D'ARCY M. DAWES.
 
 THE HISTORY 
 
 OF THE 
 
 ENGLISH CONSTITUTION. 
 
 DR. RUDOLPH GNEIST, 
 
 PROFESSOR OF LAW AT THE UNIVERSITY OF BERLIN. 
 
 TRANSLATED BY 
 
 PHILIP A. ASHWORTH, 
 
 OF THE INNER TEMPLE, ESQ., BARKISTEK-AT-LAW. 
 
 LONDON: 
 
 WILLIAM CLOWES AND SONS, LIMITED, 
 27, FLEET STEEET. 
 
 1891.
 
 LONDON : 
 
 PEINTKD BY WTLLIAM CLOWES AND SONS, LIMITKD, 
 STAMFORD STREET AND CHARING CROSS.
 
 AUTHOR'S PREFACE. 
 
 THE History of the Constitution of England has hitherto 
 only been written with regard to the Middle Ages, and separate 
 centuries since the Reformation. In venturing to draw a 
 picture of the thousand years' Constitutional History of such 
 a nation, I must necessarily begin with an apology in order 
 to explain the shortcomings and inequalities of my work, and 
 in some measure to justify them in the eyes of the benevolent 
 
 reader. 
 
 My writings upon the English Constitution did not originate 
 in a uniform scientific plan; my Roman law professorship 
 offered few points of connection with this subject, although 
 I am much indebted, in these writings, to the works upon 
 the history of Law of my revered teacher, von Savigny. It 
 was rather the efforts for reform in the German legal pro- 
 cedure which gave rise to these essays. Brought up in the 
 laborious and strict school of Prussian Judges, at a time 
 when the whole task of formulating the matter in litigation 
 was entailed upon the judge who personally directed the 
 pleadings of the parties, and having acquired a personal 
 knowledge of the political and social state of Germany, 
 England, and France, I had become sufficiently intimate with 
 the advantages of our nation of officials, as well as with the 
 weak points of our system, both in legal procedure and 
 administration. I felt most keenly the necessity of the funda- 
 mental reforms in this department, whieh I have for many 
 years advocated in my academical lectures, at a time when
 
 iv Author s Preface. 
 
 the majority of my colleagues stood aloof from, and were 
 opposed to, the reforms that have since been introduced. It 
 was precisely the differences in, opinion upon this subject 
 which gradually led me to the conviction, that the so-called 
 philosophical schemes in public law chiefly originate in a lack 
 of positive knowledge of circumstances. My own work on 
 " Trial by Jury " (Berlin, 1849) bears witness to the truth of 
 this statement. 
 
 It was the period of storm and stress in 1848 that first led 
 me from the domain of law to the wider one of politics. A 
 closer acquaintance with the condition of affairs in France and 
 England, more especially with the excellent treatises of Lorenz 
 Stein on those of the latter country, made me somewhat re- 
 served and doubtful in my attitude towards the new con- 
 stitutional development. I declined a summons to the National 
 Assemblies of that time, and preferred to take part in the 
 administration of a great provincial system, which gave to my 
 political ideas a more practical direction, corresponding to the 
 experience that the ruling class in England gains every day 
 in its provincial activity. 
 
 The constitutional struggles in Prussia soon took the shape 
 of a decisive conflict between the old and the new form of 
 society ; a dispute which was to be finally settled in Prussia 
 for the whole of Germany. I was led by this struggle to 
 examine with greater care into the real origin of the social 
 relations of the various classes in Central Europe, in order to 
 illustrate the rights and wrongs of Feudalism and Democracy 
 by the position of classes in England (" Adel und Eitterschaft 
 in England," 2nd edition, 1853). The recognition this work 
 obtained in many circles encouraged me to further labour. 
 
 Meanwhile the ministerial government in Prussia had 
 proceeded in a direction which might well be considered a 
 realization of the theories of Constitutional Government 
 which had prevailed up to that time ; but its effect in Prussia 
 was sufficient to demonstrate how utterly inapplicable to 
 Germany were the French and Belgian models. When this
 
 Authors Preface. 
 
 confusion was at the worst, between 1853 and 1856, I began 
 my investigations in the domain of English Administrative 
 Law, the most difficult of the whole series of the labours, 
 and one that I might well compare to a walk through a 
 primaeval forest. With good, though incomplete sources of 
 reference at hand, I succeeded in tracing amongst the chaos 
 of disconnected antiquarian matter piled up around Black- 
 stone's Commentaries, a connected system of laws reaching 
 back into the Middle Ages, while Parliamentary papers enabled 
 me to produce as realistic a picture as possible of the adminis- 
 tration of to-day (" Geschichte und heutige Gestalt der Amter 
 in England," 1857). This tract was written not merely in 
 reference to the Prussian abuses of administration, but was 
 intended to draw attention to just what the constitutional 
 theories had forgotten in their long struggle for a suitable 
 popular representation, viz. that building up of a fair adminis- 
 tration from the lowest foundation, which is a necessary 
 element in a popular state. This work has not been without 
 its influence upon Germany in filling up a material gap, and, 
 if I am not mistaken, it has in England also influenced some 
 later views of Constitutional History. 
 
 Being dissatisfied with this partial view of the subject, and 
 having obtained a more complete body of material upon which 
 to work, I ventured upon the task of writing a history of the 
 English Parliament. But the task of developing the system 
 of English polity in its true aspect, led to my intended History 
 of Parliament becoming a detailed history of the English 
 administrative law ("Englisches Verwaltungsrecht," 2nd ed., 
 1867, vol. i., Historical pt., 648 pages). 
 
 Meanwhile, in the year 1858, constitutional monarchy was 
 restored as the form of government in Prussia, with the honest 
 endeavour to return to an administration according to the 
 law, and to proceed with the construction of the inner fabric 
 of the State. Together with many of my political friends 
 I hoped that the time had arrived for "opposing positive 
 tendencies to the negative tendency of our national policy, 
 
 b
 
 vi Author s Preface. 
 
 for exchanging vague and formless efforts for fixed and settled 
 aims and objects to be gained by attainable means." With 
 regard to the reorganization itself, every one was satisfied 
 that a system of "self-government" was a necessity; but 
 each of the two political parties in the realm, and the body 
 of State officials, respectively understood by this term three 
 very different and wholly incompatible systems. It was the 
 natural consequence of a state of affairs, in which the official 
 world and two distinct orders of society had been involved 
 for a whole generation in a dispute concerning the constitution. 
 It was no easy matter gradually to reconcile prevailing ideas 
 to the truth, that in a modern state, parishes and district 
 unions can no longer be autonomous bodies, but are, primarily, 
 only the executive organs of our more fully developed admin- 
 istrative law, and that local rates cannot be severed from 
 our system of political economy. Hence a legislation that' 
 would rise above all party views was seen to be a vital 
 necessity; just as in England the inner fabric of the con- 
 stitution was not the outcome of parliamentary legislation, 
 but proceeded in its day from the organic laws dictated by 
 the Privy Council. In order to further these legislative 
 labours, or at least to prevent an overhasty imitation of the 
 French model, in the regulation of parishes and districts, 
 there appeared a work which I had somewhat speedily com- 
 pleted, entitled " Die Englische Communal- Verfassung oder 
 das System des Self-government " (1860). Soon afterwards 
 I was able to rewrite with greater care my history of " self- 
 government " (" Engl. Communal- Verfassung," 2nd ed., 1863), 
 and to give a description of the modern English municipal 
 reforms down to the times when the organic legislation in 
 Prussia really began its work ("Engl. Communal- Verfassung," 
 3rd ed., 1871). 
 
 After the Prussian and with it the German constitutional 
 question had been successfully solved, the time for actual con- 
 struction had arrived, viz. the time for positive reforms of our 
 administrative system, especially our police laws, local juris-
 
 Authors Preface. vii 
 
 diction, local taxation, municipal regulations, etc. (" Ver- 
 waltung, Justiz, Eechtsweg," etc., Berlin, 1869). For Prussia 
 I made the principal basis of my work the reformed adminis- 
 trative and social legislation of Stein and Hardenberg, the 
 municipal regulations of 1808, and the existing parochial 
 system in country and town. But whilst I carefully avoided 
 transferring into our German institutions any name or insti- 
 tution from English life, yet in all cases where our officials 
 had no practical experiences at hand to guide them in new 
 combinations in administrative law or local government, I 
 made use of parallels taken from England. In subsequent 
 years there followed essays which dealt with our constitutional 
 disputes, and with the question of reform in our legal pro- 
 cedure, as well as in our administration ; among which the 
 legislative proposals touching the Prussian Kreisordnung, 
 school board administration, provincial taxation, the principle 
 of legality in the administrative (Eechts-staat), the reform of 
 the legal profession, of the magistracies, of penal procedure, 
 etc., repeatedly brought me better points of view of and 
 parallels with the English law. 
 
 Thus there gradually arose, in addition to a continuous 
 history of administrative law and " self-government," a chain 
 of parallels for various points of the inner life of the state, in 
 which, thanks to the energetic development of the royal prero- 
 gatives, the English and Prussian constitutions are much 
 more intimately related than is generally supposed. 
 
 It cannot be denied that these writings appeared in an 
 epoch and in the midst of the most profound political crisis 
 in my native land (during the last years of Frederick 
 William III., under Frederick William IV., during the regency, 
 and under William I., Emperor and King) ; and appeared, 
 too, under the pressure imposed upon me by my academical 
 duties, as well as that entailed by a magistracy and a pro- 
 vincial office, and by a long and active parliamentary life. 
 Though all this has probably been instrumental in producing 
 a many-sided appreciation of affairs, it necessarily had an
 
 viii Authors Preface. 
 
 unfavourable effect upon the systematic arrangement of those 
 writings ; besides which, in a work directed towards an im- 
 mediate and practical end, the connection of the whole cannot 
 always be sufficiently kept in view and expressed. Hence 
 arose on my part a natural desire to put together the English 
 constitutional history in a larger and more coherent form, 
 using as a basis the work most nearly complete in itself, the 
 history of English administrative law, from which I could 
 retain the divisions into periods and chapters because it was 
 originally designed for a history of parliamentary law. As 
 regards this portion, the present work appears as a third 
 edition. And here I have repeated an old experience gained 
 on the German judicial bench, namely, that where, after many 
 interlocutory judgments, the final judgment has been reached 
 in any litigated case, many mistakes, one-sided views, and 
 gaps are discovered, which have arisen in determining the 
 separate preliminary and intermediate questions. Fortunately 
 such interlocutory judgments are not binding on the historian, 
 but allow of the completion, correction, and modification of 
 opinions which once went too far ; and in this I have been 
 much helped of late years by the excellent historical works 
 of Froude, Freeman, Stubbs, and others. 
 
 In another direction this history has encountered a grave 
 difficulty, viz. in the copiousness of the matter. 
 
 A constitutional history must portray the reciprocal action 
 continually going on between State and society, Church and 
 State, constitution and administration, state-life and popular 
 life, political and private economy, between the greatest and 
 smallest interests. These are ever acting and reacting one 
 upon another in such wondrous complications that a picture 
 of the coherent elements, even when the moments of their 
 activity are continually brought before the reader, can be 
 but inadequately represented. In this constitutional history 
 differs from a history of law, for the latter traces the develop- 
 ment of the dogmas of private and criminal law, by quoting 
 from legal documents and authorities, whilst the former deals
 
 Author s Preface. 
 
 with the living body of the State in its origin, its life and its 
 progress, and the successive and unbroken evolution of enact- 
 ments which have remained in force until the present day. 
 
 But even in this imperfect form, the English constitutional 
 history is pre-eminently suited to give a picture of the inner 
 coherence of the various members of the state and society, on 
 which the history of all constitutions and the fate of all 
 nations is really based. In these reciprocal relations the 
 history of former centuries returns to life, and becomes a 
 mirror wherein are reflected the struggles of the present ; but 
 above all it must be regarded as manifesting the over-ruling 
 Providence which guides the destinies of mankind according 
 to right and towards the right. Every man who, with the 
 inevitable partiality arising from a political, ecclesiastical or 
 social standpoint, follows up the development of the British 
 empire for a thousand years back, and strives in all earnest- 
 ness to discover the connection of events, will be obliged to 
 correct or amplify many preconceived opinions. The results 
 of personal activity and experience are similar in the mani- 
 fold relations of public life, in narrower and in wider circles ; 
 and it is just this habit of personal activity that has educated 
 the English nation and its ruling class in political freedom, 
 and has raised the political parties in the country to the 
 capacity of ruling parties. Perhaps in later treatises I may 
 succeed in portraying these reciprocal relations in a still 
 simpler and more vivid manner, for in them lies the solution 
 of that enigma of the European world otherwise incapable 
 of explanation namely, how it comes that in one country 
 the individual members of the State and of society appear to 
 be in a state of progress, and yet the whole loses ground, 
 whilst in another, the individual elements appear to be back- 
 ward and at times to retrograde, whilst the whole is mightily 
 advancing. 
 
 BERLIN, April, 1882.
 
 TRANSLATOR'S PREFACE. 
 
 THE author's world-wide reputation, both as a jurist and 
 historian, was alone sufficient to justify the appearance of an 
 English edition of his History of the English Constitution; 
 but the preface to the German original furnishes a still more 
 cogent reason for presenting this translation to the English 
 public. The author there tells us that no consecutive history 
 of the English Constitution has previously been written. 
 Various epochs have, it is true, been treated by consummate 
 masters, but there is no treatise extant, that has attempted 
 in any way to describe the rise of our political system, and to 
 follow it through all its varying phases down to the present. 
 
 It is the author's express wish that his preface to the 
 German original, though primarily intended for German 
 readers only, should likewise preface this translation; as 
 therein are set out the causes that induced him to commence 
 and bring his researches to a successful issue. 
 
 The work having been compiled fragmentarily and at 
 different times, and having originally been devised to meet 
 the practical needs of the German legislature, could not but 
 exhibit some abnormal features; among them the especial 
 stress laid upon the administrative institutions of the State, 
 the county and the parish. The author was, moreover, 
 obliged to express himself according to political and legal 
 conceptions familiar to German jurists, and which diverge
 
 xii Translator s Preface. 
 
 more or less widely from English terms. Hence a free trans- 
 lation of the English terms into German had first to be made, 
 a retranslation of which into English is far from easy, and in 
 many cases might appear to call for explanation, the insertion 
 of which, however, would have encumbered the text. 
 
 The author as well as the translator must accordingly beg 
 the indulgence of the reader for any roughness or unevenness 
 of style, which may blemish the original or the translation ; 
 shortcomings that could scarcely be avoided, as the author 
 could only hastily revise the sheets. 
 
 At all events it will be of the greatest interest for English 
 students of history to see how a foreign jurist, who has been 
 much engaged with the reform of the judicial and adminis- 
 trative institutions of Germany, treats the ancient and 
 modern development of the "Parliamentary Model State." 
 
 P. A. A. 
 
 LONDON, November, 1885.
 
 CONTENTS. 
 
 FIRST PERIOD. 
 
 THE ANGLO-SAXONS. 
 
 CHAPTER I. 
 
 PAGE 
 
 THE ANGLO-SAXON FOUNDATION ... ... ... ... 1-1 1 
 
 The original settlement (1); Bocland and Folcland (3); Military 
 system (4) ; Judicial system (6) ; The Church (8). 
 
 CHAPTER II. 
 
 THE ANGLO-SAXON MONARCHY ... ... ... ... ... '12-33 
 
 Origin (12) ; Military Supremacy and followers (16) ; Judicial Supre- 
 macy (19) ; Police-supremacy, ordaining power, system of sureties 
 (22) ; Revenue, Danegeld (25) ; Church Protectorate, 29. 
 
 CHAPTER III. 
 
 THE UNION OP THE KINGDOMS, AND THE DIVISIONS or THE REALM ... 34-46 
 The Heptarchy (34); Shires (37); Hundreds (40) ; Tithings (42) ; Local 
 divisions (43). 
 
 CHAPTER IV. 
 
 THE OFFICES OF EALDORMAN AND SHIR-GERFA ... ... ... 47-58 
 
 Ealdorman, Eorl (47) ; Shir-gereia (51) ; Local gerefas (55). 
 
 CHAPTER V. 
 
 THE ANGLO-SAXON CHUECH ... ... ... ... ... 59-72 
 
 Bishoprics (59) ; Monasteries (61) ; Parish churches (62) ; Church 
 property (63) ; Tithes (64) ; Political position of the clergy (65) ; 
 National character (71). 
 
 CHAPTER VI. 
 
 THE ANGLO-SAXON CLASS-RELATIONS, AND THE NATIONAL ASSEMBLIES ... 73-85 
 Great thanes (77) ; County thanes (77) ; Ceorls (78) ; National assem- 
 blies (81) ; Witenagemotes (83). 
 
 CHAPTER VII. 
 
 THE DECAY AND FALL OF THE ANGLO-SAXON KINGDOM ... ... 86-94 
 
 National antipathies (86) ; Social antipathies (89) ; Church and 
 State (90) ; National character (93).
 
 xiv Contents. 
 
 SECOND PERIOD. 
 
 THE ANGLO-NORMAN FEUDAL STATE. 
 CHAPTER VIII. 
 
 PAGE 
 
 THE PROPERTY BASES OF THE NORMAN FEUDAL STATE ... ... 95-113 
 
 Character of the Conquest (96) ; Legal incidents of the feudal system 
 (98); Doomsday Book (102); Statistics of the population (103); 
 Erroneous ideas as to the Norman feudal system corrected (107) ; 
 Inbreviatio and redemptio (108); Events of the century (111). 
 
 CHAPTER IX. 
 
 THE NORMAN COUNTY GOVERNMENT ... ... ... ...114-126 
 
 New position of the Eorl (114) ; The Vicecomes (116); Manors (122); 
 Honors (122); Burghs (123). 
 
 CHAPTER X. 
 
 I. THE DEVELOPMENT OF THE NORMAN MILITARY POWER ... ... 127-135 
 
 Decisions as to peace and war (127) ; Equipment of troops (129) ; 
 Command (131) ; Revival of the Saxon militia (133). 
 
 CHAPTER XI. 
 
 II. THE DEVELOPMENT OF THE NORMAN JUDICIAL POWER ... ... 135-151 
 
 Confirmation of the Leges Eduardi (136); County and hundred courts 
 (136) ; Manorial courts (139) ; Germs of centralization (141) ; Origin 
 of the Sheriff's Tourn (145) ; Jurisdiction of the Curia Regis (146) ; 
 Changes by royal ordinances (148) ; Juries in civil actions (149). 
 
 CHAPTER XII. 
 
 1^1 THE DEVELOPMENT OF THE NORMAN POLICE CONTROL ... ...151-165 
 
 Sureties (151) ; Presentment (153) ; Turnus Vicecomitis (156) ; Summary 
 procedure (159) ; System of amerciaments (160) ; Police regulations 
 and royal ordinances (164). 
 
 CHAPTER XIII. 
 
 IV. THE DEVELOPMENT OF THE FINANCE CONTROL ... ... ... 165-177 
 
 Demesnes (165) ; Feudal perquisites (167) ; Fines (169) ; Aids, tallages, 
 
 scutuges (172); Danegeld (175); Transition to a system of land and 
 property taxation (176). 
 
 CHAPTER XIV. 
 
 THE NORMAN EXCHEQUER ... ... ... ... ... 178-187 
 
 Origin (178) ; Procedure (180) ; Court days (182) ; Staff (184) ; Exchequer 
 of Jews (186). 
 
 CHAPTER XV. 
 
 V. THE RISE AND DECAY OF THE NORMAN CHURCH SUPREMACY ... 188-201 
 
 Concessions to Rome (188) ; Separation of the Ecclesiastical Jurisdiction 
 (189) ; Feudal bonds of the Church (190) ; Disputes as to the in- 
 vestiture (192); Constitutions of Clarendon (194); Freedom of 
 election (198) ; Progress of the struggle (198).
 
 Contents. xv 
 
 CHAPTER XVI. 
 
 PAGE 
 
 THE CURIA REGIS. THE GREAT OFFICERS OF THE REALM ... ... 201-221 
 
 The Curia considered as the Norman Court Days. Royal power of 
 ordinance (201); the Curia Regis as a Central Law Court (209) ; the 
 Curia Regis as a Supreme Government Council (214) ; The great 
 officers of the realm (215). 
 
 CHAPTER XVII. 
 
 TRANSITIONAL PERIOD. ITINERANT JUSTICES. JUSTICES IN BANCO. ORIGIN 
 
 OF ESTATES OF THE REALM ... ... ... 222-239 
 
 Origin of itinerant justices (223) ; Origin of a Court of King's Bench 
 in connection with the Exchequer (227) ; Origin of Estates of the 
 Realm (233). 
 
 CHAPTER XVIII. 
 
 MAGNA CHARTA ... ... ... ... ... ... 240-254 
 
 Its origin (240); Limitations of the supreme power (245); Clauses 
 relating to the Estates of the Realm (250) ; its fundamental cha- 
 racter (253). 
 
 CHAPTER XIX. 
 
 THE FIRST ATTEMPT AT A GOVERNMENT BY ESTATES OF THE REALM ... 255-272 
 Confirmations of Magna Charta (256) ; Epochs of the constitutional 
 struggle (259) ; the name Parliament (261) ; the Parliament of 
 Oxford (263) ; the Statute of Marlebridgs (266) ; Character of the 
 constitutional wars (267) ; Germs of a Lower House (270). 
 
 CHAPTER XX. 
 
 THE CLASS RELATIONS OF THE ANGLO-NORMAN PERIOD ... ... 272-281 
 
 The Greater Vassals, Barones Majores (273) ; the Sarones Minores and 
 Sub-vassals (275) ; Freeholders and towns (279). 
 
 THIRD PERIOD. 
 
 THE PERIOD OF THE GROWTH OF THE ESTATES 
 OF THE REALM. 
 
 CHAPTER XXI. 
 
 THE CENTURY OF ORGANIZING STATUTES. UNION OF THE CENTRAL GOVERN- 
 MENT WITH THE CONSTITUTION OF THE COUNTIES ... ... 282-313 
 
 Nature of the organization (283) ; Union of the military system with 
 the county (286) ; Union of the judicature with the county (291) ; 
 Union of the police power with the county Origin of justices of the 
 peace (297) ; Union of the financial administration with the county 
 Local taxation (306) ; Self-government in the towns (310). 
 
 CHAPTER XXII. 
 
 THE COURTS OF COMMON LAW ... ... ... ... ...314-325 
 
 Court of King's Bench (314) ; Court of Common Pleas (315) ; Court of 
 Exchequer (316) ; Consolidation of the itinerant justices and the 
 Bench (317) ; Rise of the legal profession (320) ; the Lord Chan- 
 cellor as qfficina justitise (322) ; Special courts (322).
 
 xvi Contents. 
 
 CHAPTER xxin. 
 
 PAGE 
 
 THE PERMANENT OB CONTINUAL COUNCIL. THE COURT OF CHANCERY 325-337 
 Origin of the Council (325) ; Procedure (326) ; Staff (329); Commissions 
 and delegations (329) ; Jurisdiction of the Council (331); the Lord 
 Chancellor as head of the Chancery Department (335). 
 
 CHAPTER XXIV. 
 
 THE PARLIAMENT OF THE PRELATES AND BARONS ... ... ... 338-357 
 
 The Magnum Concilium as an administrative organ (338) ; Spiritual 
 and temporal lords and officials (345) ; origin of heritable peerages 
 (351). 
 
 CHAPTER XXV. 
 
 THE SHARE OF THE COMMONS IN THE PARLIAMENT. ORIGIN OF THE 
 
 LOWER HOUSE ... ... ... ... ... ... 357-393 
 
 First summonses (357) ; Right of granting taxes Statutum de tallagio 
 non concedendo (359-366) ; Petitions, common grievances, motions 
 (366-371); Participation in legislation Statutes and ordinances 
 (371-376) ; Division into two Houses (376-380) ; Rights of election 
 and qualification for the Lower House (381-387); The Parliament 
 as a whole (387, 388) ; Development of Parliamentary taxation 
 (388-393). 
 
 CHAPTER XXVI. 
 
 THE CHURCH AT THE CLOSE OF THE MIDDLE AGES ... ... 394-404 
 
 Separation of Church and State (394) ; Representation of the clergy in 
 Parliament (396); Legislation for the State Church Prsemunire 
 (400) ; Beginnings of the feud the Lollards (402). 
 
 CHAPTER XXVII. 
 
 THE STRUGGLES OF THE KING IN PARLIAMENT ... ... ... 405-421 
 
 The Wars of the Roses (417-421). 
 
 CHAPTER XXVIII. 
 
 THE THREE ESTATES OF THE REALM ... ... ... ... 421-443 
 
 Spiritual and temporal magnates (422) ; Knights (426) ; Alienability of 
 knights' fees (427); Freeholders (432); Municipal burgesses (4*34- 
 440) ; Labourers, 440-443. 
 
 CHAPTER XXIX. 
 
 THE ORGANIZATION OF THE STATE. THE ROYAL PREROGATIVE ... 444-457 
 Position of the monarchy (449-457).
 
 Contents. 
 
 XVll 
 
 FOURTH PERIOD. 
 
 THE AGE OF THE TUDORS AND OF THE REFORMATION. 
 CHAPTER XXX. 
 
 PAGE 
 
 THE RESTORATION OF CONSTITUTIONAL GOVERNMENT ... ... 458-461 
 
 CHAPTER XXXI. 
 
 THE DEVELOPMENT OP THE COUNTY CONSTITUTION ... ... 462-472 
 
 The militia system (462); The judicial system (464); The county 
 police system (465) ; Extensions of the office of justice of the peace 
 (465-470) ; Assessment of taxes (470) ; Municipal constitution (470). 
 
 CHAPTER XXXII. 
 
 THE PROGRESS OF THE PARLIAMENTARY CONSTITUTION ... ... 472-481 
 
 The Upper House (473) ; The Lower House (474) ; Legislation by Par- 
 liament (476) ; Right of voting money supplies (478) ; Control of the 
 Administration (479) ; Privilege of Parliament (481). 
 
 CHAPTER XXXIII. 
 
 THE REFORMATION ... ... ... ... ... ... 482-492 
 
 The four epochs of the English Reformation (489-492). 
 
 CHAPTER XXXIV. 
 
 THE COURT OF HIGH COMMISSION AND THE ADMINISTRATIVE ORGANIZA- 
 TIONS OF THE STATE CHURCH ... ... ... ... 493-499 
 
 The Court of High Commission (493); Diocesan government (496); 
 Lower ecclesiastical offices (497) ; Ecclesiastical allegiance (497). 
 
 CHAPTER XXXV. 
 
 THE PRIVY COUNCIL. THE STAR CHAMBER. COURTS OF JUSTICE ... 500-513 
 The Privy Council, its members and functions (500-504); The Star 
 Chamber (504-508) ; Delegations of the Council (508) ; Provincial 
 governments (510); Central courts (511); General character of the 
 Government (513). 
 
 CHAPTER XXXVI. 
 
 THE DEVELOPMENT OF THE PAROCHIAL SYSTEM ... ... ... 514-534 
 
 Constitution of the parish (515); Parochial poor relief (520); High- 
 ways and bridge-building (524) ; System of parochial rates (527) ; 
 Local statutes (528) ; Communal assemblies (529) ; Superior juris- 
 diction of the magistrates and central courts (530-534).
 
 xviii Contents. 
 
 FIFTH PERIOD. 
 
 THE STUARTS AND TEE CONSTITUTIONAL CONFLICT. 
 CHAPTER XXXVII. 
 
 PAGB 
 
 THE DISCORD WITHIN THE POLITICAL SYSTEM k ... ... ... 535-543 
 
 High Church political theories (542). 
 
 CHAPTER XXXVIII. 
 
 THE CONFLICT OF THE Juro Divino MONARCHY WITH THE ESTATES 544-564 
 Character of the house of Stuart (544-547) ; Abuse of the ecclesiastical 
 government (548) ; Abuses of the Star Chamber (549) ; Abuse of the 
 judicature (550) ; Ship-money (551) ; Parliament ignored (553) ; 
 Measures of the Long Parliament (554-557) ; The Civil War (557- 
 562) ; Trial of the king (563). 
 
 CHAPTER XXXIX. 
 
 THE REPUBLIC... ... ... ... ... ... ... 565-579 
 
 Position of the parties (567) ; Administration of the Republic (569- 
 576) ; Attempts at a Constitution (576-579). 
 
 CHAPTER XL. 
 
 THE RESTORATION ... ... ... ... ... ... 580-588 
 
 Restoration of the Parliamentary Constitution (582) ; Corruption of the 
 Administration (587). 
 
 CHAPTER XLI. 
 
 THE KING IN COUNCIL AND THE KING IN PARLIAMENT ... ... 589-603 
 
 The Privy Council and its Committees (589) ; The Upper House (591) ; 
 The Lower House (593) ; Extension of Parliamentary powers (594) ; 
 Misrule of the Cabinet (596) ; Corruption of the law courts (599) ; 
 Habeas Corpus Act (601) ; Demoralization of officials (602). 
 
 CHAPTER XLII. 
 
 THE EXPULSION OF THE STUARTS ... ... ... ... 604-615 
 
 The Exclusion Bill (606); Whigs and Tories (606); Accession of 
 James II. (607, 608) ; Dispensations from the laws (609, 610) ; The 
 glorious Revolution (611) ; Declaration of Rights (612) ; Departure 
 of the Stuarts (613). 
 
 CHAPTER XLHI. 
 
 THE CONDITIONS OF SOCIETY AT THE END OF THE SEVENTEENTH CENTURY 615-624 
 Lords and gentry (615-620) ; Enfranchised middle classes (620-623) ; 
 Unfranchised classes (623, 624).
 
 Contents. xix 
 
 SIXTH PERIOD. 
 
 TEE PARLIAMENTARY GOVERNMENT OF THE 
 EIGHTEENTH CENTURY. 
 
 CHAPTEE XLIV. 
 
 PAGE 
 
 THE STRUCTURE OP THE ENGLISH STATE AFTER THE REVOLUTION ... 625-627 
 
 CHAPTER XLV. 
 
 I. THE RESTORATION OF THE HEREDITARY MONARCHY ... ... 628-631 
 
 CHAPTER XLVI. 
 
 II. THE REGULATION OF SOVEREIGN RIGHTS BY LAW ... ... 632-639 
 
 Relation between law and ordinance (639). 
 
 CHAPTER XL VII. 
 
 III. THE CONNECTION OF SOVEREIGN RIGHTS WITH LOCAL INSTITUTIONS. 
 
 SYSTEM OF SELF-GOVERNMENT ... ... ... ... 640-647 
 
 CHAPTER XL VIII. 
 
 IV. THE DEVELOPMENT OF THE ADMINISTRATIVE JURISDICTION ... 647-657 
 Nature of Administrative difficulties (648, 649); Courts of Higher 
 
 Instance (650-657). 
 
 CHAPTER XLIX. 
 
 V. THE FINAL CONSOLIDATION OF THE RULING CLASS ... ... 658-663 
 
 CHAPTER L. 
 
 VI. THE FORMATION OF THE LOWER HOUSE ... ... ... 664-671 
 
 System of local taxation (665) ; System of honorary offices (667) ; 
 
 Anomalies of the municipal constitutions (669). 
 
 CHAPTER LI. 
 
 VII. THE POSITION OF THE UPPER HOUSE ... ... ... 672-675 
 
 CHAPTER LII. 
 
 VIII. THE ESTABLISHED CHURCH AS A LINK IN THE SYSTEM OF PARLIA- 
 MENTARY GOVERNMENT ... ... ... 676-680
 
 xx Contents. 
 
 CHAPTER LIII. 
 
 PAGE 
 
 IX. THE RELATIONS OF THE CROWN TO PARLIAMENT. THE KING IN 
 
 COUNCIL AND THE KING IN PARLIAMENT ... ... ... 681-689 
 
 Origin of party government (682) ; Constitutional nature of the Cabinet 
 (686). 
 
 CHAPTER LIV. 
 
 THE DISSOLUTION OF THE GREAT OFFICES. THE TRANSITION TO THE 
 
 MODERN MINISTERIAL SYSTEM ... 689-695 
 
 CHAPTER LV. 
 THE FORMATION OF PARLIAMENTARY PARTIES ... ... ... 696-701 
 
 CHAPTER LVI. 
 THEORY AND PRACTICE OF PARLIAMENTARY PARTY GOVERNMENT ... 702-708 
 
 CHAPTER LVII. 
 
 THE PARLIAMENTS OF THE NINETEENTH CENTURY DOWN TO THE FIRST 
 
 REFORM BILL (1832) ... ... ... ... ... 708-722 
 
 CHAPTER LVIII. 
 
 THE PARLIAMENTS OF THE NINETEENTH CENTURY DOWN TO THE SECOND 
 
 REFORM BILL (1867) ... ... ... ... ... 723-738 
 
 CHAPTER LIX. 
 
 THE PARLIAMENTS OF THE NINETEENTH CENTURY DOWN TO THE THIRD 
 
 REFOKM BILL (1884-85) 739-748 
 
 THE IRISH QUESTION. Note to Chapter LIX. ... ... ... 748 
 
 INDEX... ... ... ... ... ... ... 751
 
 CONSTITUTIONAL 
 HISTORY OF ENGLAND. 
 
 FIEST PEEIOD. 
 THE ANGLO-SAXONS. 
 
 CHAPTEE I. 
 
 ECGBEBHT, 800-836 
 
 ^THELWULF, 836-857 
 
 JETHELBALD, 857-860 
 ^ETHELBERHT, 860-866 
 
 ^THELEED, 866-871 
 .ALFRED, 871-901 
 
 EADWARD THE ELDER, 901-924 
 .3STHELSTAN, 924-941 
 EADMUND, 941-946 
 EADRED, 946-955 
 
 Jpountratfon.* 
 
 EADWIG, 955-959 
 
 EADGAR, 959-975 
 
 EADWARD THE MARTYR, 975-978 
 
 JETHELRED II., THE IlNREADY,978-1016 
 
 EADMUND IRONSIDE, 1016 
 
 CNTJT, 1016-1035 
 
 HAROLD I., BAREFOOT, 1035-1039 
 
 HARTHACNDT, 1039-1042 
 
 EADWARD THE CONFESSOR, 1042-1066 
 
 HAROLD II., 1066 (January to October) 
 
 THE conquest of the British Isles by the Saxons, Angles, and 
 Jutes from the middle of the fifth century has the character 
 
 * With regard to the sources of this 
 period, Lappenberg (" Geschichte Eng- 
 lands," vol. i. Introd.) gives the most 
 exhaustive information. Compare also 
 Gneist ("Geschichte der Communal- 
 Verf." pp. 7-9). The laws in the fol- 
 lowing pages are quoted as given by 
 Beinhold Schmid ("Die Gesetze der 
 Angel-Sachsen," 2nd ed., 1858). Where 
 special occasion demands, quotations are 
 given from the official report of the 
 Record Commission (Thorpe, " Ancient 
 Laws and Institutes of England," two 
 vols. 8 vo, 1840). The several royal laws 
 are quoted with the abbreviations used 
 by Schmid, viz. Athlb. (^Ithelberht), 
 Whtr. (Wihtraed), In. (Ine), Alfr. 
 (Alfred), Edw. (Eadward the Elder), 
 
 Athlst. (JEthelstan), Edm. (Eadmund), 
 Edg. (Eadgar), Athlr. (.Ethelred), On. 
 (Cnut). From the Norman times the 
 Leges Gulielmi Conqu. also contain in 
 the main only a collection of Anglo- 
 Saxon rules of law. The so-called Leges 
 Henrici I. are principally also only 
 a private compilation from the later 
 Anglo-Saxon legislation, dating from 
 tho middle of the twelfth century. 
 The Leges Eduardi Confessoris also are 
 a private compilation from various 
 sources and traditions from the legis- 
 lation of the later Anglo-Saxon times, 
 and apparently dating also from the 
 twelfth century. The Anglo-Saxon 
 documents are quoted from Kemble's 
 Codex Dipl., vols. i.-vi. (1839-1846). 
 B
 
 Constitutional History of England. 
 
 of a gradually advancing occupation. The disunited Britons, 
 some of them grown effeminate, while others have become 
 savage, are overcome after numerous battles with varying 
 issue ; the civic settlements, dating from the days of the Koman 
 sway, fall into ruins ; the old Eoman culture disappears, and 
 with it Christianity ; the aboriginal population is either driven 
 into the hills or reduced by oppression to a state of slavery 
 or to the position of impoverished peasants. Hence in Eng- 
 land those peculiar conditions are wanting which in Western 
 Europe arose from a mixture of the Germanic races with 
 a Romanized provincial population, with Roman culture, and 
 with the Roman provincial and ecclesiastical constitution. 
 On the other hand, the conquest had the effect of destroying 
 the tribal bond that still prevailed in the home from which 
 the conquerors came. The first settlements, indeed, appear 
 to have been based upon the exodus of small tribes (notably 
 the Angli), with wives, children, -and servants, from the old 
 home into the new. As colonization slowly proceeded new 
 migrations continually took place (as in the colonization of 
 the Marks in East Germany), in consequence of which the 
 old tribes became mingled together, and the original family 
 unions were widened by new settlers. The groups of con- 
 querors thus welded together appear to have found their bond 
 of union principally in the greater and lesser military chiefs, 
 from whose office as leaders in war the royal dignity arose in 
 later times. 
 
 After the occupation of the country a division of lands took 
 place, in which the hida, familia, mansus, or plough of land 
 (which, according to Kemble, amounted to thirty-three Saxon, 
 or forty Norman, acres), was made the unit or smallest 
 measure of land settlement, and, with certain rights of pas- 
 turage and woodcutting, was regarded as a sufficient basis for 
 a peasant's household. 
 
 In many places the British population had already a dis- 
 tinct landed property upon which the conquerors entered. In 
 
 Of English historical works bearing Bishop Stubbs, "Constitutional His- 
 
 on these times use has been made tory," vol. i. cap. 1-8 (1874); and an 
 
 principally of Kemble, "The Anglo- exceedingly able and useful selec- 
 
 Saxons in England" (1849), two vols. tion of legal charters and historical 
 
 (translated by Brandis, from whom the documentary evidence is furnished by 
 
 quotations are taken) ; Sir Francis his " Select Charters and Illustrations 
 
 Palgrave, "The English Common- of Constitutional History "(2nd edition, 
 
 wealth "(1831, 1832), two vols. ; Sharon Oxford, 1874). Of German treatises, 
 
 Turner, "History of the Anglo-Saxons" a history of Anglo-Saxon law contain- 
 
 (1799-1835), three vols., with the sup- ing the principal features, by Conrad 
 
 plementary volume, "The History of Maurer, " Miinchener Kritische Ueber- 
 
 the Manners, Landed Property," etc. schau," vol. i. p. 47, ff., continued in 
 
 New and important contributions for vols. ii. and iii. ; Phillips, " Geschichte 
 
 this period are also given by Freeman, des Angelsachsischen Rechts " (1825) ; 
 
 " History of the Norman "Conquest," Lappenberg, " Geschichte Englands," 
 
 vols. i., ii., iii. (2nd edition, 1870); vol. i. (1838).
 
 The Anglo-Saxon Foundation. 
 
 later times the continual feuds among the petty kingdoms 
 everywhere hastened the dissolution of the family bond and 
 the development of private property, with all its lasting effects 
 upon the constitution and civilization of nations. Only in 
 a few tracts of land in North Europe were soil and climate 
 so inviting and so productive for the peaceful labour of tillage 
 and pasturage, so calculated to .produce attachment to hearth 
 and home. Erom the beginning of the tenth century the 
 expressions "boc-land" and "folk-land" appear as the in- 
 variable equivalent of the ager privatus and the ager publicus. 
 The rich store of Anglo-Saxon records proves conclusively that 
 the rights of private property were early established, and that 
 property could be transferred by title deeds. Just as certainly 
 was there in early times great inequality in the division of 
 property. The reason for this is chiefly to be sought in the 
 existence of small armies which were slowly but steadily 
 conquering, under their numerous captains and commanders, 
 who at the division of the land received the greater posses- 
 sions, which possessions in process of time were managed 
 by the settlement upon them of smaller people, who rendered 
 payment in kind. This inequality of property had already 
 undermined the old position of the freeman. The ancient 
 inheritance of freedom, the considerable weregeld, and the 
 personal protection accorded the liber Jwmo, were, indeed, 
 continued to him, even when he possessed no land, down to 
 the close of the Anglo-Saxon period. But in every other 
 respect, the rising up of the greater landed proprietors over 
 the class of the peasant .proprietors, and the degradation 
 below the line of freedom of the free-born men, without 
 possession of their own, is increasingly manifest. The -con- 
 ditions of property among the Anglo-Saxons tended thus to a 
 state of dependence, by means of loans of land and service, 
 on the largest scale. The ordinary names for those who were 
 in this state Folgan, Hldfdta include both the settlers upon 
 the land thus lent or let and also the personal domestic 
 servants. But the state of service (gesith) thus created 
 proceeds in two widely divergent directions. 
 
 This entrance into the sphere of personal service has quite 
 a different meaning as applied to the household of the inferior 
 warrior chieftains. When once a settlement has been formed, 
 the honour attached to this service, and its connection with 
 military and legal affairs, gives the retinue of the king a 
 position so prominent as to be eagerly sought after by the 
 landless sons of the great proprietors, and even by free land- 
 lords. The relation of service to the king forms more and 
 more an especially honoured upper class, increasing with the 
 growth of the royal privileges and of the realm.
 
 Constitutional History of England. 
 
 On the other hand, this dependence, brought about by the 
 settlement on farms held of private persons, is productive of 
 a lower position, which sinks below the level of the old common 
 liberty. This class of settlers are for the most part small 
 farmers, intermingled even with bondsmen, and it has the 
 position of a dependent and heavily burdened peasantry. 
 Extant records show us how manifold were the ways of 
 granting such a " fief," whether revocably or irrevocably, for 
 years or for life, and with reservation of numerous payments 
 (gafol) in kind or in money, in labour, service in the field, 
 defined or undefined. The great landed proprietorships 
 realized much from such settlements, and supplied them- 
 selves with the natural products and the services of which 
 a great household stood in need, for the wants of private 
 life as well as for the equipment of the troops. The depen- 
 dence thus created became in fact hereditary, and increased 
 in times of war, through the destruction of the free peasant 
 farms, and in times of peace through the increase in the 
 number of the landless members of families. In this direction 
 social order appears in the Anglo-Saxon times to have 
 advanced with even step. The law of property originating in 
 later times under the name " rectitudines singularum person- 
 arum," affords us in the law affecting the Thane, in the rights 
 of inheritance, and of those affecting the farm labourers, 
 a picture of a firmly established state of society, exhibiting 
 a deeply rooted dependence of the free-born classes on great 
 landed proprietorships.** In its forms of armament, adminis- 
 tration of justice, and Church, the State is constantly acting 
 and reacting upon these bases of property. Army, Law Court, 
 and Church remain throughout the whole of the Middle Ages 
 the three foundations on which the commonwealth is carrying 
 out its work of change. 
 
 I. The first department, tf)C JWlIftHtg bgStttt of the 
 Anglo-Saxons, is based upon universal service. Under this 
 is to be understood the duty of every freeman to respond in 
 person to the summons to arms, to equip himself at his own 
 expense, and to support himself at his own expense during 
 the campaign. The impossibility of attaining a uniform fulfil- 
 ment of this duty is at the root of all the changes in the 
 social relations, and in the constitution of the Germanic races. 
 After a fixed settlement has been entered on, the small peasant 
 farm, barely sufficient to support a family, cannot possibly, 
 
 * * The laws of property are treated the older family constitution, see R. 
 
 of at length by Conrad Maurer, in the Schmid in "Hermes," vol. 32 (1829), 
 
 " Miinchener Kritische Ueberschau." pp. 232-264. On the land communities 
 
 R. Schmid's " Glossarium " v. Bocland, of the Middle Ages, see Nasse, " Das 
 
 Folkland, Hid. Kemble, Anglo-Saxons, Englische Marken-system." 
 i. c. 2, 4, and appendix A, B, C. On
 
 The Anglo-Saxon Foundation. 5 
 
 as a rule, answer this duty, and still less can it be fulfilled 
 by the landless freeman. Among the Anglo-Saxons, as else- 
 where, after the settlement a division of the militia, according 
 to Hundreds, was organized, in which arrangement a remedy 
 was to be found for existing evils. They were obviated in 
 this way, that the Hundreds, instead of furnishing a hundred 
 men, sent smaller contingents, and that in making the divisions 
 the number of the hides of land was taken into account ; that 
 a landowner was allowed to send his sons and his followers 
 to serve in his stead, and that the regulation of the duty of 
 furnishing troops was left to the resolution of the National 
 Assembly, and in process of time to the lieutenants of the 
 king in the County Assembly. The Hundred therefore means, 
 with regard to the constitution of the army, only an equal 
 contingent within a greater unity ; and this is the reason that 
 in various epochs, as for instance under the reign of Alfred 
 the Great, a new organization of the Hundreds took place. 
 The Anglo-Saxon times never attained to such fixed and deter- 
 minate rules of law as were introduced by the capitularies of 
 the Carlovingians. The sub-distribution was left entirely to 
 the administration of the county, whence only a very unequal 
 and faulty form of militia could proceed. 
 
 Accordingly, in the times of the Heptarchy, the individual 
 chieftains were obliged to have recourse to other forces for the 
 waging of their numerous wars, by detaining and reorganizing 
 from among their free servants and followers an armed retinue 
 ready to respond to their personal summons. All court 
 offices had originally a warlike character. Prospects of booty, 
 honour, favour, and reward induced even freemen to join such 
 trains of followers. Besides the booty, gifts of folkland and 
 grants of offices of trust were the rewards chiefly paid for 
 services of this description, and thus there was formed round 
 each of these little kings a first levy of tried soldiers, whose 
 existence confined an appeal to the general military service 
 of the people more and more to cases when the country was 
 in peril. We first read in the laws of Ine of these warlike 
 Gesith-men (with or without land of their own), whose 
 increased weregeld indicates them as belonging to a class 
 liable to military service in a higher sense ; and in process 
 of development these men become the still more esteemed 
 class of Thanes. Analogous reasons in later times led to 
 the greater landed proprietors in the united Saxon kingdom 
 forming a warlike retinue from among their domestics, their 
 under-vassals skilled in arms, and in some measure from 
 among the free landed proprietors. At the same time the 
 majority of the freemen were, to a certain extent, practised 
 in arms, but this varied according to the position of the
 
 6 Constitutional History of England. 
 
 districts. As a rule, the service of the freemen in times of 
 peace was required by the Hundreds more for guard duties, 
 the repair of castles, and the making of roads. The reorgani- 
 zation of the army by Alfred was not permanent, and after 
 the lapse of a hundred years sank into a state of utter 
 weakness, and at the close of the Anglo-Saxon period the 
 ascendancy of a few powerful, warlike Thanes, with their 
 armed followers, produced an oligarchical character in the 
 whole of the constitution. (!) 
 
 II. The second department, the ^nglo-^a.XOlt &&mtmstra= 
 turn of ^justice, in spite of the numerous accounts handed 
 down to us, affords no comprehensive picture of the whole. 
 In the developed constitution of the tenth century, however, 
 we meet with judicial courts of the two following degrees. 
 
 The Hundred Court or Hundred-gemote, meeting once a 
 month for the narrow district of a commonalty (Vicinetum), 
 decides the ordinary civil actions and petty criminal cases, 
 and is the principal place for the solemn conclusion of 
 contracts and testamentary dispositions. 
 
 The County Court Shire-gemote, meeting twice a year, 
 exercises a fuller criminal jurisdiction, decides quarrels between 
 the inhabitants of different hundreds, draws in general within 
 its jurisdiction matters in dispute between more powerful 
 parties, and forms a periodical district assembly for the 
 conduct of all public business in the county. 
 
 The parties appear before the court with numerous com- 
 purgators, i.e. persons prepared to swear to the truth of a 
 statement; the employment of witnesses in civil actions 
 was tolerably frequent, and suitors seem to have appeared 
 frequently taking a part. A regular participation in such 
 judicial proceedings, with their numerous judges and com- 
 purgators, presupposes an independent position which must 
 have been very rare among the small settlers, many of whom 
 possessed but a single hide of land. And yet a regular 
 
 (1) An enquiry into the constitution land, and the rendering of military 
 of the army leads to the negative result service by the grantee, existed already 
 that there was no legal distribution in Anglo-Saxon times, as did also the 
 of the burdens of military service in legal and police jurisdictiou of the land- 
 Anglo-Saxon times. Military service lord over his tenants. In the same 
 was the personal duty of every free way there was a bond of allegiance 
 man, and not a fixed burden, but one between the king and his higher 
 pertaining to the commonalty, and regu- followers, between every master and 
 lated according to extent of property. servant, between the Hlaford and the 
 The much-vexed question, which has Hlafaeta; but the growing together 
 been discussed almost within the and the consolidation of these relations 
 memory of the present generation, as into the English feudal system did 
 to whether in the Anglo-Saxon times not take place until the Norman times, 
 a " feudal system " existed, has its For their more special formation under 
 origin in mistaking a few unconnected the influence of the monarchic power, 
 elements [for the whole. Grants of see cap. ii. sec. 2.
 
 The Anglo-Saxon Foundation. 
 
 attendance at judicial proceedings is the necessary preliminary 
 of all legal knowledge ; he who is only present now and then 
 cannot become and remain the depository of legal knowledge 
 and of legal custom. Accordingly the great County Courts 
 were, at their first authentic appearance, assemblies of the 
 greater proprietors, who, in their capacity of regularly appear- 
 ing, experienced lawmen, obtained the appellation of " Witan." 
 A picture of old Germanic peasant communities forming a 
 court in full assembly, under their chosen presidents, is not 
 to be found among the Anglo-Saxon records. The inequality 
 of the proprietorships has thrust back the smaller farmer into 
 the position of a spectator in the large assemblies, and even 
 in the small County Courts the judgment is generally left to 
 a small number of " Witan." 
 
 These beginnings of a magisterial constitution are founded 
 upon the natural basis of the ascendancy of the great pro- 
 prietors. The Carlovingian institution of select lawmen 
 (goabini), appointed permanently by a royal officer, is foreign 
 to Anglo-Saxon ideas. 
 
 The magisterial office in Anglo-Saxon times is remarkably 
 vigorous in the matter of punishment. Blood vengeance 
 appears only to have been permitted against the slayer with 
 malice aforethought and the adulterer. The privileges and 
 responsibilities of clan and family kinships assume a subor- 
 dinate position where a breach of the peace has been com- 
 mitted. The system of composition, so far as payment of 
 weregeld and penalty to the parties is concerned, appears to 
 have soon become only subsidiary. Serious breaches of the 
 peace are generally visited with capital or corporal punish- 
 ments, while for serious as well as for petty offences, con- 
 siderable fines under various styles and names were payable 
 to the magistrates. Penal justice was thus, even in the 
 Anglo-Saxon times, in intimate connection with the financial 
 rights of the king, and in course of further development 
 with the privileges attached to the private jurisdiction of the 
 landowners. Out of the magisterial authority in criminal 
 procedure there was formed a system of protective measures 
 to secure the "maintenance of the peace." The householder 
 is made responsible for those living with him, the landowner 
 for all the occupiers of his soil, especially for their due 
 appearance in courts of justice. The landless man who did 
 not belong to the household of an established landed pro- 
 prietor, was forced to enter a union called a "tithing." 
 Towards the close of the Anglo-Saxon period, this " tithings 
 system" developed into similar small unions consisting both 
 of free men and of poorer people dependent upon the soil. 
 At the same time these formed a police system, and acquired
 
 8 Constitutional History of England. 
 
 a right of settlement, and thus incorporated the landless 
 population either with the household of a Thane, or with the 
 land belonging to a Thane, and to a community dependent 
 upon him, or forced them into a tithing of free peasantry. (2) 
 III. The third division of the Anglo-Saxon life is furnished 
 by tije &{)tisttan ODturcf) the necessary complement to the 
 army and the judicial system. Just as the influence of the 
 heathen priesthood in the new settlements does not appear 
 to have been anywhere very important, so the conversion 
 of the separate kingdoms to Christianity in the course of a 
 single century (591-688) was effected without any material 
 struggles or convulsions. The successful labours of the 
 Scottish missionaries, who brought down from the north the 
 faith of the British Church, were met from the times of 
 Gregory the Great and St. Augustine onwards by the equally 
 successful propagation of the Boman Catholic ecclesiastical 
 system advancing from the south. In spite of the disunion 
 that at first existed, Christianity found a fruitful soil in the 
 peaceful inclinations of the new colonists; while the early 
 entrance of the aristocratic classes into the clerical profession 
 is a characteristic feature in England. The importance of 
 the Church of the Middle Ages shows itself primarily in its 
 protection of the weaker classes. The Church created the 
 first beginnings of a legal protection against the sale and 
 ill-usage of women, children, and bondsmen. It was the 
 Church that first secured to the labourer his day of rest, 
 his earnings, and an effectual liberation from slavery. She 
 it was that founded the earliest schools for the upper classes, 
 whilst the lower clergy and the monks were accessible to all 
 alike for advice and instruction. She was the first to foster 
 gentle manners, industrial pursuits, peaceful intercourse, and 
 was the first originator of relief for the poor. The higher 
 regard for the sanctity of marriage, the raising of the position 
 of women first in manners, and then in their private rights 
 are due to her influence. In the Law Courts the Church 
 made her power felt by the frequent application of oaths, and 
 by conducting the judicial trials by the ordeal of fire and 
 water, which fell to the Christian clergy in the transition 
 from heathendom. The Bishop appears in conjunction with 
 the Lieutenant of the king, as the head of the county adminis- 
 tration. And so the Church, steadily progressing, enters into 
 the Commonwealth to fulfil those humane tasks for which 
 there was as yet no room in the temporal constitutions of 
 
 (2) As to the legal jurisdiction of refers to their various aspects. As to 
 
 Anglo-Saxon times, compare Lappen- their further development under the 
 
 berg, vol. i. p. 581, et seq. ; Phillips, influence of monarchy, vide cap. ii. 
 
 pp. 166-210. The description of the sees. 2 and 3. 
 offices and the districts (cap. iii. iv.)
 
 The Anglo-Saxon Foundation. 9 
 
 the Middle Ages. In all circles of public administration the 
 Clerici are the indispensable medium for writing. Bound up 
 with all classes of the population, and with all the interests 
 of life, the development of the English Church, as regards its 
 officials, its doctrines, and dogmas, has been more national in 
 its character than the Churches of the continent. Neverthe- 
 less, the internal organization of the Church is true to its 
 principles, as being an universal school. To perform its 
 widely extended functions, there was formed a peculiar class 
 for intellectual labour, which, like every other free labour, 
 needs property ; and therefore in the Middle Ages it needed 
 landed property, without which the Church would have re- 
 mained in a servile position, and incapable of fulfilling its 
 vocation. The ecclesiastical constitution accordingly assumes 
 in this most national of all Church institutions the same 
 external form as in the rest of Christian Europe. A school 
 for a nation can only be conducted by spiritual superiority, 
 and this demands, on the part of officials, submissiveness 
 and devotion to their profession, the first example in the 
 Germanic life of a class of professional public functionaries. (3) 
 
 Such are the political forces which, continually acting and 
 reacting upon the inequality of property, remodel those 
 class relations to which I shall again revert in Chapter 
 VI. The bearers of arms maintain their dominion over 
 the soil, and become the landowners. The landless freemen 
 come into a lasting and actually heritable dependence upon 
 the land. Throughout all degrees of property there runs a 
 disposition to create dependences which strives after a legal 
 recognition, and gains it in the following way. 
 
 The state of dependence in which the poorer classes 
 were, was formally recognized by the king and the general 
 
 (3) We shall revert to the more im- higher clergy that it became possible 
 
 portant of these relations under the for the Church of the Anglo-Saxons to 
 
 head of Ecclesiastical Administration become so soon a national one, that the 
 
 (Chapter V.)- As to the outward pro- Liturgy, Ritual, Prayers, and Sermons 
 
 gress of the conversion, vide especially were so soon given in the German 
 
 Lappenberg, i. 132-205. The pro- tongue, and found their way to the 
 
 pagation of the new doctrines proceeded heart of the people. The retention of 
 
 from above to below, making its first the Germanic proper names, the pecu- 
 
 appearance at the court, and then liarity of the Anglo-Saxon calendar and 
 
 through resolutions of the national its feasts, the small influence exercised 
 
 assembly, which was generally appealed by the Roman Ecclesiastical Law, the 
 
 to, and which decided by a majority of development of the national language 
 
 voices. With regard to the main cha- by the Ecclesiastics, the weakened in- 
 
 racteristics of Anglo-Saxon heathen- fluence of Rome upon the princes of 
 
 dom, see the exhaustive essay of the realm, are the peculiar and in- 
 
 Kemble, i. cap. 12. The effort made timately connected advantages of a 
 
 to replace as soon as possible the few Church, truly richly endowed by reason 
 
 foreign missionaries by native bishops of its former deficiencies " (Lappeu- 
 
 is worthy of note. " It is owing entirely berg, i. 163). 
 to the admisbion of natives among the
 
 10 Constitutional History of England. 
 
 assembly of the realm and became a principle of law. The 
 relation between Hlaford and Hlafaeta was already a com- 
 plete portion of the Anglo-Saxon legislation. (In. 39, 50, 
 Alf. 37, 42 ; Athlr. i. 1, ii. 4, 7, iii. 5, iv. 1 ; Edm. iii. 7 ; 
 Cn. ii. 29, 32, 78, 79.) 
 
 Higher services rendered in the militia and in the Law 
 Courts then led to the legal recognition of a higher worth 
 or station to the idea of Thanehood. The direct expression 
 for the "worth" of a man is the "Weregeld," which was 
 fixed in the proportion of 200 to 1200 shillings ; that is, the 
 Thane was estimated at six times the rate of the mere free- 
 man. By multiplication of these, further sums were arrived 
 at for the Ealdorman and the Bishop. As the legal system 
 of these times is primarily based upon the legal protection 
 that a fine affords, a higher rating was equivalent to the 
 recognition of the right to a higher class or rank. Hand 
 in hand with these two relations is developed the foundation 
 of a manorial system. The householder and landlord has 
 the actual power to dismiss his gesith, and to take away 
 from his tenants their grants, whence there results a right 
 accorded to the lord of deciding upon the disputes of his 
 gesith and his tenants. Recognized by the authority of 
 the State, the domestic Imperium becomes a regular jurisdic- 
 tion. With the increasing power of the magnates, further 
 royal privileges pass to the landlords, and in later times 
 also a petty criminal jurisdiction. Amongst the Thanes, 
 again, certain greater Thanes are distinguished from the 
 others, as having large territories and armed retinues, and 
 being in possession of the high state offices, as well as of 
 the lay dignities of the Ealdormen. These, together with 
 the Prelates, compose, in Anglo-Saxon times, the legislative 
 councils of the realm. Just as the county assembly in its 
 executive capacity had become limited to Thanes and a few 
 minor elements, so a similar limitation in a far higher degree 
 took place in the council of the realm. The Anglo-Saxon 
 Gemote, the so-called " Witenagemote," is a representation 
 of the masses of landed proprietors corresponding to the 
 system by which they fulfil the functions of the State ; that 
 is, it is determined by property, office, and royal appointment. 
 In the last century of the Anglo-Saxon period the great 
 proprietorships had attained such an ascendancy as to make 
 the position of the throne vary with the period and with the 
 character of its occupier, and the exercise of all royal rights 
 often appears, as a matter of fact, to be the right of the 
 oligarchic Witenagemote. t 
 
 t As to the degrees in the different be found in Chapter VI., I only here 
 classes, a more exhaustive account will refer to what is necessary for the
 
 The Anglo-Saxon Foundation. 
 
 11 
 
 understanding of the offices. In the 
 Laws of Ine the Gesithcundman makes 
 himself at first conspicuous. It is only 
 since the time of ^Blfred that the dignity 
 of a Thane appears in connection with 
 landed property to the extent of at 
 least five hides, which carries with it 
 a " Weregeld " of 1200 shillings, and 
 the rank of a Twelfhyndeman. I con- 
 clude from a combination of numerous 
 indications that this is connected with 
 the establishment of altered military 
 arrangements, according to which the 
 king prevailed upon the majority of 
 the great landlords to pledge them- 
 selves to him to obey his personal 
 summons ; for which the honour of a 
 royal Thane, the appointment to the 
 office of Shir-gerefa, etc., as well as the 
 further advantages resulting therefrom, 
 such as favours and honours, were a 
 sufficient equivalent. The title of 
 " Thane " now becomes applicable to 
 the royal servants, and extends from 
 the highest offices in the court down 
 to the smaller offices appertaining to 
 the county administration and the 
 royal demesnes. Moreover, those hav- 
 ing the right to exercise a private 
 jurisdiction, belong by virtue of this 
 right to the class of Thanes, because 
 their civil and police powers are now 
 regarded as royal offices. The pre- 
 ponderating influence in this arrange- 
 ment was the regard paid to public 
 office and a public calling, and not to 
 mere amount of property. That this 
 was the leading idea attached to the 
 
 complex notion of Thanehood is shown 
 by 
 
 1. The etymology of the word, 
 which expresses (together with the 
 word derived from it, thegnian, to 
 serve) the serviens, or minister. This 
 last is the usual translation in the 
 old Saxon records. 
 
 2. In later times any kind of official 
 position was so naturally connected 
 with the word " Thane," that loss of 
 Thanehood was used as a synonym for 
 dismissal from a royal office. 
 
 3. Even where the possession of 
 five hides is mentioned as being the 
 basis of Thanehood, the reservation is 
 added that the following things are 
 further required : a church and a 
 kitchen, a bell tower, and a seat in 
 the castle gate (which is equivalent 
 to a personal jurisdiction, saca et soca), 
 and a special office in the king's hall 
 (of lay rank, cap. iii., Schmidt, 381). 
 
 4. That the stipulated service forms 
 the decisive point is further shown by 
 the equality subsisting between all 
 Thanes until the close of the Anglo- 
 Saxon period. The great Thane with 
 princely possessions is a Twelfhynde- 
 man, and is no more than the simple 
 county Thane with five hides of land. 
 The Anglo-Saxon legal phraseology 
 has no special term for distinguishing 
 the great Thanes. When it is necessary 
 to single out the magnates, the denota- 
 tion " Royal Thanes " is used with a 
 certain emphasis, in order to signify the 
 important royal office they hold.
 
 12 Constitutional History of England. 
 
 CHAPTER II. 
 
 baxon JWonarcfig. 
 
 FROM amidst this reconstruction in the system of property 
 and freedom, we see in England the regal power going forth, 
 the most magnificent civil creation of the Middle Ages. 
 Among the most nearly related continental races, in their 
 old dwelling-places, among Saxons, Frisians, Holsteiners, 
 Hadlers, and Dittmarshers, we find in those times no regal 
 sovereignty. Its appearance among the Anglo-Saxons must 
 be accounted for, not by national peculiarities, but by social 
 conditions, which arose from the settlements upon conquered 
 territory. Among the first generations, too, we do not as 
 yet find a kingship. The conquering expeditions had cer- 
 tainly a chieftain at their head, who belonged to the families 
 famous in war (noUles) ; and in the conquered country we 
 find the successful commander at the head of the army which 
 has seized the territory. His name was associated with 
 memories of victory, with the acquisition of the present 
 dwelling-place. When the land was divided the lion's share 
 fell to him, as well as the spoils of the vanquished British 
 chiefs. In like manner, as possessions became hereditary, 
 the transfer of the ducal dignity to the son was looked upon 
 as a natural arrangement. Such a condition of things was 
 found even among the Republican tribes of the continent. 
 Actual kingship begins to exist firstly, so soon as the dignity 
 of the chieftain appears not only in the leadership of the 
 army, but when it becomes a comprehensive supreme power, 
 including the office of magistrate, of protector of the peace, 
 of defender of the Church, with the highest control of the 
 Commonwealth in every department; secondly, so soon as 
 this highest dignity has become recognized by the popular 
 idea as the family right of a high-born race. Directly both 
 these conditions co-exist, the new idea shows itself in its new 
 name. After gaining great victories, .ZElla, of Sussex (514- 
 519), was the first to adopt the title of " Cyning ;" and this 
 example was gradually followed by the other chieftains, down
 
 The Anglo-Saxon Monarchy. 13 
 
 to the petty potentates who ruled over a tract of country 
 hardly as large as a county of the present day. The step 
 which exalted the ducal dignity, until then recognized as a 
 martial title, to the permanent position of supreme power, 
 was, regarded from without, of no great importance. The 
 head of the army in time of war, becomes the head of the 
 government in time of peace; that is, the organization 
 according to which the soldiers assembled under their leader, 
 becomes the model for the new monarchical state. 
 
 The social conditions which regulated this new state of 
 affairs have been indicated above. Together with the definite 
 development of private property, the principal military and 
 legal offices are transferred to a class of great landlords, which 
 class in this way gains a predominant influence in the com- 
 monwealth. The graduated values of the landed properties 
 gives the upper classes a separate position with regard to 
 " Weregeld " and fines, puts them on a different footing in 
 the army and in the Law Courts, puts a different value upon 
 their oath, and accords them a different share in judicial pro- 
 ceedings. The ever-increasing difficulty of obtaining justice 
 against the powerful, the class interests which pervade army, 
 Law Courts, and the system of the maintenance of the peace 
 (and later also the Church), create an idea that the old con 
 federate constitution is no longer sufficient for the freeman. 
 Under such conditions the chosen officers of the State become, 
 wittingly or unwittingly, the representatives of the interests 
 and the privileges of the upper classes, and develop a tendency 
 to use their power for the exclusion from justice and oppression 
 of the lower classes. In the burden which military duty im- 
 posed upon the small landowners, and in the numerous duties 
 of tenure and service, means for this oppression were ever 
 present, and were increased by manifold circumstances. War 
 and disaster drove the small independent landowners from 
 their farms ; the Hundred was broken in upon by the lords of 
 the manor and by dependent communities, and the separate 
 allodial peasants became less and less capable of protecting 
 themselves and bearing the common burden. In such a state 
 of affairs the weaker classes would necessarily be in a better 
 position when a higher impartial power appointed and con- 
 trolled the civil and military officers. Only by such a power 
 could the initiative be taken for the measures which were now 
 necessary for the protection of the unrepresented classes. The 
 exclusion of the small landowners and of the landless from all 
 the greater assemblies lessens their interest in the life of the 
 confederacy, and inclines the masses to subject themselves 
 to one great distant lord, rather than to numerous powerful 
 neighbours. In this matter the Middle Ages were guided by
 
 ]4 Constitutional History of England. 
 
 an empirical tact. If the supreme ruler of the commonwealth 
 was to be exalted above these class interests, it was necessary 
 that his ruling position should be made a permanent dignity 
 in his family, which should be independent of the favour of 
 the dominant classes, and devoted to the lasting welfare of the 
 community ; and as a rule the king was inclined to this from 
 the feelings inspired by his high calling. In contrast to the 
 ancient world, in the Germanic world the hereditary kingship 
 raised the " State " above social interests, and gave the 
 permanent and highest duties of the State a permanent re- 
 presentative. And therefore it is that, among the Anglo- 
 Saxons, kingship was upheld by the attachment of the weaker 
 classes, and became bound to the whole community by a 
 mutual bond, which of all the creations of the secular State 
 has endured longest and most firmly.* 
 
 The honorary prerogatives of the kingly office are next 
 formed in the following way. They resulted from the idea 
 that the embodied authority of the State, if it is to stand 
 above the community, must be itself the undisputed head of 
 the society. Accordingly the king has the highest grade of 
 "Weregeld," viz., in Mercia 30,000 sceatts, equal to 7200 
 shillings, or 1201bs. silver ; as high, therefore, as the " Were- 
 geld " of six Thanes or thirty-six Ceorls. In other districts 
 the simple " Wite " of the king is apparently not higher than 
 that of the archbishop ; but the amount of the royal " Were- 
 geld " is doubled by the " Cynebot " of equal amount, which 
 is demanded, not by the family, but by the whole nation for 
 the life of " its king," thus giving expression to the idea that 
 in reciprocal possession the king belongs not merely to his 
 family and his class, but to the whole community and the 
 nation at large. The next-of-kin of the king are also, by the 
 simple " royalwere " and by larger contributions (Cn. ii. 58, 
 Appendix iv.), ranked above the Prelates and Thanes, and 
 form, under the name of "2Ethelingi," the only legally recog- 
 nized hereditary nobility of the Anglo-Saxon period. The 
 early recognized capital punishment for regicide, and for har- 
 
 * As regards the origin of the usurpation and a continual dislike of 
 
 Anglo-Saxon kingship, see the clever monarchy ; everything that is im- 
 
 monograph of Allen, " Inquiry into mature and anomalous in the develop- 
 
 the rise and growth of the Royal ment of kingly power he accordingly 
 
 Prerogative in England " (1830), in places in the foreground. Turner, 
 
 which the historical dates have been on the other hand, is unprejudiced, 
 
 carefully collected. But the appearance " Anglo - Saxons," Supplement (iv.) 
 
 of the treatise at the time of the p. 262. For the historical facts as to 
 
 Eeform Bill, and the abstract argu- M\\&, of Sussex, vide Bseda, " Eccle- 
 
 ments employed, have caused the author siastical History," i. 15; "Saxon 
 
 to entirely mistake the authenticated Chronicle," anno 449-495; Lappen- 
 
 development of a king from social berg, i. 566. The etymology of the 
 
 causes. In the background one can name " King " is dubious, 
 perceive in this author the idea of
 
 The Anglo-Saxon Monarchy. 15 
 
 homing seditious vassals of the king, belongs pre-eminently to 
 the class of political or magisterial prerogatives. A higher 
 degree of " Weregeld," and a fine for the king's vassal, and 
 the higher position of the vassal as " compurgator," create 
 at once a social prerogative, and a recognition of magisterial 
 authority. An especial protection extends even down to the 
 godchild, the groom, and the man whom the king honours 
 by deigning to drink in his house. To the social side of the 
 kingship belongs finally the formation of a Eoyal Household, 
 the four chief offices in which, as in other Germanic king- 
 doms, are those of the chamberlain, the marshal, the steward, 
 and the cupbearer.** 
 
 The rights of sovereignty in the State are more slowly 
 developed than the prerogatives of the king. To designate 
 him as the highest official in the realm, the terms, " Hlaford " 
 and " Mundbora " of the whole nation are used (Chron. Sax. 
 anno 921, and under Eadward the Confessor). Whilst the 
 word " Hlaford " expresses the lordship over the whole nation, 
 which has to swear faith and allegiance to him, the term 
 " Mundbora " expresses a protector and guardian, " defensoret 
 patronus" The indefmiteness of the appellation is in keep- 
 ing with the facts. It was indeed a process of slow forma- 
 tion in which the royal sovereign rights of later times were 
 not yet sharply defined. An analogy with private lordship 
 still exists everywhere ; just as the oath of fealty taken to the 
 
 * * The honorary prerogatives of the equipment, and thus he had an especial 
 
 king belong pre-eminently to the social authority over the warlike followers ; 
 
 side, and it is accordingly not by mere the frequent mention of it points to a 
 
 chance that among the Celts in Eng- certain importance attached to this 
 
 land, as on the continent, court offi- court office. The steward ("Truchsess") 
 
 cialism plays a more important part. appears as " dapifer" " discifer regis ; " 
 
 Nationality, and the strong ascendancy the Anglo-Saxon name was " Disc- 
 
 of the great landed proprietors, com- thegn." The cup-bearer is found only 
 
 bined to make the kingships there find in Latin records as "pincerna" "pin- 
 
 pleasure in posing as the heads of cernus." The smaller offices are so 
 
 great and noble households. The pe- incidentally mentioned that from this 
 
 dantic importance with which the law single fact alone their small impor- 
 
 of Wales fixes the rank and the per- tance can be estimated. But even 
 
 quisites of the twenty-four court offices, the higher offices are only honourable 
 
 according to their position at the dignities for the "great Thanes," to 
 
 king's marshal's and vassal's tables is whom the king, according to circum- 
 
 very characteristic. Kemble's " Anglo- stances, also entrusts the command 01 
 
 Saxons," ii. cap. 3, contains a chapter his troops, or to whom he gives some 
 
 on the king's court and household. high position in his council ; but with 
 
 The chamberlain appears under the no court office, as such, are specified 
 
 name of " Burthegn " " Hordere," " Cu- State duties connected. The position 
 
 bicularius" " Camerarius" and " The- of the " great Thane," and of the high 
 
 saurarius." The marshal is known as official of State or Court, is frequently 
 
 "Steallere," "Horsthegn,""8<aZ>ttZator," united in one person; but everywhere 
 
 " strator regis." According to the literal the signatures of the Prelates, of Duces 
 
 interpretation of the term, " overseer of and Ministri (Thanes), appear as the 
 
 horses," his duty was to superintend proper constituent parts. A title de- 
 
 everything connected with the royal rived from a court office only occurs
 
 16 Constitutional History of England. 
 
 king is word for word the oath of service taken by a private 
 man to his Hlaford. Nevertheless very important changes 
 in the social order in the army, and in the court of justice, as 
 well as in the Church, originate in the power of the Sovereign. 
 
 I. &fy .PUUtarg ^bupremacg was already contained in the 
 old Ducal dignity, as being the highest command in the army, 
 and is undisputed throughout the whole of the Anglo-Saxon 
 times. Both before and after the union of the kingdoms the 
 king fights in person at the head of his army, in the innu- 
 merable battles recorded in Anglo-Saxon history. Next to 
 the king, Ealdormen appear most frequently as commanders 
 representing him ; his place is also often filled by a marshal 
 (steallere), or some other great Thane. A general vicegerency 
 of an Ealdorman includes also the delegated command of the 
 army. With this exception, there cannot be found, in the 
 whole Anglo-Saxon period, any trace of the active command 
 of the army being attached to any office or possession. 
 Separated, again, from the leadership of the army is the 
 power of deciding as to war and peace, and of regulating 
 the distribution and equipment of the contingents. The 
 decision on these matters originally rested with the people, 
 without whose assent no national war could be entered upon. 
 In later times, too, the king determined on such matters 
 in the national council, which in the small kingdoms is 
 identical with the county assemblies. After the consolidation 
 of the great kingdoms with their subdivisions, the right of 
 deciding the distribution of the contingents, under the direction 
 of the royal governor, falls to the county assembly. (1) 
 
 The traditional limitations of the military power have no 
 bearing upon the armed courtiers and personal vassals of the 
 king ; to summon them to his standard was a personal right, 
 while their equipment was the business of the " Steallere." 
 In the place of the old broken-down militia there stood now 
 a force better versed in arms, equipped, and for the most part 
 
 occasionally in the case of a few Thanes, left to the individual shires in which 
 and only among such as are not in- the governor sat in council with the 
 vested with the higher rank of Ealdor- county assembly. The administrative 
 man (Dux, Comes) in the central character of these debates, regarding 
 administration, the signature of the amount and distribution, appears also 
 Ealdorman always preceding those of in the laws (Athlr. vi. 32. sec. 3). 
 the others. c. The personal command of the 
 (1) The military sovereignty must be national army. From the supreme corn- 
 distinguished with regard to its later mand over the army proceeds the right 
 development according to its three to appoint all the other leaders. The 
 component parts. punishment for omitting to join the 
 
 a. The decision touching war and army varied according as the king was 
 peace was from ancient times the con- present in person or not. In the fofmer 
 cern of the people, wherever a real case the disloyal soldier might forfeit 
 "national war" was to be undertaken. his property and his life (Athlr. v. 28, 
 
 b. The decree as to the distribution vi. 35 ; On. ii. 77). 
 and equipment of the contingents was
 
 The Anglo-Saxon Monarchy. 17 
 
 maintained, by the king's household, and by those of a few 
 great lords who had the means of provisioning their men 
 during a campaign. They were bound to their lord by a 
 personal oath, which had not yet any connection with a fief 
 of land, but which was only taken " on condition that he keep 
 me as I am willing to deserve, and fulfil all that was agreed 
 on when I became his man, and chose his will as mine." 
 Herein there was only the first step to the later " feudal 
 system." The Gesith-man may be a free landed proprietor, 
 owner of a grant of folkland or loanland under very various 
 conditions, or he may be landless and dependent solely upon 
 the maintenance he receives in his lord's household. We 
 perceive in the numerous feuds of the petty kingdoms with 
 each other the wars carried on by a retinue of followers, and 
 consequently these armed followers themselves attained side 
 by side with the decay of the old land militia a wider extent 
 and importance. The unsuccessful struggles with the Danes 
 showed the unwieldiness and occasional uselessness of the old 
 national array so clearly, that in the combats for deliverance, 
 under Alfred the Great, the personal organization by the 
 king is throughout a prominent feature. The relation of 
 personal service to the king, " Thaneship," extends by degrees 
 to all possessors of five hides and upwards. From these 
 times we meet with many occasions upon which, without 
 any resolution on the part of the National Council, the 
 people willingly followed the personal summons of the 
 king. (P) 
 
 The military constitution of the national army and that of 
 the royal retinue became in this way to a certain extent fused. 
 Decisions touching peace and war could no longer be com- 
 
 (!) Originally, the position of the cerning war and peace. The carrying 
 
 personal followers and of the armed on of war was in the ninth century no 
 
 courtiers was quite different from a longer compatible with a war system, 
 
 legal point of view. Immediately after dependent on the resolutions of a 
 
 a conquest, the flower of the war- national council, and on the innumer- 
 
 riors, who under their leader or lord able and separate transactions of the 
 
 had won the victory, remained, in peace county assemblies. In the complete 
 
 also, the nearest surroundings and com- ruin of the State, out of which JElfred 
 
 panions (comites) of their chieftain. As the Great raised his people, the obser- 
 
 the kingdom grew, the possibility, and vation of the old constitutional forms 
 
 with it the desire to increase the number became impossible. Alfred introduced 
 
 of the followers grew also stronger a system of successive service, accord- 
 
 (Kemble, i. 142). But seeing that the ing to which in long campaigns the 
 
 king chose his Ealdormen and Gere- soldiers relieved each other; he built 
 
 fas from amongst his nearest followers, magazines for the provisioning of the 
 
 and appointed them to posts of conn- army, at the expense of the State, and 
 
 dence, the "follower-system" became framed new regulations for the conduct 
 
 fused with the supreme offices, and of marine warfare and for the defence 
 
 formed the later " Thaneship." In of fortresses. But the question of the 
 
 process of time this double relation extent of these arrangements has never 
 
 was sure to react upon the altered been definitely settled, 
 position of the popular decisions con-
 
 18 Constitutional History of England. 
 
 pletely in the hands of the national council, although that 
 council was, as a matter of fact, almost always consulted, and 
 claimed at least the right of giving or withholding its consent 
 when there was any question of exceeding the customary time 
 of service, of entering upon winter campaigns, of naval prepa- 
 rations, and wars of conquest in distant parts, or generally of 
 any unusual services. Similarly, in the county assemblies, 
 the disposing powers of the royal officers in equipping the 
 contingents had to be enlarged. In two generations after 
 Alfred's day, peaceful inclinations again had the upper hand; 
 the kingdom again became powerless to resist the Danish 
 invaders. Bold adventurers from among those northern war- 
 riors soon gain the position of great king's Thanes. The 
 landed proprietors are only too ready to abandon the real 
 war service to the newly formed retinues, who had been gained 
 over by the gifts of offices and grants of folkland. The 
 heavy-armed, experienced soldiery now consist for the most 
 part of landless men under the command of great Danish 
 Thanes. Already under Cnut a standing guard of three thou- 
 sand housecarls appears a class of soldiers with articles of 
 war of their own, and completely severed from landed pro- 
 perty. But as this institution, standing as it did in complete 
 contradiction to the proprietary, financial, and social con- 
 ditions then existing, could not possess stability, it soon fell 
 to pieces. An ever-recurring feeling of insular security pre- 
 vented any lasting reforms in the military organization, either 
 by a definite distribution in proportion to amount of property, 
 or by regular arrangement and drilling of the masses capable 
 of bearing arms. And this is what finally brought the Anglo- 
 Saxon kingdom to ruin. The energy which, among the Lan- 
 gobardi, distributed military service on the principle of the 
 Eoman centuries according to landed and movable property, 
 or which, as in the Carlovingian constitution, gave the State 
 an immediate right to a fully equipped man for every four or 
 five hides, was unknown to the Anglo-Saxons. This state 
 of things explains the intricacies which in later times arose 
 whenever a military summons was really issued (as, for 
 instance, in the fatal year 999), for the allotment of the 
 contingent in each district and sub-district could be disputed. 
 Even the grants of folkland were not utilized for the purpose 
 of regulating a certain proportion of men. The Anglo-Saxons 
 had neither a perfected form of the " beneficial " system nor 
 a "seniorat" (vide p. 79). The folkland was partly given 
 away as an Allod, and partly revocably granted, with various 
 burthens attached, but everywhere with the reservation of 
 defence and guard duty, but not charged with supplying any 
 fixed number of shields as an actual tax. Very numerous
 
 The Anglo-Saxon Monarchy. 19 
 
 grants were made to the great Thanes in return for services 
 done, and in expectation of services in the future ; they 
 were an expression of favour, but no basis for fixed war 
 service. This is the most characteristic expression of the 
 laxity under which the Saxon military system generally 
 suffered. (I 13 ) 
 
 II. f^ty ^ufcictal Sbupremacg of tj)e Htng was the most 
 important of the permanent powers which accrued to the 
 chieftains in the transition from the old dukedom to the 
 regal dignity. As " Mundbora " of the whole nation, the king 
 was the supreme judge in the land, with power over limb, 
 life, and property. The royal judicial office, however, still 
 retained the formal character of the Germanic magistracy. 
 It included the right of " regulating," of " administering," 
 and of " executing," but not the right of " pronouncing the 
 sentence," which belonged to the members of the community. 
 In the united kingdom it was impossible for the hereditary 
 supreme magistrate, in consequence of the extent of his 
 territory, to sit in judgment in the old traditional places 
 of justice (although instances occur of the exercise of this 
 right) ; but the legal supremacy in its regular course displays 
 itself in the ruling power which appoints the Ealdormen and 
 Shir-gerefas as royal justiciaries in the people's courts, and 
 commissions these again to appoint the witan who find the 
 judgment. As protector of the weaker portion of his subjects 
 and of the general freedom, the king provides a speedy course 
 of justice, and facilitates the prosecution of rights, by the 
 frequent holding of court days in the subdivisions of the 
 counties (Hundreds). The Hundred Court, which exists from 
 the tenth century, appears in England as a branch of the 
 County Court instituted by later positive arrangement. In 
 order to shorten the way for litigants, to dispose of the ever- 
 increasing mass of legal business, and to render it possible 
 for the poorer freemen to fulfil their duties without being over- 
 burthened, the less important matters were delegated to a 
 local court, held every month, which sufficiently accounts for 
 the indefiniteness in the limits of the jurisdiction of the 
 
 (l b ) From the military rights of the novas et pontes ac transitus paludium 
 
 king follows also the building of castles. operentur, et in civitate atque in marcha 
 
 It was of great importance to utilize at wactasfaciant." The system of forti- 
 
 stated times, for such warlike purposes, flcations iu the Anglo-Saxon times 
 
 the small freemen, whose services in was, in consequence of the difficulty 
 
 actual warfare were seldom required. of providing an adequate garrison, 
 
 We find the same transition in the very faulty, and eventually, when the 
 
 Carlovingian legislation (Carol, ii. times of danger were over, always fell 
 
 Edict. Pistense, anno 864, c. 27. vol. i. into decay. But no exclusive right of 
 
 495). " Ut illi qui in hostem pergere the king to the building of castles can 
 
 non potuerint, juxta antiquam et ali- be proved. 
 arum gentium oonsuetudinem ad civitates
 
 20 Constitutional History of England. 
 
 County Court, and its position as a superior tribunal with 
 respect to the Hundred Court, and for the presidency of the 
 Shir-gerefa in both. It is further the king who allows the 
 Manor Courts to enlarge their jurisdiction over petty criminal 
 offences, who extends this jurisdiction to certain free allodial 
 possessors, and who lends to the Manor Court the character 
 and authority of magisterial power, besides denning and regu- 
 lating the relations between private and public courts. The 
 position of private magistrates as "Thanes of the king" 
 prevents such rights as reside in them from being changed 
 into mere rights appertaining to property, towards which 
 result the interests of the landed classes were ever urging 
 them. It was just these interests of the upper classes and 
 the attachment to custom which jealously guarded the tra- 
 ditional jurisdiction of the courts. Though the royal judi- 
 ciaries were only representatives of the king, the king was 
 not allowed to arbitrarily hold his court in rivalry with 
 theirs ; but his province was merely to act as subsidiary to 
 the others, supplying deficiencies in cases of a failure of 
 justice, or where, from the high position of one of the liti- 
 gants, an impartial administration of justice could not be 
 obtained or expected from the County Court. This subsidiary 
 position is most definitely laid down in Eadgar, iii. 2 : " Let 
 no one go to the king on account of a suit, except when his 
 right has been denied him in the court, or he cannot attain to 
 his right" (so also in Cnut, ii. sec. 17). It is the old prin- 
 ciple, seen also on the continent, that when the lower magis- 
 terial powers refuse to do justice, the higher should interfere 
 to compel its being done. In this sense " the king in the 
 national assembly" appears as the highest judicial tribunal 
 in the land, in which capacity he deals with the failure of 
 justice, and judges powerful litigants ; that is, he appoints, 
 according to custom, a number of impartial " Witan " to find 
 upon the question of Eight ; analogous to the manner in 
 which Ealdormen and Shir-gerefas in the Hundred Courts 
 appoint judges out of the number of those lawmen or suitors 
 in the county privileged to attend the court. In the later 
 laws it is laid down as a universal proposition that " no 
 one has any jurisdiction (socne) over the king's Thane, but 
 the king alone " (Athlr. iii. 11) ; which, from the numerous 
 significations of the word " socne," may be understood to 
 mean, that over the great Thanes in the "Witenagemote, 
 against whom it would, moreover, be difficult to obtain justice 
 in the country, the high jurisdiction of the king in the 
 Witenagemote should at once be exercised. In the province 
 of criminal jurisdiction especially, the assistance of the legis- 
 lature was early needed to restrain blood-vengeance and to
 
 The Anglo-Saxon Monarchy. 
 
 21 
 
 improve the method of proof by compurgators, who, after the 
 tribal constitution had become dissolved, were chosen very 
 irregularly from amongst neighbours, whom the powerful noble 
 can find only too speedily, but the poor man only with the 
 greatest difficulty. At this point the kingly power, at an 
 early period, shows itself active in affording the protection 
 of the law to the weaker suffering under the oppression 
 of the stronger. Numerous laws were directed against 
 private feuds. Certain of the compurgators were nominated 
 and summoned by the royal bailiff; and thus inequality 
 in degrees of power were in some measure obviated. For 
 breaches of the peace we early meet with an extensive 
 system of punishments inflicted on life and limb. Breaches 
 of the law led to an extended system of fines for the 
 protection of the person, of honour, of domestic authority, 
 and of property. And here, finally, the royal judicial 
 supremacy appears in the form of the privilege of pardon, 
 but only so far as it is opposed by no private right to satis- 
 faction (Wihtr. 26 ; Ine 6, pr. sec. 1 ; Alfr. 7, pr. ; Athlst. 
 vi. 1, sees. 4, 5; Edm. ii. 6; Edg. iii. 7; Athlr. iii. 216; 
 Cnut, ii. 67). In Edg. iii. 2 it is generally laid down that 
 where any one finds the judgment unduly hard, he may appeal 
 for clemency to the king. (2) 
 
 (2) The legal power of the kings 
 had become already established in 
 the small kingdoms long before they 
 became united into larger principali- 
 ties. This legal power, however, only 
 comprises the right to hold a court. 
 The pronouncement of the sentence by 
 members of the community constitutes 
 during the whole Anglo-Saxon period 
 a part of the " ordo judiciorum." The 
 royal judicial supremacy shows itself in 
 practice in the following points : 
 
 a. In the right of appointing the 
 Ealdormen and Shir-geiefas as judi- 
 ciaries. These officers exercise also a 
 decisive influence upon the appoint- 
 ment of the judicial committees of 
 the community. In the first place 
 the agreement of the parties de- 
 cides ; failing that, we never hear 
 of a selection of judges by the com- 
 munity, because, by reason of the in- 
 equality of property possession and 
 from the class interests which were 
 dominant in the great courts, there 
 was no room for it in proceedings in 
 which the mass of the freemen only 
 took part as spectators. In criminal 
 proceedings, however, the accused par- 
 ticipated in the selection. 
 
 b. As supreme judge over " liberi 
 
 homines," the king allows the Manor 
 Courts also a judicial power. In this 
 sense the lord of the manor was royal 
 "Thane" in his especial capacity of 
 mngistrate. The magistrate himself 
 is liable to a fine for disobedience 
 (Athlst. iv. 7), and is, together with 
 the Gerefa, nominated as official re- 
 corder in quarrels concerning barter 
 and exchange (Athlst. ii. 10, pr.). 
 The Land-Hlaford haS to take care of 
 stolen cattle until the owner is found 
 (Edg. iv. 11; Athlr. i. 3, etc.). The 
 sdcne of the private individual cannot 
 extend over a royal Thane as a royal 
 officer ; at least this may be the dubi- 
 ous sense of the passage referred to 
 above (Athlr. iii. 11, "ndn man ndge 
 socne ofer cynges pegen, buton cyng 
 sylf"). 
 
 c. As a matter of course the king 
 appoints the local justices on the royal 
 demesnes, as well as on those portions 
 of the folkland which have remained 
 under his immediate control, and in 
 privileged districts also, whilst he ac- 
 cords many exemptions in his capacity 
 of supreme magistrate. 
 
 d. The king as magistrate directly 
 interferes where his appointed judge 
 has neglected his duty (On. ii. sec. 17,
 
 22 Constitutional History of England. 
 
 III. !) ^olice-supremarj) f $* Htng proceeds from his 
 position as " the highest maintainer of the peace." This peace- 
 controlling power is the outcome and extension of the military 
 command and the criminal jurisdiction, with which latter it 
 is in England even at the present day allied. By the grant 
 of the royal protection, special persons, places, and times 
 became so hallowed that any violence done them was visited 
 with condign punishment ; and where a breach of the peace 
 would have been committed, according to the law of custom, 
 the punishment was increased, because of the " special peace 
 of the king." The special laws concerning peace extend 
 
 (1) To certain places : to the palace of the king and its 
 surroundings (Athlb. 3, 5 ; Ine, 6 ; Alfr. 7 ; Cn. ii. 59) ; the 
 residences of the upper classes, and, under other names, those 
 of the lower classes as well, but more especially as " Cirik- 
 frith " to churches and monasteries. 
 
 (2) To certain times : to the time when the militia is sum- 
 moned (Alfr. 40, sec. 1 ; Cn. ii. 61) ; to the popular and court 
 assemblies (Athlb. ii. 8 ; Athlr. iii. 1 ; Cn. i. 82) ; to market- 
 meetings, meetings for taxation, and guild-meetings (Ine, 6, 
 sec. 5 ; Athlr. iii. 1) ; to the coronation day of the king ; and, 
 with regard to the Church, to fast-times and fast-days (Alfr. 
 5, sec. 5, etc.). 
 
 (3) To certain persons : widows (Athlr. v. 21 ; vi. 26) ; 
 nuns (Alf. viii. 18) and the whole clergy ; apparently also to 
 the possessions and personal property of the clergy (Athlb. 1 ; 
 Edw. Conf. 1, sec. 1). Moreover, the king was accustomed, 
 on ascending the throne, and on special occasions, to proclaim 
 "general peace orders," which primarily were nothing but a 
 confirmation of the lex terrte, according to which breaches 
 of the peace were punishable in the popular courts by custom- 
 ary law. The consent of the National Assembly, which 
 usually accompanied it, the solemn vow taken by the powerful 
 nobles present, the enjoining of their official duties upon the 
 royal governors, bailiffs, and lords of manors, gave to these 
 proclamations of peace a heightened power, which was never- 
 theless again forgotten in troublous times, thus necessitating 
 perpetual repetitions. In the course of the Anglo-Saxon 
 period the king's peace took the place of the common, or 
 people's peace (volksfriede), which once proved the basis of 
 social order. The king was thereby authorized, with the 
 consent of the National Assembly, to reform the old system 
 of composition, to threaten heavier offences with punishment 
 of life and limb, outlawry, and forfeiture of estate ; to abolish 
 
 cit. ; Edg. iii. sec. 2, cit. ; Athlst. ii. 3). nized at the beginning of the Norman 
 The purely subsidiary position of the epoch as customary law (Will. i. 43, 
 royal right of decision was still recog- Legg. Hen. i. 34, 6).
 
 The Anglo-Saxon Monarchy. 23 
 
 blood-vengeance, and, by means of bail, to secure the appear- 
 ance of the guilty parties before the court. In all these 
 directions the Anglo-Saxon period makes comparatively speedy 
 progress. From the position of the highest maintainer of the 
 peace was deduced a regulating power, which, without the con- 
 sent of the National Assembly, created (beyond the province 
 of ordinary breaches of the peace and breaches of right) new 
 offences. For these heavy fines were fixed, whenever the 
 judges recognized in them a breach of the proclamation of 
 the royal peace. (3) 
 
 The blending of the office of supreme maintainer of the peace 
 with that of commander-in-chief leads further to a union of 
 the organization of the militia, its institutions, its districts, 
 and its officers, with the objects pursued by " maintenance of 
 the peace." The summons of the array may take place in 
 the counties, even in times of peace, for the purpose of pur- 
 suing and apprehending peace-breakers (Edw. et. G., sec. 6 ; 
 Cn. ii. 2, 29; ii. 48, sec. 6). The hundreds and tithings of 
 the national militia are made responsible in the person of 
 their prtepositi for the maintenance of the peace; that is, 
 for the arrest, safe-keeping, pursuit, and denunciation of 
 peace-breakers. An important institution of this character 
 was, moreover, that which compelled dangerous characters 
 to find security for their good behaviour (Edm. iii. 7, sec. 1 ; 
 Edg. iii. 7; Athlr. i. 4; Cn. ii. 25, 30, 33). Further still, 
 landless persons were obliged, under threat of the withhold- 
 ing of legal protection, to join a "tithing," i.e., a small 
 community with a responsible head, " prsepositus," " head- 
 borough," or to seek some landowner as their lord, who would 
 guarantee their appearance before the court. As a general 
 principle of law this is first laid down in Edg. iii. 6 : " And 
 
 (3) The police power is a de- power and the duty of protection 
 velopment of the legal and military (mundium) combined, and " mund " 
 powers combined, out of which latter and "frith" appear to have the same 
 proceed the legal grounds, the forms, signification ; and, on the other hand, 
 and the means of constraint apper- the institutions of the militia are 
 taining to the maintenance of the utilized for carrying out the measurea 
 peace. From the power of punish- dictated by the peace-jurisdiction. A 
 ing is developed first the idea of a general proclamation of peace was 
 preventative power. The right to com- usually issued by the kings on their 
 mand peace by means of personal orders accession. In the course of generations 
 lay in the military command of the people became accustomed to refer 
 king. Among the warlike tribes of back the rules of the civil law in these 
 the continent the notion of military proclamations of peace, so oft repeated, 
 service and punishment in default, so frequently confirmed in the National 
 which was part and parcel of the Assemblies, and so continuously em- 
 military organization, was extended to ployed by the courts of law so that 
 the province of law, and led to an en- the old " folkspeace " passes into a 
 largement of the powers of the magis- " king's-peace," which includes the 
 tracy. In England peace-jurisdiction is sanction to punish all the heavier 
 primarily the outcome of the judicial crimes and offences.
 
 24 Constitutional History of England. 
 
 every man shall find security, and the surety shall lead him 
 and hold him to all right, and if any such do wrong and 
 break out, then shall the surety bear what he should bear. 
 But if it be a thief, and the surety can lay hold on him 
 within twelve months, he shall deliver him over to justice, 
 and shall receive back what he has paid." 
 
 For such as are not established in the household or on the 
 land of a Thane, the tithings of the military organization are 
 now made use of, and the man without a surety has to join 
 these in such a way that either a special surety or the " pree- 
 positus " is answerable for him. This is insisted upon in 
 Cn. ii. 20 as an universal institution of the country : " And 
 we will that every freeman be brought into a Hundred and a 
 tithing, whoever will be entitled to purgation by oath, and to 
 where, if any one kills him after he is more than twelve winters 
 old, or be he no longer worthy of the rights of a freeman, 
 be he one of the household or servant. And let every one 
 be brought into a Hundred and under security, and let the 
 surety constringe and lead him to all his rights." 
 
 The system of police security appears thus to have been 
 definitely worked out. Every Thane is responsible for his 
 household, and his village Gerefa for the peasantry who 
 were settled on his lands. The other independent freemen 
 had to endeavour to gain so much confidence among the 
 free peasantry that these latter through their headborough 
 would undertake the security for them. The money-responsi- 
 bility fell finally upon the community as a common duty, 
 which in Norman times was inaccurately (from an external 
 point of view) described as a " mutual security." Of course 
 this system made it difficult for any landless man to change 
 his habitation. A right of free migration was certainly 
 recognized as an established principle ; and all Hlafords are 
 ordered by law not to prevent any " liber homo " from looking 
 for another lord or Hlaford-socn (Athlst. iii. 4, iv. 5, v. 1). 
 But the departing freeman had first to prove that he had com- 
 pletely fulfilled all his duties to his former lord, and that he 
 had obtained permission of the latter to leave his service ; 
 otherwise the new master cannot receive him (Edw. ii. 7 ; 
 Athlst. ii. 22, iii. 4, v. i. ; Edrn. iii. 3 ; Cn. ii. 28). In con- 
 nection with this system of a local police was a further re- 
 sponsibility of the Hundred for the due pursuit of thieves and 
 for the production of their members before the court. Accord- 
 ing to an isolated document, it was attempted to create, as on 
 the continent, a presentment making it the duty of the 
 Hundred to give information on oath (Athelr. iii. c. 3., sec. 
 3) ; but the exact form of this cannot be gathered from 
 the Anglo-Saxon laws. The insular position of the country,
 
 The Anglo-Saxon Monarchy. 
 
 25 
 
 and the pre-eminently peaceable character of the later Anglo- 
 Saxon times, developed the maintenance of the peace to such 
 a perfection, that the chroniclers give an almost Arcadian 
 picture of the peacefulness and security of the land in the 
 time of Alfred the Great and at some subsequent periods. (3 a ) 
 IV. f)E <CUbenue of tf)t &nglo=Sbaxon Hings has, primarily, 
 the same foundation as that of every great landowner, in 
 the private property of the king; which is acquired, pos- 
 sessed, enjoyed, and is subject to alienations and testa- 
 mentary dispositions, in the same manner as other Bocland. 
 Besides the king, the queen also (and here is a difference 
 from the usual matrimonial property law) can possess, 
 manage, and dispose of estates in land in her own name. 
 The king's rights of usufruct in the folkland, and in all the 
 land that had not been assigned to individuals, on the 
 occupation after the conquest (either because it was, from 
 the nature of it, not suitable for grants, or that it chanced 
 not to have been distributed), were originally much more ini- 
 
 (3 a ) The system of "mutual sure- 
 ties " has formerly, in a very exaggerated 
 manner, been made the basis of the 
 whole Anglo-Saxon constitution by 
 arbitrarily referring maxims of the 
 Norman period to former centuries. 
 This is the case with Maurer's treatise 
 on the " Freipflege " (1848). As 
 against this it is necessary to review 
 all the information we possess as to the 
 Anglo-Saxon surety, as, for instance, 
 that given by Schmid in his " Glos- 
 sariuin " (pp. 644-649). Of very de- 
 cided merit in clearing up doubts is 
 Marquardsen's work, " Ueber Haft und 
 Biirgschaft bei den Angel-Sachsen " 
 (1851), with the results of which 
 Konrad Maurer ("Krit. Zeitschrift," 
 vol. i. pp. 87-96) agrees, after careful 
 investigation. A still fuller review 
 of the numerous opinions on the sub- 
 ject is given by Waitz (" Verfassungs- 
 Geschichte," i. pp. 424-473). The 
 meaning of all this legislation is that, 
 as on the continent (in the " Edictum 
 Pistense" and the "Capitula Lango- 
 bardorum"), those without any pro- 
 perty " sine proprietatibus in regno 
 nostro degentes, atque non habentes res 
 aut substantiam, quibus constringi 
 possint " should be brought before 
 the court by some resident, and 
 vouched for " ut eos prsesentent aut 
 pro eorum malefactisrationem reddant " 
 (cf. Waitz, "Die Verfassung," iv. p. 
 363). Where a village has under- 
 taken to find bail, the opponent only 
 cornea upon the pnepositus, who, in 
 
 case he cannot bring the bailee before 
 the court, has to pay the fine himself, 
 which he if possible recovered from the 
 guilty party or eventually from his 
 peasantry. This proceeding, so far as 
 its consequences are concerned, led to 
 the tithing being made answerable, 
 which in Norman times was described in- 
 correctly as " mutual security." This 
 state of things I also find indicated 
 in the Leges Edw. Conf., cap. 20, sec. 
 4 (Harley's text) : " Quod si facere 
 non poterit " (if the prsepositus cannot 
 clear himself) " restauraret dampnum, 
 quod ipse fecerat, de proprio foris- 
 factoris quantum duraverit, et de suo ; 
 et erga justitiam emendent, secundum 
 quod legaliter judicatum fuerit eis ;" 
 and, according to Hoveden's text, cap. 
 19, sec. 4, " Quod si facere non possit, 
 ipse cum Frithborgo suo damnum res- 
 tauraret de proprio malefactoris quan- 
 tum duraret. Quo deficiente, de suo et 
 Frithborgi sui perficeret et erga justitiam 
 emendaret." With reference to the 
 further responsibility of the inquisi- 
 torial duty of the Hundred, the Anglo- 
 Saxon laws mention the pursuit of 
 thieves and the production of members 
 of the community before the court 
 (Edg. i. 5; On. ii. 20; Hen. 8, sec. 2; 
 Will. i. 22, iii. 3, etc.). The Hundred 
 is responsible in subsidium for the villa 
 for the non-discovered murdrum (Edw. 
 Conf. c. 15, 16). The principal passage 
 relative to the presentment is that in 
 Atlilrd. iii., c. 3, sec. 3, certainly only 
 an isolated one.
 
 26 Constitutional History of England. 
 
 portant. These estates, which remained at the disposition of 
 the community at large, fell to the disposition of the highest 
 Hlaford ; but with the reservation that the National Assembly 
 retained its right to give or refuse its consent, whenever Folk- 
 land was to be converted into Bocland, i.e. to be irrevocably 
 granted away. Large portions of the folkland were, indeed, 
 in most parts of the country made over to the Ealdormen, 
 Shir-gerefas, and other royal officials in lieu of a salary, 
 and certain portions formed, until the close of the Anglo- 
 Saxon period, the customary endowment of various offices. 
 Great portions of the folkland, again, were lost by gifts to 
 churches, monasteries, and foundations. A large part of 
 what remained was utilized in maintaining the armed retinues 
 of courtiers, and the personal servants of the king, in reward- 
 ing services rendered, and in bestowing marks of favour. 
 Although they were legally revocable, yet such grants were 
 for the most part permanent ; with the exception of rents and 
 services occasionally reserved, the immediate enjoyment was 
 thus lost to the king. In the course of time, the universal 
 eagerness for the acquisition of land, the power of the great 
 nobles, and the influence of the favourites, led more and 
 more to that allodification, which is chronicled in many 
 existing records. From this time, accordingly, only single 
 and separated rights of usufruct flow to the king from these 
 sources. Especially springing from the original position of 
 the conquered land, and from the right of disposition over 
 unappropriated property, there arose a royal right extending 
 over harbours, landing-places, and military roads, which 
 became the source of customs and dues ; also a right to salt- 
 works and lead-mines, to flotsam and jetsam, and treasure- 
 trove. A royal right with ill-defined limits attaching to 
 forests is also probably deducible from the same principle. 
 In Cnut's time, police regulations concerning forest and the 
 chase appear, in which were included important rights of 
 usufruct. (4) 
 
 (4) The financial rights are dealt Dipl.," No. 809), or formed an im- 
 with at length by Kemble, ii. pp. 42- mediate source of revenue under the 
 87. The king's rights of usufruct in name of naufragium (Leg. Hen. i. 10, 
 the ager pvhlicus, or folkland, were im- sec. 10). The right of forest was 
 portant up to the later Anglo-Saxon originally an outcome of conquest, 
 times. From the original circum- through which the existing woods be- 
 stances connected with the conquest, came folkland, or common ; that is, the 
 arose further a royal right over the subject of common enjoyment. In 
 high roads, harbours, and landing- course of tune, with the assistance of 
 places, which was the medium for the police control, a sort of forest 
 especial peace proclamations, and for royalty arose, the ancient form of which 
 the tolls payable by ships and foreign was doubtful, but which in the corn- 
 merchants. Property thrown up by the prehensive Constitutiones de foresta of 
 sea was regarded as abandoned, and Cnut is indicated by an extensive 
 was the subject of a re-grant (" Cod. system of forest and hunting laws, re-
 
 Tlie Anglo-Saxon Monarchy. 27 
 
 The profits derived from the control of matters of war, 
 justice, and police became more important to the kings, as in 
 course of time their private enjoyment of the folkland and 
 unoccupied land ceased. 
 
 From the military power of the sovereign, first arose the 
 right to the services of the people in the building and keeping 
 in repair of the royal residences and castles, which services 
 were rendered by the small freemen of the national militia, 
 as a common burden. From the system of personal vassalage 
 springs, again, the right of heriot, by virtue of which, on the 
 death of the vassal, the armour or a pecuniary equivalent 
 falls to the king. In the time of Cnut, when the position of 
 the public officers as Thanes had become more developed, 
 there appeared a general statute (Cnut. ii. sec. 72) which fixed 
 the heriot of the earl at eight horses, four suits of armour, 
 and two hundred mancus of gold ; and BO on in descending 
 proportions was fixed the heriot of the greater and smaller 
 Thanes. In Cn. ii. sec. 74, seq., a usufructory right of ward- 
 ship and marriage was recognized, which was, however, cer- 
 tainly only intended to affect the widow and children of the 
 vassal who had been directly equipped by the king. (4 a ) 
 
 From his judicial authority arises the right of the king 
 to forfeited property. Bocland, as well as movables, accord- 
 ing to the later laws of the kingdom, fall to the king in 
 consequence of treason, theft, and other offences. Much more 
 considerable are the numerous fines, which in the manorial 
 courts are payable to the private magistrates, and in the 
 royal courts are reduced by the fixed portions reserved to 
 the Ealdorman and Shir-gerefa. (4 b ) 
 
 serving important privileges to the again, the right to heriots. The heriots 
 sport -loving rulers of the land. of Bishops, Ealdormen, and Thanes are 
 The forest laws of Cnut already frequently mentioned in the records of 
 distinguished the " higher chase " the tenth century (" Codex Dipl.," 492, 
 as regal, from the lower chase. The 593,699,716,957,967,979,1173,1223). 
 existing text is, however, merely a later It is doubtful, however, whether they 
 Latin translation and revision, which were a general incident of the right of 
 affords no reliable evidence of the age thaneship, or were only demanded of 
 of many of the rules contained in it. such followers as had actually received 
 All these sources of revenue may be their equipment from the king. In the 
 described as " direct," in contrast to laws of Cnut (Cn. ii. sec. 72) the heriot 
 the following, which proceeded from appears as firmly fixed for the earl, for 
 the magisterial rights. the higher Thane who " stood near the 
 (4*) From the constitution of the king," and for the lesser Thane. It 
 army proceeded the right to acquire is also mentioned in Domesday Book 
 the assistance of the national militia, as a settled source of revenue. As to 
 whenever a residence or a castle of the the profits arising from wardship and 
 king was to be built or walled round. marriage, see Kemble, ii. 80. 
 The performance of these duties, as a (4 b ) From the judicial authority flows 
 part of the trinoda necessitas, was, as a a considerable right to forfeited pro- 
 rule, reserved in all deeds of grant, perty. As early as the lawa of Ine, the 
 even of the freest description. From forfeiture of goods and chattels followed 
 the special right of vassalage proceeded, upon fighting within the king's palace
 
 28 Constitutional History of England. 
 
 From the police control, besides the extensive system of 
 fines, there proceeded a privilege of market, which was turned 
 to profit by means of the reservation of certain payments. 
 The police control led further to an increase in the system of 
 tolls, which were levied in harbours and navigable rivers ; and 
 to the raising of protection moneys from merchants, Jews, 
 and other foreigners who needed protection. (4) 
 
 On the other hand the right of direct taxation was in the 
 beginning unknown to the Anglo-Saxons. The Germanic 
 chieftain might exact tribute from vanquished peoples, but 
 " from his own people he only received presents, especially 
 cattle and fruits." Such honorary gifts were presented on 
 the occasion of the meeting of the popular assemblies. Like- 
 wise, when the king journeyed in the district over which his 
 military and legal jurisdiction extended, he and his suite were 
 entertained free of expense; and this custom became extended 
 to the journeys of the royal governors and messengers and 
 their trains. It is equally erroneous to regard as taxes the 
 duties and payments, Cyninges Gafol, which accrued to 
 the king from his demesnes, from the folkland, or from 
 conceded rights, or as protection-money paid to the proprietor 
 of the soil, although they were so regarded by Kemble and 
 others. The Germanic community, great and small, state 
 as well as parish, was based upon a personal relationship 
 in the military and legal functions, and retained this character 
 with more tenacity than we find in the structure of the Eoman 
 or Celtic states. Only in a condition of the deepest degrada- 
 tion, under yEthelred the Unready, could the National Assem- 
 
 (Ine, sec. 6), treason (Alfr. sec. 4 ; bours, and from the transport on the 
 Athlst. ii. 4 ; Athlr. v. 30, vi. 37 ; Cn. main roads and navigable streams 
 ii. 57) ; and harbouring and succouring brought the king indirectly consider- 
 thieves (Athlst. i. sec. 3, aud other able revenue. Without doubt the king 
 laws). The Anglo-Saxon records give decided which landing-places should 
 many instances of forfeiture both of be opened to all, gefriihed; whence 
 Bocland and of movables for robbery arose the privilege of a free harbour. 
 and other offences. Much more im- The right to raise tolls was more fre- 
 portant were the profits arising from the quently the subject of grants to private 
 numerous fines (Edg. ii. 3 ; Athlr. vii. persons, and yet more frequently of 
 8 ; Cn. i. 8). In later times the whole documents of enfranchisement, accord- 
 of the royal fines were granted to the ing to which an equivalent or a perma- 
 landowners. The laws of Cimt already nent revenue might accrue to the king, 
 show a reversion of the old rule, and From the maintenance of the peace 
 enumerate six offences as a royal mono- arose undoubtedly the right to protec- 
 poly, the fines accruing from which are tion accorded to foreign merchants, and 
 still reserved to the king (Cn.ii. 12-15). later extended to the Jews (Leges. 
 In Wessex and Mercia the same prin- Edw. Conf., sec. 25) as the source of 
 ciples are applied ; according to the the protection tax. This right to pro- 
 Dane law, these privileges were some- tection, with a claim to Weregeld, is 
 what circumscribed. accorded only to actual foreigners (Edw. 
 (4 C ) From the police control was de- and G. 12, Atblr. viii. 33; Cn. ii. 40; 
 veloped a market right. The closely Hen. 10., sec. 3, 75, sec. 7). 
 connected right to raise tolls in har-
 
 The Anglo-Saxon Monarchy. 29 
 
 bly be induced to levy a tribute upon the country, to buy off 
 the horde of Danish pirates. This tax, which was apportioned 
 to the several hides, was then repeatedly paid as tribute to 
 the invader, and from time to time also to the king, under 
 the colour of protection-money, to enable him to guard against 
 fresh invasions. The tax became finally fixed as danegeld 
 at twelvepenee for each hida. It was, however, merely a 
 sign of the decline in the last century of the Anglo-Saxon 
 state. Its origin, its name, the irregular manner of levy, and 
 the exemption of the clergy from it, all make this danegeld 
 appear as an anomaly. (4 d ) 
 
 Of course there was no such thing known in the Anglo- 
 Saxon times as an exchequer administration. The free right 
 of disposal of the king over all the State revenues is shown 
 by an account given by Asser, according to which Alfred 
 devoted one half of his revenues to the Church and the other 
 half to civil purposes. Out of the civil half he allowed one 
 third for his warriors and followers, one third for hospitality, 
 and one third for the innumerable artists and builders whom 
 he had collected around him from foreign parts. 
 
 V. i) protectorate of tfyt CDturcft forms the last important 
 right of the crown. It originated in the fact that the recep- 
 tion of the new faith and of the priesthood throughout the 
 whole country was decided by edicts of the kings and the 
 National Assembly. Hence, even in later times, the contro- 
 versies among the clergy touching the time of celebration 
 of Easter and other ecclesiastical differences were settled by 
 the king. Among the original insignificant kingdoms in the 
 British Isle it could not easily be forgotten that the Church 
 owed its toleration, its reception, and its dominion to the 
 
 (4 d ) It is well known that a right of of time the confusion of mere custom 
 
 taxation did not exist in the Germanic with these reserved rights caused many 
 
 kingdom. Tacitus speaks of gifts of a mischievous extension of them, 
 
 cattle and fruits of the earth. Lodg- Against these abuses, which are so fre- 
 
 ing and entertainment on progresses quently referred to in later times, the 
 
 through the realm were extended from well-meant provision of Cnut was di- 
 
 the person of the sovereign to those rected (Cn. ii. 69, sec. 1). With refer- 
 
 of his retinue, and, after the fashion ence to the historical circumstances of 
 
 of all honorary gifts, from being a mere the first Danegeld, see Lappenberg, i. 
 
 matter of courtesy became a kind of 423. These shameful tributes had 
 
 right. And this soon led to the right risen in 1018, to 82,5001bs. of silver. 
 
 of lodging and entertainment being ex- The apportionment according to hides 
 
 tended to the royal messengers and was also acted upon in making naval 
 
 servants, and came to include the pro- preparations. In the year 1008, by an 
 
 viding of horses, the transport of bag- express resolution of the Government, 
 
 gage, and the maintaining of the train a ship of war was furnished by every 
 
 of followers. Many possessions and 310 hides. With regard to the im- 
 
 profitable rights belonging to the king munity of the clergy, see Leg. Edw. 
 
 were granted to monasteries and landed Conf. cap. 11. Under Eadward the 
 
 proprietors with the express reserva- Anglo-Saxon Chronicle mentions the 
 
 tion of such honorary gifts. In process Dauegeld as abolished.
 
 30 Constitutional History of England. 
 
 authority of the king; and that the rich endowment of 
 bishoprics and monasteries was due in great measure to his 
 liberality in granting Bocland and in gifts of private property. 
 The papal throne was too far distant to be able to raise 
 pretensions to rule in a community which was neither wont 
 nor inclined to dissociate authority from the personal presence 
 of the ruler. The native prelates, again, in these small Anglo- 
 Saxon states, stood so near the indigenous population, that 
 it was difficult for them to raise exaggerated hierarchical pre- 
 tensions. On the other hand the Church was obliged, as 
 throughout the world in the Middle Ages, to endeavour to 
 attain an independent position for its servants, if its official 
 organization was not to be confused with the military, legal, 
 and police constitution of the laity. The royal protectorate, 
 therefore, applies rather to the outward framework of the 
 Church, and does not interfere with its inner life and adminis- 
 tration of details. The Anglo-Saxon king exercised the right 
 of appointing the Bishops ; in the face of which, the right 
 of election which the Church aspired to in its canon law, could 
 not practically assert itself any more than the occasional 
 attempts at nomination by the papal throne. And again, 
 in the monasteries, the manner of their foundation frequently 
 led to a royal right of appointing the abbots. Just as indis- 
 putable is the right which resides in the king of sanctioning 
 the resolutions of the Ecclesiastical Councils. A further 
 union between the ecclesiastical and temporal community 
 arose from the association of the prelates with the Thanes 
 in the Witenagemote, and from the appearance of the Bishop 
 and the Ealdormen together in the County Assembly. In 
 an insular seclusion the idea of the close bond of com- 
 munion between Church and State is fostered and kept 
 alive. (5) 
 
 (5) The protectorate by the king of dioceses, when the consent of the 
 the Church comprises in the first place National Assembly to the admission of 
 the royal right of appointing prelates. a new member was regarded as a matter 
 This has been recognized in a fairly of course, as was proved by their 
 impartial manner by Lingard, " History consecration by their fellow-bishops. 
 of the Anglo-Saxon Church," i. 89. The right of the king to give his 
 The great majority of precedents proves consent to the resolutions of the clergy 
 that the bishops especially were ap- originally dates from the fact of the 
 pointed and displaced at the free will reception of the new faith at court, with 
 and option of the king. It is also a sig- the consent of the National Assembly, 
 nificant fact that so many royal chap- In olden times the king even appears 
 lains were raised to episcopal seats in the capacity of president, at assem- 
 (Palgrave, i. 173, 174). According to blies which bear the character of proper 
 Stubbs' view, the choice by the clergy ecclesiastical councils (Cod. Dipl. No. 
 was the rule in peaceful times, and for 116, Willibald vita Bonifacii, ii. p. 338). 
 the less important seats. On the other When Church and State became some- 
 hand, appointment by the king in the what more separated, the principle 
 National Assembly is frequent in the was certainly adhered to, that any 
 case of archbishoprics and the larger change in the external institutions of
 
 The Anglo-Saxon Monarchy. 31 
 
 The sum total of these honours, powers, and profits formed 
 itself under the Anglo-Saxon sovereigns into an hereditary 
 family right. It is certain that the royal landed property 
 contributed at first to this conception; yet this element of 
 hereditary descent does not by any means preponderate in the 
 Anglo-Saxon kingship. But more decisive was probably the 
 feeling that a permanent personal authority was necessary for 
 the present form of the community, as a counterpoise to the 
 class-privileges which were growing up. The first object to 
 be attained was the abolition of the struggle of the powerful 
 families and their dependants for the possession of the supreme 
 power. This end was attained so soon as the right of one 
 of the princely families that sprang from Wodan was estab- 
 lished beyond all question. The unity of the succession, and 
 a certain precedence accorded the firstborn, was a natural 
 though not an absolutely necessary deduction. The rule that 
 in the case of private property the last will of the owner is 
 final, was observed also in the case of the succession to the 
 throne. As in the old folk-law, martial prowess was regarded 
 as the necessary condition of complete fitness in the com- 
 munity, so it remained in the highest degree the necessary 
 condition of the Anglo-Saxon kingly dignity. The times of 
 the "boy kings" could not come until the West- Saxon dynasty 
 had been consolidated by the unbroken succession of three 
 glorious rulers. But just as the old Germanic village com- 
 munity tested the prowess of the youth in times of yore, so 
 now the voice of the people could not be excluded in considering 
 the question, whether the monarch to be appointed was worthy 
 to lead the martial array of the nation. The Church also, 
 from the time when it decided the preliminary question, 
 whether a Christian marriage in accordance with God's laws 
 had been concluded, and whether a legitimate heir had sprung 
 from the union, laid claim to a share in recognizing the new 
 ruler from this point of view. Accordingly it resulted that 
 in the succession to the throne, the younger son was not 
 
 the Church, such as the regulations have been generally received that new 
 
 for the observance of the Sabbath, obligations could only be imposed upon 
 
 fasts, feasts, and Church dues, should laymen by the king in the National 
 
 be sanctioned by the king and Witeu- Assembly. The might of the sovereign 
 
 agemote. The great question of mon- is seen again in ecclesiastical disputes, 
 
 asticism in the tenth century was In the first two epochs of a struggle 
 
 repeatedly deliberated upon in the between the king and the ecclesiastical 
 
 \Vitan (Keinble, ii. 189). The enact- hierarchy, at the time of Bishop Wilfrid 
 
 ments of the General Council in the and Archbishop Dunstan, the king tri- 
 
 Anglo-Saxon legislation often form two umphantly asserts a control over the 
 
 categories : first, Ecclesiastical, and resolutions of the Church, and over the 
 
 secondly, Temporal. (Leges ^Ethelstan, right of appointing and dismissing pre- 
 
 Eadmund, Cnut, etc.) Both categories lates, against Rome as well as against 
 
 were, however, published as " King's the ecclesiastical councils at home. 
 Laws," and their contents show it to
 
 32 Constitutional History of England. 
 
 unfrequently preferred to the elder, and the martial brother 
 of the monarch to the immature and physically or mentally 
 weak son. 
 
 A further result was the retention of a form of election 
 at the enthronement of the new king, when not only the 
 upper classes, but the whole nation, represented by the 
 numerous liberi homines who were present, recognized by 
 acclamation the new sovereign as their rightful ruler. But 
 allowing for this, the character of an hereditary family right 
 was decidedly maintained in the Anglo-Saxon time. " The 
 royal authority was never allowed to be separated from the 
 royal race." The elevation of Cnut to be king of the entire 
 nation of Danes and Saxons, to the exclusion of the youth- 
 ful sons of King Eadmund (1016), was an act of necessity and 
 of military force, for which amends were made twenty- six 
 years later by the unanimous proclamation of Eadward the 
 Confessor, the last king of the race of Cerdic (1042-1066). 
 But the Anglo-Saxon sovereignty still remained a " personal " 
 dignity and authority over the Angles, Saxons, and Danes. 
 The king's reign dates only from his coronation ; his ordinary 
 title is not that of king " of the land, " but " of the people." 
 The feudal notion of a lord of the soil over both land and 
 people is the later creation of the Norman sovereignty. 
 " Kings were the leaders of the people, not the lords of the 
 soil " (Palgrave, i. 62). f 
 
 t The hereditary nature of the dicative of popular election are retained 
 Anglo-Saxon sovereignty is treated for centuries afterwards, such as in the 
 from a one-sided point of view, if the phrase " chosen and raised " to be king, 
 feudal principle of primogeniture in which recalls the very ancient popular 
 landed property is taken as the starting- custom of raising upon the shield. In 
 point, whence it would appear that out coronation ceremonies there is always 
 of nineteen successions to the throne a tendency to retain old formulas, even 
 in the united monarchy, not less than when the original meaning has van- 
 eight were irregular. Even at the ished. There is in them something 
 zenith of the Anglo-Saxon dynasty analogous to the assent of the "by- 
 uElfred takes precedence of his elder standers" in the later popular courts, 
 brothers, and .^Ethelstan of his legiti- Palgrave (i. 562) describes them as a 
 mate brothers. But in the latter case confirmation of the inchoate title of the 
 a legitimation by the reigning king, sovereign. How firmly the hereditary 
 with the approval of the National As- right of the family stood, is proved 
 eembly and the clergy, had certainly beyond doubt by the period of the six 
 preceded the accession. Every so- so-called boy kings and by the solemn 
 called irregularity in the West Saxon recall of ^Ethelred the Unready (who 
 succession may be referred to testament- had been expelled by the Danes) even 
 ary disposition, to agreements respect- after the fullest proof's of his incapacity, 
 ing claims of inheritance, or to the Still more unjustifiable is it, when 
 personal incapacity of the person certain older instances of the deth rone- 
 passed over. ./Elfred the Great, in his ment of the king by the discontented 
 will, expressly makes his title to the nobles, as in the cases of Siegebert of 
 throne dependent upon (1) the will of Wessex and Beornred of Mercia, are 
 his father, (2) an arrangement with his cited as precedents for establishing a 
 brother JEthelred, (3) the assent of the constitutional right residing in the 
 Witan of Wessex. Expressions in- Witenagemote to depose the king.
 
 The Anglo-Saxon Monarchy. 
 
 33 
 
 (See Palgrave i. 653, 655.) The 
 question whether an Anglo-Saxon king 
 is to be regarded as " ruler of the 
 people " or " lord of the soil " cannot be 
 determined from single records, in 
 which the clergy, writing in Latin, ex- 
 press themselves variously according to 
 their individual tastes. Appellations, 
 such as totius Britannise Monarchus, 
 Rex, Rector, Basileus, occur already in 
 the records of the tenth century. Alfred 
 the Great in his will calls himself 
 merely "king of the West Saxons," 
 his son Eadward on his coins '' Rex 
 Atwjlorum." Cnut's style, who calls 
 
 himself" King of all England " (Eallas 
 Englalandes), "King of the Danes 
 and Northmen," with an intelligible 
 allusion to the idea of a conquered 
 country, is singular. Eadward the 
 Confessor calls himself again " Rex 
 Anglorum" or "lord of the Angli" 
 (Saxon Chron. 1066). The early 
 Norman kings call themselves on 
 their coins "Rex Anglorum," in their 
 charters sometimes " Rex Anglise." 
 Upon the great seal the title "Rex 
 Angliee " appears first under King 
 John (Allen, Prerogative, p. 50, 5).
 
 34 Constitutional History of England. 
 
 CHAPTER III. 
 
 23nion of tfje lU'ng&oms, anfc tfjr Btbtstons 
 of tfje -Healm. 
 
 THE social conditions out of which the Anglo-Saxon kingdom 
 arose, led firstly to a plurality of small states. In the separate 
 territories, in which the petty tribes and followers under 
 their chiefs had settled, that system of property had also 
 arisen which led to the rise of the royal dignity. The chiefs, 
 although wielding power of various degrees, regarded them- 
 selves all alike as descendants of Wodan. A similar striving 
 after independent authority animated them and their fol- 
 lowers, their petty national and legal assemblies. Closely 
 crowded together, they felt a keen longing after new acqui- 
 sitions of territory, and yearned to satisfy their wonted lust 
 for strife and booty, and thus soon became involved in 
 countless quarrels and feuds, to which no natural limit set 
 bounds. Mingled with these civil feuds were serious and 
 endless struggles with their ancestral neighbouring foes in 
 the west and north, the Britons and Scots. The constant 
 state of readiness for war, which such a condition of things 
 demanded, gave the skilled and better equipped retinues an 
 increasing superiority over the humbler peasantry, who 
 became more and more reluctant to forsake home and 
 hearth, to engage in a profitless warfare with their kindred 
 neighbours. In the course of the earlier generations of Saxon 
 settlement, these petty wars had destroyed a number of small 
 chiefs and kingdoms, of which history has not even preserved 
 to us the names. 
 
 After the territorial boundaries had become more settled, 
 there appeared at the commencement of the seventh century, 
 seven or eight greater and smaller kingdoms : Kent, Sussex, 
 Essex, Wessex, East Anglia, Mercia, Deira, Bernicia; the two 
 last became early united and formed the original Northumber- 
 land. Historians have described this condition of things as 
 the " Heptarchy," disregarding the early disappearance of 
 Sussex, and the existence of still smaller kingdoms. But this
 
 Union of the Kingdoms, and Divisions of the Realm. 35 
 
 grouping was neither based upon equality, nor destined to 
 last for any length of time. It was the common interest 
 of these smaller states to withstand the sudden and often 
 dangerous invasions of their western and northern neighbours ; 
 and, accordingly, whichever king was capable of successfully 
 combating the common foe, acquired for the time a certain 
 superior rank, which some historians denote by the title of 
 "Bretwalda." By this name can only be understood an 
 actual and recognized temporary superiority; first ascribed 
 to ^Ella of Sussex, and later passing to Northumbria, until 
 Wessex finally attains a real and lasting supremacy. It was 
 geographical position which determined these relations of 
 superiority. The small kingdoms in the west were shielded 
 by the greater ones of Northumberland, Mercia, and Wessex, 
 as though by crescent-shaped forelands which in their strug- 
 gles with the Welsh kingdoms, with Strathclyde and Cumbria, 
 with Picts and Scots, were continually in a state of martial 
 activity. And so the smaller western kingdoms followed the 
 three warlike ones ; and round these Anglo-Saxon history 
 revolves for two whole centuries until in Wessex we find a 
 combination of most of the conditions, which are necessary to 
 the existence of a great State.* 
 
 Fairly well and evenly populated, protected by no natural 
 boundaries, and ever obliged to be in a constant state of 
 
 * As to the principal features of the says nothing further about the earlier 
 so-called Heptarchy, compare Lappen- times than that JElla had first ex- 
 berg, i. p. 203 et seq., 242 seq., 277 seq. ercised an extensive sway. Later, 
 Kemble, "Anglo-Saxons," cap. 1. A the Anglo-Saxon Chronicle, A.D. 827, 
 detailed sketch of the particulars of calls King Ecgberht " the eighth king 
 the separate states is given by Pal- who was Bretwalda." This Bretwalda- 
 grave ("Commonwealth," Cap. ii.), ship has very correctly been referred 
 arranged in chronological tables ; and to its real signification by Kemble 
 by the tables of kings affixed to the (" Anglo-Saxons," ii. c. 1. pp. 7-19), as 
 first volume of Lappenberg*s history. being an actual Hegemony (c/. also 
 The smaller kingdoms which have Freeman " Conquest," i. Appendix B). 
 been named, in addition to the Hep- The union of the kingdoms under 
 tarchy, are the kingdom of the Jutes Efgberht caused the introduction of 
 in the Isle of Wight, Suthrige, or the name " England " as the collective 
 Surrey, Hecana, or Hereford, Middle- denomination. An old register of the 
 anglia, Elmeta, the land of the Huri- Abbey of St. Leonard in York (cited 
 cas, the land of the Lindiswaren, and in Dugdale's " Monasticon ") contains 
 others. The " Bretwaldaship," at the the somewhat curious notice : " memo- 
 time of the Heptarchy, has been the randum quad anno domini 830 Eybertus 
 subject of various misconceptions, the rex totius Britannias in Parliament*) 
 more so as the word has been erro- apud Wintoniam mutavit nomen regni 
 neously brought into connection with (de consensu populi sui), et jussit illud 
 the Britons, whilst it etymologically de ceetero vocari Angliam." William of 
 expresses only the " powerful far-ruling Malmesbury says that Ecgberht brought 
 one." Beeda gives a detailed list of the kingdoms into a " uniforme domi- 
 seven Bretwaldus: JElla of Sussex, nium," and that he called this "Anglia." 
 Ceawlin of Wessex, JSthelberht of But Ecgberht only calls himself in one 
 Kent, Redwald of East Anglia, Ead- single charter of the year 828 " King 
 win, Oswald, and Oswi of Northum- of the English," elsewhere, generally, 
 bria. The Anglo-Saxon Chronicle " King of Wessex."
 
 36 Constitutional History of England. 
 
 military preparation against the Welsh, Wessex exhibits in 
 its development some similarity to the great Marks of 
 Germany. Military discipline, a legal succession, and a 
 tolerably well-regulated internal administration, kept the 
 Anglo-Saxon military organization here in better order than 
 elsewhere, until, at the commencement of a new century, a 
 king (Ecgberht, 800-836), who had been brought up at the 
 court of Charlemagne, took the reins of government into his 
 hand. Sagacious and energetic, he subjected the Mercian 
 group of states, and won a recognized sovereignty over the 
 whole country of the Angles and Saxons south of the Humber. 
 
 Under Ecgberht, the kingdom of the Anglo-Saxons first takes 
 its position among the European states. With him begins 
 a period of internal peace, beneficial for the consolidation of 
 the constitution, and for the intellectual development of the 
 people. Soon, however, recurs a period of unfortunate 
 struggles with Danish and Norwegian pirates, whose mode of 
 warfare brings the military array of the United Kingdom into 
 disorder. But the common misfortune which befell the 
 country at the same time strengthened the feeling of unity 
 in the West Saxon portion of the land. Under Alfred the 
 Great, the Saxon people rise to throw off the yoke of the 
 invaders, and to regulate by treaty their relations with the 
 Norsemen. A generation later the brilliant government of 
 ^Ethelstan brings the Danish portions of the country into 
 complete subjection. The realm and dynasty have now 
 attained the pinnacle of that peculiar development which 
 later times have associated with the name of Alfred. He, 
 the deliverer of his fatherland from the Danish yoke, the 
 monarch in whose person the noblest moral and intellectual 
 qualities of his race were combined with martial prowess, 
 appeared in later generations to a grateful people as the 
 author of all that was honourable and good, extending from 
 ancient to later times. Three successive governments, those 
 of Alfred, E ad ward, and ^Ethelstan, supplemented somewhat 
 later by the fortunate government of Eadgar, have irrevocably 
 founded monarchy as the personification of the political unity 
 of the British Isle ; after that, indeed, follows a second period 
 of struggles with the Danes, in which the ancient royal race 
 shows itself at times almost as degenerate as the Merovingians 
 and the Carlovingians of later times. After a generation of 
 incredible weakness and humiliation, under ^Ethelred II. the 
 nation exchanges its old royal race for the energetic rule 
 of Cnut, the Dane, whose line quickly dies out, and is followed 
 by Eadward the Confessor, the last legitimate heir of the West 
 Saxon royal house. 
 
 The century from the accession of Alfred the Great to the
 
 Union of the Kingdoms, and Divisions of the Realm. 37 
 
 death of Eadgar (871-975) is accordingly the era of con- 
 solidation, in which the country and people form a group, the 
 framework of which has endured with marvellous stability 
 until the present day. The formation of the English counties, 
 and in great measure of their subdivisions also, dates from 
 this century, in which the Anglo-Saxon laws have expressly 
 called the county and hundred districts divisions of the realm, 
 of which the tithings, although erroneously, are considered 
 the lowest member. 
 
 I. be Jpormatton of tfje IBnglisl) Counties or Sbfcfres was 
 the product of the later unity of the kingdom. Ecgberht's 
 kingdom had certainly not yet attained to any unity in the 
 political administration, but only to a recognized suzerainty, 
 under which the former kings continue as mediatized under - 
 kings. But after the dying out or removal of these mediatized 
 chieftains, near kinsmen of the ruling house (^Ethelingi), or 
 other nearly related or connected great Thanes, succeeded 
 to the place of these under-kings, until the advancing unity 
 of the realm gradually brought all these rulers down to the 
 position of mere government officials. Besides this, in the 
 greater kingdoms, which had early attained a stricter unity, 
 a division was made into districts, which were newly formed 
 by the executive. The periodical assembling of the Witan 
 for holding the great central court of justice, appeared im- 
 practicable in districts that had become of too great an area. 
 Similarly, the organization of the militia required to be 
 arranged according to divisions of the land, of not too wide 
 an extent. This want was satisfied by the formation of ad- 
 ministrative divisions under the name of " Scire " (derived 
 from Scyran, to divide), which, at the time of their origin, 
 were just as much an arbitrary formation as are our new 
 "divisions" of counties. The abstract name "Scire" (not 
 gau, ga, which does not occur in the Anglo-Saxon laws) is 
 accordingly used also for the greater districts of the eccle- 
 siastical administration, the bishops' dioceses, etc. In 
 Wessex, where at a comparatively early date an organized 
 administration existed, we find mentioned among Ina's laws a 
 prefect of the shire (Ine, 36, sec. 8), and the change of 
 residence from one Scire to another (Ina, 39). Similarly 
 in the great Mark known as Mercia, an administrative sub- 
 division must soon have become necessary. Incidentally, 
 too, even before the time of ^Elfred, certain names denoting 
 "scires" are mentioned, as such "Hamtunscir " (in 755), 
 " Defenascir " (in 851). "When after the deluge of Danish 
 invasion, and the unutterable confusion under Alfred (after 
 880), the kingdom came to be divided with the Northmen, a 
 thorough territorial division appears to have been made for
 
 38 Constitutional History of England. 
 
 the purposes of the army, of law, and for the system of the 
 maintenance of the peace ; which we might have conjectured 
 from internal reasons would have been the case, even if it 
 were not substantiated by proofs. Although under .ZEthelstan, 
 Eadgar, and Cnut, principally in consequence of the union 
 and subsequent separation of the territory surrendered to 
 the Danes, many modifications may have been introduced, 
 the century of the zenith of the Anglo-Saxon monarchy is the 
 period in which was laid the foundation of the division into 
 counties. Owing to the preponderance of the northern in- 
 vaders, who returned after ^Ethelred's time, a permanent 
 portion of the Danish element was retained, so that from 
 thenceforth the counties were formed into the three great 
 groups of the Saxon Law, the Dane Law, and the Law of 
 Mercia. At the close of the Anglo-Saxon period, Simon of 
 Durham, and Aldhelm, Abbot of Malmesbury, give the follow- 
 ing list of thirty-two counties, which forms a safe basis upon 
 which to proceed. 
 
 " Anglia habet triginta duo Sciras extra Cumberland et Corn- 
 walas. fin Cornwalas sunt septem pare SB Seine. ) Sunt lias 
 triginta duo Sciree dimste per tres leges : West Sexenalaga, 
 Denelaga, Marchenelaga. 
 
 1. West Sexenalaga habet novem Sciras : SutJisexia, Suthwai, 
 Kent, Berocscira, Wiltescira, Suthamtescira, Somersetescira, 
 Dorsetescira, Devenascira. 
 
 2. Denelaga habet quindecim Sciras : Eborascira, Snoting- 
 hamscira, Deorbiscira, Leorcestrescira, Lincolnescira, Norham- 
 tunscira, Huntedunescira, Grantebrigescira, Northfolc, Sudfolc, 
 Eastsaxe, Bedefordscira, Hertfordscira, Midlesexa, Bukingeham- 
 scira. 
 
 3. Merchenelaga habet octo Sciras: Herefordscira, Glouces- 
 trescira, Wircestrescira, Scrobscira, Cestrescira, Steadfordscira, 
 Wareivicscira, Oxenefordscira.' ' 
 
 According to the position of the territorial divisions these 
 thirty-two permanent counties form the following three 
 groups : 
 
 a. The historical distribution into counties prevails on the 
 southern and eastern borders of the kingdom, which, at first 
 conquered from the sea, became thickly populated by Angles 
 and Saxons and early attained to a political organization. 
 Here were formed from the two kingdoms of Kent and Sussex, 
 the later counties of the same name. The kingdom of the 
 East Saxons formed the counties of Essex and Middlesex. 
 East Anglia is split up into the territory of the North-folk 
 and the South-folk, and in later times into the counties of 
 Norfolk and Suffolk. In Wessex the settlements of the Wil- 
 saetan, Dormsaetan, and Samorsaetan form the later counties
 
 Union of the Kingdoms, and Divisions of the Realm. 39 
 
 of Wilts, Dorset, and Somerset, which retained the ancient 
 names of old independent kingdoms. 
 
 b. The second great territory is formed of Mercia, the old 
 great Mark against the Britons, and of the interior of the 
 country. Here the administrative formation of the shires is 
 shown by the fact that all counties were called after the name 
 of some place which had acquired a certain importance, and 
 was suitable for the meeting place and the centre of the 
 administration. All names of counties here have an Anglian, 
 Saxon, or northern nomenclature, denoting a place ; such as 
 -ham, -ford, -ton, -byrig, -wick, -by, -cestre (castrum) ; Hert- 
 ford-shire, Buckingham-shire, Northampton-shire, etc. 
 
 c. The great Northumbrian kingdom, the northern portion 
 of the land, after stormy and varying fortunes, became in 
 some parts colonized at a later period, and unequally formed. 
 The more northern part (Bernicia and others) belonged later 
 to Scotland; in the southern portion Lincoln, York, and 
 Durham formed counties called after a principal town ; Eut- 
 land and Cumberland are, on the other hand, clanish names ; 
 Northumberland and Westmoreland were named from geo- 
 graphical peculiarities, and were not received into the rank of 
 the counties until a later period. 
 
 After these events great differences must for a long time 
 have subsisted between a governorship, formed out of an old 
 mediatized kingdom, and one that proceeded from the admini- 
 strative division of a greater kingdom ; differences which 
 only in process of time were adjusted by legislation and con- 
 tinuous practice. The laws regulating the rights and duties 
 of the royal Ealdorman and Shir-gerefa must be regarded 
 also in the light of such adjustments. All adjustments must 
 have the same tendency, to make these territorial divisions 
 as divisions of the jurisdiction of the king, in war, law, and 
 police, dependent on his will. Hence the traditional principle 
 " Divisiones scirarum regis proprue sunt." (Edw. cap. 
 13.) (1) 
 
 (1) The division into counties or sec 3, 21.) Gradually the " shire " be- 
 
 shires has by later legal tradition comes the exclusive appellation for the 
 
 been directly attributed to jElfred, and great county districts for the purposes 
 
 the difference in origin between the of military and legal organization, 
 
 historical and administrative shires been Among the laws this meaning first 
 
 ignored. To what an extent the word occurs in Ina, 36, sec. 1, 39 ; Alf. 37 pr., 
 
 "shire" or "division " is used to denote sec. 1. That under JElfred a thorough 
 
 a public government district, is shown territorial division took place is credibly 
 
 by the fact that the earliest mention of asserted by William of Malmesbury (De 
 
 a shire in the Saxon Chronicle relates Gest. Angl. ii. 4), but he only speaks 
 
 to a bishop's diocese, " biscopscira " of a division " in centurias quas hundred 
 
 (Chr. Sax. 709). And in the laws of dicunt." Ingulf (" Historia Croyland," 
 
 the Anglo-Saxon kings "shire" often i. 41) says very positively; "totiusAn- 
 
 means an ecclesiastical diocese. (Edm. give pagos et provindas in comitatus 
 
 ii. 4; Edg. iii. 3, 5; Athlr. v. 6; vi. 1, primus omnium commutavit ; comitatut
 
 40 Constitutional History of England. 
 
 II. tZHje f^un&re&S appear in the statutes as the regular 
 sub-districts of the county only after the tenth century, under 
 Eadgar. They must, however, be anterior to this date, for 
 the Hundred is the old Germanic division of the military 
 system, which recurs among all Germanic races, as also 
 among the Saxons on the continent. That the name soon 
 became applied to a district, which after the settlement had 
 to provide one hundred men for the militia^ can be deduced 
 from the variously interpreted passage of Tacitus (Germ. cap. 
 6), " quod primo numerus fuit jam nomen et honor est ; " but it 
 follows with greater certainty from the nature of the case 
 and from later indisputable circumstances. Certain it is 
 that, soon after the settlement, the militia was organized 
 as far as possible in equal contingents, which became a 
 territorial division, so soon as it became necessary to apportion 
 the duty of furnishing the contingents according to extent of 
 landed possessions. As, however, legal rule on this point was 
 never established, as necessity and ability to supply it were 
 continually producing changes, owing to the vicissitudes of 
 the times, the diversity of tenures, and later to the frightful 
 ravages of the Danes, the distribution of land remained even 
 in still later times a matter of arrangement, and was left to 
 the decision of the county under its royal governors and 
 bailiffs. 
 
 The rule in this case which has been preserved to us 
 was, " Divisiones hundredorum et wapentagiorum comitibus et 
 vicecomitibus cum judicio comitatus" (Eadw. Conf. 13). And 
 hence it is clear why the Hundred is recognized so com- 
 paratively late as a fixed territorial division, why the Saxon 
 Chronicle does not mention the Hundreds, and why the Saxon 
 
 in centurias, id est hundredas, et in de- i. 63). The most probable date of a 
 
 cimas, i.e. tritingas divisit." By later thorough division into provinces is 
 
 critical investigations (Palgrave, Quar- shortly after 880, i.e. after the peace 
 
 terly Review, 1829, vol. 67, pp. 289 between ^Elfred and Guthrun. A 
 
 298), it has now been established that proof of this is furnished by William 
 
 this writer was not the old Anglo-Saxon of Malmesbury, and others in the list 
 
 abbot, but a pseudo-Ingulf of the end quoted in the text. Quite identical 
 
 of the thirteenth or commencement of with it, only with different ortho- 
 
 the fourteenth century, who, however, graphy, is the list given by Bromton 
 
 drew his information from the old (X Script, ed. Twysden, p. 956). The 
 
 chronicles. In point of fact his asser- country between the Kibble and the 
 
 tion agrees with all the rest. The Mersey, the Lancashire of modern 
 
 Saxon chronicles before the time of ,31- times, does not appear in Anglo-Saxon 
 
 fred know only of the old divisions times as a separate department. A few 
 
 after clan names, and territories; Cant- small shires, which had been for some 
 
 waraland (Kent), Westseaxan, Suth- time independent, were in later times 
 
 seaxan, Eastseaxan, Middelseaxan, incorporated with others, as Winchel- 
 
 Eastengle, Northanhymbraland, Suth- combeshire with Gloucester. As to the 
 
 anhymbraland, Myrcnaland, etc. ; but system of the division into counties 
 
 after Alfred's days the customary terms compare Palgrave, i. 117, and the in- 
 
 became altered, and the various manu- troduction to the Census of 1851. 
 scripts use only the word Scir (Kemble,
 
 Union of the Kingdoms, and Divisions of the Realm. 41 
 
 documents concerning property so seldom describe the position 
 of estates with reference to the Hundreds. As districts of 
 the early militia organization, and consequently of the peace- 
 control, the Hundreds were certainly in existence long before 
 Alfred's time. As to the universal appearance of the 
 Hundreds in the Germanic militia system, the work of V. 
 Peucker (" Das Kriegswesen der Germanen ") gives a new 
 and convincing proof. The silence of the Anglo-Saxon legal 
 authorities of the early centuries cannot be entitled to any 
 regard, on account of the extreme rarity of their allusions to 
 the military system. But it may be taken as certain that at 
 the reorganization of the State by ^Elfred, a thorough revision, 
 or redistribution, was made of the districts furnishing con- 
 tingents. William of Malmesbury (ii. 4) expressly describes 
 these new divisions made by Alfred, as " Centurias, quas 
 hundred dicunt." In the language of Wales and Hibernia, 
 the word " cantred " is used instead of Hundred, and in the 
 north we find the term " Wapentake," derived from a military 
 usage in mustering the troops. When the monarchy was 
 at its prime, the Hundred in the Anglo-Saxon statutes denotes 
 a sub-district of the shire, geographically limited, with its 
 separate assemblies for the purposes of army, justice, arid 
 maintenance of peace. In these later times the Hundred 
 Court is the ordinary court for freemen, and holds its sittings 
 every month. The division into Hundreds in the form which 
 it assumed at that time remained in existence almost to 
 our own day. As in the division into counties, here also an 
 historical and an administrative principle worked in different 
 directions, and created great inequalities. In the southern 
 portions of the country, which early became thickly populated, 
 the number of Hundreds was very large : in Kent, sixty- 
 two ; in Sussex, sixty-four. The midland counties are to a 
 certain extent different, Dorset having forty-three, Suffolk 
 twenty-one, and Essex twenty Hundreds. In the north, 
 where the population was thinner, the cultivation more de- 
 fective, the land poorer, and the organization developed at a 
 later period, the numbers are remarkably small : in Warwick, 
 four Hundreds ; in Cumberland and Westmoreland, four 
 Wards ; in Stafford, Worcester, Eutland, five Hundreds ; in 
 Leicester, Nottingham, Derby, Lancaster, six; in Durham 
 and Northumberland, six Wards ; in Cornwall, nine Hundreds. 
 In large provinces sometimes an intermediate division between 
 County and Hundred arose, as the " Trithings " (or third 
 portions) of Yorkshire. (2) 
 
 (2) The division into Hundreds is from erroneous confusion with these, a 
 often referred to in old records as a hundred villas are sometimes made out 
 union of a hundred hidas, or families ; of them, as in Bromton (ed. Twysd. p.
 
 42 
 
 Constitutional History of England. 
 
 III. & Mbision into 2ufi)mgs, Seotfrings, Itaamat, has been 
 erroneously held to be a general territorial division of the 
 Anglo-Saxon period. This mistake was caused by the account 
 given by the pseudo-Ingulf, who informs us that Alfred 
 divided the counties "in centurias, id est hundredas et in 
 decimas, id est trithingas;" in this a mistake is already 
 apparent in the word "trithing." The division into tithings 
 for the purposes of the old military array, in which the 
 numbers ten and one hundred can be proved to have been 
 nearly everywhere the units of the organization, was indeed 
 very ancient. The national militia had likewise always had 
 its "tithings," but these did not lead to a division of territory, 
 for the apportionment of the contingents remained a shifting 
 matter of administration for the smallest divisions, much 
 more than for the greater ones. What the Anglo-Saxon 
 statutes really contain touching the Tithings (decani SB, or 
 theotings) is limited to the following: According to Atheist, 
 vi. 4, the members of the Tithing should, on summons, join 
 
 956), and Ranulphus Cestr. (i. 50). 
 Spelman (p. 365) says on this point, 
 " Nusquam (quod scio) reperiuntur 100 
 villas in aliquo Hundredo per totam 
 Angliam. Nescio an medietas. Magni 
 habentur qui vel 40 vel 30 numerant. 
 Multi ne 10 : quidam duas tantum et 
 nonnuUi (ut Hundredi de Chetham, 
 Warden, etc. in Comitatu Cantii) unica 
 sunt contenti" The correct view pro- 
 bably is, that the occupier of a peasant's 
 hide, familia, should furnish one man 
 to the original settlement of small 
 peasantries ; so that frequently at the 
 time of the first colonization a Hundred 
 contained a hundred hides under the 
 plough. But as the districts for con- 
 tingents were more permanent than 
 the state of cultivation, the Hundreds, 
 in their later state, contained much 
 more than a hundred hides under the 
 plough ; sometimes less, where there 
 had been a falling off in prosperity. 
 The great Hundreds in the north, 
 which had been formed later, are, taking 
 the one hundred hide standard, dis- 
 proportionately large (in Lancashire, on 
 the average three hundred English 
 square miles), whilst many a small 
 Hundred contains scarcely more than 
 a quarter of a mile. Hence it is that 
 later historians expressly assert the in- 
 definiteness of the hide-measurement 
 (of. Gervas, Tilb. i. cap. pen., " Dialog, 
 de Scaccario," "hundredus ex hydarum 
 aliquod centenis, sed non determinates 
 constat ; quidam enim ex pluribus, 
 quidam ex paucioribus constant.") This 
 
 inequality led, in the later Middle 
 Ages, to the division in some counties 
 of Hundreds into half-Hundreds ; 
 whilst, on the other hand, two Hun- 
 dreds, or one and a half, were some- 
 times united for the purposes of ad- 
 ministration. The persistent retention of 
 the division into Hundreds is explained 
 by the fact that the Hundred Court 
 was held every four weeks as a regular 
 court (Edw. ii. 8 ; Edg. i. 1, iii. 5), and 
 thus the conservative character of all 
 judicial systems became communicated 
 to the Hundred. That administrative 
 convenience was largely considered in 
 the earliest divisions, is proved by the 
 fact that, whenever possible, the Hun- 
 dred grouped itself round a given place, 
 suitable for a centre. Of the 799 
 names of Hundreds, Wapentakes, or 
 Liberties, which are in existence at 
 the present day, no fewer than 362 are 
 identical with a town lying within them 
 (" Introduction to the Census of Great 
 Britain," 1851; also as to the Hundreds 
 generally, see Landau, " Territorien," 
 215, 216). In certain counties a middle 
 division occurs. In Kent there are to 
 be found several Hundreds united 
 under the name of Lathes, which exer- 
 cised the same judicial powers as the 
 Hundreds. In Sussex is found a 
 division into Rapes, without any juris- 
 diction, which remained with the Hun- 
 dreds. York and Lincoln were divided 
 into Thrithings (third parts), which 
 still exist under the name of Ridings.
 
 Union of the Kingdoms, and Divisions of the Realm. 43 
 
 in pursuing criminals. According to Athlst. vi. 8, sec. 1, 
 those who rule the Tithing (the heads) should meet the 
 Hyndemen in London every month to maintain the peace. 
 According to Edg. i. 1, 2, notice of a theft should be given 
 to the Hundred men and Tithing men. According to Edg. 
 i. 1, 4, no one was allowed to possess chattels (cattle) unless 
 he had the certificate of a Hundred man, or a Tithing man. 
 According to Cn. ii. 26, every free man shall be brought 
 into a Hundred or Tithing, for the purpose of police sureties. 
 It is evident that these quotations refer to police institutions 
 and constabulary societies formed of the inhabitants, but not to 
 local districts, or village marks. In numerous records of this 
 period, the position of estates is determined by reference 
 to the Hundred, but never to the Tithing-district. Among 
 the innumerable details contained in Domesday Book, the 
 words " decania, decenna, teething, ty thing," do not once 
 occur. The local districts of the Anglo-Saxon administration 
 were, for the most part, determined according to the tenures 
 of the properties. The numerous settlements made by 
 " coloni," upon loan-land, the submissions of the allodial 
 peasants to a Hlaford, as well as the subsequent extension of 
 the jurisdiction of manorial courts over the allodial peasants, 
 rendered the type of dependent communities the prevailing 
 one, and a territorial division according to free peasant 
 villages impossible. Difficult as it is to obtain a reliable 
 picture of the local organization of the kingdom, at this, 
 its lowest stage, it is perfectly clear that the nature of the 
 existing societies absolutely excluded a territorial division into 
 " Tithings." (3) The existing local societies, on the other 
 hand, are as follows : 
 
 (3) The local divisions of the Anglo- pseudo-Ingulf thought that this state 
 Saxon territory can never be clearly of things was already existing in Anglo- 
 understood from historical sources. The Saxon times; and he brought the system 
 old error that the Anglo-Saxon " Theo- of police sureties (in the confused way 
 thing " is a geographical local district, in which the author of the Leges Edw. 
 has, however, become established owing Conf. 20, describes it) into connection 
 to a passage in the pseudo-Ingulf, who with it, fantastically portraying the 
 connects the matter with a register of " decenna " under its tenth man, as a 
 landed property which Alfred is said village court, exercising a formal juris- 
 to have drawn up, " talem rotulum diction, analogous to that of the Hun- 
 ediderat, in quo totam terram Anglix dred under its Hundred-man, and the 
 in comitatug, centurias, et decurias de- county under its Shir-gerefa ; which 
 $cripserat;" whilst William of Malmes- gives the idea of a system of many 
 bury only says that it had been ordered, thousands of judges chosen by the 
 " ut omnis Anglua haberet et centuriam people 1 Instead of this chimerical net- 
 et decimam." Ingulf makes of this, work of smaller and smaller courts 
 " ut omnis indigena in aliqua centuria of law, we can only find in reliable 
 et decima existeret ;" the former words authorities that picture of local admin- 
 express an association of persons, the istration which I have delineated; 
 latter contain a description of a local within which no free village courts 
 district. As the militia system of the and villages can possibly be formed of 
 fourteenth century had introduced local a mere militia system, 
 tithings under a petty constable, the
 
 44 Constitutional History of England. 
 
 Lordships with their tenants and dependents. First in 
 importance were the royal demesnes, on which a royal bailiff 
 combined the management of the estate with the levy of the 
 royal dues, with the legal jurisdiction over the tenants, and 
 with other functions of militia and police. A similar position 
 belonged to the Gerefa of great private estates. These villeins 
 and servants do not exactly live in regular villages, but are 
 settled in the vicinity of the lord's seat (afterwards the 
 "manor"), and increase in numbers as landless wanderers 
 come and settle amongst them and put themselves under the 
 police protection of the lord of the soil. Ten families form 
 the smallest community recognized for police purposes, and 
 for the appointment of a provost (prsepositus). As such, under 
 the later system of police sureties, they form their own police 
 union as a manorial Tithing, as well as a court for the settle- 
 ment of local disputes ; by later grants of land this was 
 extended even to the allodial peasantry settled among them, 
 "super omnes allodiarios, quos eis habeo datos" (Codex Dipl. 
 No. 902). 
 
 Incidentally, too', the parishes under the spiritual office of 
 the parson were associated with these, though the former 
 were formed independently, embracing both freeholders and 
 villeins, servants and landless settlers, and were therefore 
 bodies suitable for initiating the separate local government 
 system in England in later centuries. 
 
 Larger unions of more independent folk, united for the 
 administration of justice under a royal or manorial Gerefa, 
 and often freed from the duty of appearing as lawmen in the 
 Hundred, were for the most part entirely or partially co- 
 ordinated with the Hundred. This was an advantage for 
 those who participated, and their legal duty was lightened 
 in that, under the guidance of a magistrate, they formed 
 a separate judicial district, with the powers of a Hundred. 
 Of equally vital importance to the freeholders in their relation 
 to the neighbouring Thanes, was the protection of a powerful 
 magnate ; to which were sometimes added certain advantages 
 of wood and pasture. The question here is not one of sub- 
 mission of person and property, but of a magistracy (soca), 
 under which the heritable property of the " socmanni," and 
 their immediate obligation to serve in the military array, 
 remained unchanged. Towards the close of the Anglo-Saxon 
 period the grant of a whole Hundred sometimes occurs. For 
 instance, under Eadward the Confessor, a certain Hundred 
 in Berkshire was granted to the Abbot of Abingdon, and a 
 Hundred in Surrey to the Abbot of Chertsey, with the com- 
 mand " that no royal Shir-gerefa hold court there," or interfere 
 in legal matters (Cod. Dipl., 840-849).
 
 Union of the Kingdoms, and Divisions of the Realm. 45 
 
 An analogous but more compact creation is found in the 
 numerous royal or manorial Burhs, which constitute, under 
 a separate Gerefa, a special jurisdiction, in which a Burh- 
 gemote, held three times a year, is combined with the Hundred 
 Court {Edg. iii, 5 ; Cn, ii. 18). The origin of the Burh is ap- 
 parently due to the need of a military protection in the Danish 
 times. A hill with a rampart of earth or a strong wall, was 
 sufficient protection against the sudden attacks of robber 
 bands. In the statutes "Burh" or "Byrig" signifies also 
 a single fortified building (Edm. ii. 2 ; App. iv. 15 ; Athlr. 
 iii. 6), as well as a town (Athlst. ii. 20, sees. 1-4 ; Edg. iv. 2, 
 pr. 3,4, 5; Athlr. ii. 5, sec. 2; ii. 6; Cn. 34). Discerning 
 rulers like ^Elfred made use of the remains of old " civitates " 
 and "castra" and other advantageous positions for such 
 fortifications, and the protection which these afforded was 
 readily sought by the neighbouring freeholders, tenants, and 
 vassals, and also by landless men and small tradespeople 
 who were living amongst the servants and followers of the 
 landlords. The differences in the legal position of the people 
 thus crowded together rendered expedient the appointment 
 of a special royal magistrate (Gerefa), who was also endowed 
 with extraordinary military, police, and financial functions. 
 At the close of the Anglo-Saxon period the Burgenses, and 
 in later times the constitution of the English municipal 
 boroughs, arose from these beginnings.* 
 
 Wedged in among these numerous degrees of property and 
 power came the rest of the freemen, who on their heritable 
 possessions preserved intact their independent position in 
 the military, legal, and police institutions. In many parts 
 of the country these peasant communities lay close enough 
 together to enable a free teothing to be formed out of ten or 
 
 * The formation of the Burhs is, the Burgenses as such were not released 
 
 according to the convincing reasoning from military duty is shown by many 
 
 of Kemble, not in any way imme- accounts given by the Domesday Book 
 
 diately connected with the British- (e.g. Bury St. Edmunds, 371). But 
 
 Unman towns of the fifth century, which many Burhs were favoured by being 
 
 Gildas, in the sixth century, represents rated for the purpose of furnishing the 
 
 as being already forsaken and in decay. contingent at a small landed property 
 
 Still the existing ruins would in later scale of 5 hidse, 15 hidae, or 20 hidss 
 
 times be utilized for the purposes of (Chester at 50, Shrewsbury at 100 
 
 fortification. In certain places the hidse). Of course the royal dues were 
 
 name " city " was retained in memory proportionately raised, and hence the 
 
 of an old " civitae." The peculiar life burns became more important for the 
 
 of the Burhs is due to the fact that finance control than for the defence 
 
 the free tenants, tenants on granted of the country, as the fortresses had 
 
 land, dependants, servants, and bonds- again been allowed to fall into ruins, 
 
 men of the king, as well as of private Kemble (ii., pp. 470-478) has selected 
 
 lords, lived densely crowded together, from the Anglo-Saxon Chronicle the 
 
 and that under the Burh-gerefa the names of eighty-eight places, all of 
 
 legal, police, and finance administra- which may in some measure be re- 
 
 tions were united in one person. That garded as fortified.
 
 46 Constitutional History of England. 
 
 more households. But often where the free peasants were 
 scattered about at great distances, it was with difficulty that 
 they were brought together into a " teething," while the 
 greater part of them had already been incorporated into the 
 system of lordships, magisterial, and bailiff jurisdictions. 
 
 In the inner administration of the country these various 
 local groups clash with each other and are not kept distinct. 
 Most of them have no exclusive local jurisdiction ; the majority 
 do not form exclusive local districts. A separate magistracy 
 of the king or of a landowner does not exclude military duty 
 in the Hundred. The tenants within the jurisdiction of 
 private courts, in quarrels with outsiders, come under the 
 jurisdiction of the Hundred Court. The police organization is 
 arranged partly according to the military and partly accord- 
 ing to the legal districts. Thus within the narrow limits of a 
 castle, and in the vicinity of a lord's " mansus," freeborn men 
 might be living close together under manifold legal conditions, 
 having very different duties to fulfil towards the king or their 
 own mesne lord. 
 
 Hence we are led finally to the negative conclusion that 
 there existed no systematic formation of local districts, and, 
 moreover, that the Tithing was no such local division.** 
 
 ** All these local distinctions cross and peace control, even above the 
 
 and overlap in the most varied fashion. interests of property. This legal rule, 
 
 But it remains firmly established that however, does not exclude the fact 
 
 the personal liability to military service that dependence on property is the 
 
 continues independently of the sub- most important element in regulating 
 
 jection to a magistrate's jurisdiction, the conditions of life, and that the 
 
 and that the peasant farmers, who were division into separate estates with their 
 
 actual tenants, in case of disputes with tenants represents the prevailing local 
 
 third persons, appeared before the royal division. "Instead of the earlier 
 
 Hundred Court. The legislation ac- division into free landowners and land- 
 
 cordingly remains based upon the old less freemen, a division of the people 
 
 constitution ; that is, upon the free into landlords and tenants has been 
 
 community. County and Hundred introduced" (K. Maurer, "Miinchener 
 
 assemblies are now, as formerly, active Krit. Ueberschau," ii. 59, 60). 
 in all matters affecting military, legal,
 
 CHAPTER IV. 
 Offices of 35altrorman anfc 
 
 A MUTUAL bond of union connects the districts with the arrange- 
 ment of the offices of the Anglo-Saxon kingdom, namely, the 
 two principal offices of Ealdorman and Shir-gerefa. In them, 
 as in the districts, an historical and an administrative principle 
 clash together. The former is predominant in the origin of 
 the Ealdorman, the latter in that of the Shir-gerefa. 
 
 I. i)e lEafoorman, 39ux, Comes, is the highest civil official 
 of Anglo-Saxon times. When the union of the smaller king- 
 doms with the greater began, the sovereignty of the new 
 common ruler was confined at first to privileges and profits, 
 whilst the former petty state retained its own General 
 Assembly, and, with a sub-king at its head, preserved its 
 military and legal system. The oldest Ealdorman was actu- 
 ally a Viceroy, " subregulus," which title often occurs in the 
 signatures to Anglo-Saxon documents. In his decrees he 
 used the royal style : " cum consilio episcoporum, optimatum- 
 que meorum." The province of such Ealdormen embraced, in 
 fact, a former independent state. He was not unfrequently 
 the subjected king in person, or a member of his family, or 
 else " Mikelingi" near kinsmen of the reigning Over-king, 
 were appointed to such places of trust. The name "Ealdor," 
 too, is a reminiscence of patriarchal chieftain-lineage of a 
 former period. It does not signify a man old in years, but 
 the "superior," "senior," in a higher, more exalted position. 
 Even in the times of the Heptarchy the military, legal, and 
 police organization draw closer together. The Ealdorman 
 becomes more dependent upon the central administration. 
 The new administrative division of the great kingdoms into 
 shires causes the appointment of new governors, who are 
 at first merely the highest district officials, and whose district 
 assemblies do not involve any customary right of indepen- 
 dence. The mention of Ealdormen with such official positions 
 runs side by side with the gradual rise of the division of the
 
 48 Constitutional History of England. 
 
 kingdom into shires. In the early organized kingdom of 
 Wessex the Ealdorman is mentioned in Ine's laws, which the 
 king promulgated with the advice "of all his Ealdorrnen" 
 (Ine, pr.), and in which also the disobedient Ealdorman is 
 already threatened with the loss of his shire (Ina, 36). The 
 small kingdom of Kent appears at the commencement of the 
 eighth century to have had as yet no Ealdormen, whilst on the 
 other hand, in a National Assembly, held in 814, the names 
 of three Duces of Kent and sixteen Duces of Mercia are found 
 among the signatures. Hence it is clear that even before 
 Alfred's day necessity had led in the greater kingdoms to 
 administrative governorships. The confusion caused in the 
 original state of affairs by the invasion of the Danes and 
 the reorganization of the whole land by Alfred led to 
 a greater uniformity in the administrative character of the 
 Ealdormen. This assumption is confirmed by the Eigils- 
 saga of Iceland, c. 21 (K. Maurer, " Krit. Ueberschau," i. 86), 
 which tells us, " Alfred the mighty had taken away from all 
 Skatconunge" (i.e. viceroys) "their name and their power. 
 Jarls, those were called from henceforth who had been called 
 kings, or kings' sons." In the flourishing period of the 
 Anglo-Saxon monarchy the Ealdorman now appears as the 
 governor appointed by the king in a threefold capacity. 
 
 (a) Together with his County Assembly he directs the 
 equipment of the militia and the apportionment of the con^ 
 tingents, and brings them to the royal army. He may also, 
 when commissioned by the king, take the command of the 
 whole army, in which capacity he is mentioned on important 
 occasions in the Anglo-Saxon Chronicle, which speaks of 
 Ealdormen as commanders of single counties (in the years 
 837, 845, 851, 853, 905), or Ealdormen simply as commanders 
 of a whole army (in 851, 871, 894, 992, 993, etc.). In the 
 statutes this capacity is regarded as being a matter of course. 
 
 (6) He presides at his County Assembly, as at the ordinary 
 National Court (Ine, 50; Alfr. 38; Edg. iii. 5). "Let there 
 be held . . . twice a year, a Shir-gemote, and let there be 
 present at the Shir-gemote, the Bishop and the Ealdorman, 
 and both shall here administer spiritual and temporal rights ; " 
 which is almost word for word repeated in Cn. ii., sec. 16. 
 
 (c) As guardian of the peace within his district, he exercises 
 the royal police jurisdiction. To him the peace proclama- 
 tions of the king are, in the first instance, directed. The 
 right of supplementing ordinances, which lies in the royal 
 maintenance of the peace, gives him also a derivative licence 
 to issue peace proclamations within his district. The breach 
 of his peace is punishable by the infliction of a special peace 
 fine (Athlr. iii., c. 1). Any man who intends to change his
 
 The Offices of Ealdorman and Shir-G-erefa. 49 
 
 master, must give notice to him (Alfr. 37). After a breach 
 of the peace has taken place, his duty is to prevent feud, and 
 to protect the weaker party (Alfr. xlii. sec. 3) ; to take surety 
 from men accused as breakers of the peace (Edm. iii. 7, 
 sec. 1) ; and to assist the inhabitants of royal burghs to the 
 utmost, in securing breakers of the peace (Athlr. ii. 6). 
 
 The combined position which proceeded from these various 
 functions was one of the highest dignity and the highest rank, 
 which, according to the legal system of the times, found 
 expression in a weregeld, as high as that of the bishop, and 
 four times as high as that of the common Thane (App. vii. 2, 
 sec. 8) ; in an increased punishment for breach of the Burg- 
 peace (Ine, 6, 45; Alfr. 40) ; in an increased Burgbryce and 
 Mundfyrd (Alfr. 3. ; Cn. ii, 58; App. iv. 11) ; in an increased 
 fighting Wite (Alfr. 15, 38 ; App. iv. 12) ; and in a special 
 right of asylum (Athlst. iv. 6, sec. 3 ; v. 4, sec. 1 ; App. iv. 5). 
 For official income he had the use of considerable portions 
 of the folkland, and a third of the forfeits, fines, and other 
 royal dues which fell to the king. The Ealdorman in this 
 position is the most eminent official in the kingdom, and has 
 the first place in the temporal council of the king ; but only 
 in his capacity of governor, whose right depends upon the 
 king's commission, and whose office expires as soon as this 
 is withdrawn. In the beginning the Ealdorman had certainly 
 been a successor of the king of the country, and at his appoint- 
 ment the form of election by the popular assembly probably 
 continued for a long time. But a free right of election could 
 not possibly be recognized, if the incorporation of the media- 
 tized kingdom was to last ; indeed, the kingship asserted as 
 a principle a right of deposition (Ine, cap. 36). It is told of 
 ^Elfred, that he emphatically reminded his state officers 
 " that they had their office from God and from the king." (1) 
 
 (1) On the office of Ealdorman and Ealdorman appears at an early period 
 
 Earl, Heywood " On Ranks," pp. 55- attached to the great families, but is 
 
 117, contains a lengthy exposition. not hereditary. Amongst Ealdormen 
 
 The Latin terms, Dux, princeps, and whose names have been handed down 
 
 comes, are very arbitrarily interchanged, to us, instances occur of father and 
 
 as also are consul, patricius, priefectus, son following immediately one another, 
 
 according to the fancy of the cleric who but this is very seldom ; on the other 
 
 drew up the record. The introduction hand, the deposition of an Ealdorman 
 
 of analogies of the comes, dux, and is very rare; and intermarriages be- 
 
 eenior of the Carlovingian constitution tween the Ealdorman and the families 
 
 is also confusing, for these dignities of the Anglo-Saxon kings are very 
 
 had different territorial, possessorial, common. All these conditions are the 
 
 and national foundations, and an early expression of the power wielded by 
 
 history of another type. It was quite certain great families, and of a strongly 
 
 natural that in the aristocratic develop- marked class privilege, but not as yet 
 
 ment which the political organization of an hereditary nobility. Still less, 
 
 took, the class of Ealdormen should be under such a condition of things, could 
 
 identical with a small number of the the office of Ealdorman be elective, of 
 
 greater landowners. The office of which even Kemble speaks erroneously 
 
 E
 
 50 Constitutional History of England. 
 
 Certain changes were brought about during the last century 
 by the influence of the Danish element. Among the northern 
 pirates, we find, besides the kings, commanders-in-chief called 
 Jarls. This northern term was related to the Anglo-Saxon 
 Eorl, which from time immemorial signified a man of great 
 rank, and was well adapted to be blended with the Eorl or 
 Earl. For some time accounts of battles speak of Ealdor- 
 men on the Saxon, and Earls on the Danish side. As 
 early as the statute of Bad ward and Guthrum there occurs 
 (in c. 12) the common name Earl (also in Edg. iv. 15). 
 The influence of the Danish element naturally gained strength 
 in the second period of the Danish rule after ^Ethelred (Athlr. 
 iii. 12). Under the reign of Cnut, history records only 
 the appointment of new " Earls." Cnut's law touching the 
 amount of the heriot (sec. 7), only speaks of "Eorl;" in 
 the Shir-gemote (Cn. ii. 18) we again find the term " Ealdor- 
 man." More important still was the breach which was at 
 that time made in the ancient position of the noblest Anglo- 
 Saxon families. Danish families, and sometimes also bold 
 warrior upstarts, in a great measure supplant the old race of 
 the Ealdormen, and with the varying fortunes of battle the 
 governorships also become thoroughly altered in character. 
 In times anterior to these it had been often found advisable, 
 for the protection of the country, to unite several shires under 
 one Ealdorman. Under ^Ethelred this tendency to centralize 
 the commander's office increases, evidently in order that the 
 whole army of a district may be more speedily massed, and 
 employed with greater effect, at the points threatened by the 
 enemy. 
 
 With this idea Cnut formed four great provinces, at the 
 head of each of which a great Eorl was placed, whose rank 
 answered to a ducal rank, even according to the higher 
 standard of the Continent. Under Eadward the Confessor, 
 
 (ii. 126). Among the statutes of Bad- forgotten that these statutesarea private 
 
 ward the Confessor (cap. 32a, sec. 2, in work dating from the twelfth century, 
 
 Lambard's text), the following isolated in which the learned author intro- 
 
 and extraordinary notice appears de duces, in a hundred places, his own 
 
 herotochiis. " Erant el alias potestates knowledge of the continental popular 
 
 et dignitates constitute, qui Heretoches rights, a knowledge accessible to the 
 
 apud Anglos vocabantur, scilicet barones, clergy. Seeing the heavy weight of 
 
 nobiles, etc. Latine vero dicebantur due- Norman officialism, at the time that 
 
 tores exercitus; apud Gallos, capitales work was written, nothing would be 
 
 constabularii, vel marechalli exercitus. more popular than the idea of a free 
 
 Isti vero viri eligebantur per commune general election of the highest officials 
 
 consilium et per singulos comitatus in in the county. Not merely the right 
 
 plena folcmote, sicut et vicecomites pro- of deposition, which was a recognized 
 
 vinciarum et comitatuum eligi debent," right (Ina, c. 36, Cod. Dipl., No. 1078), 
 
 etc. This pretended election, as well as but all the monuments of Anglo-Saxon 
 
 the name " Heretoches," is quite foreign law and history, are opposed to the 
 
 to Anglo-Saxon ideas. It must not be idea of elected Ealdormen.
 
 TJie Offices of Ealdorman and Shir-Gerefa. 51 
 
 this grouping of the counties is again altered, and for a 
 short time we hear once more of Ealdormen and Eorls side 
 by side. But as since Cnut's day the idea of a higher and 
 greater governorship had been attached to the appellation of 
 "Eorl," the title which was considered the higher, became, 
 as is usually the case, the dominant one. The Anglo-Saxon 
 Chronicle after 1048 speaks only of Eorls. In the language 
 of later times, the old honourable title of " Alderman " was 
 only retained for the authorities in inferior local administra- 
 tions. (Leges Henr., vii. sec. 2; viii. sec. 1; xcii. sec. 1.) (l a ) 
 II. ^fje ffice of bf)ir=gerefa appears to have been a 
 second official position under the Ealdorman, instituted for 
 the administration of the whole county. In rank coming 
 next after the Ealdorman (Ealdormannes gingra, Alf. xxxviii. 
 sec. 2), the sheriff attained in process of time an increased 
 importance, and at the close of the Anglo-Saxon period had 
 become the most important official of the active adminis- 
 tration. In marked difference to that of the Ealdorman, the 
 office contained no remains of the old royal dignity, but had a 
 purely administrative, even a pre-eminently economic charac- 
 ter, which was caused by its financial connection with the 
 great landed properties. Every Anglo-Saxon magnate had to 
 collect rents, payments in kind, protection moneys, and dues ; 
 to superintend the service of his followers, to settle their 
 disputes, and to satisfy the royal demands relative to the 
 military array and the legal and police duties. The officer 
 appointed with full power to fulfil these functions was called 
 Gerefa, a name which includes also the ordinary estate-bailiff. 
 In a higher degree, however, the king needed in the different 
 districts of his kingdom a head-gerefa for the exercise of his 
 rights of usufruct and to undertake the varying duties of the 
 royal administration. This gerefaship so thoroughly pervaded 
 the whole life of the Anglo-Saxon times that in the Norman 
 period the collections of private law found occasion to remind 
 their contemporaries of its original signification. Thus, in 
 the laws of Eadward the Confessor we read (cap. 32), " Greve 
 autem nomen est potestatis ; apud nos autem nihil melius videtur 
 
 (l a ) The alteration of title is the tion must have only materially af- 
 
 first change referable to the Danish fected the constitution of the army, 
 
 times. The substantial change made The holding of the county court in 
 
 by Cnut is of more importance, when such an extensive district was prac- 
 
 he divided the country into four con- tically impossible. The old smaller 
 
 eiderable provinces, in 1017. Wessex county districts remained in existence, 
 
 is reserved by Cnut for himself ; East as court assemblies, in which now the 
 
 Anglia is entrusted to Thurkill; Shir-gerefa regularly presided. Hence, 
 
 Mercia to Eadric Streona (who, as an with this change, a separation of the 
 
 Anglo-Saxon, still bears the title of civil and military administration was 
 
 Ealdorman) ; Northumbria to Eric, as brought about, 
 an upper governorship. This altera-
 
 52 Constitutional History of England. 
 
 esse, quam pr&fectura. Est enim multiplex nomen: Greve 
 enim dicitur de scire, de waepentagiis, de hundredo, de burgis, 
 de viUis." 
 
 In the statutes the appellation cyninges-gerefa is accord- 
 ingly not unfrequently carefully added to distinguish the royal 
 gerefa in the popular court from private gerefas (Alfr. 22, 
 84; Cn. i. 8, ii. 33). The county administration of the united 
 kingdom afforded, as the royal rights were increasingly de- 
 veloped, the most urgent occasion for the appointment of such 
 an official, who was called by the king in his public edicts 
 "his gerefa: " "If one of my gerefas will not do this, he is 
 guilty of disobedience towards me, and I will find another 
 who will" (Athlr. ii. 26). Equally significant in relation to 
 the official status of the gerefa is the official penalty or 
 punishment for disobedience, with which he is summarily 
 threatened in case he allows himself to be bribed (Athlst. v. 
 1, sec. 3) ; if in his office of judge he passes an unjust sentence 
 (Edg. iii. 3) ; if he does not keep the proper court day (Edw. 
 ii. 7, 8) ; if he does not collect the fine for refusal of justice 
 (Edw. ii. 2) ; and if he neglects his duty in maintaining the 
 peace (Athlst. ii. 26, pr. v. 1, sec. 2 ; vi. 8, sees. 4, 11). The 
 frequent mention of the punishment for disobedience (ofer- 
 hyrnes) and deposition in case of non-fulfilment of duty, 
 mark the personal position of this powerful officer. Although 
 with the. ever-increasing importance of the office an eminent 
 local man was generally chosen to fill it, and at times and 
 in certain localities regard might be paid to the wishes of the 
 county assembly, yet there is here even less appearance of 
 an elective office than in the case of the Ealdorman. 
 
 In the official business of the Shir-gerefa his financial duties 
 and the management of details of business stand in the fore- 
 ground. Whenever royal demesnes (Athlst. ii. pr.), folkland, 
 usufruct, and other royal dues, have to be superintended in 
 a county district, the Shir-gerefa is the controlling official, 
 unless a more special administration has been organized. 
 Without prejudice to the Ealdorman's office, he was always 
 regarded as the responsible officer of accounts. The same 
 intimate connection with the royal revenues brings the Shir- 
 gerefa also within the sphere of the military, legal, and 
 police jurisdictions. 
 
 1. When the military array was called out, the first duty 
 was to collect the fines for neglecting to appear, and money 
 contributions for the equipment of the soldiers, which came 
 in when the contingents were apportioned (" Tributa expedi- 
 tionalia," Cod. Dipl., No. 362). In the whole business of 
 equipping and apportioning the contingents the Shir-gerefa 
 acted as the Ealdorman's assistant. Where delay would be
 
 The Offices of Ealdorman and Shir- Gerefa. 53 
 
 dangerous, he occasionally leads his troops in person against 
 the invading pirates. For like reasons he heads the hastily 
 summoned soldiery for the pursuit of peace-breakers (Athlst. 
 vi. 8, sec. 4). The employment of the militia organization 
 for police purposes necessarily required a local officer. In 
 later times, when the Earl more and more retired into the 
 position of an upper governor, the Shir-gerefa, sitting with 
 the Thanes in the county court, probably conducted the current 
 business of the militia and police administration as completely 
 and as regularly as he certainly did the legal business. 
 
 2. In the legal department the getting in of fines (Edw. ii. 
 2) and the confiscation of forfeited estates (Codex Dipl., No. 
 328, 1258) was without doubt the primary business of the Shir- 
 gerefa. A further duty was to carry out the various sentences 
 of the court (Athlr. i. 4, pr. sec. 1 ; On. ii. 33). 
 
 In his presence contracts of sale and exchange bargains 
 were concluded (Athlst. ii. 10 ; Edm. iii. 5). The Ealdorman 
 and the bishop are the regular presidents of the great county 
 court ; but even here the Shir-gerefa, according to- the records, 
 is the assistant of the Ealdorman (Codex DipL, No. 765), and his 
 presence in the capacity of financial officer is indispensable. 
 
 But we find him already in the older statutes as the sole 
 justiciary of the king in the popular court, especially in trans- 
 actions touching fines and forfeits (Withr. 22 ; Alfr. 22, 34 ; 
 Edw. i. pr. ; Athlst. ii. 22). In later times, the more the 
 Ealdorman is restricted to the military command of the greater 
 provinces, the more entirely does the Shir-gerefa become the 
 regular leader of the Shir-gemote, and down into the Norman 
 times there exists a condition of things, in which the holding 
 of the county court by the Shir-gerefa is regarded as a time- 
 honoured custom. 
 
 3. In the business of maintaining the peace, the gerefa is 
 again the coadjutor of the Ealdorman. He must in his shire 
 " before all else undertake the responsibility that all keep the 
 peace " (Athlst. vi. 10). Police functions especially are allotted 
 to him, which would be hardly suitable to the Ealdorman in 
 his high and princely position, such as tracking cattle-stealers 
 (Athlst. vi. 8, sec. 4) ; taking steps against the harbourers of 
 thieves (Athlst. vi. 8, sec. 2), the control over the completion 
 of bargains of sale and exchange, etc. "If there be a man 
 there who is untrustworthy towards the people generally, the 
 king's gerefa shall go forth and take surety for him " (Athlr. 
 i. 4). As royal executive officer he had also to assist the 
 Church in getting in its dues and in other civil matters (Athlst. 
 i. pr., sec. 4 ; Edg. i. 3 ; Athlr. viii. 8, 32 ; Cn. i. 8). (2) 
 
 (2) As to the position of the Shir- the word "grafio" contains abundant 
 gerefa Spelman'a Glossariutu, under material, which is the basis of all the
 
 54 
 
 Constitutional History of England. 
 
 If the administration of the county in these points was 
 centred more and more in the hands of the Shir-gerefa, this 
 must certainly be true, in a still greater degree, of the inferior 
 local jurisdiction in the Hundreds. In the most prosperous 
 period of the Anglo-Saxon kingdom, the Hundred Court was 
 held twelve times a year as the common court for ordinary 
 disputes between the freemen (Edw. ii. 8 ; Edg. i. 1 ; Cn. ii. 
 17). By degrees the more special obligations to be fulfilled 
 by the Hundreds accumulate to maintain the police control, 
 to bring their members before the court, and to pursue 
 thieves (Edg. i. 5 ; Cn. ii. 20 ; Hen. i. 8, sec. 2 ; Will. i. 22, 
 iii. 8, etc.) It might have been supposed that, in view of 
 this, each Hundred had a Hundred-gerefa appointed by the 
 king, but this is not anywhere mentioned in the records. 
 In the "Constitutio de Hundredis" (Edg. i. 2, 4, 5), a 
 " hundredes-man " is named, but in intimate connection with 
 the tithing-man of the militia, and appointed for special 
 police-business, and it appears that by this name a special 
 officer of the militia is intended, who may be compared with 
 the " chief constable " of later centuries. But on the other 
 hand, where the presidents of the Hundred Assembly gene- 
 rally are referred to, the " Shir-gerefa " is not definitely 
 
 English traditional explanations of the 
 subject (see also Kemble, "Anglo- 
 Saxons," ii. c. 5, especially the list 
 of names of the Shir-gerefas in the 
 eleventh century, Kemble, ii. 141-143). 
 The disputed points are the follow- 
 
 ing : 
 
 1. As to the derivation of the word 
 gerefa (as of the German " graf ") The 
 derivation from " grau," or " gravio " in 
 the sense of senior has been set aside by 
 Grimm. The derivation attempted by 
 Grimm from "ravo," tignum, tectum, 
 domus, aula, according to which it 
 should mean a " comes," or " socius " 
 (Deutsche Grammatik, ii. 736 ; Kecht- 
 salterthumer, p, 753), is quite as far- 
 fetched and incredible as that of Lam- 
 bard from " gereccan " regere ; and that 
 of Kemble from " rof " or " refan," cla- 
 mor, clamare, bannire, bannitor. Spel- 
 man derives it from " reafun," to rob, in 
 the sense of the later feudal " distress " 
 as apply ing to the collector of the royal 
 fines. With this would agree the later 
 usual form, " reeve," as would also the 
 real position of the gereta, which is 
 rendered into Latin by exactor. This 
 corresponds also to the etymology of 
 the word " Schultheiss," in Germany 
 (see Max Miiller, Lectures, ii. 231). 
 
 2. Whether, in addition to the Shir- 
 gerefa, there existed other principal 
 
 officers of the shire, is a doubtful point 
 suggested by the fact that in the statutes 
 sometimes a " shirman " is mentioned, 
 as in Ina, cap. 8, where the shirman 
 or other judge (Deman) is intended. 
 In the Codex Dipl. an "^Ethelwiue 
 scirman " occurs (No. 761) ; but in 
 another place he is called " ^thelwine 
 Shir-gerefa." In these same statutes 
 occur the forms " scirigman," " scires- 
 man," " scireman ; " (Nos. 761, 732, 929, 
 972, 1288). By these names may simply 
 be meant the Shir-gerefa, as Kemble 
 and Schmidt conclude ; but it is also 
 possible that there was a special " scir- 
 man " for military organization, and for 
 certain police functions, as an elective 
 officer of the old order. 
 
 3. The opinion formerly current in 
 England that the Shir-gerefa was ori- 
 ginally an elected popular officer, has 
 no other foundation than the passage 
 quoted above (Leges Edw. Conf. de 
 Heretochiis, c. 32a), "sicut et vice- 
 comites provinciarum etcomitatuum eligi 
 debent ; " the style alone of which 
 sufficiently designates it as expressing 
 merely the opinion of the private author. 
 The Anglo-Saxon accounts taken from 
 statutes, documents, and historians all 
 indicate a free appointment and de- 
 position of the Shir-gerefa at the will 
 of the king.
 
 The Offices of Ealdorman and Shir- Gerefa. 55 
 
 mentioned, but the "king's gerefa." "I will that every 
 gerefa hold a gemot every four weeks " (Edw. ii. 8) ; " that a 
 gemot be holden in every Wapentake, and that the twelve 
 oldest Thanes go thither and the gerefa with them " (Athlr. 
 iii. 3). In the general regulations for magistrates, gerefas 
 are, as a rule, mentioned (Edw. i. 1 ; Edw. ii. 2; Athlst. ii. 
 26, iv. 7, v. 1, vi. 11). We can only conclude from such 
 language that the administration of the Hundreds was not 
 thoroughly uniform throughout the country ; as some Hun- 
 dreds, and many districts combined with the Hundreds, had 
 special magistrates. But apart from this, the official business 
 of the Shir-gerefa, his especial financial, legal, and police 
 duties were so bound up with the Hundred Assembly, that 
 he must have been the actual prefect of all Hundreds which 
 were not exempted from his control. This is identical, too, 
 with the state of things which in the Norman period we find 
 to be the customary and ancient one. (2 a ) 
 
 III. 11 on a I CStrlfaS for narrower districts and townships, 
 and for special administrative purposes, in addition to the 
 Shir-gerefa, arose from the form which the royal rights and 
 the territorial conditions had taken, all which have been 
 described above (Chap. III. sec. 3). 
 
 Firstly, in Hundreds, and even in still greater sub-districts 
 of a county, special magistrates might be appointed, as the 
 royal gerefa in the Thing of the five burgs (Athlr. iii. c. 1), 
 which was a special district of Danish colonists, where he 
 was even appointed to sit side by side with the Ealdorman. 
 According to another principle, the great royal forest-districts 
 led to the appointment of the Swan-gerefas, who occur as early 
 as Ecgberht's time (Codex Dipl., 219), but who in the later 
 "Constitutio de foresta " of Cnut are the chief officers for the 
 administration of forests. The gerefa system extends also to 
 
 (2 a ) Whether the Shir-gerefa was were united into " Lathes " for the ad- 
 the regular president of the Hundred ministration of justice. Later times 
 Court, or whether there were special prove that the sittings of several Hun- 
 under-magistrates in the Hundreds, dreds were generally taken together, 
 cannot be categorically decided. But and held at one and the same time ; 
 the negative proposition can be main- and in like manner later conditions of 
 tained, that the very frequent mention things show us that the sheriff could 
 of the Hundreds and their gemotes appoint substitutes, on his own re- 
 in later times must have led to the sponsibility. The legal collections of 
 mention of the Hundred-gerefa, had the Norman period do not afford re- 
 such an officer belonged to the con- liable proof on this question. In the 
 stitution of the Hundred. Doubts Leges Hen. i. 8, sec. 1, we read, " Presit 
 might arise, in view of the large Hundredo units de melioribus et vocetur 
 number of Hundreds, in each of which aldremannus ;" 91, sec. 1, "Aldremannus 
 a single man could not hold a court hundredi." An Ealdor of a Hundred 
 every four weeks, but in the majority only occurs in Edg. iv. 8, 10, and evi- 
 of counties the number was so moderate dently signifies the magistrate, and not 
 that there would be no impediment. a particular title of office. 
 In Kent the numerous small Hundreds
 
 56 Constitutional History of England. 
 
 townships; Burh-gerefas, or simply gerefas, are found in 
 towns which had formed round a burg, on old demesne lands, 
 folkland, or under special royal protection ; a Port-gerefa in 
 towns which, as commercial centres, were of special impor- 
 tance for the collection of the royal dues, as in London and 
 Canterbury. In London he has the position of a Shir-gerefa. 
 The royal letters were addressed to "the Ealdormen, Bishop, 
 and Port-gerefa ; " and high officers of the royal household, 
 as weD as great Thanes, are mentioned as holding these 
 lucrative posts. A Wic-gerefa is found as royal magistrate in 
 smaller townships. In many considerable towns the royal 
 magistrate of the Burh-gemote retained even in later times 
 this less pretentious title. Even in London in the seventh 
 century the king's Wic-gerefa is mentioned, whose place was 
 in later times taken by the Port-gerefas. 
 
 A similar system of gerefas existed, as we have mentioned, 
 for the great private landed estates. Bishops, Ealdormen, 
 and greater and lesser Thanes had to raise dues from their 
 estates, to settle the disputes of their dependants, and to take 
 upon themselves the responsibility in the numerous pro- 
 clamations of the military array, and of the maintenance of 
 the peace. Such lords' " Tungerefas " might be simple 
 bailiffs. In greater townships, and where an extended juris- 
 diction (saca et soca) had been accorded them by royal grant, 
 they might actually have the importance of a royal Wic- 
 gerefa. The term " socn-gerefa," however, only occurs once 
 in the old Corporation Statutes of London. The landed 
 Thane, too, is himself regarded as the responsible wielder 
 of an official authority (Athlst. iv. 7). (3) ' 
 
 The universal system of royal gerefas pervades the Anglo- 
 Saxon administration in all directions, and forms a remark- 
 able feature in it. From the days of ^Elfred numerous 
 
 (3) As to the special gerefas for dis- Glossaium, 598). 
 
 tricts, towns, and administrative func- The private magistrates of the 
 
 tions, see Kemble ("Anglo-Saxons," Bishops, Ealdormen, and Thanes may 
 
 ii. c. 5, pp. 144-154). also include the humblest bailiffs. 
 
 The Burh-gerefa is less frequently The gesitheundman, who (Ine, 63) is 
 mentioned in statutes and records than described as travelling about " with 
 the importance of the Burh-gemote his gerefa, his smith, and his nurse," 
 would lead us to expect. Some names certainly took with him no magisterial 
 of gerefas in royal Burhs are given by officer, but merely a menial servant. 
 Kemble (ii. 146). A Port-gerefa is That the landowners might be re- 
 met with in London, Canterbury, Bath, presented by their gerefa in the royal 
 and Bodmin (Kemble ii. 148). In court in taking oaths in certain special 
 London the two Port-gerefas appear cases is recorded already by Athlr. i. 
 in early times in a certain connection sec. 1. Much that is incapable of proof 
 with the Shir-gerefa of Middlesex touching the election and business of 
 (in the so-called libertas civitatum, the lords' gerefa is narrated (as usual) 
 appendix, xxiii. 4). by Anstey, "Guide to Constitutional 
 
 The Wic-gerefa is met with also in History," p. 125. 
 Winchester (Chr. Sax. 897; Schmid,
 
 The Offices of Ealdorman and Shir-Gerefa. 57 
 
 judices, prsefecti, prsepositi, are appointed, all of which names 
 are but Latinized expressions for a word of wide signification 
 "gerefa." The body of these officials forms a uniform whole, 
 as is shown by the fact that in Eadgar's time the King con- 
 firms the appointment of the whole body of his father's officials 
 (Edg. iv. 2, pr.). The financial rights and the general develop- 
 ment, of the royal powers had led to this system of royal 
 appointments. The Anglo-Saxon Chronicle makes King 
 Withred say at the National Assembly at Baccanceld in 694 : 
 "It is the king's business to appoint Boris, (?) Ealdormen, 
 Shir gerefas, and Judges " (Monum. Hist. Britt. i. p. 324). 
 In an Anglo-Saxon record (Cod. Dipl. 996) we find the same : 
 " illius autem est, comites, duces, optimates, principes, prsefectos, 
 judices sseculares statuere." This record is, indeed, not genuine, 
 and betrays the hand of a cleric ; but, like the most of these 
 documents, it is of very ancient date, and expresses the con- 
 ceptions which were regarded as traditional. The expression 
 "royal Thaneship " embraces frequently in this sense the 
 sum total of magisterial offices. Offences of officials are 
 generally to be visited with fine and loss of thegnship 
 (" thegenscypes et omni judiciaria dignitate privatur," Leges 
 Hen. i. 34, sec. 1). In close connection with landed property 
 this thaneship spread over the whole country, and supplanted 
 the popular offices and popular elections of the ancient con- 
 stitution. Of elections in the modern sense of the term 
 there is no reliable trace to be found, neither in the imperial 
 nor in the county administration (Palgrave i. 118). 
 
 The fully developed Anglo-Saxon political State is a joint 
 creation of great landed interests and a royal prefectural 
 system, scarcely containing any of the characteristics of a 
 Germanic constitution such as Tacitus describes. The 
 actual State is embodied in comparatively few persons, 
 namely, the Bishops, Ealdormen, and Shir-gerefas, appointed 
 by the King. The local administration ramifies into a system 
 of gerefas in narrower circles, interwoven with a similar 
 system of manorial magistrates. A lowering of the political 
 importance of the freehold tenants, of the landless freemen, 
 and of the whole labouring population in consequence, is 
 unmistakable. But the constitution of the courts modifies 
 this character. In the Hundred Court, and even in the 
 Manorial Courts, the passing of sentences is not an individual 
 act of the magistrate, but is a determination of the freemen 
 acting in the capacity of judges and compurgators. In the 
 County Court the royal magistrate is surrounded by still more 
 influential Witan as Judges. Similarly the county adminis- 
 tration in military affairs and the maintenance of the peace is 
 carried on in active co-operation with the Thanes of the county,
 
 58 Constitutional History of England. 
 
 and probably too with deputations from the Hundreds and 
 analogous districts. On a higher level the King administers 
 justice in the Witenagemote with the counsel and consent of 
 still more powerful prelates and great Thanes. That this 
 strong aristocratic element still co-exists with an universal 
 system of royal magistrates is explained by the general 
 composition of the State. There existed a number of powerful 
 landowners, but their landed interests were not concentrated 
 at one point. Originally there were no great estates, which 
 might be compared to the " possessiones " which existed in the 
 old Eoman provincial soil. In the territory of the small king- 
 doms of former days a numerous middle Thanehood had grown 
 up with an average possession of five hides each ; but there 
 were no separate great estates, whence a territorial supremacy 
 could have proceeded. After the union of the kingdoms the 
 royal possession and the royal power towered so far above the 
 most powerful great Thane as to render it practicable to 
 maintain a central administration by means of governors 
 and appointed magistrates. But on the other hand the 
 Prelates and the Thanes were, as a body, so numerous, so 
 richly endowed with estates, and so firmly established in their 
 landed rights, that as a class they almost engrossed the 
 magisterial offices. In harmony with this condition of things 
 is the concentration of the central authority, "the King in 
 the Witenagemote " as an assembly of landlords invested 
 with offices and officials possessed of land (below, cap. VI.). 
 Its composition is grounded on the right of appointing, of 
 summoning, and of granting, which the King exercises within 
 the army, law, police, and Church constitution; and which 
 again ministers to the united influence of Prelates and great 
 Thanes at court and in the Witenagemote. The preponderance 
 of these families, often closely connected with each other, 
 compels the King more and more to fill the important offices 
 " with their assistance," and thus at an early period a state 
 of things is established in which the power of the great 
 landed interests does not show itself in the form of con- 
 centrated feudal small states, but in a corporate form with 
 a controlling influence upon the exercise of royal powers.
 
 CHAPTEE V. 
 
 THE conversion of the heathen Anglo-Saxons by resolutions 
 of the King in the National Assembly had led to the foundation 
 of a bishopric in each of the several kingdoms. Towards the 
 close of the seventh century these bishoprics were united 
 under an Archbishop Theodore, upon whom the Pope's choice 
 had fortunately fallen, and became in consequence an element 
 of centralization which wrought powerfully in preparing the 
 way for the subsequent union of the kingdoms. The Church 
 thus bound together was and remained a national Church, of 
 an essentially different nature from that existing among the 
 Britons and in Roman countries. Her origin, her institu- 
 tions, and her establishment were the free act of the organized 
 powers of the State. Her clergy belonged, with few exceptions, 
 to the native families. Her constitution did not originate in 
 an adoption of foreign institutions, but in national necessities. 
 In this Church also, the wise and the ignorant, the teacher 
 and the disciple, certainly stand in relations to each other, to 
 which the organization of the militia, the courts, and the 
 maintenance of the peace are inapplicable. As a school for 
 the people, the Church must at all times be organized from 
 above downwards ; she performs her functions only by means 
 of officials who are dedicated entirely and solely to her service, 
 and independent of birth and property. The union of the 
 kingdom only affected the constitution of the Church so far 
 as to gradually remove undue inequalities in the formation 
 of the dioceses, and to bring the ecclesiastical districts into 
 as much harmony with the division into shires as appeared 
 necessary for a common transaction of spiritual and temporal 
 affairs. 
 
 I. Sf)e Institutions of t!) (JDf)imf) comprise the three grada- 
 tions next mentioned. 
 
 1. The bishoprics, which originally were identical with the 
 territory of the separate kingdoms, remained unchanged in
 
 60 
 
 Constitutional History of England. 
 
 the smaller ones, whilst in the greater kingdoms of "Wessex 
 and Mercia the administrative principle of division into shires 
 led to a corresponding increase in the ecclesiastical districts 
 by a division into eight dioceses. And so at the close of the 
 Anglo-Saxon period there were in existence, with some changes, 
 seventeen dioceses, the majority of which began as early as 
 the time of Theodore to unite and form provincial synods 
 under the direction of the Metropolitan of Canterbury. A 
 second archbishopric for the group of northern dioceses became 
 consolidated after many vicissitudes, but it was unable, in the 
 disordered condition of affairs in the north, to attain, either 
 externally or internally, to perfect equality with Canterbury. 
 Every Archbishop and Bishop is, according to Anglo-Saxon 
 ideas, the original holder of ecclesiastical authority. In tem- 
 poral matters, too, he was " to take part in the sittings of 
 the court, adjust differences, and restore peace in conjunc- 
 tion with the temporal judges, prevent wrong-doing in taking 
 of oaths and in trials by ordeal, connive at no unjust measure 
 or false weight ; in short, to keep watch over the maintenance 
 of spiritual and of temporal law." (Thorpe, "Institutes of 
 Ecclesiastical Polity," ii. 312.) (1) 
 
 trati ve principle of the shires, according 
 to which these dioceses contained one, 
 two, or three counties each, was here 
 the rule. In Mercia from the (12) 
 head bishopric of Lichfield (in later 
 times Chester and later Coventry) 
 were severed the bishoprics ol (13) 
 Worcester, (14) Hereford, and (15) Lin- 
 coln. The northern kingdom of Deira 
 had retained as its chief bishopric, that 
 of York [16], which extended also over 
 Bernicia, and after the formation of 
 the great kingdom of Northumbria, 
 stretched still further. As a separate 
 bishopric, arose that of Lindisfarne 
 [17), later Durham. A considerable 
 portion of the great diocese of York 
 went over to the Scotch bishops. In 
 an anomalous position stood the Bishop 
 of the Isles of Sodor and Man, who 
 after the Norman period was subject to 
 the Archbishop of Drontheim, and 
 came later under private patronage. 
 There is here to be found no connection 
 of any sort between these and the 
 bishoprics of the old British Church. 
 [Palgrave, i. 152-154.] The aboacy of 
 Ely was as late as the reign of Henry I. 
 first raised to the rank of a bishopric ; 
 and in 1109, the bishopric of Carlisle 
 was founded for Cumberland. The four 
 bishoprics of Wales, by the conquest 
 of the country some centuries later, 
 were incorporated with the English 
 
 (1) As to the formation of the Anglo- 
 Saxon Church, see especially Palgrave, 
 " Commonwealth," cap. xi. ; Kemble 
 ii. c. 8; and Henry Soames, "The 
 Anglo-Saxon Church" (1845-6); Lin- 
 gard, "History of the Anglo-Saxon 
 Church" (1845); Dugdale, "Monas- 
 ticon Anglicanum " (Edited by Galley, 
 &c., London, 1817); Lappenberg, i., 
 pp. 185-195. ("Die Kirchliche Geo- 
 graphie der Angel-Sachsischen Zeit."} 
 The historical grouping is as follows: 
 In the little kingdom of Kent (1) the 
 archbishopric of Canterbury was and 
 continued to be the mother-bishopric 
 of the whole of England, besides which, 
 in quite early times, (2) the bishopric 
 of Rochester had arisen. For Essex 
 arose (3) that of London ; for Sussex 
 (4) Selsea, in later times Chichester. 
 In East Anglia (5) the bishopric of 
 Dunwich in Suffolk was first founded, 
 from which again for Norfolk (6) that 
 of Elham, later Norwich, was separated 
 off. For the great territory of Wessex 
 (7) the bishopric of Dorchester was 
 first founded, from which (8) that of 
 Winchester was severed ; then was 
 further founded a third (9) bishopric at 
 Sherborne, later removed to Old Sarum 
 and then to Salisbury. From the last 
 named again were separated off (10) the 
 bishopric of Wells, and (11) of Kirton, 
 afterwards at Exeter. The admiuis-
 
 The Anglo-Saxon Church. 61 
 
 2. The monasteries and religious corporations were of special 
 importance in this epoch. A monasterial institution was 
 the first need of Christianity, as a gathering-place and shelter 
 for missionaries, teachers and scholars. The exigencies of 
 sustenance, personal safety, and mutual help in their mission- 
 work, kept on foot for a long time this mode of living in 
 common ; the late origin and very diverse organization of the 
 parish Churches was favourable to it. The number and 
 endowment of monasteries, and especially of nunneries, is 
 ever on the increase. At an early period men and women, 
 even of royal lineage and from the families of the great 
 Thanes, show a predilection for entering upon monastic life. 
 The clergy of the great cathedral churches retain in later 
 times their original monasterial connections and institutions, 
 according to which the prebendaries continue to bear the 
 title of " monks." According to the conditions of society 
 of those days, the foundation of superior schools could be 
 effected only by a union with the members and possessions 
 of such corporations ; just as the beginnings of charitable 
 and pious foundations could only gain stability and endurance 
 in the permanent conditions of property afforded by such 
 corporations. " In the neighbourhood of the cathedrals were 
 gathered together the maimed, the lame, the blind, the home- 
 less and friendless, to be fed, clothed, and cared for for God's 
 sake" (Kemble, ii. 440). This may explain the dispropor- 
 tionate favouritism shown to these corporations by the most 
 enlightened monarchs, such as Alfred the Great, espe- 
 cially under the heavy visitations of the Danish period. The 
 Anglo-Saxon period concludes with a great number of perma- 
 nently endowed monastic cathedral corporations, irregularly 
 scattered throughout the kingdom, and with very unequal, and 
 in some places over-wealthy possessions. (2) 
 
 Church system. The formation of the honoured nunneries, assumed a national 
 offices here was exactly opposite to character. The real need of the times 
 the process of formation in the State we must estimate according to the views 
 first the formation of the Bishops' of an JElfred, and not from the later 
 sees, then that of the parishes; in and changed position of affairs. Asser 
 a much later period that of the arch- tells us that JElfred was wont to dedi- 
 deaconries and rural deaneries. The cate a full half of his royal revenues 
 archdeaconries are associated with the to ecclesiastical purposes : of this he 
 county districts, and the rural deaneries assigned a fourth to the poor, a fourth 
 with the Hundreds of later times. to the two monasteries he had founded, 
 (2) The monasterial foundations another fourth was set apart for the 
 (Kemble, ii. c. 9) were originally school founded by him, and the re- 
 promoted by the customs of the maining fourth for the neighbouring 
 early missionaries. The clergy lived churches and monasteries and their 
 in communities, even when they were ministers. Both spiritual and temporal 
 not monks, and followed the rule of the nobles spent considerable sums in 
 Benedictine or some other order. Under charity, in its primary signification; 
 the protection of the kings this spirit of a portion of the booty made in war, and 
 community, especially in the highly a portion of the fines payable to the
 
 62 Constitutional History of England. 
 
 8. The foundation of parish churches in England took 
 place slowly and imperfectly. For a great length of time, 
 according to Baeda, the bishops still wandered about their 
 dioceses with their assistant clergy ; and even in the middle 
 of the seventh century Saint Cuthbert journeyed from village 
 to village. But from the days of Archbishop Theodore the 
 creation of settled parishes began in greater numbers, slowly 
 extending from the southern parts of the country towards 
 the north ; endowed often with parcels of land by generous 
 Thanes, they became after the introduction of the system of 
 church-tithes more uniformly enriched by the tithes of their 
 parochial districts. The Canons of Archbishop Ecgberht (Ex- 
 cerpta Ecgberhti, Thorpe ii. 100) show us what the early 
 Church of those days aimed at. The parish church was to 
 be endowed with a hide (mansus) of land, and this hida should 
 remain free from all public burthens, whilst all property 
 beyond this amount should be subject to manorial dues and 
 State burthens. The laws of Eadgar and Cnut of a later 
 period contain the rule that every landowner may endow a 
 church situate on his Bocland, with a third of the tithes, 
 provided there be a graveyard united with it; where there 
 is no graveyard, the tithes are payable as before to the 
 "parent " Church, and a new income is to be provided by its 
 founder for the chapelry. 
 
 These attempts, similar in character to the ordinances of 
 the Emperor Louis (Pertz ii. 626), were, however, only partially 
 successful, and even at the close of the Anglo-Saxon period 
 the endowments were somewhat scanty compared with the 
 possessions of the cathedral churches and abbeys. Mean- 
 while, the Church income, which was at first centralized, 
 becomes more and more distributed amongst and firmly 
 attached to the bishops' sees, monasteries, and parsonages. 
 A settled endowment of the parsonages became the rule in the 
 ninth century. In Domesday Book an " Ecclesia sine terra" 
 is a rarity. From the manner of the foundation there resulted 
 an extensive right of patronage over the benefices. The 
 Norman Domesday Book, in which the list of them is imper- 
 fect, specifies hardly more than 1700 churches, endowed with 
 parcels of land of from five to fifty acres, and showing a very 
 unequal distribution of the ecclesiastical benefices in the 
 various parts of the kingdom. (3) 
 
 Church, was also ordered to be paid to drals formed just those permanent insti- 
 
 the poor. All such foundations, how- tutions on which the system depended, 
 
 ever, found no stability in the system (Kemble, ii. c. 11.) 
 
 of temporal administration, for such (3) As to the nature of the eccle- 
 
 contributions were speedily spent and siastical benefices, Domesday Book 
 
 forgotten ; hospitals and almshouses alone gives us reliable information 
 
 belonging to the monasteries and cathe- (Ellis, Introd. i. pp. 286, 295). Glebes
 
 The Anglo-Saxon Church. 63 
 
 These institutions of the Church, as regards her property 
 as well as her ministers, are firmly bound up with the 
 secular state. 
 
 II. Wyt ^roptrtg of $ Cftttrcf) attained an extent which, 
 at the close of the Anglo-Saxon period, towers far above the 
 importance of the royal revenues. Intellectual and industrial 
 labour alike require property for their maintenance and de- 
 velopment ; but intellectual labour has been always compelled 
 to associate itself with the existing system of property. In 
 the Middle Ages it was obliged to acquire great landed estates 
 in order to keep on terms of equality with freehold owners. 
 The amount of Church property, as a whole, long retained 
 that relative importance which the intellectual life, centred 
 in the Church, might well claim, in comparison with military 
 life or industrial pursuits. The separate elements may be 
 grouped in the following order : 
 
 1. The landed property of the Church had to maintain itself 
 on an equal footing with the fully secured allodial estate, at 
 a time when such property was a necessary condition of full 
 legal capacity and equality. But it is an old experience that 
 recently converted races know no bounds in their liberality 
 towards the Church. Following the example of King ^Ethel- 
 bert, who bestowed his palace with its lands upon St. Augustine, 
 the Anglo-Saxon kings and magnates also made rich gifts. 
 The manifold Anglo-Saxon records lead one to suppose that 
 almost every princely personage bestowed some such gift on 
 departing this life. A person entering a monastery not un- 
 frequently brought his whole fortune with him ; the children 
 of distinguished parents brought at least a donation of lands. 
 Recovery from severe illness and escape from disasters, as 
 well as joyous events, were commemorated by donations, 
 which the clergy, whose co-operation at the making of wills 
 was indispensable, commended to the consciences of rich 
 sinners agitated by the fear of death. Even the severe losses 
 
 of more than 50 acres (as one of 83, 79, sec. 6 ; App. iv. 3). The mainte- 
 one of 100, and another of 120 acres of nance of the parish church afforded the 
 pasture land) are solitary instances ; on first reason for the participation of 
 the other hand, a church without land the community in the control of the 
 is also a rarity in the great register Church property. The analogy of the 
 of land. But churches without land parochial system of northern countries 
 appear to have been omitted, owing to and of the later rights of the parish- 
 the original object of the book. In the loners in England justify the con- 
 legislation, the continual increase in elusion that the Saxon parishioners 
 the number of parish churches is visible also participated to a certain degree in 
 in the distinction of various classes. In the management of the Church property 
 a principal church (hlclfod mynster) which had been formed from their con- 
 breach of the peace is visited with a tributions. The Church of the later 
 penalty of 5 ; in ordinary churches of Middle Ages, when her pretensions 
 120 shillings ; in still smaller of 60 were at the highest, would scarcely 
 shillings, and in chapels of 30 shillings have recognized such participation, had 
 (Athlr. viii. 5 ; Cn. i. 3, sees. 1, 2 ; Hen. it not been founded on ancient custom.
 
 64 Constitutional History of England. 
 
 which the Church experienced through the destructive frenzy 
 of the Danish pirates were soon made good by donations 
 from converted Danish magnates. According to the manner 
 of property in those days, to landed estates were attached 
 reserved dues, services, and rights of protection over tenants. 
 Profitable rights of this description might also be the im- 
 mediate subject of the bounty. Eoyal donations especially 
 include tolls and market dues, forests, harbours, fisheries, 
 mines, and rights of pasturage. There are further attached 
 to great landed estates, the magisterial rights which had 
 become extended by grants, and the whole lordship over the 
 soil in its Anglo-Saxon conception. Thus arose the landed 
 property of the Church, almost continually growing and 
 increasing, until, in the case of many cathedrals and monas- 
 teries, it was equal to that of the temporal great Thanes; 
 and compared with it, the single parcels of land belonging to 
 the parish churches bore about the same proportion as the 
 small yeoman freeholds of that time bore to the lordships of 
 the Thaini regis. (a) 
 
 2. The payment of tithes was almost as important for the 
 permanent and uniform endowment of the ecclesiastical insti- 
 tutions as the possession of landed property. As in the whole 
 of Christendom, so in England as early as the end of the 
 eighth century, the united exertions of the clergy led to a 
 recognition of the right to tithes by the National Assemblies 
 of Mercia and Northumberland. A decided legal recognition 
 was first made in ^Ethelstan's " Constitutio de Decimw" since 
 which time the temporal power agreed likewise to these taxes 
 being raised by the royal gerefas. One third part of the tithes 
 was to be expended on repairing the church, a second for the 
 ministers of God, the remaining part for God's poor and for 
 needy labourers (Athlrd. viii. 6). Nearly every subsequent 
 reign confirmed afresh the legal liability to tithes with the 
 assent of the Witan. The Church accordingly gained a 
 
 (a) The landed property of the declared their wish to free the eccle- 
 Church is dealt with by Kemble, ii siastical estates within their realms 
 o. 10. To give an instance of the from " temporal burthens, labours, 
 unequal distribution of landed pro- duties, and contributions," but hereby 
 perty, it will be sufficient to mention only burthens attached to land were 
 that the district of Chilcombe (a part meant, and it is expressly declared 
 of the possessions of the bishopric of that the three common burthens, " ex- 
 Winchester) IB reckoned at 100 hides peditio exercitus, burgorum comtructio, 
 (Cod. Dipl. 642). However, such a pontium refectio," are not included, 
 concentration of estates, which might Few grants to the Church can be 
 have led to separate territories was just cited without the reservation of these 
 as little possible with ecclesiastical common burthens, which later juris- 
 estates as with temporal magnates, prudents have styled the " trinoda 
 from whose grants they principally neeessitas" (Palgrave, i. 156, 157, 160, 
 arose. It is true that King Withred 161). 
 of Kent and JSthelbald of Mercia
 
 The Anglo-Saxon Church. 
 
