,  226,  227,  229,  240,  263 
Tunnage  and  Poundage,  267 
Tyler,  Wat,  rebellion  of,  257 

Villeinage,  257,  258 
Villeins,  67,  70,  225,  257,  258 

Wales,  war  with,  254 
Wallingford,  treaty  of,    loi,    102, 

108 
Walter,  Hubert,  298,  303 
Wardship,  141 
Wedmorc,  treaty  of,  1 1 


Wessex,  10,  li,  31,  42,  104 

Whitby,  synod  of,  270 

Wilfrid,  269 

WUliam  I.,  41,  48,  50,  55,  56,  66, 
69.  74.  79.  80,  88,  90,  91,  96, 
103,  104-107,  109,  131-133,  182, 
276,  2S4-290,  321 

William  II.,  66,  77,  93,  94,  291, 294 

William  III.,  226 

Williams,  John,  Bishop  of  Lincoln, 

123 

Winchelsey,  Archbishop,  308,  309 
Winchester,  charter  of,  153 
Winchester,  Henry  of,  522 
Witenagemot,   6,  15,    18,   19,  20- 

22.  3».  32.  34.  36,  37.  39.  76-79. 

90,  116,  145,  159,  168,  20a 
Wolsey,  323 
Wool-growing,  257,  258 
Writs,  98,  190,  191,  200,  203-205 
Wulfstan,  69,  306 
Wydiffe,  317,  330,  331,  340-341 

York,  Richard,  Duke  of,  239,  245, 

246 
Young,  Thomas,  246 


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History  of  the  Romans  under  the 
Empire. 

Cabinet  Edition.  8  vols.  Cr.  8vo. ,  48 j. 
Silver  Library  Edition.  8  vols.  Cr. 
8va,  y.  6d.  each. 
The  Fall  of  the  Roman  Republic: 
a  Short  History  of  the  Last  Century 
of  the  Commonwealth,     tzmo., -/s.id. 

Montague. — The  Elements  of  Eng- 
lish Constitutional  History.  By 
F.  C.  Montague,  M.  A.  Cr.  8vo. ,  y.  6d. 

Richman.— Appenzell  :  Pure  Demo- 
cracy and  Pastoral  Life  in  Inner- 
Rhoden.  A  Swiss  Study.  By  Irving- 
B.  Richman,  Consul-General  of  the 
United  States  to  Switzerland.  With 
Maps.     Crown  8vo.,  y. 


Lord  Clive. 

n»e  Earl  of  Chat- 
ham(Two  Essays). 

Ranke  and  Glad- 
stone. I 

Milton  and  Machta- 
velli. 

Lord  Byron  .and  The 
Comic  Dramatists 
of  the  Restoration. ! 


Seebohm.  — Works      by     Frederic 

Seebuhm. 

The  English  Village  Community 
Examined  in  Its  Relations  to  the 
Mimorial  and  Tribal  Systems,  &c. 
With  13  Maps  and  Plates.     8vo.,  i6j. 

The  Tribal  System  in  Walf.s:  being 
Part  of  an  Inquiry  into  the  Structure 
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4        LONGMANS  &>  CO:S  STANDARD  AND  GENERAL   WORKS. 


History,  Politics,  Polity,  Political  Memoirs,  &0.— continued. 

Todd. — Parliamentary  Government 
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Todd,  LL.D.     8vo.,  30^.  net. 

Wakeman  and  Hassall.— EIssays 

Introductory  to  the    Study   of 


Sharpe.— London  and  the  Kingdom: 
a  History  derived  mainly  from  the 
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the  Corporation  of  the  City  of  London. 
By  Reginald  R.  Sharpe,  D.C.L.,  Re- 
cords Clerk  in  the  Office  of  the  Town 
Clerk  of  the  City  of  London.  3  vols. 
8vo.     los.  6d.  each. 