 65 
 
 right of direct taxation much earlier than the temporal 
 State, (b) 
 
 3. Besides the tithes there were periodical contributions of 
 minor importance, as burial-service fees, candle-dues, and 
 plough-alms, contributions which, at first depending on liber- 
 ality, became local customs, and were at last recognized 
 in the decrees of the National Assembly. To such belongs 
 also a Church rate (Ciric sceat), which was to be paid on St. 
 Martin's day by every free household, and regulated in a 
 certain proportion to the produce of household and farm ; but 
 a general carrying out of this measure, in spite of legal recog- 
 nition, was not achieved, and in Norman times it is only 
 met with as a customary tribute paid by certain individual 
 estates. As occasional sources of income may be mentioned 
 the numerous gifts made by believers, consisting of movable 
 goods, such as crosses, rings and jewels, provisions, etc. ; 
 which, in the wills of the Anglo-Saxon magnates, are extended 
 to presents of whole herds of horses, oxen, sheep, and pigs 
 "pro salute animse." (c) 
 
 III. 3tf)e political position of tfje <gcclesiastfcal pitnistm 
 shows a more complete and closer union between the Church 
 
 (b) The Church tithes are first men- 
 tioned in the written law in a synodal 
 decree of the year 786 (Selden, c. 8, 
 sec. 2), which proves their confirmation 
 by the temporal power by decrees of 
 the kings of Mercia and Northumber- 
 land in their National Assemblies. 
 Liability to tithes is next recognized 
 in the law of King Eadward and 
 Guthrum about the year 900 (E. et. G. 
 c. 6), briefly mentioned in Athlst. iii. 
 
 1, but at full length in an ordinance 
 respecting tithes (Athlst. i. sees. 1-5) 
 with two rather different texts. The 
 ordinance speaks only of the " assis- 
 tance " of the bishops, and is addressed 
 to the gerfas as an official notice. 
 Later recognitions are to be found in 
 Edw. i. 2 ; Edg. ii. 1, 2, 3 ; iv. 1, sees. 
 3, 4 ; Athlr. v. 11 ; vi. 17 ; vii. 1, sees. 
 
 2, 4, 7 ; viii. 6-9, 14, 15 ; Cn. i. 8, 11 ; 
 Edw. Conf. 7. 8. That a third of the 
 tithes is to be expended on repairing 
 the church is repeated by Athlr. vii. 
 6 ; but the fines payable to the Church 
 shall also be used for the same purpose 
 (Athlr. v. 57), that the bishop especially 
 (Edin. i. 5), and every one generally, 
 should contribute to the repair of the 
 church, by Cn. ii. 65. 
 
 (c) Among the small periodical con- 
 tributions, the Ciric-sceat has been the 
 subject of a prolix discussion, which 
 is connected with the disputed posi- 
 
 tion of the " Church-rate " of to-day. 
 Its nature has been nowhere exactly 
 described, yet there are many reasons 
 for believing that it was intended to 
 be a gift of the first-fruits of the field 
 after the model of the Mosaic law. 
 The mention of it in the statutes is 
 exceedingly frequent (Ine, 4, 6 ; Edg. 
 ii. 2, 3 ; iv. 1 ; Athl. vi. 18 ; vii. 4 ; 
 viii. 11; Cn. i. 10; ii. 11). The col- 
 lection of it was especially inculcated 
 upon the gerefas (Athlst. i. 4), under 
 threat of excommunication (Edm. i. 2). 
 It can therefore hardly be denied that 
 the legislation intended to recognize a 
 general Church contribution, but that 
 its levying found an obstinate resis- 
 tance in the opposition the yeomen 
 especially showed towards it, and was 
 accordingly, in spite of all ordinances, 
 only partially carried out. Kemble 
 (ii. 460, suppl. D.) endeavours to main- 
 tain a thoroughly fictitious view. A 
 good discussion of the question is found 
 in Schmid(Glossarium, 545-547). From 
 the success that attended their imposi- 
 tion, the innumerable absolution moneys 
 for fasts and penitences may be included 
 in the periodical Church tributes. From 
 the multiplication of these means of 
 grace the penitentiary books of this 
 period give an extraordinary picture of 
 the abuse of an idea originally proper 
 and moral. 
 
 F
 
 66 Constitutional History of England. 
 
 and the laity than in most countries of the continent. Whilst 
 Christianity in other countries took its rise in the poorer 
 classes of the population, in England the conversion began its 
 work with the kings, their households and followers, their 
 Witan and Comites, and spread downwards from them into 
 the communal and family life of the people. It was natural, 
 therefore, that the result should be a close connection with 
 family, community, and government. The clergy belonged to 
 the nation's " family-life," for, from the very first, they were 
 taken from all classes of society, from the king's son down to 
 the bond-theow. Monastic life, with its strict observance of 
 the rules of the order, certainly demanded the sacrifice of 
 family ties; but, on the other hand, the secular clergy were, 
 and continued to be, to a great extent, in the married state. 
 The injudicious zeal of Dunstan, indeed, endeavoured to 
 bend even the secular clergy under the rules of the order. 
 In a time of great abuses and a threatened alienation of the 
 Church, the clergy should belong exclusively to the spiritual 
 profession. The force of custom was, however, so strong in 
 the national Church that a score or two of years later the 
 ecclesiastical regime was not materially changed, and celibacy 
 did not become an established rule of the Anglo-Saxon 
 Church. The clergy belong to the civil community through 
 the liability of their corporate estates to the payment of 
 common burdens. With unimportant exceptions, the deeds 
 of grant even to the most favoured monasteries declare their 
 ever-recurring " trinoda necessitas " the perpetual liability to 
 " Brycgbote, Burhbote, and Fyrd " to which are joined many 
 other services reserved to the King ; whilst on the other 
 hand the Church participated in all rights and privileges of 
 landed property. Hence was preserved a feeling of common 
 interests and rights bound up in a close bond of union. The 
 Canons show that on the part of the Church there was no 
 attempt to obtain fundamental immunities in this respect, 
 even though a monastery here and there endeavoured in its 
 deeds of grant to acquire some special benefit. As an 
 established principle, the clergy remained subject to the 
 secular authority, viz. the royal military, legal, police, and 
 finance control; subject, however, to the following general 
 rules : 
 
 1. The obligation of the clergy to military service was not 
 abolished by any Anglo-Saxon statute, although no compulsion 
 was used towards the higher ordines. The latitude of ad- 
 ministrative arrangement of the militia in the County and 
 Hundred Assemblies readily allowed of substitution ; the 
 interests of neighbours, however, took care that the eccle- 
 siastical estates furnished contingents for the national defence
 
 The Anglo-Saxon Church. 67 
 
 as nearly as possible pro rata, and that the favour shown to 
 the Church should at all events not increase their own obliga- 
 tions. (1) 
 
 2. The judicial duties of the clergy were as follows : in a 
 dispute with the laity they must seek justice in the Hundred 
 and Shir-gemote, to the criminal jurisdiction of which they 
 were subjected, equally with the layman. Clergy appear 
 amongst the judging Witan (Alfr. 38, sec. 2). They appear 
 especially active in the administration of oaths, and in con- 
 ducting the ordeals (Edw. Conf. c. 9). Clerics perform the 
 functions of notaries in cases of contract, grants, and wills, 
 " quoniam tdbelllonum usus in regno Anglife non habetur " 
 (Matth. Paris, Hist. Hen. iii.), and appear also as taking 
 depositions (Edm. iii. 5 ; Athlst. ii. 10) ; under their super- 
 intendence marriages are contracted (App. vi. 8). They are 
 consulted as arbiters and councillors in actions at law. They 
 are employed everywhere as clerks of the court. Even the 
 office of Shir-gerefa was, in certain cases, filled by clerics, 
 and if the ecclesiastical canons in general forbid their exercise 
 of that office, it is only a proof that such an occupation 
 was legally permissible. A privilege is accorded the clerics 
 only in the case of taking of oaths, in which the application 
 of the ordinary principles would have led to hardships ; but 
 here at the same time the special credibility of a servant 
 of God was taken into consideration. This purgation by 
 oath was regulated and facilitated by the passing of special 
 laws (Athlr. viii. 15). Of more importance than such moderate 
 favours, appears the peculiar legal jurisdiction, which was 
 formed in the interests of the Church, in camis ecclesiasticis, 
 and for clerical delinquencies. This was without detriment 
 to the secular legal jurisdiction, and only applied to the new 
 relations which arose from the ecclesiastical ordinances, 
 and which could not be considered as suitable objects for the 
 judgment of the national courts in the form they then had 
 (Edw. et G. 12 ; Cn. ii. 48, 53). Beyond this an exemption 
 of the ecclesiastics from the secular judicial jurisdiction was 
 never established during the Anglo-Saxon period. (2) 
 
 (1) Immunity from military service astery, " expeditionem cum duodecim 
 was never directly stated (Palgrave, i. vasallis et cum tantis scutis exerceant" 
 156, 157). We find in times of danger (in 821 ; Cod. Dipl. 272). To look 
 the higher clerics frequently amongst to this was the duty of the Shir-gerefa. 
 the warriors and amongst the slain ; (2) As regards jurisdiction, Kemble 
 yet a personal summons of the clergy (ii. 378) rightly remarks that the 
 is never spoken of. An obligation to numerous precautionary measures con- 
 furnish soldiers according to the pro- tained in the statutes as to the manner 
 portion of ecclesiastical property is of conducting law suits by clerics, 
 expressly mentioned, and sometimes afford a complete proof of their sub- 
 even the customary number of the jection to the secular jurisdiction, as 
 troops, as in a large grant to a mon- an established principle. (He cites
 
 68 Constitutional History of England. 
 
 3, The principle by which they were subjected to the secular 
 criminal jurisdiction brought the ecclesiastics also under the 
 police jurisdiction of the Crown. The duty of maintaining 
 the peace was extended naturally and particularly to clerics. 
 On their landed estates they were responsible for their tenants, 
 servants, and dependants, with all the strict obligations that 
 later legislation imposed for the maintenance of the peace. 
 From the system of special peace proclamations, there resulted 
 a further co-operation of the ecclesiastical and secular 
 authorities to secure the peace of ecclesiastical persons, 
 possessions, and seasons, but this was founded upon the 
 " King's peace" (Will. i. 20). (8) 
 
 This universal interweaving of the clergy with the secular 
 community led further to their employment in the offices 
 of the middle and higher grades of the administration. In 
 the County Assembly the Bishop, Ealdorman, and Sheriff 
 preside together, but with this proviso, that matters of a 
 purely ecclesiastical character are generally determined 
 separately. Under these circumstances the Bishop could also 
 take cognizance of purely secular matters, such as the 
 control -over weights and measures, the rules of inheritance, 
 and other affairs, which appear in later times in England 
 as remarkable extensions of the ecclesiastical jurisdiction. 
 As the support of the ecclesiastical authorities is a duty of 
 the Shir-gerefa (Athlst, i. pr. sec. 4 ; Edg. i. 3 ; Athlr. viii. 8, 
 &2 ; Cn. i. 8), so also it is made the Bishop's duty to superin- 
 tend and support the Shir-gerefas. The punishments for dis- 
 obedience inflicted upon the gerefa who neglects his official 
 duties, or delivers an unjust sentence, are to be enforced by 
 the Bishop (Athlst. i. 26; Edg. iii. sec. 3). It is not clear 
 
 Athlr. 18, 19 ; Athlr. viii. 19-24, 27 ; of capital offences they were to be 
 
 Cn. i. 'Sec. 5 ; ii. sec. 41 ; Hen. i. confined in prison, until the sentence 
 
 64, sec. 8 ; 5, sec. 7 et seq. ; 57, sec. 9). of the Bishop had been passed (Edw. 
 
 Their endeavours to gain immunity et G. 4, sec. 2 ; Cn. ii. 43). But a 
 
 from the secular jurisdiction can be recognized ecclesiastical court is not 
 
 perceived, however, in the following found until the Norman period (Leges 
 
 points. In disputes of the clerics Will. I. sec. 4 ; Hen. i. 57, sec. 9). 
 among one another, the Church in (3) In the province of maintenance 
 
 early times insisted that the parties of the peace, the express duty was im- 
 
 should refer the matter exclusively to posed on the Bishops of restoring order, 
 
 the ecclesiastical superior (Canon, Edg. and, in conjunction with the secular 
 
 7). The priest found guilty of murder judges, of preventing wrong ("Insti- 
 
 was deprived by the ecclesiastical tutes of Eccles. Polity, Thorpe, ii. 312). 
 
 authorities of his priestly consecration, The Bishops enjoy a special right of 
 
 and handed over as a layman to the asylum in analogy to that of the Ealdor- 
 
 criminal jurisdiction (Alfr. 21 ; Athlr. man. In addition to the King's 
 
 viii. 26 ; Cn. ii. 41). Clerics were sub- peace the Church-peace is especially 
 
 ject, in addition to the fines or penalties mentioned as God's command (Athlr. 
 
 of the secular authorities, to a special v. 10, 21 ; vi. 13, 26) ; and is even set 
 
 Church penalty (Edw. et G. 3 ; Athlr. above the King's peace (Cn. ii. 1, sec. 
 
 viii. 27 ; Cn. ii. 5, sec. 3). In the case 1 ; App. iv. 1, 31).
 
 The Anglo-Saxon Church. 69 
 
 whether, and if so how far, these divided official functions, 
 which mutually acted and reacted on each other, extended 
 downwards into the Hundreds. But upwards they meet in 
 the general National Assembly, in the appearance of the 
 Bishops and greater abbots in the Witenagemote among the 
 King's Thanes, of whom they always take precedence. 
 
 The bringing of the clerics under the duties of the com- 
 munity led immediately to ranking the clergy according ta 
 the class relations of those times. As in the Anglo-Saxon 
 thaneship public duty and office combine with possession of 
 property to form a class privilege, so do they also among 
 the higher ranks of the clergy. In the civil State, property 
 leads to office ; in the ecclesiastical, office leads to property, 
 and places the Bishops and greater abbots upon an equality 
 with the great Thanes, and the beneficed clergy with the 
 ordinary Thanes of the county. The equalization of the 
 Bishops with the Ealdormen that is, with the highest digni- 
 taries of the civil State was brought about with complete- 
 ness, and knew no exceptions. This was done in the 
 matter of the Weregelt (App. vii. 2. sec. 3 ; Hen. i. 68, see. 
 6) ; of the compensation for murder (Edw. Conf. 12, sec. 5)7 
 of the Bishop's Borg and Mu-ndfyrd (Alfr. 3 ; On. ii. 58 ; 
 App. iv. 11); of the Burhbryce (Ine, 45; Alfr. 48); of the 
 gage of battle (Alfr. 15; App. iv. 12); the Bishop's right of 
 asylum (Athlst. v. 4; App. iv. 5); and the punishment for dis- 
 obedience (Hen. 35, sec. 1 ; 87, sec. 5). In the same manner 
 the position of the priest as "Mass-thane " was in word and 
 deed established by law. He is worthy of the rights and the 
 Weregelt of a Thane (Athlr. v. 9; vi. 5; viii. 28; Gn. i. 6, 
 sec. 2). The Weregelt was fixed among the northmen alike 
 for the Mass-thane and the secular Thane at 2000 thrymsas 
 (App. vii. 2, sec. 5)> and in proportion to it was the higher 
 value of the priest's oath (Wihtr. 16, 17, 18; App. vii. 2). 
 The amount of the Weregelt, however, was a matter of 
 dispute (Dialogus Ecgb. 12 ; Thorpe ii. 92), the later opinion 
 being that it was decided by birth-rank (Hen. i. 68, sec. 3). 
 The lower orders of clergy had in the scheme of penalties 
 the ordinary position of the liber homo or ceorl. 
 
 The National Assembly, finally, forms the central point in 
 which the civil State becomes bound up with the ecclesiastical. 
 Under the personal direction of the King, affairs of ecclesias- 
 tical polity were here in the first place discussed mostly by 
 the Prelates exclusively ; but all the secular decrees of the 
 so-called Legislature of this time were framed by Thanes and 
 Prelates in common. The profession of the Church forms 
 herein a counterpoise to the preponderating influence of 
 property. In the decrees of the National Assembly this co-
 
 70 Constitutional History of England. 
 
 operation of the clergy is as perceptible in its leaning towards 
 the side of humanity, as the governing power of the kingship 
 is seen in its defence of the liberty of the subject. This 
 periodical personal meeting of the King with Prelates and 
 Thanes kept alive the idea of a final unity of civil and 
 ecclesiastical authority in human affairs. The two powers 
 strove, by harmonious co-operation, to realize the higher 
 calling of the State. The ever-renewed and ever-enlarged 
 protection which the royal power bestowed to the Church was 
 requited by the clergy by repeated admonitions to respect 
 and obedience to the sacred and inviolable person of the 
 King, " the hallowed lieutenant of Christ," as he is called 
 in a Saxon homily, the " Christus Domini," as an eccle- 
 siastical assembly at Cealchyth, in 785, styles him. In 
 conformity with this the secular laws regard the King as 
 Christ's representative, " Cristes gespelia " (Athlr. viii. 2, 42), 
 as the " vicarivs Summi Regis " (Edw. Conf. 17). Even Ine 
 of Wessex calls himself " mid Godes gife West Seaxena 
 Cyning " (Ine pr.). On the other hand, kings, whose aim 
 was the civilization of their people, the introduction of science 
 and art, the peace of the realm, and improvements in the 
 administration, were obliged to foster the Church and obey 
 her judgment and her counsel, as was done by ^Elfred and 
 Charlemagne.* 
 
 The Anglo-Saxon Church was certainly not a perfect ex- 
 pression of the doctrines of the Holy Scripture, but a form 
 of Christianity, with a strong admixture of superstition and 
 formalism. Of course the worship of saints and relics, sub- 
 mission and liberality towards the clergy, due observance of 
 imposed penances and fasts, were her chief doctrines, and for 
 these ignorance, superstition, and an evil conscience afforded 
 more scope than for any other doctrine. But the Church 
 existed, and existed as a great moral power, in a period in 
 
 * The number of the clergy, espe- warding his brave -warriors according 
 
 cially of the inferior orders, and of the to their merits. With regard to the 
 
 monks was very great. The peaceful position of the clergy (cf. below, Cap. 
 
 inclinations of the Anglo-Saxon popu- "VI.), the amount of the Weregelt was, 
 
 lation, after they had become firmly according to the law of the northerners, 
 
 settled, and had devoted themselves to fixed expressly at two thousand thrym- 
 
 the industrious cultivation of the soil, sas, the same as that of the civil 
 
 the disappearance of the adventurous Thane (App. vii. 2, sec. 5), that of 
 
 spirit of enterprise, and of the prospect the Bishop and Archbishop at eight 
 
 of booty, the increasing influence and thousand and fifteen thousand thrymsaa 
 
 rich possessions of the Church, at- (App. vii. 2, sees. 2, 3). As regards 
 
 traoted the lower classes in almost in- the marriage of clergy, we find even 
 
 credible yet well-authenticated numbers that of Bishop Wilfrid (Kemble, ii. 
 
 to her service. The Venerable Bseda 383). As against the danger of the 
 
 himself allows that by the immoderate abuse and the alienation of the Church, 
 
 squandering of State property the de- the picture given by Kemble (ii. 325) 
 
 fence of the country was endangered, will apply also to this period, 
 and the King rendered incapable of re-
 
 The Anglo-Saxon Church. 71 
 
 which physical strength and possession of property were 
 almost the only recognized forces. She contained within her 
 that kind of Christianity of which the times were capable ; 
 just as the secular State embodied that idea of liberty which 
 the times could understand. This Christianity, beyond all 
 dispute, had blended together the Saxons, Angles, and Jutes 
 of the sixth century, and welded them into one peace-loving 
 and law-abiding people, had humanized their manners, en- 
 couraged habits of industry, stamped upon all the institutions 
 of the community a milder and kindlier character, had elevated 
 the intellect, and produced in men like Bseda and Alcuin 
 geniuses of the first order, such as can only arise from similar 
 surroundings. 
 
 When, then, for two long epochs the kingdom was inundated 
 by hordes of northern pirates, when the newly consolidated 
 kingdom, labouring under unspeakable distress and disorder, 
 seemed likely to succumb once more to the fate attending the 
 migration of nations, then for a second time the Church 
 accomplished a great work of conversion, which, effecting a 
 marvellous change, brought the barbarian hordes of pirates 
 into peaceable relations with the land and the people, and 
 effected, with surprising rapidity, the blending of the two 
 nations into one. 
 
 This position of the Church and her popular internal organi- 
 zation determined likewise the relation of the Anglo-Saxon 
 Church to the papal chair. The national exclusiveness which 
 is shown in the retention of the mother tongue in the Liturgy 
 and the Prayers, prevented the Pope from obtaining any 
 considerable influence. The zealous endeavours of Wilfrid 
 brought about, indeed, a conformity in some important doc- 
 trines, but no enduring influence of the Curia upon the English 
 Church government. It was only in the times of Arch- 
 bishops Dunstan and Odo that a Romanizing tendency sprang 
 up, in the face of the resistance of the majority of the clergy, 
 a tendency that conceded to the head of the Roman Church 
 a supreme authority, and in certain cases put it into actual 
 practice. This tendency was, in the last century of this 
 period, the prevailing one ; but more in aims than in results. 
 When the great number of Anglo-Saxon statutes is considered, 
 the close of the period can point to only a very small influence 
 exercised by the Papal Decretals. The Anglo-Saxon eccle- 
 siastical law remained a national one in a fuller measure 
 than in any other country of Europe.. 
 
 NOTE TO CHAPTER V. CI)C frfattOtt brance of the missionary labours of 
 
 t0 tf)t papal cfjatr had been fora long Gregory the Great and St. Augustine, 
 
 time but little more than one of piety, The British Church, on the other hand, 
 
 combined with a respectful remem- which had been spread from the north
 
 72 
 
 Constitutional History of England. 
 
 by the Scotch missionaries, did not 
 recognize the supremacy of the Bishop 
 of Rome, and the binding power of 
 councils, which he alone had convoked ; 
 and she had also other notions as to 
 the time of the Easter Festival, the 
 priestly solemnization of matrimony, 
 etc. The work and influence of this 
 Church within the Heptarchy were 
 quite as significant as those of the 
 Roman Church. It was only at the 
 end of the eighth century that Wilfrid, 
 with all the spirit and energy of his 
 character, first represented the Roman 
 primate in the Anglo-Saxon Church, 
 and in some matters, such as in the 
 celebration of the Easter Festival, 
 gained a notable victory. The Anglo- 
 Saxon Church has to thank the restless 
 struggles of this man, carried on often 
 by objectionable means, for its adhesion 
 to the religious system of Europe, with 
 all its weighty consequences. As early 
 as the ninth century a continental 
 writer calls the English " maxime 
 familiares apostolicx sectts" and the 
 Anglo-Saxons became the most active 
 and successful of Roman missionaries. 
 But this relation ever remained merely 
 an authority at a considerable distance, 
 and one which contented itself with 
 the functions of arbiter on special oc- 
 casions, when the opinion of the Apos- 
 tolic chair was sought in consequence 
 of internal dissensions. The best 
 proofs of this are the laments which 
 from time to time the clerical profession 
 emits, that no Church was in a worse 
 state of bondage than the English 
 (vide Kemble, ii. 324). 
 
 A new epoch commences with the 
 invasions of the Danes. Once again 
 the irreconcilable hatred of the vagrant 
 warriors directed itself against the 
 peaceable settlements of the Anglo- 
 Saxons, and with especial fury against 
 the rich seats of the " lazy " monks, who 
 were held in contempt by the warriors. 
 But as the most evil days have pro- 
 duced the best Christians, the Church 
 
 raised itself triumphant from unutter- 
 able ruin to the work of converting the 
 Danes, who, after they had accepted 
 Christianity, entered into relations of 
 loyalty and fellowship with the Anglo- 
 Saxon population. With their con- 
 version not only did the selfish, faithless 
 spirit of the old worshippers of Odin 
 appear to be overcome, but from the 
 midst of the Danes themselves went 
 forth the most zealous priests and the 
 highest prelates of the Anglo-Saxon 
 Church. In this period it is Duustan 
 who, with his well-known strivings 
 after the elevation of spiritual power, 
 represents subjection to the papal see. 
 With the Danish element a new spirit 
 was also brought into ecclesiastical 
 controversies, and with characteristic 
 energy the descendants of the old 
 Vikings threw themselves into the dis- 
 putes concerning the new faith. The 
 spirit of asceticism in the progressive 
 portion of the Church is an expression 
 of the deep dissension in the national 
 spirit, which had its origin in the in- 
 vasion of the Danes, and in the growing 
 contrast between poverty and wealth. 
 It is certainly by no mere chance that, 
 two centuries after Wilfrid, not only a 
 portion of the clergy, but the secular 
 magnates also, strove eagerly for the 
 unity and power of the Church under 
 the papal primate, for the celibacy of 
 the clergy, and for the deliverance of 
 the ministers of the Church from the 
 bonds of secularism, and that these 
 aims for many years showed a party 
 tendency. The wretched condition of 
 things which showed itself shortly after- 
 wards under ./Ethelred II. proves to the 
 unbiassed judgment that in Church 
 as well as in State, licentiousness, rude- 
 ness, and sensuality called aloud for 
 energetic interference. The hierar- 
 chical tendency in this period advanced 
 a step further. But the formal ad- 
 herence to the Curial system was first 
 brought about by the Norman conquest.
 
 CHAPTEE VI. 
 
 CIass=rdattons, anfc tf) National 
 Assemblies. 
 
 THE mutual relationship between property and the perform- 
 ance of duties to the State, which has its origin in the duties 
 we have described, forms the first basis of the English class- 
 relations. The military, legal, and police systems, and even 
 the Church, are so dependent upon the performance of duties 
 attached to property, that, so far as regards the immediate 
 claims of the community, the landless man is as good as 
 non-existent ; and the small one-hide property is only capable 
 of satisfying those claims in an incomplete and scanty manner. 
 With the development of private property, the number of 
 subjects capable of performance of duty to the State decreases ; 
 the majority of the free-born subjects appear only capable of 
 performing such duty in the service of the propertied classes, 
 and in this sense lose their position of national independence. 
 The whole nature of landed property contains a progressive 
 tendency towards dependence, which continually strives after 
 a legal recognition. I proceed to show how in the Anglo- 
 Saxon period the power given by possession and the legal 
 title, arising by the performance of State services, operate 
 in the formation of classes. 
 
 1. The dependence of the landless classes upon property is 
 recognized by King and National Assembly; the kind of 
 family relations which have hitherto subsisted become State 
 relations. Attachment and fealty to the lord is seen to be 
 a duty that can be enforced. To defend the lord becomes a 
 recognized right and the duty of the vassal ; treason on his 
 part against his lord becomes, like treason against the King, 
 an inexpiable offence. The oath of allegiance taken to the 
 lord is worded like that taken to the King: " Sicut homo 
 debet essejidelis domino suo, sine omni controversia et seditione, 
 in manifesto, in occulto, in amando quod amabit, nolendo quod 
 nolet." Personal service is considered a lasting necessity.
 
 74 Constitutional History of England. 
 
 When a roan has been slain, his lord receives the penalty as 
 a legal compensation, as the King does where independent 
 persons have been killed. The man stands under the special 
 "peace " of his lord. And any person, too, who has a claim 
 against the man, must appeal in the first place to the lord, 
 and afterwards to the King's court. For this the lord must 
 admonish his man to fulfil his legal obligations towards third 
 parties as well as towards the State, though how far this re- 
 sponsibility for, and quasi-representation of, the man went, in 
 respect of reparation for wrong committed, and of penalties, 
 cannot be quite clearly ascertained from the passages in the 
 statutes. These principles are primarily mentioned as ap- 
 plicable only to the personal followers, but it appears to be 
 understood that they were equally applicable to settlers upon 
 the soil, " cosaeten," " geburen," and tenants upon mesne-land 
 (amongst whom there might be even slaves). The power of 
 arrest residing with the lord, was certainly extended over all 
 dwellers upon the soil of the landlord, whether they were 
 personal servants, tenants, or their belongings.* 
 
 2. The higher duties in the military and legal systems 
 led to the legal recognition of a higher class, to the notion 
 of Thaneship, the Anglo-Saxon gentry, and to further grada- 
 tions. Even before the time of Wilfred, the retinue which 
 the King and the magnates employed in the service of war, 
 and appointed to the royal military offices, are distinguished 
 in the ranks of the Ceorls, as a more honoured class. Whether 
 the Thane was a landed proprietor, or only a grantee of folk- 
 land, or land held of a superior, or whether he obtained his 
 subsistence only in the royal household, military honour and 
 the expensive service of the heavy-armed soldier caused the 
 whole class of Thanes to. stand higher in the social scale than 
 the possessors of one hide, and the landless man. The higher 
 character of the services performed appears now as a sufficient 
 reason for the higher legal status of the man in the scale of 
 punishment, in giving credible evidence, and in participation 
 in legal proceedings. The immediate standard for estimating 
 a man's worth is the weregeld, which has been fixed in a pro- 
 portion of two hundred shillings to twelve hundred ; that is, 
 it places the Thane six times as high as the ordinary free 
 man. Among the North Angles the scale is as 266 thrymsas 
 (= 200 shillings), to 2000 thrymsas. The last-named sum 
 
 * As to the recognition of a legal of which see Schmid, App. p. 405) 
 condition of dependence of the serving have incorrectly been brought into con- 
 classes, and those who were settled nection with the later feudal system. 
 upon granted land, compare especially Those relations of dependence are still 
 K. Maurer, "Krit. Zeitschrift," ii. pp. regarded as personal, and may be com- 
 331-365. The purely personal oaths pared with the modern regulations for 
 of the Saxon period (for the Formula menial servants.
 
 Anglo-Saxon Class-relations. 75 
 
 is doubled for the gerefa, and doubled again for the Ealdorman 
 or the Bishop. 
 
 But since under Alfred and his successors every estate of 
 five hides is reckoned in the militia system as one heavy- 
 armed man, the rank of a Thane becomes the right (as such) 
 of the possessor of five hides ; and the dignity of Thane 
 is an accumulation of rank and possession, service and office, 
 like the later title of the Barones. Where two degrees of 
 the higher rank occur, as a twelve hundred man (thane) 
 and six hundred man (gesithcundman), the former may 
 denote the man bound to military service with an estate of 
 five hides, the latter the warrior without such free posses- 
 sions. The fine or compensation which the King, or the lord 
 of a murdered man receives, is graduated in a similar manner 
 (thirty, eighty, or an hundred and twenty shillings). In the 
 same manner was calculated the protection of the house-right 
 where the peace of the township has been infringed (five, 
 fifteen, or thirty shillings, and in the case of a bishop sixty, 
 and archbishop ninety shillings). Analogous again are the 
 fines for violating chastity and the mundium of widows. 
 The whole legal system of this period primarily rests upon 
 the legal protection which is afforded by fines, the higher 
 rate of compensation being invariably a recognition of a higher 
 class privilege. Where landed property has become a con- 
 dition precedent to performance of service to the State, a 
 larger property becomes a title to a higher position in the 
 community. And where a higher standard for the normal 
 performance has been fixed, the smaller freeborn man, on 
 the other hand, no longer appears as a " full man." The 
 majority of the freeborn sink down to incomplete subjects in 
 respect of the community to a lower class. The primitive 
 origin of this maxim in the practice of the national courts 
 proves that we are here concerned with legal conceptions.** 
 
 ** The gradations of classes accord- been much dispute as to the position of 
 
 ing to the weregeld, the application of the " syxhynde man," who in Wessex 
 
 similar gradations to the whole system occupies a middle place between the 
 
 of penalties and to the value of the " twelfhyndeinan " and the " ceorl," and 
 
 corroborating oath, is common to Anglo- appears also later to be identical with 
 
 Saxon law and to the national laws on the " gesithcundmau." Apparently this 
 
 the continent. But the wide and early intermediate grade did not maintain 
 
 inequality in property is seen among itself long. (See Schmid, Gloss, v. 
 
 the Anglo Saxons in the great distance Gesith and Thegn: Maurer, Krit. Zeit- 
 
 between the classes (two hundred to schrift, ii. 60, 62, 396, 510 ; Lappen- 
 
 twelve hundred shillings, foi instance) ; berg, i. 569-573.) In conclusion I may 
 
 whilst on the continent the contrasts generally refer to the well-known 
 
 are proportionately less. The normal maxims of the German popular laws, 
 
 standard of two hundred shillings for and to the digest of them in Lappen- 
 
 the ceorl (as equivalent to the twyhynde berg, i. p. 601 et tea. . Schmid, Glossa- 
 
 man) is found at first in Alfred, x. 18, rium ; and K. Maurer, Ueber das 
 
 sees. 1, 2, 29, 39, 40, and later as a Wesen des altesten deutschen Adels 
 
 tolerably uniform standard. There has (Munich, 1846), pp. 123-198.
 
 76 Constitutional History of England. 
 
 3. From the co-operation of both these conditions the 
 notion of territorial lordships is developed. The master and 
 landlord was in possession of the actual power to dismiss his 
 gesith, and deprive his tenants of the land they held from 
 him. From this position of authority follows de facto the 
 right of the lord to decide disputes among his gesith and 
 tenants. An appeal to the King's court against the will of 
 the lord, would have immediately jeopardized the economic 
 position of the " man." But the claims of third parties 
 also were first to be brought before the lord ; in fact, they 
 were generally settled through his mediation. That portion 
 of the fine (wite) which is paid by independent persons 
 to the royal sheriff, falls in this case to the lord, as an 
 analogous recognition of his rights as a mediator. When 
 thereupon the extended responsibility of the lord for all the 
 settlers on his soil became added, police duties brought with 
 them corresponding police rights, and responsibility for his 
 " man " (for which again the lord himself was allowed to de- 
 mand security) led to a right of arrest and other preventive 
 measures. Through the recognition of the State, there arose 
 out of a domestic "imperium" a "jurisdictio," which was 
 the real and effectual court of law for the dependants. As 
 the power of these magnates increased, further royal privileges 
 passed gradually to the territorial lordships ; and from the 
 time of Cnut even an inferior criminal jurisdiction. Where 
 within such close lordships free allodial peasants were still 
 found scattered as settlers, there was at last practically no 
 other way of subjecting them also to the lord's court, than by 
 royal grant. (Cod. Dipl. No. 902.) Now when we consider 
 that the greatest landlords possessed, in the person of their 
 armed followers, effectual means for the maintenance of the 
 peace in their immediate neighbourhood, and that their 
 powers as landlords and masters and their legal and police 
 jurisdiction became more interwoven in each succeeding gene- 
 ration, there were present here the germs of a system of small 
 states, analogous to those on the continent. The great lord- 
 ships with their numerous magistrates now ranked alongside 
 the Hundreds. Nominally, indeed, the county jurisdiction 
 includes in itself all these lordships, but in the face of a 
 compact " saca et soca" the interference of the Shir-gerefa 
 was now merely an exception, and a royal reservation.*** 
 
 *** As to the importance of the with caution. (See further the well- 
 Anglo-Saxon landlordism, see the essay grounded treatise of K. Maurer, ii. 
 of Zopfl, " Alterthiimer des deutschen pp. 49 56 ; Lappenberg, i. 572 ; Schmid, 
 Reiches und Kechts," vol. i. No. v. Gloss, v. soon.) The blending of those 
 pp. 170-211, in which, however, the economic and legal conditions was so 
 analogies drawn with the state of unavoidable that even the powerful 
 affairs on the continent are to be used personal influence of Cnut could not
 
 Anglo-Saxon Class-relations. 77 
 
 Through the effect of this legislation the classes which have 
 been formed by the varying scale of property appear now also 
 in a legal gradation of ranks, which afford numerous parallels 
 to the class -formations of the continent.**** 
 
 In the first class are the great Thanes, i.e. the owners 
 of great lordships, and with armed followers. We gather 
 from the records, as also from the nature of the case, that 
 their number was small, and may be compared with that of 
 the later " barones majores" They are, as a rule, distinguish- 
 able by the exercise of a separate jurisdiction " saca et soca " 
 to the extent of a Hundred Court. According to a passage in the 
 Chronicum Eliense, an estate of about forty hides was in those 
 days regarded as the minimum of landed property for such 
 a great Thane. They fill the high offices of State, and the 
 secular dignities of Ealdormen, and appear as the actual 
 leaders of armed retinues. But the incompleteness of this 
 class privilege is demonstrated by the fact that in regard to 
 their Weregeld they are twelf-hyndemen, like the smaller 
 Thanes, and only have a higher Were in their capacity as 
 Ealdormen, or by virtue of some special official dignity. On 
 a par with them stand in the ecclesiastical hierarchy the 
 Bishops and certain great abbots, but the Bishops, raised both 
 by dignity and property, stand on a higher grade of Were than 
 the other Thanes. (1) 
 
 A middle rank (to a certain extent the " middle class " of 
 the period) is formed by the thousands of " county Thanes," 
 possessors of more than five hides of land and of martial 
 retinues (twelf-hyndemen and six-hyndemen). The first 
 
 change anything therein, and it is class beneath them. In like manner 
 
 since Cnut's time that the royal their lordship (saca et soca) over a 
 
 rights of sovereignty appear mere greater district, so far as the constitu- 
 
 reservations in reference to the lord- tion of the tribunals is concerned, is 
 
 ships. (On. i. cap. 12.) (if certain grants be excepted) not 
 
 **** On the Anglo-Saxon class dis- different from the saca et soca of an 
 
 tinctions, which result from this com- ordinary Thane over a single estate, 
 
 bination, there is a comprehensive The inheritance of an Ealdorman's 
 
 monograph by Saml. Heywood, " Dis- dignity is (with perhaps the exception 
 
 sertation upon the Distinction in of the county of Cheshire) only an 
 
 Society and Ranks of the People under actual and not a legally recognized 
 
 the Anglo-Saxon Government," (Lon- institution. Even at the close of this 
 
 don, 1818, 8vo); cf. Hallam, "Middle Anglo-Saxon period, in the family of 
 
 Ages," app. iii. ; K. Maurer, " Ueber the Majordomus Godwine there is as 
 
 das Wesen des altesten deutschen yet no inheritable dignity to be dis- 
 
 Adels" (Munich, 1846), pp. 123-196; covered. The troublous times that fol- 
 
 and "Krit. Zeitschr." ii. 415, 31; ii. lowed, especially the Danish struggles, 
 
 30-68, 388, et seq. ; Kemble, " Anglo- were in this particular also favourable 
 
 Saxons," c. 7 ; Stubbs, " Const. His- to the aristocratic element. The 
 
 tory," i. c. 8. reason why the Danish period leaves 
 
 (1) The position of the secular behind it in the constitution so few 
 
 great Thanes in the civil gradation of traces, is that it brought about only 
 
 the Weregeld and the legal compensa- a partial alteration in the persons of 
 
 tion is not different from that of the the Thanes, and a local colonization.
 
 78 
 
 Constitutional History of England. 
 
 named, as Witan, constitute the regular County Assembly, 
 and, where they are numerous enough, the Hundred Court 
 also. 
 
 The appointment of Thanes to royal offices is, moreover, so 
 much a matter of course, that the term Thane is used promis- 
 cuously to denote a royal officer, royal warrior, and a greater 
 landowner. Outside the ecclesiastical hierarchy the ordained 
 priests are included in this class as " Mass-thanes," whose 
 Weregeld was, however, in later times, variously determined 
 according to their birth-rank (Leges Hen. i. c. 68). (2) 
 
 The third class is formed by the smaller landowners, who 
 still form an active element of the Hundred Court. Next 
 to these come, infra classem, the landless people, who were 
 in the service of the household, or settled upon a lord's lands 
 and forced by law to put themselves under the "peace- 
 security" of a Thane, or of a' tithing-confederacy. They are 
 all liberi homines, but only in a technical sense, in contrast 
 to the serfs. They still perform military services, but mostly 
 in the train of greater proprietors ; whilst the common military 
 duty of the small proprietors exists chiefly in name and in 
 case of need. From these common characteristics the whole 
 class in the later Anglo-Saxon period is comprehended under 
 
 (2) As to the position of the county 
 Thanes, see Schmid (Glossar., pp. 664- 
 668). The apparently unsurmountable 
 difficulties are solved by the later form 
 of the militia, which after Alfred's 
 days includes (1) the possessors of five 
 hides, as such, (2) the heavy-armed 
 vassals in the service of the King or 
 of a great landowner independently of 
 their own freeholds ; and again by the 
 fact that the state and court offices in 
 the household of the King, and of the 
 magnates, are at the same time mili- 
 tary offices. Thaneship is accordingly 
 a mixture of the conditions of pro- 
 perty, of a military profession, and of 
 an office, for which the general appel- 
 lation Thane is as suitable an expres- 
 sion as the later word '' Baro." This 
 denotation of the "Men" embraces to a 
 certain extent the full active citizen- 
 ship of the times. Hence, and from 
 other sources, the express mention of 
 " Thanes without land of their own " 
 (Athelstan, vi. 11; c/. In. 45, 51) is 
 readily accounted for, as well as the 
 various mention of Thaini without pos- 
 session or with very small possessions, 
 in the Domesday Book. 
 
 The half-developed hereditary quality 
 of Thanehood is further accounted for, 
 which, so far as it was dependent upon 
 property, was a matter of course, but 
 
 so far as it was dependent upon mili- 
 tary vassalage was as yet in the begin- 
 ning of its development. The idea of 
 a ruling class is shown in the fact that 
 the ceorl no longer becomes at once 
 a Thane from the mere acquisition of 
 five hides, but only " when he has a 
 church and a kitchen, a bellhouse and 
 a seat in the castle gate and a special 
 office (sunder-note) in the King's hall " 
 (Schmid, app. v. Of secular rank, sec. 
 2). On the other hand, in the essay 
 upon Weregeld (cap. ii.) possession 
 alone seems to be indicated as a con- 
 dition precedent : " And when a ceorl 
 comes to have five hides of land for 
 the King's array, and he be slain, let 
 him be compensated for two thousand ' 
 thrymsas" (sec. 9). "And if he even 
 comes to have helmet and armour and 
 a sword inlaid with gold, if he has no 
 land he is still a ceorl (according to 
 Lambard's text " although he has not 
 the land, he is still sithcund ") (sec. 
 10). These stages of transition and 
 mixed conditions occur also in the de- 
 velopment of the lower nobility upon 
 the Continent. An express mention of 
 the fact that Thanes could have other 
 Thanes as " vassals," is to be found in 
 the treatise upon the secular ranks 
 (Schmid, app. v. sec. 3; c/. Edg. ii. 3; 
 Athlr. viii. 8 ; On. i. a. e. ii. 32, sec. 1).
 
 Anglo-Saxon Class-relations. 79 
 
 the term ceorls. On account of the normal Weregeld of two 
 hundred shillings they are called "twyhyndemen." And here 
 it is especially characteristic of England that the general 
 dependence of the lower classes upon great landed proprietor- 
 ships does not, as in France, rest upon the "seniorat" (i.e. 
 the recognized representation of the small man in the matter 
 of military burdens by the greater landed estates), but upon 
 the police protection of the Hlaford over all the settlers on 
 his soil. The comparative neglect of the military system 
 had already in those days caused the class distinctions to be 
 determined more by the police than by the military constitu- 
 tion, and gave the aristocracy more the political position 
 of police magistrates than of " seigneurs " in the continental 
 sense of the term. (3) 
 
 These class-gradations are regulated by quasi-mutual 
 engagements, partly by property and partly by profession. 
 Like property, they too are inheritable by birth, and with each 
 generation approach nearer to the character of birth-ranks. 
 The great offices and prelates' places are not inheritable : but 
 as a matter of fact they are, under ordinary circumstances, 
 regranted to the heir of the great Thane. The lesser Thanes 
 appear in still greater numbers as hereditary classes through 
 property and the entrance of their sons into the same relation 
 of service; the sons also have "Thane-right" even before 
 they succeed to the paternal possessions. This hereditary 
 division into grades affected most the ceorls in their low posi- 
 tion, which was becoming by degrees almost despised. In 
 contradistinction to the ceorls, the higher and politically influ- 
 ential classes are grouped together as "eorls." And already 
 expressions appear signifying hereditability, as " ceorliscman," 
 " ceorlborn," " thegenborn," " ethelborn." In considering 
 these class-distinctions two views are met with; the some- 
 what older of the two regards the ordinary freeman as the 
 normal basis of the State, and the higher class as an increase 
 
 (3) The position of the free ceorl wrongly denied ; Kemble, for instance, 
 is now only connected with political falls into the fundamental error of 
 rights by the fact that the ceorl may regarding all civil dependence as 
 perform the duties of a judge in the " slavery." The ceorl has his were- 
 Hundred Court, where local circum- geld in his own right, is capable of 
 stances permit. In other respects the bearing arms, of possessing freehold 
 mass of the ceorls have already sunk property, and also of rising to a higher 
 to the position of passive members of rank by the acquisition of a five-hide 
 the State. So much the more are the estate. The later law of settlement 
 landless men, Welshmen, the freed- certainly binds the mass of the labour- 
 men, and the villeins infra dassem. ing classes de facto to the soil, with- 
 (See Stubbs, Const. Hist., i. 80.) The out on that account creating slavery in 
 whole of the third rank, as regards its a legal sense. But it is certainly true 
 political importance, at the close of the that the name of the ceorl had a 
 period is dying out. But the civil somewhat contemptible secondary sig- 
 freedom of the ceorl at the close of the nification. 
 Saxon period has been frequently and
 
 80 Constitutional History of England. 
 
 of honour. After Cnut's day, on the other hand, the Thane 
 is looked upon as the liberalis homo properly speaking, in 
 contradistinction to whom the ceorl is described as illiberalis 
 (Leges Cnuti, iii. 21, 25), without intending thereby to call 
 in question the ceoiTs character of freedom as regards civil 
 rights. Compared to the liberalis homo the Thane thus 
 again appears as liberalior. And beyond all dispute in this 
 lies the bright side of the Anglo-Saxon foundations. It was 
 the Church which left it open to all classes to mount up, as 
 their right, to the highest dignities in the land. But in the 
 secular state also the right to rise into the higher ranks was 
 kept open to all. Firstly, in the case of the hereditary servant, 
 by the laws relating to emancipation. In the case of Welsh- 
 men by a law enacting that a stranger also should rank as a 
 Thane, if he possessed five hides of land. In the case of the 
 ceorl, by a law that he also gained Thane-right on the acquisi- 
 tion of five hides of land, etc. A merchant was to rank as 
 a Thane if he had thrice crossed the seas. By royal grant 
 of a high office (and the consequent endowment with an 
 estate), the ordinary Thane might rise up to be a King's Thane 
 and an Earl. As at the Carlo vingian Court, here also court 
 offices were the direct way of putting new families on an 
 equality with older ones ; with regard to this the laws say, 
 "let it be an incitement to worthy deeds that through God's 
 grace a slavish villein can become a Thane, and a ceorl an 
 Eorl, in the same way that a singing man can become a 
 Priest, and a clerk a Bishop." 
 
 The elements of property that have hitherto been described, 
 and their gradations according to legally recognized classes, 
 when taken together, show the possible participation of the 
 people in the collective will, and the political constitution of 
 the Anglo-Saxon state. But this national representation dis- 
 plays, in the following degrees, the same stages of development, 
 by which on the continent the original popular assemblies of 
 the Germani were transformed into the later assemblies of the 
 optimates* 
 
 * According to the testimony of so soon as a number of small con- 
 Tacitus there was among the Germani federations united and formed a larger 
 a time during which the service for community, which soon began to occur 
 the army and duties in the law court in consequence of common warlike ex- 
 were, as an established principle, the peditions and common defence of terri- 
 same for every freeman, and conse- tory. The great undertakings of the 
 quently the deliberation on matters of national migrations which were de- 
 common interest was participated in pendent upon joint operations of war 
 by all the freemen under equal con- on a very large scale, must have been 
 ditions. Among the small tribes the preceded by numerous combinations 
 great judicial assembly naturally be- forming greater confederacies. As a 
 came identical with this deliberation rule these greater unions were based 
 on common matters. But this condi- only upon the recognition of a common 
 tion of things must necessarily change, leader in war and upon a council formed
 
 Anglo-Saxon Class-relations. 81 
 
 (1) The oldest form of the popular assembly is a consequence 
 of the fundamental Germanic idea of law and law-courts, 
 according to which the mere ordinances of the magistrate 
 could not alter the customary law established by tradition 
 (i.e. the traditional procedures in civil and criminal law), 
 being as they were rights inherent in every free-born man. 
 This conception and the constitution of the tribunals act and 
 react upon each other ; as justice is dealt by free fellow-men, 
 no despotic command from without can compel the judges to 
 swerve from the legal usage. To effect a change in the lex 
 terrse, the higher authority of the whole people must be 
 required to induce the judges to accept the new law. In this 
 sphere the German regarded those in authority over him 
 merely as the head of a decreeing assembly. 
 
 (2) This original basis of a legislative assembly becomes 
 modified, shortly after the settlement of the tribes, by the 
 influence of property. The regular military service, as well 
 as the practice of judging in the courts, gradually becomes 
 concentrated in the middle and upper classes of landowners. 
 As the result of their usual independent activity in military 
 and legal matters, participation is confined in a narrower circle 
 to the Witan, the boni,probi, legales homines as they are termed 
 in the Latin official language, before whom the smaller 
 common freemen recede into the position of mere bystanders. 
 It is the habit of activity in details, which nourishes the 
 interest and establishes a higher right to participate in action 
 for the common good. Shortly after the migration of nations 
 popular assemblies even of smaller tribes appear everywhere 
 to be essentially assemblies of the " boni homines," who, under 
 various national appellations, form not the whole, but yet the 
 leading element of -the assembly. 
 
 (3) With the union of the smaller tribes (civitates) into 
 
 by the chieftains of the individual of conquest were from the first de- 
 tribes for the time being. A blending pendent upon a permanent position 
 together of the sub-tribes to form a accorded to the minor chieftains, 
 common legislative assembly was for Hence the early origin of hereditary 
 local reasons as yet impracticable, and principalities, which, after endless 
 presupposed a closer union than was struggles, submit themselves to greater 
 aspired to anywhere. Hence, in the kings and after Ecgberht (821) and 
 whole range of authentic history we Eadward the Elder to one king, under 
 find only a single mention of such a whom, however, the special National 
 joint parliament auiong the Saxons on Assemblies of each of the former 
 the continent, in which thirty-six de- separate kingdoms live on for a long 
 puties (twelve each from Eastphalia, time. But it is only after the time of 
 from Engern, and from Westphalia) Eadward the Elder that the periodical 
 took part. (Ex Vita 8. Lebuini auctore existence of united parliaments of the 
 Hucbaldo Elnonensi. Pertz, ii. 361.) Optimates is in any measure authenti- 
 Among the Anglo-Saxons a republican cated. The analogies applicable here 
 assembly of delegates of such a descrip- are found rather in the monarchy of 
 tion could not originate in the same Charlemagne, 
 manner. Their expeditions in search
 
 82 Constitutional History of England. 
 
 greater confederacies and kingdoms (such as Franks, Goths, 
 etc.), the general popular assemblies altogether cease. Assem- 
 blies of such a description would for geographical and econo- 
 mical reasons, owing to the mode of communication and 
 travelling in those days, have been utterly impracticable, and, 
 as a fact, never did exist. The representation of the collective 
 people by the " boni homines " was accordingly limited to a 
 narrower circle of " meliores seu optimates terras" who included 
 the most eminent members of the army, the Law Courts and 
 the Church. 
 
 (4) Hand in hand with the ever increasing power of property, 
 the hereditary family kingship comes into being, as the head 
 of the concilicum optimatum described above. But to the king- 
 ship falls not only the right of fixing the place and time of the 
 Assembly, but also that of its inseparable incident, the personal 
 summons of the meliores terrse. In this, due regard was paid 
 both to ancestral dignity and also to the objects of deliberation 
 on military, legal, and ecclesiastical affairs, for which their 
 ready co-operation was essential. The popular Assembly has 
 now become the " Consilium Regis," the King, the "arbiter" 
 as to the persons to be summoned; in which functions the 
 influence of those who were customarily summoned, and 
 the effectual result of the deliberation, materially limited 
 the exercise of choice. It certainly was understood that be- 
 yond the circle of those specially summoned, persons residing 
 in the neighbourhood, and when the militia was called out, 
 those summoned to compose it, and in coronation and court 
 festivities a still larger circle, should participate, not as 
 equally privileged members of the consilium, but merely as 
 " bystanders." Only when the continuous line of the family 
 kingship was broken, or when the kingship showed itself in- 
 capable, or fell into dissension owing to usurpation, a right 
 of wider circles to join in deliberation revived as a reserved 
 right of the collective people. 
 
 Such was also the course of the Anglo-Saxon folk-motes ; 
 after the union into larger kingdoms the National Assemblies 
 (concilia) are gathered round the person of the King. In the 
 smallest kingdoms, as in Kent, the ordinary Law Court 
 Assemblies remained identical with the popular Assembly. In 
 the larger kingdoms, the National Assembly could only include a 
 narrower circle of " meliores terrse" In a still greater measure 
 was this the case after the union of the so-called Heptarchy. 
 It was then the King's right not merely to fix the place, but 
 to personally summon the " optimates terrse," according to the 
 purpose of their deliberation, touching common war opera- 
 tions, common institutions or changes in the military and 
 legal system, or in the Church. Common regulations as to
 
 Anglo-Saxon Class-relations. 83 
 
 the militia and operations of war were necessarily deliberated 
 upon with the leaders. The leadership which was acquired 
 by ownership of land is now lodged in the great Thanes, who 
 with their numerous armed retinues form the active army. 
 The legal leadership is based on the office of the Ealdorman 
 appointed by the King from among the great Thanes. From 
 this point of view the Ealdormen and the other great Thanes 
 were to be summoned to attend the National Assembly, as 
 well as those Thanes who had been appointed to command 
 in consequence of their military experience. 
 
 Common alterations and changes in the lex terree and 
 the legal system were necessarily discussed with those who 
 habitually presided in the tribunals. These are again, the 
 Ealdormen appointed by the King, and with them the Shir- 
 gerefas ; the great Thanes also, apart from these offices, as 
 having special courts of their own over their own people. 
 Since the diminished influence of the military element the 
 legal system mainly influenced the constitution, and the term 
 " Witan " (Juristor, Rechtskundige) from this point of view 
 is regularly used to denote the members of -the National 
 Assembly. 
 
 Upon ecclesiastical affairs those were necessarily consulted 
 whose province is doctrine and the cure of souls. These were 
 the Bishops appointed by the King, and when great monasteries 
 sprang up, certain abbots with them. The great landed pro- 
 perty of the Prelates put them upon an equality with the 
 great Thanes, and, coupled with their ecclesiastical dignity, 
 gave them the first place. From the nature of its organiza- 
 tion the Church is less connected with the individual county 
 assemblies than with the central national assemblies, where 
 the ecclesiastical influence becomes concentrated, and the 
 spiritual and temporal estates are bound together. The 
 hand of the clergy is distinctly visible in the numerous de- 
 crees for moderating class-privileges. Ecclesiastical matters 
 are discussed in the first instance, and as a rule exclusively, 
 by the prelates.** 
 
 ** Particulars as to 147 Witenage- especially as to the maintenance of the 
 
 motes from the year 698 to 1066 are* peace, and police regulations. In addi- 
 
 given by Kemble, vol. i. pp. 207-230. tion to these, we have the separate 
 
 The name Witenagemote is a conven- group of ecclesiastical affairs. The 
 
 tional one. In the records they were recorded decrees of course form only 
 
 styled, like all the Saxon Law Court the portion which appeared to be of 
 
 Assemblies, gemdtes, " Commune conci- permanent importance. The current 
 
 Hum, curia magna, assisa generalis, business included settlement of dis- 
 
 placitum universi populi, placitum om- putes between powerful Thanes and 
 
 nium liberorum et hominum" etc. The prelates, and popular grievances of 
 
 subjects for deliberation included, as all sorts, especially complaints of the 
 
 we see from the extant Anglo-Saxon denial of justice. The Witenagemote 
 
 laws, decrees as to war and peace, and is not so much a Court of Appeal as 
 
 resolutions as to the legal system, but a supplementary resource for those
 
 84 Constitutional History of England. 
 
 These premises are corroborated by all the accounts touch- 
 ing Anglo-Saxon national assemblies, which after the time of 
 Bad-ward the Elder appear in great numbers. The Witen- 
 agemotes are formed out of the prominent elements in 
 army, court, and Church. They meet from time to time, 
 to settle the disputes between the various elements in the 
 community, and to discuss and enact in common the most 
 important measures for the present and the future. The 
 summoning of the members takes place by royal writ. But 
 as an acknowledged capital did not exist for the customary 
 place of assembly, the King determines such place of meeting, 
 varying his choice extensively, according to time and circum- 
 stances which necessitate a call by express summons. As 
 property is a condition of all the chief positions in the 
 Commonwealth (with this difference, that in the secular con- 
 stitution property leads to office, and in the ecclesiastical 
 constitution office to property), a representation of property 
 is also inherent in the Assembly ; but not of bare possession, 
 but of property according to the duties it performed to the 
 State ; of property in proportion as it effectually fulfils civil 
 functions. And therefore it is that we find no trace of elected 
 members; for neither in the army, the tribunals, nor the 
 Church is the principle of election, in the modern sense, 
 applied. No trace occurs of a special representation of the 
 cities, since they have no independent existence, either for 
 the tribunals, the army, or the Church, but are absorbed in the 
 county. No trace is visible of the representation of manors as 
 suoh ; for the great Thanes actually form for the purpose of 
 the militia their own divisions, and in the legal system their 
 own manorial courts ; but military and legal duties are still 
 legally incumbent upon the individual under Thanes. Hence 
 we find also no trace of a recognized hereditary nobility, 
 neither a higher one for the great Thanes, nor a lower one 
 for the other Thanes ; but an actual inheritance of property 
 and influence, which both actually and in the common per- 
 ception must begin to appear like a "birth rank." *** 
 
 who were unable to obtain justice in but most frequently in the allodifica- 
 
 the county. The enacting character tion of Folkland. 
 of the Assembly is expressed in *** As to the component parts of 
 
 the style : " (Ina) per commune conci- the Witenagemote, the signatures of 
 
 Hum et assensum omnium episcoporum the decrees which have been preserved 
 
 et principum, comitum, et omnium sa- to us, give authentic information. They 
 
 pientum et populorum totius regni ; " begin generally with the names of the 
 
 "Edgardus rex consilio sapientum;" royal family and the bishops; then 
 
 "sapientes consilio regis Athelstani in- follow those of some principes, duces, 
 
 stituerunt," " Rex Edmundus et episcopi and court officials, i.e. Ealdormen, and 
 
 sui cum sapientibus constituerunt." Its other great Thanes. Then those of 
 
 consent is expressly mentioned in the " milites," i.e. Thanes, thirty, forty, or 
 
 conclusion of contracts, summoning more in number, who have received a 
 
 the army, in ecclesiastical ordinances, writ of summons. The greatest number
 
 Anglo-Saxon Class-relations. 85 
 
 The indefiniteness of these conditions and the intermingling 
 of later institutions has attached various fictions to the Saxon 
 Witenagemote. Sometimes it is described as a House of 
 Lords, sometimes as a House of Commons, and at any rate 
 as a legislative and tax-granting assembly. As a matter of 
 fact, it was neither of the first two, nor was it, again, in the 
 later sense of the term, a tax-granting body; it was rather 
 a Consilium Regis, formed out of the leading elements in 
 the army, in the law court, and in the Church, a representa- 
 tion, so to speak, of the masses of property according as they 
 actually fulfil their political functions. But the decided 
 ascendency of the great Thanes in these assemblies is un- 
 mistakable, and this ascendency compels the weaker kings 
 to fill the great offices according to their advice, and to enact 
 the most important measures according to their counsel. This 
 appears the more distinctly, as with the decay of the common 
 military array, the armed force becomes concentrated in the 
 great Thanes and their skilled soldiery. The counterpoise 
 which the ecclesiastical constitution at first afforded, after- 
 wards loses its power. Especially after the conversion of the 
 Danes to Christianity, the prelates' sees pass even more com- 
 pletely to members of the same distinguished families, which 
 on the secular side of the State dominate as great Thanes. 
 Persons and tendencies became on both sides more homo- 
 geneous. In the aimless confusion of the political system 
 under .ZEthelred, this aristocratic character of the constitution 
 becomes established ; under Cnut it is an accomplished fact ; 
 under Eadward the Confessor the highest dignity in the realm 
 is but a shadow kingship. 
 
 of signatures that has been hitherto was the acclamation or dissatisfaction 
 discovered amounts to one hundred and of the bystanders regarded as of any 
 six ; frequently we meet with numbers moment, and this was a reminiscence 
 between ninety and a hundred; and of old times. An elective principle 
 more frequently smaller numbers occur exists only among the subordinate 
 down to twenty and less; in connec- spheres. In all the important offices, 
 tion with which we must particularly on the one side the needs of army, 
 observe that very often special assem- law courts, and Church, for an exten- 
 blies were holden for the ancient divi- sive political system, have established 
 sions of the kingdom. As in the case the principle of royal appointments, 
 of the county assemblies there were and on the other side the social law 
 also bystanders. The " men " of the prevails, which modifies the over- 
 county were nearly always present, and weening power of property by royal ap- 
 still more regularly the magnates pointment, without which the offices, 
 brought with them a numerous train as on the continent, would have been 
 of Thanes, priests, and others. The appropriated to themselves by the 
 ascendency of the Bishops and the magnates on account of their property, 
 great Thanes silenced the voice of the The judgment of Palgrave (vol. i. 118> 
 freemen and the retinue. Only where is historically correct, 
 a new King was to be acknowledged,
 
 86 Constitutional History of England. 
 
 CHAPTER VII. 
 anfc Jfall of fl)* glnglo-sbaxon 
 
 STATE and Church should knit together what society sepa 4 - 
 rates. The vital strength of a political system is there- 
 fore to be measured according to the antipathies which it has 
 been able to surmount. These were in England less antago- 
 nistic than those which the dangerous soil of the Eoman 
 provinces presented to the Germanic settlers : yet the Saxons, 
 Angles, and Jutes, had also to struggle on the British Isle with 
 considerable national, social, and ecclesiastical discordances, 
 over which at last they were unable to gain the mastery. 
 
 I. As a national anttpatfjB that of the Keltic-British element 
 was first to be overcome. The barbarous warfare of the early 
 centuries had partially annihilated the Bomanized Britons, 
 partially ousted and driven them back, but to some extent 
 had also incorporated them. The haughty conquerors now 
 called them "the strangers," "waelen." The formation of 
 the English language, in which many words relating to 
 domestic life and the occupations of women are of British 
 origin, proves that the Saxon settlers also took to themselves 
 native women for wives, without giving up their own stronger 
 tribal peculiarities; a certain number of the Britons were 
 also kept as servants. Where the Germanic settlements were 
 only partially able to people the district, even British land- 
 owners remained in possession of their peasant farms, or at 
 least retained a holding on granted land. The incorporation 
 of British provinces in the Christian times was brought about 
 generally under better conditions. Later times recognized 
 even a higher class-privilege in the case of " waelen " pos- 
 sessing five hides of land. Christianity, and a life led side 
 by side for centuries, triumphed over national animosity. A 
 consequence of this intermingling, however, was that in the 
 great province of Mercia, the Germanic nationality could 
 not form its political system with the same uniformity and 
 durability as elsewhere. 
 
 A further antipathy arose from the tribal diversities existing 
 among the Germanic settlers themselves. Angles, Saxons,
 
 The Decay and Fall of the Anglo-Saxon Kingdom. 87 
 
 and Jutes originally hardly differed in their language, their 
 law, and their customs. But the contrasts became somewhat 
 more sharply denned, after the individual chieftains with their 
 followers and soldiery had formed small states upon their 
 own possessions. For more than two centuries the so-called 
 Heptarchy displays a picture of a struggle full of vicissitudes, 
 in which the chronicles mention not less than a hundred 
 battles and campaigns; in consequence of which the more 
 peaceable small states became subject to the three larger and 
 more warlike ones. It was highly important in this crisis 
 that as early as the end of the seventh century, the larger 
 portion of the Anglo-Saxon Church should have become 
 united under Archbishop Theodore. After the ecclesiastical 
 unity had worked powerfully for a century and a half, and 
 prepared the way for political unity, the country, at all events 
 as far as the Humber, is united under the supreme sovereignty 
 of Ecgberht (827). The common calamity of the Danish 
 wars, and the common deliverance by ^Elfred, completed the 
 internal blending of the peoples. The brilliant reign of 
 ^Ethelstan shows us the old tribal diversities truly removed : 
 the differences of the Heptarchy have ceased to exist. After 
 E ad ward the Elder, the union of the formerly separate 
 National Assemblies has been successfully achieved. - 
 
 But meanwhile a new antipathy had arisen through the 
 invasions of the Danish and Norwegian pirates, who, with ever 
 larger armies, succeeded, after endless ravagings, in becoming 
 masters of the country about the year 878. The southern 
 portion of the kingdom, it is true, rouses itself under Alfred 
 to victorious struggles. But the hard-won peace between 
 Alfred and Guthrun leads only to a division of the kingdom, 
 in which Norfolk, Suffolk, Cambridge, Ely, a part of Bedford, 
 and great districts in Mercia subject to Wessex, were given 
 over to the Danes. A relatively small number of the foreign 
 warriors sought to establish themselves here in the military 
 settlement of the " five Danish burgs," Lincoln, Nottingham, 
 Derby, Leicester, and Stamford, with which were at times 
 reckoned York and Chester. In other districts the more 
 scattered invaders took possession wherever possible of the 
 greater estates. As usual, the proprietary class was espe- 
 cially affected by the conquest. Still on the whole this first 
 stratum of Danish settlement showed itself so unstable, that 
 before the death of Eadgar the dynasty of the Cerdics had 
 again become lords of the Danish provinces. The influence 
 of peaceful settlement, marriage, and above all, the unceasing 
 labours of the Church in this the prime of the Anglo- Saxon 
 kingdom, effected, except in a few places, an assimilation of 
 the Danish element. The independent confederation of the
 
 88 Constitutional History of England. 
 
 Danish cities was again dissolved after the subjection of 
 Leicester and York (918). But under ,-Ethelred the Unready 
 there was a second period of invasion by Danes, who 
 were superior both in importance and civilization to the 
 rude hordes of the earlier epoch. The result of varying 
 engagements leads (1016) to a division of the kingdom 
 between Eadmund Ironside and Cnut, in which the northern 
 portion of the country is abandoned to the Danes. After the 
 murder of Eadmund the southern portion also submits to the 
 powerful Danish king, not indeed as to a conqueror, but as 
 to " one chosen " by the Witan to be head of the whole 
 kingdom. The quarter of a century of this Danish dynasty 
 certainly left behind it weighty consequences. Though the 
 total number of the northern invaders did not perhaps amount 
 to one-tenth of the whole population of the country, yet a 
 deeply rooted dis-union had arisen in the leading class, a dis- 
 union which was all the more fatal in its consequences, as Cnut 
 knew no other means of consolidating his rule, than by mur- 
 dering, banishing, and supplanting the popular old families. 
 The great assembly of the Witan of the kingdom exhibits 
 from that time forward a curious mixture of Danish great 
 Thanes with Saxon Lords and Prelates, whose respective 
 ideas and interests, although not described by the laconic his- 
 torians of the times, can be gathered from the events of the 
 period. This internal disunion divided the old mother country 
 of the dynasty of Wessex less than the rest ; but the great 
 territory of Mercia, owing to its always mixed population, 
 and to the Anglo-Danish Thaneship, became a region upon 
 which no reliance was to be placed in times of serious danger. 
 Things were worst in the northern districts, in which there 
 was an almost undistinguishable blending of tribes which 
 might easily lead ambitious governors to declare themselves 
 independent. Under Eadward the Confessor the prominent 
 Danish element, coupled with the opposition against the 
 hierarchical tendency of the Church, appears in the family 
 of Earl Godwine, which, being in possession of the great 
 governorships, had now reduced the kingship to a mere 
 shadow of sovereignty. (1) The antipathy of the nationalities, 
 
 (1) The antipathy of the nationalities domestic life and small domestic occu- 
 
 is primarily dependent upon the con- pations, point to marriage with British 
 
 tinuance of the British-Keltic national women, or to British domestic servants, 
 
 element (Lappenberg, i 122, et seq., In general it was the western counties, 
 
 104 seq.'). A. statistical proof of the towards the borders of Wales, which 
 
 strength of the Keltic element is no- showed an intermixture with the Keltic 
 
 where to be found. In the language, element. It is especially prominent in 
 
 in which Whitaker considers that the counties of Dorset, Somerset, Wilts, 
 
 there are still three thousand words of and Devon, which Alfred the Great 
 
 British origin, it is evident that the was the first to incorporate, and also 
 
 numerous Gaelic words relating to in Cumberland. The tribal diversities
 
 The Decay and Fall of the Anglo-Saxon Kingdom. 89 
 
 however, became alike injurious to both dynasty and kingdom, 
 when it coincided with another disintegrating force. 
 
 II. This was the social contrast of the propertied classes, 
 which for centuries had been undermining the Anglo-Saxon 
 commonwealth in its very foundations. In many districts the 
 first settlement had laid the foundation of a free peasantry in 
 a comparatively weak manner. The customary forms of the 
 military and judicial system, under the feuds of the Heptarchy 
 had, in almost equal degrees, contributed to the degradation 
 of the smaller landowners. Ecgberht's kingdom was already in 
 great districts entirely portioned out into estates and manorial 
 possessions. The great misery which both epochs of the 
 Danish invasion spread over the country brought about the 
 almost universal ruin of the small freeholds which then 
 existed, the result of which was seen in Cnut's laws and 
 manorial grants. The strength of the freedom of the common 
 people, the self-respect and the martial excellence of the 
 
 of the Angles, Saxons, and Jutes, are 
 exhaustively treated by Lappenberg, i. 
 85-103. In the Anglo-Saxon statutes, 
 the traces of it are hardly discernible. 
 The tribal contrast in the kingdom of 
 the Anglo-Saxons and Danes appears 
 of no great importance in the treaty 
 between Eadward and Guthrun (Edw. 
 et G. 3, 6-9). In Cnut's day a dif- 
 ferent fine is mentioned for the 
 " trinoda necessitas," Cn. ii. 65 ; for 
 denial of justice, Cn. ii. 15, sec. i. ; for 
 Hdmsdcn, Cn. ii. 62 ; differences ex- 
 isted in the royal privileges, Cn. ii. 15 ; 
 and in the purgation from accusation 
 of treason against the king, Mthlr. xi. 
 37 ; for security in the case of thefts, 
 Wilh. i. 3. sec. 3 ; i. 21, sec. 2. Already 
 in the earlier Danish period Eadgar 
 had secured to the Danes the preser- 
 vation of their law (Edg. iv. 12, 13). 
 In still greater measure was this the 
 case in the second period ; notably in 
 Cnut's reign, in which a Dane law 
 " Danelage," as a collective expression 
 for certain special legal maxims (Pro- 
 vincial law) is distinguished from the 
 " West Saxenalage," and from the 
 " Merchenalage." That these were not 
 thoroughly different systems of the 
 whole Civil Law is proved by state- 
 ments as to the real meaning of these 
 differences. A further tribal affinity 
 between the invaders from the Scandi- 
 navian lands and the Angles and Jutes 
 of the first settlement, existed from 
 the very first. In later times this 
 question has become the subject of a 
 party controversy, in which an attempt 
 
 was made to prove that the Germanic 
 foundation of England was not attri- 
 butable to the Angles and Saxons (i.e. 
 the former inhabitants of Schleswig- 
 Holstein), but to the Danes and Den- 
 mark (E. I. H. Worsaae " An account 
 of the Danes and Norwegians in Eng- 
 land," 1852). The Norsemen who from 
 the eighth to the eleventh century dis- 
 quieted Europe are hordes of the great 
 Teutonic family, who, coming from 
 Norway, Denmark, and Sweden, in- 
 fested the continent. The Anglo-Saxon 
 population called them " Danes," from 
 the nearest coast from which they 
 sailed, without inquiring concerning 
 the more distant lands from which they 
 started. Were all the formations of 
 words and syllables, which in proper 
 names and names of places are quite 
 as much "Anglish" as "Danish," to 
 be taken as evidence of Danish origin, 
 quite half of England could be de- 
 scribed as Danish, and the Anglo- 
 Saxon element represented as the 
 declining and subordinate one. (Cf. 
 contra: Donaldson, "English Ethno- 
 graphy," Cambridge Essays, 1856.) 
 The Danish element certainly prepon- 
 derated in Norfolk and Suffolk, and 
 along the coast line between the 
 Humber and the Forth ; it may divide 
 the north and north-west fairly equally 
 with the Anglo-Saxon. The computa- 
 tion which gives the number of the 
 Norsemen who stayed in the country 
 at two hundred thousand, is probably 
 rather too high than too low.
 
 90 Constitutional History of England. 
 
 Anglo-Saxon Ceorl, diminished from century to century, in 
 spite of the guardian power which the King wielded. Even 
 the prosperous times of the monarchy only delayed but did 
 not prevent this process of dissolution. As yet no civic and 
 industrial life was able to develop itself, to raise the ancient 
 freedom to new strength and new honour upon the foundation 
 of new modes of property. No new principle of military 
 service had been discovered, which should prevent it from 
 exercising a destructive influence upon the smaller landowners. 
 
 Thorough reforms, such as the Carlovingian laws attempted, 
 appeared in England less urgent, because its insular position 
 continually induced carelessness. The mild sway of the royal 
 race of Cerdic, under the advice of their spiritual and secular 
 Thanes, was ever averse to violent aggression, and only cared 
 for a well ordered administration, without touching the legal 
 basis of the military system, viz. vassalage and a popular 
 army. Cnut's energetic nature preferred, when in peril, to 
 rely for the support of the royal throne upon a mercenary 
 guild of three thousand Huscarls, which could find no per- 
 manence among the popular customs, the conditions of pro- 
 perty, and the finances of the time. The militia, however, 
 continued in its wonted groove. Cnut had also found it advis- 
 able to conclude a peace with the Church. In like manner 
 he allowed the accumulation of landed property to go on 
 without interruption. Like a meteor, therefore, the pheno- 
 menon of the powerful Norse king passed by, without solving 
 any one of the problems of this political government. Still 
 less capable of such a task was- the weak rule of the last heir 
 of the old royal house of Wessex. (2) Under the feeble rule 
 of Eadward a third antipathetic force comes into great pro- 
 minence, the way for which was prepared in the course of 
 the preceding generations. 
 
 III. This was the opposition of the ecclesiastical to tfje ropal 
 power. From the earliest times the Church had been the 
 reconciling element among national antipathies; she had 
 
 (2) For the social forces opposed to ing public needs. The same picture 
 
 the constitution I must refer my is drawn by Lappenberg, i. 460 ; cf. also 
 
 readers to the picture given in cap. iii. Stubbs, Const. Hist., i. 211. " The co- 
 
 of the local land distribution. This hesion of the nation was greatest in 
 
 was the primary evil which the Anglo- the lowest ranges. Family, township, 
 
 Saxon State, in spite of its numerous hundred, county held together when 
 
 excellent supports, could not hope to Ealdorman was struggling with Ealdor- 
 
 eradicate (vide Kemble, i. 252). Wil- man, and the King was left in isolated 
 
 liam of Malmesbury says of the national dignity. Kent, Devonshire, Northum- 
 
 assemblies of this time, that as often bria had a corporate life which Eng- 
 
 as the Eorls assembled in council, the land had not, or which she could not 
 
 one chose this and the other that topic ; bring to action in the greatest emer- 
 
 they were seldom agreed in any good gencies. The Witenagemote represented 
 
 opinion; they deliberated more con- the wisdom, but concentrated neither 
 
 cerning domestic treason than concern- the power nor the will, of the nation."
 
 The Decay and Fall of the Anglo-Saxon Kingdom. 91 
 
 helped the triumph over the smaller dynastic states; she 
 had shown herself in the early Danish times once more as the 
 reconciling polity-creating power. But the Church could 
 never have attained to this powerful position, except upon the 
 broad basis of landed property ; this property to the extent 
 of about one-third in the kingdom was, in the later Anglo- 
 Saxon times, in her hands. Her higher tasks were thence- 
 forth entangled with interests of property, which in two 
 directions opposed the demands of the State. First of all, 
 the Church was the chief impediment in the way of changes 
 in the military system, which were every day more urgently 
 needed, for she absorbed through her expansion the posses- 
 sions of the State in the Folkland, and so deprived the sove- 
 reign of the means of keeping on foot the requisite number 
 of skilled warriors ; this was admitted by Baeda even in his 
 time. The modest share borne by the Church in the decayed 
 militia was not sufficient; there was needed besides for the 
 military requirements of the day a very great increase in 
 the numbers of the Thanes. But the powerful interest of the 
 Church was antagonistic to any fresh distribution of the mili- 
 tary burdens ; for every firm and more just distribution on 
 the landed property affected first of all the possessions of the 
 clergy, who were little inclined to make sacrifices for such 
 ends, and still less to allow a secularization of Church lands. 
 And yet no permanent military constitution was possible with- 
 out serious demands upon Church property. It would have 
 required a violent reformer to beat down the opposition the 
 spiritual Witan would make to such changes ; in short, the 
 monarchy in this critical century lacked its Pepin or Charles 
 Martel. In another direction, the Church assisted still further 
 the expansion of " landlordism" in the legal system. Being 
 herself in possession of privileged lordships and estates, she 
 contrived to gain before all else an extension of the power of 
 private jurisdiction ; and in conjunction with the secular mag- 
 nates she thrust down the free people deeper and deeper into 
 the condition of a dependent tenantry. The entry of the most 
 noble classes into the Church had been a blessing in those 
 times, during which she had to accomplish, in the face of 
 violent selfishness, the great task of educating the people. 
 But after she had herself become the greatest propertied 
 power, and especially after Danish times, she appears ever 
 more deeply bound up with the interests and the dissensions 
 of the order of Thanes, in whose factions she took part in a 
 very worldly manner. This worldly mindedness is indeed 
 opposed in the Church by a strong ascetic tendency. But this 
 new tendency is a Eomanizing one, which finds its ideal head 
 in Eome, and in the struggle between Dunstan and Eadwig
 
 92 Constitutional History of England. 
 
 does not shrink from humbling the power of the King. The 
 Church, in the reigns of Eadgar and Cnut, had become already 
 a buttress of the temporal power. Eomish views and Eomish 
 proclivities, the traditions of the Roman empire and a capital 
 of the world, the legislation of the emperors and the popes, 
 have all become part and parcel of the aims of the Anglo- 
 Saxon clergy aims which, from personal inclinations, Ead- 
 ward the Confessor was only too ready to further. About the 
 middle of the eleventh century all these hostile elements in 
 the State presented themselves in such a combination that a 
 strong will alone would have been able to cope with them. 
 The reign of 2Elfred the Great and his immediate successors 
 had pointed out in all departments the direction reforms must 
 take in order to restore to the State its waning power. But 
 the dynasty of Cerdic was not destined to remain the creative 
 power in England beyond the single century of its glory. 
 Whilst want of public spirit, disputes, and open violence were 
 conspicuous at all points, the Anglo-Saxons in this critical 
 period experienced the misfortune of having a personally 
 incapable royal family. The settlement of the warlike Danish 
 Thanes had severed the ties which once bound the Anglo- 
 Saxon magnates to the royal house. Beside them stands a 
 powerful and intriguing band of Prelates, who, associated with 
 the families and proprietary interests of the nobles, are bent 
 on the consolidation of their own power internally, and the 
 insuring of their own privileges, whilst externally they aim at 
 extending the sphere of their power, partly by a closer union 
 with Eome, and partly by an alliance with the Norman duke. 
 With the decay of the old county constitution, with the ever 
 stronger oppression and deeper humiliation of the freemen, 
 national feeling and national strength sink down, and the 
 country is prepared for becoming the prey of the foreign 
 conqueror. It is always the military constitution which is the 
 weakest point in this organization of the Anglo-Saxon State, 
 a weakness which shows itself in the fact that the united 
 kingdom could never entirely obtain the mastery over its 
 British and Scotch neighbours on the borders. All the good 
 institutions fall into decay, the burghs and strongholds are 
 neglected, and the soldiers' guild of Cnut is soon dissolved. 
 A few decades of peace, and the non-appearance of any foreign 
 foe, appear sufficient to cause a relapse into the old state of 
 carelessness in which men's minds are only occupied with the 
 struggles of the nobles, and with the Church. From Church 
 and State harmony and self-dependence have disappeared. (3) 
 
 (3) As to the ecclesiastical anti- peace and order are certainly restored, 
 pathies of later times, cf. Chapter V., but this is apparently due to the fact 
 Note **. Under King Eadgar internal that Archbishop Dunstan rules in the
 
 The Decay and Fall of the Anglo-Saxon Kingdom. 93 
 
 Dismal indeed as the picture of the last generation appears 
 to an historian, yet out of the confusion of this epoch two 
 bright features gleam forth, features which the changes 
 wrought by time have not been able to efface. The first is 
 the preservation of the Germanic judicial system which still 
 surrounded personal freedom with protecting barriers. Judg- 
 ment delivered by peers (pares) and the forms of compurgation 
 might fail the weak man as against the powerful man ; but 
 they remained a strong bulwark against the arbitrary action 
 of royal and manorial magistrates. Even in the beginning 
 of its decay the Anglo-Saxon judicial procedure still gave the 
 impression of a fair trial ; accordingly it was for this reason 
 that the fundamental principle of "trial by peers" was ever 
 jealously clung to by the heavily burthened ceorl, as the point 
 
 King's name. During the long miser- 
 able period of jEthelred II. the prelates 
 in general appear devoid of character 
 and untrustworthy. In the statutes of 
 these times the moral condition is 
 visible in the serious warnings which 
 are especially addressed to the clergy 
 (^Ethlr. v. 4. seq. ; iv. 2 ; On. i. 6, 26). 
 In Eadward the Confessor, as well as in 
 Godwine and his military dependents, 
 are embodied two great contrasts in the 
 life of the later Anglo-Saxon period. 
 The King, educated in exile upon the 
 soil of France, is disgusted with the 
 drinking bouts and manners of the An- 
 glo-Danish magnates; and the clerical 
 chroniclers with their Norman leanings 
 love to describe the rough national 
 manners, the drunkenness and coarse 
 debauchery of the nation. Eadward 
 tries to escape from the secular high 
 life of his times into quiet monastic 
 rest; but there again the national 
 Anglo-Saxon feeling of the clergy in 
 their deviation from the Eoman Church 
 annoys him. He is a foreigner in his 
 manner of life, and he surrounds him- 
 self with the friends of his youth, and 
 with French chaplains, whom he makes 
 Bishops. The court-language is already 
 Frankish. Frankish body guards and 
 Frankish gerefas of the burghs at last 
 drive the Danish Thanes into open 
 opposition, which ends with the victory 
 of Godwine; and the King is henceforth 
 placed under the guardianship of the 
 secular magnates. According to a 
 credible record, in his last hour the 
 childless Eadward appointed his 
 brother-in-law Harold to be his suc- 
 cessor. But Norman writers suppress 
 or deny this decisive fact. On the 
 other side a former verbal promise is 
 
 quoted, which Eadward is supposed to 
 have given in favour of the Norman 
 Duke William, and which Harold is 
 said to have acknowleged with weighty 
 oaths, when he found himself by chance 
 in the power of the Norman duke. 
 The latter part of Bad ward's reign is a 
 network of intrigues within the oli- 
 garchy, among which a portion of the 
 high bom clergy already regarded with 
 hope the Norman duke and the new 
 Frankish culture. A number of the 
 spiritual lords had long since turned to 
 the rising sun, and prepared for the 
 open espousal of the Conqueror's cause. 
 In the decisive struggle for the national 
 existence of the realm, Harold found 
 himself almost entirely dependent 
 upon the strength of the old kingdom 
 of Wessex, in which State and Church, 
 Thanes and people, still held together 
 more than elsewhere. When the great 
 army of the Norman duke had already 
 set foot upon English soil, the military 
 array of Mercia, and the greater 
 number of the secular magnates still 
 held aloof from the conflict in faithless 
 neutrality. The decisive battle of 
 Hastings (Senlac) was only a struggle 
 made by the peasant army of Wessex, 
 with numerous followers and mer- 
 cenaries. The men of Kent, the 
 national army, in the consciousness of 
 fighting for the national existence, 
 struggled with a persistence and 
 bravery which seem to show that with 
 all the dissensions and degeneracy of 
 the ruling classes, the heart of the 
 Saxon people generally was healthy. 
 A striking picture of this decisive 
 struggle is given by Freeman (" Nor- 
 man Conquest," iii. 450-507).
 
 94 Constitutional History of England. 
 
 which alone lends value to the legal conception of freedom. 
 Even in the greater lords' courts the old ordo judiciorum 
 appears to have kept its place. A formal court assembly of 
 the soccagers (theningmanna gemot) is indeed mentioned in 
 the case of royal soccagers (Cod. Dipl. 1258). The feelings of 
 the Anglo-Saxon Thanes did not incline towards arbitrariness 
 and severity, and the later accounts show us at least that in 
 the private courts a regular practice had become formed, as 
 well as a manorial system, which differed according to the 
 locality. The confederate element in the tithings, and in the 
 various voluntary unions or guilds into which the inhabitants 
 round the burghs entered, preserved some vigour to the institu- 
 tion for maintaining the public peace. The second permanent 
 legacy was the development of family life and of the character 
 of the people by the national Church. It is true, that in no 
 other European country had the conversion to Christianity left 
 behind it such deeply rooted and enduring effects as here. 
 This fact is only apparently concealed by the later attitude of 
 the superior clergy, and by the faithlessness of Danish Thanes, 
 in whom the new Christian dogmas had not yet overcome the 
 old spirit of Odin-worship. But so far as the Christian 
 element was permanently blended with the national Anglo- 
 Saxon, there was manifest in high and low a moral core of 
 benevolence, truth, and faith, which found expression in the 
 mild sway of the Anglo-Saxon lords as contrasted with the 
 rule of their greedy successors. On these foundations it was 
 possible to build up afresh a vigorous monarchical system. 
 But what the weak and expiring dynasty of the Cerdics was 
 unable to compass was, through the dispensation of Pro- 
 vidence, to be vouchsafed to this country by the hand of a 
 foreign conqueror.
 
 SECOND PEEIOD. 
 THE ANGLO-NORMAN FEUDAL STATE. 
 
 CHAPTER VIII. 
 
 of tfje Gorman Jfeufcal &tate.* 
 
 WILLIAM I., 1066-1087 HENRY II., 1154-1189 
 
 WILLIAM II. , 1087-1100 KICHARD I., 1189-1199 
 
 HENRY I., 1100-1135 JOHN, 1199-1216 
 
 STEPHEN, 1135-1154 HENRY III., 1216-1272 
 
 WITH this period State and saciety enter into new relations. 
 The Anglo-Saxon Commonwealth appears suddenly invaded 
 by a conquest, by the thrusting in of a tribe originally 
 northern, which, on the soil of Normandy, had adopted French 
 language and customs, and brought over with it a peculiar 
 military and legal system. The Duke of Normandy is recog- 
 nized as King of England by a formally summoned National 
 Assembly. The old controversy, whether William the Bastard 
 conquered England, or under what other title he acquired 
 
 * From the sources and literature -I first-named, " Leges Wilhelmi " contain 
 
 may specially mention (1) (a) The real ordinances, which have only in 
 
 so-called " Leges et consuetttdines quas later times been brought into the form 
 
 Wilhelmus rex post adquisitionemAngliss of a continuous statute. The genuine 
 
 omni popnlo Anglorum concessit tenen- originals are to be found reprinted in 
 
 das," for the most part not new de- Stubbs' " Select Charters," pp. 83-85. 
 
 crees, but Anglo-Saxon law, in so far The so-called " Leges Henrici I. et 
 
 as it was recognized by the Conqueror Eduardi Confessoris " are private works 
 
 (with certain additions, for example, dating from the twelfth century, con- 
 
 c. 22, 31) in a Latin and French text. taiuing Anglo-Saxon law as applied 
 
 To these is added (6) a short statute under Norman rule, and hence given 
 
 having reference to the criminal pro- under the Anglo-Saxon records of law. 
 
 cedure between English and Franks (2) The legal works of Norman 
 
 in an Anglo-Saxon and Latin text ; jurisprudence are, Glanvill, " Trac- 
 
 (c) " Carta Wilhelmi Conquistoris de tatus de Legibus et consuetudinibus 
 quibusdam statutis" etc., in Latin text, Anglix tempore Henrici II. compositus " 
 with distinct traces of interpolation; upon the procedure in the Curia 
 
 (d) Carta Wilhelmi concerning the Regis, printed among others in 
 separation of the spiritual jurisdiction Phillips' " History of English Law," 
 from the temporal, which, according to vol. ii. ; Bracton, " De Legibus et con- 
 Spelman, must be placed about the suetudinibus Anglix " (London, 1640), 
 year 1085 (c/. Schmid, " Gesetze der an exhaustive exposition of the private 
 Angelsachsen," Ivi. to Ixi. and the law and procedure of the period from 
 copy pp. 322-357). Without doubt the 1240-1255 (a new edition by Travers
 
 Constitutional History of England. 
 
 possession of the country, may be considered as decided by 
 the Conqueror himself, who declared that he had entered 
 upon the possession of the country as the designated testa- 
 mentary heir and legitimate successor of King Eadward. 
 
 This was the only manner in which the new monarch could 
 gain the permanent obedience of his new subjects and make 
 a stand against immoderate pretensions on the part of his 
 followers. It was not, therefore, the tribe of the Normans, 
 but Duke William who had got possession of the country, 
 with a title from the pretended will of Eadward, with the 
 consent of the highest authority in the Church, and with the 
 consent of the National Assembly, by means of numerous 
 allies and paid soldiers. As a matter of fact, as well as of 
 right, it was possible to treat the country in this way as a 
 
 Twiss); Britton (Ed. by Nicliolls, 
 1865) and Fleta, two abridged law- 
 books dating from the time of Edward I. 
 A general survey of the legal sources 
 of this period occurs in Biener, "Engl. 
 Geschwomen-Ger.," vol. ii. App. vi., 
 pp. 83-99. A copious survey of the 
 history of the French, Norman, and 
 English sources Tof law is given by 
 Brunner in Von Holtzendorft's " Ency- 
 klopcedie," ii. 4. A new contribution 
 to the collection of the sources is M. M. 
 Bigelow*s " Placita Anglonormannica 
 from Will. I. to Eich. I." (London, 
 1879). 
 
 (3) State Treaties and Administra- 
 tive Records of the Norman times in 
 Bymer's " Fsedera, conventiones, littene 
 etc." (new ed. 1816 to 1830 ; 3 vols. in 
 6 parts, A.D. 1066-1391). The admi- 
 nistrative records, which from King 
 John downwards were chronologically 
 enrolled, and lately in part described, 
 and in part published by the Record 
 Commission, fall into the following 
 principal groups: (1) Patent-rolls from 
 1200-1483, formerly preserved in the 
 Tower, containing the regular acts of 
 Government inclusive of foreign trea- 
 ties, grants of offices, privileges, etc. 
 Cf. " A description of the Patent-rolls 
 in the Tower of London," by Duffus 
 Hardy, (1835). " Eotuli litterarum 
 dausarum in turri Londinensi asser- 
 vati" 2 vols. (2) Law Court records and 
 pleas since Hen. II., printed in part, 
 " Placitorum abbreviatio " (London, 
 1811) ; " Eotuli curia regis," ed. Pal- 
 grave. (3) Calculations and Transac- 
 tions of the Exchequer, partly in print 
 (Rotuli oblationum et finium, Magnus 
 Rotulus Pipae, etc.). In addition the 
 "Dialogue de Scaecario" in Madox; 
 " The History and Antiquities of the 
 
 Exchequer of the Kings of England," 
 2 vols. (London, 1769) is, through the 
 reliable reprint of the Records, a book 
 of great general value. As to the 
 State Land Register, Domesday Book, 
 see note ***. 
 
 (4) Treatises on the History of 
 English Law : Sir M. Bale's " History 
 of the Common Law," 2 vols. ed. Rim- 
 mington (1794) ; Reeve's " History of 
 the English Law " (3rd ed., 1814). A 
 curious, but much used and useful 
 collection is to be found in " Henrici 
 Spelmanni Codex legum veterum statu- 
 torum regni Angliee ab ingressu Gui- 
 lelmi I. usque ad annum 9 Henr. III." 
 Printed from Spelman's papers by 
 Wilkins, p. 284 et seq., and in Howard, 
 " Anciennes loix des Francois," Rouen, 
 1766, vol. ii. pp. 120-428. An excel- 
 lent exposition of the sources wtth 
 introductions is that by Bishop Stubbs, 
 " Select Charters " (1874), pp. 79-425. 
 For the legal procedure, cf. M. M. Bige- 
 low, "History of the Procedure in 
 England from the Conquest "(London, 
 1880) ; Forsyth, " History of the Trial 
 by Jury " (new ed., 1857) ; Brunner, 
 " Entstehung der Schwurgerichte " 
 (1872). 
 
 (5) General History of England : 
 Lyttleton, '' History of Henry H." 
 (London, 1767), 3 vols. ; Hallarn, 
 "Middle Ages," cap. viii.; Lappen- 
 berg-Pauli, " Geschichte von England," 
 vols. ii. and iii. The principal work 
 on this period is Freeman's " History 
 of the Norman Conquest of England," 
 vols. i.-vi. (the first two volumes in 
 the 3rd edition). Important additions 
 for the Norman period are also given 
 by Stubbs, " Constitutional History," 
 vols. i., ii. (1874).
 
 The Property Bases of the Norman Feudal State. 97 
 
 personal acquisition, as the "Seigneury," "Dominion," ''terra 
 regis Anglica," " terra mea" a designation frequently found 
 in the records : " Gulielmus I. conquestor dicitur, qui Angliam 
 conquisivit, i.e. acquisivit (purchased), non quod subegit " 
 (Spelman, Glossary). The mutual relations of the Saxons 
 and Francigense, however, remained for many generations 
 hostile. The conquered people repaid the haughtiness of the 
 victors by attempts at rebellion ; and when these failed, by 
 silent animosity towards the newlords and their French customs. 
 The best way of considering the period is therefore that of 
 a permanent military occupation which (with its numerous 
 fortifications and the maintenance of paid soldiery) led to a 
 thoroughly new military organization. But the same change 
 was also founded on the needs of the country. The Anglo- 
 Saxon Commonwealth had fallen through internal dissension, 
 a defective organization of its military array, and the faulty 
 distribution of the military burthens. To regain the unity 
 and power that was lost, in the place of a discordant system 
 of national militia and personal vassalage, the whole of the 
 landed property in the country, so far as it was able to bear 
 the necessary burden of heavy armed troops, had to adopt the 
 principle of a standing army based upon the revenue derived 
 from the land. This was almost a common need with all the 
 Germanic states that had risen on the ruins of the old world ; 
 and in the centuries of striving after it, isolated elements of 
 the feudal system appear already in the Anglo-Saxon period. 
 But there was still wanting such a permanent and uniform 
 bond of service as was compatible with the personal freedom 
 of the obeying party and the honour of a freeholder ; hence 
 the manifold preliminary arrangements, attempts, and re- 
 lapses. The period of the feudal system dates from the time 
 when the feature of military burthens becomes predominant 
 in landed property, and the grants, to which the character of 
 military pay is attached, give the warrior a permanently 
 dependent position. England is the only state in which, 
 through special circumstances, a systematic application of 
 this system was possible, which made the State in some 
 measure the sole proprietor, thence .proceeding to a fresh 
 distribution. It was the position taken up by William as 
 the legitimate successor to King Eadward which settled this 
 question also. In treating as rebels King Harold and those 
 who fought on his side, and the Saxons who afterwards 
 opposed William, a legal justification was found for a general 
 confiscation of landed estates. The inheritance of Eadward, 
 the possessions of the family of Harold, and the remainder of 
 the old Folkland were immediately seized as royal demesnes. 
 By virtue of grants, the leaders of the conquering host entered
 
 98 Constitutional History of England. 
 
 into the possessions of the rebel great Thanes, and in like 
 manner the warriors serving immediately under the Duke 
 were endowed with estates that had become vacant in the 
 different parts of the country. The great feodaries could 
 either immediately furnish their contingents or do so by sub- 
 infeudation, by which means a portion of the Saxon Thanes, 
 who had not been compromised in the war, could remain as 
 under-vassals upon their old estates. In like manner the 
 possessions of the churches and the monasteries were re- 
 tained to them, and in some instances even increased. The 
 object that the royal administration now pursued for a century 
 was to impose, upon the whole mass of old and new possessors, 
 an equal obligation to do service for reward. The standard 
 adopted in carrying out this system was approximately that 
 of the five hides possession of the Anglo-Saxon period ; yet 
 with a stricter rating according to the value of the produce. 
 At that period an estate of such a productive value would be 
 bound, at the royal command, to furnish one heavy-armed horse- 
 man for a forty days' service in the year (servitiurn unius militis). 
 
 The legal incidents of these newly-organized modes of 
 property** were only definitely established in the reign of 
 Henry II. ; but conclusions and interpolations show us that 
 the royal administration adapted the feudal customs that had 
 been formed in Normandy to the territorial conditions which 
 existed among the Saxons : " illis (that is to the Anglo-Saxon 
 laws) transmarinas leges Neustriee qu& ad regni pacem tuendam 
 efftcacissimw videbantur adjecit" ("Dialogus de Scaccario "). 
 The English feudal system is made up of these two elements. 
 Five legal incidents stand out here sharply defined, which in 
 some measure differ from the continental feudal system. 
 
 l. i) Conbtttonal f^crefcttatrilitp of tfje (Srant. According 
 to Norman-French custom, such hereditability has been con- 
 sidered the rule in Anglo-Norman fiefs. (1) Yet the form of 
 
 ** As to the law incidents proper " feod, feudum, barones, vavassores, 
 to the feudal system, the views of felony relief," etc., appear in the Domes- 
 Littleton, Selden, Coke, and Blackstone day Book here and there mingled with 
 are clearly condensed in the compre- the older expressions. The word "feu- 
 hensive note of Hargrave to Coke on dum " had hitherto occurred in no con- 
 Littleton, 191. The proceedings at the temporary source of the Anglo-Saxon 
 great act of homage in the court held law. The term " baron " is said to 
 at Salisbury are recorded in the Anglo- occur for the first time in a letter from 
 Saxon chronicle in the same terms as Pope Nicholas II. to Eadward the Con- 
 they are narrated in the " Annales fessor (Heywood on Ranks, 210). 
 Waverlienses," A.D. 1086 ; " ibique vene- (1) The hereditability of the English 
 runt coram eo barones sui, et omnes ter- fiefs down to King John is doubted by 
 rarii hujus regni, qui alicujus pretii Palgrave (i. 385). He says it was at 
 erantj cujutscunque feodi fuissent, et that time that the writ de terris liber- 
 omnes homines sui effecii sunt, et jura- andis first was framed, that until that 
 verunt iUi fidelitatem contra omnes ho- day the investiture of the new feoffee 
 mines" (I. Report on Peer's Dignity, was regarded as the subject of a fresh 
 34). The technical terms of feudal-law, compact. It is true that the so-called
 
 The Property Bases of the Norman Feudal State. 99 
 
 grant " dedi et concessi tibi et heredibus tuis," only means a 
 concession amounting to a continuous military pay. The 
 enfeoffment of the heir only took place conditionally upon 
 his being a man capable of fighting ; and that of the heiress 
 only where there was a failure of males, and in order that she 
 might marry a warrior and one acceptable to the milita^ 
 chief. Accordingly it was natural that the feoffee could neither 
 sell nor mortgage the estate, nor make it a security for his 
 debts, nor dispose of it by will ; and hence follow these further 
 legal incidents : 
 
 2. f)e Belgium, l&dfef. As an acknowledgment that 
 the feudatory only possessed the estate on condition of doing 
 military service, a certain quantity of weapons and accoutre- 
 ments or a sum of money were rendered by Norman custom, 
 when a change of the person bound to service took place ; 
 out of which proceeded at last a fixed recognition-money of 
 one hundred shillings for each knight's fee. In a certain 
 sense the Prinia Seisina, Primer Seisin, is an addition to this. 
 For greater security the King, as lord of the fee, could take 
 possession of the estate after the death of the vassal until 
 the successor proved his title, or, where necessary, pleaded 
 and obtained his right, and bound himself to pay the re- 
 levium. According to old feudal custom the lord could in this 
 way claim a whole year's income. (2) 
 
 3. jpcutral (SSUrtfsfup anU JftOttfcgt, As it is an act of 
 favour on the part of the feudal lord, to give the fee to one 
 personally incapable of military service, so he can take back 
 
 Carta Wilhelmi (iii. 5) contains the ing of the Leges Wilhelmi I. 20, in 
 express assurance : " Prout statutum which with unimportant deviations 
 est eis, et illis a nobis statutum et con- from the original, the law of Cnutia 
 cessum jure hereditario in perpetuum, translated ; similarly in Hen. I. c. 14. 
 per commune consilium totius regni The question has been materially elu- 
 nostri." But this passage belongs to cidated by Freeman and Stubbs. The 
 the spurious addition s,which in Stubbs' "heriot" in the Anglo-Saxon sense 
 " Charters " have been rightly repu- continued as an obligatory duty of 
 diated. Nevertheless, in the Norman- the heir to " make payment," but yet 
 Fraukish feudal law the hereditability herein was recognized an hereditary 
 of the fief had become so far established right of possession residing in the 
 that the King could not deny it without vassal. Now the Exchequer substi- 
 driving the whole of the vassals to re- tuted for this position the Franco- 
 sistanoe, besides the great vassals who Norman feudal idea, according to 
 were at all times ready for revolt. The which the lord is from the first the 
 hereditability has never from the first actual owner, and grants by investi- 
 been seriously disputed. The weak ture to the new feoffee a "dominium 
 point lay only in the defects of the de novo " (Stubbs, i. 261). The pay- 
 administration of justice, especially in ment of the heriot in horses and 
 the want of a right of action to compel weapons ceased with the Assize of 
 the King to renew the fief. Arms (27 Henry II.), according to 
 (2) The reliefs are based upon Nor- which the weapons of the deceased 
 man-French customary law. With re- should always be preserved to the heir, 
 gard to the Saxon Thanes the King Since then a sum of money, amounting 
 could also refer to the laws, of Cnut ii. to 100 sh., was fixed for each knight's 
 70, 71 ; and probably this is the mean- fee.
 
 100 Constitutional History of England. 
 
 the estate, when the heir is a minor, and can exercise in 
 person or through a custos the rights belonging to it, 
 and continue this wardship, enjoying the profits, until the 
 completion of the heir's twenty-first year, without rendering 
 any account (Glanvill, vii. 9, sec. 6). As tutor legitimus of 
 the ward's person he might also give the heir in marriage 
 when the latter has arrived at a proper age, and on such an 
 occasion can exact money payments ; a custom which arose 
 under circumstances when the nearest agnate was wont to 
 drive a bargain concerning the marriage of the ward. In 
 failure of sons, the heiress remained under this profitable ward- 
 ship until her majority, and when she had come of age, was 
 married by the feudal lord to a husband, who now became the 
 real feodary. In the spirit of the old wardship the marriage 
 of the female ward was also regarded as a money business. 
 The revenue rolls show us how, in Normandy also, female 
 wards were given away for 100, 600, and 700 livres of Anjou 
 (Madox, i. 520 ; Glanvill, vii. 12, sec. 1). (8) 
 
 4. gifts, auxiltfl. The original destination of the fief as 
 a means of obtaining service for the lord binds the vassal to 
 an extraordinary contribution in extraordinary cases of honour 
 and necessity, notably to ransom the lord who has been taken 
 prisoner, to endow the lord's eldest daughter, and when his 
 eldest son is made a knight (pur faire Fitz-Chevaler). These 
 three cases are mentioned in the Grand Coutumier and 
 amongst the Normans in Naples and Sicily as the customary 
 ones, but do not absolutely exclude other urgent cases, espe- 
 cially contributions made by the under-vassals towards the 
 reliefs and aids which their lord pays to his feudal over- 
 lord, and for the payment of his debts. (4) 
 
 5. tEfce IBscljeat, ^forfeiture of t!# jptef, is the last decisive 
 point in which the conditional value of the grant appears. 
 The former takes place when the feudatory dies without heirs 
 capable of succeeding to the fief ; a case that must frequently 
 have occurred, inasmuch as, until the time of Henry VIII., 
 there was no right of disposing of lands by will. Still more 
 frequent was forfeiture on account of "felony," which includes 
 almost all important crimes, regarding them from the point 
 
 (3) Feudal wardship and marriage of consenting to the marriage of every 
 
 are certainly derived from Norman- heiress, from the circumstance that 
 
 French feudal customs, for to have otherwise the feudal lord could have 
 
 founded them upon Cnut's Thane-law a vassal forced upon him. Ths assent 
 
 (Cn., ii. 72-75) would have been less was not to be refused without "justa 
 
 advantageous for the Exchequer. More causa," but neglect in obtaining it is 
 
 exact information is given by Glan- punished with the loss of the fief, 
 vill, vii. 12, according to which the (4) The Auxilia will be treated of 
 
 marriage of the daughters of the crown more fully under the head of Finan- 
 
 vassal is derived from the tutela legi- cial Administration. 
 t ima of the feudal lord ; but the right
 
 The Property Bases of the Norman Feudal State. 101 
 
 of view of disobedience towards the feudal lord. The especial 
 harshness of the English feudal law adds to the formal at- 
 tainder on account of "treason and felony," a corruption of 
 the blood or disability of the descendants to succeed to the 
 inheritance. (5) 
 
 These are the five points of the feudal system, round which 
 for centuries the most important dealings with the vassals 
 revolve. As to their origin the oldest authorities are remark- 
 ably silent; no statute introduced the feudal system into- 
 England, or in any way regulated its details. The charters 
 of William contain merely a general recognition of the con- 
 ditions of property. Nor is there any trace of bestowals of 
 fiefs through which the Saxon Thanes either sought after or 
 received a re-grant of lands to be held " according to feudal 
 law ; " and it cannot have originated in the framing of the 
 deeds of feoffment, for these were only expressly formulated 
 in much later times. It was rather the practice of the finance 
 control and of the courts which in course of time developed 
 its details from the following combination of circumstances. 
 
 When the Conqueror conferred investiture upon one of his 
 faithful followers, there lay in the use of the customary words 
 a reference to customary legal relations on the side of the 
 grantee, and of the thing granted. 
 
 1. The grantee subjects himself through the words " devenio 
 homo vester " to the law, as established in Normandy, and as 
 it is administered according to the custom there ; and the 
 Anglo-Saxon cannot in this matter claim a right different 
 from that of the Norman. 
 
 2. The thing granted is, as a matter of course, granted 
 according to the rights which the preceding possessor had; 
 that is, with all the burthens and duties which originated in 
 the conditions of the Anglo-Saxon Folkland and land granted 
 to tenants, and in the conditions attached to the alienation 
 of Bocland : the Norman also was in these matters to have 
 no greater right than the Saxon. Where these two relations 
 were not in congruity, the Crown was naturally inclined to 
 put in force whichever right was more favourable to itself. 
 But in other respects it was necessary that the feoffees should 
 be treated as nearly as possible alike. Hence in the Ex- 
 chequer and the Curia Eegis (that is, from a financial as well 
 as a legal point of view) new principles were formed which 
 
 (5) The right to property for which Forfeiture on account of crimes is 
 
 no heirs can be found was already even in the Anglo-Saxon period not 
 
 found in the Anglo-Saxon law (Cod. confined merely to treason, as is gene- 
 
 Dipl., No. 1035), but, in consequence rally supposed, but also took place in 
 
 of the want of a right of disposing by the case of other serious crimes. But 
 
 will in the case of the feudatory, at- in the feudal law still stricter prin- 
 
 tuined new and unheard-of dimensions. ciples of felony were also applied.
 
 102 Constitutional History of England. 
 
 kept the middle path between Norman and Saxon customs, 
 and blending both together produced after some fluctuation a 
 uniform law. And from these points of view all the details 
 of the feudal law can be explained. 
 
 The most important deviation from the continental system 
 lies in the institution of arriere-vassals. The Conquest itself 
 and the mixture of nationalities had rent asunder the natural 
 bond subsisting between the great vassals and their followers, 
 so that the Conqueror could successfully put in practice the 
 maxim that every under-vassal and greater freeholder must 
 take the oath of allegiance to the King immediately, by which 
 means, as regards military service, all subjects of the realm 
 should be immediately under the King. Consequently every 
 oath of fealty, which is sworn to the private feudal lord, 
 excepts allegiance to the King, " salva fide debita domino et 
 heredibus ejns " (Bracton, ii. 35, sec. 8). By this maxim which 
 came into complete operation in England, the key-stone was 
 inserted in the edifice of the feudal state ; and a final sanction 
 was added towards the end of the Conqueror's reign, at a 
 great extraordinary court and muster of the feudal militia, 
 held at Salisbury ; with regard to which the Saxon Chronicle 
 uses the words : " Omnes prsedia tenentes, quotquot essent notse 
 melioris per totam Angliam, ejus homines facti sunt, et omnes 
 se illi subdidere ejusque facti sunt vasalli, ac ei fidelitatis jura- 
 menta prcestiterunt, se contra alias quoscunque illi fides futuros " 
 (Chron. Sax., A.D. 1086). By a great act of homage the 
 infeudation of the whole of the landed property in the country 
 was here proclaimed as a law of the kingdom. It was, 
 indeed, an important event in English history, when William 
 made his faithful followers, from the greatest magnates down 
 to the squireless knights and the freeholders, kneel down 
 before him, and placing their folded hands in the hands of 
 their royal master, swear to him the oath of fealty on 
 account of their possessions. This act alone necessarily gave 
 the English political life a different direction from that of the 
 continental states. 
 
 Connected with this systematic introduction of the feudal 
 system, in the years 1083-1086 a comprehensive property- 
 register of the kingdom, the "Domesday Book," *** was drawn 
 
 *** The origin of the Domesday Lately, the Latin text has also been 
 Book is described in Lappenberg, ii. printed for certain counties in extenso, 
 143-154. It was officially printed in without the abbreviations (London, 
 the year 1783, in two folio vols. : to 1862, etc.). Thirty-four counties ap- 
 which were added four supplementary pear, but not the counties of North- 
 registers and indices, in two additional umberlaud, Cumberland, Westmore- 
 volumeB of the Record Commission, land, and Durham, which were as yet 
 1816 (Explanatory treatises by Kel- not in the secure possession of the 
 ham, 1788 ; Sir H. Ellis, " Introduc- Normans ; Lancaster does not appear 
 tion to the Domesday Book," 1833). to have been organized as a county
 
 The Property Bases of the Norman Feudal State. 103 
 
 up with unexampled completeness and accuracy; a register 
 invaluable to the Norman political administration, and 
 equally so, as a trustworthy groundwork, to the historian. A 
 division of the land into knights' fees does not appear in this 
 land register ; but a perfect foundation for a future list of fiefs 
 was laid in it by the registration of townships and hides, 
 embracing not only agricultural soil, but landed property, 
 with all its appurtenances in the shape of customary services, 
 dues, and safe-conduct money. The existing conditions of the 
 land and soil remain in the lower stratum unchanged, but 
 henceforth they form material for new tenures in accordance 
 with feudal law. 
 
 At the head of these masses of property stands the King 
 with a reservation of more than one thousand manors, to- 
 gether with numerous chases, parks and forests, formed out of 
 possessions, for the reservation of which the old relations 
 between the Saxon royal house and the Folkland gave a good 
 title. The former possessions of the great Anglo-Saxon 
 Thanes, and county Thanes, which had become vacant by 
 death, flight, and outlawry, form the principal material for 
 providing for the vassals of the King; the Saxon Thanes 
 who still remained in possession are to be found principally 
 among the subtenentes of the Norman magnates. The 
 possessions of the Bishops and the monasteries are incor- 
 porated into the new system of property, with the proviso 
 of a duty to furnish their contingent to the feudal militia. 
 The freeholders who still existed, the landowners bound 
 to magisterial duties (sochemanni), and the burgenses kept 
 their places almost unchanged. In like manner the Anglo- 
 Saxon peasants, ceorls, villani, remain as they were ; also the 
 farm labourers (bordarii), although these also were partially 
 supplanted by servants whom the Norman lords had brought 
 with them. In the still remaining serfs (servi), who were 
 few in number, no change can be seen. As Domesday Book 
 states the several modes of property existing at the close of 
 the Anglo-Saxon period (tempare Regis Eduardi), as well as 
 those at the accession of William, and when this land-register 
 was framed, the changes which had taken place in these 
 descriptions of property may be surveyed from the following 
 table : 
 
 Tempore EducwdA. Tempore Wilhelmi. 
 
 Chief proprietors and others 1,599} Vassals of the Crown . . 600 
 
 King's Thanes . . . 326 1 c v* QT , n 071 
 
 Milites .... 213 Subtenentes .... 7,871 
 
 Tenentes et subtenentes . 2,899 J Liberi homines . . . 10,097 
 
 until Henry III. ; London, "Winchester, men was 283,242 ; that of the regis- 
 and certain other cities are also want- tered " hides " about 225,000. 
 ing. The attested sum total of the
 
 104 
 
 Constitutional History of England. 
 
 Tempore Eduardi. Tempore WilJielmi 
 
 
 Ecclesiastic! 
 
 
 
 1,564 Ecclcsiastici 
 
 
 
 
 994 
 
 Sochemanni 
 
 
 
 23,404 Sochemanni 
 
 
 
 
 23,072 
 
 Burgenses . 
 
 
 
 17,105 Burgenses 
 
 
 
 
 7,968 
 
 Villani 
 
 
 
 102,704 Villani . 
 
 
 
 
 108,407 
 
 Bordarii 
 
 
 
 74,823 Bordarii 
 
 
 
 
 82,119 
 
 Cottarii 
 
 
 
 5,497 Cottarii. 5,054 
 
 Servi 26,552 Servi 25,156 
 
 Hence we perceive that extensive changes have only taken 
 place in the great landed estates, and that in the course of 
 the Conqueror's reign the last Saxons have been ousted from 
 the lands and from the position of great Thanes and Bishops. 
 The grades of landed proprietors at this time are therefore as 
 follows : 
 
 1. About six hundred persons and corporations appear as 
 secular and ecclesiastical Crown vassals (tenentes in capite), 
 but in very different degrees. About forty lords (the later 
 Barones majores) are enfeoffed of an aggregate of estates, 
 which may be compared with the lordships of the Saxon 
 great Thanes, but they are scattered about in different 
 counties. About four hundred warriors (the later Barones 
 minores) who served immediately under the Duke, were 
 enfeoffed of single knights' fees or manors. The line of 
 demarcation between the two is in this period merely one 
 founded on fact, and a changing one. Among the spiritual 
 lords the landed possessions of the majority of the Bishops 
 and certain great abbots may be compared with those of the 
 great secular feudatories ; the great majority of fees are also, 
 from this point of view, small. It is only when many small 
 and doubtful forms of possession are added to these that the 
 number of 1400 tenentes in capite appears, as given by Ellis. (1) 
 
 2. The second rank is formed by 7871 subtenentes. As the 
 greatest feoffees had to furnish a whole company of heavy 
 armed soldiers, subinfeudation was a suitable, if not a neces- 
 sary, method of furnishing the contingent due. For the 
 Norman soldier this signified a fresh grant on the part of his 
 chieftain ; for the Saxon Thane, who was left in possession, 
 
 (1) The number of the tenentes in 
 capite is given by Ellis 'at 1400, but 
 many very obscure elements are reck- 
 oned among this number. The ex- 
 tracts referred to in Kelham, give as 
 follows : 
 
 (a) Ecclesiastical entries; 19 Arch- 
 bishops and Bishops (among them a 
 few Normans); 20 Canonici; 56 Abbots, 
 Abbesses and Abbeys ; 38 Ecclesise ; 1 1 
 Presbyteri; 2 Diaconi : 3 Capellani ; 
 altogether 153 single entries. 
 
 (b) Secular lords; 10 Comites ; 394 
 other lords (among whom 214 are 
 
 registered in one county, 180 in two 
 or more places); 10 Comitissse; 20 
 other women and daughters, and a 
 few collective appellations, Homines 
 Liberi Regis, etc. 
 
 I accordingly assume the existence 
 of at least 600 Crown vassals in round 
 numbers. The Anglo-Saxons had al- 
 ready been ousted from the greater 
 possessions; Waltheof is mentioned as 
 being the last Ealdorman, and Wulf- 
 stan as the last Bishop. Among the 
 small Crown vassals, however, we find 
 many with Saxon names.
 
 The Property Bases of the Norman Feudal State. 105 
 
 it meant a limited recognition of his possession with fresh 
 burthens. At the time of Domesday Book the partition 
 of great estates into subfees had only been begun in a 
 limited degree. But Crown vassals and corporations are 
 even then both met with as under- vassals. (2) 
 
 8. The rest of the population, who were not subject to 
 military service, were mostly, though not entirely, incorpo- 
 rated with the great estates in which they had for the most 
 part a precarious or heavily burdened possession, to which 
 were added also certain other burdens by reason of the feudal 
 duties of the lord of the soil. As a constant companion of 
 the feudal system is now added a tax duty (tallagium), to 
 which all inhabitants of town and country were subject, who 
 were not bound to the feudal military service. The chief 
 groups are : 
 
 10,097 liberi homines*, among whom, however, the names did 
 not yet imply possession of freehold estates. (3) 
 
 23,072 sochemanni, hereditary possessors, who are only 
 subject to the magisterial jurisdiction (soca) of a landed 
 proprietor without being incorporated with an estate as 
 tenants. (4) 
 
 (2) Among the 7871 subtenentes, 
 about one-half of the names are still 
 Saxon; the Domesday Book makes 
 mention of " taini " in nearly all 
 counties (c/. Heywood, pp. 85, 120, 
 135, 200, 208; see also Ellis, i. 143). 
 Division of large estates by subin- 
 feudation permanently deprived the 
 great vassal of the enjoyment of pro- 
 prietorship, and was therefore avoided 
 as much as possible. Only for the 
 spiritual corporations there existed 
 from the first a certain necessity for 
 this course. It is expressly declared 
 of Archbishop Lanfranc that by order 
 of the King he enfeoffed the farmers 
 on his lordships (the "threnges") as 
 under-vassals : prsecepit rex, ut de eis 
 niilites fierent ad terram defendendam. 
 Especially for the landed estates of the 
 cathedral chapters ten knights were 
 enfeoffed, and for this purpose lands 
 of the value of 200 were assigned. 
 On the other hand, under William 
 Rufus, the Abbot of Eomsey was still 
 allowed to furnish three knights to 
 the feudal militia, without a formal 
 subinfeudation (Stubbs, i. 262, 263). 
 It is apparent from many instances 
 that ecclesiastics and great vassals, 
 with the royal licence, freed their 
 whole estates from furnishing feudal 
 troops, by creating by subinfeudation 
 a certain number of sub-vassals once 
 
 and for all. Landed estates belonging 
 to abbeys are frequently mentioned, 
 which, once granted to English Thanes, 
 became under William subinfeudated 
 in accordance with Norman feudal law 
 (Freeman^ iv. 479). 
 
 (3) Of the 10,097 liberi homines and 
 2041 liberi homines commendati, 4487 
 are met with in Norfolk, and 7470 in 
 Suffolk, that is in Danish counties. 
 According to the Dane law the 
 compensation for the liber homo was 
 three marks, that of the socmannus only 
 twelve eras. Hence the appellation 
 would seem to express a somewhat 
 higher grade than that of the soc- 
 mannus, although other passages seem 
 to make this doubtful. The old com- 
 mendatio was also interpreted by the 
 Normans as a subinfeudation, though 
 it merely signified the finding of a 
 landlord as an act of agreement be- 
 tween the lord and the " commended." 
 In the land register this relation is 
 treated of as an oblatio feudi, and con- 
 sequently as a transferable " real 
 right," residing in the feudal lord 
 (Freeman, v. 463, and Index, s.v. t 
 " Commendatio "). 
 
 (4) The 23,072 socmanni are recorded 
 in almost exactly the same number as 
 existing at the time of Edward. The 
 institution must accordingly be based 
 on a fixed legal conception, and this
 
 106 
 
 Constitutional History of England. 
 
 7968 Burgenses, the great decrease in whose numbers is 
 explainable from the desolation caused by the war. (5) 
 
 108,407 viUani, the new term for settled ceorls or the 
 proper villeins. (6) 
 
 82,119 Bordarii, that is, agricultural servants, workmen, 
 and labourers, but who were often in possession of houses 
 and small plots of land. (7) 
 
 The rule which determined the further development of 
 these conditions was manifest : namely, that the Saxon could 
 not claim more than the Norman, and that the lower classes 
 (apart from the obligation to feudal military service) must 
 subject themselves to the limitations and burdens laid upon 
 them by the upper classes. 
 
 By the extension to these classes of the oath of fealty, the 
 reliefs, escheats, and forfeitures, it came to pass that after 
 many generations the maxim of jurisprudence was formulated 
 " that the King is the universal lord and original proprietor 
 of all the lands in his realm, and that no one possesses or can 
 possess any portion of them, which is not derived mediately or 
 immediately from a grant by him." The new order is a 
 thorough arrangement of society into ranks according to 
 
 can only be the Saxon legal jurisdic- 
 tion. In the treatise of Spelman, " De 
 Natura Srevium," they are mentioned 
 as having a title with specified ser- 
 vices, as suitors exempt from the 
 common popular courts, and only 
 really bound in their own court, and 
 capable of having others in villenagio 
 under them. Certain socmen are met 
 with again as under-vassals, and in 
 possession of a whole manor (Ellis, ii. 
 389). 
 
 (5) The Burgenses had been reduced 
 by war from their original numbers 
 (17,105) ; Domesday Book describes 
 the condition of decay and the number 
 of forsaken houses in many individual 
 towns. 
 
 (6) The villani (108,407) embrace the 
 mass of the Anglo-Saxon ceorls in the 
 position of peasants on the lord's 
 estates, as well as a number of the 
 old peasant proprietors and hereditary 
 possessors, at the time of Domesday 
 Book. It is difficult to believe that 
 among the still doughty array of the 
 peasants of Wessex and the "men of 
 Kent," an hereditary proprietorship 
 should have wholly vanished. As to 
 the degradation of the villani in this 
 period, see below in cap. xx., para- 
 graph iii. For the rank of the " liber 
 homo" the possession of a peasant farm 
 was without any decisive influence : 
 
 " Item tenementum non mutat statum 
 liberi non magis quam servi. Poterit 
 enim liber homo tenere purum villena- 
 gium, faciendo quicquid ad villenagium 
 pertinebit, et nihilominus liber erit, cum 
 hoc faciat ratione villenagii, et non 
 ratione personse suss " (Bract., ii. c. 8). 
 
 (7) The 82,119 Bordarii are regu- 
 larly mentioned in the Domesday Book 
 after the villani, as being still inferior 
 to these. According to Du Cange, the 
 term answers to our "cottager," that 
 is, denotes the labouring classes, to 
 whom, in addition to their dwelling, a 
 garden and a few acres of laud had 
 frequently been given. 
 
 A survey of these conditions is ren- 
 dered more difficult by the fact that 
 the Latin text of Domesday Book 
 very frequently translated the Anglo- 
 Saxon terms in an arbitrary manner ; 
 that the commissioners in the different 
 counties did not make use of a uniform 
 rule of expression, that one and the 
 same term might embrace locally dif- 
 ferent legal relations ; that on the other 
 hand similar conditions were denoted 
 in different places by different legal 
 terms ; and, finally, that our knowledge 
 of the smaller kinds of property is ex- 
 ceedingly defective. As to the state 
 of things at the close of this period, 
 vide below, cap. xx.
 
 The Property Bases of the Norman Feudal State. 107 
 
 military service, an immediate and effectual subordination of 
 the upper classes in military obedience to the King, and con- 
 sequently a still stricter subordination of the lower classes. 
 The whole landed property became thus uniformly subservient 
 to the State, and has remained so to this day. 
 
 The legal construction of the English Feudal System was 
 deduced by the author of this work in the second edition of 
 his "Englische Communal- Verfassung," and his "Englisches 
 Verwaltungs-recht " (1863-1867), from the legal sources and 
 printed records then available, but has been since that time 
 completed and rectified by the copious investigations of Free- 
 man, " Norman Conquest," vols. iv., v., and vi. (1871-1879), 
 and Stubbs, " Constitutional History," vols. i. and ii. The 
 material result of these valuable investigations (with a few 
 supplementary additions on my part) are as follows : 
 
 The belief which has come down to us from Selden and the 
 antiquarian school, a belief which was hitherto universally 
 received, that William I. divided the English landed property 
 into military fees, is erroneous, and results from the dating 
 back of an earlier condition of things. Equally erroneous is 
 the statement which has been repeated for centuries, that the 
 English real property was at a certain period distributed into 
 60,215 knights' fees, of which 28,015 were in the possession 
 of the Church, and the rest in the hands of secular vassals. 
 These computations were arbitrarily set up by later anti- 
 quarians, by reference to the number of the hides, and are at 
 least twice as high as they should be. The figures in this 
 case are among the many numerical exaggerations of the older 
 historians.* 
 
 Domesday Book does not contain a " fee-roll," but a 
 "property-roll," upon which in later times the fee-rolls were 
 framed. Palgrave rightly maintained that in that great 
 register there is nothing to be found about " knights'-fees " as 
 a special kind of tenure of landed property. The term feudum 
 is, in the language of the land-register, a general expres- 
 sion for landed property under the new ruler. The term 
 miles appears, as a rule, to be merely a translation of the 
 Anglo-Saxon " thegn." Domesday Book simply describes 
 the real property with its customary burdens and services, 
 without making any mention at all of new burdens and 
 
 * The estimate of Higden in the accepted the quotation, and has made 
 
 " Polychronicon " (i. c. 49) of 60,015 of it a tralatitium. Cf. Stubbs, i. 424. 
 
 knights' fees is contradictory of the fact At the close of the period, Stephen 
 
 that the Treasury itself could at no Segrave, a minister of Henry III., 
 
 time give a correct estimate of the computes the number of knights' fees 
 
 number of knights' fees. From Higden at 32,000, and even from such a number 
 
 that number passed into the so-called the knights' scutage could never be 
 
 1 Eulogium," out of which again raised. 
 Selden, in his notes to Fortescue, has
 
 108 Constitutional History of England. 
 
 services resulting from the new feudal bond, and even without 
 any intimation that the new military service is different from 
 the old. The land is not divided into knights' fees, but into 
 hidte ; where the "men" of one or other great landlord are 
 spoken of, the expression evidently refers, as a rule, only to 
 the old Anglo-Saxon vassalage, or to the commendatio to a 
 Hlaford as an institution of the Anglo-Saxon police control. 
 It was only in the succeeding generations that the feudal 
 military service was definitely apportioned on the basis of this 
 register, and that the claims of the royal feudal lord in the 
 exchequer were consistently enforced. 
 
 The occupation of the country after the battle of Hastings 
 began with those counties from whose levies Harold's army 
 had been formed. In these a general confiscation of the 
 landed property of the "rebels " took place, so that among the 
 tenentes in capite scarcely a single Saxon name can be found. 
 From thence the Conquest spread further towards the West 
 and the North, until in 1070 the occupation was mainly 
 completed. In this further occupation the principle is still 
 adhered to, that participation in the struggle against William, 
 as the legal heir to the crown, entailed as a legal consequence, 
 not indeed, outlawry, but forfeiture of landed property ; as the 
 result of which re-grants were at once made to Normans and 
 to certain favoured Angli. Those Angli, on the other hand, 
 who had not taken part against him, or who had compromised 
 themselves less, were allowed, by " redemption," to receive 
 back their possessions from the King, as an act of his favour ; 
 accordingly, those who participated in his grace, received a 
 royal writ (breve), which appears from that time necessary 
 and sufficient for all purposes as a title of possession. The 
 technical term for this is " inbreviare" According to the 
 diversity of various cases, the inbreviatio is bestowed in 
 consideration of small, greater, and often very large dues, 
 and the " redemption " is granted either for the whole or 
 only for a part ; widows and poorer members of a family are 
 sometimes allowed a small portion as a charitable provision. 
 The theory and manner of expression of this " redemption," 
 which are consistently maintained throughout Domesday 
 Book, make it appear as a royal gift, by which the new lord 
 of the whole country allows the former possessor a certain 
 share in the soil. Later jurisprudence was able, accordingly, 
 to deduce, with plausible reasons, from these " redemptions " 
 the character of a conditional grant (tenure). The ecclesi- 
 astical estates alone were conceded to the corporations who 
 were in possession of them, without the humiliating form 
 of inbreviatio, because the theory of personal forfeiture ap- 
 peared not to be applicable to them. Yet in the next reign,
 
 The Property Bases of the Norman Feudal State. 109 
 
 the system of tenures in all its bearings was extended even 
 to these. 
 
 The landed property thus granted or redeemed was, accord- 
 ing to the Conqueror's plan, to be uniformly employed in 
 forming the heavy-armed feudal militia. To the newly en- 
 feoffed Norman lords this was the natural feudal custom of 
 their country. To the newly enfeoffed Angli and to those 
 who had redeemed their possessions, it appeared in the light 
 of a just equalization. Yet the accomplishment of this 
 scheme was not effected under William I. In the carrying 
 out of it the difficulty with which the Anglo-Saxon adminis- 
 tration had struggled for centuries immediately returned : a 
 fixed standard for the apportionment of the soldiery was 
 wanting. Since Alfred's time, indeed, the general rule had 
 been observed that a fully equipped man should be furnished 
 for every five hidae ; but it had never been established as a 
 rule of law as in the Carlovingian legislation ; the apportion- 
 ment had remained a matter of administration, regard being 
 had to the state of the income at the time and to other con- 
 ditions, and hence it was for the sheriff and the county ad- 
 ministration an object of continual claims. Only in a few 
 places a local legal custom had become established, which 
 accordingly was carefully noted in Domesday Book.** 
 
 Apart from this, the apportionment of the cavalry service 
 (which had now become more expensive) under the new 
 schemes of property, and the valuation of the real estates 
 according to their productive worth, was certain, after so 
 many changes and desolating struggles, to lead to more violent 
 
 '* In my " Geschichte der -Commu- be expressly reserved was natural, see- 
 
 nal-Verfassung," p. 17, I have pointed ing that the contingent furnished by 
 
 out that the fixing of military service the hundreds remained the same, so that 
 
 according to the standard of the the deficit would have fallen upon 
 
 hide had not in the Anglo-Saxon their neighbours. In like manner 
 
 period become a rule of law. It occurs the rprivileges of the towns in the later 
 
 accordingly only incidentally in Domes- Anglo-Saxon times must be regarded; 
 
 day Book. In a few cases in the royal the military service of -which is fixed 
 
 grants the number of the warriors to at five, ten, fifteen, and twenty hides, 
 
 be furnished was determined by privi- and in which we also meet with a 
 
 lege, which number was therefore not money discharge, Chester paying a 
 
 to be exceeded. Thus in the case of sum equal to 50, and Shrewsbury 100 
 
 an important grant about the year hides (Lappenberg, i. 613). After the 
 
 800 : " Verum etiam in expeditionis Conquest this institution appears as a 
 
 necewitatem viri quinque tantum mit- local custom, as in Berkshire (i. 56. 6) : 
 
 tanlur." (Coenuulf, 799-802, in Kem- " si rex mittebat alicubi exercitum de 5 
 
 ble, " Codex " Introd. p. li.) And again hidis tantum unus miles ibat, et ad ejus 
 
 shortly after this " expeditionem cum victum vel stipendium de unaquaque 
 
 duodecim vasallis et cum tantis scutis hida dabantur ei iv. solidi ad ii. menses." 
 
 exerceant" (idem, 821). In the latter Because the rate of the five hides was 
 
 case it was a matter of a grant of some only a principle of administration, it 
 
 twenty townships to a monastery (Cod. was in practice much modified, and 
 
 Dipl., i. 272). That where great grants maintained itself as an established 
 
 were made to churches and monasteries custom only in certain counties. 
 a definite number of warriors should
 
 110 Constitutional History of England. 
 
 disputes than ever. On the earnest endeavour made to carry 
 out the plan at the time of threatened invasion in the year 
 1085, the King abandoned the scheme, in consequence of the 
 probability of endless disputes ; but he imposed a high tax 
 (hydagiurri) upon the hides, and hurriedly collected a paid 
 army with the other means at the disposal of his exchequer. 
 Connected with this event was the well-considered plan to 
 determine for the future, by means of a land-register of the 
 realm, all the factors according to which, in case of future 
 levies, the number of " shields " to be furnished should be fixed, 
 and the other feudal dues exacted. Upon this basis, after the 
 year 1086, the shares of the great landed proprietors were 
 settled, according to which a heavy-armed man (servitium unius 
 militis) should be furnished for each share. Thefeuda militum 
 thus computed are no knights' fees of a limited area, but real 
 portions of the profitable free estate. " The knight's fee is 
 no manor, and no hide of a fixed uniform extent, but a unit 
 of possession which imposes upon the owner the obligation 
 of furnishing a fully equipped man for the usual period of a 
 campaign. These ' units of property ' comprise not only 
 agricultural land but buildings, rights of cutting timber, 
 mills, fisheries, salt and other mines, tolls, market dues, 
 tithes, etc. ; and also, as the furniture as it were of the soil, 
 the mass of tenants, the greatest cities as well as the smallest 
 villages, and single farms, the formerly allodially free peasant 
 as well as the serf who had settled on the land, with all 
 customary services, dues, and protection moneys. Through- 
 out the whole of the Middle Ages the normal standard of a 
 knight's fee is not the acre-measure but a ground-rent of 15, 
 and in later times generally of 20 Ibs. of silver." *** The 
 judicial and police system appertaining to a manor are inde- 
 pendent of this ; a manor may be estimated at either more or 
 less than a knight's fee, and as such has no connection with 
 knights' service. It was only after a lapse of time, and in a 
 limited degree, that knights' fees began to be settled on certain 
 and determinate estates. 
 
 Accordingly, after the land register of the realm had settled 
 
 *** I may repeat these words from was due, but that no special knight's 
 
 the second edition of my " Englisches fees were formed out of them, but the 
 
 Verwaltungsrecht," as they appear obligation lay jointly and separately 
 
 to have accurately hit the material upon each carucata. Hence even in 
 
 point. Under Henry II., after the those times, a valuation according to 
 
 knights' fees had attained their fullest the productive results was in existence, 
 
 development, there are to be found in without dividing up the estates into 
 
 the liber niger, feuda militum of 2, 2, separate knight's fees (Stubbs, i. 264). 
 
 4, 5, and 6 hides. For example A copious use of extracts from the 
 
 Geoffrey Ridel tells us that his father Domesday Book has been made by 
 
 possessed 184 carucatie ( = 100 acres), Freeman (Vol. v. Append. A, B, C, D). 
 for which the service of fifteen knights
 
 The Property Bases of the Norman Feudal State. Ill 
 
 the factors for the distribution of war burdens for the later 
 generations, William found himself enabled to fix the keystone 
 of his system, by the universal, fundamental and immediate 
 obligation to allegiance, in which he included not merely his 
 own immediate crown- vassals but their under- vassals also, as 
 well as all the greater freeholders in the country, " omnes prsedia 
 tenentes, quotquot essent notes melioris per totam Angliam ; " 
 and his contemporaries have understood his act in its fullest 
 extent, " milites eorum sibi fidelitatem contra omnes homines 
 jurare coegit " (Florence). During the Norman reigns which 
 follow consequences in all directions proceed from this basis. 
 
 The Norman Crown, as the heir of the Anglo-Saxon, re- 
 tained all the powers and revenues of its predecessors, and 
 as supreme feudal lord over all the land added to these the 
 newly acquired feudal rights. The King claims obedience, 
 military service, and tribute, in both characters; all 
 homines are his men; he can summon them to his army, 
 cite them to appear in his tribunals, can rate them in respect 
 of his revenue, without the intervention of an intermediate 
 lord. It is difficult to say what immense consequences might 
 not have proceeded from this twofold position, if, after the 
 fashion of all human affairs, a limitation of them had not 
 arisen in another direction through the circumstance that all 
 royal governments of this period began with a dubious or dis- 
 putable title, and had to struggle with dangerous risings on 
 the part of the great vassals, which took place either alter- 
 nately or simultaneously in England and on the Continent. 
 Immediately after the occupation of England begins the 
 dangerous insurrection of Ralph Guader and Eoger, the son of 
 Fitz-Osborne. For a whole century, until the death of 
 Henry II., these revolts continued on the part of the great 
 vassals against the English feudal lordship, which they con- 
 sidered insupportable ; they end with the removal or degrada- 
 tion of all the great families which at the time of the Conquest 
 stood at the head of the martial nobility. In all these 
 struggles the national Anglo-Saxon element cleaves with 
 unshaken loyalty to the Royal house, and gains accordingly 
 the most material concessions from moral, as well as from 
 political considerations. The vouchsafing to all a like legal 
 protection, the established system of the central administra- 
 tion, the consolidation of the constitution of the counties, 
 cities, guilds, and all the elements which afford a counterpoise 
 to the " great vassalage," spontaneously urge themselves 
 upon the Anglo-Norman King as the policy which this state 
 of affairs requires, without partiality either for the one or for 
 the other nationality.! 
 
 t I may for the following survey of the reigns in Stubbs' " Select 
 refer my readers to the excellent sketch Charters."
 
 112 Constitutional History of England. 
 
 William Eufus already makes his "Angli" significant pro- 
 mises, in order with the help of their faithful soldiery to 
 humble the insurgent magnates, though he certainly does 
 not keep his word. Indeed, the Royal feudal suzerainty was 
 turned to account in this reign rather with a display of savage 
 brute force and of greed for money. A quick-witted cleric, 
 Eanulph Flambard, as Great Justiciary, unscrupulously 
 utilized the fiscal part of the royal suzerainty against 
 ecclesiastical and secular estates, and was the first to bring 
 into operation the grasping fiscal principles of the English 
 Exchequer. 
 
 Henry I. begins his reign with a fair-promising Charter, by 
 which he gains the sympathies of the nation for his defective 
 title to the crown. Every sentence of this charter throws an 
 unmistakable light upon the maxims of the preceding adminis- 
 tration ; and the promises which the King here made he also 
 kept in the main, by returning to the prudent principles of 
 government of the Conqueror. Like the latter, he avoids the 
 re-grant of territory and judicial powers to the great vassals 
 on any large scale. He centralizes the financial control in the 
 Exchequer, facilitates the access to the Curia Kegis, in other 
 directions enlarges the competency of the county courts, and 
 amplifies the charters of freedom of the cities and guilds. By 
 the circuits of his Justiciary and the Commissaries of the 
 Exchequer he brings the royal jurisdiction into immediate 
 connection with the provincial administration, in a manner 
 which obviates the danger of a territorial separation of the 
 manors. 
 
 Next follows the reign of the usurper Stephen, to the exclu- 
 sion of Henry's daughter, the Empress Maud, who had been 
 formally appointed to the succession. Stephen's cavalier- 
 like frivolity endeavours to gain the favour of the vassals 
 by extravagant grants of Crown lands, and by laxity in 
 administering the laws of the land. But so soon as .the 
 possibility of winning more adherents by this means is ex- 
 hausted, the defiant opposition of the Barons begins. Even 
 the peaceable magnates and Bishops saw themselves forced 
 in self-defence to fortify their castles, and to prepare for war. 
 In this critical moment Stephen commits the folly of arresting 
 his Grand Justiciary and Bishop Alexander, by which act 
 the clergy are provoked to opposition, and at the same time 
 an orderly political administration altogether ceases. Neither 
 Stephen nor the Empress has any real support in the popular 
 feeling, whilst barons and knights fight nominally under the 
 flag of one of the two claimants, but in reality for their own 
 landed interests. From this time, instead of the former well- 
 ordered administration of the realm, there is seen all the
 
 The Property Bases of the Norman Feudal State. 113 
 
 confusion of the continental feudal system private wars, 
 fortified castles, the forcible exercise by greater and lesser 
 barons of self-arrogated judicial functions, and of the privilege 
 of coinage a wild struggle of warriors among themselves, 
 under pretence of siding with Stephen or with Maud, until, by 
 the mediation of the clergy, a compromise is effected in 
 favour of the succession to the throne of Henry, son of Maud. 
 
 Henry II. ascends the throne without opposition, and with- 
 out any obligation towards either party, with the resolve to 
 rule England as an English King, together with his great 
 possessions on French soil. The basis of government and of 
 the county administration created by William I. and Henry I. 
 now received a systematic form. By the union of the royal 
 central administration with the national county courts, the 
 power of the great vassals was driven back into proper limits, 
 and with the support of an energetic and loyal official nobility, 
 the formation of which had begun as early as the reign of 
 Henry L, with the appointment of Eoger, Bishop of Salisbury, 
 the Norman administrative system attains its unequalled 
 systematic development. Even amidst the unfortunate family 
 relations and unfavourable external conjunctures which 
 characterized the latter years of Henry the Second's reign, 
 the internal organization of the Exchequer and the Curia 
 Eegis, and that of the legal, military, and financial system 
 makes consistent progress. And so also under that knight- 
 errant, Eichard I., the internal government, under the conduct 
 of sagacious officers, pursued a course that was in the main 
 orderly ; until under the worthless rule of his successor, 
 John, the crisis supervened, which led to the signing of 
 Magna Charta. 
 
 Within this framework is accomplished the internal con- 
 solidation of a political system, which stands unmatched in 
 Europe in the Middle Ages.
 
 114 Constitutional History of England. 
 
 CHAPTER IX. 
 Korman dountjj (Sobernment. 
 
 THE Conqueror found on his arrival, a well-ordered division of 
 the country into Shires, Hundreds, and Manorial districts, and 
 a corresponding official system of Earls, Shir-gerefas, royal 
 and private Gerefas. For King Eadward's legitimate successor 
 the retention of this system was a natural condition, and a few 
 years' residence in England must have sufficed to convince 
 the Conqueror that his rule could have no more advantageous 
 basis than the Gerefa-system he found there. The outward 
 fabric of the government of the country thus remained un- 
 changed, but it was enlarged by the new powers that had their 
 -origin in the feudal system, whilst in many points it was at 
 the same time limited by the centralization which soon began. 
 I. The -office of tf)e 35orl had, in the last two generations 
 of the Anglo-Saxon period, been reduced into the position of 
 an upper governorship, with an ever changing combination 
 of shires, and a frequent change of officials. According to 
 the custom of the country, it involved the highest secular 
 rank, corresponding to the ducal title of the Continent, and 
 continued to do so until the reign of Edward III., for the 
 " duces " of Normandy naturally avoided giving their subjects 
 the title of " dux" A few Anglo-Saxon Eorls retained their 
 earldoms for a considerable period. In the place of the rebel- 
 lious JEorls, Norman great-feodaries were appointed. Certain 
 lords apparently received the title of Eorl, only because, in 
 Normandy, they had already been Counts. Usually, though 
 not always, a high military rank was attached to the office, 
 which was conferred by a special ceremony, that of girding 
 with the sword (gladio comitatus cingi), but no active com- 
 mand was attached. The rights and profits of the Eorl, i.e. 
 the customary third of the revenues of the county, were at 
 first usually combined with it. But the conspiracy of the 
 Earls in the year 1074, showed plainly enough how 
 dangerous an administration by Earls was to the royal 
 rule. From that time onwards the appointments were made 
 with great reserve ; only such persons received them as had 
 already borne the title of "count" in Normandy; in later
 
 The Norman County Government. 115 
 
 times mostly members of the royal family; and in such 
 a manner that the Eorl was removed as far as might be 
 from the actual administration of county affairs. The former 
 administrative office passed into one of the highest dignity, 
 with many honours, but with as few duties as possible. 
 In Domesday Book are recorded the names of ten comites, 
 and a like number of comitisste. The greater number of 
 counties accordingly had no comes. Wherever we meet with 
 one, no jurisdiction is attached to his person, no command 
 in the army, no authority in the county court, and no special 
 magisterial power of any kind. The Eorl is connected with 
 the county, whence he has his name, in no other way than 
 through the " tertius denarius," under the sheriff's yearly 
 lease. The earliest Treasury accounts show the payment of 
 such sums, amounting to 11, 16, 20, 82, etc., under the 
 head of tertius denarius. But it is only a donatio sub modo, 
 the grant of a permanent income "for the better support of 
 the dignity of an Eorl ;" it consists in a mere order for pay- 
 ment or precept addressed to the sheriff, and is therefore a 
 right of demand, but no feudal right, and is accompanied by 
 no investiture. Occasionally the Eorl is also appointed as 
 sheriff, even in his own county, as Cospatrick was under 
 William I. An Eorl of this 'character must render his 
 accounts to the Exchequer, like any other sheriff, and he 
 is only permitted by warrant to retain the tertius denarius 
 (Madox, ii. 164). An Earldom has thus already the character 
 of the later titles of nobility; the same vagueness in the 
 names, which are sometimes taken from a county, and some- 
 times from a city (such as Salisbury, Winchester, Carlisle), 
 sometimes from a township (Striguil, Clare), sometimes from 
 family names (Warenne, Be Ferrers). The newly created 
 earl was sometimes allowed a tertius denarius, sometimes 
 a fixed annuity, and in later times neither the one nor the 
 other. The dignity sometimes descended to women, and 
 sometimes not, according to the wording of the grant ; which 
 from the first appears to rest upon patent. To this rule of 
 government only a few exceptions were made in the border 
 counties (the so-called counties Palatine) which had no 
 influence upon the system of county administration. (1) 
 
 (1) As to the dignity of the Norman dignity of Eorl became merely titular 
 
 Eorl, see Spelman's " Glossarium," s.v. is rather a controversy of words. We 
 
 Comes ; Selden, " Titles of Honour," certainly cannot speak of a mere titular 
 
 iii. 638, et seq. ; Hey wood, " Banks," dignity in the case of those comites, to 
 
 p. 95, el seq. ; Madox, " Exchequer," ii. whom a third part of the court dues, 
 
 400, et seq. ; " Baronia Anglica," i. c. 1 ; fines and other revenues, had been 
 
 Hallam, " Middle Ages ; " Ellis, " In- granted. (As to their extent, see Hey- 
 
 troduction;" "Peerage Reports," iii. wood, 100, 101, 108.) The decisive 
 
 178, 21 1, seq. The dispute of the question is, how far the Comes as such, 
 
 antiquarian authorities as to when the had a military command, and how far
 
 116 Constitutional History of England. 
 
 After the withdrawal of the Eorl, the Anglo-Saxon Shir-gerefa 
 became the regular governor of the county, who was hence- 
 forth no longer dependent upon the Eorl, but upon the 
 personal orders of the King, and upon the organs of the 
 Norman central administration. 
 
 II. The important office of tf)e Norman Uittcomes is identical 
 with the old office of Shir-gerefa, now filled by trustworthy 
 Norman lords. Upon French soil there existed a similar 
 system of government under Bailiffs ; who as representa- 
 tives of the duke, himself invested with the Carlovingian 
 dignity of count, bore the title of " Vicecomites." The official 
 Latin in Norman England adopted the title Vicecomes, but 
 this did not become naturalized in the Saxon vernacular. 
 The Norman term "bailiff," which nearly corresponded to 
 the Saxon " gerefa," was in later times applied rather to the 
 under stewards of the Vicecomes. For the governor of the 
 county, on the other hand, the native population retained 
 the usual name, Shir-gerefa, Sheriff, which consequently, in 
 later times became the prevailing one. Corresponding as it 
 did to the Anglo-Saxon administrative system, the office of 
 Vicecomes was a four-fold one. 
 
 1. As the King's military representative his duty was, in 
 conjunction with the county assembly, to regulate the appor- 
 tionment of the contingents, and conduct the detail business 
 of the military organization. This business became somewhat 
 simplified after registers could be kept with the help of 
 Domesday Book. The sheriff's duty is accordingly, with the 
 aid of such registers, to carry out the royal orders summon- 
 
 he controlled the county assembly, and cession. Such governors are generally 
 
 the peace of the county. That he had called Earls,but frequently otherwise, 
 
 these powers, upon reference to the as in the case of the Marchers of Wales; 
 
 governmental documents, must be most and where they bear the title of Earl, 
 
 decidedly denied ; as to the instances it is only the latter that is hereditary, 
 
 in which a Comes governs the county as whilst the governorship is regarded as 
 
 Vicecomes, see Madox, ii. 400. A local a perfectly separate grant (" Peerage 
 
 exception is made after the Conquest, Keport," ii. 255). Under Stephen, new 
 
 in the county of "Chester, in which, Comites appear to be created in 
 
 having regard =to the necessity of de- great numbers, and with extended 
 
 fending the frontier, a general governor powers ; but these pseudo-earls were 
 
 was intrusted with the immediate ex- deposed under Henry II. For the 
 
 ercise of the jura regalia. After the origin of the later Palatinate of Lan- 
 
 reign of Henry II., such exceptional caster, there were personal reasons in 
 
 cases were not unfrequently called the striving of this house to preserve 
 
 " palatinates." Extended powers of to itself a family possession, in addition 
 
 this kind were further granted in to the crown it had usurped. All 
 
 Shrewsbury, on the Welsh borders, in these variations, of comparatively 
 
 Durham, on the Scottish boundary, small extent, had no determinate bear- 
 
 and in Kent, in consideration of the ing upon the constitution of the 
 
 threatened invasions from Picardy. country. The character of the Eorl, 
 
 Two of these palatinates were inten- as an originally personal dignity, is 
 
 tionally combined with ecclesiastical recognized by the " Peerage Keport,' 
 
 dignities which were not capable of iii. 178, 211, 212, etc. 
 establishing an hereditary family sue-
 
 TJie Norman County Government. 117 
 
 ing the vassals, which orders are issued to him as executive 
 officer. Where a royal castle belongs to the county, he looks 
 to the equipment 'of the knights, the Serjeants, and foot soldiers, 
 as well as to their supplies, debiting the treasury with all the 
 disbursements. In case of need he also manages the fitting 
 out of ships. In the border provinces he conducts the defence 
 of the county, in case no governor with larger powers has been 
 appointed. After the revival of the old militia system under 
 Henry II., he becomes also leader of the county militia. 
 Wherever for military, judicial, or finance purposes, military 
 administration becomes necessary, it is the sheriff who does 
 the work. 
 
 2. As Royal Justiciary, the Vicecomes is the successor of 
 the Anglo-Saxon Shir-gerefa ; he presides in the county court, 
 and holds the customary court-days at stated periods in the 
 county as well as in the hundreds. The judges are the county 
 freeholders. Instead of Thanes and freeholders, we now find 
 vassals, under-vassals, and freeholders ; and Normans instead 
 of Saxons. So far the judicial administration was able to 
 survive with its framework unchanged. But defective adminis- 
 tration of justice and other circumstances led by degrees to a 
 centralization at the royal court, which deprived the Vice- 
 comes of much judicial business ; whilst on the other side, 
 the police spirit of the new regime made the criminal sittings 
 the chief business in the several hundreds. In all cases the 
 customary execution of all judgments, the collection of fines, 
 and the confiscation of forfeited lands, remains the province 
 of the Vicecomes. 
 
 8. As Police Magistrate of the Crown he performs the cus- 
 tomary duties of maintaining the peace, pursuing peace- 
 breakers, if necessary, with the " hue and cry " of the whole 
 county ; he accepts security for good behaviour, and controls 
 the general surety-system of the tithings. Through the neces- 
 sities of the times these police functions became much ex- 
 tended, and developed into what was soon an unlimited 
 system of police fines. For carrying out these measures, 
 periodical police-court sittings were instituted in the several 
 hundreds under the name of " turnus vicecomitis " and " visus 
 frankplegii." The more the judicial functions of the sheriff 
 become curtailed, the more prominent is his character of 
 police official. 
 
 4. His office finally as Bailiff of the royal demesnes (gerefa) 
 develops into one of high importance, owing to the form of 
 the Norman administration. As in the Anglo-Saxon period, 
 the management of the royal demesnes is now entrusted to 
 the Vicecomes to administer them as a steward within his 
 district. He takes over these demesnes with the stock upon
 
 118 Constitutional History of England. 
 
 them, he makes good the deficiencies as they occur, and covers 
 his disbursements by deductions from the rent according to a 
 fixed scale (Madox, ii. 152). In many counties the remainder 
 of the estates which had been assigned to the Saxon Shir- 
 gerefa to provide his official income (reeveland), were added 
 thereto. The sum total of these estates forms the "corpus 
 comitatus " out of which the annual rent due to the King was 
 primarily payable. 
 
 In later times, when the " corpus comitatus " had become 
 greatly diminished by grants (terras datse), he only accounts 
 for the " remanens firmae post terras datas" and this too was 
 frequently burdened with current annuities and pensions, 
 which had also to be deducted. An important part of his 
 receipts is formed by the payments made by the tenants 
 to their royal landlord. The payments in kind, consisting 
 in corn, provisions, conveyances, and manual services, ap- 
 pear in Domesday Book as having in great measure been 
 already converted into money, and according to the system 
 pursued by the Treasury, this conversion proceeds, until as 
 early as the reign of Henry I. it has become the rule. To 
 these again are added the customary rights to wrecks, trea- 
 sure-trove, and the other occasional sources of revenue of 
 the old regal finance, and also (in the province of the 
 magisterial functions) the rights to escheated and forfeited 
 property, to various dues and fines, and to the confiscation 
 of the movables (catalla)- belonging to executed or fugitive 
 criminals. 
 
 The revenue accruing from such suzerain rights was extra- 
 ordinarily increased by the introduction of the feudal system, 
 and these accretions were more vigilantly guarded by the 
 Norman kings than by their predecessors. The feudal system 
 added relevia and other similar incidental revenues, the large 
 pecuniary value of which led to their being payable directly 
 to the court. At the time of Domesday Book the maxim 
 held good, that only vassals (taini),. who possess six maneria 
 or less, should pay their relevium to the Vicecomes. Those 
 possessing more than six maneria pay immediately into the 
 Exchequer (at all events this principle is expressly mentioned 
 in two counties). Do. 280, b. 298, b. (2) 
 
 (2) I shall refer again to the Nor- horse soldiers and foot soldiers in the 
 
 man Vicecomes in his character of Burgs ; and more frequently still in 
 
 military commissary in cap. 10. His the campaigns. (Dialogus de Sc. 
 
 special duties in furnishing garrisons Madox, ii. 422; Madox, i. 220, 370, 
 
 for the Burgs arose from the fact, that etc. where a disbursement of 1228 is 
 
 the feudal service of forty days was in- mentioned.) The Vicecomes as justici- 
 
 sufficient for the purpose, and that ary is again referred to in cap. 11, and 
 
 paid standing garrisons were absolutely his position as police magistrate in 
 
 necessary. Hence the frequent pay- cap. 12. The mention made of his 
 
 menta for milites and sen-ientes, for police functions in the legal books of
 
 The Norman County Government. 119 
 
 To deal with the numerous financial and judicial duties, an. 
 official system became early established, with its clerks (clerici), 
 in whom we recognize the ancestors of our under-sheriffs. The 
 sheriff charges his under-bailiff with the duty of collecting the 
 dues and rents, with distraints and summonses in the several 
 districts (Ballivi Hundredorum) ; and further appoints working 
 officials called "bailiffs" or "servientes" to attend on him 
 and act as messengers, and also travelling under-officials or 
 bailiffs errant. Altogether the financial position, of the sheriff 
 between the Treasury and those from whom payment was 
 exacted, became soon so complicated, that (as in, many 
 German states of the middle ages) a "farming'* of the office 
 of sheriff arose,, with a view of turning the uncertain, revenue 
 into a fixed state income. Certainly there are to be found 
 among the sheriffs both farmers (fermors) and administrators 
 (custodes) ; the difference between- whom consists in the 
 manner in which they render their accounts. But " farm- 
 ing" becomes the rule, and in many reigns can be proved to. 
 have prevailed in nearly every county. The appointment 
 was sometimes for a quarter, or for half a year, but generally 
 for a year not unfrequently too for a number of years ; but 
 yet always reckoned from year to year, and revocable at the 
 pleasure of. the King. The rent is frequently the same that 
 the predecessor paid (antient ferm), or the old sum with an 
 additional payment (increment). The Exchequer accounts 
 show that a formal rivalry in bidding took place. Once, for 
 instance, the Chancellor, the Bishop of Ely, bids for the 
 counties of York, Lincoln, and Northampton, 1500 silver 
 marks down, with 100 marks additional in subsequent pay- 
 ment; whilst the Archbishop of York bids for York alone, 3000 
 silver marks down, with 100 marks additional payment. 
 
 The farmer-general had at the same time to produce re- 
 spectable men to the Treasury, as sureties for the rendering 
 of an account that was now strictly controlled. Twice a 
 year, at Easter and Michaelmas, the sheriff appears in person 
 before the Treasury. These are the two scaccaria, meaning 
 terms for payment, which were previously announced to all 
 the Crown debtors in the county. At every term a pro- 
 portion of the rent, and other sums due, " summonces," have 
 to be paid down as a provisional payment (" profer") ; then 
 with the presentation of the receipts follows the " visus 
 compoti ; " and in conclusion the " summa." Often, special 
 
 this period is precisely the same as iv. ; complaints relating to theft, Hen. 
 
 that of the Shir-gerefa in the Anglo- 66, sec. ix. 
 
 Saxon period, e.g. in regard to the The leges Wilhelmi especially confirm 
 peace that he had to proclaim, Hen. 79, the old police functions of the Shir- 
 sec, iv. ; as to summonses, Hen. 41, gerfifa. I shall refer at length to his 
 sec. v. ; to distraints, Hen. 6. 51 ; sec. financial duties in cap. 13.
 
 120 Constitutional History of England. 
 
 commissioners were deputed to investigate the conduct of 
 sheriffs who had exacted payments without giving receipts, 
 or had committed other irregularities. (2 a ) 
 
 The collective office of the sheriff, as war commissary, sum- 
 moning the lords and knights ; as treasurer, through whose 
 purse the finances of a small province pass ; as police magis- 
 trate, having to execute judgments and maintain the King's 
 peace against the mightiest in the land, clearly shows that, 
 according to the notions of those times, only a Crown vassal 
 or a skilled ecclesiastic was capable of administering such 
 an office. The Norman lords despised no positions of gain. 
 Hence we find at times kings' sons among the sheriffs (for 
 instance, Eichard, the son of Henry III.) ; the great justi- 
 ciaries of the realm, and other high Court officials ; the 
 Archbishops of Canterbury and York ; numerous Bishops ; 
 and sometimes even a highly placed Eoyal Chaplain ; but 
 most frequently the names of Norman lords occur, to whom 
 the office of sheriff afforded a lucrative income in addition to 
 their landed property. Yet the system varied under different 
 reigns. Careless monarchs allowed the magnates to seize 
 the sheriff's office ; in a few cases the office was even allowed 
 to become hereditary, although the personal responsibility 
 was retained. But it was not until the reign of Henry II. 
 that the office became systematically filled from the ranks of 
 the newly formed official gentry; in the last years of this 
 reign it was filled from the same class of officials as the 
 barons of the Treasury and the travelling commissaries. In 
 spite of the important position it afforded, the office remained 
 
 (2 a ) With regard to the rendering prehendi." (Madox, ii. 415.) In cases 
 
 of accounts by the Vicecomes, the where the person from whom the ac- 
 
 " Dialogus de Scaccario," ii. c. 1, 2, 4 counts are due is a vassal of the Crown, 
 
 (Madox, ii. 407-16), gives the system- short process is made, with distraint 
 
 atic principles obtaining in the time on his fief or personal arrest, but a 
 
 of Henry II. The writ of summons to miles is to be kept in decent imprison- 
 
 present accounts runs : " Vide sicut te ment. An administration of the whole 
 
 ipsum et omnia tua diligis, quod sis ad office by substitutes can only be allowed 
 
 scaccarium ibi vel ibi, in crastino Sancti by special Koyal licence. In the Rotuli 
 
 Michaelis, et habeas ibi tecum quidquid 5 John a" subvicecomes pro cancellario" 
 
 debes de vetere firma vel nova, et nomi- is met with in this office. But other 
 
 natim hxc debita subscripta." Then considerations are also entertained with 
 
 follow the several items. Under cer- regard to money payments. In 12 John 
 
 tain circumstances it is expressed in the men of the county of Dorset and 
 
 sharper terms, " alioquin sic te casti- Somerset pay 1200 marks in silver, 
 
 gdbimus, quod pozna tua aliis Ballivis " quod Rex constituat eis Vicecomitem 
 
 nostris dabitur in exemplum." (Madox, de se ipsis talem, qui residens sit in 
 
 i. 356.) Representation in delivering comitatibus illis, excepto W. Srieverre 
 
 accounts is only allowed by special et suis" etc. An objection of this 
 
 royal mandates, in later times by kind to certain persons as sheriffs is 
 
 special permission of the president. It not unfrequent. In this way the first 
 
 was imperative that at least one miles separate cases occur, in which an elec- 
 
 should be amongst the substitutes, and tion by the county of their sheriff is 
 
 not only " clerici," "quia, non decet allowed in return for a money payment. 
 eos pro pecunia vel ratiociniis com-
 
 The Norman County Government. 121 
 
 at all times a purely personal one, dependent entirely upon 
 the will of the King, and therefore revocable. The King had 
 accordingly the power of separating from it several branches. 
 Thus we meet in early times with special " foresters," " cus- 
 tomers," " escheaters," "farmers" of towns, guilds, etc., 
 and in later times special collectors of the tallagia of the 
 fifteenths and other subsidies. The King had also the right 
 to commit his burghs to the care of special burgh-bailiffs, with 
 or without a judicial and financial jurisdiction within the 
 burgh -district. He could also divide the judicial authority in 
 certain districts, and grant exemptions to towns, etc. ; all 
 these special administrative branches the sheriff must support 
 with his authority, whenever distraints and executions are to 
 be put in force. The King could also introduce modifications 
 into the conduct of the office ; for example, by permitting the 
 controlling power in extraordinary cases to be exercised by 
 substitutes (e.g. for clergy in military matters). And he could 
 finally on this account depose the sheriffs, singly or collec- 
 tively, a popular measure repeatedly resorted to in the twelfth 
 and thirteenth centuries. He might suspend them at any 
 time from office, place custodes over them, investigate their 
 conduct by commissioners, regulate their behaviour by instruc- 
 tions, and impress their duty upon them by new oaths of 
 office. As in the Anglo-Saxon period, there cannot be found 
 any trace of a right to the office, or of a right of the county 
 assembly to appoint to it, nor of an appointment by election. (2 b ) 
 III. tfrije ILocal (Sobernment of tjc Sbub=utstrfcts within the 
 county is still principally regulated by the nature of real 
 property in just the same manner as under the Anglo-Saxon 
 gerefa system. Through the Conquest and the feudal system 
 arose a change of occupiers of the soil, and with the change 
 in persons a new grouping of possessions ; but the old system 
 of property was in the main retained. The descriptions of 
 the estates in Domesday Book reproduce the modes exist- 
 
 (2 b ) Of the personally high position except food and drink for a single day ; 
 of the sheriff numerous instances are not to quarter themselves on any one 
 given by Madox. In the " Dialogus," with more than six horses ; to lodge 
 ii. c. 4 (Madox, ii. 417), it is, however, with none who is worth less than 40 
 expressly stated that the Vicecomes income from real estate, and not more 
 need not be a vassal of the Crown. frequently than once a year or twice 
 In later times the official instructions at most, if invited, and then without 
 of the Vicecomes are numerous ; for making a precedent of it ; to take no 
 instance, in 42 Hen. III., an universal present exceeding twelve pence; not 
 oath of office is prescribed, which to take more servants with them than 
 throws much light upon the spirit of necessary for their safety on circuit ; to 
 the administration. The sheriffs must see that these servants do not over- 
 swear that they will impartially and burden the land by eating and drink- 
 promptly grant justice to the poor as to ing, or take from any inhabitant sheep, 
 the rich man ; that they will accept corn, wool, movable goods, money, or 
 nothing personally or through others, money's worth. (Madox, ii. 147.)
 
 122 Constitutional History of England. 
 
 ing at the close of the Anglo-Saxon period, under the partly 
 new names of " manors," " honors," and " burghs." 
 
 1. The manor, " manerium" or lord's seat, is identical with 
 the " mansus " of the Anglo-Saxon period, comprehending 
 the ceorls and dependants who had settled round about it, 
 who for the most part form a union of neighbours, villa, 
 villata. Under the new tenure, the real rights of landed pro- 
 perty have not changed their nature as fiefs. The newly 
 enfeoffed Norman, alike with the Saxon Thane who remained 
 in possession, exercises the usufructuary rights of his pre- 
 decessor, that is, collects the customary dues through the 
 managers of his estates, prsepositi villee, reeves, bailiffs, or 
 stewards. In the system of police-sureties the villa forms 
 a lord's tithing, where it contains ten or more families. The 
 landowner claims the customary jurisdiction over his people, 
 together with the extensions of it that have taken place by 
 grant, all of which are enumerated in the deeds of grant 
 under the denominations " saca," " sooa," " infangtheft," and 
 " outfangtheft." It was merely a new name when' this was 
 now called, in the language of the Norman lords, a "manor," 
 a name which first appeared with; other Norman fashions 
 under Eadward the Confessor. The majority of the manors 
 were now in the hands of Crown vassals ; a considerable 
 number also former Saxon Thanes. (Ellis i. 90.) The 
 Norman Government endeavoured to reduce all these judiciary 
 powers to one uniform system, but certainly not to extend 
 them (vide- chap. x.). The Domesday Book, indeed, shows a 
 number of new manors which had been created by division, 
 but in the year 1290 the statute " Quia Emptores "' put an 
 end for ever to the creation of new manors, (a) 
 
 2. The formation of lordships (Honors) also reaches back 
 into the Anglo-Saxon period, originating in a group of estates 
 lying close together,, over which, in the system of police- 
 sureties, the stewards (prapositi) of several lords presided 
 to which lordships were often given a " saca et soca " in an 
 extended measure, and which were in certain matters co- 
 ordinated with the hundreds. The successors of the Saxon 
 great Thanes are now Norman lords, who, following the 
 fashion prevailing in their old home, strove to form exclusive 
 
 (a) Touching the manors the Glos- Mansum, Colonia, et eis, et exteris simul) 
 
 sarium of Sumner says as follows : idem significarunt, ac ipsis et alixi 
 
 " ante Normannorum tempora vox apud posterioris asvi populis Manerium." 
 
 nos, in chartis aut aliis nostris bonee (Ellis, i. 224, 225.) As to the technical 
 
 fidei monumentis, frvstra quasritur. A meaning of the words " saca," "soca," 
 
 Normannis (inter alia ejus farinas, " infangtheof," " team," " toll " in the 
 
 verbo) e Gallia hue adductum conjicio, deeds of enfeoffment, see the treatise 
 
 quorum in Anglia prascessoribus Hida, of Zopfl, " Alterthumer des Deutschen 
 
 Familia, Villa, Stdinga, Casata, Man- Rechts " (Leipzig, 1860), i. pp. 170- 
 
 sura, Manens (ut Mansus, Mar><>io, 211.
 
 The Norman County Government. 123 
 
 feudal lordships out of these unions. We find in England 
 round certain magnates a small court, a steward (dapifer), a 
 butler (pincerna), a marshal, a chamberlain, etc. their offices 
 being sometimes even hereditary. The numerous venatores, 
 and half a hundred other classes of higher and lower servants 
 mentioned in Domesday Book, point to the fact that in- 
 ferior vassals of the Crown also imitated this custom. The 
 Normans, fond of pomp, herein vied with the princes of the 
 Continent. But the Conqueror had taken care to assign 
 their possessions to the greatest feudatories in so many coun- 
 ties, that their estate in each county did not differ greatly from 
 that of the inferior vassals of the Crown. They were not able, 
 either locally or temporarily, to consolidate themselves, since 
 the strict law of escheat often brought the same possession 
 back to the Crown several times in a single century. And 
 then the interest of the financial administration pre-eminently 
 kept these greater formations within limits, and, where a favour- 
 able opportunity offered, endeavoured to suppress them. The 
 principal seat of the lord, the " caput baronise " of later times, 
 might indeed be a meeting-place of the under-vassals for 
 festivities, investitures, legal business, and the holding of 
 manorial court days, but it was not a superior feudal court in 
 the French style. The Norman manors are rather mere unions 
 of estates, which are all granted, transferred, and administered 
 alike, but have not specific sovereign rights attached to them. 
 After the frequent escheats the " honors " which had thus 
 fallen in were often re-granted,. diminished in extent, so that 
 later Treasury accounts distinguish expressly between lordships 
 of old and of new tenure. Finally, the prohibition to create 
 new manors also prevented the formation of new honors. (6) 
 
 3. The Norman Burghs are in like manner a continuation of 
 the special parochial and judicial districts, which had been 
 formed, in the Anglo-Saxon period, around a fortified building 
 or a castle. Many were severely dealt with and laid waste 
 at the time of the Norman Conquest. William I. took them 
 over with their legal constitution, and incorporated the more 
 important of them immediately with the royal demesnes. 
 
 (b) The appellation " honor " is also Probably the expression became a 
 
 merely a new name for an old institu- technical one in the Treasury. So far 
 
 tion. Heywood, pp. 188, 189, rightly as I can discover, the name "honor" 
 
 points out that, where in Domesday is used in the Treasury accounts 
 
 Book the word " honor " is in cer- after the time of Henry II. for the 
 
 tain cases met with, it is used alike for great possessions of earls, of the High 
 
 the land and for the fief of ordinary Constable, and of some few great vas- 
 
 vassals. It was not until later times sals. The collection of laws, which 
 
 tht it was used in preference for the was made about the same time, that of 
 
 great fiefs : " Possess/ones magnas, quas the Leges Henrici I., certainly uses the 
 
 vulgo vacant honores." (Henry Hunting- word for those possessions, to which 
 
 don, " De Contemptu Mundi," c. 23.) several maneria belong. (H. c. 55.)
 
 124 Constitutional History of England. 
 
 A list of them, about eighty in all, is given by Ellis (i. 190). 
 A number of such places, which already in the Bonian times 
 had been civitatcs, continued to be called " cities," which 
 name, however, has no reference to their constitution. In 
 the county system they often form a hundred, and sometimes 
 form several, as where an old and a new town are united 
 together. Like the counties generally, the royal cities, burghs, 
 and towns were treated as special estates, and either incor-' 
 porated with the corpus comitatus or given over at the royal 
 pleasure to special " Fermors " or particular town bailiffs, 
 custodes, provosts, etc. The Empress Matilda, for instance, 
 farms out London for 300 rent to Geoffrey of Essex. 
 Where in greater cities several special guilds existed, these 
 again might be the subject of under-leases. For example, 
 in 5 Henry II. the Weavers of London pay five marks in 
 gold as rent for their guild for two years; the Bakers one 
 mark and six ounces in gold ; in 11 Henry II., the Weavers 
 twelve pounds silver, and the Bakers six pounds silver " pro 
 gilda sua ; " and in like manner the guilds in Oxford and 
 in other places. It will be shown later on how the feudal 
 system began to compel the real estates not subject to the 
 feudal military service, to periodical contributions in cases 
 where the honour and the needs of the feudal lords required 
 it. Under the name of " tallagium" a taxation of this kind 
 was imposed according to necessity, and as a rule only repeated 
 at several years' interval. It was raised either from indi- 
 viduals or in gross ; in the latter case the households bound 
 to contribute agreed together, in their common pressing 
 interest, how it should be raised. Frequently already existing 
 guilds of merchants, tradesmen, and house or land owners 
 undertook this duty of raising the tallagium in considera- 
 tion of especial privileges. But it was still simpler when, 
 instead of the sheriff, whose accounts had without this become 
 complicated enough, the " men of the burgh " themselves 
 undertook to farm it. The King then demands his "taille " 
 from the body of citizens, or from a smaller guild which has 
 undertaken the duty, but no longer from the individual, whose 
 possessions in this manner become again tax-free. In this 
 case a fit and proper person is presented to the Treasury, who, 
 on being appointed " town-reeve," undertakes with sureties 
 the responsibility for the due payment of the rent agreed on, 
 and collects from the individual the dues and imposts. The 
 official thus appointed is known throughout by the title of 
 " reeve," or " bailiff," in later times also by the Norman name 
 of " mayor." For some time an eager competition took place 
 between the citizens and the Vicecomes or some other lord 
 anxious to outbid them. In process of time, however, the
 
 The Norman County Government. 125 
 
 majority of the towns farm themselves, " firma burgi," 
 " fee farm," and thus gain the first step towards their 
 independence. By a charter of Henry I. even the sheriff's 
 office for the county of Middlesex is, according to this system, 
 farmed out to the city of London, " ad firmam pro CCC. 
 libris ipsis et heredibus suis ita, quod ipsi cives ponent vice- 
 comitem, quern voluerint de se ipsis" etc. (" Select Charters," 
 p. 103.) 
 
 Even in the Anglo-Saxon period the city of London, stand- 
 ing as it did in regard to population and extent of posses- 
 sions, on an equality with a county, by annexing Middlesex, 
 had gained for itself the position of a county. Its " wards " 
 may be compared with the hundreds. On the accession of 
 Kichard Coeur-de-Lion to the throne, instead of the port- 
 reeve, two bailiffs appear as town-reeves, and soon after this 
 a mayor, whose free election (nomination) was granted to the 
 citizens by charter (10 John). After Eichard I.'s reign more 
 extended privileges for other cities spring up, such as 
 privilege of market, new guilds, a separate jurisdiction, and 
 free election of their own officials. From the firma burgi 
 connected with a separate jurisdiction, proceeds the English 
 municipal law, which at the close of this period stands before 
 us developed in clear outlines, but which only presents a 
 number of immunities with no special participation in the 
 general government of the county. 
 
 The separate government of the burghs was in the Anglo- 
 Saxon period especially seen in the case of the royal 
 demesnes. Besides these appear also the mediate towns 
 as a part of the possessions of the great feudatories, though 
 certainly in small numbers and of small extent, in which the 
 lord of the soil collected for his own benefit the customary 
 rents and dues, and held his court. The burden of con- 
 tributing according to the needs of the lord attached also to 
 the persons of the inhabitants, and occasionally comes to light 
 whenever, in consequence of escheat or feudal guardianship, 
 such places temporarily pass " into the King's hand," and are 
 so entered on the Treasury rolls. This right of levying con- 
 tributions became, as everywhere, a cause of oppression, 
 grievance, and disturbance. How it was exercised by the 
 Norman lords we may judge from the fact that the towns 
 frequently disputed the lords' right, and declared themselves 
 liable to pay contribution only to the King. For this reason 
 the King appears early to have protected these places against 
 ill-usage. The very frequent mention of a special royal 
 licence points to a general control exercised by the Treasury 
 over these tallagia. When lordships escheated, as so 
 frequently happened, the reservation was always made in
 
 126 
 
 Constitutional History of England. 
 
 the new grant of them " that such places should only pay 
 tallagia when the King taxed bis own " (Madox, i. 756). 
 What after this still remained of the lords' right of levy- 
 ing contributions, finally disappeared generally through 
 purchase, (c) 
 
 It is beyond doubt the finance administration which has 
 before all else influenced the form of local government. In 
 the interest of a uniform financial control the royal manors 
 and the groups of estates were now left to the administration 
 of the Shir-gerefa in a still greater measure than in the 
 Anglo-Saxon period, so that manors and honors pre-eminently 
 appear as lordships in the possession of private landlords. 
 In the burghs, on the other hand, which were a bounteous 
 spring for the replenishment of the royal exchequer, a royal 
 special government prevailed, and was constantly endeavour- 
 ing to form independent communities in consideration of 
 heavy money payments. 
 
 view, which have often an importance 
 at the first origin of the firma burgi. 
 The Municipal Court of Justice (the 
 court leet) on the other hand, with its 
 legal procedure, could not be limited 
 to, or based upon, a private guild. 
 That the mediate towns are a com- 
 paratively inferior creation, is proved 
 by the rare mention of them, the in- 
 significance of the places mentioned as 
 such, and the small number of the 
 baronial charters, when compared with 
 1500 royal charters, upon which is 
 based the formation of the English 
 municipal law. 
 
 In harmony with my deductions 
 Stubbs says (iii. 559): "In 1216 the 
 most advanced among the English 
 towns had succeeded in obtaining, by 
 their respective charters, and with 
 local differences, the right of holding 
 and taking the profits of their own 
 courts under their elected officers, the 
 exclusion of the sheriff from judicial 
 work within their boundaries, the right 
 of collecting and compounding for 
 their own payments to the Crown, the 
 right of electing their own bailiffs, 
 and in some instances of electing a 
 mayor." 
 
 (c) As to the Norman burghs and 
 the gradual origin of municipal law 
 out of the fusion of the modes of 
 taxation of the firma burgi with the 
 grant of a police jurisdiction (court 
 leet), see in detail Gneist, " Geschichte 
 des Self-government," pp. 104-112, and 
 Stubbs, i. cap. 11, sec. 131. Eelying 
 upon the great mass of records con- 
 tained in Merewether & Stephen, 
 "History of the Boroughs," 3 vols., 
 1853, I differ in some particulars from 
 Stubbs, and hold to the view, that the 
 basis of the municipal law is the grant 
 of a separate municipal court, and that 
 the right of citizenship is hence 
 normally extended to all resident 
 citizens, who share in bearing the 
 burden of office, and paying the muni- 
 cipal taxes, "resident householders, 
 paying scot, bearing lot." The favour- 
 ite modern idea, of making political 
 creations proceed from groups of social 
 interests, has given an exaggerated 
 importance to the guild system of the 
 English towns. The so-called "judicia 
 dvitatis Lundonias" as also the guilds 
 at Cambridge, Canterbury, Exeter, and 
 elsewhere, are voluntary unions with 
 certain limited ends and objects in
 
 CHAPTEB X. 
 I. Olfy Ifcbdopmtnt of tije jEonnan Jftftitarg 
 
 UPON the basis of the county government we have just de* 
 picted there ensued a change in the powers of the Crown, 
 which shows with startling rapidity the material sovereign 
 rights of the more modern polity. Primarily it is the 
 military power which, under the influence of the Norman 
 feudal system, presents new features in every direction. 
 Once the weakest point in the Anglo-Saxon political system, 
 it has now become one of the firmest bases of the Norman. 
 
 1. The decision as to war and peace was at the close of the 
 
 Anglo-Saxon period still frequently made by the Witenage- 
 
 mote, and claimed by it as -a right whenever extraordinary 
 
 services were required of the national militia. The limits of 
 
 this right 'were, however, not sharply denned; it was at all 
 
 events an established principle that the King could claim the 
 
 right of personally summoning his own Thanes. This last- 
 
 named right was now the universal one, since every vassal 
 
 of the Crown and every under-vassal had become the King's 
 
 homo. The military oath of fealty is now taken to the 
 
 King's person, and holds good for his possessions abroad, 
 
 "extra regnum" as is laid down in the Charta, Will. I. 3, c. 2 : 
 
 " Statuimus ut omnis liber homo fcedere et sacramento affirmet 
 
 quod intra et extra Angliam Willelmo regi fideles esse volunt, 
 
 terras et honores illius, etc., defendere." ("-Select Charters," 
 
 pp. 83, 84.) This charter has, indeed, been enlarged with 
 
 spurious additions by a later hand, but it is probably genuine 
 
 in substance. In any case feudal service extra regnum was 
 
 enforced by all the Norman kings, and it was not until 
 
 after the separation of Normandy from the English crown 
 
 in John's time that cases of direct refusal occur. The 
 
 Norman was obliged, in the interest of his own possessions, 
 
 as well as in that of his countrymen in Normandy, and as a 
 
 condition of his new possessions on English soil, to acquiesce 
 
 in the condition imposed, that of serving the King "intra et 
 
 extra regnum." The Anglo-Saxon Thane had to be content if 
 
 he retained his possessions on similar terms. 
 
 This was certainly the hardest requirement of the new
 
 128 
 
 Constitutional History of England. 
 
 order of things, and one that met with a strong opposition 
 from the vassals. This fact explains the events fraught with 
 such important consequences at the close of William I.'s 
 reign. When in the year 1085 an invasion of the Danes 
 was seriously threatened, the King, by means of a land-tax, 
 brought together a huge paid army of different nationalities, 
 and by heavy taxation and quartering of his soldiers sup- 
 pressed the opposition that was still offered him. In the 
 following year all the greater landed proprietors appeared 
 willingly at the review held near Salisbury to acknowledge by 
 one great act of homage, that all Crown and under-vassals 
 were now the King's "men." And this act proclaimed that 
 the newly formed feudal militia was no popular muster, but 
 an army to be summoned by the King, At the same time 
 the royal prerogative of deciding the question of war and 
 peace was established for all time. As an extension of this, 
 the right of building castles was distinctly recognized as a 
 royal privilege. The " castellatio sine licentia" is from that 
 time forward an offence threatened with the " misericordia 
 regis" and severe penalties (Hen. I. 13, sec. 1; 10, sec. 1), 
 and use was made of it in such an extensive manner that 
 William's reign marked a decisive epoch in the defences of 
 the British Isle. (1) 
 
 (1) For the Norman military system 
 as a whole, cf. Gneist, " Geschichte des 
 Self-government," pp. 61-68. Some 
 useful matter is also contained in 
 Grose's "Military Antiquities." See 
 also remarks in the " British Military 
 Biography " (2nd edition, 1846). The 
 innovations are the strict personal 
 service based on property, the uniform 
 apportionment according to free pos- 
 session of real property, and the com- 
 plete enforcement of obedience, by the 
 punishments for felony, and feudal 
 penalties. This strict martial law was 
 introduced from Normandy. It is true 
 there did not exist a military code 
 which could have produced a written 
 Norman feudal law. But the feudal 
 system had already become defined in 
 its details by the regulations of the 
 dukes, and by an early established 
 legal and financial administration. 
 And in Normandy, too, proceeding 
 doubtless from the hierarchy of the 
 feudal system, and from the position 
 of a conquering tribe, a class-privilege 
 had become developed in outline. The 
 Franco-Norman feudal constitution of 
 those times was based upon the seigno- 
 rial idea, which made the great feuda- 
 tory into an hereditary Seigneur over 
 
 his under-vassals, and which in after- 
 times, favoured by the influence of 
 possession and similar interests, easily 
 made this bond a stronger one than 
 that which bound the under-vassals to 
 their suzerain. In England an oppo- 
 site condition of things existed. The 
 possession of the Norman lords was a 
 new one; the nationality and the 
 interests of their Saxon under-vassals 
 were opposed to theirs, and even 
 their Norman homines were in the 
 main collected from all parts. The 
 Seignorial idea could not accordingly 
 firmly establish itself here. The for- 
 tified places the Conqueror carefully 
 reserved to himself. As the Conquest 
 advanced the first care of the Con- 
 queror was the building of a fortress 
 in the conquered town. The exclusive 
 royal right of fortifying castles, though 
 doubtful in the Anglo-Saxon, is 
 certain in the Norman, period. Of 
 the forty-nine castles mentioned in 
 Domesday Book, only that of Arundel 
 is described as existing " tempore 
 Edwardi." The castles of Dover, 
 Nottingham, Durham, and the White 
 Tower in the Tower of London, in ex- 
 istence at that time, are not mentioned. 
 This number of strong fortifications
 
 The Development of the Norman Military Power. 129 
 
 2. The equipment of the soldiery and the apportionment of 
 the contingents was in Anglo-Saxon times the subject of trans- 
 actions between the sheriff and the county assembly. These 
 transactions now assume a different form. The Domesday 
 Book laid the basis of a roll of the Crown vassals. According 
 to the extent and the nature of the productive property it 
 could be computed how many shields were to be furnished by 
 each estate, according to the gradually fixed proportion of a 
 '20 ground rent. The burden of performance was laid in the 
 first instance on the landed property of the Crown vassal. 
 But since Domesday Book was drawn up, subinfeudation 
 had increased, and the actual burden of performance was 
 thus partly transferred to the enfeoffed under-vassal. The 
 manifold subinfeudations, changes of possession, forfeitures, 
 and divisions, were proved by the charters and writs preserved 
 at court, by means of which the rolls were made to correspond 
 with the actual state of affairs. But, in consequence of the 
 numerous disputed cases and varying conditions, a perma- 
 nent roll of tenures was never drawn up ; accordingly, the 
 number of shields to be furnished was never officially deter- 
 mined. As far as we may conjecture by reference to later 
 statements, the number of shields may be fixed at about 
 30,000.* 
 
 But the Vicecomites were doubtless in possession of the 
 official treasury lists for their county* There was therefore 
 only now needed a personal order of the King issued to the 
 Crown vassals, and at the same time to the under-vassals, 
 who for the purposes of the summons to arms are also 
 "homines regis." But since the duty of furnishing, equip- 
 ping, and provisioning the troops belonged to separate estates, 
 this business had to be undertaken by the government of 
 the county. It was impossible to issue thousands of per- 
 sonal orders directly to the individual vassals, nor were the 
 great feudatories the right persons to be addressed, as their 
 possessions, and with them their under-vassals and horsemen, 
 lay scattered about in many counties. According to the rolls 
 in Domesday Book, the estates of about 130 secular vassals 
 of the Crown were situated in from two to five counties ; 
 
 with, for the most part, standing gar- south of the Thames, is given at only 
 
 risons, certainly exercised a severe 2047, and these counties apparently 
 
 pressure upon the adjacent country. contained a fourth of the whole popula- 
 
 The remembrance of the Norman tion. The official computation, accord- 
 
 " castle-men " remained throughout ing to which the scutage at the end of 
 
 the whole of the Middle Ages. the thirteenth century was calculated, 
 
 * See above, p. 130 note, the state- is based upou an estimate of 32,000 
 
 ment of Segrave under Henry III. In knights'-fees ; but the amount of money 
 
 the liber niger, the number of knights really raised fell far short of thia 
 
 who could be furnished by the vassals estimate (Stubbs, i. 432). 
 of the Crown in the ten counties
 
 130 Constitutional History of England. 
 
 those of twenty-nine lords in six to ten ; those of twelve great 
 lords even in ten to twenty-one counties, and the possessions 
 of the great ecclesiastical vassals of the Crown were distributed 
 similarly to these (thirty in two counties; about thirty in 
 three counties ; about six in from three to eleven counties). 
 The procedure consisted in a mobilization order addressed to 
 the Vicecomites, and couched in the following form : " Vice- 
 comiti Kancwe salutem. Prsecipimus tibi quod sine dilatione 
 summoneri facias per totam ballivam tuam Archiepiscopos, 
 Episcopos, Abbates, Priores, Comites, Barones, Milites, et libere 
 tenentes, et omnes olios qui servitium nobis debent sive servitium 
 militare vel serjanti-se : quodque similiter clamari facias per totam 
 ballivam tuam, quod sint apud Wigorniam in crastino S. Trini- 
 tatis anno regni nostri septimo, omni dilatione et occasione 
 postpositis, cum toto hujusmodi servitio quod nobis debent, parati 
 cum equis et armis eundum in servitium nostrum quo eis prsece- 
 perimus, Eodem modo scribitur omnibus Vicecomitibus Anglias." 
 (Cl. 7 Hen. III. 3.) 
 
 The sheriffs then issued their proclamations to all burghs 
 and market-towns, commanding the vassals to present them- 
 selves " at the risk of forfeiting their fees or of severe penalty 
 according to the King's pleasure." In time of greater urgency, 
 and out of courtesy, special commands could be issued in 
 addition directed to the great Crown vassals and the prelates, 
 and these commands were served by the Vicecomes. Every 
 vassal of the Crown had to see that on his estates so many 
 heavy-armed men were in readiness as according to the feudal 
 list it fell to his lot to furnish. The preparations for equip- 
 ment and provisioning had to be made beforehand on each 
 separate estate, and it was the duty of the great feudatories 
 in each county to make one of their under-vassals or house- 
 hold officers responsible for this. As the total number of 
 the propertied Crown and under-vassals only supplied a por- 
 tion of the shields required, the majority had to be furnished 
 by the equipment of sons, relations, and free dependants 
 (servientes, mounted servants). Since, moreover, the Norman 
 army at all times needed not only cavalry but also masses 
 of infantry, the vassals were readily content to furnish, 
 instead of the superfluous horsemen, a corresponding number 
 of archers or spearmen. The furnishing of contingents 
 thus became much more a matter of detail, and had to 
 be conducted according to the county-divisions. Neither 
 at the time of equipment nor in the field, and perhaps 
 not even at a review, could the soldiers of a great vassal 
 have presented a fixed unity, and hence the vassal's position 
 as hereditary captain (senior, seigneur) could not attain to the 
 importance that it did on French soil. But all these trans-
 
 The Development of the Norman Military Power. 131 
 
 actions were not matters on which the Thanes of the county 
 were to be negotiated with as in the Anglo-Saxon period, but" 
 the vassal had to satisfy the royal officer that he had fulfilled 
 the duties the feudal list imposed on him. (2) 
 
 3. The command over the collective feudal army belongs, 
 as a matter of right, to the King, as was the case in the 
 Anglo-Saxon period. All actual leaderships are based upon 
 his personal commission. According to the cavalry system 
 of the feudal militia, the collected troops keep their own 
 "comes stabuli" and their " marescallus," as at the present 
 day their adjutant-general and quarter-master-general. The 
 constable and marshal arrange the troops into divisions and 
 companies, settle disputes as to precedence and field badges, 
 in the field as in the tournament ; keep the rolls of their men, 
 and give certificates as to attendance, by which a proof is 
 furnished to the Treasury respecting the feudal duty of each, 
 showing whether it has been performed, bought off, or re- 
 mitted. From these beginnings was developed a military 
 jurisdiction derived from the King. But as every standing 
 army strives to transfer to the civil community the military 
 organization, the same was the case in a high degree with the 
 feudal militia, service in which was based upon real estates. 
 The more the vassallage began to feel their importance as 
 a great war-guild and dominant class, the more urgent was 
 their demand to have their constable and marshal for the 
 whole feudal army when upon the peace footing, as the feudal 
 militia in Normandy had long had its hereditary constable 
 and marshal. 
 
 After long hesitation this point was conceded. Under 
 
 (2) As to the recruiting of the serve, or from the constable, the mar- 
 tenants see Grose, " Military Anti- shal, or one of his lieutenants de- 
 quities " (i. 65). Thomas, " Exchequer " puted for this purpose, or the " rotuli " 
 (p. 53). The orders issued to the of the war office. (Madox, i. 656, 657.) 
 sheriffs calling upon them to summon Persons possessing a fraction of a 
 the troops appear to be uniformly knight's fee, do duty for a relatively 
 framed. (Madox, i. 653, 654.) Failure short time ; for instance, the half of a 
 to appear is in the case of the higher knight's fee is computed at twenty 
 clergy only punished with heavy days each year. As early as in the twelfth 
 fines (amerciaments) for instance, century these sub-divisions extend so 
 with sums of 100 marks in silver ; far as one-twentieth of a fee, in which 
 in the case of secular vassals depri- case evidently only the honorary rights 
 vation of their estates appears to be of the Grown vassal, and not his per- 
 the immediate consequence. (Madox, sonal service, are concerned. That even 
 i. 662, 663.) In addition to the per- clerics were sometimes summoned in 
 sonal service of the Crown vassal, the person is proved by a writ (printed 
 prescribed number of heavy-armed in Eymer), addressed to the bishops 
 troops had to be furnished, for whom " eo quo singuli, tarn pradati quam alii 
 the expression " servientes " becomes in propriis personis venire debeant, ad 
 gradually the prevailing one. (Hey- defensionem coronas et regni nostri " (41 
 wood, 129.) As a proof of the fulfilment Hen. III.). As a rule it is only said 
 of military duty, either a certificate that the prelates have to send " militee 
 from the commander-in-chief would BUOS"
 
 132 Constitutional History of England. 
 
 Stephen, perhaps even somewhat earlier, a constabularia and 
 a war marshalship appear established for the whole feudal 
 army, endowed with certain distinctions and fees. Over the 
 army in the field, however, the King reserved to himself the 
 personal command, in addition to the right of appointing 
 the commanding constable and marshal. The official system 
 extended to the inferior commands, to which the names 
 <( constabularia" and "constable" were universally applied 
 from the highest ranks down to the lowest. Certain limita- 
 tions only were recognized in respect of the appointment, by 
 the King, of men chosen from the ranks of the greater, 
 middle, and inferior vassals. The maintenance of these limits 
 was rendered necessary by the indispensable military retinue 
 which accompanied the higher commanders, and not less by 
 the esprit de corps which was rapidly developing among 
 the feudal militia. The skilled service of the cavalry re- 
 quired the practice and training of years, if possible even 
 from boyhood. The system of knighthood, with its admission 
 to full honours, and with the degrees of knight, esquire, and 
 page, was after the Crusades uniformly developed in England. 
 The tournaments flourished under Stephen and Eichard Coeur 
 de Lion. From the obligation to full knight's service naturally 
 arose the obligation to take up the dignity of a knight, and 
 from time to time royal writs were issued to the Crown vassals, 
 " ut arma capiant et se milites fieri faciant, sicut tenementa 
 sua quse de nobis tenent diligunt " (Eot. cl. 19 Hen. III.). (3) 
 
 Under the firm hand of a martial monarch this Norman 
 feudal army presents an imposing picture, and comes into 
 the foreground as the actual basis of the political and social 
 system. With this military organization the Norman kings 
 
 (3) As to the command of the feudal is made a source of revenue. Out 
 militia, see below, cap. 16, " the great of the royal charters of the earlier 
 offices ;"" and the " Peerage Reports " Norman period, " armis et equis se 
 '(iii. 199b). Beginnings of the guild bene instruant," the practice of the 
 system and the " master's rank " in Treasury about the middle of Henry 
 the cavalry are found already in the III.'s reign, deduced the maxim that 
 Anglo-Saxon period. (Turner, " History every vassal, even the under-vassal, 
 of the Anglo-Saxons," iii. 73-75.) In is as a homo regis bound to cause 
 the Anglo-Saxon records, " Cniht " is himself to be knighted at court, paying 
 a tolerably frequent term for the mar- the fees for the dignity under a penalty 
 tial followers. Still, a single instance for neglecting to do so. (Madox, i. 510.) 
 of the conferring of the knight's dignity Hence arose the curious circumstance 
 is no proof of a military system or a that the taking up of the knight's dig- 
 privilege of rank formed from it. nity was regarded in England as a 
 Not until the time of the Crusades burdensome duty, and one which the 
 is a powerful influence upon military majority endeavoured to escape, being 
 and social life acquired by the knightly contented with their dignity as " sou- 
 order. As to the royal ordinances tarii " (esquires) in the feudal scale of 
 affecting the tournament under Richard dignities, their maxim being " sufficient 
 Co3ur-de-Lion,see"Lappenberg-Pauli" honor est homini, qui dignus honore eat " 
 (iii. 280). This, moreover, as well as (Coke, " Inst.," i. 231, 233). 
 the custom of "dubbing the knight,"
 
 The Development of the' Norman Military Power. 133 
 
 became, as none had been since the withdrawal of the Eoman 
 legions, lords of the whole land. This military force, assisted 
 by the numerous and strong works of defence, dominates alike 
 the western Britons and the northern neighbours, puts an 
 end once for all to the Danish invasions, and turns England 
 into a really united State, possessing in point of power the 
 promise of a great future. In spite of all its outward pomp 
 and personal bravery, this feudal army suffered from the 
 defects inherent in all feudal militias imperfection of dis- 
 cipline, tactics, supplies, and transport, and the want of 
 weapons effective at long distances. It was also probably 
 never collected together for important service, but was only 
 employed in divisions and at long intervals in wars upon 
 the Continent and border-wars, or to suppress isolated in- 
 surrections. But one thing was especially wanting in Anglo- 
 Norman feudal soldiery, a characteristic feature of the feudal 
 militia of the Continent the " territorial" connection between 
 the under-vassals and the great feudatories. This defect 
 resulted not only from the scattered position of the great 
 feudal estates, but still more from internal dissensions. For 
 several generations the former Saxon Thane did but reluctant 
 service as an under-vassal to the Norman lord who had been 
 forced upon him. And with the majority of the Norman 
 under-vassals the case was no better, they being a collection 
 of Frankish horsemen and farmers, who now figured on 
 English soil as lords, " rude upstarts, almost crazed by their 
 sudden promotion, marvelling how they had attained to such 
 a position of influence, and thinking they could do as they 
 liked" (Ordericus, iv. c. 8). Real loyalty between the small 
 and great vassals was thus, in the early Norman days, almost 
 impossible ; and with the decay of the royal authority under 
 the usurper Stephen, the small vassallage broke up into a 
 violent irregular soldiery. The military state still lacked 
 national unity. 
 
 These weaknesses of the feudal militia, and the ever-recur- 
 ring conspiracies of the great vassals, caused the revival of 
 the old Saxon national militia more than a hundred years 
 after the Conquest. Disunion in the royal family itself, the 
 influence of the Crusades, the evil example of Normandy and 
 France, and the dissensions with the Church, at that time all 
 combined to make the feudal array an untrustworthy force, 
 against which the King himself sought for some counterpoise. 
 In accordance with the established principle of the Norman 
 crown, the old right of summoning the national defence 
 (fyrd) had never been abandoned. This force was once called 
 together by William Rufus, although primarily only for the 
 purpose of extortion. (Huntingdon, a. 5, Will. II.) In the
 
 134 Constitutional History of England. 
 
 North Country the national militia, under Archbishop Thur- 
 stan, had won the battle of the Standard against the Scotch, 
 and again in 1173 the popular army of Yorkshire, under 
 the command of the faithful barons, had warded off the 
 Scotch invasion. This was followed (1181) by the new legal 
 ordinance of the Assize-of-Arms (27 Henry II.), which con- 
 tained the following provisions. Each owner of a knight's 
 fee (not merely as tenant, but by virtue of the universal duty 
 of the community) is to possess a suit of iron armour, a 
 helmet, a shield, and an iron lance, and moreover every 
 knight is to have as many suits of armour as he has knights' 
 fees. Every secular freeholder, possessing in movables or 
 rents sixteen marks, shall in like manner possess a suit of 
 armour, helmet, shield, and lance. Every freeholder of ten 
 marks in goods or income shall have a breastplate without 
 arm-pieces, an iron helmet, and a lance. All burghers and 
 other freeholders shall have a stuffed jerkin and iron helmet, 
 and a lance. Each shall swear the oath of allegiance, and 
 that he will keep these weapons for service at the King's 
 command, and in loyalty towards him. These weapons may 
 not be sold or pledged. In the hundreds and hamlets district- 
 commissions (consisting of men possessing not less than six- 
 teen marks rent in land, or ten marks in movable property) 
 are to be appointed, to assess property for the land army. 
 Eoyal Commissioners are on their journeys to make lists of 
 the names of those bound to this duty, and to swear them in 
 to obey the royal " assize." Freemen only are mentioned, 
 and it is expressly laid down that only freemen shall be per- 
 mitted to take the military oath. Apparently officers (con- 
 stables) had already been appointed in the several hundreds 
 for this militia, which was a force not dependent on feudal 
 tenure. 
 
 With the general summons of the liberi homines thus 
 established the national army revived on a new legal basis 
 there could also be combined the summons of the feudal 
 militia, as was actually done in a case of great war-peril in 
 the year 1217. (" Select Charters," 343.) 
 
 In another direction also, at about the same time, the 
 national influence of the insular position of the country, the 
 climate, and the mode of life made itself felt among a portion 
 of the feudal tenants. The conquering race had long felt 
 itself secure in its possessions. For more distant warlike 
 expeditions upon the Continent a uniform levying of English 
 feudal forces appeared neither equitable nor, in consequence 
 of the short time of service, feasible. Hence, from the time of 
 Henry II., remissions of feudal service began to be purchased. 
 Varying at first, by degrees a scale for this so-called scutage
 
 The Development of the Norman Judicial Power. 135 
 
 (scutagia) became fixed ; -and thus the feudal military system 
 enters into the province of the financial control (see cap. 14), 
 as the basis of a new system of taxation.f 
 
 CHAPTEE XI. 
 II. i)e IBebelopment of tf)e Jiorman 
 
 THE judicial system, as the most permanent part of all 
 political organizations, was least affected by change in the 
 transition to the Norman period. Immediately after the first 
 preliminary settlement of affairs, William solemnly bound 
 himself in the fourth year of his reign, " to maintain the good 
 and well-tried laws of Eadward the Confessor," merely except- 
 ing certain changes that had become necessary. (Sax. Chron. 
 A.D. 1070.) It is said that he appointed twelve men versed 
 in the law to make a collection of all such laws and customs 
 as were in use in the time of the Saxon Kings. The Saxon 
 population clung to that promise out of affection for their 
 national system of law, and with all the more jealousy, because 
 it afforded a guarantee of personal freedom against the tyranny 
 and violence of the Conqueror and his followers. In all 
 historically authenticated cases it is apparent that William 
 acknowledged the ancient judicial system; that he wished to 
 do justice, and that he perceived therein a means of main- 
 taining and consolidating his new kingdom. From the time 
 of Henry I. that promise is periodically repeated. In the 
 meaning and language of the time, it was understood to 
 
 t The origin of " scutage " in satis- time was not forced on the recipients. 
 
 faction of military service after the But later, when the taxes were fixed 
 
 reign of Henry II. is carefully given at a higher rate, and the demand for 
 
 by Madox(i. 625 et seq. and 642 e seq.). scutage was more frequently made, 
 
 (See below, cap. 13, sec. vi.) In the the time of Magna Charta drew near, 
 
 second year of Henry II., for the first when the King was obliged to consent 
 
 time, the Prelates were, on the occasion to negotiate with his Crown vassals on 
 
 of a campaign against Wales, allowed the subject of assessing the scutagia. 
 
 to pay twenty solidi on each knight's Different from this, and occurring 
 
 fee instead of furnishing a horseman. both earlier and later, was the admis- 
 
 In 5 Henry II. the secular vassals sion of a substitute in cases of special 
 
 also obtain permission to pay two hindrance, as to which a money pay- 
 
 marks for each shield instead of doing ment (fine) was mutually agreed on 
 
 service. From this time a satisfaction in each individual case, under the 
 
 of feudal service by scutagia becomes heading, "ne trans/relent, pro rema- 
 
 more frequent. Where small sums nendo ab exercitu, ne abeat cum rege," 
 
 were demanded, the commutation ap- etc. (Madox, i. 657, 658). 
 peared as a favour, which for a long
 
 136 Constitutional History of England. 
 
 embrace the " lex terras," that is, the whole legal system, in- 
 cluding criminal as well as civil law, procedure as well as 
 positive law. The promise meant : " Eight shall be spoken 
 by the same persons, and for the same persons, and according 
 to the same forms and principles as in the Anglo-Saxon 
 days." * 
 
 Justice is accordingly dealt out by the same persons ; that 
 is, the Norman Vicecomes, as Justiciary, steps into the 
 place of the Saxon Shir-gerefa, and periodically holds the 
 customary courts in the county and hundred. The jurors are, 
 as in the Saxon days, the freeholders of the county. 
 
 A decree of Henry I. (Charters, 103) confirms this with a 
 royal reservation. " Sciatis quod concede etprsecipio, ut a modo 
 comitatus mei et hundredo in illis locis et iisdem terminis sedeant, 
 sicut sederunt in tempore regis Edwardi, et non aliter. Et si 
 amodo exurgat placitum de divisione terrarum, si est inter 
 barones meos dominicos, tractetur placitum in curia mea. Et si 
 est inter i~avassores duorum dominorum, tractetur in comitatu. 
 Et hoc duello fiat, nisi in eis remanserit . Et volo et prsecipio, 
 ut omnes de comitatu eant ad comitatus et hundreda, sicut 
 fecerunt in tempore regis Edwardi." 
 
 The collection of laws known as the Leges Henrici 
 Primi, repeatedly represents the county courts as assemblies 
 similarly composed to those of ancient times. Formerly the 
 Hundred Court was composed of freeholders, but in the County 
 Court the Thanes were the regular judges, and the ordinary 
 freemen only participated as assistant judges, or as mere 
 bystanders. In the place of the Thanes stand now the Crowns 
 and under- vassals and the greater freeholders in their capacity 
 of free landowners. The customary legal system makes them 
 therefore judges: "Regis judices-sunt barones comitatus, qui 
 liberas in eis terras habent ; villani vero vel cocseti, vel qui sunt 
 hujusmodi viles et inopes personse, non sunt inter judices nume- 
 randi " (Hen. I. c. 29).** 
 
 * As to the consecutive history of treatises of Brunner, Gundermann, and 
 
 the Anglo-Norman judicial system, others are very great. It is now well 
 
 Dugdale's treatise, " Origines Juri- established that King Eadward never 
 
 diciales," contains only antiquarian published a special code of laws, but 
 
 matter. Equally perplexing are the that by the " Leges Eduardi " is meant 
 
 scattered remarks in Spelman's " Glos- the customary law of the country at 
 
 sarium." More to the point, but often the close of the Anglo-Saxon period, 
 
 hazardous, is the sketch in Spence's This is proved by the expression of 
 
 " Equitable Jurisdiction," vol. i. pp. William of Malmesbury (Gest. Keg. ii. 
 
 99-127. A better treatment of the 11), "non quod ille statuerit, eed quod 
 
 subject begins with Edward Foss's observaverit." 
 
 work, " The Judges of England " ** Hence we have at first the old 
 
 (London, 1848-64, 9 vols. 8vo). The composition of the Hundred Court 
 
 merits of the German treatise by with its freeholders, the County Court 
 
 Biener, " Das Englische Geschwornen- with its Thanes, in whose place now 
 
 Gericht," 1852, 1855, 3 vols., and the stand hardly more than four hundred
 
 The Development of the Norman Judicial Power. 137 
 
 The same actions are now heard before the Norman Vice- 
 comes as were formerly heard by the Saxon Eorl and Shir- 
 gerefa : " omnis causa terminetur in comitatu vel hundredo vel 
 halimoto sacam habentium " (Hen. I. c. 9, sec. 4). In like 
 manner the regulations touching suit of court, show that 
 the County Court is to be the proper court for the highest 
 as well as the lowest classes : " Intersint autem episcopi, 
 comites, vicedomini, vicarii, centenarii, aldermanni, prtefecti, 
 prsepositi, barones, valvasores, tungrevii et cseteri terrarum domini 
 diligenter intendentes " (Hen. I. c. 7, sec. 2). The duty of 
 the vassals to do suit of court (secta) was a feudal duty, and a 
 Saxon custom at the same time ; but representation was 
 early recognized: "si dapifer ejus legitime fuerit ,- si uterque 
 necessario desit, prsepositus, et sacerdos, et quatuor de melio- 
 ribus villa adsint pro omnibus, qui nominatim non erunt ad 
 placitum submoniti " (Leges Hen. I. c. I. cit. sec. 7). 
 
 The procedure of the tribunals which the Saxon freeholder 
 here sought, was the ancient one, with the Saxon writ of 
 summons, outlawry, security, compurgators, and trial by 
 ordeal. The Norman, on the other hand, preferred a pro- 
 cedure which, furnished with formal pleadings, generally 
 appealed to the duel as ultima ratio. The rule of law 
 which was needed to decide between the two systems had to 
 be determined by royal direction. One chief point, the proof, 
 the Conqueror had already settled according to a jus 
 eequum (Carta Will. c. 6 ; Charters, 84). But this was, after 
 all, only a chief point. Moreover, a trial which took place 
 with judges, lawmen, suitors, and compurgators, each of 
 whom claimed their customary law, whilst no party so much 
 as understood the language of the other, was sure to cause 
 for a long time a terrible confusion, in which partiality and 
 corruption were not wanting. At all events, in this mixed 
 law, we find an arbitrariness .on the part of the magistrates 
 both in procedure, proof, and judgment ; and a venality 
 
 Crown vassals and the subtenentes no under-vassal shall be a judge in a 
 
 of Domesday Book. A limitation to matter touching his feudal lord (Hen. 
 
 Crown vassals alone, which has been 32, cap. 2), a rule which establishes 
 
 often asserted, is perfectly untenable : the principle of the legal equality of 
 
 no Hundred Court, and not many County Crown and under- vassals as pares 
 
 Courts, could have been sufficiently in the County Court. As a fact in 
 
 composed of the existing number of the province of the judicial system a 
 
 the tenentes in capite. The subtenentes difference between Crown and under - 
 
 of the Domesday Book are only to vassals is avoided in the expression 
 
 a small extent invested subvassals, used to denote them, which embraces 
 
 but they were beyond all doubt all freeholders alike, " libere tenentes 
 
 libere tenentes, according to the mean- et qui sequuntur curiam de comitatu in 
 
 ing of the Anglo-Saxon constitution. comitatu," etc. " Coram baronibus, 
 
 The degrees in the feudal regime militibus et omnibus libere tenentibus 
 
 came into consideration in the legal ejusdem comitatus." 
 system only in one special point, that
 
 138 Constitutional History of England. 
 
 that even allowed the ordeal to be avoided by a money 
 payment. With the poor the procedure was somewhat 
 summary. 
 
 The law to be applied was, as understood by the Norman 
 and Anglo-Saxon litigants and judges also, heterogeneous. 
 After long fluctuations the necessity for a unity in this re- 
 spect brought about an arrangement, according to which 
 personal property was generally governed by the Saxon law, 
 real property by the Norman feudal law, whilst the personal 
 family law stood under the influence of the Church. Espe- 
 cially in the law of inheritance did the two systems clash. 
 The Saxon declared an equal right of inheritance in all the 
 sons ; Norman custom and the necessities of the knights' fee 
 led to the right of primogeniture. A middle course lay in 
 the maxim : " Primum patrisfeodum primogenitus filius habeat; 
 emptiones vero et deinceps acquisitiones suas det cui magis 
 velit" (Leges Hen. I. c. 70). In the end the Norman law 
 triumphs with regard to landed property ; only where 
 numerous old Saxon owners of the soil dwelt close together, 
 as was the case in Kent, an equal division of the land 
 amongst all the sons (gavelkind) remained a local custom. 
 But it is evident that it was no longer the judgment of the 
 pares, but only regulations of higher authority (in later 
 times the judgment delivered by the royal justiciaries), that 
 at this period were capable of laying the foundation of the 
 English " Common law " as a universal law for all 
 classes.*** 
 
 *** The question as to the form of official language of royal ordinances, 
 the procedure before the Norman Vice- French was spoken in the courts, but 
 comes will always be a most difficult this was a matter of necessity, seeing 
 one to solve. (Biener " Engl. Gesch- that the Vicecomites and the secular 
 women Gericht," i. pp. 52-56. ) At all great officers of the realm were for the 
 events the old tradition that the Con- most part Norman knights. Hence 
 queror banished the Anglo-Saxon Ian- arose the important position of the 
 guage from the courts is erroneous. clerks and under-officials as infcer- 
 The charters of the first Norman kings preters and advocates ; hence also the 
 are issued in the Anglo-Saxon Ian- early development of a class of inferior 
 guage as being the language of the attorneys can be explained. A trial 
 country, a language which William carried on in French, witli an Anglo- 
 himself endeavoured to acquire. Latin Saxon under- vassal or farmer, would 
 was employed as an official language have been quite as difficult in the 
 only ; all official transactions of the eleventh century as in the nineteenth. 
 Exchequer, all judicial rescripts, all In the country and local courts litiga- 
 reports of the oldest law suits, all re- tion was probably carried on in a 
 cords of the curia regis itself, even curious jargon, about as confused as the 
 under Kichard I., are couched in the rules of law were themselves. Only in 
 Latin language. It was evidently not the central courts the technical framing 
 the intention of the Conqueror to ac- of the procedure, and the appoint- 
 knowledge his Norman feudatories as a ment of Norman lords as judges, 
 ruling class, by recognizing their dialect brought about an early ascendency of 
 as the language of the country. It the French tongue, which again later 
 was generations later before the French penetrating from the curia regis down- 
 language occasionally appears as the wards, formed a French legal Ian-
 
 The Development of the Norman Judicial Power. 139 
 
 But together with the retention of the laws of Eadward 
 the manorial courts were also retained, as was taken for 
 granted in the law-books, and emphatically recognized in 
 the " Carta Henrici I." The manorial courts already existing 
 coincided with the customary rights of the Norman feudal 
 lords ; though these latter were in some particulars more 
 extensive. In the mixed law which resulted, a feudal idio- 
 matic phraseology prevailed (e.g. the term " curia baronum ") ; 
 yet here the state of affairs, partly old and partly new, 
 required to be separated from one another. 
 
 1. As a matter of course, the occupier of a manor claimed 
 jurisdiction over his villani, a jurisdiction extending over the 
 transfer of property, all disputes arising in consequence, the 
 reservation of services and performances, and disputes of 
 the tenants among themselves. Later legal language calls 
 this old manorial court sitting in civil causes the " cus- 
 tomary court," and centuries elapsed before the practice of 
 the courts allowed the peasant class the right to bring an 
 action for recovering their property in the royal courts. 
 
 2. The Anglo-Saxon rule, especially under Cnut, had already 
 extended the manorial jurisdiction to the allodiarii. The feudal 
 system now introduced the principle that to the mesne lord of 
 the soil belongs also a judicial control over the land of his 
 grantees. In consequence of this, the Norman landlord ap- 
 pears also to have claimed a subjection to his authority of 
 the freeholders who had been attached to the fee of a vassal, 
 rendering contributions, protection moneys, or performances 
 analogous to the under-vassals. The practice of the Ex- 
 chequer regarded the " right to suit of court and service" on 
 the part of the independent small landowners as naturally 
 included in the grant of the Crown fief. " As soon as a man 
 found himself obliged to do suit and service in the court of his 
 stronger neighbour, it needed but a single step to turn the 
 practice into theory, and to regard him as holding his land in 
 consideration of that suit and service " (Stubbs, i. 189). The 
 private jurisdiction over the liber e tenentes that thus arose, 
 was now called "curia baronum" ("court baron"), and it is 
 apparent from later circumstances that the Norman adminis- 
 tration uniformly recognized such an institution, at least for 
 the disputes of the tenants among themselves. The mode 
 of procedure was left to the custom of the individual localities. 
 " Placita cujusque curias secundum consuetudines suas agitantur. 
 Solent autem placita ista in curiis dominorum deduci secundum 
 
 guage. How the procedure in the Royal twelfth century is clearly shown by 
 
 High Court became formed under the Qlanvill's legal works. (See Phillips' 
 
 influence of the clerks of the court History of English Law, ii. 97-334.) 
 and the attorneys at the close of the
 
 ]40 Constitutional History of England. 
 
 rationabilcs consuetudines ipsarum curiarum, quastot et tarn varies 
 ut sunt, in scriptum de facili reduci non possunt " (Glanvill, 
 xii. 6). The law books, therefore, pass by the procedure of 
 the Court Baron in silence, but teach as an established prin- 
 ciple that it exercises a civil jurisdiction analogous to that 
 of the Hundred Court, in real actions as in actions of debt. 
 It was not until later that personal actions became as a rule 
 limited to petty matters not exceeding forty shillings ; before 
 bringing a principal action concerning a " liberum tene- 
 mentum " the plaintiff was obliged to sue out of Chancery 
 a " breve de recto," acknowledging the judicial authority of the 
 King, and his lordship paramount over all landed property. 
 
 3. The manorial courts of later Anglo-Saxon days also 
 exercised a criminal jurisdiction to an unequal and often to 
 a very wide extent. Beyond this, according to the principles 
 of the feudal law, the lord of the fee claimed for the curia 
 feudalis a certain criminal jurisdiction over the under-vassals, 
 or at all events a right of distraint on movable goods, for 
 the purpose of maintaining military discipline. Both prin- 
 ciples appear blended in the Norman administration, forming 
 a uniform and inferior criminal jurisdiction of the curia 
 baronum over under-vassals, libere tenentes, and farmers. 
 This criminal jurisdiction, however, is confined to small 
 offences and thefts in flagranti. For financial reasons all 
 the heavier cases were reserved to the King, and grants 
 of more extensive rights were, from the Anglo-Saxon period, 
 for the most part restricted.! 
 
 t As to the By stem of the Norman iheam et infangentheaf ; in extent vero 
 curise baronum. see Biener, "Geschichte per emptionem, vel cambitionem, vel 
 der Geschw. Ger.," i. 48-56. The quoquo modo perquisitis socam et sacam 
 later jurisprudence distinguished under habent, in causis omnibus, et hallimotis 
 technical names the various component pertinentibus, super suos et in suo, et 
 parts of the Manorial Court. The civil aliquando super alterius homines." Of 
 jurisdiction over under-vassals and course, the King has also the same 
 freeholders in regard to their depen- manorial jurisdiction over his own de- 
 dent lands was called Court Baron ; mesnes : " omnium terrarum, quas rex 
 the Manorial Court, in its original in dominio suo habel socam habet ; qua- 
 jurisdiction over those living upon rundam terrarum maneria dedit, sed 
 fiefland and domestics, was called Cus- socnam sibf retinuit singularem et com- 
 tomary Court. The Court leet, finally, munem. Nee sequitur socna regis data 
 was a royal police court over all living maneria, sed magis est ex personis " 
 upon the land, first instituted by later (c. 19). The later Anglo-Saxon deeds 
 grant. The Leges Henrici I. employ of grant contain the clause : " concedo 
 for the Manorial Court the term " Hal- ei libertatem plenariam, id est sacam et 
 limotum " (Hen. 9, sec. 4 ; 20, sec. 1 ; socam, tol et theam, et infangenethef, 
 57, sec. 8 ; 78, sec. 2), which seems to monbrich, hemsocne, forstell " (cf. Cod. 
 belong to the more modern feudal Ian- Dipl. iv. 167). That the sense of the 
 guage. The most frequent expression is words was no longer clearly understood 
 " eaca et soca." The Leges Henrici I. was no hindrance to, but rather a good 
 cap. 20 contain first of all the general reason for, retaining them as a formula, 
 rule : " Archiepiscopi, episcopi, comites When the Norman Kings (as Henry I. 
 et alias potestates, in terris proprias potes- on his ascending the throne) were 
 tatis svx, sacam et socam nabent, tol et obliged to meet their Crown vassals
 
 The Development of the Norman Judicial Power. 141 
 
 However well ordered these judicial arrangements might 
 appear externally, their inner life was defective and disordered. 
 The greed and arrogance of the Norman vicecomites and 
 vassals made these courts places of arbitrary dealing and 
 oppression. The rules of court and of law to be applied were 
 for many generations contradictory; the judges were kept 
 asunder in various ways by national antipathy. The Con- 
 queror had intended to have the more important customs of 
 each county determined by commissioners; but this work 
 could not be carried out in consequence of practical difficulties. 
 The private codes which were formed at the same time were 
 entirely inadequate for the task. The conflict of the legal 
 conceptions of different nationalities left a wide field open, 
 which the partiality of the Norman country magistrate and 
 bailiff took advantage of for his countrymen and compeers, or 
 for the highest bidder. It is only from the occasional inter- 
 ference of the King, and the partiality of the vicecomites, 
 which is mentioned as a matter of course in almost every 
 contemporary narrative, as well as from the general detesta- 
 tion in which the office is held, that we can conjecture what 
 manifold injustice is hidden behind the silence of history. 
 These internal defects bring the Anglo-Norman judicial system 
 into a state of agitation, which by a continuous process of 
 pressure from the lower upon the higher class brings about 
 a centralization of justice, in the following order. 
 
 I. ^|)e local courts become gradually limited. As private 
 rights of the landlord (rights of property) they still exist 
 unabridged, so far as the jurisdiction of the manorial courts 
 over the villani extends ; that is, as a " customary court." 
 The jurisdiction of the curia baronum, on the other hand, is 
 regarded as a personal grant, and can accordingly be refused, 
 " non sequitur socna regis data maneria, sed magis est ex 
 personis " (Hen. I. c. 19). For financial and political reasons 
 the royal authority (different from that on the Continent) 
 impeded every development of the court baron, and without 
 attacking it in principle, gradually neutralized the judicial 
 power of the mesne lords. Different circumstances tended to 
 this result. 
 
 (a) The scattered position of the lords' possessions rendered 
 it an exceedingly difficult matter to form great feudal manors 
 in consequence of the great distances (Hen. I. c. 55). The 
 principal seat of the lord, the " caput baronite," might well 
 
 with friendly assurances, the manorial rum receptionem super eorum proprios 
 
 rights formed primarily the subject of homines intra burgos et extra, tarn plene 
 
 these promises: " Sacam in terra et in ettam directe, quam meiproprii ministri 
 
 aqua, in silvis et in campis, tolnetum et ipsum exquirere deberent et super tarn 
 
 team, grithbrecam et hamsocnam, fore- multos tanorum quot ego eis concern'" 
 
 tteallum et infangthitf, et in fugitivo- (Lye's Suxou Diet., A pp. Chart. No. 6).
 
 142 Constitutional History of England. 
 
 be a place of meeting of the under-vassals for festivities, 
 investitures, and the like, but could be no baronial court for 
 the collective vassals, no " cour de baronie" in the French 
 sense. A court baron of this description was more important, 
 as numerous under-vassals and the personal presidency of 
 the lord could be added to the ordinary freeholders. But the 
 judicial power of the great feudal lord, as far as can be proved 
 by documents, was only an aggregate of manorial jurisdictions, 
 not different in quality from the jurisdiction of a manor. ft 
 
 (&) To this was added the superintending and rival power 
 of the King as the highest judge in the land, which in the 
 spirit of Norman administration was zealously exercised on 
 account of the perquisites. The Exchequer records show that 
 judicial mandates proceeding from the royal court very early 
 admonished the feudal courts to administer justice under the 
 threat that in default the supreme power would intervene. 
 The " writs of right " directed to the small patrimonial 
 courts were openly issued, as letters patent, and were 
 despatched by the Vicecomes. They contained the regular 
 clause, " et nisifeceris, vicecomes hocfaciat, ne amplius clamorem 
 audiamus pro defectu recti." Every defect in this customary 
 judicature was made use of for the same purpose. The right 
 of distress which belonged to the mesne lord is only a 
 sequestration without the right of sale. In cases of execution 
 the King must accordingly be appealed to, and the matter 
 given over by writ to the sheriff to be further dealt with. 
 Every complaint, that the manorial court refuses justice or 
 does not properly administer it, transfers civil as well as 
 
 ft The owners of the greater lord- honor consists of many manors, and 
 ships, surrounded by the officials of there is for all the manors one court 
 their households, held solemn feudal only held, yet are there quasi several 
 courts (Madox, i. 101), and in their and distinct courts for several manors " 
 documents made use of a style analogous (Scroggs, 81, 82, cited by Scriven on 
 to that of the royal administration of Copyholds, 6). Kegarding the de- 
 justice : such expressions as " Dapifero fective nature of the manorial means of 
 meo et omnibus baronibus meis et execution, see Scriven, vol. ii. 757. As 
 hominibus meis Francis et Anglis" are to the lending of lawmen, which in 
 frequently to be found in the " Monas- later times no longer occurs, see Ellis, 
 ticum Anglicanum" and in the i. 236, 237. By the statute, Quia 
 " Formulare Anglicanum." But the Emptores, 18 Edw. I., the development 
 scattered position of their lands did not is legally curtailed. In the rare cases, 
 permit in practice of any other relation in which in later times the King 
 than that of intermediate Crown makes an hereditary grant of the 
 vassals. The under-vassals could not administration of a hundred, this is 
 come from distances of twenty or a done with reservation of the jurisdiction 
 hundred miles to their feudal courts, of the Eoyal Judges and Sheriffs. A 
 in order to hold sittings once a month, request of the landlords to have their 
 after the fashion of a hundred court. own prisons was refused by the Statute 
 With the caput baronise the juris- of Merton : "Magnates petierunt pro- 
 diction of several contiguous manors priam prisonam de illis, quos caperent 
 was often united (Hey wood, 148) ; but in parcis et vivariis suis. Quod qui- 
 it never went beyond the scale of a dem dominus rex contradixit, et idea 
 plurality of manors. " Although an diff&rtur."
 
 The Development of the Norman Judicial Power. 143 
 
 criminal matters to the Eoyal Court ; in like manner appeals 
 by "writs of false judgment." Where the manorial court 
 has not been properly composed (which often occurred, owing 
 to the scattered position of the estates), the matter at once 
 devolved upon the Eoyal Court. All attempts made to form 
 a superior jurisdiction of the greater feudal courts over the 
 sentences passed by a smaller curia, are finally cut short by 
 the Statute of Marlebridge in the rule, " Nullus de ceetero 
 (excepto domino regio) teneat placitum in curia sua de falso 
 judicio facto in curia tenentium suorum ; quia hujusmodi placita 
 specialiter spectant ad coronam et dignitatem domini regis." 
 
 (c) Decisive reasons were also contained in the nature of 
 the law that was to be applied. After the lapse of a century, 
 the administration of justice had become concentrated in a 
 class of professional judges. Compared with this arrange- 
 ment the formation of the private courts became more and 
 more insufficient. In like manner the mode of taking evidence, 
 especially the procedure with compurgators, " legis vadiatio," 
 became less and less practicable. Whilst in the royal 
 tribunals a reform adapted to the times was introduced, which 
 developed a civil jury, and somewhat later a criminal jury, 
 they were still denied to the private courts, the insignificance 
 of which rendered such reforms for the most part inapplicable. 
 The fact that the private courts remained upon their old 
 basis, whilst an untiring legislation brought the Eoyal Courts 
 important improvements, also contributed to the unavoidable 
 decay of the former. 
 
 (d) When in course of time great lordships reverted to the 
 Crown in consequence of escheat or forfeiture, these extensive 
 judicial powers were in the re-grants frequently withheld ; 
 and generally the sub-vassals were made immediate vassals 
 of the King. By this means, and also owing to the ultimate 
 interdiction of subinfeudation, the courts baron lost their best 
 lawmen. It was next assumed that where there did not remain 
 at least two freeholders to compose the court, their jurisdiction 
 was suspended. All these defects are seized upon by the 
 higher courts, and private jurisdiction becomes merged of 
 the county and royal courts of first instance.ttf 
 
 ttt As a counterpoise to the great special court of their own, which was 
 feudal lords, the opposite maxim was desirable for the wants of a more closely 
 followed in favour of the towns. Lon- packed population. Such grants were 
 don and certain larger towns obtained now made by the king, as lord-para- 
 by privilege a mayor, or a town-reeve, mount, by charter, according as the 
 who apparently exercised the whole necessity of the case required, or on 
 criminal and civil jurisdiction of the petition, and on the payment of high 
 Vicecomes, and entirely superseded dues. In the bishops' sees the grants 
 him. Other towns also, in order to are generally old ; in abbey lands they 
 lighten their judicial duties, began to took place regularly. In certain char- 
 show a constant tendency to form a ters of Henry II., a complete exemption
 
 144 Constitutional History of England. 
 
 II. fi)e (ZDountg Courts, as regular country courts of the 
 liberi homines of the realm, passed over unchanged, with their 
 two grades of Hundred- gemote and Shire-gemote, into the 
 Norman period. In their case also a curtailment of com- 
 petence took place. 
 
 1. The Hundred Court appears with its monthly sittings 
 in the Leges Hen. I. c. 51, sec. 2, " Debent autem ad singulos 
 menses, i.e. per annum duodecies, congregari hundreta." In 
 like manner c. 7, sec. 4 : "Debent autem hundreta vel wapen- 
 tagia duodecies in anno congregari, et sex diebus ante summoniri." 
 In Henry I. 41, sec. 6, it is repeated that a hldford shall 
 present his accused man at the hundred. But beyond doubt 
 the hundred court suffered considerable damage from the 
 fact that the court baron became extended with the competence 
 of a hundred court to under-vassals and libere tenentes. The 
 hundreds appear almost everywhere broken in upon by mano- 
 rial courts ; and, owing to the dissensions prevailing among 
 the lawmen, give the feeblest possible guarantee to the weaker 
 against the stronger. It is scarcely conceivable how, at this 
 time, considering the number of the hundred courts, an ade- 
 quate composition of them was possible ; but it is very easy 
 to understand that the Vicecomes, overburdened with business, 
 had little inclination to hear, twelve times a year in each 
 hundred, small civil causes which brought in only small fees. 
 From the supplementary relations, which always subsisted 
 between county court and hundred court, it followed that 
 numerous civil actions were brought into the county court. 
 That the hundred court was, notwithstanding its apparently 
 small judicial activity, regarded as a regular district court, 
 is explained by the tenacious adherence of the people to a 
 judicial system, which was the last buttress of the social con- 
 ditions of the ordinary free man. The character of lawmen 
 in the hundred court remains the legal mark of the liberi et 
 legates homines, who keep their position by the side of the class 
 of knights, and who furnished the most numerous members 
 for the later important trials by jury. 
 
 2. The County Court, now " Curia comitatus," has, from old 
 custom, jurisdiction in more important cases, over actions 
 brought against Thanes (now "milites"), and other influential 
 persons. Already in the Anglo-Saxon period its relation to 
 the hundred court was a supplementary one. From the 
 sphere of the hundred courts and courts baron, a number of 
 civil causes are now brought thither. Of criminal offences, 
 
 from all interference of the Vicecomes numbers, which, in the order of things 
 
 is pronounced, and consequent immu- existing in those days, created, at all 
 
 nity from the suit of court in the county. events, a special " court leet." 
 Under John grants were made in great
 
 The Development of the Norman Judicial Power. 145 
 
 we find mention most frequently made of thefts and smaller 
 offences (metletse, verbera, plagee, transgressiones). The ac- 
 cumulation of business brought it about that later (as decreed 
 in Magna Charta) twelve sittings were held annually. Even 
 the Leges Henrici 51, sec. 2, say, "Comitatus bis, si non sit opus 
 ampllus, congregari." It appears, therefore, that in addition 
 to the two 'legal Shire-gemotes, prorogued sittings were in- 
 troduced, to which, as instituted court sittings or " county 
 courts," only the interested parties were summoned. But even 
 thus the county court was inadequate to settle the great 
 number of small criminal cases. Hence from the county 
 court a " turnus Vicecomitis," " Sheriff's Tourn," was separated 
 off a new institution, belonging to this period, according to 
 which the Vicecomes journeys, at least twice a year, through 
 the several hundreds, and, in the capacity of Eoyal Com* 
 missioner, disposes of the petty misdemeanours, which were 
 most practically dealt with at the places where they were 
 committed. This turnus Vicecomitis is not to be regarded as 
 an original institution of the hundred, but as a branch of the 
 county court, by virtue of royal commission ; which is referred 
 to by Henry I. c. 8, sec. 1 : " Speciali tamen plenitudine si opus 
 est, bis in anno conveniant in hundretum suum quicunque liberi, 
 tarn hudefest, quam folgarii, ad dinoscendum scilicet, si decanise 
 plense sint, etc." Similar delegations to a commissioner were to 
 be found in Normandy. On these circuits the whole male popu- 
 lation of the small districts appeared for police purposes, whence 
 it followed that the name of people's court, "court leet," 
 was customarily applied to these court- assemblies per delega- 
 tionem. Under the Norman fine and fee system there arose 
 from them a local police-court (cap. 12), which was further 
 a subject of grants to landowners and parishes. From the 
 position of the Vicecomes as royal commissioner, it can be 
 seen why the Tourn is regarded as a royal court of record, 
 whilst the old Anglo-Saxon county court is not one. In the 
 multifarious business thus brought before them, the Vicecomites 
 make use of their higher bailiffs as substitutes; the lower 
 bailiffs are employed for summonses, executions, and service 
 at court sittings. (2) 
 Numerous and important as the county causes now became, 
 
 (2) The county and hundred courts hold a police-court (turnus Vicecomitis), 
 
 have of all Anglo-Saxon institutions we meet (as early, indeed, as the Leges 
 
 preserved most faithfully their original Henrici I.) with two sorts of courts in 
 
 form, and we find that the Leges Hen- the hundred the great court for the 
 
 rici, cc. 7, 8, 14, 41, 91, and a number Frank-pledge, the Sheriff's Tourn, held 
 
 of other passages, describe the county twice a year; and the smaller court, 
 
 and hundred courts purely in the form the curia parva hundredi, held every 
 
 in which the Normans found them. three weeks, presided over by the 
 
 Now that the sheriff, according to the bailiff of the hundred, for the decision 
 
 new arrangement, must twice a year of petty civil cases. 
 
 L
 
 146 Constitutional History of England. 
 
 a diminution of their competence is very soon visible, owing 
 to the royal reservation of actions touching Crown fees, and 
 of the heavier criminal cases, of the extent of which we shall 
 have to speak later on. In the county court also is seen 
 a tendency to go higher ; the reason for which must be sought 
 in the partiality of the sheriff, and, still more, in the state of 
 the law and judicial decisions. The duties of members of the 
 village communities to act as judges (in Germany styled 
 ScJwffen-Verfassung) cease everywhere when compound modes 
 of property and social conditions take the place of simple 
 and uniform tenures. In Anglo-Norman England, the law of 
 possession had from the first to develop itself out of discordant 
 elements, by applying the Norman feudal law to Saxon modes 
 of tenure. In like manner a unity of legal views on the part 
 of the judges was prejudiced by contrasts of nationality, 
 and gradually, too, by those of the modes of tenure, in propor- 
 tion as provincial, civic, and ecclesiastical legal spheres came 
 into daily collision. The diversities of interests and views of 
 social life, as it became settled, effaced the sense of legal unity, 
 and made it necessary that the development of law should 
 proceed from State authority. Decisions had here, at an early 
 period, to be gathered from interpretations and analogies ; for 
 a customary law based upon the " legal customs of the com- 
 munity" would have been a different one in almost every 
 county, hundred, and town, according as nationalities were 
 confused and knights, freeholders, and citizens were blended 
 together. In a still greater measure was this true of criminal 
 law and criminal procedure, in which, for the maintenance 
 of the public peace, the most important principles had to be 
 modified by the higher authorities. 
 
 III. From this internal process of decomposition can now 
 be explained the position of the royal jurisdiction under the 
 Norman name of " CUtfa UUgt'S." Probably at the time when 
 the Anglo-Saxon judicial system was confirmed, many reser- 
 vations demanded by the feudal system were made. Of civil 
 matters, legal disputes as to Crown fiefs were reserved to the 
 King, for his personal instruction of the court ; as were like- 
 wise differences as to adfvocatise, and the like, out of regard 
 to the state of ecclesiastical relations. The ancient judicial 
 authority of the King could also summon before him every 
 action from the lower courts, partly on account of defectus 
 recti, and partly when it was assumed that in the lower 
 court impartial justice was not to be obtained. 
 
 It was not intended by this, that for all such cases a special 
 court of lawyers should be formed at the royal court. The 
 majority of such cases were referred by commission to the 
 county court or some neighbouring county court, as extra-
 
 The Development of the Norman Judicial Power. 147 
 
 ordinary matters, not lying within ihefirma of the Vicecomes. 
 Only in case of actions against the greatest magnates, the 
 King sometimes appointed a commission of prelates and 
 vassals of the Crown, to decide the matter at court. The 
 composition of the county courts, which excited little con- 
 fidence, and the want of unity in the principles of law, as 
 applied to rights of property, promoted an appeal to the 
 royal fountain of justice ; especially from the time when 
 special commissioner-judges (justiciarii)^ who were free from 
 the animosities and eagerness for fees of the sheriff, began 
 to be appointed for this purpose. So soon as the way was 
 thrown open, under Henry II., a flood of civil causes imme- 
 diately swept into the royal court, which was now opened 
 on payment of fees, to the most varied legal claims. The 
 condition of things resulting herefrom is shown in the treatise 
 of Glanvill, i. c. iii., where a considerable list of reserved 
 civil causes appears, with the further addition " quodlibet 
 placitum de libero tenemento velfeodo potestrex trahere in curiam 
 suam, quando vult " (cap. v.).* 
 
 The course of criminal justice is analogous. Here also at 
 first a reservation was made of certain more serious offences, 
 such being in Cnut's laws reserved to the Crown from the 
 jurisdiction of the private courts (Hen, I. 10). The mass 
 of the reserved cases was, however, at first assigned to the 
 county court for hearing. Only in cases of the prosecution of 
 prelates and the highest vassals of the Crown, and even then 
 only in a few cases, which are recorded in history, did the 
 King make use of his privilege of administering supreme 
 criminal justice through a commission of prelates and vassals 
 of the Crown duly appointed ; and this criminal authority 
 generally commuted capital sentences into confiscations and 
 forfeiture of fiefs. But in this respect the royal reservation 
 increases, and even Glanvill reckons all "felonise contra 
 pacem regis" among the Crown cases reserved: even frays 
 and brawls, if they are tumultuous in their character, " si 
 accusator adjiciat de pace regis infraeta " (Glanvill, i. cap. 2). 
 The heavy criminal offences appear now as "feloniss contra 
 
 * The jurisdiction of the curia regis debitis laicorum." Certainly, a more 
 
 will be discussed at greater length in extended meaning is afterwards given 
 
 connection with the central adminis- by Glanvill's words (i. 5) : " quodlibet 
 
 tration (caps. 16, 17). The royal reser- placitum de libero tenemento vel feodo 
 
 vation of civil causes was probably potest rex trahere in curiam suam, 
 
 originally limited to the provision in quando vult." From the time of Henry 
 
 the Carta Henrici I., touching litiga- II. begin the numerous cases of pay- 
 
 tion as to Crown fees. Glanvill, i. 3, ments for the acceptance of the cause 
 
 reckons as reserved cases : " placitum de at the royal court under the heading 
 
 baroniis, pi. de advocationibus, questio " ne placitet nisi coram Rege de tene- 
 
 statug, pi. de dotibus unde nihil, querela mentis suis ; ne ponatur in placitum nisi 
 
 de fine facto, de homagiie faciendis, de coram Rege vel ejus capitali Justiciario " 
 
 releviis recipiendis, de purpresturis, pi. (Madox, i. 19 et seq.).
 
 148 Constitutional History of England. 
 
 pacem domini regis," and in regard to the mode of proceeding 
 as " placita coronas." A better spirit is infused into this 
 portion of the legal administration by the severance of the 
 farm interest (firmo) from the judicial functions ; which was 
 effected by the appointment of royal justiciarii in the place of 
 the Vicecomes. The reservation of the royal right of inter- 
 ference now develops into a periodical delegation of matters to 
 criminal judges.** 
 
 The reign of Henry II. is a period of transition, which in 
 its centralizing spirit brings the more important matters 
 through travelling judges to the court (curia), and which also 
 by forming a body of professional judges prepares the way for 
 a more solid system of justice in the whole realm according 
 to the principle of unity. The system of royal justiciarii 
 about the middle of this epoch forms such a connected whole, 
 that a special exposition of the central administration is 
 needed (cap. 17). The transition to the administration of 
 justice by official and professional judges, which did not take 
 place in Germany until centuries later by the adoption of 
 foreign law, was accomplished here as early as the twelfth 
 century. Considering the tenaciousness with which the 
 Saxon population clung to their customary law, this would 
 have been almost inconceivable, if it had not been necessitated 
 by the bad state of the county courts. But it also goes hand 
 in hand with an entire transformation in the old participation 
 of the lawmen in judging, which change, as early as Henry II., 
 already begins to assume the outlines of a civil jury, and 
 under Henry III. that of a criminal jury. 
 
 The great change which here occurs depends chiefly upon 
 royal ordinances, even upon quite informal instructions. Only 
 in the case of a few decisive innovations did Henry II. find 
 a conference with assemblies of notables by means of the so- 
 called " Assizes " advisable. Most new arrangements pro- 
 
 ** The original reservation in the close the author, however, adds : 
 
 criminal matters is summed up as "The meaning of this reservation is, 
 
 follows in the Leges Henrici, i. c. 10, that the hearing of these more serious 
 
 " Hsec sunt jura, qux rex Anglias solus criminal cases does not belong to the 
 
 et super omnes homines habet in terra general farming of jurisdiction : ' Heeo 
 
 sua: in/radio pacis regise per manum sunt Dominica placita Regis nee pertinent 
 
 eel breve dates ; danegildum; placitum Vicecomitibus vel Apparitoribus vel 
 
 brevium vel prxceptorum ejus contemp- Ministris ejus sine definitis prselocu- 
 
 torum ; de famulis suis ubicunque tionibus infirma sua.'" It accordingly 
 
 occisis vel injuriatis ; infidelitas et did not exclude the power of assigning 
 
 prodicio ; quicunque deepectus velmali- all these cases to the commissioners to 
 
 loquium de eo; utlagaria; furtum deal with before the county court, 
 
 morte impunitum; murdrum; falsaria which was very frequently done until 
 
 monetx mese ; incendium ; hamsocna ; Magna Charta. The assertion in Glan- 
 
 forestel" etc. This passage is in part vill, i. 2, is more reliable, but it 
 
 a translation of the Leges Cnuti, II. furnishes no proof of the exact time of 
 
 12-15, and it is doubtful how old the extension, 
 confusedly added clauses may be. At
 
 The Development of the Norman Judicial Power. 149 
 
 ceeded from necessity, and were begged for by the litigants at 
 court as a boon, and were moreover of such a technical kind, 
 that the improved administration of justice could only evolve 
 itself slowly and irregularly out of the practice and better 
 spirit of the magisterial body. Though according to the 
 State records as yet published, much still remains defective, 
 the following may be taken as the situation at the close of 
 the period. 
 
 The judicature had been reformed by ordinances of the 
 King ; his administrative power had to a considerable extent 
 remodelled law, judicature, and procedure. The arrangement 
 of the court had been transferred in all important civil and 
 criminal matters to the person of the Sovereign ; " in curia 
 domini regis ipse in propria persona jura decernit " (Dial., i. 
 cap. 4). 
 
 The judicial decision in these cases rests no longer with the 
 lawmen of the county, but with justiciarii appointed: by the 
 King, for the most part officials educated in the law, to whom, 
 as immediate organs of the royal administration of justice, 
 the county courts, as inferior courts, are subordinate. 
 
 The ancient participation of the people in the administration 
 of justice is limited to what in this altered order of things the 
 members of the community still were, and to what they could 
 perform ; that is to say, to the determination of the queestio 
 facti by commission appointed for this purpose, in the form 
 of a civil and criminal jury. The customary manner of 
 inquisitio by means of sworn committees of the community, 
 which was in use at the time of the framing of Domesday 
 Book, for the purpose of deciding on the royal privileges, the 
 levying of taxes, determining the degrees of military service 
 according to the assize of arms, and for the actual settlement 
 of local affairs, is now made use of to substitute a more 
 rational mode of proof for the obsolete modes of taking 
 evidence by means of compurgators, ordeals, and duels.*** 
 
 *** The development of the jury in and the comitatus. This testimony 
 
 civil actions has been fully discussed can only be practically delivered by a 
 
 and determined in all its technical de- representation of those bodies, that is, 
 
 tails in the great treatises of Biener, by a provost and four men for the 
 
 Brunner, Forsyth, and others, so that it villata by the duodecim legales 
 
 suffices to notice the results. The homines for the hundred, and by the 
 
 connection of these technical institu- twelve or more milites, etc., for the 
 
 tions of procedure with the political comitatus. For the greater bodies, 
 
 organization, is important for constitu- those of the hundredum and the 
 
 tional history. Where an energetic English "burghs" the number of 
 
 central government, like that of Charle- twelve was fixed already in the Anglo- 
 
 magne, or of the Norman kings, with Saxon period as the proper representa- 
 
 its defective official system, needs an tion. This combination of an action 
 
 exact local certification, it is by the of the government with an action of 
 
 nature of things referred to the testi- the local bodies was made so necessary 
 
 mony of the villa, the hundredum, by the circumstances of the case, that
 
 150 Constitutional History of England. 
 
 At the close of this period we find the civil and criminal 
 procedure based upon a systematic co-operation of the Eoyal 
 Judges with committees of the community; and already in 
 Bracton's treatise the more modern fundamental principle of 
 the judicature is laid down in its universality " Veritas in 
 jiiratore, justitia et judicium in judice" (Bracton, fol. 186 b.). 
 The legal decisions which are now pre-eminently the applica- 
 tion of general laws, pass from the community to the official 
 professional judges. But the former participation of the com- 
 munity, consisting in passing sentence, compurgating and 
 giving evidence, is reduced to the determination of the 
 "question of fact" by committees selected out of the body of 
 the hundred. 
 
 It is evident that thus the judiciary powers of the King 
 have become something different from the formal and merely 
 supplementary judicial office of the Anglo-Saxon sovereign. 
 The King has become the " fountain of justice " in a new 
 acceptation of the term, a royal supreme judge in the most 
 extensive sense, and in sense until then unknown to the 
 Middle Ages. 
 
 the Church with its. synodal courts, and and all become established, the modes 
 Charlemagne with his attempts of of taking such evidence depended upon 
 secular presentments and recognitiones the constitution of the offices, and the 
 were obliged to take the same course. official districts. In this sense a modi- 
 The material part of the innovation fied introduction of the Frankish in- 
 consisted, as Brunner remarked with stitutions which had long been in vogue 
 perfect truth, in the fact that the in Normandy took place, and these 
 magisterial power of itself, by virtue of were now adapted to the English 
 its office, helps to the furnishing of comitatus, hundreda, and mllat&, and 
 evidence, whilst in the ancient legis technically developed by the jurists 
 actiones the proof was purely the con- of the curia regis. The action of the 
 cern of the parties. So soon as the jury in criminal affairs is dealt with 
 principle of an official determination on p. 189. 
 of evidence (inquiiitio) had for once
 
 ( 151 ) 
 
 CHAPTER XII. 
 III. $t Bebtlopment of tf)e Koman police Control. 
 
 As the Anglo-Saxon sovereign, in his capacity of supreme 
 guardian of the peace, proclaimed the " King's peace " at his 
 accession, so did also, the Norman kings. This proclamation 
 (at all events from the time of Henry II.) was regarded as 
 valid for the whole of the reign; occasions, however, often 
 presented themselves for general and special proclamations 
 of peace. In the oldest Treasury records we find fines of five 
 marks, eleven marks, and 20, "pro pace' fracta," especially 
 recorded against Norman lords. The oldest regulations on 
 this point are only repetitions of existing arrangements ; but 
 in the hands of the Norman sovereigns they continually attain 
 greater dimensions.* 
 
 I. The Anglo-Saxon principle of police sureties is repeated 
 in the ordinance of William I., c. 8 (Charters, 84) : " omnis 
 homo qwi voluerit se teneri pro libero sit in plegio, ut plegius 
 eum habeat ad justiciam, si quid offenderit. Et (si) quisquam 
 evaserit taliwm, videant plegii,^ ut solvant quod calumpniatum 
 est, et purgent se, qwa in evaso nullam fraudem noverint. 
 Requiratur hundredus et comitatus, sicut antecessores staluerunt." 
 
 * That tlie Norman national' police The author of that private collection 
 regulations are a continuation of the does not here quote the words of the 
 Anglo-Saxon system of maintenance law, but only gives descriptions, in 
 of the peace is shown by the detailed which he endeavours to elucidate to 
 references of Palgrave, ii. 105 et seq. his contemporaries the ancient police 
 The difference between the " Pax data system of the country. The word 
 manu regis," and the " pax a Vioecomite "Frithborg" (according to Lambard 
 data," is put forward in Henry 79, " Freoborg ") which there occurs, pro- 
 sees. 3, 4 ; the equal value of all imme- bably belongs more to tlie popular lan- 
 diate and mediate peace-proclamations guage than to the laws. " Francple- 
 in Edw. 12, sees. 1, 27 ; as to its re- gium " is the Norman translation in 
 action upon private feuds, see Bracton, the official vernacular of the times. 
 i. 2. c. 35, sec. 5; Fleta, i. 3. c. 16, The changes during the Norman period 
 sec. 16 ; Britton, 68 ; and Allen, " Pre- probably consist merely in the altered 
 rogative," 121. Its connection with method in which the Exchequer, and 
 the Anglo-Saxon police security, in the royal magistrates with increased 
 consequence of the confused statements military and police powers, exact the 
 of the Leges Eduardi c. 20, has pro- fines in the most summary fashion 
 voked much controversy. (See the de- from the " obstinate and ill-disposed " 
 tailed account in Waitz, " Deut. Verf. communities. 
 Gesch,," 2nd edit., 1865, p. 426-457.)
 
 152 Constitutional History of England. 
 
 In like manner the responsibility of the Thane for his 
 dependants is found in the Leges Eduardi, c. 21 ; that the 
 vassals of the Crown should have their milites and ser- 
 vientes under their security, and these again their " armi- 
 geros vel olios servientes." To establish an effectual control, 
 the Norman administration now introduced an annual revi- 
 sion of the police unions, the "visus francplegii," view of 
 francpledge. This revision was combined with the circuit 
 of the Vicecomes at Michaelmas, and lasted for centuries, 
 and in name even down to the present day: "Bis in anno 
 convenient in hundretum suum quicunque liberi, tarn hudefest 
 quam folgarii, ad, dinoscendum, si decanise plense sint, vel qui, 
 quomodo, qua ratione, recesserint vel super accreverint" (Hen. I. 
 c. 7). In these laws only general surety, a responsible pledge, 
 or two pledges are primarily spoken of. But the Norman 
 financial administration has in this as in other cases intro- 
 duced a more rigorous mode of exaction. The Norman 
 official, who had nothing in common with the communities, 
 summarily demanded the fine from the people tributim (in 
 gross), and left them to settle the matter among themselves. 
 The result was that in this manner the system of police sure- 
 ties developed into a mutual responsibility of the tithing, and 
 it can thus be explained how in the twelfth century the 
 private compiler of the Leges Eduardi considers the police 
 suretyship as a mutual one ; "ita quod si unus ex decemforis- 
 facit, ad rectitudinem novem haberent decimum " (Edw. c. 20, 
 sec. 1), yet in such a way, that the guilty perpetrator, if dis- 
 covered, himself pays the indemnity (sec. 2). If he escapes, 
 and has no property, the provost of the tithing must make 
 compensation "de suo etfrithborgi" (sec. 4). Following these 
 passages, scholars have erroneously invented a system of 
 "mutual-surety" which they allege to have existed in the 
 Anglo-Saxon period. The later law books also mention it 
 as being a duty incumbent on the community ; e.g. Bracton, 
 124: " De eo autem qui fugam ceperit, dilig enter inquirendum, 
 sifuerit in francplegio et decenna, tune erit decenna in miseri- 
 cordia coram justiciariis nostris, quia non habent ipsum male- 
 factorem ad rectum " (see Fleta, i. 27, sec. 4). Certainly the 
 Anglo-Saxon law of settlement, the necessity of every vagrant 
 being received into a parochial union, could be most effectu- 
 ally enforced by this system of exacting penalty from the 
 community in gross; and thus it remained for centuries 
 an instrument for harshly treating vagrants and suspected 
 persons. (1) 
 
 (1) That from the first a transfer quer accounts. In numberless cases, 
 of Anglo-Saxon institutions was ia- districts were fined for "harbouring 
 tended, is also shown by the Exche- an unknown person without having
 
 The Development of the Norman Police Control. 153 
 
 II. This rigorous treatment of the tithing was followed by 
 an extension of the responsibility of the larger union of the 
 hundred. The insecurity of the Normans in the midst of an 
 exasperated population was the cause of the issue of a decree 
 by William, that any hundred should at once pay forty-six 
 marks, within whose boundary a Norman should be found 
 murdered, unless the perpetrator were captured within five 
 days. (Will. I. 3; Charters, p. 34.) Here again the royal 
 right to issue ordinances is conspicuously seen. A Saxon 
 Witenagemote would most certainly have claimed the right of 
 agreeing to such innovations. But now the threatened Nor- 
 man community eagerly accepted an effectual protective 
 measure which the other party was not in a position to 
 gainsay. But soon the administration extended the principle 
 still further, so that, according to the Exchequer accounts, 
 a fine is charged upon the hundreds "in gross," as a subsi- 
 diary responsibility, where the village does not possess the 
 means of paying the police fines it has incurred. (2) 
 
 III. A step further and a duty of presentment was developed 
 out of these beginnings. The necessity of not leaving the 
 prosecution of breaches of the peace purely to the pleasure 
 
 taken francplegium of him," and for 
 " harbouring a man who was not in 
 the francplegium" for receiving a man 
 " without Tething," and so on. (Madox, 
 i. 546 et seq. 555.) See in Gervase (i. 
 565), where the hundred of Peckham 
 and others are fined, because they 
 wittingly allow a man to live amongst 
 them without "francplegium." The 
 yearly recurring view of frankpledge 
 was an efficacious measure, but one 
 which was not exactly essential to the 
 system, and in many districts was not 
 put into force at all. The later exer- 
 cise of it is shown in Magna Charta ; 
 in Fleta, ii. 52, 72 ; Britton, o. 29 ; 
 Home's "Mirror," c. 1, sec. 16. The 
 institution was not introduced in those 
 provinces lying north of the Trent 
 (Palgrave, ii. 123), which fact seems 
 to prove that it proceeded from the 
 Conqueror himself, at a time when 
 these northern provinces had not yet 
 become included in the Norman gov- 
 ernment. 
 
 (2) The extension of the police re- 
 sponsibility to the hundreds in the 
 case of murdrum rests upon a 
 direct ordinance of the Conqueror. 
 (Will. I. c. 2 ; Charters. 84.) The in- 
 novation consists in the principle of 
 the responsibility of all the men of the 
 hundred, separately and collectively, 
 as well as in the enormously high 
 
 penalty of forty-six marks in silver. 
 In practice this was rendered all the 
 more severe by the legal presumption, 
 that every unknown corpse is to be 
 considered as that of a Norman, until 
 proof given that the murdered man is 
 an Englishman. The author of the 
 Leges Eduardi, in cap. 15, represents 
 the case, as if according to Anglo- 
 Saxon regulations the forty-six marks 
 were to be primarily collected in the 
 guilty villa, and according to the 
 newer regulation the sum was to be 
 gathered from the hundred, to obviate 
 the' ruin of the small communities. 
 The Carta Wilhelmi itself speaks of 
 the lord of the manorial court being 
 primarily answerable, the hundred 
 making up the deficiency in the sum, 
 " ubi vero substantia domino deficerit, 
 totus hundredus in quo occisio facto, 
 est communiter soluat quod remanet." 
 From these ordinances and the more 
 ancient usages, there arose in practice 
 a subsidiary liability of the hundred 
 for other police penalties also. (See, 
 as to the frequent penalties inflicted 
 on the hundreds, Madox, i. 565, and 
 the whole section on the subject of 
 ainerciaments.) The county of Shrop- 
 shire was exempted from this sys- 
 tem, as were also favoured cities like 
 Worcester and Bristol.
 
 154 Constitutional History of England. 
 
 of the injured party, but of prosecuting them ex offido in the 
 interest of the injured commonwealth (the King), had even 
 in the Anglo-Saxon period led to a decree of jJEthelred III. 
 (8, sec. 8) ; which speaks of a presentment of breaches of the 
 peace " by twelve Thanes of the hundred." This decree 
 apparently remained isolated and was soon forgotten. But 
 the Norman Vicecomes, wherever he was confronted by the 
 Anglo-Saxon population, was from the first ordered to settle 
 local matters by the help of neighbours sworn in for this 
 purpose. The exact time at which a procedure of this kind 
 became established for police purposes, and whether it was 
 connected or not with Anglo-Saxon institutions, c-annot be 
 determined. But when the stormy times had passed by, and 
 the delegation of travelling commissioners from the court 
 (justiciarii) had become a standing institution under Henry 
 II., the chief organs of the State were ready and able in 
 conjunction with the Vicecomites to carry out and maintain 
 such a presentment. Traces of this institution are first found 
 in the Assize of Clarendon, A.D. 1166. The " capitula placi- 
 torum coronse" of the years 1194 and 1198 (Statutes of the 
 Eealm, i. 33 et seq.) mention as an already established 
 practice that the travelling judges were furnished with forms 
 of questions, by which they had to examine the communities 
 as to punishable offences and the infringement of the royal 
 prerogative. On the Hundred Court days of the sheriff, 
 this was naturally united with the view of frankpledge and 
 the other criminal and police business of the Vicecomes. As 
 in the Assize of Clarendon, so again do we find the " inquisi- 
 tiones coram Vicecomitibus "" specially mentioned in the statute 
 of Marlebridge (1267), c. 25 ; in the stat. Westminster i. c. 
 11, 15 ; stat. Westminster ii. (1285) c. 13, according to which 
 the under-bailiffs of the exempted districts are to adopt the 
 same procedure. About the middle of the thirteenth century 
 the legal work of Bracton gives us a picture of a perfectly 
 developed system of presentment; and still more in detail, 
 Fleta, i. c. 19, 20, ii. 52 ;. Britton, c. 2-21, 29 ; the Mirror 
 and the Statutum Wallise (1284). The travelling judges find 
 the representatives of the hundreds all assembled. By a 
 preceding proclamation, they proceed to form a presenting 
 jury in such a way that, out of every hundred, four knights 
 are appointed, who, as elective officers, appoint twelve 
 milites or liberos et legates homines. At the commence- 
 ment of the proceedings the free townships and districts 
 are bound, through the medium of their prapositl, in ac- 
 cordance with the instructions contained in certain forms 
 of inquisition, to present the offences that have occurred 
 in the interim. The twelve jurors then deliver their verdict
 
 The Development of the Norman Police Control. 155 
 
 on this indictatio, and further as to whether anything has 
 been withheld. The formulae of inquiry which included what 
 the jurors thus appointed knew of crimes that had been 
 committed, and their probable perpetrators, of infringements 
 of royal rights, of official misconduct, and extortion on the 
 part of provincial magistrates and under-magistrates, and of 
 offences against the police laws affecting weights and mea- 
 sures, bread, beer, and wine contained, with later additions, 
 as many as a hundred and thirty-eight questions. The twelve 
 jurors of the hundred are sworn in with the following for- 
 mula : " quod veritatem dicam de hoc quod a me interroyabitis 
 ex parte domini regis." The answer given by the twelve jurors 
 is regarded as an official indictment or presentment, and 
 can at once come on for trial. Until the close of the 
 Middle Ages we find travelling judges, sheriffs, and local 
 courts, all exhibiting an inquisitorial activity which, through 
 the formulated instructions, develops itself uniformly. The 
 whole male population is accordingly assembled at short in- 
 tervals, not now in order to find a sentence as lawmen, 
 but in order to give account of the way in which peace and 
 order has been preserved, to take the oath of allegiance 
 when required, or to renew the same, or, finally, to present 
 themselves for a formal police inspection. This system of 
 official indictment led further to a change in the mode of 
 evidence ; since, as against the official indictment, compur- 
 gators and duels were out of the question, and seeing that 
 the ordeal, in consequence of the deerees of the ecclesiastical 
 councils, had fallen into disuse after the year 1219. A new 
 procedure is thus introduced into the practice of the courts ; 
 according to which the defendant is asked whether he is 
 willing (in the place of the ordeal or duel) to submit to the 
 decision of his community (patria). If he submits, the definite 
 question is laid before the jury, " an culpabilis sit, vel non." 
 Originally this might be the same presenting jury which had 
 pronounced the indictatio, but the defendant was allowed 
 a right of challenging individual jurors, by which means a 
 new jury was formed. In the following period this becomes 
 the legal rule ; the defendant can always demand the em- 
 panelling of a new jury, which now, as a petty jury, 
 definitely delivers its verdict of " guilty," or " not guilty." 
 As the indictment jury proceeds from the decrees of Henry II., 
 so also from the practice of the courts under Henry III. was 
 the verdict by "jurata " developed. (3) 
 
 (3) The development of the present- pronounced by the twelve Thanes in the 
 ment duty of the hundreds and hundred, but which was not long re- 
 parishes is, as a rule, referred to JEthlr. tained in this shape, and which perhaps 
 III. 3, which treats of a presentment never was carried out at all. This cau
 
 156 
 
 Constitutional History of England. 
 
 IV. The keystone of this police -system was the transfor- 
 mation of the turnus Vicecomitis into an office for examina- 
 tion and police-court, and the origin of the courts leet, 
 co-ordinated therewith. Owing to the circuits of the judges, 
 and the increasing centralization of the criminal trials, the 
 county courts became lower courts for criminal cases, with 
 which the newly formed system of presentments could be 
 practically combined. From the thirteenth century onwards 
 the turnus Vicecomitis appears a very effectual mode of 
 bringing to the higher tribunals the official indictments of 
 the hundred for serious criminal offences. At the same time 
 the turnu# remains a criminal court for petty offences, the 
 number of which increases with each generation, in conse- 
 quence of later ordinances, especially of those touching weights 
 and measures, bread, beer, and wine. The summons of the 
 hundreds for the discharge of such unpopular business, and 
 the extortion inseparable from the office of sheriff, render the 
 tourn a periodic public grievance. The sheriffs and their 
 bailiffs, who were often changed at short intervals, often failed 
 to bring with them the local knowledge necessary for such 
 
 be explained in the same way as on 
 the Continent, in the post-Carlovingian 
 period. As a constant and firm direc- 
 tion of the procedure by royal officers 
 was wanting, the new institution de- 
 cayed ; and continued (as on the Con- 
 tinent) only in a crumbling form, as a 
 presentment in smaller communities ; 
 and of this we find traces as in Cnut. 
 II. c. 30. "And if a man of the 
 hundred is so faithless, and is so often 
 accused, and three men together accuse 
 him, there remains nothing for him but 
 to go through the threefold ordeal" (see 
 Leges Will. c. 51). The Norman 
 system of presentment that was now 
 being received arose from the new ad- 
 ministrative system, which with its 
 Norman officials standing face to face 
 with a foreign and hostile population, 
 was obliged from the first to have local 
 statistics verified by persons appointed 
 and sworn in for the purpose. It is a 
 disputable point whether the inquisitio 
 of the Vicecomites or that of the jus- 
 ticiaries was the earlier. But this new 
 institution only became permanently 
 effective after there had been found in 
 the royal justiciaries in their capacity 
 of emissaries, the instruments for con- 
 ducting such a system of presentment. 
 The connection of the " petty jury " 
 with this system, after the abolition 
 of the ordeal, is shown in the volu- 
 minous literature on the origin of trial 
 by jury; before all by H. Brunner, 
 
 Biener, and Forsyth. The necessity 
 of putting the question to the indic- 
 tatus, whether he was willing to sub- 
 ject himself to the judgment of his 
 community (pafrta), is undoubtedly 
 due to the fact that the new procedure 
 could not be called a "judicium parium 
 secundum legern terrx." According to 
 the one opinion which is repeatedly 
 expressed by Bracton, an obligation to 
 do so took the place of the former 
 obligation to submit to the ordeal. 
 Here, as there, a " tenetur," " compel- 
 litur," " cogendus est " was inferred, by 
 virtue of which the refusing party " in- 
 defensus et per hoc quasi convictus re- 
 manebit." Accordingly the full penalty 
 was imposed in contumaciam upon 
 the person refusing. But the matter 
 was still doubtful. The new procedure 
 was no judicium, as was assured 
 shortly after Magna Charta. Only 
 where the accused gave his express 
 sanction to the proceedings, did a de- 
 viation from the customary mode of 
 proof appear unobjectionable. But to 
 obtain this acquiescence coercive mea- 
 sures were considered right, a " prison 
 fort, et dure," yet without bloodshed 
 and bodily injury, in order to adhere 
 strictly to the letter of Magna Charta. 
 In the year 1275 this was approved, and 
 the new procedure generally directly 
 sanctioned by the statute Westminster 
 i. c. 12.
 
 The Development of the Norman Police Control. 157 
 
 work. Hence, among thickly populated districts, a tendency 
 became manifested to form for themselves a separate juris- 
 diction for these summonses of the whole male population 
 (which now were pre-eminently called popular courts, " courts 
 leet "), and by taking this burdensome business upon them- 
 selves, to be at least quit of the extortionate magistrate. 
 Through royal concession the bishoprics and abbeys were 
 the first to succeed in doing this. In return for considerable 
 money payments it was from the time of King John granted 
 to numerous burghs. But it was also the interest of smaller 
 hamlets and manors to form their own court districts, in 
 which a manorial magistrate was now felt less oppressive and 
 was less hated than the extortionate Vicecomes and his under - 
 bailiffs. The lord of the manor had the same interest, and 
 was quite as much inclined to exchange the old limited 
 criminal jurisdiction of the court baron, which had become 
 odious to him, owing to the continual interference of the 
 Vicecomes and the ever-recurring penalties for alleged trans- 
 gressions, for a royal concession, which granted him a police 
 jurisdiction to the extent of the sheriffs-turn. The power 
 thus granted was more extensive than the ancient manorial 
 jurisdiction ; it had definite limits, and could not be disputed. 
 In the course of time this change was made in such numerous 
 instances among the old manors that a court leet became 
 almost a regular accompaniment of every court baron. Private 
 leets were now distinguished from the public leet of the sheriff. 
 Nevertheless the private leet is merely a manorial court by 
 grant, an emanation from the royal prerogative jurisdiction, 
 a court of record, which in the King's name summons all the 
 tenants to suit of court (secta regis, suit royal); whence also 
 the non-appearance of those bound to suit of court may not 
 be arbitrarily remitted by the manorial lord. The object of 
 the grant is the right to hold police-court sittings (tourn) 
 for a smaller district, to exact fines and taxes (amerciaments, 
 fines, ersoign-pence), and generally, too, a small court-fee 
 (cerium lette, cert-money). The lord of the manor is only 
 entitled to the profits of the court ; but the court belongs, in 
 legal language, to the King ; " the day is to the King." The 
 holder of the court, the steward, represents the person of the 
 King, and must have the judicial qualification of the sheriff in 
 the tourn, and hence the lord of the manor most probably 
 cannot himself hold the court. For non-user, improper sum- 
 moning, or negligent administration, the Crown can suspend 
 the leet, sequestrate it, or definitely recall the grant; the 
 vacant jurisdiction then lapses to the sheriffs-turn. The 
 local police-court is a branch of the sheriffs-turn, and has 
 accordingly a similar jurisdiction over offences, which are
 
 158 
 
 Constitutional History of England. 
 
 punished according to the common law and the customary 
 system of regulations, or which, according to the newer fines, 
 are referred to the leet, but not over placita coronte, 
 which may only be inquired into as in the sheriffs-turn, and 
 where the public accusation may only be laid by indictment. 
 It is, therefore, to use a modern expression, an " office for 
 examination " and a police-court combined. (4) 
 
 (4) With regard to the origin of the principles, seeing that suit of court has 
 
 no connection whatever with real estate, 
 
 local police-courts, courts leet, see, for 
 a more detailed account, Gneist, " Ge- 
 schichte des Self-government," 90, 91, 
 100-103. The court baron had only a 
 limited right of execution, and no juris- 
 diction over the police fines which 
 the royal ordinances had introduced 
 (amerciaments). The lord of the manor 
 also, who wished to have an effectual 
 police-court for his manor, was obliged 
 to obtain the royal grant of a court 
 leet, which in process of time became 
 the rule. The manorial elements appear 
 also here overshadowed by the higher 
 judicial and police control residing in 
 the Sovereign. But the possession of a 
 manor is not a necessary condition. 
 Sometimes also a court leet is granted 
 for a village or a single house. Like 
 the church advowsons in England, the 
 leets became often separated from the 
 estates, and were separately inherited. 
 The procedure before the leet is in the 
 present day a mine of wealth for judg- 
 ing of the procedure in the local courts 
 of the Middle Ages (cf. the chief 
 authority, Scriven on Copyhold). The 
 ordinary court days are held twice a 
 year, in the first month after Easter 
 and Michaelmas. The committees who 
 assist at the finding of the verdict are 
 in later legal language called "juries," 
 but only in the sense of "juries of in- 
 quiry," just as in the sheriffs-turn. 
 The duty of attending court is not 
 a consequence of a manorial.right, but 
 a duty incumbent upon all subjects, 
 royal suit of court (suit real), and must 
 accordingly be paid in person (with 
 exception of the lords and clergy, as 
 provided in 52 Henry III. c. 10). From 
 the number present, the parish com- 
 mittees are next appointed. In the 
 sheriffs-turn in later times only suitors 
 of twenty shillings yearly arising from 
 freehold or twenty-six and two-thirds 
 from copyhold were to be appointed 
 to form the committee (1 Kich.III. c. 4); 
 but this provision only dates from the 
 end of the Middle Ages, and was not 
 (by analogy) applicable to the private 
 leets. The formation of the court leet 
 is completely detached from feudal 
 
 but is attached to the fact of residence, 
 and according to the strict letter extends 
 to all persons between the ages of twelve 
 and sixty, if they have been resident 
 within the jurisdiction of the court 
 for a year and a day (Scriven, ii. 823, 
 824). Under the manorial steward 
 there exists a bailiff, whose duty it is 
 to summon to the court day those 
 bound to suit of court. This under- 
 officer has also, alone and without 
 the interference of the steward, to 
 select and summon the jury (Scriven, 
 ii. 837). The steward opens the court, 
 which, as in all royal courts of law, 
 is proclaimed by the bailiffs crying out 
 three times, " Oyes, Oyes, Oyes." Then 
 follows tiie constitution of the " leet 
 jury," of twelve to twenty-three per- 
 sons, which in many leeta remains 
 a whole year in office, in others is 
 newly formed every court day. In 
 lighter criminal cases, the court leet 
 can pass sentence and inflict the 
 penalty, by fine, amerciament, and 
 1 ighter punishments provided by special 
 laws. Such cases are, as in the sheriff s- 
 turn, frays, offences against the beer- 
 house regulations, disorderly houses, 
 false weight, offences against the police 
 regulations for bakers, brewers, but- 
 chers, and other trades, neglect to mend 
 the roads, failure to do suit of court, 
 refusal to undertake parochial offices, 
 etc., the general object being the main- 
 tenance of the public peace and the 
 removal of public nuisances. After the 
 passing of the sentence (in misericordia 
 est), the adjustment of the police fine, 
 "affeerment of the amercement," is 
 made by two or three valuers, who, 
 in later times, in accordance with 
 the fundamental rules of Magna 
 Charta, must be appointed from among 
 the pares, and very frequently from 
 among the jury themselves. The 
 measure of the money-fine cannot be 
 further called in question, for the writ 
 "de moderata misericordia" is only 
 applicable to courts "not of record" 
 (Scriven, ii. 852, 853).
 
 The Development of the Norman Police Control. 159 
 
 V. Hand in hand with this newly constituted tribunal goes 
 the development of a summary procedure in criminal cases, 
 which first gave to the police regulations their full efficiency. 
 As early as the Anglo-Saxon times we hear of a penalty for an 
 offence against discipline, for disregarding the King's com- 
 mands (oferhyrnes), which is paid with 120 shillings, (Edw. II. 
 1, II. 2.) In the Leges Hen. I. a similar disciplinary punish- 
 ment as. a penalty for neglecting the royal commands, over- 
 seunessa regis, is repeated and extended to further cases. The 
 Norman feudal system brought with it a penal system as 
 a portion of its military discipline, which the military com- 
 mander carried out by inflicting feudal fines (emenda) upon 
 movables. Under the name "misericordia," "merci," this is 
 also known to the Norman jurisprudence, bnt is apparently 
 of little importance. But since, in England, the whole body 
 of landed proprietors have become the king's homines, this 
 fact enabled a criminal jurisdiction for breach of discipline to 
 be deduced to its fullest extent, which was sometimes applied 
 to the old case of the overhyrnes, and at others extended to 
 new cases. In the ordinary way this was brought about by 
 a double act : (a) by a Judgment of the Court, which declares 
 the guilty person with his movables forfeited to the King's 
 mercy : "in misericordia regis est de pecunia sua," that is, he 
 is guilty of an offence and liable to a fine; >(b) by an Act 
 of Execution, by which, according to the rank of the owner, 
 the forfeited property is taxed and charged with a fixed sum 
 of money, " admenswratur" "adforatur," and when thus deter- 
 mined this sum is called an " amerciament." This last proceed- 
 ing was a consequence of th Norman financial principle which 
 in order to render a complete valuation practicable, reduces all 
 natural payments, including also forfeited movable property, 
 as far as possible to money payments. ** 
 
 ** The connection between the Nor- 'have brought about a deposition from 
 
 man system of amerciaments and the office, a summary proceeding could 
 
 Anglo-Saxon law can be seen in the readily be employed in such cases, 
 
 following links ; (&) A further system of the "over- 
 
 (a) The Anglo-Saxon official penalty hyrnes" is extended as a disciplinary 
 
 inflicted on the royal gerefa for neglect- punishment also to subjects, who neg- 
 
 ing his definite official duties, appears lect definite court and police duties, 
 
 in Athlst. I. sec. 5. This is especially especially neglecting the suit of court 
 
 threatened, where an unjust judgment (Athlst. II. 20); neglectingthe summons 
 
 has been pronounced (Edg. III. 3) ; in to apprehend the disobedient and to 
 
 case of corruption (Athlst. V. 1. sec. 3) ; pursue peace-breakers (Athlst. II. 20, 
 
 for failing to attend the court day (Edw. sec. 2, VI. 7 ; Edg. II. 7) ; for infringing 
 
 II. 7. 8) ; for neglecting to exact penal- the police regulations by engaging a 
 
 ties (Edw. II. 2) ; for neglecting official servant, before he has received a cer- 
 
 duties connected with the preservation tificate of dismissal from his former 
 
 of the peace (Athlst. II. 26, pr. v. 1, master (Edw. II. 7 ; Athlst. II. 22, 
 
 eec. 2, VI. 8, sec. 4, etc.). Seeing that V. 1 ; Edw. III. 3 ; Cnut, 28) ; and also 
 
 any opposition to these disciplinary for non-fulfilment of a judicial sentence, 
 
 .punishments would, as a rule, certainly for purchasing outside 'the privileged
 
 160 Constitutional History of England. 
 
 The practice of the Exchequer has here again blended 
 Saxon custom and Norman feudal law together in a manner 
 that seemed most advantageous to the finances. The disci- 
 plinary punishment no longer takes the form of a fixed sum, 
 but is graduated according to ranks; for the upper classes 
 more, for the poorer classes generally less, than 120 shillings ; 
 according to the probable worth of the movable property. 
 The official fine imposed upon a gerefa who is liable to be 
 deposed, which in clear cases of neglect of duty had been 
 already inflicted in Saxon times brevi manu, had now come 
 to be extended to all vassals, and even to the liber e tenentes, 
 with respect to the performance of their court duty (secta 
 regis). An appeal to a judgment of court appeared, on the 
 other hand, a very dangerous experiment, since the royal 
 steward appoints the judging lawmen, and the fine was 
 proportionately raised where there had been a show of 
 defiance. 
 
 Thus the amerciament-system soon followed the arbitrary 
 system of the administration. The untrustworthy, disunited 
 composition of the courts of justice under the Norman prae- 
 fectural system is the real root of the encroaching police 
 control. The person accused generally forthwith declares 
 himself " in misericordia regis," and the fine is now fixed in the 
 Exchequer by the lower officials ; higher fines by the superin- 
 tending officers. In the most important and complicated 
 cases a special commissioner was sent into the country to 
 make the rating, and he rated the men of the county or 
 hundred by the poll. The blending of the emenda feudalis 
 with the Anglo-Saxon law accordingly brought about the fol- 
 lowing changes : 
 
 1. The right to the amerciaments is now established in 
 
 markets, and the like. The penalty is introduced in the practice of the Ex- 
 
 in all cases 120 shillings. The Leges chequer in the manner described in 
 
 Hen. I. adopt this customary law under the " Dialogus de Scaccario," ii. c. 16 
 
 the name of " overseunessa " (Hen. 1. 34, (Madox, ii. 439): "quisquisin regiam 
 
 sec. 3 ; 35, sec. 1 ; 36, 38, 41, sec. 1 ; majestatem deliquisse deprehenditur,uno 
 
 48, sec. 1; 51, sec. 7; 52, sec. 1 ; 53, trium modorum juxta qualitatem delicti 
 
 sec. 1 ; 60, sec. 1 ; 80, sec. 9; 81, sec. gut regi condempnatur (1) aut enim in 
 
 2 ; 3, 87, sees. 4, 5). It is expressly universe mdbili suo reus judicatur pro 
 
 mentioned that the old fine of 120 minoribus culpis, (2) aut in omnibus 
 
 shillings is according to the present immobilibns, fundis scilicet et reditibus, 
 
 value equivalent to 50 shillings. But ut eis exheeredetur, quod si (3) pro 
 
 as the Norman feudal law is every- majoribus culpis aut pro maximis qui- 
 
 where grafted upon Anglo-Saxon cus- buscunque vel enormibus delictis, in 
 
 torn, so now the feudal maxim, which vitam suam vel membra." The " Dialo- 
 
 gives the lord the right of levying fines gus " then refers to the first case : " cum 
 
 on movable property, coincides with it. igitur aliquis de mobilibusinbene placito 
 
 (c) The newer system of feudal fines regis judicatur, lata in eum ajudicibus 
 
 is put into force as a natural attribute sententia per hsec verba : Iste est in 
 
 of the royal lord. There were, as it misericordia regis de pecunia sua : idem 
 
 appears, no express decrees issued with est ac si de tola dixissent." 
 respect to it; the system was rather
 
 The Development of the Norman Police Control. 161 
 
 favour of the under-feoffees also, as against their under-vassals, 
 and is graduated according to the feudal degrees, for the Eorl, 
 and for the baron or Thane (Hen. I. c. 35, 87). Hen. I. c. 41 
 contains the express assurance : " unusquisque dominus plenam 
 overseunessam suam habeat secundum locum et modum culpse de 
 homine suo, et qui sunt ejus super terrain suam" (1) 
 
 2. The new amerciaments are no longer raised in fixed 
 sums, but graduated according to the probable amount of the 
 movable property, that is, according to rank. It appeared 
 now as a royal favour (mem) when the guilty party escaped 
 with the payment of a sum of money, less in amount than 
 his entire catalla. In the strictness of law, the whole of the 
 movable property is forfeited, " est in misericordia regis de 
 pecunia sua idem est ac si de tota dixissent." The rating 
 " adforare " in the Exchequer appears as an act of mitigation 
 by a court of equity. (2) 
 
 3. The number of cases for fine knew no limits now that, 
 going beyond the Anglo-Saxon custom, every act of disobe- 
 dience against royal decrees was brought under a fine, and 
 thus a mode of compulsory proceeding was initiated, for the 
 purpose of carrying out all possible decrees. Already the 
 Leges Hen. I. c. 13 give a varied list : " quse placita mittunt 
 homines in misericordia regis," but in which criminal penalties 
 and police fines are mingled together. (3) 
 
 4. Submission to the misericordia, or the ordinary procedure 
 
 (1) This new law is partially identi- always, as one is of the mightier men 
 cal with the older, according to which here in the world or through dignity 
 the Ealdormen, Shir-gerefas, and lords higher in rank, he shall be punished 
 of manorial courts uphold their official the more severely for his sins, and pay 
 authority by the infliction of small higher for every wrong he commits, and 
 disciplinary punishments (Hen. I. 34, therefore one shall modify and care- 
 sec. 4; 35, sec. 1 ; 41, sec. 1 ; 53, sec. 1 ; fully distinguish rich and poor, and 
 87, sec. 5), corresponding to the disci- every class, in ecclesiastical as well as 
 plinary penalties which were formerly in secular penalties." The first assur- 
 paid to the Eorl and the hundred ances of a mitigation of the arbitrary 
 (Cn. II. 15, sec. 1). This "miseri- amerciaments in the Carta Hen. I. 1, 
 cordia Vicecomitis " and of the private sec. 8, are accordingly easy to under- 
 feudal lords, however, plays a very stand: " si quis baronum vel hominum 
 unimportant part in the Exchequer meorum forisfecerit, non ddbit vadium 
 accounts, because it was not, as a rule, in misericordia totius pecunix M# sicut 
 a subject, for the rendering of accounts, faciebat tempore patris mei ; sed secun- 
 and with the decay of the county and dum modum forisfacti ita emendabit 
 private courts, it is intelligible that the sicut emendasset retro in tempore alio- 
 importance of the amerciament of the rum antecessorum meorum." 
 Courtsoflowerinstanceshouldsinkalso. (3) A list of fifteen headsof amercia- 
 
 (2) We find here also connecting- ments is given by Madox (i. 526) ; a 
 links with the Anglo-Saxon custom, shorter and incomplete one by Hardy 
 which for certain offences adopted the (Rotuli finium, p. xvii. et seq.). The 
 forfeiture of movable property. In like number may be conjectured by this fact, 
 manner, in the spirit of the ecclesias- that in later times fifty Eotuli were 
 tical administration a rating is proper- once laid at one time before a Baron of 
 tionate to the property of the offender, the Exchequer for the purpose of rating 
 as is laid down in Athlr. VI. 52, " and them (Madox, ii. 65, 66). 
 
 M
 
 162 Constitutional History of England. 
 
 of the court, are matters of free choice. The previous decision 
 " in misericordia est " still, according to the " Dialogue de Scac- 
 cario," in case of dispute, admits of the demand of a judicial 
 sentence. Since even in the Saxon period the fixing of official 
 fines as regards the King's personal officials doubtless took 
 place brevi manu, the Norman feudal system brought all 
 vassals into a similar dependence upon the King, which made 
 ,n appeal to the courts of justice somewhat impracticable. (4) 
 
 Hence the Norman king became possessed of an arbitrary 
 penal jurisdiction, such as probably no other potentate of the 
 Middle Ages ever possessed. The difference between it and 
 the old system of penalties consists in this, that the existence 
 of the offence and the suitableness of the penalty inflicted is 
 no longer determined by the finding of the community, but 
 by the personal will of the lord or his deputy. It is no longer 
 a question of the jurisdiction of the tribunals limited by 
 custom, but of an arbitrary police and disciplinary control, 
 the influence of which upon the form of the English constitu- 
 tion has not been sufficiently estimated. The application 
 of the same for the purpose of carrying out and extending 
 the Anglo-Saxon police regulations has been already indi- 
 cated. The numberless remaining instances furnished by the 
 Exchequer accounts can be summarized under the three 
 following points of view, 
 
 I. The system of amerciaments serves in many ways to 
 supplement the criminal law. The cases mentioned in the 
 Exchequer accounts are the lending of money and weapons 
 to the King's enemies, refusal to work upon royal castles 
 and bridges, the imprisonment of royal servants, insulting 
 royal officials with abusive language, the withholding of 
 goods belonging to another, etc. A special enumeration of 
 offences is out of the question, as the misericordia is very fre- 
 quently mentioned without the reason being given. A separate 
 province is occupied by the " misericordia de foresta." Whilst 
 the more serious forest-offences are threatened with penalty 
 of limb or life, the more trivial ones, such as neglecting to 
 mutilate dogs to prevent their hunting, are left to the King's 
 misericordia* The secular magnates, bishops, abbots, and 
 others have to pay amerciaments of five hundred marks, 
 a hundred pounds in silver, and similar sums, in cases where 
 men of lower degree would have forfeited limb or life. The 
 general heading " infractio pads " and " contemptus brevium 
 regis " was of such wide scope, that at last every royal order 
 
 (4) An appeal to the Anglo-Saxon lord were very few. The " Dialogus " 
 
 laws, that is, to the ordinary forms of indicates this clearly enough, i. c. 8 : 
 
 the court, became a very dangerous " Eegi,cui militatur, in pecuniam reus 
 
 experiment, seeing that guarantees for judicabitur, nisi festinaverit postulando 
 
 a just sentence against the offended misericordiam prsevenire judicium"
 
 The Development of the Norman Police Control. 163 
 
 could be enforced by amerciaments. In a still greater degree 
 was this the case with the ordinances which were later issued 
 with the advice of the estates of the realm. Offences against 
 these, as " breach of assize," in default of special penalties, 
 fell under this heading. Hence the innumerable amerciaments 
 on account of dispossession of estates (novell disseisin), which 
 we find enforced especially against abbots, and secular 
 grandees, their clerks and esquires, and which become the 
 basis of an effective system of real actions and a new theory 
 of possession. 
 
 II. The system of amerciaments serves also to maintain 
 the authority of the courts against disobedience in the widest 
 sense (default, non-appearance), even against female wards, 
 who do not present themselves, in answer to a summons to 
 marry ; neglect to prosecute a suit, quitting the court without 
 leave, unauthorized compromise (concordia de pace regis sine 
 licentia regis)) irregularities in evidence, refusal of the duel, 
 failing to appear in the lists, or admitting one person to two 
 duels in one day or, " quia posuerUnt hominem ad aquam sine 
 warranto, sine visti, servientium regis," etc. Where in later 
 times committees of the community are appointed to take 
 evidence, an amerciament is imposed where incompetent men 
 are brought "pro rusticis adductis ad faciendam juratam; quia 
 elegit rusticos ad assisam> quia recepit hominem ad juratam qui 
 nonfuit de hundredo ; " it is inflicted upon such as speak to the 
 jury ; for false witness and false judgment ; for an improper 
 execution of the sentence, "pro latrone suspense sine visu 
 servientium regis," etc., against sheriffs and provosts for 
 improper distraint and the like. Hence arose a method of 
 carrying out reforms in the procedure of the courts by means 
 of simple instructions from the Crown. 
 
 III. The system of amerciaments serves also to protect royal 
 privileges against the pretensions of private persons ; e.g. the 
 illegal raising of tolls, the unlicensed appropriation of the 
 royal prerogative (purprestura), pretensions raised respecting 
 public roads and rivers ; and generally as an effectual measure 
 against the exceeding of powers of jurisdiction. Thus W. de 
 Friston is fined for passing judgment on a robbery in his 
 court ; " milites Curias Comitissse de Couplond, quia fecerunt 
 judicium de placito, quod non pertinuit ad eos." In addition to 
 this interminable system of fines there is still the right of 
 sequestration (the capere in manum regis), which is also de- 
 duced from the fundamental principle of the feudal grants, 
 often taking effect on very trivial grounds. To what extent 
 sequestration was made use of against magnates, for defaults 
 in the Exchequer, or for not putting into execution the royal 
 decrees, etc., is shown by numerous recorded cases. Thus,
 
 164 Constitutional History of England. 
 
 the city of London was once taken into the hand of the King 
 for a "trespass of the assize," and its custodia was entrusted 
 to a commissioner. 
 
 The executive power of the Norman kings has been shown 
 in a former chapter ; this police control exhibits their legal 
 power to maintain peace and order in the country, and the 
 effectual means of authority residing in the sovereign as 
 against his officials and the greatest magnates in the land, 
 and even against the Church. Numberless entries on the 
 Exchequer rolls show how this controlling power extends over 
 persons, communities, and corporations, over spiritual and 
 temporal dignitaries, over the greatest magnate as over the 
 humblest peasant ; over the entire population of counties and 
 hundreds, legally unlimited in the number of the cases as in 
 the amount of the fines. The exemptions only refer to the 
 duty of contributing to the ordinary police-fines of the county 
 (common amerciaments), from which the royal demesnes, the 
 property of the Queen, of the higher officers of the Treasury, 
 and by special privilege also of certain magnates, were ex- 
 empted. The revenues derived from the royal amerciaments 
 are in very rare cases granted to private landowners, such as 
 the Bishop of Bath, and in such cases they are fixed by the 
 King, collected by the royal officials, and the amounts cashed 
 by the grantee at the Exchequer. (Madox, ii. 66.) 
 
 The power of the amerciaments has now become the 
 proper instrument for enforcing police regulations and royal 
 orders in every other province. Under this system it first 
 became possible to put the royal ordinances in the place of 
 the older legislative resolutions of the Witenagemote, and 
 in this manner to restore the mechanism of an absolute 
 government by ordinances with administrative execution. 
 Originally this police system of fines was probably founded 
 upon practical necessity. The insolence of the " Francigense," 
 the martial inclination to violence, the wrangling of the Nor- 
 mans among themselves and with the Saxon Thanes, rendered 
 absolutely necessary that strict military discipline for which 
 historians laud the Conqueror. But after a few generations 
 (as in the modern police-organized State), the other side of 
 the picture becomes apparent, namely, the extremely arbi- 
 trary working of the system with regard to the lower ranks 
 and the defencelessness of the subjects against any abuse of 
 it. It is evident how disagreeable to landowners and cor- 
 porations a jurisdiction under such a system must have 
 become, if they exceeded their authority, and even in its 
 mere exercise. The smallest error made in respect of the 
 forms and limits of their jurisdictions and franchises exposed 
 them to arbitrary punishment and sequestration of their
 
 The Development of the Norman Finance Control. 165 
 
 possessions, on the ground of trespasses, contempts, defaults, 
 and false claims of all kinds. It is a marvellous contrast to 
 the condition of things on the Continent, when in England 
 we continually find great estates and great cities under seques- 
 tration on account of the official offences or oversights of their 
 bailiffs, for quitting the royal court without licence, and for 
 neglect of the royal commands, and so on. It is also manifest 
 to what arbitrary action of the government both person and 
 property were here subjected, and how later it came about 
 that the first aims of Magna Charta were to secure the funda- 
 mental rights of the subject by bringing the amerciaments 
 within the pale of the law : " Comites et barones non amer- 
 cientur nisi per pares SMOS, et nonnisi secundum modum delicti ; 
 liberi homines, nonnisi per sacramentum proborum et legalium 
 hominum de vicineto" 
 
 CHAPTER XIII. 
 IV. f)e Befcelopment of tfje Norman finance Control. 
 
 FOLLOWING on our account of the revenue of the Anglo-Saxon 
 kings, the financial system in operation at this time may 
 also be distinguished tinder the following heads. 
 
 1. Revenue immediately derived from the royal demesnes, 
 newly founded after the Conquest by an extensive reservation 
 of demesnes and forests, increased by the frequent lapsing of 
 fiefs. The older payments in kind reserved from demesnes 
 and Folkland were from the time of Henry I. turned into 
 money payments, after the fashion of the financial adminis- 
 tration of modern times. There still linger on some remains 
 of usufruct in Folkland, the minor Crown rights relating to 
 treasure-trove, wreckage, and derelict goods ; as well as the 
 ancient duties payable on wool, sheepskins, and leather 
 (custumse) . 
 
 2. Profits arising from ike royal authority : 
 
 From the military power arose the right to the services of 
 the inhabitants in building bridges and castles, now effectually 
 enforced by summary amerciaments. But this old source of 
 profit was far exceeded by the new income arising from the 
 feudal law through reliefs, wardship, and marriage. 
 
 The fees and fines arising from the exercise of judicial power 
 now poured in abundantly owing to the centralization of the
 
 16G Constitutional History of England. 
 
 more important actions at the court. Equally productive 
 was the extensive right of forfeiture for felony, and the cases 
 of confiscation of movable property. 
 
 Finally, the revenue arising from the police power, flowing 
 in abundantly owing to the unbounded number of police 
 amerciaments. 
 
 8. Beginnings of direct taxation, including : 
 
 The auxilia> or aids of the Crown vassals, but only in three 
 fixed and certain cases of honour and necessity. 
 
 The scutagia, shield moneys, since the time when, under 
 Henry II., the acquittance-moneys for the feudal military 
 service begin. 
 
 The tallagia from the inhabitants of the towns and the 
 country not liable to any feudal service ; taxes which, as the 
 inseparable concomitants of the feudal system, were intro- 
 duced into England also.* 
 
 The first glance shows us at once that the new income 
 far exceeds all the old sources of royal revenue. The 
 Norman administrative system is keen in developing in a 
 fiscal direction every department of State ; the undefined 
 arbitrary administration pervades all departments with its 
 endless system of police fines and dues, amerciaments and 
 fines, in a manner which defies every method of arrange- 
 ment. By becoming centralized in a royal treasury the 
 financial system assumes a new appearance, and following 
 the Exchequer documents, Madox, the great authority on the 
 history of the financial system, draws up the following seven 
 heads, under which all such details are to be included as 
 illustrate the spirit of the political administration. 
 
 I. ^fje JJopal BemESWS antl J^OWStS. These are originally 
 formed of the manors, lands, parks, and forests (ancient 
 demesne), more than a thousand in all, which Domesday 
 Book enumerates constantly increased by lapses and con- 
 fiscations, but also diminished by new grants, and sometimes 
 by lavish waste. Only a part of the demesnes, especially 
 in the neighbourhood of the King's residences, stood, as 
 a rule, under the direct management of the King, that is, 
 of his court officials and personal servants. Those scattered 
 about in the country were included in the corpus comitatus, 
 
 * For the financial system of this great importance. Other authorities 
 
 and the following period the authorities of value are the Treasury Rolls printed 
 
 are : Madox, " The History and An- in later times by the Record Commis- 
 
 tiquitiesof the Exchequer of the Kings sion, Hunter, "Magnus Rotulus" 
 
 of England " (2 yols., London, 1769), (1833) ; Hunter, " Great Roll of the 
 
 from which I have here quoted. For Pipe," for 1155-1158, 1189-1190(1844); 
 
 the Middle Ages, Sinclair, " Hist, of Rotulus Cancellarii de 3 Joh. (1833) ; 
 
 the Revenue" (3 vols., 1803, 1804); Hardy's Rotulide Libertate regn. Job.; 
 
 and Cunningham, " Hist, of Customs Hardy's Rotuli Finium. 
 and Subsidies, etc." (1764), are not of
 
 The Development of the Norman Finance Control. 167 
 
 and therefore occur again under the farm rents in the 
 counties. (1) 
 
 II. Jptefs lapsing bg tfje frequent cases of lEsc&eat anb for- 
 feiture. When, at a later period, England and Normandy 
 became disconnected, the possessions of the Norman lords in 
 England, and of the English in Normandy, were to a great 
 extent confiscated. So long as such estates remain in 
 manu regis, they form a portion of the demesnes, with the 
 ground-rents, reliefs, wardships, and rights of marriages ap- 
 pertaining to them. The earlier sub-vassals have now become 
 vassals of the Crown not of the King as such, " ut de 
 corona," but of the King as possessor of the lordship, "ut 
 de honore." The greater estates of this sort are given over 
 to special tenants (fermors), or stewards (custodes) ; towards 
 the end of the reign of Henry II. they form a special 
 demesne department or Escheatry. Only the smaller escheats 
 are in later times made over to the sheriff, to a separate 
 account. When a bishop's see or a monastery became 
 vacant, the Treasury also insisted on the vacant fees being 
 treated analogously,, and appropriated the revenues, until it 
 was again occupied. For this reason William Bufus left the 
 Archbishopric of Canterbury and other bishops' sees unfilled 
 as long as five years. These temporalities were at first 
 managed by special custodes, and later by the Escheatry. (2) 
 
 III. f)e jfeu&al ^erptsttes: beliefs,. Mar&sfn'ps, antJ 
 JWarrfage. The relevia are at first arbitrary ; from the time 
 of Henry H. they are fixed, in the case of single knights' 
 
 (1) The royal 1 demesnes are given rogative, D; 64 ; Allen, "Prerogative," 
 by Cowell and others, as 1422 manors, 154, 155). In like manner the prin- 
 30 chases, 781 parks, 67 forests. Con- ciple of the inalienability of the mili- 
 sidering the constitution of Domesday tary fief reflects upon the Crown. As 
 Book, however, discrepancies are easily the feudal tenant must leave his an- 
 explaiuable. As to their formation out cestral estate to his firstborn, and can 
 of the possessions of King Eadward and only dispose of newly acquired pro- 
 the family of God wine, and from remains perty, the later parliaments were in- 
 of the Folkland, etc., see Ellis, Introd., clined to treat the alienation of the 
 i. 228, 229. Instead of the usual term, " ancient demesne " as an irregularity ; 
 " terra regis" we find in Exon Domes- frivolous squanderings were, on de- 
 day Book, the more exact expression, mand of the assembly, recalled by 
 "dominicatus regis ad regnum perti- "acts of resumption." As to the 
 nens." The obligation of all landed change of the payments in kind, which 
 estates to military service had also still occur, into money payments to 
 reacted upon the right of the royal the Crown, see Madox, i. 272. 
 demesnes. According to a legal view (2) The lapsing of fiefs was manipu- 
 proceeding therefrom, the real property lated for financial purposes all the 
 belongs to the King by virtue of the more, as the first Norman kings seldom 
 right of the Crown, and descends to inflicted punishments of life and limb 
 the heir to the throne as such, even upon their Crown vassals. They exer- 
 when the land has been acquired by cised with all the more severity their 
 the King in his private capacity, or right of sequestrating and confiscating 
 inherited from an ancestor, who never the Crown fees, 
 wore the crown (Comyn, Digest, Pre-
 
 168 Constitutional History of England. 
 
 fees at five pounds in silver, or 100 shillings ; for groups of 
 knights' fees, forming a lordship, after Magna Charta, 100 
 marks are paid; for the lordship of an Eorl 100. The 
 profitable wardships were often made over to the vassal of 
 the Crown who bid highest ; the dues paid in respect thereof, 
 in the case of great fees, often amounted to several hundred 
 or thousand marks in silver, in one case even to as much 
 as 10,000 marks. Still more various was the financial prac- 
 tice touching the marriage of male and female wards. Thus, 
 for instance, Geoffrey de Mandeville pays 20,000 marks for 
 his marriage with Isabella, Countess of Gloucester, and for 
 the possession of her lands (Hardy, Eot., xxx.). The varied 
 marriage dues are directed to such ends as these ; " ut rex 
 concederet ei ducere uxorem ; ut ducat uxorem ad velle suum ; 
 ne capiat virum nisi quern voluerit; " Lucia Comitissa Cestrise 
 pays 500 marks, " ne capiat virum infra quinque annos " 
 (Magn., Eot., 31 ; Hen. I.) ; Gundreda Comitissa 100 pounds 
 in silver, " ne maritetur invita;" Alicia Comitissa Warewic, 
 1000 pounds, and ten palfreys, " quod sit vidua, quamdiu sibi 
 placuerit, ita quod per regem non esforcietur ad se maritandum, 
 et pro habenda custodia puerorum suorum" (7 Joh.) ; E. de 
 Seinsperia, on the other hand, pays nine pounds in silver, 
 " quia renuit filiam Hasculphi Musard." (3) 
 
 IV. ^Tfce ifants of ti)e Ftttcomitts anfc Armors in tfje 
 Counties. These comprise local revenues of all kinds, arising 
 from demesne, dues, fees and forfeitures, and small royalties ; 
 which, in the interest of the financial administration, are 
 massed together under the head of " general farm." Where, 
 in the place of a farmer, a custos administers, he must render 
 
 (8) The reliefs of the individual cies." In frequent cases the wardship 
 knights' fees were already at the time appointments are again recalled, be- 
 of the " Dialogus de Scaccario " (ii. c. cause afterwards a person has been 
 10) fixed at 100 shillings (Madox, ii. found who offers more (Hardy, Hot., 
 426). The reliefs of greater estates are xxxi.). Still more multifarious are the 
 in the " Dialogus," ii. 24, still ex bene instances collected by Madox and 
 placito, and only in later times fixed Hardy as to marriage. I may here 
 at 100 marks for a barony (Madox, remind my readers that the relative 
 i. 318) ; the line between the two has value of money in the eleventh cen- 
 been evidently drawn by the practice tury is generally fixed at ten times 
 of the Exchequer. The practice of the that of the present day. The owner 
 profitable feudal wardship will appear of a small English knight's fee pays 
 from a few examples : Will, de St. accordingly at each change of posses- 
 Marie Church pays 500 marks for the sion, 100 shillings = 7^ marks = 100 
 wardship of R. Fitz-Harding, * to- thalers, in silver value equal to about 
 
 f ether with his whole inheritance, 1000 thalers of our money ; the pos- 
 
 nights' fees, female marriage," etc. ; sessor of a greater lordship, 100 marks, 
 
 Simon de Montfort even pays 10,000 or about 18,300 thalers of our money, 
 
 marks for the " custodia terrarum et The maximum value of a wardship 
 
 heredis " of Gilbert de Anfranville until might amount to 10,000 marks; the 
 
 the majority of the heir, " with mar- value of a feudal marriage even to the 
 
 riage, church patronage, knights' fees, double of that, 
 and other appurtenances and vacan-
 
 TJie Development of the Norman Finance Control. 169 
 
 a special account, and deliver up the surplus after deducting 
 the expenses of management. (4) 
 
 V. &j)e ^mts antr ^mern'atmnts, the latter of which have 
 been already explained under the system of police adminis- 
 tration. The fines are royal dues in the widest sense of the 
 term, and are just as characteristic of the system of this ad- 
 ministration as the amerciaments with which they are often 
 confounded. The position of the King led to a number of 
 arbitrary powers, or circumstances, under which he could 
 either grant or deny. It appears here to be an unchangeable 
 maxim that nothing which can be refused is granted without 
 a money payment ; a maxim, the reminiscence of which enters 
 even into the administrative system of the present day. The 
 people of that time appear to have felt this system more 
 as a burden than as an injustice ; for the King had the formal 
 right to act as he did ; he proceeded in the same manner in 
 Normandy, and the Norman lords vied with the Exchequer 
 wherever they could. The endless list of fines can be grouped, 
 in some measure, under three or four chief heads : 
 
 1. Fines for Liberties and Franchises. The right of the 
 landowners to hold feudal and manorial courts was often of 
 doubtful origin, and the extent of the jurisdiction also might 
 be called in question. The deficiency was then made good 
 by a fine. For instance, Lucia, Countess of Chester, paid 
 100 marks for the privilege of pronouncing judgment in her 
 Curia between her vassals (Madox, i. 397, 398). Certain 
 counties under Henry III. obtain in this manner their own 
 right of election, that is, the right of nominating their own 
 sheriffs. In like manner the men of Devonshire pay twenty - 
 three and a half pounds in silver, and the freemen of the 
 counties of Dorset and Somerset similar sums, for leave to 
 choose their own sheriffs (Madox, i. 417 et seq.). In this 
 manner the towns obtain the beginnings of self-government : 
 London pays a hundred marks for the privilege of choosing 
 its sheriffs (31 Hen. I.) ; Carlisle ten marks for electing its 
 coroners ; Cambridge three hundred marks in silver and one 
 mark in gold for leave to have its own firma and exemption 
 from the interference of the sheriff of the county; Lincoln 
 two hundred marks for firma burgi and a single immunity 
 from tallagium. Sometimes exemptions, immunity from tal- 
 lagia, disforestings, and the like, were permanently granted 
 
 (4) The rent (firma) of the sheriff marks, which prove how extensive the 
 
 ia only a collection of the middle and jurisdiction of the county court must 
 
 small revenues which were to be raised have been at that time. As to the 
 
 -within the bounds of the county, or regulations affecting the individual 
 
 the special farm district. Even the accounts in the firma Vicecomities, see 
 
 earliest Exchequer accounts of 31 Thomas, "Exchequer " (51). 
 Henry I., contain rents of 400 and 500
 
 170 Constitutional History of England. 
 
 upon a high fine being paid ; but then fresh dues were 
 paid for the renewal and confirmation of such immunities, 
 especially under a new government. 
 
 2. Fines in Actions at Law. From the time of Henry II. 
 these were unlimited. The King grants permission for suits 
 to be brought in the Eoyal Supreme Court instead of in the 
 defective county courts, and at the same time for an improved 
 procedure in taking evidence (recognitio^ jury), but only on 
 payment of fees. Hence the innumerable fines, " ut haberet 
 justitiam et rectum ; " that is, the permission to bring the 
 action at court instead of in the county.. Each single writ 
 is sold, sometimes even with special sums in the event of 
 success. Every step in an action, entering one court instead 
 of the other, notably every inquest by jury, presupposes a 
 fee. Thus, E. de Luci pays fifteen marks and a palfrey to 
 obtain an inquisition, " on, the oaths of twelve good men," 
 as to what dues and services were owed him by his tenants 
 in Coupland ; W. de Mahurdin, twenty shillings for an inquest, 
 whether he holds his land by serjeantry or as a knight's 
 fee. In one case four marks are paid, for substituting in the 
 assize six knights instead of six others alleged to have been 
 bribed. Numerous fines are further paid that the King may 
 " help the plaintiff to his right ; "" for instance* on one 
 occasion, two hundred marks, that the King may assist to re- 
 cover a debt from the Jews.. More numerous fines still arise 
 to obtain despatch in a matter. Frequently the parties offer 
 beforehand a quarter, a third, or a half of the sum they claim. 
 Sometimes this offer takes the form of a bilateral " sponsio," 
 so that either both parties offer a sum, to. obtain the same 
 object (concurrent fine), or each of the two wagers upon the 
 opposite issue of the decision (counter-fine). Just as equivocal 
 are the great fines for the King's "favour," protection, 
 mediation, " ut Rexjuvet eum versus N:. ;. M " ut Rexmanuteneret 
 eum." Under John, a stay or delay of the legal proceedings 
 was even granted in return for money : " Robertus de 
 Amouesdal debet V. marcas pro habendo brevi de protectione, ne 
 ponatur in placitum de aliquo tenemento suo nisi coram Rege 
 vel per breve Regis ; et ut sit quietus de sectis et hundredis, et de 
 omnibus placitis et querelis, excepto murdro" (Rot. 2 Joh.). 
 " Decanus et Capitulum Londoniaa II..palefridos, pro protectione 
 ne vexentur contra libertates cartarum suarum " (Eot. 2 Joh.). 
 In criminal matters, also, the rigour of the penalties and 
 amerciaments was frequently mitigated by the previous pay- 
 ment of a fine. The instances generally refer to Norman 
 magnates : " O. de Lerec debet XX. marcas argenti, ut rex 
 perdonaret ei et Osberto clerico suo malivolentiam suam " (Magn. 
 Eot., 31 Hen. I.). " R. c. de CLXX. Marcis argenti, ut rex
 
 T7te Development of the Norman Finance Control. 171 
 
 perdonet ei malivolentiam suamprofilla Geldewini de DoL" (Ib., 
 31 Hen. I.). Further payments were made "pro habenda 
 gratia et benevolentia regis," etc. Counties, hundreds, and 
 sheriffs pay sums of a hundred marks for an "indulgent 
 procedure," "for a peaceful hearing," and the like. To these 
 must be added fees for release from prison, or other favours. 
 The Dean of Ely pays one hundred marks for the release of 
 his concubine and her children ; the wife of Hugo de Neville 
 two hundred hens for leave to pass a night with her husband. 
 To this category belongs also a fine, "pro licentia comedendi" 
 Instead of suffering a sentence of capital punishment, which 
 has been pronounced, permission was sometimes given, on 
 payment of fees, to. enter a monastery, " ut liceat transferre se 
 ad habifoim religionis " (Eot. 5 Joh.). 
 
 3. Fines for concessions of favour in respect of offices, guilds, 
 and dispensations, notably for persons who on payment of 
 fees receive their father's office, or an office for their relations, 
 or the grant of the office of sheriff, or a special farming at 
 the old farm rent. Even the offices of Chancellor and 
 Treasurer are often granted on payment of great sums as 
 purchase-money. Conversely, fees are paid for release and 
 discharge from an office, or for relief from responsibility, 
 sometimes also " ut rex facial recipi compotum sine ira et 
 indignatione." Further, fees for the granting of trade and 
 industrial privileges, especially for the renewal of the gildse, 
 for licence to export corn^ and so on. After 19 Henry III., 
 and probably even earlier, orders were periodically issued to 
 the sheriffs, "quod omnes illi, qui de nobis tenent in capite 
 eudum unius militis vel plug, et milites non sunt, arma capiant et 
 se milites fieri faciant." On payment of fees " dispensations " 
 are also granted; hence the numerous fines "pro habendo 
 respectu de militia." 
 
 4. Fines for regranting of Fiefs and for Alienations. A 
 portion of the Exchequer documents on this subject are printed 
 under the title " Eotuli Finium," and contain important deal- 
 ings respecting the inheritance and alienation of Crown fiefs. 
 
 This classification is sufficient to show what a continual 
 source of wealth the fines were to the royal Treasury. Crown 
 vassals made an additional payment in such cases as " aurum 
 reginte." (5) 
 
 (5) The fines are arranged by mixed fines with ten sub-headings. 
 
 Madox, i. 395, 425, 456, under numer- As to the division into voluntary fines 
 
 ous headings, for which I have sub- or " oblations " and involuntary fines, 
 
 etituted a more simple arrangement. see Hardy, Introd., xviii. As to money 
 
 Hardy, " Kotuli Finium," makes three payments for permission to choose their 
 
 classes : (1) Fines for the concession own sheriff in the county, see Madox, i. 
 
 and confirmation of liberties and fran- 416, 417, 420 ; Hardy, Introd., p. xxix. 
 
 chises ; (2) fines for proceedings in an As to the additional payment of the 
 
 action, with five sub-divisions ; (3) aurum regime, Ellis, i. 172.
 
 172 Constitutional History of England. 
 
 VI. &foS, Callages, SbcutagtS. (6) In principle the knight's 
 estate is certainly held free from all taxation of villeins, 
 " quietum db omnibus gildis et omni opere," as solemnly con- 
 firmed by the charter of Henry I. But the feudal auxilia 
 reserved to the King extraordinary contributions on the 
 occasion of the knighting of his son, the marriage of his 
 daughter, and, in case of necessity, for his release from 
 captivity, (a) 
 
 The common taxes, tallagia, were raised from time to time 
 as need required from royal towns and farmers on the royal 
 demesnes. Although the reorganization of the military system 
 had led to the exemption of the smaller freeholders from the 
 military service and from the burdens of the militia, yet the 
 feudal system deemed it necessary to retain a fair compensa- 
 tion by levying a subsidy in the form of occasional money 
 contributions (tallagia). An inseparable concomitant of the 
 feudal system, the tallagium ("taille") made its appearance 
 in England with the Conquest ; and the strong political de- 
 velopment of the feudal system insisted that all classes should 
 be as far as possible proportionately burdened. As, in fact, 
 the old popular army, which existed side by side with the feudal 
 militia, had never been expressly abolished, and indeed from 
 the time of Henry II. had gradually been revived, the practice 
 of the Exchequer dealt with the possessions of farmers and of 
 towns in some degree according to the analogy of the feudal 
 estates proper, by confining the tallagia and auxilia to cases 
 of honour and necessity, though such cases received a more 
 comprehensive interpretation than where the feudal tenants 
 were concerned. Hence aids and tallages are frequently taken 
 together, and are denoted as "dona" or "auxilia" or by other 
 more courteous terms. The towns, in order to avert a too 
 rapid return of taxation, often payed voluntary dona, "pro 
 bono adventu regis," "pro dono novi anni" "to conciliate the 
 
 (6) The beginnings of a direct taxa- fifteenth or a similar proportion, and 
 
 tion are classified by Madox as aids, was paid as a fee for licence to trade, 
 
 tallages, and scutages ; partly for sub- The toll on wool remained until the 
 
 stantial reasons, and partly because reign of Edward I. in a very irregular 
 
 the names in early times are confused. state. (Stubbs, ii. 523.) 
 Madox adds also to this group the (a) The auxilia, aids, were, by 
 
 custumse, the customary duties on right, limited to the three enumerated 
 
 wool, sheepskins, and leather, which I cases. But as the subfeodaries were 
 
 have already mentioned above as fond of extending these cases, and as, 
 
 ancient sources of revenue. The goods in its analogous application to the royal 
 
 liable to duty were wine, general boroughs and demesne villages, the 
 
 merchandise, and wool. The old duty notion was still further extended, there 
 
 on wine was called " prisage," that is, resulted a general tendency to extend 
 
 the tenth cask from every ship at the the aids to other cases of need, which, 
 
 price of twenty shillings. The second after the times of Magna Charta be- 
 
 customary duty (general merchandise) came the beginning of the grant of 
 
 was, as a rule, in the form of one- subsidies by the estates of the realm.
 
 The Development of the Norman Finance Control. 173 
 
 King," and so on, which all flow together with the system of 
 the fines. (6) 
 
 The shield-moneys, " scutagia," afterwards became still 
 more important. The constitution of the feudal militia, 
 brought over from Normandy, appeared, in the long run, 
 not quite suited to the insular position of England. So soon 
 as the internal affairs were settled, it was no longer a question 
 of short campaigns at home, but of a number of permanent 
 garrisons, and long campaigns against Wales, Scotland, 
 Ireland, and France. For both needs the feudal militia with 
 its short-service system was insufficient. Hence the Norman 
 kings at all times kept a paid soldiery, and allowed some 
 of those liable to military service to buy themselves off for 
 certain campaigns. According to a trustworthy authority, 
 in the second year of Henry II. the prelates were for the 
 first time allowed to pay twenty shillings per fee instead of 
 furnishing a soldier for the campaign against Wales. The 
 first general imposition took place in 5 Henry II., for the 
 campaign against Toulouse, with two marks per fee from all 
 Crown vassals, under the name of " donum." In 18 Henry II., 
 for the army in Ireland, partly actual service and partly 
 money payments, under the name of " scutagia," were accepted. 
 In like manner in 33 Henry II., for a campaign against 
 Wales, twenty shillings per fee were raised " a militibus qui 
 non abierunt cum rege." From this time the imposition of 
 scutage instead of personal service became more and more 
 regulated, payable by all tenentes in capite alike " de corona" 
 and " de honore." The paying Crown vassals are then allowed 
 to raise from their sub-vassals the same sum per fee " ut 
 haberent scutagia sua." Occasionally the King raises them 
 
 (6) The tallagia (Madox, i. 693, sees. certainty of the cases and of the fre- 
 
 732-751) are a specific creation of the quent recurrence of the taxation. In 
 
 feudal system. The greater landed England two special reasons concurred 
 
 proprietors, who as a standing army which gave the classes liable to the 
 
 had taken upon themselves the defence "taille" a peculiar claim to more 
 
 of the realm, demanded that those land- equitable treatment. The first was 
 
 owners who were not bound to knights' the retention and later revival of the 
 
 service should pay their proportionate militia by the assize of Henry II. ; 
 
 share in money. The insolence of the "taillables" were here never an 
 
 the armed and war-skilled classes in unarmed class, but, on the contrary, in 
 
 France designated all the rest as every generation did good service 
 
 " taillables" and from the landlords' alike against the rebellious barons 
 
 point of view as " corvedbles." In Eng- and against the Scetch invaders. The 
 
 land also the " taille " was enforced so other reason lay in the "firma burgi ; " 
 
 much as a matter of course, that even in order to raise the fee farm rents of 
 
 the great and powerful city of London, the towns in tunes of necessity, certain 
 
 in 7 Hen. III., paid 1000 marks ; 26 towns were promised that their contri- 
 
 Hen. III., 1000 marks ; 37 Hen. III., butions should not be increased, which 
 
 1000 marks, in addition to twenty now furnished a reason for continual 
 
 marks in gold; 16 John, 2000 marks, claims, and also for disputes as to the 
 
 tallagia. The hardship lay in the un- amount of the taxation.
 
 174 
 
 Constitutional History of England. 
 
 immediately by royal order from the sub-vassals in manum 
 suam. The raising of the new fee-duty from that time con- 
 stitutes a new official duty of the sheriff, who, on being ap- 
 pealed to, lends the Crown vassals assistance in exacting the 
 scutagia from their under- vassals, (c) 
 
 VII. The final heading, &CCftttntal Income, embraces 
 treasure-trove, goods cast away by the thief (waifs), wrecks, 
 the movable property of felons, of persons executed, of fugi- 
 tives, and of outlaws, deodands, anid other smaller royalties, 
 which, where they have not been granted to private persons, 
 are for the most part raised and exacted by the sheriff. 
 Dating from the Anglo-Saxon period, the common obligation 
 of the inhabitants to make roads, bridges, and fortresses 
 (trinoda necessitous} still continues, as also the foraging of the 
 royal servants on journeys (purveyance) which in later times 
 became a standing public grievance. Finally, the so-called 
 " Danegeld," which in spite of its abolition under Eadward 
 the Confessor, was still raised from certain estates. (7) 
 
 Considering this accumulation of sources of income, it can 
 
 (c) As to scutagia, Madox affords 
 us the complete history of its gradual 
 origin. The " Dialogus de Scaccaria " 
 recognizes the scutagia as a finan- 
 cial practice ; " Fit interdum, ut immi- 
 nente vel insurgente in regnum hostium 
 machinatione, decernat rex de singulis 
 feodis militum summam aliquam solvi, 
 marcam scilicet, vel libram unam ; unde 
 militibus stipendia vel donativa succe- 
 dant. Mavult^enim princeps stipendi- 
 aries quam domesticos bellicis exponere 
 casibus. Hsec itaque summa, quia no- 
 mine scutorum solvitur, scutagium no- 
 minator." As to the early combina- 
 tion of the expressions, "auxitia," 
 " scutagia," " tallagia" " hydagia," 
 and "done," see Madox, i. 580, 680. 
 
 (7) As an item of the Accidental 
 Income (Madox, i. 342) the Danegeld 
 is also mentioned in the legal books 
 (Edw. Conf. 11 ; Hen. 10, sec. 1, 15 
 Cart. civ. Lund. sec. 2; Madox, i. 
 686-694. Thomas, " Exchequer," 
 p. 41; Sinclair, " Kevenue," i. 69, 70, 
 72). This payment was expressly 
 abolished under Eadward the Con- 
 fessor, and is mentioned in Domes- 
 day Book in one passage only (Stam- 
 ford, 336 b). Nevertheless, it occurs 
 very frequently in the later revenue 
 accounts, especially under Henry I. as 
 an impost upon certain estates. This 
 difficulty, which is remarked both by 
 Freeman and Stubbs, can be explained 
 by the following consideration. The 
 Danegeld as a lawful tax, was abolished, 
 
 and remained so, but the old valuation 
 of the productive returns of ordinary 
 lands for the raising of the former 
 tribute was often retained on the occa- 
 sion of the later exaction of "tallagia," 
 " dona," " auxilia" to avoid making a 
 fresh valuation each time. The old 
 established rate on the productive re- 
 turns was therefore called Danegeld. 
 Now it is perfectly correct that the 
 general ground-taxes (carucagia, hyda- 
 gia, etc.), re-introduced in later times, 
 correspond to the scale of the old 
 Danegeld taxation. But it is very 
 comprehensible that in the laws and 
 ordinances the hated name " Dane- 
 geld," with its humiliating memories, 
 was studiously avoided. Every revival 
 of " Danegeldum " would have had the 
 preposterous result, that the numerous 
 exemptions from the tax would have 
 revived also, whilst in the course of 
 business in the Exchequer no one 
 scrupled to denote the old taxation of 
 the produce of an estate subject to 
 the common burdens by the term 
 " Dane-money." 
 
 Though the most recent English his- 
 torians describe the gradual formation 
 of a new system of land taxation in 
 this epoch as a disguised revival of 
 the Dane-money, this in nowise de- 
 scribes the position of affairs ; but the 
 course of events will probably be more 
 correctly represented in the following 
 account.
 
 The Development of the Norman Finance Control. 175 
 
 well be understood, how the myth arose that the Conqueror 
 raised a daily income of aS1060 80s. 3d. from contributions 
 (Ordericus, Vit. iv. p. 523), one of the numerous exaggerations 
 of later historians, which perhaps is based upon an arbi- 
 trary counting up of the highest amounts of revenue in 
 certain years, whilst under later reigns the most favourable 
 financial balance scarcely reached a sixth of that income. 
 
 Among the manifold sources of revenue to the Crown, 
 undeniably the most important for the future of the Ex- 
 chequer and the Constitution was the scutagium, which 
 arose under Henry II. from the conversion of the feudal ser- 
 vices into money ; because, according to the position of affairs, 
 in time a uniform land-tax was naturally developed from it, 
 and from that a uniform income-tax, which can be followed 
 up from its first beginnings in this place to the close of the 
 period. 
 
 After the privileged landed proprietors, from the greatest 
 Crown vassals downwards, had been subjected to heavy money 
 contributions, which were equivalent to the actual burdens 
 of feudal service, that impediment had been overcome in 
 England which on the Continent caused the failure of land 
 and income tax. As soon as the governing class has been 
 made to contribute in proportion to its means, the develop- 
 ment of a just and rational system of taxation meets with no 
 more obstacles. At first a uniform hide-tax could be levied ; 
 for the unprivileged landowners could certainly not with- 
 draw themselves from a uniform taxation of the hides, when 
 the privileged classes were taxed in full, in proportion to the 
 amount of their possessions. The farmers of the demesne 
 and the cities had been already included, paying taxes just as 
 the knights' fee estates did under the names of " tallagia," 
 "dona," " auxiliai" being, in fact, taxed quite as often as, 
 and even oftener than, the knights' fees ; and this although 
 their landed property had been certainly valued quite as 
 highly. But all other tenants of the ' great feudal estates 
 found themselves in the same position; for the lord had at 
 last no other way of raising his auxilia, scutagia, and relevia 
 except by taxes, protection-moneys, rents, and work done by 
 his dependants. Already under William the Conqueror, 
 during the great and heavy distress of war (A.D. 1084), the 
 expedient had been adopted of levying a uniform hide-tax 
 throughout the whole country. This was done at a time 
 when no Domesday Book had been compiled, and the division 
 of the feudal burdens was beset with insurmountable diffi- 
 culties. In view of the threatened Danish invasion at that 
 time, a war-tax, of an amount till then unheard of, being 
 seventy-two pence for every hide, was levied, by which the
 
 176 Constitutional History of England. 
 
 whole of the landed proprietors in the country were induced 
 to take the universal oath of allegiance, and to accept its 
 consequences (A.D. 1086). A similar situation arose a century 
 later, when the levying of a " Saladin tithe " for a Crusade 
 (A.D. 1188), and the ransom of Eichard I. from captivity 
 (A.D. 1193), required the immediate raising of unheard-of 
 sums. The feudal burdens meanwhile were fixed and dis- 
 tributed by the Exchequer, and the vassallage, true to the 
 tendency of all tax-paying landowners, clung as long as pos- 
 sible to the scale of contributions according to the register. 
 Hence on these occasions land-taxes were levied cumulatively 
 upon all landed property ; but the auxilia of the knights' fees 
 were still rated according to the scale of the scutages, the 
 other estates according to hides, and therefore the last-named 
 tax was designated as " carucagium." As early as the year 
 1198, under Richard I., a general taxation of the landed 
 estates was resumed, in which a uniform impost of five 
 shillings was raised upon each carucagium or hundred 
 acres of land (Stubbs, i. 510) ; not an immoderate rate, but 
 one which nevertheless met with opposition among the great 
 proprietors, and especially among the clergy, and could not be 
 raised without difficulty. It was natural that the feudal pos- 
 sessors should not willingly acquiesce in such a sudden change 
 in the scale of levying; i.e. according to acreage instead of 
 the feudal register; wherefore it came to pass that after- 
 wards the scutagia were, for a time, raised separately from 
 the carucagium on such estates as did not owe knights' 
 service. 
 
 As in this way a simultaneous taxation of the whole of 
 the landed property arose, there was naturally connected 
 with it a simultaneous taxation of movable property. The 
 tallagia of the demesne farmers, towns, and tenants, were 
 estimated not only according to the income of landed property, 
 but according to the total capability of performance on the part 
 of the subjects, and accordingly the personal property was 
 similarly estimated, which in cities, owing to their industry 
 and trade, was of considerable importance. The very first en- 
 deavour made to include this source of income proportionately, 
 led to a taxation according to percentage or fractions of the total 
 income, which, from the time of Richard I. onwards, gradually 
 appear in addition to the land-taxes as tenths, elevenths, 
 thirteenths, seventeenths, and other fractions. The Saladin 
 tithe of the year 1188 is again the first precedent for a uni- 
 form taxation of personal property, which was levied cumu- 
 latively with the land-tax. For Richard's ransom, there was 
 levied at one and the same time a scutagium from the knights 
 fees, a carucagium from real estate, and a proportion of their
 
 The Development of the Norman Finance Control. 177 
 
 income from the cities and from the rest of the population. 
 In this an improvement was distinctly visible on the valuation 
 system of the tallagia, against which only the clergy raised 
 objections on its being afterwards repeated. 
 
 The modes of taxation that had thus come into practice 
 were immediately abused by King John in his own fashion. 
 Even in the first year of his reign, John increased the 
 carucagiwrn from two to three shillings, the scutagium from 
 1 to two marks, and levied the latter from year to year. 
 In the year 1203 he levied one-seventh on the personalty of 
 the Crown vassals, in 1204 an auxilium from the knights, 
 and in 1207 one-thirteenth on the personal property of the 
 whole country. Against these innovations there naturally 
 arose an opposition on the part of the Crown vassals, and, 
 indirectly, of the whole nation. It was the crown vassals 
 who, in the first place, were thereby injured in their rights of 
 possession. The levying of scutage had been established 
 without opposition, so long as it was only levied in moderate 
 sums, as a favour accorded to those feudal vassals who did 
 not serve in the campaign. But now a payment of this kind 
 was to be extorted regardless of the question whether the 
 feudal vassal wished to serve in person or not, whether a 
 campaign was intended or not, or whether a case of honour 
 or necessity had arisen, which obliged the feudal vassal to pay 
 a pecuniary aid. Herein lay a fundamental alteration of the 
 original conditions under which the military fees were granted 
 and held ; the feudal estates were thus reduced to the level of 
 the common landed estates which were bound to a carucagium. 
 But the greatest wrong done to the Crown vassals was un- 
 doubtedly the rough-and-ready exaction of a seventh on their 
 personal property, which placed the tenentes in capite upon the 
 same footing as the talliables. Such demands had certainly 
 not been made upon them since the days of William Eufus 
 and his treasurer, Flambard ; and against such a course of 
 action the charter of Henry I. had given the solemn promise 
 that the military fees should remain free from all demands 
 beyond their military duty (Charters, p. 101). The time had 
 arrived when an agreement with the Crown vassals, and their 
 consent to the imposition of anxilia and scutagia could no 
 longer be dispensed with ; and thus the taxation question had 
 reached the stage of Magna Charta (cap. 18).
 
 178 Constitutional History of England. 
 
 CHAPTER XIV. 
 Norman Sxrijequer. 
 
 As the financial system is the centre of gravity of the sovereign 
 rights of the Norman State, so it is also the foundation and 
 basis of the permanent offices and official institutions of the 
 State. The hereditary monarchy has found a stronghold in 
 its new demesnes and in its feudal suzerainty, upon which 
 rests the defensive strength of the regenerated State. But 
 this political system is also pervaded by a financial spirit, 
 which goes far beyond the mere necessities of existence, and 
 does not shrink from subordinating even the administration of 
 justice to the interests of revenue. As long as the spirit of the 
 Norman sovereignty is paramount in the history of England, 
 finance is the centre of all government ; where provinces, dis- 
 tricts, and towns were all subjects of general or special fee-farm 
 tenure, the most important administrative council could only 
 have the character of a financial department, similar to a 
 "war and demesne chamber," or a "general directorium" 
 in the later constitutions of the Continent. This is the 
 meaning of the Norman Exchequer (Echiquier) ; and having 
 regard to its paramount importance I shall proceed at once 
 to discuss the origin and external form, the procedure, and 
 the personnel of the Exchequer in connection with the financial 
 control. 
 
 I. The Origin of the Exchequer. It is not in itself impro- 
 bable that the Conqueror organized his financial department 
 according to the custom in Normandy, where an "Echiquier " 
 had a prominent position in the twelfth century as the highest 
 government department and court of law. The English 
 Exchequer is, indeed, only a part of the Curia Regis, and is 
 accordingly styled in official language Curia ad Scaccariam. 
 But in contradistinction to the other functions of the central 
 government, which are merely temporary and periodical, the 
 Exchequer forms the one firmly organized governmental 
 department, " Curiarum omnium apud Anglo- Normannos anti- 
 quissima" (Hickes, Diss. Epist., p 48), in which the current 
 administration appears united. The name " scaccarium " is 
 referred in the Dialogus, i. 1, to the diapered cloth which, for
 
 The Norman Exchequer. 179 
 
 the purpose of calculating accounts, was spread out like a 
 chess board over the table, round which the sittings were held. 
 " Scaccarium tabula est quadrangula, quse longitudinis quasi 
 decent pedum, latitudinis quinque, ad modum mensse cir- 
 cumsedentibus apposita, undique habet limbum altitudinis quasi 
 quatuor digitorum, ne quid appositum excidat. Superponitur 
 autem Scaccario superiori pannus in Termino Paschss emptus, 
 non quilibet, sed niger, virgis distinctus, distantibus a se virgis 
 vel pedis vel palmee extents spatio." Year after year we 
 find a number of great functionaries and royal officials, with 
 numerous clerks, assembled round this account table, employed 
 in receiving payments from the sheriffs, the special farmers, 
 and custodes, in scrutinizing their accounts, and giving 
 receipts ; imposing and receiving periodical aids, tallages, and 
 scutages ; appointing the sheriffs and other fermors and 
 custodes, and calling them to account ; deciding legal disputes 
 within their administrative jurisdiction ; directing payments 
 to be made for the needs of the royal family, their trains and 
 servants, for war supplies and garrisons, for paying the King's 
 creditors from loans, and for administrative expenses of all 
 kinds all this being done under the personal superintendence 
 of the King, or according to his actual or supposed personal 
 pleasure. Consonant with these functions, two divisions were 
 early formed : (1) the account department, or scaccarium 
 majus; (2) the receipt department, or scaccarium de recepta, 
 recepta scaccarii, scaccarium inferius. The one division after- 
 wards had its office on the right, the other on the left side of 
 Westminster Hall. The rooms where the sittings were held 
 were often distinguished ; the state session-room with the 
 throne was scaccarium, in the narrow sense of the term ; and 
 the smaller council-room, thalamus baronum. These words, 
 which are always ambiguous, denote alike the place of the 
 official administration, and the functionaries themselves ; 
 the chamber, in which the specie is actually deposited, is 
 specially called thesaurus regis. (1) 
 
 (1) As to the origin and external form Nigelli, a court chaplain of Henry II., 
 of the Exchequer, the chief authority -afterwards Bishop of London, and 
 is the "Dialogus de Scaccario," a grandnephew of Roger of Salisbury, 
 treatise upon the law of the Ex- the great minister of Henry I. Its date 
 chequer, which Madox (part ii.) has may be fixed with tolerable certainty 
 printed, and furnished with copious for 1178. In later times the institu- 
 notes. It gives evidence of the early ! tions of the Exchequer have again been 
 matured development of the adminis- the subject of an exhaustive mono- 
 trative machinery, and is a marvellous graph, printed for private circulation 
 testimony to the official views respect- by P. S. Thomas, " History of the 
 ing the State, such as is hardly to be Exchequer " (1846) ; and another pub- 
 found elsewhere in the Middle Ages. lication of Thomas (also unpublished), 
 Gervasius Tilburgensis was formerly " Notes of Materials for the History of 
 regarded as the author; Madox (ii. Public Departments" (1846). Certain 
 334-345) assigns it to Ricardus, Filius Treasury Records have been printed by
 
 180 Constitutional History of England. 
 
 II. The course of business in the Exchequer embraces in its 
 early arrangement 
 
 1. Payments into the Treasury. These are made in the 
 counting-house (office of tellers) in gold or silver coin. The 
 pound (livre) of the Norman period is an actual pound of silver 
 of twenty-four half-ounces, and is divided into twenty shillings, 
 and the shilling into twelve pence. The silver penny (denarius} 
 is the regularly minted current coin. The mark in silver is 
 accordingly thirteen shillings and fourpence; the shilling 
 about the value of a Prussian Thaler. The gold mark is 
 equivalent to nine silver marks. These values are fairly per- 
 manent. It was not until Henry VI. that the coin had lost 
 about a third of its silver contents. But the irregularity of 
 the coinage, as well as the depreciation caused by wear, and 
 by forgeries, led to special precautionary measures. In the 
 case of payments ad scalam, sixpence in the pound was 
 demanded "to make good weight; " in payments, ad pensum, 
 more than sixpence. Where the, purity was doubtful, a 
 smelting test was applied ; but this also was remitted on pay- 
 ment of one shilling per pound (nominal combustion). The 
 payment is entered in an account book, and from this trans- 
 ferred to a strip of parchment, called the "bill," or "tellers' 
 bill." This strip of parchment falls through a pipe-like open- 
 ing into the "tally court," where a "tally" is made of it. 
 This tally is a piece of dry wood, on which the " cutter of 
 
 the Record Commission. The oldest Bishop Stubbs, that the Echiquier of 
 
 existing Eotulus, called 5 Stephen the island of Sicily was imported into 
 
 (edit. Hunter, 1833), may be placed, England by an English Exchequer 
 
 on convincing evidence, as early as the clerk, Thomas Brown (see the " Trans- 
 
 81st year of Henry I. As io the institu- actions of the Acadetnia Reale," of 
 
 tion of the Norman Echiquier, see Rome (28th April, 1878) ; all the exist- 
 
 Madox, i. 162-165 ; Warnkonig, Fran- ing legal records, and Treasury rolls 
 
 zosiche Reichs- uud Rechts-Geschichte, of Normandy are of BO much later 
 
 i. 346 ; Schaffner, Franzesische Staats- origin, that it cannot be proved from 
 
 und Rechts-Geschichte, ii. 408, 409. the later constitution of the Norman 
 
 Its introduction from Normandy is Echiquier that the English was formed 
 
 proved by the " Dialogus de Scaccario," after its model. (See also Libermann, 
 
 " db ipsa regni conquisitione per regem " Einleitung in den Dialogus de Scac- 
 
 Wilhelmmn facia csepisse dicitur, cario," Gottingen, 1865.) The con- 
 
 sumpta tamen ipsius ratione a Scac- troversy is after all merely nominal ; 
 
 cario transmarine" (Dial. i. 4), as for the close connection of the judicial 
 
 well as by the Latin terminology of and finance administration was in the 
 
 the Exchequer. In any case that Middle Ages everywhere a matter of 
 
 evidence proves the existence of the Ex- course, and, even if the name of Echi- 
 
 chequer under William the Conqueror, quier arose earlier in Normandy, yet 
 
 though an actual importation from the English institutions were so closely 
 
 Normandy cannot be substantiated. My connected with the county government, 
 
 former view (after Floquet, Histoire and the machinery was so finely 
 
 du Parlement de Normandie, p. 8), developed by the officials under Henry 
 
 that a Norman Exchequer-roll was I. and Henry II., that the material 
 
 existing as early as the year 1066, is part of the institution certainly belongs 
 
 certainly based upon an error (Stubbs, i. to the Anglo-Norman state. 
 377), but so is also the opinion of
 
 The Norman Exchequer. 181 
 
 the tallies" has to cut notches corresponding to the sum 
 paid ; whilst the " writer of the tally " writes the sum down on 
 both sides of the wood in figures. According to the length of 
 the incision, one notch denotes 1000 ; another 100 ; 20 ; 
 20s. ; Is. ; and so on. The chamberlain splits the notched 
 stick down the middle in such a manner that each half con- 
 tains the written sums and the incised notches. The two 
 matching parts thus split asunder are called "tally" and 
 " counter-tally," or " tally " and " foil " (folium). The one is 
 retained by the chamberlain ; the other is kept by the 
 payer as a receipt and proof to be produced to the account 
 department of the Exchequer. (It was not until 1783, by 23 
 Geo. III. c. 82, that these notched sticks were done away 
 with in the Exchequer, and checks substituted for them.) 
 
 2. Payments out of the Exchequer are made on< a royal 
 order (writ, or mandate), under the great or privy seal, 
 generally addressed to the treasurer and chamberlains. The 
 usual formula for this purpose is called a " liberate.'" Orders 
 for payments which recur periodically, such as salaries, are 
 called "liberate current," or "dormant,'" and are couched in 
 such terms as the following : "Rex Thesaurario. . . . salutem; 
 Liberate de thesauro nostro singulis annis quinque Capellanis 
 nostris ministrantibus in Gapellis S. Johannis et S. Stephani 
 Westmonastrii, duodecim libras et decent denarios pro stipendiis 
 suis " (29 Hen. III.). In the course of time, for the purpose of 
 control, other mandates are inserted. Thus the royal writ 
 is deposited on the account side of the Exchequer, and on 
 the strength of it a "treasury warrant" is issued by the 
 treasurer or some member of the Exchequer staff. Acting 
 upon this warrant, the auditor sends an order to one of the 
 tellers, which is then countersigned by one of the Exchequer 
 officials, and in this form is finally honoured. 
 
 3. The book-keeping of the Exchequer, divided into the 
 "rotulus annalis," the "memoranda," and other daybooks, was 
 early arranged in a technical form. The chief book is the 
 rotulus annalis, "the great roll of the Exchequer," the most 
 stately and important record, into which (according to Madox, 
 ii. 112) the accounts of the royal revenues flowed through 
 different channels, as rivers pour themselves into the ocean. 
 These magni rotuli pipas (so called on account of their being 
 rolled up in the shape of a tube), arranged according to 
 counties, have been preserved in their entirety since the first 
 year of the reign of Henry II. (with the exception of two 
 years). Partially printed by the Kecord Commission, they 
 form the most comprehensive source for studying the adminis- 
 trative law of the Norman period. 
 
 4. The rendering of accounts in the Exchequer. The most
 
 182 Constitutional History of England. 
 
 important accounting parties were the sheriffs of the counties. 
 A great part of the demesne, feudal, and judicial dues passed 
 through their hands, besides numerous disbursements for 
 munition of war, equipments, and salaries. Their duty was 
 not merely to receive and pay over moneys, but also to 
 deal with complicated accounts and receipts. And thus 
 months generally passed away from the provisional payment 
 (profer) until the definite sum was fixed (summa). Many 
 amounts, such as confiscated catalla, and incomes from seques- 
 trated property, which appeared in the account in round 
 sums, had to be scrutinized in detail. Disbursements are 
 only passed on presentation of a " warrant of discount," and 
 must be regularly justified by the King's writ ; and in the 
 case of regularly recurring disbursements, there must at 
 least be a rescript of the Exchequer. For the repayment of 
 loans contracted by the King, orders for payment are issued 
 upon the sheriff's yearly rent by writ& of "allocate et compu- 
 tate." The accounting party must appear in person, and is 
 previously sworn " de fideli compoto reddendo;" although 
 sometimes an account is accepted " per fidem " or "per verum 
 dictum." Occasionally, by royal writ, and later by Treasury 
 rescript also, the presentation of accounts by a clerk, as 
 attorney, is allowed. The final acquittance was often so 
 liable to hitches, that the accounting parties pay sums of 
 several hundred marks to be quit of the responsibility for 
 themselves and their servientes. Similarly the accounts 
 are presented by the fee-farmers and bailiffs of the towns, the 
 escheators, the "customers," or special receivers of tolls, 
 and all those who have been entrusted by the King with a 
 special administration (bailwyck). Later, the travelling judges 
 have also to render accounts. (2) 
 
 5. The Exchequer court days. For the settlement of dis- 
 
 (2) As to the proceedings in the ment is to be made; upon this the 
 
 Exchequer, and especially as to the parliamentary allowance or disallow- 
 
 order in which the functionaries sat at ance of the disbursements was based, 
 the council table, see Thomas, Ex- As to the book-keeping, see Madox, 
 
 chequer, p. 1 et seq. The payments into ii. 456 et seq. ; Hunter, Introduction, 
 
 the Exchequer are dealt with by pt. i. As to the so-called Rotulus, 5 
 
 Thomas, Materials, p. 5. For com- Stephen, see Madox, ii. 462. As to 
 
 parisons of the coinage arrangements the more correct date, 31 Hen. I., 
 
 of the Anglo-Saxon period, see Schmid, Eeeve's History, i. 218, and the Intro- 
 
 Glossarium s.v. Geldrechnung. duction to the Rotulus Pipse, de anno 
 
 As to the disbursements out of the 31 Hen. I. 
 
 Exchequer, see Madox, i. 348-350, 362- The presentation of accounts is de- 
 389. The chief authority is the Dia- scribed in detail by Thomas, Ex- 
 logus, i. c. 6 (Madox, ii. 373). In chequer, p. 49-58. Examples of the 
 later times the numerous controls were presentation of accounts by special 
 further increased ; in the time of the fermors and financial officials are given 
 Stuarts " a letter of discretion " was in great numbers by Madox (for ex- 
 drawn, in which the treasurer denoted ample, the control of the coinage, 
 the special fund from which the pay- Madox, ii. 132).
 
 The Norman Exchequer. 183 
 
 puted and legal points which arise at the presentation of 
 accounts, the higher functionaries of the Exchequer assemble 
 periodically and hold sittings, which are called " scaccaria," 
 and are described in the Dialogus de Scaccario, ii. c. 1, as 
 follows : 
 
 " Prsecedente namque brevi summonitionis, quod Regise aucto- 
 ritatis signatur imagine, convocantur ad locum nominatum qui 
 necessarii sunt. Accedunt autem quidam ut sedeant et judicent, 
 quidam ut solvant et judicentur. Sedent et judicant ex officio 
 vel ex principis mandate Barones, quorum supra meminimus. 
 Solvunt autem et judicantur Vicecomites et alii plures in regno, 
 quorum quidam voluntariis oblationibus quidam necessariis solu- 
 tionibus obnoxii sunt rei." 
 
 The individual accounting parties are summoned thither 
 with the warning, " Sicut te ipsum et omnia tua diligis," and 
 a notice of the separate amounts due, " annotatis omnibus 
 debitis seriatim cum causis," and with the concluding clause, 
 " Et hsBc omnia tecum habeas in denariis taleis et brevibus et 
 quietantiis, vel capientur de firma tua" Those who failed 
 to appear were summoned realiter by the sheriff or the 
 "huissier" (usher of the Exchequer), fined in an amercia- 
 ment for every day they neglected to come, and in case of 
 need arrested, and their whole property sequestrated by a 
 writ " de nomine districtionis." On defalcations being detected, 
 immediate arrest took place. Landed proprietors and corpora- 
 tions also, claiming a franchise, were obliged to appear every 
 year in the Exchequer, when the sheriff presented accounts, 
 and to give account themselves as to the returns, out of which 
 they then were allowed so much as was due according to the 
 terms of their privileges. Failure to appear or refusal of 
 account incurred sequestration. When the King had, as an 
 exceptional case, himself received an account in person, or in 
 camera sua, this was notified by writ to the Treasury. (2 a ) 
 
 The administrative principles of a demesne department 
 
 (2 a ) The Exchequer court-days in estate, if he has died intestate, without 
 iheir characteristic form, according the leave of the Exchequer. In case 
 to the Dialogus de Scaccario (Thomas, the solvency of the estate is doubtful, 
 and Madox, ii.), have also a certain the King undertakes its sequestration, 
 influence upon the later forms of pro- calls in outstanding claims by way of 
 cedure in the central courts. The administration, and satisfies himself 
 privilegia fisci, which proceeded from first, with reservation, however, of the 
 the practice of the Exchequer, had burial expenses. Debtors to the Ex- 
 permanent results. Where any one chequer are also, on demand, allowed 
 was at once a debtor of a King and a "writ of aid" against their debtors, 
 of a private individual, the " debitum that by getting in their debts promptly 
 regis " must be paid before all else. A they may be enabled to satisfy the 
 debtor of the King cannot dispose by official claims. Herewith are connected 
 will of his personalty to the prejudice at a later period a number of the 
 of the King ; and his heirs cannot ob- provisions of Magna Charta. 
 tain the administration of his personal
 
 1 84 Constitutional History of England. 
 
 with such full powers, naturally produced for the Exchequer 
 important legal prerogatives, and were the source of the 
 present privilegia fisci in England. The decisions of the 
 Exchequer appear as the oldest form of an administrative 
 justice. According to its constitution, the Exchequer is 
 certainly no chief court of law, but is only intended "ad 
 discernenda jura et dubia determinenda, quse frequenter ex 
 incidentibus qufestionibus oriuntur" (Dial., i. 4). But the 
 Norman financial system is inseparably blended with all the 
 branches of public and private law. The fixing of fines 
 and amerciaments, the decision of appeals against the imposi- 
 tion of tallagia and other imposts, involved a jurisdiction 
 extending in all directions over the prerogatives of sovereignty. 
 All privileges of the lords of manorial courts and towns, all 
 liberties and franchises, in the sense in which they are used 
 to-day, i.e. all royal grants, the legal validity or extent of 
 which are called in question, are here decided. In every 
 dispute as to a Crown fee, just as in every grant and in- 
 heritance of a fee, the Exchequer is an interested party. The 
 debita regis have first to be satisfied, in every administra- 
 tion of the estate of a deceased person. From the litigation 
 in ordinary private law also (" communia placita," in contrast 
 to those in which the King has an immediate interest) the 
 fiscus derived an interest, from the fact that the Exchequer 
 assisted a debtor to thefiscus against third parties, to put him 
 in a position to fulfil his obligations towards the King. Hence 
 it can be explained how the Exchequer in meting out ad- 
 ministrative justice drew also common civil actions before 
 its tribunal. According to the Leges Eduardi, civil suits were, 
 indeed, to be decided by a judicium parium ; but this pro- 
 vision was formally satisfied by the Exchequer choosing its 
 higher officials from among the Crown vassals, " barones 
 scaccarii," in whom even the greatest feudatory was com- 
 pelled to recognize a properly constituted court. 
 
 III. The staff of the Exchequer is divided into the higher 
 officials and the clerks. As all departments of the central 
 government meet together in finance, so all the great officials 
 of the State had a seat here, in person or by representatives. 
 The personal presidency was reserved for the King himself ; 
 and in this capacity he acted for centuries. Where a Chief 
 Justice, " capitalis justicia," had been appointed by the King, 
 the latter is represented by him. Under Henry II. this chief 
 judge had become a permanent official ; the Dialogus de 
 Scaccario accordingly mentions him as the president, and the 
 higher judges as "barones scaccarii," as important officials, but 
 whose appointments were revocable : " Illic enim residet Capi- 
 talis Domini Regis Justicia, primus post Regem in regno ratione
 
 The Norman Exchequer. 185 
 
 fori, et majores quique de regno, qui familiarius Regiis secretis 
 assistunt ; ut quod fuerit sub tantorum preesentia constitutum 
 vel terminatum, inviolabili jure subsistat. Verum quidam ex 
 qfficio, quidam ex sola jussione principis resident. Ex officio 
 principaliter residet imo et prsesidet primus in regno, Capitalis 
 scilicet Justicia. Huic autem assident ex sola jussione Principis, 
 momentanea scilicet et mobili auctoritate, quidam, qui majores 
 et discretiores videntur in regno, sive de clero sint sive de Curia. 
 Assident inquam ad discernenda jura et dubia determinanda, quse 
 frequenter ex incidentibus qu&stionibus oriuntur " (Dial., i. 4). 
 
 In order to understand the position of the Barons of the 
 Exchequer we must remember that they form a supreme 
 court set over the great farming Vicecomites, amongst whom 
 are often to be found the first men of the realm, bishops, 
 grand feudatories, etc. ; and that their judgment decided 
 questions of law even against prelates and Crown vassals. 
 It was natural, therefore, that the controlling officials in the 
 supreme court should be men of similar position, i.e. persons 
 with the necessary rank in the feudal or ecclesiastical hier- 
 archy. The Barones were accordingly those among the 
 magnates of the realm who were the most skilled in business, 
 and who stood nearest to the King. The highest court digni- 
 taries have a place of honour among them ; as have also the 
 Chancellor and the Treasurer, who gradually became the 
 principal personages among the Barons of the Exchequer. 
 All these higher functionaries bear the name of " Sedendi ad 
 Scaccariam;" the latter name, " Residentes ad Scaccarium," 
 includes also the under-officials. 
 
 The under-officials are difficult to classify, for in the 
 earliest records a large number of persons are comprised 
 under the denotation " Clericus Scaccarii; " Madox has, how- 
 ever, with great labour ascertained the individual classes, and 
 arranged them into two groups. The most important under- 
 officials in the account department are : the Eemembrancer 
 as keeper of the register and despatcher of business, the 
 Ingrossator Magni Rotuli, the Constable and Marshal as repre- 
 sentatives of the State functionaries of the same name in the 
 Exchequer, the Usher (Huissier), and in later times the 
 Auditores Compotum as revisers of accounts. The chief 
 under-officials of the receipt department are : the Clericus 
 Brevium, the Chamberlains as keepers of the chest, the Clerici 
 Thesaurii, the Tellers as cashiers, and the officials appointed 
 for weighing the coins and applying the smelting test. (3) 
 
 (3) For the official staff of the Ex- department belong (1) the Remem- 
 
 chequer, see Madox, i. 197; for the brancer, Rememorator, registrar, keeper 
 
 under-officials, Madox, ii. 263 et seq. of the register, despatcher of business. 
 
 To the under-officials of the account (2) The Ingrosser, Ingrossator Magni
 
 186 
 
 Constitutional History of England. 
 
 The spirit of centralization collected together in the Ex- 
 chequer the whole of the State finances. The other exchequer 
 offices which are found existing are of secondary importance, 
 and in the majority of cases were temporary institutions. For 
 the personal disbursements of the King there is a household 
 treasury with special clerici and a Thesaurarius camera;. 
 Sometimes secondary and local exchequers were formed for 
 temporary purposes, as, for instance, a " Scaccarium redemp- 
 tionis " and a " Scaccarium " at Worcester. A more important 
 secondary department is the " scaccarium Judasorum," under 
 the " custodes " or "justiciarii Judasorum" having jurisdiction 
 over all affairs relating to the Jews, and comprising numerous 
 clerks and under-officials. The special constitution of this 
 procedure and the attributive justice of this administrative 
 body is so characteristic, that the condition of the govern- 
 ment under King John cannot be described more appro- 
 priately than by saying that the whole central government 
 had adopted the character of the Exchequer of Jews. (4) 
 
 Eotuli Pipse ; sometimes two function- 
 aries of this sort, frequently persons 
 of aristocratic families. (3) The Usber, 
 or doorkeeper, entrusted with the safety 
 of the buildings, the money-chest, and 
 the registry; and at the same time 
 doing duty as a Huissier, who receives 
 the customary fees for summoning the 
 sheriffs to the Exchequer sittings. 
 From the time of Henry II. it was an 
 hereditary office, even divisible and 
 descending to women. The one en- 
 feoffed of the " Serjeanty " appointed 
 the acting Huissiers for this office 
 a curious custom which continued into 
 the 19th century. (4) The Constable, 
 an under-official f appointed by the 
 Constable of England, so long as that 
 office existed (Dial., i. c. 5). (5) The 
 Marshal, an under-official provided by 
 the Marshal of England, having cer- 
 tain functions to perform connected 
 with the presentation of accounts 
 (forulus marescalciae), and with the 
 right to take arrested persons into his 
 keeping (Dial., i. c. 5). (6) Auditores 
 Compotum (Madox, ii. 290, 291), re- 
 visors of accounts, mentioned first in 
 9 Edw. II.; originally this business 
 was conducted by clerks appointed 
 pro hoc vice, or by the barons them- 
 selves (Thomas, Exch., 122, 123). 
 (7) Clerks of estreats, who were also 
 of later origin, for the exaction of the 
 amerciaments, fines, etc. 
 
 The second group of under-officials 
 belongs to the receipt department, 
 "Becepto Scoccari," the " Scaccarium 
 
 inferius." (1) The Clericus brevium, 
 clerk of the writs ; (2) The Chamber- 
 lains, a higher class of under-function- 
 aries, curators of the chest, are ap- 
 pointed by the Grand Chamberlain and 
 the Court Chamberlain of the King 
 as their representatives, and ought 
 properly to be knights; the current 
 business is conducted by special 
 Glerici Camerariorum ; (3) Clerici 
 Thesaurarii, treasurer's clerks among 
 them is prominent the Clerk of 
 the Pells, bookkeeper of the Magnus 
 Eotulus de Kecepta, mentioned in 
 Henry III. ; (4) The Tellers, the real 
 cashiers or pay-officials, usually four or 
 more ; (5) The Pesours and Fusours, 
 under-offioials employed in weighing 
 the coins, and applying the smelting 
 test, originally hereditary offices, 
 Serjeanties united with landed estates, 
 hereditary and divisible. Besides 
 these, goldsmiths for the testing the 
 metal, essayers, and other assistant- 
 officials were engaged at salaries as 
 they were wanted. 
 
 (4) The Exchequer of Jews is de- 
 scribed by Madox, i. 221 et seq. Its 
 existence is explained by the original 
 absence of legal rights in the Jews, 
 whose position may be compared with 
 that of the German " Kammer-Knecht 
 des Kaisers," and who were not merely 
 subjected to unsparing tallagia, but 
 were bled in every way at pleasure, 
 sometimes under the name of " protec- 
 tion right," and sometimes of a " right 
 of occupation." This view of ihefiscut
 
 The Norman Exchequer. 
 
 187 
 
 is unequivocally declared in the Leges 
 Edwardi Confessoris, sec. 25 : " Ipsi 
 Judxi et omnia sua regie sunt. Quod 
 si aliquis detinuerit illos vel pecuniam 
 eorum, rex requirat tanquam suum pro- 
 prium, si vult et potest." Since they 
 have no persona standi in judicio, 
 no landed property, and no right of 
 inheritance, and their legal capacity 
 depends upon the royal favour alone, 
 arbitrary conditions and payments are 
 attached to their legal intercourse. 
 First, their right to bring actions in 
 their contracts with Christians was 
 only recognized when the terms of the 
 bond were to be found in the chest of 
 the Jewish secretary (chirographer). 
 The inheritance of their property is 
 only allowed on payment of heavy 
 fines. For example, Henry III. de- 
 mands six thousand marks of a widow 
 for the personal estate of her deceased 
 husband. The causes and pretexts for 
 the imposition of amerciaments are of 
 course innumerable. One of the most 
 common was for marrying without the 
 royal consent. At times all Jews were 
 thrown into prison, and then released 
 on payment of heavy fines, on one 
 occasion of sixty-six thousand marks ; 
 on another occasion the Jews were 
 pledged to the Earl of Cornwall for-a 
 loan of five thousand marks. Hence 
 the numerous " ransoms," " composi- 
 tions," "fines for protection," and 
 "licences" in the Jewish administra- 
 tion. In return for great sums, they 
 were allowed important privileges. 
 For instance, in the Charta 2 Joh. : 
 "ut si Christianus habuerit querelam 
 adversus Judseum, sitjudicata per pares 
 Judxi. Et Judaei non introbunt in 
 placitum nisi coram Nobis," etc. In 
 the fifth year of John's reign a formal 
 jury was formed of "legates Christiani 
 
 et Judaei." For this department, under 
 Richard or earlier, a separate and 
 secondary exchequer of " custodes " or 
 "justiciarii judxorum" was told off, 
 consisting at first of Christians and 
 Jews together, at last composed for 
 the most part of Christians, appointed 
 under the great seal. They have juris- 
 diction in all matters touching Jews, 
 such as the scrutiny of the accounts 
 presented, the decision of actions aris- 
 ing out of Jewish contracts, and dis- 
 putes touching their landed property, 
 their personalty, taxation, fines, and 
 forfeitures. Under thejusticiarii stand 
 the chirografarii and coffrarii (who 
 preserve in chests the charters and 
 bonds between Christians and Jews), 
 as local officials, appointed in places 
 where a considerable number of Jews 
 dwell. From the practice of this 
 secondary exchequer a special Jewish 
 finance law becomes formed, "Law, 
 Assize, or Custom of Judaism ; " 
 under Richard I. the judges on circuit 
 have instructions given them as to 
 this custom (capitula de Judaeis). In 
 the short period from 50 Hen. HI. to 
 2 Edw. I. (1265-1273) the Crown 
 was credited with 420,000 " de ex- 
 itibus Judaismi" (Coke, Inst. ii. 89). 
 The whole institution comes at last to 
 a sudden end through the expulsion 
 of all Jews from England (19 Edw. I.); 
 in consequence of which act they re- 
 mained for 364 years entirely banished 
 from the country. The number of the 
 expelled Jews was 15,060 (D' Blessier 
 Tovey, Anglica Judaica, Oxford, 1738 ; 
 J. M. Jost, Gesch. der Israeliten, Ber- 
 lin, 1820-28, vol. vii. pp. 102-171). As 
 to the other secondary exchequers, and 
 provisional payments in other places, 
 see Madox, i. 262-271.
 
 188 Constitutional History of England. 
 
 CHAPTER XV. 
 V. fte <EU'S anti Becap of tfje potman Cfwrcf) 
 
 THIS fifth and last division of the sovereign power took a 
 different course in the Norman period. In the same degree in 
 which the temporal government became consolidated under 
 an absolute monarchy, the Church advanced in the direction 
 of a Eomanizing centralization, which confronted the power 
 of the Crown by the equally strong power of the Pope. In 
 the middle of the period this made a breach in the system of 
 absolutism. 
 
 William the Conqueror had not under-estimated the influence 
 of the Church. He had found her an influential power under 
 Eadward the Confessor, and in possession of about a third of 
 the revenues of the soil. With her support the new throne 
 was won, the sanction of the Pope was the sole indisputable 
 title to it, and the lower clergy were the class upon which 
 the obedience or the opposition of the masses in a great 
 measure depended. The feudal and ecclesiastical States were 
 obliged to form an alliance with one another to attain their 
 culminating point. The Conqueror recognized this relation 
 in a number of concessions. 
 
 England adopted the Eoman Liturgy, and submitted to the 
 ritualistic precepts of the Papal Chair. The assurance of 
 liberal and punctually collected Peter's pence was very welcome 
 to the Curia. The celibacy enjoined upon the clergy still met 
 with a passive resistance, which was only gradually overcome 
 after the time of Henry I. 
 
 The liberal endowment of the Church in its archbishoprics, 
 bishoprics, chapters, monasteries, and other foundations, is 
 not only maintained, but extended by many new gifts and 
 ecclesiastical foundations. The monasteries especially increase 
 under Henry I., Stephen, and Henry II., in such a manner 
 that their number is computed in the " Notitia Monastica " 
 at three hundred. At the close of the period the Church is 
 said to have been in possession of about the half of the soil 
 of the country, but this probably means only the half of the 
 ground rent of the greater estates. 
 
 The ecclesiastical jurisdiction over clerical persons and
 
 Norman Church Supremacy. 189 
 
 matters is recognized in all its ancient extent, and also is 
 from this time forth separated externally from the temporal 
 courts. The Anglo-Saxon union of bishop and ealdorman 
 for the purpose of holding common court days for clerics and 
 laymen was in the highest degree antagonistic to the spirit of 
 the Roman ecclesiastical government. The Earl had now 
 retired from the position of president of the county court : the 
 co-operation of bishop and Shir-gerefa was all the less likely 
 to be acceptable to both parties. The internal contrast 
 between the spirit of the popular court and that of the eccle- 
 siastical district court had made itself more and more felt, 
 and the desired separation of Church and State was in this 
 point conceded. This step, so characteristic of the legislative 
 power of the time, is taken towards the end of the Conqueror's 
 reign by means of a writ addressed to the Vicecomites (Char- 
 ters, p. 85), but with the assurance that it is taken " communi 
 concilia et concilio Archiepiscoporum et Episcoporum et Abbatum, 
 et omnium principum regni." Sec. 2 : " Propterm mando et 
 regia auctoritate prsecipio, ut nullus episcopus vel archidiaconus 
 de legibus episcopalibus amplius in hundret placita teneant, nee 
 causam quse ad regimen animarum pertinet, ad judicium secu- 
 larium hominum adducant, sed quicunque secundum episcopates 
 leges de quacunque causa vel culpa interpellatus fuerit, ad locum 
 quern ad hoc episcopus elegerit vel nominaverit veniat, ibique de 
 causa vel culpa sua respondeat, et non secundum hundret, sed 
 secundum canones et episcopales leges rectum Deo et episcopo suo 
 faciat. (Judicium vero in nullo loco portetur, nisi in episcopali 
 sede, aut in illo loco quern ad hoc episcopus constituent.)" The 
 summoning of the parties before the now independent eccle- 
 siastical courts took place under threat of excommunication ; 
 " et si opus fuerit ad hoc vindicandum, fortitudo et justitia regis 
 vel vicecomitis adhibeatur." Futhermore, the Vicecomites and 
 royal bailiffs are forbidden to interfere with the course of 
 business in these courts. Upon this separation the " Curi& 
 Christianitatis " take with them the consideration of such 
 secular matters as had, chiefly for external reasons, been left 
 to the spiritual authorities, when both were formerly united. 
 
 The " Leges episcopales " here form a contrast to the " Leges 
 Eduardi," embracing as they do all that was formerly decided 
 according to the rights and customs of the clergy. In the 
 now independent ecclesiastical courts, the applicability of the 
 jus canonicum, of the Decretals, and of the resolutions of 
 the Concilia, is, with very few exceptions, regarded as a matter 
 of course. Thus there arose a jurisdiction over matrimonial 
 matters, wills, and indirectly over questions of legitimacy and 
 the inheritance of personalty, over verbal contracts, tithes, 
 church dues, and church sees, which was independent of the
 
 190 Constitutional History of England. 
 
 temporal power; a penal jurisdiction for the maintenance 
 of orthodox doctrine and Church discipline, and for the 
 punishment of bigamy, incest, fornication, and other offences 
 against morals ; and a more and more sharply defined 
 magisterial authority over the whole of the clergy. To this 
 was added an appeal from the ecclesiastical decision to Eome, 
 and to the practice of the papal legates, and thus was formed 
 an almost sovereign power within the political state.* 
 
 The Conqueror plainly recognized the possibility of this 
 consequence, and endeavoured to avert it by the following 
 checks drawn from both the old constitution and the new. 
 
 I. The ancient rights of the Anglo-Saxon State over the 
 Church were retained, especially the royal ratification of the 
 resolutions of the Councils. In the year 1108 we still find the 
 canones of the Ecclesiastical Council in London adopted " in 
 the presence of the King, with the consent of his men." In 
 the year 1127 Henry gives his consent to all the resolutions 
 passed in an ecclesiastical ' Council, and ratifies the same 
 by his royal power and authority (Stubbs, i. 374). By 
 virtue of the King's right of making decrees, the clergy are 
 forbidden to leave the kingdom without royal licence, to 
 recognize a Pope without royal direction, to publish circular 
 letters from Eome before they have been seen and approved 
 by the King, or to pronounce sentence of excommunication 
 upon a royal vassal without the King's permission. In like 
 manner the right of appointing bishops or abbots was pre- 
 served according to old custom. These appointments are now 
 made on high court days, after hearing the spiritual and 
 temporal magnates. Very frequently a royal chaplain, in 
 any case a man in whom the King had personal confidence, 
 was appointed bishop. To these old conditions the Conqueror 
 added a new and comprehensive arrangement. 
 
 II. The great landed possessions of the clergy are con- 
 sidered, according to the system of the feudal suzerainty 
 over the whole land, as granted to be held under the same 
 laws of tenure as the baronies and knights' fees; that is, 
 with the full burden of the feudal services, suit of court, 
 
 * The separation of the ecclesiastical separation of the spiritual jurisdiction 
 jurisdiction into separate courts took is quite clear. The word " hundret " 
 place at a time of extreme tension, in designates the secular place of justice, 
 which the imperial proclamation of the in which also the county courts were 
 Norman military feudal law still met held. The independence of the Curia 
 with resistance. Hence it is easy to Christianitatis, however, did not ex- 
 understand that the Conqueror resolved elude the obligation of the clergy to do 
 upon a concession, which satisfied the suit of court (secta regis) in their 
 most cogent demands of his superior capacity as Crown vassals. What the 
 clergy, and shortly afterwards rendered Leges Hen. I., sec. 2, contain on this 
 possible the act of homage at Salisbury. point was the established law of feudal 
 The contents of the decree as to the custom.
 
 Norman Church Supremacy. 191 
 
 and feudal dues. This theory was applied to the estates of 
 about one hundred and fifty bishoprics, chapters, abbeys, and 
 greater parishes ; but not to the glebe-lands, tithes, offerings, 
 and fees of the ordinary parishes. Thus was solved an old 
 problem of the Anglo-Saxon military organization. The 
 bringing of the rich ecclesiastical estates, with their thousands 
 of interests, into the feudal register of the realm was a step of 
 great significance, and it was the more popular because the 
 great bishoprics and monasteries were thus compelled to 
 adopt subinfeudation, by which means many old landed 
 interests of Saxon Thanes were preserved, and many new 
 ones created. The interest of the temporal lords urgently 
 demanded this equalization. The Church had not hitherto 
 been able to claim more than an equality with the highly 
 privileged landowners. The administration endeavoured here 
 to enforce the new order of things with certain indulgence. 
 A number of monasterial estates retained their customary 
 immunity as "tenures of frankalmoign." A portion of the 
 feudal services remained in arrears, and was excused. For 
 a long time in the Exchequer accounts the scutages of the 
 prelates were divided into two classes into those " quse 
 recognoscunt," and " quss non recognoscunt " the last named 
 remaining in abeyance. In ordinary practice no personal 
 military service was required of the spiritual lords ; in their 
 case a remission of feudal service for money payment was 
 first allowed. An indulgent spirit towards the clergy is 
 also visible in the matter of aids, amerciaments, and se- 
 questrations.** 
 
 III. In the same way, all the other sovereign rights are also 
 enforced against the clergy. The military summons is 
 issued to all ecclesiastical vassals in the usual form ; generally, 
 therefore, through the Vicecomes, and with like effect. The 
 Exchequer accounts show that even bishops and abbots were 
 fined on this ground, and had their estates sequestrated. 
 
 ** According to the later investiga- under William Rufus the notorious 
 
 tions of Freeman and Stubbs, this Flambard applied all the consequences 
 
 application of the Norman feudal sys- of the feudal law to the ecclesiastical 
 
 tern to the landed estates of the Church estates also. The practice of the Ex- 
 
 certainly did not take place instantly : chequer, the Constitutions of Claren- 
 
 for the theory of the forfeiture of their don, and the fully developed theory 
 
 landed property, by " rebels," and of of the English feudal law, as it is laid 
 
 the "redemption" of possessions on down in the legal work of Glanvill, 
 
 the part of the rest of the landowners, show the application of the feudal 
 
 was inapplicable to the landed estates system as a completed fact (Stubbs, i. 
 
 of ecclesiastical corporations. But since 298, 299, iii. 357, and other passages), 
 
 the great act of homage at Salisbury, Connected therewith is the energetic 
 
 the universal obligation to fealty, to retention of the investiture of the 
 
 feudal services, and to feudal pay- greater estates of the clergy, which lay 
 
 ments was derived from the legal act as much in the interest of the Crown 
 
 of investiture and the feudal oath ; as in that of the temporal vassals, 
 numerous indications bear witness that
 
 192 Constitutional History of England. 
 
 Under Henry III. there occur even summonses to the clergy 
 to do personal service in the army. 
 
 To the judicial power both higher and lower clergy are so 
 far subjected, that they have to do suit of court (secta regis) 
 both in the county court and in those court commissions 
 which were immediately formed by the King. It was only 
 a more indulgent practice which, permitting them to be 
 represented in the county assembly, limited the compul- 
 sion to find the verdict in person to the curia regis; and 
 here also no participation in passing a death sentence was 
 demanded from the prelates. In their character of vassals 
 of the Crown, they remain passively subject to the royal 
 court; "I do not condemn a cleric and a servant of the 
 Lord, but my Earl whom I have placed over my realm," 
 said William I., when he personally arrested his brother, 
 Bishop Odo. 
 
 The clergy with their tenants are subject to the police 
 control, as a consequence of the temporal judicial supremacy ; 
 the Exchequer accounts show us that all the new police laws 
 and the practice of amerciarnents were enforced, even against 
 the highest clergy. 
 
 In like manner the Norman exchequer accounts show that 
 the financial supremacy of the King is also exercised against 
 the clergy. Money claims of the King upon a clericus were 
 first exacted from the fief by distraint ; failing this, an order 
 was issued to the bishop to seize the beneficium of the 
 cleric, "otherwise the King will come upon the bishop's 
 barony." All feudal incidental payments, " relevia," " auxilia," 
 " scutagla" are extended to the Church. For the revenues 
 derived from wardship and marriage, which are here absent, 
 the King compensates himself by withholding the temporalities 
 of the bishop's see, which under William Eufus sometimes 
 remained vacant for five years. As a matter of course, the 
 old common burden of the trinoda necessitas, which since 
 Henry II. receives a new importance owing to the revival of 
 the militia system, is also incumbent upon the clergy. 
 
 According to the Conqueror's calculation, the maintenance 
 of the royal authority thus appeared secured, even after the 
 concession of a separate ecclesiastical jurisdiction ; and the 
 first three kings of the Norman period remained upon this 
 basis virtually masters of the Church. The dispute about 
 investiture under Henry I. ended in a compromise, by which 
 the King renounced the enfeoffment with ring and sword, but 
 reserved to himself the full feudal suzerainty. 
 
 The usurpation of the throne by Stephen, however, caused 
 a severe shock to the royal authority. The exclusiveness of 
 the episcopal jurisdiction was declared in an oath extorted
 
 Norman Church Supremacy. 193 
 
 from the King ; the interference of the papal legates and the 
 appeals to Eome increased to such a degree, that Stephen's 
 successor found before him the difficult task of establishing 
 afresh the old order of things. 
 
 A century after the Conquest, under Henry II., the Church 
 and State had arrived at a turning-point in their mutual re- 
 lations, and the position of the Church had now become much 
 more favourable and popular than it had been at the com- 
 mencement of the Norman period. What the Church had 
 lost, by its subjection to the feudal State, had been retrieved 
 upon the ground of moral influence ; for to its other callings 
 a new one had now been added. In the dissensions of 
 nationalities it had become the natural mediator, the nearest 
 protectress of the oppressed Saxon element, the sole power 
 whom the Norman kings at their court days were at times 
 obliged to meet on the footing of negotiation. Even though 
 the high prelates had become Norman, yet the great mass of 
 the clergy still belonged to the Saxon population. Saxon 
 " clerks " were the chief staff of the Norman administration, 
 necessary interpreters to the French-speaking lords, and not 
 uninfluential intercessors for the mass of the oppressed 
 classes. The corporate spirit of the clergy had advanced far 
 enough to uphold, amidst the discord of nationalities, the 
 unity of the Church, which on that very account could not be 
 subject to the haughty class of nobility. And under these 
 circumstances it was very significant that Henry II. himself 
 appointed a man like Thomas Becket to the archbishop's see ; 
 one who by birth belonged neither to the Norman nationality 
 nor to the privileged class.*** 
 
 *** For a time the ecclesiastical calling, the feeling of solidarity against 
 influence was diminished owing to the arrogance and violence of the mili- 
 the fact that the ranks of the clergy tary vassals, and the powerful corporate 
 had become internally disunited. Since spirit of the clergy (increased by the 
 the year 1070 the Conqueror had filled gradually enforced celibacy) appear in 
 with Norman clerics the two Arch- the Anglo-Norman Church with un- 
 bishoprics of Canterbury and York, and mistakable plainness. But on the 
 then by degrees the bishoprics and the other side is visible in the first century 
 most important abbeys also. The of this period the strong personal 
 curious state of things arose that the influence of the King over his prelates, 
 higher clergy were not able to speak to who have been for the most part court 
 their flocks so as to be understood. chaplains and royal secretaries. " The 
 The dislike of the Saxon population to cohesion of the Church was for ages 
 a foreign tongue and foreign customs the substitute for the cohesion which 
 was now extended to the dignitaries of the divided nation was unable other- 
 the Church. Among the numerous wise to realize It was to an ex- 
 successful upstart* of the times were to traordinary degree a national church, 
 be found many adventurers belonging national in its comprehensiveness as 
 to the clerical profession. The majority well as in its exclusiveness. . . . The 
 of the important ecclesiastical dignities use of the native tongue in prayers and 
 were, however, so far as can be sermons is continuous ; the observance 
 ascertained, filled by worthy persons. of native festivals also, and the rever- 
 Daily labour in the ecclesiastical ence paid to native saints. The eccle- 
 
 O
 
 19-4 Constitutional History of England. 
 
 Under such altered circumstances Henry II. saw himself 
 involved in a critical struggle with the ecclesiastical power, in 
 which he was in the end unable to recover full political power 
 over the Church. With her separate administration (juris- 
 dictio) she everywhere opposed the temporal jurisdiction. The 
 maxim of separation of Church and State had led to this, 
 that the lower clergy for three generations found their law 
 and discipline entirely in the canon law, their ideal in com- 
 plete severance from the laity; and that a very influential 
 party among the clergy, especially in the monkish orders, 
 stood resolutely on the side of Eome. The Church was free 
 from the fiscal odium of the secular administration ; she had 
 the popularity which surrounds all forces that resist an 
 absolute government. Henry II. did not dare, under these 
 circumstances, to carry out the re-establishment of the royal 
 prerogatives without summoning to his aid the most powerful 
 and influential persons among the laity. He summons 
 accordingly (1164) in the formal manner of a " cour de 
 baronie " the greater Crown vassals and prelates, collectively 
 and separately, to attend the extraordinary assizes of Claren- 
 don and Northampton. At the opening of the first-named 
 assembly, in January, 1164, sixteen articles were presented 
 and carried, which concern the ancient powers of the eccle- 
 siastical supremacy. The chief article (No. XI.) is as 
 follows : 
 
 " Archiepiscopi, episcopi, et universe persons regni, qui de 
 rege tenent in capite habeant possessiones suas de rege, sicut 
 baroniam; et inde respondeant justiciariis et ministris regis et 
 sequantur et faciant omnes consuetudines regias, et sicut ceeteri 
 barones debent interesse judiciis curite domini regis, cum baroni- 
 bus, usque preveniatur in judicio ad diminutionem membrorum 
 vel mortem." 
 
 By this (1) the subjection to the feudal jurisdiction and to 
 all feudal burdens was declared anew ; and with it also the 
 temporal penal jurisdiction over the persons of the clergy was 
 recognized in principle. Where clerical offenders are ex- 
 amined in an ecclesiastical court a secular judicial official is to 
 be present, and the convicted offender is not to be further 
 protected by the Church. Feudal vassals of the King shall be 
 outlawed only after previous trial, and with approval of the 
 royal court. 
 
 (2) The highest appellate jurisdiction of the King upon 
 English soil was retained, and the parties are forbidden 
 " ulterius procedere " (that is, to appeal to the Papal Chair) 
 
 eiastical and the national spirit thus sive power which the Norman despotism 
 growing into one another supplied was unable to break " (Stubbs, Const, 
 something at least of that strong pas- Hist., i. 245).
 
 Norman Church Supremacy. 195 
 
 without special leave (Art. VIII.) : " De appellationibus, si 
 emerserint, ab archidiacono debent procedere ad episcopum, et ab 
 episcopo ad archiepiscopum. Et si archiepiscopus defecerit in 
 justicia exhibenda, ad dominumregemperveniendumestpostremo, 
 ut precepto ipsius in curia archiepiscopi controversial terminetur, 
 ita quod non debet ulterius procedere dbsque assensu domini 
 regis." 
 
 3. The royal rights of appointing to vacant bishoprics and 
 abbeys were especially and formally recognized. The 
 revenues of the vacant sees fall to the royal Treasury, until 
 the time for the new election has arrived. The formal 
 election takes place in the King's chapel, and with his consent, 
 and there, before being consecrated, the "electus" must take the 
 oath of allegiance to the King as his feudal lord in respect of 
 his temporal fees, with reservation of his ecclesiastical rank. 
 
 These and other principles were compiled from precedents, 
 and were, as " ancient customary law," so indisputable, that 
 the bishops, as well as the secular vassals of the Crown, 
 recognized them without hesitation. Thomas Becket knew 
 these principles, and had applied them for several years when 
 he was chancellor; and accordingly, after some resistance, 
 found himself compelled to make an unwilling concession, 
 and to promise to keep these articles " legitime " and " bona 
 fide." When, however, by means of the clause " salvo jure 
 ecclesise" and under the authority of the Pope, he continued 
 his resistance, the King formed a decisive precedent by ob- 
 taining from a well- attended court of spiritual and temporal 
 vassals of the Crown, on the 17th of October, 1164, the con- 
 demnation of the primate in misericordia regis, which was 
 then in the customary manner reduced by the King to an 
 amerciament of 500. But the hard-earned victory was lost 
 again owing to the passionate and intriguing conduct of the 
 King, the violent issue of the dispute, and the martyrdom of 
 Becket. At the final conclusion of peace, great points were 
 yielded to the Church, especially the appeals to the Pope. 
 By later articles the principal point was conceded to the Pope's 
 legate, viz. that for the future no cleric should be summoned 
 to answer for a crime before a temporal judge, except on 
 account of a secular fee, or of an offence against the hunting 
 laws. The other points of unpleasantness to the clergy were 
 also for the most part omitted. In its further development 
 the concession of a separate judicial jurisdiction led to the 
 privilege of milder punishment, under the term of " benefit 
 of clergy." 
 
 Under King John the Curia advanced still further, and in 
 the course of a dispute between the King and the Chapter of 
 Canterbury, succeeded even in procuring the appointment of
 
 196 Constitutional History of England. 
 
 the primate under papal authority, and, in the further course 
 of the dispute, the free canonical election of the bishops, as 
 well as the feudal suzerainty over the English Crown. 
 
 Thus the relationship to the Church became the one weak 
 point in the system of Absolutism. Towards the close of this 
 period the old relations between the higher clergy and the 
 Crown become changed. Whereas formerly the King was 
 sure of seeing in the bishops' sees only prelates who were 
 known and personally subservient to him, from this time 
 onward the ecclesiastical corporate spirit designates the 
 dignitaries of the Church by canonical appointment. The 
 charter of 15th of January, 1214 (Stubbs' Charters, 288), 
 touching the freedom of ecclesiastical elections, has especial 
 influence on later centuries. It was this " Charter of Liberty," 
 afterwards confirmed by 25 Edward I. stat. 6, sec. 2, which 
 considerably altered the character of the English episcopal 
 bench up to the close of the Middle Ages. Under Henry III. 
 the papal power had reached the zenith of its might in 
 England, and this, in consequence of the realm being overrun 
 by foreign clergy, led to a reaction on the part of the land- 
 owning gentry as patrons of the churches. The influence of 
 the King is now confined to withholding the temporalities 
 during the time a see is vacant, and to the moral influence of 
 the feudal oath of fealty ; through which, by the withholding 
 of the temporalities, a renunciation could be compelled "of 
 all the clauses of the Papal Bull, which were opposed to the 
 royal prerogative, and the law of the land." The breach in 
 the absolute royal power which was here made could not be 
 healed in the course of the Middle Ages. It was the first 
 opening, by means of which Magna Charta introduced the 
 beginnings of parliamentary privileges. 
 
 NOTE TO CHAPTER XV. The course the due exercise of it by reserving to 
 
 which the ecclesiastical disputes took himself the placet to the publication 
 
 in the Norman period forms the stan- of all circular letters from Rome, and 
 
 dardfor estimatingtheinherentstrength by reserving his consent to all Councils, 
 
 of the absolute monarchy, and must all canones, and to the excommunica- 
 
 for this purpose be set forth con- tion of any royal vassal (Eadmer, Hist., 
 
 nectedly. p. 6, Wilkins, Concilia, i. 199). 
 
 Under William I. the concessions William II. misuses his fiscal rights 
 
 concern merely the immediate wishes of against the Church, as in other direc- 
 
 the Church: a separate ecclesiastical tions; leaves, among other things, the 
 
 jurisdiction, the Peter's pence, and Archbishopric of Canterbury vacant 
 
 the moderate inculcation of celibacy. for nearly five years ; and is soon 
 
 William had also no objections to the involved in a quarrel with Archbishop 
 
 doctrine of transubstantiation. On Anselm as to tlie taking of the oath of 
 
 the other hand, he rejects with fealty, in which temporal and spiritual 
 
 proud resoluteness the demand of vassals take the King's part. A 
 
 Gregory VII. for a suzerainty, and the Council of the year 1097 resolves that 
 
 taking of the oath of allegiance, asserts "the archbishop has to leave the realm 
 
 his supremacy over the Church in all within eleven days." 
 external matters, and assures himself of Henry I., who by a cunning usurpa-
 
 Norman Church Supremacy. 
 
 197 
 
 tion of the throne had anticipated his 
 elder brother Robert, was dependent 
 upon the support of the clergy, and 
 accordingly recalls the archbishop, 
 Anselm, who again refuses the oatli of 
 fealty. After a long dispute Henry I. 
 declares in a Council of the year 1107, 
 upon his absolute authority, that the 
 investiture with the ring and the staff, 
 the symbol of the conferring of the 
 spiritual office by the King, or a lay 
 patron, should for the future be 
 abolished. 
 
 Under Stephen, the usurpation of 
 the Crown brings confusion into this 
 question as into others. By extensive 
 promises Stephen brings the higher 
 clergy over to his side, who then 
 become faithless to all the vows 
 formerly made to the Empress Matilda; 
 but later they also leave King Stephen 
 in the lurch. In 1138, things had come 
 to such a pass, that in the Council of 
 Westminster a papal legate promul- 
 gates sixteen canons, and takes into his 
 own hand the conduct of the elective 
 act for appointing to the Archbishopric 
 of Canterbury. In the course of a few 
 years the Papal Chair becomes the 
 court of appeal for all contending 
 factions. 
 
 Henry II., in a difficult position, 
 thinks to secure his royal prerogatives 
 by choosing his favourite and chan- 
 cellor Thomas Becket, but finds at 
 once in him an ambitious, energetic, 
 and equal opponent. In 1164, the 
 principal dispute is fought out at the 
 Assizes at Clarendon and North- 
 ampton, when again spiritual as well 
 as temporal prelates declare for the 
 King. The sixteen articles of Clarendon 
 comprise in a formulated shape the 
 sovereign rights of the feudal State. 
 But in the course of the dispute 
 passionate irritation loses him most of 
 the advantages which had been gained. 
 A thoughtless word of the King causes 
 the murder of the Archbishop. Under 
 the moral impression caused by this 
 martyrdom, Henry II. is compelled in 
 the year 1 172, in the presence of the 
 papal legates and a great assemblage 
 of temporal and spiritual lords at 
 Avranches, to purchase peace with the 
 Church by taking an oath "to allow 
 the appeals to the Pope bona fide 
 from that time forward, and to remove 
 all evil customs against the Church 
 which had come into use during his 
 reign." 
 
 The first century of the Norman 
 period had almost brought into a con- 
 
 dition of equilibrium the two powers 
 which were struggling with each other. 
 But after Henry II. the power of the 
 Crown diminishes quiteas continuously 
 as the power of the Papal See rises, 
 until the latter reaches its famous 
 climax under Innocent III., whose rule 
 is contemporary with the miserable 
 reign of John. The humiliating sub- 
 mission of John, and his restoration to 
 the throne as the vassal of the Pope, 
 bring about the situation of Magna 
 Charta (A.D. 1215). The material 
 points of dispute which arise in this 
 period are in a compressed sketch of 
 their course as follows : 
 
 I. The celibacy of the secular clergy. 
 This, under William I., is at first only 
 partially recognized, for the married 
 clergy are still allowed to retain their 
 wives (A.D. 1076). Henceforward, how- 
 ever, the ecclesiastical decrees are 
 more strict. The canons touching 
 celibacy increase in number. Those of 
 the year 1107 contain a positive com- 
 mand directed to the married clergy to 
 separate from their wives, and the rule 
 that the sons of priests should never 
 "inherit" the Church of their father. 
 In the following year, however, Pope 
 Pascal II. sends a letter of dispensation 
 from the command of divorce, " because 
 its execution in England would be 
 very much out of place, seeing that 
 there the best and greatest part of the 
 clergy is of that sort." In 1126, at a 
 full ecclesiastical Council at West- 
 minster (at which, for the first time, 
 a papal legate presided), the legate, 
 John of Crema, with great zeal pleaded 
 for "immaculata castitas," but was him- 
 self obliged to leave the country in 
 secrecy and haste, in consequence of 
 an immoral scandal (Huntingdon, 219 ; 
 Hoveden, 274; Knyghton, 2382). In 
 1192 it was thought possible to carry 
 out the prohibition of marriage by 
 leaving the enforcing of it to the King. 
 But Henry I. made use of this power 
 only by allowing every priest to keep 
 his wife on payment of a fine. It was 
 not until the twelfth century that the 
 increasing power of Rome at last 
 effectually enforced celibacy. 
 
 II. The dispute as to investiture 
 broke out under William II. in con- 
 sequence of the refusal of Archbishop 
 Anselm, the King having up to that 
 time enfeoffed his prelates with the 
 ring and staff. At the council of 1095 
 even the bishops ranged themselves on 
 the side of the ancient custom. But 
 now, in consequence of this case, in the
 
 198 
 
 Constitutional History of England. 
 
 year 1098, a solemnly promulgated and 
 severe canon was launched against 
 investiture by laymen, and Henry I., 
 by reason of his having usurped the 
 throne, was not in a position to reject 
 the mediation of the Pope on this 
 question. In spite of the opposition of 
 the secular vassals, the King ac- 
 quiesced when Anselm consented to 
 recall the sentence of excommunication 
 passed on the prelates who had ac- 
 cepted a royal investiture. When at 
 last the question was brought before a 
 Council at London, to be decided on 
 principle, the King ended the dispute 
 by declaring on his personal and 
 absolute authority " that in future no 
 one shall be enfeoffed by the King or 
 a lay patron of a bishop's see or an 
 abbey by the delivery to him of a 
 pastoral staff and a ring, but that, on 
 the other hand, consecration should 
 not be denied a chosen prelate by 
 reason of the homagium which he 
 pays to the King." Thus there arose 
 a partition of the right of the in- 
 vestiture, which had been hitherto an 
 exclusively royal prerogative. The 
 compromise now places the election in 
 the hands of the chapter, the consecra- 
 tion in the hands of the archbishop 
 and bishops, the grant of the temporal 
 goods and authority in the hands of 
 the King. The election took place, 
 from this time, at the chapter-house of 
 Ihe cathedral church, where the wishes 
 of the King were communicated, either 
 by letter or message (not, as formerly, 
 by direct order). When the prelate 
 elect had received the royal assent, the 
 choice was scrutiniaed and confirmed 
 by the metropolitan. Before or after 
 the consecration, the bishop received 
 from the King the temporalities, and 
 took an oath of allegiance to him, 
 corresponding to the homagium and 
 fealty of a temporal lord (Stubbs, iii. 
 295, 296). 
 
 III. The appointment of the bishops 
 by the King was such an undoubted, 
 firmly established custom, that, in the 
 first century of the period scarcely an 
 objection was raised to it. Only in the 
 election of the Primate of England the 
 more exclusive character of the spiritual 
 State made itself felt, an appeal being 
 probably made to precedents ; accord- 
 ing to which, at the appointment of 
 the head of the English Church, the 
 chapter and the voice of the bishops 
 had been heard. The elections of tne 
 archbishops Lanfranc, Anselm, and 
 Radulfus (A.D. 1070-1121), proceeded 
 
 still from the kings, who only after- 
 wards consulted the prior and the 
 convent as to their opinion. The 
 violent dispute which began under 
 Henry I., between the "monks" 
 (canons), and the bishops, continued 
 for a whole century. After the murder 
 of Thomas Becket(A.D. 1170), a double 
 election took place, which the Pope 
 decided ; and, after this precedent, he 
 claimed the right of confirming all 
 elections of bishops. The question of 
 election was at last decided by Innocent 
 III. in favour of the Canons of Canter- 
 bury against the bishops. In the course 
 of the dispute the royal right more 
 and more dwindled to a mere right of 
 confirmation. At the close of the 
 twelfth century, the rights of each 
 party had become tolerably closely 
 defined. The royal consent was indis- 
 pensable; the right of the chapter to 
 elect, and the confirmation of their 
 choice by the archbishop, was formally 
 recognized. The deciding authority of 
 the Pope in disputed cases was upheld 
 by strong precedents, but in the case of 
 disputed episcopal elections the Pope 
 had only an appellate jurisdiction. 
 Only in the case of an archbishop an 
 immediate papal confirmation and 
 recognition was carried out by the 
 Curial theory of the Pallium (Stubbs, 
 iii. 304). Before receiving the Pallium 
 the archbishop may not consecrate any 
 bishop ; but on receiving it he has to 
 swear obedience to the Pope in a form 
 which, in process of time, becomes more 
 and more stringent (Stubbs, iii. 297, 
 304). After free canonical election 
 had been introduced by the charter of 
 John, the royal right of confirming the 
 election was also abolished. The royal 
 influence after this time confined itself 
 to the moral influence of the feudal 
 oath, and to the fact that the King, by 
 withholding the temporalities, could in 
 any case enforce a renunciation of " all 
 the clauses of the papal Bull, which 
 should be opposed to the royal preroga- 
 tive and the law of the land." It was 
 not until the next period that a strong 
 influence of the King upon the ap- 
 pointment of the bishops became in- 
 directly re-established. 
 
 IV. The exclusiveness of the spiritual 
 jurisdiction and its independence of 
 the royal judicial jurisdiction, forms 
 the most important point of the English 
 Church controversy. Even Henry I. 
 had on this point resolutely opposed 
 the ecclesiastical claims. The appeal 
 to Rome was only allowed under royal
 
 Norman Church Supremacy. 
 
 199 
 
 licence, and then only in cases which 
 a royal court of law was incompetent 
 to decide. Under Stephen, however, 
 the exclusiveness of the episcopal juris- 
 diction over spiritual persons and 
 matters was declared ; and, after the 
 system of appeal to the Roman chair 
 had once begun under the legate, the 
 Bishop of Winchester, in a few years 
 it went so far that all the more impor- 
 tant matters were referred to Rome for 
 final decision. This state of things 
 Henry II. found existing, and, in con- 
 nection with it, a partially disordered 
 clerical body, who, under the protection 
 of their privileged judicial position, 
 had in the course of ten years more 
 than a hundred unpunished cases of 
 manslaughter to show. lu the face of 
 these excesses, Henry II. was able to 
 count on the acquiescence, not only of 
 his Crown vassals, but also of the 
 majority of the bishops. 
 
 At the commencement of the dispute 
 with Thomas Becket, Henry had the 
 sixteen articles of Clarendon drawn up 
 by two of his justiciaries, Robert de 
 Luci and Joscelin de Baliol, which 
 articles, in fact, only contain the royal 
 prerogatives so well defined by pre- 
 cedents, that in the assize of 1164 
 even the bishops recognized the royal 
 rights. Thomas Becket sought in vain 
 for a legal title for the new position of 
 the Church; he was unable to find one, 
 except in the authority of the Papal 
 Chair. It was under these circum- 
 stances a decisive victory, when the 
 King, at the Council of Northampton 
 (17th Oct., 1164), brought about the 
 condemnation of the Primate, and with 
 it the recognition of the English cus- 
 tom. But, from that time forward 
 Henry II. ruined his case by persecu- 
 tion and personal chicanery, which 
 aroused the sympathies of tbe Saxon 
 population for the archbishop. Against 
 the murdered, and soon afterwards 
 sainted Martyr, according to the spirit 
 of the age, the King's case could no 
 longer be victorious. In spite of all 
 his shrewdness and perseverance, the 
 principal object of the dispute was lost 
 at the final conclusion of peace (A.D. 
 1174). The King allowed the appeals 
 to the Pope, and in his acknowledgment 
 made to the papal legate, Petroleone, 
 limited the royal jurisdiction to actions 
 brought on account of fiefs and hunting 
 offences. In the struggle against his 
 rebellious sons and against the sym- 
 pathies of the Saxon population for 
 the ecclesiastical cause, the King had 
 
 grown old and weary. Under Richard 
 and John, under the influence of the 
 Crusades, and the manifold complica- 
 tions in the interior of the country, the 
 papal power continued to advance 
 until it reached the pinnacle of its 
 might under Innocent III. 
 
 V. The recognition of the papal 
 legates forms an important incident in 
 the dispute as to the jurisdictions. 
 Henry I. had for a long time set him- 
 self against their admission ; but the 
 complications which his resistance en- 
 gendered compelled him to give way. 
 Scarcely were the legates admitted, 
 than, as early as 1126, a legate, as 
 such, held a Church Council, and pub- 
 lished seventeen canons, under the sole 
 authority of the Pope. Under Stephen 
 their insolence rose so high as to sum- 
 mon the King to answer before a legate 
 and Church Council. This might later 
 be disavowed as extravagance. But 
 the legate system had gained a footing; 
 and the circumstance that archbishops 
 of Canterbury had taken the position 
 of legates, proved unfavourable to the 
 independence of the English Church. 
 The union of the powers of the legate 
 with the office of archbishop, com- 
 pelled the King to recognize indirectly 
 the supreme jurisdiction of the Pope, 
 so soon as it was placed in the hands 
 of one of the archbishops. After 
 Honorius III. (A.D. 1221), the arch- 
 bishops appear to have received the 
 regular commission of legates, as being 
 " legati nati" from the moment of 
 their recognition at Rome, and this 
 was acceded to on the part of the Pope, 
 with reservation of the right to send 
 " legati a latere" who suspend the 
 power of the " legati residentes." The 
 legate system also reached its culminat- 
 ing point in the confusion under John. 
 
 VI. A further incident of import- 
 ance was the exemption of the monas- 
 teries from the episcopal power. It 
 began with the commencement of 
 Henry II.'s reign, after which time the 
 policy v of the Papacy worked systemati- 
 cally towards weakening the episcopal 
 authority. On the strength of an evil 
 precedent, the richest abbeys, one after 
 the other, were wrested from the 
 bishops, and then actually subordinated 
 to the Pope and his legates. 
 
 Another incident is the contest be- 
 tween the Archbishops of Canterbury 
 and York for the primacy, which, in 
 the vicissitudes of this century, fell to 
 the Pope for final decision. 
 
 la these controversies the weapons
 
 200 
 
 Constitutional History of England. 
 
 employed by the two powers are 
 characteristic of their respective posi- 
 tions. The King contends with the 
 means he derives from his feudal, 
 police, and financial supremacy, by 
 withholding the temporalities, the 
 sequestration of feudal possessions, the 
 confiscation of personalty, the enforce- 
 ment of amerciaments, and the ap- 
 plication of the right of making decrees 
 in individual cases. When the dis- 
 pute was at its height, Henry II. 
 caused all the personal estate and 
 revenues of the archbishop, and of 
 those of the clergy who declared for 
 him, to be attached, and then further 
 proceeded to confiscate the real estate, 
 and to banish all the relations, house- 
 hold, and nearest friends of Thomas 
 Becket, to the number of four hundred. 
 In another case a royal decree imposes 
 the penalty of death, or in the case of 
 ecclesiastics castration, for the intro- 
 duction into the country of any papal 
 bull of excommunication. The power 
 of the Crown shows itself as a rule to 
 be so strong, that every order of banish- 
 ment is effectual in its operation, and 
 even the most powerful prelates with- 
 draw themselves from the desperate 
 conflict by flight. Under John all 
 these means had become massed to- 
 gether and increased to an enormous 
 extent. But this power is often 
 checked by the feeling of the masses, 
 by the threatening position of the 
 French kingdom, which enters into the 
 dispute as lord-suzerain and at the 
 request of the Pope, by the danger 
 which menaces the possessions of the 
 English Sovereign upon the Continent 
 and by internal troubles, under 
 Henry II., even by a rebellion of his 
 own sons. In the course of the ecclesi- 
 astical dispute matters went at last so 
 far that the King found himself for- 
 saken by his secular Crown vassals, 
 as in the case of King John, and thus 
 the Eoyal power reached its lowest 
 limit. The Church on its side does 
 battle by interdict and excommunica- 
 tion, with which at first the prelates 
 and laity who pay obedience to the 
 royal commands are threatened ; then 
 by degrees it increases in boldness and 
 directs itself against the person of the 
 King. A frivolous exercise of the 
 spiritual instruments of combat could, 
 however, be defied even by Stephen 
 and John, so long as the feeling and 
 the interest of the upper classes re- 
 mained on the side of the Crown. The 
 various phases of the dispute are com- 
 
 plicated by schisms of the papacy, and, 
 on the other side, by contentions as to 
 the succession to the throne. The two 
 sides may have been fairly balanced, 
 but the decision depended finally on 
 the internal energy of each. 
 
 VII. The final break-down of the 
 royal ecclesiastical supremacy under 
 John rests upon a concurrence of many 
 circumstances, long since prepared in 
 the person of the King. The impulse 
 was again given by the double election 
 of an Archbishop of Canterbury. On 
 the 21st December, 1206, Innocent III. 
 had dictatorially, and in a very un- 
 canonical fashion, imposed upon the 
 Canons who had visited Home as a 
 special embassy, his friend and fellow- 
 student, Stephen Langton, as arch- 
 bishop. On the continued opposition 
 of the King to this so-called election, 
 there followed on the 24th March, 
 1208, the pronouncing of the interdict. 
 The inhabitants of the country re- 
 mained, however, passive ; the temporal 
 nobles were still on the side of the 
 King. Three years later (A.D. 1211), 
 the dispute had progressed so far that 
 the legate pronounced the sentence of 
 excommunication, released all subjects 
 from their oath, and degraded the 
 King from his royal dignity. The 
 temporal vassals still adhered to the 
 King. John, just at this time, had 
 waged two fortunate campaigns, the 
 only successful ones of his reign. It 
 was the grievous fault of the King him- 
 self, that brought about the final crisis. 
 Neither in England nor on the Con- 
 tinent had the affairs of the kingdom 
 ever been carried on by such ferocious 
 means as John made use of at this 
 time ; curiously combining the cruel- 
 ties of an Asiatic despot with the 
 practices of the Exchequer of Jews. 
 In the following year (1212), a formal 
 decree of deposition was issued by the 
 Pope : " Papa sententialiter definivit, 
 ut rex Anglorum Johannes a solio regni 
 deponeretur, et alius, Papa procurante, 
 succederet qui dignior haberetur. Ad 
 hujw quoque sentential executionem 
 scripsit Dominus Papa potentissimo 
 Regi Francorum Philippo, quatenus in 
 remissionem omnium suorwn peccami- 
 num hunc laborem assumeret " (Mat- 
 thew Paris, 162). King Philip and 
 the French nobility accepted the com- 
 mission with enthusiasm, and war 
 preparations commenced in France, 
 which gave a prospect of a repetition of 
 the events under William the Con- 
 queror. The feudal summons of John
 
 The Curia Regis The Great Officers of the Realm. 201 
 
 on the other side, brought together in May, 1213, John resigned his crown 
 England an army of 60,000 men (Mat- and his kingdoms into the hands of the 
 thew Paris, 163), which had to be Pope, surrendering " to the Church 
 partly disbanded on account of the and the Pope his kingdoms of England 
 want of provisions. But, like an and Ireland, to receive them again 
 electric spark, a common consciousness from the Church as a feudal vassal " 
 of the unworthiness of this King (Rymer, i. 2, p. 57; Matthew Paris, 
 flashed through the assembled masses. 164). Stephen Langton, Archbishop 
 John himself felt this. Fear of the and Primate, makes his entry into 
 French military power, and of the England, takes possession of the Arch- 
 temper of his own vassals determined bishop's see, and absolves the King 
 him to unconditional submission. On from the sentence of excommunication, 
 the 13th May, 1213, the formal treaty The negotiations as to the removal of 
 with the papal legate, Pandulfus, was the interdict and the compensation to 
 brought to a conclusion, in accordance the Church, are protracted for a con- 
 with the papal instructions (Rymer, i. siderable time longer, until the crisis 
 2, p. 54). Two days later, on the 15th ends iii Magna Charta. 
 
 CHAPTER XVI. 
 ODtma &egis fjc teat Officers ofj&e 
 
 THE Norman government of the kingdom rested upon a 
 combination of the relations of the military, judicial, police, 
 financial, and ecclesiastical authority ; consequently its 
 central point was found in the person of the King. The 
 Norman feudal phraseology, which after the Conquest pervaded 
 all departments, introduced for the above the appellation 
 Curia Regis, which, corresponding to the social, military, 
 judicial, and administrative position of the Crown, may signify 
 according to the context : 
 
 The Curia considered as (1) the Norman Court Day ; 
 (2) the Royal Court of Justice ; or (3) the whole Government 
 of the realm. 
 
 I. &fce <urta omsttetr as tfjc Norman <ourt Baps. The 
 Conqueror was exceedingly fond of pomp and splendour. 
 " Thrice a year he wore his crown, so often he was in Eng- 
 land ; at Easter he wore it at Winchester, at Whitsuntide at 
 Westminster, and at Christmas at Gloucester ; and there were 
 gathered about him all the magnates throughout the whole 
 of England Archbishops and Bishops, Abbots and Earls, 
 Thanes and Knights " (Chron. Sax. A.D. 1086). This account 
 of the Saxon Chronicler, often varied by contemporaries, is 
 the pith of all that we know about the curia in this sense. 
 When the festivities were passed over, this was likewise 
 chronicled: " hoc anno corona sua non indutus eat" (Chron.
 
 202 Constitutional History of England. 
 
 Sax., A.D. 1111) ; similarly if he held his court at Christmas 
 only (A.D. 1114). Of course the pomp of the Norman court 
 had increased greatly since the Conquest. We know that the 
 Dukes of Normandy held a court three times a year, at 
 Easter, Whitsuntide, and Christmas, and united with it ex- 
 chequer and judicial business. These courts were accordingly, 
 among the Normans, customary festivals, and were therefore 
 called in England also, " curias de more." They were to the 
 subjects sometimes an occasion of pride and display, and at 
 others, of national antipathy and painful remembrance of 
 the past. The Conqueror evidently wished to accustom his 
 subjects to the personal government of their "legitimate 
 ruler." The oppressed Saxons saw here at first some few of 
 their own race, and might have imagined the assembly to be 
 the time-honoured Witenagemote. Perhaps the summons to 
 it was issued by royal writ, generally to the possessors of the 
 same lordships and bishops' demesnes as in the Anglo-Saxon 
 period (Chron. Sax., A.D. 1023). Many a proud Norman, 
 with his princely retinue, would see in the assembly a 
 Norman " cour de baronie;" but the Conqueror had taken 
 care that it should be neither the one nor the other. The 
 curia was rather, according to all authentic information, 
 simply a court festival, the splendour of which was intended 
 to compensate the greater feudal tenants for the want of 
 political power and importance ; as in later times under the 
 French " ancien regime." "The royal order," says William 
 of Malmesbury, "summoned all magnates to the 'curia de 
 more,' that the emissaries of foreign nations should marvel 
 at the splendour of this throng and the pomp of the festivals." 
 This phenomenon has, at first sight, something startling 
 in it. William the Conqueror had passed from a dukedom 
 with legislating diets, to a kingdom with a legislating Witen- 
 agemote. In both countries powerful estates limited the 
 royal power in important respects. But the Norman diets 
 were not based upon written and traditional constitutional 
 documents, but upon the usage of the law courts and upon 
 the custom of the country. What the Norman Crown vassals 
 found in England was not the customary law of their own 
 country ; and the throng around the Norman Sovereign was 
 to the Anglo-Saxon Thanes no longer their national assembly. 
 The Anglo-Saxons no longer found a place in the council 
 of the King, but only a tolerated existence in the position of 
 under-vassals, which, under the system of the feudal social 
 degrees, excluded them even from being tenentes in capite. 
 For the Normans, in another direction, the precedents, upon 
 which the old law of the Witenagemote rested, were not " the 
 rights inherited and liberties guaranteed from the days of
 
 The Curia Regis The Great Officers of the Realm. 203 
 
 their forefathers." To both nations had been promised the 
 continuance of their hereditary common law ; but from the 
 thrusting together of two nations and two constitutions, there 
 resulted a neutralizing of both, and the necessity of a reno- 
 vation for each. As the old constitution was merely a com- 
 bination of the relations in which the royal power stood to the 
 landed interests in the army, law court, preservation of the 
 peace, finance, and Church ; so the new one could only form 
 itself from the new relations; and these had in every de- 
 partment led inexorably to a method of government by royal 
 ordinances, and to unlimited sovereign rights of the King. 
 We will once again summarize these stages of development. 
 
 In the department of the military organization the personal 
 summons of the King had taken the place of the decrees of 
 the national assembly touching war and peace. Through the 
 feudal system the old relation of personal service had become 
 the only valid one ; the feudal vassals do their service intra 
 et extra regnum on the personal summons of the feudal 
 lord. 
 
 In the department of the judicial system the Conqueror 
 begins with the promise to allow the " Leges Eduardi " to 
 continue. This was the concession, which even the mighty 
 Emperor Charlemagne was obliged to make in fact and in 
 law to the peoples of his empire, viz. the retention of their 
 hereditary common law, which was to suffer no change 
 through mere ordinances. William might indeed deliberate 
 with his Norman nobles upon the promise he had made ; but 
 the "legitimate" successor of Eadward could not make the 
 confirmation of the rights of his Saxon subjects dependent 
 upon their " consent." The same situation repeats itself 
 whenever collisions between the laws of both nations occur, 
 which for similar reasons must be decided by the King. From 
 generation to generation the precedents accumulated, arising 
 from this situation. 
 
 In the department of the preservation of the peace, the Con- 
 queror commences his legislation with a decree which protects 
 the lives of his Normans by a fine for murder of forty-six marks, 
 against which the Normans were certainly not desirous, nor 
 the Saxons able, to raise any objection. This situation re- 
 peated itself ; the police-control naturally devolves upon the 
 possessor of the absolute military and judicial powers. 
 
 In the financial department the King needed the acquies- 
 cence of the Normans with regard to the old revenues of the 
 Anglo-Saxon kings as little as he required that of the Anglo- 
 Saxons to the new feudal income. But the main point was, 
 that the new revenue flowed in copiously, and that in the 
 aiixilia, tallagia, and scutagia, a new current income was peri-
 
 204 Constitutional History of England. 
 
 odically raised as need required, and one which sufficed for 
 generations for all the King's necessities. 
 
 In the department of the Church, the Anglo-Saxon King 
 had the right of appointing the prelates, and the right to 
 give or withhold his consent to the resolutions of the Councils ; 
 the feudal constitution subjected the same persons to yet 
 more extensive rights ; the enforcement of military discipline, 
 sequestration, and forfeiture of all real estates. 
 
 As all these legal relations conduced to an absolute rule, 
 so the same result was brought about by sundry social condi- 
 tions, arising from the dissension existing between the nation- 
 alities. These dissensions, from the lower strata upward, 
 pervaded and loosened the bonds of society in the counties, 
 and consequently deprived the great vassals of the support 
 of those below them. There were certainly about the same 
 number of great landlords as in the Anglo-Saxon times, out- 
 wardly more brilliant and pretentious; but without the in- 
 ternal union among themselves which is the root of political 
 power and liberty. There was the most splendid court in 
 Christendom, at which, in a long and brilliant cavalcade, the 
 rich Norman lords and prelates appeared from time to time, 
 followed by their under-vassals and retinues, with the colours 
 and distinctive badges of their lords. There were the same 
 elements of possession upon which in former days was based 
 the Witenagemote that had degraded Eadward's authority to 
 a shadowy rule. In spite of all this, the Norman kings rule 
 the land by means of writs and letters of privilege, they 
 appoint or depose year after year their bailiffs in the counties, 
 and assemble their tenants and prelates at parades and court 
 festivals without allowing them any influence but that derived 
 from revocable offices and commissions. The Norman grandees 
 lacked the support which was the life of the dynasties on the 
 Continent ; because their estates were scattered and severed, 
 and their men divided by national antipathies. Their Norman 
 under-vassals are at first persons hastily collected, their Saxon 
 under-vassals yield reluctant service to a lord who has been 
 forced upon them, and the Saxon population, as a whole, 
 retains for generations its dislike to the whole body of the 
 intruders. The conjunction of these relations brought about 
 irresistibly the decomposition of the older political rights, 
 although these had a deep historical foundation. (1) 
 
 (1) The Norman Court-days have mony given by historians, severed 
 been the subject of a party controversy from its connection, was accordingly 
 from different points of view. In the rearranged in such a way that the 
 time of the Stuarts it became important words " curia" " concilium" and " con- 
 to oppose the highly exalted right of silium" were made to mean " legisla- 
 the kingship "jure divino " by an at tive and tax-granting national assem- 
 least equally ancient genealogical tree blies." 
 of parliament. The indefinite testi- These "armed parliaments," with
 
 The Curia Regis The Great Officers of the Realm. 205 
 
 The documentary history is in harmony with this. There 
 exist actually no laws of this period which have proceeded 
 from the initiative and the free deliberation of estates of the 
 realm. The formula found in one or two cases, " consilio et 
 consensu baronum meorum" will be referred to later, and apart 
 from this. The so-called laws of William I. are really pro- 
 clamations, charters, and official commands, as is seen at 
 once in the style, "prascipio," "prohibeo" the King wills, 
 orders, decrees. Even if sometimes a plural occurs, a " sta- 
 tuimus" "voluimus," " pr&cipimus," we cannot infer from this 
 the action of a deliberative assembly. Under William II. 
 also, such decrees do not occur ; he does not even appear 
 
 their gleaming helmets, shields, and 
 martial parades, were also an object 
 of interest to the students of heraldry. 
 It is part of the special business of 
 the herald's office to find for a newly 
 created lord, some remote ancestor, 
 who was perhaps an under-vassal, or, 
 in a fortunate case, a petty Crown vassal 
 with a few hides of land, but who, in 
 the spirit of heraldry, must have been 
 a "lord, hereditary noble, and coun- 
 cillor of the Crown," in order to figure 
 as an ancestor of equal rank at the 
 top of the pedigree. Just as inter- 
 ested are our political parties of to-day 
 in setting up an old pedigree for par- 
 liament. A view, very widely propa- 
 gated at the time of the Reform Bill, 
 represented the Norman crown as 
 perfectly dependent on parliament. 
 This line is taken by Allen's treatise, 
 which was received with great appro- 
 bation (Edinburgh Review, vol. 35) : 
 " The name, and probably also the con- 
 stitution of the Anglo-Saxon national 
 assembly, was changed at the coming 
 of the Normans ; but its functions re- 
 mained the same, and continue so in 
 our parliament of to-day." 
 
 The idea put forward by antiquaries 
 of a feudal Estate of the Crown vas- 
 sals, overlooks, in the first place, the 
 social disparity between half a thou- 
 sand petty Crown vassals and the 
 princely earls and great lords, whom 
 William had enfeoffed as tenentes in 
 capite. The great political fact is 
 further overlooked that the dependence 
 of the King upon the majority of his 
 Norman vassals would have brought 
 about the most rigorous decrees against 
 the rights of the Saxon population, 
 which still formed a great portion of 
 the feudal army, the numerical majo- 
 rity in the staff of the Church, and 
 the greater part of the whole population 
 
 of the nation. So long as dissensions 
 continued between the " Francigense " 
 and the " Angli," the carrying out of 
 the promises made to the Anglo-Saxon 
 portion of the community could not 
 possibly take place under a legislative 
 assembly of Normans. In conse- 
 quence of this arbitrative position, no 
 monarch since Charlemagne, was ever 
 so favourably situated as the Con- 
 queror for thoroughly organizing his 
 empire on a uniform system. Wil- 
 liam I., and both his sons, show a 
 practical understanding and an inex- 
 orable persistency in dealing with this 
 question, such as are rarely found in 
 history in conjunction with so many 
 favourable circumstances. Once set 
 on foot, this system of government 
 strengthened and developed its maxims 
 through the medium of its professional 
 officers. The old custom of Normandy 
 was indeed considered, but was never 
 the decisive element where royal powers 
 and financial interests were concerned. 
 The Norman Echiquier certainly com- 
 bined the court assemblies with busi- 
 ness. After the festivities were over, 
 it was the custom to proceed to the 
 account table and bring in order what 
 was owing to the lord. But in Eng- 
 land a regular connection is not per- 
 ceptible. The Exchequer is from the 
 first a fixed official body with its own 
 course of business procedure ; its two 
 principal Terms do not tally with the 
 period of the court days, and a sum- 
 mons of those from whom accounts 
 were due to the court festival was 
 never dreamt of. In the same manner 
 the four law Terms of the English 
 courts of law do not tally with the 
 periods of the curia de more, and this 
 is external evidence that the later 
 course of judicial business did not pro- 
 ceed from the Norman court days.
 
 206 Constitutional History of England. 
 
 to have summoned an assembly to ratify his doubtful claim 
 to the crown. Henry I. certainly begins his reign with a 
 charter in which he promises much, the pith of which lies in 
 these words : "I give you again the laws of my father; that 
 is, the laws of Eadward, with the changes which my father 
 has made with the consent of the vassals," wherein the 
 one-sided character of the proclamation is distinctly pro- 
 minent. Under Stephen a similar charter was issued, and 
 nothing more. Under Henry II. the Assizes of Clarendon 
 and Northampton contain the first beginnings of a legislation 
 with assemblies of notables, but these tokens again disappear. 
 Under Eichard I. and John we find again only instructions to 
 officials as to their duty, and charters. The careful investiga- 
 tion made by the recent committee of the Upper House upon 
 the subject of the peerage, has led to the definite conclusion 
 that under William I. and William II. nothing can be dis- 
 covered to show the existence and constitution of a legislative 
 assembly; but that the charters of Henry I., Stephen, and 
 Henry II., showed that the promise of the continuance of the 
 laws of Eadward had been regarded as the "right of the 
 country ; " and that it might be thence concluded that there 
 existed a sort of legal constitution, of which a legislative 
 assembly gathered together at least for certain purposes, 
 formed a portion; and that special one-sided arbitrary im- 
 posts were regarded as infringements of the rights of the sub- 
 ject (Peers' Report, i. 36, 42). The chief question, how such 
 an assembly was composed and limited, as well as the question 
 touching the revocability or irrevocability of the royal charters 
 and letters of grace, is not here dealt with. But the really 
 important part of that view lies probably in this point, that 
 even the Conquest was neither desirous nor able to abolish 
 the highest principle of all Teutonic constitutions, viz. that 
 the lex terns cannot be altered by despotic command, but 
 only with the consent of the representatives of the nation; 
 " lex ex consensu populi Jit et consensu et constitutions regis " 
 (edit. Pistense, sec. 6), "ut neque principes nee alii quilibet con- 
 stitutiones vel nova jurafacere possint, nisi meliorum et majorum 
 terrsB consensus primitus habeatur " (Reichstag at Worms, 1231). 
 In times of necessity and peril the Conqueror also was 
 obliged to pay regard to this national feeling, which can be 
 clearly traced throughout our thousand years of German 
 history. When he cut most deeply into the existing "law of 
 the land " by the separation of the spiritual from the temporal 
 courts of law, and by their subordination to the " canones et 
 leges episcopales," he added, out of respect for the nation and 
 the Church, that this was done " communi concilio episcoporum 
 et abbatum et omniwn principum regni." This absolute sove-
 
 The Curia Regis The Great Officers of the Realm. 207 
 
 reign will certainly did not exclude the idea that the optimates, 
 who were assembled at the court day, should be heard and 
 their opinion asked in important enactments. Naturally this 
 Was done in the case of measures affecting the whole of the 
 common law, as for example the decree in 4 William I., 
 which confirms and modifies the laws of Eadward the Con- 
 fessor. In the charter which held out so many promises at the 
 commencement of his reign, Henry I. declares, in this spirit, 
 that those additions were made by his father " consensu 
 baronum." But the purely deliberative character of the 
 estates of the realm is also seen in the formula. In the sole 
 existing political act, in which William the Conqueror speaks 
 of the " consensus episcoporum et principum," he confines 
 himself to inserting this assurance into the decrees which 
 he issues to his magistrates. In like manner Henry I. in 
 his charta confines himself to the assurance that the 
 " emendationes legum Eduardi " were made " consensu baro- 
 num." For more than a century the many hundred signa- 
 tures of the prelates and magnates disappeared, by which in 
 the Anglo-Saxon times the resolutions of the realm were 
 confirmed and attested. No one has the right to inquire who 
 was summoned to such a consilium, no one has a right to 
 attest such resolutions. The declaration made by absolute 
 royal authority, that the "meliores terree" were present, is 
 regarded as sufficient in form and fact. Promises that the 
 magnates should give their consent, and guarantees for these 
 promises, begin only after Magna Charta. On the appoint- 
 ment of high prelates the whole of the assembled notables are 
 also heard in council; when contemporary accounts allude 
 to the business of the curia de more, this is their ordinary 
 topic ; but yet this only signifies that the King appoints the 
 prelates after hearing the " pro " and the " con." For in- 
 stance, Stephen at Easter 1136, holds a generate consilium 
 in the presence of eighteen bishops, and a like number of 
 secular lords, and issues a charter for the appointment of the 
 Bishop of Bath: "audientibus et collaudantibus omnibus fidelibus 
 meis his subscriptis." Upon a new accession to the throne, or 
 at the knighting of the eldest son, an especially brilliant 
 company probably assembled, which might be described as an 
 extraordinary court day. Such a one was that of 1086, which 
 William I. summoned towards the close of his reign, for the 
 purpose of reviewing the feudal militia and receiving the 
 feudal oath from the vassals. Such deliberative estates 
 could certainly by a mere change in their degrees of power 
 again become legislating bodies. But even for this the 
 external form was wanting from the time when the Norman 
 kings, perhaps from fear of such a result, began to discontinue
 
 208 
 
 Constitutional History of England. 
 
 the periodical court day. Already under Henry I., the curia 
 de more was no longer regularly held. During the grievous 
 confusion in Stephen's reign it completely ceased : " Jam 
 quippe curias solemnes et ornatus Regil scematis ab antiqua 
 serie descendens prorsus evanuerant " (Huntingdon and Chron. 
 Norm., A.D. 1139). They never revived in the old periodical 
 manner. For the deliberations of the king with his opti- 
 mates a body had therefore to be formed in a new fashion, 
 and one which could attach itself to the administrative 
 system and the existing grand offices. The constitutional 
 rights of the English parliaments have in the course of 
 centuries been so legitimately and honourably acquired, that 
 they do not need any invented pedigree.* 
 
 * A combination of State business 
 with the great festival gatherings cer- 
 tainly resulted from the nature of the 
 State, and is also occasionally expressly 
 mentioned. " Peractis igitur festivi- 
 oribus diebus, diversorum negociorum 
 causes in medium duci ex more coepe- 
 runt " (Eadmer, pp. 37, 39, 102). But 
 we find all such mentions confined to 
 the fact, that the nobles, assembled at 
 the court, were asked their opinion, 
 war or church matters were discussed 
 with them, and judicial commissions 
 appointed from their numbers ; but of 
 a constitutional right of assent to acts 
 of legislation there is nowhere a trace. 
 On the occasion of the accession of a 
 king, and at his coronation, a form of 
 election or acclamation was retained, 
 and continued as a very ancient cere- 
 mony, but it had certainly no greater 
 significance at this period than in the 
 Anglo-Saxon (Eadmer, p. 31). The 
 remaining instances of an association 
 of State business with the court days 
 are principally the following : A.D. 
 1070, when the subjection of ecclesi- 
 astical property to the feudal burdens 
 was decided upon (Matthew Paris, A.D. 
 1070, whose statement, however, is 
 for good reasons called in question by 
 Stubbs) ; in the same year the hearing 
 of a lawsuit between the Archbishop 
 of York, and the Bishop of Worcester 
 occurs ; A.D. 1096, the hearing of a 
 duel accusation brought by Geoffrey 
 Bainard against William Count of 
 Eu; A.D. 1106, proceedings relating to 
 the reuuion of Normandy; A.D. 1107, 
 for the regulation of ecclesiastical dis- 
 putes ; A.D. 1123, for the appointment 
 of the primate; (A.D. 1124, a "witen- 
 agemote " at which forty-four thieves 
 were hanged, was certainly not a 
 court assembly, but an extraordinary 
 
 legal assize) ; A.D. 1136, under Stephen, 
 for the ratification of the election of 
 the Bishop of Bath : the charter drawn 
 up on this matter concludes with the 
 words : " audientibus et collaudantibus 
 omnibus fidelibus meis his subscriptis, 
 apud Westmonasterium in generalis 
 concilii celebratione et Paschalis festi 
 solennitate hoc actum est," etc. : there 
 were present thirteen English and 
 five Norman prelates, the chancellor, 
 three earls, two constables, four court 
 officers, and six barons; A.D. 1155, at 
 the proclamation of the two sons of 
 Henry U. as successors to the throne; 
 A.D. 1164, the extraordinary Assizes 
 of Clarendon and Northampton are 
 special gatherings of notables, in con- 
 sequence of the peculiar state of the 
 ecclesiastical controversy. The older 
 polemic treatises, such as Petyt's 
 " Rights of the Commons Asserted," 
 Brady's Tracts, etc., treat all such 
 concilia as legislative Norman parlia- 
 ments. In modern times the "Edin- 
 burgh Review" has repeatedly recurred 
 to this view. Hallam, on the other 
 hand, is somewhat reserved, "Middle 
 Ages," Note X. In the " Peers' Report 
 on the dignity of a Peer," the question 
 is treated with critical caution and 
 legal perspicuity. An authentic digest 
 of all the notices of concilia, from 
 the Conquest to Magna Charta, is 
 given by Parry, " The Parliament and 
 Councils of E'ngland," London, 1849, 
 pp. 1-23, in which the uncertainty and 
 informality of these assemblies and 
 deliberations is made perfectly clear. 
 The most recent historian, Bishop 
 W. Stubbs, treats of the Assizes, i. 
 356-358, 369, 376, repeatedly both in 
 his " Constitutional History," and in 
 his " Select Charters." But whilst in 
 one passage he confesses to the purely
 
 The Curia Regis The Great Officers of the Realm. 209 
 
 II. f) Curfa Hitgts as a Constitutional Central Court of 
 would naturally have combined with a Norman parlia- 
 ment, if such an institution had existed, after the fashion 
 of the Anglo-Saxon Witenagemote. The function of a court 
 of law was and remained the very kernel of every Germanic 
 form of constitution ; judicial proceedings formed the current 
 business of every national assembly. An object for this judi- 
 cial activity existed beyond doubt, for the " Leges Eduardi " 
 comprehended the old jurisdiction of the " King in the Witen- 
 agemote " in cases of a defectus justicise, of denial of justice, 
 and of a claim for justice against overpowerful persons. This 
 department was now even extended by the reservation of royal 
 jurisdiction over Crown fiefs, and by further reservations in 
 civil and criminal causes. But the traditional mode of hold- 
 ing a King's court in the Witenagemote had become inappli- 
 cable. The Norman lords, whom the King now gathered 
 about him, might represent many things ; but they were 
 not the " Witan of the country," the highest bearers and 
 depositaries of the Anglo-Saxon common law. For all the 
 highest decisions according to the "Leges Eduardi," they 
 were altogether incompetent. The King could not declare 
 any body of Norman lords a permanent central court of law 
 without proclaiming a jus iniqftum as a principle for the 
 country. Equally inapplicable was the kind of ccurt custom- 
 ary on French soil. Had it been possible to constitute a great 
 princely feudal court, like those which sprang up in France 
 around the great ducal families, this would certainly have 
 been to the interest of the Crown vassals; for out of such a 
 " cour de baronie " a political body of great importance would 
 have immediately arisen, of whose enactments the history of 
 this period would have had much to narrate. But the Crown 
 vassals, more than five hundred in number, were entirely un- 
 suited for such a purpose. The Norman Boris and great 
 vassals, in their almost princely position, would never have 
 
 " nominal " character of this co*opera- might perhaps endeavour to bring 
 
 tion, in which ouly the theory and counter evidence. But the mere repe- 
 
 form of a national assembly are re- tition of the traditional assertions can- 
 
 tained in memory of an old Germanic not be received as a counter proof. 
 
 political idea (Hist., i. 356, Char- Still less is the question suited to 
 
 ters, 17), in other passages the tradi- elaborate discussions in essays and in 
 
 tional ideas as to the Norman parlia- the daily press, even though they be 
 
 ments are repeated without material received with never so much " appro- 
 
 alteration (Hist., i. 276, Charters, ii. bation." An accurate history of the 
 
 23, and in other places). Against the Anglo-Norman period is impossible, 
 
 direct evidence that in the Norman if all the rights which, laboriously 
 
 period the royal right of decreeing ex- advancing step by step, have been ac- 
 
 haustively controlled all departments quired for the popular representation, 
 
 of the Government, a constitutional are by a fiction presupposed as already 
 
 lawyer, like the author of the great existing. 
 Upper House Reports on the Peerage,
 
 210 Constitutional History of England. 
 
 thought of regarding a few hundreds of Norman horsemen 
 and upstarts as their equals simply because, by holding a 
 single estate, these men had become tenentes in capite, or 
 immediate soldiers of the King. Even in the thirteenth 
 century the creation of such a " peerage " utterly failed. 
 Such an informal body would have lacked also the necessary 
 legal qualities ; for the judicial decisions involved not simply 
 feudal customs, but also most difficult questions of the old 
 common law, as well as still more difficult and conflicting 
 questions arising between the " Leges Eduardi " and the 
 existing feudal law. 
 