She p par d.  —  Memorials  of  St. 
James's  Palace.  By  the  Rev. 
Edgar  Sheppard,  M.A.,  Sub-Dean  of 
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Smith.— Carthage  and  the  Cartha- 
ginians. By  R.  Bosworth  Smith, 
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School.  With  Maps,  Plans,  &c.  Cr. 
8vo. .  3^.  6d. 

Stephens.— A  H  istor  y  oftheFrench 
Revolution.  By  H.Morse  Stephens, 
Balliol  College,  Oxford.  3  vols.  8vo. 
Vols.  I.  and  II.,  i8s.  each. 

Stubbs. — History  of  the  University 
of  Dublin,  from  its  Foundation  to  the 
End  of  the  Eighteenth  Century.  By  J. 
W.  Stubbs.    8vo.,  i2j.  6d. 

Sutherland.— The  History  of 
Australia  and  New  Zealand,  from 
1606  to  1890.  By  Alexander  Suther- 
land, M.A.,  and  George  Suther- 
land, M.A.     Crown  8vo.,  2S.  6d. 


English  Constitutional  History. 
Edited  by  Heney  Offley  Wakeman, 
M.A.,  and  Arthur  Hassall,  M.A. 
Crown  8vo.,  6s. 

Walpole.— Works  by  Spencer  Wal- 

pole. 

History  of  England  from  the  Con- 
clusion OF  the  Great  War  in 
1815 TO  1858.  6 vols.  Cr.  8vo.,6j.  each. 

The  Land  of  Home  Rule  :  being  an 
Account  of  the  History  and  Institu- 
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Wood-Martin. — Pagan  Ireland:  an 
Archaeological  Sketch.  A  Handbook  of 
Irish  Pre-Christian  Antiquities.  By  W. 
G.  Wood-Martin,  M.R.I. A.  412 
Illustrations.    8vo.,  151. 

Wylie. — History  of  England  under 
Henry  IV.  By  James  Hamilton 
Wylie,  M.A.,  one  of  H.  M.  Inspectors 
of  Schools.  3  vols.  Crown  8vo.  Vol. 
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Vol.  III.     15s.    Vol.  IV.     [/« iAe  press. 


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Armstrong. — The  Life  and  Letters 
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Bacon.  —  Letters  and  Life  of 
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Occasional  Works.  Edited  by  J. 
Spedding.     7  vols.     8vo.,  ;^4  4J. 

Bagehot.  —  Biographical  Studies. 
By  Walter  Bagehot.  Cr.  8vo. ,  v.  6d. 

Blackwell.— Pioneer  Work  in  Open- 
ing THE  Medical  Profession  to 
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By  Elizabeth  Blackwell.  Crovm 
8vo. ,  6s. 

Boyd.— Works  by  A.  K.  H.  Boyd,  D.D., 
LL.D. 

Twenty-five  Years  of  St.  Andrews. 
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Vol.  II..  isj. 
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Buss.— Frances  Mary  Buss  and  her 
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Carlyle.— ThomasCarlvle  :  a  History 
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1834-1881.     2  vols.     Crown  8vo. ,  7J. 


Erasmus.-- -Life  and  Letters  of 
Erasmus.  By  James  A.  Froude. 
Crown  8vo. ,  6s. 

Fox. — The  Early  Historyof  Charles 
James  Fox.     By  the  Right  Hon.  Sir  G. 
O.  Trevelyan,  Bart,  M.P. 
Library  Edition.     8vo. ,  i8j. 
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Hamilton.— Life   of  Sir  William 
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Havelock.— Memoirs  of  Sir  Henry 
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Maeaulay.— The  Life  and  Letters 
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Popular  Edit,   i  vol.  Cr.  8vo. ,  is.  6d. 
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M.A.     Crown  8vo. ,  "js.  6d. 
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More  :  a  History  of  their  Fellow-Work. 

By  Frederic  Seebohm.    8vo.,  14J. 
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Life    of   Shakespeare.      By  J.  O. 

Halliwell-Phillipps.     With  nume- 
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vols.     Royal  8vo.,  /'i  is. 

Shakespeare's  true  Life.  By  Jas. 
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Stephen.— E^AYs  in  Ecclesiastical 
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Turgot.— The  Life  and  Writings  of 
Turcot,  Comptroller-General  o'  France, 
1774-1776.  Edited  for  English  Readers 
by  W.Walker  Stephens.  8vo.,iaj.6</. 


Vemey.— Memoirs  of  the  Verney 
Family.  Compiled  from  the  Letters  and 
Illustrated  by  the  Portraits  at  Claydon 
House,  Bucks. 

Vols.  I.  and  II.  DtJRiNG  the  Civil 
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Vol.  III.  During  the  Common- 
wealth. 1650- 1660.  By  Margaret 
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8vo. ,  21J. 

Walford.— Twelve  English  Author- 
esses. By  L.  B.  Walford.  Cr.  8V0..4J.  6rf. 

Wellington. — Life  of  the  Duke  of 
Wellington.  By  the  Rev.  G.  R. 
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Wolf. — The  Life  of  Joseph  Wolf, 
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the  Text.     Royal  8vo.  au. 


Travel  and  Adventare,  the  Colonies,  &c. 


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K.C.I.E. 

Seas  and  Lands.  With  71  Illustra- 
tions.    Cr.  8vo.,  3*.  bd. 

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Baker.— Works  by  Sir  Samuel  White 

Baker. 

Eight  Years  in  Ceylon.  With  6 
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The  Rifle  and  the  Hound  in  Cey- 
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The  Ruined  Cities  of  Mashona- 
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Bicknell.— Travel  and  Adventure 
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Arthur  C.  Bicknell.  With  24 
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8vo.     ly. 

Brassey.— Voyages  and  Travels  of 
Lord  Brassev.  K.C.B.,  D.C.L.,  1862- 
1894.  Arranged  and  Edited  by  Captain 
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8vo.,  \oi. 

Brassey.— Works  by  the  late  Lady 
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A  Voyage  in  the  •  Sunbeam  ' ;  Our 
Home  on  the  Ocean  for  Eleven 
Months. 

Library  Edition.    With  8  Maps  and 
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Travel  and  Adventure,  the  Colonies,  &c. — continued. 


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141  Illustrations.     8vo.,  21s. 
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Howitt.— Visits  to  Remarkable 
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tions.    Crown  8vo. ,  y.  6it. 

Knight.— Works  by   E.    F.   Knight. 

The  Cruise  of  the  'Ai.krte':  the 

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the  Desert  Island  of  Trinidad.    2  Maps 

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Where  Three  Empires  Meet:  a  Nar- 
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Lees  and  Clutterbuck.—B.  C.  1887: 
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Murdoch. — From  Edinburgh  to  the 
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Quillinan.  —  Journal  of  a  Few 
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i6mo.,  3^.  6d. 
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THREE  IN  NORWAY.  By  Two  of 
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LONGMANS  6»  CO.'S  STANDARD  AND  GENERAL  WORKS.         7 

Sport  and  Pastime. 
THE  BADMINTON   LIBRARY 

Crown  8vo.,  icu.  6d.,  each  volume. 
Edited  by  the  Duke  of  Beaufost,  K.G.,  assisted  by  Alfred  EL  T.  Watson. 


ARCHERY.  By  C.  J.  LoNGMAN  and 
Col.   H.    WAiJtOND,  &c.     195   Illusts. 

ATHLETICS  AND  FOOTBALL.  By 
Montague   Shearman.     51    Illusu. 

BIG  GAME  SHOOTING.  ByC.  Phil- 
LIPPS-WOU-EY.  F.  C.  Selous,  &c. 
Vol.    I.      Africa    and   America.    With 

77  Illus. 
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Regions.     With  73  Illus. 

BILLIARDS  By  Major  W.  Broadfoot, 
RE.  [/«  the  Press. 

BOATING.  By  W.  B.  Woodgate.  With 
49  Illustrations. 

COURSING  AND  FALCONRY.  By 
Harding  Cox  and  the  Hon.  Gerald 
Lascelles.       With    76    llhistrAtions. 