 For obtaining proper legal decisions, there was accordingly 
 nothing left but a small selection of lawmen. Among the 
 numerous spiritual and temporal vassals a number of suit- 
 able and experienced men might be found, to deal with each 
 individual case. Among more than five hundred vassals, 
 who were, according to the right inherent in the grants of 
 land, certainly in form pares among themselves, the selec- 
 tion of lawmen took of itself the shape of a commission for 
 individual causes. The royal appointment moreover clothed 
 even minor vassals with the requisite authority. The great 
 vassal was obliged to recognize each man so appointed as 
 a jfmfye, even though socially he would never have recognized 
 him as his equal. In truth, the position of the great 
 feudatories among several hundred petty ones was not by 
 any means pleasant, and hence it can be explained why the 
 great lords preferred submitting themselves to the judgment 
 of the King rather than to that of a miscellaneous commission, 
 which never inspires confidence in its administration of 
 justice. Of so little practical value was this " judicium 
 parium" acting by commission, that in later times Magna 
 Charta in its 39th article mentions the "judicium parium" of 
 the " liberi homines," but no especial "judicium parium " of 
 the Crown vassals. To this was added the fact, that the great 
 Norman lords found small pleasure in occupying themselves 
 with legal questions, when such questions did not concern 
 their native law and their feudal customs, but only the local, 
 and legal business of a foreign place. Hence most of them 
 probably preferred the military pomp of the court days to 
 magisterial duties ; to many of the lords the new order of 
 things was so distasteful that they gave up their fair posses- 
 sions on English soil and returned to the Continent. Still 
 less had the kings an interest in constituting formal judicial 
 assemblies from the vassals at court. For two whole centuries 
 they systematically strove against the creation of great feudal 
 curise in the counties, until they attained their object in the 
 statute of Marlebridge by forbidding every appeal to the
 
 The Curia Regis The Great Officers of the Realm. 211 
 
 greater feudal curise. For political reasons, they could still 
 less tolerate the creation of a central " cour de baronie." 
 They much preferred to leave to a pliable administrative 
 justice all decisions, which, in one form or other, could be 
 properly referred to it. Where the immediate royal right to 
 property, or a debitum regis, was concerned, the Exchequer 
 decided with more certainty for the interest of the King ; and 
 since the " sedentes ad scaccariam" were also Crown vassals, 
 and also tried cases in judicial form, and were likewise justices 
 as well versed in the law as the members of a specially con- 
 stituted judicial commission, the position of the Exchequer, 
 as a "judicium parium" could not formally be called in 
 question. The official title, " barones scaccarii" was perhaps 
 originally chosen to express this qualification of its mem- 
 bers to pass judgment upon the Crown vassals. Where 
 the financial system was not concerned, it was in other 
 respects much more convenient to assign the Crown cases 
 reserved to the county courts ; besides, in the earlier genera- 
 tions it was not possible to dispense with the co-operation 
 of the county courts, where local affairs and Saxon customary 
 laws were concerned. The Vicecomes presides over the trial 
 by a royal writ with his lawmen in the ordinary manner, but 
 only in virtue of a special commission : " hsec dominica placita 
 regis non pertinent Vicecomitibns sine diffinitis prtelocutionibus in 
 firma sua" (Hen. I. 10, c. 3). It was not until the time of 
 Henry II. that, together with the system of itinerant judges, 
 the general centralization of royal justice in the staff of the 
 judges took its rise. (2) 
 
 (2) A supreme feudal court was sisted upon (Hen. I. c. 7, sec. 2). The 
 also necessary in England, since the great majority of their law-suits con- 
 Crown vassal can claim to be judged tinned for a long time to be in reality 
 only by his pares. The under vassal settled in the county Court. The 
 can never sit in judgment upon his records of the proceedings at law re- 
 own feudal lord (Hen. I. c. 32). But Corded by Palgrave, vol. ii., show us 
 if on the Continent a standing, or at that, in addition to these, special 
 least a periodical feudal court arose judicial commissions were compara- 
 out of this right, this was only in con- tively rare ; the admission of them, 
 sequence of the different territorial side by side with an established 
 institutions which existed there. In feudal court, would be perfectly inex- 
 England the judicium parinm became plicable. Just as incompatible with a 
 established in consequence of the fixed and stationary " cour de baronie " 
 scattering of the great feudal posses- would be the judicial jurisdiction of 
 sions throughout several counties, so the Exchequer, the structure of the 
 that every Crown vassal found his whole administrative law, the police 
 pares in his own county, and also system of arbitrary amerciaments, and 
 a royal Vicecomes or commissioner all the later incidents, from which a 
 among the vassals of the Crown as the court of peers hardly succeeds in 
 representative of the King. According emerging with endless difficulty and 
 to this arrangement, the county court fluctuations in the course of centuries, 
 was the regular forum of the Crown It is true that this condition of a 
 vassals, and so the personal suit of supreme central jurisdiction wielded 
 court owed by all temporal and spiritual by commissions and the Exchequer 
 vassals of the Crown was strictly in- exhibits a bad judicial system, which
 
 212 Constitutional History of England. 
 
 With these views the historical evidence also tallies. We 
 find the royal judicial control only exercised in the form of 
 commissions, and then only in those comparatively few cases 
 where actions were brought by the most powerful and favoured 
 vassals of the Crown. In all cases of which we have record 
 these commissions are of such a temporary character in 
 respect of their personal composition, form, and principles, 
 that the idea of a permanent court of justice of Norman peers 
 would never have arisen from historical testimony, if it had 
 not been thought necessary to interpolate the missing pieces 
 of evidence from institutions of the Continent and of later 
 centuries. Under William I. a dispute between the Bishop of 
 Eochester and a sheriff was referred to the county court for 
 decision, the Bishop of Bayeux presiding on the occasion. 
 The decision of a suit of the Archbishop of Canterbury on a 
 matter of deprivation of lands, was delegated to a court com- 
 posed, under the presidency of the Bishop of Coutances, of 
 several bishops, Crown vassals, the sheriff, the " whole 
 county " of Kent, and notable persons of other counties. 
 Under Henry I. the Bishop of London receives a royal com- 
 mand, to allow the Abbot of Westminster his right, " other- 
 wise the Exchequer will pass judgment." William I. arrests, 
 at a court day, even his own half-brother without a judicial 
 proceeding. In like manner, in 1137, Stephen arrests his 
 nephew Eoger, the chancellor, and two bishops, " et commisit 
 eos custodiis, donee dederent castella." Reserving a final 
 sentence pronounced by judicial peers, the King thus decides 
 extraordinary cases either in person, or by writ, or by a judi- 
 cial commission delegated for the purpose. Under Henry I. 
 high prelates travel across the seas, to lay litigated cases 
 before the King, and decisions which th King pronounces 
 in Normandy by writs de ultra mare, are still quite usual 
 under Henry II. and Eichard I. For the course of business 
 of the royal judicial commissions the documents reprinted in 
 Palgrave, vol. ii., are so far of importance that they testify to 
 very informal proceedings taken by the commission, which 
 would be inconceivable if at the King's court a feudal tribunal 
 with permanent officials had existed as an established, or at 
 
 together with the dismembered form of remedying internal injuries, the %m- 
 
 the county courts affords an evil reliability of the constitution of the 
 
 picture of the whole. But this picture courts, and the mercenary spirit of the 
 
 truly represents the state of affairs, whole system. The Norman, at all 
 
 which only becomes less gloomy after events, found in the greedy Exchequer, 
 
 Magna Charta. The judicial adminis- and in the fee-exacting district 
 
 tration was, and continued to be, the governor, his countryman, his comrade, 
 
 weakest part of the Norman govern- and his compeer. But how stood it 
 
 ment, in which the formal retention of with the less fortunate Saxon Thane 
 
 the " Leges Eduardi" was incapable of and Ceorl ?
 
 The Curia Regis The Great Officers of the Realm. 213 
 
 least a periodical court of law, which like every feudal curia 
 would have formed for itself a fixed and formal procedure.** 
 
 The negative result accordingly is this, that under the 
 name " curia regis " there existed a wide judicial authority, 
 residing in the King, of personally appointing and consti- 
 tuting the court in numerous important cases; but that 
 this curia regis did not consist of the collective body of all 
 vassals of the Crown, who in their present form constituted 
 no exclusive body ; nor of a definite number of great vassals-, 
 for at that time there was no precedent for a legal separation 
 of the greater from the lesser vassals ; nor of a definite 
 number of great officers of the realm, for the great offices 
 were at that time not so constituted that it was possible to 
 form on their basis a permanent court of peers. 
 
 In this connection it becomes clear how in England the 
 judicial supremacy of the King could extend and become 
 centralized so far beyond all the limits of the Germanic con*- 
 stitutions of the Middle Ages ; how, contrary to all principles 
 of the Germanic ordo judiciorum, the King so often sits in 
 person in court, and personally takes part in giving judg- 
 ment ; how the forms of a rescript procedure by writ arise, 
 and even direct justice by means of rescripts ; how for cen- 
 
 ** As evidence how on the other 
 hand " Constitutional History " re- 
 gards the formation of the aula regis 
 or curia regis, I content myself with 
 referring to the following authorities : 
 Bowyer, " Constitutional, Law," p. 243, 
 and Millar, " English Constitution," 
 vol. ii. cap. 3. " The administration of 
 justice in the final instance, belonged 
 originally to the great counoil. It 
 was the King's baronial court and his 
 tenentes in capite who were the justices 
 and judges " (Allen, in the Edinburgh 
 Review, xxvi. p. 364). " The com- 
 mittee of the Upper House confines 
 itself to accepting an ordinarium 
 concilium of the King, which con- 
 sisted of the great officials and a 
 smaller number of prelates, barons, 
 and justiciarii learned in the law. 
 This select council was at the same 
 time the supreme court, called Curia 
 Regis, which generally met three 
 times a year at Easter, Whitsuntide, 
 and Christmas " (Peers' Report, p. 20). 
 This confusion is due to the fact that 
 later, under Henry II., a body of official 
 justiciarii was formed, and that conse- 
 quently the later legal works of Glan- 
 vill and Bracton, treat of the curia 
 regis in the form of a permanent 
 body. These official judges are erro- 
 
 neously represented as the immediate 
 successors of the great barons in Nor- 
 man feudal euria. Asa proof that such 
 a permanent tribunal of peers had after 
 the Conquest really become formed, 
 fragments of the feudal constitutions 
 obtaining on the Continent are quoted. 
 But what became of this powerful per- 
 manent body afterwards ? The so-called 
 history of English law offers no ex- 
 planation (Parry, " Parliaments," p. 
 xii), (Foss, " Judges," i. 20). Whether 
 it was from the feeling of their incapa- 
 city in the face of the science of juris- 
 prudence that was now beginning to 
 arise, or whether it was from increase 
 of business iu the court, we are told 
 that at all events "the great barons 
 gradually withdrew." Whilst the later 
 barons of the fourteenth and fifteenth 
 centuries seek to gain their political 
 influence by personally taking into 
 their hands, and that with the most 
 unexampled zeal, the conduct of poli- 
 tical and judicial business, by which 
 they finally acquire the privileges of 
 a court of peers, the barons of the 
 twelfth and thirteenth centuries are 
 declared to have begun their political 
 career, by withdrawing from the tri- 
 bunals !
 
 214 Constitutional History of England. 
 
 turies afterwards the highly personal character of the court- 
 tribunal is retained in the Constitution, as that of a tribunal, 
 " ubicunque fuerimus in Anglia." Hence can be explained 
 how Bracton, Fleta, and the later law books do not regard 
 the royal office in the strict formal sense of holding the court, 
 but as a duty of administering justice itself : " nee potest 
 aliquis judicare in temporalibus, nisi solus rex vel subdelegatus 
 (Fleta, i. c. 17, sec. 1), From this justice which is concen- 
 trated in the person of the King, there arises at a later period 
 under Henry II. a court of justice composed of official judges, 
 which, as the records inform us, arose in quite a different 
 way, and not as a continuation of a permanent court of 
 peers. *** 
 
 III. & &urta <EUms consititrrtj as a Supreme (Sobernnunt 
 Council, in which the central conduct of all the State business 
 is comprised, would have developed itself, as in France, from 
 a permanent feudal Court of Law, had such an institution 
 really existed in England. But since the court days of the 
 King are assemblages of pomp, since the royal judicial power 
 is exercised by commissions, the very elements of a formal 
 royal council of the realm were wanting. Granted, that the 
 person and the dignity of the monarch, even in the court 
 festivals, can never be entirely separated from the cares and 
 business of Government ; still a continuous deliberation of 
 the king was also indispensable, apart from the court days, 
 owing to the intricate legal business of a kingdom constituted 
 like England. Hence there existed beyond all doubt from 
 the first, a Consilium Regis> only not in the sense of a fixed 
 body, determined by property or office ; but simply in the 
 sense that the king had at his side a small number of chosen 
 spiritual and temporal vassals to deliberate with him ; a 
 consilium> whose constitution and method of proceeding was 
 still somewhat indefinite, and varied exceedingly according to 
 the character of the King, There existed at every given point 
 of time a sort of conseil du roi, which the feudal language 
 designated as the Curia Regis> but which varied every day 
 according to the will of the king, as according to the letter of 
 the law is also the case with the Privy Council of our own 
 day. (3) 
 
 *** The only correct element in in judicial business. A body of persons 
 
 that fanciful image of an aula regis like this was the natural forerunner of 
 
 is limited to this: that the hearing the justiciarii of later times, and of the 
 
 by commission of the Crown cases " bench " of justiciaries, afterwards 
 
 reserved the method of procedure by formed. Madox (i. 6) is, as usual, 
 
 writs, and the ordinary administration nearest to the truth ; he always quotes 
 
 of the sheriff's office by temporal vas- soberly from the Exchequer records, 
 
 sals of the Crown gave rise to a narrower (3) The curia regis, in the sense of 
 
 circle of prelates and barons, learned in the supreme council, can be just as 
 
 the law, who were generally employed little traced back to a corporate body,
 
 The Curia Regis The Great Officers of the Realm. 215 
 
 That this view is correct is convincingly shown also by an 
 examination into the nature of the great offices, which in their 
 Norman form could as little constitute a permanent council as 
 a permanent court of law. Seven great offices are mentioned ; 
 but they partly lack a permanent character, and are partly 
 limited to very definite and particular business. 
 
 1. & 3Justtctauus totfus ^nglt'ae occurs at an early period, 
 but only as the King's representative, appointed by com- 
 mission for a time, and frequently together with others. For 
 a long time, too, there is no fixed appellation for such a general 
 governor, for whom, according to the taste and style of the 
 writer, sometimes one and sometimes another Latin expres- 
 sion is used. The frequent absence of the kings in Normandy 
 made a representative often necessary. But it was not until 
 Henry the Second's reign that R. de Beaumont, and then 
 E. de Luci, and in 1180 R. de Glanville, were definitely 
 described as " Summus Justiciarius totius Anglise." Richard I. 
 at his accession appoints a bishop and an earl, and associates 
 with them (associat eis in regimine) five barons. Subsequently, 
 on his departure into Normandy, he appoints two other 
 bishops and four barons; from Palestine he adds to these the 
 Archbishop of Rouen. Later, Archbishop Hubert becomes 
 Summus Justiciarius. The patent still exists (15 John) which 
 appointed the Bishop of Winchester " Justiciarius noster 
 Anglise, quamdiu nobis placuerit, ad custodiendam loco nostro 
 terrain Anglise." It was not until the time of Henry II. that 
 the office appears to have been regarded as a Government 
 office ; after Henry III., it ceased to exist, (a) 
 
 as can the supreme feudal tribunal. ifl spoken of. In the year 1067 
 
 It was first of all the minority of William I. appoints Bishop Odo and 
 
 Henry III. that rendered it necessary W. FitzOsbern, custodes Anglise (Hove- 
 
 to create a formal consilium regis den, i. 450). The Saxon Chronicle 
 
 as a council-regency, consisting of says of Odo " Gum rex in Normannia, 
 
 prelates, vassals, and persons learned fv.it iUe primus in hac terra." In 
 
 jn the law. The Permanent Council 1073 W. de Warenne and R. de Bene- 
 
 that was afterwards formed on this facta are denoted as " Vicarii Regis" 
 
 precedent, give rise to an erroneous or " Priecipui Anglise Justiciarii." 
 
 idea of a permanent council as a con- Under William II., Flambard, a chap- 
 
 stitutional department during this lain of the King, is mentioned as 
 
 period. Here, too, it is difficult to " Placitator et Exactor totius Anglise" 
 
 meet such deeply rooted political con^ or " Regiarum opum Procurator et 
 
 victions, otherwise than by giving the Justiciarius." Under Henry I. Bishop 
 
 following survey of the great offices Eoger is called " Justiciarius totius 
 
 which actually existed, and which were Anglise et Secundus a Bege." Under 
 
 composed of a haphazard collection of the same king R. Basset and others 
 
 temporary representatives, and court are also mentioned in a like capacity, 
 
 and feudal offices. In 1153 Stephen appoints his successor 
 
 (a) The Capitalis Justiciarius is so by agreement, " Justiciarius Anglise" 
 
 treated by Spelman (pp. 405-418) that at least Hoveden asserts this, 
 
 a certain continuity in the office although the agreement that had been 
 
 appears to be proved by what he says. concluded contains nothing about it 
 
 But under the earliest reigns, only a (Foss, i. 145). A good survey of these 
 
 temporary representation of the King early general governorships is to be
 
 216 Constitutional History of England. 
 
 2. f)* ^eiusdjallus tottus 
 major-domus, appears to have been from the first an hereditary 
 office. The Norman kings were the richest lords in Christen- 
 dom, and their social position in itself demanded that they 
 should be surrounded with court offices ; some of which, ac- 
 cording to the ideas of that period, were required to be quite 
 as hereditary as the Crown which they served. A seneschal, 
 a marshal, a chamberlain, a butler, were all the more 
 necessary to the royal Crown and dignity, as the great vassals 
 were themselves surrounded by similar officers. Beyond 
 doubt an hereditary major-domus had previously existed in 
 Normandy. But the office was of suc-h little political im- 
 portance, that the seneschal of William I. cannot be identified. 
 Under William II. it is said of Eudo "major-domus regite, 
 quern no& vulgariter Senescallum vel Dapiferum vocamus ; " and 
 an old record quoted in Coke testifies : " Senescalcia Anglise 
 pertinet ad comitivam de Leicester et pertinuit ab antiquo." On 
 the condemnation of Simon de Montfort at the close of this 
 period this hereditary office became extinct, (b) 
 
 3. f)t ILortJ teat Cfjambnlain. The royal household had 
 from the earliest times a separate administration (Camera) 
 for certain estates, dues, payments in kind, and personal 
 expenses of the King. The managers (camerarii) are personal 
 officers of the King, but the place of the first among them 
 (magister camerarius) becomes in accordance with the tendency 
 of all court offices, an hereditary office. Thus Henry I. grants 
 to Alfred de Vere " Magistram Camerariam totius Anglite in 
 feodo hereditario tenendam ; " and so it remained down to the 
 time of Henry de Vere, eighteenth earl of Oxford. But since 
 the hereditary office becomes, as usual, a mere honorary 
 place, there arises for the real administration of the camera, 
 a new personal office of camerarius regis, King's chamberlain, 
 who has also a place of honour in the Exchequer, in which his 
 
 found in FOBS, L pp. 11-20 et seq. (6). With regard to the seneschallus 
 
 The important circumstance is also totius Anglife, cf. the references in 
 
 brought into prominence, that those Madox. Grentismenill is mentioned 
 
 persons whom the historians mention as seneschal of William I., but in 
 
 as summi justiciarii, sign the charters different places other persons. After 
 
 as witnesses, without adding this title the extinction of the office in tlie 
 
 (Foss, i. 85) ; and also, that the title person of Simon de Montfort, it came 
 
 justiciarius actually never occurs in later by re-grants to the house of 
 
 the charters of William I., and very Lancaster, became extinct with the 
 
 rarely in those of William IL (Foss. accession of that house to the throne, 
 
 i. 90). But under Henry II., together and was subsequently only granted on 
 
 with the radical changes introduced the occasion of great ceremonies, 
 
 into the central government, the swm- pro hac vice, notably at coronation 
 
 mus justiciarius appears unmistakably festivals. A detailed description of 
 
 as a formal governmental office (Foss, the royal household under Henry II. 
 
 i. 169). The order from that time is to be found in the Liber Niger 
 
 onwards is given by FOSB, i. p. 170, Scaccarii (edit. Hearne). 
 seq., ii. p. 23, seq.
 
 The Curia Regis The Great Officers of the Realm, 217 
 
 and the Lord Great Chamberlain's under chamberlains, or 
 chamberlains of the Exchequer, are employed as keepers of 
 the chest. Under the Plantagenets this King's chamberlain 
 becomes an active Lord Chamberlain, (c) 
 
 4. S&e Constabulartus tottus &nglta>, Uorfc f^tgi) Constable, 
 Connetable of England, cannot be shown to have been an 
 hereditary office in the earlier Norman reigns. In Normandy 
 it appears to have existed ; in England the creation of such 
 an office was against all the principles of the Government. 
 Constabularii are, it is true, mentioned often enough ; for every 
 command forms a " constabularia," the command of a troop, 
 a castle, a garrison, or even of a ship (constabularia navigii 
 regis). It was not until the time of the concessions in 
 Stephen's time, that a constabularia appears as a family 
 office, and under Henry II., one or two con&tabularise are be- 
 yond all doubt bound up with the possession of a group of 
 knights' fees. But the privileges attached to the office appear 
 to have been only two : 
 
 (a) A post of honour as Great Constable of the feudal 
 militia on its peace footing, with no right to command, but 
 some military jurisdiction, and with the duty of keeping the 
 rolls of attendance and similar administrative functions, 
 which were performed by representatives. Heal commands 
 are always based upon royal commission. 
 
 (/3) A place of honour in the Exchequer with formal duties 
 exercised by representatives. Thus the constabularia arises in 
 the Exchequer, and in the Court of Common Pleas also, after 
 their separation. But the constable is only an active member 
 of the Exchequer by virtue of special appointment. 
 
 In this sense the Bohuns held the hereditary office until 
 1371 ; then it passed through female succession into the 
 royal family; and thence to the Stafford family, in which 
 it became extinct in 1521. (d) 
 
 5. i)e JtlarescalltlS &nQlta?. An hereditary military 
 marshal no more existed originally in England, than an 
 hereditary constable. The conquering army, it is true, had 
 
 (c) As to the Great Chamberlain and have existed, in the person of Milo of 
 
 the Camerarii, c/. the references in Gloucester. His father, Walter, was 
 
 Madox. After the death of Henry de described in the history of an old 
 
 Vere, eighteenth earl of Oxford, the abbey, as " constabularius princeos 
 
 hereditary office became divided owing lailitiep, domus regiee" (Foss, i. 123), 
 
 to female succession ; it exists to tho which description, again, is capable of 
 
 present day with certain fees and various interpretations. A family right 
 
 functions at the royal coronation. to a military command has, as a fact, 
 
 (cZ) As to the Constabularius Anglias, never existed in England. The report 
 Spelman, " Glossarium," pp. 183-186, of the committee of the Upper House 
 gives us a mass of miscellaneous in- conceives the constabularia as corn- 
 formation. Thus much is proved, that prising a sum total of services which 
 it was not until Stephen's time that an the King could at pleasure accept or 
 hereditary constabularia can be said to reject (Peers' Report, iv. 269-270).
 
 218 Constitutional History of England. 
 
 its marshal (E. de Montgomery). But the idea of a family 
 office is not met with until Stephen's time, when (together 
 with Milo of Gloucester as high constable) Gilbert de Clare is 
 mentioned as marshal, and the office is continued from that 
 time to his descendants. On the other hand it appears that 
 from the first an hereditary royal marshal's office had existed; 
 an office, which, considering the importance of the royal 
 stables, could hardly be omitted in a court household, accord- 
 ing to the social notions of those times. The title is certainly 
 very indefinite. Every office for the management or pro- 
 visioning of a number of horses is called a " marescalcia," and 
 we even meet with a marescalcia avium and a marescalcia 
 mcnsursB regis. Beyond doubt, however, a first court marshal 
 existed, whose office consisted in protecting the person of the 
 sovereign, assigning apartments in the palace, and in main- 
 taining the peace of the royal household. This first marshal 
 was called Magister Marescallvs, or simply marshal, and since 
 he bore the name of Marshal as a family name, probably 
 possessed the office as an hereditary one. But since, after 
 that time, the family of the Marshals (court marshals), and 
 the Clares, Earls of Pembroke (military marshals) became 
 united by female succession, thenceforward, either intention- 
 ally or by accident, both offices became blended together in 
 one Earl Marshal. The duties are then threefold : 
 
 i. A post of honour in the feudal militia, coming immediately 
 after the constable, with the duties of keeping the rolls of 
 attendance, etc., which were exercised by proxy. 
 
 ii. A post of honour in the Exchequer with formal duties, 
 also undertaken by representatives. Thus arose the Ex- 
 chequer Marshal, who had the right of taking into custody 
 those from whom accounts were owing. After the later 
 division of the governmental departments, the marshals of the 
 English law courts of to-day proceeded from this office. 
 
 iii. A supreme post at court* which together with the right 
 to fees and the appointment to certain offices* constitutes to 
 this day an hereditary office, (e) 
 
 6. f) Chancellor, dDanttllartus Begfe is the pre-eminent 
 
 (e) On the subject of the Marescallus patent. Here again the existence of 
 
 Anglix, Madox gives us a number of several marshal's offices is perplexing. 
 
 reliable data, which form the basis of Under Henry I., Wigan, the marshal, 
 
 later statements. Later on the anomaly was enfeoffed of certain estates for his 
 
 arose, that the earl's title of the Pern- marshal's office. A second, apparently 
 
 broke family (at a time when this a lower marshal's office, we meet with 
 
 was a very lofty and rare title in the in the family of Venuz, which according 
 
 land), bound up with their hereditary to a later statement laid claim to the 
 
 office of court marshal, became united " magistra marescalcia," but is said to 
 
 under the title of earl-marshal, which have had its claim rejected (Charta 
 
 is met with as early as Henry III., I. Job.). 
 and is used in later times in letters
 
 The Curia Regis The Great Officers of the Realm. 219 
 
 spiritual personage of the court of the Middle Ages ; as is 
 also his office in the court of the Queen, in that of the dig- 
 nitaries of the realm, and great vassals, in contradistinction 
 to whom he is called the "Regis Cancellarius." His original 
 position is that of a first chaplain, Chef de la Chapelle du 
 Roi. But as all writing was originally in the hands of the 
 clergy, the chancellor, in his capacity of private secretary, 
 conducts the correspondence of the King with the Exchequer, 
 the under-ofncials, and private persons. He is accordingly a 
 court chaplain, in later times generally a bishop or an abbot, 
 and has a seat in the Exchequer ; from the time of Henry II. 
 he becomes a principal personage in the formation of the 
 administrative departments. His office is and remains a 
 revocable office of trust, and is sometimes granted in return 
 for a fine, in the amount of which the increasing importance 
 of the office is apparent. As early as Stephen's time, a 
 chancellor pays 3000 marks for his office. In 7 John, Walter 
 de Grey pays 5000 marks for the office of chancellor for his 
 life a method of grant, however, which was soon discon- 
 tinued. Occasionally a vice-chancellor is also mentioned ; 
 and further, a Clericus Magister Scriptorii, who acts also as 
 Clerk of the Exchequer ; a Scriptor Eotuli de Cancellaria, 
 and others. (/) 
 
 (/) The Chancellor, Cancellarius 
 Eegis, is treated of in detail by Spel- 
 man (p. 127-135), who gives a list of 
 the chancellors down to James I. 
 Here also the pedigree of the office 
 has been traced too far back into the 
 past, for the capellani regis of the 
 Anglo-Saxon period are represented 
 as chancellors of the realm. It was 
 not until the last generation of the 
 Anglo-Saxon period, that the Capel- 
 lanus, Sigillarius, Notarius Regis, is 
 so frequently mentioned that the ex- 
 istence of an established secretarial 
 department in the government can be 
 assumed (Kemble, Anglo-Sax, ii. 97). 
 The Great Seal which is delivered to 
 
 the chancellor, and has later its own 
 history, dates from Eadward the Con- 
 fessor. Hardy (1843) was the first to 
 publish an exact table of the Lord 
 Chancellors and Keepers of the Great 
 Seal, and Lord Campbell to write 
 their lives (London, 1845-1847). A 
 list of the earliest chancellors has been 
 carefully compiled by Foss (" Judges," 
 vols. i. and ii.). Under the early Nor- 
 man reigns, the chancellor still ap- 
 pears as an official of the second degree, 
 whose signature occurs after those of 
 the bishops and earls, and having a 
 seat among the barons of the Exche- 
 
 quer. The chancellors of this early 
 period were advanced in later times 
 to bishops' sees. It was, however, 
 already an important office ; one in 
 which the chancellor, as cabinet-coun- 
 cillor, generally managed all that 
 related to the papal throne, and trans- 
 acted such cabinet business as re- 
 quired a knowledge of law. By the 
 middle of the period, the position had 
 become so much enhanced in dignity, 
 that the most eminent bishops, and 
 even archbishops, fill the office of 
 chancellor. Nevertheless, the chan- 
 cellor remains a member of the Ex- 
 chequer, and under Henry III., also 
 exercises the functions of an itinerant 
 judge. Under Henry III., a chancellor 
 was once appointed to whom the King 
 either could not or would not entrust 
 longer the conduct of the business 
 appertaining to the office ; and so the 
 expedient was resorted to of appoint- 
 ing a " custos sigilli," who discharged 
 the principal business, without receiv- 
 ing the title of chancellor (Foss, ii. 
 137, seq.). From this period there 
 dates also a distinction, which can 
 never be clearly established, between 
 a chancellor, and a " Keeper of the 
 Great Seal." A vice-chancellor is 
 also met with once incidentally under
 
 220 Constitutional History of England. 
 
 7. Si)C ^rtclSUter, generally a cleric, appears under Henry 
 II., and even earlier, as one of the barons of the Exchequer, 
 among whom he is especially singled out. Bishop Nigel 
 obtained the office for his son, the author of the " Dialogus," 
 in return for a fine of 400. In its later form it increased 
 in importance together with the finances, so that at last it 
 culminated in the office of Prime Minister of the country, (g) 
 
 A survey of these great offices shows us that they were 
 neither contemporaneous nor homogeneous. They rather 
 point decidedly to a concentration of authority in the head 
 of the Government. When deliberating upon important 
 military affairs, the King would certainly not pass over the 
 high constable ; when dealing with foreign affairs, especially 
 the relations to the papal see, he would not easily dis- 
 regard his chancellor, or the primate ; in financial questions, 
 he would not overlook his treasurer. But all the historians 
 mention only single individuals as influential counsellors, and 
 these, too, are described as being constantly changed. The 
 important offices have, on the whole, so much the character 
 of a revocable commission, and the few hereditary offices 
 have relatively such unimportant actual duties attached to 
 them, that a permanent constitutional body could not be 
 created out of them. The assumption of the existence of a 
 permanent royal council, under the name of a " Concilium 
 Ordinarium," or " select council," is rather an anticipation of 
 the result of circumstances which only developed in later 
 times, in the order which I will proceed to state. 
 
 Under William the Conqueror everything indicates a 
 
 Henry II. (Foss, i. 160). From this, i. Grand Serjeanties, corresponding 
 
 under Richard I., a formal official posi- with the higher household ministers of 
 
 tion is created (Foss, ii. 21); but one the Continent, high steward, great 
 
 which again ceases. The clericus can- chamberlain, constable, marshal, butler 
 
 cellarii, as representative of the chan- and others, and which are invariably 
 
 cellor in the Exchequer, is mentioned combined with the tenure of knights' 
 
 in the " Dialogus de Scaccario," i. 6, fees. 
 
 as being even then an important officer ii. Lower Serjeanties, corresponding 
 
 (3) The Thesaurarius Eegis is de- to the lower ministers in tlieir various 
 
 scribed in the complete accounts given degrees, and combined, not merely with 
 
 by Madox, to which we shall again knights' fees, but also with other pos- 
 
 refer in the following period. Defi- sessions which were free of service and 
 
 cient as the information respecting soutage. 
 
 these great officials is as a whole, yet The system of management of the 
 
 this much is clear, that the persons Norman kings, however, did not allow 
 
 who really administer the business of serjeanties to be created in too great 
 
 the Government, and exercise an im- numbers, and conceded to them neither 
 
 portant influence upon it, are revo- considerable possessions nor an in- 
 
 cably appointed servants of the King, fluence upon the government of the 
 
 or officials appointed by commission. State. From political reasons it is 
 
 The hereditary offices have only a probable that in the course of the 
 
 subordinate position in the financial, Middle Ages, more serjeanties were 
 
 military, and judicial system, and are turned into fees owing military service, 
 
 not so numerous as in other countries ; than new ones created. 
 they are divided into two classes :
 
 The Curia Regis The Great Officers of the Realm. 221 
 
 " gouvernement personnel," rendered necessary by the complete 
 change of the whole political system, in which the King feels 
 himself strong enough to leave behind him in the times of his 
 absence some great vassal as governor in his stead. 
 
 Under William II. this was avoided, and a royal chaplain 
 was impowered to conduct the business of the State, in which 
 the oppressive fiscal system and the firmly established 
 bureaucratic institutions of the Exchequer become developed. 
 
 Under Henry I., and the long rule of his grand-justiciary, 
 Bishop Eoger of Salisbury, the Exchequer became established 
 as a permanent general directorium ; which may be compared 
 with the German central military and demesne chambers, and 
 which was at that time the only permanent central department 
 of State (curiarum omnium antiquissima), the other business of 
 the central government being conducted by the King, with 
 counsellors whom he frequently changed. 
 
 Under Henry II., the Exchequer is further developed into a 
 department, organized in corporate fashion, with periodic 
 sittings for the financial administration and similar business, 
 and into a corporate royal court, while the other business of 
 the central government is still carried on by the King with 
 counsellors whom he frequently changes. 
 
 Under Henry III. a government council was first formed as 
 an administrative body for the discharge of the whole business 
 of the State, which formed a basis for the administrative 
 nature of the permanent councils of later times.*** 
 
 *** Though in direct contradic- vassals, or something more or less, 
 
 tion to the character of the offices, it Even Parry, who in other places is so 
 
 is almost impossible to eradicate the clear-headed, is unable to keep clear of 
 
 view which insists upon a permanent this traditional method of regarding 
 
 royal council in this period. So soon things. " The first was the King's 
 
 as the King discharges the current Ordinary Council, consisting of pre- 
 
 business of Government with a small lates, earls, and barons, selected by 
 
 number of State officials, the existence himself, and assisted by the chancellor, 
 
 of a properly constituted " Concilium chief justiciary, the judges, and other 
 
 Ordinarium" or "Select Council," is officers of State. It was not only a 
 
 immediately assumed. So soon as he Council of State, but the Supreme 
 
 appoints a judicial commission, this is Court of Justice, and met three times 
 
 again at once taken to be a " Concilium every year at the great festivals of 
 
 Ordinarium," either identical with the Easter, Whitsuntide, and Christmas ; 
 
 former or independent of it. If the sometimes at Michaelmas, and at other 
 
 King only once in deliberation with a times also by adjournment, 
 
 meeting of counsellors, composed of " The Magnum Concilium was a 
 
 prelates and barons, settles important larger assembly of persons of rank and 
 
 measures, this is regarded as a " Mag- property, convened on extraordinary 
 
 num Concilium," almost identical with occasions. 
 
 the Upper House of later times. Where " The Commune Concilium was a still 
 
 historians speak of any great gather- more numerous body, collected together 
 
 ing, on the occasion of a festival or of for more general purposes "(Parl. p. 10). 
 
 a critical state of the realm, a " Com- It is difficult altogether to form any 
 
 mune Concilium" is made out of it; definite ideas from this. Similarly, 
 
 which is either supposed to compre- Hallam (Middle Ages, ii. c. 8, note 13) 
 
 hend the collective body of the Crown distinguishes between a Commune Con-
 
 222 Constitutional History of England. 
 
 CHAPTEE XVII. 
 
 transitional ^euofc Itinerant ^justices ^justices in 23anco 
 Origin of Estates of t&e Ulealm. 
 
 HOWEVER strong the Norman State, by its institutions, might 
 seem to its contemporaries, yet the weakness of a purely 
 personal Government, which was ever losing its support at 
 the death of the ruler, soon began to be apparent. A 
 recognized and duly entitled monarch, and a powerful person- 
 ality, are the necessary conditions of such a government. 
 Both these elements were wanting in Stephen, whose usurpa- 
 tion of the throne brings about a conflict which, with few 
 pauses, fills up the whole of his reign. It is in England the 
 period of sword law and similar to the interregnum in 
 Germany. The poor rural population were compelled to do 
 villein services, not for royal castles, but for the strongholds 
 of the petty lords. " Erant in Anglia fere tot tyranni, quot 
 domini castellorum." A principal condition of the tardily 
 concluded peace was the razing of the new fortresses, the 
 number of which amounted to 126, and according to other 
 accounts to 375, or even to as many as 1115. We can 
 understand the satisfaction with which> after such a state of 
 things, the people hailed the undisputed succession of 
 Henry II. to the throne, and the concord which subsisted 
 between him and his realm. 
 
 Henry II. seems from the first to have found the best 
 security for the new throne in reforms affecting the administra- 
 tion of the realm, which, especially after the commencement 
 of his conflict with the Church, are of a sweeping kind. 
 About a hundred years after the Conquest three changes are 
 almost simultaneously introduced, which, although they have 
 
 cUium, consisting of all the Crown- ment has brought later historians also 
 
 vassals ; a Select 'Council for judicial into the difficulty how they are to 
 
 and administrative purposes ; and a denote the relation of that permanent 
 
 Court of King's Bench, which is said to official body, the Exchequer, to the 
 
 have separated itself from the Select so-called Curia Regis. Madox (i. 154) 
 
 Council in Henry II.'s reign (cf. also expresses his views with great caution, 
 
 Stubbs: Index, s. v. "Council"). The calling the Exchequer a portion, or a 
 
 error lies in the pedantic interpretation limb, of the Curia, a sort of Subaltern 
 
 which would create constitutional Court; which is correct, if under the 
 
 bodies out of a government with term Curia we understand the whole 
 
 changing counsellors. The shapeless central government in its shapeless 
 
 form of the Norman central govern- state.
 
 Origin of Estates of the Realm. 223 
 
 been already separately treated of in considering the develop- 
 ment of the prerogative rights, must be here more .narrowly 
 examined in connection with one another ; (1) the centraliza- 
 tion of the administration by means of itinerant justices; 
 (2) the institution of an official bench of justices, as a royal 
 court; (3) the first beginnings of an estate of the realm 
 formed by the greater barons. 
 
 I. Qfyt institution of itinerant justices was based in an almost 
 equal degree upon the needs of the political government, and 
 upon a concession made to the most pressing interests of the 
 nation. The administration of the counties by the Vice- 
 comites had from the first suffered from grave abuses. For 
 this reason even under Henry I. the Vicecomites had begun to 
 be relieved of certain judicial business by commissioners sent 
 from the royal court. Reliable information on this point is 
 given us by the oldest extant Exchequer roll, the date of which 
 (according to Hardy's researches) may be safely assumed to 
 be 31 Henry I. (1131). This rotulus declares what sums those 
 living within the jurisdiction of the court owed as a result 
 of the pl&cita which the commissioners have held; e.g. 
 " Robertus filius Toll, debet XXX marcas argenti de placitis 
 G. de Clinton." The total number of the commissioners who 
 were appointed was nine, among whom are three court lords, 
 whose names also occur in the administration of the Ex- 
 chequer, and as King's counsellors : Ealph Basset, Richard 
 Basset, and Geoffrey de Clinton, The remaining six are 
 greater vassals of the Crown, residing in the neighbourhood of 
 the counties for which they were associated as commissioners 
 with one of the three first-named. The sums, which were to 
 be paid in to the Exchequer are always only credited to the 
 name of one of them ; and it is never proved that several 
 commissioners were engaged at one and the same time. We 
 can accordingly deduce from these entries, that towards the 
 end of the reign of Henry I. an innovation was introduced, in 
 no longer assigning the Crown cases reserved (placita regis) 
 by commission to the sheriffs, but in appointing a special 
 commission to deal with them, which was in the prescribed 
 manner so distributed among the counties, that a royal com- 
 missioner instead of the Vicecomes held court with the men 
 of the county. Under Stephen, this institution, like the whole 
 central administration, had indeed come to a standstill. But 
 all the more pressing was the necessity which Henry II. 
 found for appointing more vigorous commissions, since, under 
 Stephen's reign, the sheriffs had been appointed by the two 
 claimants to the throne from among their partisans, and the 
 presentation of accounts and inspection of the Exchequer, 
 had both fallen into abeyance. Now begins a much more
 
 224 Constitutional History of England. 
 
 comprehensive system of itinerant barbnes or jiisticiarii ; 
 existing both for administrative and judicial purposes, so far 
 as these could be separated from one another under the 
 Norman form of government. (1) 
 
 A system of delegation was very necessary for government, 
 and especially for financial purposes, for in the confusion of 
 the times, the royal rights and dues had suffered from 
 numerous usurpations. A uniform rating of the tenants for 
 the tallages and similar impositions was difficult to compass 
 by means of partial and corrupt sheriffs, the appeals against 
 whom had become more and more frequent and pressing. At 
 the same time these commissions served for a periodical 
 scrutiny of the manner in which the Vicecomites discharged 
 their office. To a still greater extent, as early as 15 Henry 
 II., we find commissions of prelates and barons deputed with 
 definite articuli for the purpose of inquiring into abuses of 
 office committed by the sheriffs, their under-bailiffs, the 
 manorial stewards, the foresters, and others. As delegates 
 of the Exchequer, these commissioners are called "barones 
 errantes." With these financial schemes military objects 
 could also be combined, which partly affected the castles and 
 their garrisons, and partly other temporary measures. After 
 the year 1181 the more permanent business of organizing the 
 national militia was added to their duties ; and now that the 
 old system of the Saxon national defence was again revived, 
 its uniform enforcement could be secured by means of itinerant 
 commissioners. These commissioners had to gather together 
 and review the men liable to military service (assisa de armis 
 habendis), and to inflict fines on those who neglected to 
 appear. 
 
 Still more general was the need for commissioners for 
 judicial purposes, and especially for the administration of 
 
 (1) The system of itinerant justices results are the following. Under 
 
 has no other origin but the practice of Henry I. the Magnus Itotulus, 31 
 
 the central administration, and the de- Henry I. only gives a limited appli- 
 
 creeing right of the Sovereign, and cation of placita regis. During the 
 
 hardly any documentary basis but the first eleven years of the reign of 
 
 notices contained in the Exchequer Henry II. (as under Stephen), a regular 
 
 accounts. Upon this is grounded the institution of the kind cannot be proved 
 
 summary which Madox has compiled to have existed (Foss, i. 171). It was 
 
 with great care. The later law books the ecclesiastical dispute with Thomas 
 
 speak of the justiciarii errantes, as Becket which first appears to have set 
 
 a customary institution, e.g. Bracton, the great and popular reforms in 
 
 iii. c. 11-13. A review of all the motion. From 1166 down to the close 
 
 various notices is contained in the of this reign, the itinerant commis- 
 
 treatise of Edward Foss, " The Judges sioners form a regular chain, with 
 
 of England " (London, 1848 seq.~), the scarcely a break (Foss, i. 174). The 
 
 first two volumes of which deal with objects of the judicial administration 
 
 this period. The author has collected come prominently forward from 12 
 
 from this era personal notices of no Henry II. 
 fewer than 580 justiciaries. The main
 
 Origin of Estates of the Realm. 225 
 
 criminal justice. While the land still suffered from the effects 
 of sword law, the right reserved to the sovereign of calling up 
 important criminal cases before him at his court, took an- 
 other form. The King's peace had to be repeatedly pro- 
 claimed ; and where the sheriffs lacked the power or the will 
 to act, it had to be enforced by commissioners, who often 
 proceeded in a summary way. From this point of view, all 
 crimes of violence on life and limb, with rebellion, man- 
 slaughter, arson, robbery, abduction, forgery, " et si quae sunt 
 similia " were actually brought " before the royal court " 
 (Glanvill, i. c. 2) ; that is, the reservation of the royal right 
 of intervention had produced a periodical commission of 
 criminal justices delegated from the royal court. At the 
 same time, the Hundred's duty of presentment was re- 
 organized, and the itinerant commissioners were entrusted 
 with the guidance of the parochial committees formed for 
 this purpose, according to uniform instructions, capitula 
 coronse. 
 
 Itinerant commissioners were also employed for the pur- 
 poses of civil actions. The reason for this lay in the 
 nature of the law which was to be applied. The judgments 
 of county and manorial courts touching the inheritance of 
 fiefs, form of dower, and the rights of the feudal lord with 
 regard to his under-vassals, which were still considerably 
 divergent, required to be reduced to a definite uniform 
 system ; and public policy likewise demanded the settlement 
 of questions affecting the status of the knighthood and the 
 freeholders (qusestiones status). From these and other reasons, 
 an increased number of civil actions are now transferred to 
 the court (Glanvill, i. c. 8) with the general reservation 
 " quodlibet placitum de libero tenemento vel feodo potest rex 
 trahere in curiam suam, quando vult " (c. 5). After the way 
 had once been opened, a flood of such actions streamed to- 
 wards the court, which was then opened to them only on 
 payment of a fine. A very usual sum was five marks; we 
 meet once with one mark for an action brought in respect of 
 a hide of land; and then, again, a hundred marks for a suit 
 brought for a manor ; 100 for an action between the abbot 
 and the citizens of Whitby, etc. Sometimes the King grants 
 to persons of rank or to monasteries the privilege that they 
 should be prosecuted at no other place but before him or his 
 chief justice. Hand in hand with this goes the alteration 
 made in the procedure and rules of evidence in the civil action, 
 which has been touched upon above, according to which, in 
 actions relating to property, and hereditary and possessory 
 suits, the parties were allowed to choose whether the case 
 should be determined by a committee of the lawmen 
 
 Q
 
 226 Constitutional History of England. 
 
 (recognitio), instead of by the duel. As being a deviation 
 from the ordinary law of testimony, this needed a special writ, 
 which was issued on payment of a fine, but at first only to 
 " well-affected " knights and freeholders. 
 
 This system of itinerant commissioners, employed for such 
 diverse purposes, remained for a long time in a state of fluc- 
 tuation. Madox has collected the names of the commis- 
 sioners of 12-13, 15-17, 20-26 Henry II., which occur in the 
 rotuli. But it is difficult to obtain a clear view, as for long 
 their appointment depended upon momentary needs. But 
 the aims of the administration of justice become more and 
 more definite, and financial and military ends and objects 
 are associated with it in a more and more temporary manner. 
 Sometimes we find commissioners who restore order in a 
 certain place (justices of oyer and terminer) ; sometimes 
 general criminal commissions (justices of gaol delivery) ; 
 sometimes special justices of dower, justices of assize ; and 
 then again justiciarii ad omnia placita, orjusticiarii itinerantes 
 for general purposes (Braeton, iii. c. 11-13), At the Assize 
 of Northampton, 22 Hen. II, (1176), the institution has 
 attained a more definite form, by the division of the country 
 into six circuits, which even then comprised the same 
 counties as to-day. Criminal as well as civil actions were 
 assigned to the commissioners ; as also were the superintend- 
 ence of the procedure by presentment, the guarding of the 
 royal rights on demesnes, escheats, feudal dues, feudal ward- 
 ships, etc. This arrangement, although it had been settled 
 with the advice of a great assembly of notables, was again 
 altered in 25 Henry II., and a new division into districts 
 attempted. In the year 1194 new commissions were again 
 appointed with an extended employment of juries in civil and 
 criminal cases, and with authority to collect the tallages and 
 crown dues. Finally, the division into six circuits has lasted 
 down to our day ; though for a long time general and special 
 commissions, regular commissions, and those appointed 
 ex tempore, continued to exist side by side, (a) 
 
 (a) A new epoch is introduced by of obtaining judgment by a judicium 
 the extraordinary Assize of North- parium. Palgrave (i. 295) assumes 
 ampton, 1176 ; at which the counties (and, for the beginnings of the insti- 
 were distributed into six circuits, and tution, probably rightly enough) that 
 three jttsticiarii appointed for each the itinerant justices were only corn- 
 circuit. Here evidently a new organi- missioned to examine into the facts, 
 zation was intended, for which it was whilst the judgment was reserved to 
 considered once more advisable to obtain the King at court. The peculiar form 
 the assent of the meliores terras. Allow- of Norman court justice had, however, 
 ing for all possible expansion of the brought about in England a submission 
 royal sovereign rights, still the insti- of the parties, which found no parallel 
 tution of itinerant commissioners con- upon the Continent. A royal special 
 tained a dangerous innovation upon commissioner now brought with him 
 the Leges Eduardi, and the principle the authority of the King himself ;
 
 Origin of Estates of the Realm. 
 
 I'll 
 
 The immediate management by the court of such an enor- 
 mous amount of business was sure to exercise an important 
 influence upon the form of the central government. Hitherto 
 the Exchequer had been the only permanent magisterial de- 
 partment with organized offices ; all other national business 
 was deliberated upon by informal " conseils," and partly dealt 
 with by judicial commissions in the usual forms appointed 
 for the purpose. In this informal manner a permanent 
 creation arises. 
 
 II. This was the origin of a GToutt of Htng'S ifottrf) under 
 the general name of Curia Regis a second permanent official 
 body existing side by side with, and to a great extent blended 
 with, the Exchequer. The judicial cases reserved for the King, 
 which had been in earlier times assigned to the Exchequer 
 or a county court, were now as a rule dealt with by itinerant 
 
 wheuce an appeal to the Curia Regis, 
 that is, to the supreme appointing 
 power, was considered useless. Hence 
 can be explained how commissioners 
 in such early times not only acted as 
 expounders of the law, but themselves 
 gave judgment, and that (at all events, 
 to judge by its results) "their sentence 
 was considered final. Even in some- 
 what early times the commissions of 
 justices appointed to pronounce final 
 judgment on crimes in the name of 
 Curia Regis ran, " ad audiendum et 
 terminandum." If a number of county 
 justices were associated with these 
 commissions, this was but a reminis- 
 cence of the old position of the witan, 
 and soon became a formality. The 
 same fate befel it that appeared, in 
 later times, in the decay of the institu- 
 tion of Schoffen in Germany. But if 
 this condition of things, which had arisen 
 from the necessity of justice, was to 
 become a permanent political institu- 
 tion, it can easily be conceived how 
 even an absolute government deemed 
 the assent of the Crown vassals advis- 
 able, especially in those days of church 
 quarrels. We can perceive, neverthe- 
 less, how little the resolutions of such 
 assemblies of notables possessed the 
 binding force of positive rules of law. 
 Within three years, at an assembly 
 held at Windsor (25 Henry II.), those 
 resolutions were considerably altered, 
 although at this assembly only a 
 number of prelates and Crown vassals 
 are mentioned after the ordinary fashion 
 of royal councils (Parry, Parliaments, 
 16). The country is now divided into 
 four circuits, and the constitution of 
 the commissions altered (Foss, i. 171). 
 
 In later times, we find, as a rule, at 
 the head of the list of the itinerant 
 justices, such ordinary justiciarii as 
 are at the same time members of the 
 bench of the King's court which had 
 been established in the meantime. 
 Then follow those who were raerejusti- 
 ciee errantes, frequently under-officials, 
 who in later times were promoted to 
 be regular justiciarii. Landowners 
 and clergy of the county were often 
 added to their number, especially where 
 it was a question of collecting tallages 
 and other impositions (Foss, i. 33i, 
 335). Under John the circuits were 
 interrupted for several years, especially 
 when the ting held circuit in person, 
 in which case he was accompanied by 
 a few justiciarii (Foss, ii. 27). Under 
 Henry III., a bishop or an abbot, and 
 one or two ordinary justiciarii of the 
 " bancum " are generally at the head of 
 the commission ; the others are greater 
 or lesser vassals of the Crown, or clergy 
 of the county (Foss, ii. 191, 192). In the 
 middle of the thirteenth century, the 
 law-book of Bracton gives us the for- 
 mula of a special writ issued for the 
 appointment of an itinerant justice : 
 " Constituimus vos justitiarium nostrum, 
 una cum dilectis et fidelibus nostris, 
 A. B. C. ad itinerandum per comitatum 
 W. de omnibus assists et placitis, tarn 
 coronas nostrx quam aliis, secundum 
 quod in Brevi nostro de generali sum- 
 monitione inde vobis directo plenius 
 continetur.'' The manner in which the 
 new institution of recognitiones and 
 the courts of presentment were com- 
 bined with the itinerant justices, has 
 been described above.
 
 228 Constitutional History of England. 
 
 commissioners ; who might be members of the Exchequer, 
 and also might be other prelates and barons, learned in the 
 business of the courts, and assisted by under-officials of the 
 Exchequer or other clerks. These commissioners found 
 themselves on the one hand continually obliged to refer to 
 the Exchequer, with which they remained connected on 
 account of the fees, fines, escheats, forfeitures, tallages, and 
 other financial and military business ; and on the other hand, 
 the itinerant justices had numerous cases to determine for 
 which they had to frame new maxims as well as principles to 
 determine both the procedure and the law which was to be 
 applied. Under Henry IL there was instituted for these 
 weighty juridical questions a sort of bench or bancum, consist- 
 ing, it appears, at first of itinerant justices, and to a certain 
 extent identical with the functionaries of the Exchequer. 
 The summus justiciarius is the head of the Exchequer and 
 of the bancum, and there existed for a long time a similar 
 arrangement to that which still exists in England : viz. various 
 magisterial departments composed of the same persons as 
 functionaries. The same person can be in his capacity of 
 itinerant justice, a justice in Eyre ; as a member of the 
 Exchequer staff, he is a baron of the Exchequer ; as a member 
 of the King's court he may be a justice in banco. Hence it is 
 difficult to determine the exact year with which the formation 
 of a bench of justices began. In any case, the authority we 
 possess is a decree of 24 Henry II., according to which five 
 commissioners were appointed, "who shall not journey 
 through the land, but shall hear pleas at court." The busi- 
 ness was so distributed that the great mass of it was dis- 
 charged by the itinerant justices; but the more important 
 cases were dealt with by the judicial bench, that is, either in 
 the Exchequer or in the King's court in banco. (2) 
 
 (2) The origin of a Court of King's for judicial business. Such commis- 
 
 Benoh is in like manner a creation of sioner-justices were formerly no more 
 
 the administrative practice. It first frequently found than were permanent 
 
 appears in the administrative records, judicial commissions. The summus 
 
 is then recognized in the law books as justiciarius, too, does not become an 
 
 an existing institution, and is finally ordinary officer of the realm until the 
 
 traced back to common law. The time time of Henry II. As late as 1165 and 
 
 of its origin must be accordingly deter- 1177, Hoveden terms the justices ap- 
 
 mined by a kind of circumstantial pointed by the King, quite indefinitely 
 
 evidence, to which the word justiciariv.8 " fideles" "familiares," and " barones 
 
 gives us a clue. Formerly every royal curias" There certainly existed a closer 
 
 commissioner was so called, e.g. those circle of prelates and barons about the 
 
 who were -entrusted with the drawing person of the King, who as being men 
 
 tip of Domesday Book, the royal learned in the law were habitually 
 
 commissioners in the army, and even employed in the Exchequer and on 
 
 ship captains (justiciarii navigii regie). commissions ; but they formed no 
 
 It was not until the time of Henry II. " bench," and had no permanent offices, 
 
 that the term received the more special The assizes of Clarendon, that is, the 
 
 meaning of a permanent commissarius year 1164 or 1165, appear here, too, to
 
 Origin of Estates of the Realm. 229 
 
 During the second half of the reign of Henry II. we arrive 
 at the following definite results : 
 
 1. A considerable number of persons form a permanent 
 body of justices, under the title oijusticiarii, who are so^ styled 
 officially in the royal rescripts. Soon after Henry II., royal 
 patents addressed to the " Chief Justice and his other justices 
 of England " are met with, which formally express the official 
 character of the ordinary justiciaries. The chancellor, too, 
 acts as justiciary, as do occasionally also all the great officers- 
 of State, whom we find among the itinerant justices acting as 
 heads of the commission. That the clergy, being learned in. 
 the law and in the discharge of business, are much and con- 
 stantly employed, is shown by a list (Foss, i. 161), in which 
 occur amongst the chancellors and justiciaries of the period 
 the names of five archbishops, eight bishops, three abbots, 
 eight archdeacons, and two royal chaplains. From the time 
 of the first formation of the Bench onwards, its members 
 appear as a higher class of ordinary justiciarii, taking pre- 
 cedence of those who are merely justices itinerant; but the 
 latter were afterwards frequently promoted to be ordinary 
 members of the Bench, (a) 
 
 2. That at the close of Henry II.'s reign there was a perfect 
 system of procedure before justices in banco at the King's 
 court, is shown by Glanvill's work. This procedure had 
 attained to such a settled and scientific perfection, that an 
 established practice of the judicial body must have for some 
 time existed. With this King's court, the momentous reforms 
 in the procedure of the civil action (recognitio) have been 
 associated by Glanvill;. and indeed they were connected by 
 him with the same disputes touching possession, ownership, 
 and inheritance, that were simultaneously decided in Nor- 
 
 be the turning point. With this data carefully collected in Foss, vols. i. and 
 begin the regular lists- of the itinerant ii., but a comparatively mixed employ- 
 justices. The necessity of issuing ment of the judges is still continually 
 uniform instructions to these commis- manifest. Thus, for instance, once 
 sioners, and the necessity for. a mutual under Henry II., the chancellor and 
 communication of, and accounting for the constable together hold the assizes 
 the legal principles to be applied, soon of Kent; under Richard I. the chief 
 led to the formation of a. bench, in justice, Archbishop Hubert, presides 
 which could be found the necessary at the county assize, and his col- 
 uniformity in practice. A further clue leagues on the commission deal with 
 to the date is given by the fees which the placita coronas, disseizins, inheri- 
 are paid by suitors for license to bring tance cases, etc. The royal decree of 
 their plea before the Curia Regis ; the 24 Henry IL, according to which five 
 oldest instances of such fines are found commissioners are appointed " qui a 
 in the Exchequer rolls, 15 Henry II. curia non recederent" but whose duty 
 (Madox, i. 96, 429). Everything points it is to hear pleas at court (Bened. 
 to the period 1165-1179 as that in Petr. 266, A.I). 1178), contains the 
 which the Court of King's Bench origin, or at least is an evidence of the 
 originated. prior existence of a Bench of Judges, 
 (a) The personal accounts have been
 
 230 
 
 Constitutional History of England. 
 
 mandy by committees of the vicinetum, committees which had 
 already long existed there as customary enquetes. (b) 
 
 8. According to an opinion formerly prevalent, a civil 
 division for the communia placita separated itself from the 
 royal court in banco in Eichard the First's reign, so that 
 at that early time a double judicial body is said to have 
 existed for the hearing of cases, a bancum regis or royal 
 court proper, and a bancum commune. The chief authority for 
 this assumption was Coke's preface to his Eighth Eeport, 
 which in making this statement contradicts Lord Bacon. 
 The careful researches of Foss (ii. 161-179) are, however, 
 sufficient to rebut this view, (c) 
 
 In the whole formation of the King's court in banco, we 
 must not overlook an original and long enduring connection 
 with the Exchequer ; which can be explained by the fact, that 
 the Exchequer had long existed as a magisterial department, 
 in which the procedure of the central administration had 
 become pre-eminently perfected ; as well as by the fact that 
 the central government still employed the same persons, in 
 varied capacities, sometimes for financial, and sometimes for 
 judicial purposes. This continuous connection is shown in 
 the following points. 
 
 (b) For the procedure cf. Glanvill, 
 vii. 9. sec. 7; xiii. 15, sec. 6; ii. 6, sec. 
 4 ; v. 4 ; Spence, Equitable Jurisdiction, 
 i. 101, 112, 128. Since the acceptance 
 of ordinary civil suits at court, and the 
 allowance of a recognitio, are royal 
 favours, and since in all cases reserved 
 the ruling of the court presupposes a 
 personal act of the sovereign, the civil 
 action in the curia assumes almost 
 the form of a Botnan procedure by 
 rescript. The plaintiff must sue out a 
 writ for this purpose, for which he has 
 to apply to the secretary of the King, 
 the chancellor. In the regularly recur- 
 ring cases, the writ soon became a 
 matter of course, and was to be ob- 
 tained from the clerks of the Ex- 
 chequer on payment of a fee. The 
 initiative writs now became forntulcB 
 actionum, obtained through the inter- 
 position of the chancellor as officina 
 justicix. Through the association of 
 the itinerant justices with the county 
 courts, a new ordo judiciorum arose; 
 viz. commencement of the action by 
 writ, summons by the sheriff as under- 
 officer of the supreme court, litis con- 
 testatio, and replies according to the 
 Norman rules of pleading, in certain 
 cases empanelling of a jury (recognitio'), 
 which in course of practice became 
 extended to a general employment of 
 
 a civil jury. These oldest pleadings 
 are printed in the " Placitorum Abbre- 
 viatio," (1811, folio) more in detail in 
 Palgrave, " Kotuli Curise Regis," vol. i. 
 from 6 Rich. I., vol. ii. I Joh. ; Lond., 
 1835-38. The treatise of Gunder- 
 mann, " Besitzund Eigenthum in Eng- 
 land " (Tubingen, 1864), gives a useful 
 sketch of this formulary system. See 
 also Brunner, " Entstchung der Schwu- 
 rgerichte." 
 
 (c.) It is conclusive evidence, that 
 the three passages in Glanvill, which 
 speak of the justiciarii in banco 
 residentes do not say a word about a 
 double bancum, that other testimony 
 upon this point is wanting, and also 
 that a chain of circumstances speak 
 against it. There existed, as a matter 
 of fact, down to Magna Charta, only 
 one court in banco. The proceedings 
 before it were described by Glanvill 
 as " coram justiciariis in banco residen- 
 tibus." Expressions, such as " diem 
 habet in banco," were from Richard I.'s 
 time tolerably frequent ; royal decrees 
 were also issued to the "justitise in 
 banco," or to the "justiciee de banco" 
 (Foss, ii. 171). The expression bancum 
 (bench), to denote the judicial body 
 itself, did not, however, become current 
 until the following period.
 
 Origin of Estates of the Realm. 231 
 
 (i.) The summits justiciarius was the common president of 
 the King's court and of the Exchequer ; and the Exchequer 
 as the elder magisterial department remained so closely 
 associated with the other, that it was not until centuries later 
 that an appeal from the Exchequer was allowed ; whilst the 
 bancum regis became, immediately after its origin, the court 
 of higher instance for the bancum of the communia placita. 
 
 (ii.) All great officers, who were ex officio members of the 
 Exchequer, and had their representatives there, were accorded 
 the same right in the newer King's court.. The constable and 
 marshal had accordingly representatives of the same name in 
 the King's court, and in those courts which arose out of it 
 when it became later subdivided. The same right was also 
 conceded to those members,, when the Exchequer of Jews 
 became separated from the chief Exchequer. In like manner 
 the office of the hereditary usher became subdivided,. 
 
 (iii.) The personal privileges of the officials of the Ex- 
 chequer were transferred to the justiciarius of the newer 
 King's court ;: notably an immunity from the common 
 amerciaments of the county and from scutages, and a 
 privileged position in using the court tribunal for the settle- 
 ment of their actions at law.. These exemptions were expressly 
 referred to the old privileges of the Exchequer, " per libertatem 
 sedendi ad scaccariam." 
 
 (iv.) The offices remained to- a certain extent common to 
 both, as was also the court house. The Great Seal was as a 
 rule kept in the treasury of the Exchequer (Foss, ii. 9). The 
 King's court properly followed the person of the sovereign, 
 but its usual seat, notwithstanding, was with the Exchequer 
 in Westminster (Foss, ii. 168). 
 
 (v.) In consequence of the original connection subsisting 
 between both departments of justice, the routine of business 
 was discharged by clerks from the Exchequer ; that is, ac- 
 cording to its older pattern.. Hence the unmistakable coin- 
 cidence of the rotuli and records of the Curia Regis, with the 
 business formularies of the Exchequer. Even after the court 
 had in later times become separated, the fines, amerciaments, 
 tallages, aids, and scutages, were in the old fashion still 
 accounted for to the Exchequer, by the itinerant justices. 
 The old principle " recordationem curise regis nulli negare licet " 
 (Hen. I. 31, 49, sec.. 4), was an original principle of every 
 royal central administration, and did not first originate in 
 the manner of constitution of the King's court ; both before 
 and after it was a rule for the Exchequer also, for which it 
 is incidentally recorded under Edward I. (Madox, ii. 25).** 
 
 ** The Exchequer as a financial severed from the judicial body of the 
 body appears under Richard I. as Curia Regis. It continues to decide
 
 232 Constitutional History of England. 
 
 Both departments are still always regarded as an emana- 
 tion of the personal government. "In curia domini regis 
 ipse in propria persona jura decernit" (Dial, de Scacc., i. c. 4). 
 The king, when it pleases him, appears himself as an itinerant 
 judge, and presides in person in banco ; instances of this kind, 
 until Edward II., have been collected by Palgrave; and not 
 unfrequently a judgment is postponed on account of the 
 King's absence. The whole primitive form of a king's court, 
 as we can thus perceive, is as unstable as all new creations 
 of administrative practice. "With the rise of a judicial body 
 the grand period of the professional bureaucracy in England 
 had arrived.. From Henry the First's day an official nobility 
 begins to be formed, by means of which certain lesser vassals 
 and clerics attain the rank of greater barons. The clergy 
 are still in possession of the Latin official language, but 
 side by side with it, the Norman idiom and other technical 
 qualifications assert themselves, in which the laity successfully 
 compete ; among the latter a class of law jurists raises itself 
 to great importance. In spite of much jealousy an esprit 
 de corps now appears to pervade the gr,eat body of eccle- 
 siastical and lay officials, who find their common bond of 
 union in the Chancery and Exchequer. It was the dignity 
 of the profession, and thq cultivating influence of their daily 
 occupation of administering justice, which enabled, even 
 under an absolute government, an honourable judicial class 
 to be formed ; just as in ancient days, the Eoman empire 
 developed an honoured juristic body from the professional 
 administration; of justice. After the establishment of a Bench 
 
 the legal questions within the financial the chief justice and the barons ; but 
 administration, and the King still among these the treasurer becomes 
 makes use of his right of allowing more and more prominent, until, after 
 ordinary civil actions to be decided at the disappearance of the chief justice, 
 his will, by the barones scaccarii. In he becomes the proper presiding judge, 
 its principal activity, however, the Under Henry III. the office of Chan- 
 Exchequer is and remains the centre cellor of the Exchequer appears to 
 of the receipts and disbiirsements, the have arisen (Maunsell, 18 Henry III., 
 court of account for the sheriffs and c/. Thomas, "Materials," 9, 10); in 
 other accounting parties. In the Ex- any case, from this time he is more 
 chequer the office of sheriff continues frequently mentioned. From Edward 
 to be farmed out. Sheriffs,, escheators, I.'s time a treasurer's lieutenant is 
 and certain under-officials, take their also found. The sittings in the Ex- 
 oath of office in it. In like manner chequer are still held occasionally 
 from the Exchequer proceeds the under th^ personal presidency of the 
 deposition of individual sheriffs, and King, who at other times gives his 
 under Henry IIL, even a general orders by writing under his private 
 deposition of them all. The taking of seal, or verbally, and quite informally 
 oaths of fealty, grants of feoffments, by messenger. We shall refer again 
 compromises ad scaccariam, now (chaps. 22, 23) in the following period, 
 frequently occur. From the Exchequer to the position of the chancellor, the 
 issues also the summons of the land chancery of the realm, and to the 
 army, addressed to the sheriff. The system of the rotuli. 
 administrating body consists now of
 
 Origin of Estates of the Realm. 233 
 
 of Judges in the Curia Regis, the one-sided fiscal spirit of 
 the Exchequer found a counterpoise under more enlightened 
 reigns. In the law book of Glanvill, which was written 
 as early as the close of Henry the Second's reign, an un- 
 mistakable progress is manifested, not only in the subtle 
 technicalities but also in a worthier conception of the royal 
 vocation of administering justice. Still more clearly is this 
 judicial spirit shown half a century later in Bracton's work, 
 with its very liberal views of the royal duties and of the 
 power of the laws as being superior to the arbitrary will of 
 the King. 
 
 The old shapeless Curia Regis becomes now embodied, for 
 the discharge of two chief groups of national business, in 
 two regularly constituted official bodies, the King's Court and 
 the Exchequer. The transactions in writing between the 
 King and these two are conducted by his cabinet council, 
 the chancellor and his clerks. As a member of each de- 
 partment, the King forms between them a department of his 
 own ; one which, as officina, justicise, regulates the subjects 
 of procedure and the actions dependent upon royal writ, both 
 of which are assigned by writ to their respective tribunals. 
 From the close of Eichard the First's reign the chancellor 
 keeps his own registers (rotuli cancellariss} which, divided 
 into the heads of Charter, Patent, Fine, and Close Kolls, 
 have been printed in recent years. 
 
 Side by side with these momentous changes in the adminis- 
 tration, are seen the first indications of certain alterations 
 in the constitution, the importance of which cannot be over- 
 estimated. 
 
 III. rfgfn of tfje Estate of Greater 23arons. In spite 
 of the fully developed sovereign political rights, Henry II. 
 found his position less favourable than that of the first three 
 Norman kings. The prevailing ideas of every age are deter- 
 mined by the immediate past, and this had severely shaken 
 the belief in the omnipotence of the kingly power. Stephen, 
 as well as his female opponent, had granted a number of 
 concessions and submitted to a number of humiliations ; the 
 title and the privileges of the royal dynasty had been for 
 twenty years discussed in every cottage. After such events 
 Henry II. did not find it an easy task to restore the old 
 form of government. With the far-seeing shrewdness of 
 his race, he contrived to find first an able bureaucracy that 
 was subservient to him personally, in order to restore the 
 surviving administrative organization. The mass of the 
 Saxon population was won over by exercising sharp sur- 
 veillance over the sheriffs, by protection afforded to tenants 
 against the arbitrary imposition of tallages by the landowners,
 
 234 Constitutional History of England. 
 
 by concessions made to the towns, by a universal extension 
 of legal protection, and by certain restrictions on duelling. 
 The somewhat milder enforcement of the forest laws and the 
 feudal dues, as well as the strict regularity of the whole 
 administration, were acceptable to all classes. 
 
 But the relation between Church and State had become the 
 most strained of all. During the time of sword law, the 
 privileged jurisdiction of the clergy had been expanded in 
 a manner which was in direct opposition to the uniform 
 system of the Anglo-Norman political government. Henry 
 II. was no less determined to assert his sovereign supremacy, 
 than was his ambitious primate, Thomas Becket, to enforce 
 the new principles of the centuxy on behalf of the supremacy 
 of the Church. The ecclesiastical disorders now form the 
 turning-point, at which the King found it advisable to pro- 
 ceed only with the express sanction of the Crown vassals. 
 He did this, as has been explained above (Chapter XV.), 
 simply by summoning to extraordinary court days the more 
 distinguished prelates and barons to discuss with them im- 
 portant measures touching spiritual jurisdiction. The first 
 step in this direction was, that in January, 1164, the King 
 laid before them the sixteen Articles of Clarendon, touching 
 the submission of the ecclesiastical body to the royal feudal 
 and judicial control, and that he had these articles recognized, 
 confirmed, and finally attested, by the greater barons and 
 the bishops. Thus the innate national idea of the highest 
 legislative power, '^consensu meliorum terras," awoke to a new 
 life. As the opposition of the Archbishop still continued, 
 the King soon after summoned not an ordinary judicial com- 
 mission, but for the first time the collective body of the 
 great prelates and barons,, in order, by formal judicial 
 sentence, to declare the primate of the realm guilty, and in 
 " misericordia regis." The idea of an administration of 
 justice by the " King in the national assembly," is thus re- 
 vived, f 
 
 t The state of ecclesiastical: affairs the King of England was not the sole 
 in the half century from 1164-1214, head. To put an end to this state of 
 undoubtedly prepared the beginnings affairs, Henry II. decided to summon 
 of a new constitution of estates of the the extraordinary assizes at Clarendon 
 realm. Though the encroachments of and Northampton in 1164, to consist 
 the spiritual councils under Stephen of the collective body of great barons 
 formed no recognized precedents, yet of the realm, all the bishops, and the 
 it became involuntarily recognized that most distinguished abbots, all of 
 ecclesiastical affairs could not be finally whom emerged from the great mass of 
 ordered by the sole authority of the tenentes, as an united body. The name 
 King ; that the Church represented a " assize," which is henceforward used 
 political system standing on its own by historians as well as by legal writers, 
 rights; and that the English Church indicates the beginning of a new con- 
 formed an inseparable branch of a ception, which is the first step towards 
 universal Catholic Church of which legislative parliaments.
 
 Origin of Estates of the Realm. 235 
 
 The unfortunate course of the ecclesiastical controversy 
 caused extraordinary court days to be summoned more than 
 once, at ^vhich, in addition to ecclesiastical questions, im- 
 portant reforms of the temporal jurisdiction were put forward 
 for discussion, deliberation, and approval. In these the 
 question was one of fundamental departures from the 
 judicium parium, and from the Norman judicial custom of 
 the duel ; a question of principles already enforced in practice, 
 but for which the assent of the vassals of the Crown seemed 
 to be advisable, in order to convert decided departures from 
 the legal usage of both nations into permanent national 
 institutions. Seeing that it was vitally important for the 
 King to obtain the vassals' sanction in the ecclesiastical con- 
 troversy, Henry was obliged to. make those measures which 
 were essentially necessary for the times more acceptable, 
 by requesting the assent of his Crown vassals, a step which 
 is always popular at the first beginning of a political con- 
 stitution. The King also does not disdain, as in the Anglo- 
 Saxon period, to proclaim once again, with the advice of his 
 Witan, the ''King's peace; " this was published in the Assize 
 of Clarendon with the addition, " quam dominus rex Henricm 
 consilio archiepiscoporum et episcoporum et abbatum cseterumque 
 baronum suorum constituit" (Palgrave, i. 257). In this 
 direction two innovations are conspicuous, in which the 
 national fundamental idea of the legislative power is revived. 
 
 1. In place of the informal councils, the collective body 
 of the great prelates, the earls, and great barons were sum- 
 moned ; in the resolutions of the council itself, this " con- 
 silium archiepiscoporum, episcoporum, abbatum, comitum et 
 baronum (optimatum procerum) " is expressly mentioned ; and 
 at Becket's condemnation, this assembly acts as a peers' 
 court in the form of a great feudal curia, and no longer as 
 a judicial commission appointed by royal supreme power. 
 
 2. To take part in the most momentous resolutions on 
 one of these two occasions, there were also invited a number 
 of smaller Crown vassals. To the Assize of Northampton 
 (1176), the milites et homines regis, were summoned in 
 addition to the barones ; or, according to other accounts, 
 also the Vicecomites and barones secundse dignitatis.tf 
 
 ft The necessity of attaching the the public peace (Palgrave, " Common- 
 temporal vassals to the King's cause wealth," i. 257, ii. 178 ; " Select 
 by concessions, caused Henry in those Charters," p. 143), recognized im- 
 twelve critical years, to take counsel portant institutions which had sprung 
 with his assemblies of notables touch- up from the practice of the courts of 
 ing other points of the temporal juris- law and of police. According to the 
 diction, which produced a material King's idea, these were only deliber- 
 alteration in the customary legal system ative estates, and were certainly not 
 (lex terras}. The Assize of Clarendon intended to be prejudicial to his 
 (1166) on the subject of maintaining sovereign rights. It was believed that
 
 236 Constitutional History of England. 
 
 In connection with these events, a distinction between 
 barones majores and minores is first conspicuous in a solemn 
 political act ; and this distinction has until the present time 
 continued to form the subject of lively controversy. The 
 word " baro " originally denoted a man (baron and feme, 
 barones civitatis London, court baron, baron to the Cinque Ports). 
 After the Conquest it gradually usurped the place of the 
 Anglo-Saxon title of Thane, apparently in order,, like the 
 Latin homo, to express the feudal dependence of the " men " 
 upon the King.. In comparatively early times, by barones 
 were pre-eminently meant the barones regis ; that is, the 
 tenentes in capite, who from the first were divided according 
 to the amount of their property, into greater feudatories and 
 lesser Crown vassals. Thus property qualification becomes 
 again connected with political institutions. Barones majores 
 and minores had for a long period been distinguished in 
 the feudal militia. All such as led divisions of their own, 
 were regarded as bannerets or officers in the feudal army. 
 On the Continent, fifty milites, or at least twenty-five, were 
 reckoned to one banneret ; in England, in proportion to the 
 smaller scale of enfeoffments, a smaller number appears to 
 have formed the unit of the constabularia. In the active 
 army, the King certainly appointed the commanders, but it 
 was inevitable that the greater vassals, who by virtue of 
 their feudal possessions had to furnish whole constabularia, 
 should regard themselves as entitled by birth to be officers 
 (seigneurs) of the feudal militia. 
 
 From the first, the distinction, between barones majores and 
 minores was known in the Exchequer. Beliefs, wardships, 
 and marriages of the great feudatories formed the principal 
 items in the financial administration. Whilst those of the 
 single knight's fee were fixed at a hundred shillings, those 
 of the greater lordships were not until later times fixed at 
 a hundred marks ; and in this respect we often find a dis- 
 pute, as to whether the relevium of a fief is to be calculated 
 on the fief as a barony, or separately on the single fiefs. 
 
 if the magnates of the land had once It may be that it was necessary to con- 
 declared their assent to an institution nect the regulation of the prices of 
 called for by the tunes, the matter was provisions (as being a measure of vital 
 set at rest by the new institution interest to the national life) with due 
 having obtained a recognition of its formality with the Assisa de pace ser- 
 legality. This conception the political vanda under Henry II. It is not ap- 
 government adhered to for a whole parent that any general assembly was 
 century. After 1176, we hear no more convoked at this time (25th April, 
 of assizes under Henry II., nor of any 1204) (vide Selden, "Titles of Honour," 
 under Richard Coeur-de-Lion. It is 735); it appears rather that only an 
 not until 5 John that a royal decree ordinary council was held, whose 
 is mentioned (Patent Rolls, 5 Job.) assent it was found advisable to 
 which regulated the " assize of bread," mention at the promulgation of the 
 * communi concilia baronum nostrorum" measure.
 
 Origin of Estates of the Realm, 237 
 
 In computing the amerciaments again, the greatest feuda- 
 tories are more highly taxed ; on which account certain 
 Crown vassals appeal against their rating as "barons," on 
 the ground that they only possess single fiefs. A notable 
 example of this is the case of the Abbot of Croyland (19 
 Edw. II.). 
 
 From the earliest times barones majores and minores were 
 distinguished at court. Of course it was only magnates who 
 were able to attend the gorgeous assemblies with a retinue. 
 To them by custom an express invitation was issued, and 
 by custom they were treated with much greater distinction 
 than the knight without attendants. 
 
 For the same reason there had long existed in the popular 
 mind and in the language of common life, barones ma/ores, 
 and barones minores. 
 
 We can easily understand from this condition of things, 
 that contemporary writers make use of the expressions 
 " barones majores et minores," in such a manner that a later 
 age was led to conceive of the difference thus drawn as a 
 distinction in rank, which, however, viewed by the light of 
 the law, does not in reality exist. A difference in rank would 
 presuppose that the great estates were held by a special tenure 
 in a different manner from the simple knights' fees, but in the 
 great register of the fiefs made in the time of Henry III. and 
 Edward I., and which was printed in 1807, under the name 
 of Testa de Neville, the terms honors, baronte, and feuda 
 are used in such confusion that a definite and legal distinc- 
 tion manifestly does not exist. The expert who wrote under 
 Henry VI. his treatise upon feudal tenures (Littleton on 
 Tenures), upon which the later works of Coke and Blackstone 
 are based, knows no distinction between tenure by barony 
 and tenure by knight's service ; and this legal authority is 
 sufficient to determine the question.* Just as little were the 
 
 * In the relations of private law no Scaccario" (ii. cap. 10) speaks of 
 difference could anywhere be found " baronias majores et minores " proves 
 between a knight's fee and a barony. that even in the practice of the Ex- 
 All the incidental distinctions only rest chequer as it was in those days, there 
 upon the administrative practice ; and existed as yet no fixed terminology, 
 even in the Treasury records it took a The law book of Bracton (ii. p. 39, sec. 
 long time before the various amounts 6) is the first to testify that in those 
 of the retevia led to a fixed distinction; days the tribunals began in certain 
 as in the Rot. 9, Henr. III., " Per in- particulars to distinguish between " ba- 
 quisitionem, quam Rex prxcepit fieri, ronia " and " vasoria " ; " quod dicetur 
 idem Walterus tenuit de Rege in capite de baronia non est observandum in va- 
 perfoedummilitis,etnonperbaroniam" soria, vel aliis minoribus feodis quam 
 (Madox, i. pp. 318, 681, where we also baronia, quia caput non habent sicut 
 find other instances of the use of" baro- baronia." But this conception only 
 nia " and " honor " for those possessions dates from the middle of the thirteenth 
 which pay the great relevium of a century. It was not until Henry III.'s 
 hundred marks in a round sum). The reign, after Magna Charta and a multi- 
 manner in which the " Dialogus de tucle of other precedents, that the
 
 238 Constitutional History of England. 
 
 greater and lesser Crown vassals distinguished by their family 
 designations. The greatest feudatories are sometimes only 
 denoted by a Christian name, and sometimes by a family 
 name, with or without the prefix " de " ; the same is the case 
 with the lesser vassals of the Crown, and also with the 
 under-vassals. In a few families (Baro Stafford, Baro de 
 Greystock) the word "baro" becomes customary for well- 
 known reasons, yet this is not peculiar to the greater vassals. 
 These circumstances induced the Committee of the Upper 
 House when examining into the question of the peers' dignity, 
 to allow that an "estate of the realm" did not exist before the 
 time of Magna Charta. The actual and social difference was 
 still no legal one, not legal from the point of view of public 
 law, because no cour de baronie existed ; not legal from the 
 point of view of private law, because greater as well as lesser 
 tenentes in capite have equal rights of tenure. 
 
 Notwithstanding that the state of the kingdom had repeat- 
 edly compelled Henry II. to accord to the most conspicuous 
 spiritual and temporal vassals a voice in legislating, yet it is 
 clear that the King in convoking the notables had just as 
 much freedom of action as he had in originating all the 
 consilia optimatum. The summons was issued on the ground 
 of personal confidence, and especially to such as were already 
 honoured with important confidential offices, it was issued in 
 accordance with the custom of the court, which had always 
 honoured certain great vassals with a personal invitation 
 (writ), and it was issued on the basis of the size of their 
 estates, which was known in the Exchequer, and with regard 
 to the distance at which their places of residence lay, of course 
 paying due regard to their personal standing and the opinion 
 of their compeers. And accordingly these conventions were 
 not " feudal parliaments," but only great councils of notables, 
 and for that reason they cease, and disappear for more than 
 a generation. 
 
 As to the form and effect of such a summons, nothing 
 was definitely settled in this period. But there were prece- 
 dents extant, cases in which the King had taken the opinion 
 of his vassals " super arduis negotiis regni," and had obtained 
 their assent. If this assent was proper in the eyes of the 
 King, it appeared still more proper in the eyes of the vassals. 
 For resolutions of this kind the denotation " assisa," bor- 
 rowed from the feudal curise of the Continent, is used ; and 
 even the law book of Glanvill, in dealing with material altera- 
 tions made in the legal and judicial constitution, lays stress 
 upon the question whether they had been brought about by 
 
 popular tongue began to speak of the the greater Crown vassals (Parry, 
 "baronage" as the sum total of all "Parliaments," xi.).
 
 Origin of Estates of the Realm. 
 
 239 
 
 an assisa generalis or not. The monarchy in these convoca- 
 tions had pursued merely temporary aims ; but for the first 
 time for many long years the great barons had again assembled 
 in the political councils. The historians speak again of the 
 King as " cum principibus suis de statu regni et de pace confir- 
 manda tractans." The rights of the estates of the realm had 
 once more attained a definite form, and on this account the court 
 days of Henry II, were important precedents and of consider- 
 able moment in the events which led to Magna Charta, and 
 also as one of the bases of the later parliamentary law.-f~f"f 
 
 ttt The impediment to progress in 
 this direction lay at this time still in 
 the nature of the Crown vassallage 
 itself, which, consisting as it did of 
 hundreds of small feudal possessors, 
 did not contain the element of a poli- 
 tical peerage. This difficulty increased 
 just in the times of the Crusades by 
 reason of the numerous alienations of 
 single knights'-fees and smaller parcels 
 of land ; so much so that we now meet 
 with tenentes in capite in possession 
 of one-twentieth, one-hundredth, or 
 one three-hundredth of a knight's fee. 
 As it was impossible to draw a sharp 
 line between the greater and lesser 
 vassals, only the form of the royal 
 summons remained wherewith to form 
 an assembly of notables capable of 
 legislating. If this summons was 
 wanting, there was an end of the great 
 court days. And thus it came to pass ; 
 the Assizes of Clarendon and North- 
 ampton were not repeated for a whole 
 generation. In 'modern times the 
 
 critical theme of barones majores and 
 minores has been again treated of in 
 detail by Hallam (" Middle Ages "), 
 and with much caution in the Peers' 
 Keport (iii. 87, 97, seq., 109, seq. 
 254). If in the latter we are forced to 
 acknowledge that the summons to a 
 concilium regis at this period was ex- 
 clusively dependent upon an act of the 
 sorereign, this negatives the idea of 
 an " estate of the realm " consisting of 
 Crown vassals, since the choice among 
 hundreds was entirely dependent upon 
 royal writ. The English nobility itself 
 would be brought into difficulties by 
 the confused idea that every vassal of 
 the Crown in the Norman Curia Begis 
 was entitled to a seat; for the claims 
 to a seat in the present House of Peers 
 would have been innumerable if every 
 descendant of a possessor of three or 
 four hides, who at one time or other 
 had belonged to the tenentes in capite, 
 could lay claim to baronage by tenure.
 
 240 Constitutional History of England. 
 
 CHAPTER XVIII. 
 Jttapa (Eijarta. 
 
 AFTER the rule of Henry II., which was energetic, though in 
 its latter years full of vicissitudes, comes Richard Coeur-de- 
 Lion, adventurous and aimless, but a faithful reflex of the 
 times in which he lived, and accordingly popular. The 
 regency, appointed for the time of his crusade, soon came 
 into conflict with the great barons and with the King's 
 brother John. During the absence of the King, England 
 again saw one party of the barons in feud with another 
 discontented faction. With his return from captivity the 
 personal rule of the King is restored, and he now holds a 
 court day (colloquium) after the old fashion, sits in judgment 
 upon his brother John and upon a bishop, imposes a hide- 
 tax of two shillings upon every hide of land ; but, engaged 
 in unceasing feuds upon the Continent, loses his life at a 
 siege. The absence of this knight-errant from English soil, 
 which was, with the exception of a few months, continuous, 
 proved extremely beneficial, in so far as it rendered the con- 
 tinuance of an organized internal government possible. 
 
 The reign of John which followed appears again to unite in 
 itself the worst qualities of the Norman system. This King, 
 who had already proved a faithless son and treacherous 
 brother, forfeited by the murder of his nephew Arthur his 
 French fiefs, and thus brought about the separation of Nor- 
 mandy from England. He involved himself in a struggle 
 with the papacy, and concluded it by a humiliating submission. 
 In his government of the realm he was still more aimless 
 than Richard, harsher and more avaricious than any of his 
 predecessors ; he estranged all classes of the people succes- 
 sively by cowardice and cruelty, by greed and arbitrariness. 
 At length he brought about a crisis in which all elements of 
 opposition against absolutism leagued themselves together 
 and took action in common. 
 
 First and foremost among these opposing forces stood the 
 Church, which even under Henry II. had asserted itself as a 
 power equal with the monarchy. The time had arrived when 
 Innocent III., in the zenith of his might, at the Lateran
 
 Magna Charta. 24 1 
 
 Council (1215) proclaimed the Church as the universal 
 monarchy. In his rupture with this power John brought 
 matters to such a pass, that the Bull of excommunication 
 was proclaimed to his face, and his deposition from royal 
 dignity, and the absolution of his subjects from their oath of 
 allegiance were published upon English soil. 
 
 But among the temporal vassals also much had been 
 changed since the Conquest. Since the Crusades the con- 
 sciousness of the dignity of the military profession had 
 mightily increased. The strength of the heavy-armed war- 
 riors had for generations decided every conflict; all the 
 power of princes now primarily depended upon the number 
 of such warriors. The equal balance of conditions through- 
 out the whole of Christendom, and the sanction of the 
 Church, had created an esprit de corps, which under the walls 
 of Jerusalem had formed for itself an universal code of 
 honour, which even princes could not refuse to acknowledge, 
 and which found in tournaments and social customs further 
 support and expression. Whilst therefore the barony and 
 knighthood began to feel themselves a unity, they were 
 bitterly aggrieved by the arbitrary imposition of scutages 
 and income taxes; and now, too, when in the Exchequer 
 and in the government of the country bailiffs the prosaic 
 system of amerciaments and fines had reached its climax, 
 John, as the guardian of orphans, dealt with his feudal 
 wards with unheard-of injustice, and regarded the wives and 
 daughters of his greater vassals as objects for his licentious 
 desires. 
 
 In the towns of England also, as well as amongst the 
 freeholders, much had in the course of time been altered. 
 The extension of the feudal law, with its rigid rules of inalien- 
 ability and primogeniture, to the whole landed property, had 
 in its very excess become an unnatural system, in opposition 
 to which the natural laws of political economy and family 
 life tacitly asserted their rights. By the circuitous path of 
 royal licence on payment of a fine the alienation and partition 
 of feudal estates had to a considerable extent been resumed. 
 Marriage and decease, inheritance by daughters in equal 
 shares, escheat and regrant in smaller divisions, subinfeuda- 
 tion, and even direct selling in parcels (which was done by 
 the vassals on embarking for crusades, and was favoured by 
 the Crown) had brought about new estates of freehold in 
 land. Mercantile and commercial business, promoted by the 
 crusades, which had exercised a most beneficial influence 
 upon the cities and boroughs, had, after the time of Eichard 
 I., raised a considerable number of English towns to a high 
 degree of independence. This class also, in spite of its innate 
 
 R
 
 242 
 
 Constitutional History of England. 
 
 loyalty, was in a humour to make common cause with the 
 spiritual and temporal Crown vassals against despotism.* 
 
 But it was, above all, the blending of the Franco-Norman 
 and the Anglo-Saxon nationalities, by this time complete, 
 which had imperceptibly undermined the foundations of abso- 
 lutism. For five generations they had now lived together 
 under one Church, one kingdom, one administrative system, 
 enjoying peace in common, and suffering equal oppression. 
 The period of sword law under Stephen, and still more the 
 ecclesiastical controversy with Thomas Becket, had at times 
 elevated other antagonism above the national dissension. 
 Parochial and family life had made intermarriage between 
 the Angli and Francigense a daily occurrence. Under the 
 strong political and ecclesiastical power a new insular national 
 culture became matured, which through the separation of 
 Normandy from England developed its own characteristics. 
 In this new creation the Saxon element predominated, not 
 merely in numbers, but in those peculiar attributes of character 
 which the Anglo-Saxons retained unchanged in their family 
 life, their manners, and their language. The sober, moral 
 earnestness of this family life, in contact with the brilliant 
 and volatile nature of the Franks, proved the stronger of the 
 
 * The events- of the origin of" Magna 
 Charta have been portrayed by histo- 
 rians with justifiable predilection. 
 (Cf. Lappenberg-Pauli, iii. 293-487.) 
 For the purpose of this description 
 it is important to consider the rela- 
 tionship between the powers who 
 league together in the act of June 15th, 
 1215, against the monarchy ; and the 
 shifting of which in the following half- 
 century brought about such a marvel- 
 lous change in their positions. The 
 counterforce of the Church was at this 
 time the most imposing as well as the 
 most stable. Archbishop Stephen 
 Langton himself, in spite of his pro- 
 motion by the Pope, strongly impressed 
 by the popular feeling, not only under- 
 took for a time the conduct of the 
 movement, but remained staunch to 
 the right cause, and may with justice 
 be considered a patriot. But imme- 
 diately after success had been gained, 
 the imperious behaviour of the Curia 
 towards the barons reminded the nation 
 only too sensibly that a spiritual abso- 
 lutism existed side by side with the 
 temporal. Among the Crown vassals 
 of this period the majority had only 
 risen to importance under Henry II., 
 and owed their influential position to 
 the newer system of political adminis- 
 tration. At the head of the armed 
 
 opposition stood pre-eminently the 
 northern barons. : In the framing of 
 Magna Charta, the school of the official 
 nobility formed under -Henry II. is 
 recognizable. All parties of the then 
 existing nobility apparently took very 
 slight interest in the possession of 
 Normandy ; for the re-conquest of 
 which no efforts ever appear to have 
 been made. The powers of resistance 
 displayed by the Crown vassals cer- 
 tainly seem to have been strengthened 
 by the spirit of knighthood, and by 
 the sympathies of the under-vassals 
 and freeholders. But custom knew no 
 other than a royal authority in the 
 feudal militia, and that body easily 
 became disorganized under a marshal 
 of their own choosing. The scattered 
 position of the military fiefs, and 
 above all the want of financial means, 
 rendered a lasting resistance imprac- 
 ticable. Hence can be explained why 
 the barons, after a few months' struggle, 
 were no match for the financial power 
 of the King, with his paid soldiery 
 and garrison troops. The increasing 
 importance of the freeholders and 
 cities has been already adequately 
 estimated by Spelman " on Parlia- 
 ments " (cf. Peers' Keport, i. pp. 32, 35, 
 and below, cap. xix.).
 
 Magna Charta. 
 
 243 
 
 two elements ; and finally in Church and State, in the com- 
 munity, and in the family, assimilated to itself the Frankish 
 character until, in spite of a continuing difference in language 
 and in class ideas, it became once more predominant in the 
 nation. The greater portion of the powerful classes in the 
 country were indeed still by name and descent Francigenae ; 
 but with each successive generation, the population of the 
 British Isles became more and more consolidated into the form 
 of a nation Germanic in character.** 
 
 It is these elements that are comprehended in the world- 
 renowned events of the 15th June, 1215, which, under the 
 
 ** The most significant new basis 
 is doubtless the reconciliation of the 
 national antipathies, to which the often 
 quoted testimony of the " Dialogus de 
 Scaccario" refers: "Jam cohabitantib'us 
 Anglicis et Normannis et alterutrum 
 uxores ducentibus vd nubentibus, sic 
 permixtcB sunt nationes, lit vix discerni 
 possit hodie, quis Anglus quis Nor- 
 mannus sit genere." Although in 
 former times the national contrast of the 
 Franco-Norman and English nation- 
 alities was perhaps overrated, yet the 
 recent researches of Freeman (vol. v. 
 Appendix W) perhaps, on the other 
 hand, go too far in weakening and 
 underrating the national contrast. 
 " What Englishmen suffered from was 
 mainly that irregular often undesigned 
 oppression, which must take place 
 when the laws of a conquered people 
 are administered by their conquerors " 
 (Freeman, iv. p. 14). " The success 
 of William's invasion was a distinct 
 triumph of one language, one mode 
 of warfare, of one social and political 
 system over another " (Freeman, iv. p. 
 17). The point of view insisted upon 
 by Stubbs is correct, that the Norman 
 monarchy, with laudable consistency, 
 upheld the legal equality of the two 
 nations, and that the pressure of the 
 Norman nationality was principally 
 owing to the Normans having taken 
 possession of the high offices in the 
 State and the great landed properties. 
 The national contrast is crossed by 
 this social one, but the national anti- 
 pathies in consequence were rather 
 embittered than mollified. A deeply 
 rooted national dissension is proved 
 not only by credible historical evidence, 
 but above all by the uniform bearing 
 of the Anglo-Saxon population at every 
 attempt at insurrection by Norman 
 great vassals ; it is evidenced also by 
 the decomposition of the constitution 
 of the counties, which was every- 
 
 where visible, owing to internal dis- 
 sensions, that could only be rooted in 
 the national element. Absolutism was 
 founded on these dissensions alone, 
 and that it had taken root there is 
 shown by the stability of the tendency 
 to freedom from the moment of the 
 blending of nationalities. In spite of 
 all changes which the positions of 
 power and party underwent in the 
 following generations, this progress 
 remained irrevocable ; it consolidated 
 itself in each successive generation, 
 and triumphantly led the emancipa- 
 tion of the estates to further victories, 
 up to the close of the Middle Ages. 
 But in this blending the Germanic 
 element had become the preponderating 
 one, just as Magna Charta did not 
 arise from 'the Franco-Norman, but 
 from this national spirit. It was 
 finally the toughness of the Saxon 
 nationality which Saved England's 
 freedom. Whilst on the Continent 
 Romans and Romanized Celts crowded 
 to the courts of the magnates, the Saxon 
 Thanes and peasants remained apart 
 during these hard times, and shut 
 themselves within their fortified farm- 
 houses. Whilst the adaptive Scandi- 
 navian Normans in their settlements 
 in Normandy had, after a few genera- 
 tions, come to use the language of their 
 wives, and had become Frankish in 
 manners and customs, in England the 
 Norman element which had become 
 French had not, in spite of the position 
 of the ruling class which it had held 
 for centuries, been able to introduce 
 one-tenth of its foreign words into the 
 English tongue as it is spoken to-day, 
 or more than three words into the 
 English Lord's Prayer (Hickes, The- 
 saur., Pref., p. vi.). Finally, it was 
 the qualities in character which 
 decided the issue in the question of 
 nationality.
 
 244 Constitutional History of England. 
 
 name of "Magna Charta," are rightly regarded as completing 
 the foundation of the English constitution. From the moment 
 when John in his ecclesiastical dispute had collected together 
 the whole military array of his realm to oppose the King of 
 France, the consciousness of their relation to this monarchy 
 awoke in the breasts of the people. The papal legate had 
 laid before the King proofs of the understanding subsisting 
 between the barons and King Philip, and had thus in the 
 first instance procured the humiliating submission of John 
 to the papal throne, which threw the country into greater 
 agitation than the interdict. At the meeting of the mag- 
 nates in St. Paul's on the 25th August, 1213, a confederacy 
 was formed, which, supported by a great proportion of the 
 prelates, advanced slowly in its claims against the Crown. 
 It was not until towards Easter, 1215, that an army collected 
 at Stamford, consisting of two thousand knights, with a 
 numerous following on horse and on foot, amongst whom 
 were some great feudatories, but especially younger sons of 
 the first families in the land. They chose Eobert Fitzwalter 
 as Marshal of the " army of God and of the Holy Church," 
 obtained release from their oath of fealty from the canons of 
 Durham on the 5th of May, but only succeeded in gaining a 
 firm footing against the King and his garrison troops when, 
 in league with the citizens of London, they had won that 
 great fortified place. In this crisis negotiations for peace 
 are made upon the meadows of Eunnymede (15th to 19th 
 June, 1215), in which the King, with his small retinue upon 
 the one side, and the rebellious barons in full martial array 
 upon the other, treat together, the Earl of Pembroke acting 
 as mediator. The barons (perhaps Archbishop Langton 
 himself) had originally drawn up in formal articles the griev- 
 ances of the country, articles which, revised and completed, 
 were recognized by the King by the affixing of his great seal, 
 and being then formally issued, were raised to a royal 
 charter.*** 
 
 *** The authentic versions of and principles. It was not until after the 
 
 legal treatises upon Magna Charta days of the Stuarta that the science 
 
 have not been prepared with quite of jurisprudence did justice to Magna 
 
 that care which would have been ex- Charta, more especially in the restora- 
 
 pected from the importance of the sub- tion of the authentic text. The ori- 
 
 ject. Jurisprudence, which is always ginal document has been described by 
 
 slow in dealing with political questions, Blackstone (" The Great Charter," pp. 
 
 paid for a long time but little attention xv., xvi). It is preserved in the 
 
 to the charter. The law books of British Museum (cf. Lappenberg- 
 
 Bracton, Britten, and Fleta scarcely Pauli, iii. 424). Of the copies which 
 
 touch upon it incidentally; its prac- were circulated by the barons only 
 
 tical judicial effect demanded a pre- two have been found by the Record 
 
 vious specialization through the long Commission, at Lincoln and at Salis- 
 
 series of Acts of Parliament which bury ; the first is taken for the text in 
 
 have proceeded from its fundamental Eymer, i. 131, and in the "Statutes of
 
 Magna Charta. 245 
 
 Magna Charta leads us back to the details of the Norman 
 administrative law, so that the sketch I have hitherto given 
 will also serve as a commentary to it. To begin with, 
 however, the relations subsisting with the Church must be 
 especially remarked. Only in close alliance with the English 
 prelates were the barons able to wage war against the 
 monarchy. The charter granted in former days touching 
 the freedom of ecclesiastical elections (p. 240) was ac- 
 cordingly confirmed, and was to be faithfully adhered to. 
 The " separation " of Church and State was still popular, 
 as being opposed to absolutism ; and neither the baronial 
 class nor the English population thought of interfering with 
 the position the Church had now attained. The articles 
 of Magna Charta accordingly only lay down legal limitations 
 of the secular authority as to which the order in which 
 we have hitherto considered them appears applicable and 
 convenient. 
 
 I. The first group of articles deals with the legal limitations 
 Of tf)e feudal military pofotr, principally viewed from the 
 financial side ; touching wardship, marriage, and the amount 
 of reliefs and aids. Herein the ancient right of the Crown 
 was recognized, but an unfair interpretation of it for fiscal 
 purposes, and excessive claims, were prevented by a reduction 
 to fixed payments. The relevium of the estate of a comes was 
 fixed at 100 in silver, that of a Crown vassal at 100 marks 
 in silver, and that of the single knight's fee at 100 shillings 
 (Art. 2). The feudal guardian of minors is to have his proper 
 
 the Eealm," i. 7(Lappenberg-Panli,iii. readily accessible, is given by Stubbs 
 
 436). Of the treatises three may per- in his " Select Charters," consisting 
 
 haps be particularly mentioned : of the draft made by the barons (p. 
 
 (i.) Blackstone, "The Great Char- 289), the first version (p. 296), and 
 
 ter" (Oxford, 1759 fol.), in which the the later alterations in the text under 
 
 course of the editions and the confirma- Henry III. (pp. 339, 344, 353, 365, 
 
 tions until the end of Edward I.'s reign 377). 
 
 are described with critical care. Then In the ordinary editions of the 
 
 follows the reprint of the thirty-nine "English Parliamentary Statutes," 
 
 articles, upon which Magna Charta Magna Charta is only given in its 
 
 was based (pp. 1-9); then the correct later form (9 Henry III.). The offi- 
 
 text of the charter drawn up in sixty- cial edition of the " Statutes of the 
 
 three articles, 15th June, 1215 (pp. Realm," which was issued by the Record 
 
 10-24). To these are added the more Commission, gives the original docu- 
 
 important later versions, especially ments; the most important of them with 
 
 Magna Charta, A.D. 1217, 9 Henry III. the addition of a fac-simile. The ar- 
 
 (ii.) A legal commentary is given rangement which is appended follows 
 
 by Coke (Inst., ii. pp. 1-78) on the the development of the Sovereign 
 
 articles of the charter as contained in rights, but in detail the sequence of 
 
 the version of 9 Henry III. Some the articles. An arrangement of the 
 
 serviceable additions are contained articles according to ranks and classes 
 
 in Barrington's " Observations on the for which they were framed is given 
 
 more Ancient Statutes, from Magna by David Rowland ("Manual of the 
 
 Charta to 21 James I." (5th edition, English Constitution," London, 1859, 
 
 1796). pp. 50-60). 
 
 (iii.) An excellent reprint, now
 
 246 Constitutional History of England. 
 
 income and services; he is not to lay waste the lands, but 
 rather to keep them in condition (5, 6). Feudal heirs are 
 to be married suitably to their rank (7). The widow is to 
 have her dower, and must not be compelled to marry again 
 (8, 9). Arts. 12 and 14 (dealt with below, V.) relate to the 
 imposition of scutaaia and auxilia. No mesne lord is to be 
 allowed the right of taking other auxilia from his under-vassals 
 than a proper aid in the three ancient customary cases (15). 
 No one shall be constrained by distraint to do more services 
 for a knight's fee or another free fee than he was bound to 
 do formerly (16). No governor of a castle shall compel a 
 knight to pay money for the castle guard, if he performs it in 
 his own person, etc. (29). Moreover, all these regulations 
 are to be recognized by the feudal lords as binding on them 
 with regard to their men (Art. 60); " Omnes autem istas 
 consuetudines predictas et libertates, quas nos concessimus in 
 regna nostro tenendas, quantum ad nos pertinet erga nostros, 
 omnes de regno nostro tarn clerici quam laid observent quantum 
 ad se pertinet erga suos" A great portion of these feudal 
 articles is in apcordance with the old promises of the charter 
 of Henry I., but differs from the latter in its much more 
 determinate framing, and providing for the sub-vassals, and 
 for proper execution. (1) 
 
 II. "iegal limitations of tfre fufcictal pofocr* (i.) Concerning 
 civil justice: the hearing of ordinary civil actions shall no 
 longer follow the royal court, but shall be held in some 
 certain place (Art. 1,7). The civil assizes shall be held once 
 a year in every county by itinerant justices (18, 19). None 
 are to be appointed justiciarii, county and local justices, who 
 are not versed in the law of. the country, and willing to duly 
 observe the same (45). The arbitrary and disproportionate 
 fees exacted for judicial proceedings are to cease : " nulli 
 vendemus, nulli ncgabimus aut differemus rectum vel justitiam " 
 (40) ; and as a fact, from that time the great fines derived 
 from actions, and the sums paid for stay of judgment dis- 
 appear from the Exchequer accounts. (ii.) Concerning 
 criminal justice : no Vicecomes, no constable of a castle, or 
 local bailiff of the King, shall from this time forward exercise 
 in his own right criminal jurisdiction and decide placita coronee 
 
 (1) Legal limitations of the feudal genifom semel maritandam, et ad hoc 
 
 military power are especially contained non fiat nisi rationabile auxilium " 
 
 in the articles 2-8, 12, 14, 15, 16, 26, (12) ; summons of all Crown vassals 
 
 29, 43, 60 ; " Nullum scutagium vel to the commune consilium in such 
 
 auxilium ponatur in regno nostro, nisi cases (14, below, note 5). All these 
 
 per commune consilium regni nottri, libertates were also to be observed by 
 
 nisi ad corpus nostrum redimendum the feudal lords towards their sub- 
 
 et primooenitum filium nostrum militem vassals (60). 
 faciendum et adfiliam nostrum primo-
 
 Magna Charta. 247 
 
 (24) ; it is manifest again from this how popular the cen- 
 tralization of justice at the expense of the county and town 
 bailiffs had become. 
 
 But the most essential clause, which also relates to legal 
 procedure, is the fundamental article 39 : " Nullus liber homo 
 capiatur, vel imprisonetur aut dissaisiatur aut utlagetur aut 
 exuletur aut aliquo modo destruatur, nee super eum ibimus, 
 nee super eum mtitemus, nisi per legate judicium parium suorum, 
 vel per legem terras," This is the assurance of the continuance 
 of the Leges Eduardi, of the traditional judicial constitution 
 with its legal protection accorded to person and property. 
 By "judicium parium " is meant, not such a jury as in the 
 year 1215 existed only in civil procedure, in the elements of 
 a jurata, but judgment by' peers. The addition of " vel' per 
 legem terras" runs in one copy " et'per legem terras" ("vel" in 
 the language of this time often occurring for " et ") ; accord- 
 ingly, this clause deals with the frequently repeated assurance 
 of the traditional law of the land and judicial procedure; but 
 the assurance is more strictly framed, and demanded in its 
 present shape by the Norman magnates themselves, and 
 accordingly guaranteed again by them to the liberi homines 
 of the realm. (2) 
 
 III. Hegal limitations of tfje polite pofoer. The main point 
 lay in the system of amerciaments ; for by the imposition of 
 police fines every judicial protection of person and property 
 could be rendered, illusory. Magna Charta (20), directs the 
 following provisions against such, abuses:; (i.) The police fines 
 shall correspond in amount to the magnitude of the offence : 
 "Liber homo non amercietur pro parvo delicta nisi secundum 
 modum delicti, et pro magna delicto amercietur secundum 
 magnitudinem. delicti." (ii.) The execution in respect of police 
 fines is to take place with the beneftcium campetentias, in such 
 a manner that every liber homo should save his necessary 
 
 (2) Legal limitations of the judicial agreed on as to the proper course of 
 
 power are comprised in the clauses 17- justice : " Sed et concessum est, quod epis- 
 
 1 9, 24, 34, 38-40, 45,. 54, as follows : copi, et abbates, comites et barones, vassas- 
 
 " Communia placita non sequantur cw-> sores et libere tenentes non ad volunta- 
 
 riam nostrum sed teneantur in aliquo tern justiciariorum vel ministrorum 
 
 certo loco" (17); "nullus Vice-comes, Domini Regis, de terris et catallis suis 
 
 constabularius, coronatores vel alii bal- dissaisientur, sed judicio curise Domini 
 
 livi nostri teneant placita coronee nos- Regis secundum legitimas consuetudines 
 
 trie " (24) ; " nihil detur vel capiatur de et assisas tractabuntur vel per manda- 
 
 castero pro brevi inquisitionis de vita vel turn Domini Regis." " Nulli vendemus, 
 
 membris, sed gratis concedatur et non nulli negabimus aut differemus rectum 
 
 negetur" (36). "Nullus liber homo autjustitiam (40). Article 42 provides 
 
 capiatur vel imprisonetur," etc. (39 v. that the county court shall be held 
 
 above). This essential clause had, every month, the sheriffs tourn twice 
 
 moreover, a precedent ; for already a year ; the yearly sittings of the itine- 
 
 during the condict between the regency rant justices are to be reduced from 
 
 appointed by Richard I. and the barons, four to one. 
 a similar assurance had been mutually
 
 248 Constitutional History of England. 
 
 subsistence (contenementum), the merchant his merchandise 
 (marcandisa) , and the villein his implements of husbandry 
 (waignagium) . (iii.) For the condemnation of any to an 
 ainerciament, a co-operation of the " good men " of the neigh- 
 bourhood shall be necessary ; that is to say, a summary 
 judicial proceeding : " et nulla predictarum misericordiarum 
 ponatur, nisi per sacramentum proborum hominum de visneto." 
 This comparatively immaterial and often disregarded pro- 
 vision cuts at the root of an arbitrary police power, and of 
 such regulations as are contrary to the constitution ; and in 
 the course of the period in which the estates of the realm 
 were formed, was thoroughly carried out by the co-operation 
 of parliament. A writ, " de moderata misericordia," carried 
 out in principle the appeal to legal process against police 
 fines and administrative executions even in the local courts. 
 A fundamental rule of liberty to move from place to place, 
 to which the clergy also could appeal in their intercourse with 
 Eome, is contained in article 42 : " Liceat unicuique de castero 
 exire de regno nostro et redire salvo et secure per terrain et per 
 aquam, salvafide nostra, nisi tempore guerrsa per aliquod breve 
 tempus propter communem utilitatem regni, exceptis imprisonatis 
 et utlagatis secundum legem regni, et genii de terra contra nos 
 guerrina et mercatoribus, de quibusjfiat sicut predictum est." (3) 
 IV. Ittgal limitations of the financial pototr are already com- 
 prised in the provisions touching the feudal power. Whilst 
 those, however, are only in favour of the upper classes, a 
 number of the hardships inflicted by the fiscal Government 
 upon the freeholders and cities are next dealt with. As to 
 the auxilia (properly tallagia) of the city of London, the 
 same rule is to be applied as in the case of the aids of the 
 feudal vassals (12). London, and all other cities, burghs, 
 villse et portus, are to have their " libertates et liberas consuetu- 
 dines " (13); merchants their trade and traffic secure, and free 
 from all arbitrary impositions and tolls (41). There shall be 
 
 (3) Legal limitations of the police " omnia amerciamenta facto, injuste et 
 
 power are contained in articles 20-22, contra legem terras omnino condonentur, 
 
 24, 32, 39,42, 54, 56, primarily concern- vel fiat inde per judicium XXV baro- 
 
 ing the system of police fines : " liber num." etc. (55, 56). The carrying out 
 
 homo non amercietur pro parvo delicto of these principles was primarily the 
 
 nisi secundum modum delicti," etc. duty of the Exchequer and the King's 
 
 (Art. 20, vide above). In the case of court, as the courts of higher instance 
 
 Crown vassals the following was added : of the sheriff's tourn and the rest of 
 
 " Comites et barones non amercientur nisi the royal courts of record. For the 
 
 per pares suos, et non nisi secundum manorial courts and other courts " not 
 
 modum delicti " (Art. 21). For the of record," in which the old customs 
 
 clergy cf. Art. 22, " Nos non tenebimus still prevailed, in later times a special 
 
 terras illorum, qui convicti fuerint de writ " de moderata misericordia " was 
 
 fdonia, nisi per unum annum et unum framed, which enforced the uniform 
 
 diem, et tune reddantur terras dominis application of the principle. (Cf. 
 
 feodorum " (Art. 32). The rendering Scriven on Copyhold, ii. 852, 853.) 
 of illegal police fines null and void :
 
 Magna Charta. 249 
 
 one weight and measure for the whole country (35). No city 
 and no freeholder shall be compelled to build dykes and 
 bridges, except where such is a matter of ancient custom (23). 
 Purveyance and compulsory carriage are only to be enforced 
 against the freeholder in return for immediate payment, or 
 only with the free consent of the owner (28, 30). Neither 
 the King nor any royal officer or other person shall take the 
 wood of any one for the royal castles or for other uses, except 
 with the permission of the owner (31). Those living outside 
 the forests shall not be summoned before the forest courts 
 (44). The newly made forests shall be disforested (47). All 
 abuses concerning forests, warrens, foresters, sheriffs, and 
 their officials, shall be inquired into in every county upon 
 oath by twelve knights of the shire, chosen by the "good 
 men " of the same county (48). Common to both feudal 
 vassals and liberi homines is also the assurance relative to the 
 regulation of inheritances of personalty, and payment of 
 debts, especially with regard to the privilegia fisci (26, 27). 
 The articles concerning the treatment of the debita judseorum 
 (10, 11) are derived from the province of administration 
 of the Exchequer of Jews. On this side is apparent the 
 considerate regard paid to the lower classes of the people, 
 which may probably be attributed to the spiritual advisers. 
 The liberties granted to the Crown vassals are extended, 
 as a matter of course, to the relations of the private 
 feudal lords erga suos. The limitations imposed upon taxa- 
 tions are extended at all events to the city of London. 
 Conversely, the redress of the common grievances of the 
 country, which principally proceed from fiscal oppression, in 
 the first instance benefits the middle classes, but reaches 
 upwards to the higher classes also. Military vassals and 
 liberi tenentes stand side by side in such articles. Many 
 clauses refer to all the liberi homines, without regard to the 
 kind of property, and are so far beneficial to the villein 
 tenants as well. A few clauses are directly framed in favour 
 of the villein. (4) 
 
 (4) Legal limitations of the financial suetudines suas" (13). Here can be 
 
 power are comprised in articles 9-11, clearly seen the influence of the city 
 
 16, 25-33, 35, 37, 41, 43, 44, 48, 60, of London, which was allied with the 
 
 especially as to the more forbearing barons, and which carried the subse- 
 
 prosecution of fiscal claims (9), debts of quent clauses relating to trade, weights 
 
 Jews (10, 11), the restriction of the and measures, as well as a special 
 
 auxilia to the three old cases : " Simili clause against the weirs made in the 
 
 modo fiat de auxiliis de civitate Thames. " Nullus dietingatur ad 
 
 London " (12) ; " et civitas London faciendum majus servitium de feodo 
 
 Jiabeat omnes antiquas libertates et militis nee de olio libero tenemento, 
 
 liberas consuetudines suas, tamper terras quam inde debetur" (16). "Omnes 
 
 quam per aquas. Prseterea omnes alias comitatus et hundredi, threthingii et 
 
 civitates et burgi et villas et portus wapentachii sint ad antiquas firmas 
 
 habeant omnes libertates et liberas con- absque nullo incremento, exceptis domi-
 
 250 Constitutional History of England. 
 
 V. tJTiJf Ugal Sanction of all these liberties and assurances is 
 connected with a number of temporary provisions. But at 
 the same time this sanction unites with other articles in 
 forming the first foundation of a constitution by estates of 
 the realm. The form which had been hitherto observed in 
 the charters could not satisfy the barons, as the question of 
 their irrevocability had not been settled in judicial practice. 
 Hence they adopted the course of giving the charter, by 
 means of a solemn oath, the character of a treaty of peace 
 according to feudal custom : " Jwatum est autem tarn et parte 
 nostra, quam ex parte baronum, quod hsec omnia supradicta 
 bond fide et sine malo ingenia servabuntur." 
 
 The charter thus received the character of a joint compact. 
 But seeing that any oath taken by John was worthless, and 
 could be remitted by the Pope, and that all the limitations of 
 the Government which had been assured, were, as against the 
 sovereign curia and the Exchequer, comparatively useless, the 
 appointment of a national committee with recognized rights 
 of resistance was added thereto, which, combined with certain 
 previous articles, formed the parliamentary clauses of Magna 
 Charta.(5) 
 
 (i.) The committee of resistance was appointed in article 61 
 with the following provisions. Twenty-five barons (among 
 them the mayor of London) who should fill all vacancies in 
 their number as they occurred by co-optation, are to be elected 
 as conservators of the charter, and are to pass resolutions 
 according to majorities ; and if the King breaks any article, 
 four out of their number shall, on each such occasion, move 
 before the King or chief justice that redre&s be made ; and 
 in case of refusal they may summon the communa (probably 
 the whole of the vassals), and take from them the oath of 
 obedience, " et illi viginti quinque barones cum communa totius 
 
 nicis maneriis nostris " (25). " Una Magna Charta begin with Art. 49-52, 
 
 mensura vini sit per totum regnum and then 55-59, 61, 62. They deal 
 
 nostrum et una menswa ceremsise et with the restoration of the obsides, the 
 
 una mensura bladi," etc. (35) ; touching removal of persons named from the royal 
 
 the regulation of guardianships of the prisons, the discharge of the foreign 
 
 "tenentesperfeodifirmam,persocagium, mercenaries, the restitution of lands 
 
 per burgagium, per parvam serjante- seized sine legali judicio parium, the 
 
 riam"(3T); " omnes mercatores habeant remission of illegal fines and amercia- 
 
 salvum et securum exire ab Anglia et ments, the restoration of the lands in 
 
 venire in Anglia, morari et ire per Wales, which had been torn from their 
 
 Angliam tarn per terram, quam per possessors, the relations of England to 
 
 aquam, ad emendum et vendendum King Alexander of Scotland, and a 
 
 sine omnibus malis toltis per antiquas general amnesty : " omnes malas volun- 
 
 et rectos consuetudines," etc. (41); a tales, indignationes et rancores re- 
 
 milder administration of the royal misimus, omnes transgressiones factas 
 
 forest laws (44, 47, 48). The latter occassione ejusdem discordise a Pascha 
 
 articles form the main contents of the a regni nostri xvi. usque ad pacem 
 
 later separate charta de foresta. reformatam" 
 (5) The temporary provisions of
 
 Magna Charta. 251 
 
 terree distringent et gravabunt nos modis omnibus quibus poterunt, 
 scilicet per captionem castrorum terrarum possessionum et aliis 
 modis quibus poterunt donee fuerit emendatum secundum arbitrium 
 eorum, salva persona nostra et reginss nostrse et liberorum 
 nostrorum, et cum fuerit emendatum intendent nobis sicut prius 
 fecerunt." 
 
 This clause is so far in harmony with the spirit of the feudal 
 state of the Middle Ages, as it was based upon a mutual rela- 
 tion of feudal protection and fealty, that is, upon compact. 
 The vassals thus give expression to the fundamental notion of 
 their relation as it existed in Normandy and France, yet with 
 certain important alterations. Whilst on the Continent the 
 individual vassal regarded himself as judge of the question 
 as to whether or no the lord had broken his obligation to 
 protect him, and frequently for a trifling cause sent in his 
 letter of challenge, here in England the nobility act as a 
 corporate body. Only in their collective capacity, represented 
 by definite organs, are the barons declared entitled to resist, 
 but the feud of the individual against the monarch is in no 
 wise sanctioned. As a fact, there is contained in this harsh 
 article nothing more than a recognition of the feudal right of 
 distress, which belongs to the King by virtue of the con- 
 stitution, and which is conceded in return to the collective 
 body of Crown vassals as against the King. The concession 
 by agreement of the rights of distress was altogether so 
 entirely consonant with the legal conceptions of the Middle 
 Ages, that in this way the committee of resistance loses a 
 portion of its apparently revolutionary character, (a) 
 
 (ii.) The second clause respecting the estates of the realm 
 was intended to ensure a regular summons and right of assent 
 of all the Crown vassals in two particular cases. Thus when- 
 
 (a) The clause relating to the conj- quinque baronum, et quod gravabit nos 
 
 mittee of resistance runs -in the Ian- pro posse suo cum ipsis; et nos publice 
 
 guage of Art. 61 as follows : " et si nos et libere damns licentiam jurandi 
 
 excessum non emendaverimus, infra cuilibet, qui jurare voluerit, et nulli un- 
 
 tempus quadraginta dierum, predicti quam jurare prohibebimus. Omnes 
 
 quattuor barones referant causam illam autem illos de terra qui per se et sponte 
 
 ad residues de illis viginti quinque sua noluerint jurare viginti quinque 
 
 baronibus, et illi viginti quinque barones baronibus de distringendo et gravando 
 
 cum communa totius terras distringent. nos cum eis, faciemus jurare eosdem de 
 
 et gravabunt nos modis omnibus, quibus mandate nostro, sicut predictum est." 
 
 poterunt, scilicet per captionem castro- English jurists and historians are 
 
 rum, te-rrarum, possessionum et aliis accustomed to make very inappropriate 
 
 modis, quibus poterunt, donee fuerit comparisons between this article, and 
 
 emendatum secundum arbitrium eorum, the insolent resistance-clauses of the 
 
 salva persona nostra et reginas nostras feudal lords of the Continent, the Con- 
 
 et liberorum nostrorum, et cum fuerit stitution of Arragon, and the like, 
 
 emendatum, intendent nobis sicut prius whereas article 61 of Magna Charta is 
 
 fecerunt. Et quicunque voluerit de terra, both in form and spirit very different 
 
 juret, quod ad predicta omnia exequenda in character to the indecent violence 
 
 parebit mandatis predictorem viginti of the continental vassals.
 
 252 Constitutional History of England. 
 
 ever an aid (auxilium) was demanded in addition to the three 
 traditional cases of " honour and necessity," this is only to be 
 done "per commune consilium regni nostri" (12); and this 
 is to apply also to the auxilia of the city of London. In 
 all cases, however, a commune consilium was to be convoked, 
 whenever scutages were demanded instead of the feudal 
 military services. To that commune consilium the barons were 
 to be summoned in the following manner (Art. 14) : 
 
 " Et ad habendum commune consilium regni de auxilio assi- 
 dendo, aliter quam in tribus casibus predictis, vel de scutagio 
 assidemlo, summoneri faciemus archiepiscopos, episcopos, abbates, 
 comites, et majores barones sigillatim per litteras nostras. Et 
 prsBterea faciemus summoneri in generali per vicecomites et 
 ballivos nostros omnes illos, qui de nobis tenent in capite, ad cerium 
 diem, scilicet ad terminum quadriginta dierum ad minus, et 
 ad certum locum, et in omnibus literis illius summonitionis 
 causam summonitionis exprimemus : et sic facta summonitione 
 negotium ad diem assignatum procedat secundum consilium 
 illorum, qui prsesentes fuerint, quamvis non omnes summoniti 
 venerint" 
 
 The English barons in arms, allied with the Church and 
 the city of London, and with the consent of the country never 
 laid claim to more than this, even when at the height of their 
 success. They claimed no right of assent to the issuing of 
 royal ordinances, no right of summoning a cour de baronie, no 
 conventions assembled to deal with the grievances of the 
 nation or generally with the voting of taxes ; but only a right 
 of assenting to two positive alterations in the legal conditions 
 of feudal tenure, (b) 
 
 The possible germ of a special peers' jurisdiction was con- 
 tained finally in 
 
 (6) The clause concerning the sum- ditions of feudal tenure is a right 
 
 moningof the magnum consilium for ex.- of assenting claimed. Not a word is 
 
 traordinary auxilia, and for the purpose said of assenting to the promulgation 
 
 of fixing the scutages, has, like other of royal ordinances or laws; not a 
 
 passages, been much distorted by word about a right to summon a cour 
 
 political parties. This article is only de baronie for the exercise of a juris- 
 
 directed against the arbitrary taxation diction over the Crown vassals ; not a 
 
 of John, against the raising of the hide- word about an ancient national as- 
 
 tax from two to three shillings at the sembly for dealing with the national 
 
 commencement of his reign, against the grievances, or for the voting of taxes, 
 
 raising of the scutage from 1 to two As every investigation in detail 
 
 marks, and against the continued ex- destroys the favourite tradition of 
 
 action of it without any occasion for a a " feudal parliament in arms," of a 
 
 campaign, and above all against the permanent feudal curia, and of an es- 
 
 raising of an impost upon the personal tate of the realm formed by " the proud 
 
 property of the Crown vassal (1203), barons of the twelfth century," so are 
 
 in direct opposition to the feudal com- these circumstances connected with 
 
 pacts and the most solemn assurances Magna Charta fatal to the general 
 
 of his predecessors on the throne. conception of the Curia Regis which 
 
 Only in those cases which contain a antiquaries have imagined 
 positive alteration in the legal con-
 
 Magna Chart a . 253 
 
 (iii.) The clause dealing with amerciaments (21) : " comites 
 et barones non amercientur, nisi per pares suos et nonnisi 
 secundum nwdum delicti," the phraseology of which reminds 
 us of the peers' court which arose in later times. Since a 
 legal distinction between the greater and lesser vassals had not 
 as yet been drawn, there was actually contained in this clause 
 nothing more than a general promise of the traditional 
 administration of justice, nothing more than the "judicium 
 parium " which in Art. 39 had been assured to all free men of 
 the realm, (c) 
 
 Magna Charta accordingly contains much less of formal 
 constitutional law than has been looked for in it. But it 
 contains the leading traits of the English character and 
 constitutional system. The Norman magnates had now been 
 compelled to make their choice between the island and the 
 Continent. In England they could not shelter themselves 
 against the monarchy behind the walls of their castles, but 
 were obliged, as individual resistance was impossible, to break 
 through arbitrary power hi a collective body, making common 
 cause with the clergy, and backed up by the sympathies of 
 the people, and to win for themselves and the people common 
 rights and guarantees against such despotism, and thus base 
 the constitution primarily upon personal liberty, and upon a 
 uniform legal protection accorded to person and property. 
 This nobility, which had for generations been the first to 
 bear the oppression of the absolute monarchy, and the 
 burdens of the state, had learned to sympathize with the 
 people's wrongs, and thus began to realize its vocation of 
 placing itself at the head of the nation in the new consti- 
 tution that was being formed ; in this sense Magna Charta 
 was also a pledge of the reconciliation of the classes. Its 
 origin and its confirmations kept alive for centuries the 
 feeling of the community of certain fundamental rights for 
 all classes, and the consciousness that a nobility cannot 
 possibly assert rights and liberties without also guaranteeing 
 to the weaker classes their personal liberty. Since the right 
 of property, and the family rights of the liberi homines had 
 been for once and all uniformly framed, since a separate right 
 for nobles, citizens, and peasants, was no longer possible, 
 from this time onwards, all struggles are undertaken only 
 with the object of securely restraining the personal govern- 
 ment; and as long as the quarrel takes this direction, so 
 long do we find people and clergy on the side of the nobles. 
 Upon the foundation thus won further efforts could not tend- 
 towards asserting exclusive privileges, but only towards regu- 
 lating the political sovereign rights according to law, and thus 
 
 (c) In this sense this clause was also understood in practice (below, p. 315).
 
 254 Constitutional History of England. 
 
 gaining a constitutional co-operation. By Magna Charta 
 English history irrevocably took the direction of securing 
 constitutional liberty by administrative law. In this sense 
 Hallam's words are true: "The Magna Charta is still the 
 keystone of English liberty. All that has since been obtained 
 is little more than a confirmation or commentary ; and if 
 every subsequent law were to be swept away, there would 
 remain the bold features that distinguish a free from a 
 despotic monarchy." 
 
 But because the charter forms the beginning of living con- 
 stitutional rights, that is of enforceable rights, protected by 
 permanent institutions, England has ever again recurred to 
 it, under the best as under the worst monarchs. The place of 
 the former "confirmation of the laws of Eadward," is now 
 taken by the ever-repeated demand of the people for a " con- 
 firmation of Magna Charta." Its practical sense laid such 
 great weight upon written documents, that before the close 
 of the Middle Ages this confirmation had been thirty-eight 
 times demanded and grantedjf 
 
 t There is probably no country and Henry I., is remarkable. The most 
 no petty state in Europe which has important difference between this 
 not, at some time of pecuniary or Magna Charta and : those of the Con- 
 national distress, received its Magna tinent lies in its aiming to secure real 
 Charta ; but these long catalogues of legal protection for all classes of the 
 grievances and promises were as a rule people, without attacking or diminish- 
 speedily forgotten. Nothing but its -ing the political sovereign rights, which 
 practical aim of regulating the sove- had been already developed. It proves 
 reign rights, and class and private law, to us in this direction, how personal 
 could have availed to make the English and political liberty can only arise and 
 Magna Charta the living foundation become permanent through moderation 
 of the constitution, and could have and public spirit, and not through 
 given it the energy requisite for crea- narrow-minded separation of the upper 
 ting hundreds of later parliamentary classes from the lower. In this sense 
 statutes. The practical knowledge of -Pitt once spoke those words so often 
 political government, a knowledge quoted in the Upper House : " To 
 confined in those days to the temporal your forefathers, my lords, the English 
 and spiritual magnates of that time, barons, we owe our laws," etc. (c/. 
 and which manifested itself in the Mackintosh, 'History, vol. ii., sub anno 
 formation of the official nobility after 1215).
 
 ( 255 ) 
 
 CHAPTER XIX. 
 JF l ' rst Attempt at a CSobermnent bp (Estates of tfje l&talm. 
 
 IN scarcely any other European country did the parlia- 
 mentary constitution have such a slow and difficult birth as 
 in England. The principal cause of this difficulty, national 
 disunion, had ceased, it is true, in the thirteenth century. 
 But in the meantime the political government had taken an 
 exclusive form, which did ndt -easily admit of the insertion of 
 a corporate estate. In an early matured development the 
 monarchy had "brought its financial, military, judicial, and 
 police organization into a bureaucratic system which could 
 only be controlled by a single will; and which, in case of 
 disunion in this will, fell immediately into confusion. The 
 prelates and the temporal lords themselves had felt this fact. 
 Hence Magna Charta did not claim any immediate partici- 
 pation of the estates in the executive, but merely insisted on 
 legal limitations to the exercise of royal sovereign rights, and 
 in an extreme case, demanded the suspension of the personal 
 government until the grievance was redressed. 
 
 The result 'confirmed only too strongly the necessity of this 
 modest beginning. The representative committee of twenty- 
 five barons was chosen ; 'their names have been preserved to 
 us, as also the writs for administering the oath to the " com- 
 munitas." King John had, however, only accepted Magna 
 Charta because he never intended to keep it. The charter 
 was nowhere registered, and would have been suppressed, 
 had the barons not circulated copies of it over the country 
 for preservation in churches and monasteries. The Pope, 
 intent only on the interests of the power of the Church, on 
 demand immediately released the King from his oath. A 
 Bull disapproved and condemned the whole proceeding, de- 
 scribed the agreement as an illegal, unauthorized, and dis- 
 graceful compact, and declared the barons to be worse than 
 the Saracens. The monarchy had been but taken by surprise, 
 and still had the upper hand, even in the person of an un- 
 worthy monarch. Accordingly, John withdraws, and being 
 lord of the financial power and the castles, collects by means 
 of the preponderating power of the royal treasury a mer-
 
 256 Constitutional History of England. 
 
 cenary army, for which the nobility of the country is no 
 match, even in a righteous cause. Despairing of the issue, 
 the insurgents call a French prince and a foreign army to 
 their aid ; a desperate struggle begins, in the course of which 
 John suddenly dies, on the 17th October, 1216.* 
 
 His legitimate successor was a child of nine years of age. 
 For the first time since the Conquest the personal govern- 
 ment was in the hands of a minor. In that stormy time the 
 great Earl of Pembroke undertook the government, as Pro- 
 tector. It was the first instance in English history of a 
 statesman at the head of a victorious party being summoned 
 to apply conditions such as those proclaimed in Magna Charta, 
 which he himself, although he had not drawn them up, had 
 approved and accepted in his capacity of mediator between 
 the conflicting parties. As a matter of fact, at the Council 
 of Bristol, with general approbation and even with that of 
 the papal legate, Magna Charta was confirmed, though with 
 the omission of certain articles. It runs " Quia qusedam 
 capitula in priore charta continebantur, quse gravia et dubitabilia 
 videbantur, scilicet de scutagiis . . . placuit supradictis prelatis 
 et magnatibus ea esse in respectu quousque plenius concilium 
 habuerimus." 
 
 Besides the fine bold features of a national spirit that was 
 awaking to liberty, the charter displays the first picture of 
 an immediate contrast between State and society in an in- 
 complete constitution, and the difficulty of reconciling this 
 contrast. To this difficulty just those three articles were 
 sacrificed, which contained the first basis of a constitution of 
 estates of the realm. 
 
 (i.) Article 61 dealt with the formation of a national com- 
 mittee to uphold the provisions of the charter. The com- 
 
 * Immediately after the granting of though not probable, death by poison, 
 
 Magna Charta, John despatched an have been in modern times again iu- 
 
 embassy to the Pope, to get quit of vestigated by R. Thomson, " On Magna 
 
 his oaths and promises. Already on Charta" (1829, pp. 535-554). With 
 
 the 24th August, 1215, the condemna- John's death the situation became so 
 
 tory Bull was published. The Pope, much changed, that a number of the 
 
 as supreme head of the Church, and barons immediately forsook the cause 
 
 feudal suzerain, repudiates the actions of the French prince ; at the council 
 
 of the barons, and declares all that held at Bristol on the llth of Novem- 
 
 has been done not binding (Rymer, ber, 1216, the papal legate releases the 
 
 i. 2, p. 67 seq.\ and shortly afterwards barons from their oaths to the prince, 
 
 proceeds to excommunicate the barons. and then occurs the first confirmation 
 
 The dispute now took a very unfor- of the charter (1 Henry III.), with 
 
 tunate course, as the barons lacked the omissions which Blackstone has 
 
 both money and unity. It was not enumerated, pp. xxix.-xxxi. (see also 
 
 until the landing of Prince Louis on " Select Charters," p. 399). For the 
 
 the 21st May, 1216, that the struggle French prince matters now take such 
 
 took another turn, before the final a turn, that he withdraws with the 
 
 issue of which John died. The cir- tolerably favourable articles of peace 
 
 cumstances, which point to a possible, of the llth September, 1217.
 
 First Attempt at a Government by Estates of the Realm. 257 
 
 mittee of resistance had been called into being, but its 
 appointment had resulted in a civil war, in which the barons 
 had paid allegiance to a foreign prince. The first act of 
 their resistance was thus marred by a blot, which in the 
 changed condition of things after John's death at once led to 
 dissensions among the barons themselves. The article accord- 
 ingly was tacitly allowed to drop as rendered nugatory by the 
 disappearance of the cause. In the following decades the 
 party of the nobles involuntarily returned to the practice of 
 the committee of resistance ; it was reserved for the following 
 period to frame a constitution, which was able to maintain 
 itself without the rude help of violence. 
 
 (ii.) The clauses dealing with the voting of scutages and 
 extraordinary aids by a commune concilium regni (Arts. 12 and 
 14) were omitted, and also their extension to the auxilia of the 
 city of London. The barons, under the Protector, now stood 
 in the room of the King, and could not well resign the many 
 fertile sources of income for the carrying on of the Govern- 
 ment, arising from demesnes, forests, and the protection of 
 Jews. But the convocation of a tax-imposing assembly (in 
 the meaning of Article 14) seems to have appeared impractic- 
 able to the Protector and his friends, and for very simple 
 reasons. The ever-recurring phenomenon, that the first con- 
 stitutional ideas, which immediately proceed from a resist- 
 ance to the political power, are incapable of realization, is 
 thus confirmed. As the convocation of a national council 
 was only to take place on account of the scutagia and auxilia 
 of the King, only vassals who paid to the Crown could have 
 been thereby intended 5 that is, the tenentes in capite, but of 
 them every one. But were then greater and lesser Crown 
 vassals to be summoned without distinction, whilst the 
 great lords were still loth to concede to the hundreds of 
 squireless knights and petty possessors of plots of land, a 
 real equality with themselves ? The great vassals could not 
 exclude their pares in feudal possessions from that right of 
 assenting ; and yet in the customs of the past no ground was 
 discoverable for allowing them a curtailed right of voting. A 
 return was accordingly made to that old custom of court- 
 etiquette, according to which, the distinguished lords had been 
 hitherto summoned to court by letter, " sigillatim per litteras 
 nostras." If all the rest were only summoned collectively 
 by the Vicecomes, it might perhaps be presumed that the 
 majority of them would not appear. But still a parliament 
 after the Polish fashion would have arisen, with hundreds of 
 representatives consisting of petty possessors of single small 
 estates. Still less inclined would the great prelates feel to 
 deliberate on an equal footing with the lesser abbots and 
 
 s
 
 258 Constitutional History of England. 
 
 barons, or with an excessive number of lesser knights. Hence 
 can be explained, why the assembly thus projected was never 
 brought together, and why that clause was never comprised 
 in any later promulgation. 
 
 (iii.) The clause concerning the amerciaments of the barons 
 per pares suos (Art. 21) was indeed retained in word ; but was 
 immediately interpreted by practice to mean, that those 
 amerciaments should be recognized in the Exchequer or in 
 the King's Court, per barones de scaccario, vel coram ipso rege 
 (Bracton), or coram consilio regis, as it runs in a writ of 
 3 Hen. III. The regency of the barons itself thus acknow- 
 ledges that the law has been satisfied if the matter has been 
 referred to a commission consisting of vassals of the Crown 
 just as the judicium parium has in general been hitherto 
 treated. The result was the concession of a legal hearing 
 before the supreme tribunal. 
 
 In like manner the further course of the constitutional 
 struggle proves the truth of the remark, that the most 
 righteous resistance to despotism, and the noblest aspirations 
 of a national spirit, are not sufficiently powerful to imme- 
 diately found political liberty, but that continuous labour and 
 a positive reformation of the political system are needed ; and 
 to these Magna Charta was only able to give the impulse. 
 After some degree of tranquillity had been restored, a second 
 confirmation of the Great Charter took place in the autumn 
 of 1217, with the omission of the clauses referring to the 
 estates, but with the grant of a new charta de foresta, intro- 
 ducing a vigorous administration of the forest laws. In 9 
 Henry III. Magna Charta was again confirmed, and this is 
 the form in which it afterwards took its place among the 
 statutes of the realm.** 
 
 ** As to the confirmations of Magna III. (Blackstone, 60-67) that was 
 
 Charta, a second confirmation takes copied, but that the text was taken 
 
 place (2 Hen. III.), again with some from an Inspeximus under Edward I. 
 
 alterations, which are classified by In the February of 1226 Henry III. 
 
 Blackstone, xxxvi.-xxxviii. (c/.Charters, undertakes nominally the government 
 
 344). Among the additions is a clause in person, without confirming Magna 
 
 relating to the removal of the adul- Charta afresh (cf. below, note 1 ). Black- 
 
 terine castles of the barons and another stone, however, does not speak of this 
 
 against alienations to mortmain. The as a revocation, but only says : " The 
 
 new confirmation takes place in 9 King is said to have revoked all the 
 
 Henry III., on the llth February, 1224, charters of the forest " (Matth. Paris), 
 
 again with certain changes (Charters, At the confirmation of 49 Henry III., 
 
 353). The admission of the last- 1264, when Henry was the captive of 
 
 named version among the English col- the barons, the clause touching the com- 
 
 lections of statutes is so far correct, mittee of resistance (Art. 61) was again 
 
 as from this time onward no further adopted into it, with the omission even 
 
 changes were made in the text. All of the security reserved to the royal 
 
 later confirmations refer to the text person and family; without, however, 
 
 as thus established. Some mistakes after the King's liberation, any notice 
 
 arose purely from the fact that it was whatever being taken of it. From 28 
 
 not the original document of 9 Henry Edward I. until the latest confirmation
 
 First Attempt at a Government by Estates of the Realm. 250 
 
 Two years later, Henry III. personally assumes the reins 
 of government at the Parliament of Oxford (1227), and begins 
 his rule without confirming the two charters. At first the 
 tutorial government still continues, which had meanwhile, 
 even after the death of the great Earl of Pembroke (1219), 
 remained in a fairly orderly condition. The first epoch of 
 sixteen years of this reign must therefore be regarded purely as 
 a government by the nobility under the name of Henry III. 
 The regency had succeeded in removing the dominant influence 
 of the Koman Curia by the recall of the papal legate, Pandulf, 
 to Eome (1221), and in getting rid of the dangerous foreign 
 mercenary soldiery (1224). To raise an extraordinary revenue 
 by means of aids and scutages, conventions of prelates and 
 barons were at this time repeatedly summoned ; not indeed 
 according to the letter of Article 14 of the charter, but in 
 such a manner, that according to the discriminating judgment 
 of the regency in conjunction with the prelates, the most 
 illustrious members of the barony were summoned in com- 
 paratively large numbers, who then, after some discussion, 
 granted the subsidies demanded. (1) 
 
 With the disgraceful dismissal of the chief justiciary, 
 Hubert de Burgh, there begins a second epoch of a personal 
 
 (4 Hen. V.) twenty-nine resolutions 
 were passed by Parliament confirming 
 the charter, of which not less than four- 
 teen were in the reign of Edward III. 
 
 (1) The general history of this 
 period has been impartially written by 
 Lappenberg-Pauli, iii. pp. 489-875. 
 Compared with the older descriptions, 
 the Peers' Keport on the dignity of a 
 Peer contains the most sober criticism. 
 An authentic digest of the information 
 respecting 135 concilia, and similar 
 assemblies under Henry III., has been 
 given by Parry (" Parliaments and 
 Councils," pp. 24-49). For the first 
 epoch of sixteen years the following 
 events must be regarded : In 2 Henry 
 III. (Council of St. Paul's): second 
 confirmation of Magna Charta, for 
 which the prelates, earls, barons, 
 knights, "et libere tenentes omnes de 
 regno" vote a fifteenth. In 9 Henry 
 III. (curia of Westminster, 25th Decem- 
 ber, 1224): solemn confirmation of the 
 two charters, combined with the voting 
 of a fifteenth. In 11 Henry III., 
 January, 1227 (council of Oxford): 
 the King personally assumes the 
 Government. " The King declares 
 himself of age, and by his own autho- 
 rity cancels the two charters, as made 
 and signed when he was not his own 
 master, and on the ground he was not 
 
 bound to keep what he was forced to 
 promise" (Parry 27 quoting Matthew 
 Paris, Hody, 304). The correctness of 
 this assertion, which has not been 
 otherwise confirmed, is however rightly 
 doubted, as the government by the 
 nobles, which still continued, had 
 certainly no interest in setting aside 
 Magna Charta. In 15 Henry III. 
 (colloquium at Westminster) : an auxi- 
 lium de quolibet scuto was demanded. 
 The secular magnates consented; the 
 prelates asserted that ecclesiastical 
 persons were not bound to submit in 
 this matter to the resolutions of lay- 
 men. The aid was, however, granted 
 after a prorogation a few months later. 
 In 16 Henry III. (7th March, 1232, 
 colloquium of Westminster) : an auxi- 
 lium generate was demanded. The 
 temporal Crown vassals declared that 
 they were not bound to any aid, as 
 they had done personal military ser- 
 vice out of the kingdom. The prelates 
 gave the evasive answer, that many 
 of their invited members were not 
 present. On the 14th September 
 (colloquium of Lambeth), however, the 
 grant of a subsidy was made, in the 
 name of the clergy, and the earls, 
 barons, knights, and liberi homines 
 et villani (Foedera, 16 Hen. III.).
 
 260 Constitutional History of England. 
 
 rule of Henry III. (1232-1252), which for twenty continuous 
 years, presents the picture of a confused and undecided struggle 
 between the King and his foreign favourites and personal 
 adherents on the one side, and the great barons, and with them 
 soon the prelates, on the other. Untaught by the evil expe- 
 riences of favouritism shown to foreigners under Stephen and 
 John, the weak and frivolous King put himself at once entirely 
 in the power of foreign favourites. The conduct of the 
 business of the State by Bishop Peter des Roches (of Poitou), 
 called forth a storm of indignation among the temporal mag- 
 nates. At the colloquium at Oxford (17 Henry III.), the earls 
 and barons refuse to appear in person, and declare " that 
 they will never obey the summons of the King, but will 
 choose a new King, unless he dismisses the Bishop of Win- 
 chester and the lords from Poitou." When on the third 
 summons the barons appeared armed, the King declared 
 sentence of banishment and confiscation of their estates. At 
 the next colloquium at Westminster, the Primate threatens the 
 King with excommunication unless he changes his mode of 
 government. The King on this occasion gave way ; he dis- 
 missed the Bishop of Winchester and the objectionable 
 counsellors, and declared an amnesty with the refractory 
 barons ; and then began for a few years tolerably friendly 
 relations with the magnates, who still continued to grant the 
 necessary supplies. (2) 
 
 But the incapacity and the incorrigible frivolity of Henry 
 III. very soon aggravate his position. The King's uncle and 
 his relations again form a court government, his French kins- 
 men seize upon the great offices and fiefs ; and in order to 
 obviate the probable opposition of the magnates to the 
 
 (2) The authoritative precedents of time the publication of a formal decree 
 
 this period are : In 19 Henry III. a of the realm had taken place ; but the 
 
 council of the prelates, barons, and form and framing of the Rotulus had 
 
 "all other Crown vassals," who vote nothing unusual in it. It is rather 
 
 a considerable auxilium (Close Rolls, simply the language of Normandy, 
 
 19 Hen. III.). In 20 Henry III. (20th according to which men gradually 
 
 January, 1236), curia of Merton, at began to call the more important 
 
 which the provisiones, assisse, or statuta enactments, " etdblisse.ments" or sta- 
 
 of Merton are resolved by the spiritual tuta. In 21 Henry III. (council of 
 
 and temporal barons present, " which Westminster), the prelates, earls, 
 
 have been from time immemorial con- barons, milites et liberi homines pro 
 
 sidered as the oldest act of statute se et snis vittanis, grant a thirteenth 
 
 law" ("Parl. History," i. 32; Coke, of personalty. In 22 Henry III. (council 
 
 "Inst.," ii. 96). The Peers' Report of London), the magnates appear 
 
 (i. 460) acknowledges that the autho- armed, and after long discussion the 
 
 rity of a small number of barons so King promises on oath to carry on 
 
 summoned, must be still considered as his government by means of a definite 
 
 sufficient for legislative acts. The number of distinguished men. In 24 
 
 enactment itself calls itself a "pro- Henry III. (council of London), the 
 
 vitsio ; " the name often used at an bishops produce thirty articles against 
 
 early epoch "Statuta" is often ex- the King, relative to violations of 
 
 plained by saying, that for 'the first Magna Charta (Hody, 320).
 
 First Attempt at a Government by Estates of the Realm. 261 
 
 ministers of the Crown, the great offices of State begin to be 
 left unoccupied, the central administration being conducted 
 by office clerks. In this critical time one special incident 
 again occurs, a confirmation of Magna Charta. In 21 Henry 
 III. the King finds himself, in consequence of pressing money 
 embarrassments, again compelled to make a solemn confirma- 
 tion of the charter, in which once more the clauses relating 
 to the estates are omitted. Shortly afterwards, as had hap- 
 pened just one hundred years previously in France, the 
 name " parliamentum " occurs for the first time (Chron. 
 Dunst., 1244 ; Matth. Paris, 1246), and curiously enough, 
 Henry III. himself, in a writ addressed to the Sheriff of 
 Northampton, designates with this term the assembly which 
 originated the Magna Charta : " Parliamentum Runemede, 
 quod fuit inter Dom. Join., Regem patrem nostrum et barones 
 suos Angliee " (Eot. Glaus., 28 Hen. III.). The name " par- 
 liament," now occurs more frequently, but does not supplant 
 the more indefinite terms concilium, colloquium, etc. In the 
 meanwhile the relations with the Continent became compli- 
 cated, in consequence of the family connections of the mother 
 and wife of the King, and the greed of the papal envoys. 
 The foolish compliance of the King with all demands, and 
 the waste of the pecuniary resources of the country in the 
 vain endeavour to maintain the English influence upon the 
 Continent, tended more and more to impel the spiritual 
 magnates to head the opposition against the King and against 
 the Pope. From the year 1244 onwards, neither a chief 
 justice nor a chancellor, nor even a treasurer, is appointed, 
 but the administration of the country is conducted at the 
 Court by the clerks of the offices. The conventions of mag- 
 nates met these proceedings by violent public complaints, 
 refusal of subsidies,, repeated demands that their counsellors 
 should be appointed to the offices of State, and finally by an 
 accusation of treason preferred against the justiciary, Henry 
 de Bath. (2 a ) 
 
 (2 a ) The important precedents in this 28 Henry III 1 . (Council of Westminster 
 
 period are : In 26 Henry III. (1242), Hall), prelates and barons deliberate 
 
 a council was held at London, at which separately. By common consent of 
 
 were present "omnes Anglise magnates." both, a commission was appointed to 
 
 The royal writ for this assembly is im- draw up definite articles to be sanc- 
 
 portant, as it contains the express sum- tioned by the whole assembly ; which 
 
 mons to deal with State business ; " ad articles were to regulate the conduct 
 
 tractandum nobiscum una cum cxteris of the King, the appointment to the 
 
 Magnatibuit nostris quos similiter fed- great offices, etc. This joint declara- 
 
 mus convocari, de arduis negotiis, statum tion of the estates, however, was re- 
 
 nostrum et totius regni nostri specialiter jected by the King, and the assembly 
 
 tangentibus." After long discussion an was prorogued. In the assembly when 
 
 aid for the war against France was again convoked, the King promises to 
 
 n- fused, and a written protest sent in observe the liberties which he swore at 
 
 (Peers' Report, iii. Appendix I.). In his coronation (1220) to maintain. A
 
 262 
 
 Constitutional History of England. 
 
 With the year 1252 begins a third epoch of this reign of 
 fifty-six years (1252-1266), in which the King comes under 
 the dominant influence of the barons. Till then the dis- 
 contented magnates had lacked a proper leader. They now 
 obtained leaders in the powerful Earl of Gloucester, and the 
 politic Earl Simon de Montfort, brother-in-law of the King. 
 To the internal and external complications there now is 
 added the foolish endeavour to gain the Crown of Sicily for 
 the King's son. After long discussions the treaty for this 
 purpose was concluded, in which Henry involved himself in 
 serious obligations to the Pope. The incapable internal 
 government had fallen into a chronic state of pecuniary em- 
 barrassment, whilst the estates of the realm refused to raise 
 demands of hitherto unheard-of amount. The vacillation and 
 faithlessness of the King, his incapacity to conduct the ex- 
 ternal and internal affairs of his realm, his refusal to choose 
 any suitable counsellor, led the discontented magnates to 
 revert to the idea of a protectorate or regency, such as had 
 been carried on with tolerable success during the first sixteen 
 years of the reign. They no longer hesitate to obtrude the 
 leading officers upon the King. (3) Without calling in question 
 
 scutagium of twenty shillings is voted 
 for the marriage of his eldest daughter 
 (Hody, 322). In 29 Henry III., the 
 magnates refuse an aid for the campaign 
 against Wales. In 30 Henry III. ( 1 246), 
 a great assembly was held at London, 
 which is first called a Parliamentum in 
 Matth. Paris, A.P. 1246 (c/. Rot. CL, 
 28 Henr. III.). The next instance of 
 the use of the term in an official docu- 
 ment is 42 Henry III. (Peers' Report, 
 i. 91, 99, 461). In 32 Henry III., a 
 council at London refuses an aid, and 
 presents a list of national grievances, 
 which the King promises to redress. 
 In 33 Henry III. (council of London), 
 the magnates demand that they shall 
 have a voice in the appointment of the 
 chancellor, chief justice, and treasurer. 
 At this time Henry III. endeavours 
 by popular administrative measures to 
 gain influence against the dissatisfied 
 barons. He personally assembles the 
 sheriffs in the Exchequer, commends 
 to their protection the Church, and 
 the widows and orphans; a villein is 
 not to be distrained on for the debts 
 of his lord, except in case of exigency ; 
 the conduct of the lords towards their 
 tenants is to be watched over, and the 
 latter are to be protected against ex- 
 cesses; the sheriffs are not to let the 
 under districts in the hundreds and 
 other bailiwicks at rack rent, etc. In 
 
 35 Henry III., an assembly was held 
 in London at which the justiciary, 
 Henryde Bath, was indicted on a charge 
 of high treason. In 36 Henry III., at the 
 
 Sarliament of Westminster the papal 
 emand of a tithe from the manors of 
 the prelates for the Crusade was op- 
 posed, on the ground that their griev- 
 ances must first of all be redressed. 
 
 (3) The precedents in the third 
 period are : In 37 Henry III., the 
 clergy vote a tithe for the Crusade, 
 the knights a scutagium for the cam- 
 paign in Gascony. Both charters of 
 liberties were again confirmed. In 38 
 Henry III. (27th January, 1254), a 
 council takes place in London, with 
 a formal summons to State business 
 (ad ardua negotia nostra). The tem- 
 poral prelates refuse a grant of money; 
 the bishops and abbots promise an aid 
 for the case of necessity, but only for 
 themselves, and not for the rest of the 
 clergy (Peers' Report, i. 93, 94). On 
 the 26th April, 1254 (council of West- 
 minster), under the regency, in the 
 absence of the King, the magnates 
 having bound themselves to follow the 
 King to Gascony, cum equis et armis, 
 the sheriffs are instructed, in like man- 
 ner, to summon to service all the rest 
 of the Crown vassals who possess twenty 
 libratas terras in capite, and to send in 
 addition each two legales et discretos
 
 First Attempt at a Government by Estates of the Realm. 263 
 
 the royal ruling power, all the struggles at this time directly 
 refer to the subject of appointments to the chief offices in the 
 King's council. In the year 1248, the barons had raised 
 afresh their complaint against the " favourites," particularly 
 on the point that neither a chief justice, nor a chancellor, 
 nor a treasurer, had been appointed " in parliament." In 
 order to appease them another confirmation (1253.) of the 
 charter took place at a convocation of the prelates in the 
 great hall at Westminster, accompanied by the greatest eccle- 
 siastical ceremony, with anathemas and threats of excom- 
 munication against every transgressor. Henry swears to 
 maintain the charter "so surely as he is a man, a Christian, 
 a knight, an anointed and crowned King." Amidst much con- 
 fusion and rumour of war, these struggles reach their climax 
 at the council of Oxford (1258), afterwards called the " Mad 
 Parliament," at which the discontented magnates resolve to 
 appoint a sort of protectorate government. The difficulty 
 lay principally in the factions among the magnates them- 
 selves ; and in the participation which the lesser Crown 
 vassals (the bachellaria Anglise) now claimed in these mea- 
 sures. Therefore a kind of electoral system had to be 
 invented in order to concede a share to these parties as well 
 as to the lesser tenentes in eapite. Thus an artificial and 
 complicated system of electoral proceedings was arrived at, 
 which was apparently borrowed from that in use for com- 
 pacts, arbitrations, and ecclesiastical meetings, where there 
 were two definite and opponent parties (Stubbs, ii. 77). 
 Twelve of the royal council and twelve barons were to meet 
 together and appoint a permanent council of fifteen, which 
 actually for some time took upon itself all the powers of the 
 royal government. The constitutional ideas of this period 
 
 milites to the council. In 39 Henry ter), the magnates and clergy re- 
 III. (parliament at London), the King peatedly refuse an aid for the war 
 demands an auzilium. The estates in Sicily. In 41 Henry III. (parlia- 
 claim strict adherence to the charters, ment at London), the King, on his 
 and the appointment of the chief jus- promising faithful observance of the 
 tice, the chancellor, and treasurer, who charters, receives an extraordinary aid 
 are not to be removed, " nisi de com- from the clergy ; three weeks later, at 
 muni regni convocati concilia et delibera- Westminster, however, both estates 
 tione." The assembly was prorogued. again refuse the aid for the war in 
 On its re-assembling, the magnates, on Sicily. In 42 Henry III. (10th April, 
 an aid being demanded for the war in 1258) (parliament at London), the 
 Sicily, declared that the King had em- barons hold out the prospect of a corn- 
 barked on that affair, " sine concilia mune auxilium, if the King will con- 
 suo et consensu baronagii ; " that they sent to reform the administration of the 
 had not all been summoned according realm. The King promises on oath 
 to the provisions of Magna Charta, that this shall be done by twelve fideles 
 and that they would not therefore give of his council, and twelve other fideles, 
 any answer, and grant any aid without who shall be chosen by the proceres 
 the co-operation of the rest. In 40 themselves. 
 Henry III. (parliament at Westmins-
 
 264 Constitutional History of England. 
 
 are the expression of the views of the barons as a class on 
 the subject of their participation in the political government ; 
 a parliament three times a year ; annual appointment of the 
 chief justice, chancellor, and treasurer in parliament ; the 
 barons to undertake to guard the royal castles ; the sheriffs in 
 future to be chosen by the counties. On the other hand, the 
 barons shall 'be no longer bound to appear as suitors before 
 the sheriff. (3 a ) 
 
 The regency based upon these ideas procures obedience to 
 be sworn to itself, then expels the King's nearest relations, 
 and prolongs the tenure of offices in its own interest. On 
 this point fresh dissensions arise among the nobility. An 
 attempt at mediation by King Louis of France results in an 
 advantage to the King, who for a short time once more gains 
 the upper hand. But the confederation of the nobles under 
 Simon de Montfort now has recourse to arms, and the King 
 is taken captive in the battle of Lewes (12th May, 1264) ; 
 Magna Charta is again confirmed, a new regency appointed 
 in the name of the King, and an assembly of twenty-three 
 barons of the party of nobles convoked as a " parliamentum." 
 But the victorious party meets from the first with but doubtful 
 obedience. The county officers appointed by it manifest an 
 arrogant and arbitrary behaviour. During the reaction, and 
 the disunion of the leaders which soon again ensued, Prince 
 
 (3 ft ) On the llth June, 1258, the deliberations, and especially in uuder- 
 
 prelates, earla, and "nearly a hundred taking the burdens of the communitas. 
 
 barons " appeared at this meeting at The " twelve probes hommes, with the 
 
 Oxford, which in a royal " letter of safe King's council in the three parliaments, 
 
 conduct " of the 2nd June is called a shall deal with all the public affairs of 
 
 Parliamentum. Each party choose for the nation ; and the communitas shall 
 
 themselves twelve for a committee of accept as settled what the twelve do." 
 
 twenty-four, these twenty-four then Other ordinances also were resolved 
 
 choose four from their number, and upon. The assembly chose a spe- 
 
 the four thus elected form the royal cial committee of twenty-four (three 
 
 council of fifteen persons. The com- bishops, eight earls, thirteen barons), to 
 
 mittee thus elected of twenty-four, deliberate upon an auxilium, on which 
 
 demands first of all the faithful observ- matter, however, no final decision was 
 
 ance of the charters which have been arrived at. A decree further ordained 
 
 so often sworn to. The appointment that in each county " quatuor discreti 
 
 of the chief justice, chancellor, trea- et legates milites " are to be chosen to 
 
 surer, and other officers to be elected deliberate on the national grievances 
 
 annually shall for ever reside in the and report thereon at the next parlia- 
 
 committee. Three times a year a par- ment. These are the main character- 
 
 liament is to be held : on the 6th of istic resolutions of the Mad Parliament 
 
 October, 3rd of February, and 1st of at Oxford, which the Peers' Report, i. 
 
 June. In these judicial assemblies, 101-127, treats of in detail. In conse- 
 
 the chosen counsellors of the king quenceof the application of the elective 
 
 shall appear (whether they be sum- principle, the central government now 
 
 moned or no), to deal with the common fell into the hands of an elected national 
 
 business of the realm, in so far as the ministry, consisting of fifteen persons, 
 
 King commands it. For this purpose the majority of whom were hostile to 
 
 twelve persons were appointed (two the King, and thus begins a systematic 
 
 bishops, one earl, nine barons), to re- party government, 
 present the communitas in such further
 
 First Attempt at a Government by Estates of the Realm. 265 
 
 Edward succeeded (28th May, 1265) in escaping from the 
 captivity in which he had been kept by the barons, and with 
 a hastily collected army of followers surprised the insurgents. 
 After the battle of Evesham, in which Simon de Montfort 
 himself was slain, the party of the barons appear in the 
 course of a few months to have been entirely scattered. (3 b ) 
 
 The fourth and concluding epoch of this reign takes ex- 
 ternally a quiet course with the conclusion of peace, an amnesty, 
 and the arbitrators' awards (dictum of Kenirworth). The 
 King once more takes back the power of appointing to offices. 
 Such of the rules laid down in the provisions of Oxford as 
 are not at variance with the royal prerogative, are confirmed 
 
 (3 b ) The resolutions of Oxford proved 
 in the event that it was impossible to 
 apply a principle of election to the in- 
 formal and inharmonious vassals of 
 the Crown in England. "Almost a 
 hundred barons" had appeared at 
 Oxford ; but even this comparatively 
 small number of lesser Crown vassals 
 was sufficient to pass extravagant reso- 
 lutions. Those members elected by 
 the lesser vassals appeared only as 
 representatives of the claims of the 
 feudal nobility. In the elections the 
 Church was most grudgingly dealt 
 with. But most of the lesser knights 
 also were yet ill satisfied with the 
 committee of estates of twelve, which 
 was to represent them once and for 
 all. Even in the next parliament 
 (6th October, 1258), the " Communitas 
 bachellarix Anglix " sends in a sort of 
 loyal address and a complaint directed 
 to Prince Edward. The disunion among 
 the barons increased. In 45 Henry III. 
 (parliament at Winchester, 1261), the 
 King lays before them a papal bull, 
 by which he has been released from 
 his oath to observe the provisions of 
 Oxford, and which in like manner 
 absolves the prelates and laity from, 
 their oaths in respect of all decrees 
 prejudicial to the King. The Bishop 
 of Worcester and Simon de Montfort, 
 on the other hand, summon for the 
 21st September, 1261, an assembly at 
 St. Albans, to which three knights are 
 summoned from each county. The 
 King summons for the same day a 
 council at Windsor, and commands the 
 sheriffs to send the said knights to the 
 King, and to no one else, " supra pro- 
 missis colloquium habituri." The sub- 
 sequent parliaments in vain negotiate 
 with the view to a compromise. In 48 
 Henry III. (parliament 13th December, 
 1263), the dispute between the King 
 
 and the barona is referred to the judg- 
 ment of the King of France, as arbi- 
 trator. This judgment is published, 
 and declares the provisions of Oxford 
 null and void. In 48 Henry III. (par- 
 liament at Oxford, 30th March, 1264), 
 the barons adhere to the assertion that 
 the provisions so solemnly sworn to, 
 were based upon Magna Charta, and 
 declare to abide by them until the 
 end of their lives (Hody, 359). Im- 
 mediately afterwards the barons' war 
 breaks out ; the King is vanquished 
 and taken prisoner in the battle of 
 Lewes, on the 12th May, 1264. On 
 the 25th of May peace is proclaimed ; 
 in twenty-nine counties conservators of 
 the peace were appointed, and writs 
 (dated 4th June, 1264) are issued sum- 
 moning a parliament, to which also 
 " quatuor de legalioribus et discretio- 
 ribus MHitibus Comitatus, nobiscum 
 tractaturi de negotiis predictis," were 
 summoned. At this parliament, held 
 at London, decrees were issued by the 
 prelates, barons, and the communitas 
 terras there present, pro pace regni. 
 But now a rupture takes place between 
 Montfort and the Earl of Gloucester. 
 In 49 Henry III. (20th January, 1265), 
 a parliament is held in London, to 
 which were summoned the Archbishop 
 of York, twelve bishops, sixty-five 
 abbots, thirty-six priors,,and the Master 
 of the order of the Templars, and also 
 five earls, and seventeen barons, the 
 last named probably all belonging to 
 the party of Simon de Montfort (Peers' 
 Reports, i. 141-145). But there is 
 besides, a clause to the effect that the 
 Vicecomites are to send two knights 
 from every county, the cities and 
 burghs two citizens, and the cinque 
 ports each four men to the assembly 
 (see note at end of the chapter).
 
 266 
 
 Constitutional History of England. 
 
 by the King with the consent of parliament ; and after severe 
 trials we find Henry again in the parliament at Marlebridge, 
 regulating the affairs of the nation as law giver, though he has 
 given up his foreign favourites, and has repeatedly confirmed 
 Magna Charta. (4) 
 
 The parliamentary progress in this chain of events touches 
 two points : 
 
 (i.) The right of the Crown vassals to assent to the impo- 
 sition of scutagia and extraordinary aids, is established by 
 more than twenty precedents, and indeed as much by grant 
 as by refusal. 
 
 (ii.) In connection with the tax-voting assemblies, the 
 participation of the magnates in the promulgation of royal 
 ordinances also revives. A number of the legislative reso- 
 lutions of this period were, in the later judicial practice, 
 put on the same footing with the subsequent parliamentary 
 statutes, and were enrolled among the collections of laws ; 
 notably, the Provisions de Merton (Eotuli, cl. 20 Henry 
 III.), and the so-called statutwn de Marleberge (Eotuli, cl. 44 
 Henry III.), etc. This last is at the outset described as 
 " provisiones, ordinationes et statuta subscripta," and is simi- 
 
 (4) The important precedents in the 
 fourth period are: In 49 Henry III. 
 (parliament at Winchester, 8th Sep- 
 tember, 1265), the bishops were sum- 
 moned with the exception of the four 
 bishops belonging to Montfort's party. 
 Also a number of secular Crown vas- 
 sals, including the widows of the earls, 
 barons, and knights, who had been 
 slain or taken prisoners in battle. 
 The landed estates of the rebels were 
 confiscated and distributed amongst 
 the " friends of the King." The frivo- 
 lous and faithless conduct of the King, 
 however, caused the Earl of Oxford 
 again to appeal to arms, and to play 
 the part enacted in later times by Duke 
 Maurice of Saxony. In 50 Henry III. 
 (24th August, 1266, parliament at 
 Kenilworth), a commission of three 
 bishops and three barons was appointed 
 by the King et a baronibus consiliaribus 
 Anglite, to provide for the welfare of 
 the country, and for those who had 
 been disinherited. Those six are, in 
 like manner, to choose six others. The 
 papal legate and Prince Henry are to 
 decide as umpires. The so-called 
 dictum (award), of 'Kenilworth was 
 agreed on. At the parliament held 
 at Northampton on the 26th of October, 
 the verdict of the twelve was pub- 
 lished and confirmed. The partisans 
 
 of Montfort were restored to their 
 possessions on payment of five years' 
 income, or less, from their estates, ac- 
 cording to the gravity of their offence. 
 On the 18th of November, 1367, a par- 
 liament or commune concilium regni 
 was held at Marlborough, " ad meliora- 
 tionem regni et expeditionem justitise." 
 There were present, besides the mag- 
 nates et discreti, also the chief justice, 
 the chancellor, the judges, and others 
 of the King's council. The resolutions, 
 under the name of the " Statuta of 
 Mar leberge," must always be considered 
 as a portion of the national legislation 
 (Peers' Keports, i. 159). In 53 Henry 
 III. (parliament at Westminster), the 
 potentiores of the cities and burghs, 
 as well as the magnates, were invited 
 to the solemn translation of the bones 
 of Eadward the Confessor to West- 
 minster Abbey. After the close of 
 the ceremony the nobiles form a par- 
 liament and grant a twentieth with 
 the consent of the regni majores 
 (Peers' Report, i. 161). In 55 Henry 
 III., on the 13th of January, 1271, at 
 a parliament of the magnates held iu 
 London, the lords and others who had 
 been disinherited were completely re- 
 stored to their possessions per commu- 
 nem assensum. In the following year 
 Henry III. died.
 
 First Attempt at a Government by Estates of the Realm. 267 
 
 lar in form and contents to the statutes published under 
 Edward I.*** 
 
 Among the varying fortunes of these struggles, the advance 
 of the Crown vassals towards a constitutional position is un- 
 mistakably evident. After numerous confirmations so much 
 had been achieved, that even at the climax of each successive 
 reaction there is no longer any question of a repeal or curtail- 
 ment of Magna Charta. The omission of articles 12 and 14, 
 which dealt with the grant of scutagia and auxilia, was com- 
 pensated for by an effectual practice of grant and refusal. 
 All circumstances appear to concur favourably to originate a 
 constitution of the estates of the realm. A weak and faith- 
 less monarch endeavours to get rid of the disagreeable gua- 
 rantees of Magna Charta ; he is forced on five different occa- 
 sions solemnly to recognize their validity. He endeavours in 
 the old way, with the help of favourites and official clerks, to 
 restore personal rule ; the power of the prelates and barons 
 drives him to dismiss these counsellors, to banish them, and 
 to accept the great officers who are directly forced upon him. 
 His chronic state of pecuniary embarrassment compels him 
 constantly to assemble parliaments ; but almost every demand 
 is met by statements of national grievances, which the Govern- 
 ment sees itself compelled to redress. Prelates and barons 
 vie with each other in an opposition, which is based upon 
 the memories of the Great Charter, upon common interests, 
 upon an increasing respect for class interests and associa- 
 tions, and upon the weakness and perverseness of the King. 
 The discontented barons at length find a leader in Simon de 
 Montfort, the brother-in-law of the King, a magnate renowned 
 alike as a statesman and a general. Under such leadership 
 the nobles succeed for the first time in vanquishing the 
 monarchy in open battle, and in taking captive the King and 
 the heir to the throne. 
 
 And yet the great successes of the barons are neutralized 
 with marvellous rapidity ; no parliamentary constitution 
 results from their victory, in the sense of the feudal constitu- 
 tions of the Continent ; because as a fact the material con- 
 ditions of a parliamentary constitution were still wanting, 
 alike in the form of the governmental power, and in the 
 formation of the estates. 
 
 *** It is from the precedents given laws, most completely into the "Sta- 
 in notes 1-4 that the above results, viz. tutes of the Realm " (1810), edited by 
 the right of the barons to assent to the the Record Commission. The most 
 extraordinary aids, and their partici- notable are the Provisions de Merton 
 pation in the most important decrees (statutes, p. 1), the Statutum Hibernix 
 of the King, are deduced. From the (p. 17) the provisions touching leap 
 so-called Statute of Merton onwards, year (p. 7), the Dictum de Kenilworlh 
 a number of these ordinances were (p. 12), the Statutum de Marleberge 
 adopted into the later collections of (p. 19).
 
 268 Constitutional History of England. 
 
 In the first place, the royal rule had still the character of 
 absolutism. All sovereign rights' still appeared as emanations 
 from a personal will. The possessions and rights of the 
 dominant class, the position of the vassals of the towns, every 
 form, normal or exceptional, of the liberties and franchises, 
 was still based upon the personal decrees of the king. The 
 limits of this power had indeed been indicated in general 
 outlines by Magna Charta ; but the executive laws were still 
 wanting which were to introduce these principles into the 
 practice of the Exchequer, and of the royal county and local 
 magistracies. Against the decided personal will of the king, 
 neither the committee of the King's court, nor the bureau- 
 cratical Exchequer afforded a reliable protection. How should 
 the discontented magnates in such a constitution establish a 
 check upon the squandering of the national resources, the 
 abuse of the discretionary military, financial and judicial 
 powers, unless they themselves exercised these powers ? All 
 political administration was so framed as to receive its 
 impulse directly from the King and his personal advisers. 
 This bureaucratic form turned all the influence exercised by 
 the magnates in the direction of appointments to the great 
 offices and the shrievalty. They were thus in the most direct 
 way placed in possession of the power ; but the influence and 
 the sagacity even of the most clear-headed leader could not 
 hinder the immediate abuse of this power ; an abuse which 
 was at once itself felt by the opposite party, as well as by the 
 lower classes, and incited them to resistance. Every exercise 
 of the rights of sovereignty was regarded by jealous partisans 
 as despotic ; and every refusal of a favour was interpreted by 
 adherents as an insult and a reason for revolting. Without 
 any fault, so far as is proved, of the great leader, the un- 
 limited power was converted into a party instrument in the 
 hands of the victorious, but politically speaking inexperienced 
 party. The dissatisfaction and reaction that ensued, restored 
 the so-called " King's friends," i.e. foreign adventurers, 
 covetous dependents, and officious clerks to their former posi- 
 tions. As the monarchy is in no direction equal to the 
 situation, there arises that wavering and apparently aimless 
 struggle which we have seen. 
 
 But regarded from below also, the Crown vassallage still 
 lacked the form for an adequate representation as a collective 
 whole. Their feudal position excluded the sub-vassals, as it 
 did all the other freeholders, from equality with the Crown 
 vassals. In this period the Crown vassals still comported 
 themselves as the communitas terras, as a matter of course 
 and in good faith, knowing that they had the nation at their 
 back. In another direction, however, the esprit de corps, and
 
 First Attempt at a Government by Estates of the Realm. 269 
 
 the self-esteem of military honour confirmed the lesser King's 
 vassals in the idea of their being pares ; whilst the princely 
 lords, who were related to the royal house, and also the pre- 
 lates, refused to recognize such an equality, which in point of 
 numbers would have placed them in a modest minority. An 
 election of representatives of the inferior nobility to attend a 
 concilium regis could no more be successful in those times 
 than at the present. If real political performances were to be 
 represented, the thousands of sub-vassals, the freeholders and 
 the towns were of greater importance than the lesser barons. 
 The attempt to allow only a hundred " barons " at the 
 Parliament of Oxford to participate at the election of a 
 national committee, resulted in an immoderate assertion of 
 feudal claims. The personal rule is followed by a personal 
 opposition rule with confiscations, banishments, and bloody 
 struggles, in which on both sides the followers are sacrificed, 
 whilst the great lords introduce among one another private 
 warfare, letters of challenge and all the ceremonial of 
 chivalry; a state of things which, under an impotent and 
 perverse Government, appears worse than the previous national 
 grievances. 
 
 There was still something incomplete in these constitutional 
 conditions which neither the spiritual nor temporal barons 
 were able of their own energy to surmount. It consisted in 
 the onesidedness of each social class interest, so that each 
 party of the barons after gaining the victory, knew of no 
 other use for the absolute political power, than to advance 
 and enrich themselves and their party. In like manner from 
 those party struggles no form was discoverable for giving 
 the lesser barons a constitutional position by the side of the 
 greater, and for securing to the freeholders of the land the 
 portion belonging to them, side by side with both. Only 
 the negative experience had as yet been made that it was 
 unadvisable to form the inferior nobility into a body of 
 electors. The politic leader of the party of the nobles had, it 
 is true, found a form for the representation of the larger 
 communitas, but it was once more lost in the party conflict. 
 It was reserved to the able successor of Henry III. to 
 develop the third element which was still wanting in the 
 representation of the State. 
 
 That third factor is the collective body of the sub-vassals and 
 the freemen of England. The communitas of the counties and 
 cities had been hitherto excluded by the feudal system from 
 immediate participation in national affairs. This defect had 
 been involuntarily acknowledged on all sides. From the 
 commencement of the reign of Henry III. the attentions 
 paid to them are increased. They are requested to bring
 
 270 
 
 Constitutional History of England. 
 
 forward, by deputies, their complaints against the sheriffs ; 
 they are employed in reforming and raising the taxes ; they 
 are offered the election of their own sheriffs ; and in 1258 
 they are invited to choose two knights " vice omnium et singu- 
 lorum," in order that these shall appear to deliberate upon 
 the auxilia, " coram consilio regis." In 1261 Simon de 
 Montfort summoned three knights from each county to a 
 deliberation upon the " State business," whilst the King in- 
 vited the same deputies to his council at Windsor. But after 
 Henry had been taken prisoner, Simon de Montfort sum- 
 moned, in the King's name, two knights from each county, 
 and two citizens from a number of townships to a national 
 council on the 28th of January, 1265 ; and so in a certain 
 sense this epoch may be said to close with the birth of the 
 Lower House. 
 
 NOTE TO CHAPTER XIX. The germs 
 of a representation of the shires and 
 cities by chosen members appear at 
 the close of this period as first at- 
 tempts. In the older political con- 
 troversial writings erroneous stress 
 was laid upon events which contain 
 nothing about the participation of shires 
 and cities in the voting of taxes and 
 in legislation. The oldest precedent 
 is said to have occurred in 15 John, 
 in a military summons, containing the 
 following clause : " that quatuor discreti 
 milites from each shire shall be chosen 
 in the first county court ad loquendum 
 nobiscum de negotiis regni nostri." 
 Here only confidential men are meant, 
 with whom the King wishes to de- 
 liberate at the time when the invasion 
 from France was threatening ; the 
 question is here neither one of laws nor 
 of the granting of aids, nor does it 
 appear whether the assembly was 
 actually held or not. In 10 Henry 
 III. (1226) writs were addressed to the 
 sheriffs of Gloucester and of seven other 
 counties, with the command to have 
 quatuor milites de legalioribus et dis- 
 cretioribus chosen by the milites and 
 probi homines of the shire. But the 
 quatuor milites are only to appear as 
 indictors of the Vicecomites concerning 
 a violation of Magna Charta. In 58 
 Henry III. (council at Westminster) 
 the sheriffs were ordered each to send 
 two legales et discretos milites to the 
 council, "vice omnium et singulorum 
 eorundem ad providendum, quale auxi- 
 lium nobis in tanta necessitate impendere 
 voluerunt." In like manner, writs are 
 addressed to the bishops with directions 
 to assemble the " archidiaconos, viros 
 
 religiosos, et clerum' in their dioceses 
 to deliberate upon a subsidy. The 
 lower clergy are then to send their 
 proxies and report their resolutions. 
 The Peers' Eeport (i. 56) acknowledges 
 this to be the first documentary evi- 
 dence of an attempt to send represent- 
 atives of corporations to a council. But 
 the question is here only one of a 
 participation of the lesser vassals of 
 the Crown in a deliberation touching 
 extraordinary aids. Now for the first 
 time the attempt was made to grant 
 them a definite share in the proceedings 
 side by side with the greater barons, 
 in the person of two representatives 
 chosen from their midst, instead of the 
 general collective summons by the 
 sheriff, projected by the charter. In 
 like manner the two knights mentioned 
 in the writ, were not summoned direct 
 to parliament, but only to appear 
 "coram concilia nostro" (Parry, Par- 
 liaments, xiii.). This event is of im- 
 portance as being the first form of a 
 representation, though only of the 
 Crown vassals, and only for money 
 grants. In 42 Henry III., at the Mad 
 Parliament at Oxford, this elective 
 principle adopts a new form, about a 
 hundred barons being convened to the 
 parliament itself, that is, for the most 
 part lesser barons, and a committee of 
 twelve chosen from those there as- 
 sembled ; an application of the principles 
 of suffrage, which at last leads to a 
 civil war. But here also it is only the 
 Crown vassals that are meant. In the 
 summer of 1261 (45 Henry III.), the 
 Bishop of Worcester and Earl Simon 
 convoked an assembly at St. Alban's 
 for the 21st September, 1261, with
 
 First Attempt at a Governmentby Estates of the Realm. 271 
 
 the order that three knights of each 
 county should appear, to deliberate 
 in common upon national affairs. The 
 King, on the other hand, fixed the same 
 day for a council at Windsor, and 
 commanded the sheriffs to send the 
 said knights to the King "supra 
 promissis colloquium habituri." This 
 was certainly an attempt to convene 
 representatives of the shires for a 
 legislative assembly (Peers' Keport, i. 
 133) ; but it was made in a tumultuous 
 and discordant manner, and its result 
 was so unsuccessful, that it could not 
 rank as a precedent. In 48 Henry III., 
 at the Parliament held in Londun on 
 the 24th of June, 1264, whilst the 
 King was the prisoner of the barons, 
 by orders issued to the conservators of 
 the peace four knights were summoned 
 from each of twenty-nine shires in the 
 following formula : " Vdbis mandamus 
 quatuor de legalioribus et discretioribus 
 militibus dicti comitatus, per assensum 
 ejusdem comitatus ad hoc electos, ad nos 
 pro toto comitatu illo mittatis. lia quod 
 sint ad nos Londini, in octavis, etc., 
 nobiscum tractaturi de negotiis (nostris 
 et regni nostri) prasdictis." But the 
 question here touches only the restor- 
 ation of the national peace, and a 
 deliberation concerning it, with four 
 trusted men. As the " fideles nostri," 
 are mentioned, it is evident that only 
 Crown vassals can be intended. It is 
 likewise proved that the grant of a 
 twentieth in this year was only made 
 by the prselati et magnates. (Parry, 
 Parliaments, xiii.). It was not until 
 49 Henry III., at a Parliament held 
 in London, on the 20th of January, 
 1265, that the first precedent of the 
 summons of deputies of the shires and 
 cities occurs. The King, who was still 
 a prisoner of the barons, issued personal 
 writs to one hundred and twenty-two 
 clergy and twenty-three temporal 
 barons, " ad tractandum nobiscum et 
 cum concilia nostro, necnon et aliis 
 arduis regni nostri negotiis." And 
 then further, "Item mandatum est 
 singulis Vicecomitibus per Angliam, 
 quod venire faciant duos milites de 
 legalioribus et discretioribus militibus 
 singulorum comitatuum, ad Begem 
 Londini, in octabis prssdictis in forma 
 supradicta. Item in forma prasdicta 
 scriMtur civibus Lincoln, et c&teris 
 Burgis Angliee, quod mittant in forma 
 prasdicta duos ex discretioribus tarn 
 civibus quam burgensibus suis. Item 
 mandatum est baronibus de probis hom- 
 inibus quinque portuum, quod mittant 
 
 quatuor de legalioribus et discretiori- 
 bus" etc. The text of the writs 
 addressed to the sheriffs and towns 
 has indeed not been preserved to us, 
 but probably nearly agrees with those 
 addressed to the Cinque ports. " Ha 
 quod sint ibi in octavis prasdictis no- 
 biscum et cum praslatis et magnatibus 
 regni tractaturi et super praimissis 
 auxilium impensuri" etc. With this 
 act a form of summoning the communi- 
 tates regni originates with the follow- 
 ing innovations : 
 
 (i.) Not only were representatives of 
 the lesser Crown vassals convened, but 
 the shires and a number of towns as 
 such, were represented by two members 
 of the body of the community of the 
 shire and the citizens. 
 
 (ii.) These representatives were 
 directly convened to deal with the 
 business of the nation ; no longer as 
 formerly, merely for the military levies, 
 or for peace negotiations, or for particu- 
 lar judicial and administrative purposes. 
 This is therefore the act which origi- 
 nated the later Lower House. The 
 majority of the older historians of the 
 Constitution have rightly recognized 
 this ; as, for instance, Spelman, in his 
 "Glossarium," under the word "Par- 
 liamentum," and again in his special 
 treatise on Parliaments. The same 
 result is deducible from the reprint of 
 the Parliamentary writs by Prynne 
 (1659-1664), and from Dugdale's "Sum- 
 mons," but principally from the Peers' 
 Keports on the dignity of a Peer, vols. 
 i. and v. Among more recent treatises, 
 this has also been acknowledged as a 
 safe deduction by Hallam ("Middle 
 Ages"), and Parry ("Parliaments," 
 xii.). The summons of 1265, however, 
 does not as yet show how far the con- 
 vocation of the shires and cities was 
 constitutionally necessary for the pub- 
 lication of decrees and the deliberation 
 upon subsidies. The circumstances 
 attending the convention were of 
 such an extraordinary kind, that the 
 necessity of a repetition did not as yet 
 result from them. It was with such 
 councils almost as with Henry the 
 Second's assembly of notables ; they 
 cease again, simply owing to the fact 
 that the King no longer summons such 
 extraordinary assemblies. After the 
 overthrow of Simon de Montfort and 
 his party, all that we hear of is the 
 restoration of the ancient constitution 
 and national rights. The further 
 concilia held by Henry III. are sum- 
 moned in the ordinary way by per-
 
 272 Constitutional History of England. 
 
 sonal writs addressed to a number of ampton a hundred years before ; the 
 
 prelates and magnates ; only from lesser vassals and the freeholders had 
 
 these councils the later money-grants for the first time been combined into 
 
 proceed; only from them the statutes a body, and had the consciousness 
 
 of Marlebridge. The event of 1265 that to them belonged under certain 
 
 was of moment in the same way as circumstances a share in the King's 
 
 the Assizes of Clarendon and North- council. 
 
 CHAPTEE XX. 
 (^lass-relations of tfte &ngIo*jSorman 
 
 AT the close of this period we must summarize from all the 
 conditions, which we have hitherto traced in detail, the 
 influence of the feudal system upon the formation of the 
 Anglo-Norman estates. After the close of the first century 
 from the Norman Conquest, the law work of Glanvill displays 
 to us the English feudal law complete in its technical develop- 
 ment. The " Liber Niger " (edit. Hearne) gives a sketch of 
 the greater feudal estates in the same period, while the col- 
 lection of Testa de Nevill (edit. 1807) furnishes one for the 
 close of the period. 
 
 At the beginning of the period the Norman Crown vassals 
 evidently regarded themselves as a ruling class ; the sub- 
 vassals were looked upon almost as a middle class, the rest 
 of the population as vulgar roturiers, as nearly as possible like 
 the class liable to the " tattle " in France. The feudal system, 
 by blending office and property, and by turning all relations 
 of dependence into, those of service, had everywhere the 
 tendency to create an hereditary ruling-class and an hereditary 
 serving-class. In England it was the power of the monarchy 
 which checked this process of development. The royal power 
 was here strong enough to keep the spiritual and the temporal 
 power, the military and civil departments, and the personal 
 right of honour, as well as the hereditary right of property, 
 within their fixed and proper limits, to make every higher 
 right in the State, dependent upon higher performances for 
 the State, and not to allow the nobility and knighthood to 
 become an aristocracy of birth, but to keep them upon the 
 level of a " class-right." The imperfect development of 
 estate privileges is decidedly the strong side of these institu- 
 tions ; and one which rendered the formation of a vigorous 
 parliamentary constitution possible in the next period.
 
 The Class-relations of the Anglo-Norman Period. 273 
 
 Through the power of the monarchy, in England, the com- 
 bination of property with State duties and with political rights 
 was guided into grooves different from those on the Continent, 
 and formed the following degrees : 
 
 I. fte GDlass of tfje Greater IJassals, which is subject to 
 the greatest change, embraced in its original distribution 
 after the Conquest those men, who had already on the Con- 
 tinent enjoyed the rank of count, or who had brought whole 
 divisions to the army. The estates of the twenty greatest 
 feodaries in Domesday Book contain, according to the ordi- 
 nary computation ; 793, 439, 442, 298, 280, 222, 171, 164, 
 132, 130, 123, 119, 118, 107, 81, 47, 46, and 33 knights' fees 
 with various appurtenances. In an analogous position with 
 regard to property were the bishops and many abbots. If the 
 comparative smallness of the knights' fees be borne in mind, 
 and the constant diminution of the lordships by subin- 
 feudation, it will be seen that they were originally much 
 smaller than the duchies and earldoms of the Continent. Of 
 still greater importance was their want of compactness, which 
 dated from the Anglo-Saxon period, the possessions of the 
 four greatest feudatories being scattered throughout from six 
 to twenty-one counties. Between these lay the royal -demesnes 
 and the estates of lesser vassals in all the counties. The 
 landowners accordingly could not consolidate themselves, for 
 the strict law of escheat on failure of an heir to the fee, or 
 confiscations, would often bring back the same estate to the 
 Crown several times in a single century. The great feuda- 
 tories of the time of the Conquest are all found during the 
 first century among the rebellious vassals. The three greatest 
 grants were recalled by the Conqueror himself* As a rule, 
 however, the older lordships remained intact, and were 
 referred to in the Exchequer as extraordinary fees under the 
 name of "capital honours." Their sub-vassals who were 
 scattered throughout the counties were summoned by the royal 
 Vicecomes. The formation of a compact military power was 
 thus actually and legally hindered by the prohibition of private 
 fortresses, and by the oath of allegiance paid by the sub- 
 vassals to the King. The same impediments checked the 
 power of forming great feudal courts, which became in later 
 times more and more confined, owing to the system of itinerant 
 justices and the permanent central tribunals, and was further 
 diminished at each successive re-grant. The Norman Period 
 was certainly not deficient in external splendour. Many a 
 manorial household formed a small court with the ancient 
 court offices, which were sometimes even hereditary. Many 
 lords are described as being owners of parks ; certain of them, 
 with royal permission, possessed a fortified castle. In the
 
 274 Constitutional History of England. 
 
 charters addressed to their men and tenants, they made use 
 of the style of the royal charters : " Dapifero meo et omnibus 
 hominibus meis, tarn Francis quam Anglis" But with all this 
 splendour there was no solid foundation, and most especially 
 the support found in faithful vassals was lacking. After all, 
 the eminent position of these lords was more an actual than 
 a legal one. The barones majores, indeed, appeared in the 
 military array as bannerets; their reliefs, wardships, and 
 marriages form the principal items in the Exchequer (Dialogus 
 de Scacc., ii. c. 10), and in the rating of the relevia and 
 amerciaments, they had the undesired honour of a higher 
 scale. As a matter of course at the royal assizes, the barones 
 majores, being summoned to court by name, were put before 
 the squireless knights. But if in spite of these things, no 
 hereditary dynastic families arise in England, and the position 
 of the great vassals remains based merely upon class-rights 
 and privileges, as in the Anglo-Saxon period, when the great 
 Thane, as such, has no greater Weregelt than the county 
 Thane, it is due to the conjunction of the following circum- 
 stances : 
 
 (i.) Firstly, to the difference in origin, because in England 
 the lord's position was not founded upon Seigneuralty (that 
 is, the transference of military service from the small to the 
 great landed estates), but upon the police protection of the 
 Hlaford. Besides this the monarchy did not allow any 
 extension of the manorial, judicial, and police powers to arise, 
 and no privileged right to a court of peers, and no exception 
 to military service ; but by the assize of arms it rather 
 raised to a living military institution that popular array 
 which in the northern counties had always remained able 
 to take the field. The haughty bearing of the martial classes 
 against free civilians found therein an effectual barrier. 
 
 (ii.) It was also due to a difference in its development. 
 After the reign of Henry I. the great bishop, Eoger of Salis- 
 bury, whose family for a hundred years occupies so eminent 
 a position in the administration of the realm, is to be regarded 
 in some measure as the founder of a new official nobility, 
 the distinguished members of which not only find their way 
 into the bishops' sees, but also, by grant of manors and 
 by marriage, into the great nobility, such as the Bassets, 
 Clintons, Trussebuts, etc. At the close of every two genera- 
 tions of this period the larger portion of the greater baronies 
 appear to have passed into the possession of other families. 
 As early as the commencement of the twelfth century the 
 great nobles of the conquering army were, in consequence of 
 their unsuccessful rebellion against the monarchy, dispossessed 
 of their original estates. Under Henry II. the newer official
 
 The Class-relations of the Anglo-Norman Period. 275 
 
 nobility already forms the majority of the body of great barons, 
 whose descendants take the lead among the barons of Magna 
 Charta. Other families again appear in the foreground of 
 the barons' war. The English prelates also are not local 
 rulers, after the manner of the French and German electors 
 and bishops, but an official nobility, which conducts the great 
 business of the nation in common with the secular official 
 nobility, and on that account with all the more uniformity. 
 
 (iii.) The striving after an hereditary position for the ruling 
 class accordingly, in England, takes a direction not towards 
 the foundation of independent local lordships, but towards a 
 participation in the supreme council of the Crown. This 
 personal vocation must, according to the nature of the case, 
 be confined to the firstborn alone. In the same manner the 
 heavy burdening with military service and taxation leads to a 
 limitation of the privilege to the firstborn, and thus lays the 
 foundation of the hereditary peerage, which arises in the 
 following epochs. (1) 
 
 II. i)e gbeconfc <iaSS was formed by the lesser Crown 
 vassals, gradually blending with the sub-vassals. (2) 
 
 (1) On the formation of the class of 
 the higher nobility, and subsequently 
 of the knighthood, I may be permitted 
 to refer my readers to my treatise, 
 " Adel und Ritterschaft in England " 
 (Berlin, 1853, 8vo.), upon which, how- 
 ever, the authorities of Hallam and 
 Allen, and the older ones of Selden 
 and Dugdale, have here and there had 
 too great an influence. As to the first 
 distribution of landed property by the 
 Conqueror, cf. above, pp. 124-128 
 (Ellis, "Introduction," i. 226 seq.). 
 The manner in which the estates of the 
 magnates were mingled together, is 
 shown by the following survey of the 
 number of hides Qiidx) in Sussex, in 
 which county the manorial possessions 
 are especially numerously represented : 
 Earl Roger, 818 manors ; William of 
 Warenne, 620; Earl Moreton, 520; 
 William of Braiose, 452; the Arch- 
 bishop of Canterbury, 214; Earl Oro, 
 196; the Bishop of Chichester, 184; 
 Bishop Osbern, 149; the Abbot of 
 Fecamp, 135 ; Battle Church, 60 ; the 
 King, 59 ; the Abbot of St. Peter, 39 ; 
 the Abbot of St. Edward, 21 ; Odo and 
 Eldred, 10 ; the Abbot of Westminster, 
 7. As to the supposed estates of earls, 
 larones majores, and minores of this 
 period, cf. above, p. 288. 
 
 (2) The formation of the English 
 knighthood is in its final result de- 
 scribed in the Testa de Neville sive 
 
 feodorum in curia Scaccarii 
 tempore Henry III. and Edward I. (1 
 vol., folio, 1807), (Record Commission). 
 The enumeration of all the small 
 Crown-fiefs, the tenures by frankal- 
 moign, and the amount of the scutagia 
 and auxilia paid by each Crown vassal 
 prove to us, that upon the foundation 
 of possessions like these, no separate 
 class could be built up; indeed, the 
 lesser Crown vassals were sure to lose 
 themselves in the mass of the sub- 
 vassals, who frequently possessed two, 
 three, four, and more knights' fees, and 
 in whom the old Saxon Thanehood was 
 also represented. How doubtful in 
 many points the line of demarcation 
 was, is shown by the county of York, 
 where, of one hundred and five Crown 
 vassals, only twenty-nine are large 
 land-owners ; the rest were as a rule 
 described as Thanes of the King, 
 whilst they are only in possession of 
 desolated lands, which at the time of 
 Domesday Book could not possibly 
 perform a knights' service. The word 
 " miles " sometimes designates a simple 
 horseman, and sometimes an important 
 possessor of great knights' fees. Even 
 this use of the term expresses that the 
 tenures of property and the perform- 
 ances in the commonwealth are each 
 considered separately, and that accord- 
 ingly no separate class-relations are in 
 existence, arising from the blending of
 
 276 Constitutional History of England. 
 
 The lesser Crown vassals differ in no way from the greater 
 in respect of their tenure. They are directly enfeoffed of the 
 King, and are competent to sit in judgment upon every Crown 
 vassal, as pares of the Curia Regis, so soon as they are sum- 
 moned to it. Many of them find, in influential offices, a posi- 
 tion which is outwardly also equal to that enjoyed by the great 
 vassals. Of the original number of about four hundred 
 barones minores, the majority were probably from the first 
 owners of knights' fees in Normandy, or younger brothers and 
 sons of such possessors; and the rest the holders of small 
 court-offices, as the under-chamberlain Herbert, the four 
 cooks, the carpenter, the bow-stringer, the forester, the 
 falconer, the steward, the porter. Only in a few cases do the 
 names, like Oswald, E aired, Grimbald, Eadgar, Eadmund, 
 and ^Ellured, indicate Saxons. 
 
 Of the great number of the sub-tenentes (7671) in Domes- 
 day Book apparently less than half, are really subinfeudated 
 sub-vassals ; they are for the most part Saxon Thanes, and 
 free followers doing service, among whom formal subin- 
 feudation made only slow progress (above, p. 126). So far 
 as such investiture took place, the possessions of the ecclesi- 
 astical mesne tenures seem to be on the average somewhat 
 greater than those of the secular tenants. The sub-vassals, 
 who had themselves received more than a knight's fee, might 
 also themselves have sub-tenentes under them. The majority 
 of the Norman sub-vassals were probably at the Conquest the 
 dependents of the greater feodaries, younger brothers or sons, 
 servants, soldiers, or other people who had been till then 
 landless. About half of them, as far as can be judged from 
 the names, were Saxon Thanes who kept their old possessions 
 and who had become, very much against their will, subject 
 to Norman lords. 
 
 In respect of the amount of their landed property, the two 
 classes appear from the first equal. Their feudal possessions 
 were comprised in the soil with its customary rights. Upon 
 the estate, endowed with manorial rights, the landowner 
 raises through his bailiffs (prsepositi, reeves, stewards) the cus- 
 tomary dues ; and being generally represented by them, holds 
 
 personal rights and duties with posses- ligium and simplum. The ligium means 
 siim. The homagium, too, does not ex- the feudal oath generally (Glanvill, 
 press such rights. It is an established ix. c. 1 ; Bracton, ii. c. 35, 37 ; Fleta, 
 fact, that an oath of allegiance can be iii. c. 16, sec. 16 ; Britton, c. 68). 
 taken to a private individual for a fief The honour of serving the King be- 
 and the grant of an estate in return for longs in the first place to the greater 
 service; without them, certainly only land-owners, and is therefore considered 
 to the King (Bracton, ii. c. 35, sec. 6). all the greater honour for the lesser land- 
 It is, moreover, useless to try to import owners. To be a " liege subject of His 
 from the Continent into England, a Majesty " is still regarded by the Eng- 
 techuical distinction between homagium 'lishman of the present day as an honour.
 
 The Class-relations of the Anglo-Norman Period. 277 
 
 his court in the forms of the court baron and customary court, 
 and by virtue of later grant a royal local magisterial court or 
 court-leet. But the possession of a manor is independent of a 
 military enfeoffment, and we even meet with manors in the 
 possession of socmanni. In like manner the position of a law- 
 man (liber et legalis homo) is independent of a knight's fee. 
 
 The uniform pressure which the royal power exercised upon 
 the greatest as upon the least of the vassals, was sure in this 
 state of things to make all the lesser vassals appear more and 
 more as one homogeneous body. Since subinfeudation was 
 the only form of independent disposition of fiefs, in numerous 
 cases Crown vassals became, in respect of newly acquired 
 property, under-vassals ; even the great feudatories and pre- 
 lates did not disdain to hold a fief by under-tenure of other 
 lords and of the Church, The methods of holding property 
 became thus so complicated, especially after the Crusades, 
 that all idea of a lower rank as attaching to subinfeudation 
 disappeared. 
 
 The development of the chivalrous fraternities had made 
 the dignity of knighthood a common bond of union for all 
 vassals. Education, profession, martial honour, and partici- 
 pation in the county assemblies, are the same for the whole 
 host of the lesser vassals. Every honorary precedence of the 
 lesser Crown vassals over the sub-vassals became more and 
 more problematical when, in re-grants of manors the Crown 
 changed the mesne vassals into immediate vassals, and with 
 the sanction of the King new holders entered upon the small 
 Crown fees. 
 
 And when at last the statute of Quia Emptores-. (18 Edw. I.) 
 entirely prohibited new subinfeudations, in order to put an 
 end to the interminable complications in the tenure, when 
 every new possessor became from thenceforth the immediate 
 vassal of the lord paramount, it would have been absurd to 
 concede to the lesser Crown vassals, as such, the right of 
 taking precedence of the old sub-vassals,, who had been estab- 
 lished for generations upon their old landed estates. From 
 the time of Henry II., moreover, the decisive innovation had 
 arisen of a money payment being more and more regu- 
 larly substituted for personal military service ; there was also 
 no further difference in this respect between the two tenures 
 than that the lesser baron paid his scutage to the sheriff, 
 and the sub-vassal sometimes to his lord's officer, and some- 
 times to the sheriff. 
 
 A comparison with the state of things on the Continent 
 proves to us that the main point of distinction in England 
 was the alienability and divisibility of the knights' fees, the 
 inalienability of which was the chief basis of the lesser con-
 
 278 Constitutional History of England. 
 
 tinental nobility. In England it was impossible to maintain 
 the inalienability of the fees, for the very reason that the 
 feudal bond had become extended to the whole of the landed 
 possessions in the country; alienability was even promoted 
 by the fiscal maxims of the Exchequer, to which every solvent 
 holder was equally agreeable, as well as by the ease with 
 which the royal consent could be obtained for all sorts of 
 matters on payment of fees. The period of the Crusades, for 
 instance, was productive of numerous and extensive aliena- 
 tions, mortgages, and partitions.. After the acquittance of 
 feudal service by scutages* feoffments and subinfeudations 
 appeared altogether only as an onerous method of alienation, 
 through which the new holder took over with the land, the 
 pecuniary burdens of relevia, the payment of the periodical 
 auxilia, and the restraints attached to feudal wardship, mar- 
 riages, etc. The alienation carried with it also the creation 
 of new incidental ground rents, which urgently required that 
 the legislature should bring about a simplification of the law 
 of tenure. Hand in hand with this went the splitting up of 
 their land into parcels by the feudal possessors ; which was 
 intimately connected with the frequent change of possession, 
 and with the circumstance that the judicial power failed to 
 firmly consolidate itself with the landed interest. Presently 
 the Grown resolved on a re-grant in parcels in cases of escheats 
 and forfeitures ; then again allowed a partition among several 
 co-heirs ; and finally alienations even of portions of a fief 
 on payment of heavy fees, so that even hundredth parts of 
 a knight's fee are met with. Hence as early as the middle 
 of this period the number of the possessors of the smaller 
 fiefs visibly increased. Many of them are younger scions of 
 the families of the Crown vassals and sub-vassals; others 
 again freeholders wha had been enfeoffed for their military 
 services, or through an act of favour; others were wealthy 
 persons, especially those in the towns, who. at the time of 
 Eichard I. acquired by enfeoffment such lands as were gene- 
 rally sold to the highest bidder. 
 
 The combination of these circumstances in England in 
 the Middle Ages, did not permit of the knighthood becoming 
 an exclusive hereditary dignity. Not real estate as such, but 
 the mastership acquired in doing warrior's service gave a 
 claim to the honorary title of dominus, or "sir," which remains 
 a personal dignity that the Crown vassals were bound to take 
 up. This honorary title is also conferred in the Middle Ages 
 upon the higher clergy and graduates of the universities. The 
 word "knight" is used to denote more specially the military 
 rank with it, but since no especial social rights are connected 
 with it, and the rights of possession and influence in the shire,
 
 The Class-relations of the Anglo-Norman Period. 279 
 
 etc., did not depend upon it, the taking up of the dignity of 
 knighthood was in comparatively early times felt rather as a 
 burden, in consequence of the high fees chargeable, and was 
 from time to time enjoined by royal command. Already in 
 these times the Exchequer rolls contained innumerable entries 
 of fees which were paid for a delay (pro respectu militias).. 
 Those possessors of knights' fees who had not acquired the 
 formal dignity of knight now call themselves esquires (scutarii). 
 In their shire, the esquire and knight were sufficiently known 
 by their position in the county court. On the other hand, since 
 the Crusades, the adoption of family arms had become more 
 and more an established custom, which in the military array 
 had been rendered necessary by the wearing of armour. 
 
 The main issue, the sum total of services to be rendered 
 to the State, became finally the same for all ; the knighthood 
 at the close of this period forms an entirety <a freed and 
 definite station, in which no contrast between noble and 
 burgess landowners ever arose, and without prejudice to the 
 social claims to superior honour advanced by old possessors 
 and families. 
 
 III. The mass of the rest of the frfefioHrersanft tenants appeared 
 from the standpoint of the Norman knighthood as " taillables," 
 a kind of "appurtenance of the soil.'* The royal assurances 
 after the Conquest contained indeed in general a guarantee 
 for the protection of all existing rights of property. But 
 the mass of the ceorls (villani) were still further pressed down 
 by Norman arrogance, as well as by the form of the local 
 police regulations during this period, so that they were with 
 regard to the landowner, in a precarious position, and without 
 a right of possession protected by law. As against the lowest 
 stratum of the people the monarchy allowed the propertied 
 class full sway, just as it had upon the Continent created 
 a "bondmen" peasantry. Moreover, in the Exchequer there 
 was that " pensee immuable" which knew full well that the 
 enormous money payments which fiefs had to render to the 
 Crown, must after all be raised through the peasants, and 
 ultimately fell upon them. 
 
 Better possessory rights on the other hand were given 
 in Domesday Book, under the headings of liberi homines, 
 socmanni, burgenses. Many among these were old allodial pos- 
 sessors, who became more uniformly subjected to the burdens 
 of the feudal system, the more the principle was carried out 
 that this kind of possession also could be maintained by 
 "redemption," that the inferior possessor must bear the 
 burdens of the vassals, and the Saxon those of the Norman. 
 The extension of feudal principles to it, is evidently the result 
 of an increasing practice, which originating from the Ex-
 
 280 Constitutional History of England. 
 
 chequer and the Curia Regis, was at last embodied in the 
 universal maxim that " all landed property in the country " 
 is held of the King, either immediately, or mediately through 
 a mesne lord. The legal details of these relations with 
 regard to private rights will probably never be completely 
 explained. (3) 
 
 But with regard to public law the following circumstances 
 intervene and lead to a gradual amelioration of their position. 
 
 1. The revival of the county militia after Henry II. 's assisa 
 de armis. Even in the feudal militia the military service 
 of such persons had certainly been customary and indis- 
 pensable as a reserve. Those thus equipped (servientes) how- 
 ever appear there only as servants of their lords ; whilst the 
 assisa de armis. summons them as a national levy of their own 
 duty, i.e. of their own right. 
 
 2. The constitution of the civil courts had allowed all libere 
 tenentes. to continue to act as lawmen in the hundred court, 
 which was now certainly in a state of decay. With the 
 beginnings of the jury system their participation became ex- 
 tended. In commissions appointed to take evidence, whose 
 province became more and more only to establish facts, a par- 
 ticipation of credible inhabitants of the neighbourhood was 
 requisite. In addition to the knights, other lihere tenentes 
 were accordingly regularly appointed, but they were not to be 
 mere villani or rustici. 
 
 3. The criminal jurisdiction and police control of the turnus 
 Vicecomitis drew to it the whole of the adult population, to 
 give account of the preservation of the peace and to pass an 
 
 (3) The common law relations sub^ held the villeins : " decretum est y ut quod 
 sisting between 'freeholders, tenants, a dominis exigentibus mentis interveni- 
 and villeins, can only be perceived in ente pactione legitima poterant obtinere, 
 some degree from the law books, and illis inviolabilijure concederetur ; caste- 
 considerable gaps are left in the history rum autem nomine successionis a tem- 
 of their development after the later poribus subactse gentis nihil vindicarant, 
 Anglo-Saxon era. For the period im- de csetero studere tenentur devotis obse- 
 mediately following the Conquest, the quiis Dominorum suorum gratiamemer- 
 list given above (p. 128), taken from can'," etc. (Dial, de Scacc, i. c. 10). 
 Domesday Book, serves as a source of In the law works of Glanvill and 
 information. The liberi hominex (ad Bracton the increasing pressure upon 
 nullam firmam pertinentes) who now the villani appears to have reached 
 and then occur, are probably old allodial such a pitch that former villeins and 
 peasants against whom at first no claim those who had been free possessors 
 could be made, and who were only from their birth, are comprised under 
 gradually bent down under the judicial the common expression villenagium 
 and financial practice of the feudal (Ellis, i. 81). From that time they 
 system. Liberi homines appear in con- form the " villeins regardant " in con- 
 siderable numbers only in the coun- trast to the landless "villeins in gross" 
 ties of Leicester, Lincoln, Norfolk, and (the remnant of old serfdom). Here 
 Suffolk ; liberi homines commendati also oppression and denial of justice 
 occur principally upon ecclesiastical was undoubtedly the source of peasant- 
 estates. The "Dialogus" shows the subjection, 
 light in which bureaucratical opinion
 
 The Class-relations of the Anglo-Norman Period. 28 1 
 
 annual magisterial review, i.e. " view of franc-pledge." In 
 spite of much that was burdensome in it, it gave rise to 
 a useful habit of common service for the whole people. In 
 the local police tribunals, which had become so numerously 
 subdivided, and which regulated their proceedings according 
 to the pattern of the turnus Vicecomitis, the dearth of free- 
 holders caused the villani to be constantly employed in actual 
 service as lawmen. 
 
 4. In a still greater degree, and systematically, did this 
 become the custom in the courts leet of the towns, in which a 
 considerable burden of taxation was evenly distributed and 
 thus produced the idea of a civic equality. The various 
 ranks and descriptions of property here become inseparably 
 blended together. The sum total of all those who bore scot 
 and lot, are now described as " liberi homines " or " freemen," 
 as men fully bound by duty, and fully entitled to their rights. 
 The towns become the nucleus of a new class-formation, 
 framed on the old relations subsisting between liberi homines, 
 socmanni, and villani. 
 
 In the whole picture of these class relations there are found 
 in spite of all the pressure exercised by a fiscal and police 
 regime, important germs for future times* However modest 
 the measure of political privileges which these shire and 
 city unions were primarily to gain, the most important founda- 
 tion of a parliamentary constitution had been already laid ; 
 which was, the habitual and personal meeting together for 
 public business, the local and periodical co-operation of the 
 State-bureaucracy with the individual communities.
 
 282 Constitutional History of England.' 
 
 THIRD PERIOD, 
 
 THE PERIOD OF THE GEOWTH OF 
 THE ESTATES OF THE REALM. 
 
 CHAPTEE XXL 
 
 3T|) Ctntutp of organising Statutes $t (Knion of tfje 
 Central (Sobernnunt toitf) t&e Constitution of tf)e Counties.* 
 
 EDWARD I., 1272-1307 HENRY V., 1413-1422 
 
 EDWARD II., 1307-1327 HENRY VI., 1422-1461 
 
 EDWARD III., 1327-1377 EDWARD IV., 1461-1483 
 
 RICHARD II., 1377-1399 EDWARD V., 1483 
 
 HENRY IV.. 1399-1413 RICHARD HI., 1483-1485 
 
 ALMOST three generations had passed away since the last 
 year of Henry II. 's reign, and the land had not yet found 
 rest. John's reign had left behind it the indelible impression 
 that even the Great Charter did not as yet afford sufficient 
 protection to person and property against a despotic form 
 of government. Furthermore, it had become evident that 
 nobles and prelates alone were not equal to the new task ; 
 Magna Charta had at first only engendered party struggles. 
 Accordingly, during the vicissitudes of Henry III.'s reign both 
 
 * Among the sources and works of " Proceedings and Ordinances of the 
 
 reference for this period we must place Privy Council of England from 
 
 before all others the State records, and 10 Richard IL to 33 Henry VIIL" 
 
 particularly the Statute Rolls which (7 vols. 8vo, 1834-1837) ; see also the 
 
 exist as the official publication of the Monograph of Sir F. Palgrave, " An 
 
 Parliamentary legislation of permanent Essay upon the Authority of the 
 
 validity from 6 Edward I. to 8 Ed- King's Council " (1 vol. 8vo, 1834). 
 
 ward IV., and which are the basis of As to the Exchequer, Madox gives in- 
 
 the official collection of Statutes of the formation for this period. As to the 
 
 Realm (1810, etc.). As the next source judicial system, see FOBS, " The Judges 
 
 are to be considered the Parliamentary of England " (1848-64, vols. iii., iv.). 
 
 Rolls, that is, registrations made by The general collection of the State 
 
 the officials of the Chancery of the records, Rymer, "Foedera, Conven- 
 
 more important proceedings in Parlia- tiones," etc. extends to 1391. 
 
 ment, now printed as "Sotuli Par- Of the law books, Britton and Fleta 
 
 liamentorum ut et Petitiones et Placita belong to the commencement of this 
 
 in Parliamento " (vol. i.-vi. 1832, fol.). period, as does also Home's " Myrrour 
 
 The proceedings of the Continual aux Justices," (cf. Biener, "Engl. 
 
 Council are printed in Sir H. Nicolas, Geschw. Ger.," ii. 387, seq.). The
 
 The Century of Statutes. 283 
 
 parties involuntarily resorted to the same measure, to give 
 stability and equilibrium to the nascent constitution, by 
 admitting the middle classes in groups distributed according 
 to communities. 
 
 By the side of the great feudatories, whose participation 
 in the government of the realm had since the days of Henry 
 III. been immutably established, a middle class had sprung 
 into prominence in the knighthood, owing to the improved 
 position of the sub- vassals and the wealthy freeholders. Their 
 position in the county court, their homes, and their family 
 connections had given the knighthood a solid influence in 
 the towns also, in which likewise a new middle class, but 
 one still inferior to the knighthood, had sprung up from 
 other sources. The monarchy had to make up its mind to 
 give these middle classes a share in the government of the 
 realm, if it did not mean,, in its struggles with the magnates, 
 to part with its influence to the committees of the barons, as 
 had been the case under the inglorious reign of Henry III. 
 The experience of the Provisions of Oxford and of the Barons' 
 War were of paramount influence upon these times. With 
 Magna Charta and the manifold limitations it imposed upon 
 the administration of the realm, with the great concessions 
 made to the Church, and the growing power of the knight- 
 hood and the boroughs,, a government such as the kings of 
 England had formerly carried on by an Exchequer and a 
 number of confidential counsellors, was no longer possible. 
 
 The firm establishment of these conditions became the 
 task of the times throughout a series of statutes, beginning 
 with Edward I. the greatest monarch England had seen since 
 ^Elfred the Great, and the one whose rule constitutes the most 
 glorious epoch of the Plantagenets. The bitter experiences 
 of his father had taught him that a participation of the 
 estates in the Government could not be refused. Firm and 
 shrewd of character, he resolved to give new strength and 
 stability to the throne by means of those very institutions 
 which had proved ruinous to his predecessor. With the 
 statute of Marlebridge a legislation was begun which now 
 made such progress, that at no other time throughout the 
 Middle Ages was so much law positively established as in the 
 century of the three Edwards. For this legislation no object 
 
 best authority upon the practice of the stitutional History of England, Hallam, 
 
 courts are the so-called Year Books, "Middle Ages," cap. viii. and the 
 
 that is, the collection of cases forming supplements to it ; Lappenberg-Pauli, 
 
 precedent determined in the central " Geschichte Englands," vols. iv., v. , 
 
 courts, from Edward II. Of legal but above all, Stubbs, " Constitutional 
 
 history, Reeves, "Hist, of the English History" (1874, etc. vole. ii. and iii.), 
 
 Law," vols. ii. and iii., deals with the whose chief merit and main success 
 
 period. Of the treatises upon the Con- lies in this period.
 
 284 Constitutional History of England. 
 
 appeared too great, and none too small. Lord Chief Justice 
 Hale states emphatically that in the first thirteen years of 
 Edward's reign, English law made more progress than in all 
 the centuries from that time until his own day.** 
 
 The greatness and the peculiarity of this legislation lies 
 in the constant realization of a single fundamental idea ; the 
 combination of all the functions of the secular executive power 
 with the existing greater unions of communities a combina- 
 tion by which the people became penetrated with the con- 
 sciousness of its political duties, inspired with an idea of 
 political unity, and competent to take the preservation of 
 peace and order in their own hands. In this profound system 
 of legislation, as also in Magna Charta, could be perceived the 
 hand of that well schooled bureaucracy which from the close 
 of Henry the Third's reign resumed its normal activity, and 
 continued the internal consolidation of the constitution, under 
 the guidance of a high-minded monarch, and which (in spite 
 of a cessation under Edward II.) finally accomplished under 
 Edward III. the building, in the course of a single century, 
 of the new edifice from the heterogeneous materials at hand. 
 