CRICKET.   By  A.  G.  Sieel.  tlie  Hon.  R. 

H.  LYT^tKLTON.  ANDRF.W  LANC,  W.  G. 

Grace,  &c     With  64  Illustrations. 

CYCLING.  By  the  Harl  of  Albemarle 
and  G.  Lacy  Hillier.    With  59  Illus. 

DANCING.  By  Mrs.  Lilly  Grove, 
F.R.G.S..  &c.     With  131  Illustrations. 

DRIVING.  By  the  Duke  OF  Beaufort. 
With  65  Illustiaiions. 

FENCING.  BOXING.  AND  WREST- 
LING. By  Walter  H.  Pollock.  F. 
C.  Grove.  Walter  Ar»istrong. 
With  43  Illustrations. 

FISHING.    By  H.  Choi.mondeley-Pen- 

NELL,    the    MAKQL'IS    OF    EXETER.    G. 

Christopher    Davies,  &c. 

Vol.   I.    Salmon,  Trout,  and  Grayling. 

With  158  Illustrations. 
Vol.   II.    Pike  and  other  Coarse  Fish. 

With  133  Illustrations. 

GOLF.  By  Horace  G.  Hutchinson, 
the  Rt.  Hon.  A.  J.  Balfour,  M.P.. 
Sir  W.  G.  Simpson.  Ii.-irt.,  Andrew 
Lang.  &c.     With  89  Illustrations. 

HUNTING.  By  the  Dukeof  Beaufort, 
K.G.,  Mowbray  Morris,  the  Earl  of 
Suffolk  and  Berkshire. and  Ai.fkkd 
E.  T.  Watson.  &c.     53  Illustrations. 


MOUNTAINEERING.  ByC.  T.  Dent. 
Sir  F.  Pollock.  Bart..  W.  M.  Conway. 
Douglas  Freshfield.  C.  E.  Ma- 
thews,  &c.      With    108   Illustrations. 

RACING  AND  STEEPLE-CHASING. 
By  the  Earl  of  Suffolk  and  Berk- 
shire, Arthur  Coventry,  &c.    With 

58  Illustrations. 

RIDING  AND  POLO.  By  Captain 
Robert  Weir,  J.  Moray  Brown,  the 
Duke  of  Beaufort,  K.G.,  the  Earl 
of  Suffolk  and  Berkshire,  &c.  With 

59  Illustrations 

SE.\  FISHING.  ByJoHN  Bickerdyke. 
With  Contributions  by  Sir  H.  GoRE- 
BooTH.  Bart.,  Alfred  C.  Harms- 
worth,  and  W.  Senior.  With  197 
Illustrations. 

SHOOTING.  By  Lord  Wals  INCH  AM  and 
Sir  Ralph  Payne-Gallwey,  BarL 
Lord    Lovat,   Lord    C.   L.    Kerr, 

and  A.  J.  STUART- WORTLEY,   &c. 
Vol.  I.   Field  and  Covert.     With   105 

Illustrations. 
Vol.   II.    Moor  and  Marsh.     With  65 
Illustrations. 
SKATING,      CURLING.      TOBOGA- 
NING.  AND  OTHER  ICE  SPOR  IS. 
By  J.  M.  Heathcote.  C.  G.  Tebbutt. 
T.  Maxwell  Witham.  the  Rev.  John 
Kerr.  &c.     With  284  Illustrations. 
SWIMMING.    By  Archibald  Sinclair 
and  William  Henry.    With  119  Illus. 
TENNIS.     LAWN     TENNIS.     RAC- 
QUETS, AND  FIVES.     By  J.  M.  and 
C.  G.  Heathcote.  E.  O.  Pleydeli.- 
Bouverie.  the  Hon.  A.    Lyttelton, 
Miss  L.  Dod,  &C.    With  79  Illustrations. 
YACHIING. 
Vol.  I.  Cruising,  Construction.  Racing, 
Rules, Utting-Out.&c.  BySir  Edward 
Sullivan,    Bart..    Ijdrd  Brassey, 
K.C.B..C.  E.  Seth-Smith. C.B.. &c. 
With  114  Illastrations. 