 The necessary cohesion of the counties, hundreds, and 
 boroughs, was already existing, thanks to the retention of 
 the Anglo-Saxon judicial system, to the now perfect recon- 
 ciliation of national contrasts, and to the opportune transfor- 
 mation of the judicium parium into the jury system. The 
 country was indebted to the harsh rule of the Norman period 
 for one great result, viz. the habit of the wealthy classes 
 of being eager and ready to perform the behests of the 
 State in military, judicial, and police functions. 
 
 ** Of the fertility of the legislation de finibus levatis, de libertatibus, per- 
 
 during this period, the following ab- quirendis, Stat. de Falsa Moneta; 28 
 
 breviated list of the reign of Edward Edw. I., Stat. dealing with wardship 
 
 I. may give us a survey : 3 Edw. I., and reliefs, Stat. dealing with accused 
 
 Stat. Westminster 1 ; 4 Edw. I., Stat. persons, Stat. Articuli super Chartas ; 
 
 de extenta Manerii; Stat. de officio 29 Edw. I , Stat. amoveas manum; 33 
 
 Coronatoris ; 6 Edw. I., Stat. of Glou- Edw. I., Stat. de Protectionibus, Or- 
 
 cester; 7 Edw. I., Stat. dealing with dinatio forestse, Stat. dealing with 
 
 alienations in Mortmain ; 10 Edw. I., measurement of land, ord. of Inquests ; 
 
 Stat. of Rutland; 11 Edw. I., Stat. 34 Edw. I., Stat. de Conjunctione 
 
 de Mercatoribus ; 13 Edw. I., Stat. Feoffatis,. Stat. on Amortization, ordo 
 
 Westminster 2, Stat. of Winton, Stat. Forestse ; 35 Edw. I., Stat. de Aspor- 
 
 Civitatis Londini, Stat. Circumspectse tatis Religiosorum, and so on to a 
 
 Agatis, Confirmatio Chartarum; 14 still greater extent under Edw. III. 
 
 Edw. I., Stat. Exoniae ; 18 Edw. I., This stupendous stream of legislation 
 
 Stat. Quia Emptores (Westminster 3), may be explained also by the cir- 
 
 Stat. de Judaismo, Stat. Quo Warranto, cumstance that the half century of 
 
 Stat. Modus levandi fines ; 20 Edw. I., the incapable government of Henry 
 
 Stat. of Waste, Stat. de Defensione III. had piled up in all directions the 
 
 Juris, Stat. de Moneta; 21 Edw. I., demands made upon the legislature. 
 
 Stat. de iis qui ponendi sunt in The merits of Edward I. are also fully 
 
 Assisis, Stat. de Malefactoribus in acknowledged by Blackstone, iv. 425- 
 
 Parcis; 25 Edw. I., Stat. Confirma- 427. 
 tionis Chartarum ; 27 Edw. I., Stat.
 
 The Century of Statutes. 285 
 
 The essential unity and power of the executive also existed, 
 thanks to the strong development of the royal sovereign 
 rights, to the strict management of the Exchequer, to the 
 judicial bench of the Curia Regis, and to the elements of a 
 council of State, which had been rising into prominence from 
 the time of Henry III. 
 
 The fault lay only in the insufficient combination of the two 
 elements, for which neither the officialist system of Shirgerefas 
 and local bailiffs, nor the itinerant commissions sufficed; 
 because such institutions in the hands of a despotic govern- 
 ment became the passive tools of oppression, and under a ruta 
 of grandees were converted into mere unstable and violent 
 party instruments. 
 
 This gap had been filled up in the former period by com- 
 mittees of parishes, so far as temporary needs required ; that 
 is, when the royal officer, who stood aloof from the people, 
 could not determine questions of fact and local questions, 
 except on the testimony of the neighbours on oath, i.e. by 
 means of the provost and four men of the villages, and by the 
 representative body of twelve men or more from the greater 
 unions. In this way the framing of Domesday Book had 
 been brought about ; in this way from time to time an estab- 
 lishment of inquests of office (ad quod damnum, etc.) ; the 
 police functions of the court leet ; the new method of deter- 
 mining the question at issue in civil actions, and the question 
 of guilt in criminal cases ; the ratings for military service, and 
 the first ratings for the hide-impost and income-tax. What 
 was now to be achieved was the permanent and uniform 
 blending together of these elements so as to form an organic 
 union of the central government with the government of 
 provinces, districts, and towns such an organic union as in 
 our own time forms the problem which the German Empire 
 has to solve. The essentials were 
 
 1. That the rules of administrative law should be as clearly 
 defined as possible, seeing that the fundamental articles of 
 Magna Charta did not as yet suffice for securing a fixed ad- 
 ministrative rule, and for the protection of the subjects. 
 
 2. The formation of the system of juries into permanent, 
 uniform, and organized institutions of justice, and of military, 
 civil, and financial administration. 
 
 3. The development of the higher and lower district offices 
 (justices of the peace, coroners, constables, etc.), for all such 
 dispositions and measures of the executive as could not be per- 
 formed by the juries, but only adequately by individual officers. 
 
 In this manner the organic union of the English Govern- 
 ment with the counties, hundreds, and boroughs was brought 
 about ; so that the exercise of the undiminished prerogative
 
 286 Constitutional History of England. 
 
 rights passed by virtue of legal authority to the officers and 
 committees of the provincial unions. Thus arises the world- 
 renowned system of English self-government, the indepen- 
 dent elements of which had existed already in the former 
 period.*** 
 
 I. A blending of the military system with the constitution of 
 the shires, to form an organized militia (originating in the 
 reign of Henry III.) during this period became necessary, 
 both for the national defence, and on account of the military 
 power of the barons within the realm. The personal liability 
 of the owners of knights* fees to serve, still formed the basis 
 of the ordinary military system ; but the feudal roll had 
 already shrunk considerably. The growing opposition of the 
 clergy had greatly restricted the feudal services of the clerical 
 crown vassals. The administrative maxims of the Exchequer 
 had, in the case of re-grants of land, rather aimed at acquiring 
 great revenues than at the permanent interests of national 
 safety ; many groups of estates were granted under the names 
 of " baronies," for the purpose of raising the great relevium 
 of a hundred marks, whilst the number of the shields was 
 reduced. The dividing up of knights' fees into parcels ren- 
 dered impracticable the furnishing of troops for real purposes 
 of war ; frequent alienations brought the system of holdings 
 entirely into disorder. In all directions the insular position 
 of the country showed its influence. The military conditions 
 existing on the Continent, the hundreds of baronies and for- 
 tified towns all competent to wage private warfare, the count- 
 less castles, the short campaigns and petty sieges were not 
 to be found in England. The few castles and fortressed towns 
 were as a rule in the hand or under the control of the King. 
 Hence had resulted a state of affairs, in which the summons 
 of the feudal militia only appears as a mustering. The 
 owners of the knights' estates pursue, each according to his 
 inclination, either agriculture, or military service for pay, or 
 again the highly esteemed State service. A standing feudal 
 
 *** The complicated details are in the township, in the hundred, and 
 
 given more exhaustively in my " Ges- in the shire. The Norman system was 
 
 cliichte des Self-government," 1863, strong in its higher ranges, in the close 
 
 pp. 144-204. The modern English relation to the Crown of the tenants 
 
 historians appear inclined to accept in chief whom the King had enriched " 
 
 this conception of the development of (Stubbs, i. 278). " The peculiar line 
 
 their constitution. Thus Stubbs, " The of Edward's reforms, the ever percep- 
 
 principle of amalgamating the two laws tible intention of placing each member 
 
 and nationalities by super-imposing of the body politic in direct and im- 
 
 the better consolidated Norman super- mediate relation with the royal power, 
 
 structure on the better consolidated in justice, in war, and in taxation, 
 
 English substructure, runs through the seems to reach its fulfilment in the 
 
 whole policy. The English system was creation of the Parliament of 1295" 
 
 strong in the cohesion of its lower or- (Stubbs, ii. 292). 
 ganism, the association of individuals
 
 The Century of Statutes. 287 
 
 militia only appeared essential for the border lands, which 
 accordingly retained a different military organization. Hence 
 as early as the time of Henry II., the system of the purchase 
 of immunity by scutages had begun, This purchase of dis- 
 charge becomes gradually the rule; after Edward II. the 
 scutage becomes absorbed in the general ground-tax. A 
 complement was now found in the county militia, in the 
 form in which the Assize of Arms (1181), had remodelled it, 
 but which had not as yet attained to its full effectiveness. It 
 now receives an elaborate code of organization. With the 
 consent of Parliament the statute of Winchester, 13 Edward I. 
 c. 6, declares the liberi homines who were capable of bearing 
 arms liable to serve in the militia and bear arms from their 
 fifteenth to their sixtieth year. In like manner as in the con- 
 stitution of the Eoman centuries, five degrees were formed of 
 incomes of 15, 10, 5, 2-6, and under 2 pounds of silver. 
 Every possessor of lands of an annual value of 15 or 40 
 marks in money was to provide himself with a breast-plate, 
 an iron helmet, a sword, dagger, and horse ; of W to 15 
 the same, except the horse ; those possessing 5 to ^10 in 
 land, a quilted doublet, an iron helmet, a sword and dagger ; 
 those with 40s, to 100s., a sword, bow and arrows, and dagger ; 
 those worth less than 40s. in land, a sabre, pike, and small 
 weapons ; those of less than 20 marks in personal property, 
 similar weapons. By this rating according to money value, 
 the possessors of knights' fees, citizens, free tenants in 
 villeinage, and householders, are ranked together in degrees ; 
 the wealthy freemen of the boroughs also, without regard to 
 landed estates. At the same time the more special provisions 
 of the Assize of Arms (Henry II.) continue in force ; the King, 
 by virtue of these provisions, causes those bound to serve to 
 be registered and taxed by his commissioners, and the dis- 
 obedient to be punished. In every hundred a chief constable 
 is appointed; in the old tithings and villatss, the village bailiff 
 is generally made a petty constable, and receives in addition 
 to his old magisterial functions, a new military office. An 
 inspection of the troops (" view of armour ") is to take place 
 twice a year> In the interests of the general peace the militia 
 stood at all times under the orders of the sheriff. When 
 war threatened, however, the King sent a commission of men 
 experienced in war to bring the militia of the district " into 
 military discipline." The double relation that now existed, 
 that of a claim of the Crown to feudal services arising from 
 the feudal bond, and to the service of the national levy, by 
 virtue of the militia code, was for a long time turned to ac- 
 count somewhat arbitrarily, in spite of the manifest unfair- 
 ness of making claims upon the communities for equipping
 
 288 Constitutional History of England. 
 
 and maintaining the soldiers, in addition to the heavy taxa- 
 tion of the boroughs and freeholders. Under Henry II. and 
 Richard I. the militia burden was frequently reduced to this 
 extent, that every two men bound to military service had to 
 equip and maintain a third, or every three a fourth, or every 
 eight a ninth man. But the regime of the nobles at the 
 beginning of Henry the Third's reign repeatedly demanded 
 with less consideration a forty days' service at the expense 
 of the townships, or of the county, or else the supply of 
 munitions of war and provisions. Under Edward I. and 
 Edward II. these equipments at private cost were frequently 
 required. (1) 
 
 Against this system, but above all, against the employment 
 of the national militia upon foreign service, a perfectly 
 intelligible opposition at last arose. According to 1 Edward 
 III., stat. 2, c. 5 and 7, no one shall be compelled to go 
 beyond his shire, except when necessity and a sudden irrup- 
 tion of foreign foes into the realm require it. According to 
 25 Edward III., stat. 5, c 8, no one shall be compelled to go 
 beyond the realm under any circumstances whatever, nor 
 beyond his county, except in cases of urgent necessity, with- 
 out the consent of the Parliament. The regular service was 
 thus restricted to the county, and to the purposes of national 
 defence. All that went beyond this was dependent upon the 
 sanction of Parliament. Both statutes were further confirmed 
 by 4 Henry IV., c. 13 ; and especially the Commission of 
 Array is so framed as to prevent the introduction into it of 
 new penal clauses. After the statute of Edward III., the 
 militiamen were, as a rule, maintained at the expense of the 
 Crown, with the exception of the mere wars of defence waged 
 
 (1) An official report by Sir Kobert weeks were required from each towa- 
 Cotton contains a description of the ship. Under Edward II. there were 
 methods of raising soldiers in this repeated mobilizations sumptibus pro- 
 transitional period (cf. manuscript in priie. In 10 Edward III. a levy of 
 the Cotton Library, Julius f. 6). Under knights takes place, and a definite 
 Henry III. one man was to be furnished number of horsemen were ordered from 
 for every two acres of land, to do service the counties with the option of a 
 for forty days, and at the public ex- satisfaction in lieu thereof, according 
 pense of the township (Dors. Glaus. 14 to a fixed scale. In 11 Edward III. a 
 Hen. III.). In the following year the levy is made of feudal vassals and men 
 men of the knights' fees down to twenty of the boroughs and townships from 
 shillings yearly value were ordered to their sixteenth to sixtieth year, the 
 provide themselves with munitions and incompetent and aged to contribute 
 provisions for forty days at the expense to the expenses ; the objections raised 
 of the county (Dors. Glaus. 15 Hen. III. by Parliament were rejected. In 16 
 m. 8). In 27 Henry III. the like Edward III. every man possessing 
 services were demanded for the cam- lands to the value of 5 is to furnish 
 paign in Gascony (Eot. Vase. 27 an archer for the King. In 20 
 Hen. III.). In 1 Edward I., there was Edward III. a levy is held of the towns 
 a levy of heavy-armed troops provi- and townships. In 24 and 25 Edward 
 sioned by the county. In 4 Edward I. III. London furnishes three hundred 
 one man and munitions for seven archers.
 
 The Century of Statute*. 289 
 
 against Scotland and Wales. After this there became mani- 
 fested in the military department, as also in all the other 
 departments of State, the gradual transition from specific 
 performance into money payment, by the formation of a body 
 of paid troops from select numbers of feudal and county 
 militia, (a) 
 
 The constitution of an army for foreign service at this period 
 was as follows. The mass of the horsemen was still made up 
 of the feudal nobility and their followers, under the titles 
 of barons, knights, esquires, and men-at-arms, among which 
 last class were included all heavy-armed troops without dis- 
 tinction of rank. It was still the office of the marshal to 
 arrange the heavy cavalry into equal squadrons (con- 
 stabularise) . The infantry, on the other hand, which was as 
 a rule five to eight times as strong in numbers, formed com- 
 panies of a hundred men each under constables or " cen- 
 tenars," and was divided into pikemen and billmen, and 
 heavy and light archers. In the Welsh campaigns it appears 
 that troops in uniform were already met with, and companies 
 of labourers, miners, and gunners occur as new elements. 
 After the parliamentary enactment of 25 Edward III., it was 
 found more convenient to raise such troops partly by com- 
 missions for the enlistment of volunteers in the counties, and 
 partly by contracts undertaking to supply them. The King 
 contracted with an influential lord as condottiere for the 
 supply of greater or smaller bands, at a daily rate for man, 
 horse, equipment, and arms. The external decay of the 
 feudal militia side by side with this new system does not 
 imply that together with the feudal array the martial spirit 
 and training of the great landowners had ceased. But a 
 division of labour was introduced, according to which the 
 duty of serving in the heavy cavalry was undertaken by pre- 
 ference by those who felt fitted for it, especially by younger 
 sons, in return for pay. Altogether this division leads to the 
 enhancement of the power of the great barons. Those of the 
 lesser vassals and of the younger sons whose inclinations 
 turned towards military service, marshalled themselves again 
 
 (a) At the commencement of Ed ward (Reeves, ii. 288). The contents of the 
 the First's reign the most unequivocal statute had, however, chiefly to do with 
 traces are found of the inefficient the obligation to take up a knight- 
 formation of the feudal militia, and of hood, and financial interests, and not 
 the king's embarrassments in con- the military discipline of the feudal 
 sequence; e.g. in 5 Edward I. "Parl. militia. The chief progress made at 
 Writs," 213. At the commencement of this period lay in the development of 
 the reign of Edward II. a so-called the county militia. The constables of 
 statutum de militibus was published in this militia occur apparently as early 
 the old fashion as an ordinance of the as Henry III. ; the designation of 
 commander-in-chief, which was issued " petty constables," for the provosts 
 on the occasion of a parliament, and of the magisterial tithings is only 
 was enrolled by command of the King customary from the time of Edward III. 
 
 U
 
 200 
 
 Constitutional History of England. 
 
 in the form of a retinue round the petty courts of the earls 
 and great barons. And here again were formed standing 
 companies of sub-vassals and landless men of a chivalrous 
 turn, skilled in the art of warfare, dressed in the colours 
 and bearing the badges (liveries) of a landowner, and in 
 which the comitatus of Tacitus revives in a new shape. The 
 history of the French war shows us that the better tactics, 
 mobility, discipline, and arming of these masses gained the 
 day over the cumbrous feudal armies of ^France, The fact of 
 the simultaneous existence of the feudal and the county 
 militia enabled the strong features of the old and new system 
 to be combined, and rendered it possible to select for the 
 cavalry and infantry the most warlike and the most skilled 
 elements. The retinues of the great barons served like stand- 
 ing cadres, not merely to keep the heavy cavalry in constant 
 training, but also to perfect them in tactical manoeuvring, so 
 that in this direction also the English cavalry, in spite of 
 its moderate numbers, was a match for the unwieldy masses 
 of the French. (l b ) 
 
 (l b ) Compared with the decaying 
 feudal system of the Continent, where 
 the landlord, as such, still led his 
 tenants (with all the defects which 
 arose from the heterogeneous character 
 of the companies, the difficulty of 
 tactical disposition, and want of disci- 
 pline), this system, blending the feudal 
 militia and the national array, was de- 
 cidedly to be preferred. On the Con- 
 tinent the deficiencies were counter- 
 balanced by the fact that the enemy 
 suffered also from the same faults. 
 The still slow progress made by missile 
 weapons produced in the arming of the 
 troops a tendency towards strengthen- 
 ing the body-armour, which, in spite of 
 all the experiences of the Crusades, 
 remained always the same, and became 
 at length a caricature. King James 
 might well say in praise of armour that 
 it not merely protected the wearer, but 
 prevented him also from inflicting any 
 injury on others. Yet an attack of 
 horsemen against infantry was regarded 
 as irresistible until the invention of the 
 new tactical infantry arrangement. 
 On the Continent this arrangement was 
 first seen in the new system of the 
 phalanx, in the glorious struggles of 
 the Swiss against Austria and Bur- 
 gundy, In England it was manifested 
 in the formation of a light infantry, 
 which, exercised to act in few lines, 
 checked the onslaught of the cavalry 
 for the moment by palisades, and 
 through the more perfect construction 
 
 of their bows, by discharges thick as 
 hail pierced the heavy armour with 
 murderous effect, and then stormed 
 with furious speed into the breaches 
 they had made. When the two systems 
 encountered each other in the great 
 French wars, the English method 
 showed its decided superiority. The 
 contracts made with lords and knights 
 as to furnishing soldiers are to be 
 found in great numbers in the archives 
 from Edward III. down to the close of 
 this period (Grose, " Military Anti- 
 quities," vol. i. 71 seq.). As instances 
 of the composition of such armies, I 
 confine myself to the following : At the 
 embarkation of 1346, there were 2500 
 knights and 30,000 followers and 
 infantry soldiers (Villani, p. 943). At 
 the siege of Calais, thirteen earls, 
 forty-four barons and bannerets, 1046 
 knights, 4022 esquires, constables, and 
 centenarii, 5104 vintenarii and mounted 
 archers, 19,954 foot-soldiers and Welsh- 
 men (" Archasol. Brit.," vi. p. 213 ; 
 Pauli, v. p. 657). At the levy under 
 Henry V., a duke was to appear with 
 fifty horses, an earl with twenty-five, a 
 baron with sixteen, a knight with six, 
 an esquire with four, a bowman with 
 one horse (Kymer, p. 227 seq.). In the 
 council protocols under Henry V. and 
 VI., the constitution of the smaller 
 detachments destined for field and 
 garrison duty were altered as need 
 required. In the cavalry the banneret 
 received three shillings, the knight
 
 The Century of Statutes. 291 
 
 At the close of this period the relation of the two systems 
 of armaments had become reversed. The ordinary and 
 uniform national defence is the county militia. The old 
 feudal militia still consisted principally of the numerous 
 followings (liveries) of the greater Crown vassals, that is, of 
 very heterogeneous elements; but it was employed as an 
 active force now only in the northern counties on the Scotch 
 border. The necessary military stores had been since the 
 time of Henry III. deposited in the Tower of London, under 
 the charge of a ballistarius. In this period we meet with an 
 attiliator ballistarum for military weapons and accoutrements, 
 and a galeator, armourer, bowyer, and fletcher, who were 
 subsequently united in the fifteenth century under the Master 
 of the Ordnance. 
 
 II. The exercise of the judicial power becomes connected 
 with the county in a new fashion by means of the now estab- 
 lished system of jurjMOUttS. At the close of the former 
 period the three principles of the new judicial system had 
 become applied, which now were raised to permanent fun- 
 damental laws : 
 
 The separation of the administration of justice from the 
 question of evidence ,* 
 
 The concentration of the administration of justice in the 
 persons of learned judges appointed by the King-; 
 
 The constitution of juries of the hundreds and counties, 
 appointed by a royal officer, to determine the question of fact. 
 
 The institutions of benches of judges, which, from the 
 time of Henry III., appear somewhat more .permanently 
 filled, now become connected with the counties by deputations 
 of their members. In civil proceedings the blending of the 
 two was primarily caused by the complaints occasioned by a 
 plurality of commissions of evidence at the central court. 
 To redress the delays and expenses thus occasioned, Magna 
 Charta had promised that the system should be reversed, and 
 the justices of the realm were to come into the county an 
 arrangement which, however, proved hardly practicable in 
 the method then pursued. This system was definitely 
 
 two shillings, the esquire twelve pence batant Crown vassals, or, at all events, 
 
 daily pay; the foot-soldiery, the archers, of those liable to be called out, 
 
 carpenters, and other labourers six- amounted almost to 200. For in- 
 
 pence and less. Here everywhere the dividual contributions relating to the 
 
 foot-soldier appears treated separately, military organization of this period see 
 
 and the relation between the light- further in N. Harris Nicholas, "The 
 
 armed and heavy-armed, the horseman Siege of Carlaverock," in 23 Edward I. 
 
 and the foot-soldier, was no longer that (London, 1828, 4to), with a reprint of 
 
 between master and servant, but be- the "Bolls of Arms," by Jn. Wright, 
 
 tween officer and soldier. A military (London, 1864) ; White, " History of 
 
 summons in the writs of 9 Edward II. the Battle of Otterburn," iu 1388 
 
 shows us that the number of the com- (London, 1857).
 
 292 Constitutional History of England. 
 
 organized by the statute of Westminster 2, 13 Edward I. c. 3: 
 " Justices of Assize shall be two justices of the realm, ap- 
 pointed on oath, who should take to them one or two honour- 
 able knights of the county." The sheriff henceforth summons 
 the jurors only pro forma to the next terminal sittings at 
 Westminster, "unless before that" (nisi prius) on a certain 
 day the justice of assize appear in the county, which from 
 this time was regularly the case. After further consolida- 
 tions by 27 Edward I. c, 4; 12 Edward II. c. 3; and 14 
 Edward III. c. 16, the whole of the functionaries of the 
 central courts enter into an organized connection with the 
 civil assizes through the medium of periodical commissions. 
 
 An analogous course was taken by the criminal jurisdic- 
 tion, which remained for a considerable time in a more un- 
 settled state. The deputation of special commissioners for 
 penal justice, "justices of oyer and terminer," still often took 
 place, since political struggles &s well as the combination of 
 penal justice with the police control and the financial interests, 
 caused greater variations in this department. Gradually, 
 however, the commissions of oycr and terminer addressed to 
 the justices of the realm, as well as the more comprehensive 
 commissions of gaol deh'very, became the established form in 
 which the penal justice of the central courts entered into con- 
 nection with the juries of the county. Through the regular 
 union of the civil and criminal commissioners, the newer ordo 
 judiciorum was carried out in practice. The separation of 
 the question of law from the question of fact now forms the 
 fundamental character of the English judicial system in quite 
 a different fashion from that indicated in the judicium parium 
 of Magna Charta. For these reforms there were accordingly 
 needed express enactments of Parliament, as being deviations 
 from the charter. But after standing instruments for uniting 
 and developing the common law had been gained in the 
 central courts, the consolidation of juries, which had been 
 formed in the earlier period, took place in a threefold direction. 
 
 (i.) i)e Clbtl jutg existed after the assisx of Henry II., by 
 virtue of statute only, for the originally enumerated cases; 
 and then in this form, that four knights of the shire appointed 
 for the purpose, and twelve jurors elected by them, were to 
 decide the principal question at issue. These form accord- 
 ingly a court of decision "perjudicium parium v el per leg em 
 terras." Practical necessity had, however, extended the proof 
 by commissions of twelve persons on oath as "jurata " to 
 the whole civil procedure. In this more accessible and 
 cheaper form their verdict became limited to the question 
 of fact, and the method soon became so generally followed 
 that the circumstantial assisa with the four knights is less
 
 The Century of Statutes. 293 
 
 and less frequently used. At an early period, also, pro- 
 ceedings in evidence are taken before the civil jury ; at first 
 in the form that the witnesses who were present at the recep- 
 tion of documents, combined with and delivered their informa- 
 tion to the jury ; and again, that they, independently of the 
 jury, gare their version of the facts at the judicial sittings. 
 The transition to examination of witnesses in another fashion, 
 and to other modes of taking evidence, was brought about in 
 the practice of the courts. A taking of evidence before the 
 jury was tolerably well developed at the close of the Middle 
 Ages (Portescue de Laud. c. 26). 
 
 (ii.) f)e granfc jurp was primarily connected with the county 
 assemblies which the royal justiciaries had to hold at periods 
 which became more and more regular. Their presentment 
 duties consisted in summoning the individual hundreds, and 
 causing the presentment made them to be inquired into and 
 confirmed by a special jury of each hundred. This procedure 
 must, however, have appeared a waste of time and. labour, 
 and from the desire for a quicker despatch of business a 
 change took place, the first traces of which, are visible in the 
 year 1368. It had been found practicable to utilize the full 
 assemblies of the county court for these inquisitiones also, as 
 a grand inquest,, or grand jury, in the face of which the pre- 
 sentment juries of the individual hundreds gradually decay.. 
 The great committee of the county absorbs the committee of 
 lower instance,, and makes use of the presentments of the 
 communities, as also the information of the individuals, only, 
 as means to promote justice. In this manner accordingly 
 the grand jury takes upon itself the duty of indictment, and 
 in the face of it private prosecution more and, more dis* 
 appears. When about the same time the institution, of 
 justices of the peace had been established, a similarly con- 
 stituted grand inquest was also applied to the quarter, sessions 
 of the justices of the peace. 
 
 (iii.) fte pettg furg in criminal cases, widen Bracton 
 and Fleta represent as a continuation of, the presentment 
 jury with partial changes in its composition, severed itself 
 from the other in the course of practice. The principal 
 separation was brought about by 25 Edward III. c. 3, accord- 
 ing to which every indictor, (member of the jury of present- 
 ment) may be challenged ia. the. second jury, (verdict-jury). 
 And when goon, afterwards the court of presentment became 
 merged in the great j,ury which was formed of the county 
 assembly, both jury courts appear under the names of the 
 "grand" and" petty " jury in permanent separation. No 
 reliable, trace of a hearing of witnesses and other modes of 
 taking evidence before this jury, can be discovered in the
 
 294 
 
 Constitutional History of England. 
 
 whole of the Middle Ages. It is still always regarded as an 
 inquisitorial commission of the community which has upon 
 oath to try the indictments confirmed by the grand jury, and 
 finally to decide from their knowledge of the vicinage and 
 from information there collected " an culpabilis sit vel now." 
 And on that very account " neighbourhood " was an essential 
 condition,, and after the practice had become looser in the 
 time of Edward III., it was required that at least six hun- 
 dredors, and in Fortesoue's time four hundredors should sit 
 upon the verdict jury. (2) 
 
 In this way the fundamental maxim, " Veritas in juratore, 
 justicia et judicium in jure " (Bracton, 186, b) became realized. 
 Common to all three forms is the tender regard paid to the 
 equality of the parties and the impartiality of the jurors. 
 This system of " fair trial " is the best and the most enduring 
 basis of English judicial life. After it had been carried out on 
 a great scale, the necessity arose of consolidating the duty of 
 serving on a jury. Originally the jurors in the county as 
 also in the sub-districts were chosen from among the tradi- 
 tional lawmen, that is, they were legates milites, liberi et 
 legates famines. But the duty of serving as juryman was by 
 its nature built upon a broader basis. For judging an 
 
 (2) An old fundamental error con- 
 siders this thorough organization as con- 
 nected with the provisions of Magna 
 Charta, whereas the guarantee of the 
 judicium parium in Art. 39 of the 
 charter actually formed an impediment 
 to reform. Much as such reform was 
 practically required, public opinion 
 adhered as tenaciously as ever to the 
 Anglo-Saxon principle of constituting 
 a court of men and pares of the hundred, 
 appointed to find the verdict. But the 
 opposition was, as might be expected, 
 most keen in criminal cases ; and the 
 slower course of development of the 
 verdict jury can be also thus explained. 
 The practice of the courts found a 
 remedy at first in this way, that it 
 caused the accused to submit volun- 
 tarily to the verdict of a j'wrata, in 
 place of the customary proof. In case 
 the accused refused to do this, no other 
 expedient was known, but that of an 
 administrative measure, the so-called 
 peine forte et dure (above, p. 190). In 
 this there was an evasion of the prin- 
 ciple by a sophistical trick, which, 
 practised on the Continent in much 
 greater dimensions, leads to torture, 
 whilst in England it remains restricted 
 to a middle course, and is in later 
 times even acknowledged in this form 
 by Act of Parliament (vide Palgrave, 
 
 ii. 189, 190). By this firm adherence 
 to the old ordo judiciorum it is also 
 explained why in the criminal assizes 
 such importance was still attached to 
 appointing a number of knights of the 
 shire, as pares, on the commissions of 
 justices. The bare fundamental idea 
 of the jury is, that the establishment 
 of fact in the trial (the determination 
 of the bases of the judgment of the 
 court) should proceed from the district 
 and community concerned, because the 
 knowledge possessed by the vicinage 
 of persons, things, and circumstances, 
 cannot be dispensed with, and least 
 of all, where the presiding justices only 
 come at stated times from long dis- 
 tances, and it is an established prin- 
 ciple that they shall be strangers to the 
 county. At the close of this period 
 Fortescue in his " Laudes Legum 
 Angliae" regarded the criminal jury 
 still only as a practical institution for 
 judicial proceedings on evidence. The 
 annual participation of thousands in 
 the practical administration of justice 
 became politically important; as also 
 was the newer and more uniform dis- 
 tribution of the judicial burden among 
 knights, freeholders, and boroughs, 
 which has become a fundamental prin- 
 ciple of representation in Parliament.
 
 The Century of Statutes. 295 
 
 habitual participation was necessary, which was only prac- 
 ticable for the greater landowners. In stating the question 
 of fact, an exact knowledge of the district of the vicinetum 
 was requisite, as well as personal integrity, and for this the 
 smaller freeholders were as well qualified as they were indis- 
 pensable. Participation in delivering judgment might appear 
 as an important political right ; the summons on the newer 
 commissions of evidence appeared as a newly established 
 service, and the taking part in such could scarcely become a 
 subject for class-jealousy. The danger now rather lay on one 
 side in the burdening of the poorer classes with this duty, 
 and on the other in the diminished trustworthiness, the cor- 
 ruptibility, and timidity of these elements. Therefore it was 
 necessary to fix upon an average scale of landed property, to 
 which the duty of serving on a jury should attach. In dealing 
 with the evil result : " that otherwise the rich would go free 
 and the poor constitute the juries," the stat. Westminster 2, 
 c. 38, enacts first that only freeholders of twenty shillings 
 value in land should be summoned to the assisa* By 21 
 Edward I. stat. 1 ; 2 Henry V. c. 3> this rating is doubled ; 
 only persons of forty shillings income from land (or one-tenth 
 of the rating of a knight's fee) should be summoned. (2 a ) 
 
 The fact that the royal justices of assize presided in it pre- 
 served at this time the character of the county court as a 
 court of common law. In contradistinction to the ordinary 
 sittings of the county court, prelates, barons, knights and 
 freeholders still appear before the royal justices of assize ; 
 from each township twelve citizens, and from every village 
 the village bailiff with his four men. This suit royal of the 
 prelates and barons, which was again expressly confirmed by 
 the Assize of Clarendon, hindered the courts of common 
 law from being divided into separate courts for the nobles, 
 knights, citizens, and peasants ; and even though the upper 
 classes display a constant tendency to be quit of the suit of 
 court in the county court, and though the statute of Merton 
 permits representation by proxy, and the statute of Marl- 
 borough releases persons of higher rank than a knight from 
 appearing in the sheriffs tourn, yet a liability to appear on 
 special summons still remains. The origin of a privileged 
 
 (2 a ) This has been at all times the presentment jury of the sheriff. In 
 
 practical side of the question. The other places acts of violence are spoken 
 
 wealthy bribed the sheriff, in order to of with which the jury are threatened 
 
 get free from service ; the parties en- by the litigants (22 Ass. pi. 44). The 
 
 deavoured to entertain and bribe the gradual disappearance of a Magna 
 
 poorer jurors. In 1 Edward IV. c. 3 ; Assisa composed entirely of knights 
 
 1 Richard III. c. 4, the reasons pro- (of which we have an instance as late 
 
 pounded speak of the abuse of poor and as the year 1348) is connected with the 
 
 unconscientious persona sitting on the aversion against serving on a jury.
 
 296 Constitutional History of England. 
 
 court in England is confined to the jurisdiction of the peers 
 over their members which sprang up under Edward II. 
 
 After all these changes the old office of sheriff has in 
 great measure lost its independent jurisdiction. In this 
 capacity it remains only an instrument of the supreme court 
 for functions in which a provincial organ is indispensable, for 
 instance for the issue of summonses, for executions, and for 
 the empanelling of a jury. Under Edward I. the sheriff's 
 judicial competence for civil matters is restricted to petty 
 suits not exceeding forty shillings ; to which are added his 
 inquisitorial, police, financial and administrative functions. 
 Through its police control, its privileges,, and its fees, the 
 office is however still sufficiently important to. be the object of 
 solicitation.. Manifestly in order to fall in with the wishes of 
 the knighthood, the attempt was therefore twice made to fill 
 the sheriff's office by a county election. The first attempt 
 was made in 1258 by the statute of provisors, but ended in 
 pure party elections, and was subsequently annulled. The 
 second attempt (2& Edw. I.) had for its result that after seven 
 years the sheriffs were obliged to be deposed en masse, and 
 others appointed in their places. The suffrage proved inappli- 
 cable to the judicial and police officers. The sheriff accordingly 
 remains an under-officer of the Exehequer and the King's 
 court, and is proposed for the King's sanction by the treasurer, 
 the chancellor, the barons of the Exchequer and the justiciarii 
 (9 Edw. II. stat. 2), las is done in effect at the present day. 
 He had to possess sufficient r.eaX estate to carry his responsi- 
 bility, and was not allowed to farm out his office. (2 b ) 
 
 The indirect effect of these magisterial institutions, was 
 finally the further decay of the regular hundred and manorial 
 courts. No : new law, no reform, was extended to them ; the 
 absolute validity of judicial documents in evidence is as a 
 rule confined to the royal courts of record ;. the want of a jury, 
 of a right of distraint, and of summary penal jurisdiction, was 
 
 (2 b ) The appointment of the sheriffs Lord. Chancellor, the Lord Treasurer, 
 
 who are proposed by the treasurer, the President of the Council and the 
 
 chancellor, and the judges (9 Edw. II. three presidents of the central courts 
 
 stat. 2), was fixed at a time in which of law were mentioned. In Fortescue's 
 
 the monarchy was involved in a oon- time all justices of the realm were wont 
 
 flict with the great barons on account to meet together with the great officers 
 
 of the appointment to the great offices and members of the council of State. 
 
 of State. This statute secured on the These are all only variations in the 
 
 one hand the constitutional influence urocse of business of the council of 
 
 of the council, and on the other a State; in like manner as the custom 
 
 certain impartiality in making the of proposing, three candidates to the 
 
 appointments. The idea was that the King also originated from practice, 
 
 chief officials of the permanent council As to the still considerable fees at- 
 
 should exercise the right of proposal. tached to the office of sheriff, cf. 
 
 In 14 Edward III. stat. 1, cap. 7; 23 Thomas, Exchequer, 51. 
 Henr. VI., cap. 8, accordingly the
 
 The Century of Statutes. 297 
 
 enough in itself to make them impracticable, and to bring 
 the jurisdiction over the villani (copyholders) more and more 
 completely to the regular courts. Even where a landowner 
 has been granted as a franchise the right of appointing a 
 bailiff by the clausula "non omittas," 13 Edward I. c. 29, the 
 sheriff may execute every order of the court in such franchise, 
 if the bailiff does not do it properly. Of course fragmentary 
 remnants of the old regime still occur. The infangtheft and 
 outfangtheft were, under Edward I., occasionally put in force 
 by manorial courts, and as late as 1285 two cases occur in 
 which a court baron passes sentence of death for felony. 
 
 III. The exercise of the police power becomes connected with 
 the county in a new way, by the office of fuSttCJ 0f tf) peace, 
 which had been formed after a long series of experiments. 
 The parliaments of this period begin with complaints of the 
 insolence of the magnates, and of feuds and brawls, which 
 after the times of the Barons' Wars appear again periodically. 
 Hence there resulted together with the militia code a formal 
 police-code in the statute of Winchester, 13 Edward I., which 
 begins with the words : "As day by day robberies, murders, 
 arson, and thefts, occur more frequently than they ever did 
 before " therefore the old police regulation touching the 
 "hue and cry" was strongly enjoined, the landlord was made 
 responsible for the guests he harboured, the hundred for 
 reparation of damage done within its district, and a more 
 extensive duty to do militia service, and a system of watch 
 and ward introduced. But there was also a concurrence of 
 various social reasons for extending and multiplying the pro- 
 vince of the police -power. Town and country life in England 
 had not become quite separated each from the other, and 
 there existed free intercourse to such a degree that the com- 
 munities, having become mistrustful on account of their 
 liability to make compensation, had frequently to require that 
 suspicious characters should find security for keeping the 
 peace and for their good behaviour. With the comparatively 
 early decay of villeinage and with the introduction of free 
 transactions of hiring and letting, the intimate bond between 
 property and labour became loosened in many places. By 
 free intercourse and unfettered industry, the unstable rela- 
 tions between property and labour became welded together, 
 and capable much earlier than on the Continent of being 
 regulated by comprehensive laws. The numerous industrial 
 enactments, which in Germany must be looked for in the 
 police regulations of towns, and in the statutes of guilds, 
 appear here as subjects of general legislation; at first as 
 royal assists and ordinances, and later as parliamentary 
 enactments. To these belong the legal fixing of the price of
 
 298 Constitutional History of England. 
 
 bread, beer, firing, and other necessaries of life, assists venalium 
 (at the same time with regulations against adulteration), the 
 most important of which is called the assisa panis et cerevisise 
 (51 Henry III. c. 5), all of which are continued as periodical 
 tariffs. Eegulations affecting the bakers' trade, the prepa- 
 ration and manufacture of leather and woollen cords, the 
 preparation of malt, brick-making, the coal trade and sale of 
 firewood, market police-rules, and the general provisions 
 of a trade-code form a very complicated legislation. (3) To 
 these were added the police laws affecting labour, which stand 
 in the place of the "law of socagers," and of the guild and 
 urban police institutions on the Continent. The first statute 
 of labourers, 23 Edward III., cap. 1, was promulgated after 
 a great national calamity, which had diminished the number 
 of working hands, and increased the ordinary rate of wages. 
 By it the working men are ordered to serve every employer 
 of labour at the customary wages. Connected with it there 
 became defined in practice the notion of combinations, that 
 is, of prohibited unions for obtaining an increase of wages. 
 Further connected therewith is the prohibition of giving alms 
 to able-bodied beggars. By 12 Kichard II. c. 7, every labourer 
 is forbidden to leave his place of abode without a certificate of 
 the magistrate that there is a good reason for his doing so ; 
 whosoever is found wandering about without such certificate 
 can be apprehended and put in the stocks. Those who are 
 unable to work shall return, in case of need, to their birth- 
 place to be supported there. According to the strength or 
 weakness of the successive reigns so does the rigour of the 
 labour police vary (13 Richard II. cap. 3 ; 14 Eichard II. 
 c. 1. 2 ; 2 Henry IV. c. 5 ; 4 Henry IV. c. 15 ; 5 Henry 
 IV. c. 9; 11 Henry IV. c. 8; 9 Henry V. c. 9, stat. 2; 
 8 Henry VI. c. 24 ; 27 Henry VI. c. 3 ; 17 Edward IV. 
 c. 1 ; 1 Henry VII. c. 2; 3, Henry VII. c. 8). But a warning 
 to exercise moderation existed in the rebellion of the peasants 
 under Richard II. The statutory tariffs of bread and beer 
 were intended in some measure to act as a counterpoise to 
 this. Elements of a police des mceurs were also contained in 
 the comprehensive meaning of the term " common nuisances " 
 by which disorderly and immoral houses were punished ; in 
 laws affecting luxury in dress, food, and other extravagances 
 the last-named in connection with fantastic practices 
 which the paid soldiery brought back with them from the 
 French wars. To this head belongs the dinner law (10 Edw. 
 
 (3) The scope of these laws is best manufactures from 2 Edward III. 
 
 seen in the modern repeal acts, such downwards (cf. 19 and 20 Viet. c. 64). 
 
 as 49 George III. p. 109, which affects A kind of general trade code resulted 
 
 forty statutes dealing with the woollen from 3 Edward IV. o. 4.
 
 TJie Century of Statutes. 299 
 
 III. stat. 3), de cibariis utendis, which allowed for dinner and 
 supper only two courses ; the great laws against luxury (37 
 Edw. III. c. 8-14) relating to dress and meals, repealed, it 
 is true, in the following year, but partly revived under Edward 
 
 IV. Supplementary to the above there existed besides a 
 summary penal power residing in the King's Bench, as 
 custos morum, as well as the right of the magisterial police to 
 enforce the finding of a security for good behaviour in cases 
 of offensive acts of public immorality. The idea of nuisance 
 embraces, besides, a number of disputes between neighbours ; 
 among others also, the first forms of highway regulations, and 
 a highway police. Further connected with these follow 
 hunting and fishing laws in an almost innumerable series. 
 
 To deal with this complicated system there had existed 
 hitherto- merely the sheriff's tourn and the courts-leet. 
 Although the Great Charter had withdrawn from the Vice- 
 comes the royal criminal accusations, yet there still remained 
 to him the first interference, the taking of security, the police 
 inquisition as well as the functions of police magistrate, where 
 petty criminal cases were concerned. The investigation in 
 these courts was, however, somewhat different from the pro- 
 ceeding of the present day. It did not take place publicly 
 before the community, but in and by the community itself, 
 with constant summonings of bailiffs and lawmen, with 
 examinations on oath as to knowledge, ignorance, and belief. 
 It was not only that this constituted the heaviest burden of the 
 judicial duties of the people, the community having to be 
 summoned en masse ; the further and main fault was unmis- 
 takable, that the terms and forms of a court were inadequate 
 for the preventive purposes of a police of this description, 
 which presupposes a much greater amount of activity. The 
 local courts-leet were on this account just as little equal to 
 the performance of such tasks as were the sheriff and his 
 under-bailiffs. Experience made it ever more clearly felt, 
 that assemblies of the community neither in pleno nor yet in 
 committees could conduct a police administration in the form 
 in which it was then constituted, owing to the extended 
 character of the system of preservation of the peace and the 
 police laws for trade, labour, and morals. So soon as a police 
 system by virtue of express enactment, takes the place of 
 patriarchal regulations, the carrying out of these regulations 
 by single officers, and their more summary enforcement, must 
 lead to the creation of a judicial office. 
 
 As early as the reign of Eichard I. a first attempt was 
 made to associate with the sheriff, district-deputies, custodes 
 placitorum coronas, or coroners, who were described in the 
 capitula of 1194 as custodes placitorum coronas. Their func-
 
 300 Constitutional History of England. 
 
 tions consisted in keeping a watchful eye on the royal taxes, 
 rights, and dues, and are probably identical with those of the 
 later coroners. Edward I. gives these officers exact instruc- 
 tions how to proceed with a commission of inquest chosen from 
 the neighbourhood in the case of unusual deaths. After 28 
 Edward III. c. 6, they were chosen in the county court from 
 among respectable landowners, and presented to the King for 
 his appointment. This first formation did not develop itself 
 further ; it confined itself to inquests as to causes of death, 
 to cases of embezzlement of treasure, and to assisting the 
 sheriff in certain cases. The monarchy was probably not 
 inclined to extend the powers of these chosen officers. It 
 is likely that in early times, as a consequence of the inade- 
 quate principles of their election, they proved themselves 
 inadequate officials. (3 a J 
 
 Towards the end of Edward the First's reign, in disorderly 
 times and districts, a kind of court-martial under justices of 
 trail baston began to be instituted, which was also in later 
 times occasionally repeated, but met with opposition on 
 account of its too summary character. Shortly after 
 Edward II. ascended the throne, conservatores pads were 
 appointed in every county, who were to reside continually 
 in their counties and visit all parts of the same, "to watch 
 over the observance of the police code of "Winchester, and 
 the royal decrees relating thereto." This also remained 
 only a passing attempt. But a very serious occasion for 
 the appointment of local police magistrates arose at the 
 accession of Edward III. After the deposition of Edward II., 
 his criminal spouse and her followers feared that general 
 disorder would ensue. They therefore caused by ordinance 
 (1 Edw. III. c. 16) the appointment in all the counties of police 
 magistrates, chosen from the ruling faction " bonnes gens 
 
 (3 a ) Without doubt the coronator days, whenever a speedy investigation 
 occurs under John and in Magna on the spot was needed. Violent deaths 
 Charta ; and is described in detail in and cases of treasure trove thus became 
 the law books of Bracton, Fleta, and the principal province of the coroner, 
 brittou, c. 1. As to their procedure, According to the oldest indications we 
 a very thorough ordinance, 4 Edward I. possess, this officer was to be presented 
 de officio coronatoris was issued ; and it to the King by the chancellor, the cur- 
 is also described in the statutum Wallias rent formula for which, a " breve de 
 (12 Edw. I. c. 5). In addition to the corona tore eligendo," is very ancient, 
 itinerant financial commissioners, other The jury to be summoned by the 
 persons also, who were presented from coroner is to be collected from the 
 the county itself to the King, could nearest villages to the inquisitio (per 
 exercise a control over the maintenance eorum sacramentum inquisitionem fa- 
 of the rights of the revenue and the ciant dehomine occiso), and it was re- 
 Crown ; out of this there was formed an garded as understood, that at least 
 inquisitio after the manner of a sheriffs twelve jurymen must be present, and 
 tourn, with commissioners of the town- twelve be of one accord in giving their 
 ship, which was to intervene in the verdict. Special qualifications were not 
 vacations between the periodical court required of this ex tempore commission.
 
 Tfie Century of Statutes. 301 
 
 et loyavx assignees a la garde de la paix," to act as assistants 
 of the sheriffs and of the itinerant justices. In the following 
 year police-magistrates were appointed with a commission of 
 oyer and terrniner, that is, with real penal powers. But these 
 again ceased when the occasion for their institution disap- 
 peared, and the change of party took place. The idea of the 
 appointment of police-magistrates from the district of the 
 county had in the meantime become popular. In 18 and 20 
 Edward III. new attempts and new proposals were made. In 
 21 Edward III. the commoners make a proposition to the 
 King, to appoint about six police magistrates in each county 
 two lords, two knights, and two men of the law. The 
 difference of opinion on the matter lies principally in this, that 
 the King and council cleave to the royal prerogative of ap- 
 pointment, whilst the estates lay the greatest weight upon 
 the election of great landowners. But in the meanwhile the 
 disputes with the labouring classes had arisen, which necessi- 
 tated the statutes of labourers (23 Edw. III. c. 1; 25 Edw. III. 
 c. 8). For the putting of these laws into execution according 
 to their spirit and their letter commissioners endowed with 
 extraordinary powers were appointed, who were to hold their 
 sittings four times a-year in each county. The idea of apply- 
 ing the principle of election to the statutes affecting labourers 
 could not for a moment be entertained. These police-magis- 
 trates, appointed by royal nomination, proved successful, and 
 agreeably to this precedent, after long experimental forma- 
 tions, there ensued at last in the year 1360 the appointment 
 of district police-magistrates, as a permanent institution, 
 by 34 Edward III. c. 1. " In every county of England there 
 shall be assigned for the keeping of the peace, one lord, and 
 with him three or four of the most worthy men of the counties, 
 together with some learned in the law, and they shall have 
 power to restrain offenders, rioters, and other barretors, and 
 to pursue, arrest, take, and chastise them according to their 
 trespass or offence ; and to cause them to be arrested and 
 duly punished according to the law and customs of the 
 realm, etc., etc., and also to hear and determine at the King's 
 suit all manner of felonies and trespasses done in the same 
 county according to the laws and customs aforesaid." (3 b ) 
 
 (3 b ) The origin of the office of justice notices, and much confused matter, 
 
 of the peace is treated of at length in Historical excerpts from Hardy are 
 
 Reeve's History, ii. 472 ; iii. 216, 242, contained in the " First Report on 
 
 265, 290; iv. 154. The old work of Constabulary Force," pp. 192-202, 
 
 Lambard, "Eirenarchia, or the Office (1830). The historical notices contained 
 
 of Justices of the Peace," is still in in Blackstone are taken from Lambard, 
 
 use in various editions, from 1581 to especially the vague and confused ex- 
 
 1619, 8vo. Still more detailed is pression that there existed, according 
 
 Dalton's " Justice," 1618, last edition to common law, conservatores pads 
 
 1697 fol., which contains historical either by custom or by feudal tenure,
 
 302 
 
 Constitutional History of England. 
 
 After many new proposals had been made, Parliament 
 demanded that the police magistrates should hold common 
 sittings four times in each year ; this was granted, and by 
 36 Edward III. c. 12, it became law. In the ensuing year a 
 petition was addressed to the King to the effect that he might 
 be pleased to allow the knights and burgesses in Parliament 
 assembled, to elect " the justices of the peace, and the 
 justices of labourers and artificers," and that the persons so 
 elected should not be again removed. The reply ran, that 
 Parliament might propose the persons, but that the King 
 would appoint according to his pleasure. Once again, in 
 50 Edward III., a petition was presented, praying that 
 Parliament might appoint the justices, and that they should 
 not be deposed without the consent of Parliament. The 
 reply to it ran, that the judges should be appointed by the 
 King and his (permanent) council, and herewith the election 
 question was settled for ever. 
 
 In this period, also, the more honourable title " justices " 
 occurs in addition to, or instead of, the older term, " cus- 
 todes pads." The form of the commissions was at the com- 
 mencement of Eichard II. 's reign already similar to that of 
 
 with the obligation to maintain the 
 peace, or such as had been chosen from 
 the people in the county courts (Lam- 
 bard, 15-17). By the proceedings of 
 1 Edward III. c. 16 the choice of the 
 guardians of the peace was first of all 
 taken from the people and then given 
 to the King (Lambard, 20). This pas- 
 sage, which has been copied again and 
 again, must have given rise to the erro- 
 neous idea that there existed in England 
 elected or manorial justices of the peace. 
 Officers chosen by the people, occupy ing 
 the magisterial office of justices of the 
 peace, have never existed in England 
 since the Conquest. Traditions of this 
 sort, which are also repeated in Coke, 
 Inst., ii. 459, 558, 559, date from the 
 constitution of the Anglo-Saxon town- 
 ships. For the Norman period they 
 are, on the showing of the records, 
 false, and incompatible with the whole 
 course of the development of legislation 
 touching justices of the peace. The 
 elected custodes pads of this period 
 are partly the coroners, partly the re- 
 cruiting officers of the militia, partly 
 the constables in the police admini- 
 stration, and partly anomalous person- 
 ages, with whom in times of civil war 
 experiments were made for a short time. 
 These are officers having the right of 
 first interference, of prosecuting the 
 presentments before the courts of law, 
 
 at most with the right of enforcing 
 the giving of security; but not royal 
 justices of record with the right to 
 pass judgment, and endowed with the 
 numerous extraordinary and discretion- 
 ary powers of justices of the peace. 
 Just as little have manorial justices of 
 the peace ever existed in England. 
 The usurpations of the nobility under 
 the House of Lancaster, and at the 
 time of the Wars of the Eoses, only 
 produced confused conceptions of the 
 kind, and in a few cases also hasty 
 and impolitic grants. But when a case 
 of this kind, touching the grant of the 
 privilege of appointing justices of the 
 peace, occurred in a charter for the 
 Abbot of St. Alban's, and came on for 
 trial before the King's Bench (20 
 Hen. VII.), the court declared, in con- 
 currence with the Attorney-General, 
 that the King was not authorized to 
 concede by such a grant, to any person, 
 the right of appointing royal justices, 
 seeing that this was a prerogative in- 
 separable from the Crown. Lambard 
 himself confesses (i. c. 3) that "all 
 offices for the maintenance of the 
 peace are originally derived from the 
 King, and that no duke, earl, or baron, 
 as such, -has a greater authority to 
 maintain the peace than any private
 
 Tlie Century of Statutes. 303 
 
 our own day, and became gradually consolidated as a com- 
 prehensive instrument of penal justice, and police, and 
 especially the newly promulgated police-laws. The duties 
 of the commissions of peace were at this time twofold : 
 
 (i.) The preservation of the peace according to common 
 law ; that is, apprehension, arrest, enforced bail, and all 
 other police functions, which traditionally lay in the jurisdic- 
 tion of the Norman provincial magistrates. 
 
 (ii.) Analogous functions according to the statute of Win- 
 chester, the statute of Westminster, and the later laws relating 
 to the police control over trades and labour, which became 
 more numerous with each succeeding generation. Actual 
 criminal penalties were only inflicted by them when they sat 
 in a body in quarter sessions, with the assistance of a jury. 
 Their commission was drawn up on this matter in such 
 general terms, that they exercised a concurrent criminal juris- 
 diction with the itinerant justices. In another direction, 
 there were especially reserved to them, by the framing of the 
 statutes, jurisdiction over a number of smaller offences against 
 the regulations affecting trade, morals, and labour. No 
 intention could yet be perceived in this materially to restrict 
 the application of the jury. But the framing of the more 
 recent police laws, gave them also in their own persons a 
 comprehensive jurisdiction, which was to be exercised with- 
 out a jury. It was not until the statutes of the following 
 period that this became extended to an administration of 
 summary justice without a jury, even against the accused 
 person who denies his guilt. '(3 C ) 
 
 The justices of the peace themselves must, according to 
 the petitions addressed to Parliament, be chosen from the 
 great landowners, whilst King and council look upon know- 
 ledge of the law as an essential qualification. As a body, 
 they were now according to local needs really composed of 
 both elements. The influence of the nobles under the house 
 of Lancaster first introduced a fixed qualification (18 Hen. vi. 
 c. 11). The justice of the peace is to possess lands of the 
 yearly value of 20 (the rating, in those times, of a knight's 
 fee) ; however, when sufficient landed proprietors were not 
 available in the county, who were skilled in law and its 
 administration, the Lord Chancellor was authorized to place 
 
 (3 C ) According to 15 Richard II. c. ' them against the previous ordinances 
 
 2, their duties were to establish the and statutes, and to punish them ac- 
 
 facts of violent dispossession ; according cordingly on their own confession, as 
 
 to Henr. IV. c. 4, sec. 2, " the justices if they had been convicted upon 
 
 of the peace are for the future to inquest." The statutes of the follow- 
 
 have the power to hear on oath all ing period extend this gradually to 
 
 manner of labourers, servants, and their an administration of summary justice 
 
 masters, and artificers, touching all without a jury even against the accused 
 
 things which have been perpetrated by denying his guilt.
 
 304 
 
 Constitutional History of England. 
 
 on the commission other persons learned in the law. By 
 virtue of this clause, the rivalry between the landowners and 
 the justices of the peace learned in the law or " the quorum," 
 continued down to the eighteenth century. The renuncia- 
 tion of their right to legally fixed daily allowances, which 
 became more and more the custom, at last brought about 
 the disappearance of the mere professional officials from the 
 commission of peace. (3 d ) 
 
 This new system of police control, as it steadily progresses, 
 thrusts into the background the old institutions, and first 
 of all the district police court of the sheriff. The turnus 
 Vicecomitis remains, it is true, side by side with the justices 
 of the peace. To the sheriff is also reserved the right of first 
 interference, of inquisition as well as criminal jurisdiction in 
 petty penal cases, with the co-operation of the townships. 
 So far the relation remained one of rivalry, but to the dis- 
 advantage of the sheriff, whose unpopularity still continued, 
 and whose police jurisdiction was doomed to further decay in 
 consequence of the inconvenient change of office from year 
 
 (3 d ) In the clause of the commis- 
 sion, in which " two or more " justices 
 of the peace are authorized to try and 
 to judge, the proviso is added, that 
 among this number one or more should 
 always be appointed by name (" quorum 
 aliquem vestrum A. B. C. D. unum esse 
 Tolumus "). Those thus appointed are 
 the members skilled in the law, who 
 on this account are technically called 
 " the quorum." In later statutes it is 
 also specifically determined whether 
 the justice of the peace is to act inde- 
 pendently, or whether he is to act with 
 the assistance of a colleague learned in 
 the law. This office of justice of the 
 peace, filled both by lawyers and land- 
 owners, is in fact only a new combina- 
 tion of elements that had long existed, 
 a new blending of property and office. 
 The King could from time immemorial 
 appoint justices of oyer and terminer to 
 hold the criminal courts ; by the new 
 arrangement he is obliged to appoint 
 them by preference from among the 
 resident landowners of the county. 
 The itinerant justices had their point 
 d'appui, or centre of gravity, in the 
 royal council, and in the central courts 
 of law ; the justices of the peace have 
 theirs in the county, and form in their 
 periodical sittings a corporate body, 
 which now becomes permanently con- 
 nected with the juries of the district, 
 and forms newly organized district 
 administrations for police purposes, in 
 the wide-it sense of the term. In the 
 
 commissions of the itinerant justices, 
 in addition to the justices of the realm, 
 lords and knights of the county were 
 also appointed, but only as secondary 
 personages, whose participation soon 
 became a purely nominal one ; in the 
 commission of the peace the profes- 
 sional officers are only colleagues and 
 assistants learned in the law, who 
 gradually retire before the permanent 
 influence of the great landed proprie- 
 tors. As the non-acceptance of stipends 
 (after 14 Eichard 11. c. 11) was de- 
 clared to be required of the honour of 
 lords and bannerets, the non-accept- 
 ance of wages altogether, soon appeared 
 called for by considerations of honour, 
 and thus the rush of lawyers and 
 small landowners to the commission 
 of the peace diminished. The great 
 landed proprietors thus obtained com- 
 pensation on a greater scale for their 
 decaying manorial courts. But for the 
 practical purposes of the police control, 
 the requisite stability and the necessary 
 force was thus gained. Inasmuch as 
 the justices of the peace were appointed 
 for the district of the county, and as 
 their official jurisdiction was from the 
 first to be exercised "as well within 
 as without the franchises," they held 
 authority over the disconnected mano- 
 rial districts. And herein already we 
 perceive the principal reason why the 
 justices of the peace gradually ousted 
 the old courts-leet.
 
 The Century of Statutes. 305 
 
 to year. Sheriffs were deprived of the important powers of 
 preliminary inquiry by 1 Edward IV. c. 2, 3 (1461). Their 
 functions were restricted to a jurisdiction of first instance, 
 and the taking of indictments, and the actual order of arrest : 
 all further proceedings had to be left to the next quarter 
 sessions. But, on the other hand, the execution of penalties 
 still remained to the sheriff ; for which function the organiza- 
 tion and financial administration of the sheriff's office was 
 originally framed, and for which they remained suitable. 
 
 The same course of development was taken by the manorial 
 and borough courts-leet, which had branched off from the 
 sheriff's tourn. For a certain time they still competed with 
 the office of the justices of the peace ; that is, they acted by 
 means of a continued summons of the assemblies of the 
 townships for the purposes of the inquest and police convic- 
 tions. They still continue, but in principle are restricted to 
 their old jurisdiction at common law, except where the 
 criminal jurisdiction over new penal offences has been ex- 
 pressly given them by statute law, as was done frequently 
 in the province of police regulations affecting labour and 
 trade. In this condition of free competition, the court-leet 
 (except in very few places where accidental circumstances 
 kept it alive) becomes gradually overshadowed and choked 
 by the newer and more vigorous institution of justices of the 
 peace. These were at all times accessible, whilst the court- 
 leet was only opened twice in each year, and then only for a 
 short time. The justices of the peace gain from generation 
 to generation new and effectual penal powers, whilst the court- 
 leet, as a rule, remains restricted to a cumbrous inquisition, 
 and to the penalties of the common law. At the close of 
 Edward the Third's reign (51 Edw. III.) Parliament again 
 prays that no penal offences shall be sent to the justices of 
 the peace, which ought to be decided in the leets of the land- 
 owners and boroughs. The answer ran, that the laws which 
 had hitherto been enacted (police regulations) could not be 
 maintained, if this petition was granted. From that time the 
 decay of the leets silently proceeded. 
 
 The subordinate functions of the maintenance of the 
 peace, which were exercised as a jurisdiction of first instance 
 in the townships, tithings, and mllatse, by reeves and the 
 lawmen of the district, in the form of committees of the 
 township, together with the duty of giving informations, 
 passed gradually into the office of the reeves of the town- 
 ship, who now subordinated themselves to the justices of the 
 peace as they formerly did to the sheriff's tourn. These 
 inferior functions follow the course of development of the 
 higher ones. In the place of the indicting township, there
 
 306 Constitutional History of England. 
 
 now appears at the sessions of the justices of the peace, a 
 tithing-man, who, from the time of Edward III., bears the 
 title of constable, a name taken from his militia functions ; 
 he makes his presentments there, and keeps watch over the 
 peace in his district (just as the chief constables did in the 
 hundred), with the old duties of a guardian of the peace, 
 and various new official functions which have been successively 
 imposed upon him by the police laws relating to trade, labour, 
 and morals. (3 e ) 
 
 IV. f)e connection of t|)* financial administration foitf) tfje 
 COUntg is bound up with a system of local taxation which 
 dates from earlier times. The dues of the county unions con- 
 sisted for a long time only of services and matters rendered 
 personally and in kind, whilst the central government had 
 even in early times adopted a properly organized revenue 
 system. Supplementary payment in money is already found 
 in Norman times, in consequence of the innumerable amercia- 
 ments and fines. The oldest payments in money were fines 
 inflicted for the neglect of duty by individuals or communi- 
 ties ; others served for procuring the necessary ways and 
 means for the fulfilment of a common duty. Directly or in- 
 directly, taxation was thus a complement of the judicial, 
 police, and military services owed by the greater and smaller 
 unions, in the imposition of which the pattern of feudal 
 burdens pervades the lower spheres as well, distributing taxa- 
 tion according to the scale of freeholdings, houses as well as 
 land, and profitable rights. In the practice of administration 
 three grades became formed, which although they are only 
 incidentally mentioned in the oldest statutes are presumed to 
 have existed. 
 
 1. The "tithing" or "town-ley" (levy) served to discharge 
 the amerciaments and fines of the township, and answered 
 to the duties which the Norman constitution laid upon the 
 
 (3 e ) It was a division of labour, the militia. In the statutes we meet 
 
 by virtue of which the duty of making with this title first in 12 Edward III. 
 
 presentment, as well as that of appre- It appears to be regarded in the war- 
 
 hending the breaker of the peace, passed like times which followed as the more 
 
 to the constable alone. According to honourable title, and now drives the 
 
 the statute of Marlebridge (52 Hen. older designations from the popular 
 
 III.), the whole township was only to language. Towards the end of the 
 
 appear in case of murder ; in all other fourteenth century, it had become the 
 
 cases the sheriff was to be content if ordinary official title of the reeve (cf. 2 
 
 the provost appeared with four men. Edw. III. c. 3; 3 Edw. Ill, c. 14; 25 
 
 In the private leets, too, the failure Edw. III. stat. 1, c. 6 ; 36 Edw. Ill 
 
 of the lawmen to appear was never stat. 1, c. 2). In the west of England 
 
 rigorously regarded. The current bust- however, townships are still found with 
 
 ness accordingly fell more and more two tithing-men, of whom the first is 
 
 into the hands of the reeve alone, who constable of the King, the second 
 
 came to be often called "constable," simply "head-borough" (Lambard, 
 
 in consequence of his official duties in * Constables," pp. 9, 10).
 
 The Century of Statutes. 307 
 
 tithings. Such were amerciaments for escaped offenders, for 
 the harbouring of breakers of the peace, outlaws and those 
 for whom no security had been given; amerciaments for 
 neglecting to keep the paths, highways, drains and smaller 
 bridges on roads belonging to the township in repair ; fines for 
 the neglect of accusations before the court. Where a special 
 court leet had been granted to the township, the expenses of 
 keeping the stocks in repair and other outlays connected with 
 the local court were added to these : in somewhat later times 
 again, amerciaments for offences against the militia code, such 
 as failure to furnish troops, neglect to keep the weapons and 
 archery butts in repair, etc. Naturally such contributions 
 were raised by the local authorities, that is, by the provost with 
 the four men who represent the township at the sheriff's tourn. 
 After the name " constable " appears, in the fourteenth cen- 
 tury, in the place of that of provost, the name " constable's 
 tax " is the prevailing designation for the same thing. The 
 manner of distribution affected the same persons upon whom the 
 military, judicial, and police duties altogether fell, that is, the 
 freeholders, and consequently the lawmen of the court leet. 
 
 2. The hundred-rate served for the payment of the amercia- 
 ments and fines of the hundred, for the maintenance of the 
 hundred-court, to make good the disbursements of the chief 
 constable after the introduction of the militia system, for the 
 keeping of the bridges of the hundred in repair, and for con- 
 tributions to the county as we shall mention below. It appears 
 to have been apportioned by the bailiff (later by the chief con- 
 stable) among the individual townships, where we meet with it 
 again as " town cess," that is, as a common burden. The 
 oldest statutory mention of it is in 13 Edward I. c. 6. 
 
 3. The county rate serves for the amerciaments and fines 
 of the county, for certain expenses of the county court, prisons, 
 bridges, and certain military expenses. The raising of the 
 county contributions appears to have taken place originally in 
 such a manner that the sheriffs distributed them over the 
 hundreds. By 3 Edward I. c. 16, 18, it was indeed enacted 
 that the itinerant justices should raise these amounts from 
 the persons liable to pay; but as such individual rating 
 probably appeared to be impracticable, the older manner 
 remained the prevailing one, which was to distribute the 
 payment over the whole hundreds, and from these to divide 
 it among the townships, by which method a fixed and fair 
 proportion in the contributions was attained. But when the 
 proportions had been definitely fixed, the whole business of 
 assessing the taxes fell upon the townships. 
 
 Such being the chief causes for the levying of imposts, there 
 arose accordingly a certain practice of assessing the neighbour
 
 308 Constitutional History of England. 
 
 by the neighbour, to which people became accustomed by the 
 Norman inquest. The increasing expense of keeping the 
 roads in repair, and of the mustering of the militia, as well as, 
 later on, the furnishing of armed contingents which was ex- 
 pected of the districts, and many other local necessities, caused 
 on all sides the institution of committees of assessment. (4) 
 
 Meanwhile the time drew near when the employment of 
 commissions of the townships could no longer be disregarded 
 for the State taxation also. The raising of scutagia by the 
 Vicecomes took place indeed according to the feudal registers ; 
 but even here the frequent change of ownership and sale of 
 plots led to many disputes and to much arbitrary action. 
 Still more numerous were the complaints of unfairness in 
 making the tallagia assessments. Hence at an early period, 
 instead of the sheriff, the itinerant commissioners of the Ex- 
 chequer were charged to negotiate with knights and boroughs 
 on these points. For great disputes as to rights of the Crown 
 "juries of inquiry" were frequently appointed. But when 
 the Assize of Arms (1181) introduced service in the militia, 
 with classification according to property, Henry II. could not 
 avoid employing a number of knights and legales homines 
 sworn in for the purpose of acting as commissions of the 
 townships. When the raising of a Saladin tithe (1187), the 
 collection of Kichard the First's ransom, and the levying of a 
 general hide-tax in the same reign (1198) led to an entirely 
 new assessment of taxes according to the amount of hides 
 and of income, the appointment of knights of the shire and 
 others was for practical reasons unavoidable. This system 
 was continued under Henry III. For the assessment of the 
 carucagium of 1221 two knights were to be chosen in full 
 county ourt "according to the will and advice of the county 
 court." For the income-tax of 1225 (rs) the assessment took 
 place on a sworn declaration of the person liable to taxation, 
 disputes were settled by a jury, the amounts collected by the 
 
 (4) As to the first formation of the (Magna Charta), according to which 
 county, hundred, and local taxation, no township was to be forcibly corn- 
 compare the Report on Local Taxation pelled to build bridges where this had 
 of 1843, pp. 5-7, and the memoir of not been customary at the time of 
 the Poor Law Board on Local Taxes of Henry II. These quotations prove 
 1846, p. 45. The want of legal pro- that the laws of the Middle Ages only 
 visions as to assessments only proves occasionally touch upon these matters 
 that the general principles of the feudal to remove individual abuses. But spon- 
 and judicial duty decided the method. taneous growth prevails in no system 
 The report quotes as statutes which of taxation. It was in this case the 
 presuppose a local taxation, 52 Henry Norman system of government with 
 III. c. 24, touching the payments to its administrative system of fines, which 
 be made by the township when their hadset the military, judicial, and police 
 lawmen fail to appear at the accu- duties in motion, in accordance with 
 sation proceedings before the sheriff the temporary necessities of the State, 
 or coroner; and 25 Edward I.o. 12, 22
 
 The Century of Statutes. 309 
 
 reeve and the four men, and paid to four knights of the shire 
 of the hundred (Charters, 355). The income-tax of 1232 (^) 
 was assessed by the reeve and four men elected by the town- 
 ship as "assessors" upon their oath (Charters, 360). The 
 income-tax of 1237 was assessed upon the oath of the reeve 
 and four men of each township, with the assistance of elected 
 " assessors ; " the assessment was verified by four knights 
 and an ecclesiastic (Charters, 366). This method pursued 
 by the assessment commissions continued as a rule uniformly 
 under Edward L, and was among other cases employed in 
 the towns for the assessment of the wool-tax that had then 
 been introduced. After 25 Edward I. the committees of the 
 township appear as a permanent institution. The ordinance 
 prescribes that in each township four men shall be chosen, 
 who shall report their assessments to the county authorities, 
 who are thereupon to go from hundred to hundred and from 
 township to township to hear complaints and to correct errors 
 in the assessment. Nine years later (1306) it is decreed that 
 a commission (jury of twelve men) of every hundred shall 
 deliver their assessment to the assessors of the county. For 
 this purpose they shall go from township to township and 
 make with the provost and the four men a correct assessment. 
 The assessment commission of the county proceeds again from 
 hundred to hundred and from township to township, to see 
 that no wrong has been done. But the more frequently the 
 hundreds and counties agreed upon a fixed rate of contribution 
 to the local taxes for the sake of simplification, the nearer did 
 the application of the like proportions to the State taxes come. 
 In the eighth year of Edward the Third's reign a widespread 
 assessment of individual townships at fixed sums had come 
 into practice, and from that time it became the custom to 
 assess boroughs and townships according to these propor- 
 tions, which are taken as a basis for taxation as between the 
 townships. The assessment and the collection from the indi- 
 viduals was left to the communitas. (4 a ) 
 
 (4 a ) The proceedings taken upon the formed of townships or hundreds, in 
 
 first attempts at taxing the whole in- 16 Henry III., and then repeatedly oc- 
 
 come arising from personal estate are curring until Edward II.'s reign. In 
 
 treated of in Palgrave, " Common- the course of this period the position 
 
 wealth," i. 275. At these first attempts of Vicecomes in the assessment had to 
 
 a threefold process was adopted : (1) be quite given up, as the reclamations 
 
 All inhabitants (with the exception of against it were interminable. But 
 
 the Crown vassals) were compelled to the itinerant justices were unsuited to 
 
 prove on oath the full value of their the duty on account of their deficient 
 
 income, as was done in 8 John. (2) knowledge of places and persons. Thus 
 
 An inquest was appointed to test the also a permanent necessity compelled 
 
 case where the oath of the taxpayer the adoption of the inquest system, 
 
 was doubted or called in question, as Complaints that one was assessed too 
 
 happened in 9 Henry III. (3) By direct high and another too low, were also 
 
 assessment by inquests, which .are made to the Exchequer, out of which
 
 310 Constitutional History of England. 
 
 V. Now that the county-union had become a firmly organized 
 entirety for military, judicial, police, and taxation purposes, 
 it was further developed by the extension of tf)e sgstem of 
 Ufstrict unions to a constotrable number of borottojjs ; in the 
 majority of them in a more limited extent, but yet through 
 the application of the same principles, so that the constitu- 
 tions of the boroughs resemble, on a small scale, those of the 
 county. 
 
 1. In the militia system the boroughs are in principle 
 incorporated with the counties, and furnish their contingents 
 according to townships, parishes, and hundreds just like the 
 country. For London, however, a separate militia system 
 soon arose, owing to the fact that the county of Middlesex 
 was included in the government of the city. A small number 
 of other towns obtained in this period by charter the " right 
 of a county," and together with it a special civic militia. 
 
 2. In the judicial administration a special court-leet had 
 become in the preceding period the characteristic mark of 
 the civic constitution. To certain cities a civil jurisdiction 
 was also granted after the new pattern of judge and jury. 
 But the more important civil and criminal cases were all 
 decided by the itinerant justices with a jury of the county. 
 
 3. The police administration also shows in the cities a 
 gradual overshadowing of the court leet by justices of the 
 peace. The number of the cities in which at the close of 
 the Middle Ages the court leet was still of importance was 
 probably not very considerable. The place of the court leet 
 is taken in very important cases by the justices of the peace 
 for the county, whose jurisdiction is expressly granted " as 
 well within as without the liberties," and therefore within 
 the separate civic districts. The good understanding sub- 
 
 a writ of asqualiter taxandwm was issued ninth of the civic income, upon the 
 
 (Coke, "Inst.;" ii. 77). The township, ninth lamb, sheep, and wool-skin (the 
 
 for its part, was competent to raise poorer classes being exempted). At 
 
 the amount of the tax by distraining the same time the clergy had granted 
 
 movables and money (Heyburn v. Key- one-tenth of their spiritualities and 
 
 low Mich., 14 Edw. II., B. R. Rot., 60) temporalities according to the rating 
 
 or by civil action. The most important of 1292. All this led to a complicated 
 
 information as to the assessment of assessment, for which three successive 
 
 taxes under Edward I. we owe to the commissions were now appointed. For 
 
 treatise of T. Smith, "The Parish," 1857, each county respectable persons were 
 
 and especially the advantage of being appointed by name, to act as assessors 
 
 able to make more correct use of the and venditors for the assessment busi- 
 
 " inquisitiones nonarum." These in- ness, and who by sworn men assessed 
 
 quisitiones (cf. Cooper, " Account," i. the ninth on corn, wool, and lambs ; 
 
 286-293) arose under the stat. 14 and then again the old Church tax 
 
 Edward III. stat. 1, c. 20, by which and its relation to the ninth of the 
 
 one-ninth and one-fifteenth were voted actual produce. The digest of the ac- 
 
 to the King for the extraordinary needs counts for twenty-seven counties still 
 
 of the State and for war purposes, and exists in the Exchequer, and is printed 
 
 which in this case were fixed at one- as Nonarum Inquisitiones (1807, fol.).
 
 The Century of Statutes. 311 
 
 sisting between the towns and the knighthood, as well as 
 reasons of practical convenience, explain why on the part 
 of the cities no opposition was raised on principle. Besides 
 this, the respectable landowners and lawyers of the towns were 
 also nominated as members of a commission of the peace. 
 Nevertheless, the later city charters, after Eichard II., were 
 frequently framed with a view to a separate commission of the 
 peace, whose quarterly sessions became an ordinary criminal 
 court for which the town issued its own list of jurors. 
 Side by side with this a rival jurisdiction of the justices of 
 the peace for the county generally continued to exist. The 
 special requirements of the market police were provided for 
 in a special department of the clerk of the market, which 
 under the name of a "court of the clerk of the market" 
 enacted penalties for certain offences against the market laws, 
 and under the name of a " court of pie-powder " served for 
 the decision of certain market disputes, and for the inspection 
 of weights and measures. 
 
 4. In the local taxation system the smallest boroughs 
 ranked as townships or parishes, though the majority ranked 
 as hundreds. London and some others, on the other hand, 
 ranked as counties. 
 
 The number of boroughs becomes according to this system 
 considerably increased. Under Edward I. fifty-four new ones 
 are enumerated; under Edward II., sixteen; under Edward 
 III., twenty-eight ;. under Henry IV., three ; under Henry VI., 
 four ; and under Edward IV., two ; so. that the number of 
 those places which possessed a kind of municipal constitution 
 at the close of the Middle Ages exceeded two hundred. (5) 
 
 (5) On the extension of self-govern- 1. The towns form a court leet or 
 ment to the municipalities, cf. Gneist. some other separate judicial district. 
 "Gesch. d. Communal- Yerfas." 194- It is, however, not sufficiently appre- 
 204. With respect to the State govern- ciated that by the introduction of the 
 ment they are secondary formations. jury system, and the justices of the 
 The exercise of magisterial authority peace, the form of the old judicial 
 could, from the nature of the public township was changed, and with it 
 business, be only confided to larger the participation of citizens also. The 
 unions. English self-government is real life of judicial and police admini- 
 accordingly based upon the counties stration must be looked for in the 
 and hundreds, that is, upon unions of assizes, the justices of the peace, and 
 districts and bailiwicks, and not upon the jury. But the leet jury still re- 
 townships. It is only the city of tained a right of proposing the mayor 
 London that properly speaking has the or provost ; and this right in process of 
 character of a county. From this down time developed itself so far, that in 
 to a number of small market- towns, some places the leet jury actually elects, 
 the municipal constitution forms only whilst in others it only presents for 
 an imperfect application of county self- election (Scriven, " Copyhold," ii. 860). 
 government to a local union. The legal In performing their police duties, the 
 bases of the municipal constitution lawmen of the leet could also pass 
 may, with Stephen and Merewether. be bye-laws which had the force of law 
 referred to the same heads as in the within the district, 
 former period: 2. The boroughs are still in the
 
 312 
 
 Constitutional History of England. 
 
 These are the bases of self-government by which the central 
 government now entered into a firm bond of union with the 
 county government, by which the classes of society, though 
 differing in their landed and industrial interests, now become 
 united together to fulfil their political duties ; and, filled with 
 the consciousness of public duty and a common zeal for the 
 general welfare, all gain the capability of taking part in the 
 government of the country. The recognition of personal 
 liberty by Magna Charta is followed by the political liberty 
 which calls the existing middle classes to take part in the 
 government of the realm in the form of county and municipal 
 unions. The political self-consciousness thus strengthened, 
 from this time onwards unfolds itself in its firm national indi- 
 viduality, and challenges comparison with the great civilized 
 States of the Continent.*** 
 
 position offirma burgi. It is, however, 
 a fact not sufficiently appreciated by 
 Merewether, that this relation was 
 materially altered by the right of the 
 counties and cities to grant taxes. 
 
 3. The class of burgesses still con- 
 sists of the resident householders, who 
 are included among those paying " scot 
 and lot." The ordinances dating from 
 the era of the house of Lancaster still 
 recount the old characteristics of citizen- 
 ship, such as being sworn to the King 
 and the town; living by their liveli- 
 hood, merchandise, or crafts; house- 
 holding in their own persons and names; 
 bearing tax and talliage, lot and scot. 
 It has been frequently remarked that 
 the English towns have never attained 
 to the importance of those of the Con- 
 tinent. Their striving after separation 
 lasts only as long as the old regime 
 of the Norman Vieecomites. So soon 
 as those causes fell to the ground, 
 thanks to the central courts and the 
 altered'position of the sheriffs, the towns 
 remained unresistingly in the military 
 and other systems of the county unity, 
 and contented themselves with more 
 restricted immunities. Their participa- 
 tion in the jury and in the commissions 
 of peace, as well as equality in respect 
 of taxation, kept them in active inter- 
 course with the knighthood. Trade 
 and industry moreover existed from 
 time immemorial in the country also ; 
 conversely many landowners had also 
 town houses. The administration of 
 the provincial police magistrates gained 
 respect and popularity. In short, the 
 reasons are not found in England, 
 which in Germany forced the cities to 
 shut themselves off in fact and law and 
 
 to become fortresses, in order to avoid 
 sharing the lot of the peasantry. Hence 
 the municipal government in England 
 was the reverse of that in Germany it 
 was the weaker part of self-government ; 
 and thus may be explained the some- 
 what subordinate position of the muni- 
 cipal deputies in the Lower House, 
 though they exceed the knights of the 
 shires in number. 
 
 *** The quiet but grand significance 
 of this period is thoroughly appreciated 
 by Macaulay (" History," cap. 1.) : 
 " Sterile and obscure as is that portion 
 of our annals, it is there that we must 
 seek for the origin of our freedom, our 
 prosperity, and our glory. Then it 
 was that the great English people 
 were formed, that the national cha- 
 racter began to exhibit those peculiari- 
 ties which it has ever since retained, 
 and that our fathers became emphati- 
 cally islanders, islanders not merely 
 in geographical position, but in their 
 politics, their feelings, and their man- 
 ners. Then first appeared with dis- 
 tinctness that constitution which has 
 ever since, through all changes, pre- 
 served its identity ; that constitution 
 of which all the other free constitu- 
 tions in the world are copies, -and 
 which, in spite of some defects, de- 
 serves to be regarded as the best under 
 which any great society has ever yet 
 existed during many ages. Then it 
 was that the House of Commons, the 
 archetype of all the representative as- 
 semblies which now meet, either in the 
 old or in the new world, held its first 
 sittings. Then it was that the Common 
 Law rose to the dignity of a science, 
 and rapidly became a not unworthy
 
 The Century of Statutes. 313 
 
 Absolute rule is now superseded by a constitutional gobetn= 
 according to lafo ; a government which by means of 
 permanent political institutions gives to the rights of the 
 individual, and to the participation of the people in the 
 government of the land, those guarantees which were aimed 
 at in Magna Charta. The constitution of the Government 
 and the division of power are now as follows : 
 
 1. The ordinary administration of justice is consolidated in 
 fixed judicial bodies, or central tribunals. These represent the 
 most durable formation of the era of the rise of the estates 
 (cap. 22). 
 
 2. The conduct of the highest political business becomes 
 consolidated in a standing state council or permanent council 
 (cap. 23). 
 
 3. The participation of the prelates and barons in the 
 central government of the realm is fully established owing 
 to their being periodically summoned to the royal council ; 
 in union with this they form the Parliamentum or Magnum 
 Concilium, which at the close of this period has developed 
 into an hereditary council of the Crown (cap. 24). 
 
 4. The participation of the communitates in the central 
 government develops into a House of Commons (cap. 25). 
 
 The whole development of the government by estates of the 
 realm confines itself, however, to the temporal side of the 
 State, which is now confronted by the gradually increasing 
 isolation of the ecclesiastical hierarchy (cap. 26). 
 
 rival of the imperial jurisprudence. aptitude for all the highest purposes 
 
 Then it was that the courage of those of the poet, the philosopher, and the 
 
 sailors who manned the rude barks of orator, inferior to the tongue of Greece 
 
 the Cinque Ports first made the flag of alone. Then, too, appeared the first 
 
 England terrible on the seas. Then faint dawn of that noble literature, the 
 
 it was that the most ancient colleges, most splendid and the most durable of 
 
 which still exist, at both the great the many glories of England." Upon 
 
 national seats of learning, were founded. the obscurity described by Macaulay 
 
 Then was formed that language, less as existing, light can in most cases be 
 
 musical indeed than the languages of thrown from the fundamental bases of 
 
 the south, but in force, in richness, in this political system.
 
 314 Constitutional History of England. 
 
 CHAPTEE XXII. 
 Courts of Common Itato. 
 
 THE establishment of a definitely secured judicial system 
 in the spirit of true monarchy begins with Edward I. 
 The firmest barrier against arbitrary decisions under the 
 personal government was formed in this period by three 
 corporate ofUcial bodies under the names of Court of King's 
 Bench, Court of Common Pleas, and Court of Exchequer. 
 They may be designated the three ordinary Courts of Common 
 Law, side by side with which certain special courts of the 
 Norman feudal system still continued, to which I shall refer 
 at the close of the chapter. 
 
 I. ^i) Court of Ij&mg'g 23nttf) had already under Henry 
 III. become organized as a nearly permanent court, in which 
 the King claimed the right to preside in person. This 
 tribunal was on that account still to follow the person of the 
 King as a " Curia coram Rege ubicunque fuerimus in Anglia." 
 With this condition, the court consisted of a bench of four 
 or five justiciarii, whose president from Edward the First's 
 time was called " Capitalis.. Justiearius ad placita coram Rege 
 tenenda," and may to a certain extent be regarded as a 
 successor of the old high justiciary, but only for judicial 
 business. In this court are combined 
 
 1. The placita coronse or criminal cases, extended so as to 
 include petty offences, but in such a manner that, as a rule, 
 the same cases can also be dealt with by the justices of the 
 peace at the quarter sessions. 
 
 2. The police control, which was from the first combined 
 with the exercise of penal justice; the judges are in their 
 ofiicial capacity the supreme conservatores pads. 
 
 3. The constitutional appeal from the lower courts; in 
 this sense Bracton calls the judges " capitales, generates, 
 perpetui et majores, a latere regis residentes, qui omnium aliorum 
 corrigere tenentur injurias et errores," that is to say, a higher 
 tribunal for the courts of the land, with the exception of the 
 Exchequer, which in its capacity of supreme court of finance, 
 stands in the same rank with it. (1) 
 
 (1) The formation of the Court nected with the discontinuance of the 
 of King's Bench is intimately con- office of Capitalis Justiciarius Anglix.
 
 The Courts of Common Law. 
 
 315 
 
 II. i)e (JDourt of (Common ^Uas as a permanent court of 
 law for civil actions between private persons, in which no 
 royal rights were involved had also, from Edward I.'s time, 
 its special president, under the name of a Capitalis Justiciarius, 
 and its regular seat at Westminster. To oppose the excessive 
 centralization, the statute of Gloucester (6 Edw. I. c. 8) 
 prohibited the royal central courts of justice from dealing 
 with claims not exceeding forty shillings ; these petty cases 
 were reserved to the county and local courts. Nevertheless 
 the number of actions had increased to such an extent that 
 from the time of Edward III. the number of justices was 
 augmented from three to six, and occasionally to seven. In 
 answer to complaints from the estates, the assurance was 
 repeatedly given that commuwa placita were no longer to 
 be heard in the Exchequer. The administration of justice 
 by the King in person was also given up in these cases. (2) 
 
 After the Battle of Evesham, Henry 
 III. did not again nominate to this 
 office. In 52 Henry III., however, 
 Robert de Bruce was by patent ap- 
 pointed to be " Gapitalis Jiteticiarius 
 ad placita coram Sege tenenda" and 
 from this time this is the ordinary 
 title of the president of the King's 
 court, who is no longer to be governor 
 general of the realm, but only a repre- 
 sentative of the royal power in its 
 judicial branch (Foss, "Judges of 
 England," ii. 135; iii. 18). The 
 number of his assistant justices was 
 under Edward I. as a rule four, in the 
 later years of the reign three ; under 
 Edward III. at first three, and then 
 again four (Foss, iii. 19, 342). For- 
 tescue (writing in the middle of the 
 fifteenth century) says, that four and 
 sometimes five justices sat in the 
 King's Bench. As to the jurisdiction 
 of the King's Bench, cf. Reeves, ii. 
 247, 248. If the King was within the 
 realm, the court, according to Norman 
 custom, was certainly always obliged 
 to follow him. Edward I. and Edward 
 III. insisted upon this, in spite of the 
 petitions of Parliament (Foss, iii. 339). 
 Under Richard II. also a circuit was 
 made to Coventry and Worcester. 
 But in the second half of this period 
 the sitting at Westminster became the 
 rule of practice, with the reservation 
 of a change of place in time of war and 
 national calamities. The kings have 
 never expressly renounced their tra- 
 ditional right of presiding in person. 
 John, from the fifth to the sixteenth 
 year of his reign, wag frequently present 
 at the sittings (Foss, ii. 4), and also 
 
 held circuits in person in company 
 with certain of his councillors. Henry 
 III. also sat in person in judgment on 
 certain important cases, and notably 
 in an action brought against the bur- 
 gesses of Winchester administered 
 severe justice (Palgrave, i. 292). 
 Under Edward I. and II. we meet also 
 with isolated instances of the King 
 presiding in person (Palgrave, Privy 
 Council, 62). Circuits undertaken by 
 the King, so long as the separate in- 
 stitution of itinerant justices lasted, 
 occur until Edward III.'s accession to 
 the throne (Palgrave, Commonwealth, 
 i. 292). And even after the itinerant 
 justices had ceased as a separate in- 
 stitution, the King sometimes took 
 part in the circuits of the justices of 
 his realm. Under Henry VI., on the 
 other hand, it was, according to For- 
 tescue, no longer " customary " for the 
 kings of England to sit in court aud 
 deliver judgment themselves (Foss, 
 iv. 215). Edward IV. is" said to have 
 once sat for three days in the King's 
 Bench, but only " to see how his laws 
 were executed " (Allen, Prerogative, 
 93). Hence we perceive that the 
 monarchy was finally restricted to its 
 old formal authority in the department 
 of the administration of justice. 
 
 (2) The independent formation of 
 the Court of Common Pleas is, accord- 
 ing to the careful researches of Foss 
 (ii. 160 seq.), of subsequent date to 
 Magna Charta. The Germanic con- 
 ception of the judicial office, and the 
 desire to keep free from the influences 
 of court favour or disfavour, showed 
 itself more strongly here than else-
 
 316 Constitutional History of England. 
 
 III. Sf)C Court Of (JBxdbtquer now becomes separated, in 
 its capacity as a financial tribunal, from the administrative 
 central government of the Exchequer. The carrying out of 
 the fundamental provisions of Magna Charta rendered a 
 change in the administration necessary for a great part of 
 the Exchequer business. Free persons and free property 
 were at all times to be judged " according to the law of the 
 land, and the customary forms of procedure." A number of 
 Barons of the Exchequer accordingly associated themselves 
 into a judicial body for this department of business, which 
 may be compared with the judicial division in the German 
 " Kriegs und Domanen Kammer " in later centuries. To 
 make these judicial decisions independent of the influence 
 of the heads of the department, the judicial division after 
 Edward II. also received its own president or Chief Baron, 
 who was as a rule chosen from among those persons legally 
 qualified for the judicial office, and was often expressly 
 appointed for life. 
 
 Notwithstanding this, the position of the court continued 
 to be a somewhat subordinate one. Its members were usually 
 appointed from among the higher officials of the Exchequer 
 department, from whom it was difficult to eliminate the 
 financial spirit. Hence it is the more readily conceivable 
 that the retention of the old method of assigning ordinary 
 pleas to the Exchequer now led to loud complaints. In 5 
 Edward I. a royal writ was addressed to the barons, which in 
 general terms prohibits them from dealing with communia 
 placita, as being contrary to the letter of Magna Charta. 
 
 where. The necessity of a fixed and Edward II. a seventh was added to 
 
 determinate administration of justice their number. Under Henry VI. the 
 
 in ordinary civil disputes has been number once reached eight. The offl- 
 
 most keenly felt, especially under cial name of this court is " Commune 
 
 John's system of government, who Bancum," and in contradistinction, the 
 
 had, in the eleventh year of his reign, King's Bench is called "bancum regis," 
 
 sat in judgment at not less than or " bancum nostrum." The assurance 
 
 twenty-four places. This gave rise given in Magna Charta as to the fixed 
 
 to the clause of Magna Charta seat of this court of law was not 
 
 u Communia placita non sequantur followed out to the letter ; a removal 
 
 curiam Regis sed teneantur in aliquo still took place frequently, and notably 
 
 certo loco." Under Henry III. this from Westminster to York (Foss, ii. 
 
 assurance was acted upon in so far 135, 175, 177 seq. ; iii. 16 ; 343 seq. ; 
 
 that civil actions were for the most iv. 13). But in the second half of the 
 
 part dealt with in a special division period the sittings at Westminster 
 
 of the King's court, and indeed at must be regarded as established by 
 
 Westminster. But it was not till after law. The limitation of its competence 
 
 the accession of Edward I. that Gilbert to claims exceeding forty shillings was 
 
 de Preston was definitely designated rendered somewhat ineffectual by 
 
 as capitalis justiciarius of this division evasion by means of fictions (Black- 
 
 (Foss, iii. 20). The number of the stone, iii. 36). As to the limitation 
 
 assistant justices varied under Edward of the communia placita, cf. Foss, ii. 
 
 I. between four and six ; under Ed- 135. 
 ward II. was as a rule six; in 6-9
 
 The Courts of Common Law. 317 
 
 This was repeated in the statute of Eutland (10 Edw. I.), 
 with the remark, that in this manner the King's suits as well 
 as those of the people were unduly protracted. As, however 
 (probably in consequence of the interest in the court fees), 
 the rule was often evaded, it was again repeated in iheArticuli 
 super Chartas (28 Edw. I.), and then once more in 5 Edward 
 
 II. In later times the rule was again evaded by fictions. Yet 
 in substance a better state of civil and penal justice was 
 attained by the separation of the courts, which could be no 
 longer compared with the condition of things in the former 
 period. (3) 
 
 IV. Sfte continuous consolidation of tf)e staff and the course 
 of business of the benches of fubgc-S, is further shown in the 
 following alterations. The judicial benches gradually absorb 
 the separately appointed itinerant justices. Under 13 Edward 
 I. c. 30, the Justices of Assize and Nisi Prius were to be 
 appointed from the sworn justices of the King. According 
 to 27 Edward I. c. 3, 4; 12 Edward II. c. 3; and 14 
 Edward III. c. 16, every justice of the central courts and 
 every baron of the Exchequer may, if he is a professional 
 lawyer, sit as itinerant justice on any case, it being im- 
 material into which court the matter was introduced. Where- 
 as the itinerant justices were originally delegati principis, 
 
 (3) At this time the Treasurer and de Scaccario, 51 Henry III. (1266), 
 
 the Chancellor of the Exchequer are it had been already provided that the 
 
 regarded as leading officers of the treasurer and the barons should bind 
 
 Exchequer, side by side with whom, themselves by oath not to interfere 
 
 for cases which were to be decided upon in the affairs of private individuals 
 
 argument, a number of barons formed whilst they were engaged in transact- 
 
 a Court of Exchequer Chamber. The ing the King's business ; excepting 
 
 appointment of a Capitalis Baro by only complaints against officers of the 
 
 royal patent only dates from May 30th, Exchequer, who retain their exclusive 
 
 1317 (Foss, iii. 196, 198 ; Thomas, judicial privilege in the court itself 
 
 Exchequer, 107, 108). The number (Foss, ii. 196). But it was not until 
 
 of the assessor judges was four, five, Edward I.'s reign that it was acknow- 
 
 or six (Foss, iii. 196 ; iv. 233). These ledged, that the parties have a right 
 
 assessors were as a rule promoted to such non-interference according to 
 
 nnder-officials ; their pay remained the principles of Magna Charta (Foss, 
 
 during the whole period far below iii. 22). When in later times there 
 
 that of the justiciarii (Foss, iii. 44). arose out of the official position of 
 
 Only the office of Chief Baron was as the Lord Chancellor a new equity 
 
 a rule filled by eervientes ad legem, jurisdiction, which acted according to 
 
 wlience also, according to 4 Edward the principles of administrative justice 
 
 III. c. 16, the Chief Baron can be ap- without a jury, in addition to the 
 pointed a justice of assize, " if he judges, the chief of departments, i.e. 
 belong to the sworn Serjeants of the the treasurer, and the Chancellor of 
 King." It was not until the time of the Exchequer, participated in this 
 the Tudor dynasty that the barons new arrangement (Thomas, Materials, 
 were put on a perfect equality with ii.). The old Exchequer appears from 
 the justices both in qualification and that time to be dissolved into four 
 rank (Foss, v. 409 ; vi. 17). The more divisions ; which, however, are partly 
 conceivable is it, that the public, as formed of the same persons : (1) The 
 well as the lawyers, viewed with Court of Accounts, (2) The Court of 
 unwilling eyes civil actions brought Receipt, (3) The Court of Pleas, and (4) 
 into the Exchequer. By the Statutum The Court of Exchequer in Equity.
 
 318 Constitutional History of England. 
 
 they now gradually appear as delegati of the permanent 
 courts. The commissions which were formerly separate 
 were now assigned to them in union, and became more and 
 more systematic. Under Henry VI. the maxim was established 
 that every justice of assize represents the whole tribunal in 
 which the action has commenced. Thus the most dangerous 
 feature of the old judicial commissions disappears. About 
 the middle of Edward III.'s reign the special itinerant judges 
 disappear before the ordinary justices of the central courts. 
 In addition, it is true, special commissions ofoyer and terminer 
 were still addressed to the local judges as necessity required 
 in turbulent times. After the introduction of the office of 
 justice of the peace, however, the local criminal commissions 
 acquire a permanent judicial form, and thus the organization 
 of the judicial offices was completed, (a) 
 
 The higher judicial staff now forms a paid and learned 
 official class, as a rule distinguished by titles, as knights- 
 bannerets, knights, or knights of the Order of the Bath. A 
 motion made in Parliament that it should itself pay the justices 
 their salaries, was rejected, (fe) As personal servants of the 
 
 (a) The statute 13 Edward I. and 
 the following statutes aim at employ- 
 ing the whole staff of all the courts 
 in the civil assizes : 27 Edw. I. c. 3 
 and 4; 14 Edw. III. c. 16. But with 
 the circuits of the justices of assize a 
 general commission of oyer and terminer 
 became now more and more regularly 
 combined, addressed to the Lord Chan- 
 cellor, certain high officers of State, 
 barons, the justices of assize and their 
 representatives, for dealing with all 
 crimes and a large number of offences, 
 supposing that they have been com- 
 mitted and have been presented in the 
 county. But the right accorded by the 
 statute of Westminster 2 of appointing 
 special commissions for special cases 
 still remained reserved. By 2 Edward 
 III. c. 2, the assurance was given that 
 such commissions should be regularly 
 issued to justices of the realm, and 
 only in urgent exceptional cases to 
 other persons (Coke, Inst., ii. 419; 
 iv. 152). This was followed by a more 
 extensive commissio ad gaolas deliber- 
 andas, for clearing the county prisons, 
 in which the separate prisons were 
 named under the great seal. A further 
 forum deprehensionis was thereby 
 originated, the first-named commission 
 only embracing a forum delicti com- 
 missi. Hence, as early as the reign of 
 Edward III., the staff of the special 
 itinerant justices diminishes (Foss, iii. 
 
 359-360). They are last mentioned in 
 the years 1333 and 1349. Pecuniary 
 interests also tended towards the same 
 end ; as every justice of the realm in 
 his capacity of justice of assize obtained 
 the considerable addition of 20 to his 
 salary. The commissions of oyer and 
 terminer, which were still specially 
 appointed, were only to be appointed 
 in urgent cases, and then in an impartial 
 manner, not by the magnates, and not 
 by the parties, but by the authorities 
 themselves (2 Edw. II. c. 2 ; Coke, 
 lust., ii. 419; iv. 152). According to 
 20 Eichard II. c. 3, no man is to be 
 justice of assize or of gaol delivery in 
 his own county, and no "magnate of 
 the realm " is to sit with the judges 
 in the assizes. 
 
 (6) The personal position of the 
 justices of the realm shows us their 
 honourable standing, nearly on a par 
 with that of the highest officers of the 
 realm. Personal disrespect towards 
 them was punished with great rigour 
 (Foss, iii. 43). Their salaries remained 
 during this period comparatively uni- 
 form, 40 for the chief justices, forty 
 marks for the puisne judges and the 
 chief baron. The justices and the 
 chief baron always received an addi- 
 tional pay of 20 as being justices of 
 assize, and many judges besides re- 
 ceived additional emoluments. Under 
 Henry VI. 'the chief justice of the
 
 The Courts of Common Law. 
 
 319 
 
 King they are paid out of his personal income, and subjected 
 to his personal penal power. For example, Edward I. deposes 
 his chief justice, Hengham, and inflicts a fine of seven thousand 
 marks ; the other justices were fined from three to six thousand 
 marks for extortion, and probably, also for corruption. This 
 penal jurisdiction was not questioned in the century embracing 
 the reigns of Edw. I., II. and III., and was repeatedly put 
 in force. But still more stringent was the precedent made in 
 Richard the Second's reign, when the justices took part in 
 the feud of the great nobles, and returned a doubtful opinion 
 as to a royal ordinance. After the failure of an attempted 
 coup d'etat, all who had been implicated in delivering the 
 opinion were condemned to death by Parliament for high 
 treason, and the chief justice, Tresilian, was executed, whilst 
 the sentence of death passed on the rest was commuted into 
 one of banishment ; the legality of this proceeding was also 
 maintained at the accession of Henry IV. This important 
 event left behind it for later times the impression that the 
 independence of a State tribunal required the judicial office 
 to be strengthened by the power of the landed interest, which 
 support was in process of time found in the Upper House, (c) 
 
 King's Bench had 180 marks ; the chief 
 justice of the Common Pleas 140 marks 
 (Foss, iv. 227). The official costume 
 was the same for the whole staff of 
 judges. As to the vry solemn oath 
 taken by justices, cf. Foss, iii. 360. 
 The justices were selected from among 
 the number of the graduated advocates, 
 i.e. King's Serjeants. Even in the pre- 
 ceding period Foss reckons among 206 
 justiciarii about 125 men of the legal 
 profession. Under Henry III. out of 
 100 justiciarii he only finds eleven of 
 whom it may not be assumed-thai they 
 have practised in some way or other as 
 advocates. In this period it can in 
 almost every individual case be defi- 
 nitely shown that the justices have 
 been advanced to their position from 
 the legal profession. In conformity 
 with the old principles of a judicium 
 parium, the justices receive the honour 
 of knighthood, and usually even the 
 higher rank tanquam baneretti (Foss, 
 iii. 362, 364). 
 
 (c) The personal responsibility of the 
 judges was derived from their position 
 as delegates of the King invested with 
 hia personal judicial authority. Their 
 appointment is accordingly not merely 
 as a rule subject to revocation (durante 
 bene placito), but they are also subject 
 to the King's personal penal jurisdic- 
 tion, which was apparently preceded 
 
 by an inquiry by an assembly appointed 
 for the purpose (Foss, iii. 262). In a 
 very summary and hasty manner Ed- 
 ward III. proceeded to dismiss and 
 arrest several justices (Foss, iii. 341) 
 in the year 1340, and again five years 
 later for a more serious cause (Foss, 
 iii. 365). In later times disciplinary 
 punishments had almost disappeared 
 by reason of irregularity in the conduct 
 of the business of the courts. But a 
 more serious side to their responsibility 
 showed itself in 10 Richard II. Two 
 justices were at that time murdered in 
 a popular tumult, and a third was 
 executed for high treason. Robert 
 Tresilian had allowed himself to be 
 employed, agreeably to the personal 
 wishes of the King, to bring about 
 a counter-revolution. A defeated party 
 sought for this purpose to gain the 
 decision of the highest judicial authori- 
 ties, that an ordinance formerly issued 
 in conformity with the law was illegal, 
 and "the authors of it guilty of high 
 treason and punishable with death." 
 The Lord Chief Justice, who had 
 already shown himself servile to the 
 power of the day, collected his justices 
 in all secrecy and haste to deliver the 
 required opinion. The coup d'etat, 
 however, completely failed ; the Chief 
 Justice fled, was apprehended, con- 
 demned by Parliament to death for
 
 320 Constitutional History of England. 
 
 The ordinary course of the civil and criminal justice in 
 individual decisions had after this time attained that steadi- 
 ness and stability which was in keeping with the spirit of 
 Magna Charta. The law to be applied has now the distinct 
 character of "judge-made law." From the thirteenth century 
 dates the definite distinction between common law and statute- 
 law. The latter is the law proceeding from royal ordinances 
 and resolutions of Parliament ; the former is that created 
 by the blending of the Anglo-Saxon customary law with the 
 Norman feudal system, and the older maxims in the judicial 
 administration of the curia regis and the county courts. The 
 further development is now found in the central courts. " The 
 common law rests in the breast of the judges of the court 
 of common law ; " it is a judge-made law from the very begin- 
 ning of this period, and in so decided a form that the authority 
 of the law books very soon dwindles, while the collections 
 of precedents, or year books, become the living source of law. 
 To maintain the unity of this law, analogous principles are 
 formed to those of the German common law : no customary 
 right can maintain itself against the statute law ; the custom 
 must be legitime preescripta that is, must have existed 
 anterior to Eichard I. ; it must also be rationabilis that 
 is, practice excludes such customs as are in antagonism to 
 the leading principles of the law of the land. 
 
 A natural effect of the institution of judicial benches was 
 the development of a special legal profession. About the 
 time at which the central courts became permanently fixed at 
 Westminster, we find the first traces of inns of jurists, at 
 first comprising students, advocates, and under-officers pro- 
 miscuously, but still (like the courts of law themselves) on 
 a great scale, and with a strongly prominent esprit de corps. 
 In 20 Edward I. the first attorney's code was published ; 
 according to which the Chief Justice was to admit a certain 
 number (about 140) of efficient "Attornati et Apprentitii qui 
 curiam sequantur," and exclude all others. Under the name 
 of Inns of Chancery, there then became formed small law 
 schools for the preparatory study of the law ; somewhat later 
 
 high treason, and executed on Feb- change of dynasty under Henry IV., 
 ruary 19th, 1388. The other justices Edward IV., Richard III., and Henry 
 were also put on their trial by the VII., the former justices were con- 
 Lower House, in spite of their excuse firmed. Under Edward IV. only the 
 that compulsion had been used towards two Chief Justices were excepted, of 
 them, and were in like fashion con- whom one was already a fugitive 
 demned to death and to confiscation, (Foss, iv. 380). The dread felt by 
 but the sentence was commuted into the justices of a collision with Parlia- 
 banishment. See as to these events ment is notably shown in their refusal 
 Foss, iv. 3, 4, 102-108. The later to give any opinion as to the extent of 
 judicial staff remained so far outside the personal privileges of the High 
 the great party feuds, that even at the Court of Parliament in 32 Henry VI.
 
 The Courts of Common Law. 
 
 321 
 
 the practising advocates combine, and form the four Inns of 
 Court that still exist. In Fleta's work we meet with pro- 
 fessional degrees in servientes, narratores, attornati, apprentitii. 
 A statute (4 Henry IV. c. 18), orders an examination of all 
 attorneys by the judges, and a registration of their names 
 upon a roll. About the same time the higher class of advo- 
 cates begins to separate itself more decidedly from the lower 
 class of attorneys, and to form in the four inns of court a 
 sort of university. In conformity with the system of guilds 
 there arises the degree of mastership, of serviens ad legem, 
 serjeant-at-law, doctor juris; which is conferred by royal 
 writ, and forms an intermediate step to the class of official 
 judges. The Serjeants are appointed as substitutes for the 
 justices in the assizes, as such receive a salary, and are after- 
 wards advanced to the bench. Two Attornati Regis for guard- 
 . ing the royal privileges are met with as early as the reign of 
 Edward I. Towards the close of the period, after Edward IV., 
 the two Crown advocates were distinguished by the titles of 
 King's Attorney, and King's Solicitor. In 11 Edward IV. 
 there appears for the first time the solemn official title of an 
 " Attornatus Generalis in Anglia cwn potestate deputandi cleri- 
 cos ac ojficiarios sub se in qualicunque Curia de Recordo." (d) 
 
 thither "in order to keep them from 
 vice, and to educate them in music, 
 dancing, history, and other accomplish- 
 ments." A modern compilation of all 
 the historical records of the origin of 
 the advocates' inns is given by Foss 
 (ii. 200 ; iii. 46 seq. 370-390 ; iv. 195 
 sea., 251 seq.). It is, however, impos- 
 sible to form a clear picture from these 
 fragmentary notices. In 18 Edward I. 
 et. 4, there only appears the designa- 
 tion " countour." In 33 Edward I. 
 countours, attournees, apprentis; in 28 
 Edward I. c. 11, contours e sages gentz. 
 14 Edward III. c. 16 calls the class 
 of serjeants-at-law substitutes for the 
 justices of the realm for the assizes. 
 It was not until towards the close of 
 the period that Fortescue gives us 
 more connected information. At this 
 time ten smaller inns of Chancery had 
 been formed, side by side with which 
 stood the four great inns, Lincoln's 
 Inn, Inner Temple, Middle Temple, 
 and Gray's Inn, which provided the 
 higher education for the practice of the 
 law. No one was to be admitted to 
 the degree of serjeant-at-law " qui non 
 in prsedicto legis studio sexdecem annos 
 ad minus antea complevit " (Fortescue). 
 It was bound up with such expensive 
 ceremonies, and imposed so many re- 
 strictions t'loni considerations of honour 
 
 (d) The development of a special 
 legal profession is at once the cause 
 and effect of the refined form of actions 
 at law. It was impossible for the 
 parties to conduct such actions in per- 
 son. The clergy had formerly been 
 the counsellors both in the household 
 and the law-court ; " nullus clericus 
 nisi causidicus." For many reasons 
 the papal throne now wished for a less 
 frequent employment of the clergy. 
 Even Richard I. had been obliged to 
 dismiss his Archbishop of Canterbury 
 from the office of chief justice ; and in 
 the provincial councils it was deter- 
 mined " ne advocati sint clerici vel 
 sacerdotes in foro seculari." Glass 
 jealousy had a similar effect. The 
 noble Normans had in quite early times 
 enjoyed a certain education in the prac- 
 tice of the law ; laymen of lower rank 
 filled numerous situations as clerks, in 
 the Exchequer, with justices, sheriffs, 
 and bailiffs of every kind; and the 
 Norman administrative law shows us 
 that the laymen thus educated cer- 
 tainly had little more to learn of the 
 clerici. Now, about the time that the 
 central courts became established at 
 Westminster, inns for lay-jurists began 
 to be formed. Under Edward IV. a 
 student in the inn required 28 
 yearly ; the nobility sent their sons
 
 322 Constitutional History of England. 
 
 The procedure and the staff of the central courts still 
 remain formally connected with the chancellor. From his 
 office as ojficina justitias proceed the writs commencing actions, 
 and all commissions under the great seal. As clavis regni the 
 chancery of the realm is accordingly open at all times. The 
 number of regular writs of daily use (writs de cursu) had in- 
 creased to such an extent that in 12 Henry III. fifty-one 
 of them were sent to Ireland. Five mch formulas actionum 
 (de recto, mortdauncestor, novell disseisin, de nativis, de divisis 
 faciendis) could even under King John be issued by the chief 
 justice without reference to chancery. These writs are 
 accordingly no longer writs of grace, but formulae, actionum, 
 which are granted to litigants upon proper demand. Under 
 Edward I. the assisting counsellors of the chancellor were 
 also allowed to issue in plain cases new actiones utiles (writs 
 in consimili casu), but in more difficult cases only after obtain* 
 ing the consent of the members of Parliament learned in 
 the law. (e) 
 
 V. The jurisdictio ordinaria thus formed does not, however, 
 exclude a system which still continued in a restricted degree, 
 viz. tj) System Of special Courts, a continuation of the Norman 
 method of the administration of justice. These are the mili- 
 tary, the Court Marshal's, and the forest courts. 
 
 1. The military jurisdiction of the high constable and 
 marshal had proceeded from the regulations for the feudal 
 militia, and since the creation of hereditary feudal offices 
 had under that name attained a fixed form, though only 
 with a limited scope. Even in our day there exists in 
 
 upon the practice of an advocate, that practice as it existed under Edward I. 
 it was frequently refused (Coke, Inst., is afforded by the law work of Britton, 
 ii. 214 ; Foss, iv. 223), but was a requi- written in French, which has been re- 
 site qualification for all justices of the published in a critical edition (Nichols, 
 King's Bench and Common Pleas. The " Britton," London, 1865, 2 vols.). This 
 mention of an Attornatus Regis begins new edition regards Britton as a con- 
 with the commencement of Edward I.'s densed adaptation to later ideas of 
 reign ; in most years two Attornati Bracton, which must be placed after 
 Eegis were spoken of (Foss, iii. 44, 45), 1290, and is somewhat more recent than 
 both with a small salary of 10. Fleta's work. As to the other sources 
 (e) As to the commencement of an of law of this time, cf. Biener, Das 
 action by writs, cf. Palgrave, Privy Engl. Geschw. Gericht., ii. 286-298. 
 Council, pp. 16, 17. At the close of From Edward II. date the collections 
 the Middle Ages the number of the of the decisions of central courts, which, 
 admissible formulary writs de cursu under the name of Year Books, ex- 
 had already considerably increased, tend through two hundred consecutive 
 as is shown by the treatise de natura years, in presence of which the use of 
 brevium, dating from Edward IV. By the law books (notably those anterior 
 36 Edward III. c. 15 it was enacted to Britton) almost disappears. The 
 that proceedings by parol and de- criminal procedure is simple in com- 
 cisions of the courts should be in the parison with the civil. The whole of 
 English language ; whilst the regis- the working time of the justices of 
 trations and protocols of the courts the realm was at this period confined 
 should be couched in the Latin official to the hours of the morning from eight 
 language. A connected picture of the to eleven o'clock (Foss, iv. p. 226).
 
 The Courts of Common Law. 323 
 
 the archives a roll of placita exercitus regis dating from 24 
 Edward I., in which the high constable and marshal pre- 
 sides in the name of the King. An application to it of the 
 forms of the county jury could, of course, in war times be 
 never thought of. However, in 2 Eichard II. the Commons 
 endeavoured nevertheless to extend the provisions of Magna 
 Charta to 'this department also. They petitioned the King 
 that this court should not decide on cases of treason and 
 felony, " seeing that the said court decided according to the 
 law of arms, and not according to the common customs of 
 the country." In 13 Eichard II. c. 2, the assurance is given 
 that no dispute shall be dealt with therein, which can be dealt 
 with in an ordinary court according to the law of the land, 
 but only " contracts and other matters relating to records 
 of arms and war, within and without the realm," reserving 
 an appeal to the King. However, the right of the King 
 remained undisputed to order in time of war military courts 
 with summary procedure for all manner of offences to be 
 held by the high constable or marshal, or their deputies. 
 A curia militaris of this description is frequently mentioned 
 under Henry IV. ; it was continuously constituted upon French 
 soil, and even in the commission appointing the high constable 
 (Edw. IV.) the King commits to him : " plenam potestatem ad 
 cognoscendum et procedendum in omnibus causis de et super 
 crimine laesse majestatis, cseterisque causis quibuscunque, sum- 
 marie et de piano, sine strepitu et figura judicii." Apart from 
 an irregular use made of it in the violent times of the later 
 wars of the Eoses, the military jurisdiction in actual time of 
 war continued as a constitutional institution down to the 
 Petition of Eight under Charles I. (1) 
 
 (1) The military courts contain the time longer the knights' court exercised 
 
 elements of a chivalrous martial law. a real jurisdiction ; in it especially 
 
 The legal equality of the classes in duels had a place for affairs of honour 
 
 private law, however, and the divided which, " for want of witnesses, could 
 
 interests of the knighthood, did not not be decided otherwise," as in the 
 
 allow of any further expansion of a quarrel between Norfolk and Henry of 
 
 special martial jurisdiction. But in Lancaster under Richard II. Even in 
 
 consequence of the French wars and the middle of the fifteenth century two 
 
 their contact with the nobility of the cases occurred : in 1446, a duel be- 
 
 Continent, a collision of class feelings tween an armourer of London and his 
 
 with the common law had unmistakably journeyman, under the authority of the 
 
 come to pass. Nobles and knights de- High Constable and Earl Marshal ; in 
 
 manded the retention of the knights' 1453, a duel between John Lyalton and 
 
 court, at all events "in affairs of honour Robert Norres, on account of an ac- 
 
 and for the maintenance of the de- cusation of high treason. At the latter 
 
 grees of rank ; " especially for disputes the High Constable presided, before a 
 
 touching arms, precedence, and other vast concourse of people in Smithfield. 
 
 family distinctions ; whilst the common But as a jurisdictio extraordinaria the 
 
 law of the central and county courts court only enters in subsidium by writ, 
 
 did not take cognizance of these ob- and in this weakened form is called a 
 
 jects, and especially not of satisfaction " court of honour." When the French 
 
 for simple affronts. For a considerable wars had ceased, and the pretensions
 
 324 Constitutional History of England. 
 
 2. The maintenance of the King's peace in the royal resi- 
 dence and its precincts was reserved, as well as the jurisdiction 
 over the servants of his household. There existed for this 
 purpose a court held before the Steward of the Household, 
 and the Marshal as household officer, which within its sphere 
 of action excluded all other courts. The principle of the jury 
 was applied to it : in civil actions arising between courtiers 
 the jury is only constituted of courtiers ; in other cases a 
 common jury is empanelled (3 Edw. III. c. 2). An appeal 
 lies to the " King in his palace," which is delegated to the 
 King's Bench. (2) 
 
 8. Lastly, the special administration of justice in forest 
 cases was also reserved. The concessions made by the Charta 
 de Foresta merely extend to the less rigorous exercise of the 
 ancient rights of the King, without introducing the restrictions 
 of Magna Charta. There remained accordingly in this pro- 
 vince a purely administrative justice without a jury. Once 
 every forty days the lower foresters assemble and form a 
 forest court (court of attachment or woodmote) to lay inform- 
 ations as to offences against the forest and hunting laws, 
 which were noted by the verderer. Thrice a year the 
 verderers hold a forest court (court of swanimote) upon these 
 informations and for the decision of disputed rights of pasture. 
 The upper court of the forest for more serious cases is formed 
 by two itinerant justices, the one travelling the whole of the 
 north, and the other the whole country south of the Trent 
 (court of justice seat or court of the chief justice in eyre}. (3) 
 
 -of the nobles had wasted away in the reign a writ of error before the King 
 
 bloodshed of the wars of the Roses, "in his palace " was introduced 
 
 the court, as a magisterial department, (Thorns' " Book of the Court," pp. 
 
 became extinct; for the spirit of the 302, 303). 
 
 parliamentary and county constitution (3) For the administration of justice 
 was antagonistic to its continuance. in forest cases there existed until 
 After the period of the wars of the Richard I. a summus justiciarius om- 
 Roses such writs were no longer issued, nium forestarum, and then a commission 
 and the former court of law thus sinks of four justiciarii with under-officials. 
 down into a herald's office. Moreover, The Charta de Foresta provides for an 
 after Henry VIII., the hereditary office exceedingly numerous staff of forest 
 of high constable was not again filled officials. In every great forest there 
 (Coke, Jnst., iv. p. 124). are to be four verderers as supervising 
 (2) The Court of the Steward of the administrative officials and forest 
 Household was competent in disputes justices. Under them are twelve in- 
 between the servants of the royal house- specters of forests (regarders) for sur- 
 hold and in' trespasses within the pre- veys, investigation of -contraventions 
 cincts of the palace, even when only of the forest laws, clearances, etc. 
 one of the parties is & royal servant ; Under them the foresters with the 
 and in cases of debt and contract duty of preserving both, wood and 
 where both parties belonged to the game, giving information against and 
 royal household. The precincts of the prosecuting transgressors. Besides 
 palace extended to a twelve-mile radius these there are rangers (gamekeepers), 
 from the royal residence. This juris- agistors (inspectors of pastures), wood- 
 diction was never subordinated to the wards (keepers of woods), stewards and 
 King's Bench until in Edward III.'s beadles as court attendants and exe-
 
 Permanent or Continual Council Court of Chancery. 325 
 
 Besides these older special courts a new administration of 
 justice proceeded from the newer administrative system of 
 the permanent council : the equity jurisdiction of the Lord 
 Chancellor, the Courts of Admiralty, and the penal jurisdiction 
 of the Star Chamber, to which I shall refer in the next 
 chapter. 
 
 CHAPTER XXIII. 
 permanent or Continual (Council f)e Court of Cfjancerg,. 
 
 THE corporate constitution of the central tribunals appears 
 as the stronghold of the modern judicial system, that pillar 
 of the rising constitution, which as it gradually rose was 
 strengthened by the consolidation of the county and muni- 
 cipal unions into fixed corporations. Beyond doubt there 
 existed an intimate connection between both these formations 
 and the fundamental laws of Magna Charta. The one is 
 called forth and rendered effectual by the other ; the one is 
 a natural deduction from the other. These permanent 
 elements of the political system, however, form only a firm 
 encircling bond, within which the grea-t sphere of the ordinary 
 business of the State is reserved for the decision of the 
 King. There is now formed from among the counsellors for 
 this round of business a Continual or -permanent Council, 
 which first took the form of a governing body, when under 
 Henry III. a regency became necessary for the first time. 
 After Henry III. had substituted for it a personal government 
 with foreign favourites and subordinate clerks, the barons 
 and the prelates demanded in opposition thereto that the 
 great offices of State should be filled by "suitable" persons, 
 and after a bitter struggle took the matters into their own 
 
 cutive officials. As head of the depart- obtained under Henry III. through the 
 
 merit there is a Chief Warden of the Assize of Woodstock, 118-1 (limitation 
 
 Forests. This administrative sphere of capital punishment to the third 
 
 was regarded in the Middle Ages as offence, etc.). The popular complaints 
 
 freed from the restrictions of the com- as to arbitrary afforestations continued 
 
 mon law, and was entirely left to the for a long time, though the antagonism 
 
 royal ordinance. In the Charta de of the magnates was in later times 
 
 Foresta of Henry III. the heavy burden somewhat lessened by the fact that 
 
 of the general suit of court at the they were allowed to participate to 
 
 sittings of the courts of the forest was a limited extent in the privileges of 
 
 abated. Some mitigation of the bloody the forest right, 
 punishments that were threatened was
 
 326 Constitutional History of England. 
 
 hands. But though at that time the issue was in a violent 
 party government, Edward I. from the standpoint of the 
 monarchy recognized the demand as righteous, and carried it 
 into effect. It is as a spontaneous creation of the monarchy 
 that we now find, in addition to the Exchequer and the 
 central courts of law, a continual or permanent council for 
 the efficient despatch of State business, which discharged in 
 joint deliberation the highest affairs of the State, and thus 
 became the centre of the parliamentary system that was 
 now beginning.* 
 
 I. QLty functions of t|)e permanent Council may be com- 
 pared with those of the cabinet council of our day. But 
 we must not leave out of sight the comparative simplicity 
 of the times, the separation of Church and State, and the 
 hitherto personal character of the rule of the Norman kings. 
 The following heads may be in some measure distinguished 
 from one another : 
 
 1. Advising the King upon the issue of ordinances in 
 the general province of Government. 
 
 2. Eesolutions as to war and peace, treaties with foreign 
 powers, summons of the feudal and county militia, measures 
 for the organizations of paid armies, and for their general 
 direction. 
 
 3. Resolutions touching measures in case of national dis- 
 tress and tumult ; appointment of extraordinary commissions, 
 and instructions for such cases. 
 
 4. Advising the King where the jurisdictio extraordinaria 
 was to be exercised, which was reserved to the King for the 
 most important cases. 
 
 5. Eesolutions upon petitions of private persons, corpora- 
 tions, and counties, touching complaints of financial oppres- 
 sion, abuse of offices of trust, deficient legal protection, and 
 applications for and grants of pardon. These form the 
 ordinary current business of the council. In consequence of 
 
 * The formation of the permanent the conclusions drawn. Hallam has 
 council has received a new elucidation turned these modern sources to account 
 by the reprint of the protocols of the (against Palgrave, trade " Middle Ages," 
 council in the work " Proceedings and c. viii. 3 note). Among the older 
 Ordinances of the Privy Council of literature, the work of M. Hale, "Juris- 
 England, from 10 Richard II. to 33 diction of the Lords' House of Par- 
 Henry VIII.," by Sir H. Nicolas (7 liament" (1796, 4to), is still valuable, 
 vols. 8vo, 1834-1837) ; upon this was The recent treatise of Dicey, " Privy 
 founded the monograph of Sir Francis Council " (Oxford Essays), is now out 
 Palgrave, " An Essay upon the Au- of print. The novelty of the forma- 
 thority of the King's Council " (1 vol. tion of the Council can be perceived 
 8vo, 1834), which for the first time in Edward I.'s reign in the still un- 
 attempted to give a consecutive picture settled designation, " Continual Con- 
 of this political body and its relation teil" (Nicolas, i. 3), "Secretum Con- 
 to the Parliaments of the Middle cilium" (Heming, b. ii.), "Familiars 
 Ages, but sometimes went too far in Concilium " (M. Paris).
 
 Permanent or Continual Council Court of Chancery. 327 
 
 the malpractices of the Vicecomites and local bailiffs, of the 
 necessity which had arisen for the remodelling of many in- 
 stitutions that had suffered under the throes of former con- 
 stitutional struggles and under the haughtiness of quarrelsome 
 magnates, such was necessarily its ordinary sphere of activity ; 
 especially now that the Commoners in the national assemblies 
 were soon to become the mouthpiece for national grievances. 
 Throughout the whole of the Middle Ages, the Parliaments 
 are regarded as assemblies " for the redress of wrongs and 
 remedy of abuses." With each Parliament petitions flowed 
 in, claiming every sort of relief, not merely in public matters, 
 but frequently also in petty private affairs, from all classes of 
 persons, and on all kinds of subjects. The " poverty of the 
 petitioner," the power and the number of his opponents, and 
 the inadequacy of the common law,, form the ordinary motives 
 for appeal to the council. Herein can be perceived the 
 fundamental idea that " the King in council is there as the 
 final resource for every grievance, which the ordinary tribunals 
 are powerless to redress." (1) 
 
 For the discharge of this mass of business it was enacted 
 (5 Edw. I.) that all petitions should in the first instance 
 be examined into by the judicial officers to whose department 
 they belonged ; and that only matters of importance should 
 be laid before the King and his council. In 21 Edward L 
 the King appoints "receivers of petitions," whieh were ordered 
 to be assorted into five classes ; (1) for the Chancellor, (2) for 
 the Exchequer, (3) for the Judges, (4) for the King and 
 Council, (5) such as have already been disposed of. In this 
 manner they were to be "reported" to the King. The 
 appointment of receivers for this purpose soon became an 
 established institution, which is described in Fleta's law 
 
 (1) The sphere of action of the Crown vassals. As a matter of fact 
 council may be best compared to a the clause of Magna Charta touching 
 modern cabinet council, in which the the amerciaments of the Crown vassals 
 whole of the business of the central per pares suos was regarded as corn- 
 government ia comprised, so far as it plied with, when the council fixed the 
 has not been assigned to the courts fine. Towards the Exchequer, too, 
 for decision according to constitutional the competence of the council was 
 principles, or to the Church to deal with not legally defined : at times imporf ant 
 according to its independent rule. financial business was reserved to it. 
 See the description which Sir H. Under the regency of Henry VI., 
 Nicolas, vol. i. p. 1, gives of it. Its feudal wardships,consents to marriages, 
 sphere of action is the same as that leases, etc., were reserved by the council 
 which the Norman kings informally to the Lords, including questions con- 
 filled by confidential persons and cerning lunatics, who were occasionally 
 counsellors, whom they frequently brought before the council that inquiry 
 changed. The progress of the age might be made as to their state of 
 is seen in the corporate nature of this mind. In other cases it was merely 
 national body. Palgrave (" Privy accidental that sittings of the council 
 Council," p. 34) rightly assumes tliat were held under the roof of the Ex- 
 the council was looked upon as a chequer, 
 properly constituted " court " for the
 
 328 Constitutional History of England. 
 
 book as a " Curia coram auditoribus specialiter a later e Regis 
 destinatis," "they who have not to decide, but only to make 
 a report of what they have heard, in order that the King 
 may determine what shall be done touching the parties." 
 Under Eichard II., when the council had already entered into 
 more intimate relations with the magnum consilium of the 
 peers, the petitions are divided into three classes ; (1) bills 
 of grace and offices, which must be answered by the sovereign 
 in person ; (2) bills of council, which the council may dispose 
 of ; (3) bills of Parliament, which may not be answered with- 
 out consent of the Parliament. 
 
 The resolution on the report of the receiver could be made 
 in one of three ways : 
 
 (i.) Immediate decision, generally written on the upper 
 margin of the petition by a member of the council : under 
 Henry V. and VI. generally by the chamberlain. 
 
 (ii.) Appointment of a special commissioner to redress any 
 extraordinary injury to the petitioner requiring a speedy 
 remedy. This is a delegatus a latere to whom a commission 
 of oyer and terminer was issued in the Chancery upon writ, 
 or by a mere writing. 
 
 (iii.) Eeference of the matter to the Exchequer, or other 
 court, especially to the Chancery. From Edward I.'s time 
 the answer " sequatur in cancellariam" was a frequent one, 
 and given generally under the privy seal. 
 
 The rules of procedure of the council were themselves a 
 subject of the royal right of ordinance, but under the house 
 of Lancaster, for the sake of greater solemnity, were frequently 
 issued from Parliament. For example, the regulations of 
 the council of 1406 were issued in Parliament, and registered 
 as an Act. Those of 1424 were annexed to the Act of Appoint- 
 ment. Those of 1430 were drawn up in the council, assented 
 to by the lords, read in the presence of the three estates, 
 and then signed by the council (Stubbs, iii. 251). (l a ) 
 
 (l a ) As to the oldest methods of older personal administration of justice, 
 
 procedure, especially the arrangement and led to collisions with the ordinary 
 
 of petitions into groups, cf. Palgrave, jurisdiction of the central courts, 
 
 pp. 23, 79. As to the form of the reso- against which the Parliaments began 
 
 lutions. we find that quite early to remonstrate. The stat. 
 
 (i.) The immediate personal deci- Westminster 2 (13 Edw. I.) already 
 
 sion was comparatively rare, and even gives the assurance, that no writ of 
 
 in the case of these marginal rescripts trespass ad audiendum et terminandum 
 
 it is frequently mentioned that they should be issued in any other manner 
 
 were issued " on report being made in than before the justices of one or the 
 
 the council." Henry V. often signed other bench, or before the other justices, 
 
 his decrees with his own hand ; nume- except it be a heinous trespass which 
 
 rous royal orders occur also without demanded speedy redress. All such 
 
 signature (Nicolas, vol. vi. p. 214). assurances (vide note 3 a ) were, how- 
 
 (ii.) The appointment of a special ever, so equivocally and uncertainly 
 
 commissioner by a commission of oyer framed, that they yet left room for the 
 
 and terminer was a continuation of the gouvernement personel.
 
 Permanent or Continual Council Court of Chancery. 329 
 
 II. !)e personal constitution of tfa council corresponds to 
 this sphere of business. It consists of the persons whose 
 assistance the King requires for determining matters of the 
 highest instance ; to use a modern expression, the heads of 
 the departments of State, with a number of persons, whom 
 he has thought fit to summon to a continual deliberation on 
 such matters. Foremost among the officials is : 
 
 (a) The Lord Chancellor, and in addition to him the chief 
 clerk of his office, the Master of the Bolls, as well as some 
 higher clerks (reporting counsel), being the persons who at this 
 period represent the most varied legal and official knowledge. 
 
 (6) The principal members of the central courts, i.e. the chief 
 justices and the other justices. 
 
 (c) The directing members of the Exchequer, the Treasurer 
 and Chancellor of the Exchequer* 
 
 (d) The principal officers of the royal household, before 
 all the King's Chamberlain, who continued for centuries a chief 
 member of the council. Next to him the steward of the house- 
 hold, and after the administration of the royal court had 
 become further subdivided, the treasurer of the household, the 
 controller, and the maitre de garderobe. 
 
 (iii.) The reference of the matter to 
 the Chancery (cf. Hardy, " Introduc- 
 tion to Close Rolls," p. 28) led to the 
 Lord Chancellor's office becoming a 
 separate court of law. 
 
 The later rules of procedure under 
 Henry VI. are known in detail and 
 instructive. The rules for the admi- 
 nistration of the council (2 Hen. VI.) 
 contain among others the following : 
 The council shall not interfere in 
 matters which are to be decided ac- 
 cording to common law, except where 
 one party is too powerful to enter the 
 lists with the other, or for other urgent 
 reasons ; The clerk of the council shall 
 select the bill of the poorest plaintiff, 
 which shall be first read and answered ; 
 One of the King's Serjeants shall be 
 sworn, to lend his best assistance to 
 the plaintiff, without fee, under pain 
 of dismissal (Nicolas, vol. iii. pp. 149- 
 152). A similar spirit is recognizable 
 in the regulations of 8 Henry VI, ; the 
 council was to interfere " if their lord- 
 ships found too much power on one 
 side and too little on the other." The 
 council had to hear, to deal with, to 
 communicate, to appoint with reference 
 to, and to decide upon, matters laid 
 before it. Charters of pardon, grants 
 of parsonages and offices, and other 
 matters of grace and favour, belong to 
 the King personally. On topics of 
 
 great moment and importance, it shall 
 deliberate, but not pass final judgment 
 without the King's advice. Where 
 the number of votes in the council is 
 equal, the matter must be laid before 
 the King, and the decision left to 
 him alone (Nicolas, vol. v. p. 23). In 
 8 Henry VI. c. 1, there follow certain 
 orders for regulating the use of the 
 signet, privy, and great seal, saving 
 the prerogative (Nicolas, vol. vi. p. 
 185). In the Cottonian manuscripts, 
 there are original decrees of the 
 council (probably dating from 22 
 Henry VI.), which provide (inter alia) 
 that " considering all such matters as 
 pass through many hands are less 
 likely to be decided to the prejudice 
 of the King or of any other person, it 
 has been found well that all bills to 
 which the King assents shall be de- 
 livered to his secretary, in order that 
 he may draw up letters under the 
 royal signet to the Keeper of the 
 Privy Seal, and thence from the Keeper 
 of the Privy Seal to the Chancellor." 
 Where petitions concern matters of 
 justice, the King's decree is taken in 
 order to send them to the council, 
 which then assigns them to the proper 
 court, except when the petitioners 
 are unable to prosecute according to 
 common law (Nicolas, vol. vi. p. 29).
 
 330 Constitutional History of England. 
 
 (e) The Keeper of the Privy Seal. Now that the Chancellor 
 had become a chief officer of the realm, the King was again 
 in need of a cleric in the confidential position of a personal 
 cabinet secretary. Under Edward III. such a one appears 
 as a minister of State, with a formal oath of office (14 Edw. 
 III. c. 5), under the name of Keeper of the Privy Seal ; later 
 known as Lord Privy Seal. 
 
 (/) The Archbishop of Canterbury as Primate appeared, 
 conformably to the position of the Church, to be so essential 
 a member, that in 10 Eichard II. he submits a solemn 
 protest, wherein he claims for himself and his successors in 
 office the right of assisting at all the sittings of the royal 
 council, be they general,, special, or secret (Rot. Parl., iii. 223). 
 
 These are plainly the chief elements of the council. But 
 yet a clear distinction between them was wanting in the time 
 of Edward I.,. II., and HI. As occasion required, lower 
 officials were also summoned to attend the council, to give 
 opinions and information, and to receive orders ; such as 
 King's Serjeants, Chancery clerks, escheators, itinerant 
 justices, and others. A definition of the ordinary members 
 began to be made when the rival power of the parliaments 
 first took cognisance of the constitution of the council. When 
 differences of this sort first arose, the following were designated 
 as members virtute officii :: the Chancellor^ the Treasurer, 
 Privy Seal, Chamberlain, and Steward (Rot. Parl., iii. 73). 
 These five were regarded as the chief members and managers 
 of the current business. Moreover,, during the whole of the 
 Middle Ages there was no president of the council other than 
 the King himself, to whom it is naturally open to honour a 
 member with the temporary conduct of the business. For 
 instance, in the latter part of Edward the Third's reign, the 
 Bishop of Winchester was mentioned as "Capitalis Secreti 
 Consilii ac Gubernator Magni Consilii." In cases of personal 
 impediment, the regent of the realm was for this reason the 
 natural president of the council, as in 1 Henry VI., the Duke 
 of Bedford, and later the Duke of York. 
 
 The somewhat fluctuating form of the council became 
 modified from the time when, under Richard II. and under 
 the house of Lancaster, the estates of the realm began to take 
 a more decided share in the Government. In these later 
 times there appear seldom fewer than ten and generally a 
 greater number of spiritual and temporal lords as members of 
 the council ; with them sit the highest officers of State, now as 
 ordinary members, and no longer mingled with the under- 
 officials who were occasionally summoned. The growing power 
 of Parliament particularly aimed at subjecting the Lord Chan- 
 cellor and Keeper of the Privy Seal, as the two bearers of
 
 Permanent or Continual Council Court of Chancery. 331 
 
 the decisive national seal, to a definite responsibility. In 
 all material points this was attained under the house of 
 Lancaster. In the eighth year of Henry IV. the King in 
 Parliament agrees that, for the maintenance of the laws of 
 the land, the Chancellor and the Keeper of the Privy Seal 
 shall not allow any warrant, grant by patent, judgment, or 
 other matter, to pass under the seal in their possession which 
 should not so pass according to law and right, and tk&t they 
 shall not unduly delay those that must pass. Attempts to 
 prosecute the Keeper of the Privy Seal were made as early as 
 Eichard II. Under Eichard II. and Henry IV. the members 
 were appointed annually, but their appointments regularly 
 renewed, unless accusations of bad behaviour or petitions to 
 be discharged from serving intervened. Their annual pay was 
 graduated according to. their rank, as were also the fines for 
 neglecting to appear at the sittings. In a process of political 
 crystallization, the purely personal conseil du Eoi of the Nor- 
 man kings had now become a department of State. (2) But 
 as the body was too large and too heterogeneous in its consti- 
 tution or varied business, delegations and commissions were 
 issued, some of which form the nucleus of independent 
 departments. 
 
 III. i) commissions an& Uclegations of tfie council were 
 chiefly necessitated by the fact that more specially legal and 
 technical questions came before the council, in the case of 
 
 (2) The personal constitution of the Rolls of Henry IV.) ; as Lord Privy 
 
 council has been ascertained by Nico- Seal (34 Henry VIII.)- This, however, 
 
 las from the protocols of the great did not exclude laymen and ecclesiastics 
 
 council with more exactness than in from being also employed as secretaries 
 
 former times. The Lord Chancellor is of the King, and on confidential special 
 
 everywhere conspicuous as the principal commissions, in which sense " King's 
 
 personage for the formal procedure, clerks " occasionally occur under John 
 
 though he is not president of the coun- and Henry III. As to the older con- 
 
 cil, and by no means always the most stitution of the council, cf. Palgrave, 
 
 influential person in it. The impor- p. 20, seq. ; Nicolas, vol. i. p. 3. The 
 
 tance of the office of the King's Cham- statements of the latter relating to the 
 
 berlain is new : he is indebted to the period of Henry VI. have been made 
 
 influence of the magnates in the council very carefully. The royal council con- 
 
 of the realm for his improved position. sisted iu 2 Henry VI. of twenty-three 
 
 In 15 Edward III. he expressly swore persons : the Duke of Gloucester, the 
 
 to obey the laws of the realm and the Archbishop of Canterbury, four bishops, 
 
 Great Charter. In 1 Richard II. he the Chancellor, the Treasurer, the 
 
 became a member of the regency. His Keeper of the Privy Seal, the Duke of 
 
 functions are to endorse petitions, to Exeter, five earls, four sires, and two 
 
 formulate royal immediate decrees, and messieurs, Thomas Chaucer and William 
 
 communicate with Parliament. In 11 Alyngton (Nicolas, vol. iii.p. 148). The 
 
 Richard II. and frequently later he was salaries, fixed according to rank and 
 
 impeached by the estates. The posi- length of service were : for the Arch- 
 
 tion of the Keeper of the Privy Seal, bishop of Canterbury and the Bishop of 
 
 as he was first called in 13 Edward III. Winchester at 300 murks ; for a bishop, 
 
 c. 5, is also new ; later he appears as earl, and the lord treasurer 200 marks ; 
 
 Clerk of the Privy Seal (2 Richard II.) ; for a baron and banneret 100 ; for an 
 
 as Guardian dc Privy Seal (Parliament estquire 40 (Nicolas, vol. iii. 155).
 
 332 Constitutional History of England. 
 
 which it seemed proper to form a narrower committee for their 
 treatment and decision, or rather for passing an opinion 
 which was to influence the ultimate decision of the King. 
 The personage most suited, by reason of his position and his 
 under-officials, for the discharge of these more intimate func- 
 tions was the Chancellor. Hence the sub-commission was 
 most frequently composed of the Chancellor and the justiciaries 
 of the two central courts, and hence are issued " deer eta per 
 cnriam cancellarise et omnes justiciaries," or " deer eta cancellarii 
 ex assensu omnium justiciariorum et aliorum de Regis consilio." 
 In the first century of this period even formal proceedings are 
 somewhat frequently taken before the Chancellor and the 
 judges in Westminster Hall. Commissions of this description 
 take the place of the extraordinary judicial commissions of 
 prelates and barons which, in the former period, the Norman 
 kings were wont to appoint for the Crown cases reserved. 
 
 As a permanent institution there next arose a kind of com- 
 mittee for appeals from the Exchequer. As this did not 
 remain subordinate to, but was co-ordinate with the central 
 courts, an appeal could only lie to the King ; that is, to the 
 "King in council." It was a matter of delicate questions of 
 financial law, which were well suited for a special council of 
 men well versed in matters of business. Hence a commission 
 was at first formed of the Chancellor, Treasurer, and two 
 justices ; but it was subsequently laid down in 31 Edward III. 
 stat. 1, c. 12, that the Chancellor and Treasurer should 
 meet together and have the documents laid before them, 
 summon the justices and other experts according to their 
 best judgment, demand reports of the barons of the Exchequer, 
 alter the Exchequer decree according to their opinion, and 
 remit it to the Exchequer for further consideration. 
 
 Still more important was the creation of a separate Court 
 of Equity, which proceeded from this system of delegations. 
 Certain petitions and questions touching property were, from 
 their peculiar nature, not so well adapted for hearing before 
 the justices of the realm as before the Chancellor, who might 
 still be looked upon as the prime authority and chief repre- 
 sentative of a more universal juristic education. In course 
 of time deficiencies and hardships were conspicuous in civil 
 justice, which could not be redressed in the ordinary course 
 of justice, either because they were ill-suited for a jury, or 
 because they could not be decided according to the funda- 
 mental principles of the common law (such as fraud, accident, 
 trust, that is, actio and exceptio doli). Hence there sprung 
 up a " remedial jurisdiction," supplendi et corrigendi juris 
 civilis causa, analogous to the praetorian jurisdiction, in which 
 the Chancellor proceeding according to sequitas (that is,
 
 Permanent or Continual Council Court of Chancery. 333 
 
 principally according to the principles of the Roman and canon 
 law), directs his reporting secretaries or Masters, and then 
 decides per decretum. The most frequent cases of this equitable 
 jurisdiction from Richard II. to 37 Henry VI., were cases of 
 conveyances to uses inter vivos; but even in those early times 
 the sphere of action was probably a wider one, and from the 
 very nature of the jurisdiction, the office of Chancellor con- 
 tinued until the lose of the Middle Ages to be filled by 
 ecclesiastics. (3) 
 
 It is quite conceivable that these functions occasioned con- 
 flicts with the Parliaments, which are chiefly aimed at the 
 civil jurisdiction of the Chancellor, but partly also at the penal 
 jurisdiction exercised by the King in council, the abolition 
 
 (3) The delegations of the council 
 and the equitable jurisdiction of the 
 Lord Chancellor have one and the same 
 origin. The establishment of sub-com- 
 missions of the Council was primarily 
 an administrative measure, and not a 
 constitutional institution. It was only 
 after the lapse of time that such 
 creations, owing to continually arising 
 needs of the same kind, adopted the 
 character of magisterial departments. 
 It is only juristical pedantry which 
 would at once make of these ex tempore 
 commissions formal departments of 
 State. Upon the authority of Hale a 
 so-called "concilium ordinarium" or 
 " concilium legale," was said to have 
 existed, being composed of the Privy 
 Council, certain great officers, judges, 
 and others. But neither the expression 
 " concilium ordinarium" nor "legale" 
 occurs in the official records; nor do 
 we find any regulation as to its mem- 
 bers or procedure. We can, accord- 
 ingly, no more make a magisterial 
 department of this institution than of 
 the shifting judicial commissions of the 
 Norman period. Under Edward III., 
 for example, proceedings were fre- 
 quently assigned to the "Chancellor, 
 Treasurer, and others of the King's 
 council" (Reeves, iii. 386). In 44 
 Edward III. a difficult case was heard 
 before " the Chancellor and all the 
 justices of the King's Bench and Com- 
 mon Pleas " (Foss, iii. 337). Even in 
 earlier times, under Edward II., West- 
 minster Hall was named as the place 
 at which the Chancellor holds his 
 sittings ; this place was called " Mag- 
 num Bancum" (Foss, iii. 177), and the 
 sittings were described as being "tw 
 plena cancellaria " (Rot., cl. 25, Edward 
 III.). The Admiralty Court was an 
 instance of such delegations of the 
 
 council, which was an outcome of a 
 special commission of the King, with 
 a jurisdiction in the ports, and over 
 offences committed on the high seas ; 
 perhaps existing as early as Edward I., 
 with powers more limited in later 
 times on motions of the estates under 
 Richard II. Another delegation is 
 formed by the Court of Requests under 
 the Lord Privy Seal (Spence, "Equit- 
 able Jurisdiction," i. 351). The prac- 
 tical need for a remedy for the clumsi- 
 ness of the common law, led to the later 
 jurisdiction over "equitable obliga- 
 tions," the fulfilment of which was left 
 by the common law to the conscience, 
 whilst the common wants of life and 
 the existing views of law necessitated a 
 magisterial compulsion for their fulfil- 
 ment (Reeves, iii. 188). From the time 
 of 2 Edward III. the assignment of the 
 matter with this view under the formula 
 "sequatur in cancellariam" becomes 
 more and more frequent, and soon also 
 with the further addition "'fiat ulterius 
 justicia in cancellaria ; non potestjuvari 
 per communem legem, veniat in cancel- 
 laria et ostendatjus suum; fiat ei justi- 
 cia secundum legem cancellarias " (Foss, 
 iii. 178 ; Hardy, " Introduction to Close 
 Rolls," p. 126). From the time of 
 Richard II., or at all events under the 
 house of Lancaster, the jurisdiction over 
 Uses stands prominently forth as the 
 principal object (Reeves, iii. 381 ). But 
 beyond doubt the special jurisdiction of 
 the Chancellor was also a delegation of 
 the King's council (Palgrave, Privy 
 Council, 25 ; Spence, " Equitable Juris- 
 diction," i. 709-71(5 ; Hallam, "Middle 
 Ages," note x.). England had thus 
 attained to the necessary completion 
 of its system of private law, which 
 was accomplished in Germany by the 
 reception of foreign law.
 
 334 Constitutional History of England. 
 
 and clear definition of which were equally impracticable. In 
 25 Edward III. the Commons protest against any one being 
 brought before the council on account of his freehold, or on 
 account of such suits as affect life and limb, and against 
 any one being fined by informations laid before the council 
 or one of the ministers, unless such legal procedure shall have 
 been " formerly customary." In the answer to this the 
 extraordinary criminal procedure was expressly reserved ; 
 " mes de chose que touche vie on membre, contempt ou excesses," 
 it shall remain as formerly customary (Palgrave, Council, 35). 
 It was apparently agreed that the assignment of ordinary 
 actions to the courts was to be understood " salvo jure regis," 
 that is, with reservation of extraordinary causes majores to 
 the King ; but the Parliaments wished to co-operate in this. 
 In 27 Edward III. the Commons themselves expressly consent 
 to an extraordinary criminal procedure against clerics who 
 appeal to the papal chair ; in the statute even imprisonment 
 for an indefinite time, " during the King's pleasure," is 
 threatened, as well as forfeiture of lands and personal property, 
 of those who should refuse to answer for such a contempt 
 before the King, or his council, or his chancery, or before his 
 justices (Palgrave, 39). In 42 Edward III. c. 3, upon a com- 
 plaint raised by the Commons, it was indeed promised in 
 general that none should be required to answer before the 
 courts except by regular judicial procedure. But the extra- 
 ordinary power of the council remained unaffected by this, and 
 in turbulent times, such as followed under Kichard II., it was 
 exercised with a wide scope by the council and the chancery, 
 for the maintenance of peace. But in civil procedure the 
 Chancellor's writ of subpoana gave rise to a new petition (13 
 Eichard II.) "that neither the Chancellor nor the council 
 after the close of Parliament should issue any ordinance 
 against the common law, and the old customs of the country, 
 and against the statutes that had been passed or that were 
 to be passed in that Parliament, but that the common law 
 should take its course without respect of persons, and that 
 no judgment once delivered should be annulled but by due 
 course of law " (Palgrave, 45). The answer ran with the 
 usual ambiguity, to the effect that the former customary 
 procedure should remain in force, " so that the King's royal 
 right be assured," and if any one felt aggrieved " qu'il 
 monstre en especial, et droit lui soit fait" (Palgrave, 70). 
 Protest was not raised against the extraordinary judicial power 
 of the King in general, but only against such proceedings 
 on the part of the council, without sanction of Parliament. 
 In the stat. 17 Eichard II., protest was only made against 
 citations before the King's council and the chancery based
 
 Permanent or Continual Council Court of Chancery. 335 
 
 upon false information (Reeves, iii. 194). In 1 Henry VI. 
 the Commons complain of the citations before the council 
 and the chancery, in matters " in which a legal remedy is 
 afforded by the common law ; " in like manner a writ of 
 subpoena was not to be issued until the justices of one or the 
 other bench had first tried and attested the fact, that the 
 plaintiff had in this case no remedy at common law (Pal- 
 grave, 50, 51). In 8 Henry VI. jurisdiction was reserved to 
 the council in quite indefinite terms " so often as their lord- 
 ships should find too great power on the one side, and on 
 the other too great weakness," or if they should otherwise 
 find " some reasonable cause " (Palgrave, 81). Finally, in 
 the stat. 31 Henry VI. c. 2, the offences were specially men- 
 tioned by name for which the council was w r ont to summon 
 offenders before it, and the procedure defined that was 
 therein observed, especially the more rigorous courses, by 
 which disobedience to ordinances under the privy seal or 
 under a writ of subpoena were to be prosecuted as oontemptus 
 regis (Palgrave, 84, 86). This extraordinary penal jurisdiction 
 was in later times exercised in the Court of the Star Chamber, 
 and was, therefore, frequently designated by this name. (3 a ) 
 
 IV. The position of the ICLorU <j)ancdlor as fjtali of tije 
 Cftanctrg tJepartmtnt forms in a certain sense the keystone of 
 the constitution of the council. As the great office of the 
 Chancellor had remained the common bond of the central 
 courts, it also serves as elavis regni for other business of the 
 King's council. All solemn decrees of the King in council 
 here received their authoritative character. The Protonotarius 
 of the Chancellor managed the preparation, despatch, and 
 registration of the State treaties in the treaty rolls. The rest 
 of the State business was recorded in the charter, patent, 
 close, and fine rolls. The most numerous administrative 
 documents belong to the province of the Botuli literarum 
 clausarum, " Close Rolls," so called because they were issued 
 
 (3*) The opposition of Parliament to of action for the administrative powers, 
 the jurisdiction of the King in council in spite of the advance of definite 
 begins from the time when Parliament legal arrangement in the political 
 had become consolidated into a united rights of the realm. The practice of 
 body (Hallam, note xi.; Spence, "Equi- the chancery succeeded better in de- 
 table Jurisdiction," i. 343-351). In a fining for itself more exactly the 
 decision which afterwards became different branches of its civil juris- 
 famous, the "Chamber Case" (Croke's diction, as to which Spence (" Equi- 
 " Report," vol. v. c. i. p. 168), the table Jurisdiction of the Court of 
 judges acknowledged "that the court Chancery," vol. i. 334 seq., 420 seq., 
 of Star Chamber had existed long be- 435-683, 692-716) affords us the most 
 fore the proclaiming statute 3 Henry comprehensive survey. A controversy 
 VII., as a very high and honourable as to the respective advantages of 
 court." The above evidence shows "Bench" and " Office" had already 
 how far this assumption was well begun within these narrow limits 
 founded. There here remained a field during the Middle Ages.
 
 336 Constitutional History of England. 
 
 with the seal under cover, in contradistinction to the litterse 
 patentes, which were addressed to all faithful subjects. Here, 
 as elsewhere, centralization and the transaction of business 
 by means of writing mutually influence each other. In the 
 preceding period royal orders were still sometimes given by 
 word of mouth in the Exchequer, even in judicial matters. 
 Now writing became the unconditional rule, and the import- 
 ance of the great seal at the same time increased. Apart from 
 charters, which are publicly issued in Parliament, and in 
 which the mere " sign manual " was for a long time retained, 
 the use of the great seal is regarded as essential for all writs ; 
 in it the development of the English State from the gouverne- 
 ment personnel is symbolized. From the time of Henry III. 
 it is really the clavis regni, the faithful companion of the 
 King, even in a foreign land. As the history of the great seal 
 is thus identical with that of the most important State 
 documents, Sir H. Nicolas began to write its biography 
 (Nicolas, vol. vi. p. 148, seq.). The order to use the great 
 seal can be given, either by word of mouth, or in writing ; 
 but a document only becomes a solemn State Act when the 
 great seal has been actually affixed. In cases of the King's 
 absence, a duplicate of the great seal was given to the 
 Chancellor for writs de cursu which were issued by him upon 
 his own responsibility, but this duplicate was always given 
 back after the occasion for its use had ceased. For non- 
 official correspondence the privy seal was at first used, and 
 when this also had attained a political meaning, the signet. 
 As early as 28 Edward I. c. 2, the assurance was given that 
 no common law writ should be issued under the privy seal. 
 The struggle against the privy seal which commences from 
 that time marks the struggle of the estates against the 
 gouvernement personal. (4) 
 
 (4) The Lord Chancellor as head of like, which were issued in open docu- 
 
 the chancery attains greater import- ments with the great seal affixed. They 
 
 ance with the development of the use begin with 3 John. See Hardy, " Des- 
 
 of the seal (Nicolas, " Proceedings," cription of Patent Rolls in the Tower 
 
 vol. vi. p. 148). The most important of London," 1835. 
 
 Eotuli which have been partly pub- (c) The Close Bolls, containing royal 
 
 lished by the Eecord Commission are mandates, letters, and writs, princi- 
 
 the following : pally rescripts addressed to private 
 
 (o) The Charter Bolls, containing the persons on private matters, closed on 
 
 royal grants to cities, boroughs, and the outside with the seal. They begin 
 
 corporations, rights of market, and the with 6 John. See Botuli litterarum 
 
 like. The collection begins with 1 cZaM8arm,1204-1227XHardy,vols. i.ii.). 
 
 John, and runs to 7 Henry VIII., after (d) The Fine Bolls, containing the 
 
 which date such grants were made in grants of the Crown fiefs, with the dues 
 
 the form of patents. See Rotuli Char- for alienation, relevia, consent to mar- 
 
 tarum, 1199-1206 (ed. Hardy, 1837, riage, etc. See Hardy, " Rotuli Finium," 
 
 et seq.). and above, p. 171. 
 
 (6) The Patent Bolls, containing the With few exceptions the great seal 
 
 grants of offices, lands, titles, and the cannot be used without the express
 
 Permanent or Continual Council Court of Chancery. 337 
 
 The staff that was necessary for the discharge of this multi- 
 farious judicial and chancery business, consisting of a chief 
 as well as of a number of reporting counsellors or " Masters 
 in Chancery," and clerks, received its form in this period. 
 Among the numerous staff of clerks the chief of the office now 
 stands out conspicuously as the Gustos Rotulorum Cancellarise 
 Domini Regis. He was first described by this name in the 
 Patent Koll, 14 Edward I. Under Edward II. this Master of 
 the Eolls was specially appointed by the King, took a special 
 oath of office, and was inducted into his office with great 
 pomp (Foss, iii. 327). The appointment was very generally 
 made for life, or " quamdiu bene et fideliter se gesserit in 
 officio " yet sometimes otherwise " quamdiu nobis placuerit " 
 (Foss, iv. 4). From this time he was regarded as Vice-chan- 
 cellor, and was ranked in the stat. Richard II. c. 2 in 
 precedence to the justices of the central courts. (5) 
 
 order of the King, either (1) verbally, 
 or (2) by writing under his signet, or 
 (3) by writing under the privy seal 
 addressed to the Chancellor, or (4) by 
 writing under the signet addressed to 
 the keeper of the privy seal, who there- 
 upon communicates the royal pleasure 
 to the Chancellor by a warrant under 
 the privy seal. The origin of written 
 instruments sealed with the great seal 
 is given inPalgrave ("Commonwealth," 
 vol. i. p. 147 ; Privy Council, 13) ; 
 for the continuous history of the great 
 seal under the separate reigns, cf. Foss 
 (" Judges," Index, vide Seal) . A j uris- 
 tic survey of the royal writs accord- 
 ing to the difference in their legal 
 nature is given in Coke, Inst., ii. 40. 
 
 (5) The staff of the chancery now 
 takes a firmly organized form with the 
 growing importance of the office in the 
 administration of the realm. The list 
 of the chancellors of this period is 
 given by Foss (Judges, vol. iii.). As 
 early as Edward II. the title " Cancel- 
 larius Anglix " occurs twice ; and the 
 honorary title " Lord Chancellor " from 
 this time comes into gradual use. As 
 a rule the chancellors are still chosen 
 from the higher clergy ; under Edward 
 III. among seventeen chancellors were 
 four archbishops and eight bishops, 
 but on the other hand also one knight 
 and four professional jurists. An at- 
 
 tempt of Parliament to thrust out the 
 clergy from this position, failed, and 
 the lay chancellors were always after 
 a very short time replaced by prelates 
 {Foss, iii. 320). The higher chancery 
 clerks now received the title of "Magis- 
 tri" or Masters in Chancery (Spence, 
 vol. i. 359 seq.), for as these clerks with- 
 out exception belonged to the lower 
 clergy, the custom arose of applying 
 their title of rank as Magistri to their 
 office. Towards the close of Edward 
 III.'s reign, we find the title of " Mas- 
 ters " used in the documents contain- 
 ing their appointment (Foss, iii. 334). 
 In the company of the Chancellor they 
 are also active in Parliament, in which 
 they usually officiate as receivers of the 
 petitions, whilst the class of " triers " 
 was formed of the prelates, barons, and 
 justices. More numerous still was of 
 course the staff of the clerici desecundo 
 gradu, as they are now termed, in con- 
 tradistinction to the Magistri or clerici 
 de primo gradu. As head of the de- 
 partment for the registration of the 
 State treaties stood the Protonotarius, 
 whose treaty rolls from Edward I. to 
 22 James I. are still in existence. The 
 whole of the clerks inhabited an inn 
 near the royal palace, and received 
 their salary and supply of provisions 
 from the royal household.
 
 338 Constitutional History of England. 
 
 CHAPTEE XXIV. 
 parliament of tfte prelates ant batons. 
 
 FKOM the time of Edward I. there were connected with 
 the permanent council, as the seat of the central government, 
 certain periodical meetings of notable prelates and barons, 
 who became united with the King's council, into a " great 
 council ; " and then separated themselves as an Upper House 
 from what was afterwards the " House of Commons." 
 Edward I. on ascending the throne found a condition of 
 things existing in which prelates and Crown vassals had 
 already for a generation past exercised their right to impose 
 scutages and aids, and had been summoned to deliberate 
 upon important resolutions of the realm. Convinced that 
 such participation in the central government was henceforth 
 unavoidable, he made this concession without any reserve, 
 and in the course of his reign extended it beyond the original 
 design. The functions and constitution of these parliamentary 
 assemblies assume a form from which at length proceeds an 
 hereditary peerage of secular lords. 
 
 I. The concilium of the prelates and barons formed, from 
 Edward the First's time, a constitutional h'nfe in tf) afcmmfe- 
 tratton of t|) realm, and as a periodical council, was ordinarily 
 convoked four times a year, so that the magnates met together 
 with the royal permanent council, and during the period of 
 meeting formed a " great council," in which those who were 
 summoned in virtue of office, ecclesiastical dignity, and 
 property, took their places side by side. We have here to 
 do, not with a mere estate of the realm, in which a privileged 
 class of landowners claim a right to be heard, but with a 
 constant and regular participation of the magnates in a 
 political system with fully developed military, judicial, police, 
 and financial powers. The competence of the Magnum Con- 
 cilium is bound up with these prerogative rights. The un- 
 limited royal powers are now exercised under the constitutional 
 co-operation of the magnates ; the portion of the government 
 which remains indefinite and informal is the residue of 
 personal rule. Beserving its indefinite authority, the principal 
 functions of the great council which still survive in the Upper
 
 The Parliament of the Prelates and Barons. 339 
 
 House as it exists at the present day, may be already separated 
 off into a quadruple sphere of action : a court of law, a 
 tax-granting body, a State council for the administration of 
 the realm, and a legislative body. 
 
 1. Under Edward I. its position as a court of law is prominent. 
 The parliament in this reign, is pre-eminently intended to 
 be a judicial assembly, to which the other functions are 
 annexed. In this sense (which was also that intended by 
 the barons in the Provisions of Oxford) Edward I. convokes 
 four timea in each year a parliamentum, and he only departed 
 from this rule afterwards in very turbulent times. In this 
 sense in later reigns the motion was repeatedly put and agreed 
 to, that at least once in each year a parliament, that is a 
 judicial assembly of the magnates, shall be holden. Its 
 models, the Echiquier of Normandy, and the Parliaments in 
 France, and the Germanic fundamental idea by which the 
 secular government wears the character of a court of law, 
 were all of some influence upon its creation. The competence 
 of this court is bound up with the King's right of taking 
 the most important and difficult cases to his court. The 
 current law suits were certainly now, indeed, assigned to 
 the corporate central courts, as they had formerly been to 
 the county courts. But this delegation did not annul the 
 royal right of personally directing the court in extraordinary 
 cases (above, p. 406), as was the case in the German Imperial 
 Constitution, where a court of officials sat in addition to the 
 imperial court, and a parliamentary revision of the body of 
 official judges was reserved. It has never been constitutionally 
 determined which placita belonged to the jurisdiction of Par- 
 liament, for the King never renounced his power of reserving 
 the most important and extraordinary cases to his personal 
 appointment of a judicium parium ; and the estates themselves 
 were interested in upholding these powers, from the time 
 when their right of co-operation had been constitutionally 
 established. Hence civil and criminal cases might in the 
 first instance, as well as in the higher instance, be brought 
 before Parliament, if the matter appeared of sufficient impor- 
 tance. As extraordinary cases of the highest importance, 
 the following presented themselves : 
 
 (a) Complaints against erroneous decisions of the central 
 courts, which were admitted by a royal writ of error, and now 
 came before the King in council, for which the Magnum Con- 
 cilium offered itself as the higher, more powerful, and more 
 illustrious body. In the year books 29 Edward III. 14 
 (Hale, Jurisd., 41), the justices plainly declare it to be the 
 prevailing opinion that the Permanent Council is not the place 
 to upset the decisions of the central courts. The assistance
 
 340 Constitutional History of England. 
 
 of the great council in this matter proceeded tacitly from 
 the necessity which had arisen for a higher authority. (1) 
 
 (b) Impeachments of members of the Parliament itself. 
 From the moment that the great council had attained a 
 certain stability, the demand was raised to recognize it as the 
 judicium parium of its own members. The demand for a 
 special judicium parium for the Crown vassals had hitherto, 
 merely on account of the unequal position of the hundreds 
 of lesser vassals, never taken a definite form. Now, since 
 an organized body and an external limitation existed, the 
 demand for a court of peers for this narrow circle had become 
 practicable and unavoidable. It had been to a certain extent 
 prepared by that ordinance of Henry III. which had exempted 
 the great barons from the ordinary suit of court in the county 
 court. It appeared the more justifiable in proportion as the 
 great council began to invite the justiciaries of the central 
 courts to act as deliberating members at the meetings for 
 delivering its legal decisions. It was natural that the lords 
 should object to recognize their assistants of the legal profes- 
 sion as a judicium parium over their own persons. The new 
 expression, "piers de la terre," occurs for the first time as 
 an official term, in the judgment passed on the De Spencers 
 in 15 Edward II.: "Accordingly we peers of the land, earls, 
 and barons in the presence of the King do declare that," etc. 
 In the proceedings against Mortimer, and in the disputes with 
 Archbishop John of Canterbury, the demand is still more 
 definitely marked. In 15 Edward III, it was raised, upon 
 the motion of the barons, to a statute, to the following extent, 
 "that no peer of the land should be condemned to the loss 
 of his temporal possessions or to arrest or imprisonment 
 unless by verdict of his peers in Parliament." (a) 
 
 (1) The parliament is now ihejudi- suited. What once, in the action against 
 cium parium of the estates, an institu- Thomas Becket, appeared as an extra- 
 tion which the magnates had long ordinary convocation, is now the regular 
 endeavoured to establish. The expres- method of its composition. The Peers' 
 sion " parliament " was at the close of Report acknowledges that this change 
 this period pre-eminently used in this had been tacitly effected, that in Rotuli 
 sense (Parry, " Parliaments," xi. ; Peers' 1 Edward III. all spiritual and tern- 
 Report, vol. i. 169-171). In accordance poral lords were already regarded as 
 with Fleta's text-book, the Parliament the natural constituents of this court ; 
 was under Edward II. described as a but that the time when this change 
 constitutional tribunal, "coram Rege et came about could not be exactly deter- 
 Concilio suo in priesentia Domini mined (Report, v. 296, iv. 376). Only 
 Regis, Procerum et Magnatum regni, in this sense the assurance was given in 
 in Parliamento suo." A change had 4 Edward III. that parliaments should 
 been made in the selection only ; whilst be holden annually, or more frequently 
 in former times the royal judicial com- if necessary (Peers' Report, i. 302) ; for 
 missions were based upon personal neither the Lords nor the Commons 
 selection out of many, it was now the were interested in a frequent convoca- 
 class of the magnates that had become tion of tax-imposing assemblies, 
 formed into a body, which the King in (a) A hundred years earlier, when, 
 his character of chief magistrate con- in the action against the Earl Marshal,
 
 The Parliament of the Prelates and Barons. 341 
 
 (c) Next follow accusations against the royal great officers, 
 which with due regard to the depositaries of power and law, 
 could not be sent for trial before justices, as being mere 
 advisers of the royal council. They are sent as extraordinary 
 placita to the " King in council," which latter for these cases 
 could only be " the great council." This course, in addition 
 to imparting to them a just importance, certainly in early 
 times indicates the mark of violent party passion. With the 
 increasing power of the great constitutional body of the realm, 
 this jurisdiction extended into all three directions ; and whilst 
 retaining the forms of a council, became the extraordinary 
 supreme tribunal of the realm. (l b ) 
 
 2. The same body is at the same time a tax-granting 
 assembly for the scutagia and the extraordinary auxilia of 
 the Crown vassals. It had been firmly established by the 
 precedents under Henry III., that the baronage granted 
 these taxes through a committee of notable prelates and 
 barons, who being convoked by royal writ as greater taxpayers 
 represented the mass of the lesser. Edward I. respected this 
 
 the claim for a court of peers was 
 raised, Bishop Peter de Koches declared 
 that there were no peers in England of 
 the same kind as those in France, and 
 that the King, by means of his judges, 
 had a perfect right to sit in judgment 
 upon his foes. But after the spiritual 
 and temporal lords had for a whole 
 generation year by year appeared at 
 these judicial assemblies, it was natural 
 that they should begin to be regarded 
 as a more select peerage, as "piers de 
 la terre." The claim for such a peers' 
 court for the members of the great 
 council was moreover based on the old 
 privileges of office of the Norman 
 period, which had always accorded to- 
 the members of the higher courts an 
 extraordinary and separate right of 
 appearing before their own judicial 
 department, exchequer, etc. In 15 
 Edward III. the barons bring in an 
 emphatic motion in respect hereof, and 
 on the opinion of a specially appointed 
 commission of four bishops, four earls, 
 and four barons, together with the sages 
 de la ley, a statute was issued in the 
 same session to the effect that "no 
 peer of the realm, crown officer or other 
 should be arraigned on account f his 
 office, condemned to the loss of his 
 temporal possessions, thrown into prison 
 or arrest, tried or judged, except by the 
 award of his peers in Parliament " 
 (Peers' Report, i. 314, 315). 
 
 (l b ) But in this question indefinite- 
 ness as to limits was and remained the 
 
 heritage left by the Norman Ciiria 
 Regis. In Mortimer's case (3 Edw. 
 III.) the magnates protest that they are 
 not bound to sit in judgment upon 
 Simon de Beresford, because he is not 
 their peer. On the other hand,, they 
 caused Thomas de Berkeley, a Crown 
 vassal who had been summoned by 
 writ, in accordance with custom, to be 
 condemned by a jury of " milites coram 
 rege in plena parliamento " (cf. Reports, 
 i. 300). The uncertainty, too, of the 
 forms of procedure, derived from the 
 Norman judicial commissions, lasts for 
 a long while. In 11 Richard II. 5, 
 lords appellant move articles of im- 
 peachment for high treason (for these 
 incidents, see Parl. Hist., i. 410-440). 
 In recollection of the forms of the old 
 administration of justice, the court is 
 styled " council " (Peers' Report, App. 
 iv. 729) aud their verdict "award," 
 which only becomes final by the assent 
 of the King. After the opposition had 
 taken the helm, the commons on their 
 side in 21 Richard II. impeach the arch- 
 bishop, Thomas Arundel, of high trea- 
 son, who by " award " in Parliament 
 was condemned to banishment. Other 
 peers were accused by the lords appel- 
 lant, and condemned to death and 
 banishment. The older resolutions of 
 11 Richard II. wore for the most part 
 annulled ; in 1 Henry IV. the last reso- 
 lutions were declared null and void, 
 and the former ones (11 Richard II.) 
 revived.
 
 342 Constitutional History of England. 
 
 right of the vassals. But a deeply felt violation of it in the 
 twenty-fifth year of his reign, with the refusal of the clergy to 
 pay taxes, combined with war, financial distress, and discon- 
 tent in the country, compelled him in the confirmatio chartarum 
 (25 Edw. I. c. 6), to agree to a still wider concession, which, 
 as a principle, restricts the grant of all auxilia, scutagia, and 
 taUagia to the common consent of the prelates, barons, and 
 commons in Parliament assembled (cap. 25). Under each 
 subsequent reign this concession was confirmed, extended, 
 and protected against violations. This periodical right of 
 granting taxes gives the great council an unassailable position, 
 and a continual support to its other claims ; but this right 
 had to be early shared with the representatives of the com- 
 munities, which from this point were gradually gaining a 
 preponderance. (2) 
 
 3. The Magnum Concilium is the supreme deliberative 
 council of the realm for the most important measures of the 
 Government. Primarily for decrees of war and peace, on 
 account of the important military rank of the great barons ; 
 but just as much for internal affairs also. Its functions are 
 thus far the same in principle as those of the continual 
 council (p. 399). Naturally the most important were reserved 
 for the great assembly ; but on that very account the least 
 important were not excluded. For these indefinite functions 
 the assembly pre-eminently bears the name of " concilium," 
 and not of " parliament." But the regular recurrence of the 
 assembly gave the magnates an ever-increasing influence 
 upon the Government in the following principal points. 
 
 First of all a participation in the current business of in- 
 vestigating and replying to petitions. As the convocation of 
 the parliaments was marked by the presentation of the 
 greatest number of petitions, it was natural to claim for the 
 referees (receivers and triers of petitions) that they should 
 be appointed from among the estates themselves. In the 
 stormy time of the " Ordinances of Ordainers " (5 Edw. II.) 
 this claim was established ; yet the procedure in respect of it 
 varies according to the spirit of the Government. In 14 
 Edward III. 1, c. 5, it was decreed, that from thenceforth there 
 should be chosen in every parliament one prelate, two earls, 
 and two barons, invested with the royal commission and 
 authority to hear on petition all complaints of delay or 
 violations of justice, and to bring before the next Parliament 
 
 (2) In the straits of war in 2o Ed- versal opposition to it now led to the 
 
 ward I. the raising of an aid from all statutum de tallagio non concedendo 
 
 landowners of the value of 20 for the (25 Edw. III. c. 5, 6), the origin of 
 
 campaign in Flanders was ordered by which is mentioned below, Chap. xxv. 
 
 the ordinance of the King in the council sec. 1. 
 (Peers' Report, i. 220, 221). The uni-
 
 The Parliament of the Prelates and Barons. 343 
 
 all difficult cases suitable to be heard there. This is a kind 
 of perpetual committee of Parliament, like that still existing 
 in the Upper House. As late as the middle of Edward the 
 Third's reign, chancery clerks, royal justices, and peers are 
 arranged together as triers and auditors, the first as reporters,, 
 and the latter only for the purpose of preliminary inquiry. 
 
 Further, the council acquired an influence upon the appoint- 
 ment to the great offices. In quite early times the King 
 declares his willingness to appoint such persons as are "agree- 
 able " to the great council, yet with the reservation of his right 
 of appointment (Eot. Parl., iii. 258, 349). Frequently, too,, 
 the great officers are sworn into the great council. Influential 
 and skilled members of the great council acquire in this 
 position a natural claim to a summons to the administra.- 
 tive council,, which under the circumstances could hardly 
 be refused. During the minority of the king, the Magnum 
 Concilium naturally exercises a paramount influence upon: 
 the formation of the executive council, as at the accession of 
 Edward III., Eichard II., and Henry VI. But also under a 
 sovereign who actually ruled, in constitutional conflicts the 
 magnates frequently force the ruling council of the realm upon 
 the King. For instance, in 9 Edward III. the Earl of Lan- 
 caster, ae president of the council, undertakes the government 
 with the promise on oath that he will conduct no national 
 affairs without the advice of the council, and that every 
 member of the council who gives advice which is prejudicial to 
 the realm shall be removed in the ensuing Parliament. In 
 12 Edward II. it was resolved that the King should have 
 two bishops, one earl, one baron, and a. baron or banneret of 
 the Earl of Lancaster, as coadjutors, and all that could be done 
 without Parliament should be decided with their consent, and 
 all that was done without this consent was to be regarded as 
 null and void, and set right by resolution of the peers in 
 Parliament. The great party struggles after Henry VI. end 
 in periodical appointments, depositions, and condemnations 
 of the executive members of the Continual Council by the 
 Magnum Concilium. Under the house of Lancaster the 
 greater part of the executive council of the realm consists of 
 members who owe their position to the high estimation in 
 which they are held in the great council. (3) 
 
 (3) AB a deliberative assembly of here the same occasional encroach- 
 
 the King, the concilium of the mag- ments and rebuffs as in the provincial 
 
 nates has the same indefinite powers diets of the German states. As early 
 
 as the executive Continual Council. as 4 Edward I. " prelates, earls, barons, 
 
 All national affairs were, under certain and others of the King's council, 
 
 circumstances, settled with their advice justices, and regie fideles in Parlia- 
 
 as the circumstances of the realm and ment " resolve on war against Wales, 
 
 the monarchy demanded. There appear In the course of the later wars, and
 
 344 Constitutional History of England. 
 
 (4) The Magnum Concilium becomes in this manner the 
 law-giving assembly of the realm. The statute of Marie- 
 bridge at the close of Henry the Third's reign formed the 
 most important precedent for the regular deliberation of the 
 King with his magnates on important and extensive acts of 
 legislation, and one which follows close on former isolated 
 precedents. Without renouncing his traditional right of or- 
 daining, Edward I. had, at the beginning of his reign, 
 introduced a deliberation with his Magnum Concilium upon 
 all important laws which involved a change in civil and 
 criminal, as well as in judicial procedure. From the statute 
 of Westminster 1, until late in the reign of Edward III., the 
 great council is the ordinary body for the discussion of laws, 
 with reservation of the occasional ordinances of the King in 
 council, which, after the end of Edward the Third's reign 
 are no longer sufficient to alter laws which had been passed 
 in full Parliament. This legislative position, which was in 
 harmony with the national and indestructible legal concep- 
 tion of a legislation consensu meliorum terras (above, p. 82), 
 naturally fell to the prelates and barons, so soon as their 
 position as a supreme tribunal and council of the realm and 
 as a tax-granting body had been definitely established. Their 
 predominant influence is also visible in the language of the 
 statutes, in which, since the time of Edward I. and Edward II., 
 the French language, as the tongue of the upper classes, 
 begins to oust the official Latin. After 3 Edward II. a 
 change in the phraseology was introduced, which, under 
 the name of Parliament, meant sometimes the highest 
 judicial, and sometimes the legislative assembly of the realm. 
 The latter meaning became the leading one under the following 
 reigns. In addition to the great council, Edward I. began to 
 summon representatives of the counties and towns, merchants 
 and others, to such deliberations as affected the narrower 
 sphere of the Commons (cap. 25). This right began to be 
 
 in the disputes with the papal curia, Magnum Concilium, but with the 
 they were very frequently asked for modifying circumstance that the lords 
 their consent. Where petitions were to frequently came into conflict with the 
 be considered, they were summoned permanent council as to their partici- 
 in cases where a legislative act or a pation in it. In an address of the dis- 
 special procedure was needed for the contented magnates in 10 Richard II., 
 purpose of redress, whilst those which it is expressed that "the King should 
 were to be discharged in the ordinary assemble the lords, nobles, and corn- 
 course of law and administration, only mons once in each year in his Parlia- 
 came before the chancellor, judges, ment, as being the highest curia of 
 and council (Peers' Report, i. 245). the realm, in which all equity should 
 From this point of view the great shine as clear as the sun ; and in which 
 council participates also in the dele- both poor and rich should find a never- 
 gations. The extraordinary civil and failing shield and protection by the 
 criminal jurisdiction of the council restoration of peace and quietness, and 
 was repeatedly favoured by the the removal of every kind of wrong." In
 
 The Parliament of the Prelates and Barons. 345 
 
 shared also with the Lower House as the influence of that 
 house in the province of taxation increased. (4) 
 
 But in all these four directions there continues, in the 
 course of the period, an ascendency of the Magnum Con- 
 cilium over the executive council of the realm ; so that 
 towards the close of the period, the continual council appears 
 occasionally as a committee of the great council. The struggles 
 between the monarchy and the magnates, which were fought 
 out under Henry III. in the barons' war, become now a 
 struggle between council and parliament. 
 
 II. !) constitution of tfje parliament of tfje magnates had 
 been roughly sketched out by precedents down to the close of 
 Henry III.'s reign. After Simon de Montfort's parliament 
 had failed, Henry III. had again adopted the customary 
 method of summoning by royal writ his bishops and abbots, 
 his earls and barons, that is to say, a selection of the latter, 
 to the deliberative assembly; and this order of things con- 
 tinued during the century of the three Edwards. The nature 
 
 21 Kichard II., on motion of the com- 
 mons, a committee of twelve lords was 
 appointed to try, answer, and despatch 
 various petitions and matters which 
 needed to be discharged after the close 
 of Parliament. It was the arbitrary 
 acts of this committee that brought 
 about the fall of the King (Parl. Hist., 
 i. 482-498). Under Henry VI. an ano- 
 malous epoch of revolutionary excesses 
 begins. 
 
 (4) In 3 Edward I. the statute West- 
 minster 1 was passed " with the con- 
 sent of the temporal and spiritual lords 
 of the communitas" by which phrase, 
 as under Henry III., the whole number 
 of the vassals summoned to the Par- 
 liament is meant (Report, i. 173, 174). 
 The most important legislative acts in 
 the following generation were passed 
 with the concurrence of the Magnum 
 Concilium, but as yet without the co- 
 operation of the county delegates, and 
 of the towns. For example, in 13 Ed- 
 ward I., the statute Westminster 2, de 
 donis conditionalibus, and the confirma- 
 tion of Magna Charta, "habito super 
 hoc cum suo concilia tractatu " (Report, 
 i. 194). In like manner the form of 
 expression was still retained which 
 called the assembly (even without any 
 summons of Commons) a " Parliamen- 
 tum " (as in 27 Edw. I., Report, i. 237). 
 In 28 Edward I. the statutes, in spite 
 of the presence of the commoners, were 
 only passed with the advice of the 
 great council (Report, i. 238, 239). In 
 
 3 Edward II. mention is made of the 
 common consent of all bishops, earls, 
 and barons " in plena parliamento " ; 
 in 4 Edward II. the consent in full 
 Parliament is spoken of immediately 
 after the counties and towns have been 
 dismissed (Report, i. 261). In 6 Ed- 
 ward III. the clergy and the commons 
 were dismissed, whilst the prelates and 
 those of the council remained behind 
 for further deliberation (Parry, 97). 
 Later in the same year, after dis- 
 missal of the commoners, the prelates 
 and barons remain (Parry 99, 100). 
 However, from this period parliaments 
 without the assistance of the com- 
 moners are more rarely held. The 
 assembly in 20 Edward III. (27th 
 March, 1346), was still a Magnum 
 Concilium of that kind which, in a 
 marked manner, was called a "con- 
 vocation " (Peers' Report, App. iv. 557). 
 An assembly of this character is met 
 with also in 27 Edward III., perhaps 
 also in 45 Edward III., and once again 
 in 2 Richard II. (Rot. Parl., iii. 55; 
 Peers' Report, i. 320). Occasionally 
 we still meet with laws which have 
 only been discussed with the justices 
 or the continual council, such as the 
 statute of Acton Burnell, 11 Edward I. 
 (Report, i. 190, 206-208) ; the statute 
 de prisonibus, 23 Edward I. (Report, 
 i. 217); the ordinances for Ireland, and 
 the statute de praerogativa regie, 17 
 Edward II. (Report, i. 286).
 
 346 Constitutional History of England. 
 
 of the council continued regularly to affect the selection of 
 the persons that were to be summoned. 
 
 To the parliament as a judicial assembly, only spiritual and 
 temporal Crown vassals could be summoned ; because other- 
 wise the principle of the jitdicium parium would have been 
 violated. 
 
 To the parliament as a tax-granting assembly for the pur- 
 poses of the scutagia, the tenentes- in capite were necessarily 
 summoned. But on this mere question of taxation' the greater 
 vassals might be regarded as representing the lesser. 
 
 Of the parliament as a deliberative assembly, in addition 
 to the smaller council, the ecclesiastical dignitaries were 
 customary members, and the most illustrious Crown vassals, 
 to a certain extent, members by birth. Moreover, since ex- 
 perience in military and political business was here of great 
 moment, there could be no objection, to summoning to the 
 council illustrious men without Crown fiefs, and even of 
 foreign family (such as the Beaumonts and Grandisons), as 
 can be proved to have taken place in a few cases. The 
 qualification for a foreigner by grant of an immediate knights' 
 fee was not hard to attain. 
 
 Lastly, for the parliament as a legislative assembly, a 
 selection of the most distinguished men (meliores terras) was 
 from time immemorial the rule. But the more that in the 
 course of time, the business and the official staff became 
 consolidated, the more did this consolidation lead to a legal 
 definition of qualification on a well-balanced average, in the 
 same way as all formations of estates of the realm can be 
 ultimately reducedi* 
 
 From this point of view three groups, viz : the spiritual 
 lords, the temporal lords, and the members of the council, 
 were summoned to the great council.. 
 
 The first group is formed by the spiritual lords, who according 
 to time-honoured custom take the precedence ; archbishops, 
 bishops, abbots, priors, and the heads of the religious orders. 
 From the first it can here be perceived, that the two arch- 
 
 * The qualification for parliament is contain exceedingly important matter 
 known with tolerable accuracy from at the end of the list of lords created, 
 the preservation of the parliamentary Parry (Parliaments, 52-54) gives a 
 writs since 23 Edward I., and from table of the temporal lords. I have 
 their being printed and elucidated in given a complete tabulary statement 
 the great works of Prynne (1659-1664), of the number of the prelates, mag- 
 and Dugdale (1685), and in the Re- nates, and members of the permanent 
 ports on the Dignity of a Peer. The council summoned to attend each par- 
 First Report has been, on account of liament from 11 Edward I. to 1 
 its importance, reprinted at four dif- Richard II., in the second edition of 
 ferent times (1819, 1820, 1823, and my " Engl. Verwaltungsrecht " (1867, 
 1829). In like manner the continua- vol. i. pp. 382-387). 
 tions and completions (vola. ii.-v.)
 
 The Parliament of the Prelates and Barons. 347 
 
 bishops, and nineteen bishops must be regularly summoned 
 in their double character of heads of the Church and great 
 vassals of the Crown. Wherever these summonses are im- 
 perfect, it arises from vacancies, or from personal absence 
 or temporary impediments; or the summons is for smaller 
 deliberative assemblies, for which a narrower selection had 
 been made.. The number of the abbots appears for a long 
 time to vary, much according to the object of the summons. 
 Many of those summoned deprecate the expensive and bur- 
 densome honour,, and assert that they are not bound by 
 virtue of their possessions to pay suit of court to the Curia 
 Regis. After 15 Edward III. it was acknowledged in a 
 number of precedents that those were to be excused from 
 obeying the summons " who did not hold by barony, but only 
 in frankalmoign." From that time fche number of the abbots 
 became more and more definitely fixed at about twenty-five. 
 In consequence of the occasional summons 122 abbots belong- 
 ing to different monasteries were, however, summoned at 
 one time or another. Still more fluctuating was the sum- 
 moning of the priors and heads of the three ecclesiastical 
 orders. Of the priors, only a small number were summoned 
 on each occasion, and after 15 Edward III., the non-posses- 
 sion of a Crown fief was recognized as a reasonable excuse. 
 But in consequence of frequent variations, forty-one priors 
 were summoned, of whom, only two can be regarded as regular 
 attendants. (1) 
 
 The second group (the temporal lords) embraces, in the 
 century of the three Edwards, the earls and the barons. The 
 
 (1) The prelates who were sum- they only held in frankalmoign (Parry, 
 moned comprise first of all the arch- 113). (A; case of this kind occurs as 
 bishops and bishops. Where the ques- early as 12 Edw. II.). This appears 
 tion is one of the grant of aids, the from that time to be treated as an 
 summons is as complete as possible, established reason for being excused, 
 and during the vacancy in a see, the Still more indefinite are the sum- 
 representative in the spiritual office monses addressed to the priors and 
 (i.e. the Keeper of the Spiritualities) heads of the orders. The latter dis- 
 was called upon. Occasionally the appear owing to the abolition of the 
 Archbishop of Dublin was also sum- ecclesiastical orders and for other 
 moned. The number of the abbots reasons, so that at last only a fixed 
 appears to have been gradually fixed number of two priors remained. la 
 at about twenty-three or twenty-five ; the first century of this epoch the 
 only where the granting of a subsidy writs of summons for the most part 
 or a crusade or the like, was to be required appearance in person or by 
 debated, a greater number was periodi- proxy. The abbots particularly were 
 cally summoned. In 15 Edward III., excused, when grants of taxes were to 
 two abbots and two priors were ex- be made, in the event of their sending 
 cused from attendance, because they a procurator (Parry, 68). But some- 
 did not hold by barony, nor anything times the sending of proxies is ex- 
 whatever in capite, for which they pressly forbidden, as in 6 Edward III. ; 
 would have been bound to come to the and in the course of the period the 
 parliaments and councils (Parry, 112). demand of appearance in person at the 
 In the same year several others also deliberative assembly becomes more 
 were excused from appearance, because and more strict
 
 348 Constitutional History of England. 
 
 earls are still the acknowledged heads of the Crown vassal- 
 dom, although their dignity is only based upon patent, and 
 not upon the feudal possession of a county. The small 
 number of lords thus characterized appears to have been 
 regularly summoned from the first nearly in the same way 
 as the bishops, so that the omission of any can be explained 
 by minority, absence, or personal hindrance. In later times 
 there is added to these the very small number of dukes, 
 marquises and viscounts, of like character, appointed by 
 patent. On the other hand, the leading principle for the 
 summons of the barons is very hard to determine. The 
 customary method under Henry III. (according to the origin 
 of all concilia optimatum), consisted in the King's inviting the 
 most illustrious and the greatest feudatories to represent all 
 the rest in the law-court, the council, and the tax-granting 
 assembly. This point of view still left a wide open field. For 
 instance, Edward I. summons to an assembly of the realm at 
 Shrewsbury in 1283, 110 earls and barons, whilst to West- 
 minster in 1295, only 49. The citations under Edward I. 
 vary between 40 and 111 ; under Edward II., between 38 
 and 123 ; under Edward III., between 24 and 96 ; under 
 Eichard II., between 29 and 48 ; under Henry IV., between 
 24 and 37 ; under Henry V., between 20 and 32 ; under Henry 
 VI., between 15 and 42 ; and under Edward IV., between 23 
 and 37. In the first century of the period the change is so 
 frequent, that 98 lords were summoned on one occasion only ; 
 and 50 lords only two, three, and four times, without their 
 names ever occurring again. Others were summoned in their 
 own lives, but their descendants were never summoned. 
 Great prominence being given to the grant of taxes, weight 
 was certainly laid upon financial considerations, and such 
 Crown vassals only were at first regarded as paid the great 
 relevium of a hundred marks on change of possession. Further, 
 a regard to the hereditary great offices was decidedly neces- 
 sary, although the high constable and the earl marshal were 
 only specially summoned as such after 51 Edward III. Un- 
 mistakable regard was also paid to certain great families. 
 According to the purpose and place of summons, and accord- 
 ing to personal confidence, there could be summoned round 
 a fixed and determinate nucleus of about thirty barons, a 
 number two or three times as great ; and in the whole course 
 of the Middle Ages there occurs not a single case in which 
 the barons have refused a place among them to any one thus 
 summoned. But the possession of a great Crown fief, with 
 all its inherent importance with regard to military service, 
 taxation, sub-vassals, and authority in the county, was neces- 
 sarily to be considered in the summons, so far as the King
 
 The Parliament of the Prelates and Barons. 349 
 
 was interested in having the mouthpieces of the Crown 
 vassals in his council. Husbands of heiresses were generally 
 summoned ; owners of parcels of land, where a partition 
 had taken place, were sometimes summoned and sometimes 
 passed over. Beyond these considerations the century of the 
 three Edwards never advanced. (2) 
 
 The third group of the Magnum Concilium was formed by 
 the members of the council. Not only the oldest modes of 
 summoning, and the object with which a deliberative assembly 
 was holden, but also certain recorded events prove that 
 originally the executive members of the council voted in 
 Parliament as such. In 20 Edward I. the Rotuli prove that 
 
 (2) The group of the temporal lords 
 comprises in the first century only the 
 earls and the barons. Under Edward 
 III. the dignity of a duke was first 
 created for the princes of the royal 
 house, and after 24 Edward III., it 
 became customary to place such a duke 
 of royal blood, or the Prince of Wales, 
 at the head of the persons summoned. 
 After 10 Kichard II. there are fre- 
 quently added to these one or two 
 marquises ; after 23 Henry VI. also 
 one viscount; in 31 Henry VI. three 
 viscounts. The difficulty lies only in 
 the number of the so-called barons. 
 The Crown vassaldom was at all times 
 unequally composed of great lords, 
 simple landowners, and owners of small 
 parcels. Instead of the impracticable 
 universal summons, and the equally 
 impracticable election, there remained 
 accordingly only the royal selection by 
 writ. To the stormy national assembly 
 in 49 Hen. III. Simon de Montfort had 
 only summoned his adherents, five 
 powerful earls, and eighteen barons, 
 among them probably many lesser ones 
 (Peers' Report, iii. 106, seq.). After 
 the restoration of the royal authority, 
 Henry III. naturally summoned a meet- 
 ing of his faithful followers. This 
 event has been rightly described by 
 an old historian, whom Coke cites from 
 Camden, "Statute et ordinavit, quod 
 omnes Hit comttes et barones Anglias, 
 quibus ipse rex dignatus est brevia 
 gummonitionis dirigere, venirent ad 
 Parliamentum, et non alii, nisi forte 
 Dominus Hex alia brevia eis dirigere 
 voluisset." But it is wrong to regard 
 this as a new statute; it is only the 
 description of the original condition 
 of things (Peers' Report, i. 395; iii. 
 114). And so it continues in the 
 century of the three Edwards. With- 
 out reckoning anomalous smaller de- 
 
 liberative assemblies, the number of 
 summonses under Edward I., II., and 
 III., varies between 24 and 123. We 
 cannot, therefore, doubt that the sum- 
 mons by writ in this century carried 
 no hereditary right to a seat (Peers' 
 Report, i. 325, 326 ; iii. 117, 265). But 
 the difficult question remains still un- 
 solved as to what other principles the 
 procedure acted upon. Martial effici- 
 ency alone cannot have been decisive ; 
 and just as little did legal distinctions 
 exist in feudal tenure. With regard 
 to the grants of taxes, and the frequent 
 mention of tenure " by barony " among 
 the abbots, it appears probable that the 
 financial point of view was predomi- 
 nant; that is, a special regard was 
 had to " baronies," which, according to 
 the rating of the Exchequer, pay the 
 great relevium of a hundred marks. 
 It seems that in the century of the 
 three Edwards a body of about thirty 
 barons became fixed as an average 
 number, with the reservation (1) that 
 the tenure by barony did not as yet 
 give a legal title to a summons, and 
 (2) that on the other hand lesser 
 tenants could be also summoned out 
 of personal confidence, and occasionally 
 even such as did not hold any fief 
 of the Crown. As a rule the writs of 
 summons insist upon a personal appear- 
 ance ; but the temporal lords were for 
 a still longer time allowed proxies, 
 particularly to represent them at acts 
 of taxation. In 35 and 36 Edward III., 
 two anomalous assemblies occur, to 
 which seven countesses and three 
 baronesses were summoned, with the 
 demand made upon them to let them- 
 selves be represented by " trusty men." 
 The question here, which at all events 
 was expressly mentioned in the latter 
 year, was the special one of furnishing 
 armed men for the campaign in Ireland.
 
 350 Constitutional History of England. 
 
 under the Concilium Procerum et Magnatum, the chancellor, 
 the justiciaries and the higher officials of the council, as 
 such, are included (Peers' Keport, i. 206-208). Even for 
 the grant of taxes and the judicium parium, the right of voting 
 in this capacity could not well be denied to the lowest Crown 
 vassal. But just as unmistakably the united influence of 
 the great prelates and lords in the great assembly soon 
 asserted its ascendency over the mere bureaucratic element. 
 The first shock to the position of the mere officials had been 
 given by the Statutes of Ordainers (5 Edw. II.). But the 
 more decisively the idea of a " peerage " among the lords 
 who were summoned came into prominence, and in 15 Edward 
 III. attained a legal recognition, the more usual it became 
 to summon the prelates and the great feudatories, who 
 belonged at the time to the council of the realm, in the 
 ranks of the other peers, because this had begun to signify 
 both politically and socially a higher position. The member- 
 ship of the council becomes gradually absorbed by the members 
 of the great council, who now understood their position as 
 forming a unity. Accordingly &s members of the council the 
 chief justices, the justices, and the councillors of the second 
 and third rank were now only summoned by special writ. 
 The justices in most cases appear merely as the assistants 
 of the lords. With regard to taxation and the jurisdiction 
 of peers the fusion of the peers in council and the peers 
 in Parliament appears perfected ; it is quite different, however, 
 as to the deliberative and legislative assembly, in which the 
 continual council, being still a concilium in concilio, forms, 
 as Hale calls it, the administrative body under the personal 
 direction of the King. The subjects of deliberation were pre- 
 pared in the smaller council ; the proceedings conducted by 
 officers of the council ; all conclusa recorded by officers of the 
 council ; all decrees resolved subsequently discussed in the 
 council (until Henry VI.) ; all sittings took place in the council 
 chambers of the royal palace, and the servants were ordered 
 to attend from the royal household, as is the rule to this 
 day. The regular sittings of the permanent council were only 
 periodically interrupted by these plenary assemblies of the 
 estates of the realm ' ' ad ardua negotia." The convocation of the 
 notables for this purpose may (according to Palgrave's appro- 
 priate expression) be called the terms of the council, correspond- 
 ing to the terms of the courts of law. That the great council 
 under Edward I. appeared thus to its contemporaries, is proved 
 by the words of Fleta (ii. 2), which co-ordinate it with other 
 departments or curise, as " Curia Regis in Parliamento." (3) 
 
 (3) In its original position the execu- Parliament. In harmony with the 
 tive council is an integral element of Peers' Report, Parry (Parliaments, 116)
 
 The Parliament of the Prelates and Barons. 351 
 
 III. i) fcebdopmtnt of t!) fjerttabt'lttg of t!)e temporal peerage 
 from these conditions becomes gradually discernible in a 
 few symptoms, under the dynasty of the house of Lancaster. 
 Here internal causes were at work, which in every process 
 of political formation take an outward shape when the sub- 
 stance is already finished. It was the personal importance 
 of the great lords for the State which silently decided this 
 question. For the military service of the State a great vassal 
 with his warlike followers was of quite as much importance 
 as a small county, and this importance became greater owing 
 to the French and Scotch wars. For taxation the baronies, 
 which paid the great relevium of a hundred marks, and 100, 
 connected as they were with periodical subsidies, profitable 
 wardship, and incidental feudal dues, had as much weight 
 as a small county, and more than that of the majority of the 
 small market towns, which were already summoned to send 
 burgesses to Parliament. In war as in the council, the great 
 lords are personally a prominent element, which is more and 
 more firmly established by their meeting together in person to 
 discuss the " ardua negotia regni." This annual meeting, this 
 customary discussion of the great business of the State gives 
 them that experience, that importance, and those qualities 
 which engender the justifiable feeling of a birth-membership, 
 which at the same time has its root in their local position. 
 With the development of the county militia, they became also 
 the skilled leaders of the national array. With the institution 
 of justices of the peace, after 34 Edward III., they took the 
 head of the police control, and the quarter sessions, that is 
 to say, of a great portion of the criminal justice and internal 
 administration of the country. Their eminent personal in- 
 
 remarks upon 18 Edward III. : " The from the council " are mentioned ; in 
 council seems -always to have been pre- -1 Edward II. thirty justices and others 
 sent in Parliament, and every impor- of the council; in 2 Edward II., " thirty- 
 tan t act of the King in Parliament five of the council;" again in 2 Ed- 
 appears to have been sanctioned by the ward. II., sixteen justices etministri; 
 advice of his council. The meetings of in 3 Edward II., seven of the council 
 Parliament were still considered as and others; in 6 Edward II., sixteen 
 meetings of the King's select council, justices and sixteen clerks of council ; 
 at which the lords and commons as the again iu 6 Edward II., " forty-two of 
 great council of the King, for legisla- the council;" in 14 Edward II., ''thirty- 
 tive purposes, and for granting aids, two judges and of the council." The 
 and for their advice on extraordinary justices, masters, and clerks of the 
 occasions, were summoned to attend" council were often expressly mentioned; 
 (cf. Report, i. 317). The statements after Edward III. very frequently a 
 respecting the members of 'the council number of King's Serjeants (Foss, iii. 
 who were summoned are, however, for 370). Whilst the writs of summons 
 the most part exceedingly indefinite, addressed to the magnates run " cum 
 BO much so that the higher, middle, and ceeteris paelatis tractaturi," those ad- 
 lower officers are confused together. In dressed to the justices leave out 
 23 Edward I. the justices of both "cxteris," and thus express that the 
 benches, the itinerant justices, the officers, as such, do not stand upon an 
 barons of the Exchequer and " others equality with the peers.
 
 352 Constitutional History of England. 
 
 fluence in the neighbourhood of their residence and their 
 estates, is increased by their prominent position as the greatest 
 tax-payers wherever land-tax, income-tax, county-tax, and 
 local-tax was to be paid. Their local influence reflected upon 
 their position in the great council, and their position in the 
 council upon their local influence. The aggregate of such 
 conditions becomes at all times bound up with tenure. 
 According to the common law succession, the whole of these 
 customary duties and this customary position pass to the 
 eldest son or other heir, and only to him. The right of the 
 kings to summon by their writs those whom they choose out 
 of hundreds, could no longer ignore such claims. The feeling 
 of the equality of this position had already become so strongly 
 developed in the party struggles under Edward II., that the 
 statute 15 Edward III. formally acknowledges those sum- 
 moned by writ as "pares regni," and thus legally severs them 
 from the great number of the other tenentes in capite. The 
 distinction that subsisted between the greater and the lesser 
 vassals in army, law-court, administration and taxation, at 
 length, after a struggle that had lasted for centuries, attained 
 legal recognition. The house of Lancaster was now enabled 
 primarily to support its usurped throne upon the recognition 
 of the body so constituted. The legality of the present political 
 government was established by the mutual recognition of King, 
 Lords, and Commons ; and if this recognition was to mean 
 anything, it had to proceed from a body constituted according 
 to old custom, and not from an arbitrarily summoned number 
 of partisans. The council of the prelates and barons accord- 
 ingly from that time attained a fixed form ; the number of 
 those summoned became smaller and more constant in its 
 attendance, and the element of the new members who were 
 summoned merely out of personal confidence becomes reduced. 
 Frequent deliberations upon military matters as well as 
 military merits had also caused a number of "bannerets " to 
 be summoned ; but for these new members also, the writs of 
 summons are more and more regularly issued. Although the 
 royal right of personal summons is never given up, yet it 
 silently assumes the shape of a permanent attribute of a 
 permanent body.* The question was simply one of giving 
 legal form to what had been accomplished de facto. 
 
 But this legal form could not be deduced from the mode 
 of enfeoffment by the crown and the writs of summons 
 hitherto in vogue. The summons by writ could not, being 
 a single act of invitation, express or found a permanent right. 
 Just as little could the peerage be attached to fixed and 
 determined estates, for then every lesser Crown vassal might 
 
 * Cf. infra, the note to this chapter.
 
 The Parliament of the Prelates and Barons. 353 
 
 have raised like pretensions, and every purchaser and new 
 acquirer of such an estate would, by virtue of the alien- 
 ability of the English fiefs, have been able to lay claim 
 to a peerage, and the royal right of summons would have 
 been materially restricted. In every respect this was not 
 intended. The development to which the State had attained 
 had gone beyond the idea of the older feudalism, which 
 under Stephen had combined the Constabularia and the 
 Marescalcia Anglise with certain estates. The suppression 
 of manorial jurisdiction over independent estates, and the 
 legal equality of the common law for all classes, rendered such 
 a relapse impossible. The new legal form in which an here- 
 ditary estate of the realm and nobility by birth could attain 
 recognition, was only that of a royal patent or a charter. 
 After the Conquest the sole higher title of nobility, that of the 
 earl, was based upon patent ; from Edward III. downwards, 
 a ducal dignity was also created by patent ; from Eichard II. 
 that of a marquis. The dignities which were conferred after 
 10 Edward III. upon princes of the blood royal, were creations 
 of a purely personal character, as princes of the royal family 
 did not hold any fiefs whatever of the Crown. The precedence 
 of the royal house and the higher dignities could not possibly 
 be disputed by the lower ranks of the peerage. According to 
 the principle of this title of nobility, in 11 Eichard II. John 
 de Beauchamp of Holt, Crown vassal of the knight's fee of 
 Kidderminster, was appointed in consideration of his services 
 and noble descent, Lord Beauchamp, Baron of Kidderminster, 
 in hereditary possession for himself and the heirs male of 
 his body, with all the rights, etc., of a baron. Since during 
 the hundred years preceding this, certain barons, to the ex- 
 clusion of the rest, had been summoned to Parliament, nothing 
 else could be meant by the newly conferred "rights" than 
 primarily such a summons. The title " Baro " being thus 
 recognized as an hereditary title of nobility, its claim like that 
 of other titles of nobility to a summons to Parliament was 
 legally acknowledged. Much as this first creation was opposed 
 to the wishes of the magnates, yet it finally was decisive 
 as to the legal rank of the peerage. The Crown vassals who 
 had been hitherto summoned by writ, came thus into a new 
 position. Now that the newly " baronized " favourites claimed 
 to be an hereditary estate of the realm, a similar claim could 
 not be denied to those older and more illustrious barons who 
 were ordinarily summoned to attend. The style of " baron " 
 became accordingly a legally recognized title of nobility for 
 barons of the realm. There existed in the fifteenth century 
 two modes of summoning to the peerage : (1) by patent, for 
 dukes, marquises, earls, viscounts and patented barons, legally 
 
 2 A
 
 354 
 
 Constitutional History of England. 
 
 recognized as hereditary by patent : and from the middle of 
 Henry VI.'s reign to the present time this method has become 
 more and more the usual one; (2) by writ for unpatented 
 barons "by custom." This title by custom was in the 
 fifteenth century hereditary for the older and more eminent, 
 but not for others. Mere personal summonses became rare 
 even under the house of Lancaster ; under the Tudors, they 
 entirely ceased ; and under Elizabeth the courts interpreted 
 a summons by writ to be hereditary, " by virtue of custom." 
 In harmony with the character of a personal nobility, in 20 
 Henry VI. the right of the peers to be judged by the Upper 
 House was also extended to their wives, and widows; but 
 beyond this it did not go. Thus took place the most difficult 
 birth of any hereditary nobility in the European world ; 
 but it was a most well-earned, and therefore a durable 
 nobility. 
 
 NOTE TO CHAPTER XXIV. The 
 origin of the heritability of the tem- 
 poral peerage is the subject of a long- 
 standing dispute, perpetually renewed, 
 because in the process of building 
 up the State the result took a form 
 decided by the reciprocal and active 
 influence of numerous factors, whilst 
 jurisprudence, heraldry, and the politi- 
 cal and social party views of the State 
 only take cognizance of the individual 
 and external elements of the phenome- 
 non. The Peers' Eeport rightly regards 
 the recognition of a legal peerage as 
 the first step towards the formation of 
 an hereditary national nobility, be- 
 ginning with the judgment against the 
 De Spensers in 15 Edward II., in 
 which, however, none of the bishops 
 took part, a circumstance which was 
 afterwards used, with other reasons, 
 for declaring the sentence null and 
 void (Parry, 85). In the same way, 
 in 4 Edward III. the earls and barons, 
 as peers of the realm, tried Mortimer 
 and his accomplice. At the same 
 time the protest is made that they 
 were not bound to sit in judgment upon 
 " others than their equals." Whilst 
 Magna Charta recognizes a judicium 
 parium only in the sense of a judicial 
 fellowship (in which sense John granted 
 even the Jews & judicium parium), there 
 now springs into life the new claim of 
 the " pares terras ; " that is, of a fellow- 
 ship of rank different from the pares 
 of the county. This is legally recog- 
 nized in 15 Edward III., the decisive 
 act by which the barons of Parliament 
 separate themselves from the other 
 tenentes in capite, as a nobility of the 
 
 realm. This class privilege extends 
 also to the time during which no 
 Parliament is sitting, and later even 
 to women and widows. The Peers' 
 Keport (i. 313, 314) acknowledges the 
 importance of this act to its fullest 
 extent. A further weight is laid by 
 the Keport upon the rules of pre- 
 cedence as laid down in 5 Richard II. 
 c. 4, by which temporal and spiritual 
 lords are legally mentioned as a class 
 distinct from the knights. More deci- 
 sive was the succession of the house of 
 Lancaster, the legal title to which de- 
 pended upon the recognition of this 
 body. Under Henry IV., in the action 
 against the Earl of Huntingdon, a 
 further formal concession was made 
 when the King deputed the Lord High 
 Steward as his representative to hold 
 the Peers court, and thus introduced a 
 piece of the ceremonial of a feudal 
 cour de baronie. Accordingly, the 
 number of the Upper House under the 
 Lancastrians became more uniformly 
 fixed, and owing to its limitation to 
 the most distinguished members, 
 smaller, in harmony with the tendency 
 of a favoured class. In noticing the 
 very small number summoned in this 
 period, we must remember that many 
 were often absent in foreign wars. 
 The martial tendency of this era intro- 
 duced into the writ of summons the 
 titles appertaining to the feudal array. 
 In 51 Edward III., and in 2-5 Richard 
 II., besides the barons, one or more 
 chivalers are spoken of. The style of 
 sieur is more rare. Under Henry VI. 
 a new form of expression begins to 
 be employed. In 3 Henry VI. the
 
 T/ie Parliament of the Prelates and Barons. 355 
 
 nineteen barons summoned to Parlia- 
 ment were described as seventeen chi- 
 valers, one miles, one magister. From 
 6-9 Henry VI. all barons are styled 
 chivalers; in 18 Henry VI. twenty- 
 three chivalers, Baron de Greystock 
 " and others " were summoned ; in 27 
 Henry VI. twenty-five barons chiva- 
 lers, nine barons milites, four barons 
 domini de. This distinction between 
 chivalers, milites, armigeri, and domini, 
 continues until the close of this reign, 
 and under that of Edward IV. The 
 legal and practical equality of the tem- 
 poral barons accordingly did not ex- 
 clude degrees in their military rank ; 
 and it was only by very slow degrees 
 that the title of " baron," like that of 
 earl, marquis, etc., became an estab- 
 lished title of nobility in the modern 
 sense of the term. The title " lord," 
 on the other hand, does not designate 
 a dignity created by the Crown, but 
 is only a title of courtesy for numerous 
 other offices and dignities. In general 
 the concession of a peers' court, accord- 
 ing to the spirit of the royal preroga- 
 tives, does not as yet exclude the 
 arraignment of peers in extraordinary 
 cases by justices with a jury, without 
 the legality of the proceedings being 
 called in question. Against the nobles, 
 too, the continuance of a personal right 
 residing in the King to constitute a 
 court in extraordinary cases was still 
 asserted. This was done most fre- 
 quently in case of the prelates. In 
 25 Edward III. the Primate in the 
 name of the clergy presents a petition 
 to the effect that since the archbishops 
 and bishops hold their temporalities 
 of the King in capite, they are so far 
 "piers de to terre," in the same way 
 as other earls and barons. But this 
 spiritual peerage did not arrive at 
 full maturity, for the clergy laid claim 
 to the far more valuable right of a 
 special ecclesiastical jurisdiction, and 
 claimed the far more extensive privi- 
 lege of clergy, having almost com- 
 pletely severed themselves from the 
 temporal constitution. 
 
 The legal form for the heritability 
 of the temporal peerage is creation by 
 patent or charter, which definitely 
 declares the heritability of the dignity. 
 The " creation " of new barons can only 
 date from such a grant ; for the " sum- 
 mons " by writ to each separate session 
 had not in itself the character of a 
 "dignity" conferred. The arbitrary 
 modern expression which speaks of a 
 creation of peers by writ, is only a 
 
 source of confusion and dispute. But 
 it is remarkable that for a length of 
 time the higher creations by patent 
 were proclaimed " in Parliament." In 
 6 Edward III. the Prince of Wales 
 was appointed Duke of Cornwall, and 
 in like manner six new earls in 6 
 Edward III., " by common assent and 
 council of the prelates, earls, barons, 
 and others of our council in Parlia- 
 ment." The question here was not of 
 the granting of new fiefs, but of per- 
 sonal dignities ; thus we find in 36 
 Edward III. a prince of the blood 
 created Duke of Clarence, though 
 such a dukedom had never existed 
 (Rep., i. 326). Various acts of this 
 sort occur between the years 1337- 
 1414, and the later jurisprudence 
 asserted that such an appointment 
 was to be regarded as proceeding from 
 the " whole legislature," without per- 
 ceiving that if this had been the case 
 the peerage would have become an 
 exclusive guild. But the proclama- 
 tion of solemn acts of the feudal lord 
 in the " cour de baronie " was an old 
 feudal custom, and the so-called " con- 
 sent " to them is a remnant of the 
 acclamation of the bystanders in the 
 popular court, which in no case was 
 a condition of the validity of the trans- 
 action. Hence can be sufficiently ex- 
 plained that it was the creation of the 
 highest dignities which took place in 
 Parliament, and that occasionally other 
 lords were created out of Parliament 
 without mention being made of " con- 
 sent," and that this form subsequently 
 fell again into disuse. Concise discus- 
 sions on this point are contained in 
 Sir Harry Nicolas' "Report on pro- 
 ceedings on the Earldom of Devon" 
 (App. ix.). The later procedure proves 
 that the kings did not allow their 
 right of free appointment to be in 
 any wise limited by a right of Parlia- 
 ment to "consent." The patent of 
 appointment defines at the same time 
 the manner in which the dignity shall 
 descend, which is sometimes framed 
 narrowly, and sometimes extended to 
 embrace all the legal heirs of the 
 body. Upon this are based the varia- 
 tions of heritability which remain to 
 the present day. But after heritability 
 by patent was made the rule, and the 
 number of the new " barons by patent " 
 increased from generation to genera- 
 tion, it was impossible, having regard 
 to the legal equality of the peerage, to 
 put the original stock in a lower posi- 
 tion than the new. The older mem-
 
 356 
 
 Constitutional History of England. 
 
 bers who were continuously summoned 
 could now claim an hereditary right 
 by writ, " by prescription," as was also 
 assumed by the Peers' Keport (i. 342), 
 with the very just remark that the 
 newer creation " by patent " could not 
 possibly have appeared as the better 
 and more advantageous method, if 
 there had ever existed a peerage by 
 virtue of the tenure of certain estates 
 i.e. a barony by tenure (Kep., iii. 
 119). 
 