Vol.  II.  Yacht  Clubs.  Yachting  in 
America  and  the  Colonies,  Yacht  Rac- 
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Earl  of  Onslow,  G.C.M.G.,  &c. 
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LUA/GMANS  &•  CO.S  STANDARD  AND  GENERAL   WORKS. 


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Fur  and   Feather   Series. 

Edited  by  A.  E.  T.  WATSON. 
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Man.     By  Sir  J.  Lubbock,  Bart.,  M.P. 
With  5  Plates  and  20  Illustrations  in  the 
Text.     8vo.  i8j. 
Romanes.— Works  by  George  John 
Romanes,  M.A..  LL.D..  F.R.S. 
Darwin,  and  After  Darwin:  an  Ex- 
position of   the  Darwinian   Theory, 
and  a  Discussion  on  Post-Darwinian 
Questions. 

Part  I.  The  Darwinian  Theory. 
With  Portrait  of  Darwin  and  125 
Illustrations.  Crown  8vo. ,  lOJ.  6d. 
Part  II.  Post-Darwinian  Quks- 
TIONS:  Heredity  and  Utility.  With 
Portrait  of  the  Author  and  5  Illus- 
trations. Cr.  8vo. ,  \os.  bd. 
An  Examination  of  Weismannism. 

Crown  8vo. ,  6s. 
Mind    and    Motion    and    Monism. 
Crown  8vo. ,  4i.  6d. 


LONGAfANS  &•  CO.'S  STANDARD  AND  GENERAL   WORKS.        13 


Classical  Literatare  and  Translations,  &o. 


Abbott.— Hellenica.  A  Collection  of 
Elssays  on  Greek  Poetry,  Philosophy, 
History,  and  Religion.  Edited  by 
Evelyn  Abbott, M.A.,LL.D.  8vo.,i6j. 

.fisohylUB.— EUMENIDES  OF  /ESCHY- 
Lus.  with  Metrical  English  Translation. 
By  J.  F.  Davies.     8vo.  .  7s. 

Aristophanes.— The  Acharnians  op 

.^RiSTui'MANES,  translated  into  English 
Verse.   By  R.  Y.  Tyrrkll.    Cr.  8vo.,  is. 

Becker.— Works  by  Professor  Becker. 

Gallits  :  or,  Roman  Scenes  in  the  Time 
of  Augustus.      Illustrated.    Cr.  8vo., 

Charicles:  or.  Illustrations  of  the 
Private  Life  of  the  Ancient  Greeks. 
Illustrated.    Cr8vo..  y.  bd. 

Cicero.— Cicero's  Correspondence. 
By  R.  Y.  Tyrrelu  Vols.  I..  II..  III. 
8vo.,  each  laj.     Vol.  IV..  ly. 

PamelL— Greek  Lyric  Poetry:  a 
Complete  Collection  of  the  Surviving 
Passages  from  the  Greek  Son c -Writing. 
By  George  S.  Fa k sell.  M.  A.  With  5 
Plates.     8vo.,  i6j. 

Lang.— Homer  and  the  Epic.  By 
Andrew  Lang.    Crown  8vo. .  91.  net. 


Mackail.— Select  Epigrams  from 
THE  Greek  Anthoixx;y.  By  J.  W. 
Mackail    8vo.,  \(ii. 

Rich.- A  Dictionary  op  Roman  and 
Greek  Antiquities.  By  A.  Rich. 
B.A.  With  2000  Woodcuts.  Crown 
8vo.,  Ts.  6d. 

Sophocles.— Translated  into  En.^lish 
\^se.  By  Robert  Whitelaw,  ^i.A., 
Assistant  Master  in  Rugby  School :  late 
Fellow  of  Trinity  College,  Cambridge. 
Crown  8va ,  8s.  6ti. 

Tyrrell.- Tran'si-.^tions  into  Greek 
AND  Latin  Vei,-sk..  Edited  by  R.  Y. 
Tyrreu-    '8vo..  6s. 