 It was not until the power of nobility 
 had made progress under the house of 
 Lancaster, that this old feudal con- 
 ception comes so far into prominence 
 that in 11 Henry VI. the earldom of 
 Arundel was directly claimed and re- 
 cognized as a " barony by tenure ; " so 
 that the habit arose of assuming the 
 existence of a mode of tenure " by 
 service of attending the legislative 
 assemblies," which, with all the deduc- 
 tions made therefrom is historically 
 and legally erroneous (Peerage Keport, 
 iv. 269, 270). The seats of the lords 
 in Parliament were based upon custom 
 within this body, and formed so far a 
 special corporate customary law or law 
 of Parliament. In 11 Richard II. the 
 ecclesiastical and temporal peers ac- 
 cordingly claim "as their liberty and 
 franchise that all cases of high nature, 
 concerning the lords of Parliament, 
 should be awarded in Parliament. 
 For that the realm of England never 
 was or shall be ruled by the civil law ; 
 nor was it their intent that a case of 
 BO high a nature as this appeal should 
 be tried by the course, process, or order 
 used in inferior courts," and this claim 
 was willingly acknowledged by the 
 King, but did not succeed in estab- 
 lishing any deviation from the prin- 
 ciples of the common law. Accord- 
 ingly the justices in 7 Henry IV. made 
 a distinction between the right to the 
 name and title of a peerage, and the 
 right to a seat in Parliament. The 
 latter they urged was an exclusive 
 question for the King and the peers; 
 the former, on the contrary (being a 
 private claim of family right) was a 
 common law point, and belonged to 
 the jurisdiction of the ordinary courts 
 of law (Nicolas, " Proceedings," iii. 57, 
 teq.). But as to the peers who were 
 summoned by writ, the practice of Par- 
 liament accepted the important limi- 
 tation, that the writ certainly did not 
 confer an hereditary peerage and an 
 hereditary nobility, where the indi- 
 vidual thus summoned had not really 
 
 taken his seat by virtue of the writ 
 a maxim which was finally established 
 in the case of Edward Nevill, in 8 
 James I. The appointment by patent 
 was in other directions expressly and 
 repeatedly recognized by the tribunals 
 as a personal dignity, apart from any 
 real connection with any definite landed 
 estate, and it was particularly declared 
 by Lord Justice Holt that this barony 
 by patent forms " a title of dignity and 
 parcel of the name." The long list of 
 the later peers was created by patent, 
 and the mere summons by writ has 
 long since fallen into disuse, except 
 for a special case. In 22 Edward I. 
 for the first time the custom is met 
 with of summoning to Parliament the 
 son of a duke, a marquis, or an earl, 
 out of courtesy, even in his father's 
 lifetime, under the title of a second 
 barony, which the father holds either 
 really or nominally ; and this custom 
 has been observed down to the present 
 day. The summoning of the son in 
 addition to the father was only regarded 
 as a personal ad interim measure ; such 
 a peerage is merged in the principal 
 peerage, when the succession arises, 
 and thus creates no hereditary dignity. 
 The still continuing dispute as to 
 whether the English peerage was not 
 originally a barony by tenure, arose 
 from social ideas. All classes of society 
 wish, not to acquire their political 
 rights, but to enjoy them- by virtue of 
 tenure, and by inherent right. Hence 
 the social conception always kept re- 
 curring to the favourite idea of an 
 estate of the realm based merely upon 
 possession ; whilst the English peerage 
 is not built upon the bare possession of 
 privileged estates, but upon personal 
 summons to the council of the realm, 
 summons which only became by cus- 
 tom hereditary in a direct ratio to the 
 customary performances entailed upon 
 the tenants of great estates. The 
 favourite social ideas which are in 
 constant conflict with this fact, even 
 in the Middle Ages, gave rise to a 
 work entitled, " Modus tenendi Par- 
 liamentum" which according to one 
 manuscript is intended to be an ex- 
 position of " How William the Con- 
 queror adopted the mode of summoning 
 Parliament from Edward the Con- 
 fessor." The tenant of thirteen and 
 one-third knights' fees is, according to 
 this document, able to claim a right of 
 summons to Parliament as a baron ; 
 that is, a recognition as belonging to 
 an estate of the realm ; and the tenant
 
 The Parliament of the Prelates and Barons. 357 
 
 of twenty knights' fees as an earl, an 
 opinion which is apparently based upon 
 a mere calculation of the amount of 
 the relevia. Sir Edward Coke seriously 
 regarded this manuscript as a genuine 
 legal authority, and modern investi- 
 gations endeavour to prove a higher 
 antiquity for it by placing it as far 
 back as Edward I. In that case it 
 would only prove that even in those 
 days feudalism was a favourite hobby. 
 Its positive statements were almost 
 in accordance with the condition 
 of the Parliament in the fourteenth 
 century, which the author endeavours 
 as far as possible to refer to custom 
 of time out of mind (Select Char- 
 
 ters, 502). But it is not necessary 
 when examining the many curious des- 
 criptions of the "Modus," which are 
 at variance with documentary legal 
 history, to think exactly of a feudal 
 Pseudo-Isidor ; they are rather similar 
 transformations to those which occur 
 even in our own day in the drawing up 
 of all genealogical trees, and are the 
 conceptions of a herald's office and not 
 of politics and public law. Good re- 
 marks on this point are made by Pauli 
 (" Bilder aus der Englisohen Vorzeit," 
 1858, p. 65, seq.), together with vivid 
 sketches of the procedure in Parlia- 
 ment. 
 
 CHAPTER XXV. 
 
 &frare of tije Commons in tfje parliament Origin 
 of ttje Hofoer 
 
 IN addition to the deliberative, judicial, and taxing assemblies 
 of the prelates and barons, Edward I. repeatedly summoned 
 deputies of the communitates, without formally binding himself 
 to the irregular procedure of 49 Henry III. The warlike 
 King, in want of money, found in the wars which he under- 
 took to increase his island-realm, the most valid reason for 
 summoning his faithful communitates to "meet common 
 dangers with common resources," and to take counsel with 
 the King as to the means of carrying on war, and raising 
 funds. This proceeding is first clearly shown in 10 Edward 
 I. (24th November, 1282), when, after the conquest of Wales, 
 four knights from each shire, and two deputies from different 
 towns were summoned " to hear and to do such things as should 
 be laid before them on the part of the King." Once again, in 
 11 Edward I. (on the 30th September, 1283) there were sum- 
 moned to the parliament at Shrewsbury (in addition to one 
 hundred and ten earls and barons), two knights from each 
 shire, and two burgesses from each of twenty-one towns, to 
 deliberate on the affairs of conquered Wales. In 18 Edward I. 
 (1290), the sheriffs were directed to send two or three knights 
 from each shire "ad consulendum et consentiendvm his quse
 
 358 
 
 Constitutional History of England. 
 
 comites barones et proceres turn duxerint concordanda," but no 
 deputies of the towns. The object was the framing of impor- 
 tant statutes, particularly the statute Quia Emptores as to the 
 alienability of the fiefs. In 23 Edward I. (30th September, 
 1295), in the stress of war, two knights from each shire, and 
 two burgesses from each town were commissioned " ad facien- 
 dum, quod tune de communi consilio ordinabitur ; " upon which 
 a considerable grant of aids was made. After this great 
 parliament at Westminster, at which two hundred deputies 
 from the towns appeared, the summons of counties and 
 boroughs was repeated under the same reign several times in 
 the following years.* 
 
 * This epoch of Edward has been 
 treated of in detail in the Peers' Re- 
 port (i. 171-254). As early as 1 Ed- 
 ward I. we find four knights from each 
 shire, and four deputies of the towns 
 summoned, but only as deputations for 
 taking the oath of allegiance. In 3 
 Edward I. the statute of Westminster 
 1 mentions the earls, barons, and the 
 " communitas" but only in the sense of 
 the aggregate Crown vassallage. The 
 grants of subsidies are made by the 
 prelates and barons alone in the name 
 of the ''''alii de regno." In 11 Edward 
 J. we find the first formal deputation 
 of four knights of the shire, and two 
 men of the towns, who shall appear 
 " endowed with full powers from their 
 .communitas" to hear and to do as shall 
 be referred to them on the part of the 
 King ; thirty-two counties shall send 
 their men to Northampton, five shall 
 send their deputies to York. This is a 
 primitive, as yet irregular formation 
 (Peers' Report, i. 187, 188). To the 
 later parliament at Shrewsbury (11 
 Edw. III.), for the deliberations respect- 
 ing the incorporation of Wales, two 
 knights were summoned from each 
 county, and deputies for London and 
 twenty other cities. The statute of 
 Acton Burnell de mercatoribus was, 
 however, passed by the " King and his 
 counsel ; " the collaboration of the 
 commoners is not discernible in it 
 (Report, i. 189-191). In 12 Edward 
 III. the statutes of Wales and Rut- 
 land appear to have been issued under 
 the sole authority of the King (Report, 
 i. 191, 192). In 13 Edward I. the 
 statute de donis conditionalibus, the 
 statute of Westminster 2, and the con- 
 firmation of Magna Charta were again 
 proclaimed without the assistance of 
 the communx, "habito super hoc cum 
 $uo concilia tractatu" (Report, i. 194). 
 In 16 Edward I. the Chancellor of the 
 
 Exchequer (after the barons have re- 
 fused a subsidy) imposes a tallagium 
 upon the towns and demesnes. In 18 
 Edward I. the sheriffs were ordered 
 to send two or three knights de dis- 
 cretioribus with full powers for them- 
 selves and the communitas comitatus 
 " ad consulendum et consentiendum his 
 quse comites et barones et proceres turn 
 duxerint concordanda;" five counties 
 send three knights, all the rest two 
 knights; towns are not summoned. 
 The object was probably to gain the 
 consent of the vassals of the Crown 
 to the statute Quia Emptores as to the 
 alienability of the fiefs (Report, i. 197- 
 204). In 22 Edward I. two knights 
 de discretioribus were summoned with 
 full powers "ad consulendum et con- 
 sentiendum ; " by a second writ the 
 sheriffs were subsequently ordered to 
 send two additional knights (Report, 
 i. 211). In 23 Edward I., in the time 
 of war and pecuniary embarrassment, 
 the first regular summons takes place 
 (the original writs of which still exist), 
 of two miUtes from each county, and 
 two burgesses from each one of one 
 hundred and fifteen cities and boroughs 
 " ad. faciendum quod tuno de communi 
 consilio ordinabitur." The object is 
 the obtaining of an important subsidy 
 (Report, i. 217, 218). In 24 Edward I. 
 a new grant of subsidy for the counties 
 and towns is made. In 25 Edward I. 
 the statute de tallagio was passed, 
 which will be discussed below. In 27 
 Edward I. the statutes definibus levatis 
 and de falsa moneta were again pro- 
 claimed without the assistance of the 
 communas. In 28 Edward I. occurs 
 the summons of three deputies from 
 the shires to a concilium without the 
 summons of the cities ; in 34 Edward 
 I. a general grant of subsidies in a 
 concilium otherwise irregularly con- 
 voked.
 
 Origin of the Lower House. 359 
 
 No constitutional record had as yet acknowledged the ne- 
 cessity for such a summons ; but what once took place under 
 Henry III., in a time of tumult and on compulsion, was 
 repeated by a wise monarch in recognition of a political 
 necessity. He wished to ask and hear the commons, and 
 have their consent to certain things, so that they might 
 contribute money with the more readiness. Accordingly two 
 kinds of convocations occur 
 
 1. A general summons for the purpose of strengthening the 
 laws, and redressing national grievances, such as had been 
 already attempted at the time of the barons' war, but had not 
 been established. 
 
 2. A special summons for a grant of tax, or deliberation of 
 certain political acts, which had several times taken place in 
 the former reign. 
 
 The summonses were for a long while very discretionary, 
 and the number of the towns varied greatly. The writs of 
 summons are directed to the sheriffs, sometimes immediately 
 to the town magistrates; the deputies receive special in- 
 structions, and on account of money transactions there appear 
 as a rule two from each communitas, in order to exercise 
 mutual control over each other. The King was accustomed 
 to receive their petitions at the commencement of the pro- 
 ceedings ; and at the close to dismiss them with his thanks, 
 and with the request that they would be prepared for any 
 new call. It was not until the last year of Edward I.'s reign 
 that they were mentioned in the preamble to a statute. But 
 from that time forth their importance, like that of the heredi- 
 tary peerage, slowly advances, corresponding to the increasing 
 importance of the local unions for State-service and State- 
 taxation. Because these State rights are connected with 
 corresponding State duties, the Lower House attains a share 
 in the Government, not (like the peerage) by participating 
 in the royal judicial power, but in another direction, viz. : 
 Firstly, in the granting of taxes; secondly, in the central 
 government, by means of petitions and motions ; and thirdly, 
 in legislation. 
 
 I. f)e taxation of t|)e counties an& tofons was at first the 
 unmistakable object of the Lower Houses being convened. 
 Under Edward I. it was no longer doubtful what was meant 
 by "faciendum." 
 
 For two generations it had been an established fact that 
 the ordinary revenue of the King was insufficient to cover the 
 needs of the country, and that it required to be periodically 
 supplemented by taxes (extraordinary revenue). For more 
 than two generations it had been an established fact that 
 these subsidies neither could nor ought to be provided by the
 
 300 Constitutional History of England. 
 
 and scutagia of the Crown vassals alone, but that, in 
 due proportion, the auxilia (tallagia) of the towns, freeholders, 
 and farmers of the demesnes should also contribute a hide- 
 tax (carucaginm the carucata equals a hundred acres), and 
 that personal property should be liable to the extent of a 
 fraction of the total income (one-tenth, one-fifteenth, etc.). 
 
 Since Henry III. began to reign it had been established by 
 numerous grants and refusals, that such universal impositions 
 of taxes should be negotiated in a concilium of the Crown 
 vassals. 
 
 The time had now arrived in which these various groups of 
 taxes necessarily developed into a general land-tax and income- 
 tax, upon the following principles : 
 
 1. The way was prepared for the blending of all the indivi- 
 dual taxes that were raised from landed property, into a 
 general land-tax, by the exaction af a contribution from hides 
 on the occasion of the Saladin tithes, on the ransom of 
 Eichard I., and in the carucagium of 1194 ; and then again 
 several times under Henry III. (for example, in 1220). But 
 it was no easy task to make this method of taxation acceptable 
 to the Crown vassals. 
 
 The scutagia were only intended to serve as the substitution 
 money of a knight's service for campaigns which were really 
 intended; but experience had long since taught that the royal 
 council, in case of need, could feign a campaign ad hoc. 
 
 The auxilia of the feudal vassals were only due in certain 
 cases where the honour and the necessity of the feudal lord 
 were involved; but it was still possible to appeal successfully 
 to the patriotism of the highest council of the Crown, showing 
 that a case of need in the person of the sovereign ought not 
 to be waited for, but that a clear need of the national govern- 
 ment was just as important as the cases of honour and 
 necessity in his person ; regard, however, being had .to the 
 fact that the vassals had already been severely burdened in 
 their heavy relevia and other feudal dues. 
 
 The military fiefs were, according to the feudal register, 
 assessed at like amounts for the aids as for the scutages; 
 whilst the carucagia of the common possessions were at first 
 taxed according to the hides, but afterwards according to the 
 actual produce, by the assessment commissions of the county. 
 It was now certainly in harmony with the usage of the landed 
 interest to leave the rate of the land-tax, when once fixed, as 
 far as possible unchanged, and in the same manner it was 
 incompatible with the honour of the great vassals to allow 
 themselves to be assessed by committees of the townships. 
 But on the whole, the rating according to the actual yield of 
 the hides was more favourable for the knights' fees, and
 
 Origin of the Lower House. 361 
 
 the new assessment became still more acceptable when, having 
 regard to their other feudal dues, the knights' estates were 
 assessed at a somewhat lower rate., and their honour was 
 guarded by the fact that special commissions were appointed 
 with the co-operation of the Crown vassals for the assessment 
 of this tenure. 
 
 It will be shown below that the above views led to the 
 formation of the general land-tax, raised according to ,a 
 uniform rate from the whole county. 
 
 2. A supplementary tax raised from personal property had 
 originated long before in the royal claim to the tallagia of the 
 farmers of demesnes and towns. It was manifestly in the 
 interest of the taxpayers that the amounts should be uni- 
 formly fixed by proceedings in Parliament. Quittances of fee- 
 farm and purchased guarantees were in themselves checks 
 upon the unbounded arbitrariness of the Exchequer. In 
 another direction the civic revenue had increased to such an 
 extent, by trade and industry, that it had become a consider- 
 able source of taxation side by side with landed estates. 
 Undeveloped as were the economic notions of the Middle Ages, 
 it was perceived even in those days that in addition to indirect 
 taxation, a direct taxation that is, a taxing of the total 
 income of individuals was reasonably justified. .On the 
 raising of the Saladin tithes, and at the ransom of Eichard L, 
 this kind of assessment had come into use ; John had extended 
 it in his arbitrary manner to the whole population ; under 
 Henry III. it had been repeatedly applied, though with the 
 exception of the clergy, and probably with a special rating 
 for the Crown vassals. Making such allowances principally 
 in the case of an assessment at a lower rate, regard being 
 had to the other burdens imposed upon the .tenentes in capite, 
 the income-tax was suited to be raised as a usual accompani- 
 ment and supplement of a general land-tax, which it had 
 actually become. 
 
 3. The extension of the land and income-tax to the clergy 
 had been so far .accomplished in the preceding period that 
 the prelates, after some opposition, peaceably paid the aids 
 and scutages imposed upon their great landed possessions, so 
 far as they were held by barony, and in such cases made 
 their grants in common with the temporal vassals of the 
 Crown. On the other hand, they resisted the taxing of their 
 other revenue arising from land held by ordinary tenure, 
 tithes, offerings, and surplice fees, etc., although these had 
 contributed to the Saladin tithes, and apparently also to the 
 ransom of Eichard I. But meanwhile the papal rule had 
 accustomed the English clergy to a heavy taxation of their 
 whole income, and had assessed the rich English ecclesiastics
 
 362 Constitutional History of England. 
 
 on a most profitable scale. The taxation of the smaller 
 livings, which under other circumstances would have been 
 difficult to justify, could in England be justified by the dis- 
 proportionate amount of their income. And now that a 
 general income-tax for the lay population had become the 
 rule, a time came in which, influenced by a higher patriotic 
 feeling, the English clergy, if they were to pay income-tax, 
 would rather pay it to the King than to the Roman bishop. 
 As a matter of fact it was soon seen that they made no serious 
 resistance, on being forced to make payment to the King, so 
 long as the point of honour remained intact, so that the clergy 
 granted their income-tax through special commissioners, under 
 special arrangements, and, as far as possible, according to 
 a fixed rate. 
 
 4. The exaction of the tolls and duties on consumable goods 
 was certainly in some measure limited by the usage of the 
 former period, but was subject to the police control of the King, 
 and to his right as the arbiter of commerce to regulate the 
 ports and markets, which right frequently led to attachments 
 of property and to special transactions with foreign and 
 native merchants ; whilst (as people by degrees became con- 
 vinced) the payments wrung from the dealers fell finally as 
 imposts upon the consumers. It became more and more 
 manifest that the exaction of indirect imposts could not well 
 be separated from the grant of direct taxes. 
 
 Such was the state of the taxation of the country, which 
 under Edward I. led to a stormy crisis, not unlike the course 
 of events accompanying the origin of Magna Charta ; yet with 
 this material difference, that on this occasion of general re- 
 sistance offered to a great monarch by his country, each side 
 acted loyally and with confidence in the loyalty of the other. 
 Edward, suffering under the evil effects of the barons' war 
 and the bad economy of his father, began his reign with 
 financial embarrassments, which, owing to his numerous 
 wars, became much aggravated. The brilliant successes of 
 his rule, however, placed him in the position of being able to 
 appeal successfully to the patriotic feelings of his prelates, 
 barons, and communse, who, as a rule, willingly responded to 
 the greatest calls made upon them. In the year 1294, how- 
 ever, being compelled to extreme exertions by the military 
 events upon the Continent and his obligations towards his 
 allies, he resorted to violent measures, demanding not less 
 than the half of the clerical revenues, after he had already 
 attached the treasure of the Church and the wool of the 
 merchants ; yet after long negotiations he contented himself 
 in the following year with one-tenth from the clergy, one- 
 eleventh from the barons and knights, and one-seventh from
 
 Origin of the Lower IIou.se. 363 
 
 the towns. In the ensuing year, whilst the needs of war 
 became intensified, Pope Boniface VIII., in the bull " Clericis 
 laicos " of 24th February, 1296, intervened with an absolute 
 prohibition to the clergy to pay any tax whatever out of the 
 revenues of the Church ; whereupon Edward answered by 
 confiscating the estates appertaining to the archbishop's see, 
 and declaring the whole of the clergy "outside the pale of 
 his protection " (that is, in outlawry). In this critical situa- 
 tion the great constable and the marshal, in harmony with 
 the feelings of the Crown vassals, refused to do their services 
 for the expedition to Gascony, withdrew after a violent alter- 
 cation, and prepared for armed resistance, Edward, thus 
 hard pressed, again resorted to a distraint upon all the wool 
 of the merchants, to the imposition of heavy payments in 
 kind upon the counties, and then to a levy of all those 
 capable of bearing arms, including both feudal vassals, and 
 all tenants of 20 value. Thus at length the whole of the 
 people, with the city of London at their head, were driven to 
 resistance, with the clergy in outlawry, and the barons in 
 arms ; and again did the two great officers of the feudal 
 army refuse to do their feudal duty, and left the army. Yet 
 ,the King succeeded, by irregular negotiations, in obtaining 
 one-eighth from the barons and knights, one-fifth from the 
 towns, and a proportionate amount from the clergy, with 
 whom conciliatory negotiations were carried on. In this 
 state of affairs, on the 22nd August, 1297, the King was 
 obliged to join his army on the Continent, leaving behind 
 him his son and a council of regency, which latter forthwith 
 found itself compelled to enter into negotiations with the dis- 
 contented earls and a strong armed force. Their demand 
 aimed at the renewal and completion of Magna Charta by a 
 clause concerning the general right of the estates to consent to 
 all grants of taxes. The Prince Regent, with the concurrence 
 of his council, accepted the proposal, and signed it on the 12th 
 October, 1295. In consideration of the internal and external 
 position of the country, Edward I. ratified these proceedings 
 on the 5th November, 1295, in a charter dated from Ghent 
 (Foedera, i. 880), with the magnanimous resolution to keep 
 his royal word, to which, as a fact, he did remain true. 
 This Confirmatio Chartarum, in a French and in a Latin 
 text, contains a fundamental law which may be compared 
 with that of Magna Charta, to the undying glory of the 
 monarchy, in contrast to the events of 1215. The French 
 text (Statutes of the Realm, i. 124, 125), which was incor- 
 porated into the collection of statutes, is the authentic text ; 
 the less perfect Latin text, however, as statutum de tallagio 
 non concedendo, has been repeatedly acknowledged, in the
 
 364 Constitutional History of England. 
 
 judgments of the courts, to be a fundamental law of the 
 realm. (2) 
 
 The right of the estates of the realm, at this time con- 
 sisting of the prelates, barons, and communitates together, to 
 grant taxes, had now become so unconditionally acknowledged 
 that an increase of the tolls and indirect taxes, without the 
 express consent of Parliament, was unequivocally excluded by 
 the framing of the Act in its authentic French text 
 
 " E ausi avoms grante as evesques et as conies et barons et a 
 tote la communaute de la terre, que mes- pur nul busoigne tien 
 manere des aides, mises, ne prises, de notre roiaume ne pren- 
 droms, fors que par commun assent de tut le roiaume, sauf les 
 aunciennes aides et prises dues et custumees." 
 
 The right to grant taxes, which had been continuously con- 
 tended for since Magna Charta (1215), had at length, after the 
 course of a century, been won, and won, moreover, upon the 
 broad basis of the right of those classes who actually paid 
 the State taxes. 
 
 The individual tax-paying groups still for a long while made 
 their grants separately. But from the time of Edward II. 
 the tendency to make the direct taxes correspond in respect 
 of both time and amount became evident. The common 
 interest required a uniform scale. If this was to be attained 
 it was necessary to meet together for deliberation ; the King 
 for his demesnes, the barons for their baronies and mediate 
 towns, the clergy for their estates, the knights for themselves 
 and their tenants, the towns for their communitas* With a 
 judicious perception of their common interest they now gradu- 
 ally join together ; at first the knights and the towns, next 
 the commons and the lords, then all the component elements 
 of Parliament; so that the granting of taxes passes, into a 
 form similar to that of the legislation. In 2 Eichard II. this 
 relation had become so far consolidated that a Magnum Con- 
 
 (2) The events leading to the origin Petition of Eight under Charles I. in 
 
 of the statute 25 Edward I. stat. 1, c. the following form as a statute recog- 
 
 5, 6 (1297), are referred to in detail, nized by legal decisions : 
 
 with the addition of the French and " Nullum tallagium vel auxilium per 
 
 Latin text in Stubbs (Select Charters, nos vel hasredes nostros de castero in 
 
 pp. 487, 498) ; the French text with regno nostro imponatur sen levetur sine 
 
 an English translation is in the Sta- voluntate et assensu communi archiepis- 
 
 tutes of the Bealm (pp. 124, 125). coporum, episcoporum et aliorum prae- 
 
 The Latin text with the heading, latorum, comitum, baronum, militum, 
 
 " Articuli inserti in Magna Charta" is burgensium et aliorum liberorum homi- 
 
 given by Walter de Hemiugburgh (ii. n&m in regno nostro." 
 
 153, 154), with considerable omissions On the demand of the barons this 
 
 in comparison with the French text. transaction was, with repeated con- 
 
 The Latin text is apparently the in- firmations (1299, 1300, 1301), united 
 
 complete draft laid before the regent with Magna Charta, of which that of 
 
 for his ratification, and not confirmed the year 1301 is counted as the thirty- 
 
 by any official document, but which second confirmation, 
 was recognized in the preamble of the
 
 Origin of the Lower House. 365 
 
 cilium of the prelates and barons declares itself incompetent 
 to grant taxes without commoners. In straits for money the 
 later kings certainly endeavour from time to time to evade 
 this acknowledged principle, by having recourse to an older 
 special title, sometimes in their character of owners of 
 demesnes, sometimes as feudal suzerains, and sometimes 
 as wardens of ports. But as lords, knights, and towns hold 
 together in defence of their common interests, the attempts all 
 fail, and at the close of the period the guarantee is repeated 
 by Eichard III. 
 
 To understand the spirit of these grants of taxes the word 
 of Edward I. is of importance which declared that the taxes 
 proposed to be granted were "for the common profit of the 
 realm : " that is, he had renounced a portion of his personal 
 rule in exchange for a national taxation, which caused a 
 number of objections to fall to the ground ; but in the stead 
 of these there arose the claim of the estates to inquire into 
 the purpose and the means. The principle that all measures 
 for imposing taxes with regard to the extraordinary revenue 
 of the King are in the nature of a compact, has never been 
 given up. The money bills have never been brought into 
 the normal form of the statutes ; they never received any 
 formal assent of the King, to whom they were moreover 
 addressed in a formal document, which was subsequently 
 entered upon the Parliamentary records. The last instance 
 of a grant in separate resolutions was in 18 Edward III. In 
 the later protocols both houses were mentioned together, 
 frequently with the remark that a common deliberation had 
 preceded. The old names for the various taxes, auxilia, 
 scutagia, hydagia, tallagia, were for some time mentioned side 
 by side ; the interests of the tax-paying estates came into 
 manifold collisions ; and numerous experiments in taxation 
 were tried.** The landed interest especially from time to 
 time endeavoured to alleviate its heavy burdens of taxation 
 by payments in kind, by poll taxes, taxation according to 
 parishes, and by a progressive income-tax. All these varia- 
 tions, however, are but ephemeral attempts when compared 
 with the established system of English taxation, which 
 blends together at last (1) all land-rates into a general land- 
 tax ; (2) all personal rates into a uniform income-tax ; and 
 (8) all tolls and indirect taxes into a general tariff ; so that 
 the last-named become an appropriate permanent revenue of 
 the Crown, which in later times is guaranteed to the King as 
 a grant for life. 
 
 ** The long series of these variable enumerated in the excursus at the end 
 experiments in taxation, down to the of this chapter, 
 close of the Middle Ages, will be found
 
 366 Constitutional History of England. 
 
 The right of the estates to grant taxes, thus attained, is, 
 indeed, a normal legal creation. The separate rights of the 
 various classes of society amalgamate and become merged in 
 a common and joint consent. Whilst the tax-paying groups 
 in Germany, separated as they are into curias, only hold 
 together in case of necessity, but then fall asunder, the 
 peculiarity of England lies in the serious and permanent 
 amalgamation of the estates. As lords, knights, and towns 
 acknowledge an essentially similar liability to pay taxes, 
 seeing that they have under a uniform pressure learned the 
 necessity of holding together, there remains to them also the 
 consciousness of their common interest. The great landed 
 proprietors enjoy no exemption from taxation, no judicial 
 authority, no right to represent the taxation of their tenants ; 
 therefore it is that England presents to us a phenomenon 
 which was impossible in Germany in the Middle Ages, 
 namely, that of a union of the estates of the realm and the 
 provinces (lords, prelates of the realm, knights, and towns),' 
 into a single parliamentary body. 
 
 II. The participation of the commoners in the current 
 business of the realm developed itself in the form of petitions, 
 common griebances, motions, and impeachments. 
 
 The discussion of the grievances belonged hitherto, by 
 virtue of their judicial and administrative nature, to the royal 
 council and the great council. They were received by the 
 receivers, reported by the triers and auditors, and referred to 
 the competent department. The mode in which the petitions 
 were sorted, distinguishing those to the " Chancellor," to 
 the " Exchequer," and to the " Justices," corresponds to the 
 division of the departments of State. At least nine-tenths 
 of the petitions have reference to the administration of law. 
 The commoners for a long time still acknowledged, both in 
 form and fact, that they represented the interests of the tax- 
 paying classes and the country, whilst the office of guarding 
 the legal and administrative organization of the country 
 belonged in the first place to the prelates and magnates. (2 a ) 
 
 (2 a ) The basis of a long chain of of the State against extravagant claims, 
 
 petitions is formed by Magna Charta continually arose. The number of peti- 
 
 and its executory statutes, which like tions gradually increased in a consider- 
 
 a written constitutional document, be- able degree. In 1 Eichard II., for 
 
 come the basis of definite demands instance, sixty-nine petitions were pre- 
 
 upon the administration of the realm. sented by the communitates, fourteen 
 
 The monarchy acknowledges the obli- by the clergy, nine by the city of 
 
 gation of carrying out Magna Charta, London, etc. A petition granted formed 
 
 which had been so frequently repeated, a precedent, strengthening each sub- 
 
 and that not in the way of royal favour, sequent one. In the most important 
 
 but ex debito justitite. Of course doubts cases redress is made by a new statute, 
 
 as to the interpretation of tliose clauses, which by its exact phraseology was 
 
 with which the council defended with intended to render the recurrence of 
 
 great consistency the necessary rights the same abuse impossible. A good
 
 Origin of the Lower House. 367 
 
 The first appearance of the commoners is accordingly, as 
 recorded in the official language of the time, very modest ; 
 " vos humbles, pauvres communes prient et supplient pour Dieu 
 et en ceuvre de charite," is a usual formula. The King in 
 council is the active government, as regards the petitions ; to 
 him belongs the judicial power, the granting of new legal 
 remedies, the decision of the cases, or their reference to this 
 court or that. In its dealings with the royal government, 
 even the assembly of the prelates and barons in this depart- 
 ment appears only as an extended council. The final publica- 
 tion of the resolutions was the province of the council ; the 
 memoranda of the proceedings were, like other records of 
 the central government, kept by the clerks of the Chancellor. 
 
 But the whole of the Middle Ages is a practical refutation 
 of the theory of an executive power in abstracto. The motions 
 of the commoners and the petitions which they recommended, 
 gain with each ensuing generation a stronger stress, which 
 metamorphosed their right of praying into a virtual right of 
 co -resolution. In the background of this increasing power 
 there lay the importance of the county and borough property 
 and the power of taxing it, the granting of taxes, the per- 
 petual combination of " complaints and contributions," a 
 situation in which it did not very often fail "that a bill was 
 passed in such suitable company." (2 b ) 
 
 instance occurred in 20 Edward III., guaranteed by statute. Still bolder 
 
 when the complaint touching the com- towards a regency, in 2 Richard II., 
 
 missions of array issuing from the they grant supplies under the condition 
 
 Chancery, and that the King employed that the King be pleased to declare in 
 
 the county militia in foreign wars what way the great sums which had 
 
 without the consent of Parliament, been granted for the war had been 
 
 was followed by the stat. 25 Edward expended. The answer ran, that there 
 
 III. stat. 5, c. 8. had never as yet been any account 
 
 (2 b ) The actual compelling power, rendered of subsidies, but that the 
 
 which gives effect to the motions, is demand should be acceded to, without 
 
 the right to grant taxes. So soon as establishing any precedent for the 
 
 the Commons feel their co-ordination future (Parry, 140). Shortly after- 
 
 in the granting of the taxes, they follow wards, the Lower House received 
 
 the example of the barons in attaching notice that the officers of the Exche- 
 
 conditions to the subsidies. As early quer were ready to present their ac- 
 
 as 2 Edward II., a twenty-fifth was counts. At the request of the Commons 
 
 granted under the condition that the nine commissioners were appointed to 
 
 King should redress eight grievances examine into the condition of the 
 
 which were laid before him, which he revenue, and the disposal of the per- 
 
 promised to do. In 18 Edward III. we sonal property of the deceased King 
 
 find similar conditions made, which In 3 Richard II. they grant a subsidy 
 
 were frequently repeated in the course with the request to the King, that he 
 
 of this long reign. In 22 Edward III. may be pleased not to convene another 
 
 three-fifteenths were granted under Parliament to tax his poor Commons 
 
 the condition that for the future no until one year after date ("Parl. 
 
 tallagium, or compulsory loan, or any History," i. 357). With regard to the 
 
 other impost should be levied by the presentation of accounts, Henry IV. 
 
 King's council without the grant and had, in 1406, again returned the proud 
 
 consent of the Commons in Parliament answer : " Kings do not present ac- 
 
 aesembled, and that 4*iis should be counts." But in the very next year
 
 368 Constitutional History of England. 
 
 The Commons first of all demand to be informed of the 
 petitions that flowed in from the most various sources. As 
 early as 3 Edward II. we meet with "receivers of petitions" 
 also in the Commons. After the manner of the Magnum 
 Concilium, in 12 Edward III., there was also conceded them a 
 share in the appointment of the reporters, although they have 
 no right of decision and no participation in the resolutions 
 of the great council. Their altered position became also 
 gradually apparent in the phraseology of the time. The 
 "humbles pauvres communes" are called under Eichard II. 
 " the right wise, right honourable, worthy and discreet Com- 
 mons." The petitioners outside the House now also address 
 their requests to the right honourable House of Commons 
 itself. The custom of presenting private petitions immediately 
 to the Lower House, with the desire that the House be pleased 
 to exert its influence with the King, occurs for the first time 
 under Henry IV. Such petitions are now directed some- 
 times to the King, sometimes to the King in council, some- 
 times to the King, Lords, and Commons, sometimes to the 
 Lords and Commons, and sometimes to the Commons alone, 
 with the request to use their good offices with the King and 
 the council. The answer to the complaints was generally 
 made known at the close of the proceedings, that is, after 
 the votes of money supplies. The attempts to reverse this 
 were at first frustrated, but finally allowed to prevail in cases 
 of pecuniary distress. The right of being informed as to 
 the employment of the moneys previously voted appeared at 
 an early period almost inseparable from votes of money. A 
 claim of this description is met with for the first time at the 
 commencement of Eichard II.'s reign ; it was at once granted, 
 saving all precedents for the future, and was repeated in 
 critical times, without, however, leading to a system of 
 periodical presentation of accounts. (2) 
 
 a presentation of accounts is made to course of the house of Lancaster, the 
 the Lower House, and the victory thus right of the Commons to make con- 
 won was never again formally called ditions for the employment of the sub- 
 in question. sidies, to demand the presentation of 
 (2 C ) The order in which subsidies accounts in cases of a particular kind 
 and grievances were to be taken be- and to summon the officials charged 
 came early a contested point. The with such presentation, to recommend 
 council, in proportion to the urgency retrenchment in certain branches of the 
 of the grievances and pecuniary needs, public expenditure, and to make the 
 from time to time accedes to the de- granting of fresh subsidies dependent 
 mand made upon it to answer the upon the redress of certain national 
 complaints before taking the vote of grievances, was established by many 
 supplies. But acts of grace on the precedents (Hallam, iii. 84). The dis- 
 part of the Crown are never to be made pute as to the antecedent redress of 
 dependent upon such conditions (5 the grievance was in practice settled 
 Richard II.; Parry, 145). Amidst the thus, that the grant of money was as 
 manifold pressures of Henry the far as possible put off until the last day 
 Fourth's reign, and in the further of the session. The custom of giving
 
 Origin of the Lower House. 369 
 
 After the growing influence of the Commons had begun to 
 make itself felt, their advice was frequently asked in the 
 general affairs of the country on the initiative of the Govern- 
 ment itself. This course often meets with resistance on the 
 part of the Commons, who foresee a grant of money as the 
 consequence of their advice. In 28 Edward III. they declare, 
 with reference to a treaty of peace laid before them, that 
 " what was pleasing to the King and the Grantz, would be 
 also agreeable to them." In 43 Edward III., however, they 
 resolve, together with the Lords, that the King may with 
 right and good conscience again adopt the title of King of 
 France ; at the same time the renewal of the war was voted, 
 and a subsidy granted. It was consequently declared, after 
 such reference, " that the war had been undertaken with the 
 general consent of all Lords and Commons of the kingdom 
 in various parliaments," from which the central government 
 did not fail to draw far-reaching deductions. In 7 Richard II. 
 the Commons refuse to declare either for war or peace, but 
 assert after much urging that they were more for peace (Parl. 
 Hist. i. 380). The immediate interference of the Commons 
 with the appointment of the royal ministers, on the other 
 hand, and an immediate direction of the proceedings of the 
 government in the council, is only met with as an expression 
 of revolutionary feelings, and always under the guidance of 
 the parties in the House of Lords. In 5 Edward II. they 
 make common cause with the Lords to secure the somewhat 
 violent appointment of the " ordainers " as a regency-council ; 
 just as in later times they did when a reaction had taken 
 place to obtain their dismissal. In 15 Edward III. an ex- 
 travagant petition was presented, .the aim of which was the 
 appointment of the justices and ministers in Parliament, and 
 which was in the main acceded to, though under protest of 
 the royal council. Meanwhile by proclamation to the sheriffs, 
 the King, after the close of Parliament, declared the statute 
 that had thus been passed to have been wrung from him 
 against his will, and accordingly null and void, and two years 
 later Parliament agreed to its formal repeal. At the close 
 of the reign of Edward III. and on Eichard the Second's 
 accession, the Commons were incited by the personal in- 
 capacity of the King to govern, and by those members of 
 the royal family who were nearest the throne, to actions 
 
 a general name to the grants made for of the coast ; " the remains of the old 
 
 definite purposes dates from the reign Crown lands were reserved for the ex- 
 
 of Richard II. and Henry IV. The penditure of the household; a portion 
 
 larger grants were as a rule described of the poundage and of the subsidy 
 
 "for the defence of the realm"; ton- upon wool for the defence of Calais 
 
 nage and poundage, " for the protection (Stubbs, iii. 264). 
 
 2B
 
 370 Constitutional History of England. 
 
 which exceeded their competence. Under Henry IV. it is 
 the usurpation of the throne which, combined with the speedy 
 unpopularity of the King, produced encroachments ; in 5 
 Henry IV. motions for the removal of certain persons from 
 court ; in 7 Henry IV. motions approving the appointment 
 of certain persons of the royal council, and in consideration 
 thereof granting subsidies ; in 8 Henry IV. thirty-one articles 
 which positively force the council upon the King. But all 
 such encroachments were neutralized under the same reign. 
 Somewhat different was the co-operation of the Commons in 
 the functions of regency during the minority or lunacy of a 
 king, which, owing to the want of an established regency- 
 statute, devolved principally upon the Magnum Concilium, 
 together with a certain co-operation of the Commons, depen- 
 dent upon power, influence, and party feeling, as well as 
 upon the temporary state of affairs at court. For instance, 
 in 50 Edward III. the Commons recommend that the royal 
 council be increased in order to be permanently near the 
 person of the King, who was in his dotage ; which was with 
 certain provisoes agreed to. On the accession of the minor, 
 Eichard II. , the Speaker moved that eight persons be appointed 
 permanent counsellors of the King; then, later, that the 
 Chancellor, the Treasurer, the great officers and counsellors 
 be appointed by the Parliament. We may also regard as 
 special cases the proceedings on the accession of Henry VI., 
 and on the later regency of the Duke of York. Apart from 
 cases of a personal incapacity to govern, an immediate in- 
 fluence of the Commons upon the members and the procedure 
 of the supreme government always worked badly, and was 
 discarded after a short time. 
 
 On the other hand the application of the right of motion 
 to the impeachment of executive officers of the royal council 
 was significant. The Norman administrative law had made 
 the prosecution of crimes, as being a part of the maintenance 
 of the peace, a common duty, and thus formed a communal 
 right of indictment. As the communitas of the county brings 
 its official presentments as public indictments, as after 
 Edward III. the grand inquest became even the regular in- 
 strument of indictment, so the communitates united in Parlia- 
 ment could not with consistency be denied the right of 
 accusation. As communitas regni they begin to make use of 
 this right for the first time in 51 Edward III. (1376), in the 
 manner of a presentment by the county jury. Under Eichard 
 II. the accusations became numerous. The power of such an 
 accuser and the high position of such an accused person natur- 
 ally rendered these cases the subjects of the highest reserved 
 jurisdiction; accordingly they are addressed to the King in the
 
 Origin of the Lower House. 
 
 371 
 
 great council, and thus begins the system of impeachments 
 by the Lower House before the Upper House. (2 d ) Proceed- 
 ing as it did from high quarters, the right of impeachment 
 was, like the right of petitioning, certainly dependent upon 
 the actual balance of power, and was accordingly fluctuating. 
 
 But the advance showed itself most persistent in the 
 transition of the right of petition into a participation in the 
 legislation. 
 
 III. |)e participation of tfa commoners in legislation pro- 
 ceeded from the development of their right of petition. In 
 the cases in which a national grievance could not be redressed 
 by the existing law, and in which accordingly a new ordinance 
 was needed for such redress, the ordinance as a constitutional 
 measure proceeded from the King in council, in more impor- 
 tant cases (after Edward I.) with the consent of the prelates 
 and barons in the great council. A consent of the commoners 
 was not yet spoken of; but the petition itself involved the 
 consent of the Commons, and therewith also their previous 
 sanction to the statute that was to be passed. The growing 
 authority of the Commons gradually gives such a value to 
 this virtual consent, that their actual consent begins to be 
 formally mentioned, as was done on one occasion in the last 
 
 (2 a ) The right of impeachment begins 
 in 51 Edward IIL, in a time of great 
 administrative abuses under a King in 
 his dotage. The great political trials 
 begin as early as Richard II. In 7 
 Richard II. the Commons petition 
 against the Bishop of Norwich and 
 others, who are made defendants. In 
 10 Richard II. they determine on the 
 impeachment of the Lord -Chancellor, 
 the Earl of Suffolk, who was arrested 
 and afterwards condemned. Shortly 
 afterwards the accusation of the judges 
 takes place, which ends with the 
 sentence of death which has been 
 already mentioned. In 21 Richard II. 
 after a re-action has ensued, they im- 
 peach the Archbishop of Canterbury, 
 who was condemned to banishment for 
 high treason. Other lords were put on 
 their trial by the Lords Appellant 
 and were condemned. At first there 
 alternately appeared also an appeal 
 (private accusation), with proof by duel 
 or witnesses, but this was expressly 
 abolished by Henry IV. The accusa- 
 tion by the Lower House in a body, 
 after the fashion of a presentment of 
 the county jury, is apparently the rule. 
 The ensuing reigns of Henry IV. and V., 
 however, give Parliament no cause to 
 put ministers on their trial; Henry IV. 
 
 rather gave way with comparative ease 
 to the urgent complaints, by frequently 
 changing his ministers. But under 
 Henry VI. the accusations are renewed, 
 beginning in Suffolk's case in the form 
 recognized by the legislature, i.e. by a 
 " bill of attainder," which overrides the 
 customary forms of the judicial proce- 
 dure. A participation of the Commons 
 in the judicial business of the council 
 and the great council was not as yet 
 gained. In the tumultuous proceed- 
 ings accompanying the deposition of 
 Richard II., the Commons, as members 
 of the selected commission, co-operated 
 and assented. In 1 Henry IV. they 
 expressly move that they do not wish 
 to be regarded as parties to the sentence 
 which condemned Richard to life-long 
 imprisonment, " as such sentences be- 
 long exclusively to the King and the 
 lords." The answer ran that the Com- 
 mons were petitioners and movers, but 
 that the King and the lords had ever 
 had and should have the right of giving 
 judgment in Parliament ; with the re- 
 servation that in the statutes that were 
 to be passed, or in grants and subsidies, 
 or in grants for the common advantage 
 of the realm, the King wished to have 
 their advice and consent.
 
 372 Constitutional History of England. 
 
 year of the reign of Edward I., and several times under 
 Edward II. These proceedings are repeated, as in the assem- 
 blies of notables under Henry II. and III. The mention of 
 the consent, which is at first only made use of as suitable, 
 becomes gradually a claim within a certain range, which is 
 ever becoming wider. The turning point in this situation is 
 the long and financially embarrassed reign of Edward III., 
 in which there was, from year to year, the continual necessity 
 to summon complete Parliaments, in all not less than seventy 
 times. The Commons, who, until then, had been only occa- 
 sionally mentioned in connection with parliamentary statutes, 
 are from this time seldom omitted nay, their assistance be- 
 came more and more frequently mentioned in the preamble 
 to the statutes. The usual style now distinguishes motion 
 and consent ; the King issues decrees on motion of the Com- 
 mons with the sanction of 'the lords and prelates. The rolls 
 of Parliament prove that in reality the more important 
 statutes emanated from them. From -such an initiative to 
 a right of consent there was now only one step. Edward III., 
 embarrassed for money, and anxious to gain a counterpoise 
 to the great barons, saw himself at the close of his reign 
 forced to a concession couched in general terms. An express 
 recognition of the right follows in 5 Eichard II. 
 
 After 1384 no more special summonses were issued, but 
 only general ones for universal national affairs ; and there 
 now begins (as in the Lords) the usual dating back of the 
 pretensions of the estates. In a petition of 2 Henry V. the 
 Commons declare it to be the "liberty of the Commons that 
 no statute be passed without their consent ; that they have 
 ever been consenting parties as well as petitioners, and 
 accordingly request that for the future nothing be added to 
 or taken away from their petitions." In answer to this, the 
 King assented that they should for the future in no case be 
 bound without their consent (Eot. Parl. 2, Hen. V.). As after 
 Edward II. the dominant influence of the Lords became dis- 
 cernible in the use of the French language in the statutes, so 
 after 5 Henry IV. instances of the use of the English tongue 
 begin to be apparent as symptoms of the growing influence 
 of the Commons. As early as the Parliament of 1362 the 
 use of the English language had been introduced in official 
 transactions. The Parliament of 1365 opened with a speech 
 in English, and was probably also dismissed by Edward III. 
 in English (Stubbs, iii. 478). From the time of Henry VI. it 
 was the custom to bring in the motions at once in the form 
 of a bill. From Henry VII. the right of the Commons to 
 assent was expressed in precisely the same manner as that 
 of the Lords. The preamble of the parliamentary statutes
 
 Origin of the Lower House. 
 
 373 
 
 as it stands at present has, however, been only framed since 
 the time of Queen Mary. (3 a ) 
 
 Hand in hand with the acknowledged right of the Com- 
 mons to assent, there became developed under the long reign 
 of Edward III. the legal conception by which the decrees 
 promulgated with the assent of the estates exercise a force 
 of a stronger and more permanent kind, so that what had 
 been ordained by the King with the consent of the Lords 
 and Commons, could not be altered without the consent of 
 all parties. It is the legal logic of the German law, which 
 here again comes into play. If the JIBS terras can only be 
 altered by ordinance consensu meliorum terras, the common 
 law, altered with this consent, becomes itself again jus terras, 
 which can only be altered consensu meliorum terras; that is 
 now, only with the consent of the Commons. The binding 
 force of the royal right of ordaining is upheld in principle, 
 
 (3 a ) The participation of the Com- 
 mons in legislation became matured 
 in the course of about twa generations. 
 There is no doubt that under Edward 
 I. only a deliberative voice of the com- 
 moners was intended. This was ex- 
 pressed in the form of their summons : 
 " Ad faciendum quod de communi con- 
 cilia ordinabitur" (in 26 Edw. I., 28 
 Edw. I., 7 Edw. II., and for some time 
 afterwards). In 35 Edward I. the 
 statute of Carlisle contained for the 
 first time the following: "Dominus Rex 
 post deliberacionem plenariam et trac- 
 tatum cum Comitibus, Baronibus, pro- 
 ceribus et aliis nobilibus ac eommuni- 
 tatibus regni sui, habitum in prsemissis, 
 de consensu eorum unanimi et concordi 
 ordinavit et statuit" etc. But this 
 assent was probably only mentioned 
 in the sense in which in the earliest 
 Norman period an assent of the bishops 
 and prelates had been spoken of, as a 
 constituent of moral authority for the 
 laud. To the constitutional validity 
 the assensus was just as little essential 
 as was the unanimity in the resolution 
 which has been mentioned. Numerous 
 events of Edward II. 's reign prove that 
 the council of the prelates and barons 
 was still alone regarded as " the legis- 
 lative assembly." Since 5 Edward IL, 
 indeed, the magnates had thrust the 
 participation of the Commons, except 
 in the province of the grant of sub- 
 sidies, comparatively into the back- 
 ground. With the reaction, which 
 arose in 15 Edward II., and ended 
 with the execution of the Earl of Lan- 
 caster, an ordinance was issued in Par- 
 liament, which rejected the exclusive 
 
 pretensions of the barons, and looked 
 like a concession of a share in the 
 legislation, but which in this connec- 
 tion did not as yet contain such : 
 " Revocatio novarum ordinationum anno 
 1223 ; les choses, qui serount a establir, 
 soient treteea accorde~es et establies en 
 parlaments par notre Sr. le Roi et par 
 I' assent des Prelats, Connies et Barouns 
 et la communalte" du roialme." The 
 point of this declaration was directed 
 against the exclusive pretensions of 
 the magnates ; the King is the legis- 
 lative authority with the consent of 
 the rest, but not the Lords as such, as 
 had been the case for a series of years, 
 against the will of the King (Rep. i. 
 282, 283). But the declaration is sig- 
 nificant in so far as it is the first express 
 recognition of Parliament as a legislative 
 assembly. Although it admitted as yet 
 no rule as to the matters in which the 
 consent of the great legislative assem- 
 bly was necessary, yet indirectly it 
 lays emphasis upon the fact that where 
 a consent to royal ordinances was to 
 be given, the Assens of the Commons 
 who have been convened, must be as 
 essential as the assent of the lords. 
 Under Richard II. appears shortly the 
 " assent of the prelates, lords, and 
 commons." Under Henry IV. and V., 
 in addition to the assent of the prelates 
 and barons, the prayer of the Commons 
 is again spoken of. But under Henry 
 V. we meet again with the "consent" 
 of the Commons. In 11 Henry VI. 
 the expression " by the authority of 
 Parliament " first occurs (Stubbs, iii. 
 465).
 
 374 
 
 Constitutional History of England. 
 
 but the application is limited with respect to repealing former 
 statuta. Such an obligation of the King to respect the 
 permanent and fundamental laws of the realm, even though 
 in opposition to his momentary wishes, had been already 
 expressed by Edward the Second's coronation oath. With its 
 more consistent enforcement the strongly conservative feature 
 of the parliamentary constitution came into action, which 
 allowed the royal legislative power to remain intact in its 
 former dignity, but rendered changes in the existing law 
 dependent on conditions of consent which had to be complied 
 with, in the absence of which a mere expression of the 
 royal will was not to be regarded as law. This is so much 
 in harmony with the permanent character of the State, that 
 throughout all the vicissitudes of centuries it remained the 
 leading idea. (3 b ) 
 
 Upon this basis there now becomes fixed a distinction 
 between the notion of statute and ordinance, in the phraseology 
 of the laws, of the courts, and of the science of jurisprudence. 
 From the time when Henry II. and III. had issued important 
 royal ordinances with the consent of the assembly of notables, 
 
 (3 b ) The difference between statute 
 and ordinance depends now purely upon 
 the consent of the three estates. If the 
 Introduction to the Official Collection 
 of Statutes, vol. i. p. 32, says that the 
 distinction between Statuta and Ordi- 
 nances has never been sufficiently ex- 
 plained in principle, this is owing to 
 the fact that the statuta vetera have a 
 repealing force even without the con- 
 sent of the three estates. The Anglo- 
 Norman monarchy had formally wiped 
 out the difference in the same way as 
 the period of absolutism in Germany. 
 But in the main point the precedents 
 of this period admit of no doubt. In 
 14 Edward III. a commission of justices, 
 prelates, barons, twelve knights of the 
 shire, and six burgess-deputies was ap- 
 pointed to hold daily sittings, to decide 
 on the points and clauses in the statutes, 
 " que sont perpetuels" and such " que 
 non sont mye perpetuels." The revoca- 
 bility or irrevocability thus formed the 
 essential mark. In 15 Edward III. 
 grantz et communes petitioned, that 
 petitions which had been granted in 
 pointz a durer (in permanent matters) 
 should be granted by statute, and others 
 by charter or patent (Rot. Parl.,ii. 113, 
 132). In 28 Edward III. they approve 
 an ordinance that had been issued, 
 and wish it to be raised to a perma- 
 nent statute, whereupon it was entered 
 as such upon the statute roll. In 37 
 
 Edward III. the King inquired of both 
 Houses whether they wished the reso- 
 lutions that had been framed to be pro- 
 mulgated in the way of an ordinance 
 or of a statute. They replied : In the 
 way of ordinance, " in order that they 
 might be amended at their pleasure." 
 In 51 Edward III. a petition involv- 
 ing a principle is presented that the 
 statutes which had been made in Par- 
 liament should not be annulled, but 
 with the common consent in Parlia- 
 ment. Answer, " That they could not 
 be otherwise repealed." And further, 
 a petition follows on this, to the effect 
 that no statute or ordinance shall be 
 granted on petition of the clergy, but 
 with the consent of the Commons" The 
 reply was, " Soit ceste matir declare en 
 especial" (Parry, 137). In 1 Henry VI. 
 the Clerk of Parliament was ordered to 
 show certain resolutions to the justices 
 of the two courts, that they should take 
 cognizance of such as were statutes of 
 the realm, and should duly transcribe 
 such (upon the statute-roll) for the 
 later cognizance of the Lords, and for 
 publication. The copies of the other 
 Acts concerning the administration of 
 the lords of the council and of the 
 realm, were to be sent to the clerk of 
 the council, recorded in writing, and 
 registered in the chancery in accord- 
 ance with custom (Nicolas, iii. p. 6).
 
 Origin of the Lower House. 375 
 
 the more solemn statutory enactments had begun to be dis- 
 tinguished from the simple royal decrees as " assizes." The 
 laws of this time are agreements of the King with all three 
 estates of the realm prelates, barons, and commons ; statutes 
 in the sense of laws by mutual accord in the form of par- 
 liamentary enactments. With 1 Edward III. English juris- 
 prudence begins the so-called statuta nova, the co-operation 
 of the three estates becoming from this time more regular. 
 These are cited as parliamentary enactments with con- 
 tinuous capita. The older ordinances of equal validity issued 
 since Magna Charta (statuta vetera) were applied as laws, 
 without inquiring further into the character of the legislating 
 authority. 
 
 Connected herewith is the commencement of the framing 
 of the statutes. Under the system of personal government, 
 single decisions, temporary administrative measures, and per- 
 manent ordinances were all confused together. Frequently 
 petitions that had been granted lay inoperative for years 
 before the enactments affecting the same were carried out or 
 published. As a rule, at the close of the parliamentary sit- 
 tings, the council sorted the confused mass of resolutions, and 
 provided for their being duly carried out. It was specially 
 the business of the justices to select such enactments as, being 
 of a permanent nature, should be entered upon the " roll of 
 the statutes " for the cognizance of the courts. But after the 
 right of the estates to participate in the framing of enact- 
 ments had become established, they further demanded to par- 
 ticipate in this selection. In the Parliament of 14 Edward III. 
 a number of prelates, barons, and counsellors were appointed, 
 together with twelve knights and six burgesses, to formulate 
 such petitions and decrees, and to direct the drafting of such 
 as were suitable for permanent statutes (cf. 15 Edward III. 
 c. 7). (3 C ) 
 
 More than once the King himself, after this time, inquired 
 of the Commons whether certain grants should be carried 
 
 (3 C ) The formal framing of the sta- tinens). When these had passed mutatis 
 
 tu tea still devolves, by virtue of the con- mutandis through both Houses, the 
 
 stitution, upon the continual council. King found himself in a position to 
 
 The actual statuta were down to Henry either accept or reject them without 
 
 the Sixth's reign only issued by the further clauses, which gradually be- 
 
 justices after the close of the sittings, came the rule in the course of Henry 
 
 yet with the proviso that no new addi- the Sixth's reign (Hallam, iii. 92). 
 
 tion should be made to them, which was Private petitions also, which were in- 
 
 on motion of the Commons in 2 Henry V. troduced through the medium of the 
 
 again expressly guaranteed. But the Commons, often passed into the form 
 
 question of the framing diminished of statutes, through the consent of the 
 
 in importance under Henry VI., after Lords and the King, and formed from 
 
 the Commons began to introduce their this time forth "private bills," which 
 
 legislative motions in the form of bills under Henry V. and VI. already fill 
 
 (as petitio formam actus in se con- a portion of the parliamentary rolls.
 
 376 Constitutional History of England. 
 
 out by way of "statute" or of "ordinance," to which they 
 replied, that the latter method was preferable, because the 
 requisite alterations could then be more easily made. Hence, 
 in parliamentary phraseology, a distinction arose between two 
 classes of statutory acts : 
 
 (i.) Ordinances and proclamations, that is, decrees which 
 were issued by the King in the old manner on his own 
 authority; as a rule with the advice of the council, and 
 sometimes also with that of the great council. 
 
 (ii.) Statutes, which having been agreed upon in the new 
 manner with the three estates, were, as being permanent 
 enactments of the realm, entered upon the statute-roll and 
 published. 
 
 In the current business certainly the old confusion con- 
 tinues. Single decisions and resolutions touching adminis- 
 trative measures, motions, petitions, proposals for grants of 
 royal favour, creation of peers, etc., were confusedly entered 
 upon the parliamentary roll, often with mention made of the 
 assent of the House, without being on that account enforce- 
 able as laws, or being published as such. They were rather 
 rendered executory by means of charters, patents, and adminis- 
 trative decrees, or were not enforced or were modified, so that 
 the special character of the enactment was frequently not 
 perceived until later appeals from it were made. In like 
 manner, also, in their legal effect the co-ordinate position 
 of the ordinances remains intact. Eoyal charters and ordin- 
 ances binding upon the magisterial departments exist side 
 by side with the statutes. The civic rights, the municipal 
 summonses to Parliament, and the later charters of incor- 
 poration conferred upon towns are further instances of the 
 continued existence of this decreeing power, which, with regard 
 to its derogatory power, is only restricted by the principle 
 that what has been agreed to by statutes passed by the three 
 estates of the realm can no longer be repealed by simple 
 ordinances. The overstepping of these limits was in aggra- 
 vated cases to be punished by the right of impeachment 
 residing in the parliaments. 
 
 IV. This development of the rights of the Commons 
 led of itself tacitly to a fcibfgfim of tfjt fofjofe -parliament into 
 ttoo ftouscs. 
 
 This was primarily a consequence of the position towards 
 the Crown and of the long-standing ascendency that the 
 House of Lords had attained, at a time when the Commons 
 were only associated with it to a very modest extent. Kesolu- 
 tions touching war and peace and international treaties, the 
 direction or command of the armed forces on sea and land, 
 the right of direct or indirect taxation, the judicial and police
 
 Origin of the Lower House. 377 
 
 power, offices, charters, franchises, and liberties, as well as 
 every magisterial authority, were all centred in the Crown : 
 " omnis libertas Regia est et ad coronam pertinet " (Parl. Writs, 
 i. p. 383). To this royal right the parliamentary right of 
 the magnates to participate had been added. The Crown was 
 obliged to rely upon their willing and energetic co-operation 
 in all matters for which the traditional and fixed revenues of 
 the Crown, or its ordaining power under the clauses of Magna 
 Charta, no longer sufficed. The great council became accord- 
 ingly intimately bound up as a co-factor with the central 
 government in all its powers, acting 
 
 1. As the supreme court of the realm. 
 
 2. As a tax-granting assembly. 
 
 3. As the highest deliberative assembly in the realm. 
 
 4. As a legislative assembly. 
 
 In the first division of these functions, elected deputies 
 could not, according to the traditional judicial constitution, 
 take any part. 
 
 On the other hand, their right of granting taxes was bound 
 up and intimately corresponded with that of the prelates and 
 barons, and became even predominant in the course of this 
 period. 
 
 On that very account their participation in deliberations con- 
 cerning petitions and statutes became more and more essential, 
 as also in certain cases a co-right of resolution touching the 
 business of the supreme administration of the realm. 
 
 The limits which the participation of several hundred elected 
 and changing deputies in the business of State could really 
 attain had to be learnt gradually by experience. In spite of 
 the comparative equality of their legal basis, the two great 
 elements of Parliament were not fitted for voting according 
 to heads and majorities, a proceeding which was certainly not 
 contemplated when the commoners were first convened. Even 
 when a vote was taken on the subsidies, persons who paid 
 taxes in respect of their own demesnes could not be placed 
 upon the same footing with those who recorded their vote as 
 representatives of a county or a municipality. Such a con- 
 fusion of the tax-paying assembly was manifestly against the 
 interests of both parties. There arose further a division in 
 the formal conduct of business, owing to the fact that the 
 Commons in the first generations were only regularly con- 
 vened "ad faciendum quod de communi concilio ordinabitur." 
 After they had made their appearance, in whatever form 
 they might be received, the lords and prelates retired to the 
 council chamber and left the commons alone together. (4 a ) 
 
 (4 a ) The division of Parliament into fact that the council of the prelates 
 two nouses primarily arose from the and barons had, two generations before,
 
 378 Constitutional History of England. 
 
 But those remaining behind found themselves, after the 
 close of a generation, already united in the feeling of their 
 corporate unity. In exercise of the right of granting taxes, 
 the representatives of the shires began to regard themselves 
 as the indispensable complement of the baronage, and as 
 the result of that summons of the lesser barons, which was 
 required by Art. 14 of Magna Charta. Hence they refuse 
 to deliberate on taxation in any other manner than in their 
 collective capacity. The municipal plenipotentiaries follow 
 the same example, and also do not enter individually, but 
 only in a body, upon the deliberation of taxation. Again, 
 the urgent and common tax interest brings together the 
 knights of the shire and the burgesses. The gentz de la com- 
 mune, who had been left behind by the great Council, were 
 obliged to regard themselves as a second corpus, in which the 
 precedence was conceded to the knights of the shire. The 
 right of granting taxes, which had been formally conceded 
 in 25 Edward L, and which was to reside in the tota com- 
 munitas, as well as in the prelates and barons, in like manner 
 led to the elected representatives regarding themselves as a 
 communitas, and desiring to be treated and being treated as 
 such. As early as 8 Edward III. we find a deliberative 
 meeting at which the knights of the shire and the gentz de 
 la commune come together and return a common answer. In 
 13 Edward III. the gentz qui sount cy a Parlement pour la 
 commune give a special answer and one at variance with that 
 of the great council. In 25 Edward III. a deliberation of the 
 Commons in the chapter house is spoken of ; and from that 
 time the assemblies of both parties are manifestly held in 
 different places. Both bodies transact business separately 
 with each other and with the King. In 57 Edward III. the 
 first Speaker of the Commons is mentioned, who delivers 
 the general declarations of the House. Under Kichard II. 
 
 attained constitutional rights by pre- the expression of their opinion or their 
 
 cedents, whilst the commoners had assent. This is the external condition 
 
 now first to acquire such rights for of things which still continues through 
 
 themselves. The writ of summons " ad the century of the three Edwards. In 
 
 faciendum, quod de communi eoncilio or- 83 Edward I. the representatives of 
 
 dinabitur" expresses definitely enough the communx were dismissed at the 
 
 this position of an extraordinary ele- close of the principal proceedings ; the 
 
 ment with a purely deliberative cha- prelates, barons, justices, and others 
 
 racter. So soon as the King had, at were to remain behind and still form 
 
 the commencement of Parliament, re- the proper Parliament. In 3 Edward 
 
 ceived the whole of the members II., for example, enactments in " full 
 
 either personally or by his commis- Parliament " are spoken of, although 
 
 sioner, a division took place, ipso facto, no deputies were summoned to it at 
 
 in that the Magnum Concilium with- all. In 4 Edward II. a " full Parlia- 
 
 drew for deliberation, and the com- ment" is spoken of, after the repre- 
 
 mons remained alone to wait for the sentatives of the shires and towns had 
 
 issue of the previous resolutions, which been dismissed (Peers' Report, i. 267) 
 were then communicated to them for
 
 Origin of the Lower House. 
 
 379 
 
 they exist as a corporate body ; and on his deposition are 
 an acknowledged limb of the estates of the realm as then 
 established. (4 b ) 
 
 After the usurpation of the house of Lancaster the throne 
 was no longer founded upon the right of birth alone, but upon 
 the recognition of Parliament. Hence there comes a time of 
 mutual recognition of the conditions which had arisen from 
 these events, and hence also that of a clearer exposition of its 
 functions, which finds expression in the Parliament of Glou- 
 cester, 9 Henry IV. It was there demanded of the Commons 
 that they should send twelve members to report on the ques- 
 tions propounded and to give an answer. They protested 
 against this on the ground that it was incompatible with their 
 
 day the Commons also appear, and the 
 chief justice, "on the opening of Par- 
 liament," directs his address particu- 
 larly to the Commons. To shorten the 
 period of their labours, he proposes 
 that they shall choose twenty-four or 
 thirty from among their number to go 
 to the King in the Chambre de Peynte, 
 and that the King be pleased to send 
 some of the grantz to them to confer 
 with those who had been thus chosen, 
 whilst the rest should assemble in the 
 Chapter House, Westminster. The 
 Commons refuse this proposal, and, on 
 the contrary, appear in corpore before 
 the Prince and the other grantz on the 
 following day. From this time open- 
 ing speeches before the whole as- 
 sembly occur more frequently; in 36 
 Edward III. for the first time in the 
 English language (Report, i. 327). In 
 39 Edward I. the Commons remain 
 behind after the opening in the Cham- 
 bre de Peynte ; the King retires with 
 the prelates and the lords to the 
 Chambre Blanche, and declares to 
 them specially what had been previously 
 uttered in a general address to them 
 and the Commons. The Commons 
 were then again admitted and specially 
 informed on the same subject, and their 
 counsel requested (Parry, 129). In 50 
 Edward III. the Commons retire to 
 their " accustomed place," the Chapter 
 house (Parry, 134, 135). In 51 Ed- 
 ward III. the first Speaker of the 
 Commons is mentioned, " Sir Thomas 
 Hungerford, avail le paroles pour les 
 Communes d' Engleterre." The Speaker 
 makes general declarations in their 
 name. Yet his title is still varied ; in 
 1 Richard II. " Qui a la parole de par 
 la Communite " ; in 1 Henry IV. " Par- 
 lour et Procuratour ; in 9 Henry VI. 
 " Parlour commune." 
 
 (4 b ) This institution was brought 
 about by the series of precedents under 
 Edward III. In 6 Edward III. it was 
 laid down that the clergy deliberates 
 for itself, the earls, barons, and other 
 grantz for themselves. The ordinances 
 which had been proposed (for the main- 
 tenance of the peace) were approved 
 by the King, the prelates, earls, barons, 
 and other grantz, and by the knights et 
 gentz du commun. But thereupon the 
 Commons and the clergy are dismissed ; 
 the prelates, earls, barons, and gentz du 
 conceil du Eoi remain behind, as the 
 King requires their advice on impor- 
 tant matters (Peers' Report, i. 304). In 
 the following Parliament, 6 Edward III., 
 the prelates deliberate alone; the earls, 
 barons et autres grauntz alone ; and the 
 knights of the shire alone. Then the 
 money grant is taken ; prelates, earls, 
 barons et autres grauutz, and then the 
 knights of the shire et tote la coe (Re- 
 port, App., iv. 411). In 13 Edward III. 
 it was resolved by all auxi dier as 
 grantz come as petitz, that the King 
 was to be supported by a large grant. 
 The commons (les gentz qui sottnt cy a 
 Parlement pur la commune), however, 
 desire first of all to deliberate with the 
 communitates of their counties, as the 
 question was one of a large grant (Re- 
 port, iv. 501). In 17 Edward III. pre- 
 lates, lords and commons first meet 
 together in the Chambre de Peynte; 
 on the following day the prelates and 
 the grantz assemble for deliberation in 
 the Chambre Blanche. The knights 
 and Commons "attend upon the pre- 
 lates and lords " and " give their reply 
 by William Trussel" (Parry, 114). In 
 25 Edward III. the King assembles 
 the grantz in the Chambre de Peynte, 
 and the chief justice explains the rea- 
 son of the summons. On the following
 
 380 Constitutional History of England. 
 
 liberties, and accordingly the famous Declaration of Gloucester 
 was issued (Rot. Parl., 9 Henry IV. p. 610). 
 
 This declaration takes for granted the old position of Parlia- 
 ment as a royal council. It follows that the King may be 
 present in the great council of his prelates and barons ; and 
 this is tacitly reserved, except in the case of money grants, 
 which, proceeding as they do from the free will of Parliament, 
 may not be hampered by the personal presence of the King ; 
 and in this respect the Commons have now acquired a pre- 
 cedence so that the Lords accede to the grant of the Commons 
 and not vice versa. This constitution of the two Houses of 
 Parliament, at length completed, is henceforward also con- 
 spicuous in the style of the proceedings, as in 28 Henry VI., 
 when the Chancellor prorogued the sitting "in the presence 
 of the three estates of the realm." (4 C ) 
 
 The Commons from the first claimed freedom of speech in 
 Parliament, as a matter of course ; that is, they were not to be 
 responsible for their motions and debates to the servants of 
 the Crown pro t&mpore. This was a natural result of their 
 position as members of a supreme council of the Crown, when 
 in private deliberation. When party passion in 20 Richard II. 
 had brought about Harley's condemnation in consequence of 
 an obnoxious motion in the Lower House, his sentence was 
 delayed on the motion of the prelates, and was shortly after- 
 wards declared null and void, as incompatible with the usage 
 of Parliament. (4 d ) 
 
 (4: c ) Evidently the long reign of Ed- realm " (Report, i. 355). From Richard 
 ward III., with its frequent demands II.'s deposition evidently dates the 
 for subsidies and its frequent parlia- idea of regarding the prelates as the 
 ments, had given the commons a sure first estate of the realm, the tern- 
 feeling of their independence (Peers' poral lords as the second estate of the 
 Report, i. 335, 336). They had in realm, the deputies of the counties 
 this half century advanced about as and towns as the third estate, who in 
 much as the prelates and barons in the this form are the representatives of the 
 half century under Henry III. In 5 whole people (Report, i. 357). The 
 Richard II. an order of attendance was altered character is shown also in the 
 issued for the whole Parliament. In 2 longer duration of Parliament, which 
 Henry IV. the procedure already moved in 8 Henry IV., with sundry proroga- 
 within the broad lines of the relation tions, lasts almost a whole year, to the 
 now subsisting between the two Houses great grievance of the country, by 
 (Report, i. 305). In the stat. 7 reason of the daily salaries that had to 
 Henry IV., touching the devolution of be paid. 
 
 the crown upon the eldest son of (4 d ) Hallam writes appropriately on 
 
 Henry IV., the commons were described this point (iii. 102). " No privilege of 
 
 as Procuratores etAttornati of all coun- the Commons can be so fundamental 
 
 ties, towns, and of " the whole people as liberty of speech. This is claimed 
 
 of the kingdom," and the enactment at the opening of every Parliament by 
 
 passed as having been passed "per Uni- their speaker, and could never be in- 
 
 versitates et Communitates " of the fringed without shaking the ramparts 
 
 above-mentioned counties, towns, and of the constitution." Once in the later 
 
 " the whole people of the kingdom, period of Henry the Sixth's reign, a 
 
 legally constituted according to the complaint occurs as to Thomas Young, 
 
 style, manner, and observance of the who was confined in the Tower for a
 
 Origin of the Lower House. 381 
 
 V. Finally, from this process of formation arose also the 
 active and passive rights of election an& qualification for tfje 
 Hofoer f^OUSe. That these rights of election did not become 
 the subject of legal declaration until after the lapse of a cen- 
 tury, is explained by the fact that Edward I. issued the first 
 summonses of his own personal choice, and that the Commons 
 were at first only considered as deliberative estates, as well. as 
 by the fact that the concession of taking their consent to the 
 taxes was only made later, and then intentionally in a vague 
 form including the whole communitas. As, by custom of 
 Parliament, the summons by royal writ was hitherto con- 
 sidered sufficient to cause all the vassals of the Crown to 
 be represented for the purpose of their money grants, it was 
 consequently considered a prerogative appertaining to the 
 King to decree by writ whether and how the counties and 
 towns should be summoned so as to form supplementary 
 tax-granting and deliberative assemblies. The character of 
 the summons indeed changed very slowly. The determining 
 of the bodies to be summoned, and of the active and passive 
 rights of election, runs parallel to the gradual formation 
 of the hereditary estates of the realm; and even after the 
 bodies had become consolidated the prerogative of adding 
 newly created boroughs still remains. 
 
 In the summons of the counties this arbitrary character 
 shows itself also in the varying number of the knights they 
 were to send to Parliament. In 18 Edward I. the sheriffs 
 were ordered to send two or three knights de discretioribus, in 
 which arrangement a voting according to majorities was 
 evidently not as yet contemplated (Eeport, i. 197). But in 
 consequence of the daily allowances to be paid, the smallest 
 representative number of two became early the customary 
 one. In 28 Edward I. " three knights or others " were sum- 
 moned to a discussion touching the carrying out of the 
 provisions of Magna Charta. In 29 Edward I. and 5 Edward 
 II. the order was issued to send the same knights and the 
 same burgesses that had been elected in the last Parliament. 
 As a rule, however, on every prorogation new writs were 
 deemed necessary, and when these new writs were issued, the 
 number of those summoned often again varies from the pre- 
 ceding one (Parry, 70). In 26 Edward III. the order was 
 issued to send only one knight from each shire, because of the 
 harvest. In 11 Eichard II. the sheriffs were commanded to 
 send such loyally disposed knights as were "in debatis moder- 
 
 speech made in the Lower House. This it took place in the disorderly times of 
 
 iucident, too, was disavowed in later the wars of the Hoses that were then 
 
 parliaments, and has been probably beginning, 
 omitted in Hatsell's Precedents, because
 
 382 Constitutional History of England. 
 
 nis magis indifferentes ; " the clause was, however, withdrawn 
 as being " contra formam electionis antiquitus usitatas et contra 
 lihertatem dominorum et communitatum," etc. (Parl. Hist., i. 
 410). From that time the number of knights of the shire 
 was definitely fixed at two, and in like manner the number 
 of counties to be thus represented at thirty-seven. Chester 
 and Durham were still excluded as being Counties Palatine. 
 Lancaster retained its two deputies, as it had already exercised 
 this right before its elevation to a County Palatine. In 15 
 Edward II., on one occasion, twenty-four representatives were 
 summoned for South Wales, and twenty-four for North Wales, 
 but this summons was not repeated under the same reign, 
 and was in later times only occasionally renewed. 
 
 For analogous reasons there was for a long time no mention 
 of a legal limitation of the electoral body. When Edward I. 
 summoned his faithful Commons for the first time, they were 
 existing corporations who, according to law and custom, had 
 certain military, legal, and police services to perform, and 
 had to raise from among themselves certain taxes. It was 
 accordingly understood that these bodies were summoned in 
 the manner in which, in accordance with the constitution, 
 they discharged their public business in their county court, 
 to which the towns had originally to send representatives in 
 the persons of twelve burgesses. The formal election of the 
 municipal members took place in the county assembly, and 
 the report as to the result of the election was included in the 
 same document as that touching the election of the knights 
 of the shire. The election in pleno comitatu included also the 
 boroughs as outlying districts, just as, from time immemorial, 
 had been the case in the Norman administration, where the 
 burghs had been regarded as " special farms " in the comitatus. 
 Probably a deputation of the burgesses from the several cities 
 either notified to the sheriff the election they had made, or 
 they reported to him the election which had previously taken 
 place in the municipal assembly. The latter course was 
 probably the rule in towns with a comparatively organized 
 municipal constitution (Stubbs, iii. 414). The voting in the 
 county assembly was naturally regulated according to the suit 
 of court. The judicial system had certainly from time im- 
 memorial been identical with the civil constitution. The 
 deputing of two knights appeared as one of the many transac- 
 tions which could be undertaken by the county assembly in 
 the same manner as other business; of course "in pleno 
 comitatu de consilio et voluntate eorum de comitatu" as is 
 expressed in a writ of 4 Henry IV. 
 
 The county assembly of those times, however, when com- 
 pared with that of the former period, appeared in a somewhat
 
 Origin of the Lower House. 383 
 
 decayed state. The placita coronas had been taken from it, 
 and now followed another course. Suitors could still act in 
 civil actions ; but the competition of the central courts and 
 the itinerant justices had also encroached upon this jurisdic- 
 tion in civil matters, and confined it to the less important 
 cases. The periodical county courts were accordingly only 
 occupied in general with taxation and military business, and 
 with other matters of an administrative nature, and were 
 therefore only poorly and irregularly attended ; the court was 
 in fact a district assembly, at which, in accordance with other 
 analogies, the knighthood had almost exclusively the power to 
 dictate, and most matters were settled more by acclamation 
 than by a formal vote. The really burdensome suit of court 
 had meanwhile passed to the civil assizes, with their juries 
 composed of knights and forty-shilling freeholders ; in criminal 
 matters such suit had likewise passed to the assizes of the 
 itinerant justices with their presentment and petty juries, 
 formed out of the hundred. After the middle of the fourteenth 
 century there were added to these the grand jury, for the 
 most part composed of landed proprietors ; and the office of 
 justice of the peace was occupied by almost the same class. 
 The suitors, who were now summoned in the character of 
 jurors, were, however, no longer summoned as such to attend 
 the county court. Failing special instructions, the sheriff 
 could give notice to all freeholders, and summon such as were 
 bound, as suitors, to suit of court. He might only summon 
 his special friends, or might give notice to no one in particular, 
 so that the election took place in the presence of a few who 
 were by chance present. "The subject is obscure, and the 
 customs were probably various " (Stubbs, iii. 406 note). 
 However, this obscurity was unmistakably favourable to the 
 influence of the sheriff and the smaller groups of the great 
 landed proprietors. Complaints were made that the elections 
 were often held by only a few magnates, and frequently by 
 the sheriff at will ; sometimes, by reason of riotous proceed- 
 ings, no election was made at all. 
 
 Such an incongruous form of the electoral body might be 
 disregarded, so long as the summons to Parliament appeared 
 as a burdensome duty thrown upon the tax-payers. It was 
 not until the rule of the house of Lancaster that the real 
 situation of affairs attained its final settlement after still 
 more important party struggles ; and at the same time 
 appeared those statutes which were natural at such a juncture. 
 By 7 Henry IV. c. 15 it was ordered that arbitrary and 
 partial action by the sheriffs should cease, and that in the 
 county court next held after receipt of the writ, the election 
 act should be proclaimed in full court, and performed by all
 
 384 Constitutional History of England. 
 
 present, alike by those suitors who had been specially sum- 
 moned, as by all the rest of the suitors who were present on 
 the occasion. The sheriff was to draw up a document, to 
 which should be affixed the seals of all who took part in the 
 election proceedings. The document was then to be attached to 
 the election writ, and sent into Chancery as the official return 
 of the sheriff ; and the Crown was to be thus enabled, by exami- 
 nation of the document, to ascertain what persons took part 
 in the election. In the draft of the bill there was contained a 
 further clause, which provided that in the writs addressed to 
 the sheriffs there should be contained instructions for the 
 making of a proclamation in all market towns to the place of 
 election, before the day fixed for such election. But although 
 sanctioned by the King, and resolved by the council, this clause 
 was omitted from the statute itself hardly by accident ! 
 
 Shortly afterwards, certain provisions were made touching 
 the settlement of election disputes. An Act of Parliament 
 of the year 1410 (11 Henry IV. c. 1) gave the justices of 
 assize the right of scrutinizing every return, fining the sheriffs 
 100 for violation of the law, and declaring the daily allow- 
 ances of such members as had been unduly elected, forfeited. 
 A later statute, 6 Henry VI. c. 4, allowed the sheriff and the 
 knight of the shire, on being accused, an appeal against the 
 decision of the justices of assize. Touching the validity of 
 the election itself, it appears that the King himself " in 
 council," or with the advice of the justices, finally decided 
 the matter. A claim of the Lower House to exercise this right 
 was only expressly raised in the year 1586, and even in 1604 
 the question was acknowledged as a disputed one between the 
 Lower House and Chancery. 
 
 Meanwhile the uncertainty and incongruity of the partici- 
 pation in the county assembly had continued. As a matter 
 of right all liberi tenentes who were, according to the old judi- 
 cial system, summoned as suitors, even though only as supple- 
 mentary suitors, were entitled to take part in the proceedings. 
 As a matter of fact, in ordinary times only a very small 
 number availed themselves of their right. But in case such 
 an election was expressly announced, or made publicly known, 
 or in case a great question of the day was involved, mass 
 meetings were held of the common people, who did not take 
 part in the active service of the jury, but only appeared ad 
 hoc, and who seemed in consequence "unknown" common 
 people to the freeholders who customarily attended. Such 
 was the actual condition of affairs as described in the pre- 
 amble to the statute which was now passed. In consideration 
 whereof, and in conformity with the old principle, that only 
 those who participated in scot and lot should exercise a right
 
 Origin of the Lower House. 385 
 
 of this kind, it was enacted in 8 Henry VI. c. 7 that for the 
 future only freeholders of forty shillings yearly income should 
 take part at elections ; according to 10 Henry VI. c. 2 only 
 forty-shilling freeholders within the county. Thus the right 
 of electing is again traced back to the normal principle of 
 service of court, which had been for more than a generation 
 limited on the same scale as the service on juries. 
 
 The same fundamental idea is also instrumental in deter- 
 mining the qualification of the elected. It was first of all 
 declared in c. 1 of Henry V. to be a matter of course that 
 the elected as well as the electors must both be resident 
 in the county, as it was the county community that was 
 summoned as such to choose its representative. But, as it 
 was a question of an assembly of the meliores terne, it was 
 at first regarded as a matter of course that knights of the 
 shire should be elected, although no difference was observed 
 between Crown and mesne vassals, for the reasons already 
 explained. But since a great number of the tenants of 
 knights' fees were wont to refuse to take up their knighthood, 
 and preferred to pay the dues for default, at an early date 
 esquires (valetti) had to be deemed sufficient for the office, and 
 the sheriffs were accordingly instructed to see that milites sen 
 alii de comitatu were elected (for example, in 1322). As early 
 as the year 1325 there were among the knights of the shire 
 only twenty-seven who had actually received knighthood. Yet 
 the description duos milites gladiis cinctos magis idoneos et 
 discretos continued to be long employed in the writ of election : 
 which designation, however, in practice included the esquires. 
 The actual practice was accordingly declared law, by Henry 
 VI. c. 15, which provided that only notable knights should 
 be chosen, and such notable esquires and gentlemen of the 
 county as could become knights, but no yeomen or men of 
 lower rank than these which is almost in accordance with 
 the qualification for the office of justice of the peace ; indeed, 
 in this period the custodes pads regularly appear as knights 
 of the shire, and vice versa. This principle remained in force 
 for four hundred years. (5 a ) 
 
 (5 a ) With regard to the mode of dates for election ; in 8 Henry VI., 
 electing the knights of the shire, in 9 touching the qualification of the county 
 Edward II. milites electi in plena comi- electors ; in 24 Henry VI., touching 
 tatu are mentioned. In 50 Edward IIL the notables to be elected in the coun- 
 it was enacted that the knights be ties. From that time (1446) the quali- 
 chosen communi assensu of the whole fications of the electors were expressed 
 county. This appears to be the first in the writs in accord with the letter 
 declaration of the kind (Rep., i. 329). of the ordinances. According to the 
 Then follows in 7 Henry IV. an ex- stat. 7 Henry IV., the number of the 
 press ordinance touching the elections electors signing the return is remark- 
 in pleno comitatu; in 1 Henry V., ably small. The number of those 
 touching the residence of the candi- affixing their seals is frequently only 
 
 2 c
 
 386 Constitutional History of England. 
 
 The selection of the municipal elective bodies remained, by 
 reason of the variety of these conditions, perfectly discre- 
 tionary for a whole century. Under Edward I., one hundred 
 and sixty-five cities, towns, and boroughs, were successively 
 summoned to Parliament ; at first, in 1283, twenty-one ; in 
 1295, ninety-four more ; in 1298, twelve more ; in 1299, one 
 more ; in 1300, nine ; in 1302, nine ; in 1304, thirteen ; in 
 1306, six more. This list is drawn up from the parliamentary 
 writs. According to Prynne, however, only one hundred and 
 seven cities and boroughs really chose and sent members to 
 Parliament. In the years from 1382 to 1454 the average 
 number was ninety-nine (Stubbs, iii. 448). No other prin- 
 ciple can be here perceived than that those cities were sum- 
 moned which were liable to pay imposts to the King, and 
 whose tallagia were originally assessed by the sheriff, and in 
 later times by the itinerant justices. To avoid never-ending 
 appeals, the more important were at first selected, and the 
 summons was gradually extended to all towns whose tallagia 
 were of importance to the Exchequer. Those which sent no 
 deputies, after summons had been issued to them, were re- 
 garded as consenting. The chief reason for the very unequal 
 distribution was probably that places which were important 
 for maritime commerce or manufactures were especially pre- 
 ferred. A not unimportant consideration was also the greater 
 or lesser distance from London. The important fact was that 
 the towns, as a portion of the county, were ordinarily assessed 
 only at one-fifteenth, whilst, as boroughs in the narrower 
 sense, they were assessed at one-tenth. Other irregularities 
 in the summons also appear. Occasionally the writ was 
 issued directly to the mayors; but as a rule to the sheriff, 
 who thereupon gave his further orders to the municipal 
 authorities, and in so doing was wont to allow himself various 
 kinds of licence. In 34 Edward I. one or two burgesses 
 were summoned from each town in proportion as the borough 
 was larger or smaller. As late as 26 Edward III. a summons 
 was issued to the mayors and bailiffs of ten towns to send 
 only one deputy because it was harvest time. The Cinque 
 
 twelve, sometimes only six, and in as to the daily allowances show us 
 great counties only twenty-four or how confused the conceptions of re- 
 thirty, seldom more than forty (Stubbs, presentation still were, and how they 
 iii. 408). What and whom the knights became still more confused in conse- 
 of the shire properly represent appears quence of the dispute on this point 
 at first doubtful. The expressions (Rep., i. 336-338). It was only during 
 used about the middle of Edward the the course of the fifteenth century that, 
 Second's reign tend to prove that they owing to a more regular usage of the 
 were regarded as fulfilling the clauso daily allowances, and to the declara- 
 of Magna Charta touching the col- tory statutes, matters became uniformly 
 lective summons of the lesser barons settled. 
 (Rep., i. 277). The endless disputes
 
 Origin of the Lower House. 387 
 
 Ports were, down to Edward III., only occasionally sum- 
 moned, and then for special business (.Report, i. 215). In 
 later times, too, we meet with certain fluctuations in the 
 number of representatives, two, three, or four, especially for 
 London and the Cinque Ports. It was not until the Lower 
 House had become more firmly consolidated as a corporate 
 body with its own Speaker, that the number of the representa- 
 tives became fixed at two, and the number of the regularly 
 summoned and represented towns became more permanent. 
 At the close of Edward the Fourth's reign the number of 
 towns was one hundred and twelve with two members from 
 each. For London, after several fluctuations, four members 
 were summoned after 1878. (5 b ) 
 
 The House of Commons consisted, then, at the close of the 
 middle ages of the following elements : 
 
 1. Seventy-four "knights of the shire," as representatives 
 of the thirty-seven counties, chosen from the knighthood with 
 the concurrence of all land and freeholders bound to serve 
 on juries (forty-shilling freeholders) ; 
 
 2. In addition to these, a.nd as yet somewhat subordinate to 
 them, at least two hundred deputies for more than one hun- 
 dred cities and boroughs, elected in legal theory from among 
 the burgesses paying scot and bearing lot, but in reality only 
 from a smaller committee, namely, the body charged with 
 conducting the civil and police administration. 
 
 VI. 'Srfjt parliament as a toJjok, that is, after the addition 
 to the consilium of the magnates of the gents de la commune, 
 now forms a most extensive and supreme consilium regis, the 
 leading features of which, as the "highest royal council," have 
 been retained in the whole as well as in the several limbs. 
 
 (5 b ) In 40 Edward III., and in later election in the boroughs was left to 
 
 times still more frequently, small towns the very diversely fashioned municipal 
 
 make complaint touching the represen- constitutions (Gneist, Gesch. d. Self- 
 
 tation demanded of them on account Government, 196 seq.). Sketches of 
 
 of the higher assessment and costs the customs of individual boroughs at 
 
 (Report, i. 327). The contributions to the election of their representatives 
 
 the daily allowances of the represen- are given by Stubbs (iii. 416-421). It 
 
 tatives also furnished a matter of dis- follows from what he adduces that the 
 
 pute to the towns. Occasionally, in question was regarded as dependent 
 
 addition to the ordinary parliaments, on local regulations until the following 
 
 there were still more special summon- period, in which the elections and the 
 
 ings of civic deputies, as a rule mer- scrutiny were claimed as being the 
 
 chants, to discuss regulations which right and duty of the House of Com- 
 
 specially concerned the seaports and mons. Of the ordinances affecting the 
 
 trade, as in 10 Edward III., and then rights of election only the stat. 1 
 
 again in 10, 11, 13, 14, 16, 17, 19, 21, Henry V., touching the residence of 
 
 23, 30 Edward III., etc. In 10 Edward the candidates for election, is appli- 
 
 III. this was called a colloquium speciale cable to the boroughs. "Die Ges- 
 
 or personale. But with the advance- chichte des Wahlrechts zum Englis- 
 
 ment of the Commons to the position chen Parlament" (Leipzig, 1885), by 
 
 of enacting assemblies, such special L. Piers, is a clever essay on the whole 
 
 deliberations die out. The method of subject.
 
 388 Constitutional History of England. 
 
 The King remains the caput, principium et fons parliamenti. 
 He alone summons, opens, and closes the parliaments, the 
 sittings of which are, as a rule, of short duration. An ex- 
 ceptional session of one hundred and fifty-nine days occurred 
 in 1406; such a duration had been until then unheard of, 
 and this session was felt as a severe burden in consequence 
 of the daily allowances which had to be paid. For his daily 
 salary, from about 7 Edward II., the county representative 
 received as a rule four shillings, the town representative two 
 shillings. But all deputies were soon regarded not only as 
 representatives of their corporation, but as representatives 
 of the whole country, an idea early founded upon the writ of 
 summons ad faciendum et consentiendum. 
 
 As a fact, this parliamentum represented an organic com- 
 bination of State and society, such as no constitution of 
 estates on the Continent (in consequence of the different 
 development of the feudal system and property interests) 
 could attain to. The firm coherence subsisting between the 
 magnates and the active political government of the realm 
 had been brought about by the formation of the Magnum 
 Concilium; that between the magnates and the knighthood 
 by the established form of the county constitution, especi- 
 ally by the office of justice of the peace and the formation 
 of a military force ; that between the knighthood and the 
 cities by the county constitution, the unity of the judicial 
 system, the suit of court, the tax-paying interests, etc. The 
 single defective point is in the unequal representation of the 
 boroughs, and a want of coherence of the boroughs among 
 themselves, whose spontaneous and varied organization much 
 resembled the urban constitutions of Germany. This caused 
 them to assume a subordinate position in Parliament, in spite 
 of the far greater number of their representatives. 
 
 Yet, in spite of an often actually preponderating power in 
 the Parliament, the formal subservience of the Consilium 
 Regis to the person of the King remains unchanged. Under 
 Eichard II. it happened at a time of tumult that a parlia- 
 ment threatened to dissolve. But a threat that a parliament 
 would convene itself without royal summons, or would sit 
 permanently, or continue in permanent committees, or ap- 
 point and bind by oath its own officials (after the manner 
 of the German provincial estates), never occurs during this 
 period. Very valuable information on a series of details in 
 the parliamentary mode of procedure has lately been fur- 
 nished by the investigation of Stubbs (Constitutional History, 
 vol. iii. c. 20, " Parliamentary Antiquities "). 
 
 NOTE TO CHAPTEB XXV. VZt s'ys'trm of taxation is based upon the 
 fcrfarlcpmrnt 0f tf)C $3arltamttarjj gradual blending of older modes of
 
 Origin of the Lower House. 
 
 389 
 
 taxation. It is accordingly advisable 
 to review ouce again the groups that 
 were made subject to the taxes, with 
 regard to their respective interests in 
 the taxation. A valuable aid for this 
 purpose is furnished by the compila- 
 tion of all parliamentary money grants 
 from Magna Charta down to the close 
 of this period (altogether about one 
 hundred and thirty annual grants) in 
 Stubbs's Constitutional History (vol. 
 iii., Index sub. v. " Taxes "). 
 
 1. The Crown vassals had been for 
 generations accustomed to pay scutages 
 in lieu of personal military service. 
 But if this was to be converted into 
 a periodical tax for national necessi- 
 ties, it might be objected that the old 
 feudal tax indeed placed all the knights' 
 fees on an equality with each other, 
 but that in reality the incomes were 
 different and became ever more un- 
 equal. The scutagia accordingly were 
 not fitted for a normal land-tax. If 
 the scutages under Henry III. had 
 become the ordinary scale for the 
 money grants, this was attributable to 
 the habit of adhering to the old regis- 
 ters. The knights' fees could not per- 
 manently escape a rectification of their 
 valuation, that is, an assessment ac- 
 cording to the present productive value, 
 like all other landed properties. At 
 the commencement of the reign of 
 Edward II. such a valuation was made, 
 and from that time the landowners in 
 the counties were, as a rule, assessed 
 proportionately. But Coke's assertion 
 is not correct that after 8 Edward II. 
 no scutagium at all was any longer 
 raised ; in the course of the fourteenth 
 century this course was adopted several 
 times in cases where the King in per- 
 son took the field, for the last time 
 apparently in 1386. In like manner 
 an aid for knighting a son, and a dowry 
 for a princess on the marriage of a 
 royal daughter, continued to be exacted 
 as a financial resource (Stubbs, ii. 522). 
 
 2. The tax-paying group of the 
 under-vassals and landed freeholders 
 stood in a relation which early brought 
 them into union with the lower Crown 
 vassals. The sub-vassal had origi- 
 nally to pay his auxilia and scutagia 
 to the mesne lord, as often as the latter 
 had to pay his to the King. But it 
 was to the interest of the Crown rather 
 to have the tax paid immediately by 
 the tax-paying subject. From this 
 inclination proceeded the statute Quia 
 Emptores, 18 Edward I., which made 
 every new purchaser of a fief an im- 
 
 mediate vassal, that is, an immediate 
 tax-payer. The whole of Edward the 
 First's reign shows a constant tendency 
 to abolish, in the interest of the Crown, 
 the difference between mediate and im- 
 mediate vassals (Peers' Report, i. 248- 
 250). All freehold estate in free socage 
 was by custom considered liable to the 
 auxilia in cases of honour and necessity 
 (Rep., 322). Accordingly, so soon as 
 the auxilia had been made the basis 
 of taxation, a fairly uniform scale was 
 attained for the whole of the provincial 
 freehold estates. (Remarks as to the 
 other varieties of tenures and aids are 
 contained in the Peers' Report, i. 274, 
 275.) An impediment to a good under- 
 standing on this point appeared after 
 the introduction of parliamentary elec- 
 tions, by the high allowances of the 
 county representatives. The sub-vas- 
 sals could object that they were repre- 
 sented by their mesne lords ; but as 
 that feudal relation more and more 
 recedes, this difficulty is accordingly 
 tacitly though slowly put aside. On 
 the other hand, in the class of the petty 
 freeholders, disputes are continually 
 recurring. The more representation 
 became developed, the more did con- 
 tribution to the allowances become 
 a chief characteristic of the tax-payer 
 who was entitled to the suffrage, and 
 on the other hand the knights of the 
 shire became more assured in their 
 functions as representatives of all per- 
 sons who contribute to their salaries, 
 viz. of (1) the lesser Crown vassals, 
 (2) the sub-vassals, (3) the contribut- 
 ing freeholders of estates not liable to 
 scutage. By the stat. 12 Richard II. 
 c. 12 " custom " was held to decide the 
 question. But so long as these rela- 
 tions were in process of creation, the 
 deputies of the counties took counsel 
 with their constituents (Rep., i. 308, 
 809), which transactions are character- 
 istic of this early period of taxation. 
 In some counties, as in Kent, divergent 
 systems of contribution were maintained 
 (Parry, 76). Still more divergent was 
 the system of the Cinque Ports, which, 
 in analogy to the military vassals, had 
 onerous duties to fulfil in natura, in 
 respect of sea defence, and so were 
 excused from contributing to the aids, 
 and on that account did not send repre- 
 sentatives to Parliament until later. 
 
 3. The boroughs had been from time 
 immemorial subjected to a compara- 
 tively arbitrary taxation. But the re- 
 demption of the tallages by fixed sums, 
 the interest of the Crown in preserving
 
 390 
 
 Constitutional History of England. 
 
 the prosperity of the towns, the actual 
 necessity for an uniform system of tax- 
 ation,all brought the municipal tallagia 
 more and more to the level of the 
 auxilia of the feudal vassals. In a 
 clause of the first draft of Magna 
 Charta this was even expressly laid 
 down, but it was omitted at the first 
 confirmation. The grants of tenths, 
 fifteenths, and other income taxes were 
 originally only made of " good-will." 
 The resolute resistance, especially on 
 the part of London, had aided in 
 bringing about the Confirmatio Char- 
 tarum of 25 Edward I. The Crown, 
 moreover, found that it attained better 
 results through friendly negotiations. 
 Here also there was originally a mixture 
 of old obligation and new grant of 
 " good- will." The Crown saw itself 
 obliged to extend the summons to as 
 many cities and boroughs as possible, 
 for, when an understanding had been 
 arrived at with the more influential 
 towns, the smaller, which were sum- 
 moned with them, yielded. After 
 6 Edward III. the old right to the 
 municipal tallagia appears merged in 
 the general grant of subsidies (Rep., i. 
 305, 306). But whilst this state of 
 things was in a state of transition the 
 representatives of the cities were fre- 
 quently required to take counsel with 
 their constituents, as in 13 Edward III. 
 After the scale of taxation had been 
 determined upon, these consultations 
 fell into disuse. 
 
 4. The old tenants .in ancient demesne 
 found themselves in a state of de- 
 pendence, in which an arbitrary right 
 of the Crown to impose taxes was sure 
 to last longest (Rep., i. 280). But for 
 economical and legal reasons they 
 might not be overburdened, and a 
 parallel state of taxation had likewise 
 to be applied to their case. Their 
 deputies were frequently summoned to 
 Parliament, but they were never al- 
 lowed to meet with the commoners, or 
 to form a part of the Parliament. But 
 the more they were accustomed to be 
 placed as a matter of course upon an 
 equal footing in respect of taxation 
 with the freeholders and burgesses, the 
 more did they blend with the tax-pay- 
 ing communitas, so that as early as 
 15 Edward II. the estates of the realm 
 fulfil functions as representatives of 
 the tenants in ancient demesne (Rep., i. 
 283). However, for some time the habit 
 was adhered to of demanding before a 
 campaign an auxilium of the tenants 
 in ancient demesne, after the campaign 
 
 one-tenth or one-fifteenth, according 
 as the previous auxilium had produced 
 a greater or a smaller sum (Thomas, 
 " Exchequer," p. 35). Also after the 
 Confirmatio Chartarum Edward I. held 
 fast to the principle that the taxation 
 of his tenants in demesne was a manorial 
 privilege, which continued without 
 grant of Parliament. But in the year 
 1332 Edward III. promises that he will 
 not for the future raise any tallagia 
 otherwise than as in the time of his 
 predecessors, and this is apparently the 
 last instance of a raising of the tallagia 
 in the way of a special taxation of 
 talliable tenants (Stubbs, ii. 521). 
 
 5- After the bull of Urban the clergy 
 refused at first all taxation for civil 
 purposes. After Edward I. had broken 
 through this refusal so far as based on 
 principle, a difference was still main- 
 tained between the taxation of their 
 baronies and their other income. For 
 the taxing of the baronies the prelates 
 meet together with the secular lords in 
 the Upper House as representatives of 
 the ecclesiastical military fiefs. For 
 the other temporalities and spirituali- 
 ties (tithes), negotiations were carried 
 on again with the bishops and the 
 representatives of the inferior clergy 
 in convocation, and here also an equiva- 
 lent donum was granted. According 
 to the scale of Pope Nicolas (1291), the 
 income of the clergy, exclusive of the 
 baronies which were to be taxed by 
 the prelates, was computed at not less 
 than 199,311. The produce of a 
 clerical tithe should accordingly have 
 been, in round numbers, 20,000, but it 
 gradually sank down, owing to numer- 
 ous exemptions, especially that of the 
 small livings under ten marks value. 
 Under Henry VII. the amount was 
 computed only at 10,000. 
 
 6. The system of duties and indirect 
 taxation at the close of the former period 
 has been discussed above. The finan- 
 cial administration saw itself still en- 
 titled, by virtue of the royal rights 
 appertaining to harbours, fairs, and 
 markets, to raise duties by special 
 negotiation with the merchants, and to 
 increase the same with the consent of 
 the parties concerned, independently 
 of any proceedings in Parliament. A 
 parliamentary vote of 1275 granted to 
 Edward I. a duty of a half mark per 
 sack of wool, and on every three hun- 
 dred fleeces, and one mark per load 
 of leather as a legal duty. But the 
 necessities of the year 1 303 again led 
 to an arrangement with the foreign
 
 Origin of the Lower House. 
 
 391 
 
 merchants for a duty of forty pence 
 per sack, and one mark per load, at 
 which the evasion of the confirmatio 
 chartarum was excused by saying that 
 the merchants were " foreigners." 
 Under Edward III. (1328) the fixed 
 duties became a portion of the ordinary 
 revenues, and received a fresh sanction 
 in the statute of Staples (1353). The 
 irregularity of the impositions of duties 
 upon the market produce of the country, 
 the so-called staple commodities (wool, 
 lead, tin) was, however, for a long time 
 enhanced by the protective interests of 
 the merchants themselves, who in- 
 demnified themselves for the higher 
 rate of taxation through the interest 
 they had in protection. Arbitrary con- 
 fiscation of wares, such as took place in 
 1294 under Edward I., ended with a 
 release on payment of three or five 
 marks per sack of wool, for which the 
 merchants could indemnify themselves 
 by increasing the price. The system 
 of privileged staple places, which was 
 developed under the three Edwards, is 
 based upon common financial and pro- 
 tective interests, the disadvantages of 
 which for the consumers were only 
 gradually appreciated. Under Edward 
 III. commercial monopolies were alter- 
 nately abolished and reinstated. In the 
 year 1362 an Act of Parliament was 
 passed, making every levy of a duty 
 upon wool dependent upon the express 
 sanction of Parliament. After the year 
 1373 the indirect taxes under the name 
 of " tonnage and poundage " were sub- 
 jected to a regular parliamentary grant. 
 After the recognition of the parlia- 
 mentary right of assent, we still find 
 in the confirmatio chartarum separate 
 grants of taxes by the clergy, the 
 barons, the counties, and frequently 
 also by the tenants of royal demesnes, 
 in proportions which, in the case of the 
 barons and counties, are as a rule esti- 
 mated lower than those of the others, 
 out of regard to the considerable feudal 
 imposts upon the baronies and the 
 knights' fees. This proportional ad- 
 justment leads to the conclusion that 
 with the assistance of the Assessment 
 Commissions uniform taxes upon the 
 returns of landed estates and personal 
 income had been already arrived 
 at. At intervals, besides all this, the 
 king again puts forth fresh demands 
 for equipment of soldiers, performances 
 in kind, and indirect taxes of all sorts, 
 in consideration of which a reduction is 
 often made in the proportions. During 
 those periods in which the monarchy 
 
 was weak, and the influence of the 
 magnates and the great landed pro- 
 prietors in the ascendant, the landed 
 interests tried indirect taxes by way 
 of experiment, and for a time even a 
 poll-tax. The following incidents will 
 perhaps suffice to illustrate the fluctua- 
 tions. In 9 Edward II. the barons 
 and counties vote from every villa in 
 the kingdom one foot soldier, with ac- 
 coutrements and pay (later changed 
 into a tax of one-tenth); for this 
 boroughs and demesnes yield in the 
 next parliament one-fifteenth. In 10 
 Edward III. the grant was supple- 
 mented by a tax of forty shillings for 
 every sack of wool exported by English 
 merchants, 3 when by foreign mer- 
 chants. In 13 Edward III. the earls 
 and barons vote for themselves and for 
 "their peers of the land, who hold 
 by barony," the tenth sheepskin and 
 lamb from their demesnes; the com- 
 mons 2500 sacks of wool. In 14 Ed- 
 ward III. the prelates and the barons 
 vote for themselves and their vassals, 
 the ninth sheepskin and lamb for two 
 years ; the knights of the shire for 
 themselves and the communes de la 
 terre the same ; the boroughs the actual 
 ninth part of their personal property ; 
 those merchants who did not reside 
 in boroughs, and the other inhabitants 
 of forests and wastes one-fifteenth. 
 In 20 Edward III. an auxilium of forty 
 shillings was raised for knighting the 
 Prince of Wales, although the Commons, 
 according to the statute of Westminster 
 only concede twenty shillings, and 
 refuse their consent. In 45 Edward 
 III. both Houses vote a subsidy of 
 50,000, and in like manner the clergy 
 an aid of 50,000. In the case of the 
 first it was presupposed that each 
 parish paid 22. 3d. ; but the number of 
 the parishes had been so grossly mis- 
 calculated that shortly afterwards a 
 small committee was summoned, which 
 granted one hundred and six shillings 
 for each parish, to produce the sum of 
 50,000. In 46 Edward III. the inde- 
 finiteness of the systems was once more 
 shown in the fact that the knights of 
 the shire were dismissed, but the repre- 
 sentatives of the boroughs were retained 
 and prevailed upon to vote certain dues 
 upon wine and goods for another year 
 (Parry, 133). Even at the close of this 
 reign all reservations had not yet been 
 given up. In 51 Edward III. it is 
 declared that it is not the King's will 
 to impose any burden upon the people, 
 without the consent of the Commons,
 
 392 
 
 Constitutional History of England. 
 
 except in cases of great necessity and 
 for the protection of the realm, and 
 where he can do so of right (" Parl. 
 Hist.," i. 328). 
 
 After 8 Edward III. a definite scale 
 of taxation for counties and towus had 
 at least been agreed upon, which sim- 
 plified the business of voting supplies. 
 According to the estimates of this year 
 the tenths and fifteenths for the laity 
 were assessed in round sums, the sepa- 
 rate distribution of which among the 
 individual tax-payers was effected by 
 the committees of assessment. The 
 tendency constantly pursued from that 
 time to pay fixed sums in satisfaction 
 of the claim, leads to a continual re- 
 duction in the tax returns. So early as 
 in the fifteenth century the sum pro- 
 duced by a tenth and fifteenth on the 
 laity was only about 37,000; in the 
 year 1497 the returns had sunk to 
 30,000, and that of the clerical tithe 
 to 10,000 (Stubbs, ii. 550). The 
 Commons shortly afterwards introduce 
 the custom of requesting a deputation 
 of the lords and prelates to deliberate 
 with them. For instance, in 47 Edward 
 III., on their motion, a number of 
 bishops and lords had been appointed. 
 In the full sittings that ensued, they 
 deliver their written consent, beginning 
 with the words, " The Lords and Com- 
 mons of England have in their present 
 Parliament granted the King a fif- 
 teenth," etc. (Rep., App., iv. 659-662). 
 This conference with deputies from 
 the Upper House now became for a 
 time the ordinary form of proceeding. 
 As a rule the Commons themselves 
 appoint those persons who are agree- 
 able to them. In 6 Richard II. they 
 choose three prelates, three earls, and 
 three barons; their petition was granted 
 with the proviso that it was a matter 
 for the King's selection to appoint such 
 bishops and lords as he shall find 
 fitting, or others whom he shall him- 
 self nominate (similarly in 4 Henry 
 IV.). In 7 Richard II. the Commons, 
 " with the consent of the Lords," vote 
 two-fifteenths ; then again in the same 
 year Lords and Commons together a 
 half-tenth and a fifteenth. In 21 
 Richard H. the Lords and Commons 
 made the King a considerable grant, 
 even for his life (which happens once 
 again in 3 Henry V.). In 13 Henry 
 IV. the Commons, with consent of the 
 Bishops and Lords, vote a subsidy 
 wherein the contributions from real 
 estate were plainly described as being 
 a land-tax ("Parl. Hist.," ii. 119). 
 
 Grant of the Commons with the assent 
 of the Bishops and Lords became from 
 this time forth the most usual formula, 
 particularly in 3, 4, 5 Henry V. ; 18 
 Henry VI.; 28 Edward IV. Apart 
 from the phraseology, which still varies, 
 the instability of the system of taxa- 
 tion, and the inexperience of the tax- 
 payers, is shown in numerous experi- 
 ments in -taxation. The curious grant 
 of a uniform sum from each parish in 
 45 Edward III., on which occasion 
 Parliament had assumed five times as 
 many parishes as in reality existed, 
 has been already mentioned. In 51 
 Edward III. the Lords and Commons 
 grant a poll-tax of fourpence upon all 
 male and female persons above fourteen 
 years of age, except beggars, with the 
 excuse that they could not at this time 
 grant more. This mistake of the upper 
 classes was repeated early during the 
 minority of Richard II., and led to 
 the violent uprising of the labouring 
 classes, after which the unfortunate 
 poll-tax does not again occur. In 5 
 Richard II. a subsidy on the wool was 
 again granted. 
 
 Under the house of Lancaster the 
 contributions from real estate and from 
 personalty still more regularly dimin- 
 ished. Under Henry VI., however, the 
 influence of the regency, and later of 
 the absolute impotence of the monarchy 
 was again visible in new experiments 
 in new taxation. In the Parliament 
 of 1427-1428 a new and more compli- 
 cated method of taxation appears ; all 
 parishes whose churches were rated 
 at more than ten marks were to pay 
 13s. 4d. ; smaller parishes 6s. 8d., the 
 smallest parishes 2s., payable by the 
 members of the community ; from each 
 knight's fee 6s. 8d. In the year 1435 
 a progressive income-tax was intro- 
 duced : incomes of a hundred shillings 
 pay 2s. 6d., and 6d. additional for every 
 pound up to 100 ; those of more than 
 100 pay 8d. in every pound ; above 
 400, 2s. in the pound. Analogous 
 grants were made by the clergy in con- 
 vocation. In the year 1439 the grant 
 is made of one-fifteenth and three- 
 twentieths, supplemented by a tax 
 upon foreigners, 16d. upon house- 
 holders, and Qd. poll-tax upon indi- 
 viduals. Under the house of Lancaster 
 the ordinary revenue of the King had 
 much diminished, in consequence of 
 the stricter conformity of the admini- 
 stration with the law, and the numer- 
 ous limitations of the Crown in its 
 financial and other profitable rights
 
 Origin of the Lower House. 
 
 393 
 
 and arbitrary powers ; and the Duchy 
 of Lancaster, which had been made a 
 royal entailed estate, brought only a 
 small surplus, in consequence of nu- 
 merous permanent burdens laid upon 
 it ; whilst the wars in France and in 
 later times the defence of the remnants 
 of the English possessions in France, 
 caused the Crown considerable ex- 
 pense. According to Lord Cromwell's 
 statement of 1433 the ordinary revenue 
 still available had, owing to fixed bur- 
 dens, become reduced from 23,000 to 
 to 8990. The Duchy of Lancaster 
 brought in only 2108 nett ; the in- 
 direct taxes upon wine and other com- 
 modities brought in 26,966. The 
 expenses of the garrison of Calais, on 
 the other hand, alone exceed the ordi- 
 nary revenue of the Crown (Stubbs, 
 iii. 117). To this period belong also 
 precedents of an authorization to con- 
 tract loans. With the assistance of his 
 council the King was empowered to 
 borrow money by warrants under his 
 privy seal. Frequently, too, the mem- 
 bers of the council advanced money 
 from their own resources, or gave per- 
 sonal security to the merchants who 
 lent it. At difficult junctures they 
 were empowered by Parliament to give 
 security for great loans, by pledging 
 the taxes which were due. After 1421 
 the sum for which the council should 
 be authorized to give security was 
 generally limited, the amount being 
 from 20,000 to 100,000. After the 
 death of Cardinal Beaufort these trans- 
 actions disappear. 
 
 During the wars of the Roses finan- 
 cial embarrassments, as may be well 
 understood, had become permanent. 
 Under Edward IV. new extraordinary 
 imposts were accordingly introduced. 
 The Parliament of 1472 granted an 
 army of 13,000 archers, to be paid at 
 the rate of sixpence a-day for a year. 
 The Commons and Lords, in two sepa- 
 rate documents, further resolved that 
 a new and full tenth should be levied 
 upon all property and income to defray 
 the expenses. In the following year, 
 however, this was found too difficult 
 to collect, and so a fifteenth wa3 voted 
 after the old fashion. In the same 
 year begin exactions by way of berie^ 
 volences (forced gifts from private in- 
 dividuals), which soon became odious. 
 In the following year (1474) the grant 
 appears in a round sum. 
 
 It was not until the royal power had 
 become completely restored under the 
 dynasty of the Tudors that the system 
 of direct taxes, as land-tax and income- 
 tax, was completed, put into regular 
 execution, and permanently established. 
 Under Henry VIII. the grant in 1514 
 rises to 160,000, according to a care- 
 fully graduated scale from land, per- 
 sonal property and income. Under 
 Mary the expressions subsidies, in- 
 comes, tenths, and fifteenths acquire 
 definite technical meaning, the subsidy 
 as a land-tax of twenty per cent. (4. 
 in the ), the tenths and fifteenths 
 as an income-tax of thirteen one-third 
 per cent. (2s. 8d. in the ) (Stubbs, iii. 
 355).
 
 394 Constitutional History of England. 
 
 CHAPTER XXVI. 
 OT|)urc!) at tfje <2DIose of tf)* 
 
 THE thorough remodelling of the State in this period is con- 
 fined to temporal interests, and to the legal relations subsist- 
 ing between the laity and the royal power. The Church 
 remains unchanged in the face of this metamorphosis, and 
 includes all classes in a constitution of which the form differs 
 greatly from the spirit. At the close of the preceding period 
 the power of the Roman Catholic Church had reached its 
 zenith, at which point it had become a compact political 
 system. 
 
 A sovereign Head of the Church confronts the temporal 
 King, and in England claims even a feudal suzerainty with a 
 feudal tribute to be paid annually. 
 
 A spiritual parliament, with an upper and a lower house 
 (convocation), confronts the secular parliament. 
 
 An exclusive ecclesiastical legislation, grant of taxation, 
 and jurisdiction stand firmly opposed to that of the temporal 
 power. This jurisdiction, in the ecclesiastical sense, embraces 
 a system analogous to that of our modern administration, 
 executed by professional officials with a bureaucratic consti- 
 tution. Moreover, the most important temporal offices of 
 Lord Chancellor, Master of the Rolls, Keeper of the Privy 
 Seal, and not unfrequently that of the Lord Treasurer, were 
 still in the hands of clerics. 
 
 Both political systems now rank side by side, each to a 
 great extent requiring the help of the other, each supplying 
 the other's deficiencies, both embracing all classes of the 
 population. The great wealth of the Church (1) at first 
 
 (1) " The clergy were, as a body, convocations ; they had on their great 
 very rich ; the proportion of direct estates jurisdictions and franchises 
 taxation borne by them amounted to equal to those of the great nobles, and 
 nearly a third of the whole direct in the spiritual courts a whole system 
 taxation of the nation ; they possessed of judicature parallel to the temporal 
 in the constitution of Parliament and judicature but more inquisitorial, 
 convocation a great amount of political more deeply penetrating and taking 
 power, a majority in the House of cognizance of every act and every re- 
 Lords, a recognized organization as an lation of men's lives. They had great 
 estate of Parliament, two taxing legis- immunities also, and a corporate co- 
 lating assemblies in the provincial htsion which gave strength and dignity
 
 The Church at the Close of the Middle Ages. 395 
 
 attracted all classes of the community to her service. The 
 number of the clerici was accordingly extremely large ; the 
 lists of ordinations in the greater dioceses often show hundreds 
 of persons who in the course of a single year had received 
 the higher consecration. Almost every family had relations 
 among the lower clergy, the country squire counted kinsmen 
 among the canons of the greater foundations, whilst the 
 higher nobles and officers of State strove to gain episcopal 
 sees for their sons who were dedicated to the clerical profes- 
 sion ; even the bondsman class found a place open to it, in 
 spite of legal prohibition. Among the lower classes, the in- 
 fluence of the Church became even more extensive, now 
 that the orders of mendicant friars had entered into bonds 
 of sympathy with the poor, who, in very many matters, found 
 reason for being discontented with the laws and measures of 
 taxation established by the wealthy. The bureaucracy of the 
 Church, with its standing army of monks and spiritual orders, 
 had developed itself into a steadily working system of domi- 
 nion over the human mind. No temporal rule could, for any 
 length of time, maintain itself in hostility to such a power as 
 this, which swayed the mas&es, and continually admonished 
 them to obey the divinely appointed ruler. As the Church, 
 on the one hand, extended her consecration to the monarchy, 
 so, on the other hand, she guaranteed the rights of the estates, 
 and from a like interest as the nobility, held fast to Magna 
 Charta, the confirmation of which instrument was repeatedly 
 brought about by the higher ecclesiastics. Their judgment 
 it is which makes constitutional oaths binding, and theirs 
 also which in turn releases from them. (2) 
 
 This mutual relation also finds expression in the parlia- 
 mentary .constitution. In it the estate of the prelates did 
 not, as on the Continent, appear as a mere representation 
 of manorial rights, but as summoned by royal writ to the 
 highest deliberative, judicial and tax-imposing assembly. 
 But the royal -right of summons had a different significance 
 for the ecclesiastics and for the barons. The summons of 
 
 to the meanest member of the class that in the preceding. In former times 
 
 (Stubbs, iii. 365, 366). The estates of the clergy simply preached obedience 
 
 the bishops and monasteries extended towards the King, but the clergy was 
 
 into almost all the sub-districts of the now always ready to quote instances 
 
 country. They were well managed ; of " Kings like Saul and Herod " in 
 
 the Cistercians especially were re- the disputes between Church and 
 
 garded as good farmers and sheep State on matters of jurisdiction ; and 
 
 breeders. The Church appeared every- it was no easy task to determine " what 
 
 where to the country people as a gene- was to be rendered to God and what 
 
 rous landlord. (See Stubbs, iii. chap. to Caesar," according to the preachers' 
 
 xix., touching the whole relations be- ideas. There had unmistakably come 
 
 tween Church and State.) about a cooler relation to the monarchy 
 
 (2) The state of things in this period on this bide (Stubbs, iii. 513). 
 was certainly somewhat different to
 
 30 G Constitutional History of England. 
 
 the bishops resulted naturally from their constitutional posi- 
 tion as pillars of the ecclesiastical power, and elevation to the 
 bench of prelates was after King John's reign no mere grant 
 of favour. The clerical caste for a long time nominated its 
 rulers by free canonical election, and made the grant of the 
 temporalities a mere confirmation on the part of the King. 
 The caste spirit created by the celibacy of the clergy 
 kept the prelates more closely united than the secular 
 magnates. The privilege of clergy made them personally 
 much more independent than the temporal lords. It was 
 accordingly an advantage of this administration of the realm, 
 that the benches of the bishops and the temporal lords could 
 not, at all events, form two independent chambers, as was 
 the case on the Continent, where the landed interests had 
 become the basis of the estates of the realm. The claims 
 advanced by the bishops were moderated by the voices of the 
 barons, and the martial insolence of the great temporal lords 
 kept in check by the votes of the spiritual magnates, who, 
 according to the parliamentary writs, even formed the 
 majority, though they did not always appear in such num- 
 bers. Most beneficial of all for both parties was the customary 
 co-operation of the prelates and barons in the great council, 
 in conducting the responsible business of the central govern- 
 ment. 
 
 In accordance with his experiments at a political govern- 
 ment on a great scale, the aim of Edward I. is directed 
 towards summoning the chapters and the parsons of parishes 
 to Parliament in addition to the prelates, in order to have 
 the ecclesiastical middle class duly represented, and to bring 
 about an understanding with the gentz de la commune. The 
 immediate occasion for this was certainly given by the system 
 of taxation ; but the consistent enforcement of this measure 
 and the systematic opposition of the clergy to it, proves that 
 the royal council recognized in it a politically important 
 measure. At first, to combat the papal prohibition of taxes, 
 Edward I. was desirous of giving the inferior clergy a position 
 analogous to that of the Commons, with a view to arousing 
 and keeping alive in them a feeling for the common weal. 
 Consequently an instruction, bearing the introductory words 
 Prsemunientes, (3) was addressed to all the bishops, enjoining 
 
 (3) Since 23 Edward I. the writ issued communiter obvietur. . . . Prsamunientes 
 
 to the Archbishop of Canterbury runs Priorem et Capitulum EcclesisR vestrx, 
 
 as follows : " Sicut Lex justissima, pro- Archidiaconum, totumque Clerum vestr. 
 
 vida drcumspectione sacrorum princi- Diocs. facientes, quod iidem Prior et 
 
 pum stabilita, hortatur et statuit, ut quod Archidiaconus in propriis personis suis, 
 
 omnes tangit, ab omnibus approbetur, et dictum Capitulum per unum, idemque 
 
 sic et innuit evidenter, ut communibus Clerus per Procuratores duos idoneos, 
 
 periculis pro (per?) remedia proviso, plenam et sufficientem potestatem ab
 
 The Church at the Close of the Middle Ages. 397 
 
 them to summon to the national assembly the deans and arch- 
 deacons in person, to represent each chapter by one, and the 
 clergy of each diocese by two deputies, who were to increase 
 the Parliament by about one hundred ecclesiastical members, 
 and deliberate in the same manner as knights and citizens. 
 But there immediately arose a violent opposition against this 
 method of voting the taxes jointly with the laity, and against 
 this kind of summons. In 7 Edward II. the clergy declares 
 it not to be usual that they should be summoned under the 
 authority of the King, and that they ought not legally to be 
 so summoned. For the next Parliament a second missive was 
 for the first time addressed to the Archbishop of Canterbury, 
 with a repetition of the order to appear. Still the clergy 
 in 8 Edward II. protest even against this indirect citation. 
 They describe the Parliament as a curia singularis begun and 
 continued in the King's camera, and to such a curia the 
 clergy could not be summoned without a manifest infringe- 
 ment of their privileges. They make at this time their grant 
 of subsidies dependent upon a previous papal mandate of 
 authorization, such as in 13 Edward II. had allowed the 
 grant of a tenth for a year (" Parl. Hist.," i. 159, 177). In 
 15 Edward II., in two convocations, they vote once again an 
 aid " in obedience to the authority of the apostolic chair." 
 In 16 Edward II. every further money grant without this 
 
 ipsis Capitulo et clero habentes, una the parliaments. After 1340 the Crown 
 
 vobiscum intersint, modis omnibus, tune was content with the practice, that the 
 
 ibidem ad tractandum, ordinandum et clerical tithes should be voted in the 
 
 faciendum, nobiscum et cum caeteris provincial synods, and henceforward 
 
 Prelatis et Proceribus, et aliis Incolis laid less weight upon the appearance 
 
 regni nostri, qualiter sit hujusmodi peri- of the lower clergy in Parliament 
 
 cults et excogitatis malitiis obviandum." (Stubbs, iii. 320). With regard to the 
 
 The pattern for this formula is met papal prohibition of the taxation of a 
 
 with as early as 22 Edward I. in the clerical income a fiction was resorted 
 
 writs of summons to a convocation to ; namely, that the clerical grants 
 
 (" Parl. Writs," i. 19). The clergy in were made of " free will," and since 
 
 this assembly assesses itself on account the clergy besides shared the higher 
 
 of its tenures in frankalmoign, on ac- rate with the cities (generally one-tenth 
 
 count of its glebe lands, and its per- where the counties pay one-fifteenth), 
 
 eonal property. The prelates also in this taxation gave less reason for irrita- 
 
 the spiritual assembly vote the amount tion. The convocations as a rule de- 
 
 of the tax only upon their spirituali- termined likewise to pay the rate voted 
 
 ties, whilst their feudal estates grant by the cities, without further dispute, 
 
 the common aids together with the About the same time the oppression of 
 
 barons in Parliament (Hep., i. 214). the papal taxation ceased, which had 
 
 The clause Praemunientee was retained been severely felt in the century of 
 
 in the same sense after 23 Edward I. the three Edwards. After the popes 
 
 without material alteration, yet not had taken up their residence at Avig- 
 
 always added. But from the first the non, this pressure became lighter, and 
 
 clergy showed a strong resistance to Richard II. was enabled to directly 
 
 the royal summons, and therefore in the forbid the exaction of a papal impost 
 
 years 1314-1340 a separate circular was (1389). The feudal tribute promised 
 
 addressed to both archbishops, urging by John had been already abolished 
 
 them on their part to provide for the by resolution of Parliament in the 
 
 appearance of the clerical profession in year 1366.
 
 Constitutional History of England. 
 
 authority was plainly refused (Peers' Report, i. 284). In 17 
 Edward II., the King finds himself obliged to entreat the two 
 archbishops to convene a convocation. In the course of the 
 dispute, however, this opposition was overcome with the 
 assistance of Parliament, after the Crown had agreed, in 
 addition to the writ of summons addressed to the bishops, to 
 issue another and special summons to the archbishop. Only 
 the latter, as being an ecclesiastical authority, was obeyed, 
 and as being a summons to a " convocation " and not to 
 Parliament whereby an appointment of time and place was 
 very often made differing from those contained in the royal 
 writ. The representatives of the lower clergy only appear as 
 members of their spiritual synod, and not as members of 
 Parliament. With this rule the writ of summons (Prsemu- 
 nientes) became after Edward III. the regular formula. (4) 
 
 In these proceedings lay a grand attempt to effect the union 
 of all ranks, but also a proof of the truth that no assembly 
 of estates can have any foundation without legal equality. 
 In the Upper House that equality existed for prelates and 
 barons by feudal tenure and royal summons, and above all by 
 their customary co-operation in the central government, they 
 accordingly cleave together ; the inferior clergy, knights, and 
 citizens, however, do not. The more firmly knights and citizens 
 as commoners are welded together in the Lower House, the 
 more do the aspiring middle classes appear to become es- 
 tranged from the clergy. A blending of the temporal middle 
 classes with the inferior clergy could scarcely be effected in 
 the face of the utter difference in their way of life, their educa- 
 
 (4) The words employed in 11 Ed- own business, and they would do the 
 
 ward III. and in later times repeated same. In 9 Richard II. the granting 
 
 in the second missive addressed to the of a vote of subsidies under the con- 
 
 archbishops : "justum et consonum ra- dition that the clergy should vote a 
 
 tioni, ut per communia suhsidia com- certaiu sum, led to similar protests 
 
 munibus periculis occurratur" found in (" Parl. Hist.," i. 384). But as Par- 
 
 Parliament as well as in the country liament would not give up its privilege 
 
 an echo, which the clergy was not able of confirming the taxes which had 
 
 permanently to ignore. In 18 Edward been voted by the convocation, so the 
 
 III, for the first time the grants of Parliament also claimed that its sta- 
 
 convocation were entered upon the par- tutes should bind the clergy, " like the 
 
 liamentary rolls, and finally fixed in statutes of all Christian princes in the 
 
 the form of a statute (Rep., i. 317). early centuries of the Church." The 
 
 The existence of separate money- voting question never came to a constitutional 
 
 assemblies led, however, for some time settlement, for the conflict was appeased 
 
 longer to conflicts. For instance, in in the fifteenth century by tlie money 
 
 4 Richard II., the Commons propose grants of the clergy being made in a 
 
 100,000 marks, if the clergy (who pos- separate assembly. But on that very 
 
 sessed one-third of the kingdom) would account the King was obliged to derive 
 
 grant 50,000 marks. The clergy an- the duty of the bishops and abbots to 
 
 uwered that their grant had never been appear in the Upper House from their 
 
 made in Parliament, nor should it be feudal duties, and had therefore, for 
 
 BO ; the laity should not and could not consistency's sake, to dispense with the 
 
 bind the clergy, nor the clergy the attendance of abbots who held no fees 
 
 laity ; the Commons might do their of the Crown.
 
 The Church at the Close of the Middle Ages. 399 
 
 tion, and social interests ; least of all was this possible with 
 the celibate clergy of the Roman Catholic Church. The Com- 
 mons in Parliament reply to the energetic efforts of the clergy 
 towards separation with an equally keen jealousy of ecclesias- 
 tical rule, so far as it appeared as the government of a foreign 
 ruler ; and this jealousy had become still more enhanced since 
 the migration of the Popes to Avignon. 
 
 In this crisis the monarchy gains an ascendency, at first in 
 all points, where the privileges of the Church come into 
 conflict with the common law. The King had now a Parlia- 
 ment to help him, which began to watch with jealousy over 
 national honour and independence. The Church was allowed 
 full sway in those departments which did not immediately 
 affect the common law, such as marriage law, wills, ecclesias- 
 tical offences, and in the Chancery courts, and those of the 
 Universities and the Admiralty. But every attempt to change 
 the common law (such as by introducing legitimation, con- 
 tracts of married women, etc.) was firmly rejected. " Nolumus 
 leges Anglise mutari," the barons had already replied at the 
 Parliament of Merton (20 Henry III.). When in 1296 the 
 clergy began on principle to refuse their contributions to 
 the national taxes, Edward could venture to declare the 
 Church beyond the pale of his feudal and judicial protection. 
 On a similar occasion the Parliament declared, in 1301, that 
 the Pope had not the right to interfere with the temporal 
 affairs of the Crown, and that they would not permit the 
 King, even if he were so inclined, to concede any one of the 
 papal claims. But most zealously did the peers and com- 
 mons side, as was natural, with the monarchy in the dispute 
 touching the taxation. When Urban V. went so far as to 
 renew the claim to feudal suzerainty and feudal rents, Edward 
 III. unreservedly withdrew from the old relation of papal 
 protection, and asserted, in conjunction with the estates, the 
 independence at once of the country and of the national 
 Church. Under the same reign, repeated motions of the 
 Lower House against the clergy followed, and a petition that 
 no ordinance be issued on the motion of the clergy, and that 
 the former should not be bound by regulations which the 
 latter made for their own advantage. In 1371 the proposal 
 was even made to remove all clergy from the high offices 
 of State, and to fill these offices with laymen, which, in the 
 case of the Chancellor and in the Treasury, was for a short 
 time actually done. The Parliament of 1399 declared " the 
 kingdom of England, as in all bygone times, free of all papal 
 or other foreign interference." Under Richard a dislike to the 
 clergy was shown, in the protection accorded to the heretics 
 (Lollards) which in 1406 led to the proposal to withdraw all
 
 400 Constitutional History of England. 
 
 such as were suspected of heresy from the episcopal juris- 
 diction. It was not until Henry IV. that the Church obtained 
 from the State more rigorous penal laws against the heretics, 
 in spite of the continued opposition of the Lower House. 
 Under Henry V. heresy was declared an offence against the 
 common law also ; the secular arm did not merely lend assist- 
 ance to the spiritual court, but the temporal courts were 
 to exercise concurrent penal jurisdiction side by side with 
 the spiritual. The house of Lancaster was too immediately 
 dependent upon the support of the clergy, not to give way 
 entirely in this point. 
 
 The visible result of these conflicts was a legal definition of 
 the rights of the executive against the encroachments of the 
 Church in the external provinces of law and taxation. As 
 the ecclesiastical constitution stood pointedly opposed to the 
 secular power, there was no other course open but to employ the 
 temporal penal legislation against a series of definitely named 
 excesses, which gradually form a connected system. The 
 State, now governed by parliamentary statutes, did not relapse 
 into the system of administrative compulsion by means of 
 amerciaments, but achieved a firm and uniform observance of 
 the limits of ecclesiastical power by decisions of the ordinary 
 courts of justice in the form of parliamentary penal statutes, 
 which were indeed rigorously framed according to the spirit 
 of the Middle Ages, but were considerably mitigated in practice. 
 
 1. Under the general term prsemunire a number of violations 
 of the province of the secular state by the ecclesiastical power 
 were threatened with severe penalties. The first statute, 27 
 Edward III. stat. 1, is directed against the citations to Eome 
 in matters which belong to the cognizance of the royal court. 
 The writs of " prsemunire facias" which were issued with 
 reference to this, and threaten banishment and severe corporal 
 and pecuniary punishments pave the way for a series of 
 statutes, which repeat the penalties of prsemunire against the 
 obtaining of ecclesiastical offices to the prejudice of the King 
 or any one of his subjects, against the exportation of money 
 to foreign parts, against the introduction of sentences of ex- 
 communication from foreign parts, against the exemption of 
 clerical personages, against immunity from the liability to 
 pay tithe, and finally against the interference of the Pope 
 with ecclesiastical elections. The prsemunire did not, however, 
 prevent an action being brought in the papal court in cases 
 where, according to common law, no action lay. On this 
 question as on others a kind of compromise was effected 
 between the Crown and the Curia. A royal veto was seldom 
 exercised, but the appeals to Rome now seldom appear. 
 
 2. The Statute of Provisors, 25 Edward III. stat. 4, threatens
 
 The Church at the Close of the Middle Ages. 401 
 
 all persons who accept the grant of a benefice from the Pope 
 with imprisonment and forfeiture by the nominee of all income 
 arising from the office. The practical result was, however, here 
 also a compromise between the Crown and the Curia at the 
 expense of election by the chapter. In the case of a vacancy 
 the King sent the chapter "his licence to proceed to the 
 election," simultaneously with a letter, which pointed out the 
 person whom the King, in case of their election, would 
 accept. At the same time, the Pope was requested by letter 
 to confirm the same person by papal provision. All repeti- 
 tions of the statutes only led in practice to a division of the 
 appointments between the King and the Pope. (5) 
 
 3. These are closely followed by supplementary statutes of 
 a more special nature. For instance, in this year 1349, on a 
 special occasion, an ordinance was issued with the consent of 
 the barons and Commons, which prohibited the introduction, 
 acceptance, and enforcement of papal bulls and other missives 
 in the kingdom, and threatened all who contravened the order 
 with arrest. This ordinance was not registered as a statute 
 and remained unenforced, but was in later times in a revised 
 form incorporated with the statute of prtemunire (25 Edw. 
 stat. 4). To the same series belong prohibitions of aliena- 
 tions in mortmain (7 Edw. I. stat. 2), partly of the era of 
 Edward I., and later parliamentary enactments ; articuli 
 cleri (9 Edw. II. stat. 1) containing sixteen articles of griev- 
 
 (5) The free canonical election con- cleriei, had abandoned these direct 
 
 ceded by John met with an impedi- claims in England. In the fourteenth 
 
 ment in the faulty constitution of the century, however, the papal provisions 
 
 English cathedral chapter, and be- and reservations again played an im- 
 
 came at first enveloped in a long portant part, though the Pope and the 
 
 series of controversies. In the years King usually came to an understand- 
 
 1215-1264 not less than thirty con- ing, and a free election by the chapter 
 
 tested elections of prelates were car- was seldom effectual. It was Henry 
 
 ried to Rome for final settlement. It V. who first restored to the chapters 
 
 was not until Gregory IX. had, in their " free " election, whereupon Pope 
 
 cases of this sort, rejected both can- Martin V., in the course of two years, 
 
 didates, and declaring the right of filled no less than thirteen episcopal 
 
 election forfeited had appointed a third, sees by " provision." Under Henry 
 
 that the appeal to Rome became less VI. a kind of compromised division 
 
 frequent. But after Edward I. both was resorted to, by virtue of which the 
 
 King and Pope exercised their in- King as a rule succeeded in appointing 
 
 fluence with such resolution, that for his nominees, and the Pope his Italian 
 
 more than a century the right of candidates. Under Henry VII. the 
 
 election became almost ineffectual. King's nominees were with out exception 
 
 From the commencement of the fif- appointed. We must remember that 
 
 teenth century the papal claim assumed in all these instances, the question lay 
 
 the form of a direct appointment (pro- in the background " whether the King 
 
 vision). Gregory IX. already had de- and nation should accept, at the Pope's 
 
 manded of the bishops of Lincoln and dictation, the nomination of 8.0 large 
 
 Salisbury a " provision " of not less a portion of the House of Lords' as the 
 
 than three hundred foreign clergy ; in bishops really formed," which " would 
 
 later times Innocent IV., after the have placed the decision of national 
 
 knighthood had began to help them- policy in foreign hands" (,8tubbs, 
 
 selves by driving away the foreign iii. 318). 
 
 2D
 
 402 
 
 Constitutional History of England. 
 
 ances set forth by the clergy touching secular interference, 
 with the answers of the King in council having reference 
 thereto ; the statute 14 Edward III. stat. 4, touching the due 
 administration of clerical estates pending vacancies in the 
 sees; the statute de asportatis religiosorum (35 Edw. stat. 1) 
 against the payment of taxes and money from English monas- 
 teries to foreign superiors ; all which are the outward expres- 
 sion of the repelling of ecclesiastical encroachments and of 
 the beginning of a movement which in the sixteenth century 
 culminated in the Reformation. (6) 
 
 The internal reasons for the gradually increasing feud be- 
 tween Church and State lay, however, in the altered voca- 
 tion of the Church itself. The roots of its power were also 
 
 (6) The parliamentary statutes 
 against the encroachments of the 
 ecclesiastical power in this period 
 chiefly concern property and taxation ; 
 yet in certain points involve also the 
 ecclesiastical jurisdiction and the pro- 
 vince of coercive measures against the 
 laity. They are important from the 
 points of principle, in so far as the 
 King in Parliament definitely claims 
 to exercise the higher right of de- 
 cision, where the limits between the 
 spiritual and the temporal power are 
 matters of controversy. From this point 
 of view the statutes concerning prx- 
 munire are the most important. A clear 
 survey of the statutes affecting the 
 clergy is given by Rowland (" Manual 
 of the English Constitution," 1859, pp. 
 137-156). Stubbs rightly remarks: 
 " Almost all the examples, however, in 
 which the -clergy went beyond their 
 recognized rights in regulating the 
 conduct of the laity, come under the 
 head of judicial rather than of legisla- 
 tive action; in that department the 
 common law had its own safeguards. 
 . . . Petitions in Parliament against 
 the encroachments of the spiritual 
 courts are frequent, any direct conflict 
 between the two legislatures is ex- 
 tremely rare. ... If the class-sym- 
 pathies (of the bishops) were with the 
 clergy, their great temporal estates 
 and offices gave them many points 
 of interest in common with the laity. 
 . . . England was spared during the 
 greatest part of the Middle Ages any 
 war of theories on the relations of the 
 Church to the State " (Stubbs, in. 326). 
 
 In Parliament itself the prelates 
 never forgot their ecclesiastical interest, 
 yet voted as a rule on questions of 
 public and social policy in a patriotic 
 and moderate spirit. 
 
 For the regulation of the jurisdiction 
 of the tribunals the Crown had, more- 
 over, the assistance of the early 
 technical framing of the writs with 
 regard to the rights of the Crown. 
 All suits touching the temporalities of 
 the clergy were subjected to the juris- 
 diction of the royal courts, and scarcely 
 a trace of opposition to this arrange- 
 ment can be discovered. Even Glan- 
 vill gives certain formulae of the 
 "prohibition," by which spiritual tri- 
 bunals were forbidden to entertain 
 suits in which a lay-fee was involved. 
 Particularly a writ of prohibition issues 
 against the excommunication of a royal 
 vassal or servant without the sanction 
 of the King. As against the prelates 
 the customary law of seizure of fiefs 
 was also enforceable. For instance, in 
 1381, Edward I. in the sternest terms 
 forbade the archbishops and bishops to 
 discuss questions in their Concilia 
 which concerned the Crown, the person, 
 or the council of the King, or to make 
 any constitution against his Crown and 
 dignity, "if their baronies were dear to 
 them." To the controversial measures 
 for conquering the resistance of the 
 clergy to the taxation belongs a curious 
 military command (Rot. claus. 43 Edw. 
 III., iii. 13, 1369) by which the bishops 
 are ordered to arm all abbots, priors, 
 monks, and other spiritual persons, 
 from the age of sixteen to sixty, to 
 draft them into contingents, and drill 
 them, and are referred to the decree of 
 Parliament touching the national 
 armament against France. This extra- 
 ordinary document has been copied in 
 Grose ("Military Antiquities," vol. i. 
 pp. 44-46). Three similar writs of the 
 dates of 46 Edward III., 47 Edward 
 III., and 1 Richard II. are to be found 
 in Rymer.
 
 The Church at the Close of the Middle Ages. 403 
 
 the roots of its decay. Both are contained in the moral and 
 intellectual life of the people. When the battle of the 
 nationalities was forgotten, the oppression of the weaker 
 classes mitigated, villeinage dying out, and the State begin- 
 ning to display more anxiety to give due legal protection, the 
 Church had been deprived of a portion of its great tasks, which 
 were now more justly cared for in secular legislation and 
 administration. This was true also of the Church as an 
 educational institution. Whilst she had been until the thir- 
 teenth century the alma mater of all peaceful arts and sciences, 
 from that time a falling off is observable in her intellectual 
 cultivation. The fact was particularly important that in the 
 thirteenth century the jurisprudence of the laymen had 
 emancipated itself from the Church, and begins to make itself 
 the champion of universal struggles for emancipation, which 
 are soon followed by the thronging of the laity to the 
 universities, A political life that was peaceful and orderly, 
 when compared with that of the Continent, had rendered 
 aspiring spirits more susceptible to the arts of peace. The 
 educational institution of the Church had for a time uniformly 
 remodelled the nations, but thus cultivated and elevated they 
 slowly return to their own paths again. To these justifiable 
 national and intellectual aims and aspirations the Church had 
 nothing else to oppose than political power and spiritual 
 coercion. The firmer the canonically elected dignitaries held 
 their baronies, the more did they begin to feel at ease as 
 landed nobles, especially as, on the other hand, the nobles 
 entered the Church in great numbers. 
 
 In England, also, it was birth that now decided the appoint- 
 ments to the high offices, whilst merit, education, and capacity 
 were overlooked. The revenue became more and more con- 
 centrated in the hands of the prelates, the tithes were largely 
 appropriated by monasteries and foundations, to the prejudice 
 of the preaching and working clergy. The Church, thus 
 constituted, possessed neither the energy nor the will to vie 
 with the rise of learning amongst the laity, but abandoned a 
 part of her province to the lay jurists, whilst she only opposed 
 the higher and more general aims by repulse, spiritual coer- 
 cion, and the prohibition of independent investigation. The 
 natural consequence was that doubts arose as to the authority 
 of the Church, both in its spiritual, and in its temporal 
 capacity, coinciding with the fearful state of confusion of the 
 Roman Curia and the high ecclesiastics on the Continent. But 
 as the heresies attack the very dogmas and the constitution of 
 the Church, and the latter now begins to fight for her existence, 
 she makes use of her immense power, and punishes heresy as 
 ecclesiastical high treason and as a political crime. In Eng-
 
 404 Constitutional History of England. 
 
 land this was, of course, more difficult, as the execution of the 
 penal sentence was dependent upon a royal writ. "With 
 difficulty the Church obtained a writ from Eichard II., which 
 empowered the sheriffs to arrest heretical preachers, but 
 which reserved in the case of laymen a special chancery writ 
 for every arrest. Even against this the Lower House pro- 
 tested, with the declaration "that they were not minded to 
 bind themselves or their heirs to the prelates more than 
 their ancestors had done." It was not until Henry IV. that 
 the Church obtained free scope for her penal jurisdiction with- 
 out a writ de heretico comburendo. A period of the burning of 
 heretics now begins, and of the obligation of the officials on 
 oath to exterminate these " conspirators against the King and 
 the estates of the realm." But the religious confusion was 
 for a long time covered by the still greater confusion of the 
 struggles of the nobles in the wars of the Eoses. The deeply 
 demoralized condition of those times was partly due to the 
 Church, which, preferring power and the goods of this world 
 before all else, estranged itself from its vocation and the 
 hearts of the people. 
 
 It is certainly not easy to determine with certainty how 
 deep the anti-Eoman movement had penetrated in this 
 period. The national pride saw itself essentially injured by 
 the papal pretensions at a time when the seventy years' 
 "Babylonian captivity" of the papacy in Avignon had suc- 
 ceeded in making the papal throne the instrument of the 
 hostile policy of the kings of France. As late as 1378, on 
 the death of Gregory XI., in consequence of this condition of 
 things, three-fourths of the cardinals were French. Certain 
 far-seeing and conscientious men of the period, discerned the 
 still more radical demoralization of the whole Church; but 
 their voices assuredly found more echo in the national pride 
 than in the conviction of the untruth of individual Eoman 
 Catholic doctrines. The later events of the Eeformation, at 
 all events, give no evidence of any deep stirring of the minds 
 of the masses. (7) 
 
 (7) During the last century of this vocation of instruction and the cure of 
 
 period, a small but energetic party of souls. That the clergy as a profes- 
 
 the Commons was evidently untiring siou and in their general functions 
 
 in its motions in favour of the new were not the object of the attacks, 
 
 heretical tendency and against the and that they still felt themselves as 
 
 existing institutions of the Roman such safe from the laity, is shown by 
 
 Church, yet without being able to re- the characteristic phenomenon that the 
 
 cord any important success. Without clergy of this period were divided 
 
 exception, these attacks are directed against themselves into just as nume- 
 
 against the position of the prelates, to- rous and violent parties as the nobles 
 
 wards the seizure or even the seculariza- and commoners. The secular hated the 
 
 tion of their temporalities, and often also regular clergy, the cathedral clergy 
 
 against the spiritual orders, but not the monks, the Dominicans and Fran- 
 
 against the parsons in their regular ciscans regarded each other as heretics,
 
 ( 405 ) 
 
 CHAPTER XXVII. 
 Druggies of tf)t Btng in ^ath'ament. 
 
 THE exercise of the sovereign rights had now become so 
 closely interwoven with the self-government of the counties, 
 and so artistically combined in Parliament, that, thanks to- 
 the wisdom of the legislator, an ideal political constitution 
 appears to have become realized, such as harmoniously blends 
 together all classes of society in the service of the State and 
 expands to the utmost all the resources of the nation, enabling 
 it to fulfil the highest tasks of its legal, educational, and 
 economic development. But it is not given to nations more 
 than to individuals to attain such high aims without hard 
 trials and struggles. As in the preceding period the monarchy 
 appears from generation to generation in an ascendant and 
 descendant motion, so does this epoch display, in the course 
 of six generations, an unexampled picture of a rise and fall 
 which appears peculiar to English history, now that the 
 monarchy had become the head of a powerful assembly of 
 estates of the realm, in which the conflicting interests of 
 society take the form of violent parties. There is a tragic 
 contrast between the beautiful and glorious dawn of this 
 period and the bloody sunset which ends it. Though to the 
 people of that time they were questions of life and death, to 
 us the struggles of this period appear colourless antecedents 
 to the establishment of a system of constitutional law, just 
 as in reality the wildest struggles ended in a firm result and 
 permanent arrangement of classes (Chap. XXVIII.) and a 
 firmly established monarchy (Chap. XXIX.). 
 
 J. (1272-1307). 
 
 The age of Edward I. is the reverse of the immediately 
 preceding one of Henry III. It is the age of the brilliant 
 restoration of confidence in the monarchy ; the zenith of the 
 
 the Cistercians and monks of Cluny 369). In any case, the moral respect 
 
 eyed each other with the old jealousy, in which the clergy were held was 
 
 and to all this must be added the most seriously damaged by the burnings 
 
 numerous controversies arising from of heretics and by the behaviour of the 
 
 disputed papal elections (Stubbs, iii. churchmen in the wars of the Roses.
 
 406 Constitutional History of England. 
 
 English Middle Ages, the period of the foundation of the 
 systems of legislation and taxation, of judicial procedure and 
 police laws ; of a central administration with an active official 
 staff of the counties and municipal unions, of the demarcation 
 of the respective spheres of activity of the council of the realm 
 and the assembly of magnates, of the process of crystalliza- 
 tion, which now incorporated an organized representation of 
 the communitates into Parliament, as being the " supreme 
 council of the Crown," and finally of the development of the 
 rights of Parliament in their three main channels. 
 
 The legislation still continually initiates in the King. The 
 high ideas of this reformer, who found in Bishop Burnet a 
 rare adviser, made him seek of his own accord the advice 
 and the consent of his prelates and barons, and in important 
 matters of the Commons also. These summonses (sometimes 
 of mere assemblies of magnates, sometimes of knights of 
 shires, and sometimes of counties and cities together) are 
 issued on the King's unfettered judgment. 
 
 Taxation by Parliament was for the vassals of the Crown 
 an already existing legal institution. The refusal of the clergy 
 on principle to pay taxes, and the resistance of the magnates, 
 induced Edward I. to make full concessions, feeling the im- 
 possibility of maintaining a one-sided right of taxation in the 
 old manner against the united opposition of the clergy and 
 people. A magnanimous feeling for the present and future 
 greatness of the nation outweighed all dynastic considera- 
 tions, and recognized the money grants of the eommunitas 
 regni for the common profit of the realm, " ut quod omnes 
 tangit ab omnibus approbetur." 
 
 The control of the central administration by Parliament 
 appears under this, as under normal reigns of later times, 
 in the form of petitions, motions, and complaints. According 
 to intention and results, the military powers of the King 
 were exercised for the honour and advantage of the realm, 
 the judicial and police powers for the maintenance of law and 
 peace in the country, the financial powers for the common 
 profit of the realm, and the power over the Church for the 
 maintenance of national independence ; and on that account 
 the estates never thought of an immediate interference with 
 the course of government. 
 
 In the first half of the reign occurred great acts of legis- 
 lation and the victorious war in Wales; in the second half 
 the acknowledgment of the constitutional right of the estates 
 to vote taxes and the war with France and Scotland. 
 Financial difficulties are common to both ; yet the period is 
 pervaded by an harmonious tone. A popular monarch finds 
 energetic and ready support as often as he demands it. This
 
 The Struggles of the King in Parliament. 407 
 
 monarchical government according to laws, strengthened by 
 the free co-operation of the estates, with its enormous develop- 
 ment of military and financial resources, forms a marvellous 
 contrast to the miserable personal rule of Henry III. It left 
 behind it among the people the consciousness that the political 
 government is best centred in a single hand the hand,, namely, 
 of a constitutional monarch, and that it still keeps its regular 
 course where the feeling of his royal vocation lives in the 
 monarch. At the same time this period had fostered that 
 spirit of manly courage which was enabled to help itself in 
 those times in which the monarchy lacked these qualities. It 
 was certainly no easy task under such a monarch to raise 
 the firm and dignified opposition with which the great con- 
 stable and the great marshal, the Bohuns and the Bigods of 
 this period, at the head of the Crown vassals, raised their 
 voices in contradiction of the King, to. enforce the common 
 right of the estates to grant taxes. The episode of Magna 
 Charta so. far repeated itself once more, and the next genera- 
 tion showed the necessity for this manly feeling. (1) 
 
 E. (1307-1327). 
 
 Immediately after the death, of Edward I., a foolish retreat 
 and the cowardly siarrender of Scotland indicated that the 
 royal management of the external affairs of the State had 
 again ceased. By the grant of the highest honours in the 
 realm and the squandering of the moneys of the State as 
 well as those of the royal household upon a foreign favourite, 
 Edward II. proclaimed an equal incapacity for internal 
 government. The insulted magnates,, with the Parliament 
 on their side,, become rebellious, and league together under 
 arms, and under the name of " Ordainers " force upon the 
 king an executive council consisting of two bishops,, an earl, 
 a baron, and a representative of the earl of Lancaster. 
 Although the most powerful Earl of the realm stands at the 
 head of the opposition, yet dissension is again the outcome, 
 
 (1) As to Edward L's Parliaments) of the great men of the realm, has 
 
 consult Parry (" Parliaments," pp. 49- ordered ; " the statute Quo Warranto, 
 
 69), Peers' Report (i. pp. 171-254), " Our lord the King in his Parliament 
 
 Stubbs (ii. sees. 179-182). The most of his special favour and inclination 
 
 important legislative acts have been towards his prelates, earls, and barona 
 
 given in the notes to Chapter XXV. has granted;" the Statute of Assis- 
 
 The position of royal legislator is tance(21 Edw. I.), "Our lord the King 
 
 maintained in the style of tho sta- in his Parliament hath decreed." On 
 
 tutes. The statute of Acton Burnel the other hand, Edward defends the 
 
 (13 Edw. I.) begins with the words, statute of Mortmain to the Pope with 
 
 " The King in person and his council the explanation that it had been made 
 
 have decreed and determined ; " the " with the advice of the magnates," 
 
 statute Westminster 3, M Our lord the and could not be altered without their 
 
 .King in his Parliament, at the instance consent.
 
 408 Constitutional History of England. 
 
 followed, after a few years of mutual persecution, by the 
 fall of the party government. If, however, these events, in 
 which right and wrong are tolerably evenly distributed, are 
 compared with those of the times of Henry III., in which the 
 best and most discerning men like Pembroke and Montfort, 
 are wrecked on the unfinished constitution, yet even in these 
 struggles the progress of the constitutionally organized State 
 is evident. In this crisis the heads of the ruling classes to 
 their own risk and at their own responsibility step into the 
 gap ; but the ringleaders pay the penalty for their excesses 
 with their lives and property a course of affairs which con- 
 tinued down to later centuries, and which has preserved to 
 the aristocracy, together with their honour and their influence, 
 the heavy responsibility of a ruling class. With the support 
 of the commoners the King again succeeded in shaking off 
 the guardianship of the party of the nobles. All decrees of 
 the Ordainers, so far as they violated the prerogatives of the 
 Crown, were repealed, and it was solemnly acknowledged, 
 that upon questions touching affairs of the Crown and State, 
 resolutions could only emanate from the King himself, with 
 the assent of the ecclesiastical and temporal estates. 
 
 Yet in spite of this, the weak and purposeless monarch, in 
 consequence of the open rebellion of his criminal consort, was 
 soon obliged to abdicate, and was murdered in prison. The 
 person of the King, but not the kingly authority, had at this 
 time succumbed to a combination, which proclaimed the deed 
 of violence with the insolent words, " The King has forfeited 
 his crown by reason of his incorrigible disposition," whilst the 
 Archbishop of Canterbury announced these words to the 
 people with the intimation that ' ' the voice of the people was 
 the voice of God." (2) 
 
 (1327-1377). 
 
 In the name of the successor to the throne, a youth of 
 fourteen years, a criminal but energetic faction carried on a 
 regency, which after a few years perished by a bloody retalia- 
 tion. With Edward III. the first parliamentary government 
 in principle begins, which in thirty- seven of its fifty years' 
 
 (2) As to Edward II.'s Parliament, the ruling aristocracy since the days 
 
 c/. Parry, 70-91 ; Stubbs, ii. sees. when the Mad Parliament at Oxford 
 
 245-255, as well as the detailed ac- made the first attempts at ruling the 
 
 counts in the Peers' Report. The realm by a committee of nobles. But 
 
 complete history of the Ordainers (5 the constitution in the form it then 
 
 Edw. II., seq.. Statutes of the Realm, wore was not as yet fitted for enduring 
 
 i. pp. 157-167) needs a full exposition a party government of this description 
 
 in order to enable us to appreciate the for any length of time. 
 practical progress which was made by
 
 TJie Struggles of the King in Parliament. 409 
 
 duration convened Parliament seventy times to short sessions, 
 in order to arrange with them the entire affairs of the realm. 
 Even in the first years both Houses began to display lively 
 activity both in external and in internal affairs, under a 
 council of regency appointed by Parliament. The King, after 
 attaining his majority, acted with the assistance of his 
 Parliaments, throughout his long reign, under circumstances 
 frequently difficult, with energy, discernment, and renown. 
 During this half-century all the elements of power advance 
 into the foreground at times, and then yield in their turn to 
 a union of the opposing forces in constitutional struggles. 
 On the one side we still meet with usurpations of the personal 
 rule in matters of imposition of taxes, enforced loans, enforced 
 levying of recruits and ships, extension of forests, arbitrary 
 fines, and beginnings of an administrative jurisdiction by the 
 Lord Chancellor ; and then again endless national grievances, 
 confirmations of Magna Charta, and of the right of granting 
 taxes, restrictions of the laws of high treason, and limitations 
 of the exercise of sovereign rights by the legislature. Violent 
 encroachments by the estates on the royal right of appoint- 
 ment; on the other side, express and effectual rejection of 
 them. Protests against a penal jurisdiction of the council in 
 25 Edward III. ; then again express recognition of the same, 
 particularly in the feuds with the Church. There arose at 
 this time a kind of equilibrium of forces, in which Lords and 
 Commons develop their inherent energy. 
 
 Legislation holds its customary course, with the participa- 
 tion of the Commons ; the initiative is gradually shared 
 between them and the monarch. 
 
 Taxation by Parliament attains a fixed form; petty en- 
 croachments upon it are given up by the Crown ; at the close 
 of the reign a confirmation is again made. 
 
 The control of the central administration by Parliament 
 takes a peaceful, though at times an overreaching course. 
 The events of the reign of Edward II. raised the pride of the 
 estates to such a pitch, that even the King, when he had 
 attained his majority, at times yielded. In 15 Edward III., 
 after the failure of a foreign undertaking, the Parliament 
 begins with stormy complaints about the taxation of the 
 clergy, as well as about the appointment of the council and of 
 the highest officers of the realm, which had taken place 
 without their consent, with the claim that a " peer of the 
 realm " could only be condemned to the loss of his rights and 
 his possessions by his compeers. All great officials should 
 at the beginning of Parliament lay down their offices for a 
 short time, to render the lords an account of their behaviour, 
 etc. All these demands are granted in return for a subsidy
 
 410 Constitutional History of England. 
 
 of twenty thousand sacks of wool. But after the close of 
 Parliament the King issued a proclamation to the sheriffs, 
 and declares that that statute had been wrung from him in 
 violation of his prerogative and the law of the land, in 
 circumstances under which he could not have done otherwise 
 than " feign," and that in consequence he repealed it after 
 deliberation in his council. Two years later the Parliament 
 also declared the statute repealed. Another attempt by the 
 estates at encroachments (30 Edw. III.) was retracted in the 
 following year. Nevertheless the senile monarch ended his 
 days in disquietude. In 50 Edward III. it was moved, that 
 since the present officials were not fit for their offices, the 
 council should be increased by ten or twelve bishops, lords, 
 and others as permanent members, and important matters 
 only decreed with the consent of all. At the same time 
 appears the first case of an impeachment by the Lower 
 House. The Parliament of the ensuing year, however, let 
 this measure drop. 
 
 The result of the century of the three Edwards is the more 
 distinct limitation of the functions and powers both of Church 
 and State, in political government and assembly of the realm, 
 in Parliament and convocation, in legislation and the adminis- 
 tration of justice, but more especially in the firm establish- 
 ment of the rights of Parliament in all their three directions. 
 But with these manifold collisions are linked the increasing 
 prosperity of the realm, as also the development of ex- 
 ternal power, which in the wars against France gains for 
 the English arms the first rank among the European feudal 
 states. (3) 
 
 <Kiri)artj M. (1377-1399). 
 
 A grand epoch of the monarchy is again followed by a 
 period of kingly incapacity. In the name of the ten-year-old 
 King the council of prelates and barons grasps the reins 
 of government. The Commons were encouraged by the 
 parties at the court itself to participate therein to a certain 
 degree, and their action soon makes itself felt. The ruling 
 council consisted of three bishops, two earls, two bannerets, 
 and two knights. Chancellor, treasurer, chamberlain, justices, 
 
 (3) Touching the Parliaments of severe embarrassments, in which the 
 
 Edward III., cf. Parry, pp. 92-137; King had involved himself, not without 
 
 Stubbs, ii. sees. 256-264. The great blame, by his undertakings upon the 
 
 material of the precedents has been Continent. It was evidently the twenty 
 
 exhaustively treated in the Peers' thousand sacks of wool which induced 
 
 Report, and in Hallam's "Middle the King to make the thoughtlessly 
 
 Ages." The events in 15 Edward III. pronounced, and irregularly retracted, 
 
 receive their na'ive character from the concession.
 
 The Struggles of the King in Parliament. 411 
 
 and other supreme officials were to be appointed during the 
 minority " in Parliament ; " but, as a matter of fact, the 
 government remains in the hands of the great council. On 
 the ground of ever-recurring complaints as to military ex- 
 penses a motion was now brought forward for the rendering 
 of an account of State disbursements, and this was frequently 
 repeated during the reign. As early as 3 Eichard II. a pro- 
 posal was made to dismiss the regency, and appoint in its stead 
 the first five grand officers in Parliament ; but this was not 
 acceded to. The motions of the Commons, which were often 
 of a radical character, are explained by the weakness of a 
 disunited government, and by the encouragement which the 
 ambition of the Earl of Lancaster and other lords of the court 
 lent to snch demands. 
 
 The King, who at first made great promises, begins his 
 personal rule with unusual grants to favourites (the Earl of 
 Oxford, Michael de la Pole). As early as 10 Richard II. 
 the Parliament begins to threaten. The King, giving way, 
 deposes and fines his chancellor, and grants a commission for 
 the general revision of the administration. In 11 Eichard II. 
 it is brought forward as a ground of complaint, that the 
 officials have constantly induced the King to convene assem- 
 blies " of certain lords, justices, and others, without the con- 
 sent and presence of the lords of the great council." The 
 royal chamberlain is arraigned. The promise is given that 
 no letters shall be issued under the signet or privy seal to the 
 prejudice of the realm or disturbance of justice. The royal 
 justices are even condemned to death. 
 
 These events were followed by an era, in which the dukes 
 of Gloucester, Lancaster, and York contended for the govern- 
 ment in the name of the pleasure-loving, indolent King. But 
 by spasmodic moments of personal energy, by surprise of his 
 antagonists, and through the support of the Commons, a 
 reaction was brought about in which Eichard II. apparently 
 regained his full authority. A Parliament surrounded by 
 armed men repealed all the decrees of former years which were 
 aimed at the royal prerogative, granted the King a consider- 
 able subsidy for his life, and lent support to every bloody 
 persecution and retaliation, and even to the appointment of 
 a parliamentary committee, which was to remain sitting after 
 the close of Parliament, endowed with decisive functions and 
 exorbitant powers, which were certainly at once abused, and 
 in later times disavowed by the cancelling of all the ordi- 
 nances, judgments, and measures of the committee. But 
 Kichard did not know how to make other use of his regained 
 power than by employing it for malicious retaliation and 
 measures of personal arbitrariness; by a series of proceed-
 
 412 Constitutional History of England. 
 
 ings the ill-advised King again revived the semblance of an 
 absolute rule, so that he found himself suddenly forsaken by 
 Parliament, Church, and people, and succumbed to the attack of 
 the Duke of Lancaster, who, landing at Eavenspur with a force 
 of sixty men, after a few weeks stood at the head of the dis- 
 contented magnates and of an army of sixty thousand men. 
 
 The result of this period are encroachments of the Lords 
 upon the appointment to offices, while the Commons gain 
 important precedents for a control of the State disbursements ; 
 in both Houses impeachments of the great officers are frequent. 
 The administrative law is pervaded by a double tendency. 
 On the one side is found the endeavour of the estates to 
 limit the discretionary power of the " King in council." On 
 the other, extensions of the official authority in lower depart- 
 ments, especially the extended jurisdiction of the justices of 
 the peace over the labouring classes. On the occasion of the 
 great rebellion of the peasants a summary intervention of the 
 council took place without opposition. To satisfy a real 
 national want, the equitable jurisdiction of the Chancellor at 
 this time became formed. But the most important event of 
 the period with regard to subsequent consequences occurred 
 at its close, namely, direct revolt and formal deposition of the 
 monarch by a resolution of both Houses of Parliament. (4) 
 
 IF. (1399-1413). 
 
 The reign of the first sovereign of the house of Lancaster 
 begins with the unsurmountable difficulties arising from au 
 usurped power, surrounded by conspiracies, rebellions, and 
 external perils. As the feud-loving magnates regarded this 
 dynasty as their own creation, their powerful partisans soon 
 vied with the old foes of the house in combating the new 
 King. The records of the council afford us an idea of the 
 sorrows which brought the energetic and courageous monarch 
 to an early grave. A king in this position, surrounded by 
 pretenders with titles equal or superior to his own, was fain 
 
 (4) As to the Parliaments of Richard and, having been provoked by unjust 
 
 II., see Parry, 138-159; Stubbs, ii. measures, was suppressed with cruelty. 
 
 sees. 265-270. On his accession the The Parliaments regard it in no other 
 
 want of a regency law was felt, in point of view than to complain of the 
 
 consequence of which deficiency the mutinous behaviour of the villeins and 
 
 Magnum Concilium itself actually dis- of their refractory refusal to perform 
 
 charged the functions of a council of the services due from them. However, 
 
 regency. The consequent dissensions in the province of taxation as in that 
 
 and quarrels are associated with the of the discharge of civil and police 
 
 dangerous rebellion of the labouring functions, the discernment and good 
 
 classes, a rising which, for want of a behaviour of the wealthy classes soon 
 
 ruling power, was dealt with by the return to the English self-govern- 
 
 wealthy classes after their own fashion, ment.
 
 The Struggles of the King in Parliament. 413 
 
 to be content to maintain the status quo. There is accord- 
 ingly no more mention of taxes without Parliament, not even 
 in severe administrative crises. In 6 Henry IV. the subsidies 
 were only granted upon the condition that the moneys should 
 be received by a treasurer sworn in Parliament, and that in 
 the next sittings an account of the expenditure should be 
 rendered. In the same way in 7 Henry IV. ; here, however, 
 the King again rejected the demand that the petitions should 
 be answered before the money was voted. In 8 Henry IV., 
 thirty-one weighty articles followed, all of which were acceded 
 to. The King must appoint sixteen counsellors, and allow 
 himself to be exclusively advised by them, and not dismiss 
 them unless they are convicted of an offence. No judicial or 
 financial official may be appointed for life, and no petition 
 presented to the King except in council. Numerous abuses 
 in the council and in the administration of justice were 
 enumerated and prohibited. The Court faction, if it incites 
 the King against his subjects, must be removed and fined. 
 (Four persons of the King's courtiers had before this been 
 removed with assurance "that the like should happen to 
 every other person who should arouse the discontent of his 
 faithful subjects")- For the due maintenance of the laws 
 of the realm, neither the chancellor nor the keeper of the 
 privy seal shall allow anything to pass under the seal in 
 their keeping, either a warrant or a grant of letters patent, 
 a judgment, or any other matter, which should not so pass 
 by law and right, by which regulation the keeper of the 
 privy seal was now also made liable to immediate impeach- 
 ment by Parliament. In the next Parliament, however, the 
 King sent a message to the Commons to the effect that a 
 statute had been passed in the preceding Parliament which 
 violated his liberty and prerogative, and that he now asked 
 their consent to its repeal. The Commons accede to this, 
 and receive the King's thanks in return. Still more regard 
 had to be paid the Church. One of the reasons of Richard's 
 overthrow was his indulgence towards heresy. Upon the 
 demand of the Church the King accordingly launched the 
 stat. 2 Henry IV. c. 15 against the Lollards, with the assist- 
 ance only of the great council, and in spite of the opposition 
 of the Commons. The new position of the monarchy was 
 especially favourable to the consolidation of the peerage. A 
 king, whose throne was based only upon the recognition of 
 Parliament, could no longer treat the House of Lords as an 
 assembly convoked by his own plenary and discretionary 
 powers. The inheritable right of those summoned by custom 
 to a summons to Parliament was accordingly acknowledged. 
 The Commons are also favourable to it ; in return for which
 
 414 Constitutional History of England. 
 
 complaisance the Lords recognize the right of the Commons 
 to vote subsidies, and their co-operation in making statutes, 
 yet with reservation of the exclusive jurisdiction of the Upper 
 House. What could be said against these mutual recogni- 
 tions ? Both Houses acknowledged, in consideration of them, 
 that Henry was the rightful King of England. The supreme 
 jurisdiction of the House of Lords was now expressly sanc- 
 tioned, the mere official elements receded into the position of 
 deliberative members. The procedure in both Houses now 
 adopted a form resembling that of the present day. But the 
 whole issue resulted most decidedly in favour of the Lords, 
 whose military ascendancy was felt to be a consequence of 
 the great French wars. (5) 
 
 f^mrg F. (1413-1422). 
 
 The popular and glorious reign of Henry V. in like manner 
 moves within the limits of parliamentary privileges. The 
 great struggles in France give the political activity an over- 
 whelming impulse towards foreign affairs, under which legis- 
 lation and business in Parliament for some time rests. The 
 somewhat needy state of the financial resources of the Govern- 
 ment demand frequent money grants. In 10 Henry V. the 
 Commons are convened to take part in negotiations touching 
 the league with the Emperor Sigismund and the treaty of 
 Troyes, after a great council has declared itself incompetent 
 to deal with these subjects. In harmony with the Church, 
 and with the liveliest sympathies of the nation, the dynasty 
 especially consolidates itself by the brilliant successes of the 
 war in France. (6) 
 
 (5) As to Henry IV.'s Parliaments, throw of the dynasty as they had before 
 
 see Parry, 159-170 ; Stubbs, iii. p. 1-72. done for its elevation. In the struggle 
 
 At the outset the difficulty is felt of for self-preservation, Henry IV. rode 
 
 altering an hereditary succession to the rough-shod over single constitutional 
 
 throne by deliberative assemblies peri- forms, as on the occasion of the sum- 
 
 odically convened. The Parliament mary execution of the Earl of Not- 
 
 of Eichard II. had, as a Consilium tingham and of the Archbishop of 
 
 Regis of Richard, ceased at his de- York, when they had been taken witli 
 
 position. Richard's Parliament could weapons in their hands. But, with 
 
 not therefore legally become the Par- regard to both Houses and to the in- 
 
 liament of Henry. Hence the several terests of the nation, the Government 
 
 members of the former Parliament conducted itself with such parliamen- 
 
 were all assembled, but only as a " con- tary correctness, that among the mani- 
 
 vention," and after a few days new fold encroachments of the Houses upon 
 
 writs of summons were issued to the the royal privileges, there was yet 
 
 same persons to form a Parliament in found no occasion for an impeachment 
 
 the name of King Henry IV. But by of ministers. 
 
 such fictions the jurists could be more (6) As to the Parliaments of Henry 
 
 easily quieted than the Percys and V., see the comparatively sparse matter 
 
 the great martial noble families, who, in Parry, 170-175 ; Stubbs, iii. 72-91. 
 
 in league with the Scots and the Welsh, There occur again under this reign 
 
 worked just <as zealously for the over- acts of a personal penal jurisdiction,
 
 Tlie Struggles of the King in Parliament* 415 
 
 F5. (1422-1461). 
 
 Under this name a regency again begins its sway, this time 
 over the person of a child of nine months, who, owing to an 
 unfortunate deficiency of intellect, was destined to remain all 
 his life incapable of forming a single resolution. Contrary to 
 the testamentary dispositions of Henry V., the Duke of Bedford 
 was appointed not regent, but protector and guardian, with the 
 Duke of Gloucester as his substitute. The affairs in France, 
 which had become critical, were conducted by Bedford until 
 his death (1434), with a firm and experienced hand. The 
 internal government of the country was managed with a 
 certain degree of security and regularity by an extraordinary 
 council of the King appointed by the Lords. The situation 
 of the realm had meanwhile become critical; financial em- 
 barrassment had become urgent ; but the affairs of the State 
 were for a long time worthily conducted by ruling nobles. 
 The numerous regulations of the council, dating from this 
 period, testify to the regular course of State business, which 
 was so ordered that a certain and responsible official was 
 appointed for each principal department. The insufficiency 
 of the rule by the nobles without monarchical guidance, how- 
 ever, became gradually apparent in the bitter enmity between 
 the Duke of Gloucester and Cardinal Beaufort and his powerful 
 adherents. The hostile party found in Margaret of Anjou 
 not merely the queen of its choice, but also a party-leader 
 uniting manly spirit with feminine craftiness. The murder 
 of the Duke of Gloucester (1447) gained for the Court faction 
 thus leagued together the sway over the country in the King's 
 name, but at the same time brought upon it the bitter hos- 
 tility of the Duke of York and his partisans. The merited 
 unpopularity of the Government led in its turn to the im- 
 peachment and murder of the Duke of Suffolk (1450). 
 
 In the party passions, which had been now kindled on both 
 sides, the first schemes of the house of York for a succession 
 to the throne were displayed, to which this branch of the 
 royal family stood certainly nearer, after the death of Eichard 
 II., than the younger line of Lancaster. From the death 
 of the Duke of Gloucester (1447) all had gone badly in the 
 State ; Henry -the Fifth's conquests were lost ; and though 
 
 where such was allowed to be reserved of the King. A summary penal juris- 
 
 according to feudal principles, and diction of the council and the chan- 
 
 other individual acts of personal rule cellor ex delegatione of the council was 
 
 (Nicolas, ii. pp. 29, 30). Several lords expressly recognized by 2 Henry V. 
 
 were condemned without judgment of stat. 1, c. 9, in cases of murder and 
 
 their peers by judge and jury, on manslaughter, 
 account of a conspiracy against the life
 
 416 Constitutional History of England. 
 
 the constitution was safe, the administration at every step 
 failed in its duty; the Crown was impoverished, the Ex- 
 chequer empty, the peace of the country never well main- 
 tained, the law never well administered ; life and liberty of 
 the subjects were insecure, whole districts in constant dread 
 of robberies and tumult, and the local government either 
 weakened by factions or in the hands of some great lords or a 
 clique of courtiers (Stubbs, iii. 270). As early as 1454 the 
 mental disorder of the King led to a first protectorate of the 
 Duke of York, which again came to an end at the monarch's 
 apparent restoration to health. The major part of the nobility 
 held firmly in old feudal allegiance to the house of Lancaster. 
 The opposing party consisted of the Duke of York, the 
 greatest landowner in the realm, in league with the great 
 family of the Nevils and the city of London, and apparently 
 commanding the sympathies of the majority of the munici- 
 palities. The difficulties and financial distress of the Govern- 
 ment had meanwhile accumulated. The murder of the Duke 
 of Gloucester, at the instigation of Margaret, gave the signal 
 for the future action of the dynastic parties, who in con- 
 sequence of the wide ramification of the royal family by 
 marriage with the great nobles, represented two great oppo- 
 nents almost equal in power. With difficulty were the parties 
 kept within bounds for a few years by the constitution and 
 the outward reverence paid to the Crown. So soon as this 
 barrier was removed by the hopeless imbecility of the 
 monarch, a furious conflict breaks out, in which both parties 
 contend not against, but for the possession of royal power a 
 struggle in which acts of self-preservation, of violence and 
 revenge soon become almost inseparably entangled. (7) 
 
 (7) As to the Parliaments of Henry paid soldiery flocking homeward in 
 VI., see Parry, pp. 175-189 ; Stubbs, iii. thousands upon thousands were only 
 pp. 94-181. The first decades still too readily absorbed by a newly 
 give, in the face of the accumulating organized military system of the great 
 difficulties, a testimony of the capacity wealthy nobles, which became formed 
 of the nobility for rule. It was not after the beginning of the French wars 
 until the second half of the reign that under the name of " the liveries," and 
 the political organization slowly col- in which the warlike passions of the 
 lapsed. As early as 23 Henry VI., Middle Ages now burst forth in Eng- 
 Suffolk, in anticipation of coming land. Under " livery " was originally 
 events, refused to conduct the marriage meant the furnishing of officials and 
 negotiations with France. On this servants of a great householder, pre- 
 matter there was passed in advance a late, monastery, or college with cloth- 
 kind of indemnity bill, confirmed by ing and means of subsistence. The 
 both Houses and the King, but which clothing now took the character of a 
 did not afford any protection against uniform and badge of service ; and the 
 the subsequent impeachment of the greatest possible number of servants 
 minister. The unrestrained struggle and dependants was looked upon as a 
 that was now brewing resulted from a proof of a high and aristocratic position, 
 degeneration of that military organiza- The livery was accordingly given to 
 tion which was the outcome of the great all who were willing to wear it, as the 
 wars upon French soil. The royal sign of a great following and of au
 
 The Struggles of the King in Parliament. 417 
 
 The battle of St. Albans (1455) opens the thirty years' war 
 of the Roses. After a short period of apparent peace, the 
 King became, in 1460, a prisoner in the hands of his opponent, 
 who with great moderation brought about a decision of the 
 Upper House, which recognized the Duke of York as Protector, 
 and after Henry VI. 's death as his successor on the throne. 
 But the Duke, surprised by a stratagem of the Queen, was 
 overcome, and the victorious party gave the signal for the 
 execution of the captured opponents according to martial law, 
 and for unceasing massacres and violence, which in the very 
 next year brought about the overthrow of the hated Govern- 
 ment. The powers of the King's council and the whole 
 movable part of the political constitution became disunited in 
 this great struggle ; in which, in fact, there was no question of 
 a struggle for constitutional principles. Only so far as the 
 house of Lancaster had gained the throne by its alliance with 
 the clergy and Parliament, did the traditions of the Church 
 and of the high nobility stand more upon this side, and those 
 of the Commons more upon the other. Moreover, no eccle- 
 siastical legal authority could inform the people upon which 
 side the right to the crown "lay. In truth, each fought for his 
 share in the political power, and for retaliation and revenge. 
 Through Parliament no independent solution now appeared 
 possible. Each one was subservient to the victorious party 
 by which it was summoned, and condemned the other. Upon 
 
 influential position. The liveries be- with the stream of veterans returning 
 came therefore badges of union. from the French wars with their suc- 
 The lords wore one another's badges cessful experiences in field tactics, 
 out of courtesy. But before all the supplemented with the use of heavy 
 liveries became the counter signs of the artillery, before which the old glory of 
 great court parties, and the emblems the bowmen had begun to pale. The 
 under which the battles of the great issue of the struggles, with such a mix- 
 dynastic factions were waged (Stubbs, ture of warlike elements, was depen- 
 iii. 531, 534). With this was con- dent upon surprise and accident to 
 nected the frequent fortification of the such an extent, that the battles of the 
 residences and castles of the magnates, following period mostly ended in 
 which though really dependent upon massacres, and were decided in a few 
 royal licence, after the times of the hours. In connection with this con- 
 barons' wars had been permitted in dition of things now begins the series 
 numerous instances, especially under of laws relating to liveries and main- 
 Edward III. It was precisely the con- tenance, and first of all in 31 Henry 
 trast between the strictly ordered life VI. c. 2, the recognition of an extra- 
 of the English county and the adven- ordinary penal jurisdiction of the 
 turous camp life which had lasted so council in oases of "great riots, ex- 
 many years in France, which awoke tortions, oppressions, and grievous 
 afresh in the chivalrous part of the offences," especially in the case of 
 great nobility and the knighthood the violent acts of the magnates; dis- 
 daring and martial spirit of the Middle obedience to the council is to be pun- 
 Ages, and the pride and insolence ished as contempt of the King, in the 
 of the knighthood towards the peace- case of a peer with loss of his goods, 
 ful classes, and made this epoch a his offices, and of his seat in Parlia- 
 brilliaut era in heraldry and in family ment. This regulation was only to be 
 pride. These retinues of the nobles in force seven year?, but it become a 
 concurred in a most remarkable manner precedent for the later Star Chamber. 
 
 2 K
 
 418 Constitutional History of England. 
 
 the temporal side the prime cause of the confusion lay in the 
 military organization of the retinues of the great lords, the 
 "liveries," now forming the uniformed corps of extemporized 
 leaders, increased tenfold by the enlistments of soldiers of the 
 armies returning from France, and these made the issue of 
 the battles altogether incalculable. The county militia formed 
 no sufficient counterpoise, so long as it was opposed to the 
 masses of the more skilled warriors who were perpetually 
 streaming back from France. Upon the ecclesiastical side the 
 mischief lay in the indifference of the Church, in which per- 
 sonal religion had become lost, whilst the higher clergy, 
 without any guiding principle, recognized every political 
 power which recognized their worldly possessions. As among 
 the confusion of the barons' war at the close of the preceding 
 period, the higher clergy made themselves conspicuous in the 
 'persons of a few distinguished individuals, so did a change in 
 the intellectual and moral education of the epoch announce 
 itself in the fact that this period of wild struggles appears as 
 an " era of great jurists," in which lord chancellors and 
 justices of the realm make themselves famous in a time of 
 violent barbarity, without however being able to secure the 
 course of justice from serious abuses. (7 a ) 
 
 CbfoatiJ IF. (1461-1483). 
 
 The victory of the White Eose over Margaret of Anjou 
 brought the heir of the house of York upon the throne. The 
 bloody conflict of annihilation waged by the high nobles among 
 themselves and particularly the indifference of the Church and 
 of the masses to the aristocratic parties, made Edward after a 
 short interval lord of the land, in a time of deep demoraliza- 
 tion, in which the existing contrasts of the English Middle 
 Ages came to a violent issue. The long French wars, in spite 
 
 (?) The first protectorate in 32 Henry It had long and gloriously fulfilled the 
 
 VI. was made constitutionally revocable duties of the monarchy, and entered 
 
 durante bene placito regis. The second with two generations of Englishmen 
 
 protectorate was appointed for an inde- into the bond of mutual faith, protec- 
 
 rinite period, until the duke should be tion, and allegiance. Could a claim 
 
 relieved of it by the lords in Parliament. of the older line be now entertained? 
 
 Themembersof the council became more But the King was notoriously incapable 
 
 fluctuating. Even in the previous year of governing, and in his name the per- 
 
 fifteen members had been dismissed, secuting spirit of Margaret had, after 
 
 and, on the other hand, five adopted her victory of 1460, begun a system of 
 
 into it from the party of the duke. executions, confiscations, and actions 
 
 The claim of the house of York to the for treason, which left the house of 
 
 succession was already expressly pro- York, its party and partisans, according 
 
 claimed. With the consent of the to the law of self-preservation, nothing 
 
 nation and of Parliament, the house but a recourse to arms, and to the nation 
 
 of Lancaster, for a period of sixty years scarcely any other choice than that of 
 
 had sat upon the throne of England, siding with one or the other party, 
 with the support of the Parliaments.
 
 The Struggles of the King in Parliament. 419 
 
 of all their brilliancy and glory, had proved a hopeless under- 
 taking. The European position of England demanded a final 
 settlement with the Continent, which at last resulted in favour 
 of the French nation, and once and for all decided the 
 national isolation of England and its position in the European 
 family. In the course of some decades of war upon French 
 soil, a race had grown up which no longer found room in the 
 peaceful counties and towns of its native home. Grown tur- 
 bulent through the effects of camp life and of a course of 
 plunder and extravagance, the lords now returning home found 
 it even harder to settle down in their native country than 
 did the thousands of hirelings. In the sober local govern- 
 ment, in the English military, judicial, and police admini- 
 stration there was no longer a field for military ardour and 
 plunder. Now that these elements were thrown back in large 
 numbers upon England, the struggle of the rival noble 
 factions found in the soldiery accustomed to their leadership 
 only too ready a material, out of which every rich and popular 
 leader could frame for himself armies for civil war. Owing 
 to the contested title to the Crown a party standard was found 
 for all factions. The wild aristocratic struggle owed its peculiar 
 character precisely to the alliance of all the great noble families 
 with the wide-spreading royal house, and to the centralization 
 of all political power in the King in council and the King in 
 Parliament. The politic head of the Yorkists, representing 
 the interests of the boroughs and the country's need of rest, 
 gained the victory at the expense of the great families of 
 the land. Supported by the Commons, Edward IV. declared 
 the rule of the kings of the house of Lancaster to be usurpa- 
 tion, the Lancasters, Somersets, Exeters, Northumberlands, 
 Devonshires, Wiltshires, and in all one hundred and fifty-one 
 nobles, knights, and clerics guilty of high treason; not by 
 judgment of a court of law, but for the sake of shortening 
 the proceedings, by " bill of attainder." One-fifth of the land 
 fell by outlawry and confiscation into the hands of the King, 
 who restored a personal rule with .pitiless severity. But in mar- 
 vellous contrast to the former period, there is seen, amidst all 
 the confusion, the coherence of the firm elements of the 
 present political system. Amidst the din of arms, courts of 
 justice, itinerant justices and juries went on in their usual 
 course, and the jurisdiction of the Chancellor was enforced 
 against fraud, deceit, violence, and disturbance of possession 
 by decrees of probatio in perpetuam rei memoriam and habeas 
 corpus, and this whilst the nobles fought in the King's council 
 with intrigues, and in open field with drawn swords. (8) 
 
 (8) As to the Parliaments of Edward 188-190 ; and iii. c. 18, " Lancaster and 
 IV., eee Parry, 189-194; Stubbs, iii. York"). The entire barrenness of all
 
 420 
 
 Constitutional History of England. 
 
 CBMuarU F., 
 
 ffl. (1483-1485). 
 
 The royal power of Edward IV., so cruelly gained and so 
 mercilessly exercised, fell after the murder of his sons to the 
 usurper Eichard III., who in vain endeavoured to expiate by 
 popular concessions his heavy crimes against all the laws of 
 God and rights of man. After the organized military power 
 of the higher nobility had collapsed, the chief importance for 
 a short time centred in the House of Commons, which, how- 
 ever, with the exception of a bill against "benevolences," 
 showed activity only in the matter of penal prosecutions and 
 private bills. Forsaken by the greater part of his adherents, 
 Eichard III. succumbed to a coalition of the remains of the 
 two factions of nobles, and lost, by violence and treachery, 
 to the new house of the Tudors, the throne which he had 
 hardly gained. (9) 
 
 the contemporary histories extends also 
 
 to the parliamentary proceedings, which 
 
 are mere registers of private bills and 
 
 petitions of trade. It is the first Govern- 
 
 ment under which no single statute 
 
 was passed for the protection of personal 
 
 liberty and for the redress of national 
 
 grievances, although in this reign the 
 
 administrative abuse of the so-called 
 
 " benevolences " begins for the purpose 
 
 of defeating the right of granting taxes. 
 
 It is a reign of terror by reason of the 
 
 ruthless exercise of the extraordinary 
 
 judicial and police powers, which kept 
 
 the proscribed adverse party under con- 
 
 stant surveillance, though the descend- 
 
 ants of the party leaders who were con- 
 
 demned to death and confiscation were 
 
 for the most part restored by parlia- 
 
 mentary decree to their right of succes- 
 
 sion. The condition of the realm under 
 
 Edward IV. was actually one of war, 
 
 although in name it was under a 
 
 government acknowledged by Parlia- 
 
 ment. Thus can be explained the em- 
 
 ployment of courts-martial under the 
 
 King, especially the much-talked-of 
 
 patents of 1462 and 1467, by which a 
 
 provost-general was appointed, " ad 
 
 cognoscendum et procedendum in omni- 
 
 bus et gingulis causis et negotiis de et 
 
 super crimine Isesse majestatis csster- 
 
 isque causis, quibuscunque per prasfatum 
 
 comitem ut constabularium Anglise, seu 
 
 coram eo, motis, movendia seu pendenti- 
 
 bus et," which Lord Coke considers con- 
 
 trary to the constitution (Inst., vi. 127), 
 
 and from which proceeded the con- 
 
 troversy respecting the admissibility of 
 
 courts-martial in times of peace. The 
 
 occasional precedents for execution 
 without trial of captive opponents 
 which occur under Henry IV. and V. 
 are followed in the wars of the Roses 
 by frightful consequences. Occasional 
 instances, too, of the use of torture in 
 criminal proceedings are met with in 
 this reign of terror, but cannot be re- 
 garded as the regular procedure of the 
 courts. 
 
 (9) As to the Parliament of Eichard 
 III., see Parry, 194; Stubbs, iii. 226, 
 233, 234. What is outwardly incredible 
 in the criminal career of the tyrant is 
 psychologically explainable as being 
 the incarnation of a deeply demoralized 
 time, in which, together with the ex- 
 tinction of all principles of law, all 
 moral restraint became loosened by the 
 decay of a Church which even re- 
 sponded to the flatteries of Richard III. 
 The repeated attempts to clear the 
 character of Richard III. have all failed. 
 The dramatic masterpieces of Shake- 
 speare, dictated as they were by tradi- 
 tion and knowledge of the English cha- 
 racter, may be regarded as an historical 
 sketch of this period. At the close of 
 the wars of the two Roses, men had to 
 tell of twelve pitched battles, and of 
 eighty princes of the blood royal who 
 lost their lives in the battle, by the 
 hand of the executioner, or by murder. 
 Moreover, authentic history is enough 
 to show that in this tragic period 
 blood-guiltiness and retaliation follow 
 one another with marvellous constancy. 
 In the main the picture given by 
 Stubbs (ii. 306) *nay be regarded as a 
 mirror of the whole period. "It is a
 
 The Three Estates of the Realm. 421 
 
 The monarchic power emerged from this hideous struggle 
 with a title that could not be practically disputed, and with 
 an undiminished supremacy. But when the blood shed in 
 the struggle of the rival noble factions had ceased to flow, 
 the Lower House had attained that full equality of power with 
 the weakened Upper House, with which this period closes. I 
 
 CHAPTER XXVIII. 
 
 of tfje <CUalm. 
 
 USURPATIONS and dynastic struggles veil the process of the 
 legal formation of the estates, which was being brought about 
 during this period in a quiet and unbroken course, according 
 to the sound principle of the Middle Ages, that of basing the 
 privileged position of the higher classes upon their perform- 
 ances in the personal service of the State, and upon the 
 amount of their contributions to the revenue. The merit of 
 having successfully established this legal order belongs again 
 to the monarchy. The words of Edward I. in the struggles 
 for the consolidation of his island-realm were not forgotten, 
 when he demanded of his faithful communitates that they 
 should meet common perils with united resources, and take 
 counsel with the King when the military and financial forces 
 of the Government required to be increased " ut quod omnes 
 tangit db omnibus approbetur." The truly royal idea which 
 influenced Edward I. and Edward III. is the combination of 
 all antagonistic elements of society in a free activity in the 
 service of the State, and the association of the people in the 
 great tasks of the State, internally and externally, including 
 every class of society capable of co-operating in the work. 
 
 It is now the prelates and the temporal magnates who, by 
 reason of their performances in the service of the State, 
 represent a ruling nobility, the middle classes (knights, 
 freeholders, boroughs), who, according to the ideas of rank in 
 those times, form a regular third estate the three now legally 
 
 period of private and political faction, but leaders and allies of the Commons, 
 
 of foreign wars, of treason laws and or followers of the Court. . . . The royal 
 
 judicial murders, of social rebellion, of policy had placed the several branches 
 
 religious division. . . . The barons were of the divided house at the head of the 
 
 no longer feudal potentates, with class great territorial parties." 
 interests and exclusive privileges . . .
 
 422 Constitutional History of England. 
 
 recognized status civiles of the English parliamentary con- 
 stitution on whose account this period is described as the 
 period of the " estates of the realm." As, however, lords 
 spiritual and temporal are bound together by essentially 
 uniform rights, and on the other hand the knighthood is 
 distinguished by certain privileges from the rest of the com- 
 moners, in this chapter we distinguish : 
 
 I. The estate of the spiritual and temporal peers ; 
 
 II. The estate of the landed knights ; 
 
 III. The estate of the freeholders and burgesses ; to which 
 may be added, IV., the whole of the rest of the community as 
 'infra classem. 
 
 I. faty estate of tftf spiritual auto temporal magnates has now, 
 .as a result of the position they had actually attained under 
 Henry III., come to be a legally recognized estate of the realm, 
 by the formation of the Magnum Consilium, which conceded 
 to them a personal share in the conduct of all important 
 business, and with it the highest political privilege of the 
 time. For the spiritual lords a seat and vote in the great 
 council is connected with definite high spiritual offices. In 
 the case of the temporal lords the right is, as a rule, in- 
 heritable by the firstborn son, or even by some other heir, 
 according to the wording of the patent granting the peerage. 
 To the old rights of the English feudal tenure this political 
 right was only added as a fresh privilege by personal grant 
 from the King on the formation of the Magnum Consilium. 
 In consequence, the justices in 7 Henry VI. assumed that 
 the claim to the name and title of a peer (as a right of 
 property) belonged to the jurisdiction of the common law 
 courts, wiiilst the claim to a seat in Parliament must be 
 determined by the " King and the peers," the latter as a 
 new creation of the jus publicum (Nicolas, Privy Council, iii. 
 p. 58). 
 
 The spiritual peers, now generally consisting of two arch- 
 bishops, nineteen bishops, twenty-seven abbots, priors, and 
 masters of orders, have, according to old usage, precedence of 
 the temporal peers, the archbishops of the dukes, the bishops 
 of the earls. Their right to a seat and vote in the great 
 council is perfectly equal to that of the temporal lords. Their 
 legal privilege of being judged by the Upper House has not 
 arrived at any regular development, because, not without 
 reason, they considered the claim to the privilege and benefit 
 of clergy as more valuable. Moreover, their social position 
 has remained on an equality with the pretensions of the 
 temporal lords, which have now risen high. The archbishops 
 keep up their establishments upon the same scale as the 
 dukes, the bishops live like the earls. They hold their court
 
 The Three Estates of the Realm. 423 
 
 with as numerous a staff of officials, servants, and followers, 
 and travel like the temporal nobles with an armed retinue 
 and great train. Though their interest in the army is less, 
 yet on the other side they have a proportionately firmer posi- 
 tion in the leadership of the Church, and in their personal 
 experience in conducting the higher administrative business. (1) 
 The temporal bench of peers consists at the close of the 
 period of the five degrees of dukes, marquises, earls, viscounts, 
 and barons, numbering under Henry VI. about forty or fifty 
 in all. They have at the close of the period attained the 
 hereditary rank for which they have long striven, in the legal 
 form of a royal grant by patent, which at the same time defines 
 the order of descent. Side by side with the peers by patent, 
 there still appear certain barons by writ, though in continu- 
 ally diminishing numbers, for whom the hereditary summons 
 is dependent upon custom. Besides these, there still con- 
 tinues a small number of personal summonses, particularly 
 for bannerets of the army then existing, which in the course 
 of this period come de facto to an end. The most illustrious 
 families in the land form at the close of the Middle Ages an 
 estate of nobles, yet one restricted to the most modest degree 
 of birth-nobility, only passing to the eldest son, or the other 
 legally entitled heir, without giving any right to pretensions 
 to an ennoblement of blood, nay, under the express acknow- 
 ledgment that all members of the family (except the wives 
 and widows) belong to the class of commoners, and have no 
 share in the privileged right of appearing before the peers' 
 court, or in the other privileges of the nobility. (l a ) 
 
 Meanwhile, the numbers of the temporal peerage, as was 
 the case in the former period, underwent the most frequent 
 and considerable fluctuations. The great families of the 
 Norman period had partly died out or been dispossessed, and 
 had partly become connected by marriage and inheritance 
 with the possessions of the royal family. After Edward I., 
 the tendency was evidently to grant the greatest dignities and 
 possessions of the earldoms, and a fortiori the recently created 
 
 (1) In extent, the baronies and feudal troops, or had obtained express 
 knights' fees of the prelates were at exemption. The Bishop of Lincoln, 
 this time certainly rather less than who under Henry II. was required 
 that of the lords temporal. Many to furnish sixty horse, was reduced by 
 bishops and abbots possessed by Edward I. to five ; the Bishop of Bath 
 knights' tenure not nearly as much as from twenty to two, and so forth, 
 belonged properly to a barony, accord- (1") With reference to the slow and 
 ing to the Exchequer scale, but only gradual origin of the hereditary peerage, 
 single knights' fees according to the and the numerous controversies re- 
 old valuation. The number of their specting it, I may refer to the excursus 
 under-vassals now appeared to be re- to Chapter xxiv. See also Stubbs, i. 
 markably diminished, as the spiritual 176. The courtesy title of the sons 
 lords had in course of time to a great of peers is not legally recognized, 
 extent evaded the actual furnishing of
 
 424 Constitutional History of England. 
 
 dignity of a duke, only to members, or at all events to near 
 kinsmen of the royal house. Henry IV. sought to strengthen 
 the usurped throne by the creation of a great family en- 
 tailed estate, the legal results of which, to some extent, still 
 remain. With this view the Duchy of Lancaster was 
 formed, by union of the counties of Leicester, Lancaster, 
 Lincoln, and Derby, that is, by union of the numerous 
 demesnes situate therein, and of all those manorial and judi- 
 cial jurisdictions, which were to secure the ducal house an 
 influence in wider spheres. The " palatinate" jurisdiction of 
 the duchy included, accordingly, a number of baronies in the 
 most various counties. In effect, this accumulation of the 
 possessions and family connections of the great families of 
 the land had only one result, that it involved the whole of 
 these elements of influence in the fall of the royal house. 
 The great baronies of Buckingham, Norfolk, and Warwick, 
 were almost equal to the royal possessions. For the purposes 
 of the defence of the country, the greatest number of great 
 lordships was to be found in Yorkshire and the Welsh marches ; 
 the greatest number of small baronies in the southern counties. 
 Whilst in the midland counties great baronies were less rich 
 in lands, on the other hand the influence of the Crown had, 
 in consequence of the manorial and judicial power of the 
 duchy of Lancaster, become predominant. With the pro- 
 gressive development of agriculture the revenues of the great 
 landed estates increased to an extraordinary degree. As early 
 as the fourteenth century great landowners are mentioned 
 upon whose estates were counted 24,000 sheep, 500 horses, 
 and several thousand head of cattle. But with increased 
 wealth enormous expenditure had also grown up, of which the 
 Black Book of Edward III. affords us a graphic picture, 
 computing the expenses of the royal household at 13,000 
 annually, of that of a duke at 4000, of a marquis at 3000, 
 of an earl at 2000, of a viscount at 1000, of a baron at 
 500, of a banneret at 200, of a knight at 100, and of an 
 esquire at 50. The expense connected with rank in aristo- 
 cratic display at these times was shown in a great retinue 
 of armed knights, chaplains, clerks, motley soldiers and 
 servants in uniform, a display which was considered obliga- 
 tory, according to the notions of rank in those days. The 
 Court Calendar (the "Black Book "), claims for an esquire 
 16 servants, for a knight, 16; a banneret, 24; a baron, 26; a 
 viscount, 84 (20 esquires, 40 yeomen, 24 grooms) ; an earl, 130 ; 
 a duke, 230 (6 knights, 60 esquires, 100 yeomen, 40 grooms, 
 24 stablemen). The retinue of the King himself was esti- 
 mated only at about twice the number of the followers of a 
 duke.
 
 The Tliree Estates of the Realm. 425 
 
 These manners of the times coincide in a singular manner 
 with the military organization in the French wars, which 
 has heen discussed ahove. Under Edward III. a condottiere- 
 system had begun, by which the warlike lords furnish, lead, 
 and even train whole divisions for the great war. The flower 
 of these divisions is formed of private court-officials, sub- 
 vassals, retinues, tenants, and servants, who are joined by 
 warlike freeholders from the county militia, trained to martial 
 exercises under officers of the knighthood. But the customary 
 and military exercises give the barons a still greater ascend- 
 ancy, for they find on their own estates the means to equip 
 larger corps, and to drill them in the customary manner. 
 Their dependants form the cadres of legions, which can easily 
 be mobilized. It was certainly only the King who possessed 
 the financial resources requisite for keeping together these 
 masses for any length of time, by giving high pay. But the 
 lords were at the same time in a position, by forming coali- 
 tions, to collect armies, whose sudden attacks the King under 
 unfavourable circumstances was unable to withstand. Even 
 after the close of the first period of the French wars, this 
 danger showed itself under the unstable rule of Eichard II., 
 and, after many vicissitudes, led to the deposition of the 
 King. Under his successor, we meet with feuds undertaken 
 by the nobles, in which some few discontented barons, within 
 a few weeks, advance against the King with armies of from 
 six to eight thousand men (e.g. in 1405). The martial 
 characters of Henry IV. and Henry V., knew how to curb 
 this refractory spirit, and to divert its activity to the soil of 
 France. 
 
 This military organization, combined with the tolerated 
 fortification of numerous castles and manorial mansions, 
 turned out quite as disastrous for the dynasty, as for the 
 nobles and the country, in the outbreak of the furious war of 
 the Eoses. The two great dynastic factions, with their re- 
 tinues of armed followers and hired troops, spread the party- 
 spirit among the knighthood, the counties, the towns, and 
 the parties in the Lower House, and finally split up the 
 whole country into two camps of almost equal strength. 
 Like an anachronism, the chivalry of the Middle Ages once 
 again revived with all the mischief of private feuds, and all 
 the ceremonial of a pedantic heraldry. The armed retinues 
 in uniform (liveries), became at once the nucleus of a faction 
 and a clientele, which, with its powerful party machinations, 
 interfered with the administration of justice and the main- 
 tenance of the peace, and after the era of the wars of the 
 Eoses moved the English legislature to proceed with laws, 
 frequently renewed and rendered more rigorous, against
 
 42 G Constitutional History of England. 
 
 " liveries, maintenance, and champerty." (l b ) This revival of 
 the chivalrous feuds of the Middle Ages in no way harmonized 
 with the legal organization of the military system, especially 
 that of the county militia, nor with the strict discipline of the 
 courts and the police, the position of the justices of assize, 
 and the commissions of justices of the peace. But it was 
 just this contradiction between the inclinations of the higher 
 classes and the rules of law, which placed the high-handed 
 fashions of the time in harsher and more overbearing oppo- 
 sition to the common law of the land. The adoption of the 
 French language, manners, and customs, by the upper classes 
 of these times is similarly connected with the French wars ; 
 but all this was nevertheless powerless in the face of the 
 firmly established foundations of the English constitution, 
 and the position of the third estate, and therefore it was 
 that in the thirty years' wars of the Boses it hurried the 
 baronial sway to its certain downfall. 
 
 II. f&ty estate Of tf) fenigljtS, or rather of the landed gentry, 
 which proceeded from the blending of the lesser Crown 
 vassals with the sub-vassals and great freeholders, has now 
 won a prominent political position through the right of 
 electing and being elected to the Lower House, in which 
 latter it is a step in advance of the, municipal burgesses. Its 
 title to this position is based, as in the case of the peerage, 
 upon personal service for the State, and upon the amount of 
 taxes paid. 
 
 According to the gradually increasing uniformity in the im- 
 position of the land and income taxes, the English gentry 
 (very different from that of the Continent) was a chief basis 
 of direct taxation, of which the knights' estates, certainly 
 more than six thousand in number, according to the scale of 
 the feuda militum, formed a principal factor. Although the 
 knights' estates (regard being had to their relevia and other 
 feudal dues) were taxed, as a rule, as compared with the 
 
 (l b ) For the origin of the liveries the in consequence of the badges of ser- 
 necessary data have been already given. vice, extended to an excessive number 
 The earlier statutes under the house of quarrelsome followers, whom they 
 of Lancaster had reserved to the King themselves were unable any longer to 
 the right of granting liveries and badges control, and whose deeds of violence 
 of unions, as well as to allow the lords, led to the oppression of the population 
 the universities, the Lord Mayor of around them, and who also when pro- 
 London and others, to put their servants secuted by the criminal and civil courts, 
 in uniform. The lords especially had prevented the course of justice by the 
 been allowed to distribute uniforms, union of powerful bodies and the pro- 
 hats, and emblems to armed soldiers, tection of the great lords_(maintenance 
 as well as to fortify their castles in and champerty), and exposed the de- 
 great numbers : thus had the way for fenceless people to a powerful party- 
 the catastrophe of the war of the Roses tyranny. A survey of this form of 
 been unconsciously prepared. The faction, and the legislation affecting it, 
 protection of the great magnates was, is given in Stubbs, iii. sees. 470-475.
 
 The Three Estates of the Realm. 427 
 
 boroughs, in a proportion of one-fifteenth to one-tenth, yet 
 they remained, in this as in the following period, the principal 
 contributors to the direct taxes of the country. (2) 
 
 Still more prominent and secure did the position of the 
 knighthood appear, owing to their personal performances, in 
 the now fully developed system of self-government. The 
 military organization had, by a qualification of 15, arranged 
 the knighthood as the first class in the county militia, and thus 
 given it a prospective claim to the officers' places. In the 
 constitution of the counties, the knights had ever formed 
 the nucleus of the suitors ; and in the formation of the 
 magna assisa, and in the later extension x>f the jury system, 
 they invariably remained at the head of the list of jurors. 
 But the new institution of justices of the peace places the 
 knights still more completely in an ubiquitous position at the 
 head of the local government, to represent which, the knights, 
 in their position as officers of the county militia, as jurors, 
 and as police magistrates, had such a natural claim, that 
 for generations we find the same names as representatives of 
 their respective counties. 
 
 The executive had evidently a high interest in these services. 
 But the State, as such, had no interest in restricting to certain 
 families the claims arising therefrom, and in excluding all 
 other classes from acquiring such rights. The English 
 monarchy was strong enough and resolute enough to defend 
 the true interests of the State in the formation of the estates 
 of the realm, and thus to give the English aristocracy that 
 sharply defined contrast which it presents to the formation of 
 the inferior nobility in Germany and France, by following out 
 the three lines of legislation laid down in the preceding period. 
 
 1. By the alienability and divisibility of the knights' fees, 
 which had been already in Norman times permitted by royal 
 licence, had been recognized again in Magna Charta, and was 
 
 (2) The statistical authority for the that the great groups of estates, both 
 feudal tenure of this period is the in number and total size, when corn- 
 feudal book frequently cited under the pared with Domesday Book, appear 
 name Testa de Nevill. Jt appears to to have increased, whilst Crown vassals 
 have been compiled at the end of the of a medium estate of from three to 
 reign of Edward II., or the beginning ten knights' fees are now seldom met 
 of that of Edward III., yet employing with. In the above-named sum total 
 materials which according to official are reckoned also the' numerous "ser- 
 proofs date from the time of Henry jeanties," as well as the efs under 
 III. and Edward I. It contains six wardships, and the escheated fees, 
 thousand three hundred registered which were under royal management, 
 names of great and lesser Crown and JFrom this confused material, which ia 
 sub-vassals. The latter, however, have only intended for the Exchequer ac- 
 been incompletely given ; .for where counts, a graphic picture can at once 
 the immediate vassal makes his pay- be gathered of the splitting up of the 
 ments direct to the Exchequer, the fees into fractions, and of the intricate 
 sub-vassals are included in the summary confusion of the greater landed es- 
 statements. It is worth remarking tates.
 
 428 Constitutional History of England. 
 
 more clearly defined in the statute Quia Emptores, 18 Edward 
 I. c. 1. For alienations of Crown fiefs the sanction of the 
 King was still reserved, but the neglect to obtain it only 
 entailed a moderate fine (1 Edw. III. c. 12). Herein the 
 policy was evidently pursued of facilitating the division of 
 great landed estates, multiplying the number of the Crown 
 vassals and freeholders, and of entirely prohibiting for the 
 future the creation of new manors, with their courts baron 
 and police. A class-contrast between " noble " and "roturier " 
 tenants of knights' fees after German fashion could never 
 arise in England. But what was thus withheld from the 
 ambition of the knightly families to keep themselves apart, as 
 the propertied county nobility, redounded to the good of the 
 knighthood as a whole, by according an enhanced political 
 influence to the entire landed class. 
 
 2. The second legislative tendency was to keep the honour 
 of knighthood open to all liberi homines who had possessions 
 sufficient to enable them to learn and perform the heavy 
 service of horsemen. In the interests of the national de- 
 fence and the finances, a practice was begun by the Ex- 
 chequer under Henry III., in 1254, of officially demanding 
 of all greater landed proprietors, under threat of penalties, 
 that they should cause themselves to be made knights. The 
 frequently changing practice demanded this of all possessors 
 of freeholds, varying according to a scale of 10, 15, 20, 
 20, and 40 annual value, which last sum was finally fixed 
 under Queen Elizabeth, in consequence of the altered value of 
 money. These coercive measures had no particular effect, 
 as the majority of landowners preferred paying the fine for 
 neglecting to acquire the honour of knighthood ; perhaps in 
 order to escape the manifold burdens of the jury service and 
 other duties. At all events, whilst a general obligation of 
 the great landed proprietors was adhered to, the idea of an 
 exclusive right in certain families to the dignity of a knight 
 could not here arise. Pursuing the same tendency, the 
 monarchy never permitted a limitation of the prebendal stalls 
 in the cathedral and collegiate foundations to a narrow circle 
 of privileged families, nor the assertion of proofs of nobility 
 and other creations of so-called "autonomy," such as were 
 built up in Germany on the impotence of the executive. 
 
 3. These were the reasons why the class of landowning 
 gentry in England did not become a hereditary order; never- 
 theless, class privileges were accorded to them which har- 
 monized with their actual services in connection with local 
 government and the payment of taxes an exclusive qualifica- 
 tion for knights of the shire. The political right resulting 
 therefrom, which in course of time was destined to become
 
 The Three Estates of the Realm. 420 
 
 the most important of all privileges, was now, however, based 
 upon the newer form of the county constitution, independent 
 of the older rank in the feudal militia. The deputies were 
 still called knights of the shire, but the new dignity of a 
 county member was regarded as independent of the honour of 
 knighthood. In quite early times we meet with numerous 
 esquires among the deputies, who were, after the election, 
 symbolically girded with the sword in the county court, in 
 order to satisfy the letter of the law ; at the close of the 
 Middle Ages the majority were only esquires. It was in the 
 nature of the case, that those landowners who preferred, as 
 justices of the peace, to devote themselves to agricultural 
 pursuits and local interests, were just the men who, caring 
 little for court duties, military adventures, and the honour of 
 knighthood, should be chosen as deputies. The legal recog- 
 nition of this well-acquired right was contained in 23 Henry 
 VI. c. 15 (1444), to the effect that only notable knights and 
 such notable esquires and gentlemen of the county were to be 
 elected, as could become knights, but no yeomen and inferior 
 persons. 
 
 Thus was a privilege conceded, as modest as that of the 
 peerage, and not recognizing a greater amount of privilege 
 of nobility than arose from the duties which the actual pro- 
 perty rendered or could render, with certain still more modest 
 honours extending only to the sons of the landowner, and no 
 further. What was thus withheld from the aspirations of 
 the individual families was again made good by the enhanced 
 political influence of the whole class. The political position 
 of the knighthood was recognized, without prejudice to family 
 rights and social position. The county gentleman was quite 
 as proud of his old family and coat of arms as the great 
 baron, whose possessions often commenced centuries later 
 than his. The esquire bore on his coat of arms a helmet 
 and a shield, and had a very lively consciousness of a higher 
 warlike vocation, even before he gained knighthood and the 
 golden spurs. His younger sons generally received their edu- 
 cation in the house of a nobleman, and he very frequently 
 allied himself by marriage with the families of the higher 
 nobility. But more valuable than these knightly honours 
 stood the squire's influence in the district, in which his posi- 
 tion was undisputed : in the offices and dignities of sheriff 
 and justice of the peace ; in county court and great jury, and 
 also as representative of his county in the House of Commons. 
 
 An anomalous epoch, the way for which was prepared by 
 the French wars, was ushered in under Henry VI. With 
 French kinships and fashions, with French language and 
 manner of life, new chivalrous manners spread from the
 
 430 Constitutional History of England. 
 
 higher nobility to the knighthood. The great dynastic spirit 
 of faction seized upon the counties. The outbreak of the war 
 of the Roses recalled the period of club law under Stephen. 
 Although the legal duel had been virtually abolished by the 
 action of the legislature, yet the chivalrous notions con- 
 nected with it did not die out. The Court of Chivalry had 
 at that time attained a certain importance. The brilliant 
 successes, the immense booty, the adventurous life of the 
 armies in France appears to have once more introduced into 
 an otherwise prosaic period all the romance of chivalry. 
 Daily intercourse with the French nobility and their social 
 views, and a camp life of many years' duration far away 
 from home, naturally increased to a great extent both class 
 pride and military esprit de corps. (2 a ) 
 
 In spite of this transitory variation, the mainstay of the 
 knight's position in the provincial district remained, unaltered 
 and undisturbed, based on his activity in the life of the country. 
 For this reason the knights appear, from the first, to have 
 had a regulating influence in the House of Commons. Though 
 under Edward I. Norman names predominate among knights 
 of the shire, yet by degrees English names become more 
 constant. The same family names recur more and more re- 
 gularly in Parliament, as well as in the parties of the court 
 
 (2 a ) The leanings of the English patent appointed an hereditary ban^ 
 knighthood in this period have been neret. Under Edward III. and Henry 
 described by me in an article upon IV. the orders of the Bath and the 
 the " gentry " in Ersch and Gruber's Garter were founded. The ceremony 
 " Real-Encyclopadie." Under the in- of creating a knight was revived with 
 fluence of the great wars subsequent great solemnity. The dignity of the 
 to Edward I., and especially under banneret was for a time regarded de- 
 Edward III., certain movements in this finitely as a degree of nobility, and 
 direction were already working. Tour- therefore it was that under the pro-- 
 naments which were hateful to the tectorate of the nobles in Richard II. 
 prevailing public opinion, and which the election of a banneret to be a 
 had been at times strictly prohibited, knight of the shire was declared to be 
 came again into honour under Richard inadmissible. Occasionally also in the 
 II. ; the use of escutcheons as family statutes of this time the characteristic 
 emblems had become an established of the generosus a nativitate was men- 
 custom in the French wars, and was tioned. Further than this, the legisla- 
 under Henry VI. regarded as an here- tion of Parliament never proceeded, 
 ditary right. Under Richard II., for The duties which the laws of the realm 
 instance, a patent occurs in which John had already imposed upon the great 
 de Kingston is designated as "re- landed proprietors in military, judicial, 
 sceivez en I'estate de gentilhome et lui police, and tax-paying departments 
 fait esquier." Under Henry VI. a were all too serious and too burdensome 
 certain Bernhard Angevin was raised to admit of attaching the idea of a 
 with a formal " nobilitamus" to the in- nobility of birth to the mere descent 
 ferior nobility. It was now a time in from former owners of knights' fees. 
 which the herald's office played a part That tendency is only a transitory one, 
 with its rules of tournaments, shields, as was the system of paid soldiery. It 
 escutcheons, pedigrees, and in which is only permanent institutions which 
 pretensions to gentlemanly condition decide the question of class-distinc- 
 or degree were directly raised. In 29 tions. 
 Edward III. John Coupland was by
 
 The Three Estates of the Realm. 431 
 
 and the great council ; and towards the end of the period 
 the growing respect for the Lower House is manifested by 
 the entrance into it of younger sons of the higher nobility. 
 In the year 1549 Sir Francis Kussell, son of the Earl of Bed- 
 ford, was the first instance of an heir to a peerage taking a 
 seat in the Commons. The knights of the shire are per- 
 manently the leading members of Parliament an honourable 
 and brave element which stamped its character upon the 
 proceedings of the Lower House. The representation of the 
 constitutional rights and liberties of the nation until the close 
 of the Middle Ages was undertaken purely by the knighthood 
 in the Lower House, where, as a matter of course, the 
 Speaker was also chosen from among the knights of the 
 shire. (2 b ) 
 
 The so-called " educated classes " in England, as in Ger- 
 many, come next after the knighthood. In a class system 
 which bases its graduations upon landed property (or rather 
 upon the services of real estate), all intellectual labour, as 
 such, is still extra classem. Yet it, too, takes an important 
 share in the functions of self-government, and thereby also 
 a share in the privileges of the knighthood. 
 
 Especially is this true of the parochial clergy. Whilst the 
 prelates with their tenure by barony belonged to the noble estate 
 of the realm, the higher parochial clergy shared the rank of 
 the knighthood, and in convocation had their own parlia- 
 mentary representation. By the appointment of parochial 
 clergy upon commissions of the peace, they also participated 
 in the political influence of that magisterial office. Next in 
 order came the universities with their ecclesiastical institu- 
 tions, their ecclesiastical staff, and their ecclesiastical privi- 
 leges. For the whole body of the clergy, the benefit of 
 clergy in cases of a criminal nature was a weighty privilege, 
 which frequently led to immunity from punishment, and 
 which at this time, by a declaration of the episcopal com- 
 
 (2 b ) Only a seeming exception is the in the dynastic struggles, especially in 
 election of Bicliard Brook, member for the wars of the Eoses, right and wrong 
 London, to the Speakership (1454) by were for the lay understanding difficult 
 reason of the peculiar situation of Lon- to distinguish ; even for a juristic mind 
 don, and the permanent connection the institution of a lineal succession to 
 subsisting between the county of the throne, dating from many geuera- 
 MiddLesex and the city. Remarkable tions back, was something not very easy 
 at first sight, in the violent party strug- of comprehension. According to the 
 gles of the magnates, is the apparently situation of affairs then, there waa 
 passive yielding spirit of the Lower nothing at last left even for the knight- 
 House, and still more, as Stubbs (iii. hood but to side with one party, choos- 
 550) points out, the fact that the mem- ing it according to their respective 
 bers of the servile Parliaments have views of personal gratitude and loyalty, 
 sprung from the same class and fre- and to considerations of power and tem- 
 quently from the same families as those poral interests, 
 of the independent Parliaments. But
 
 432 Constitutional History of England. 
 
 missary, " legit ut dcricus" could be extended to every person 
 who knew how to write. 
 
 Even in the preceding period a juristic class had become 
 separated, as a specially learned profession, from the clergy. 
 The serviens ad legem, doctor juris, and the educated lawyer 
 partook, like the lower clergy, of the honorary rank of the 
 esquire, and found in the commissions of peace for the county 
 a frequent occupation, independent of any real estate ; the 
 legal profession became more and more regularly the school 
 for the higher judicial offices. At the close of the period the 
 judicial staff consisted of a paid body of officers learned in 
 the law. The clerical and liberal professions formed the com- 
 plement of a higher middle class, which was in later times 
 fitted for becoming fused with the knighthood into a single 
 united body of gentry. (2 C ) 
 
 III. Sfie class of frtEfjol&ns anlr municipal burgessts formed, 
 
 together with the knighthood, the now legally recognized third 
 estate of the realm, defined by the active right of election to 
 the Lower House, and founded like the other estates upon 
 payment of taxes and personal service for the commonwealth. 
 The property base for freeholders entitled to the suffrage 
 was real estate not liable to feudal services, in other words 
 free (that is, only liable to money payments or definite 
 services). Their original stock (the liberi homines and soche- 
 manni of Domesday Book) had been already increased in 
 the preceding period by the parcelling of knights' fees ; and 
 in this period it is multiplied in consequence of the extrava- 
 gant pomp of the nobility and the knighthood, which was sure 
 to lead to manifold alienations of portions of their estates, and 
 to mortgages. The share in the land and income-tax of these 
 small landed proprietors in the country and in the provincial 
 towns was no inconsiderable one. But still more prominent 
 was their personal service. The Statute of Winchester classi- 
 fied the liberi homines down to the lowest degrees for the 
 service of arms. The uniformed liveries of the great noble 
 households were formed of the members of their families. Of 
 them were formed the heavy-armed horsemen, archers, and 
 
 (2 C ) The parochial clergy bears at tion, especially for the legal profes- 
 this time, like the knighthood, the sion, and the notables of the cities, 
 honorary title " sir ; " upon the justices Stubbs justly remarks on this point, 
 of the realm was conferred the honour " Two of the most exclusive and ' pro- 
 of knighthood, and even that of a ban- fessional ' of modern professions were 
 neret by royal grant. By an ordinance not in the Middle Ages professions 
 of 1 Henry V., according to which in at all. Every man was to some extent 
 every formal citation of the courts for a soldier, and every man was to some 
 the future the " estate or degree or extent a lawyer . . . and he could 
 mysterie" of the defendant was to be keep his own accounts, draw up his 
 expressed, the additions esquire and own briefs, and make his own will, 
 gentleman from that time forth attained with the aid of a scrivener or chaplain " 
 a technically acknowledged significa- (Stubbs, iii. 596).
 
 The Three Estates of the Realm. 433 
 
 hobblers for the royal armies in France, which had so gloriously 
 vanquished the ill-disciplined feudal levies of the French 
 army, that a treatment of this class in England as being 
 talliables and corveables was forbidden, if on no other ground, 
 by their military profession. But the regularly recurring suit 
 of court, which now with the gradual dissolution of the 
 county, hundred, and manorial courts, became more com- 
 pletely developed into service on juries, could not but decide 
 the question of a legal assessment. From the first, in the 
 civil assizes not merely knights but all libere tenentes had to 
 be taken into account. The presentment jury and the petty 
 jury in criminal cases, as part of the magisterial institution 
 for police purposes, had from the first been constituted with 
 a prospective view to a numerous employment of the smaller 
 freeholders. The service on a jury was accordingly from the 
 beginning built upon a broader basis than that of the old 
 legal suitors, who were, indeed, nominally, still summoned to 
 the " county court." With Henry IV. begin new ordinances 
 as to the mode of carrying out the county elections, in which 
 at last the legal maxim that " political duties shall determine 
 political rights," prevails. By the ordinances of Edward III. 
 the duty of serving on a jury in the county court was fixed 
 at forty shillings annual value on a freehold, whether in fee 
 or for life. These freeholders formed with the knights the 
 ordinary court of the county in its then form. With this quali- 
 fication, which was tolerably high for those times, the third 
 estate in the county separated itself off from all below it. (3) 
 
 (3) The qualification of forty shil- vision which is once again incidentally 
 lings is considerable when compared mentioned in 19 Henry VlII. c. 13. 
 with the assessment of 20, which still But the extraordinary service in the 
 continued as the rate of a knight's fee, police courts in the country had never 
 in so far as it signified half a hide of been regarded as an ordinary suit of 
 land, a small yeoman's estate, or cor- court, and was the less suitable as the 
 responding house property, with refer- limitation of a pecuniary qualification, 
 ence to which Fortescue mentions with since in the private leets the copy- 
 satisfaction that in England a great holders were only required to do suit in 
 number of such owners were to be cases of emergency, and then without 
 found. If we remember the consider- uniformity or any legally recognizable 
 able number of jurors who were re- principle. The somewhat undefined 
 quired each year for the civil assizes, conditions of the old duty to ordinary 
 the grand juries of the itinerant justices suit of court, in the county court, and 
 and justices of the peace, the petty of the old service in police courts, as 
 juries of the same courts, the sheriff's well as those of the newly instituted* 
 tourn and the courts leet, there will system of serving on juries, made them- 
 be seen to be an annual participation selves particularly felt in the unde- 
 of thousands, by which knights, free- oided dispute as to who had to con- 
 holders, and burgesses remain in a tribute to the daily allowance of the 
 state of active independent co-opera- knights of the shire. Neither the 
 tion. In 1 Richard III. c. 4 it was legislature nor the central courts were 
 certainly provided that in the sheriff's able to establish here any general 
 tourn, in addition to freeholders of principle. Except in the county of 
 twenty shillings, villani also of 26. 8d. Kent this liability to contribute re- 
 should be required to do suit, a pro- mained dependent upon local custom. 
 
 2F
 
 434 Constitutional History of England. 
 
 A similar basis was originally also given to the municipal 
 suffrage, apportioned according to participation in "lot and 
 scot." The municipal privileges arising from the farming of 
 royal dues (firma burgi), the regular grant of a separate police 
 court (court leet), and still more extensive municipal juris- 
 diction led to the establishment of the principle that "all 
 resident householders paying scot and bearing lot could 
 exercise the liberties of citizens." Thus only day-labourers, 
 lodgers, guests, and strangers were excluded. By the con- 
 version of the indefinite dues payable to the lord paramount 
 into fixed money contributions, the municipal tenure had been 
 placed as burgage tenure upon an equality with the rural free 
 tenure, socage tenure. Whether householders, by reason of 
 the mere relation of tenancy, paid scot and bore lot and were 
 admitted to the rights of citizenship, varied probably accord- 
 ing to custom. The titles to the municipal citizenship by 
 birth, trade, marriage, etc., which were so multifariously 
 discussed in later times, were originally only the normal 
 modes of founding a household. But the form of the civic 
 service of court, and the civic taxes, the varied landed interests 
 of the agricultural burgesses, trade and commerce, combine 
 to give to the municipal suffrage an unequal development with 
 a slow yet continuous downward tendency. The contrast to 
 the normal creation of the estates manifested itself in the 
 English cities in the following phenomena. 
 
 1. In the decay of the discharge of suit of court in person, 
 as a consequence of the altered judicial constitution and the 
 gradual decline of the old police courts. From the very 
 nature of the police business, it could be more efficiently 
 performed by justices of the peace and constables than by 
 periodical assemblies of citizens. The new service as juror, 
 in which the passing of sentence was no longer involved, 
 appeared more than ever a pre-eminently personal burden, 
 and was considered desirable by no one. Poor laws were not 
 as yet a part of the administrative system of the community. 
 The periodical meetings of the citizens (courts leet) thus lost 
 their practically important business, and only retained any 
 degree of importance under special local conditions. For the 
 service on juries the stat. 21 Edward I. allowed " custom " to 
 decide, without fixing any qualification for the municipal 
 juries. But poorer persons as well as various wealthier 
 tradesmen and the civic notables soon sought to avoid the 
 service. For current administrative matters there were 
 formed almost everywhere administrative committees, who 
 were either constituted out of the " leet juries," or were, as 
 occasion required, newly formed from among the number of 
 chosen councillors. But such committees as are employed
 
 The Three Estates of the Realm. 435 
 
 upon single lines of business, particularly the assessment of 
 taxes, have notoriously a tendency to become permanent and 
 finally to fill up their number by co-optation, as no one 
 usually presses for participation in them. 
 
 2. The original character of the municipal assemblies and 
 money grants became also altered. For the deliberation in 
 Parliament as to subsidies proposed to be voted, the municipal 
 deputies were at first only regarded as a representative com- 
 mittee of the communitas, which received binding instructions 
 from its constituents; and originally perhaps in municipal 
 assemblies a serious deliberation may have taken place as to 
 the amount which it was proposed to vote. However, an 
 understanding had always finally to be arrived at among those 
 summoned to Parliament, by which the determination of these 
 money grants became centred in the body of the representa- 
 tives. But the more the recurring money grants adopted a 
 uniform character, and particularly after the rates of con- 
 tribution for the individual localities had become fixed, the 
 more did such deliberations on taxation lose their object. 
 The urgency of the taxes demanded by the King had finally 
 to be left to the consideration of the deputies in Parliament. 
 The commission of the delegates thus gradually and imper- 
 ceptibly merges into a general mandate of confidence. In 
 like manner in the apportionment of the subsidies and tenths 
 that were voted within the district of the individual town, 
 the scale was a fixed one, in which the principal labour fell 
 upon the assessment commission. It is evident how thus the 
 municipal meetings from the point of view of taxation lost 
 their definite object. The contributions to be raised for the 
 municipal needs of the borough were as yet too unimportant 
 to make municipal meetings or the election of the representa- 
 tives a necessity. 
 
 3. To this must be added the varieties of the municipal 
 modes of property, when compared with the more uniform 
 interests of the country. Trade and commerce have a natural 
 tendency to form themselves into guilds, and, when the guild 
 has been established, to exclude all outsiders from pursuing 
 the craft. Owing to the impotence of the executive (in 
 Germany) or to laisser aller (in England), groups of interests 
 arise from this which aim at the exercise of police power and, 
 when they have gained it, at constituting to themselves an 
 autonomous industrial or commercial law according to their 
 class interests. This process of formation now began its work 
 in England, yet it varied in different places according to 
 various influences. Where the institution of guilds had 
 attained a paramount influence, the heads of the guilds might 
 be the select class of the active citizens. In small localities
 
 436 
 
 Constitutional History of England. 
 
 the agricultural citizens and the owners of houses formed 
 themselves into a kind of peerage, in analogy to the villages, 
 in which the municipal landowners (burgage tenants) appear 
 as the governing body. Where, besides the municipal mayor, 
 no permanent council or committee existed, a gathering of all 
 taxpayers or landowners, or even of all residents, for the 
 performance of single acts of election was sometimes called. 
 But in proportion as personal activity in the community 
 decreases, different modes of property assert themselves. No 
 statutory and no customary law can under such circumstances 
 keep political right alive ; and least of all a mere right of 
 suffrage. At this time no abuses are as yet thought of. It 
 was not until the following period that a conscious endeavour 
 showed itself to fix these actual conditions by incorporation, 
 and to replace the local unions by a counterfeited notion of 
 " corporate " unions. But how small the actual electoral 
 body was, is shown by the fact that even from the time of 
 Edward III. the beginnings of a system of bribery are met 
 with. (3 a ) The legislature allows these conditions to continue 
 in their diversity, and even aggravates them 
 
 (3 a ) The political economic diversi- 
 ties, from the point of view of social 
 economy of the landed, industrial, and 
 commercial interests of the English 
 towns towards the close of the Middle 
 Ages have been treated by Stubbs, iii. 
 pp. 359-392 ("Municipal History"). 
 The English industrial and commercial 
 policy of this period has been very 
 thoroughly treated in German treatises, 
 particularly (with a full use of records) 
 by Georg Schanz ("Engl. Handels 
 Politik gegen Ende des Mittelalters," 
 Leipzig, 1881), and in practical con- 
 ciseness by W. von Oschenski (" Eng- 
 land's Wirthschaftliche Entwickelung 
 im Ausgang des Mittelalters," Jena, 
 1879). For the village institutions I 
 refer my readers to the important con- 
 tribution of Nasse (" Die Mittelalter- 
 liche Feldgemeinschaft," Bonn, 1869). 
 The economic interests were here so 
 different, that in its municipal develop- 
 ment, England most nearly corresponds 
 to the social development of Germany, 
 in so far as the executive, generally 
 maintaining a passive attitude, allows 
 the social groups to form their own 
 constitution autonomously. The Cinque 
 Ports retained an exceptional position 
 between the knighthood and citizen- 
 ship, on account of their special duty 
 to defend the country. The great 
 trading and commercial towns allow 
 the trading companies and commercial 
 
 guilds a definite share in the municipal 
 government, which also extends to 
 numerous inland towns. Trade and 
 internal commerce show no very strong 
 inclination for corporate exclusiveness, 
 but certainly for the export trade, 
 which a few towns had originally, by 
 reason of the dues imposed upon ex- 
 port, contrived to secure to themselves 
 by the so-called "staple privileges." 
 The articles of export thus monopolized 
 were wool, sheep skins, leather, lead 
 and tin, which only the merchants of 
 the staple, as a corporation with ex- 
 clusive jurisdiction, were allowed to 
 export. The staple places were Lon- 
 don, Bristol, Canterbury, Chichester, 
 Exeter, Lincoln, Newcastle-on-Tyne, 
 Norwich, York, and Caermarthen. 
 Such privileges have not formed the 
 municipal constitution ; but they have 
 in some places aided in breaking 
 through the normal municipal con- 
 stitution by a kind of guild system. 
 The periodical mistakes of this econo- 
 mic policy are seen in the decay and 
 impoverishment of the small inland 
 towns by the monopoly of the staple 
 places, which is also manifest in the 
 tax-register as well as in a certain in- 
 definiteness of the legislation concern- 
 ing these staple articles. All these 
 elements are seen accumulated in 
 London on the largest scale. In 
 general, there prevails, it is true, at the
 
 Tlie Three Estates of the Realm. 437 
 
 4. By an aimless increase in the number of parliamentary 
 boroughs. Their modest position appears to have kept alive 
 the opinion that in them there was to be found a parliamen- 
 tary element devoted to the royal power. In spite of the 
 resistance of the towns themselves, the number of members 
 was at the close of the Middle Ages increased to four times 
 the number of the knights of the shire, whilst the correspond- 
 ing ratio of performances in the service of the State was 
 rather the reverse. This undue ascendency is now seen in the 
 social tendencies of the legislature. As early as Edward I. the 
 citizens of London petition that the foreign merchants be 
 driven out of the city "because they become rich to the im- 
 poverishment of the citizens." The influence of the boroughs 
 compels Edward IILto restore the staple privileges which had 
 been abolished. Special laws are to protect the "honest 
 merchants against increase of prices." The admission and 
 toleration of foreign handcraftsmen meets with repeated 
 opposition. The exportation and importation of wares is to 
 be effected by ships which belong to the King's subjects (Rich. 
 II.). Only persons of an income of twenty shillings may 
 allow their children to learn municipal trade or commerce 
 (7 Hen. IV. c. 17). Still more important is the system of 
 police regulations affecting labour. The plague in the year 
 1384, and the consequent increase in wages, at first caused an 
 ordinance to be issued and two years later the frequently 
 mentioned parliamentary statute, which fixed the wages at 
 the scale of the last five or six years, under threats of im- 
 prisonment and branding. Under Richard II. new statutes 
 are passed, which prohibit a number of amusements to the 
 lower classes, and are intended to keep them closer to their 
 homes. The insurrection of the peasants under Richard II. 
 leads to the misapplication of the penal laws touching high 
 
 time of the origin of the estates, a good passed from the burgesses to the trad- 
 understanding between the great landed ing companies. The innovation was, 
 interests of the country and city, in however, so opposed to the bases of the 
 which from the earliest times the most municipal and county constitution, 
 powerful part of the nobility for a that shortly afterwards an ordinance, 7 
 certain portion of each year resided Richaid II., restored the old order of 
 in person. But just in this place a things and reinstated the wardmote in 
 fluctuating struggle is seen in the its old rights. But the battle between 
 creation of social class-right. The the guilds and the municipal govern- 
 industrial property lies here so thickly ment continued without interruption 
 accumulated that the uniform wealthy from that time forth ; the guilds retain 
 corporation aimed at overcoming its a continual influence upon the elec- 
 neighbour that is, the guild system tions, and gain also from time to time 
 endeavoured to suppress the municipal new royal concessions, as under Edward 
 system. After an unsuccessful attempt IV. A list of the older charters of 
 under Henry III. (1362), the municipal London is to be found in Merewether 
 suffrage was granted to the guilds by (iii. pp. 2360-65). Cf. Gneist, " Die 
 ordinance under Edward III. The City von London," 1868. 
 municipal elections now actually
 
 438 Constitutional History of England. 
 
 treason. Under Henry VI. the union of labourers for the 
 purpose of evading the statutes of labourers is declared felony. 
 The Lower House once even petitions that the lower classes 
 be prohibited from sending their children to school and devot- 
 ing them to the clerical profession and that too "for the 
 honour of all free men in the kingdom." In the sumptuary 
 laws the prevailing idea is that of " keeping the money in the 
 country." It was only owing to the higher power and clear- 
 sightedness of the monarchy, the magnates, and the knights, 
 that these attempts were defeated, and their encroachment in 
 general neutralized. 
 
 In the varied aspect of these phenomena it is clear that the 
 firm cohesion which unites the knights and freeholders into 
 one single communitas in respect of service and taxation, and 
 knits them together with the estate of the nobility, is wanting 
 in the municipal elements. The civic members only repre- 
 sented a part of the boroughs, which were originally selected 
 at random, and distributed very unequally among the coun- 
 ties. The greater number of them represented no more than 
 a market and trading centre for the surrounding country. 
 The really active element among the citizens was very un- 
 evenly distributed in the several towns, and displayed a con- 
 stant tendency to still further diminution. The natural 
 result was, that in the municipal representation only a taste 
 and understanding for local and class interests could develop, 
 and no higher political taste for the "ardua negotia regni." (3 b ) 
 
 In the inner life of the cities there is certainly seen much 
 stirring agitation, sometimes even a violent struggle, not 
 indeed between " capital and labour," but between trade and 
 commerce, between trade and trade, guild and guild, magis- 
 trates and guilds, or magistrates and citizens. Into the 
 dynastic party struggles of the times and into the feuds 
 waged between political factions in respect of the relation of 
 the royal council to Parliament, they were drawn only through 
 
 (3 b ) In harmony with my views, "- There is scarcely the vestige of an 
 
 Stubbs remarks : " The presence of the attempt to reform the borough repre- 
 
 borough members is only traceable by sentation " (Stubbs, iii. 589). At the 
 
 the measures of local interest . . .local head of the political movements in 
 
 acts for improvement of the towns . . . the Lower House are to be found only 
 
 diminution of imposts in consideration the knights. The boroughs merely give 
 
 of the repair of walls, and the redress notice of local disorders. The great 
 
 of minor grievances." The merchants commerce stands as a rule on the side 
 
 "thought it more profitable ... to of the royal authority. Sometimes 
 
 negotiate in private . . . with the certainly among the knighthood the 
 
 King, than to support his claims for interest of the landowner is paramount 
 
 increased grants of money in Parlia- regarding the rights of the workman or 
 
 ment ; out of Parliament they were day labourer, but on the whole a con- 
 
 his pliant instruments ; in Parliament tinuity of their policy is seen in con- 
 
 they were silent or acquiescent in stitutional traditions (Stubbs, ii. 514). 
 the complaints of the knights."
 
 The Three Estates of the Realm. 439 
 
 the party leanings of the nobility and the knights. But down 
 to the close of the Middle Ages scarcely a single instance can 
 be discovered, where, in the political party struggles, an in- 
 dependent proposal has proceeded from the burgesses. In 
 the struggle also between the dynastic parties they were can- 
 vassed by both sides, but yet play no important part in the 
 struggle, and do not display a constant devotion either to the 
 Red or to the White Eose. 
 
 Thus was all precedent and all principle wanting for the 
 laying down of the passive qualifications of eligibility for the 
 office of municipal representative in Parlianent. The writs 
 addressed to the sheriffs are worded as before, as indefinitely 
 as possible an election to be made " de discretionbus et 
 magis sufficientibus ;" and thus it remained. But who should 
 these eminent representatives be ? The actual state of the 
 judicial, magisterial and fiscal relations rendered the inactive 
 mass of the citizens, as a rule^ indifferent to an isolated 
 electoral act ; as a matter of fact the electoral body was, in 
 the majority of the boroughs, a small and select one. The 
 choice fell, naturally, upon notables and civic gentlemen 
 of the commissions of the peace. But as the commission 
 of peace of the county was regularly connected with the 
 cities, through the medium of the current police adminis- 
 tration, the " gentry " came also into permanent connection 
 with the boroughs, which in the fifteenth century often made 
 them the objects of their choice. In any case, those appointed 
 to the commissions of the peace and as deputies, represented 
 analogous elements of property, to whom the gentry could not 
 refuse an equality of standing with themselves. Towards the 
 close of the period we find consequently the titles of the gentry, 
 such as esquires, etc., conceded also to certain municipal 
 notables. 
 
 But the more important political business was discharged 
 by the staff of justices of the peace and by the deputies in 
 Parliament, by which means an impulse to work for the public 
 good and a permanent political influence were thus given 
 only to the higher classes. In the case of the higher ranks 
 of the borough population, the foundation was thus laid for 
 their later fusion with the class of knights, forming a united 
 gentry. In another direction, by the lowering of the inferior 
 civic classes to the level of inaction, the foundation of the 
 pre-eminently aristocratic character of the later parliamentary 
 representation was laid. For the landowning classes of the 
 county, as a whole, the fabric of the three-estate-system, based 
 as it was upon independent activity and rateability, was so 
 immovably and firmly established, that it was capable of 
 embracing and supporting the motley and anomalous forms
 
 440 Constitutional History of England. 
 
 of municipal representation, and thus in marvellous continuity 
 outlasted the storms of the Keformation and the Eevolution 
 down to the nineteenth century. 
 
 IV. SSJijat remains infra classcm after the three estates had 
 been separated off, is in the main a working population, which 
 enjoys indeed personal liberty, but without any share in the 
 political rights of the parliamentary constitution. These 
 classes of society also pay their dues ; but in the great majority 
 of cases not to the State, but to a landlord, a master, or house- 
 holder, who is the immediate bearer of the State burdens. 
 Some of these classes could, as supplementaries, discharge 
 the suit of court in the court leet ; but this form of magis- 
 terial courts was only a local, incidental, varying and now 
 decaying institution. 
 
 The improvement in the position of these classes, which 
 had now taken place on the whole, is pre-eminently due to 
 changes in rural economy. The money system with its 
 liberating effects had now passed from political to local, and 
 from public to private economy. Landowners and monaste- 
 rial corporations at this period farmed no longer by means of 
 bailiffs; a new system, that of rent, had come into being, 
 and a new class of leaseholders had been formed, occupying a 
 middle position between the freeholder and the agricultural 
 labourer. After their numbers and their prosperity had both 
 increased, they share, with the small freeholder, the name 
 of " yeomen." Such leaseholders in the fifteenth century, in 
 ever-increasing numbers, took the place of the local bailiffs 
 who formerly managed the lands of the lords and the monas- 
 teries, but they stood in another form of dependence upon the 
 landlord than did their predecessors. In respect of taxation, 
 they were rated in bonis almost in the same way as the 
 freeholders in terris (Stubbs, iii. 552, 553). Their position, 
 moreover, is dependent upon the amount of the rental and 
 the capital. But with the leasehold system the interest of 
 the landlord disappears in the services of his villeins, whose 
 emancipation in consideration of money payments had been 
 extensively brought about. 
 
 Epidemics, bad harvests, and mistakes in the policy of taxa- 
 tion had, under Richard II. and Henry VI., caused repeated 
 insurrections of the peasants, which were apparently attribu- 
 table to the attempts of the landlords to re-introduce villeinage 
 and manorial services, after new relations of service and rent 
 had already taken their place. But when the system of money 
 payments had become once for all established, by means of 
 the institutions of rent and wages, the reasons for dissatisfac- 
 tion were quietly removed, both by the landowners themselves, 
 and by the abandonment of the unsuccessful system of poll-tax.
 
 The Three Estates of the Realm. 441 
 
 This new system of economy shows its favourable results 
 first of all in the abolition of serfdom. Whereas it was formerly 
 more the influence of the Church, it was now the economic 
 interest of the lord himself, which favoured the emancipation 
 of the remaining bondsmen, for a free labourer proved a 
 more capable man. Jurisprudence also accorded to the bonds- 
 men the personal protection that belonged to the liberi homines, 
 by regarding their relations to their lord as a legally denned 
 exception. The serfs who still exist at the close of the Middle 
 Ages are quite unimportant anomalies. (4) 
 
 Quite as much ameliorated was the legal position of the 
 manorial peasants or villani. The undefined services attached 
 to these villeins' estates became, in process of time, for the 
 most part converted into money rents, for reasons which lay 
 in the economic interest of leasehold (Scriven on Copyhold, 
 i. 46, 428). In the case of a higher class of them, at the 
 commencement of this period, a right was in practice ac- 
 corded to their land, to the extent, that deprivation might 
 only take place according to the custom of the court (the later 
 so-called privileged villeinage). For the rest, likewise, a right 
 of deprivation only ex justa causa was recognized towards the 
 close of the period by a famous decision, Taltarum's case, 
 under Edward IV. " Copyhold" became, in this later period, 
 more and more the common term, a name derived from the 
 court roll, which was the title of possession. (4 a ) 
 
 The labouring classes of the cities were also in economic 
 
 (4) In the insurrection of the peasants by Lord Coke in a decision at one-third 
 
 under Richard II., the social ideas of of the whole real property in the 
 
 the labouring classes went hand in hand country, an estimate which, according 
 
 with the heretical efforts againbt the to later statistics, was perhaps twice 
 
 Church. From the standpoint of human its real extent. Of a separate nature 
 
 rights, the emancipation of the bonds- were the tenures in ancient demesne, 
 
 men was placed in the foreground. These comprised partly full freeholders, 
 
 The act of emancipation, which was partly hereditary villani (analogous to 
 
 passed at that time, was certainly re- the privileged villeinage), partly mere 
 
 pealed at the instance of Parliament ; copyholders, who were by royal favour 
 
 the interest of the lords themselves exempted from the ordinary courts and 
 
 was, however, apparently sufficient to the county government, freed from jury 
 
 remove this grievance, which in later service, and therefore, also unrepre- 
 
 times was never revived. In the rebel- sented in the county and in Parliament, 
 
 lion of John Cade (1450) the agitation not bound by parliamentary money 
 
 was neither on account of serfs nor of grants, and only subject to their special 
 
 reformation ideas, but it was only the tallagia. Representatives of them were 
 
 classes, who laboured for hire, who often summoned to Parliament, but they 
 
 demanded the " seven halfpenny loaves never met together with the Commons 
 
 for a penny," abolition of money, and formed no part of the Parliament, 
 
 equality in dress, etc., egalite et fra- In the case of these peasants the 
 
 ternitf, the natural antipodes of an ex- taxing right of the Crown continued 
 
 aggerated system of regulations affect- longest. In the later voting of the 
 
 ing labour, which again disappears witli taxes the King consents on his side for 
 
 the excesses of these regulations under those peasants unrepresented in Par- 
 
 the houses of York and Tudor. liament in the words "Le roi aussi le 
 
 (4) The copyhold was once estimated vent." ^
 
 442 Constitutional History of England, 
 
 dependence upon property, but only in the free relation of the 
 contract of hire. The narrow-minded restriction imposed upon 
 their liberty of movement by the poor-law regulations was 
 not introduced until later centuries. They share their passive 
 position in the municipal government with the majority of 
 the wealthy classes themselves in the later form of the muni- 
 cipal suffrage. 
 
 What the parliamentary constitution was able to concede 
 to the unrepresented members of society (who in every form of 
 representative government form the majority), was the legal 
 liberty of mounting up into the higher classes, in which respect 
 this constitution, in comparison with the parliamentary con- 
 stitutions of the Continent, is a model one. As it is open to 
 the labourer in town and country by industry and skill to rise 
 to be a tenant and small proprietor, so also is the way open 
 to the working classes to enter into a more profitable career 
 by their freedom of movement from place to place, and by 
 the freedom of entrance into local companies and guilds ; to 
 the middle classes in the towns is open the entrance into the 
 offices of the municipal government ; whilst the notables 
 of the towns can obtain admission into, the commissions 
 of the peace or parliamentary representations, even with 
 the honorary rank of esquire. The retail trader can at any 
 time become a freeholder, and the leaseholder, in addition to 
 his leasehold, can, also exercise political rights as a freeholder. 
 The wholesale trader can acquire from the impoverished noble 
 the ancestral estate with all the rights and privileges of a 
 manor attached ; and his family in the second generation 
 will be reckoned among the most zealous champions of the 
 privileges of the knighthood. Conversely the entrance of 
 the younger sons of the nobility and the knighthood into the 
 counting house of the merchant was not considered derogatory 
 to their rank. The names of knights of the shire are found 
 on the registers of the trading companies and guilds, and 
 members of the old nobility solicited with especial eagerness 
 the offices of the civic mayors, aldermen, and recorders, as 
 well as the municipal seats in Parliament. Elevation into 
 the higher estates by means of the Church is open to all 
 classes ; the middle classes may attain high honours and 
 dignities through the law Inns of Court, and for the highest 
 merits in that profession, even admission to the ranks of the 
 peerage. (4 b ) 
 
 (4 b ) ''The younger sons of the that had not to wait more than one 
 
 country knight sought wife, occupation, generation for ample recognition. The 
 
 and estate in the towns. The leading practice of knighthood . . . the custom 
 
 men in the towns, such as the De la of wearing coat-armour, as well as real 
 
 Poles, formed an urban aristocracy relationship and affinity, united the
 
 The Three Estates of the Realm. 
 
 443 
 
 The firm bond -which knits together the system of this 
 social formation by means of self-government and payment 
 of taxes with the highest functions of the executive, extends 
 down to the lowest classes as a bond of social aims, which 
 placed, indeed, actual impediments in the way of ability and 
 merit, but never legal barriers. English society thus attained 
 a fundamental basis for the development of individual ability 
 and energy, which determine the course of its history during 
 the following generations. 
 
 superior classes; the small freeholder 
 and the small tradesman met on analo- 
 gous terms" (Stubbs, ii. 188). 
 
 What an alleviating influence the 
 early organized direct system of taxa- 
 tion naturally exercised upon the class 
 interests is shown by the tax assess- 
 ments themselves. The sumptuary 
 laws (23 Edw. IV.), the equality of 
 the property and family law, and 
 equality of taxation, produce here 
 groups of society such as were un- 
 heard of on the Continent. The pro- 
 perty tax of 1359 shows, for example, 
 the following groups : Dukes (133 
 shillings), justices of the Crown (100 
 shillings), earls and the mayor of 
 London (80 shillings), barons, ban- 
 nerets, Crown counsel and great advo- 
 
 cates, aldermen of London, mayors 
 of the large towns (40 shillings), 
 knights, lawyers, councillors of the 
 second order (20 shillings), knights of 
 orders and merchants (13J shillings), 
 esquires, lower lawyers, mayors a ad 
 councillors of small towns, greater 
 freeholders and greater tenants (6f 
 shillings), lower monks, esquires, and 
 gentlemen without landed property, 
 smaller merchants, tradesmen and 
 tenants (3 J shillings), and so on. That 
 in the offices of the royal court the 
 three great classes of Serjeants, gentle- 
 men, and yeomen were distinguished, 
 and that the social classes were regarded 
 otherwise in the herald's office, was, at 
 the close of the Middle Ages, just as 
 natural as in our time.
 
 444 Constitutional History of England. 
 
 CHAPTER XXIX. 
 rgam'?atum of tf)e Rotate t&ty 3toal ^rcrogattbe. 
 
 LIKE the permanent division of society into classes, there was 
 also completed in this period an organization of the execu- 
 tive, which, though obscured by dynastic struggles, became 
 accomplished in a quiet continuous development. 
 
 Marvellous to relate, yet vouched for by contemporary 
 writers, the itinerant justices and jurors went their regular 
 circuits all through the aristocratic Wars of the Eoses. In 
 fact, by the legislation of this period, those permanent insti- 
 tutions were founded, which towered above the struggles of 
 the time like a pillar; large independent local unions, 
 and great judicial corporations, encircle every government 
 redoubtably,. even in the conflict for the crown itself. But 
 the position also of the permanent council, which from its 
 central place exercises in daily action the varying functions 
 of the executive, had become changed by the regular commands 
 and prohibitions addressed to functionaries or to subjects being 
 permanently regulated ; and that, too, in a double manner, 
 either (1) by ordinances, issued without the consent of Par- 
 liament, and which are alterable at the will of the King 
 alone ; or (2) by statutes, which were issued with the consent 
 of Parliament, and were binding also upon the King, and 
 could not be altered without the consent of the three estates in 
 Parliament. 
 
 The powers of the monarchy (state) still continue in the 
 form of administrative regulations and ordinances, uncur- 
 tailed, nay, materially extended by new demands made upon 
 the subjects ; but the exercise of them is, in harmony with 
 the nature of the State, with wise moderation confined by 
 the Crown by unalterable rules. The King accordingly no 
 longer appears as the personally commanding ruler, the 
 feudal, military, judicial, and magisterial lord ; but the Crown 
 appears as a permanent institution, which guarantees legal 
 protection and permanent support to the life of society, and 
 thus takes firmer root in the heart of the people. With this 
 self-restriction by law, there accrues also to the King him-
 
 Organization of the State The Royal Prerogative. 445 
 
 self a firmer legal protection, and to his rights an enhanced 
 inviolability and sanctity. 
 
 This specialization of the administrative law, \vhich forms 
 the transition to the modern political system, appears in the 
 fourteenth and fifteenth centuries to have advanced in all 
 departments of the political government, although in different 
 degrees, according to the temporary needs of the executive 
 power. 
 
 The military power over the Crown vassals continues ac- 
 cording to deeds of enfeoffment and custom (common law) ; 
 but the system of the national militia had become more com- 
 prehensive and more living ; the recruiting and employment 
 of which was now fixed by parliamentary statutes. But 
 the deficient principles of the recruiting leave room for 
 various abuses of the military power for financial and political 
 purposes. 
 
 The judicial power is based partly upon Norman admin- 
 istrative practice, but in its most important features upon 
 statutes, which more exactly define the position of judge and 
 jury. The weak point is the reserved jurisdictio extraordi- 
 naria, which still follows the lax principles of the old admin- 
 istrative system, often restricted, it is true, by Parliament, yet 
 just as frequently extended by party leanings. 
 
 The magisterial power is based partly upon common law; 
 but, in its principal departments, upon an endless series of 
 statutes affecting the public safety, trade, and labour; all 
 which in some measure limit the arbitrary powers of the local 
 magistrates. The weak place here is the extraordinary powers 
 residing in the royal council. 
 
 The financial power is based upon the demesne-possessions, 
 the feudal dues and other hereditary revenues of the monarchy, 
 whose extension was effectually prevented by statutes. These 
 form the " ordinary revenue," out of which the current ex- 
 penses of the State are to be 'defrayed, supplemented by 
 extraordinary and periodically granted land and income taxes, 
 to the grant of which the estates begin to attach conditions. 
 
 The ecclesiastical power of the King had been much re- 
 stricted after the events of Magna Charta; in the dualism 
 of the ecclesiastical and temporal state it was only the external 
 boundary-quarrels that were settled by statutes. Encroach- 
 ments of the Church upon individuals were stopped by " writs 
 of prohibition," encroachments upon the State by penal prose- 
 cutions under the new statutes. 
 
 The organs for the exercise of the rights of the political 
 sovereignty thus organized have been already described, but 
 shall be again recapitulated in this place in their three 
 principal limbs.
 
 446 Constitutional History of England. 
 
 1. The Central Courts connected with the county and local 
 courts form ihejurisdictio ordinaria, the permanent part of the 
 judicial system. There still continues a personal dependence 
 of the justices of the realm, who remain at the same time 
 assistant justitiarii of the council, and whose appointments 
 are as a rule subject to revocation ; the spirit of monarchical 
 government, however, makes this deficiency less sensibly felt. 
 As early as by the stat. 2 Edward III. c. 8, the justices were 
 ordered to allow justice its uninterrupted course, without 
 regarding orders issued under the great or privy seal; the 
 stat. 11 Eichard II. c. 10 adds to this, that no writing is to 
 be issued under the signet or privy seal to the disturbance of 
 the ordinary course of justice. 
 
 2. The Continual Council is the central department for the 
 exercise of the sovereign and political rights in all directions 
 with reservation of the fixed spheres of ihejurisdictio ordinaria 
 and the ecclesiastical constitution. Here is the active seat 
 of the royal political government, the legality of the proceed- 
 ings of which is enforced by the bringing forward of national 
 grievances in Parliament, or, in an extreme case, by an im- 
 peachment of ministers. By practice and statutes the per- 
 sonal responsibility of the principal officials has already been 
 expressly recognized. 
 
 8. The Magnum Concilium in Parliament, finally, forms a 
 supreme council of the Crown, periodically summoned, which 
 includes the prelates and barons, and, in its widest extent, 
 the representatives of the Commons also. The participation 
 of each portion in the functions of a council of the realm 
 has been laid down by parliamentary practice, and in such a 
 manner that the participation in the highest extraordinary 
 jurisdiction remains restricted to the Upper House. 
 
 In its intermediate position between the courts of justice 
 and the Parliament, the Continual Council has been gradually 
 coerced into a legal line of government. But the bitter con- 
 flicts of the age again and again proved that for the attain- 
 ment of this end neither judicial officialism nor parliamentary 
 meetings were in themselves sufficient, but that there was 
 rather needed a ramification of the rights of political govern- 
 ment into the district and local institutions, to form a counter- 
 poise to the violence of the parties. All legal barriers 
 imposed upon despotism have only become gradually effectual 
 by the system of self-government, in which the wealthy 
 classes assume the exercise of the political functions, and 
 thus undertake the protection of the individual against abuses 
 of the political power. Of this the Middle Ages always 
 retained a lively sense, which the feudal system and the 
 feudal courts on the one side, and the traditional Saxon
 
 Organization of the State The Royal Prerogative. 447 
 
 judicial institutions on the other, had engrafted upon the 
 nation. By the blending of the nationalities both tendencies 
 became fused together. Having advanced in person to the 
 supreme government of the realm, the county and municipal 
 unions comprehend in themselves both feudal and local law, 
 military and municipal constitutions, ruling classes (prelates 
 and nobles), and middle classes (knights and burgesses), all 
 in a living organization. 
 
 It was out of this combination, individually and collectively, 
 that the personal and political liberty of the nation proceeded. 
 Counties and townships have become independent in conse- 
 quence of their connection with the judicial system; the 
 courts have become independent through their connection with 
 the independent committees of the county and civic unions 
 (juries). By its representation in Parliament the collective 
 community system has become a permanent counterpoise to 
 absolute political government. The peculiar nature of the 
 English constitution has now become fixed by the formation 
 of communal bodies for the service of the State. They are 
 individually described as " counties," " ridings," " hundreds," 
 or collectively as communse, communitates ; only in the cities 
 has the first formation of " corporations" commenced, which 
 in later times became the source of artificial deformities. As 
 personal service and rateability in respect of taxes, were by 
 principle combined together in the communal bases, so was 
 it also the case in Parliament only that in the case of the 
 prelates and lords it was their personal participation in the 
 affairs of Government, in the case of the communse their 
 rateability, which appears to be the predominant feature. 
 
 In accordance with the nature of the State there thus 
 arises a relation of mutuality with respect to public rights. 
 The liberties of Parliament are originally an emanation of 
 the royal power. There exists no parliamentary right of 
 bishops, lords, knights, and burgesses, which was not in its 
 origin a result of royal grant. The maxim of the courts of 
 that period, " Toutfuit in luy, et vient de lui al commencement " 
 (Year-book, 24 Edw. III.), was fundamentally true. The 
 development of the parliamentary constitution from a system 
 of personal government was also discernible in the fact that 
 the kings themselves, whilst mere children, were obliged to 
 perform in person certain acts of sovereignty. 
 
 On the other hand, the title to the crown in this period had 
 been more than once created by Parliament, and still more 
 frequently were the rights of the Crown defended and main- 
 tained by Parliament. Under the house of Lancaster, at all 
 events, the Crown was no longer based upon the ground of 
 hereditary descent alone, but upon mutual acknowledgment.
 
 448 Constitutional History of England. 
 
 Hence the maxim of the courts : " La ley est la plus haute 
 inheritance, que le roy ad ; car par la ley il meme et toutes ses 
 sujets sont rules, et si la ley ne fuit, nul roi, et nul inheritance 
 sera" (Year-book, 19 Hen. VI.). 
 
 The fixed elements of the political system of this period are 
 to be found in the judicial system, in the systematic combina- 
 tion of the exercise of the sovereign rights with property, 
 i.e. self-government, and in the perfectly stable ecclesiastical 
 constitution. They are all represented in the Upper House 
 as being the head of all judicial constitution and government, 
 including the highest jurisdictio extraordinaria. The special 
 rights of this high body are indeed described as " privileges ; n 
 but these privileges are political rights with an upward ten- 
 dency, and are not (as in the ancien regime of the Continent) 
 social advantages with a downward tendency. They afford to 
 a supreme legislative council the necessary personal indepen- 
 dence in dealing with the Crown and its paid servants ; but 
 involve no inequality in respect of family and property-law, 
 no immunity from taxation, and no exemptions prejudicial to 
 other classes of the people. The conservative portion of the 
 constitution has already, at the close of the Middle Ages, become 
 well fitted to guarantee the maintenance of the constitution 
 and the conduct of the affairs of the realm according to the 
 laws of land. 
 
 The moveable part of the political government has, besides 
 this, an extensive province. Within the circle which law- 
 courts, the Upper House, and the Church describe around 
 the personal government, there is a wide domain, in which 
 the "King in council" moves, and at his side the Commons, 
 with their grievances and motions, with their initiative in 
 legislation, and conditions annexed to taxation. The fixed 
 sphere of political government becomes more extended in 
 each generation ; but in like manner also the moveable circles 
 become expanded, owing to the continual fresh needs of the 
 State and society. In the Middle Ages a narrow-mindedness is 
 visible, which on the one hand would wish to pass all sovereign 
 power through the mould of an established legal organization, 
 while on the other hand, for the sake of immediately satis- 
 fying social demands, it would fain ride roughshod over every 
 legal barrier. Both tendencies are represented in this consti- 
 tution; the restless element pre-eminently in the House of 
 Commons, with its preponderance of small burgesses. The 
 instability of all representation of interests is here quite as 
 visible in numerous small features as the party spirit of the 
 magnates is seen in greater. The instability of such efforts 
 and aspirations, combined with the violence of the Middle 
 Ages, then points ever to the King, as being the embodiment
 
 Organization of the State The Royal Prerogative. 449 
 
 of the perpetual impartial sovereign power. Every collision 
 of the estates with each other and with royalty, awakes 
 afresh the consciousness that the source of all the rights of 
 the great lords, and the last protection and support of the 
 weaker classes lies only in the permanent sovereign power 
 that is, in the monarchy. At every encroachment of the 
 Lords and their great parties, the jealousy of the Commons is 
 aroused, and an altered tone is noticeable both in the lower 
 ranks of society and in the Church. Often as the Commons, 
 in those party struggles, follow the lead of the Lords, in the 
 moment of necessity a king who is conscious of his vocation 
 finds still in them his greatest support, and the grateful recol- 
 lection that it is to the monarchy that they owe their liberties. 
 A rising of the unrepresented classes against the monarchy 
 never occurs throughout the whole of the English Middle Ages. 
 
 The constitution of Parliament has accordingly, in contrast 
 to the Norman period, led to an exaltation and an enhance- 
 ment of the royal dignity in spite of all the fluctuations and 
 violence of this period. " There is," says Hallam, " nothing, 
 absolutely nothing of a republican aspect. Everything appears 
 to grow out of the monarchy, and redounds to the advantage 
 and honour of the King. The voice of the petitioners is, even 
 when the Lower House is in its most defiant humour, always 
 respectful ; the prerogative of the Crown is always acknow- 
 ledged in broad and pompous expressions " (Hallam, iii. 153). 
 
 The people's conceptions of law were determined, as had 
 ever been the case, by the customary legal relations, with a 
 strong influence of recent impressions. The popular ideas of 
 the royal power (*) at the close of the Middle Ages could not 
 therefore be simple ones. In the conceptions of those times 
 State and society combine to form a threefold basis of royal 
 power. 
 
 An old historical basis still existed in the idea of the 
 suzerain ownership of the King in the soil, as Dominus Anglise. 
 The King was in fact still the greatest landowner in the 
 country, as he was in theory the sole landowner. With the 
 gradual dissolution of the feudal law in favour of private 
 property, this conception becomes less prominent ; it was 
 shaken also by the change of dynasties. The recognition of 
 this principle was, however, for the wealthy classes a necessity, 
 because by legal construction it had become the source of all 
 private rights in the soil. The English monarchy had thus 
 attained a solid foundation of hereditability, such as the 
 German empire could not claim. The doctrine of the jurists 
 treats the succession to the throne according to the right of 
 primogeniture in the same way as the succession to real 
 (*) Of. infra, the note at the end of this chapter.
 
 450 
 
 Constitutional History of England. 
 
 property, from which also the expression " title" was borrowed. 
 Like the succession in real estate, it follows immediately, and 
 is ipso jure attached to, the title of possession residing in the 
 predecessor. After Edward I.'s accession no interregnum was 
 legally recognized in a succession to the throne (Allen, " Pre- 
 rogative," 47). 
 
 The monarch represents, moreover, "the head of society," 
 and as such is recognized by the forms and ceremonies of the 
 court, which in the coronation festivities even reproduce the 
 household of long bygone centuries. The old hereditary court 
 offices of High Steward, Great Chamberlain, High Constable, 
 and Earl Marshal still continue. Of the heads of the active 
 court officials, viz. the King's Chamberlain and the Steward 
 of the Household, the first has now become an active minister 
 of State, and the second the managing head of the household. 
 The splendour of the temporal as well as of the spiritual side 
 of the Court was enhanced by the constitution of Parlia- 
 ment, not as a mere idle show, but in involuntary recognition 
 of the necessity of raising the monarchy above the rich and 
 brilliant nobility of this period, and thus to hold up the 
 sovereign power in the public view above all the classes of 
 society.(**) 
 
 in the Liber niger Regis Anglise, printed 
 with other documents by the Anti- 
 quarian Society (1790). The real 
 administrative court functionary is, as 
 in our day, the Steward of the House- 
 hold. The remaining officers of the 
 household (some of whom were also* 
 state officials) are the bishop confessor, 
 the Chancellor of England, the Lord 
 Chief Justice of the Common Pleas, the 
 King's Chamberlain, bannerets, knights, 
 secretaries, chaplains, equerries, keeper 
 of the wardrobe, gentlemen ushers, 
 yeomen of the Crown, grooms of the 
 chamber, pages of the chamber, officers 
 of the jewel-house, the physician, 
 surgeon, apothecary, and barber of 
 the King, the henchman, squires of 
 the household, king-at-arms, heralds, 
 serjeants-at-arms, minstrels, attendants 
 and messengers; the dean of the 
 chapel, chaplains and clerks, yeomen 
 and children of the chapel, clerk of the 
 closet, master of grammar, officer of 
 vestiary, clerk of the Crown, clerk of 
 the market, and clerk of the works. 
 Besides these a secretarial staff of 
 clerks of the board of green cloth, 
 clerks of the control office and counting- 
 house. Under departments : The bake- 
 house, the larder, the pastry-kitchen, 
 the cellar, the vintner, the beer-cellar, 
 the tankard -house and bowl-house, 
 
 (**) The courts of the Plantagenets, 
 like the courts of all times, suggest 
 reminiscences of an older social order 
 of things. This is especially the case 
 with the coronation ceremony, in which 
 the old household of the head of a 
 German clan is again revived, from 
 the great honorary offices down to the 
 smallest services. The office of the 
 hereditary major domus, Lord High 
 Steward, as the first court official, died 
 out in comparatively early times, but 
 was revived for coronation festivals and 
 for a solemn peers' court, pro hac vice. 
 The hereditary office of Lord Great 
 Chamberlain continues even to the 
 present day as an hereditary office, 
 fulfilling the chief honours on the day 
 of coronation. The office of the Lord 
 High Constable, with his seat in the 
 curia militaris, and his patronage of 
 lower offices at court, in the army, and 
 in courts of justice, continues during 
 the Plantagenet times. The office of 
 Earl Marshal, after many escheatings 
 to the Crown and re-grants, is at times 
 hereditary, at times held for life, and 
 then again a revocable honour. It was 
 otherwise with the active court officials, 
 who even in the preceding period formed 
 a second class separate from the here- 
 ditary offices. A long list of this royal 
 household under Edward IV. is given
 
 Organization of the State The Royal Prerogative. 451 
 
 The Crown, as hereditary possessor and source of all magis- 
 terial power, forms in the legal and religious conceptions of 
 the time the nucleus, compared with which all possessory 
 and social conditions appertaining to the monarchy are only 
 means to an end. As the conceptions become matured, new 
 expressions for it come also into use. As the name "parlia- 
 ment " appears with the new conceptions of social right, so as 
 its correlative the term "royal prerogatives " occurs. At first 
 it meant especially the financial rights of the King, arising 
 from his feudal suzerainty, all which should be as against the 
 estates a noli me tangere; as in the statutum de prerogativa 
 Regis, under Edward I. (formerly generally attributed to Edw. 
 II.). In later times the judicial power appears as the centre of 
 the prerogative, which appertains to the King of his own right 
 independently of the ruling classes. But the more extended 
 the tasks of the sovereign power become, the wider and more 
 comprehensive becomes the notion of the prerogative, until 
 it reaches the conceptions advanced by Coke and Blackstone. 
 It is the same notion which the later German imperial law 
 associated with the term " Kaiserliche reservatrechte," yet with 
 the material difference, that these reservatrechte of the English 
 monarchy embrace an extensive and actual imperium, and 
 that the English parliaments have not, like the German im- 
 perial and provincial representative assemblies, forced their 
 way into an habitual exercise of the sovereign and adminis- 
 trative power in all those functions which, in a well-organized 
 political system, can only be securely centred in a single hand. 
 In England also, as is always the case, many conceptions of 
 later days have erroneously been attributed to the Middle 
 Ages. The difference between the constitution at the close of 
 the Middle Ages and the modern theories of constitutionalism 
 lies principally in two points. 
 
 1. The King has the commanding and disposing power in 
 State affairs (the imperium, the ruling power) which, as in the 
 Carlovingian constitution, is the source and basis of the royal 
 prerogative. The immediate emanation from it is the right 
 
 beer-bearers, the apiary, the confec- as a suite of fifty (1560) ; for a duke 
 
 tionary, the light department, the and suite of two hundred and forty 
 
 butler's department, the linen de- (4000), etc. As a classification in 
 
 partment, and the laundry depart- almost all branches of the household, 
 
 ment. How necessary such a com- the division into Serjeants, gentlemen 
 
 plicated household was according to the and yeomen is revived, which was at the 
 
 notions of those days is shown us by same time an expression of the social 
 
 the analogous household of the royal ideas of rank in those times. A royal 
 
 family and the magnates. The Black body-guard of twenty-four serjeants-at- 
 
 Book fixes the &at of the Queen at arms had already been formed by 
 
 forty shillings a day, in addition to Eichard I., which was employed as 
 
 twelvepence each for one hundred re- an active guard of honour for the 
 
 tainers (2555 annually) ; for the heir Parliament, the Chancellor, and the 
 
 to the throne thirty shillings, as well Treasurer.
 
 452 Constitutional History of England. 
 
 of ordinance; for what the King can command in single 
 cases he can also ordain for similar ones. This right is now 
 limited by parliamentary statutes, but not restricted to the 
 mere "execution of laws." From this follows the right of 
 appointing the organs of government. From all encroach- 
 ments and excesses Parliament always voluntarily returned 
 to the royal right of appointing the officers of State. Only 
 a few offices, and those subordinate ones, are held by the 
 feudal mode of " tenure." It is, moreover, a maxim of common 
 law that all magisterial offices are held revocably during the 
 King's pleasure ; with the exception that the tenure of the 
 judicial office for life had already become usual in practice. 
 This ruling power comprises that which the later treatise of 
 Blackstone describes as the "royal authority," that is, (1) 
 the representation of the State towards foreign powers, 
 decision as to war and peace and international treaties ; (2) 
 the military command over every branch of the armed force; 
 (3) the King as the fountain of justice, with the rights of 
 appointment which flow therefrom ; (4) the King as supreme 
 guardian of the peace ; (5) the King as the source of offices of 
 honour and privileges ; (6) the King as the arbiter of com- 
 merce ; and (7) the now very restricted ecclesiastical supre- 
 macy. But the difference between it and the conditions 
 obtaining in the eighteenth century lies in this that the 
 numerous ambiguous points of sovereign rights, which have 
 not as yet been determined by the legislature, make these 
 powers appear as real rights, which are in normal times left 
 to the personal decision of the King. As yet no party govern- 
 ment, in the meaning of the eighteenth century, exists. The 
 Church is as yet perfectly separated from the temporal State. 
 As yet the real political government is united in the person 
 of the King, his counsellors, and courts of justice. No parlia- 
 mentary budget, no influence by the estates of a continual 
 control of the incomings and outgoings of the State has yet 
 been established. The financial centre is as yet in the King's 
 hereditary revenue. It is to the King, and not to the Parlia- 
 ment, that the Treasurer presents a status of the revenues, 
 an annual budget (as is mentioned for the first time, in 
 1421). As yet there was combined with the prerogative of 
 the Crown the idea of an extraordinary dictatorial power 
 residing in the King, which in any State crisis could thrust 
 aside the self-imposed barriers, laws, and judicial constitu- 
 tion, and find a remedy by extraordinary measures, jurisdic- 
 tion, and ordinances an extraordinary power which was made 
 frequent use of by the Tudors, and frequently abused by the 
 Stuarts, and was only in later centuries further restricted 
 and reduced to a minimum.
 
 Organization of the State The Royal Prerogative. 453 
 
 2. The King, and not the Parliament, has the legislative 
 power. Law is only an ordinance strengthened by the con- 
 sent of the estates, and which, not being one-sidedly capable 
 of alteration, without the consent of the estates, represents 
 the highest controlling force of the absolute power. The 
 notion of a " veto " of the King is a modern interpolation ; the 
 English constitution knows neither the term nor the act. 
 It is not the estates that have a legislative right with the 
 reservation of a veto ; but it is the King who gives the laws, 
 subject to the co-operation of the estates : " Que le roy fist 
 les leis par assent dez peres et de la Commune, et non pas lez 
 peres et la Commune " (Year-book, 23 Edw. III.). The King 
 is accordingly not bound to summon Parliaments at stated 
 times. The promises made on this point (4 and 36 Edw. III.) 
 remain intentionally ambiguous in their language, and are 
 regarded as one-sided assurances without prejudice. The par- 
 ticipation of the estates in the legislation is only understood 
 in this sense, that the King shall not alone repeal what has 
 been resolved with the co-operation of the three estates. 
 Their consent does not, however, in principle abolish the 
 .right of the King to command and ordain. The Middle Ages 
 regard the permanent statutes originally as agreements with 
 certain and definite estates (stabilimenta) ; the higher idea of a 
 law as being a supreme rule imposed by the majesty of the 
 State upon all classes of the people has been only gradually 
 inherited by the State from the Church. 
 
 As the Anglo-Saxon monarchy was built up upon the 
 principles of the Carlovingian empire, so now in the con- 
 stitution that has been completed, the national leading 
 ideas of State and Eight enter into an organic fusion with 
 society, in the old tripartite division (Gneist, Eechtsstaat, 
 chap, ii.) : 
 
 The governing power and the right of ordinance as basis ; 
 
 The judicial system as barrier ; 
 
 The Law as the highest controlling force of the State 
 
 win. 
 
 Shifting and but slowly established by experience are the 
 boundaries between legislation, the ordaining power, and the 
 executive power in detail. The last named is legally restricted 
 by the obligation of the royal servants to execute the royal 
 laws, and by the legal duty of the monarchy to administer 
 justice ; but to draw a strict mathematical line between the 
 legislative and executive power was proved by practice to be 
 impossible. The English Parliaments have only become 
 effective legislating bodies by their continual participation in 
 government and by the habitual activity of their members in 
 county and municipal administration. The right of the estates
 
 454 Constitutional History of England. 
 
 to concur in decreeing the laws led to a constant interference 
 as to their application, this, in small as in great matters, 
 being the custom of Germanic peoples. The right of Parlia- 
 ment to grant taxes proved itself perfectly sufficient to lend 
 to this interference both support and effect ; indeed, it appears 
 more than sufficient for the purpose. The Parliaments of 
 the fifteenth century, like the German Landstande, claim a 
 voice and intervene occasionally in all matters, in war as well 
 as peace, in diplomatic negotiations, in ecclesiastical affairs, 
 in the internal administration of the royal household, in the 
 appointment of the officials, in the administration of justice ; 
 no interest is too small for them and none too great, no 
 attribute of the Crown is excluded. This encroachment, 
 which was at times excessive, is, however, easy to explain, if 
 the original state of the Norman administrative law be borne 
 in mind. That system of absolutism could only be reduced 
 to fixed administrative maxims by thousands of national 
 grievances; and by means of continual complaints a fixed 
 administration was thus gradually produced by hundreds 
 of laws and administrative ordinances, in the course of many 
 generations. Where such an end has been attained, as regu- 
 larly and uniformly as the ebb follows the flow, a reaction 
 occurs an ever-popular reaction and willing renunciation 
 of acquired and apparently important rights. This thoughtful 
 moderation is not merely the outcome of a providential pecu- 
 liarity on the part of the English nation, but of a different 
 political school of experience, through which the German 
 Reichstande and Landstande were never so happy as to pass. 
 These Parliaments had from the first sufficiently experienced 
 the pernicious effects of a party government with a ruling 
 apparatus centralized after the Norman fashion. These 
 wealthy classes learnt, by daily exercising the magisterial 
 functions of self-government, the necessity of a permanent 
 organization of the administration. These Parliaments, in 
 their constant connection with the central government, early 
 experienced that a right of ordinance was indispensable for the 
 sovereign power, and that an exhaustive circumscription of 
 the sovereign power by statute was as preposterous as it was 
 impossible. Upon the same basis the gradual definition of 
 the parliamentary privileges by precedents arose. Moreover, 
 the ever-recurring collisions between the legislative assemblies 
 and executive organs are at once the weak, as they are the 
 strong, side of all our national constitutions. A strongly 
 defined individual sense of right shows itself in these col- 
 lisions, and it is to them principally that England owes the 
 progressive improvement in its administration. In this 
 department, however, all government by Parliaments is ex-
 
 Organization of the State The Royal Prerogative. 455 
 
 perimental. The evil consequences that had arisen from the 
 excesses of the principle of election and party rule led by 
 experience to the adoption of the fundamental maxim, that 
 judicial and magisterial posts may not be filled by election, 
 but only by appointment. 
 
 Certainly these conditions were as difficult as in any modern 
 constitutional system. Even in those times an older ruling 
 class (prelates and barons) confronted the young electoral 
 assemblies of tax-payers. The aspirations of the one class to 
 a share in the State could no more be repudiated than the 
 rights of the other; for the State required the money, the 
 military, judicial, and police service of the one quite as clearly 
 as it did the military power and business experience of the 
 other. Beyond doubt the Commons of the fourteenth century 
 were originally as inexperienced in the real needs of a great 
 State as the newly enfranchised voters of the nineteenth 
 century. It became almost proverbial, that the sagacity of 
 the commoners in discovering the grievances of the country 
 bore no proportion to the unpracticalness which they fre- 
 quently displayed in redressing them. Beyond doubt their 
 immediate wishes, conceptions, and proposals were often 
 incompatible with the working of the State and with the 
 claims of the prelates and seigneurs. And yet the proper 
 government of the country resided in a monarchy advised by 
 its continual council. In spite of all encroachments of the 
 Upper House, and sometimes also of the Commons, under 
 every capable and under every conscientious King, the recon- 
 ciliation of what was apparently incompatible was brought to 
 pass in a harmonious alliance of rights and duties, out of 
 which, despite all storms, parliamentary liberty emerged 
 triumphant and the nation mighty. Parliament has always 
 finally yielded to "political necessities," granting what was 
 demanded by King and council. In spite of all passion and 
 violence of factions, a spirit of patriotism and a sense of 
 justice pervades this epoch until the crowning catastrophe 
 of the Wars of the Eoses a spirit which is founded upon the 
 uniform habituation of the wealthy classes to the personal 
 exercise of their political duties. There are here the living 
 elements of an internal harmony, in which property, political 
 duty, and political right are balanced, in which the independent 
 will of a free people imposes upon itself self-created laws. In 
 the period of Edward I. and Edward III. and in the middle 
 period of the house of Lancaster this harmony is manifested 
 in a powerful development of the external and internal energy 
 of the State, which causes it to be the most glorious period of 
 English military history. There was only needed the restora- 
 tion of a certain and incontestable succession to the crown, to
 
 456 
 
 Constitutional History of England. 
 
 put this political system into such a position that it could 
 perform new and important tasks. 
 
 NOTE TO CHAPTER XXIX. Ctye 
 Icjjal roncrptt0itjS of tljc ronal 
 pa tod" are now materially different 
 from those of the time when (in 15 
 John) the English barons rose with 
 weapons in their hands to remon- 
 strate against the treatment of the 
 country as a general farm of the Crown, 
 and when in 48 Henry III. they had 
 conquered a king in open battle. The 
 impressions of these events are ex- 
 pressed by Bracton (ii. 16, sec. 3) as 
 follows : ''Rex autem hdbet superiorem, 
 Deum scilicet. Item legem, per quam 
 factus est rex. Item curiam suam, 
 videlicet comites, barones, qui comites 
 dicuntur quasi socii regis, et qui habet 
 socium, habet magistrum, et ideo si rex 
 fuerit sine frasno, id est sine lege, debent 
 ei frfenum ponere." 
 
 This cavalier manner of expression 
 may faithfully enough express the con- 
 ception of the knighthood. The monk- 
 ish and the popular view of the times 
 are shown in a thoughtful political 
 poem, "The Vision of Piers Plowman," 
 which, in estimating the events, comes 
 to the conclusion that if the King 
 allows himself to be led astray and 
 sanctions all manner of harm, or out of 
 wilfulness sets his power above the 
 law, the magnates have a right to save 
 the land from such errors. The King 
 should consult his community, to whom 
 their own laws are certainly well 
 known ; subjects are wont to be better 
 informed in the common law than 
 others. But at the same time it is still 
 necessary that the King should choose 
 his servants, without being bound to 
 certain men (Lappenberg-Pauli, iii. 
 726). The conception of a duty of the 
 Crown to administer justice and an 
 aversion to a purely personal rule 
 shows itself clearly again and again. 
 " Ipse autem Rex non debet esse sub 
 homine sed sub Deo et sub Lege, quia 
 Lex facit Regem ; attribuat igitur Bex 
 Legi quod Lex attribuat ei, videlicet 
 dominationem et potestatem; non est 
 enim Rex ubi dominatur voluntas ct non 
 Lex " (Bracton, iii. c. 9). In about 
 twelve passages Bracton ever recurs to 
 the dominion of the law and the King's 
 duties : " ad Iwc creatus est, ut justiciam 
 faciat," etc. These conceptions are 
 primarily rooted in the conception of a 
 reciprocity in feudal duty, as consisting 
 of protection on the one side and fealty 
 
 on the other. But they are still more 
 deeply rooted in the Germanic popular 
 idea of the duty of the magistrates to 
 administer justice. As Stubbs justly 
 remarks touching the frequently one- 
 sided prominence given to fealty : 
 " Fealty is the bond that ties any man 
 to another to whom he undertakes to 
 be faithful; . . . homage is the form 
 that binds the vassal to the lord ; . . . 
 allegiance is the duty which each man 
 of the nation owes to the head of the 
 nation. . . . But although thus dis- 
 tinct in origin, the three obligations had 
 come in jthe Middle Ages to have, as 
 regards the King, one effect " (Stubbs, 
 iii. 514). 
 
 Upon this broadest basis the juris- 
 prudence of this time laid down the 
 severest penalties of high treason for 
 violation of the allegiance to the King, 
 which were modified in their exagge- 
 rated severity and extent from time to 
 tune by parliamentary legislation. By 
 the dynastic struggles men were also 
 compelled to uphold a King de facto as 
 entitled to allegiance, whereby the 
 recognition of the monarchy as a poli- 
 tical institution is necessarily acknow- 
 ledged. In harmony with this consti- 
 tutional obedience of the subjects to 
 their legally acknowledged King, is 
 the duty of the King to observe the 
 laws which he has himself imposed, 
 which was after Edward II. incorpo- 
 rated into the coronation oath. Parlia- 
 mentary legislation now frames fixed 
 rules for the exercise of the royal pre- 
 rogative, which become a portion of the 
 common law, and which the King can 
 no longer repeal or alter at his own in- 
 stance. The observance of these bounds 
 is enforced by the responsibility of the 
 royal servants. Parliamentary practice 
 has matured all former postulates to 
 this one definite notion, viz. that the 
 parliamentary government is, according 
 to its proper nature, a political govern- 
 ment according to law. Even Bracton 
 opposes the Roman maxim of abso- 
 lutism : " Quod principi placet, legis 
 habet vigorem " by the English " legis 
 habet vigorem quicquid de consilio et 
 consensu magnatum et rei publicae com- 
 muni sponsione, auctoritate regis, juste 
 fuerit definitum." A chief justice of 
 the King's Bench under Henry VI. 
 (afterwards tutor to the heir to the 
 throne of the house of Lancaster in
 
 Organization of the State The Royal Prerogative. 45 7 
 
 banishment) expresses the same funda- 
 mental idea by contrasting a political 
 government (according to law) with a 
 regal government (according to personal 
 will). Fortescue's treatise, " De laudi- 
 bus Legum Angliae," c. 9, expresses 
 this for the edification of a future King 
 in a strong condemnation of arbitrary 
 government. It is true, the administra- 
 tion of justice found itself in no small 
 embarrassment, owing to the circum- 
 stance that the older royal ordinances 
 before Edward III. were yet to have the 
 authority of the statuta, the laws passed 
 with the accord of Parliament. Brae- 
 ton helps himself by the -confused 
 interpretation that the law of the land 
 could not, indeed, be altered without 
 the consent of the estates, but that an 
 emendation of the statutes was ad- 
 missible by ordinance without Parlia- 
 ment. "Leges Angliae, cum fuerint 
 approbates consensu utentium et sacra- 
 mento regum confirmatte, mutari non 
 possunt sine communi consilio et con- 
 sensu eorum omnium, quorum consilio et 
 consensu fuerunt promulgates ; in melius 
 tamen converti possunt etiam sine illorum 
 consensu" (I. c. 2). In the course of 
 the dyuastic struggles the idea of the 
 sovereignty of the people at times 
 emerges, that idea which attributes the 
 law to the general will of the people. 
 
 This is even found in Portescue, " De 
 Laudibus," c. 13, " Bex hanc potestatem 
 habet a populo ejfluxam," whence even 
 in those times the erroneous deduction 
 was sometimes made that the King has 
 no further powers than those which 
 have been given him by the law; 
 whence, further, the denial of an inde- 
 pendent right of ordaining in the pro- 
 vince of the administration would 
 necessarily follow. Parliamentary prac- 
 tice convinced itself of the necessity of 
 binding ordinances, and understood a 
 royal government according to law quite 
 rightly, as being a government within 
 the limits of the law, which the King 
 cannot of his own initiative repeal or 
 alter without the consent of Parliament. 
 What ought least of all to be sought 
 for in the Middle Ages are reliable 
 statements as to the remote past. 
 Under Edward IV. the judges declared 
 with one accord " that all the royal 
 courts of law exist from before the 
 memory of man, so that no one can 
 know which is the oldest." By this 
 scale we must intelligently measure the 
 genealogical trees which have been 
 fabled for the Upper House and the 
 Lower House, fancy ideas of Saxon 
 laws and the wise institutions of the 
 good King JSlfred, as well as the tra- 
 dition of the Anglo-Saxon constitution.
 
 458 Constitutional History of England. 
 
 FOURTH PERIOD. 
 
 THE AGE OF THE TUDORS AND OF 
 THE REFORMATION. 
 
 CHAPTEE XXX. 
 HJcstoratum of CDonstftuttonal (Bobernment. 
 
 HENRY VII., 1485-1509. MAET, 1553-1558. 
 
 HENRY VIII., 1509-1547. ELIZABETH, 1558-1603. 
 
 EDWARD VI., 1547-1553. 
 
 THE retrogression of the English constitution in the last 
 half century of the Middle Ages, that apparent relapse into 
 the stormy condition of the thirteenth century, is primarily 
 attributable to a coincidence of personal circumstances. 
 The legal relationships of the clergy and the nobility cer- 
 tainly still contained considerable difficulty and want of 
 harmony (Chapter xxviii.), but it was only in consequence 
 of the weakness of mind of Henry VI. that this degenerated 
 into a dynastic aristocratic civil war. The political suicide of 
 the Barons in this wild conflict, and the exhaustion which 
 followed the war, could not but tend to strengthen the monarchy 
 as an institution. The knighthood and the cities were in a 
 great measure drawn into these struggles, much against 
 their will, for, from their social position, they were more bent 
 upon the peaceful development of their insular political system 
 in both county and parliamentary organization ; and even the 
 increasing yearning of the lower orders after independence 
 was more inclined towards a royal government than an 
 organized rule of nobles. A newly consolidated monarchy, 
 which sagaciously approached this social tone of the times, 
 could rest assured of a strong support from the mass of the 
 people. 
 
 The Tudor dynasty and Henry VII. from the first grasped 
 the situation clearly. In the last generation the military 
 ascendancy of the great lords was seen to be the chief danger
 
 The Restoration of Constitutional Government. 459 
 
 the monarchy had to fear. Naturally the newly consolidated 
 dynasty addressed itself first of all to the most urgent task 
 the abolition of the military liveries of the magnates. When 
 the great struggle of the nohles had fought itself out, the 
 numbers, wealth, and energy of the old families had of them- 
 selves disappeared. Though many heirs bearing old names 
 were reinstated in their titles and honours, yet they did not 
 regain their old possessions intact, nor their old position in 
 respect of armed retinues, nor yet their old princely standing 
 in the country. To keep the great barons in subjection is the 
 principal scheme of Henry the Seventh's policy, in pursuit of 
 which he, like his contemporary, Louis XI., appears some- 
 times even to have forgotten that a King is bound by honourable 
 obligations. He kept a firm hold over his nobles, says Lord 
 Bacon, and preferred ecclesiastics and jurists, who, although 
 they leant toward the interest of the people, were more sub- 
 missive to him. The equivocal financial artifices of his 
 Treasury supplied him so well, that in the last seven years of 
 his reign he only needed to summon a Parliament on one 
 occasion. 
 
 In a more royal manner did his successor, Henry VIII., 
 pursue the same policy. By the publication of State papers, 
 new light has been thrown upon Henry VIII. 's merits with 
 regard to the internal administration of the country, so that 
 the most modern historians are inclined to estimate them too 
 highly rather than too low. So much is correct, that the poli- 
 tical administration displays now for the first time a syste- 
 matic care for the labouring classes. Anticipating what has 
 in later times been called enlightened despotism, we find a 
 regulation of wages and provisions; prohibitions of the de- 
 population of the land by leases of enormous tracts and 
 conversion of arable into pasture land ; prohibitions even of 
 inventions for displacing manual labour; real provision for 
 education, industry, and care of the poor, even for popular 
 amusements ; friendly regard for guilds, workmen's unions, 
 and trading companies, and other measures, all framed as 
 well as the time understood. Henry's merit in choosing out 
 able officials is undeniable, as is the acuteness with which he 
 understood how to place the right man in the right place. 
 And these endeavours awoke not only a grateful response 
 in the hearts of the poorer classes, but also an unfeigned 
 recognition by intelligent contemporaries. The success of 
 this administration, in internal peace and prosperity in town 
 and country, is undisputed. 
 
 In the discharge of such tasks the secular administration 
 remains unchanged. The only armed force of the country 
 is now the militia, under officers and the landed gentry. The
 
 4(>0 Constitutional History of England. 
 
 old feudal array has disappeared, and is replaced by land- 
 taxes and fees on change of possession. In the judicial and 
 police administration the office of justice of the peace becomes 
 more influential by reason of the augmentation of the quantity 
 and of the importance of its business. Beginning from below, 
 the parishes, now that the legislature imposes upon them 
 the economic humanitarian duties of the Church, form them- 
 selves into independent local bodies. It was not until the 
 sixteenth century that the district and local systems became 
 compact, independent units. As in this substructure of the 
 constitution the principles of the period of the growth of the 
 estates continue, their fusion together into a Parliament con- 
 tinues also. The formation of the Upper House follows 
 the legal principles already existing, as does that of the Lower 
 House. The English fundamental idea of the exercise of the 
 royal sovereign rights by the wealthy classes, and the legis- 
 lation resulting therefrom with their advice and their consent, 
 is consistently continued. 
 
 Whilst in this manner the secular side of the State displayed 
 a continuation of the existing conditions, about the middle of 
 Henry the Eighth's reign a new task presented itself to the 
 dynasty, the solution of which became its historical mission. 
 The estrangement of the Church from its moral vocation had 
 by this time reached a culminating point, which demanded 
 solution. At first Henry VIII. undertook to settle the dispute 
 between the ecclesiastical and temporal State from personal 
 motives, and achieved his object in an energetic though 
 ruthless and violent manner. The exclusiveness of national 
 life and national will in England had come more and more 
 into antagonism with the Eoman Church, with its unpopular 
 privilege of jurisdiction and its foreign head. If the Church 
 was to become a national Church, as the popular voice 
 demanded, then must the head of the State take the place 
 of the foreign bishop. But in his position as the ruling 
 head of the Church, the King became again absolute lord in 
 that half of the State which had been hitherto organized as 
 a Church. The ecclesiastical powers pass, in the first place, 
 to the King as a gouvernement personnel, and become con- 
 solidated into a spiritual council of the State. The episcopal 
 office becomes now subordinate to the King in council, in 
 the form of an administrative bureaucracy, durante bene 
 placito. With the episcopal office the parochial clergy be- 
 comes subordinate to the new administrative organization. 
 With the alteration in their possessions and in their official 
 position the clergy loses the character of a separate estate, 
 and becomes welded into the system of the royal political 
 administration. The old powers of the ecclesiastical regime,
 
 The Restoration of Constitutional Government. 461 
 
 the old authority of the " holy Church," the customary relation 
 of allegiance of the laity to the Church, form a chain of new 
 powers of the Crown. The relations between Church and State 
 from that time to the close of the period stand in the fore- 
 ground, and are of such all-engrossing interest, that it appears 
 appropriate to review : first, the permanent elements in the 
 history of the period, viz. the development of the county- 
 system, and the constitution of Parliament (Chapters xxxi., 
 xxxii.), and then the Eeformation, the new organization of the 
 State Church, and its effects upon the fundamental character 
 of the royal government (Chapters xxxiii.-xxxv.). (a) 
 
 (a) Of the sources and literature 
 of this period we may point out the 
 following : 
 
 1. The records of statutes, which are, 
 after 4 Henry VII., exclusively in 
 the English language. The separate 
 Statute Bolls end with 9 Henry VII., 
 and are merged in the Rotuli Parlia- 
 mentorum. The complete legislation 
 of the period is contained in the 
 official collection of laws (Statutes of 
 the Kealm, 1810, seq.), vol. ii. pp. 499- 
 694 ; vols. iii. and iv. 
 
 2. The parliamentary proceedings 
 after 12 Henry VII. exist in the Rotuli 
 Parliamentorum as original documents 
 in the Parliament Office. With 1 Henry 
 VIII. the official " Journals of the 
 House of Lords " begin, printed with 
 a general index, and a special calendar 
 from 1 Henry VIII. to 30th August, 
 1642. The "Journals of the House 
 of Commons " begin with 1 Edward VI. 
 (1548). 
 
 3. Other State papers of immense 
 extent exist in the Record Office, and 
 are published in numerous series. The 
 proceedings of the council of the realm 
 (Sir H. Nicolas, " Proceedings," etc.) 
 extend down to 33 Henry VIII. The 
 State papers of the tune of Henry 
 VIII. are in print, vols. i.-xi. (1830- 
 
 1852). "State papers" (1571-1596), 
 by Murdin, 1750, fol. "A Calendar 
 of the State Papers, 1547-1580," by 
 B. Lemon, 1857, with continuation. 
 
 4. "The History of the English 
 Law," by Reeves, 1815, embraces in 
 vols. iv. and v. the period of the Tudors. 
 Sir Edward Coke's "Institutes," Part 
 II., form a chief authority for public 
 law. 
 
 5. For the general political history : 
 Hallam, "Constitutional History," vol. 
 i. ; Lingard, " History of England " 
 (from the Catholic point of view). 
 With extensive studies of the sources : 
 Froude, " History of England since the 
 Fall of Wolsey," etc., 1858, seq., vols. 
 i.-xii. (a spirited apology for the Tudors, 
 especially Henry VIII.). Pauli-Lap- 
 penberg, " Geschichte von England," 
 vol. v. (down to Henry VIII.). Ranke, 
 " Englische Geschichte," especially in 
 the sixteenth and seventeenth centuries, 
 vol. i. (1859). For limited purposes : 
 Fr. Bacon, " Historia Regni Henrici 
 VII." Amst., 1662. Lord Herbert, 
 " Life and Reign of Henry VII.," 1649 
 (official). Camden, " Annales Britt. 
 regn. Elizabeth." Th. Smith, the 
 " Commonwealth of England," Lon- 
 don, 1589 (for the political situation in 
 Elizabeth's day).
 
 462 Constitutional History of England. 
 
 CHAPTEE XXXI. 
 Bebdopuunt of tfje <2Dountg Constitution. 
 
 THE fundamental institutions, upon which the vital energy 
 of the parliamentary constitution is built up, were developed 
 and extended by the Tudors in a manner that of itself affords 
 us sufficient proof that these monarchs sincerely desired the 
 maintenance of the constitution. The combination of the 
 sovereign rights with the local system continues in every 
 direction, and, striking its roots deeper down, draws the smaller 
 households into the activity of self-government. 
 
 I. The militia System gains in importance by the fact that it 
 forms the sole legal force of the country. The old feudal 
 arrays are now in practice abolished ; the aim of the Tudors is 
 unswervingly directed towards abolishing the retinue and 
 condottiere system of the higher nobility. A return to con- 
 ditions similar to those under the house of Lancaster has 
 become impossible, owing to the fact that a great foreign war 
 has been avoided, and the nobles have gradually become unac- 
 customed to regular campaigning. (1) The whole care of the 
 Tudors was, on the other hand, concentrated upon the county 
 militia, which in the Scotch wars, and yet more frequently 
 on the Continent, had proved itself efficient. For cases of 
 need, the custom was revived of compelling the counties to 
 furnish a definite number of men. The legislature assisted 
 in this matter by certain provisions touching the military 
 service of the royal vassals and officers (19 Henry VII. c. 1, 
 and special statutes), and touching the military subordination 
 of the men to the captains set over them. Under Henry VIII. 
 for the first time extraordinary commissioners were appointed 
 
 (1) Compared with the militia system the situation, the provincial nobility on 
 
 of this time the remains of the feudal the borders retained a military character 
 
 militia are only sporadic phenomena. down to the time of the union with 
 
 In like manner the material dies out Scotland. The habitual exercise of 
 
 with which the battles of the Roses arms was comparatively general among 
 
 were fought. The Marches on the the population, in consequence of 
 
 borders of Wales and Scotland, as which, in the county of York alone, 
 
 military governments with a feudal the men capable of bearing arms were 
 
 aspect, were abolished under Henry estimated at 40,000. 
 VIII. As a natural consequence of
 
 The Development of the County Constitution. 463 
 
 for this purpose, who, as lieutenants of the King (in later 
 times lord lieutenants), furnish the required number by 
 forcible recruiting. In the times of the Catholic troubles in 
 3 Edward VI., such lieutenants are mentioned for the pur- 
 pose of "bringing the counties into military order." These 
 powers were legally recognized by stat. 4 and 5 Philip and 
 Mary c. 3, which presupposes the existence of such royal 
 lieutenants. At the same time, by a new militia statute 
 (4 and 5 Philip and Mary c. 2), the liability to bear arms was 
 graduated afresh, and a suitable change made in the military 
 system. The militia statute distinguishes all secular persons 
 with/ree landed estates according to the scale of 1000, 1000 
 marks, 400, 200, 100 ; 100 marks, 40, 20, 10, 5 : 
 and next, persons in possession of personal estate of 1000 
 marks, 400, 200, 100, 40, 20, and 10. According to 
 this scale the liability to an equipment of a greater or lesser 
 number of persons was determined. Other persons of yearly 
 incomes, either from copyhold or entailed estates of the clear 
 annual value of 30 or more, are to be burdened according to 
 the scale of personal property ; all other inhabitants who are 
 not specially contained in the former scale, are to keep at 
 the public expense such equipments and arms as the royal 
 commissioners shall determine. The justices of the peace 
 have to superintend the procuring of horses and accoutre- 
 ments. At times when the armed force is assembled, offences 
 in service shall be summarily punished by the commanding 
 authorities. In a state of actual war, according to 7 Henry 
 VII. c. 1, 3 Henry VIII. c. 5, 2 and 3 Edward VI. c. 2, sec. 
 6, 5 Elizabeth c. 5, desertion is punished as felony. Even 
 when in later times James I. repealed this chief statute, the 
 Mustering Statute still remained in force ; only the definite 
 gradations of the liability to military service were abolished, 
 but the administrative powers for recruiting the soldiery, and 
 the penal laws affecting desertion, were retained. (l a ) 
 
 (l a ) The commissions of array of after the rebellion in the North, in the 
 
 th period are not quite in harmony year 1570, but on the representations 
 
 with the earlier parliamentary statutes, of her council desisted from the appli- 
 
 which confine the employment of the cation of it, evidently out of regard to 
 
 militia to foreign wars. But the Par- Magna Charta. Yet, in 1588, when an 
 
 liaments found it to be to their general invasion of the Spaniards was immi- 
 
 interest to allow the government a nent, an ordinance was issued, which 
 
 wider scope for action, so as to avoid a provided that the circulators of papal 
 
 recurrence to the old feudal service. bulls and revolutionary pamphlets 
 
 Moreover, the Tudors felt no need for should be punished by the military 
 
 introducing standing armies, either for commander. In the year 1595 a pro- 
 
 the national defence, or for extending vost-marslial was even appointed by 
 
 their sovereign powers. Some scruples commission to seize, on the information 
 
 were in later times aroused under of the justices of the peace, " noto- 
 
 Elizabeth by the application of martial riously rebellious and incorrigible 
 
 law to civil persons. Elizabeth pro- offenders," and to have them hanged 
 
 claimed martial law for the first time in the presence of the magistrates.
 
 404 Constitutional History of England. 
 
 II. I 2T|)C judicial SgSteitt is hi this, as in the following, cen- 
 tury the most stable part of the political system, the only 
 progressive element being in the office of justice of the 
 peace. Apart from this the system is unchanged, based upon 
 judge and jury, and upon a systematic co-operation of royal 
 officers and committees of the townships in the civil and 
 criminal assizes, and in the quarter sessions of the justices 
 of the peace. The lists of jurors are, in the old fashion, 
 formed of the usual class of persons, the necessary members 
 for each county assize being furnished by the sheriff, and in 
 the municipal quarter-sessions by the secretary to the court. 
 The qualification for service on a jury was raised by 27 
 Elizabeth c. 6, in order to correspond with the change in the 
 value of money, from forty shillings freehold to 4, and the 
 rating of a knight's fee was at this time reckoned at 40 
 instead of 20 rent. The fact which has to be decided by 
 the jury, is in practice reduced to a regular trial by means of 
 witnesses, in which the jurors return a general verdict upon 
 the evidence brought before them. By 1 Edward VI. c. 1 
 the admission of witnesses for the defence in the proceedings 
 in evidence before the jury is legalized. The continuous co- 
 operation of judicial officials and committees of the townships, 
 in which knights, citizens, and peasants meet together each 
 year, still forms the actual nucleus of the municipal consti- 
 tution. In certain cases the jury shows itself partial out of 
 sheer fear, or is empanelled in a partial manner by officious 
 sheriffs. But it is so closely interwoven with the legal con- 
 ceptions of the times, that Henry VIII. constitutes the com- 
 missions of his Eoyal High Court with a jury, and extends 
 the jury system also to the Court of Admiralty. Existing 
 abuses led to the stat. 3 Henry VII. c. 1, introducing a sum- 
 mary penal procedure before the justices of the peace, on 
 account of " concealments of inquests," against juries who 
 fail in their duty ; but this procedure was found impracticable. 
 More serious was the later penal jurisdiction of the Star 
 Chamber, which sometimes visited the juries with rebukes, 
 and with pecuniary fines, or even threatened them with 
 imprisonment. Nevertheless, there was as yet nothing like a 
 
 The Queen guarantees in advance in- lighter suits of armour, forty thin- 
 
 demnity to the officials for these illegal plated suits of armour, thirty long bows, 
 
 proceedings. thirty helmets, twenty halbards, twenty 
 
 The new military code of 4 and 5 arquebuses, twenty light helmets, and 
 
 Philip and Mary, has, as before, for its so forth downwards. " Libert homines " 
 
 chief subject the duty of equipment, are no longer spoken of, but copyhold 
 
 which makes serious demands upon the and every kind of personal income is 
 
 wealthier classes, upon the landowners rendered liable. Cap. 3 contains also 
 
 of 1000 : six horses with weapons the penal rules directed against such 
 
 for the heavy armed, ten horses with as avoid the muster, 
 weapons for the light cavalry, forty
 
 The Development of the County Constitution. 465 
 
 powerful tendency militating against the independence of the 
 jury. (2) 
 
 In addition to this current administration of justice by 
 judge and jury, the sheriff's county court still continues ; by 
 2 and 3 Edward VI. c. 25 the regular holding of this once 
 in each month was enjoined. The idea of the institution is, 
 however, rather to procure a periodical discharge of the 
 current business of the county, beside which the remains of a 
 civil jurisdiction in petty affairs are gradually decaying. As 
 an assembly of suitors, the county court appears for the 
 same reason almost of nominal importance, and politically 
 important only by reason of the business of county elec- 
 tions.^ 4 ) 
 
 The local court leet still lingers on in some places with a 
 portion of its old functions. Just as decayed, and, as a rule, 
 only active in non-judicial business, are the old manorial 
 courts. The civil jurisdiction which had been granted to 
 certain cities appears at this time to have remained side by 
 side with the assizes in full practical working. 
 
 III. Ww COUntg polfo SgStem shows an extension of the 
 office of justice of the peace in a threefold direction. (3) 
 
 (2) The factious spirit of the age 
 had certainly, at the beginning of this 
 period, affected the jury. Not only the 
 statutes, but the historians also confirm 
 the fact that the results of the Wars of 
 the Hoses had affected juries, and were 
 partly the occasion of the institution 
 of the Star Chamber, " since the good 
 order and peace of the realm were im- 
 perilled by illegal institution, corrup- 
 tion, dishonest behaviour of the sheriffs 
 in the preparation of the jury-lists, 
 bribery of the jurymen, etc." The Star 
 Chamber had, moreover, in the era of 
 the Tudors, not as yet disturbed the 
 course of the ordinary administration 
 of justice. For single attempts to in- 
 tervene against the verdicts of juries by 
 penal sentences, see Hallam, " Constit. 
 History," i. c. 1 ; as to a certain depend- 
 ence of the jury under Elizabeth, 
 see chap. v. of the same. As a rule 
 the Star Chamber was contented with 
 an apology. Only the case of the ac- 
 quittal of Nicholas Throckmorton under 
 Mary made much noise among the con- 
 temporaries. The jurors were thrown 
 into prison after their verdict. Four of 
 the number who confessed their guilt 
 were set at liberty ; but the rest, who 
 endeavoured to justify their conduct, 
 were condemned by the council to fines 
 of one thousand to three thousand 
 marks, which were, however, in the end 
 
 partly remitted. The dangerous statute, 
 11 Henry VII. c. 3, which gave the 
 justices of the peace a summary penal 
 jurisdiction by virtue of penal statutes, 
 was the outcome of financial influences ; 
 but after the innovation had made itself 
 thoroughly unpopular, on Henry VIII.'s 
 accession the leading officers, Empson 
 and Dudley, were sacrificed, and the 
 whole institution was repealed by 1 
 Henry VIH. c. 6. 
 
 (2 a ) In accordance with the statute 
 14 Edward III. c. 7, the sheriffs were 
 annually presented to the King by the 
 Lord Chancellor, the Treasurer, and 
 the judges (State Papers, i. 114). The 
 under-secretary in the Eemembrancer's 
 office had for this purpose'to keep a list 
 of the persons who were named by the 
 high officials as qualified (Thomas, 
 "Materials," 12). The sheriffs still 
 annually present their accounts in the 
 Treasury, as enjoined by 35 Henry 
 VIII. c. 16. 
 
 (3) As to the police system, cf. the 
 detailed description in Gneist, " Gesch. 
 des Self-Government," 291-308, in 
 which the almost insurmountable mass 
 of legislation has been arranged under 
 leading points of view. For the ex- 
 tension of the office of justice of the 
 peace, Reeve's " History of the English 
 Law," vols. iv. and v. (notably vol. v. 
 p. 227 seq.) contains much matter. 
 2H
 
 466 Constitutional History of England. 
 
 1. The justices of the peace are charged with the duty of the 
 preliminary investigation in criminal cases of all kinds. This 
 new position is attached to the right of taking bail of the 
 accused (8 Hen. VII. c. 3), which was by a general regulation 
 (1 and 2 Philip and Mary, c. 13 ; 2 and 3 Philip and Mary, 
 c. 10), determined as follows : that at least two justices of the 
 peace, one of whom must be learned in the law (forming a 
 quorum], present at the same time, were to take the bail and 
 report it in a despatch under their own hands to the next 
 ordinary criminal assize. But before this is done, they must 
 draw up in writing an examination of the party arrested, and 
 an information by those who bring him in, touching the facts 
 and the circumstances of the case, so far as this is essential to 
 the proof of the crime, and send it in to the criminal assizes. 
 Thus was legally instituted a hearing of the party accused 
 and an examination of the witnesses by way of preliminary 
 proceedings, and the justice of the peace was at the same 
 time empowered, by taking security, to bind over the prose- 
 cuting party and the witnesses to prosecute and to give 
 evidence in the subsequent judicial sittings. This preliminary 
 inquisition can take place in every case, whether bail appear 
 acceptable or not, and forms the preliminary examination in 
 the English trial, as it exists in our day. In addition to this 
 extended function of the justices of the peace, there stands 
 in the background their higher position as a regular criminal 
 court with a jury in the quarter sittings of the bench, which 
 in the general form of the commission rivals the criminal 
 assizes of the itinerant justices. (3 a ) 
 
 The statutes of this century are of ex- the police control takes this course, 
 ceedingly wide scope and often prolix. that the original liability of the whole 
 The comprehensive work of Lambard, tithing passes to the "reeve and the 
 " Eirenarcha, or the office of a Justice four men," whilst that of the hundred 
 of the Peace," which in its different passes to the grand jury. The latter 
 editions (1579-1619) gives an exceed- now relieves the local unions of the 
 ingly clear survey of the progressive difficult duty of presentments, by hear- 
 extent of the office, may almost be ing the informer, gaining sufficient in- 
 ranked as an original source of infor- formation from the evidence to draw up 
 mation. The further advance of the an indictment upon its own responsi- 
 office is to be gathered from the editions bility, which had originally to be done 
 of Dalton's "Justice of the Peace," by the individual hundreds of their 
 1618. The party struggles of the Wars own knowledge and information upon 
 of the Eoses had left a legacy of a their oath. If we consider what an 
 spirit of passion and demoralization in extraordinary relief was afforded the 
 a generation that had grown up under tithings and hundreds by this proceed- 
 party struggles. The statute fixing the ing, we can understand that these inno- 
 limits of the penal jurisdiction of the vations of practice were on all sides 
 Star Chamber (3 Henry VII. c. 2) was as willingly adopted as was in some- 
 also directed against the abuses of the what later times the inquisitorial 
 office of justice of the peace ; but this activity of the paid officials on the 
 was probably occasioned by the state Continent. Thus arose the procedure 
 of the times. before the grand jury as it continues to 
 (3 a ) The practical development of the present day. In this exercise of
 
 The Development of the County Constitution. 467 
 
 2. Secondly, a consolidation of the police laws of the Middle 
 Ages was effected, primarily with the object of making them 
 more easy of individual application. Even where no important 
 and material changes had been made in the statutes already 
 passed, this extended legislation is made ready to the hand 
 of the justices of the peace, and at the same time extended 
 to new and important spheres. 
 
 The regulations affecting labour, for which the justices of the 
 peace are the successors of the old justices of labourers, become 
 consolidated into a great system, connected both with police 
 and with the poor law establishment, which was finally com- 
 pleted in 5 Elizabeth c. 4. This statute contains a long list 
 of pecuniary fines (information to be laid before two justices 
 of the peace, with a share to the informer), coercive measures 
 to be taken against unemployed persons, domestics, or those 
 belonging to industrial trades, regulations affecting domestic 
 service in the country, rules affecting the servants' characters, 
 police jurisdiction regarding notice and disputes in service, 
 and regulations affecting the amount of wages and hours of 
 labour. With this law and that relating to the poor, a 
 system of compulsory apprenticeship was intimately con- 
 nected, which was enforced by order of the justices of the 
 peace as well against pauper boys and girls as against their 
 masters. 
 
 The legislation against vagabonds and beggars (39 Elizabeth 
 c. 4), which is connected with this, gave rise to a compli- 
 cated system of magisterial powers affecting domicile, vaga- 
 
 the centralized presentment-duty it be- or -without the person of the accused), 
 came more and more evident that the to obtain there the verdict of the grand 
 function of the bench was limited to jury. This "commitment" again re- 
 legal decisions (in this case to the lieves the communities of a wearisome 
 inquiry whether the indictment is duty; for originally the hundred was 
 founded well). The other steps in obliged to present the indictment per- 
 crirninal prosecution are only proper to sonally by twelve t>f their number, 
 be dealt with by individual officials. (4) The justices of the peace provide 
 Accordingly the method was adopted at the same time for the future " trial 
 which the legislature had taken in the in court," by binding over the informer 
 case of the office of police magistrate ; and the principal witnesses to appear 
 that is, a devolution of certain func- on the occasion. This duty of inform- 
 tions from the body of the justices of ing and hearing witnesses is again only 
 the peace to individuals. The indi- an emanation of the old duty of the 
 vidual justices of the peace undertake community to present their members 
 accordingly: (1) the "previous infor- who have knowledge of the deed for 
 matioTi " by hearing the accused and the purpose of veriMem dicere nee 
 the principal witnesses for the prosecu- celare. What accordingly was the 
 tion, that is, the same matter as had duty of the community individually 
 been originally left to the hundred jury and collectively is now performed by 
 privatim as preliminary to their verdict. the informer and the witness in the 
 (2) They decide upon this information name of the rest. Thus arose the 
 as to the acceptance of any proposed practice of preliminary examination as 
 bail. (3) They send the matter they it now exists, and which received a de- 
 have collected on information to the sirable assistance from the law (Coke, 
 next assizes or quarter sessions (with Inst., iv. 177).
 
 468 Constitutional History of England. 
 
 bonds' passports, and the payment of transport and criminal 
 expenses. 
 
 The trade regulations of Elizabeth (5 Eliz. c, 4), introduce 
 for the civic trades, so far as they have the character of a 
 technical handicraft, a seven years' apprenticeship, in addition 
 to a magisterial jurisdiction of the justices of the peace over 
 disputes between master and apprentice. Side by side with 
 this is continued the earlier legislation touching the manner of 
 carrying on certain trades, particularly woollen manufactures, 
 brewery regulations, butcher and baker regulations, and the 
 like, with the intent to secure honest labour to the public. 
 
 Under the Tudors a beerhouse licensing system was intro- 
 duced by 7 Henry VII. c. 2, 5 and 6 Edward VI. c. 25. 
 Analogous is the necessity of licences for buying up or dealing 
 in corn, butter, and cheese, according to 5 Elizabeth, c. 12, 
 sec. 2. (3 b ) 
 
 As a result of the Eeformation, a penal legislation is set on 
 foot against papists, conventicles, and dissenters, after 5 
 Elizabeth a peculiar province and one that offends our 
 religious ideas, the application of the penalties of prsemunire, 
 and in many cases even of high treason, to religious noncon- 
 formity, and the inflicting of pecuniary fines to enforce ex- 
 ternal conformity. This penal system was at first directed 
 against the papists, but afterwards also against the sects which 
 dissented from the State Church. (3 C ) 
 
 (3 b ) The following may be noticed as justifies a forfeiture of the security 
 
 supplementary : they have given. 
 
 The system of the regulations affect- A new subject of legislation is the 
 
 ing labour developed itself under the regulation of the government of prisons. 
 
 Tudors to a legislative machinery bound The houses of correction had from the 
 
 up intimately with police and poor laws. first served the purposes of the police 
 
 This magisterial treatment of "labour in supplementing the poor law admini- 
 
 for hire" attains its culminating point stration, and for those averse to labour, 
 
 in - the stat. 5 Elizabeth c. 4 (which in beggars, runaway servants, and vaga- 
 
 the main is still in force), interspersed bonds (Coke, Inst., ii. 725-732). The 
 
 with a long list of rules for servants, old comity prisons, on the other hand 
 
 labourers, and artificers. which legally belong to the ordinary 
 
 The licensing system for public- administration of criminal justice, still 
 houses is new. By 5 and 6 Edward remain under the inspection of the 
 VI. c. "25, two justices of the peace sheriff, whose right was expressly con- 
 may prohibit the sale of beer in low firmed by 14 Edward III. c. 10, 19 
 houses and taps, and allow no alehouse Henry VII. c. 10, 23 Henry VIII. c. 2. 
 which has not been pubHcly licensed (3 C ) The single acts that are of prac- 
 at the sessions and by two justices of tical importance for this period are : 
 the peace. " And that the said justices " Agnus Dei" ; the importation of church 
 of the peace shall take bond and surety pictures, crosses, etc., threatened with 
 from time to time by recognizance of the penalties of prasmunire (13 Eliz. c. 
 such as shall be permitted to keep any 2, 3, 7, 17 ; 23 Eliz. c. 1 sec. 2). " Books 
 common alehouse as well for and against and relics; " two justices of the peace 
 the using of unlawful games as also shall search for Catholic books and 
 for the maintenance of good order." relics, and destroy them when found; 
 The quarter sessions shall further in- crucifixes are to be broken at the 
 vestigate whether any act has been quarter sessions. " Jesuits and priests " 
 committed by the innkeepers which (27 Eliz. c. 2, sec. 13). "Impugning
 
 The Development of the County Constitution. 469 
 
 All these functions were committed sometimes to one, some- 
 times to two, or in rarer cases to three, four, and six justices 
 of the peace. The point of view was in this respect an 
 empirical one, according as, from the nature of the business, 
 the assistance of a justice of the peace, learned in the law, was 
 considered advisable, or for other reasons a mutual control 
 was preferred. 
 
 But as in the German system the institution, of a bench of 
 ; ustices proved impracticable for dealing with petty cases, so- in 
 England the experience was made in every generation, that the 
 system of trial by both judge and jury was impracticable for 
 the majority of petty criminal cases. The preceding period 
 had as far as possible avoided any open deviation from it. 
 The summary penal powers of the justices of the peace were 
 in those days hidden under their extensive right of arrest 
 until the next session, and other indirect measures, which 
 in fact actually involved a penalty. With this period a power 
 of summary conviction comes into direct prominence. Even 
 in the above-mentioned groups of legislation numerous 
 punishments before one or two- justices of the peace are 
 included, which, after the era of the Stuarts, increase to an 
 almost unlimited extent. 
 
 3. Thirdly, the office of justice 0f the peace becomes the 
 superintending magistrature over the newly formed parochial 
 system, embracing the discretionary powers over the local 
 police, the poor la-w, the highways, and local taxation. The 
 local officers are under the specially regulated control of the 
 justices of the peace, whose quarter sessions form a general 
 court of appeal for complaints of the administration. The 
 sessions of the justices of the peace acquire more and more 
 completely the position of a district board, discharging by its 
 orders a mass of administrative business, which, according to 
 the various nature of the various objects, is sometimes com- 
 mitted to the quarter sessions, sometimes to a smaller com- 
 mittee, and sometimes to two, or even to one, justice of the 
 peace. They appoint the staff of overseers of the poor, and 
 now that the courts leet were in a state of decay, as a rule 
 the constables of the parishes also. (3 a ) 
 
 supremacy;" persona over sixteen years punished with two hundred [one hun- 
 
 of age who keep away from church for dred] marks and imprisonment for a 
 
 longer than a month, or who dispute year (23 Eliz. c. 1. sec. 4). The simple 
 
 the royal supremacy, or attend conven- "not repairing to Church " without 
 
 tides, to be arrested by a justice of the weighty excuse belongs to the cogni- 
 
 peace, until they conform (35 Eliz. c. zance of a single justice of the peace 
 
 4 sec. 1). " Maintaining the Pope's (23 Eliz. c. 1. sec. 5). 
 
 jurisdiction " : punishment of prsemu- (3 a ) The substructure of the parish 
 
 nire 5 (Eliz. c. 1. sees. 2 and 15 ; 23 and its subordination to the justices of 
 
 Eliz. c. 1, sec. 2). " Mass " : the cele- the peace and the central administration 
 
 bration or hearing of a mass to be is described beiow in Chapter xxxvi.
 
 470 Constitutional History of England. 
 
 All larger powers were altogether comprised in the periodi- 
 cally constituted commissions, which, after being again in the 
 year 1590 revised by the courts of the realm, adopted the form 
 which they have retained until this day. These commissions, 
 analogous to those of the itinerant justices, establish by their 
 uniformity a fixed constitution of the magisterial office, 
 which, amidst all the vicissitudes of political tendencies, 
 became an important guarantee. All the more necessary did 
 the retention of the royal right of appointment appear, 
 which was again, in 27 Henry VIII. c. 24, categorically 
 insisted upon. 
 
 IV. The participation of the counties and municipal 
 boroughs in assessing and raising the parliamentary taxes 
 remains primarily unchanged. The internal independence 
 and consolidation of the parochial life became materially 
 enhanced owing to a new system of local taxation, which has 
 now become the chief basis of the English parochial con- 
 stitution, and to which, as being a permanent and principal 
 creation of the royal ecclesiastical regime, we shall again refer 
 at the close of the period (Chapter xxxvi.). We must point 
 out here in anticipation thus much, that it was owing to the 
 statutes of this age that the parish first became an indepen- 
 dent and living member of the political system. As church 
 and parsonage were the centre of the ecclesiastical parish, so 
 also the poor-law and highway officers, and the poor rates 
 and highway rates were the living bond that united parish 
 and State together. The vestries with their rate meetings 
 and elections of officers receive- an impulse to reconstruct 
 governing parochial committees and to independent activity 
 in diverse directions. For the independent life of the small 
 parishes the period of the Tudors is in a certain sense the 
 normal era. (4) 
 
 V. Lastly, the municipal SgStem of tfje foorougl), is a creation 
 composed of these elements in which the more modern 
 parochial system coincides with the older judicial and police 
 system. In the municipal parishes the system of church- 
 wardens, overseers of the poor and highways, and the rating 
 connected therewith, was established just as in the rural 
 parishes. But this new creation went its own way without 
 any connection with the old borough government, which was 
 
 (4) Touching the development of the the small parochial life. And then 
 
 constitution of the parishes, see below, the system of communal taxation, the 
 
 Chapter xxxvi. The characteristic fea- liability of all occupiers, without re- 
 
 tures in this new creation are the gard to freehold or copyhold, property, 
 
 local offices : churchwardens, overseers hire, or rent. The aggregate of the 
 
 of the poor, overseers of the highways, households became thus on this lowest 
 
 and the old constables, who now form step drawn in principle into the public 
 
 a system of personal activity, each life, 
 mutually supplementing the other, in
 
 The Development of the County Constitution. 471 
 
 developed out of the court leet, and served for the judicial and 
 police administration, for the office of justice of the peace and 
 the constitution of the jury, as well as for the administration 
 of the older landed property of the town. Through this 
 separation the municipal regime became more and more 
 isolated, and this isolation was particularly favourable to the 
 continuous formation of smaller bodies. The court leet had, 
 as a rule, little to do any longer; its current activity lay in 
 the hands of the justices of the peace. For the administration 
 of the old urban property there still existed a town council, 
 etc., but this government was in most cities unimportant. 
 This actual condition of things now became legally fixed by 
 charters of incorporation. The newly granted charters of 
 this period often put the municipal government and some- 
 times also the parliamentary franchise into the- hands of 
 committees or common councillors, who- were appointed the 
 first time by the Crown, and afterwards supply their number 
 by co-optation. The election of the municipal officers is 
 conducted by a smaller committee of capital burgesses, a 
 governing body, or a select body, which fills up its number 
 by co-optation. Where the charter does not sanction it, a 
 right of this description can also be established by " statutes, 
 prescription, or old custom." The evil result of this principle 
 of incorporation was the arbitrary formation of the body of 
 citizens, which excludes the burgesses who were entitled 
 according to the old civic constitution, and in an equally 
 arbitrary manner admits foreigners to honorary citizenship. 
 Thus was the way prepared for that condition of things 
 which, under the Stuarts, made the municipal corporations 
 the principal theatre of party struggles and of violent 
 encroachments of the government. (5) 
 
 (5) As to the constitution of boroughs, subservient to the Grown. The political 
 
 cf. Gneist, " Gesch. d. Self-Govern- government shows also an inclination to 
 
 ment," 318-325. There were at this decide according to this view all doubts 
 
 time fifty-four charters of incorporation, which arise with regard to the franchise, 
 
 forty-three charters of non-incorpora- An opinion of the justices, rendered to 
 
 tion, granted to different towns. The the Privy Council in Michaelmas term, 
 
 basis of the " corporation " is not the 40, 41, Elizabeth, was therefore impor- 
 
 whole civic community, but a smaller tant in its consequences, by which 
 
 body, the election or co-optation of was declared the legality of select 
 
 which is left to usage or especial pro- bodies, the powers of the same to make 
 
 visions, and which obtains the rights by-laws, the recognition of "long usage" 
 
 of a juristic persona. We cannot as in such matters, and the adraissibility 
 
 yet assume an intentional tendency to of an election of municipal officers by 
 
 a malformation of civic constitutions. a committee or a common council. 
 
 Nevertheless, a governmental system Contempt for the political importance 
 
 already appears, which, by means of of the inferior burgesses, over-estima- 
 
 the boroughs dependent on the Crown, tion of the permanent influence of the 
 
 endeavours to keep the Lower House Crown upon the small townships, but 
 
 in harmony with the political govern- especially the adherence to old custom, 
 
 ment ; and for that purpose creates were the reasons for allowing this state 
 
 new boroughs, which were presumably of things to continue.
 
 472 Constitutional History of England. 
 
 Apart from this weak point the legislation of the Tudors 
 shows in this province also a permanent gain. The new 
 elements of the community combine with the already existing 
 institutions for the maintenance of the peace, and form in 
 combination an important member of the life of the commu- 
 nity, and a primary basis of the State, to which I shall recur 
 at the close of the period (Chapter xxxvi.). 
 
 CHAPTER XXXII. 
 
 of tfje ^arliammtarg Constitution. 
 
 As the living roots of the free constitution live on in the 
 parochial system, so their fusion in Parliament also continues. 
 All that is changed is (as in the fifteenth century) attributable 
 to a shifting of the factors of force, which, in consequence of 
 the decay of the great nobles, and of the reformation and 
 social conditions of the times tend now again to the advantage 
 of the Crown. The "King in Parliament" of the sixteenth 
 century resembles more the political system existing under 
 Edward III., than the conditions as they existed under the 
 house of Lancaster. The executive appears, as formerly, in 
 the shape of a monarchy, surrounded by its more or less 
 intimate counsellors, in the three customary gradations. 
 
 I. Qlfy Continual Council, now called 3Tf)* ^ribg Council, 
 combines the Cabinet Council and Privy Council in one body, 
 with the King for a personal president. The Privy Council 
 is now again the seat of the actual government, the advising 
 council of the King in the exercise of his prerogatives, formed 
 according to his free choice, partly of spiritual and partly 
 of temporal peers, partly of members of the Lower House, 
 and partly of mere professional officials. The latter, as such, 
 have indeed no longer a voice in the Magnum Consilium of 
 the magnates; but the importance of the royal office had 
 increased so much with the restoration of the monarchical 
 form of government, that Henry VIII. 's rules of precedence 
 give to the great officers, if they are also peers, precedence 
 over the dukes. By the increase of power that accrued to 
 the Crown as a consequence of the Reformation, the Privy 
 Council attained such an enlarged sphere of action, that it
 
 The Progress of the Parliamentary Constitution. 473 
 
 requires, as being the source of a new administrative law, a 
 special description (Chapter xxxv.). (1) 
 
 II. SJie JWagnum Concilium of the prelates and barons, 
 the Upper House, has passed over into the epoch of the Tudors 
 as an hereditary council of the realm. Henry VII. could only 
 summon to his first Parliament twenty-nine temporal lords, 
 and among them many recently ennobled. Others were later 
 restored to their rank, and partly also to their estates, and 
 until Elizabeth's death the temporal peers were moderately 
 augmented, so that the number of earls had at one time been 
 raised to nineteen, and that of the barons to forty-one. To 
 these were added one, two, or three dukes, marquises, and 
 viscounts respectively. The aggregate number of the newly 
 created peerages, as well as of those advanced in rank, is given 
 as follows : under Henry VII., twenty ; under Henry VIII., 
 sixty-six; under Edward VI., twenty-two; under Mary, nine; 
 and under Elizabeth, twenty-nine. The Tudors restrict their 
 creations, with scarcely an exception, to the old knightly 
 families. Only once did the aggregate of the temporal peers 
 under the Tudors reach the number of sixty. The alteration 
 in the state of things was here most apparent owing to the 
 disappearance of the organized military forces of the great 
 barons. The Upper House had thus in a certain sense 
 returned to the conditions existing in the fourteenth century. 
 The centre of the State lies again in the Privy Council, and 
 the influence of the peers principally in their being called to 
 fill the chief offices of State. It was in this brilliant nobility, 
 that had now become recognized as hereditary, as well as in 
 the bishops, who could be deposed at will, that the requisite 
 majorities were found for the violent deeds of Henry VIII., as 
 well as for the changes of religion of Henry, Edward, the 
 
 (1) The members of the council Lower House, who are honoured with 
 belong to Parliament partly as being an office in the Privy Council, take on 
 peers, partly as deliberating members the other hand a distinguished position, 
 of the Upper House, and partly as and are frequently, as a smaller corn- 
 elected members of the Lower House. mittee, entrusted with the decision of 
 The justices of the realm,the attorneys- important political questions. In 35 
 general, and others are now only sum- Elizabeth, on the 10th April, 1593, the 
 moned as legal advisers of the Upper Queen expresses her displeasure on 
 House with the customary writ "ad account of "irreverence towards the 
 tractandum nobiscum et cum cssteris de members of the Privy Council who are 
 consilio nostro;" whilst the writ of to be considered as her 'standing 
 summons of the peers ran " ad tractan- councillors ' in contradistinction to the 
 (J a in nobiscum et cum ceeteris Prielatis, temporary members of Parliament " 
 Magnatibus, et Proceribus." Their (Parry, 234). In 6 Mary, the Lord 
 names were in the writs always placed Chancellor appeared with other lords 
 after those of the peers. In the statute in the Lower House, and took his seat 
 of precedence (31 Henry VIII. c. 14), a in the place set apart for privy coun- 
 separate place was assigned to them in cillors ; whereupon the Speaker left his 
 the Upper House outside the ranks of chair and took his place with the privy 
 the voting peers. The members of the councillors (Parry, 213).
 
 474 . Constitutional History of England, 
 
 Catholic Mary, and the Protestant Elizabeth. A permanent 
 influence was exercised also upon it by the Eeformation, 
 which caused the disappearance of a fixed number of twenty- 
 six regularly summoned abbots and two priors. In the 
 Parliament of the 18th April, 1539, only twenty spiritual peers 
 appear, as against forty-one temporal ; but both sides are 
 affected by the same spirit, which on the Continent made the 
 nobility subservient, by attracting it to the Court, and by pre- 
 ferring it to the great offices. For more than a century the 
 nobility ceases to represent the rights of the nation. Influence 
 and pre-eminence in all that had a charm in those days, was 
 now dependent upon the royal favour, to gain which the old 
 families vied with the newly created favourites. (2) 
 
 III. j)t (JPomposttfon of tf)e Uofocr f^ouse was but little 
 changed in the transition from the Middle Ages to the age of 
 the Tudors. Certain extensions were made by the fact that 
 under Henry VIII. 27 members of Parliament for Wales were 
 added, as well as seven members for the county palatine and 
 the city of Chester, which had now become incorporated with 
 the parliamentary constitution. Still more owing to the fact 
 that a number of older boroughs were restored, and other new 
 ones summoned ; under Edward VI., 22 ; under Mary, 14 ; 
 under Elizabeth, 62 fresh members. The increase and the 
 constitution of the body down to the close of the period is 
 discernible in the parliamentary writs at James I_'s accession, 
 to whose first Parliament 467 members were summoned; 
 among them 231 knights, 140 esquires, 71 gentlemen, nine 
 merchants, one mayor, nine aldermen, four doctors of law, and 
 
 (2) The spiritual peerage is re- wise he proved himself to his temporal 
 stricted, since the abolition of the peers (many of the younger of whom 
 monasteries, to the archbishops and had been his feudal wards) a benevo- 
 bishops. The abbots sat for the last lent, generous, and obliging lord. But 
 time in the Upper House on the 28th the breach in the position of the old 
 June, 1539 (31 Henry VIII.). The ruling class is nowhere more clearly 
 Abbot of Westminster, who, under visible than in the fact that the right 
 Mary, was alone reinstated, sat at of a peer's jurisdiction, which had been 
 the beginning of Elizabeth's reign with difficulty attained, had become 
 for one day in Parliament, that is, almost a privilegium odiosum. The 
 on the 8th May, 1559. The Act of ordinary procedure by impeachment 
 Uniformity (1 Elizabeth, c. 2) was makes way for the bills of attainder by 
 passed in spite of the opposition of all which the King causes his fallen 
 the bishops, for which reason the favourites to be condemned in legal 
 spiritual lords were passed over in form. Placed in an intermediate posi- 
 silence in the preamble to the statute. tion between the royal will and a con- 
 As early as 7 Henry VII., the justices senting majority of the Commons, the 
 had declared that the King might hold hereditary council of the Crown dares 
 a Parliament without all the spiritual to offer no more opposition. With 
 lords (Coke, Inst., ii. 585-587). With regard to the competence of the Upper 
 regard to the personal position of the House, its position as a Court of 
 temporal peers, it is worthy of note Appeal, on a writ of error, although 
 that Henry VIII.'s harshness displayed fallen into comparative disuse, was 
 itself pre-eminently upon the favourites expressly confirmed by 27 Elizabeth, 
 he had himself raised up, whilst other- c. 8.
 
 The Progress of the Parliamentary Constitution. 475 
 
 one serjeant of law. In spite of the growing power of the 
 royal prerogative, the communas feel themselves, in the face of 
 the ever-increasing money demands, upon firmer ground than 
 the temporal and spiritual peers. The whole weight of the 
 public activity of the landed interests and their influence in 
 the parliamentary elections, falls upon the military and police 
 administration. The influential participation in the affairs of 
 State is now accordingly centred in the commissions of the 
 peace. At the head of the commission there regularly stood 
 as custos rotulorum (at the same time generally in the capacity 
 of lord lieutenant of the militia), a temporal lord of Parlia- 
 ment, with a large number of " gentlemen." 
 
 This "gentry," as each generation passed by, widened its 
 circle, in proportion as property and the public position upon 
 which it was based became more extended. In another direc- 
 tion the number of freeholders increased in consequence of the 
 secularization of the monasteries, the divisibility of landed 
 estates, and the freedom of devise by will after Henry VIII. 
 Still more had the improving agriculture and trade in those 
 towns that had become wealthy, increased the ground rent of 
 the smaller ones. The middle classes in the towns increased 
 by the rise of trade and commerce, favoured by the care taken 
 of guilds, labourers' unions, and companies, and by the pro- 
 vision made for assuring to them a certain livelihood and fair 
 trade. An indirect recognition of the importance of the Lower 
 House is shown also by the fact that, in important crises, the 
 Tudors begin to exercise a personal influence upon the elec- 
 tions. An innovation of the times has been introduced in 
 the election of the Speaker, who is now appointed, as a rule, 
 by the King, and accepted by the consent of the House, in 
 order, it is alleged, to avoid loss of time in disputing (Coke, 
 Inst., iv. p. 8). Eepugnant as was the enhanced position 
 of the Lower House to the statesmen and ecclesiastics of the 
 age, yet the Tudors, in the few cases of any serious collision, 
 yielded in this direction, and particularly in the voting of 
 money, and the question of monopolies. It did not escape 
 their comprehension that the local unions gained an increas- 
 ing independence by reason of their self-activity and money- 
 voting powers, and that the royal government must find its 
 strength by being in accordance with the national spirit and 
 with the right needs of the country. (3) 
 
 (3) In the Reformation Parliament missioned to return certain persons 
 
 of Henry VIII., there sat 298 members. who had been designated by the King. 
 
 On important occasions of this kind In 2 Mary, the order to the sheriffs 
 
 the Tudors did not scruple to exercise was that they should return from the 
 
 their personal influence upon the elec- counties and towns, men " of the wise, 
 
 tion. In 7 Edward VI., the sheriffs grave, and Catholic sort." The number 
 
 of the various counties were even com- of Court officials and such like depen-
 
 476 Constitutional History of England. 
 
 This position of the King in Parliament is proved also in 
 detail, when the three fundamental provinces of Parliament, 
 viz. legislation, taxation, and administrative control are 
 examined. 
 
 1. The legislation by Parliament, under Henry VII., began, 
 which recognized the title to the throne, or rather re-created 
 it. The succession of all five monarchs of the house of Tudor 
 was based upon parliamentary statutes. The work of refor- 
 mation was, in all its most important details, brought about 
 by the resolutions of the Parliament convened on the 3rd of 
 November, 1529, and, in fact, principally by motions of the 
 Lower House ; the whole of the later acts of supremacy and 
 uniformity are likewise due to parliamentary legislation. The 
 dynasty could just as little dispense with the full co-operation 
 of Parliament for its work of reformation, as the ruling princes 
 of Germany could with their Landstande. The century of 
 the Tudors is more parliamentary than any preceding one, in 
 so far as no Parliament ever had more important problems 
 to solve, especially in regard to ecclesiastical affairs. It was 
 now the established legal opinion that the estates were only 
 permanently bound by what they had joined in enacting. Still 
 more firmly rooted was the idea that what had once become 
 law by the joint action of the three estates, could only be 
 again altered with their consent. All important measures in 
 Church and State were thus brought into the sphere of par- 
 liamentary legislation. Bills which were initiated by the 
 Crown were indeed accepted as a rule. When, however, in 
 1532, the Lower House on one occasion rejected a bill, Henry 
 VIII. surlily submitted, but without further attempts. Several 
 instances of the kind follow under Edward, Mary, and Eliza- 
 beth. The statute 31 Henry VIII. c. 8, certainly contained 
 a far extending recognition of the legal sanction of royal ordi- 
 nances ; but its declared intent was only the maintenance of 
 certain rules in religious matters. That no further meaning 
 
 dent persons was also under Elizabeth. selves in the Lower House in the 
 a considerable one. Her influential fifteenth century, has now ceased, in 
 ministers, such as Hatton, Knollys, consequence of the dictatorial position 
 and Kobert Cecil, not only sat in the of the monarchy. With the abatement 
 House, but also took a lively share in of party struggles, the municipal 
 the debates. These members were members appear all the more as re- 
 able with the greater ease to gain an presentatives of material and local 
 influence, as the sittings of the House interests. It is, however, a symptom 
 were not very numerously attended. of a growing political influence, that 
 Even in important debates at most we now frequently find strangers to 
 200 to 250 were usually present. A the city canvassing for municipal par- 
 list of the boroughs represented in par- liamentary seats, in all which cases, the 
 liament since 1 Henry VIII. is given limitation of the legal eligibility was 
 in the "Parl. History," vol. vi. The easily evaded by a grant of the freedom 
 regular leadership, % which the knights of the borough, 
 of the shires had taken upon them-
 
 The Progress of the Parliamentary Constitution. 4T7 
 
 lay concealed, is shown by the proviso, "that no one be 
 injured in real estate, in liberty, or in person, nor the laws 
 and customs of the realm subverted thereby." Moreover, 
 this statute was repealed with all haste in 1 Edward VI. 
 Elizabeth issued more numerous ordinances, but their con- 
 stitutional validity must be determined according to the cus- 
 tomary principle of a concurrent legislative power. There 
 is nothing to be seen of any tendency to evade Parliament by 
 ordinances. Mary herself indignantly cast into the fire a ser- 
 vile book advocating this practice. When in 14 Elizabeth a 
 bill touching the rites and ceremonies of the Church had been 
 read a third time, the Queen declared to the House, through 
 the Speaker, that " No bills concerning religion shall be pro- 
 posed or received into this House, unless the same be first 
 considered and approved by the clergy." This, however, 
 referred to the initiative of the legislature touching the internal 
 affairs of the Church, and actually formed a new province, as 
 to which no precedent could be found for the co-operation of 
 Parliament. On the -contrary, the interference of the Com- 
 mons with the internal administration of the Church, as well 
 as all taxation of spiritualities, had been always energetically 
 rejected. According to the constitutional precedents of older 
 times, Elizabeth's ordinances (vide supra, p. 468) can be 
 proved to be constitutional. Never has any change in the 
 customary civil or criminal law by means of ordinances been 
 mooted. Many of 'them are based upon express authoriza- 
 tion by previous statutes ; others, again, upon their ecclesias- 
 tical power, such as the ordinance against the conventicles 
 (prophesyings), and the decrees of the censorship of the press; 
 others upon feudal and military prerogative, as the ordinance 
 concerning the length of swords, the prohibition of the 
 export of provisions to the enemy. Elizabeth, indeed, on 
 principle, asserted her right to make laws in the new pro- 
 vince of religious affairs, without the aid of Parliament ; but 
 at last, though with .many assurances that it was unneces- 
 sary, she caused even the Thirty-nine Articles to be sanc- 
 tioned by Parliament, (a) 
 
 (a) The parliamentary legislation was to former custom, left to the discretion 
 
 inaugurated by the Act of Parliament of the Crown ; frequently it was sus- 
 
 at the accession of Henry VII., de- pended for a number of years. But, 
 
 claring that the hereditary possession on the other hand, it became ever more 
 
 of the Crown of England shall be, frequently the custom to prorogue the 
 
 Btay, and remain in Henry and the sessions of the Parliament, when once 
 
 heirs of his body. In the Pope's convened, to the following year. Only 
 
 letter there was added, " Nee non De- with the Reformation Parliament did 
 
 creto Statute et Ordinatione ipsuis an inclination of both Houses arise to 
 
 Angliie Begni trium Statutuum, in ipso delegate to the King extraordinary 
 
 conventu Parliament*) nuncupate." The powers and even legislation itself. The 
 
 holding of Parliaments was, according Reformation Parliament declared with-
 
 478 Constitutional History of England. 
 
 2. The right of voting money supplies is also undisputed. 
 The seven Parliaments of Henry VII. and the first five Par- 
 liaments of Henry VIII. had the voting of subsidies for their 
 chief object. After Henry VI. the tonnage and poundage had 
 been granted to the King for his life, and the hereditary 
 revenue so far strengthened as to allow of the current needs 
 of the executive being more easily covered without subsidies. 
 Moreover, the right of the estates of the realm to vote supplies 
 had been for two whole centuries so firmly established that 
 the first attempts at arbitrary power of Henry VII. and Henry 
 VIII. conjured up a dangerous resistance. The Parliaments 
 of Henry VIII. showed themselves in the main so compliant, 
 that this King is said to have raised more subsidies than 
 all his predecessors together. Prompted by the feeling that 
 the King required great means for great objects, later on 
 most extraordinary supplies were voted, though not indeed 
 quite as much as Henry demanded. When Parliament did 
 not directly grant more, it indirectly allowed an abuse of 
 administrative power to be put in force against individuals, 
 by so-called "benevolences," which were impressed upon capi- 
 talists by the council, by special commissioners, and by 
 enforced service in the militia. This species of compulsory 
 loans (with or without definite prospects of repayment), which 
 was introduced under Edward IV., had been expressly dis- 
 avowed under Eichard III. ; but the statute was not respected, 
 as being a measure of an usurper, as was afterwards ex- 
 pressly explained by Cardinal Wolsey to the people of London, 
 In 7 Henry VII., with the indirect sanction of Parliament, 
 this abuse was revived, and from this time onward, it re- 
 peatedly recurred (particularly in the years 1495, 1505, 1525, 
 and 1544). As early as the reign of Henry VII. Archbishop 
 Morton had discovered the clever principle of taxation, which 
 received the name of " Morton's Fork." He told those who 
 lived handsomely, that their wealth was proved by their 
 expenditure; and those who lived penuriously, that their 
 parsimony must have made them rich. The attempt made 
 in the year 1525 caused, however, a dangerous insurrection, 
 to which Henry VIII. yielded. These forced loans never be- 
 came effectual except through the direct or indirect sanction 
 of Parliament. It was an intentionally tolerated abuse, the 
 motive for which was the avoidance of a grant of subsidy. 
 Elizabeth once refused a forced loan of this description, on 
 
 out scruple : " Your high Court of Par- (Amos on the Reformation, Parl., 65 ; 
 
 liament has full power and authority, cf. 25 Hen. VIII. c. 237). The far- 
 
 not merely to dispense, but also to reaching Statute of Prerogative, 31 
 
 authorize a certain person or persons to Henry VIII. c. 8 (Froude, iii. 200), was, 
 
 dispense from these and all other however, repealed on Edward VL's ac- 
 
 human laws of this your Kingdom " cession to the throne.
 
 The Progress of the Parliamentary Constitution. 479 
 
 its being offered by Parliament, and showed herself in all 
 cases, when she of her own accord adopted them, conscientious 
 with regard to repayment ; on these occasions she sometimes 
 gave the honour of knighthood and friendly words instead of 
 interest. On one occasion she had imposed a duty upon sweet 
 wine, on another she had raised a tax from the clergy without 
 the consent of Convocation ; but in principle the right of 
 taxation remained during the whole of this period fully 
 recognized. (6) 
 
 3. The control of the administration by Parliament was 
 finally guaranteed by the right of voting supplies, and par- 
 ticipation in the legislation. It was also at times exercised 
 in national complaints touching financial and other adminis- 
 trative abuses, and, after the Eeformation, by religious 
 complaints in one direction or another. This activity was, 
 however, from the first pre-eminently dependent upon con- 
 ditions of power, the state of public opinion, and interests. 
 As in the preceding century it had frequently exceeded all 
 bounds, so now it frequently failed to enforce its just claims, 
 though here will rather than power was lacking. As the 
 Upper House in its condemnation of unpopular favourites, so 
 the Lower House in furthering enforced loans and in punish- 
 ing disrespectful opposition, sometimes showed itself more 
 monarchical than the King himself. This overpowering 
 
 (b) The money grants of Parliament agreeable to the ancient liberties of 
 had become, with the decay of the that House." A power on the part of 
 hereditary revenue of the Crown, the the Lords to amend the money bill 
 principal reason for the dependence of was recognized in so far as that in 
 the Crown upon the Lower House. 1 Elizabeth the Lower House accepted 
 To a certain extent the deficiency was an amendment of the Lords. In 27 
 made good by the tonnage and pound- Elizabeth the Commons grant two- 
 age for life, which was retained, as a fifteenths and two-tenths, but the 
 rule, on the accession of the five Lords strike out one-tenth, with which 
 monarchs of this dynasty. Henry VII. e'mendation the grant passes. Tn spite 
 had thereby, and by his financial of all economy, there were under 
 extortions, made himself far more in- Elizabeth in the course of 11 parlia- 
 dependent of Parliament than his pre- mentary sittings, 19 subsidies, and 38 
 decessors (Peers' Report, i. 372) ; in all fifteenths voted, and, in 44 Elizabeth, 
 the seven Parliaments of Henry VII. actually four subsidies and eight 
 subsidies were, however, granted, fifteenths on one single occasion. Even 
 Much more abundantly did the grants in the time of the greatest loyalty, 
 flow in under Henry VIII., and as a the Speaker of the Lower House, 
 rule in the customary method, that the Onslow (who was at the same time 
 Commons grant " with the consent of Solicitor-General), says, in an address 
 the Lords," and the clergy in Convoca- to Elizabeth : "Our common law, 
 tion grants for itself, but its grants are although there be for the Prince pro- 
 confirmed by Parliament a rule which vided many princely prerogatives and 
 was also repeated after the ecclesias- royalties, yet is not such as the prince 
 tical restoration in 5 Mary. When, in can take money or other things, or do 
 14 Henry VIII., Cardinal Wolsey ap- as he will at his own pleasure without 
 peared in great pomp, to move for a order, but quietly to suifer his subjects 
 subsidy, he was obliged to accept the to enjoy their own without wrongful 
 Speaker's answer, "that his coming oppression; wherein other princes by 
 thither was neither expedient nor their liberty do take as pleaseth them."
 
 480 Constitutional History of England. 
 
 influence of the social interests and opinions of the time has 
 become intelligible by experience to the nineteenth century. 
 Under the Tudors it had exactly reversed the meaning of 
 parliamentary impeachments. Instead of guarding the con- 
 stitution as a whole from violation, and preventing abuses of 
 the executive power against individuals by its penal powers, 
 the Parliaments had become so subservient in their penal 
 functions that under Henry VIII. a dictatorially selfish wilful- 
 ness, under Edward VI. party-passions, and under Mary 
 religious fanaticism had no surer mode of striking their 
 opponents than by the resolutions of Parliament. The 
 morality of the times scarcely considered the wrong to an 
 individual as a public evil. The bloodthirsty violence of 
 Henry VIII. was vented upon the immediate surroundings of 
 the throne, upon a nobility he had himself raised up, which 
 condemned its own peers, well knowing that new gifts 
 followed upon confiscations. But the mass of the people 
 sought and found in the Tudors the furtherance of their 
 interests by the administration, and the satisfaction of their 
 national pride by the Eeformation. And herein we must also 
 notice that the debates of the House were not carried on in 
 public, and, in consequence of the then existing censorial 
 regulations, and the want of a periodical press, were but 
 little known, and accordingly only found support outside the 
 House when opposition allied itself with a strong and 
 universal public opinion. But in all questions involving 
 principles, as also in all material questions, such as taxes 
 and monopolies, the opposition shows itself obstinate enough. 
 The rule of the Tudors, out of regard to this state of things, 
 treated the commoners after its own fashion. A good under- 
 standing with them, yet hand-in-hand with crying wrong done 
 individuals, pervades the whole period. An incident which 
 occurred in 44 Elizabeth is characteristic. The Queen, after 
 a debate of six days, abolished a severe abuse, the grant of 
 monopolies, in dignified and queenly language, and received 
 the thanks of the House in return, (c) 
 
 (c) The control of the Government accused be heard ; as, however, Parlia- 
 is, except in one point, scarcely different ment was the highest tribunal in the 
 from that of former epochs. This is the land, from which there was no appeal, 
 disappearance of the impeachments of the validity of its judgments, of what- 
 ministers of the Crown by the Lower ever kind they might be, could not be 
 House. The penal procedure of Parlia- called' in question, 
 ment appears rather as a political But the reproach of compliant weak- 
 measure for the removal of persons of ness is more applicable to the nobles 
 high distinction in the form of an than ' the commoners, and particularly 
 enactment. Its legal validity was to the old houses, the Norfolks, 
 modestly questioned by the justices in Arundels, Shrewsburys, quite as much 
 31 Henry VIH., who held that it was as to the newly elevated Cromwells, 
 a new and dangerous question ; equity, Riches, Eussells, Powlets, Pagets, etc. 
 justice, and law demanded that the (Hallam, " Const. Hist.," i. c. 2). The
 
 The Progress of the Parliamentary Constitution. 481 
 
 The exercise of parliamentary privileges shows accordingly 
 in this period many sides, which would appear inexplicable 
 unless due regard were paid to the religious controversies and 
 to the character of this society that was in a process of 
 reconstruction. But the parliamentary constitution existed, 
 and there was on the part of the Tudors neither a serious 
 intention of abolishing it, nor on the part of their Parliaments 
 an idea of permanently renouncing any portion of it. The 
 notion that the Tudor form of government was in principle 
 an absolute one has been in modern times principally pro- 
 pagated by Hume's partial history, and is now acknowledged 
 to be erroneous. The attitude of the Tudors towards the 
 personal rights (liberties) of members of Parliament is a 
 characteristic incident, and helpful to the comprehension of 
 the parliamentary constitution. In 4 Henry VII. the error 
 for the first time occurred that a local court passed a penal 
 sentence upon Strode, a member of the Lower House, on ac- 
 count of bills which he had introduced. Upon motion of the 
 Commons, the unanimous declaration of both Houses and the 
 King (" Statutes of the Eealm," iii. p. 53) was issued, which 
 declared that judicial proceeding null and void (May, " Parl. 
 Practice," i. c. 4). In 35 Henry VIII. the first case occurs in 
 which the House summons the sheriffs of London before its 
 bar for arresting a member, and commits them to prison, 
 which proceeding was confirmed in the most emphatic manner 
 by the King (Hatsell, " Precedents," i. p. 53). Similarly, in 
 35 Henry VIII. , the privilege of the House was acknowledged 
 in the face of an order of arrest issued by the council (Nicolas, 
 "Proceedings," vii. 306). In 2 Mary an indictment was 
 attempted hi the King's Bench of those members who had, 
 in consequence of the proceedings touching the question of 
 religion, quitted the House without permission ; but this case 
 never came to an issue (" Parl. Hist.," iii. 312-335). The 
 attempt to exclude a member of the Lower House from the 
 sittings by royal order (1571) was given up. The issue of 
 these conflicts resulted finally in favour of the Lower House. 
 
 political courage too of the higher pompous and servile language belongs 
 
 clergy seems to have been buried with to the style of the time; their yielding 
 
 Thomas More and Fisher. The Upper temper on the occasion of forced loans 
 
 House contains a nobility in a new post- (Stubbs, iii. 276, seq.} and their high- 
 
 tion, which only in later generations handed acts against individuals are a 
 
 regains its old feeling and character. sign of the egoism of the times. Their 
 
 Beside the servility of the Upper submissiveness in religious questions is 
 
 House, the Commons still betray a national sympathy for the national 
 
 symptoms of independent views. Their Church. 
 
 2i
 
 482 Constitutional History of England. 
 
 CHAPTER XXXIII. 
 Reformation.* 
 
 Now that a generation had passed away since the Wars of the 
 Eoses, and a new one had grown up under the orderly discipline 
 of the State, the time at last drew nigh for resuming the 
 work of ecclesiastical reform, which had been interrupted in 
 the fifteenth century. 
 
 It is difficult for us to realize that period of the Middle 
 Ages in which the Church is the representative at once of 
 politics, legal knowledge, diplomacy, education, literature, 
 and much more besides ; a period in which the clergy were 
 not only father confessors, but belonged to the State as 
 chancellors, treasurers, ambassadors, justices, clerks of the 
 court, barristers, attornies, physicians, accountants, and secre- 
 taries ; and as such, therefore combined in one great class, 
 rendered exclusive by celibacy, the whole of the rights which 
 resided in all branches of intellectual labour, whether official 
 or not. From this fusion of the intellectual and moral life of 
 the nations into one institution arose property, magisterial 
 control, and the power of the Church, and it grew up into that 
 universal State of the Middle Ages, which attained the out- 
 ward zenith of its power at the commencement of the pre- 
 ceding period. Since then a state of tension had by degrees 
 come about, in which the Church had, to the bulk of the 
 people, become a mere outward institution, and to the upper 
 
 * For the history of the Reformation, VI. and Elizabeth " (New York, 
 
 the one-sided but authentic " History 1859) ; J. B, Marsden, " The History 
 
 of the Reformation," by Burnet (1681, of the Early Puritans," and "The 
 
 3 vols. fol.), is still of the greatest value. History of the Later Puritans." But 
 
 In modern times : Vaughan, " Revolu- above all, J. A. Froude, "History of 
 
 tions in English History," ii., "Revolu- England from the Fall of Wolsey to 
 
 tions in Religion " (1861) ; A. Amos, the Defeat of the Spanish Armada," 
 
 " Observations on the Statutes of the vols. i.-xii., hereafter quoted from the 
 
 Reformation Parliament in the Reign edition of 1870-1877. Out of the 
 
 of King Henry VHI." (London, 1859). copious matter contained in the latter 
 
 Among the numerous modem supple- work I may here especially draw atten- 
 
 mentary works may be especially men- tion to the proceedings against Queen 
 
 tioned : J. Gait, " Life of Cardinal Anne Boleyn, vol. ii. c. 2. and App. ; 
 
 Wolsey " (1846). For the times of the characteristics of Henry VIII., 
 
 the Puritans : Samuel Hopkins, " The vol. iv. c. 24 ; the action against 
 
 Puritans in the Church, Court, and Mary Stuart, voL xii. c. 69. 
 Parliament during the reigns of Edward
 
 The Reformation. 483 
 
 classes in many respects an object of aversion, and in which 
 the old rights of the Church had already become jealously 
 regarded privileges. The beautiful office of mediator, which 
 in the Anglo-Norman period, and in the great crisis of Magna 
 Charta, had been undertaken by the English prelates, had all 
 but passed out of mind. The high ecclesiastics had been for 
 a long time past no longer mediators, but rival candidates for 
 political power. In the Wars, of the Koses they had proved 
 themselves to be a body devoid of moral influence. After 
 ecclesiastical property had, by the Church's own fault, been 
 diverted from its original purpose, the Church still claimed 
 (though now with inadequate means) the fulfilment of the 
 humanitarian duties of the State as her own monopoly; 
 whereas the laity had now the judgment, the will, and the 
 means of fulfilling ameh duties itself. After the causes had 
 gradually disappeared which had induced the clergy to 
 emancipate themselves from the magisterial power of the 
 laity, so as not to degenerate into the disunion and barbarity 
 of the feudal state, the Church insisted with all the more zeal 
 upon her exemption, as being a class right and privilege ; and 
 this, owing to the over-indulgence of the spiritual courts, led, 
 in the shape of " benefit of clergy," to the exemption from 
 punishment of ecclesiastics, even for notorious crimes and 
 immoral conduct. Now that the close of the Middle Ages had 
 opened to the European populations new domains both in 
 the physical and in the intellectual world, now that the 
 thoughtful spirits of the age had become involved in a move- 
 ment such as had been hitherto unheard of, the Church 
 demanded that intellectual life should stand still, because her 
 leading functionaries could not and would not keep pace with 
 its progress. Although her intellectual and moral foundations 
 had been shaken to their lowest depths, the Church still 
 remained in possession of all the estates and rights of power 
 which ever remain for some time in a human community after 
 the moral justification for their possession has disappeared. 
 This is that eternal contradiction out of which the great 
 reformatory tasks of the State proceed. This contradiction 
 now took possession of the whole of the Catholic world, and, 
 by the complete alienation of the Eoman Church, implicated 
 the papal chair in the network of intrigues and struggles of 
 the European great powers, abolished the former solidarity of 
 Catholicism against the propagation of heresies, and thus 
 everywhere opened a freer scope for the aims of Reformation. 
 
 In these struggles of the Eeformation a dual movement is 
 to be distinguished. The first is the fight made by liberty of 
 thought and conscience against the Roman intellectual 
 tyranny, a fight waged by certain bold thinkers and a small
 
 484 Constitutional History of England. 
 
 portion of the clergy and laity, who are urged on by the deep 
 conviction, gathered from the Holy Scriptures, that essential 
 portions of the Koman Catholic dogmas and doctrines were 
 the work of man, and inventions for enhancing ecclesiastical 
 supremacy. The second movement is the striving after 
 national independence against the Italian suzerain, and this 
 is supported by the great majority of the people. This second 
 tendency is, in England, by far the preponderating one. After 
 the classes of society were united in the Upper and Lower 
 Houses under the Plantagenets, after the nation had learnt to 
 feel itself a unity, the insular popular aversion to the Eoman 
 primate also returned. It is at first the sense of national 
 exclusiveness and independence which revolts against the 
 universal ecclesiastical State. Whilst the German Eeforma- 
 tion is primarily the outcome of an intellectual movement, 
 and of the deep conviction of the errors of Catholic doctrines, 
 and only in a secondary manner reflects upon the State ; the 
 English is at its very outset a national political act which 
 only after the lapse of generations deepens into an intellectual 
 movement among the mass of the people. It is, therefore, at 
 its outset "more practical," that is, "more external." As the 
 Eoman Church had become secularized in fixedness of property 
 and political institutions, so also it was attacked upon this ex- 
 ternal ground, in its possessions and in its suzerain ; the cast- 
 ing off of the suzerainty of the Eoman bishop is the first aim. 
 
 Henry VIII. had been personally trained up in Catholic 
 doctrines. He had in person taken part in the dogmatic 
 controversy of the times, by his treatise against Luther earned 
 the honorary title of "Defender of the Faith," and had even 
 himself zealously caused the persecution of heretics ; but yet 
 in the coronation oath, touching the constitution of the Church, 
 he had with his own hand made the correction : " nott pre- 
 judiceall to hys jurisdyction and dignity royall" (Ellis's letters). 
 In the part he took in European intrigues he had always 
 dealt with the papal curia upon the same terms as with other 
 great powers, and had gained sufficient experience of its 
 friendship and enmity not to over- or under-estimate it. But 
 his divorce proceedings had brought him into complications 
 out of which there was at last no other way of escape than by 
 breaking with the external authority of the Bishop of Eome. 
 In this state of affairs the King could not rely upon the 
 doctrines of individual reformers, but only upon the great tide 
 of national opinion, upon the insufficiently educated but 
 influential parochial clergy, and upon the mass of the people. 
 Their sympathies everywhere accorded with his political ten- 
 dencies and his personal wishes, and afforded him a support 
 similar to that which in former times the House of Commons
 
 The Reformation. 485 
 
 had afforded to the Plantagenets against the barons. Yet 
 even with these sympathies in his favour the revolt against 
 the universal power of the Church was still a daring step. It 
 was the renouncing of obedience to the highest legitimate 
 power, a breaking with the whole system of authority of the 
 Middle Ages. But the boldness and acumen with which 
 Henry VIII. carried out the scheme upon which he had re- 
 solved, gives his ruthless and violent personality a providential 
 significance for England. 
 
 Whilst it disclaimed all connection with the Lutheran and 
 reformed doctrines of the Continent, the new legislation was 
 ushered in by universally popular measures, by the abolition 
 of ecclesiastical dues and some administrative abuses.** 
 
 The first decisive step is the complete separation and 
 emancipation of the ecclesiastical bureaucracy from Eome, a 
 re-enforcement of the " prasmunire," and strict prohibition of 
 every appeal to the curia, "in consideration that the Kings 
 of England have never had any other superior but God alone." 
 The papal right of dispensation was transferred to the primate, 
 the sale of indulgences forbidden, papal indulgences declared 
 null and void, the grant of the pallium freed from all influence 
 of the curia, every doctor of Eoman law, be he cleric or lay- 
 man, declared capable of exercising the magisterial rights of 
 the Church (as vicar-general, chancellor, or justice). The 
 King again exclusively assumes the right of appointing the 
 bishops. The whole body of the clergy is immediately sub- 
 jected to the civil jurisdiction and to all the coercive measures 
 of the executive. 
 
 The second decisive step is the secularization of the ecclesi- 
 astical property by dissolution of the monasteries. They were 
 until then in alleged possession of one-fifth of the land in the 
 realm, and possessed a revenue about three times as large as 
 the ordinary receipts of the Crown, an income very unequally 
 distributed amongst from four hundred to five hundred insti- 
 tutions. The idleness, licentiousness, and immorality of the 
 monks were notorious, yet the King considered a formal agita- 
 tion necessary to reconcile the nation to this violent attack 
 upon the existing legal estates. The Crown acquired by this 
 means ^500,000 personal property, and at least ^6131,000 
 annual rents from real estate; according to other esti- 
 mates, three, four, or even ten times as much. This mass 
 of wealth was partly expended for immediate war purposes, 
 partly granted to the nobles and gentry with royal profuse- 
 ness, partly parcelled out on State account, partly employed 
 for the fortification of the country and for improvements, and 
 
 ** As to the epochs of the Reformation, cf. the excursus at the end of the Chapter.
 
 486 Constitutional History of England. 
 
 for the endowment of new bishoprics. Thus were the estates 
 of the noblest families in the land at once made dependent 
 upon the legality of the Eeformation, and the former majority 
 of the spiritual peers in the Upper House was changed into a 
 minority by the deposition of the abbots and priors. 
 
 Partly simultaneously and partly subsequently there were 
 added to these concrete measures, which were directed against 
 the external ecclesiastical state, the comprehensive and formal 
 declaration of the "royal supremacy." In 25 Henry VIII. it 
 had already been declared that Convocation should issue no 
 new canons without the royal consent, nor execute such 
 without the royal placet. By the formal declaration of supre- 
 macy, however, the King now, as successor to the papa] 
 power, takes up the ground of divine appointment with equal 
 legitimacy, and with it continues the ecclesiastical constitution 
 as it had hitherto existed, as well as its legal protection 
 by capital punishments for h&resis, apostasia, schisma, as a 
 portion of the royal prerogative. After a single attempt at 
 applying to the denial of supremacy the punishments in- 
 flicted in the Middle Ages upon heretics, Henry VIII. does 
 not scruple to apply the capital punishments for high treason 
 to the violation of these new prerogatives of the monarchy. 
 
 Up to this point the Eeformation had only been external, 
 without any separation from the Eoman dogma. This is the 
 very point at which the external character of the movement 
 appears most outrageous. Whilst Henry revolutionized eccle- 
 siastical property and constitution, dogma is only incidentally 
 mentioned. Parliament had certainly empowered him to 
 appoint a commission "to agree upon a new form of the 
 national religion." But the work was only begun in a hesita- 
 ting and vacillating way, and it was hardly known how to set 
 up any new matter. Gardiner's Six Articles still teach the 
 doctrine of transubstantiation, refuse the cup to the laity, 
 retain auricular confession, Masses for the dead, and celibacy, 
 and confine the reading of the Bible to persons of rank. 
 Whilst on the Continent streams of blood flowed on account 
 of the creeds of the Church, political negotiations are here 
 begun for the adaptation of a " national " doctrine of faith, 
 in the course of which Henry dies. 
 
 What was most unintelligible to the Continent, and was at 
 times an object of aversion, was the manner of carrying out 
 this royal reformation. It was not so much the rule of 
 passion or caprice of a despot, but it was Eichelieu's system 
 anticipated, which, in accordance with a well-considered 
 State plan, always crushed the head of opposition at once, 
 in order to prevent "contagion." In the first stage of the 
 Eeformation, after formal proceedings and deliberations in
 
 The Reformation. 487 
 
 the Privy Council, it was determined to hang the prior and 
 three monks of the Charterhouse in their canonicals, coram 
 populo ; and the clergy at once submitted. In a second stage 
 the executioner's axe again falls on the heads of the opposition 
 (the Chancellor Thomas More and Bishop Fisher). In the 
 later stages, from time to time, single executions in special 
 provincial places are determined on. The execution also of 
 two queens, which was indirectly connected with the Reforma- 
 tion, took place with the strict ceremony of a judicial trial and 
 judgment. It is in like manner State policy which sacrificed 
 the most faithful and most successful servant of the King, 
 Lord Thomas Cromwell, to the passionate hatred of the high 
 clergy and magnates. State policy actually succeeded in 
 localizing the civil wars which followed the Keformation, and 
 in easily suppressing them, though at the expense of violating 
 the highest principles of Christian morality, for which retri- 
 bution follows. 
 
 The Reformation was only fully carried out by the regency 
 under the name of Edward VI., as well in dogma as in 
 Church ceremonies and the liturgy, in the abolition of celibacy, 
 and in the general licence to read the Bible. This Protestant 
 reform was the work of Cranmer and other men of true reli- 
 gious convictions. But the opinion of the nation was still 
 divided. The religious confusion caused party spirit and dis- 
 satisfaction, distress and social differences throughout the 
 country, with which the regent, the Duke of Somerset, was 
 not strong enough to cope. Once more, with the govern- 
 ment of a protector, the rule of the nobles revived, which 
 pressed with heavy hand upon villeins and the labouring 
 classes, and which, amid famine and pestilence, financial 
 distress and debasing of the coinage, squandered the resources 
 of the State, and raised the expenditure of the Court from 
 14,000 to 100,000, dissipating Crown lands to the value 
 of 1,500,000 in the form of grants of favours, sales, and 
 exchanges to the enrichment of the ministers and their friends. 
 In this position the weak regency succumbed to the ambitious 
 intrigues of the Duke of Northumberland, who, in the con- 
 fusion of the times, even endeavoured to secure the succession 
 to the throne in favour of his family. 
 
 Seldom has any reformation been apparently more quickly 
 suppressed than this English Reformation under the Catholic 
 Mary. Once again it is State policy to which the higher 
 intentions of the Ecclesiastical Reformation are sacrificed. 
 It was not merely the popularity of the legitimate daughter 
 of Henry VIII. which gained the rapid victory over the rival 
 Queen, Jane Grey, but it was the threatened danger of a return 
 of dynastic struggles, which rendered both Parliament and
 
 488 Constitutional History of England. 
 
 nation subservient to the will of the Catholic monarch and 
 ready to sacrifice all else to the temporal interests. The 
 abolition of the royal supremacy, the re-introduction of celi- 
 bacy and the Mass, passed easily through Parliament ; indeed, 
 through the Upper House without any opposition. One thou- 
 sand five hundred (according to others, 3000) clergymen were 
 driven out of their places; 284 persons were burnt, among 
 them Archbishop Cranmer, four bishops, eight gentlemen, sixty 
 women and children. Mary might have made any demands 
 but one the restitution of the ecclesiastical estates. 
 
 The reign of "bloody Mary" is, however, only a short 
 interruption of the Tudor system. In her successor, Eliza- 
 beth, the glory of the English monarchy becomes once more 
 concentrated. The true nature of the Eoman Church had 
 displayed itself to the nation in its most repulsive form. 
 Chastened by severe trials, strengthened by faith, enlightened 
 by examination of the Holy Scriptures (now no longer closed 
 to the people), the Protestant religion now strikes its root 
 firmly into the hearts of the people, attains by a careful 
 revision of the Prayer-book, the Liturgy, and the ritual, a 
 form sympathetic and intelligible to the great majority of the 
 English people, and thus renders possible the re-establish- 
 ment of a united Church in a united nation. By the Act 
 of Supremacy (1 Elizabeth, c. 1) and the Act of Uniformity 
 (1 Elizabeth, c. 3), Elizabeth, as ruler of the Church, declares 
 the Protestant Church to be the State Church "as by law 
 established ; " and the whole population as lawfully belonging 
 to the State Church. Every cleric, every Englishman in any 
 public office, and on -entering the House of Commons, has to 
 take the Oath of Supremacy. The Thirty-Nine Articles were 
 also subsequently confirmed by Parliament. The later statutes 
 of Elizabeth appear only as supplementary to these 5 Eliza- 
 beth, c. 1, for assurance of the Queen's royal power, all estates 
 and subjects ; 13 Elizabeth, c. 1, against bulls from Eome ; 
 13 Elizabeth, c. 12, for ministers of the Church to be of sound 
 religion ; 23 Elizabeth, c. 1, against Mass ; 27 Elizabeth, c. 2, 
 for the departure of Jesuits and priests ; 35 Elizabeth, c. 1, 
 against sectaries ; 35 Elizabeth, c. 2, against popish recusants. 
 Thus has the English State Ohurch become established, inde- 
 pendently opposed to the Eoman Ecclesiastical State, sub- 
 ordinate to both King and Parliament, and incorporated into 
 the civil community. The royal supremacy has become a 
 necessary presupposition of the present political system, with 
 all its consequences for the external life. Not until this Act 
 has been passed do we find the monarchy upon the pinnacle 
 of its power under the long and glorious reign of the Virgin 
 Queen.
 
 The Reformation. 
 
 489 
 
 NOTE TO CHAPTER XXXIII. 
 (2?j)0ci)jE? of tf)0 ^Reformation may be 
 divided in the following manner : 
 
 1. The national Church of Henry 
 VIII. appears as a continuation of the 
 external policy of the first twenty years 
 of his reign. Henry had by predi- 
 lection and with tolerable success 
 mixed in the complications of the 
 European cabinets of his tune. He had 
 found for such purposes, in Cardinal 
 Wolsey, a versatile minister, who was a 
 match for the statesmen of the Conti- 
 nent, and perhaps more than their equal 
 in duplicity. But the proceedings re- 
 lating to the royal divorce had become 
 at last irretrievably entangled in the 
 dynastic and political complications of 
 the Continent, as the King acknowledges 
 after his own fashion by abandoning 
 Wolsey. Immediately after the over- 
 throw of his master, and with 'the latter's 
 consent, a hitherto subordinate servant 
 of Wolsey begged and obtained an 
 audience of the King. The object was 
 doubtless the suggestion that the King 
 might save his honour and his inde- 
 pendence by assigning his matrimonial 
 question to the authorities within his 
 own realm, by renouncing the su- 
 premacy of the Bishop of Rome, and 
 by a reassumption of the royal powers 
 almost to the extent in which they had 
 existed down to Magna Charta ; in ful- 
 filment also of the national wishes and 
 aims of the Commons, as they had been 
 plainly enough declared in the four- 
 teenth and fifteenth centuries. The 
 modest, clever, and determined coun- 
 cillor, for the realization of such plans, 
 appears after a few months in the King's 
 council, after a few years as Lord 
 Thomas Cromwell (ultimately Earl of 
 Essex), at the head of the Government, 
 as the author and leader of the con- 
 nected chain of parliamentary statutes, 
 ordinances, and measures. The so- 
 called Reformation Parliament, which 
 was convened to carry out this plan, was, 
 with many prorogations, in constant 
 activity for the compassing of this 
 object from November, 1529, to April, 
 1536. With great skill the initiative 
 was taken by an address of the Com- 
 mons, in which on the one side com- 
 plaint was made of the increase of 
 heretical teaching ("frantic and sedi- 
 tious books contrary to the true Catholic 
 faith "), and on the other side the 
 notorious weaknesses of the Church 
 appear as a long list of national griev- 
 ances with the strongly prominent 
 accusation " that such ecclesiastical 
 
 laws and measures attack your Majesty's 
 prerogative and do your faithful subjects 
 grievous wrong." The defence of the 
 Church against this was difficult, and 
 was conducted in an exceedingly weak 
 manner, with the excuse that "if certain 
 of the Church's members should un- 
 happily so far go astray, that cannot be 
 said of all." The indictment, charge, 
 and the defence of the bishops are 
 given in Froude, vol. i. chap. 3. It is 
 characteristic that the senile prelacy in 
 this situation thought to strengthen the 
 respect for the Church by the burning 
 of certain heretics. It was only when 
 the new laws began to become more 
 incisive that the prelates found their 
 spokesman in Bishop Fisher, then 
 seventy-sis years of age. In the 
 Upper House (to which forty-four 
 temporal and forty-six spiritual peers 
 had been summoned) no serious 
 opposition was manifested. In the feel- 
 ing that the Court, the Commons, and 
 the mass of the laity were all against 
 them, the Lords agreed to one measure 
 after another. The successive order of 
 them /in detail belongs to parliamentary 
 history ; they have been grouped above 
 as nearly as possible according to the 
 connection in which they proceed from 
 a well-considered plan. Only on the 
 first declaration of the royal supremacy 
 both Houses of Convocation timidly 
 sought to make the reservation "sole 
 and supreme head of the Church, as 
 far as is allowed by the law of Christ." 
 By the declaration of supremacy the 
 national Church comes into an irre- 
 concilable opposition to the Roman 
 Catholic, yet still with the express 
 reservation that there was therein no 
 intention of swerving from the " com- 
 munity of the Christian Church in 
 any articles of the Catholic faith of 
 Christianity, or in any other things 
 which have been declared by the Holy 
 Scriptures and the Word of God as 
 necessary to salvation." The internal 
 contradiction of such a proceeding 
 was sure to make itself immediately 
 felt. Henry VIII. was aware that 
 with ecclesiastical Rome no such 
 compromises could be made as with 
 diplomatic Rome. He saw himself con- 
 fronted by a system which must either 
 be absolute and sovereign or else could 
 not exist. The choice was only left him 
 between being the conqueror or the 
 conquered. He would not suffer any 
 doubts to arise as to his decision on this 
 point. In order to suppress by force 
 the opposition to his supremacy in
 
 490 
 
 Constitutional History of England. 
 
 the highest of his functionaries, he 
 allowed the new laws to take their 
 bloody course against his chancellor, 
 Thomas More, and against Bishop 
 Fisher. On the other side, the question 
 of dogma became for him precisely a 
 question of honour and character. 
 The conformist Catholic powers of 
 Europe, as representatives of estab- 
 lished authority and legitimacy, were 
 leagued and banded in opposition 
 against the nonconformist and Protes- 
 tant powers. Should Henry, turning 
 his back upon his educatiou, his con- 
 victions, his participation in theological 
 controversy, and his whole past career, 
 ioin the dissenting party ? Shortly 
 before the dissolution of the monas- 
 teries, and in a difficult state of external 
 affairs, he had, indeed, by ten articles 
 touching the doctrines of the Sacra- 
 ments taken steps towards an approach 
 to the Augsburg Confession. But a 
 definite renunciation of the old dogma 
 was a moral impossibility for Henry 
 VIII. And the great majority of the 
 population also showed itself passive 
 in questions of faith. An individual 
 does not change his faith in days or 
 months, and fortunately nations still 
 less ; changes in religion have their 
 origin in the deep convictions of single 
 men, who, tested by hard trials, gain a 
 convincing power over others : these 
 changes proceed, accordingly, from 
 minorities. Henry VIII. was desirous 
 in another direction to allow no doubts 
 as to the limits of his system. He 
 accordingly let penal justice take its 
 course, by the burning of a number of 
 heretics on account of their Catholic 
 heresies ; he did not even scruple to 
 sacrifice his upright and faithful servant 
 Cromwell to the deadly enmity of the 
 aristocracy and of orthodoxy. From 
 this vacillating state of affairs those 
 six articles of Gardiner arose, which 
 teach the Real Presence of the flesh 
 and blood of Christ " in the form, but 
 not in the substance" of the bread 
 and wine, and retain the private Mass, 
 celibacy, and vow of chastity. " In 
 Henry VIII. no free self-devotion, no 
 loftiness of soul, and no real sympathy 
 for any living man can be discerned; 
 they are all in his eyes nothing but in- 
 struments, which he first uses and then 
 breaks. But he has an unrivalled 
 practical intelligence, and an energetic 
 activity that is employed in the general 
 interests ; he combines a fickleness of 
 purpose with a constant firmness of will. 
 One follows the course of his reign with 
 
 a mixture of abhorrence and admira- 
 tion" (Ranke, "Engl. Gesch.," i. 221). 
 Only too apposite is the parallel to 
 Richelieu which I have drawn above. 
 A Reformation so politic as this could 
 certainly not exempt the English nation 
 from the serious and severe struggle for 
 the Christian truths, but could only 
 postpone the issue of the conflict to later 
 generations. A system of this descrip- 
 tion could only close with half mea- 
 sures, viz. 32 "Henry VIII. c. 26, 34 
 Henry VIII. c. 1, such as were quickly 
 abolished in the succeeding reign an 
 illustration of the eternal truth that no 
 man should dare attempt to become a 
 reformer in ecclesiastical matters with- 
 out having a deep and hearty convic- 
 tion himself. 
 
 2. The dogmatic Reformation under 
 Edward VI. endeavoured to provide 
 the kernel that was lacking. Its 
 spiritual originators are Ridley and 
 more especially Archbishop Cranmer, 
 whose character, in spite of a yielding 
 clemency, leaves no doubts in the mind 
 as to his truthfulness and his desire to 
 do right, and to whom it was also 
 vouchsafed to seal the truth of his con- 
 victions by his death. The same dis- 
 position lies in the Protector Somerset, 
 and in the youthful King himself. As 
 an outcome of real personal conviction, 
 the Protestant doctrines of justification 
 by faith, of moral self-guidance, and 
 self-responsibility which can attain in- 
 ternal peace by individual actions, with- 
 out the need of the mediating services 
 of the priest, now assert themselves. 
 The Common Prayer-book has become 
 the imperishable monument both of 
 the national temperament and of the 
 religious feelings of the time. The 
 doctrines of distinction in the sacra- 
 ments, the abolition of the confessional 
 and celibacy, and the reform of the 
 ceremonial and Liturgy ars completed 
 with the forty-two articles. But it 
 could not be helped that, in the eyes 
 of the majority of the people, it was 
 more a change of government than a 
 change in religion that had taken place. 
 Innovations in the services of the 
 Church and in the Liturgy are at all 
 times unpopular. The masses had 
 learnt other rules of faith, many felt 
 anxious in their consciences, others 
 again felt themselves impelled to a 
 more extensive agitation; among the 
 wealthy classes the interest of a new 
 acquisition still struggled with political 
 scruples against the innovations. This 
 confusion of minds clashed with severe
 
 The Reformation. 
 
 491 
 
 social difficulties, which required a firm 
 guiding hand. In a time in which 
 monarchical despotism was more than 
 ever necessary, a weak regent stood at 
 the helm of the State, whose inclina- 
 tion for a personal government was 
 in contrast with his capacity. The 
 Protector Duke of Somerset, the uncle 
 of the King, had rid himself of the 
 regency council, which Henry VIII. 
 had instituted by his last will, without 
 possessing the capacity of exercising 
 dictatorial powers as the successor of 
 such an absolute ruler. The unsuc- 
 cessfully conducted foreign affairs are 
 complicated by the still more difficult 
 internal ones. A frivolous aristocratic 
 regime again returns, which embitters 
 the country people by the confiscation 
 of the common lands in favour of the 
 lord of the manor, by diverse acts 
 of oppression towards copyholders, 
 tenants, and the labouring classes, 
 combined with famine and pestilence. 
 To these is added the inexcusable con- 
 fiscation of the property of the hospitals 
 and guilds, the seizure of considerable 
 lands belonging to the episcopal sees, 
 as well as the embezzlement of the great 
 mass of Crown lands of the value of 
 1,500,000, which, in the form of 
 grants, alienations, and exchanges, re- 
 mained to the extent of at least one- 
 third in the clutches of the " friends " 
 of the ministers (Froude, v. 128). Once 
 again the work of Keformation clashes 
 with the secular interests of the State 
 in a manner that was fatal to both 
 parties. Thus, in an unfortunate hour, 
 the intrigues of a party government 
 by nobles return. The selfish upstart 
 Northumberland, in his restless ambi- 
 tion, brings the Protector to the scaffold 
 and seizes the reins of government, with 
 the ulterior design of bringing the suc- 
 cession into his own family. 
 
 3. The Catholic Restoration under 
 Mary is explained by the political situa- 
 tion. Upon the youthful rival Queen, 
 Jane Grey, " the nine days' Queen," 
 was fastened the capital crime of her 
 father-in-law. The remembrance of 
 the aristocratic harshness towards the 
 poorer population had estranged all 
 hearts from Northumberland. No one 
 trusted this man. In the heartless, 
 selfish regency council at the death of 
 Edward VI., there was, indeed, no man, 
 no family, and no party which enjoyed 
 the public confidence. The well- 
 founded feeling of the necessity of a 
 monarchical rule turned accordingly 
 almost unanimously to the legitimate 
 
 heiress of the throne, the daughter of 
 Henry VIII., already sorely tried by 
 fortune. The religious opinions had 
 not as yet become cleared. The newly 
 constituted Parliament consisted of 
 about one-third of Protestant members, 
 together with almost two-thirds who 
 were supporters of a " national Church," 
 which was inclined to treat the dogmas 
 of faith as open questions. The 
 supporters of the papal ecclesiastical 
 government form still a diminishing 
 fraction. But the majority, consider- 
 ing only the exigencies of the times, 
 sacrificed the reformatory legislation of 
 Edward VI. in such a frivolous manner 
 that the steadily Romanizing tendency 
 gained the upper hand as early as in 
 Mary's second Parliament, to which 
 the sheriffs were expressly ordered to 
 send men of the " wise, grave, and 
 Catholic sort." This honourable as- 
 sembly joined with the Lords in a sup- 
 plication, which in deep sorrow for the 
 past proceedings, repeals the Acts of 
 Parliament against the Pope " under 
 the condition that he will confirm their 
 acquisitions of abbey and foundation 
 lands." At this price these wise men 
 allow the Queen and her fanatical 
 counsellors full liberty in the burning 
 of the primate and the chiefs of Pro- 
 testantism. From time to time the un- 
 happy woman upon the throne believed 
 that by the acceptable sacrifice of 
 heretic-burnings she would see her 
 hopes of the birth of a successor realized. 
 The third "Reconciliation Parliament" 
 displayed the debasing spectacle of 
 Lords and Commons falling down upon 
 tlieir knees, confessing in all humility 
 the sins of their apostasy, and receiv- 
 ing complete spiritual absolution at the 
 hands of Cardinal .Pole, reserving the 
 possession of the ecclesiastical estates. 
 Thus did the political party of the 
 national Church make a retrograde 
 movement from Protestantism to popery, 
 and at the same time ruined itself in 
 the estimation of the nation. Still more 
 exactly characterized indeed was the 
 nature of the Catholic counter-refor- 
 mation and its leaders in England; 
 " Solam Romam quseritis, sola Roma 
 destruet vos," as Glanvill had once 
 upon a time exclaimed to the canons 
 of Canterbury. But for the English 
 Protestant Church the burning of 
 bishops and of women and children, 
 accompanied by the horrible scenes of 
 a Spanish Inquisition, was a time of in- 
 ternal purification which under "bloody 
 Mary" for the first time established
 
 492 
 
 Constitutional History of England. 
 
 the English Church in the hearts of the 
 people. 
 
 4. The Anglican State Church of 
 Elizabeth is the fusion of the external 
 and internal sides of the Reformation. 
 In sincere conviction and in the clear 
 comprehension of her royal vocation, 
 she restores the royal supremacy of her 
 father and her brother's work of refor- 
 mation, combined in one great act. 
 The decided step of the Queen is 
 followed at once by the sanction of 
 Parliament in the Act of Supremacy 
 and Uniformity, 1 Elizabeth, c. 1, 2. In 
 the Upper House now only nine secular 
 peers with nine bishops vote against the 
 Common Prayer-book ; of 9400 clergy- 
 men in England only 189 were com- 
 pelled by this Reformation to lay down 
 their livings. In real conviction, the 
 Roman Catholic faith still lived on in 
 a continuously diminishing minority. 
 The bearing of the people is now en- 
 tirely different from that under Edward 
 VI. The worldly idea of a Church 
 which should politically separate itself 
 from Catholic Christendom, and yet 
 should remain Catholic in its faith, 
 has completely disappeared ! The dis- 
 tinguishing doctrines, the discarding of 
 celibacy and the confessional, the fun- 
 damental doctrine of justification by 
 faith, are not conventional forms of 
 belief which have been learnt by heart, 
 
 but they are in harmony with the manly 
 character of this people. On that very 
 account they mostly follow the doctrines 
 of Luther and Melancthon, but in 
 sober dogmatism sometimes resemble 
 more those of Zwingli and Calvin, with 
 a comparatively snicill admixture of the 
 ecclesiastical doctrines of Augustine, 
 They reject the caste-system of the 
 mediaeval Church, and resolutely sub- 
 ordinate the Church in its outward 
 existence to the executive, rejecting 
 all foreign control on earth from beyond 
 the four seas. The Anglican Church 
 is no longer a political system, but an 
 honest Protestant faith, which con- 
 stitutes itself as a Church, in the fixed 
 intent to act rightly and in a Christian 
 spirit. Under severe trials the vic- 
 torious power of religious conviction 
 has asserted itself in the face of every 
 diplomatic policy. And thus is the 
 position of the Church henceforth fixed 
 with regard to the Protestantism of the 
 Continent, with which Elizabeth and 
 her statesmenopenly, loyally, and stead- 
 fastly enter into an alliance. All the 
 essential points of the Anglican Church 
 have been completed in the first year 
 of Elizabeth's reign. Her later laws 
 are only supplementary, establishing 
 and strengthening it against the an- 
 tagonists who assailed her from opposite 
 sides.
 
 ( 493 ) 
 
 CHAPTER XXXIV. 
 
 Court of f^ioj) Commission anto tfje gfomim'stratibe 
 Organisation of tfje ^tatt 
 
 THE administrative system of the State Church was developed 
 from these events in consistent legal continuity. The Church 
 had grown up as the school of the people ; both for State 
 and people there existed only one ruling Church one Church 
 proclaiming the Word of God, organized in an established 
 bureaucratic form. According to the views the nations had 
 held for a thousand years, there was on that very account 
 only one Church. And this view was based upon the good 
 reason, that the rights of marriage and kinship, the law of 
 inheritance and all moral family relations from the cradle 
 to the grave, the public instruction in all grades, and the 
 intellectual life of the nation, and all institutions which serve 
 the civilizing and humanitarian purposes of the common- 
 wealth had been for centuries so closely interwoven with the 
 legislation, administration, and judicial system of the Church, 
 that there was no room possibly for two Churches in one 
 political system. According to the spirit of the times, 
 religious ideas could not be mere spiritual ideals. In the 
 same degree in which the Roman Catholic Church had become 
 external, the State Church also, which had become severed 
 from it, could only find its support in real estate, in ecclesi- 
 astical authority, and in the person of the King. The exist- 
 ence of the great creation of the times and the nation, the 
 possession of many thousand livings and of newly acquired 
 property upon secularized soil, now stood and fell with the 
 ensuing political institutions. 
 
 I. For supreme Church government the high spiritual 
 court, Court of f^igj) Commission, was established. The 
 right to this organization had been already in principle 
 recognized by Parliament under Henry VIII. viz. "to visit, 
 repress, redress, reform, order, correct, restrain, and amend 
 all errors, heresies, abuses, contempts, and enormities which 
 fall under any spiritual authority or jurisdiction." Henry 
 VIII. had sagaciously placed the first organization in the 
 hands of one man, his vicar-general. Under Edward VI. a
 
 494 Constitutional History of England. 
 
 general visitation by mixed commissions after the manner of 
 the six circuits of the secular jurisdiction had been arranged. 
 Elizabeth, by giving to her supreme court a corporate form, 
 was the first to endow it with a definite character, and 
 though it was still separated for the two great ecclesiastical 
 provinces, yet in both it remained an attribute of the royal 
 sovereignty. " All such jurisdictions and privileges, as were 
 formerly exercised by a spiritual or ecclesiastical power for 
 the visitation or correction of the Church, shall be for ever 
 combined and bound up with the sovereign Crown of this 
 realm " (1 Eliz. c. 1 sec. 16 seq.). Whilst the Church attri- 
 buted to the bishops and their primate a divine appointment, 
 she had declared these powers independent of every other 
 will and influence of any estate. In this complete sense, 
 the government of the Church could now be seen to have 
 passed from the Pope to the King, and these powers, restricted 
 to the " carrying out of the Beformation," had been at first 
 delegated by Henry VIII. to his vicar-general. After this had 
 been completed, it appeared necessary, according to the system 
 of the Church of the Middle Ages, to delegate the supreme 
 jurisdiction and supervision to a bench-court. By the Act 
 of Supremacy the Queen was empowered to form a "Court 
 of High Commission" of this sort, with officers, who were 
 revocably appointed by patent, exercising concurrent juris- 
 diction with the Privy Council in temporal matters. Its 
 constitution is what is in Germany known as the Consistorial- 
 verfassung, which by the formation of courts composed of 
 legal, administrative, and spiritual members, maintains the 
 connection between the secular and clerical rule ; in England 
 it henceforward forms of bishops, members of the Privy 
 Council, and other secular officials, the central department 
 of ecclesiastical government. The immediate declared object 
 of the first commission of 1559 was a "general visitation 
 of all churches," with the right of suspending, depriving, 
 and punishing clergymen. Pensions were granted to those 
 persons who voluntarily resigned. The clergy who were dis- 
 possessed of their livings under Mary were to be reinstated ; 
 and all who had been imprisoned on account of religion set 
 free after a summary investigation. Thus far the new 
 arrangement had become necessary, in consequence of the 
 confusion which had taken place under Mary. But the Court 
 of High Commission obtained also the power of proceeding 
 by inquisition, as was customary (that is, without a jury), 
 to interfere in cases of heresy, errors, abuses, and anomalies 
 in ecclesiastical matters, and to inflict fines and imprison- 
 ment. The constitution of the court was a comparatively 
 fluctuating one. At its zenith (1583) it consisted of forty-
 
 Organization of the State Church. 495 
 
 four commissioners, among whom were twelve bishops, and 
 a still greater number of privy councillors, besides other 
 clerics and laymen. "It shall from time to time by a jury 
 or by witnesses and other means examine into all infractions 
 of and offences against the acts of uniformity and supremacy 
 and two other acts ; as well as inquire into all heretical 
 opinions, seditious books, disobedience, conspiracies, false 
 rumours, slanderous words, etc., against the said laws." 
 Three commissioners (one of whom must be a bishop) are 
 empowered to punish all persons who do not attend the 
 church in compliance with the Act of Uniformity : to examine 
 and reform heresies and ecclesiastical dissensions : to dis- 
 possess of their livings all such persons as assert doctrines 
 contrary to the Thirty-Nine Articles : to punish fornication : 
 to examine on oath all suspicious persons: to punish the 
 disobedient by penance, fines, and imprisonment : to alter 
 the statutes of colleges, schools, and foundations, and to 
 demand the oath of supremacy. (1) 
 
 But in addition to this spiritual privy council, the corporate 
 constitution of the Church of the Middle Ages upon the whole 
 was continued from the old into the new Church. In both 
 Houses of Convocation the periodical association of the pre- 
 lates with the parochial clergy still continues in the old form. 
 It was retained as being the constitutional form of taxing 
 the clergy. By the side of, and subordinated to, the Court 
 of High Commission there existed here also a synodal system, 
 in which the bishops with representatives of the chapter and 
 delegates of the parochial clergy form a parliamentary body, 
 which in subordination to the national government and the 
 national legislation exercises a jus statuendi and a right of 
 voting supplies, in permanent connection with the Upper 
 House of Parliament, through the bishops who take their seats 
 in both Parliaments. The common existence and common 
 
 (1) As to the Court of High Commis- into it. But the prevailing opinion of 
 
 sion, cf. Burnet, " History of the Kefor- the times nevertheless regarded the 
 
 mation," ii. 358 ; Reeve, " History of Court of High Commission as a 
 
 the English Law," v. 216-218. As in necessary consequence of the Reforma- 
 
 the Star Chamber, so in this court, a tion. The opposition of Leicester, 
 
 purely official procedure prevailed, that Burleigh, and other of Elizabeth's 
 
 is, the inquisitorial procedure in form councillors was probably the outcome 
 
 and spirit. In England also the truth of the jealousy of the temporal and 
 
 is manifest, that in a pure official body spiritual statesmen of the time. The 
 
 and for the discipline of an official staff, court in its corporate capacity did not 
 
 this fundamental form is the proper exercise more than the constitutional 
 
 one. Some scruples are certainly shown powers, which had been from all time 
 
 by the temporal courts of law as to the allowed the ecclesiastical government, 
 
 constitutional character of such an in- and the degree of rigour that it prac- 
 
 etitution, and complaints are raised tised for the carrying out of the work 
 
 against the inquisitorial nature of the of reformation, was for a long time 
 
 oath (oath ex officio) later introduced necessary and therefore popular.
 
 496 Constitutional History of England. 
 
 work under this constitution gave the clergy, which was (even 
 under Elizabeth) wavering in dogma and ceremonial between 
 two extremes, a steady tendency and a general consciousness 
 of the nature and the right of the Anglican Church. The 
 necessity of the royal consent to their convocation and to 
 their decrees, and still more the official position of the bishops, 
 maintains their subordination to- the executive. Convocation 
 in its later development became certainly a dangerous instru- 
 ment for the re-awakening a spirit of caste among the clergy. 
 In the period of the Tudors this danger was, however, not very 
 palpable, so long as the appointment and management of the 
 court were conducted with a view to moderating that tendency. 
 II. tEbe fciocesan gobernment of the Anglican Church remains 
 unchanged in its essential features. In this intermediate 
 degree of the ecclesiastical rule, the Eeformation does not 
 show itself so much in altered forms as in the changed spirit 
 of the officials. The archbishops and bishops retain the 
 customary powers of ecclesiastical control and of jurisdiction 
 within their dioceses, but are subordinated to the King both 
 as to appointment and continuance in office (31 Henry VIII. 
 c. 9, and special statutes). So soon as a bishop's see be- 
 comes vacant, the King grants the Dean and Chapter a 
 conge d'elire, with a letter in which the name of the person 
 to be elected is contained. If the election be delayed for 
 twelve days, the King appoints directly by letters patent. 
 Cranmer and certain bishops had even under Henry VIII. 
 accepted an appointment durante bene placito. On Edward 
 VI. 's accession the bishops were compelled, in the same way 
 as other administrative officers, to obtain new commissions, 
 by virtue of which they held their offices revocably " as 
 delegates of the King, in his name, and under his authority." 
 Elizabeth, after some interruption, restored this relationship, 
 and asserted a personal right to suspend and dismiss the 
 prelates. Such a bureaucracy lacked, of course, the social 
 independence of the Eoman Catholic prelacy. The standing 
 armies and fortressed towns of the ecclesiastical state had 
 all disappeared with the monks and monasteries ; the power 
 of their material possessions was weakened by secularization, 
 and all offices which were important for the political position 
 of the Church were subordinated to the monarchy. Together 
 with the bishopric the whole ecclesiastical bureaucracy was 
 made primarily subservient to the royal primate. (2) 
 
 (2) In the bishops' dioceses a change which belonged to the province of 
 
 was made by the six new bishoprics Canterbury; Chester, and Sodor and 
 
 which Henry had founded from the Man, which belonged to York. The 
 
 monasterial lands, viz. Gloucester, jurisdiction of the bishops over the 
 
 Bristol, Peterborough, and Oxford, laity in the customary province of
 
 Organization of the State Church. 497 
 
 III. The position of the lowest grade of the ecclesiastical local 
 offices, ^factories anil UtcaragtS, remained unchanged exter- 
 nally ; but unfortunately the Eeformation did not restore to 
 the office of parson what belonged to it of right. The tithes 
 appropriated by the monasteries remained diverted from their 
 parochial purposes. Numerous offices, which involved the 
 cure of semis, were held by insufficiently paid vicars, which 
 was chiefly the cause of the comparatively low degree of 
 education enjoyed by the great mass of the clergy. This 
 was one of the results of the aristocratic tendency of the 
 Church, and was fraught with important consequences. By 
 means of the far-reaching right of patronage the living is 
 in close connection with, but also in dependence upon, the 
 landed gentry; by the grants of a Church rate, that became 
 periodically necessary, it is made to a certain extent dependent 
 upon the parish. As in the highest grade of ecclesiastical 
 government the spiritual and temporal state unite in a mixed 
 court, so also upon this lowest level does a union of both take 
 place in the constitution of the parish. (3) 
 
 The whole laity is subjected in ecclesiastical matters to 
 this bureaucratic state, which in its various grades is sub- 
 ordinated to the Crown. Those who were formerly subjects 
 of the ecclesiastical state have since the Eeformation entered 
 into a new relation of subjection to the Crown, in the same 
 fashion as, according to the centuries-old ideas of ecclesi- 
 astical government, every Christian has become a subject of 
 the representative of St. Peter. To the temporal oath of 
 allegiance the spiritual is added ; abjuration of the papal 
 power is now the duty of all subjects, and violation of this 
 duty is treason. By 28 Henry VIII. c. 10, whoever defends 
 the authority of the Bishop of Eome by writing, printed 
 matter, sermon or doctrine, document or act, is subjected 
 to the penalties of a preemunire; he who refuses the oath of 
 abjuration, to the penalties of high treason, which in later 
 legislation are extended to many other more detailed actions. 
 The statute of Elizabeth demands the oath of supremacy of 
 all persons in orders, graduates of the universities, school- 
 masters and private tutors of youth, barristers and members 
 of the Inns, attornies and notaries, sheriffs, under officials of 
 the courts of justice, and all officers and servants of any 
 court, under penalty of a prssmunire. It was the traditional 
 
 civil and criminal cases remained un- The decayed temporal local courts and 
 
 changed, with the modification that the periodical assizes and quarter ses- 
 
 heresies were otherwise dealt with by eions were certainly not fitted to take 
 
 the modern legislation. It was thought over this jurisdiction, 
 
 that the most pressing demands had (3) The development of the constitu- 
 
 been satisfied by the introduction of a tion of the parish is described at length 
 
 few reforms in the spiritual courts. in chapter xxxvi. 
 
 2K
 
 498 Constitutional History of England. 
 
 opinion of the age, deeply rooted in all classes of society, 
 that the confession of the true Christian faith was the con- 
 dition of all political rights, even of citizenship of the State. 
 To alter such notions, to overcome the dissensions between 
 clergy and laity, and the spirit of caste of the Eoman Catholic 
 clergy, and to blend what was general and ecclesiastical with 
 what was national and particular, was not the work of one 
 generation, but of permanent institutions, working in another 
 spirit. The acts of supremacy and uniformity appear, it is 
 true, as rigorous restrictions of personal liberty; but they 
 were the necessary counterpoise to the much severer, much 
 more exclusive system of the Eoman hierarchy, which could 
 never have been overcome by compromise and tolerance. 
 The State Church, in the measures it adopted for the com- 
 bating of heterodoxy, could, beyond all dispute, never be 
 compared with the Eoman Catholic Church in respect of the 
 bloody, passionate measures employed by the latter. On the 
 other hand, the State Church appears in truth more censorial, 
 more magisterial, and more irritating with its long list of 
 fines and imprisonments, its banishments, and innumerable 
 penal cases of pnemunire. Not everything, however, is to be 
 regarded as heresy, which appears as such to the government 
 of the time, but only " that which a recognized general 
 council, the canons, or Acts of Parliament have expressly 
 declared to be heresy." (4) 
 
 (4) The ecclesiastical allegiance had the Keformation, and the religious and 
 been for centuries historically fixed in the political questions were not as yet 
 the hearts of men. Elizabeth's reign, separable. It is only too true that the 
 however, from the first had not tended Catholic sovereigns of Europe still 
 to enforce these laws according to the adhered to the doctrine of their father 
 letter ; they were to be, in the hands confessors with regard to the identity 
 of the tutorial spirit of this administra- of Protestantism and anarchy, destruc- 
 tion, as tools which might be employed tion of all religion, and disorganization 
 or not, according to circumstances. In of society. To the good Catholics of 
 the first twenty years no capital punish- those times Protestantism had almost 
 ment was carried out against papists ; the same meaning as at the close of 
 fines and imprisonment were deemed the eighteenth century French repub- 
 Bufficient for the purpose; and these licanism had to the higher classes, 
 produced as a rule an external con- Elizabeth found herself in this later 
 formity, with which the authorities epoch in a state of defence against 
 could fairly enough be contented. The mortal foes and under the political 
 Catholic peers were dispensed from the necessity of " prevention." She pointed 
 oath of supremacy. It was not until to the deeds perpetrated by the Roman 
 the second half of Elizabeth's reign party in the Netherlands and in Catholic 
 that the rigorous enforcement of this countries and above all, and rightly, to 
 legislation began, linked hand in hand the laws of her own land, as has been 
 with the irreconcilable hatred of the expressly said by Lord Burleigh : 
 Catholic party in Europe against the " The allegation of the popish ministers 
 person of the Queen, and with a series in Paris, noting that her Majesty did 
 of attempts upon her life, and con- promise favour, and afterwards did show 
 spiracies and intrigues against her extremities to the Catholics, is false, 
 government. In this direction also the For her Majesty, at her entry, pro- 
 person of the Queen is identified with hibited all change in the form of
 
 Organization of the State Church. 499 
 
 As a consequence of this conception, among other things 
 the censorship of the press, also a significant element of 
 power, passed from the Church to the Crown. An outcome 
 of the struggle of the Church with the free-thinkers, towards 
 the close of the Middle Ages, it first of all appeared as an 
 emanation of supremacy. But it might also be attributed 
 to the prerogative of the supreme maintenance of the peace, 
 and was after the Eeformation principally brought before the 
 King in council. The right that was everywhere acknow- 
 ledged, and the necessity for the censorship of the press 
 which was on all sides asserted, is the most sufficient testi- 
 mony of the degree in which the necessity for a uniform 
 Church in a uniform State was rooted in the ideas of the 
 nation. (5) 
 
 The spiritual relation of allegiance has been thus defined 
 in all its relations. The old and new powers of the ecclesi- 
 astical government, the old authority of the "holy Church," 
 the wonted allegiance of the laity to the Church, all these 
 form a chain of new forces in the power of the Crown. The 
 provident protecting spirit of the ecclesiastical government 
 pervades the whole of the political system and unavoidably 
 influences also the character of the contemporary adminis- 
 tration. 
 
 religion as she found it by law, and garded as especially punishable. In 
 when by law it was otherwise ordered 1585 the Privy Council issues more 
 by Parliament, she did command the rigorous ordinances for the regulation 
 observation of the law newly estab- of the press, the registration of all 
 lished, punishing only the offenders printing-presses, the prohibition of all 
 according to law. So her Majesty's printing except in London, and a 
 actions are justifiable at all times, hav- single printing-press in each of the two 
 ing never punished any evil subject university towns. No one is to print a 
 but by warrant of law '' (Murdin's State book or aught else until it has been 
 Papers, 666). seen, read, and approved by the Arch- 
 (5) In exercise of the censorship of bishop of Canterbury or the Bishop of 
 the press the Privy Council, after the London. The printers of statutes must 
 invention of printing, issued frequent obtain the Imprimatur of the justices, 
 ordinances against the introduction of The sale of writings otherwise printed 
 books and the regulation of their sale. is punishable by imprisonment, and 
 According to an ordinance of Mary the the Stationers' Company is empowered 
 possession of heretical or highly treason- to have all the houses and shops of the 
 able books is declared to be rebellion, printers and sellers searched, to seize 
 and punishable according to martial all books printed in disobedience to 
 law. According to the ordinance of these ordinances, to destroy the presses, 
 1559 no one was to print a book or paper to arrest the delinquents, and bring 
 without the previous licence of the them before the council. Thus even 
 Privy Council or of a bishop, and now, under the Tudors, the weapon of press- 
 on the other side, the possession of censorship was employed for purposes 
 Catholic controversial writings is re- of restriction.
 
 500 Constitutional History of England. 
 
 CHAPTEE XXXV. 
 (Council Sbtar Cfcamkr Courts of justice. 
 
 WITH the retrogression of the power of the nobles after 
 Henry VII. the Continual Council fell back into its original 
 position. As in the fourteenth century, it is again the delibe- 
 rative body, with which the King administers the whole of 
 the business of the realm, so far as it does not devolve upon 
 
 (i.) The central and lower courts in the ordinary course of 
 justice ; 
 
 (ii.) The Exchequer and the several administrative depart- 
 ments in the ordinary course of administration. 
 
 (iii.) The Parliament for extraordinary deliberation. 
 
 I. 3Tf)e immbm anto t|)t functions of tf) council are also 
 actually again an emanation of the royal will, independent of 
 any controlling influence of Parliament. " The King's will 
 is the sole constituent of a privy councillor " (Coke). The 
 name " Privy Council," which, sometimes occurring at the 
 close of the Middle Ages, now becomes its regular title, is 
 connected with this idea. The council certainly contains 
 many names of lords, partly included as great officers, and 
 partly for the sake of honour, and of certain dukes and earls 
 as heads of the peerage ; but an overflooding of the council 
 by the Upper House (such as took place under Henry VI.) has 
 now ceased. (1) 
 
 (1) The members of the Privy Coun- satisfaction, and caused the rebellion of 
 
 oil at the accession of Henry VIII. 1536. One of the popular grievances 
 
 comprised the Archbishop of Canter- was "that the Privy Council was 
 
 bury (who was at the same time Lord formed of too many persons of humble 
 
 Chancellor), the Bishop of Winchester birth, whereas at the beginning of the 
 
 (Privy Seal), the Earl of Surrey (Lord reign it had consisted of a much larger 
 
 Treasurer), the Earl of Shrewsbury number of nobles." Henry replied tcr 
 
 (Lord Steward), Lord Herbert (Cham- this : that on his accession the council 
 
 berlain), Sir Thomas Lovell, Sir Henry only consisted of two high-born lords, 
 
 Wyatt, Dr. Eouthale, Sir Edward that others had only been made knights 
 
 Poinings, Sir Henry Marney, and Sir and lords by him ; and that the rest 
 
 Thomas Darcy (State Papers, i. p. 507). had been lawyers and clerics, with 
 
 Later, in 1526 and 1540, the profes- the exception of two prelates, those of 
 
 sional bureaucracy was much more Canterbury and Winchester; that there 
 
 largely represented (Nicolas, vii. p. 4). were at present many nobles in the 
 
 In the North, the English Vendee of council, the Dukes of Norfolk and 
 
 those days, this was a reason for dis- Suffolk, the Marquis of Exeter, the
 
 Privy Council Star Chamber Courts of Justice. 501 
 
 As a symptom of the returning importance of the bureau- 
 cratic element, there now appears a law concerning the 
 position and rank of the officers of the realm "in con- 
 sideration, that it is a part of the prerogative of the King 
 to give his councillors and other subjects a dignity and position 
 as in his wisdom appears best," the Statute of Precedence 
 (31 Henry VIII. c. 14) is passed. First of all the vicar- 
 general, as the King's representative in the ecclesiastical 
 supremacy, shall take precedence of the Archbishop of Canter- 
 bury, in analogy to the Lord High Justice of former days, 
 in respect of the laity. And then the rank of the ordinary 
 officers of State was arranged as follows : 
 
 1. In the first place the Lord Chancellor or Keeper of the 
 Great Seal, who combines the various functions, dating from 
 different times, of Keeper of the King's Conscience, head of 
 the equity jurisdiction and the chancery of the realm, and 
 as a rule also, of president of the Upper House, together with 
 certain new legal duties. (2) 
 
 2. The Lord Treasurer, now directing minister of the 
 finance department, and at times also leading minister of 
 State. His sub-treasurer lays every year before the King 
 a report of the revenue, such as is extant for the year 1507, 
 and a whole series of the time of Henry VIII. 
 
 3. The Lord President of the Council, not as yet an essential 
 officer. Occasionally the Lord Chancellor, the Lord Keeper 
 of the Seal, or a court official, had the formal direction of the 
 council; but in case a special president was appointed, he 
 took the third place. 
 
 4. The Lord Privy Seal, until 30 Henry VIII. regularly an 
 ecclesiastic, since that time as a rule a temporal lord. 
 
 5. The Lord Chamberlain, an hereditary office without ad- 
 ministration. 
 
 6. The Lord High Constable, extinct as an hereditary office 
 in 1521 ; since that time only created for one day at the 
 coronation. 
 
 Earls of Oxford and Sussex, etc. ; and c. 4). In consequence of the Reforma- 
 that finally it was not the business of tion, a secularization of the office is 
 his subjects to appoint his council for gradually brought about. After Sir 
 him, and to interfere in matters which Thomas More the chancellors are some- 
 did not conceru them (State Papers, i. times spiritual and sometimes tem- 
 507, 508). poral statesmen ; after Lord Keeper 
 (2) The Lord Chancellor was for the Pickering (1592) until our own day, 
 first time also styled CanoeUarius with one single exception (Bishop 
 Magnw under Henry VII. on the Williams), they have been only lawyers, 
 occasion of the opening of Parliament The numerous offices of the Chancery 
 (Foss, " Judges," v. 5). The historically were now further increased by the Six 
 doubtful office of Lord Keeper was de- Clerks' Office, consisting of six notari 
 fined by a declaration in 5 Elizabeth, c. publici, who were formally incorporated 
 18, to the effect that both offices should under Henry VIII. and Elizabeth for 
 be identical. The Chancellor is now the purpose of registering documents, 
 also the overseer of charities (43 Eliz.
 
 502 Constitutional History of England. 
 
 7. The Earl Marshal, a court office and heraldic office, 
 without any department of State attached to it. 
 
 8. The Lord High Admiral, after 7 Eichard II. regarded as 
 an hereditary office, for the administration of the Admiralty ; 
 at that time of little importance. 
 
 9. The Lord Steward of the Household, administrating head 
 of the court. 
 
 10. The King's Clianiberlain in an influential position, 
 frequently employed upon special missions, but without any 
 administrative department. 
 
 11. The King's Secretary, at first merely an official of the 
 second grade, but already a very influential member of the 
 Government, who, at all events from the time of Elizabeth, 
 had become one of the principal ministers of State. Shortly 
 after 1539, the increasing pressure of business caused the 
 appointment of two secretaries with similar duties. Each of 
 them receives a signet for the sealing of all warrants and 
 cabinet letters, "both inside and outside as was customary ; " 
 both keep their journal open for constant mutual inspection. 
 Under Elizabeth there again appears one secretary, Sir W. 
 Cecil, who as such was regarded as the most influential 
 member of the Government. In later times, on the appoint- 
 ment of his son to a similar post (1601), the title of " our 
 Principal Secretary of Estate," evidently in the meaning of 
 a Minister of State, occurs for the first time. (3) 
 
 In connection with this office new regulations were issued 
 as to the procedure to be observed in the use of the royal 
 seal. In the privy councillor's instructions of 18 Henry VI., 
 a rule was contained for the gradation of the signet, privy 
 
 (3) The history of the origin of the "Secretary for the French language." 
 Secretary of State has been given by In 1514 a Latin Secretary was also 
 Sir H. Nicolas (vi. p. 117, 8eg.), as well created for the Latin correspondence 
 as in a famous judgment of Lord (not abolished until 1832). Under the 
 Camden (Entick v. Carrington, Howel, Tudors the first Cabinet Secretary had 
 " State Trials," vol. 19). The Secretarii advanced to the importance of a 
 Regis who are met with in earlier times Cabinet Councillor. He ranks in 1489, 
 were officials charged with special at the confirmation of the Treaty of 
 missions. Such were J. Maunsel, in Peace with Portugal, in the list of 
 37 Henry III., and Franciscus Accursii witnesses, among the barons : and Dr. 
 of Bologna, in 6 Edward I. After the Eouthale retains the office even for six 
 Keeper of the Privy Seal became a years longer as Bishop of Durham, 
 high State officer, a Cabinet Secretary Under Henry VIII. he appears as a 
 naturally appears again in the con- principal member of the council ; he is 
 fidential post that was formerly filled often a bishop, after the Reformation, 
 by the Lord Privy Seal, and in still as a rule, a layman. He still remains 
 earlier times by the Chancellor. This a court official, and has his apartments 
 secretary is, however, during the in the household, with three servants, 
 Middle Ages, an officer of the third eight horses, etc. He is appointed by 
 grade. Under the house of Lancaster delivery of the signet ; in the year 
 a second French secretary was attached 1558 a patent is also added. An oath 
 to him, who, even after the loss of the of office is first mentioned in the Oath- 
 French possessions, remains still as book of 1649.
 
 Privy Council Star Chamber Courts of Justice. 503 
 
 seal, and great seal respectively (Nicolas, vi. pp. 187-198). 
 The regulations of Henry VIII. secure a triple control. It 
 was decreed that every gift, grant, or other written donation 
 of the King under his signet, which is destined to pass under 
 the great seals of England, Ireland, etc., or by any other 
 procedure of the Exchequer, before passing under the said 
 seals, must be delivered to the King's chief secretary or to 
 one of his cabinet secretaries, in order to pass the signet office. 
 The secretary shall within eight days address, in the King's 
 name, letters of warrant under his signature, and furnished 
 with the King's signet to the Lord Keeper of the Privy Seal. 
 One of the clerks of the privy seal is then, after proper 
 examination by the Lord Keeper of the Privy Seal, to send 
 within eight days, a further warrant to the Lord Chancellor. (3 a ) 
 
 The precedence of the great officers contains a mixture 
 of social and purely official considerations. The most impor- 
 tant great officers (the Lord Chancellor, the Lord Treasurer, 
 the Lord President, and the Lord Keeper of the Privy Seal) 
 are to rank in Parliament before the dukes, if they are peers 
 by birth or have been ennobled. The Secretary of State, if 
 he is a peer, ranks above the other barons. Moreover, the 
 customary rules are adhered to which have become estab- 
 lished in the House of Peers. "Where the Lord Chancellor, 
 the Lord Treasurer, the Lord Privy Seal, or Secretary of 
 State are below the rank of a baron, and have not therefore 
 a right to vote, they shall sit upon the highest part of the 
 sacks in the Parliament chamber in the above order." Where 
 two secretaries of State are appointed, they shall both be 
 present in the Upper House whenever the King or the Speaker 
 is present. Otherwise they shall take alternate weeks, the 
 one in the Upper House and the other in the Lower, but in 
 particularly important business they shall both assist at the 
 proceedings in the Lower House. 
 
 Special regulations were also issued by Henry VIII. touch- 
 ing the business procedure of his council. According to the 
 rules of business of the year 1526, the administrative body 
 
 (3 a ) From this process all warrants regulations touching the State seal 
 are excepted which the Lord Treasurer the responsibility of the Secretary 
 ex offido immediately issues for offices of State to Parliament. And, under 
 and lands within his gift. In like the presentiment of coming events, 
 manner it is left to the discretion of the a King's secretary even in those days 
 Lord Chancellor to proceed in urgent complained of the constitutional in- 
 cases without the fees for the great seal, definiteness of his position. " All 
 signet, or privy seal. Moreover, the officers and councillors of princes have 
 King's express commands in private a prescribed authority, by patent, by 
 and State affairs remain reserved, with- custom, or by oath, the secretary only 
 out warrant and without private fees excepted ; only a secretary hath no 
 (Nicolas, vi. pp. 201-203). In later warrant of commission," etc. (Thorns, 
 times there was attached to these " Book of the Court," 257).
 
 504 Constitutional History of England. 
 
 was at that time to consist of twenty persons, namely, fourteen 
 state and court officers, four peers, and two bishops. For the 
 smaller Cabinet Council, which was to remain continuously in 
 close attendance upon the King's person, ten members were 
 designated. For daily duty with the King the secretary and 
 two clerics were appointed. After the manner of a modern 
 Cabinet Council, the internal government of the realm was 
 conducted by the council thus constituted with tolerable regu- 
 larity. An extension of the system of personal government 
 is however shown in this, that Government measures by no 
 means invariably proceeded from it ; they were not even all 
 deliberated upon in the council. Henry VIII. was not usually 
 present at the ordinary sittings, and only reserved to himself 
 the right of personal signature. Important measures of 
 foreign policy proceeded from the King himself through the 
 pens of his secretaries, and often through those of others, 
 In confidential matters he corresponded with his own hand 
 .and read all letters himself. Wolsey and Cromwell were 
 his principal advisers so long as they remained in favour; 
 after Cromwell's fall, he addressed his orders sometimes to 
 one and sometimes to another of the ministers, but none of 
 them was again able to gain an ascendant position. The 
 communications between the King and the heads of the 
 departments passed, in accordance with the rules of busi- 
 ness, regularly through a privy councillor. Under Elizabeth, 
 William Cecil was in a very favoured position. Under Eliza- 
 beth, in fact, the council reached the height of its political 
 importance. For the internal government of the country 
 it is the era of the King in council and of wise laws. In 
 many of these laws, originated by the intellects of Elizabeth's 
 statesmen, two whole centuries of subsequent legislation have 
 found little to improve. (4) 
 
 The delegations and .commissions of the council, which 
 even in the preceding period exercised an extraordinary civil 
 and criminal jurisdiction, develop in this period into a peculiar 
 new creation, which requires a special description. 
 
 II. This is, tf) ^nbg (Council as &tar ^fjamfor, the Star 
 Chamber of world-wide notoriety, the institution of which 
 was first brought about by social disorders, and afterwards 
 by the controversies of the Keformation. 
 
 (4) The rules of business prescribed " lust.," iv. 55). The extant records of 
 
 by Henry VIII. for the Privy Council the Privy Council, especially those of 
 
 are contained in the regulations laid the years 1540-1544, which are very 
 
 down for the royal household of 1526 detailed, certainly show a curious 
 
 (Nicolas, vii. pp. 5-7). As to the mixture of great and petty business, 
 
 voting in the council, according to an and particularly a strange picture of 
 
 old custom, the youngest member voted the Star Chamber justice of those 
 
 first, the King himself last (Coke, days.
 
 Privy Council Star Chamber Courts of Justice. 505 
 
 It was at first the remnants of wild party struggles, 
 the partiality and venality of the sheriffs and the juries, the 
 insolence of the magnates and their armed retinues, which 
 rendered an energetic police system under Henry VII. neces- 
 sary. "In consideration of existing great tumults and illegal 
 assemblies, corruption and partiality," the stat. 3 Henry VIL 
 c. 1 empowers the Chancellor, Treasurer, and Keeper of the 
 Privy Seal, together with a bishop, a temporal lord of the 
 council, and two justices of the realm to examine persons 
 upon royal order, and to punish them for seven offences 
 specially enumerated, among which are sedition, illegal as- 
 semblies, and factions unions with distinctive liveries and 
 badges. This is the extraordinary criminal power of the 
 King in council (supra, p. 340) which had never ceased, 
 and which was here acknowledged afresh and embodied 
 in a .commission. The King only announces that, owing to 
 the necessities of the times, he intends to exercise his criminal 
 jurisdiction, and delegates for this purpose a smaller number 
 of privy councillors with the assistance of two judges. Henry 
 VIII. continues the institution, but adds that, in these criminal 
 cases, the president of the council shall also belong to the 
 essential members or quorum (21 Henry VIII. c. 20), and 
 later, that the judges shall only have deliberative voices, by 
 which a freer administrative exercise of the jurisdiction is 
 intended. Analogously by 31 Henry VIII. c. 8, " disobedience 
 to ordinance " is assigned to a number of great officers, 
 bishops, and judges for punishment. The so-called Star 
 Chamber is accordingly only a committee of the Privy Council, 
 on which account also every privy councillor could occasion- 
 ally take part in the proceedings, and even the whole body 
 sit as Star Chamber, as was done at first in important cases, 
 and later, at all events from Edward VI., was the general 
 rule, whence this penal jurisdiction became quite an ordinary 
 portion .of the political business of the ministerial council. 
 The name Star Chamber, as the technical term of an inde- 
 pendent tribunal, occurs in no statute ; it was only the name 
 taken from the room where the sittings took place, which the 
 popular language applied to the council when administering 
 penal justice. Coke also describes the Star Chamber as curia 
 coram rege et concilia, consisting of the " members of the 
 Privy Council, with the assistance of two judges ; " only with 
 this difference, that in this later period a claim of the peers 
 as Magnum Concilium to take part in its proceeding was again 
 asserted by some, just as had been done in the fifteenth 
 century. (5) 
 
 (5) The Privy Council as Star "Jurisdiction of the House of Lords," 
 Chamber has been treated of in Hale's c. v. ; Palgrave's Essay on the King's
 
 506 
 
 Constitutional History of England. 
 
 In the second half of the sixteenth century, however, the 
 following new conditions met together. First of all, the need 
 of the Keformation, with its important inroads on ecclesiastical 
 authority and ecclesiastical property, which, like all radical 
 transformations, required dictatorial powers that could only 
 in later times be limited and circumscribed by law. And next, 
 the spirit of persecution and arbitrariness which, originating 
 in religious controversy, spread an inquisitorial spirit abroad 
 throughout the whole of the political system. Finally, the 
 tacit understanding between the council and Parliament 
 touching the " suitable " extension of such an administrative 
 jurisdiction. It will probably never be possible to explain in 
 legal technical language the altered spirit of the institutions 
 embodied in the stat. 3 Henry VII., and the connection with 
 the old jurisdictio ordinaria of the council. The dictatorial 
 sovereignty of the Tudors, at all events, exercised these 
 arbitrary powers in a more moderate and dignified manner 
 than they would have been exercised by a party government 
 with ecclesiastical or political leanings. As to how a party 
 administration of a political tendency and a partial ecclesi- 
 astical government would have exercised these powers, the 
 short misgovernments under Edward VI. and under Mary do 
 not allow of a doubt. (5 a ) 
 
 Council, p. 104, seq. The description 
 in Hallam, " Const. Hist.," i. c. 1, is too 
 artificial. Touching the old con- 
 troversy as to the penal jurisdiction 
 of the council, cf. vol. i. pp. 407, 408. 
 In the temporary stat. 31 Henry VI. 
 c. 2, all cases for the jurisdiction of the 
 council were declared to be " great riots, 
 extortions, oppressions, and grievous 
 offences." The new stat. 3 Henry VII. 
 c. 8 goes further in many various 
 directions, and mentions unlawful 
 maintenance, giving of signs and 
 liveries, tokens and retainers, em- 
 bracery, untrue demeaning of sheriffs 
 in the returns and panels of juries, 
 great riots, unlawful assemblies, as 
 such offences in which the petty juries 
 were unwilling to do their duty. These 
 statements were, in fact, right. How 
 important the local influence of the 
 magnates still was is shown, for ex- 
 ample, by their being prohibited to 
 make their private officials sheriffs. 
 Venality of the sheriffs and juries, 
 deeds of violence, and rascality of all 
 sorts were described in the law-books 
 and by historians as events of everyday 
 occurrence. A passing attempt to 
 extend the summary penal jurisdiction 
 of the justices of the peace beyond its 
 
 old dimensions proved abortive in the 
 face of the powerful magnates. 
 