Virgil. — The  itNEiD  OF  Virgil.  Trans- 
lated into  English  Verse  by  John  Con- 
INGTON.     Crown  8vo..  6s. 

The  Poems  of  Virgil.  Tran.slated 
into  English  I^rose  by  John  Coninc- 
TON.     Crown  8vo. ,  dr. 

The  vEnkid  of  ViKGiL.freely  translated 
into  English  Blank  Verse.  By  W.  J. 
Thornhill.     Crown  8vo..  7s.  6d. 

The  ./Enkid  of  Virgil.  Books  I.  to 
VI.  Translated  into  English  Verse 
by  James  Rhoades.     Crown  8vo., 

■Wilkin8.—THE  Growth  of  THE  Hom- 
eric Poems.    By  G.  Wilkins.  8vo.  6s. 


Poetry  and  the  Drama. 


Acworth.— Ballads  OK  tiik  Marat- 
has.  Rendered  into  English  Verse  from 
the  Marathi  Originals.  By  Harry 
Arbi;thnot  Acworth.    8vo.,  5^. 


Allingh  am.— Works     by 
Allingham. 


William 


Blackberries.     Imperial  i6ma,  &». 

Irish  Songs  and  Poems.  With  Fron- 
tispiece of  the  Waterfall  of  Asaroe. 
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Laurence  Bloomfield.  With  Por- 
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AUingham.  —  Works     by     \\'ii.liam 

ALLI  NGH  A  M —fWf /»>«/■(/. 

Flower  Pieces;  Day  and  Night 
Songs  ;  Ballads.  With  2  Designs 
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large  paper  edition,  \2s. 

Life  and  Phantasy  :  with  Frontis- 
piece by  Sir  J.  EL  Mill  A  is,  Bart, 
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Fcp.  8vo. .  6s. ;  laree  paper  edition,  xi». 

Thought  and  word,  and  Ashby 
Manor  :  a  Pl.»y.  Fcp.  8vo.,  6s. ;  large 
paper  edition,  lit. 

Sets  of  the  above  6  vols,  may  be  had  in 
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14       LOMG.\/ANS  6*  CO.'S  STANDARD  AND  GENERAL   WORKS. 


Poetry  and  the  UraxaBt. -continued. 


Armstrong.— Works  by  G.  F.  Savage- 
Armstkong. 
Poems  :    Lyrical  and  Dramatic.     Fcp. 

8vo.,  6s. 
King  Saul.     (The  Tragedy  of  Israel, 

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King   Solomon.      (The   Tragedy  of 

Israel,  Part  III.)     Fcp.  Bvo.,  6s. 
Ugone  :  a  Tragedy.     Fcp.  8vo. ,  6s. 
A  Garland  from  Greece:  Poems. 

Fcp.  8vo. ,  75.  6d. 
Stories  of  Wicklow:  Poems.     Fcp. 

8vo. ,  7s.  6d. 
Mephistopheles  in  Broadcloth:  a 

Satire.     Fcp.  8vo.,  4s. 
One  in  the  Infinite:  a  Poem.    Cr. 

8vo.,  ys.  6d. 

Armstrong. — The  Poetical  Works 
of  Edmund  J.  Armstrong.  Fcp. 
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Arnold.— Works  by  Sir  Edwin  Arnold, 
K.C.I.E. 
The  Light  of  the  World;  or,  the 

Great  Consummation.   Cr.  8vo.,7J.  6rf. 

net. 
The    Tenth     Muse,    and    other 

Poems.     Crown  8vo. ,  5J.  net. 
Potiphar's  Wife,  and  other  Poems. 

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Adzuma  :   or,  the  Japanese  Wife.      A 

Play.     Crown  8vo. ,  6s.  6d.  net. 

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Boll.— Chamber  Comedies:  a  Collec- 
tion of  Plays  and  Monologues  for  the 
Drawmg  Room.  By  Mrs.  Hugh 
Bell.     Crown  8vo.,  6s. 

Carmichael.— Poems.  By  Jennings 
Carmichakl  (Mrs.  Francis  Mullis). 
Crown  8vo,  6j.  net. 

Cochrane.— The  Kestrel's  Nest, 
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rane.    Fcp.  8vo.,  y.  6d. 

Ooethe. 

Faust,  Part  I.,  the  Germnn  Text,  with 
Introduction  and  Notes.  Py  Ai.  kkt 
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Faust.  Translated,  with  Notes.  By 
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Ingelove.— Works  by  Jean  Ingelow 
PoETiCAL  Works.    2  vols.    Fcp.  8vo., 
las. 

Lyrical  and  Other  Poems.  Selected 
from  the  Writings  of  Jean  Ingelow. 
Fcp.  8vo. ,  2J.  6d.\  cloth  plain,  y. 
cloth  gilt 

KendalL— Songs  from  Dreamland. 
By  May  Kendall.    Fcp  8vo. ,  5^.  net. 

Iiang. — Works  by  Andrew  Lang. 
Ban  and  Arri^re  Ban.    A  Rally  of 
Fugitive    Rhymes       Fcp.    8vo.,    y. 
neL 


Grass   of    Parnassus. 
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Fcp.    8vo. , 


Ballads  of  Books.  Edited  by 
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The  Blue  Poetry  Book.  Edited  by 
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88  Illustrations  in  the  Text  by  H.  J. 
Ford  and  Lancelot  Speed.  Crown 
8vo. ,  df. 

Special  Edition,  printed  on  Indian 
paper.  With  Notes,  but  without 
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Leeky.— Poems.   By  W.  E.  H.  Lecky. 
Fcp.  8vo.,  y. 

Peek.  —  Works    by     Hedley    Peek 
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Skeleton  Leaves  :  Poems.  With  a 
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The  Shadows  of  the  Lake,  and 
other  Poems.     Fcp.  8vo. ,  as.  6d.  net. 

Lytton. — Works   by  The    Earl    of 
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Marah.     Fcp.  8vo.,  6s.  6d. 

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The  Wanderer.     Cr.  8vo.,  loj.  6d. 

Lucile.     Crown  8vo.,  10/.  6d. 

Selected  Poems.    Cr.  8vo.,  loi.  6d. 


LONGMANS  6*  CO.S  STANDARD  AND  GENERAL  WORKS. 


«S 


Poetry  and  the  Drama— con/i'nu^d. 


Macaulay.— Lays  ok  Ancient  Rome. 
&c.     By  Lord  MACAULAY. 
Illustrated  by  G.  Scharf.     Fcp.  4to., 
los.  6d. 

Bijou      Edition. 

i8nio.,  as.  6d.,  gilt  top. 

Popular  Edition. 


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8vo. ,  3*.  6rf. 
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sewed,  is.  6d.  cloth. 

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Piatt.— Works  by  Sarah  Piatt. 
Poems.     With  portrait  of  the  Author. 

2  vols.     Crown  8vo. ,  ioj. 
An  Enchanted  Castle,  and  other 
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Piatt.— Works  by  John  James  Piatt. 

IDY1.S    and    Lyrics   of    the    Ohio 
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Little  New  World  Idyls.  Cr.  8vo., 

Hhoades.— Teresa  and  Other 
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Hiley. — Works  by  James  Whitcomb 
Riley. 

Old    Fashioned     Roses  :     Poems. 

lamo.,  y. 
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6j.  net.   • 

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Shakespeare.  With  36  Woodcuts. 
I  vol.  8vo. ,  14J.  Or  in  6  vols.  Fcp. 
8vo.,  a  I  J. 

The  Shakespeare  Birthday  Book. 
By  Mary  F.  Dunbar.   ^mo.,is.6d. 

Sturgfis.- A  Book  of  Song.  By  Juuan 
Sturgis.     i6roo.,  y. 


Works  of  Fiction,  Humour,  &o. 


Anstey.— Works  by  F.  Anstey,  Author 

of  '  Vice  Versa '. 

The  Black  Poodle,  and  other  Stories. 
Crown  8vo. ,  aj.  boards,  2s.  6d.  cloth. 

Voces  Populi.  Reprinted  from 
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ridge.   Cr.  8vo.,  y.  (td. 

The  Travelling  Co.mpanioks.  Re- 
printed from  '  Punch '.  With  25  IIlus. 
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The  Man  from  Blankley's:  a  Story 
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24  Illustrations  by  J.  Bernard  Part- 
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Arnold.— The  Story  of  Ulla,  and 

other  Tales.    By  Edwin  Lester  Ar- 
nold.   Crown  8vo.,  6s. 
Astor.-A  Journey  inOther  Worlds. 

a  Romance  of  the  Future.      By  John 

Jacob  AsTon.     With  10  Illustrations. 

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Baker.— By  the  Western  Sea.     By 

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cott'.    Crown  Sva,  3^.  6d. 


Beaconsfield.— Works  by  the  Earl  of 
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N0VE1.S  and  Tales. 
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each. 


Cheap  Edition. 
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Vivian  Grey.  Henrietta  Temple. 

ThcYoungDuke,&c.  Vcnetia.     Tancred. 

Alroy,  Ixion,  Ac.  Conin^sby.      Sybil. 

Contarini  Fleming,  Lothair.  Endymion. 
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Boulton.  — J0.SKPHINE  Crewr.  By 
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CarmiohaeL— Iv>EMS.  By  Jennings 
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Clegfif.— David's  \joow  :  a  Stoiy  ot 
RochclAle  life  in  the  early  years  of  the 
Nineteenth  Century.  By  John  Trak- 
ford  Clkcg.     Crown  8vo.    ar.  6ti. 


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Works  of  Fiction,  Humour,  &c. — continued. 

Deland.— Philip  and  his  Wife.     By 
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Ward".     Cr.  3vo.,  df. 
Dougall.— Works  by  L.  DOUGALL. 
Bkggars  All.     Crown  8vo.,  y.  6d. 
What   Necessity    Knows.     Crown 

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Doyle. — Works  by  A.  Conan  Doyle. 
MiCAH  Clarke  :  a  Tale  of  Monmouth's 

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Gathering   Clouds  :   a  Tale  of  the 

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8vo,  28J. 
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Harte. —  In  the  Carquinez  Woods, 
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Hornung.— The  Unbidden  Guest. 
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Lang.— A  Monk  of  Fife  :  a  Romance 
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Works  of  Fiction,  Humour,  &.C.— continued. 

Phillippa-Wolley.— Snap:  a  Legend  1  Trollope.— Works  by  Anthony  Trol- 


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Prince.     Crown  8vo..  bs. 
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an      Historical      Romance.        By     D. 
Antonio  de  Trueba  y  i.a  Quintana 
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J .  Gill ,  M.  A. ,  T.  C.  D.     Crown  8 vo.  6s. 
RhoscomyL— The  Jewel  of  Ynys 
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By  Owen  Rhoscomyl.     Cr.  8vo. ,  dr. 
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Laneton  Parsonage.  Cleve  Hall. 

Margaret  Percival.  Gertrude. 

Katharine  Ashton.  Home  Life. 

The  Earl's  Daughter.         After  Life. 
The  Experience  of  Life.     Ursula.     Ivors. 
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Suttner.— Lay    Down    Your    Arms 
Die  Wafin  Nieder:  'ITie  Aulobiogniphy 
of  Martha  Tilling.      By  Bertha  von 
SlTTTNER.    Translated  by  T.  Holmks. 
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Crown 


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TRUE,  A.  RELATION  of  the 
TRAVEI.S  and  Perilous  Adven- 
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nient.     y.  6d. 
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22        LONGMANS  6*  CO.'S  STANDARD  AND  GENERAL  WORKS. 


Cookery,  Domestic  Management,  ha.— continued. 


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continued. 

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24       LONGMAXS  <&•  CO.S  STANDARD  AND  GENERAL   WORKS. 


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