 (5 a ) A legal difficulty lies in this, 
 that under Henry VIII. and later (1) 
 the penal functions are extended with, 
 indefinite limits to a number of new 
 cases, (2) the participation of the coun- 
 cillors is not limited to those persons 
 enumerated in stat. 3 Henry VII., but 
 is extended to the whole body of the 
 council, that is, to those members who 
 actually participated in the proceed- 
 ings without the assistance of the 
 justices. This is in one direction ex- 
 plained by the discretionary powers, 
 which from all time lent a, jurisdictio ex- 
 troordinaria to the council, and which, 
 in spite of much dispute, were ever 
 afresh recognized by Parliament, and 
 exercised according as the needs of the 
 times required, and on the other side, 
 by the nature of the religious con- 
 troversies. The position of the royal 
 ecclesiastical power could be in no 
 way so clearly defined by legislation as 
 could the old provinces of the temporal 
 administration. The discretionary 
 powers which had here freshly sprung 
 up extend, as is usual, into other 
 spheres (Nicolas, vii. p. 26, seq.). That 
 such was less felt, as a public griev-
 
 Privy Council Star Chamber Courts of Justice. 507 
 
 The proceedings in the Star Chamber were never regulated 
 by law. There were framed for this procedure maxims not 
 unlike those of administrative justice in civil matters, that 
 is, analogous to the procedure of the Lord Chancellor in equity 
 cases. A court, consisting entirely of officials, pleadings with 
 witnesses, documents, and affidavits, without a jury, becomes 
 of itself inquisitorial in form, and consequently the use of 
 torture was also gradually introduced. (5 h ) 
 
 Thus arises a State court of justice from which there is 
 no appeal, with a somewhat indefinite penal jurisdiction, a 
 terror to the powerful, and on that very account for a long 
 time popular. Contemporary writers speak of it with respect. 
 Sir Thomas Smith, himself one of Elizabeth's ministers, lauds 
 the Star Chamber as a good institution of Wolsey. The most 
 violent opponent of all administrative justice, Sir Edward 
 Coke, who himself, as Attorney-General, took part in its 
 proceedings, says, "It is the most honourable court in 
 Christendom, except our Parliament ; this court, if the right 
 procedure and the old rules be observed, keeps the whole of 
 England quiet." A tendency to protect the oppressed was 
 certainly to be praised in such an institution; but it con- 
 tained also the root of many far-reaching and evil things. 
 Comprising in one body a ministerial council and State court 
 of justice, the Star Chamber could wield an irresistible power 
 over persons and property, by which it systematically trampled 
 down all resisting independence, and finally also every right. 
 What was originally a necessity of the times, a transitional 
 form, perhaps necessary during the conflicts of the Beforma- 
 tion, became occasionally, even in the later part of Henry 
 VIII. 's reign, the scene of petty denunciations on account 
 of "disaffection" towards the King and the law. It was 
 principally the indifference of Parliament which rendered 
 this practice of administrative justice possible. If the con- 
 trolling influence of Parliament could be entirely dispensed 
 
 ance in large circles, is to be explained necessarily arises, and thence again 
 
 in some measure by the centralization, the custom of torture, which all Eng- 
 
 which had to contend with great dif- lish jurists have certainly declared not 
 
 ficulties, in order to summon persons to be a portion of the common law, 
 
 living at great distances, by their though it. has been acknowledged by 
 
 bailiffs, and to bring them before the all as an extraordinary procedure. 
 
 Star Chamber. (Cf. Marquardsen in Thomas Smith and Sir Edward Coke, 
 
 the "Miinchener Kritischer Viertel- who expressed themsnlves so strongly 
 
 jahrschrift," 1860, pp. 213-219.) on the subject, themselves, in the capa- 
 
 (5 11 ) The procedure of the Star Cham- city of examining judges, repeatedly 
 
 ber is essentially that of Chancery, after applied the torture which was in such 
 
 the pattern of the trials according to cases inflicted on the special order of 
 
 canon law, with the Chancellor origi- the King or Privy Council. Individual 
 
 nally as president. From inquisition oases of torture upon royal orders had 
 
 in purely bureaucratic bodies the already occurred in former centuries, 
 ardent desire to extract confession
 
 508 Constitutional History of England. 
 
 with, this formed the debatable ground on which the at- 
 tempts at restoring an absolute government must begin. (5) 
 
 III. The other fctkgatt'ons of tf) Council and the newly created 
 tribunals follow again immediately upon the period of the rise 
 of the estates. Before all others, the equitable jurisdiction 
 of the Chancellor, as being an original emanation from the 
 powers of the King in council, continues, and, owing to the 
 permanent position of Master of the Eolls and that of the 
 whole of the Chancery officials, as well as in consequence of 
 the fixed rules of competence and procedure, has now attained 
 in the main the character of a jurisdictio ordinaria. 
 
 But besides, there is still maintained the idea of a supple- 
 mentary court tribunal, which is to be accessible in civil 
 actions to every subject, as a kind of forum miserabilium per- 
 sonarum. Before the council, under the name of the ordinary 
 council, civil actions were still heard, and this special com- 
 mission for judicial matters continued unassailed during the 
 period of the Tudors (Nicolas, vii. pp. 16, 22). There existed 
 a certain need for it in the case of actions between native 
 and foreign merchants, disputes of corporations, questions of 
 maritime law, and pauper cases. The English courts of law 
 were even in those days much less accessible than they should 
 have been to the poorer classes, the expenses of barristers 
 and attornies, the fees of the sheriffs and lower officials, and 
 the too great nicety in framing the pleadings in an action, 
 made a court tribunal of this description appear a welcome 
 alleviation in legal procedure. 
 
 In close connection with this, stood the so-called Court of 
 Requests, which, under the Lord Privy Seal, was composed of 
 several Masters of Eequests, doctors of civil law having an 
 analogous position to that of the Masters in Chancery. The 
 origin of this court in the administrative practice of the 
 council is doubtful. Under Somerset's protectorate, probably 
 already under Henry VIII., an institution of the kind is met 
 with. As, however, this court of royal commission had neither 
 a statute nor yet time-honoured usage as its basis, the King's 
 
 (5) The character of the court is pervaded with the duty of the magis- 
 moreover different under every Govern- trates to defend the true faith. Even 
 ment; under Henry VII. it forms a State the extreme ecclesiastical opposition 
 protection against powerful evil-doers ; still demanded that the people should 
 under Henry VIII., Edward VI., and be energetically " compelled to the doc- 
 Elizabeth, a powerful instrument for trine and confession of the true faith." 
 the carrying out of the Eeformation. In the proceedings against Wentworth, 
 Contemporary writers acknowledge in the Lower House itself even enjoined 
 BO far the excellence of its working, an examination to be conducted after 
 excepting in " political cases." But this fashion (Reeve's " History," v. 231, 
 the more important political cases also 232). The short-sightedness shown in 
 were at the bottom cases of resistance employing such institutions for the 
 to the authority of Church and State, most immediate popular purposes has 
 and the whole period was still deeply been at all times nearly the same.
 
 Privy Council Star Chamber Courts of Justice. 509 
 
 Bench, in 41 Elizabeth, in a leading case, declared that it was 
 no constitutional court, and was not authorized to administer 
 justice, whereupon the Crown let it drop.* 
 
 More permanent were such commissions of the King's 
 Court as were composed with the assistance of a jury, 
 notably the newly created Courts of the Steward ; to wit the 
 Court of the Lord Steward) Treasurer, and Comptroller of the 
 Household (3 Henry VII, c. 14), and the Court of the Lord 
 Steward (33 Henry VIII. c. 12), with a criminal jurisdiction 
 in cases of treason, murder, manslaughter, etc., in royal 
 residences. 
 
 In like manner, the Admiralty Court in criminal cases, 
 under Henry VIII., was constituted by a commission issued 
 to the Lord High Admiral and certain justices, who were to 
 proceed according to the rules of common law and with a 
 jury, under the style of the Commissions of Oyer and Terminer 
 of the Admiralty at the Sessions House in the Old Bailey. 
 
 A second group of new tribunals is created round and about 
 the Treasury, for special branches of the hereditary revenue. 
 
 This is the Court of Augmentations and Revenues of the 
 Crown, which was first instituted by 27 Henry VIII. cc. 27, 
 28, for the administration of the secularized monasterial 
 estates. To this court was attached the general survey of 
 demesnes, under a chancellor as head for the keeping of the 
 great seal and small seal, two general surveyors, and a 
 numerous body of other officials. (6) In a Court of Wards and 
 Liveries, moreover, the administration of the feudal wardships 
 was severed from the Exchequer, and in this court the grant 
 
 * A peculiar creation In the form of secularization was extended to the great 
 a kind of commercial court is that court monasteries and other foundations (al- 
 constituted by 43 Elizabeth, c. 12, for together 2374 institutions). In conse- 
 the decision of assurance-disputes, com- quence of this extension, the original 
 posed of a commission consisting of the court was again abolished by patent, 
 admiralty judge, the Recorder of Lon- a new court instituted and combined 
 don, two doctors of civil law, two com- with a general survey (Court of General 
 mon law jurists, and eight merchants, Surveyor of Lands belonging to the 
 with an appeal to the Chancellor. This Crown), which had been created mean- 
 commercial court has, however, disap- while. As in the mean tune doubts had 
 peared generations ago, and indeed, arisen as to the constitutional legality 
 commercial and trade courts and other of the former abolition by patent, the 
 attempts at the formation of special tribunal was newly constituted by stat. 
 courts for special trading and pro- 7 Edward VI. c. 2. Henry VIII. had 
 fessional classes never made any pro- already, however, alienated and granted 
 gress in England. away the confiscated estates in large 
 
 (6) When the stat. 27 Henry VIII. numbers ; Mary gave back to the old 
 
 cc. 27, 28, first dissolved the small livings the appropriated tithes, glebes, 
 
 monasteries with revenues up to 200, etc., which still remained, and in con- 
 
 a separate Court of Augmentations was sequence abolished the whole court, 
 
 formed for the administration of the The still remaining administration of 
 
 estates thus secularized, at the head of demesnes and forests reverts again to 
 
 which was a chancellor with a great the Exchequer (1 Mar. Sees. 2, c. 10). 
 and a small seal. In later times the
 
 5 1 Constitutional History of England. 
 
 of feudal investitures was conferred, apparently in the well- 
 meant intention of moderating the strict financial principles 
 of the Exchequer. (6 a ) 
 
 A third group of a peculiar character is formed by the new 
 provincial governments, which were not parcelled off from the 
 central administration, according to the old system of self- 
 government, but on a more bureaucratic pattern. Under the 
 direction of the Privy Council, they formed a provincial dele- 
 gation of the council in counties where restless neighbours 
 and internal disquietude rendered them necessary. Thus 
 arose in the first instance the president and council in Wales, 
 including Wales and the marches, as well as the counties of 
 Hereford, Worcester, Salop, and Gloucester. Then the presi- 
 dent and council of the North, comprising Yorkshire, Durham, 
 Northumberland, and Westmoreland. A concurrent juris- 
 diction with the council of the North was exercised further 
 by the three courts of the Scotch marches (east, west, and 
 middle marches), which included Northumberland, Cumber- 
 land, and Westmoreland. Like the council, these departments 
 have the jurisdiction of commission courts in criminal and 
 civil cases "where one of the parties is too poor to take the 
 ordinary legal course." The judges are empowered to pass 
 judgment either according to the common law and custom, or 
 in the way of equity according to their wisdom and unbiassed 
 judgment (that is, with or without a jury). This last clause 
 was agreed to upon the urgent demand of the rebels in the 
 North. (6 b ) Finally, Lancaster also retained its separate 
 Chancery and Star Chamber, when under Henry VII. it was 
 taken over as a special appendage of the Crown. 
 
 This movable organization of the administration, in which 
 an influence of the Eeformation and extended bureaucratic 
 powers are already visible to a dangerous extent, is now 
 contrasted with 
 
 (6 a ) The Court of Wards and Liveries year after its institution the feudal in- 
 is also a piece of financial administra- vestitures (liveries) were also assigned 
 tion which passes into the form of a to the Court of Wards. The court in 
 particular administrative jurisdiction. this form continued until the abolition 
 By Henry VIII., firstly, a Court of of the knights' fees under Charles II. 
 Feudal Wardships was instituted, (6 b ) In these new provincial tri- 
 which had the guardianship of wards bunals a bureaucratic spirit of the or-' 
 and lunatics, gives the king's widows ganization, which as a fact was based 
 permission to remarry, and exacts the upon local exigencies, is visible to a 
 fines for marriage without licence. It greater degree. A creation analogous 
 is a court of record under a Master of to the Court of the North was also a 
 the Wards, who is at the same time President and Council in the West, es- 
 Keeper of the Seal. The procedure is tablished by stat. 32 Henry VIII. c. 50, 
 copied from that of the chamber of the with like authority in the counties of 
 Duchy of Lancester, with four yearly Devon and Cornwall, which was, how- 
 terms, and with powers of pronouncing ever, soon abolished. . 
 sentence of arbitrary imprisonment. A
 
 Privy Council Star Chamber Courts of Justice. 511 
 
 IV. f) Central Courts of Common llafo in their perfectly 
 unchanged form. The three Courts of King's Bench, Common 
 Pleas, and Court of Exchequer are, as formerly, composed, 
 as need required, of three, four, or five justices. The increase 
 of judicial business in the year 1579 occasioned primarily the 
 appointment in the Court of Exchequer, of Eobert Shute, 
 "with equal rank and dignity as the justices of the other 
 two courts." Soon all the assisting judges of this court were 
 appointed from among the leading barristers, who were 
 qualified for the judicial office, and accordingly take part in 
 presiding at the assizes, so that from this time forth the 
 three divisions of the central courts of the realm are, as 
 regards their constitution, on an equality with one another. 
 
 The appellate jurisdiction of the Upper House over these 
 official courts of the realm has decayed in this period, because 
 the assignment of higher appeals to the House by writ of error 
 has fallen into comparative disuse. But as in the preceding 
 period an appeal from the Court of Exchequer was directed 
 to lie to a committee of the Council, by stat. 27 Elizabeth, c. 8, 
 a supreme court was so formed for judgments of the King's 
 Bench that the appeal should go from the King's Bench to 
 the united bench of the Court of Common Pleas and the Court 
 of Exchequer. Under the name of the Court of Exchequer 
 Chamber, this appellate jurisdiction thus assumed a purely 
 judicial character. Altogether the constitution of the courts 
 and the personal position of the justices appears, in spite of 
 their revocable appointment and their position of justiciaries 
 of the council, to be a dignified one, and maintains during the 
 whole period a high reputation and character for impartiality. 
 The Tudors never enforced their personal wishes in the courts 
 of common law, and in fact never interfered with the regular 
 administration of justice. Their worthy demeanour in this 
 respect reminds us of the best periods of the monarchy in 
 Germany. (7) 
 
 (7) The Courts of Common Law, in assessment of incomes in 15 Henry 
 
 their external composition, are treated VIII., the chief justice of the King's 
 
 by Foss ("Judges," v. 8,405,409, seq.). Bench was assessed at 1000 marks, of 
 
 The former customary rule of confer- the Common Pleas at 650 marks, the 
 
 ring the dignity of knighthood upon chief baron at 400, the assistant jus- 
 
 the justices now becomes more rare. tices at 400, 500 marks, 240, and 
 
 Elizabeth, who according to the habit 200 respectively. Among the bar- 
 
 of wise monarchs conferred honours and risters, the Serjeants were taxed at 100 
 
 titles sparingly, was wont only to honour to 250, the attorney-general at 500 
 
 the presidents of the courts with the ^Foss, " Judges," v. 99). As to the 
 
 dignity of knighthood. On the other right of visitation, c/. Beeves (v. 250). 
 
 hand, the Tudors were studious to Though it is frequently asserted that 
 
 maintain the personal integrity and the justices of these times showed great 
 
 external independence of their justices, subserviency to the wishes of the mon- 
 
 for which reason a large increase was archy, yet we must judge this by the 
 
 made in th official salaries. In the standard of the Upper House of those
 
 512 Constitutional History of England. 
 
 Supplementary to certain provinces of the civil jurisdiction 
 there exists the equitable jurisdiction of the Lord Chancellor 
 (supra, p. 332), which gradually also assumes a judicial 
 character. The Tudors show no inclination to extend this 
 province of their jurisdiction; the stat. 27 Elizabeth, c. 1, 
 even forbids every " application to other jurisdictions to 
 impeer or impede the jurisdiction of the King's courts," and 
 the Crown evinces no opposition, when the penalties of prse- 
 munire are applied to encroachments by equitable jurisdiction 
 upon the province of the ordinary courts of law. 
 
 This fixed portion of the executive administration completes 
 the whole picture of the Tudor epoch. Judicial, parlia- 
 mentary, and parochial constitution in their entirety display 
 a form of government in which, on the whole, uprightness and 
 efficiency are the dominant qualities. The dynasty had 
 found the realm, on its accession to power, in a state of 
 the utmost disorganization, owing to the transcendent power 
 of the factions of the nobility. To restore the royal power 
 and justice against the mightiest in the land had been 
 its first task, and for this the traditional prerogative gave 
 sufficient power. By the further acts of the Eeformation, 
 the powers of the ecclesiastical government passed to the 
 Crown, as an inexhaustible fountain of new elements of 
 strength. After the fusion of the ecclesiastical hierarchy 
 with the monarchy, the temporal institutions are pervaded 
 throughout by a new monarchical spirit, which is most promi- 
 nent under Elizabeth. But the Tudors made use of this 
 increase in their power both externally and internally in a 
 royal manner, by energetically upholding the Keformation, 
 and by a social and political development of the national 
 strength. Even though the religious element in Henry VIII, 
 was rigidly subordinated to the political, his three children, 
 when they came to reign, by the sincerity of their convictions 
 though in contrary directions rehabilitated the monarchy 
 in the religious feeling of the people. The transition from 
 the old to the new Church made a personal government neces- 
 sary in this province, for which the character of Henry VIII., 
 
 times. As to the honourable attitude their oath, refuse obedience, and the 
 
 of the judges in their remonstrance Queen yields. In their capacity as 
 
 addressed to the council 011 account of legal advisers of the Upper House, legal 
 
 arbitrary arrests in the year 1581, c/. questions were sometimes laid before 
 
 Hallam (" Const. Hist.," iii. c. 5). the common law judges, as on the ac- 
 
 Equally honourable is the behaviour of cession of Henry VII. In these func- 
 
 the judges in the matter of a royal tions also the conduct of the judges 
 
 order of April 2 1 st, 1587 (in Anderson's appears honourable. Henry VIII. him- 
 
 Keport, 154), where the Queen disposes self, in a speech before Parliament, 
 
 of an office which was to be regarded refers to their opinion as to the prin- 
 
 as a freehold of the then possessor, ciple of the constitution of Parliament, 
 whereupon the justices, remembering
 
 Privy Council Star Chamber Courts of Justice. 513 
 
 violent indeed, and egoistical, but clearsighted and energetic, 
 was found sufficient. In this position, Henry VIII. and 
 Elizabeth often put down all resistance to their will in a 
 haughty manner. But, though imperiousness or selfishness 
 may have guided their steps, they never wished to rule without 
 Parliament, but always to govern in accordance with the law. 
 The assurance of Elizabeth, with which at the close of her 
 reign she repaired the error with regard to monopolies, " that 
 never thought was cherished in my heart, that tended not to 
 my people's good' (Parl. Hist., iv. p. 480), found a ready 
 echo in the hearts of her people. The faults and harsh deeds 
 of this courageous, energetic dynasty were the faults of the 
 times in which they lived, and of the people with whose 
 greatness, welfare, and right they wished to identify them- 
 selves. It is an epoch of great excitement and intellectual 
 movement, such as seldom maintains itself except at the 
 expense of the character of individuals and classes. But all 
 this made the personality of the Tudors, with their courage 
 and energy, the main feature of an era which in spite of all 
 its faults was a great one. (8) 
 
 (8) The whole character of this 
 Government must be judged by con- 
 trasting the judicial, parochial, and 
 parliamentary constitution with the 
 proceedings against individuals, the 
 Star Chamber, and the laws of high 
 treason of the period. The latter were 
 at all events modified in one respect in 
 the stat. 11 Henry VII. c. 1, which 
 dispenses with the penalties of high 
 treason in the case of the subject who 
 takes the oath of allegiance to a King 
 de facto (rightly estimated in Hallam, 
 iii. 196). This is supplemented by a 
 law of Edward VI. declaring the neces- 
 sity of producing two witnesses to prove 
 high treason. The application of the 
 laws touching high treason to a denial 
 of supremacy is a violent outrage on 
 our religious feelings, but the sixteenth 
 century saw in it a legal consequence 
 of the old ecclesiastical government. 
 In 1 Edward VI. the bloody laws re- 
 lating to high treason were again re- 
 pealed, but isolated cases were after- 
 wards again made amenable to heavy 
 punishments. Mary repealed all new 
 felonies as far back as 1 Henry VIII., 
 but proceeded all the more mercilessly 
 in ecclesiastical matters, and in tem- 
 poral matters more inquisitorially than 
 did Henry VIII. The enormous changes 
 in Church and society had, as in the 
 German Reformation, confused the 
 people's sense of right and wrong, and 
 
 made the nation inclined to sacrifice 
 the rights of individuals to a political 
 power which aimed at great ends and 
 showed itself able to attain them. In 
 such times pride and self-importance 
 vanish from amongst the ruling class, 
 and only return when the ranks of 
 society have become more firmly estab- 
 lished. In small as in great matters 
 the tendency of the times had been to 
 enhance the personal sovereign power, 
 aud to make the nation inclined to 
 endure much with patience. The union 
 of the factions of the two Roses under 
 Henry VII. had, after three interrup- 
 tions in the course of three generations, 
 ended in tho restoration of a regular 
 succession of the dynasty. A wild 
 struggle that had lasted for thirty 
 years, and disaffection and demoraliza- 
 tion within, remained as the warning 
 tokens of a change of dynasty before 
 the eyes of the nation. Henry VIII. 
 was on this account from his childhood 
 up " a humoured and spoiled piece of 
 royalty ; " but he was also "the majestic 
 lord, who broke the bonds of Rome." 
 The Reformation made him a counter- 
 poise to a still more hated despotism, 
 and his personality the indispensable 
 instrument of the great national work. 
 Compared to a Cardinal Pole and his 
 supporters this kind of absolutism was 
 a brilliant foil. The great majority of 
 the people never doubted in their choice 
 2L
 
 514 Constitutional History of England. 
 
 CHAPTER XXXVI. 
 Bebdopnunt of tf)e 
 
 WITHIN the development of this period, which was at times 
 tragic but still majestic, and at its close brilliant, there had 
 been formed in the lower strata of the State and of society 
 new elements of coherence which were scarcely noticed in 
 the great movements of the time. As among the dynastic 
 struggles and barons' battles of the preceding period the 
 formation of the estates, which was destined to have such an 
 effect upon the future, pursued its steady quiet course, so 
 there took place amid the gigantic movement of the Reforma- 
 tion, a development of the local constitution and with it an 
 organization of the lower strata of society, which imparted 
 to the struggles of the following century an unforeseen and 
 entirely novel character. 
 
 Hand in hand with the union of the royal and the ecclesi- 
 astical administration, which was effected by the Reformation, 
 the provident paternal spirit of the royal supremacy trans- 
 ferred to the temporal State the humanitarian duties of the 
 Church, 'which the clergy, diminished in numbers and 
 straitened in means, could no longer fulfil, and regulated 
 these offices as permanent duties of the parish. This new 
 system follows closely on the already existing institutions for 
 the maintenance of the peace ; but whilst the latter, in their 
 old form, had only been occupied with the warding off of evil, 
 these new institutions adopted the political idea of the Church, 
 viz. : the duty of providing for the poorest and most indigent 
 elements of society. From these points of view, from the 
 Tudor period, the local village constitution, which had up to 
 that time been very insignificant, develops into an important 
 member of the community-system, and thus becomes a funda- 
 mental institution of the State. The communal institutions 
 during this period are developed from the lower grades up- 
 
 between the two. Contrasted with Virgin Queen than in Henry VIII. : 
 
 bloody Mary and Spanish Philip, this is proved by the even over-anxious 
 
 Elizabeth appeared to the people as care of the people for the safety of the 
 
 an angel of deliverance, with all those royal person. All these circumstances 
 
 qualities which gain for the monarchy combine to enhance the monarchical, 
 
 the people's love. The Reformation and with it at once the magisterial and 
 
 was more worthily personified in the paternal spirit of the Government.
 
 The Development of the Parochial System. 515 
 
 wards; which in a certain sense is contrary to the former 
 course. 
 
 I. Q$& Constitution of tfje ^ailSft, which in the Middle Ages 
 only belongs to the ecclesiastical side of the State, enters 
 into the political State as the lowest member. In their 
 Anglo-Norman form, the tithings appear only as sub-districts, 
 in which the provost, tithing man, in the capacity of judicial 
 and police bailiff, had to carry out the orders of the sheriffs, 
 bailiffs, and chief constables. This weakness of the tithing, 
 which had not even been territorially separated, acted upon 
 the various kinds of landed property, and was in turn reacted 
 upon by them, for close peasant villages with connected farms 
 had never been the rule in England, but, on the contrary, the 
 preponderance of the great landed interests over the copy- 
 holders, cottagers, tenants, small tradesmen, and labourers 
 had from early times been firmly established. Church and 
 parsonage accordingly became the centre, the soul of the 
 village. The Sunday gathering at Church service, the cele- 
 bration of ecclesiastical acts and feasts, and the common 
 graveyard were stronger elements for a local village system 
 than the military, judicial, and police institutions, of which 
 the villata is merely a subdivision. Accordingly through a 
 long and silent change the "parish," in the common notions 
 of the people and in everyday language, takes the place of the 
 tithing. In the majority of villatee both are locally identical. 
 But the greater townships include several parishes; and on 
 the other hand the parish often embraces many tithings, 
 especially in the north of England. As within the ecclesi- 
 astical and civil state at the head of the Government, so 
 here in the lowest grade the ecclesiastical and civil com- 
 munities draw closer and closer together. The elements of 
 this union lie partly in the local Church offices, and partly 
 in the Church rates, but most of all in the new offices and in 
 the new rating system, of which the legislation of the Tudors 
 makes the parish the basis. 
 
 1. The parson of the place, the rector, or, if he does not 
 own the tithes, the vicar, is, in the ecclesiastical sense, the 
 head of the parish. Regarded from the point of view of the 
 civil constitution, in respect of rates and public burdens, he 
 is only a distinguished member of the village community, 
 liable to taxation and to public burdens. Since the Statute 
 of Marlebridge, however, the parochial clergy were released 
 from suit of the sheriff's tourn, and so far enjoyed a position 
 of immunity. After the origin of the office of justice of the 
 peace, respectable and wealthy parsons were also appointed 
 upon commissions of the peace, by which means the idea of 
 a magisterial office, even in the civil sense, becomes estab-
 
 516 Constitutional History of England. 
 
 lished. The legislation of the Tudors adds to the parson's 
 office some elements of a police character; the control of 
 the church attendance of papists, the duty of giving in- 
 formation respecting certain offences against the laws of the 
 Reformation, the registration of the characters of domestic 
 servants, and even the infliction of corporal punishment upon 
 vagrants. Later legislation has, however, not continued in 
 this direction. 
 
 2. Two churchwardens (1) are from the ecclesiastical point 
 of view only subordinate assistants of the incumbent. In 
 addition to these there appear in great parishes also synods- 
 men, sidesmen, questmen, as assistant officials ; but as a rule 
 the functions of the sidesmen are combined with the office 
 of churchwarden. Their duty to give information of all 
 notorious crimes touching the Church, the clergy, and parish- 
 ioners, is also included in their oath of office and again 
 enjoined in the canones of 1603. But in its civil bearings, 
 the office now attains a new importance in consequence of 
 the institution of church rates, which we shall immediately 
 discuss. Whilst the parish is responsible for the keeping of 
 the church buildings in repair, so it obtains an undoubted 
 right to share in the management of the Church property, 
 for which the churchwardens have been recognized by judicial 
 practice as an active corporation. As the decaying office of 
 
 (1) As to the office of churchwarden, parishioners, and, if the incumbent 
 the practical treatise by John Steer chooses one in any place, it is but by 
 (" Parish Law ") lacks historical data. usage " (Cases temp. Hardwicke, p. 
 In Burn's " Ecclesiastical Law," the 275). " The archdeacon has not the 
 principal information upon the present power to elect or control their choice" 
 subject is in the articles "Church- (1 Salkeld's Keports, p. 166). "The 
 warden," in vol. i., and "Parish," in clergyman never summons the vestries ; 
 vol. iii. Great merit is due also to T. for this is the office of the church- 
 Smith, for the use he has made of the wardens" (Strange's Reports, p. 1045). 
 older sources, in his " The Parish " " The ecclesiastical court has no juris- 
 (1857, Svo). Convincing proofs are diction to ratify a churchwarden's ac- 
 here given in particular of the pre- counts " (ibid., pp. 974, 1133, etc.). 
 eminently civil character of the insti- " The parish can accordingly remove 
 tution, and of the old right of the him at any time from office " (Year- 
 community to the office of the church- books, 26 Henry VHL, fol. 5). " The 
 wardens. They appear as early as the parishioners have then the right of 
 year 1343 as Wardens of the goods of appointing other wardens, who shall 
 the Church, in the Rot. Parl. 15 Ed- have an action for the rendering of an 
 ward III., and in the Year-books 11 account against those who have been 
 Henry IV. ; as guardians of the tern- deposed " (Year-books, 8 Edward IV., 
 poralities of the Church in the Year- fol. 6). The old ecclesiastical canones 
 books 37 Henry VI. seq. 30. It was of 1571 expressly mention an election 
 only gradually that the name " church- by the parish. The legal recognition 
 warden" became technical and regular. also of the necessity of an annual re- 
 Judicial practice expressly recognized election in 27 Henry VIII., c. 25, sec. 
 them as officers of the parish, and not 23, expresses that the office was re- 
 of the patron (Strange's Reports, p. garded as analogous to the ordinary 
 715), as temporal officers (13 Coke's parochial offices and not to the Church 
 Reports, p. 70): "of common right, offices, 
 the choice of churchwardens is in the
 
 The Development of the Parochial System. 517 
 
 constable no longer appeared sufficiently reliable for the 
 various functions of a magisterial office, a number of local 
 magistrate's duties were by degrees imposed upon the church- 
 wardens. In the Tudor era it was principally such as are 
 connected with ecclesiastical discipline : the infliction of 
 penalties for non-attendance at church, for breaking the fasts, 
 the desecration of the sabbath, taking part in conventicles ; 
 and in later times also the infliction of penalties for tippling 
 and drunkenness, for breach of the game laws, offences con- 
 cerning weights and measures, tramps and hawkers, etc. All 
 this, combined with their position as overseers of the poor, 
 gives them the position of regular and chief officers of 
 the parish, to be elected according to tradition by the parish, 
 whilst according to the canones of 1606, failing amicable 
 arrangement, one churchwarden is to be appointed by the 
 parish, and the other by the clergyman. (l a ) 
 
 3. The lower offices of sexton and beadle are servile offices, 
 which may also be employed for the secular functions of the 
 parish. The office of parish clerk is frequently filled by a 
 young assistant cleric, who assists in responding in the 
 prayers and in other parochial duties. But with the increas- 
 ing business of the parish he becomes a very active member 
 of the parochial administration, and in this position is also 
 remunerated and appointed by the parish. 
 
 Intimately connected with this personal side, is the taxation 
 side of the parochial constitution, the origin of the church 
 rate for maintaining the church building. From time im- 
 memorial a fixed portion of the church revenue was to be 
 set apart for this purpose. But, as a fact, even in the 
 thirteenth century the revenues of the richly endowed Church 
 
 (l a ) It was the consolidated State parishioners is established as the recog- 
 
 Church that, in the Canons of 1603, nized custom. Moreover their double 
 
 first raised still greater pretensions by functions are self-evident; for (1) the 
 
 introducing the following clause : wardens as being curators of the church 
 
 Canon 89. "The churchwardens buildings,of the churchyard, the church 
 
 shall be chosen, if possible, by the walks, and in their capacity of guardians 
 
 combined consent of the clergyman of the personal property of the church, 
 
 and the parishioners. But if they are at all events only partly ecclesi- 
 
 cannot agree as to such choice, the astical officers ; in their exercise of the 
 
 clergyman shall choose the one and police functions of the church, the 
 
 the parishioners the other." churchyard, the services and the Sun- 
 
 From the point of view of the com- day, as also in controlling and keeping 
 mon law these Canons are as yet bind- the church books they are purely 
 ing laws only upon the clergy. The church officers; (2) as purely civil 
 dominating influence of the State officers they appear in the assessment 
 Church since the times of the Stuarts and collection of the church rate, as 
 has, however, so far succeeded in in- overseers of the poor, and in their dis- 
 sisting upon the stronger right of the charge of the duties of a lower con- 
 parson, that this proceeding is the stabulary and magisterial office, which 
 custom in the majority of parishes, and is imposed upon them by later legis- 
 that only in the London parishes the lation. 
 election of both churchwardens by the
 
 518 Constitutional History of England. 
 
 were no longer sufficient for the purpose, since the episcopal 
 sees and monasteries in increasing numbers claimed the tithes 
 and Church property. Accordingly, appeals were made to the 
 " good will " of the parishioners, whose contributions were 
 from the first voluntary. When, in the face of growing 
 embarrassments, coercive ecclesiastical measures began to be 
 employed in the spirit of the Church government of those 
 days, the temporal courts probably retained a power of pro- 
 hibition. But on the other hand, in 1285 Edward I. issued 
 an instruction to the justices of the realm, the so-called 
 statute Circumspecte Agatis, in which this clause occurs, 
 "that the common law courts shall not punish the spiritual 
 tribunals, if they only administer justice in purely spiritual 
 matters, particularly si praelatus puniat pro cemeterio non 
 clauso, ecclesia discooperta, vel non decenter ornata." Accord- 
 ing to the constitution, as it then existed, this instruction 
 has the force of law, and was in later days described in the 
 stat. 2 and 3 Edward VI. c. 13, sec. 51, as a statute. Thus 
 a right of coercion was indirectly acknowledged as belonging 
 to the spiritual tribunals, and this could be enforced against 
 individuals by excommunication and in an extreme case by 
 interdict against the whole community. As a rule, however, 
 an amicable arrangement was effected. Whenever the clergy- 
 men convoked his parishioners through the churchwardens, 
 the villages, accustomed to bear common burdens, were found 
 ready to grant contributions for the keeping in repair and 
 beautifying of the church. The oldest known mention of 
 what was (later) called the church rate is in the Year-books 
 of 44 Edward III., where it is mentioned as being a custom in 
 a single parish. At a time, when the court leets gradually 
 began to decay, occasions for assembling the ecclesiastical 
 parish frequently recurred. The raising of these contributions 
 became now a chief duty of the churchwardens. But as the 
 original fact of their voluntary initiative was kept in mind, 
 the condition of a previous consultation with the parish was 
 adhered to all the more strictly, seeing that, in this parlia- 
 mentary age, the right of co- deliberation for every one who 
 joined in paying the taxes passed from the greater to the lesser 
 affairs, and became a common legal principle. In the course 
 of the fifteenth century, such parochial assemblies appear to 
 have been adopted as a comparatively uniform practice. (l b ) 
 To the parish, in the ecclesiastical sense, belong all persons 
 
 (l b ) As to the origin of the church Chief Justice of England, to Lord 
 
 rate a great deal has been written in Stanley, on the law of church rates 
 
 consequence of the controversy of the (1837). Moreover, I may refer to the 
 
 last generation, from among the mass detailed discussions on the special sub- 
 
 of which I only here mention the Letter ject contained in my " History of Self- 
 
 of Sir John Campbell, afterwards Lord Government."
 
 The Development of the Parochial System. 519 
 
 who are included in the cure of souls, comprising also women, 
 children, and domestics inhabitants in the widest sense. But 
 by the demand of positive performances, both in money and 
 in personal duties, there arises the civil idea of an active 
 parish parishioners in the narrower sense of the term in 
 which designation only those are included who bear their 
 share of the public burdens. The fundamental principle of 
 paying scot and bearing lot has made its influence felt as 
 a common-law maxim quite as much in the parish as in the 
 city. The given basis for Church grants was, however, the 
 Christian household as such. The church rate appears accord- 
 ingly from the very beginning as a personal rate, assessed 
 according to the size of the household, whether this be based 
 upon freehold or copyhold, upon permanent or temporary 
 possession, upon rent or tenure. In this question it was 
 evidently not considered whether or not a parishioner was 
 liable to the judicial and police burdens and parliamentary 
 taxation, but only whether he participated in the permanent 
 benefits of the Church as a permanent member of the parish 
 community. As was customary with other local burdens, in 
 practice those who lived outside the parish were made liable 
 in proportion to the extent of their landed property (Jeffery's 
 case, 5 co. 67). But whilst the temporal taxes are only 
 additions and compositions in lieu of what were originally 
 personal services in the militia, the law courts, and the 
 police, and therefore political rights are primarily regulated 
 by personal liability to service, so also in this parochial 
 burden the tax in money is the chief thing. The quality of 
 a parishioner is accordingly purely determined by his liability 
 to contribute to the parish taxes, as is evidenced by its regis- 
 tration in the parish books. This liability of contribution 
 gives the right to a vote in the parish affairs (Smith, 
 " Parish/' pp. 63, 94, and quotations). 
 
 The exaction of the church rate, after previous delibe- 
 ration with the parishioners, became accordingly one of the 
 principal functions of the churchwardens. The assembly of 
 the parishioners took place, in harmony with the object in 
 view, if possible in the vestry, whence these parochial meet- 
 ings themselves obtained the name of vestry. The meeting 
 was summoned by the churchwardens ; the chair was regu- 
 larly taken by the parson, as the landlord of the vestry, 
 and the first member of the ecclesiastical parish, as a matter 
 of courtesy, but a positive right of presiding could be estab- 
 lished neither by precedent nor by analogy. In analogy 
 with the tax-granting commoners, the meeting was rather 
 regarded as its own master, in respect to the appointment 
 of a chairman as well as in respect to its adjournment. The
 
 520 Constitutional History of England. 
 
 voting was conducted with equal rights for each individual, 
 after the manner of the old courts leet, the parliamentary 
 elections, and the parliamentary resolutions. The mode of 
 giving the vote was, as a rule, by show of hands, but in 
 difficult and doubtful cases by a poll. 
 
 According to an enumeration of Stowe, taken from the 
 sheriffs' reports, the number of parishes in the year 1371 
 amounted to 8632 ; in the year 1520 their number was 
 given as 9407. The parish, in this form, offered itself to the 
 Tudor legislation as an elastic member for new and important 
 rules of the commonwealth. 
 
 II. The most important and most enduring local creation, 
 which proceeded from this union of the ecclesiastical with the 
 civil State, is seen in the parorfrial management of tjje poor. 
 The actual relief of the poor devolved in the Middle Ages upon 
 the Church, for which in England one-third of the tithes was 
 set apart. In later times it was one of the chief functions of 
 the monasteries, partly as an original object of their founda- 
 tion, the duty of hospitality being imposed upon them, and 
 partly because they had appropriated a number of tithes. 
 The temporal legislation only busied itself negatively with 
 measures for the prevention of begging and vagrancy (23 
 Edw. III. c. 7 ; 12 Eich. II. c. 7). According to 19 Henry 
 VII. c. 12, beggars who are incapable of work shall go into 
 the hundred in which they were born or have lived for the last 
 three years ; all begging elsewhere being prohibited. By 22 
 Henry VIII. c. 12, the justices of the peace were empowered 
 to settle among themselves upon districts to be assigned to 
 beggars who were unable to work as "begging districts," 
 going beyond the boundaries of which was punishable with 
 the stocks and bread and water. All able-bodied beggars were 
 to be flogged and forced to return to their birthplace or to 
 the place where they had spent the last three years. (2) 
 
 But from this time forth the Government undertakes actual 
 relief of the poor. By 27 Henry VIII. c. 25 the individual hun- 
 dreds, incorporated towns, parishes, and manors are directed 
 to support the poor by voluntary alms in such a manner 
 
 (2) The history of the English poor- Laws " (1854) ; V. Kries, " Die Eng- 
 
 law legislation is treated of in R. lische Armenpflege " (i865). The 
 
 Potter's "Observations on the Poor Middle Ages adhered strictly to the 
 
 Laws, on the Present State of the distinction between the negative and 
 
 Poor, and on Houses of Industry " the positive element of the poor relief, 
 
 (London, 1755) ; Brown's " History of and assigned the former to the State 
 
 the Poor Law " (1764) ; F. M. Eden, and the latter to the Church (23 Edw. 
 
 " State of the Poor, or a History of the III. c. 7 ; 12 Rich. II. c. 7). The 
 
 Labouring Classes in England " (3 vols., earlier statutes of the Tudors (19 
 
 4to, 1796) ; Sir George Nichols, " His- Henry VII. c. 12 ; 22 Henry VIII. c. 
 
 tory of the English Poor Law" (1854); 12), were only continuations of this 
 
 R. Pashley, " Pauperism and Poor purely police system.
 
 The Development of the Parochial System. 521 
 
 that they be not compelled to beg publicly, under penalty of 
 twenty shillings a month for each person who refuses to con- 
 tribute. The churchwardens and other wealthy inhabitants 
 are to make collections on Sundays by boxes and other 
 methods for this purpose, and the clergy are to make use of 
 every occasion to exhort the people to charity. The duty 
 of employing those capable of working, and that of helping 
 the incapable was laid upon the churchwardens or two 
 " others of the parish." The parochial poor-law system of 
 later times was thus founded in its essential outlines. The 
 principal cause of it was the early changing of feudal into free 
 labour, which at times occasioned great fluctuations and dis- 
 tress among the labouring classes. Under Henry VIII., as the 
 date of the statute proves, the first impulse proceeded rather 
 from momentary calamities than from the abolition of the 
 monasteries. But through their secularization there naturally 
 devolved upon the Crown a moral duty to make actual provi- 
 sion for the poor, seeing that the appropriated tithes were also 
 charged with this obligation. These had in great measure 
 passed to favourites and private persons, whilst the burden of 
 relieving the poor now devolved in an increased degree upon 
 the parishes, to become again, in a uniform distribution, a 
 burden upon real property. 
 
 On that very account the legislation unswervingly adhered 
 to the direction it had once and for all taken. It is true 
 that the act 1 Edward VI. c. 3, passed under the nobles' pro- 
 tectorate of the minor King, recurs to the most barbarous 
 coercion of able-bodied beggars, who are threatened with 
 branding, slavery, and death, but after the lapse of three 
 years the more merciful law of Henry VIII. was restored. 
 According to 5 and 6 Edward VI. c. 2 the collectors, on a 
 particular Sunday in the year, immediately after service, 
 " shall put down in writing how much each man was willing 
 to contribute weekly for the following year," and if any one 
 should be obstinate, the clergyman should exhort him kindly, 
 etc. The stat. 5 Elizabeth c. 3, however, strengthens the 
 " kind persuasion " of the clergy by a writ of summons to 
 appear before the next sessions of the peace, and the justices 
 of the peace are again to urge him kindly, and finally, if 
 he refuses to be persuaded, to assess him at a proportionate 
 contribution for the poor, and in case he then refuses, to put 
 him in prison until he pays. By 14 Eliz. c. 5 the justices 
 of the peace were generally empowered to assess the inhabi- 
 tants for contributions, and, in case of necessity, to exact 
 these contributions by imprisonment. At the close of the 
 sixteenth century the alarming increase of professional beggars 
 and vagrants led to the appointment of a committee of the
 
 522 
 
 Constitutional History of England. 
 
 Lower House, to which, among others, Sir Francis Bacon 
 belonged, to take into general consideration the necessary 
 measures of public charity, of enforced employment of paupers, 
 and of the punishments to be inflicted for mendicity and 
 vagrancy. Relief of the poor and police had formed for gene- 
 rations a connected and inseparable system, embracing under 
 four heads (1) police punishments for mendicity and vagrancy; 
 (2) the compulsory obligation of the working classes to go to 
 service, to which were added somewhat later (3) the institu- 
 tion of workhouses and houses of correction ; and (4) a system 
 of public charity through the medium of the parishes. (2 a ) The 
 result was six connected laws, all important for the parochial 
 administration, of which only the statute 39 Elizabeth e. 3 
 belongs here, as it contains the outlines of the pauper legisla- 
 tion in a narrower sense, which comes to an end with the 
 reign of Elizabeth. (2 b ) The stat. 43 Elizabeth c. 2, which 
 
 (2 a ) The original ecclesiastical legis- 
 lation made, as is known, four portions 
 according to which the tithe should be 
 distributed. In England, as a rule, 
 only a threefold division is spoken of, 
 as the endowment of the bishoprics 
 had been very plentifully provided for 
 in another way. Therefore one-third 
 was to be employed for the fabrica 
 ecclesise, one-third for the poor, and 
 one-third for the clergy. Sensible gaps 
 were caused accordingly by the secu- 
 larization of the convent estates under 
 Henry VIII., and still more by the 
 confiscation of the property belonging to 
 the guilds' and hospitals under Edward 
 VI. But according to the tendency 
 of the writer the importance of the 
 monasteries for the relief of the poor 
 was frequently overrated. Hallam 
 justly remarks, on the other hand, 
 (Const. Hist., i. 108), " There can be 
 no doubt that many of the impotent 
 poor derived support from their charity. 
 But the blind eleemosynary spirit in- 
 culcated by the Komish Church is 
 notoriously the cause, not the cure, of 
 beggary and wickedness. The monastic 
 foundations scattered in different coun- 
 ties could never answer ttie ends of local 
 and limited succour. Their gates might, 
 indeed, be open to those who knocked 
 at them for alms. . . . Nothing could 
 have a stronger tendency to promote 
 that vagabond mendicity which severe 
 statutes were enacted to repress." The 
 Church and the monastic institutions 
 lacked in the form they had assumed 
 the necessary staff and the money for 
 an effectual relief of the puor. In the 
 
 altered condition of society the relief of 
 the poor could be no longer separated 
 from the police of the poor. Only by 
 the temporal legislation and by the co- 
 operation of the parishes was the bare 
 police system capable of being effectu- 
 ally blended with the humane measures 
 of pauper-relief; and the first only re- 
 mind us still too vividly of the whole 
 of the barbarity which, with so much 
 that is great, pervades the temporal 
 institutions of the Middle Ages. Ac- 
 cording to 27 Henry VIII. c. 25 lazy 
 vagabonds were to suffer the extreme 
 penalty of the law, " as felons and foes 
 of the commonwealth." According to 
 1 Edward VI. c. 3 every able-bodied 
 man who will not devote himself to 
 any honest labour, and will also not 
 go into service, shall be branded on 
 the shoulder as a vagabond, and shall 
 be assigned as a slave to any one who 
 will have him, to be kept by him for 
 two years on bread and water. If he 
 absconds he shall be adjudged as a 
 slave for life, and if he again runs 
 away he shall suffer the extreme 
 penalty of the law as a felon. This 
 was repealed by 3 and 4 Edward VI. 
 c. 15. But in 14 Elizabeth c. 5 the 
 rule was again inserted, that rogues, 
 vagabonds, and sturdy beggars should 
 suffer capital punishment if they re- 
 peated their offence more than once. 
 It was only upon the consolidation of 
 the whole legislation affecting paupers 
 and the supervision of labourers that 
 these barbarities disappear. 
 
 (2 b ) The consolidated social and 
 political group of laws of 39 Elizabeth
 
 The Development of the Parochial System. 523 
 
 has for more than two whole centuries regulated the English 
 poor-relief, is only a new version of this law. The leading 
 principles of the great poor-law are 
 
 1. The relief of the poor is the general and uniform burden 
 of each parish. But the pauper has not the free choice of 
 applying to any parish at will, for the former laws remain 
 in force, according to which persons who cannot or will not 
 work are compelled to remain in the same parish in which 
 they are domiciled, i.e. in which they were born or have 
 lived for the last three years. This contains at the same time 
 the basis of a right of settlement ; yet in such a manner, that 
 the poor, according to the wording of the law, find a bare 
 subsistence in their present place of abode, and that a removal 
 to their parishes only take place in the case of rogues and 
 vagabonds, (a) 
 
 2. For the personal functions of this poor-relief the 
 parochial office of Overseers of the Poor was created. In 
 every parish the churchwardens are to be primarily the 
 guardians of the poor, and in addition to them two or more 
 overseers of the poor, who are to be appointed annually by 
 the justices of the peace from among the well-to-do residents. 
 These overseers of the poor are to adopt measures for the 
 employment of all persons, who without having the means 
 of living, are engaged in no regular trade or business for 
 the gaining of their sustenance. To this end they are em- 
 powered " to raise such sums of money as they shall require 
 for the purpose of providing a sufficient supply of flax, hemp, 
 wool and other goods or stuffs, in order to employ the poor ; 
 as also the necessary moneys for the support of lame, blind, 
 and old persons and such as are unable to work, and for the 
 placing out of their children as apprentices." Persons who 
 refuse to work, they can send into a workhouse or prison, 
 
 is, for the time in which it was framed, and Dalton pass over the old statutes 
 a masterpiece ; cap. 1, against the decay- before Elizabeth in a manner that teara 
 ing of towns and houses of husbandry ;. asunder the historical connection of the 
 c. 2, for the maintenance of husbandry parochial system. From ignorance of 
 and tillage ; c. 3, for the relief of the the old conditions of things, in England 
 poor ; c. 4, for punishment of rogues, also the very well meant but ill-con- 
 vagabonds, and sturdy beggars ; c. 5, sidered advice is repeated at the present 
 for erecting of hospitals and working day, namely, to leave the whole of poor- 
 houses for the poor ; c. 6, touching lands relief to " the Church." 
 given to charitable uses; c. 12, concern- (a) The districts of the poor-law 
 ing labourers. Two centuries of par- system are in principle the parishes, 
 liamentary legislation have not been The later legislation of the restoration 
 able materially to improve upon any yielded, however, to the desire for 
 essential rule of Elizabeth's poor law. separation, and left it to those inter- 
 As to the final result of the long ex- ested to divide the parishes and to 
 perimental course of legislation, the organize for the smaller unions, so far 
 earlier steps have been in later time as they are suited for the purpose, a 
 wrongly forgotten. Lambard, Coke, separate system of poor-relief.
 
 524 Constitutional History of England. 
 
 and they may also build a separate poorkouse for the poor 
 of the parish who are incapable, (fe) 
 
 3. For the purpose of raising necessary means for the relief 
 of the poor, the law empowers the churchwardens and over- 
 seers of the poor " to raise the necessary sums by the assess- 
 ment of every inhabitant, incumbent, vicar, and others, and 
 every owner of lands, houses, and tithes, etc., in the said 
 parish," by which a parochial poor rate was legally constituted. 
 The basis of the new demand is accordingly the Christian 
 household as such, just as in the already long existing church 
 rate, and includes every occupier, whether his house consist 
 of freehold or copyhold, in permanent or temporary posses- 
 sion, rent or tenure ; and also those living beyond the 
 boundaries with their real estate. Thus arises a complete 
 fixed tax, which was destined to become the basis of all 
 parochial taxation, (c) 
 
 III. In a like spirit the burdens of maintaining the fyidjfoaijs 
 anfc i)litig=butlt(tng were provided for by the Tudor legislation. 
 The trinoda necessitous was regarded as a common burden even 
 in the Anglo-Saxon State, in which the old popular array, 
 which had sunk down to the position of a, posse comitatus of 
 peasants, was employed on such services. The Norman period 
 enforced the keeping in repair of the highways and bridges by 
 the ordinary police fines, viz. amerciaments. The widening, 
 alteration, and closing of highways was regulated by an order 
 
 (5) The appointment of overseers of former attempts into a uniform system. 
 the poor was made according to Eliza- The Church had always acknowledged 
 beth's law by the justices of the peace. the liability of the clergy in respect of 
 This must be regarded as an innova- their tithes. According to the Injunc- 
 tion. When the older law of 27 Henry tions of 1547 and 1559, " all parsons, 
 VIII. c. 25 left to the parishes the vicars, prebendaries, and others having 
 duty of providing for the employment livings, if they do not reside upon their 
 of able-bodied paupers, and helping livings, shall, provided they have annu- 
 those unable to work, by the church- ally 20 or more to spend, for the future 
 wardens or two others, it was naturally distribute among the poor parishioners 
 left to the parish to appoint their agents or other inhabitants, in the presence of 
 on their own responsibility. The the churchwardens or other honest men 
 reasons for Elizabeth's innovation were of the parish, the fortieth part of the 
 that it was thought that by means of fruits and income of the said livings." 
 this appointment the very unequally From this point of view the mention of 
 distributed and faulty system of relief the parson or vicar among the first of 
 could be better carried out, and that those liable to contribute, and the par- 
 an appointment by the public magis- ticular prominence given to the tithes 
 trates was considered more effectual in as objects liable to taxation is ex- 
 the case of a new burden which had plained. So long as Elizabeth's law 
 been introduced in the face of some was enforced in its original sense by 
 opposition. Later practice took a the " industrious employment " of the 
 medium course, by giving the vestry poor, the total mass of poor rates ap- 
 a right of proposing and treating the pears to have remained within moderate 
 appointment by justices of the peace limits. According to statements of 
 only as a confirmation. Cuode and Nicholls it amounted in the 
 
 (c) The creation of the church rate year 1650 to 188,811. 
 in Elizabeth's law is the fusion of the
 
 The Development of the Parochial System. 525 
 
 issuing from Chancery, a writ ad quod damnum, by which the 
 sheriff was instructed to determine by means of a commission 
 of inquiry, whether the proposed change would not be pre- 
 judicial to the public. The keeping of ways and bridges in 
 repair was a constant object of debate in the sheriffs tourn 
 and in the court leet. An appropriate division was made of 
 this duty, by which the burden of the highways was incumbent 
 on principle upon the small villages, whilst the more onerous 
 burden of building and repairing the bridges fell upon the whole 
 county. Actual use by the public rendered all the inhabitants 
 liable to the work of repair (Coke, Inst., ii. 700). These prin- 
 ciples, as they had been formerly uniformly applied by the 
 Norman administration, were regarded as "common law." 
 Their maintenance depended, according to the police practice of 
 Norman times, upon a procedure by indictment, and primarily 
 indeed by presentment before the King's Bench, the itinerant 
 justices, or the criminal assizes. The sheriff could by a 
 commission be charged with this duty, until by 28 Edward III. 
 c. 9 this part also of his judicial functions was withdrawn 
 from him. Besides this there lay an ordinary indictment by 
 private persons against the responsible parish. By 22 Henry 
 VIII. c. 5, sec. 1, presentments before the general sessions of 
 the justices of the peace were allowed to be of equal effect 
 with those laid before the assizes. Last .of all, a financial 
 criminal information ex officio could be laid before the common 
 law judges. 
 
 The Tudor legislation practically simplified and supple- 
 mented these principles. The Statute of bridges (22 Henry 
 VIII. c. 5) imposes the duty of contributing to the bridges upon 
 all householders, whether they possess lands or not, and upon 
 all real estates, whether their owners live in the county or 
 not. The troublesome and inadequate procedure by indict- 
 ment leads further to the formation of a new parochial 
 office (according to the principle of the division of labour), 
 that of Surveyor of Highways, by 2 and 3 Philip and Mary 
 c. 8. To this officer of the parish is now transferred the 
 primary duty of keeping the highways in repair, and, with 
 this object, he is empowered by the statute to make liable 
 to manual and cart services, in proportionate gradations, 
 according to the extent of their real estate, all the inhabitants, 
 landowners, as well as the possessors of a team, householders, 
 as well as cottagers and labourers with their own households. 
 Thus the same bases of a parochial constitution were laid, 
 as in the case of the poor-law system, namely, the parish 
 as the district ; the surveyors as local officers, elected by the 
 members of the community liable as responsible representa- 
 tives of the communal-duty ; performance in kind in propor-
 
 526 Constitutional History of England. 
 
 tion to the size of the household and the real estate, which 
 in later times was gradually changed into a money rate 
 according to the scale of the poor rate. (3) 
 
 Closely connected with this reconstruction of the highway 
 liability are the highway police regulations. According to the 
 older highway statute the courts leet are to inquire into all 
 offences against the statute and inflict fines and amercia- 
 ments. In case they neglect their duty, the justices of 
 the peace shall hold inquiry at the sessions. Bui according 
 to 5 Elizabeth c. 13 every official information of a justice of 
 the peace touching a "highway out of repair" shall have 
 the force of a presentment by twelve men, and on the 
 ground of this " conviction " the penalty shall be immediately 
 inflicted. A police regulation affecting the breadth and clear- 
 ance of the highways had been already contained in the 
 statute of Winchester (13 Edward I. c. 5). By 5 Elizabeth 
 c. 13 these provisions were specialized, and became still 
 further specialized into highway regulations touching lighting 
 the roads, keeping them dry, sign-posts, milestones and the 
 removal of nuisances of all kinds, the enforcement of which 
 now pre-eminently devolves upon the justices of the peace. 
 Already, by the statute of Winchester, the constables were to 
 make periodical reports as to the state of the highways, 
 which duty in later times passed to the surveyors of high- 
 ways. 
 
 A somewhat different, though in many respects an analogous, 
 course was taken in the arrangement for water communica- 
 tion. Eegulations for harbours and navigation were con- 
 nected with the old constitution of the so-called Cinque Ports. 
 A lighthouse and pilot code follows under Elizabeth, simul- 
 taneously with the formation of privileged corporations for 
 
 (3) The highway statute 2 and 3 bodied representative. Persons of the 
 
 Philip and Mary, c. 8, graduated the middle class (forty shillings annual rent 
 
 parochial burden in this manner : every from land, 5 in personal property) are 
 
 possessor of an acre of land has at a to furnish two men (18 Eliz. c. 10, sec. 
 
 given day or place to provide a waggon 2). The burden of making the high- 
 
 or a cart, drawn by oxen, horses, or ways is therefore still based upon per- 
 
 other beasts of draught, according to formances in kind. According to 5 
 
 the custom of the county, together Elizabeth c. 13, and 29 Elizabeth c. 5, 
 
 with two able-bodied men and other six working days were fixed by the 
 
 requisite utensils. Every owner of a justices of the peace for the repairing 
 
 team or plough in the parish has also of the roads. But in case the manual 
 
 in like manner to provide a waggon work provided by law was insufficient 
 
 with two men ; instead of the waggon, this service did not secure the parish 
 
 on demand, two men must also be pro- against an indictment for roads insuf- 
 
 vided. Every other inhabitant, house- ficiently kept ; for the statutes are only 
 
 bolder, cottager and labourer who is made " in aid of the common law " 
 
 able to work and who is not in a (Dalton, " Justice," c. 26). It was 
 
 domestic relation of annual service, necessary, accordingly, in such a case 
 
 must on the same day do manual ser- that supplementary taxes should be 
 
 vice either in person or by an able- raised.
 
 The Development of the Parochial System. 527 
 
 this purpose, for duties and rights of this kind could not 
 well be incorporated with local parochial unions. A similar 
 system was followed in the dyke-unions, which were formed, 
 as the nature of the land required, of the persons interested. 
 Commissioners of sewers had been already created in the 
 Middle Ages and were more exactly regulated in the spirit 
 of the older institutions by 23 Henry VIII. c. 5. (3 a ) 
 
 IV. By the foregoing regulations the bfllage constitution an& 
 a ncfo SgSttm of parochial tattS became consolidated, depending 
 upon the three following facts : 
 
 The district of this village is the parish, which now thrusts 
 into the background the old tithings and townships with the 
 decaying office of constables. The overseers of the poor and 
 of the highways, the poor rates and highway rates, now 
 form the connecting link between the ecclesiastical parish 
 and the temporal State. 
 
 In the system of parochial offices, those of the church- 
 wardens and overseers of the poor are, in the first instance, 
 intentionally associated together a practical expression of 
 the "non-separation" of Church and State. In their church 
 functions the churchwardens are subordinated to the ecclesi- 
 astical authorities, and, in the poor law administration, to 
 the temporal magistrates (the justices of the peace), moreover 
 with rights and duties similar to those of the overseers of 
 the poor. The right of the parish to elect its churchwardens 
 continues as a popular elective element side by side with 
 the right of the justices of the peace to appoint the overseers. 
 The right of the parish to vote the parochial taxes for the 
 church rate, and the right of the overseers of the poor to 
 levy a tax for the poor rate, mutually modify each other by 
 constraining to harmonious working. Somewhat less impor- 
 tant appear the offices of overseers of the highways and the 
 constables. 
 
 The parish rates from this time gain a much increased 
 importance. The demands made upon the commonwealth 
 were in the Middle Ages simple, so long as the labouring 
 classes were included in great numbers in the larger house- 
 holds. The village system in the Middle Ages embraced, 
 
 (3 a ) The commissions of sewers are by a royal commission. The commission 
 
 regulated according to other principles. forms a court of record, that is, a court 
 
 The keeping of the drains in repair is with discretionary penal and executive 
 
 the permanent interest of the land and powers, and proceeds according to cir- 
 
 not of the parochial union as such. cumstantses by inspection or with a jury, 
 
 The necessary contributions for this either according to the custom of the 
 
 purpose, sewers rates, were by law dyke-unions or according to need and 
 
 charged to the endangered landowner discretion. At the same lime it enforces 
 
 as such (6 Hen. VI. c. 6), and not to by summary penalties the police regu- 
 
 the occupier, like the parish rates. The lations it decrees, 
 necessary magisterial powers were given
 
 528 Constitutional History of England. 
 
 moreover, only functions in which personal service and per- 
 formance in kind predominated (such as militia, courts of 
 law, police, and making of highways). To the modern 
 parochial system finance was also added. The church rate 
 was indeed still often raised in a patriarchal manner for 
 certain church purposes, by the levying of a poll tax of one 
 penny ; the poor rate, on the other hand, was a considerable, 
 uniformly levied rate, exacted by the overseers of the poor. 
 Such was also the bridge rate. The making of highways 
 was still managed by performances in kind, but they are 
 essentially incumbent upon the same class of occupiers and 
 landowners. The system of a parochial taxation, which is 
 based upon the household according to the scale of the visible 
 profitable property in the parish, is thus the ordinary type 
 of all parochial taxation. Certain deviations from it in the 
 church rate, in the burden of making the roads, and in the 
 police contributions were easily ignored, as the differences 
 were scarcely worth mentioning, and their correction would 
 have involved a disproportionate elaboration of accounts. 
 The poor rate could still be regarded as the regular tax, and 
 all else merely an appendage and addition to it. Legal 
 analogy, simplification of the business of assessment, the 
 habituation of the ratepayers to it, and the common exercise 
 of the functions of a court of higher instance by the justices 
 of the peace, all worked together to bring all local rates by 
 degrees under the same category as the poor rate. 
 
 In consequence of all these manifold duties which devolved 
 upon it, the parish has gained a stirring life, and with it also 
 the energy for new formations, which appear in the form of 
 parochial committees for parochial purposes. The committees 
 of assessmen-t date back to the Middle Ages. Beside them 
 there now appear committees of jurats : that is, four or eight 
 arbitrators appointed on oath for the amicable settlement of 
 disputes between neighbours. Frequently a kind of parochial 
 administrative council, a committee of assistance, is mentioned, 
 consisting of thirteen persons, who have formerly been church- 
 wardens or constables, and who afterwards formed the later 
 so-called select vestries. 
 
 From the whole system of the new organization there 
 sprang up further a right to make by-laws, a right which 
 at first proceeded from the practice of the court leet. If 
 the parish undertook the levying of public and constitution- 
 ally recognized contributions, such as the church rate, or if 
 it fulfilled legal obligations, such as making roads and 
 relieving the poor, it was also to be empowered to make 
 rules for the " better fulfilment of them." In this spirit the 
 judicial practice in early times recognized the resolutions of
 
 The Development of the Parochial System. 529 
 
 the majority as having the binding force of law : " By- 
 laws for the reparation of the church, or a highway, or of any 
 such thing which is for the general good of the public " (Coke, 
 Reports, v. p. 63a). The condition was, however, here 
 observed, that no rate should be raised but for such legally 
 authorized purposes, or for such as, like the church rate, 
 were based upon old custom and indirect recognition of the 
 law, and that nothing might be enacted which was against 
 the common law. (4) 
 
 All these institutions taken together determined the powers 
 of the vestry. A constitutional right of being consulted 
 resided in the parishioners only in the case of the church 
 rate, owing to the circumstances of its origin. To this right 
 was added a similarly acquired right of electing church- 
 wardens, or at least one of them. A right of electing the 
 surveyors of the highways had been already given by stat. 
 2 and 3 Philip and Mary. A right of proposing candidates 
 for appointment as overseers of the poor was naturally 
 added. A right of proposing or electing the constables 
 belonged, according to time-honoured custom, only to the 
 court leet, and this latter, which was dependent upon special 
 privilege, includes a different circle of persons than the parish, 
 and falls into decay after the fifteenth century. A right of 
 electing the constables, based upon principle, could under 
 these circumstances hardly appear. Many questions of local 
 government were, however, naturally brought up by the 
 
 (4) Fof the consolidated parish con- raised by the community, and the sub- 
 stitution of this period the treatise of sidies voted in Parliament apportioned 
 Toulmin Smith, who with personal amongst them (Smith, 558, 563). Of 
 predilection undertook the unearthing the greatest interest is the constitution 
 of the parochial system, which had of tlie committees, which were or- 
 been almost buried in the eighteenth ganized as they were required. Corn- 
 century, is a most valuable work (" The mittee of jurats (Smith, 229) ; committee 
 Parish, its Powers and Obligation at of assistance (229); committee of watch 
 Law," London, 1857, 8vo.). Nor are the and ward (230) ; committee for assess- 
 hietorical merits of the work diminished ment (230) ; committee for raising and 
 by various one-sided legal views, which distributing poor relief, for audit, of 
 were sure to arise from the contrast to destruction of vermin (230). This la- 
 the habitual disregard of the local borious parochial government was the 
 parochial life and to the modern cen- means of bringing about many village 
 tralization. Among these errors the festivities, concerning which the Bishop 
 principal one is the over-estimation of of Bath announces on the 5th of Novem- 
 parochial autonomy. The right of ber, 1663, that his parochial clergy are 
 making their own by-laws, and the of opinion that such village festivities 
 right of self-taxation only existed in should be retained (Smith, 499, 500). 
 England for objects and purposes, Such ecclesiastical, judicial and other 
 which were entailed upon the parish feasts occur under the name of " ales " 
 by law as a common obligation. The (as among the German peasants, the 
 judgments quoted by Smith, taken to- " Kindelbier" etc.), and are known 
 gether, refer to the older law which more specially as bridge-ales, church- 
 required that the police fines to which ales, clerk-ales, give-ales, lamb-ales, 
 the members of the community had leet-ales, midsummer-ales, Scot-ales, 
 rendered themselves liable should be Whitsun-ales, and others. 
 
 2M
 
 530 Constitutional History of England. 
 
 officers for discussion before the parish, without a legal 
 obligation to do so. From the time of the Stuarts, the 
 development of these customs was certainly different in 
 different places. Where a wealthier class of tenants or 
 freeholders existed in country parishes, and agricultural 
 husbandmen in the borough parishes, such open vestries 
 busied themselves pretty actively with parochial affairs. In 
 other places the active participation in such affairs was 
 limited to an old committee of parishioners or an adminis- 
 trative council of former overseers of the poor and constables, 
 which easily filled up its number by co-optation. After a few 
 generations this institution appeared, under the name of a 
 select vestry, as an established custom. Again, in other 
 places everything was restricted to the annually appointed 
 and chosen officers. In such matters political leanings have 
 had less influence than local exigencies and convenient 
 custom. 
 
 V. The newly constituted parish now becomes immediately 
 connected with the COUtxtp police alimmfStration, and especially 
 with the COUntg magistrates, and, through the justices of the 
 peace, comes into further connection with the central Govern- 
 ment. 
 
 The legislature, immediately on the constitution of the 
 parochial system, took care to form a court of higher instance, 
 as well in the case of the taxes as in that of the local 
 government. In the case of the taxes this was most effectu- 
 ally brought about in the matter of the poor rate. Two 
 justices of the peace approve the rate assessed by the over- 
 seers of the poor. Two magistrates of the same class may, 
 if the parish shows itself incapable of maintaining its poor, 
 assess another village within the hundred to supply the 
 deficiency ; and if this also is not sufficient, the quarter 
 sessions shall assess a parish within the county "to make 
 it good." The quarter sessions decide the appeals against 
 the rating. Two magistrates issue the writ of distraint, if 
 execution is resorted to. Two magistrates receive the accounts 
 of the retiring overseers of the poor, and enforce the delivery 
 of the amounts if necessary by writ of execution, subject to 
 an appeal to the quarter sessions. The quarter sessions 
 assess every parish at a proportionate rate for needy persons 
 in the prisons and hospitals. By orders of the magistrates 
 questions of the right of settlement, of conveyance of paupers 
 to their parish, and compensation for disbursements arising 
 between the several parishes are decided. In the province 
 of the management of the highways they fix the working 
 days for repairing the roads, decide appeals, and afterwards 
 levy the necessary supplementary tax, should such be needed,
 
 The Development of the Parochial System. 531 
 
 according to the scale of the poor rate. In the case of the 
 bridge rate, the imposition is made immediately by the 
 quarter sessions. 
 
 In the department of the local government, the appoint- 
 ment of the overseers of the poor is, in the first place, made 
 by two justices of the peace. Two magistrates enforce by 
 fines the holding of monthly sittings, and by the penalty of 
 imprisonment the presentation of an annual account. Two 
 magistrates approve the industrial employment provided by 
 the overseers for the parish poor. By the order of two magis- 
 trates, the poor are kept at forced labour, are compelled to 
 serve apprenticeship, relatives are summoned to contribute 
 to the support of destitute persons, and the father for his 
 bastard. The magistrates may in urgent cases order relief 
 for a needy person. They compel by penalty the overseers of 
 the poor and the constables punctually to fulfil certain official 
 duties. The quarter sessions, finally, are the general court 
 of appeal for " all persons who feel themselves aggrieved by 
 any action or neglect of the churchwardens or overseers of 
 the poor" (43 Eliz., c. 2, sec. 6). For the surveyors of the 
 highways, whose appointment is in this period still made by 
 election by the parish, the quarter sessions, together with 
 individual justices of the peace, form the controlling court 
 of higher instance for the due carrying out of highway regula- 
 tions, and they decide in their sessions legal points which 
 may arise. The management of the county bridges is the 
 immediate province of the quarter sessions. The subordi- 
 nation of the constables and their duty to appear periodi- 
 cally at the sessions to make their presentments, and to 
 report upon the state of the roads, was a relic of the old 
 police system. With the decay of the court leet the appoint- 
 ment of the constables passed more and more to the board 
 of magistrates, and from the right of appointment arose in 
 practice also a right of dismissal. The coroners were by 
 1 Henry VIII. c. 7, rendered subordinate to the magisterial 
 power of inflicting penalties for breach of duty. Only the 
 churchwardens are subordinated to the justices of the peace 
 purely in their capacity of guardians of the poor. 
 
 As the local officials were in all matters made responsible 
 to the magistrates, so also by the subordination of the office 
 of justice of the peace to the central administration, that 
 unity in the administrative system was attained, which, in 
 the continental States was only technically developed some- 
 what later by the formation of a " Staatsrath" and "Behorden- 
 system" for the provincial and district government. The 
 police control, especially that of the police for trade, labour, 
 and order, the State and parish taxation, the militia system,
 
 532 Constitutional History of England. 
 
 and that of all other more important branches of the temporal 
 administration, had now been thoroughly regulated by statute 
 and ordinance, and the councillors of the Crown were now 
 regarded as responsible to the King and to Parliament for 
 the due execution and maintenance of this legal order. It 
 was necessary, therefore, to allow the Privy Council and its 
 delegates the means for conducting the government of the 
 country according to these laws. The governmental system 
 of the Tudors had accordingly already carried out the system 
 of administrative control of modern government in all its 
 three functions. 
 
 1. A disciplinary or penal power for breach of the law 
 over the persons of the magistrates, sheriffs, and military 
 commissioners, and through these over the constables and 
 all other executive officers of local government, is effectually 
 exercised by the right of dismissal of all these officers, who 
 from the Lord Chancellor down to the village constable, are 
 revocably appointed (durante bene placito). Beyond this, 
 however, there extends also a right of inflicting summary 
 punishment, such as from its origin in the Anglo-Norman era 
 (supra, p. 160) had never been given up by the kings. As this 
 right had in the preceding period been even put into execution 
 against the members of the common law courts, and had 
 only gradually fallen into disuse on account of the honour 
 of the permanent judicial office, so did the exercise of it by 
 the itinerant justices, and in consequence by the magistrates, 
 who had taken their place as permanent custodes pacis et 
 justiciarii, become a more and more natural consequence. 
 It is, accordingly, in fact, only a declaration of the existing 
 system, when the statute (3 Hen. VII. c. 1) touching the Star 
 Chamber reserves to a select committee of the Privy Council 
 a penal jurisdiction over all abuses of office of whatever 
 kind. It was only a declaration, when in 4 Henry VII. c. 
 12 the King issued a solemn address to the magistrates, 
 exhorting them to the faithful exercise of their office, if they 
 would avoid his highest displeasure, and under threat of 
 immediate removal from the commission and punishment 
 for disobedience. That this penal jurisdiction was com- 
 paratively seldom exercised, was only a consequence of the 
 more simple and effectual right of dismissal. 
 
 2. A power residing in the central administration, con- 
 trolling the orders and precepts of the magistrates, was a 
 result of their position as delegates of the royal judicial and 
 peace powers. As this had always existed for the measures 
 of the itinerant commissioners, it was natural that this 
 power should, as a reservation of a continual intervention 
 on the part of the royal government, supplendi et corrigendi
 
 The Development of the Parochial System. 533 
 
 causa, proceeding from the Privy Council as well as from the 
 King's cabinet, be equally valid in the case of this permanent 
 commission of magistrates. Hence followed in the first place 
 the obligation of the local commissioners to make report 
 (certiorari facias}, and to obey the direct mandates issuing 
 from court. In like manner it was one of the functions of 
 the itinerant justices of assize, in their character as the 
 highest custodes pads, and as representatives of the central 
 courts (as which they had been regarded since Henry VI.) 
 duly to instruct the magistrates, to warn them, and threaten 
 them even with deposition and punishment, as very often 
 happened. In fact, there was only too urgent cause found 
 for exercise of this supreme jurisdiction, in consequence of 
 the partiality and demoralization in a generation, which had 
 grown up amid the party struggles of the Roses, and which 
 continued under the party struggles of the Eeformation. All 
 proposals of Parliament for the abolition of the abuses and 
 mistakes of the administration gained their effect only through 
 these corrective powers of the King and the royal council, 
 which controlled the magistrates, the sheriff, and the local 
 boards. 
 
 3. This controlling court becomes of itself a double legal 
 remedy, that is, as a court of appeal for the protection of sub- 
 jects, so soon as it exercises its jurisdiction on the motion of 
 corporations or private persons. The innumerable petitions of 
 private individuals addressed to the King and the royal council, 
 as well as to Parliament, presuppose that the King and the 
 royal council can and ought to interfere corrigendi causa ^ with 
 the orders and measures of the county and local administra- 
 tion. Its existence as an administrative court of higher 
 instance is an especial presupposition of all parliamentary 
 action with regard to national grievances. If, accordingly, 
 the historians of this period as well as the Parliaments 
 complain of the severity and impartiality of certain measures 
 of the Privy Council, any denial of the principle of these 
 corrective powers is perfectly alien to the Tudor period. (5) 
 
 (5) A disastrous error has been com- obedient magistrates in the Statute 
 
 mitted by modern historians, and in 4 Hen. VII. was a natural presup- 
 
 particular by Hallam, in portraying this position of the ordinary course of law 
 
 character of the royal council as a dis- in an action, this was a pious wish of 
 
 ciplinary, controlling, and appeal court, the honourable Lord Chief Justice, 
 
 in the light of attacks and encroach- which could not be enforced against 
 
 ments of the Privy Council. 1'his the Privy Council, and of the fulfil- 
 
 notion is perfectly foreign to contem- ment of which no instance is known, 
 
 porary historians, Parliaments, and It was not until the period of the 
 
 jurists; it is rather the result of a Stuarts that after severe abuses of 
 
 dating back of conditions belonging to the royal power, upon the one side the 
 
 the eighteenth century. When Lord administrative controlling power and 
 
 Coke (Inst., iv. 17) declares the ex- court of appeal of the royal council 
 
 tension of a "punishment" of dis- (cabinet) was almost abolished (vide
 
 534 Constitutional History of England. 
 
 From this building up of an administrative system from 
 the parish to the Star Chamber and to the King's cabinet, 
 it results that the permanent constitution of the common 
 law courts could only in a limited degree guarantee the legal 
 rights of individuals; that, on the other hand, whilst the 
 personal will of the King and of the Privy Council in the 
 Star Chamber could to a great extent prevent injustice and 
 partiality, they could also themselves inflict these evils, so 
 soon as an exercise of the royal power in a monarchical 
 spirit ceased, as was the ease after the death of Elizabeth. 
 With the period of the Stuarts, accordingly, Parliament 
 begins to aim at restricting the supreme administrative power. 
 In another direction it is apparent, that the judicial indepen- 
 dence which resides in the honorary officers of self-government 
 by virtue of their possessions, contains the requisite energy 
 to resist a despotic government. Finally it becomes gradually 
 apparent, that the cohesion which the lower strata of society 
 have gained by the local constitution of this period, both in 
 Church and State, has engendered a manly spirit which is 
 able victoriously to face the constitutional struggles that 
 ensue against absolutism in Church and State. 
 
 infra, chap. 1.) ; whilst in other diree- Council, and of the Parliament, and 
 tions a feeling of judicial independence even the whole of the parliamentary 
 and of judicial duty all together had legislation as almost a usurpation 
 become developed in the magisterial practised against the autonomy of the 
 'bodies, hand in hand with the now parish, as a false " parliamentarianism" 
 recognized irresponsibility of the jury. compared with the good old common 
 (En Toulmin Smith this conception rises law. As if a modern State were con- 
 to such a pitch that in his over-zealous ceivable without administrative laws, 
 llocal patriotism for the parish he re- and as if administrative laws were 
 gards the appellate jurisdiction of the conceivable without a thorough control 
 justices of the peace, of the Privy .exercised over their due execution !
 
 ( 535 ) 
 
 FIFTH PEEIOD. 
 
 THE STUARTS AND THE CONSTITU- 
 TIONAL CONFLICT. 
 
 CHAPTER XXXVII. 
 Bistort foirtjm tfje political 
 
 JAMES I., 1603-1625 CHARLES II., 1660-1685 
 
 CHARLES I., 1625-1649 JAMES II., 1685-1688 
 
 THE EEPDBLIC, 1649-1660 
 
 THE English Eeformation had made the monarchy the sole 
 heir of the papacy. Though, with the abolition of the long-dis- 
 puted foreign supremacy of the Italian Head of the Church, 
 an important step had been taken towards the emancipation 
 of the intellect, at the same time a serious step had been 
 taken towards imperilling the national constitution. The 
 
 * For the period of the Stuarts, the of the British Empire, from the Acces- 
 
 wealth of sources and literature is so sion of Charles I. to the Restoration " 
 
 great that only a selection need be (new edit., 1866, 3 vols.). Burnet, 
 
 given. The Statutes of the Realm, " History of his own time from the 
 
 vol. iv. a, v., vi., vii. a., contain the Restoration," etc. Guizot, "Histoire 
 
 legal records of this period. For the de la Revolution d' Angleterre," " His- 
 
 period of the Commonwealth as sup- torie de la Republique d' Angleterre," 
 
 plementary to these : " Acts and Ordi- and other writings. Dahlmann, " Eng- 
 
 nances during the Usurpation from lische Revolution." Ranke, "Englische 
 
 1640-1656," by Henry Scobell (Lon- Geschiehte," vols. i.-vii., principally 
 
 don, 1658 fol.). The Parliamentary dealing with foreign affairs. As to 
 
 proceedings are given in fairly detailed the political polemical writings of 
 
 extracts in Parry, " Parliaments,' ' pp. Hale, Prynne, Selden, Brady, and 
 
 240-603 (1839). Among the historical others, cf. R. von Mohl, " Die Literatur 
 
 descriptions the most prominent is the der Staatswissenschaft," vol. i., pp. 
 
 brilliant description in Macaulay," His- 325-330; ii. 70 seq., 86 seq. Cf. also 
 
 tory of England." Cf. also Hallam, particularly Sir Roger Twysden: "Cer- 
 
 " Const. Hist.," vols. i., ii. For volu- tain Considerations upon the Govern- 
 
 minous matter : Rushworth, " His- ment of England," edited by J. M. 
 
 torical Collections from 16 James I. to Kemble (London, 1849, 4to). More 
 
 the Death of Charles I." (1659-1701). modern treatises : J. Langton Lanford, 
 
 The constitutional law questions of the " Illustrations of the great Rebellion " 
 
 revolution are treated of in Clarendon, (London, 1858). Vaughan, " Revolu- 
 
 " History of the Rebellion " (Oxford, tions in English History " (vol. iii. 
 
 1705), Brodie, " Constitutional History 1863).
 
 536 Constitutional History of England. 
 
 contrast which had so long and so deeply moved the Middle 
 Ages had thus become planted in the heart of the constitu- 
 tion. Until the period that now commenced, the boundary 
 between Church and State had been guarded by national 
 jealousy; now the barrier between the two had fallen, for 
 both had become united under a single sovereign lord. The 
 two tendencies of the human mind, which had hitherto 
 embodied themselves in Church and State, had now become 
 internal contrasts in the State itself. 
 
 According to the time-honoured popular idea there was 
 only one Church. But the living generation found itself 
 involved in a bitter controversy as to which Church was 
 the true Christian Catholic Church. The possibility of each 
 being equally entitled to be so regarded, or even of a tolera- 
 tion of different creeds within one political system, was as 
 yet quite alien to the ordinary ideas, and was in fact im- 
 possible, so long as each Church regarded the right of 
 solemnizing marriages, and all the important bases of private 
 family institutions, as well as public education and numerous 
 other legal conditions .of family life as the subject of its 
 exclusive legislation and jurisdiction, subject to the ecclesi- 
 astical coercive control, which like every other political power, 
 could only be a concentrated and exclusive power. 
 
 The Koman Catholic Church, where she had the power, 
 enforced this view of her right by fire and sword. She had 
 strengthened herself in the sixteenth century by serious 
 reforms and by strong alliances. The Pope, and the Catholic 
 potentates of the Continent, kept up an agitation by means 
 of emissaries, by entering into conspiracies and by releasing 
 the English subjects from all obedience to the English throne 
 and supremacy. Such opponents could not be combated by 
 endurance. The scenes on Saint Bartholomew's day in 
 Paris, and those which took place in the Spanish Netherlands, 
 made abstract toleration in the sixteenth century an im- 
 possibility. The Crown of England was not able to protect 
 and maintain the national Church in any other way than 
 by constituting it the only true, and the sole rightful Church 
 both in the eyes of God and of the law ; it could only uphold 
 the greater Christianity of the new faith, by exercising its 
 right of constraint in a more moderate and more human 
 fashion. The attitude of the Crown towards the old Church 
 was thus indisputably established. 
 
 But as early as the second half of the sixteenth century, 
 differences began to spring up in another direction within the 
 reforming party itself. The idea of a mere national Church, 
 without change of dogma, had under Bloody Mary been 
 proved to be utterly worthless. The monarchy was obliged to
 
 The Discord within the Political System. 537 
 
 confess that the new work, without inner conviction, had no 
 hold, and that in many parts of the country the reform had 
 not as yet been understood. Therefore, in spite of serious 
 scruples, it had been necessary to resort to the peculiar 
 weapon of the Eeformation, the licence to read the Bible. 
 The effect was, that the people began to expound the so long 
 prohibited Bible with that kind of prejudice "with which 
 an English jury is wont to regard evidence, which one party 
 in the action has endeavoured to suppress." With examina- 
 tion and inquiry doubts now arose in individual minds as to 
 the new hierarchy. Simultaneously with the dogmatic refor- 
 mation under Edward VI., disagreements appear between the 
 more moderate reformers, who are satisfied with the doctrine 
 and liturgy established by authority, and those stricter 
 reformers of the school of Zwingli and Calvin (analogous to 
 the controversial points between the Lutherans and the 
 Eeformed Church), and nourished by intercourse with the 
 reformed clergy on the Continent. The Government itself 
 had held up the Eoman Church with its external pomp, its 
 miracles, its relics, and its traffic in indulgences to ridicule 
 and scorn. With the permission to read the Bible, there 
 was added to the mistrust of the authorized teachers of the 
 Church the charm of personal research and the national 
 characteristic of striving after individual independence. Both 
 schools held to the opinion that holy writ was alone suffi- 
 cient, not only in matters of faith, but also for discipline 
 and the honour of God, and that each individual had a 
 right to interpret the Scriptures independently according to 
 his own lights and his own conscience. But a further result 
 was, that the legality of Convocation, as well as the autho- 
 rity of the canones, was disputed, and in this manner opposi- 
 tion was directly introduced into the State. A fruitful soil 
 for this personally honourable opposition was found in the 
 rising classes of the yeomanry, the citizens, and a part of 
 the gentry, but especially in a part of the theologically 
 educated lower clergy. As is ever the case, the ideas of 
 social classes blend with those of the religious, and, accord- 
 ing to the degree of influence the latter exercise, dissent 
 takes the form of a Presbyterian constitutional ideal, or 
 inclines into the more thorough-going tenets of the later 
 Puritans, or finally to those of the Independents, who deny 
 the Church as an institution, and desire to make the clergy 
 elective parochial officers, entirely dependent upon their con- 
 stituents, who elect them. Though these different schools of 
 thought showed themselves in Elizabeth's time only sporadically, 
 and then only in narrow circles, yet they soon manifested 
 themselves in attempts at forming sects and conventicles, in
 
 538 Constitutional History of England. 
 
 dissensions between the parishes and the authorized parsons, as 
 controversial points between the parishioners amongthemselves, 
 and yet more particularly in the manifold differences in the 
 externals of the places of worship and in the form of the service. 
 
 From the point of view of the State Church, Elizabeth 
 determined to suppress the irregularities in the Church 
 service which resulted from these causes, to take action 
 against the conventicles, to depose dissenting ministers, and 
 to visit the issue of polemic pamphlets with severe penalties. 
 But, through this course of action, honest conviction was 
 driven into opposition against the royal authority itself; 
 Cartwright, in his bold theses, even disputed the supremacy. 
 "Church matters should," he urged, "only be settled by 
 Church officials and ecclesiastics, entitled, even without the 
 consent of the magistrates, to adopt ecclesiastical ordinances 
 and ceremonies." This opposition was surely not unwar- 
 ranted, in a work of reformation, which was so external in 
 its starting points, and had remained so long external in its 
 course, as the English Eeformation. Elizabeth, however, in 
 thus checking it, followed her religious conviction and her 
 policy. In the deep attachment of the people to her person 
 and in the triviality of the differences between the essential 
 doctrines of faith, this side of the opposition still appears the 
 subordinate one. (1) 
 
 But in spite of continual disunion among themselves, 
 the reforming schools remained united in their demand for 
 the creation of a national Church, that is, united in their 
 opposition to the " papists," who were now regarded by the 
 national jealousy in the light of treasonable subjects, who 
 cleaved to a foreign ruler. How Parliament would have 
 acted if left to itself, is shown by certain acts of violence 
 and by ceaseless complaints concerning the leniency shown 
 to papistry. The Crown, by legislation and administration, 
 
 (1) The ' attitude of the monarchy reform could only find its support in 
 towards the Protestant opposition has an effectual ecclesiastical authority and 
 not, in historical descriptions, been in church property, and not in the 
 sufficiently valued according to the purely internal nature of the " Church 
 scale of the times. Modern tolerance of the early centuries," which the 
 and latitudinarianism would have made puritan opposition took as a model, 
 the English national Church defence- Upon the Continent also the Keforma- 
 less and helpless in a conflict with the tion was compelled to pass from the 
 Eoman ascendancy. Unity in its out- internal impulse of the heart to ex- 
 ward organization cannot be dispensed ternal institutions, varying according 
 with by a church, even though it be to the form of the existing temporal 
 restricted by the executive power of state, but ever in close connection with 
 the State to the sphere of an ecclesias- it. Between both one-sided tendencies 
 tical school and cure of souls. But Elizabeth sought a balance, which 
 after the Eoman Universal Church had actually preserved both Church and 
 become an exclusive political system, State for more than a century from a 
 far beyond these limits, ecclesiastical renewal of a violent struggle.
 
 The Discord within the Political System. 539 
 
 did its best to suppress the remains of Catholicism; yet 
 from Elizabeth to James II. there was no single time at 
 which the Crown granted as much as Parliament and the 
 popular voice really demanded. All clamoured for coercive 
 measures. In the eyes of the Presbyterians the persecution 
 of the Catholics was not sharp enough ; the Episcopalians 
 demanded greater severity against both. All approved such 
 excesses of the Government as were directed against the 
 other party. 
 
 In this department of political activity it first became 
 manifest, that the Crown had by the Eeformation gained a 
 new independent position, and that its supremacy had altered 
 the character of the prerogative, just as in Germany the posi- 
 tion of the reigning potentates had become altered by the so- 
 called jus reformandi. In the province of the Church, the 
 King rules as absolute monarch, with a bureaucracy ; in the 
 province of the temporal power, on the other hand, only as a 
 constitutional authority, with enacting Parliaments and inde- 
 pendent comnwnitates. Both systems were in daily contact 
 with each other. But a power that ruled with unlimited sway 
 in what had hitherto been the higher sphere of the Church, 
 felt a natural desire not to be bound in the temporal sphere 
 by the resolutions of the Lords and Commons. As every poli- 
 tical power bears within itself a tendency to develop into abso- 
 lutism, so the monarchy thus gained .an inevitable tendency 
 to transform the State into an administrative system after the 
 pattern of the Church. 
 
 With clearness and decision Elizabeth had taken up her 
 position under these circumstances. Her government, with 
 the assistance of her council, continually draws conclusions 
 from the royal supremacy. The Act of Supremacy declares 
 all ecclesiastical legislation and jurisdiction to be an emana- 
 tion from the Crown ; the ecclesiastical oath of allegiance 
 uniformly embraces all ecclesiastical and temporal persons 
 holding any public office, down even to the lower and indirect 
 officials and servants of the state. The Act of Uniformity 
 subordinates ritual and Church discipline to the regal power. 
 Later legislation endeavours by supplementary measures to 
 crush rising opposition at all points where it shows itself. (l a ) 
 
 (1") Whether Elizabeth acted rightly opinions of her own ministers were 
 
 in keeping down with such rigour, by divided. The experiences made in 
 
 her injunctions, the loyal opposition Scotland were not, however, of a kind to 
 
 which in the doctrines of faith was recommend a mild ecclesiastical system 
 
 arrayed on the side of the national of government as productive of peace 
 
 Church, whether a certain amount of and concord. In dissenting circles 
 
 conciliation with regard.to the moderate .themselves the sturdy manly struggle 
 
 proposals of the Lower House in ,1584 against error was regarded as in- 
 
 would not in some measure have calmed separable from the serious convictiuu 
 
 down the dispute, on these points the of the truth. Still less could the
 
 540 Constitutional History of England. 
 
 These measures continued to be employed with greater 
 rigour against the opposition on both sides; often severe 
 towards individuals, yet without violating the formal law, 
 which even in the proceedings against Mary Stuart, that 
 were purely determined by political motives, was on Eliza- 
 beth's side. With the same sagacity Elizabeth kept within 
 the constitutional limits of her royal power. She knew 
 that her military, judicial, police, and financial sovereignty 
 could no longer be severed from the legally acquired and 
 constitutional participation of the propertied classes ; she 
 never ignored the fact that her own title to the Crown was 
 dependent upon secular law and upon the recognition of Par- 
 liament. The divine mission of the monarchy, of which she 
 was deeply convinced and fond of speaking, she considered 
 as perfectly compatible with it. With the due recognition of 
 the position and influence of Parliament, she united the newly 
 acquired rights in such a fashion, that (1) in the legislation 
 affecting internal ecclesiastical affairs, she claimed the exclu- 
 sive initiative for herself and her clergy ; (2) she caused the 
 enlarged administrative powers, which the ecclesiastical con- 
 flict had called forth, to be sanctioned by acts of Parliament ; 
 and (3) in circumstances of war or national disorder she 
 granted extraordinary powers by ordinances, and also granted 
 her officers dispensation from the existing laws. But she 
 made a very moderate use of these powers in cases, for 
 which even the Parliaments of the eighteenth century would 
 not have refused an indemnity bill. She justified reservation 
 to herself of the initiative in the legislation touching internal 
 
 powerful opposition made by the Roman those times, there would beyond doubt 
 Catholic Church be ignored, which, by have resulted only a divided and still 
 means of the Jesuit system, had brought more intolerant church system; a 
 about a great alliance of Catholic " church of the apostolic era," with still 
 princes. The necessity for an external more rigorous principles touching dis- 
 union of the English Church was accord- cipline and ritual. Later results have 
 ingly in no way denied even from this only too completely confirmed this. 
 side. What the opposition demanded Elizabeth was not wrong in replying to 
 was not tolerance, but the exclusive ac- the Emperor Ferdinand " that she could 
 knowledgment of their ideal of church not grant ecclesiastical toleration to 
 establishment, and having attained this those who disagreed with her religion, 
 acknowledgment, it demanded uni- being against the laws of her Parlia- 
 formity just as much as the national ment, and highly dangerous to the 
 Church. A remarkable expression of state of her kingdom, as it would sow 
 the highest views of the time is found various opinions in the nation, and 
 in Hooker's work (" Ecclesiastical would cherish parties and factions that 
 Polity," 1594), which is quoted in might disturb the present tranquillity 
 Hallam. Even Cartwright, in his of the commonwealth." A generation 
 violent opposition to the national was at least yet required, after the 
 Church, demands that the authorities events under Mary, to give the State 
 shall punish atheists and papists if Church the requisite stability in the 
 they refuse to participate in the true institutions of England and the customs 
 preaching of God's word. Had Eliza- of the people, 
 beth given free scope to the dissent of
 
 The Discord within the Political System. 541 
 
 Church matters, by saying that changes in matters of faith 
 ought not to be brought about by resolutions of the majority, 
 and that Parliament had no traditional rights to claim in this 
 province. 
 
 But it lay in the nature of this political government, that 
 such a position did not satisfy many views and interests 
 among the immediate surroundings of the Crown. In the 
 Privy Council, even under Elizabeth, a notion had already 
 gained ground that, in addition to the ordinary prerogative of 
 the Queen, there existed also a " supreme sovereignty," which 
 was also called the absolute power, and from which was 
 primarily derived the legality of extraordinary measures in 
 extraordinary difficulties. The professional bureaucracy was 
 only too ready to look upon every impediment to a govern- 
 ment measure as a " difficulty," which could be redressed 
 by the " supreme sovereignty." Proceeding to still greater 
 lengths such conceptions took root among the clerical officials 
 of the State Church of the time. The new position of the 
 bishops as delegates of the royal power had lost its indepen- 
 dence as an estate. Their highest court, the Court of High 
 Commission, had become purely a body of functionaries, with- 
 out either the concurrent enacting powers or the control of 
 an estate, with an ordinary criminal and disciplinary juris- 
 diction, which is acted and re-acted upon by the machinery 
 of the Star Chamber. The system of these bureaucratic 
 bodies extended still further into great provincial councils. 
 All these courts had adopted the administrative forms and 
 maxims of their ecclesiastical model, that is, of the pure 
 bureaucratic system. It was natural that within this adminis- 
 tration new legal conceptions should be formed. Whilst in 
 Germany the modern bureaucracy was the outcome of new 
 legal doctrines, so here new legal conceptions emanated from 
 the already existing official bodies. They coincided with the 
 old jealousy between Parliament and clergy and with the 
 justifiable aversion of the clergy to be subordinated to Parlia- 
 ment, with its varying party-majorities. Through the daily 
 contact of the spiritual and temporal administration, the 
 conceptions of the authority of a spiritual ruler were involun- 
 tarily transferred to his attitude towards Parliament and the 
 laity. Whilst the era of the Middle Ages had formed its 
 constitutions not by reflection, but according to the sense of 
 right and interests and by tradition, here for the first time, 
 theoretical systems of the royal right arise, which are formed 
 pre-eminently from theological views and theological polemics. 
 The assemblies of the clergy in both Houses of Convocation, 
 became from this time forth the centre of political doctrines 
 of absolutism. After a few decades the clerical conceptions
 
 142 
 
 Constitutional History of England. 
 
 were consolidated in the canones of the Convocation of 1606, 
 which, however, were not yet published. These theses go 
 back to the origin of human government, which they look for 
 in the patriarchal rule over the family as it appears in the 
 Old Testament. "In those golden days," it was said "the 
 functions of the king and priest were the true prerogatives of 
 the right of birth ; until the wickedness of men brought in 
 usurpation and so troubled the clear stream from its sources 
 with foul admixtures, that we must now seek in prescription 
 the right we can no longer ascribe to birth." Deriving thence 
 the doctrine of unconditional obedience to the King's ordi- 
 nances, it proceeds, " The King's power is therefore from 
 God, that of Parliament from men, gained perhaps by re- 
 bellion ; but what right can arise from rebellion ? Or even 
 if it had arisen from voluntary concession, could the King 
 dispose of a gift of God and break the disposition of Provi- 
 dence ? Could his grants, though not void in themselves, be 
 valid as against his posterity heirs like himself of the great 
 gifts of Creation ?" (2) 
 
 (2) The new High Church political 
 theories are directly the reverse of 
 the puritan opposition. Henry and 
 Elizabeth had retained the episcopal 
 dignity, not as a sacred ordo, but as the 
 ordinary organ of Church government 
 approved by experience. But when 
 the puritan school violently attacked 
 the bishops' authority, tlie prelates 
 replied by appealing to their "divine 
 appointment." They then followed 
 puritanism into its own territory, by 
 opposing one jut divinum to the other, 
 .and thus at the same time regained 
 a certain independence from the civil 
 powers. The episcopal office refused 
 to be permanently a mere organ of the 
 civil magistrates. The more the State 
 Church felt itself consolidated the 
 more did its self-respect grow as it 
 remembered tbe former position of the 
 Church. But the goal was only to be 
 attained by a solidarity subsisting 
 between the divine appointment and 
 the Crown, which latter appointed the 
 bishops. After the accession of the 
 Stuart dynasty to the throne it was 
 perceived that the independence of the 
 Church was less threatened by the 
 Crown than by the Parliaments. The 
 clerical absolutist theory had at all 
 times its roots in the wonted profession 
 of the clergy as instructors. The habit 
 of instructing the laity in spiritual 
 things engenders the desire to impart 
 instruction also in temporal things, in 
 
 which the layman understands what is 
 law and right quite as well and even 
 better than the cleric. The demand 
 that the executive should be a 
 " Christian authority," is well founded 
 as being a claim that the State is to 
 obey the commandments of Christian 
 morality, which are one and the same 
 for both Churches, and which should 
 be the mainspring of action in the 
 monarch on the throne as in the 
 servants of the State, as members of 
 then- Church. But it does not mean 
 that in an eternally recurring confusion, 
 the clerical body of either persuasion, 
 with its interests of power, property, 
 and party, should sway and guide the 
 central government. In this connec- 
 tion those ecclesiastical recommenda- 
 tions are instructive, with which since 
 the rise of Parliaments amid severe 
 party - struggles and revolutionary 
 changes, the great parliamentary ses- 
 sions were introduced (such as Stubbs 
 reminds us of in the period of the 
 Middle Ages, and Froude in the Tudor 
 era), and which certainly contain the 
 strongest exhortations to the clergy, 
 not to forsake in their political speeches 
 the domain of universal Christian 
 morality, in order to take immediate 
 part in the constitutional questions of 
 the day. If it was made a reproach to 
 the ecclesiastical opposition, that it had 
 a political background, this was true 
 in still greater measure of the clergy
 
 The Discord within the Political System. 543 
 
 The fate of the monarchy and the national constitution 
 depended upon the attitude which the dynasty, that came in 
 with the seventeenth century, adopted with reference to these 
 new theories. As the English Reformation had passed from 
 external institutions into the hearts of men, the intellectual 
 conflict of Puritanism with the High Church system, and the 
 struggle of the High Church system with Puritanism were 
 destined to return to do battle in the temporal State. The 
 Stuarts, by taking part with one extreme, themselves drove 
 the other side to resistance, until the King's rule was over- 
 thrown. The Eeformation began in England in the sixteenth 
 century with an external alteration of the ecclesiastical con- 
 stitution; it concluded in the seventeenth century with an 
 alteration in the political constitution. The controversy 
 touching the fundamental doctrines of Christianity (such as 
 transubstantiation) had never in England been very bitter. 
 The strife was more heated as to the liturgy and ceremonial. 
 In a fiery form and with a tendency towards violence, it 
 maintained itself in questions touching constitution and power, 
 where the self-government of the Church and the parish 
 clashes with the supremacy and the Court of High Commission, 
 and where the general priesthood opposes the bishops. The 
 English people also have not been exempt from a doctrinal 
 civil war; but the State Church is finally indebted to the 
 passionate violence of the sects for the completion of her 
 internal life, which, in the German Eeformation, existed from 
 the outset. 
 
 of the State Church, in whom solid James the First's accession to the 
 zeal for the holy Church now became throne (cf. Cowell's Interpreter, 1607, 
 a holy zeal for the secular power of the under the head of King). The great 
 head of the Church. Similarly in the indignation, which arose in conse- 
 bureaucracy of the German princi- quence in Parliament, was calmed by 
 palities, we find underlying the ex- au ordinance of James I., which pro- 
 aggerated zeal for the power of the royal hibited this pamphlet. As to the pro- 
 lord, a quiet zeal for the enhanced gress of these absolutist theories of the 
 importance of their own rank. The clergy after another generation, cf. the 
 purely absolutist ideas of the royal canones of 1640, and the treatise of 
 power appeared manifest in the pam- Filmer (infra 548, note) 
 phlets of the times immediately after
 
 5 44 Constitutional History of England. 
 
 CHAPTEK XXXVIII. 
 OConfltct of tfje gjure Btbt'no Jttonaufjg fottb titf Sstatts. 
 
 IN this critical state of affairs the house of Stuart ascended 
 the throne, at a time when, upon the Continent, parlia- 
 mentary constitutions were everywhere coming to an end. 
 That the same result was averted in England is attributable 
 not to the personal character of the Stuarts, and not to the 
 absence of a standing army, but to the legal equality and 
 cohesion of the estates, to self-government, and to the whole 
 substructure of the English constitution. In France, the 
 monarchic power had by its personal influence first to create 
 a " state " and a " nation." In Germany, it was the task of 
 the absolute potentates to blend the several class privileges 
 together into a bare unity. In both countries, the history 
 and the greatness of the monarchy was identical with the 
 struggle against the landed nobility which in England had 
 been already decided in the Norman period. In the lower 
 stage of her development in the eleventh and twelfth centuries, 
 England had passed through the necessary transition period 
 of the absolute State. The strengthening of the royal power 
 under the Tudors was brought about solely by the confusion 
 of the fifteenth century, and was destined only to carry out 
 the national task of the Eeformation. After the discharge of 
 this mission, the English monarchy was and remained still 
 a power in itself. It still remained the necessary presup- 
 position of the constitution, the hereditary bearer of the 
 supreme magisterial power, the source of all the privileges of 
 the higher classes; with great duties as the patron of the 
 rising peasantry and the towns, and with still greater duties 
 for raising the labouring classes and the intellectual life, and 
 in the foreign department entrusted with the great duty of 
 intervention for the imperilled Protestant cause in Europe. 
 
 But the royal family of the Stuarts had no innate feeling 
 for any of these several duties. Till their time, the history 
 of England had shown the monarchic power almost from 
 generation to generation alternately ascending and descend- 
 ing ; now the descending tendency is seen throughout a 
 whole dynasty, during a period of three generations. Scarcely
 
 The Jure Divino Monarchy and the Estates. 545 
 
 any family of rulers ever sat on the throne that showed itself 
 so entirely devoid of all sense of royal duty. Their views and 
 mode of action had practically nothing in common with the 
 character of the English monarchy and the English people, 
 but belong to the domestic policy of the family of the Guises 
 and the religious controversies of Scotland. The Stuarts cared 
 no longer for the glory and the greatness of their country, for 
 the victory of the established faith of the nation, for the 
 protection of the traditional common law, nor for the relief 
 and advancement of the weaker classes but only for the 
 satisfaction of their dynastic will. All aims of this royal 
 race both externally and internally are mistaken. The repre- 
 sentation of Protestantism in the great struggle of the century 
 was their external task ; but the Stuarts first neglected, and 
 finally disowned it. The reconciliation of the claims of the 
 clerical profession with the opposing spirit of self-government, 
 the strengthening of the national Church, while yet main- 
 taining tolerance towards other creeds, was the internal task 
 which the Stuarts persistently perverted. England had, as 
 a fact, become the antipodes of the whole Koman system. Its 
 European position unequivocally pointed to an energetic de- 
 velopment of its maritime power and to a vigorous champion- 
 ship of the cause of the Reformation. Instead of this, James 
 I. became entangled in the net of intrigues of the Continental 
 courts, which was of only secondary importance for England, 
 a net which ought to have been torn asunder by an honest 
 championship of the Reformation. The pedantic perverseness 
 of James I. and the aimlessness of Charles I., could not fail 
 to injure and embitter their relation to their Parliaments. In 
 spite of all the difference in their characters, a negative trait 
 pervades the reigns of all the Stuart kings ; it is the want 
 of appreciation of, and respect for, the law of the land. 
 No one of them ever felt himself as representing "England," 
 as identified with the honour, the rights, and the interests of 
 the country. Even their religious convictions were not mani- 
 fested in a sincere atta/chment to their national Church, in 
 faithful observance of the oaths they had taken, nor in the 
 exercise of any Christian duty of pardon and grace ; but only 
 as controversial weapons for establishing their dynastic pre- 
 tensions. The Church in their eyes is only a source of regal 
 influence. Their pretended attachment to the nobility of the 
 country merely displays itself in a money traffic for peerages 
 and titles. All noble and systematic provision for the relief 
 of the poor, for education and the advancement of the welfare 
 of the lower classes, all generous encouragement of talent and 
 the sciences ceases with the Stuarts. And if we add to this 
 their want of talent as military leaders, their incapacity to 
 
 2N
 
 546 
 
 Constitutional History of England. 
 
 enter upon any great and permanent political combination, 
 it will be easy to understand how it was possible, in less than 
 a century to destroy the belief of the nation in the kingly office.* 
 
 The first stage in the beginning of the struggle is certainly 
 more like one of those comic scenes, such as in the dramatic 
 masterpieces of Shakespeare precede a tragic issue. In James 
 I. a learned pedant had ascended the throne, unkingly in 
 bearing, manners, and speech, one who seemed to regard the 
 proceedings in the Church and in Parliament as mere rhe- 
 torical exercises, in which absolute supreme sovereignty should 
 be taught to unbelievers by ratiocination; and withal timidly 
 retiring before the first signs of serious resistance, and sacri- 
 ficing his ministers to the vengeance of Parliament. His 
 whole reign is a weak succession of protests, which did not 
 prevent Parliament from re-establishing the right of impeach- 
 ing the officers of the Crown, declaring monopolies illegal, and 
 enforcing in the Lower House their awn decision respecting 
 elections.** 
 
 But what James the First's " kingcraft " failed to accomplish, 
 led to a decisive struggle under Charles I. The encroachments 
 of the jure divino monarchy, are all directed simultaneously to 
 
 * The dynastic character of the 
 reign of the Stuarts is unmistakably 
 traceable to their origin. "In the 
 princes of the house of Stuart we see 
 little of the sober Gothic honesty of 
 the lowland Scot, much of the vanity, 
 unsteadiness and insincerity natural to 
 the Italian -and Gallic stock from 
 which they came" (Vaughan, iii. 13). 
 In their later domestic policy, which 
 wavered between Spanish and French 
 alliances, it is perhaps most of all 
 their genealogical vanity which makes 
 them swerve from the natural alliance 
 with the Protestant houses. Their 
 attitude with regard to theological 
 questions, was in the first generation 
 determined by the embittered character 
 of tbe Scotch Keformation. Their later 
 leaning towards Catholicism was in 
 great measure brought about by female 
 influence resulting from their constant 
 alliance with Catholic houses. But 
 the real reason, which caused historians 
 and politicians of every shade of 
 opinion to side against the Stuarts, 
 is the systematic perversion of the 
 monarchical principle in their hands. 
 It is a point often overlooked, that 
 many of their measures were more in 
 harmony with the letter of the law 
 than is assumed according to the stand- 
 point of the present constitution not 
 unheard of pretentious, but an advance 
 
 upon the road which the Tudors had 
 trodden. But whilst the Tudors acted 
 in a dictatorial manner in the full con- 
 sciousness of their royal duties, the 
 Stuarts insist on enforcing their per- 
 sonal will out of mere idle egotism. 
 
 ** James I. was possessed of the 
 genealogical crochet which induced 
 the son of Mary Stuart and Darnley 
 to believe that he united in his person 
 the hereditary monarchy of the Anglo- 
 Saxon dynasty, the Norman kings, the 
 Plantagenets, and the Tudors. Much 
 as his aversion to Puritanism and the 
 insipid theological controversies of the 
 period, which resulted from the Scotch 
 religious conflicts, may tell in his 
 favour, yet the decidedly unkingly 
 bearing of this monarch ultimately 
 tended to shake the royal authority. 
 The learning which is displayed in his 
 writings, as in the " Basilicon Doron " 
 (intended for his son), in his works 
 upon sorcery, the exorcism of devils, 
 etc., -an unmistakable penetration, 
 almost cunning, and at the same time 
 a want of sound judgment as to the 
 affairs which surrounded him, form a 
 marvellously confused character in 
 this curious man, whom his admirers 
 called "The British Solomon," and 
 whom the Due de Sully designated 
 " the wisest fool in Europe."
 
 The Jure Divino Monarchy and the Estates. 547 
 
 the one practical and decisive point, the abolition of the parlia- 
 mentary grants of subsidies. These periodical money grants 
 presupposed a constant understanding between the Crown and 
 Parliament touching acts of legislation and foreign policy, 
 with which an absolute monarchy was quite incompatible. 
 The opposition of his first two Parliaments, and their refusal 
 to grant subsidies, was met by Charles I. by prompt dis- 
 solution, and by the issue of ordinances to intimidate the 
 opposition. The Star Chamber is made use of for compulsory 
 loans, which were moreover extorted by compulsory billeting 
 of soldiers, the forcible pressing of sailors, and arbitrary 
 arrests. The increasing opposition has, however, soon reached 
 the stage at which intimidation is no longer effectual. The 
 King is compelled by pecuniary necessity to summon a third 
 Parliament, and in this is constrained by the united opposition 
 of both Houses to acknowledge the " Petition of Eight," and 
 to approve the declaratory statute (3 Charles I. c. 1), which 
 pronounces all forced loans, arbitrary arrests, and proceedings 
 by martial law as unlawful both in the past and for the 
 future.*** Up to this point the conflict has retained the cha- 
 racter of former periods ; administrative abuses and national 
 grievances still continue in the grooves of the old struggles 
 between the monarchy and Parliament. 
 
 But the King, with the intention of not keeping his word, 
 after obtaining his subsidy, dissolved Parliament, firmly 
 resolved never again to convene a Parliament. " Ashamed 
 that his cousins of France and Spain should have accom- 
 plished a work which he had scarcely begun," he commenced, 
 from March, 1629, a system of personal government, quite 
 new to England, a system which deliberately attacks the 
 foundations of the parliamentary constitution, and introduces 
 new departures into the ecclesiastical and temporal adminis- 
 tration, with the fixed purpose of systematically destroying 
 them. The three weapons ready to hand were, the royal 
 ecclesiastical government, the Privy Council, and the appoint- 
 ment of law officers. 
 
 1. The royal ecclesiastical government had placed the ap- 
 pointment of the supreme ecclesiastial tribunal and of the 
 bishops in the hands of the King for the maintenance of the 
 national Church in the form recognized by Act of Parlia- 
 
 *** The four points of the Petition law of the land ; (3) that soldiers or 
 
 of Right are : (1) That no freeman sailors shall not be quartered upon 
 
 shall be compelled to pay any gift, private houses ; (4) that certain regula- 
 
 loan, benevolence or tax, without the tions touching the punishment of 
 
 consent of the representatives of the soldiers and sailors according to 
 
 nation as declared by acts of Parlia- martial law shall be repealed, and such 
 
 ment ; (2) that no freeman shall be shall not be issued for the future, 
 imprisoned or arrested contrary to the
 
 548 
 
 Constitutional History of England. 
 
 merit. Under James I. the time had arrived when the Church 
 stood no longer in need of that over-rigorous uniformity 
 which, under Elizabeth, had appeared essential to its stability. 
 James I. did not attempt to disguise his idea that the insti- 
 tution of bishops and the episcopal power were pre-eminently 
 designed to accustom subjects to the obedience they owed 
 to their sovereign and to keep them steadfast in it. Charles 
 I., although a Protestant in his personal belief, imagined that 
 he could achieve the development of his spiritual supremacy 
 into temporal absolutism most readily by a return to the 
 standard doctrines and forms of the Eoman Catholic hierarchy. 
 This was the object of the Catholicizing reforms of Archbishop 
 Laud, the return to the doctrine of transubstantiation in an 
 ambiguous phraseology, auricular confession, preference of 
 unmarried to married priests, revival of picture- worship, of 
 the crucifix, of gorgeous vestments, of the sacramental altar, 
 and of genuflexions, combined with intolerable vexation and 
 persecution of the puritan sects. By the systematic ap- 
 pointment of men of this tendency to the high places in the 
 Church, the royalist hierarchy and the ecclesiastical spirit of 
 caste was carried to the pitch which is aptly expressed by the 
 canones of the Convocation of 1640. (1) 
 
 <1) The perversion of ecclesiastical 
 government to political purposes is ex- 
 pressed in James's motto : " No bishop, 
 no King." From the year 1595 the 
 dissenting body had become known 
 under the party name of Sabbatarians, 
 and under James I. the sects had 
 attained considerable proportions. Still, 
 however, a consciousness of a funda- 
 mental schism in the political system 
 as a whole did not exist. The collision 
 of the two systems took place in more 
 special departments, particularly in 
 the increasing complaints of the eccle- 
 siastical party as to the frequent in- 
 terference of the temporal courts with 
 ecclesiastical jurisdiction by means of 
 prohibitions. In 1616 the conflict arose 
 between the Equity Courts of the 
 Chancellor and the courts of common 
 law. In this period the conflict became 
 a class struggle between the clergy 
 and the lawyers. Under Charles I., on 
 the other hand, the ecclesiastical power 
 no longer serves the Eeformation, but 
 the extension of royal powers against 
 the Parliament. The Church, which 
 under Archbishop Laud had become 
 Arminian, became the instrument for 
 extending at once the power of the 
 King and of the clergy. The increas- 
 ing rigour of the Court of High Com- 
 
 mission, the persistent persecution of 
 the Puritans, engendered that amount 
 of bitterness which in the course of 
 the civil war bursts forth in this direc- 
 tion. It would seem a special in- 
 tervention of Providence that in every 
 constitutional conflict it is the most 
 extreme party that is destined to 
 undertake the formation of a counter 
 party. In that most disastrous moment 
 when Charles I. on the 5th of May, 
 1640, dissolved the moderate " Short 
 Parliament," the ecclesiastics remained 
 assembled to enact those canones which 
 declare "every assertion of an indepen- 
 dent co-active power besides the royal 
 power to be high treason." The real 
 standard of the High Church theories, 
 however, was just at this time the 
 pamphlet of Filmer, " Patriarcha," 
 which was regarded as the keystone of 
 the system. All government, he urges, 
 is absolute monarchy. No man is born 
 free, and in consequence no one can 
 have had the liberty to choose a ruler 
 or a form of government. The pater- 
 familias rules according to no other 
 laws than his own. Kings succeed by 
 right of their parents to the exercise of 
 the highest jurisdiction. They are 
 above all law. They have a divine 
 right to absolute power, and are not
 
 The Jure Divino Monarchy and the Estates. 549 
 
 2. The Privy Council was destined to sit in banco, and 
 with the assistance of the common law judges to conduct the 
 highest business of Government according to the laws of the 
 land, and to supplement these laws in all discretionary points, 
 where the exercise of the sovereign rights was not determined 
 by law, so as to do justice to the extraordinary needs of the 
 State and of society. For the Stuarts these discretionary 
 powers were the fulcrum by which the constitution was to 
 be lifted off its hinges. With this idea the ministers from 
 Buckingham to Strafford proceed in an increasing scale until 
 the utterly unprincipled tyranny, and insolent trampling down 
 of the laws of the land, which characterizes the renegade 
 policy of Strafford is reached. As the domestic policy of the 
 dynasty met with a conceivable impediment in the corporate 
 nature, in the deliberate procedure of the council, and in its 
 legal advisers, James I. had begun to thrust the troublesome 
 apparatus on one side by discharging State business in the 
 King's " cabinet," that is, in small confidential sittings, in 
 which the counsels of the courtiers (his immediate com- 
 panions) at once became of more paramount influence than 
 those of the responsible ministers. It is the body thus con- 
 stituted that now, under the name of a royal council, exercises 
 the discretionary powers of the " Star Chamber," powers 
 which had been created for quite different, for legitimate and 
 honourable ends. From this starting-point proceed the police 
 measures, which were necessary for the new system of rule, 
 and which as the opposition increased, became a complete 
 system of banishments, house searchings, seizures, and refusal 
 of the habeas corpus. From this centre that method of govern- 
 ment was developed, which, to use Clarendon's expression, 
 " commands by ordinances what was not commanded by law; 
 forbids what was not forbidden by law, and then again 
 punishes disobedience to the ordinances by heavy fines and 
 imprisonment." (2) 
 
 responsible to any human authority. nance which decrees the ship-money 
 It was, however, considered advisable proceeds from the council. Financial 
 not to issue this pamphlet in print sagacity revives even the old-fashioned 
 until after the Restoration. fines for failure to take up the honour 
 (2) The transformation of the Privy of knighthood, and the old forest laws 
 Council is the outcome of a systematic themselves in order to open up new 
 combination of the right of issuing sources of revenue. In contravention of 
 ordinances with administrativecoercion. the statute of James I. monopolies were 
 In fact a new legislation has been made a new source of income, as was 
 created which does not concur with but also the incorporation of the wealthiest 
 destructively opposes the legislation of trades into guilds. The ordinances 
 the country and the parliamentary con- even invaded purely private rights, by 
 stitution. The state of affairs which pulling down houses and shutting up 
 existed in the Norman period returns, shops for the purpose of embellish- 
 in which the royal power of inflicting ing the surroundings of St. Paul's 
 police fines by amerciaments actually Cathedral, 
 leads to a legislative power. The ordi-
 
 550 Constitutional History of England. 
 
 8. The selection of law officers by royal appointment from 
 among the leaders of the legal profession \vas intended to 
 render the administration of the permanent part of the legal 
 system independent of the temporary political system. This 
 royal right had hitherto been exercised in such a dignified 
 and impartial manner, that all the dynastic changes of the 
 fifteenth century, and all the religious changes of the six- 
 teenth century passed by without any change in the nature 
 of the judicial body. Under James I., political motives, for 
 the first time, dictate the dismissal of a Lord Chief Justice 
 (Sir Edward Coke), and a shameless system of the sale of 
 judicial offices appears, which shakes the honourable character 
 the bench had gained under the Tudors. Under Charles I. 
 this appointment to the judicial offices becomes a political 
 system. As early as the year 1626, Chief Justice Crewe was 
 dismissed for refusal to acknowledge the legality of enforced 
 loans; in 1630 the Chief Baron, Walter, was suspended because 
 he disputed the legality of a proceeding taken against members 
 of Parliament on account of acts, and speeches in the House ; 
 in 1634, Sir Kobert Heath was similarly treated for his op- 
 position to the ship-money and to> Archbishop Laud. His 
 place was taken by Chief Justice Finch, a man on whom the 
 court could depend. The small number of judicial offices 
 which were of consequence were filled with "men of con- 
 fidence " in such a way, that the time soon came in which no 
 constitutional principle and no law could be upheld when 
 subjected to the interpretation of the judges holding office. 
 In the counties, the appointment of the sheriffs and the 
 formation of the commissions of justices of the peace was 
 conducted on an analogous system. (3) 
 
 (3) The perversion of the position because he had opposed the interests 
 
 of the courts of justice begins as a of the King, which example would keep 
 
 dynastic feature contemporaneously the others more in dread." Ellesmere 
 
 with the accession of the Stuarts. was directed to postpone an action 
 
 James I. declared to his judges that against an accused individual, " because 
 
 he would himself decide legal questions, he has shown himself in the House of 
 
 as he had been told that law depended Parliament very zealous in our service" 
 
 upon reason, and he was as well (Foss, vi. 2). Under James the prin- 
 
 furnished with reason as his judges. ciples were, however, always worse 
 
 He often insisted upon a personal con- than their application, for which both 
 
 ference with the judges before they courage and consistency were lacking, 
 
 passed judgment "auricular taking The shameless sale of judicial appoint- 
 
 of opinions," as Lord Coke described it. ments, as those of the Attorney-General 
 
 Among his advisers there were even at and the Serjeants, for which sums of 
 
 that time supporters of the supreme 10,000, 4000, and the like, were 
 
 sovereignty, who advised him to make offered and accepted, was most per- 
 
 an example of a judge for his audacity, nicious (Foss, vi. 3). Under Charles I. 
 
 by which the whole body would be the " strong rule " begins in this 
 
 kept in wholesome dread. One of department. Not the laws of the land, 
 
 these was the same Lord Bacon, who but the personal will of the King was 
 
 afterwards urged the deposition of Chief to be the rule of the courts. Thus 
 
 Justice Coke " as a kind of discipline, came about the inconsiderate dismissal
 
 The Jure Divino Monarchy and the Estates. 551 
 
 With this apparatus of coercive measures, Charles I. now 
 set himself to abolish the three fundamental rights of Parlia- 
 ment, which stood in his way. 
 
 The chief point was the abolition of the financial rights of 
 Parliament. James I. had attempted to apply his theory 
 of supreme sovereignty to the imposition of new taxes, but 
 had afterwards given way. This attack was now again 
 seriously renewed with that ship-money, which has become 
 world-renowned. Former kings, relying on their military 
 sovereignty, had, occasionally in time of war, raised contribu- 
 tions in money for the defence of the coasts of coast-counties. 
 These were now made use of, in a time of peace, for the 
 imposition of a money contribution upon all coast and inland 
 counties, which was to be levied by the King in council, 
 distributed among the counties and cities, and employed for 
 the general purposes of State. It was required to raise a 
 round sum of 200,000 in taxes, which amounted to quite as 
 much as the subsidies that were ordinarily granted. The 
 way was paved by the unanimous opinion of the twelve judges 
 being previously obtained, and afterwards, when the case had, 
 by Hampden's refusal, been brought to. a judicial decision, a 
 majority of the judges again declared for the legality of the 
 tax, even in judicando. This was the centre of the attacks 
 upon the constitution of Parliament and the turning-point 
 of the constitutional conflict, because it proved to the meanest 
 understanding the latest tendency of the Government, and the 
 systematic corruption of the courts. Even that high royalist, 
 Lord Clarendon, expresses himself upon this point as follows : 
 " But when they saw in a court of law (that law that gave 
 them a title to and possession of all that they had) reason of 
 State urged as elements of law, judges as sharp- sighted as 
 secretaries of State, and in the mysteries of State ; judgment 
 of law grounded upon matter of fact, of which there was 
 neither inquiry nor proof ; and no reason given for the 
 payment of the thirty shillings in question, but what included 
 the estates of the standers-by ; they had no reason to hope 
 that doctrine, or the promoters of it, would be contained 
 within any bounds. And here the damage and mischief 
 cannot be expressed that the Crown and State sustained by 
 the deserved reproach and infamy that attended the judges ; 
 there being no possibility to preserve the dignity, reverence, 
 
 and suspension of the opposing Judges, Lord Chief Justice. On the occasion 
 
 the appointment of " men of con- of the granting of the Petition of Right, 
 
 fidence " to the small number of impor- the justices who were privately con- 
 
 tant offices ; for instance, Sir John suited were of opinion that the bill 
 
 Finch, on account of his approved might be allowed to pass, and the 
 
 behaviour as speaker of the Lower Government continue the same prac- 
 
 House, was appointed to the office of tices as heretofore 1
 
 552 
 
 Constitutional History of England. 
 
 and estimation of the laws themselves, but by the integrity 
 and innocency of the judges." After this judgment the 
 moneys that were still needed were raised by supplementary 
 ordinances, (a) 
 
 The legislative power of Parliament had its vulnerable point 
 in the loosely denned province of the ordinances (p. 507), 
 which form binding administrative rules, not indeed in con- 
 tradiction to parliamentary statutes, yet co-ordinate with them. 
 But so soon as Parliament was no longer convened, and an 
 administrative executive was formed by the Star Chamber, 
 every barrier was broken down. The police and financial 
 measures of the Government were now carried still further by 
 a progressive chain of ordinances, which fix the prices 01 
 provisions, regulate the incorporation of merchants and 
 traders on payment of large sums of money, and open up 
 other sources of revenue; they are supplemented in this 
 matter by the police system of arrests and banishments. 
 The unreasonably severe fines inflicted by the Star Chamber 
 became also an immediate source of revenue. The system of 
 
 (a) The principal service which was 
 demanded from the judges in the con- 
 stitutional struggle was the recognition 
 of the legality of ship-money. The 
 twelve judges were first of all assembled 
 under 8ir John Finch, and (according 
 to their own statements) were, under 
 threats and promises, induced to deliver 
 the opinion " that when the good and 
 safety of the kingdom in general is 
 concerned, and the whole kingdom in 
 danger, his Majesty might, by writ 
 under the great seal, command all his 
 subjects, at their charge, to provide 
 and furnish such number of ships, with 
 men, munition, and victuals, and for 
 such time as he should think fit, for 
 the defence and safety of the kingdom ; 
 and that by law he might compel the 
 doing thereof, in case of refusal and 
 refractoriness ; and that he was the sole 
 judge both of the danger, and when 
 and how the same was to be prevented 
 and avoided." Only two judges dis- 
 sented, but they were at last induced 
 to sign the judgment. These judges 
 were informed by Lord Went worth 
 " that it was the greatest service that 
 the legal profession had rendered the 
 Crown during this period." By a royal 
 order, under the great seal, the sheriffs 
 were instructed to burden every county 
 with the duty of providing a ship. 
 The county of Bucks, for example, in 
 which Hampden resided, has to furnish 
 a ship of war of 450 tons, with 180 
 men, cannons, powder, double rigging, 
 
 provisions, and all necessaries. This 
 ship is to be brought to Portsmouth by 
 a certain day, and from that time on 
 for twenty- six weeks to be kept in 
 provisions, pay, and all necessaries, at 
 the expense of the county. But as no 
 such equipment of a ship was really in- 
 tended, the sheriff was further ordered, 
 with the assistance of the mayors, to 
 assess the requisite moneys upon the 
 several freeholders and burgesses, and 
 to hand in the assessment lists. In 
 cases where payment is refused execu- 
 tion was ordered and carried out with 
 the greatest rigour. The mass of the 
 population submitted to the violent 
 measures of the Star Chamber. Only 
 John Hampden, by refusing to pay 
 the tax, brings the question to an issue 
 before the courts of common law, 
 this time before the full bench of 
 Exchequer Chamber. In giving their 
 decision in this judicial case the judges 
 felt some scruples ; for fully three 
 months they considered and argued the 
 matter. Finally, seven judges gave 
 their decision in favour of the Crown, 
 while Croke and Button decided the 
 principle in Hampden's favour, and 
 the remaining three judges sided with 
 the latter for formal reasons. The moral 
 effect of this event was decisive as to 
 the course of the civil war. The history 
 of the ship-money is told in detail in 
 Kushworth, ii. 335, 344, 352, 364, 453, 
 480-605, 727, 975, 985, 991, 1395, and 
 App., 159-225, etc. ; cf. Hallam, ii. c. 8.
 
 The Jure Divino Monarchy and the Estates. 553 
 
 ordinances directed against refusals to pay illegal taxes, 
 against unfavourable verdicts of juries, and against unfavour- 
 ably regarded members of Parliament, combined with the 
 Star Chamber, silences for a time all opposition. (b) 
 
 The right of controlling the executive, and the right of im- 
 peaching ministers, was at length simply got rid of by not 
 summoning a Parliament. To the other errors of Charles I. 
 was added an entire failure to appreciate the elements of 
 resistance. At court least of all was the decisive weight which 
 the Commons now threw into the balance of political power 
 understood. The history of England could till that time show 
 no instance of any great movement which had emanated from 
 the Lower House. Both corporately and individually the 
 commons only appeared to the royal Government as elements 
 of a second order, whose perversity could be silenced by 
 simple means. As a blow for the intimidation of the oppo- 
 sition, at the close of the third Parliament, a judicial action 
 was commenced against Sir John Elliot and two other 
 members of Parliament on account of their speeches in Par- 
 liament, after the judges had been previously summoned 
 together by a royal cabinet missive to give their opinion upon 
 the questions of the Attorney-General relating to the case. 
 In consequence of this opinion, information was laid in the 
 King's Bench, which ended with a condemnation by the same 
 court to a heavy fine and imprisonment. Elliot died in 
 prison, (c) 
 
 The principal author and adviser of this new "vigorous" 
 government was, next to Archbishop Laud, pre-eminently 
 Wentworth, Earl of Strafford, who with the fiery zeal of the 
 political renegade, and with his motto, "thorough," applied 
 to England those principles that had been satisfactorily tried 
 
 (fe) The illegal ordinances were en- found in this a matter for regret because 
 forced by the penal decrees of the Star ecclesiastical discipline could not pur- 
 Chamber, by arrests and police con- sue the emigrants. An ordinance pro- 
 straint. Besides fines and imprison- hibited further emigration, 
 ment the Star Chamber now decreed (c) Next in importance to the judg- 
 the pillory, corporal punishment, and meuts in Hampden's case it was the 
 cutting off the ears. Only sentences of previously delivered judgment of the 
 death and! confiscations were reserved King's Bench upon Sir John Elliot, 
 to the ordinary courts of justice. The Denzil Holies, and Benjamin Valentine, 
 penal jurisdiction of the Star Chamber on account of their speeches in the 
 is, however, also an immediate source Lower House, which proved the corrup- 
 of revenue through pecuniary fines of tion of the courts in ordinary and 
 20,000, 10,000, and 5000, which are everyday legal questions, and with it 
 now ordinary phenomena. The total the cessation of Government according 
 amount of them was computed by con- to law (May, " Parl. Practice," i. c. 4). 
 temporaries at the incredible sum of Contemporary writers all unite in re- 
 6,000,000 (Kushworth, ii. 219). Fifty marking that from the moment these 
 thousand emigrants left their native judgments were delivered public feel- 
 land in consequence of this oppression. ing in the country inclined to decided 
 The King and Archbishop Laud only resistance.
 
 554 Constitutional History of England. 
 
 in Ireland. By appointing the sheriffs and justices of the 
 peace according to a party system, by corrupting and intimi- 
 dating the municipal governments by the administrative 
 penal jurisdiction of the Star Chamber, and in urgent cases 
 by the employment of courts-martial, it was hoped to be able 
 to overcome all opposition in the counties. This certainly 
 involved an utter misconception of the substructure of the 
 English constitution, of that union of the military, judicial, 
 police, and financial administration with the county and 
 municipal government. With the legal formation of the 
 national militia, and with the office of magistrate and jury 
 as necessary organs of the courts and the police,, a system 
 which presupposed an army of paid military and civil officers 
 entirely dependent upon the Government was impracticable. 
 The increasing opposition of the officers of local government, 
 rendered independent by property, and the want of immediate 
 executive officers, was sure in a very brief period to disarm 
 both coercive administration and enforced taxation. Con- 
 fronted with the barely organized elements of a standing 
 army, the decayed national militia was yet too powerful to 
 be met on equal terms. Sheriffs and magistrates might be 
 deposed and appointed ; but they had still to be taken from 
 the district of the county itself, in which an illegal method 
 of government was felt in quite another way than it would 
 be in a professionally disciplined bureaucracy. It w r as owing 
 to this cause, that the storm against the parliamentary 
 constitution, which began in the centre, slowly abated in the 
 counties, in which the reliable instruments of despotism were 
 wanting. It was once more the communal system which 
 saved English liberty, from being overwhelmed by the despotic 
 administrative system. A quiet but unconquerable opposition 
 lay in the cohesion of the propertied classes, in the strong 
 structure of the English county, and in its now firm union 
 with the municipal and parochial bodies. The resources of 
 the system became exhausted, the necessities of war and the 
 Scotch insurrection forced the King after eleven years once 
 more to call a Parliament; first of all the so-called "Short 
 Parliament," which after a few weeks was frivolously dis- 
 missed, but only to make way shortly afterwards for the 
 " Long Parliament " that met on the 3rd of November, 
 1640. 
 
 The measures of the Parliament are directed successively 
 against the specific abuses of the supreme powers, and ac- 
 cordingly assume a retrograde action against the three abused 
 organs of the royal power : 
 
 1. Against the corruption of the tribunals: by declaring 
 ship-money illegal, and by cancelling the judgment against
 
 The Jure Divino Monarchy and the Estates. 555 
 
 Hampden; the judges who had taken part in these doings 
 were put on their trial, t 
 
 2. Against the Privy Council : Strafford was impeached of 
 high treason, and characteristic enough of the morality of 
 such a bureaucracy the twelve judges give a verdict of high 
 treason though the case was doubtful, against the leading 
 minister, to whose bill of attainder and execution, the King 
 also, as cowardly as he was selfish, gave his consent. But, 
 for all future times, the administrative, penal and civil juris- 
 diction of the Privy Council, as well as all the accessory 
 institutions of the Star Chamber, were swept away by Act of 
 Parliament. The stat. 16 Charles I. c. 10 categorically 
 declares, "that neither his Majesty, nor his Privy Council, 
 have or ought to have any jurisdiction, power or authority, by 
 English Bill, petition, articles, libel, or any other arbitrary 
 way whatsoever, to examine or draw into question, determine 
 or dispose of the lands, tenements, hereditaments, goods or 
 chattels of any of the subjects of this kingdom; but that the 
 same ought to be tried and determined in the ordinary courts 
 of justice, and by the ordinary course of law." To erect a 
 rampart against the abolition of Parliament by systematic 
 refusal t0 summon the Houses, the so-called Triennial Act 
 declared the summoning of a Parliament to be obligatory after 
 an interval of, at most, three years. The vexatious use, which 
 Charles I. made of his prerogative of dissolving Parliament, 
 is replied to by Parliament with the momentous resolution, 
 which declared the present Parliament to be indissoluble 
 without its own consent ; even prorogation and adjournment 
 might only take place by Act of Parliament.ft 
 
 t The Long Parliament replies to with the truth. In the course of the 
 
 the corruption of justice with, an im- trial a grave doubt arose, whether ac- 
 
 peachment of high treason against the cording to the letter and the application 
 
 Lord Keeper Finch and the six judges of the laws relating to high treason, 
 
 who took part in the case, one of whom such a proceeding fell under the idea 
 
 was even arrested upon the judicial of treason against the royal person or 
 
 bench in Westminster Hall. A like not, seeing that everything had been 
 
 resolution passed in both Houses lays done in pursuance of the order, or at 
 
 down for the future, that the judges all events with the sanction of the King, 
 
 shall be appointed for life, "quamdiu In former criminal cases the actual 
 
 e bene gesserint." will of the King had been distin- 
 
 tt There exists no other sanction guished from the legal will ; the first 
 
 which public law can employ against of these had not been a protection to 
 
 an unconstitutional abuse of the right the ministers for the violation of the 
 
 of decreeing, but the impeachment of latter. But the application of the 
 
 ministers. The Lower House, accord- penalty of high treason to cases of this 
 
 ingly, proceeded as boldly as it did description was quite as novel as the 
 
 consistently to an impeachment of conduct of Charles I. himself. The 
 
 Archbishop Laud and the Earl of advice of the servile judges waa ac- 
 
 Strafford for high treason. The accu- cordingly obtained, and, without one 
 
 sation declared there had been an " at- dissentient voice, their reply ran " that 
 
 tempt to subvert the fundamental laws upon the articles of accusation proved 
 
 of the land," and this was consistent against him, Strafford had rightly in-
 
 556 Constitutional History of England. 
 
 8. Against the abuse of the ecclesiastical power was directed 
 the abolition of the Court of High Commission, which was 
 similarly abolished for all time by stat. 16 Charles I. c. 11. 
 This is immediately followed by the impeachment of the twelve 
 bishops. It was further resolved on the first of September, 
 1642, by the Lower House, nemine contradicente : that the 
 government of the Church by archbishops, bishops, their 
 chancellors and commissioners, deans and chapters, arch- 
 deacons, and other ecclesiastical officers, was, by long experi- 
 ence, found to be a great hindrance to the complete reforma- 
 tion and the growth of religion, and a very great hindrance 
 to the State and the Government of the realm, and that the 
 House accordingly resolved to abolish it. Shortly afterwards 
 an ordinance to this effect was issued, and the Church pro- 
 perty was sequestrated in favour of the Commonwealth. In 
 due course there follows the condemnation and execution of 
 Archbishop Laud.ftt 
 
 Charles I. had given way to these strong but consistent 
 measures. The Petition of Eight (3 Charles I.), and the 
 statutes 16 Charles I. have, in actual fact, the importance of 
 a second Magna Charta. The constitutional struggle had 
 now reached a stage which in the Middle Ages was usually 
 concluded with a treaty of peace, with solemn compacts on 
 oath under the guarantee of the Church. But it was soon 
 manifest that a compact of this description to suit both sides 
 could no longer be obtained. The dissensions between the 
 King and the Parliament become more and more intense. 
 The ill-considered attempt of the King to arrest in person five 
 members of the opposition in the Lower House, and the dis- 
 pute as to the command of the militia, give the signal at the 
 commencement of the year 1642 for both parties to appeal 
 to arms.* 
 
 curred the penalties of high treason " new court might be instituted with like 
 (Parl. Hist., ii. 757). The condemna- powers, jurisdiction, or authority, and 
 tion was passed in the Lower House that all patents to this end were to be 
 with fifty-nine, and in the Upper House null and void. The Lower House de- 
 witb nineteen dissentient voices. Still clared the objectionable canones null 
 more lasting was the energy with which and void, and not even binding upon 
 both Houses in accord attacked the the clergy, and impeached Archbishop 
 pernicious instrument of this mode of Laud, and subsequently the twelve 
 government. The abolition of the whole bishops. The feeling in this direction 
 civil and criminal jurisdiction of the is evident from the unanimity of the 
 Star Chamber and of its imitations, the resolution, which was passed with one 
 provincial councils, by stat. 16 Charles dissentient, who proposed to send the 
 I. c. 10 was a decisive step for the whole bishops to a madhouse. By a resolution 
 future of England. of the 21st of February, 1642, the twelve 
 ttt The Long Parliament replied to bishops were condemned to lose their 
 the resolutions of the convocations first temporal and spiritual estates, and to 
 of all with the stat. 16 Charles I. c. 11, be imprisoned for life, 
 by which the Court of High Commission * The "History ot the Long Par- 
 was abolished with the proviso, that no liament," which has been handed
 
 The Jure Divino Monarchy and the Estates. 557 
 
 In the civil war which now began some accident gave 
 special prominence to the two party-names, " cavaliers " and 
 " roundheads." Nobles, knights, burgesses, and peasants 
 divide into two camps, analogous to the English constitution, 
 the elements of which had now come into collision with each 
 other. On the side of the King are enlisted the majority of 
 the nobles and the great gentry, partly from conviction and 
 partly for the sake of honour ; on the side of the Parliament 
 the majority of the prosperous industrial towns and of the 
 free peasantry, led on sometimes by lords, and sometimes by 
 men of the old landed gentry, as Hampden, Digges, Vane, 
 etc., who, according to the titular system of the Continent, 
 would have borne high titles of nobility, or who like Blake, 
 Bradshaw, and Cromwell, at least belonged to good families. 
 The rank and file on each side consisted of the national militia 
 similarly divided. The ruling classes had thus become cleft 
 asunder, each party still inclined for compromise ; the Cava- 
 liers frequently negotiating even without the King's consent. 
 On both sides the war was honourably waged, with conscien- 
 tious observance of capitulations and truces, only with less 
 discipline by the Eoyalists than by their opponents. No trace 
 of class animosity is manifested ; even among the conditions 
 of peace of 1546 was included the elevation of Cromwell 
 
 down to us by the contemporary writer manded that it should appoint the lord 
 
 and parliamentary secretary, T. May lieutenant of the county militia ; the 
 
 {" History of the Long Parliament ") King refused this, whereupon both 
 
 has been republished (London, 1854) ; parties took up arms. It now proved 
 
 cf. Parry, "Parliaments," pp. 340- of great importance that James I. had 
 
 533. The eventful Long Parliament repealed the older militia statutes as 
 
 of the 3rd of November, 1649, cou- to the gradation of the military service 
 
 sisted of 480 members of the Lower (1 Jac. I. c. 25, sec. 216). The opinion 
 
 House for England, and 24 for Wales, again prevailed that the insular position 
 
 To the Upper House had been sum- of the country made an organized army 
 
 moned one duke, one marquis, 63 altogether unnecessary. Since this 
 
 earls, five viscounts, 54 barons, two time the Government had reserved to 
 
 archbishops, and 24 bishops. The itself the right to recruit soldiers ac- 
 
 Lower House was one of the wealthiest cording as need arose. The civil war 
 
 and most brilliant assemblies that Eng- consequently began with greatly dis- 
 
 land had until then seen. Charles organized military institutions. Coni- 
 
 once more attempted the tactics of flat- paratively destitute of military preten- 
 
 tering compliance, but his words in- sions as the militia was in the majority 
 
 spired no confidence. The reaction of the counties, it completely lost its 
 
 could therefore find no support. The cohesion so soon as the civil war broke 
 
 ill-considered attempt of the King to asunder its composing elements. Whilst 
 
 arrest in person five members of the freeholders and boroughs for the most 
 
 opposition in the Lower House, could part took the side of the Parliament, 
 
 leave no doubt as to the aims of the the majority of the nobles and the old 
 
 court. The condition of Scotland and landed gentry with their tenants and 
 
 Ireland were such as to lead to the in- servants declared for the King, so that 
 
 evitable necessity of voting supplies. at times it almost seemed as if the 
 
 The King scarcely attempted to disguise feudal array of the Middle Ages, and 
 
 the fact that he wished to devote the the more modern county militia were 
 
 money to levying a standing army. drawn up against one another. 
 Parliament, on the other hand, de-
 
 558 Constitutional History of England. 
 
 and six others to the peerage or to a higher rank in the 
 peerage.** 
 
 The Parliament took the one course possible under the cir- 
 cumstances. As it had to impose taxes, pay armies, and 
 administer justice, the creation of a kind of executive power 
 had become necessary for the discharge of these functions ; 
 though the royal power was still recognized in principle. For 
 self-preservation, the temporary retention of these institutions 
 was proposed to the King in the nineteen articles as a condi- 
 tion of peace, yet not as a precedent of the constitution, but 
 only to save themselves from being delivered over to the 
 vengeance of Charles and his party. Even in the covenant 
 with the Scotch insurgents, which went further, there is con- 
 tained a solemn engagement upon oath "to uphold the person 
 of the King and his authority." 
 
 The party which had been hitherto the leading one in Par- 
 liament was, for that very reason, incapable of bringing the 
 conflict to a conclusion. True to their principles, they could 
 not overthrow the monarchy, which they recognized as a 
 precedent factor of the constitution, without undermining their 
 own rights. Their principle of an equitable agreement true 
 and effectual within a recognized constitution suffered ship- 
 wreck, on the impossibility of a compromise as to the broken 
 constitution. And this impossibility lay in the person of the 
 King himself. 
 
 Charles had been brought up at a time and with surround- 
 ings, in which deceit was regarded as diplomacy. A consti- 
 
 ** An external separation into two population. Nobles and gentry, town 
 camps took place also in Parliament and country are to be found in the 
 itself, when the King in December, ranks of both, though in different pro- 
 1642, summoned his " faithful " mem- portions ; only the State Church with 
 bers to Oxford to continue the sittings. its official organization that had now 
 Only 118 commoners obeyed the King's become absolute is wholly and entirely 
 summons. The majority that remained upon the royal side. To the latter be- 
 away, consisted for the most part of the long just those northern provinces in 
 middle party, members of the Presby- which gentry and yeomanry had still 
 terian way of thinking, and a small retained their martial customs and in- 
 number of Independents. The greater clinations. This circumstance and the 
 number of the lords was likewise at unity in the command of the troops 
 first with the Parliament at Westmin- created an advantage for the royal 
 ster, -and it was only subsequently that party, which, however, became weak- 
 the majority of the lords went over to ened by the fact that the mounted 
 the Parliament at Oxford (Eushworth, landowners and their tenants could not 
 v. 559 seq.). But the great majority easily be kept in subordination, and it 
 even of royalist lords and gentlemen was even less easy to turn them into a 
 still hold firmly to the rights and regular army. The parliamentary party 
 privileges of Parliament, whilst the had the advantage in numbers, in its 
 -King treats his Oxford Parliament greater financial resources, in its better 
 (" The Mongrel Parliament ") almost management, and above all in perse- 
 with contempt. On a general average vering zeal and the religious enthu- 
 the parliamentary party, as compared siasm of the sects for the cause of 
 with the royal party, was in a strength liberty. 
 of about two-thirds to one-third of the
 
 The Jure Divino Monarchy and the Estates. 559 
 
 tution was altogether incompatible with his notions of the 
 royal power, of royal duties and oaths. The tribunals, and 
 all the oaths taken by officers of the realm had, after an 
 experience of twenty years, proved unreliable. No one could 
 doubt that the Bang, if he once regained possession of his 
 despotic powers, would return with redoubled energy to his 
 system. His well-known temperament, the feeling of injured 
 honour, and the influence of a proud, intriguing consort, made 
 his return to the constitution incredible. In all the contra- 
 dictory acts of his public life, falseness and perfidy formed 
 the predominating features. But the fundamental cause 
 of this situation lay in the system of the divine right of kings, 
 the faith in which prevailed at court, in the ecclesiastical 
 as well as in the official world. In the atmosphere of 
 this theological jurisprudence it was well established "that 
 between a king and his subjects there can exist nothing of 
 the nature of a mutual compact ; that he, even if he wishes 
 it, can permit no interference with absolute authority ; that 
 in every promise and oath of the King there is contained the 
 reservation, salvo jure regis ; that he, therefore, in case of 
 necessity, may break his promise, and that he alone has to 
 decide as to the existence of such necessity." By the imme- 
 diate derivation of the illimitable royal power from a divine 
 will, the right to it is declared to be incomprehensible to 
 human reason without the grace of revelation. And it is 
 consequently the Church, under its supreme bishop, which 
 finally decides what in the State is sacred as- a constitutional 
 right, and what does not harmonize with the will of God. 
 The Church has the key which fetters and looses not merely 
 the individual conscience, but monarch and people in their 
 constitutional relations to each other. This was the system 
 which the clergy of the State Church pursued through the 
 medium of the King, and the King through the instrumen- 
 tality of the clergy. Within this system there existed no faith 
 in royal words and oaths, and, as Charles, in contrast to his 
 father, possessed both the courage and the unconquerable 
 obstinacy to identify these theories with his own person, there 
 was no basis upon which a compromise with .this monarch 
 could be effected.*** 
 
 *** The transactions of both parties, compromise impossible was the personal 
 
 especially the nineteen articles, corres- character of Charles which had been 
 
 pond indeed externally with the earlier experienced for the past twenty years, 
 
 events of the struggle between Parlia- From the first moment of his reign his 
 
 ment and monarchy, but they are closely words had been promises, and his deeds 
 
 interwoven with religious controver- perfidy; and that not from precipitation, 
 
 sies. The covenant which was con- but systematically, and from calcula- 
 
 cluded with the Scotch is pre-eminent tion. A reliable proof of this is the 
 
 in this new region. What rendered testimony of Lord Clarendon as to how
 
 560 Constitutional History of England. 
 
 The opposition, true to the constitution, found itself thus 
 in the dilemma of either being obliged to sacrifice the consti- 
 tution, and with it their persons and property, or of disowning 
 their principles by attacking the monarchy itself. As they 
 desired to do neither of these things, the leading men 
 appeared paralyzed in their action, and each succeeding year 
 less resolute to face the real state of affairs. It was manifest 
 that the party of the Covenant, which had solemnly vowed 
 " to uphold the person of the King and his authority," could 
 not carry to an end the decisive struggle against the King. 
 The fiction was accordingly resorted to, that "the King in 
 Parliament waged war against the King in the Eoyalist 
 camp." By means of this legal fiction it was possible to carry 
 out a parliamentary programme, but not a war of life or death 
 against actual Cavaliers. 
 
 It was only after an undecided civil war had been waged for 
 years, that elements arose from the parliamentary party, 
 whose ideal of Church and State went far beyond the exist- 
 ing order of things. The time of men with a religious faith 
 in freedom had now arrived ; and Oliver Cromwell was the 
 first to form a regiment of such " men, well equipped in 
 the quiet of their consciences, and externally in good iron 
 armour, standing firm as one man." It was the sects who 
 had, by the long administrative oppression, and by the 
 Catholicizing tendency of the State Church, been driven to 
 fanaticism. The ultimate results of the absolutist system, 
 compelled from within, had led to an extreme application of 
 the principle of self-determination in both Church and State, 
 which, denying the Church as a common bond of outward 
 life, dissolved it into separate groups according to the views of 
 voluntaryism, and thus dissolved the fundamental conditions 
 of a parliamentary constitution in this direction into a system 
 of Puritanical individualism. Half willingly and half reluct- 
 antly the middle parties abandon the field. With a regular 
 army " of the new model " (cuirassiers, dragoons, and light 
 
 it was understood at court that every- vation. With a bitterness, which the 
 thing which might be exacted from His contemporaries certainly did not feel 
 Majesty under stress of circumstances, less acutely, Macaulay says : " Such 
 might be retracted by him on the first princes may still be seen, the scandals 
 opportunity (Clarendon, ii. 252 seq.). of the southern thrones of Europe; 
 " The next visit of His Majesty to his princes false alike to the accomplices 
 faithful Commons would have been who have served them and to the op- 
 more serious than that with which he ponents who have spared them ; princes 
 last honoured them ; more serious than who, in the hour of danger, concede 
 that which their own General paid everything, swear everything, hold out 
 them some years after " (Macaulay, their cheeks to every smiter, give up 
 " Essay on Hallam," 1828). Until the to punishment every instrument of their 
 close of Charles the First's reign the tyranny, and await with meek and smil- 
 parties in Parliament found themselves ing implacability the blessed day of per- 
 obliged to obey the law of self-preser- jury and revenge " (Macaulay, idem.).
 
 The Jure Divino Monarchy and the Estates. 561 
 
 infantry) under able leaders, the contest now ends with the 
 defeat, flight, and capture of the King. As in days of yore in 
 the wars against France, the army of freeholders formed 
 according to the newer military pattern was victorious over 
 all the bravery of the nobles and their followers, which was 
 only effectual in cavalry skirmishes.! 
 
 Hand in hand with the military victory the vindication of 
 the Bible arguments with which the sects attack the divine 
 right of the King is put forward in the Parliament, army, and 
 petitions of all kinds with a penetration, a dialectic strength, 
 and a stubbornness equal to that of the court theology. In 
 this biblical dialectic the ideal of the republic now appears, 
 of which there was no symptom in the first years of the 
 struggle. The Puritans had till then been religious parties. 
 They demanded free regulation of their affairs in their Chris- 
 tian communities ; their ideals were ideals of ecclesiastical 
 constitution. They had desired to fight the King in his 
 character of pope, and not as a temporal monarch. It was 
 only in the breach of the constitution that the now existing 
 inseparability between the ecclesiastical State and State 
 Church became apparent, and with it almost involuntarily 
 the republic as an aim and end. The heretical dogma, that 
 "the sovereign right is based upon grace," and that accord- 
 ingly the civil authorities lose their right by sinning, becomes 
 secularized in the notion of a " high treason committed by 
 the King against the people " (parliamentary resolution of 
 1st Jan., 1649). William Allen, adjutant -general of the 
 army, testifies that, at the commencement of the year 1648, 
 the council of officers, " after much consultation and prayer, 
 had come to a very clear and joint resolution that it was their 
 duty to call Charles Stuart, that man of blood, to account for 
 the blood he had shed, and mischief he had done to his utmost 
 against the Lord's cause and people in these poor nations " 
 (Somers Tracts, vi. 499). Whilst the moderate members of 
 the victorious party, doubting in their minds, considered the 
 proceedings that were being taken against the captive King, 
 and negotiated' for peace, jCharles, incorrigible in every 
 situation, even in captivity, tried the arts of kingcraft to 
 disunite the Parliament and the Scotch, the army and the 
 
 I In the course of the war the Parlia- a corps of officers only nine of whom 
 
 men t changed from the militia system had served in the wars on the Continent, 
 
 to the organization of a paid standing whilst the royal army counted more 
 
 army, in which Scotland had already than a thousand of such officers. Yet 
 
 S-eceded it. In the decisive battle of in spite of this the struggle became 
 
 aseby there fought on the Parlia- one of annihilation in consequence of 
 
 mentary side regular regiments, cer- the discipline and enthusiasm of the 
 
 tainly composed only of recruits, who Puritan troops. In discipline the 
 
 had been, for the most part, only for " rebels " were from the first superior 
 
 two months with the colours, and with to the " malignants." 
 
 2o 
 
 X
 
 562 Constitutional History of England. 
 
 people. Simultaneously there came to light, with unde- 
 niable proofs, a new catalogue of his widely spread perfidies. 
 Consequently, without any serious resistance, the moderate 
 parties at last abandoned the King to the remonstrances of 
 the army, and to the Puritan saints. But, in spite of all 
 passion and violence, the loyalty with which individuals and 
 parties cleave to their convictions of right, is characteristic of 
 this contest of principles. As late as the 28th of April, 1648, 
 the Commons pass the resolution " that they are not minded 
 to alter the fundamental government of the kingdom by King, 
 Lords, and Commons." In December, 1648, a majority of 
 the Lower House vote that the King's person is inviolable. 
 And even on the 2nd of January, 1649, the House of Lords 
 (i.e. the remainder of the extreme left) unanimously reject 
 the motion to put the King on his trial, ft 
 
 But in the meanwhile the remonstrance of the army had 
 been heard in the House, in which " his excellency the Lord 
 General and the general council of officers represent the 
 dangers of the proposed compact with the King, and demand 
 that the person of the King shall be prosecuted in the ordi- 
 nary course of justice." When, however, the Commons, on 
 the 5th of December, 1648, with 129 votes to 83, resolve that 
 the conditions of peace be accepted, the army intervenes with 
 force of arms against the majority, takes 47 members of the 
 House prisoners, and declares 96 others secluded. After this- 
 violent expulsion of the dissenting members by the army, at 
 the last division, in December, 1648, there were only 51 pre- 
 
 tt The theological side of the party indispensable precedent condition of 
 struggle, which seems strange accord- the existing social order. For the 
 ing to our views r harmonized with the sects whose consciences had been 
 events in which the royal supremacy sorely offended there was no via media 
 had become the instrument of the over- between a godless Csesarism and pa- 
 throw of the parliamentary constitution, pistry and the overthrow of the mon- 
 The theologians of this period had be- archy itself. As the individual in a 
 come statesmen, and the statesmen struggle for liberty forgets both wife 
 theologians. No other dialectical and property, so does a people in such 
 weapons except Bible arguments were a struggle forget that it is a society in 
 brought into the sphere of politics in which after the victory has been won, 
 those days. The views as to the re- struggles, whose end cannot be fore- 
 lation of the people to the royal papacy told, must begin afresh. The King, 
 of the day stood upon this common on the other hand, even in the face of 
 ground, which was recognized by all such opponents, continues to practise 
 combatants, and which afforded to all his kingcraft whilst he is a prisoner 
 parties the arguments they sought. to the army. " I am not without hope," 
 What brought the extreme parties to he writes to Digby, " that I shall be 
 power was their resolute will to con- enabled to bring either the Presby- 
 clude no compromise, because they saw terians or the Independents over to my 
 in the King's power altogether an side, that one party may wear the other 
 usurped supreme episcopate, which out, and I be really once more King." 
 was at variance with the divine will. But Charles's "juristisch-priesterliche" 
 This view did not perceive that the Nature (Ranke, ii. 565) had now met 
 monarchy was at once the temporal its match, 
 foundation of all class rights, and the
 
 The Jure Divino Monarchy and the Estates. 563 
 
 sent. In the room of the expelled members, the former 
 minority of Independents, Levellers, and Eepublicans enter, 
 both in the council and in the field. In spite of the protests 
 that were raised, the remaining minority proceeds to sit as a 
 House of Commons, and brings forward the indictment against 
 the King, for high treason against the people of England. fft 
 
 The indictment, the nomination of a judicial commission, 
 the condemnation and execution of the King, is the gravest 
 act of violence in the whole of English constitutional history 
 an act which can only occur once in the history of a Euro- 
 pean nation. The fundamental violation of all the legal 
 bases of the State, a violation which proceeded from the 
 person of the King, finally recoiled upon his head. His jure 
 divino monarchy, which sacrificed every right of his people to 
 & presumed higher divine right of the King and to the inter- 
 pretation of the court theologians, is overpowered by a reli- 
 gious conviction, which was surely more real than his own. 
 We can apply to this act no criterion of right and wrong, 
 within any existing political system, but only the measure of 
 moral right and wrong in the case of a society which had 
 been brought back into the condition of self-preservation ; in 
 the words of Lard Chatham : " There was ambition, there 
 was sedition, there was violence ; but no man shall persuade 
 me that it was not the cause of liberty on the one side, and of 
 tyranny on the other." 
 
 The highest ideals of the human struggles in the Middle 
 Ages, the hereditary monarchy and the Christian Church, 
 had guided the English people in its history of a thousand 
 years' duration, and had exalted it to a high degree of 
 morality, justice, and culture. One of these institutions 
 working upon the external side, that of justice, and the other 
 upon the internal, that of the mind and conscience, had acted 
 and reacted upon the other, and transformed and elevated 
 society. Both were, and continued in the process of their 
 realization by erring mortals, to be at all times exposed to 
 abuse and degeneration, which even amount to a caricaturing 
 of the most sacred things. The monarchy under John was 
 
 ttt The army extorted the indict- liberties of the people that I am come 
 
 ment which John Cooke, " in the name here ; if I would have assented to an 
 
 of the people of England," brought arbitrary sway, to have all things 
 
 forward " against Charles Stuart as a changed according to the power of the 
 
 tyrant and traitor, a murderer and a sword, I needed not to have come 
 
 public implacable foe of the Common- hither, and therefore I tell you, and I 
 
 wealth of England." The difficulty pray God it be not laid to your charge, 
 
 was to find a procedure and a president that I am a martyr to the people." 
 
 for such a judicial commission. The With firmness he met his condemna- 
 
 King conducted with dignity his de- tion and execution, which took place 
 
 fence before the illegal tribunal. His opposite the palace of Whitehall, amid 
 
 last words were : " Sirs, it is for the marks of popular sympathy.
 
 564 Constitutional History of England. 
 
 certainly more deeply debased than under Charles. The 
 Roman Church was, at the time when Luther rose against it, 
 more deeply degraded than the Anglican Church under Charles 
 and Archbishop Laud. But in John's day, there still stood 
 beside the debased monarchy a Church in the fulness of its 
 moral power, represented by Archbishop Langton and his 
 brothers in office. On the contrary, in the period of the 
 Reformation the degenerate Roman Church was confronted 
 by the heroic forms of the Church reformers and by able 
 monarchs. In the Caesarism and papistry of Charles I., 
 both sides seemed to be equally degraded and perverted from 
 their proper ends. It is for this reason that the opposition 
 rises to that pitch, when the last resource of society returns 
 which has been reserved from the birth of the hereditary 
 monarchy. Once again society returned to the primitive state 
 of self-protection, in order, by the overthrow of this monarchy, 
 to prove the nullity of a monarchic papacy in a form such as 
 this. Upon the foundation of the declared sovereignty of 
 society (sovereignty of the people) a new political and ecclesi- 
 astical edifice had again to be built up, amidst severe struggles 
 and perils both for State and society (Chap. XXXIX.), which 
 were rightly foreseen by the moderate parties in the realm. 
 
 : ' ! . . 
 
 > ':
 
 ( 565 ) 
 
 CHAPTEE XXXIX. 
 Sfapublic. 
 
 THE now kingless State became a Eepublic, " the Common- 
 wealth of England," as it was called, to avoid a foreign and 
 unpopular expression. An act of Parliament of the 19th of 
 May, 1649, declares the people of England to be "a Common- 
 wealth and free State." The monarchy and the House of 
 Lords are expressly abolished by resolution of Parliament as 
 being " unnecessary and dangerous to the liberty of the 
 people." 
 
 The enduring energy of the party which gained this success 
 embodied itself on the one side in a victorious army and its 
 brave lieutenant-general, Cromwell, and on the other in a 
 Parliament, which, after the expulsion of the moderate mem- 
 bers, only contained within it the former extreme left. By 
 election of the House there proceeded a Council of State, in 
 which Cromwell practically undertook the duties of president. 
 The several measures of government were at first issued partly 
 by the council of State, partly by Parliament, partly by the 
 council of officers, and partly by the Lord-General in person. 
 It was soon manifest that the opinions of the Parliament and 
 of the army on this point, were widely divergent from one 
 another. But the perils by which the country was beset, the 
 necessity of unity in the operations against foreign countries 
 and against the opposing parties of Eoyalists and Episcopalians, 
 as well as the mediating influence of the Lord-General, held 
 this irregular government together for several years. Crom- 
 well recognized in the Long Parliament the sole legal bond 
 of union between the past and the present. It was not until 
 the 20th of April, 1653, that he made up his mind to dissolve 
 by force of arms the assembly that had made itself odious 
 alike by its measures and by the permanence of its session. 
 The precise character of the Government remains from that 
 time forward, in spite of certain transient forms, the military 
 dictatorship of Cromwell, the incarnation of Puritanism. 
 
 And the impartial observer must confess with Macaulay 
 that Cromwell represented the State with honour. Whilst 
 the Stuarts had made England powerless in foreign parts,
 
 56G Constitutional History of England. 
 
 Cromwell took his place among the most illustrious rulers of 
 the times. The Netherlands, France, and Spain bowed their 
 heads before England's might. The crowned heads of Europe, 
 one after another, did homage to the Protector. Army and 
 navy, Ireland and Scotland, obeyed as they had never done 
 before. Trade and industry flourished, and the commercial 
 policy of the Protector formed the established rule for England 
 for generations; the taxation system was regulated, and a 
 postal system instituted. The Protector was the first to 
 estimate aright England's maritime vocation. Civil justice 
 was honestly dispensed ; Westminster Hall, Lord Clarendon 
 himself confesses, had never been filled with more learned or 
 more honest judges than by Cromwell, and never was justice 
 more fairly dispensed in civil cases, in the courts of Law and 
 Equity. Persons of capacity and integrity were chosen for 
 the various departments of the executive, and genius and 
 science were patronized. To this was added a new maxim of 
 government, for which England has to thank the Puritans, 
 the principle of religious toleration. A religious party, which 
 was guided, not by the class interests of the clergy, but by 
 the living realities of faith, could renounce the application 
 of coercive measures in matters of faith. The time had 
 arrived for toleration, now that Protestantism had irrevocably 
 won its position in Europe. Abolition of the penal laws 
 against Catholics could certainly not yet be won from the 
 national mistrust ; but they obtain a like measure of tolerance 
 as the Protestant sects. Even the Jews, after a banishment 
 of nearly three centuries, were allowed to settle again in 
 England. This, and much more besides, was an efficient 
 exercise Qf a sovereign's calling, to the shame of a degene- 
 rate royal -dynasty. 
 
 In spite -of all this, no content prevailed in the country, not 
 even among the dominant party. Like every victorious party, 
 it learnt that its position was changed by the actual pos- 
 session of sovereign power. It certainly wielded the power, 
 but it was also in conflict with the conditions of society. 
 The structural composition of English society, as it had 
 appeared since the Middle Ages, consisting of lords, gentry, 
 freeholders, and tenants, of burgesses and artisans, clergy 
 and legal corporations, with deeply rooted influences and 
 traditional views, was in irreconcilable contradiction to the 
 political ideals of the Puritan parties. These latter con- 
 sisted pre-eminently of a respectable portion of the English 
 middle classes, whose civil position afforded them but little 
 experience for political government, and whose ecclesiastical 
 position had, under long oppression, given them the habit of 
 opposing but not of governing. Great and victorious as they
 
 The Republic. 567 
 
 were, in the contest of arms, their political ideas were in- 
 capable of permanently fixing the form of the constitution. 
 Bather did it become manifest that the demands made by 
 the " people " separated into very divergent opinions and in- 
 terests. The multitudinous petitions presented to the Long 
 Parliament give us a picture of a public opinion that was 
 as changeable as it was disunited. 
 
 The Royalist and Episcopal factions had hitherto formed a 
 majority in the dominant class, which now, vanquished and 
 under the pressure of a common misfortune, held closer 
 together, and waived internal party-differences, including the 
 Catholic and absolutist questions. The long ill-used, but now 
 victorious party, demanded the punishment of those who had 
 taken part in the illegal measures of Charles I., the now so- 
 called " delinquents." The republic, with its hitherto un- 
 precedented financial needs, decreed, to satisfy them, an 
 enormous sequestration of estates, demanded considerable 
 fines for compounding, and proceeded against those who had 
 seriously compromised themselves, even to the sale of their 
 property. It was calculated that in the years 1640-1659, 
 between three and four thousand gentlemen compounded by 
 paying sums amounting to 1,305,299 4s. Id. ; the seques- 
 trated estates of those who would not compound, or who were 
 not allowed to do so, were computed at five times that sum. 
 Of the established clergy about two thousand were deprived 
 of their benefices. Vanquished and weakened, but embittered 
 and still possessing personal influence among their surround- 
 ings, these groups were irreconcilably opposed to the Govern- 
 ment. 
 
 The Presbyterian middle party, the former majority in 
 Parliament, which had been violently ousted out of Parliament 
 by the victorious party, opposed the Government in as hostile 
 a manner as did the old Koyalists. They had not intended 
 the overthrow of the monarchy. The oath of fealty taken to 
 the republican government was more odious to them, than to 
 the Cavaliers ; their clergy refused to publish the ordinances 
 of Parliament from their pulpits in the customary way. The 
 indefatigable zeal for the carrying out of its scheme of a new 
 ecclesiastical system shown by this party made it even more 
 intolerant in Church questions, and at the same time more 
 indifferent to questions of political liberty and civil rights 
 than formerly. After it had nominally established its ideal 
 system of ecclesiastical reform, the system itself proved im- 
 practicable, and isolated the middle party in a state of aim- 
 less discontent. 
 
 In the more radical parties of the left, which had gained the 
 victory, thanks to Cromwell and his army, a gradual decom-
 
 5G8 Constitutional History of England. 
 
 position set in, from the time of their actual influence and 
 participation in political power. In one part, the Puritan 
 ardour became secularized to an abstract republican political 
 ideal, with tolerance or indifference in Church matters. In 
 another part, the religious zeal against image-worship and 
 against the episcopal hierarchy remained paramount. The 
 secularization of Puritanism was naturally strongly repre- 
 sented in the standing army ; political radicalism now formed 
 a certain counterpoise to the religious element. But both, 
 alike intolerant in their separate tendencies, were but poorly 
 fitted for moulding the form of the real constitution and 
 for conducting the real political government in England. 
 The sole sovereignty of each of these parties would have 
 become a despotism over the great majority of the people. 
 And on that very account that organization retained the 
 upper hand, which is perfectly indifferent to and independent 
 of property, viz. the standing army. 
 
 A new feature for England in this situation was the 
 ascendancy which the middle classes had obtained. Never 
 yet, in the whole of English history, had a spontaneous 
 movement proceeded from the Lower House alone, and still 
 less from the lower middle -classes. This time the monarchy 
 was vanquished not by the followers of the barons, but by the 
 brave convictions -of simple people, under officers chosen from 
 among themselves, and by an army, in which indeed a number 
 of lords and gentry served, but only as leading men of similar 
 political and religious convictions. This situation had given 
 the middle classes a greatly elevated and self-respecting posi- 
 tion, which an existing Government could just as little disre- 
 gard as it could .the temper of the army. Shortly after Charles 
 the First's execution, and after the proclamation of the re- 
 public, petitions of the dominant constituents the "well 
 affected" as they now call themselves crowded in great 
 numbers from all sides, to make their representations heard in 
 the State. They demand annual Parliaments, emancipation 
 of the supreme power of the " people " from the influence of 
 the King and the lords, abolition of the Privy Council and 
 Court of High Commission, the self-denying ordinance, shorten- 
 ing of judicial proceedings, -abolition of tithes, monopolies, 
 excises and tolls, conversion of all taxes into a direct subsidy, 
 the sale of the estates of the " delinquents," .no coercion in 
 religious matters, an annual stipend of aK)0 for servants of 
 the gospel, and so on. The Little Parliament, subsequently 
 summoned by Cromwell, proceeded to formulate the following 
 demands : abolition of the Court of Chancery, institution of 
 civil marriage, abolition of Church tithes and patronage 
 demands which, being at variance with the interests of the
 
 The Republic. 5 GO 
 
 dominant classes, brought upon this so-called Barebone's 
 Parliament the contempt and hatred of a large portion of the 
 community. 
 
 Was it possible, after all, out of these elements to form a 
 parliamentary government according to the laws of the land 
 and in accordance with traditional institutions ? That govern- 
 ment did not merely consist of one parliamentary body formed 
 by elections in certain districts, and the other permanent body 
 by the appointment of nobles ; but it was based upon the 
 deeply rooted interweaving of all magisterial rights with pro- 
 perty, and upon the substructure of the communitates, who 
 governed themselves according to the laws of the land. These 
 social bases of the State had been consolidated for genera- 
 tions past. The higher personal duties in the State were so 
 intertwined with the great landed interests, and the duty of 
 serving on juries and the parochial offices had so grown up 
 with the middle classes, that an English government could 
 only be conducted with the traditional Parliament, constituted 
 by county and municipal unions, partly elective and partly 
 formed by hereditary rights and by office. After the civil war 
 had broken up the old forms, the impossibility of arriving at 
 an harmonious self-regulation in public life through any other 
 combination became manifest. Parish, county, and Parliament 
 confronted each other as disjecta membra, from the moment 
 when the established Church and the bishops were abolished, 
 the hereditary peerage set aside, the loyally minded gentry 
 robbed of their political rights and of their possessions, the 
 small enfranchised boroughs abolished, and the electoral 
 qualification altered. The destruction of these foundations 
 made the reconstruction of a constitutional self-government 
 from below an impossibility. 
 
 The militia system of the county became impossible in the 
 face of a standing army, whose merits, glory and efficiency 
 appeared coupled (as is ever the case) with contempt of a 
 militia which in the civil war had proved incapable. The 
 militia of the republic remained accordingly quite a subor- 
 dinate institution, to which all the less attention was paid, 
 since together with an active militia the local influence of the 
 gentry which was inimical to the republic would also again 
 revive. (1) 
 
 (-1) The military organization, from alive 4o the vocation of England as a 
 
 the year 1645, passed into the system maritime power, and fostered it by ade- 
 
 of a standing army. The organization quate measures. But from 1647 the 
 
 of this army is exemplary ; indiscipline standing army would not tolerate any 
 
 and invincible bravery this English attempt to disband or reduce it, and 
 
 army was certainly never excelled by broke out into open resistance of such 
 
 anv in former or any in later times. a measure. The decayed militia in- 
 
 In like manner the Protector was fully stitutions could certainly not regain
 
 570 Constitutional History of England. 
 
 In the judicial system the continuance of judge and jury in 
 civil cases was practicable ; but, in criminal cases, the grand 
 jury, formed of the gentry, and the petty jury, which was 
 disunited by irreconcilable party contrasts, became serious 
 elements of contradiction. A republican government could 
 scarcely expect of such juries that they should enforce the 
 new ordinances by their verdicts. (2) 
 
 The strength of the police system lay in the office of sheriff 
 and magistrate. A republican government had herein only 
 the alternative, either of appointing fit and proper persons 
 on commissions of the peace in the customary manner, in 
 which case it had to reckon with certainty upon a hostile 
 majority ; or it was obliged to appoint fresh unskilled and 
 unfit persons, who lacked the necessary authority. The police 
 administration was, therefore, from the first a weak point. It 
 might work tolerably smoothly in the towns which were more 
 inclined to the republic in their special civic constitution, 
 but in the counties the Protector was unable to remove 
 the old elements entirely, and still less was he able entirely to 
 alter their ancient spirit. It was the military sense of disci- 
 pline in the republican rule that accordingly led to the intro- 
 duction of a harsh police system in the place of a self- 
 government according to law. (3) 
 
 The financial system of the republic required unprecedented 
 
 their strength in the face of such a Ho ; and likewise the formality which 
 disciplined army, but were only em- required that on each change of govern- 
 ployed for the purposes of police ad- ment the commission should be re- 
 ministration and for raising the taxes. newed, which was accordingly done 
 (2) The judicial system met with a eight distinct times during this period, 
 difficulty in the existing staff of law- The civil jurisdiction was so far better 
 yers, which was so eminently royalist than it had been under the Stuarts, In 
 that Parliament in October, 1649, re- like manner the introduction of the 
 Bolved to dismiss from their office and English language into the proceedings 
 functions all judges, serjeants-at-law, in an action was also a welcome reform 
 barristers, attornies, and clerks of the (Foss, vi. 412). But all this praise 
 courts, who had shown themselves hos- ceases, whenever justice comes into 
 tile to Parliament and had aided their collision with the sovereign powers of 
 opponents. The new appointments that the Protector. Then judges are dis- 
 were made to the judicial bench by missed "for not observing his pleasure," 
 the Protector were so respectable, that judicial commissions are appointed, 
 even the restoration partly retained complaining attornies arrested, and so 
 these justices, or at all events restored on. 
 
 them to their honourable position of (3) The police power could not exist 
 
 Serjeants. Of fifteen judges, who were under the republican regime together 
 
 in office at the restoration, not less than with the fundamental institution of 
 
 nine were found worthy by the new justices of the peace. In the counties, 
 
 government to be confirmed or recog- at all events, Cromwell could not pos- 
 
 nized in analogous positions (Foss, vii. sibly manage with a magisterial gentry 
 
 8) ; among them one of the most up- of the old style. The republic reverts, 
 
 right names belonging to the English therefore, to the system of provincial 
 
 judicial bench, Sir Matthew Hale. The governments, which, however, owing to 
 
 principle that all the judicial officials their puritanical zeal came into conflict 
 
 proceed from appointment and not from with popular customs, 
 election, was also retained by the repub-
 
 The Republic. 571 
 
 resources for the maintenance of a great paid army, which 
 was rendered necessary by the state of affairs in Ireland and 
 Scotland. The old system of taxation, with its self-assess- 
 ment in the separate communities, was thus insufficient ; 
 besides, the parochial constitution had been thoroughly dis- 
 united by the political and religious parties. Parliament 
 resolved, according to former precedents, in the course of the 
 year 1649, to make a monthly assessment of 90,000 on the 
 counties and to levy an excise duty of five per cent, upon a 
 long list of articles of consumption. The rating was on the 
 whole justifiable, but fixed very high, and the imposition of 
 taxes so irregular from a legal point of view that force had to 
 be applied to the judicial and police institutions to maintain 
 them. The new taxes weighed heavier upon the bulk of 
 the population than the ship-money and the ordinances of 
 Charles I., and their legality was quite as disputable as that 
 of ship-money. There remained accordingly no alternative, 
 but here also to put the new military and police power in the 
 place of self-government. (4) 
 
 In the province of Church government the place of the over- 
 thrown established Church was taken by the equally intolerant 
 ideas and constitutional schemes of the Presbyterians, in spite 
 of the constant opposition of the old parties and the smaller 
 sects. Every benefice was, henceforth., to have its parson and 
 several lay-elders ; several benefices taken together form a 
 district synod, with a presbytery of clergy and elders ; several 
 synods form a province with a provincial assembly ; at the 
 head of the whole an ecclesiastical national assembly. But 
 .this system of piling up electoral assemblies proved as dan- 
 gerous as it was impracticable for the teaching vocation of the 
 Church and for its relation to the State. The spiritual 
 electoral bodies at once showed the same bigoted intolerance 
 .as was manifested by the episcopal system, and were soon at 
 variance with the Parliament, which was not inclined to 
 recognize the "divine right of the presbytery," but on the 
 contrary retained the appeal from spiritual courts to tem- 
 poral tribunals. Such a variety of tendencies and insti- 
 
 (4) The financial system of the re- tical estates ; 4,564,986 from sequestra- 
 public made quite unprecedented de- tion and composition with royalist 
 mands. Sinclair ("Revenue," i. 285) gentlemen; 2,245,000 by the sale of 
 computes, but probably in an exag- the lands of delinquents. The require- 
 gerated way, the revenue returns of ments of the standing army appeared 
 .the State from November 3rd, 1640,;to to swallow up all. At the opening of 
 November 5th, 1659, at 83,331,198, of Parliament (13 Charles II.) Lord Chan- 
 which 32,172,321 was land tax gene- cellor Clarendon was able to say: 
 jallyin.monthly assessment; 7,600,000 "That monster Commonwealth cost 
 tonnage and poundage ; 8,000,000 this nation more in her few years, than 
 excise; 3,528,632 from sequestrations; the Monarchy in six hundred years." 
 10,035,663 from the sale of ecclesias-
 
 572 Constitutional History of England. 
 
 tutions were interwoven in the ecclesiastical world, that 
 the principle of tolerance, which the Protector followed from 
 conviction, was almost a natural result. The confusion in 
 this sphere had become so complete, that external toleration 
 naturally resulted as a necessity for a cautious Government. (5) 
 All these conditions and circumstances pointed to the con- 
 centration of the political power in one person, and in Oliver 
 Cromwell the person destined by Providence was found. The 
 stolidity of this man, coupled with an indefatigable activity, 
 personal courage, and energy, the dry, blunt manner with 
 which he makes straight for his object, are incarnations of 
 the English character. To it belongs especially his honesty 
 and the sincerity of his convictions, often misinterpreted by 
 later writers on account of the biblical unction of his words, 
 which was the language of the time and of the party to which 
 he belonged.* Only an entire misconception of the real state 
 of affairs would ascribe the impossibility of the protectorate's 
 arriving at an understanding with a Parliament, to ambition 
 or thirst for power on the part of the Protector ; for it was 
 really due to the internal decomposition of all those cohesive 
 elements by which the parliamentary constitution was organi- 
 cally welded together. It was, in fact, impossible to retain 
 the old English counties in the old form of county courts, as 
 electoral bodies of Parliament, and still more impracticable 
 was this in the deeply disorganized Scotch and Irish counties, 
 
 (5) Most difficult of all was the state inimical spirit towards the conduct of 
 
 of ecclesiastical affairs. After the sup- the Protector. It has been exceed- 
 
 pression of the Episcopal Church the ingly difficult for the English, down 
 
 Presbyterians succeeded in realizing to the present century, to be just 
 
 their long-cherished ideal. About two towards this man and his party, 
 
 thousand clergy of the State Church Modern " hero-worship " has attempted 
 
 were obliged to yield to the new order, to set this right. Guizot's verdict is 
 
 the majority of whom, however, are said unjust, and coloured by personal as well 
 
 to have been removed on account of as by national prejudices. Against it 
 
 evil life or ignorance, for whose support may here be placed the judgment of 
 
 one-fifth of their emoluments was a doctor of divinity of our day : " The 
 
 reserved. The vacant benefices were age was an age of faith we may say, 
 
 filled by men, who were recommended of a child-like and a loving faith. Such 
 
 by the parishes, and confirmed by the men as Elliot and Hampden, Cromwell 
 
 ecclesiastical synods. The influence and Vane, believed in God and Christ, 
 
 of this tendency was sufficiently strong in sin and the evil one, in heaven and 
 
 in Parliament to bring about by ordi- hell, as the Bible presents them, and 
 
 nance the institution of presbyteries, very much as Milton has depicted 
 
 but which only in London, Lancashire, them. The world to them was full of 
 
 and in one or two counties was actually spiritual influences, both good and bad 
 
 carried into effect. The intolerant full eminently of God. Where duty 
 
 presumptuous spirit of the Presbyterian called, men of this order could brave 
 
 confession, had developed itself to all things, and still feel that nothing 
 
 euch an extent that by this very means was hazarded. To them there was no 
 
 the way was smoothed for the restora- such thing as accident. All was in the 
 
 tion of the Episcopal Church. highest hands " (Vaughan, iii. 132). 
 
 * English history of a later time, Eanke's opinion is very objective (iii. 
 
 after the constitutional struggle had 435-584). 
 been ended, has been written in an
 
 The Republic. 573 
 
 which the Republic had incorporated into its constitution. 
 From this condition of things no English Lower House, no 
 English Upper House, no harmonious executive power for the 
 legislation and taxation of the country could arise. The par- 
 liamentary constitution had grown out of a system, in which 
 political rights (as being the exercise of the royal rights) 
 had emanated from the unity of the royal power. After the 
 overthrow of the monarchy, the dismembered limbs lacked 
 the legal basis necessary for uniting the antagonistic social 
 interests and the still more incompatible ideals of the political 
 and ecclesiastical systems upon a common ground recognized 
 by all the different parts. Each party threw upon the other 
 the blame for this state of affairs. According to a plan that 
 was correct in thesi, one part of the upper classes was desirous 
 that Cromwell should assume the regal crown. Nobles and 
 gentry both thought that with the monarchy their higher 
 privileges would revive, and the clergy considered that it 
 would be the means of restoring the Established Church. 
 The lawyers thought also that the laws touching the impunity 
 of those who serve a de facto King might prove useful in the 
 event of a restoration. "A king of England," says Thurloe, 
 " can only succeed to a limited prerogative, and must govern 
 according to the known laws. A protector, although with 
 less nominal authority, has all that the sword can give him." 
 The republican strictness of the council of officers, however, 
 induced Cromwell not to assume the royal title. He himself 
 also probably felt that the regal dignity would alienate and 
 isolate him from his own party, and that an historical 
 monarchy could not be replaced within a living generation 
 by a new dynasty from among the people. He preferred the 
 title of Protector ; retaining at the same time certain impor- 
 tant attributes of sovereignty appertaining to the old constitu- 
 tion. His consent to the most important acts was necessary, 
 and occasionally the clause even occurs, " and this shall not 
 be changed without the consent of the three estates in Parlia- 
 ment." Cromwell was content to obtain the powers necessary 
 for the present conduct of political business. He also satisfied 
 the obligations into which he had entered by making from 
 time to time an attempt to summon a Lower House according 
 to the traditional forms, and to obtain the authorization to 
 form an Upper House, though it was difficult to wring from 
 the existing electoral bodies the consent to the appointment 
 of an Upper House. His creation of lords, though performed 
 with caution and conscientiousness, only aroused universal 
 opposition. An Upper House, as the permanent depository of 
 a permanent legal system, was really desired by no one r 
 because nobody wished the state of affairs then existing to 
 
 V
 
 ")T4 Constitutional History of England. 
 
 remain permanent. On that very account it was impossible 
 for the Protector to obtain an harmonious co-operation with 
 any parliamentary body. Disgusted with parliamentary 
 debates and majorities, which could arrive at no positive 
 system of government and at no positive opposition, he dis- 
 missed his Parliaments with words of reproach. Apparently 
 he had himself failed to discern the internal reasons why 
 Parliament could neither by severity nor by indulgence be 
 brought to co-operate with the executive Government.** 
 
 But the Protector was not in the dark as to the needs of 
 the State and as to the course the Government must neces- 
 sarily pursue. The traditional offices were retained as far as 
 was feasible, and filled with proper persons. The central 
 Government was, in all essential particulars, conducted on 
 the earlier lines of the King in council. In the administrative 
 committees, the necessary consideration paid to the men of his 
 own party was so far modified by the energetic control of the 
 head of the Government, as a new executive is capable of 
 doing. All that a royal Government, acting from the centre 
 of the realm could perform, both internally and externally, 
 was performed by Cromwell in quite a different manner from 
 the Stuarts. But what this Government, from the nature of 
 its creation, was as yet unequal to, was the exercise of sove- 
 reign rights through the constitutional organs of the communi- 
 tates, and through the traditional self-government, to which it 
 was hardly less opposed than Charles I. The taxes imposed 
 by ordinance were refused, and, to quell this opposition, 
 there were no criminal verdicts to be obtained from the jury. 
 Accordingly a new "high court of justice" was constituted, 
 analogous to the Star Chamber. Some persons were even 
 condemned to death for violent resistance. For the same 
 reason the provincial governments were again revived. The 
 realm was divided into districts, under eleven major-generals, 
 for the most part bitter foes of the Royalists, and harsh and 
 overbearing towards the civil authorities. The military 
 governor is responsible for the submission of his district, 
 has authority to levy troops, to exact taxes, to disarm Cava- 
 liers and Catholics, to examine into the conduct of the clergy 
 and schoolmasters, and to arrest dangerous and suspicious 
 persons. The State had to be governed ; but the longer this 
 Government continued in opposition to the social bases the 
 more oppressive did it appear. The complaints against it 
 are, at the close of the protectorate, constantly increasing. 
 
 Thus the state of affairs became, on the whole, more and 
 
 ** These attempts are so experi- republic are mentioned ; I have re- 
 mental in their nature and so transient viewed them all together at the ckfseof 
 that six or seven Parliaments of the this chapter.
 
 The Republic. 575 
 
 more like the absolutism under Charles I., and from year to 
 year the feelings of the upper classes turned as one man 
 away from this rule. The old lords who had been removed 
 from the Upper House were living partly in exile and partly 
 in sullen retirement on their estates. The old gentry were 
 in a similar position, partly persecuted, and robbed of their 
 lands as " delinquents," with their old influence both in county 
 and Parliament broken down. The established clergy had 
 been in great measure dispossessed of their benefices, though 
 partly submitting with reluctance to the Presbyterian consti- 
 tution. The powerful law corporations were no longer sum- 
 moned to the high offices of State, and were offended by 
 reforms in the judicial system. Families, which had hitherto 
 enjoyed distinction, were driven from their influential posi- 
 tion, with all its pleasures and advantages. In their stead 
 new men were almost universally at the head of the regiments 
 and in possession of the offices ; education, eloquence, and 
 parliamentary ability were eclipsed by military merits and 
 skill of a different kind ; in principle only the " well-affected " 
 everywhere preferred. It is thus readily conceivable how 
 the achievements of the fanatical Puritan party were followed 
 by an implacable hatred on the part of the wealthy classes. 
 The forcible removal of all long-established institutions left 
 behind, even in those who recognized in principle the justifi- 
 cation of the revolution, a feeling of a wrong committed in 
 carrying it out. It is for this reason that the period of 
 the republic passed away without leaving any trace, either 
 upon the inner life of the State or that of local government. 
 Not a single institution, not a parochial office, not a single 
 administrative rule of self-government dates from that time. 
 Even the church rate had to be maintained by coercive 
 ordinances. Such a system could only be kept up by the 
 means by which it had arisen by the standing army. 
 Instead of the King and his courtiers the Protector rules 
 with his officers, and self-preservation compels the party to 
 remain in this position. It is the necessary consequence of 
 every violent constitutional change that it is not the "people 
 and the true right," but only a single party with its social 
 and party interests that succeeds to the executive power. 
 
 And why had all this come about ? England had wished to 
 ward off absolutism; it had risen in arms against a violent 
 and perfidious king, to defend the liberty of its Protestant 
 faith, to defend the traditional law of the land in Parliament 
 and in county, and to defend the liberty of the subject and 
 of property. Instead of achieving this, the country found 
 itself terrorized by a still more rigorous ruler, by a standing 
 army, by a military-police system of rule, and by a disregard
 
 576 
 
 Constitutional History of England. 
 
 of Parliament and of all the free institutions of the land. 
 What no party desired to be permanent could only be an 
 interim. The death of the Protector could not but lead to a 
 return of the old party-majorities, and these latter to a 
 restoration. 
 
 NoTEToCHAPTERXXXIX. Thefol- 
 lowing is a list of the attempts made by 
 the republic to form a constitution : 
 
 1. The first constitution is the 
 Sovereign Republic under the Long 
 Parliament, with an elected Council of 
 State. The Commons had already, on 
 the 4th of January, 1649, declared that 
 they, as the chosen representatives of 
 the people, wield the supreme power of 
 the nation, and that all laws enacted 
 by them, even without the co-operation 
 of the King or House of Peers, are 
 binding on the people. The style of 
 all decrees was to run " auctoritate 
 Parliament! Anglix." The House of 
 Peers was abolished as being " use- 
 less and dangerous ; " in like manner 
 the monarchy as being " unnecessary, 
 burdensome, and dangerous for the 
 freedom, safety, and public interest of 
 the people." On the 15th of February 
 a preliminary Council of State was 
 appointed, which from time to time 
 " receives the orders of the House." 
 For the years 1650, 1651, 1652, 1653, 
 a Governing Council of forty members 
 was appointed, consisting tolerably 
 regularly of the same persons. But 
 this council is continually opposed by 
 the Great Council of Officers, which 
 even in the course of the year 1648, 
 plays such a violent part. The army 
 had formed for itself a kind of constitu- 
 tion : the staff officers constitute the 
 upper council, each company or 
 squadron chooses two adjutants or 
 "agitators," who form a lower house. 
 As the regiments are without chaplains, 
 the officers and soldiers took upon 
 themselves the duties of praying and 
 preaching. The highest tribunal is a 
 council of nine officers and civilians. 
 The whole, with its reminiscences of 
 the parliamentary system, and of the 
 ecclesiastical organization, forms a 
 compact body, which was only pre- 
 served by Cromwell's influence from 
 the constant danger of a rupture with 
 the Rump Parliament. On the 19th of 
 May, 1649, England was by Act of the 
 Parliament declared to be a " Common- 
 wealth and a free State." Every 
 member of the House was required to 
 promise allegiance to the " Common- 
 
 wealth of England, as now constituted, 
 without either a King or a House of 
 Lords." On the 9th of January, 1650, 
 by a resolution the number of future 
 deputies for the counties and towns 
 was resettled, and so distributed that 
 for the future the House should consist 
 of 400 members. In the meanwhile the 
 small number of members of Parliament 
 was to a certain extent supplemented 
 by bye-elections. In February, 1650, 
 their number had readied the total 
 of 108; in November, 1652, it once 
 amounted to 122 members. Although 
 in formal possession of political in- 
 fluence, yet the House could never 
 arrive at a resolution touching its own 
 dissolution. The initiative though 
 often taken was again and again post- 
 poned. Owing to its long duration, to- 
 the small number of members, and to 
 the suppression of the House of Lords, 
 the assembly lost more and more its 
 representative character. It was, in 
 fact, nothing more than a committee 
 of confidential men of republican and 
 strictly Puritan proclivities, which all: 
 along only represented the minority in 
 the country, and was only able to assert 
 its position by leaning on the army 
 for support. In the army republican 
 ideas were more violently and strongly 
 represented than in the House ; in the 
 Council of State the reverse was the 
 case. Of the forty members of the first 
 appointed council,, only nineteen could 
 be prevailed upon to declare their 
 consent to the proceedings against 
 King Charles. Yet this House was the 
 sole legal bond which knit the present 
 to the past. Among the manifold 
 collisions with this political body, 
 Cromwell waited for the growing dis- 
 content which was certain to result from 
 the harsh decrees, the imposition of 
 taxes, the mistakes, and above all from 
 its refusal to pass a resolution touching 
 its own dissolution. On the 20th of 
 April, 1653, the day had arrived on 
 which with harsh words he declared the 
 Parliament dissolved, and caused the 
 chamber to be cleared and closed by 
 soldiers. This is followed by 
 
 2. The purely military dictatorehip, 
 which Cromwell undertakes as captain-
 
 The Republic. 
 
 577 
 
 general of the army. After a few 
 weeks, however, by summons under 
 letter and seal of the " Lord General," 
 a number of men of confidence were 
 convened, who were nominated -by the 
 council of officers (apparently also on 
 the proposals of the clergy). The 
 assembly met on the 4th of July, 1653, 
 and gave itself the title of Parliament, 
 but was called by contemporaries the 
 Little Parliament, or Barebone's Parlia- 
 ment. The greatest number of members 
 amounted apparently to 113. After 
 making various proposals concerning 
 changes in Church and State, and 
 electing a Council of State, the assembly 
 declared on the 12th of December " that 
 the continuance of its sittings would 
 not conduce to the weal of the Common- 
 wealth," and placed its mandate of 
 summons in the hands of the Lord 
 General. The pious, honest assembly, 
 in which the middle classes were 
 strongly represented, had busied itself 
 with motions for improvements, which 
 particularly concerned its own sphere of 
 life. It demanded the abolition of the 
 Court of Chancery on account of the 
 delays of that tribunal-, and on account 
 of the uncertainty of its decisions (the 
 arrears are said to have amounted to 
 twenty-three thousand actions), codifi- 
 cation of the laws of the country, the 
 appointment of new presidents for the 
 courts (for which only two barristers 
 were designated) ; the introduction of 
 civil marriage before the justices of 
 the peace, out of regard to the numerous 
 Dissenters ; at the same time the in- 
 tention was expressed to abolish tithes 
 and church patronage in the future. 
 Further bills affected the regulation of 
 the excise, the abolition of unnecessary 
 offices and reduction of salaries. But 
 these demands, reasonable enough in 
 themselves, brought upon the assembly 
 the scorn and the bitter enmity of the 
 upper classes, especially of the clergy 
 and lawyers. The Protector could 
 carry out only a few of these proposals. 
 In consideration of the resolutions 
 passed by the Long Parliament with 
 regard to the constitution, new writs of 
 summons were issued for a Parliament 
 to meet on the 3rd of September, 1654, 
 and thus came about 
 
 3. A constitution with a Lord Pro- 
 tector holding office for life, and an 
 elective Parliament according to the 
 one-chamber-system. In the writs of 
 summons to this Parliament the 
 majority of the small boroughs were 
 passed over, but on the other hand the 
 
 number of knights of the shire was 
 considerably increased. At the opening 
 there were about three hundred mem- 
 bers assembled. (For information 
 respecting this Parliament, see " A 
 Diary of Thomas Burton, Esq.," by John 
 Towell Eutt, London, 1828.) The 
 Lord Protector in his opening address 
 speaks of the necessity of a settled 
 establishment, which could be expected 
 neither from the Levellers, who wished 
 to reduce everything to equality and 
 to introduce a party government in 
 civil matters ; nor yet from the sectaries, 
 who wished to overthrow all order and 
 government in ecclesiastical things. 
 But there was evinced in the first 
 transactions a democratic spirit opposed 
 to the protectorate. In consequence 
 Cromwell declares as early as the 12th 
 of September, 1654, " that he had re- 
 ceived his office from God and the 
 people, and that he did not intend to 
 annul the privileges of Parliament ; but 
 necessity knew no law. He had there- 
 fore caused the doors of the Parliament 
 house to be closed, and demanded of 
 the members before their entrance a 
 written recognition of his authority, 
 without which they would not be 
 allowed to enter." The Parliament 
 yields ; but its further proceedings still 
 retain the character of a democratic 
 assembly. According to resolutions 
 passed by it, short Parliaments are to 
 be assembled at fixed periods. The 
 franchise in the counties is to be en- 
 joyed by all freeholders of forty shillings 
 yearly income, or possessors of 200 
 value in real or personal property ; in 
 the boroughs the old customs, charters, 
 and privileges with regard to the elec- 
 tions are to remain in force. The 
 number of members for England and 
 Wales is to be four hundred ; for Scot- 
 land thirty, and thirty for Ireland. 
 The members are distributed with a 
 view to the equalization of the several 
 constituencies ; the petition of the 
 army of June 16th, 1647, had already 
 demanded that the distribution of the 
 deputies among the constituencies 
 should be so arranged according to a 
 certain rule of equality, particularly 
 with regard to the amount of taxation, 
 that the poor petty boroughs should 
 be omitted, and the number of knights 
 of the shire increased. Accordingly 
 270 deputies are for the future to be 
 assigned to ihe counties, and 130 to 
 the towns. To the House belongs ex- 
 clusively the legislative power and the 
 right to impose taxes. The Lord Pro- 
 
 2p 
 X
 
 578 
 
 Constitutional History of England. 
 
 tector grants all titles of honour, but no 
 hereditary titles without the consent of 
 Parliament. The formation of an Upper 
 House or of any permanent body for the 
 protection of the established legal sys- 
 tem was never mooted. A Parliament 
 elected in this manner has of its own 
 initiative hardly ever considered any 
 other legislative body to be necessary, 
 save and except itself. The members 
 of the council of 21 members are to be 
 nominated, indeed, by the Lord Pro- 
 tector, but confirmed by Parliament. 
 The question, as to whether before the 
 definite acceptance of this constitution 
 a conference shall take place, to come 
 to an understanding with the Lord 
 Protector, was rejected by 107 to 95 
 votes, whereupon, on the 22nd of 
 January, 1655, Cromwell declares the 
 Parliament dissolved. 
 
 4. A new constitution with a perma- 
 nent Lord Protector and two Houses of 
 Parliament is the outcome of the third 
 Parliament, which Cromwell summoned 
 on the 17th of September, 1656. The 
 Protector demanded that only such 
 members should be admitted " as had 
 been approved of by the council, and 
 received a certificate to that effect." 
 In this way 93 members were ex- 
 cluded; yet after long protest they 
 were at length admitted. According 
 to a constitutional decree of October 
 1 st, 1656, the Lord Protector shall give 
 his consent to every statutory enact- 
 ment ; but in case the consent be not 
 given within twenty days, the enact- 
 ment shall become law without such 
 consent. In the course of the debates 
 it is manifest that the wealthier classes 
 and the old parliamentary ideas are 
 reviving. An "establishment of the 
 Government upon the old and tried 
 basis " is again mooted. The Protector 
 is allowed to appoint his successor. 
 Parliament is to consist of two Houses, 
 the " other house " of 40 to 70 members, 
 appointed by the Protector, confirmed 
 by "this House." On the 25th of 
 March, 1657, by 123 to 62 votes, the 
 resolution was passed to the effect that 
 " his Highness be pleased to assume 
 the name, style, title and office of 
 King of England, Scotland, and Ireland, 
 and exercise the same according to the 
 laws of these nations." The right of 
 free dissolution of the present Parlia- 
 ment was expressly recognized as 
 belonging to the Protector. The Pro- 
 tector, however, after some considera- 
 tion, makes known on the 12th of May 
 his definite refusal of the royal title. 
 
 On the 26th of May the constitution 
 comes into force. On the 24th of June 
 the Lower House resolves that " the other 
 House of Parliament " shall " without 
 further approbation" enter upon the 
 functions which were laid down by the 
 constitution. On the 10th of December, 
 1657, the Protector makes use of his 
 right of appointment by summoning for 
 life 63 members known as respectable 
 men, but to whom public opinion 
 would not concede the dignity of a 
 House of Lords. As the hereditary 
 peers hesitated to accept the new life 
 dignity, the Protector was obliged to 
 bestow the majority of his appoint- 
 ments upon persons who had risen to 
 a certain position through the recent 
 conditions of property and party. Both 
 Houses assemble together on the 20th 
 of January, 1658, received by the Pro- 
 tector with the address : " My lords, and 
 you the knights, citizens, and burgesses 
 of the Commons." On the first message 
 " from the Lords," however, an opposi- 
 tion is raised to this title ; the message 
 is refused. The debate upon the point 
 lasts for several days, until on the 4th 
 of February, Cromwell dissolves the 
 House with the declaration that he 
 had not wished to undertake the 
 Government without a number of 
 persons between him and the House 
 of Commons, for the prevention of 
 tumultuous and popular tendencies. 
 But only conflict has been the result, 
 and no one was satisfied. He dissolved 
 this Parliament, " and let God be judge 
 between you and me." On the 3rd of 
 September of the same year Cromwell 
 died, worn out by the cares of such a 
 Government ; he was buried with royal 
 honours. Then followed 
 
 5. The Protectorate of Richard Crom- 
 well, with both Houses of a new Par- 
 liament, January, 1659. The elections 
 to the new Lower House were con- 
 ducted in the old fashion by summoning 
 again the small boroughs, which had 
 been hitherto excluded, and with a 
 strict return to the old parliamentary 
 notions. The Protector and the exist- 
 ing constitution were indeed recognized, 
 but after lively debates and amidst 
 expressions of general discontent, in 
 which the question was mooted, " What 
 authority abolished the old constitu- 
 tion?" The Long Parliament was 
 described as being a " handful of the 
 House of Commons," and as an 
 oligarchy, " detested by all who love a 
 free commonwealth." The other House 
 was "for the present session" recog-
 
 The Republic. 
 
 579 
 
 nized as a House of Parliament, yet 
 with the proviso, that it was not the 
 intention to exclude such old peers as 
 had proved faithful to the Parliament 
 from their privilege as members of that 
 House. Fiery debates were especially 
 caused by the question of the admission 
 or non-admission of the thirty Irish 
 members. On the 22nd of April, upon 
 the demand of the army, Parliament 
 is dissolved. Richard Cromwell's pro- 
 tectorate was no longer acknowledged. 
 The officers demand that the members 
 of the Long Parliament, which Crom- 
 well had dissolved, be again summoned. 
 Hence follows 
 
 6. The reassembling of the Long 
 Parliament (the Rump), in May, 1659. 
 The old speaker, Lenthall, and about 
 fifty members (who gradually increased 
 to about a hundred) take their seats 
 again, and declare "that they have 
 been again restored by God's grace to 
 the liberty and rights of their seats, 
 wherein they were interrupted on the 
 20th of April, 1653." They elect a 
 council of state, but arrive at no actual 
 resolutions. In October violent dissen- 
 sions break out with the army touching 
 the competence of the civil powers. By 
 
 force of arms the discharged officers 
 prevent the assembling of Parliament. 
 Then follows an intermediate despotism 
 by the army with a committee of safety. 
 By settling their arrears of pay, and 
 by the mediation of General Monk, 
 external order was restored, but the 
 Parliament was obliged to agree to 
 receive again the members who had 
 been violently expelled in December, 
 1648. 
 
 7. The sessions of the Long Parlia- 
 ment in its changed form continue for 
 several months. On the 1 6th of March, 
 1660, however, a bill was read for the 
 third time, dissolving " the Parliament 
 assembled on the 3rd of November, 
 1640," and convening a new assembly 
 of lords, knights, citizens, and burgesses 
 for the 25th of April, 1660 (the so- 
 called Convention Parliament), which 
 resolved that Charles II. be restored to 
 the royal dignity. With regard to the 
 elections of the future Lower House, a 
 resolution was adopted on the 4th of 
 February, 1660, to the effect that 
 " This House shall be tilled up to the 
 number of four hundred for England 
 and Wales, and the distribution be as 
 agreed in 1653."
 
 580 Constitutional History of England. 
 
 CHAPTER XL. 
 
 As the individual, consciously or unconsciously, primarily 
 judges the rights of his time and his surroundings according 
 to his own interests, so, in a greater degree, does every class 
 of society. Therefore it is that public opinion (the voice of 
 society) is wont to judge of a party not by the rights or 
 wrongs of its origin, but by its present doings, and therefore 
 it is that the fate of parties of action in the life of nations 
 is always the same. They are allowed to pursue their way, 
 to grow, to act, and to wax great, only to be condemned 
 and repudiated. This reaction is more violent in proportion 
 as the victorious party more vehemently attacks the rights of 
 the upper classes of society. For centuries the social rights 
 of the lords, of the old gentry, of the established clergy, and 
 of the legal profession had not been so much injured as under 
 the republic, and that too, as it now seemed, without suffi- 
 cient reason. The danger of absolutism had been removed 
 by Charles the First's tragic end; the futility of such efforts 
 as his appeared irrevocably established. The general ideas of 
 the time from that day onwards are manifestly turned in the 
 direction of change. The death of Charles I. had already 
 estranged gentler minds from the victorious side. Moderation 
 and justice now seemed to many contemporaries to stand 
 upon the other side. Had not the King in 1640 conceded to 
 everything that was fair ? His execution had left behind it 
 only the recollection of his royal bearing in his last hours, 
 and of the many virtues of his private life. Everything that 
 had happened might well appear as an evil dream to the gene- 
 ration that was growing up under the oppression of Puritan 
 military despotism.* 
 
 * The long hesitation and vacilla- It was well understood that to reinstate 
 
 tion before the ad vent of the Eestoration the family of an executed King, sur- 
 
 (Ranke, vol. iv. pp. 1-122) is explained rounded by a deeply offended circle 
 
 on the one hand by the continuous fear of followers thirsting for vengeance, 
 
 of the armed republicanism of the and to restore a suppressed party, 
 
 army, and partly by the apprehensions whose losses could not be repaired 
 
 of an extreme eagerness to " restore." without attacks upon property, was no
 
 The Restoration. 581 
 
 The true expression of these feelings and of the relations of 
 power is -the freely elected Parliament, which resolved the 
 restoration of Charles II., about half of the members of which 
 were Cavaliers, another half Presbyterians with a small 
 fraction of fifty Eepublicans. On the entry of the youthful 
 King the enthusiasm was so great that Charles in his pleasant 
 manner remarked : " It must certainly have been my fault 
 that I did not come earlier; for I have met no one to-day 
 who has not said, that he always longed for my restoration." 
 The phenomena of a restoration of the upper classes are 
 psychologically always the same. Wherever the interests 
 of society advance into the foreground, it can only happen 
 in the manner of egoism, which is the essence of society. 
 In the storm of addresses of this time, the English universi- 
 ties take the first place in a strange attitude, as representa- 
 tives of theological jurisprudence. Oxford declared " that it 
 would never depart from those religious principles, by which 
 it was bound to obey the King without any reserve or limita- 
 tions whatever." In a special act the theory of Filmer as 
 to patriarchal monarchy and the rule of primogeniture 
 (above, p. 548), as the God-appointed form of government 
 was afterwards proclaimed. Charles II. was declared to be 
 the "sweet savour in the nostrils of- the Lord." Cambridge 
 also condemned in strong terms " the violence and treason 
 of those vehement men, who maliciously endeavoured to divert 
 the stream of succession from its ancient bed." The zeal of 
 the Eestoration against Puritanism became in. the sphere of 
 social life, in art, science, and popular drama, and even in 
 the sphere of domestic morals, a caricature. In good society 
 the battle between " wit and Puritanism " became for a long 
 time " a war between wit and morality." But the whole 
 people now seemed to vie in condemning the revolution and 
 its ideas, which, as they could not be sufficiently punished 
 in the body, were accordingly hunted out in the grave, 
 by attempts to dishonour the corpses of Cromwell, Ireton, 
 and Bradshaw. The name " Eepublic " which had ever 
 sounded strange to the people, was now connected with the 
 memory of a long despotism, with sequestrations, confisca- 
 tions, ruinous taxes, a military police system, and a sullen 
 Puritanical rigidity of morals. It was only the Presbyterian 
 middle party, which in religious conviction and in serious 
 
 easy task. The equally contradictory the act of restoration, and for this 
 
 and obstinate pretensions of the transitional stage there was found in 
 
 Anglican, as well as of the Presbyterian General Monk a cautious and safe man. 
 
 Church parties, were sufficiently known; It was only after the perfect safety of 
 
 the unsettled disputes between Crown the profession of royalism was estab- 
 
 and Parliament were still in remem- lished, that the storm of loyalty burst 
 
 brance. These considerations delayed forth.
 
 582 
 
 Constitutional History of England. 
 
 apprehension of the future, strove to maintain modera- 
 tion. (1) 
 
 In the first stages of the Restoration both parties proceeded 
 side by side in comparative accord with forced moderation, 
 which was necessary, if only from the continued presence of 
 the Puritan army. Their joint work is the restoration of the 
 parliamentary constitution, that is : 
 
 Solemn recognition of the hereditary monarchy and the sanc- 
 tion of its inviolability by the punishment of the "regicides," 
 who had taken part in the sentence of death passed on the 
 King. 
 
 Restoration of the Upper House, that is, of the hereditary 
 lords, yet afterwards with suspension of the Catholic votes. 
 
 Restoration of the Lower House, that is, the representation 
 of the counties and the customary towns, by which the 
 decayed boroughs receive back their franchise, whilst it was 
 taken from greater towns such as Manchester, Leeds, and 
 Halifax. 
 
 Restoration of the County Constitution, by suppression of the 
 military governments and by the reorganization of the militia 
 as the army of the wealthy classes. (l a ) 
 
 (1) The so-called Convention Parlia- 
 ment first met at Westminster on the 
 25th of April, 1660. On the 1st of 
 June, when the King for the first time 
 appeared in the Upper House, there 
 were already assembled three dukes, 
 two marquises, thirty-six earls, five 
 viscounts, and thirty-three barons. In 
 the Lower House the Presbyterian 
 
 Jarty was still so strong that on the 
 2th of May, 1660, Lenthall met with 
 a sharp reproof because he had spoken 
 disparagingly of the proceedings of the 
 Lords and Commons in the last Par- 
 liament up to the year 1648, and had 
 placed those who had drawn the sword 
 in defence of their just liberties on a 
 level with those who had struck off 
 the King's head. The negotiations 
 touching the amnesty came, after many 
 adverse intermediate stages, to the final 
 result, that those who had taken part 
 in Charles the First's death were, to 
 a certain extent, decimated. The ten 
 regicides who were executed died, with 
 one exception, with the firm and manly 
 expression of the conviction of their 
 right. 
 
 (l a ) In the militia legislation (13 Car. 
 II. c. 6; 13 and 14 Car. II. c. 3; 15 
 Car. II. c. 4) the militia appears purely 
 as a counter-organization to the repub- 
 lican army and as an armed force of 
 
 the wealthy classes. The right of 
 appointing the deputy -lieuteunnts 
 and the officers of militia, exercised 
 by the lord-lieutenant, results in the 
 administrative and military corps being 
 formed of the county gentry. The 
 great landed gentry (500 income from 
 land) and the richest municipal land- 
 owners (5000 other property) furnish 
 the cavalry. The rich farmer (50 
 income from land) and the well-to-do 
 citizen furnish the infantry. The rest 
 of the population is, as regards the 
 duty of furnishing troops, infra classem. 
 The constables may, however, compel 
 petty landowners of less than 50 
 annual income from land, or 600 in 
 personal property, to furnish in the 
 same proportion weapons, pay, and 
 other additional expenses. Papists and 
 others, who refuse the oath, can be 
 forced to pay 11 a year to furnish a 
 horseman and his equipment, or thirty 
 shillings for a foot soldier and his 
 equipment. However, no one need 
 serve in person, but each may furnish 
 a substitute to the captain for his 
 approval. For defraying the expenses 
 of munition and other needs the ad- 
 ministration may impose an annual 
 rate, which must not exceed a quarter 
 of the monthly land-tax of 70,000, as 
 raised by 12 Charles II. c. 29. All this
 
 The Restoration. 583 
 
 Restoration of the royal supremacy, with which, in its later 
 course the episcopal constitution, the acts of uniformity, the 
 ecclesiastical jurisdiction and the liturgy of the Established 
 Church again revive ; and of course the right of the bishops 
 to sit and vote in the Upper House. 
 
 To these are added certain statutes in the common interest. 
 An amnesty, with the exception of the regicides ; immunity 
 of landed estates from feudal burdens ; restoration of seques- 
 trated and sold estates, to the Crown, the Church, and private 
 individuals. But, as a statute could not be agreed on as to 
 this last point, the old possessors took forcible possession by 
 driving out the new, in which transactions, however, a great 
 part of the injured parties went without compensation. After 
 the settlement of these difficult points, the Puritan army was 
 disbanded in the most orderly manner, without any attempt 
 at resistance. The upper classes were thus restored to their 
 ancient position; and upon the former knights'-fees very 
 valuable immunities were conferred. (l b ) 
 
 But the next use which the restored classes make of their 
 newly regained influence is, after the last barrier of modera- 
 tion (the army) had been removed, to wage a systematic war 
 with the moderate Presbyterian party, which had now done 
 its work ; as well as with the cities and boroughs, which had 
 naturally roused the hatred of the knighthood. With calcu- 
 lating sagacity the half-Presbyterian Parliament of the 25th 
 of April, 1660, was dissolved at the close of the year. The 
 new elections bring in a Parliament that was almost entirely 
 royalist. Although the Eestoration had been brought about 
 by the co-operation of the moderate middle party, the present 
 majority does not scruple subsequently to denounce the 
 Presbyterians, together with the Puritans, as anarchists, and 
 by a series of Acts of Parliament, systematically to persecute 
 all parties of " resistance " in both Church and State. Corn- 
 was directed against the Puritan army, royal revenue. But instead of im- 
 but under James II. was turned against posing the compensation as a perma- 
 the King's power. nent rent or increased land tax upon the 
 
 (l b ) The transaction of the abolition majority of landed estates, a malt-tax 
 of the military fiefs was in England no was resolved upon, which burdened 
 contest as to the abolition of privileges, persons of quite a different sort. This 
 but of burdens. The feudal dues on resolution, even supposing a state of 
 change of possession, wardship, mar- distress had existed among the im- 
 riage, and the like, owing to the uncer- poverished gentry, could hardly be 
 tainty of their periodical enforcement, justified, and was passed in the Lower 
 had for a long tune become unsuitable House with only a majority of two. 
 burdens. The republican Government The whole of the landed estates in the 
 had no longer raised them ; their re- country were, by 12 Charles II. c. 24, 
 introduction could not, even in spite of declared to be held from that time forth 
 the passion for "restoring," be dreamt in free and common socage. But their 
 of. And in the like manner it was liability to the land-tax and parochial 
 certain that the Crown must be com- taxes continued, of course, as hereto- 
 pensated for this chief source of its fore.
 
 584 Constitutional History of England. 
 
 pared with the behaviour of the republic towards the " delin- 
 quents," the Restoration meant to remain a step behind in 
 the application of force ; but, with the systematic consistency 
 of party, the present majority insisted upon expulsion of its 
 opponents from every office of authority in both Church and 
 State, and upon a purification of the bureaucracy. As the 
 majority of the civil local officials were corporation officers, 
 this step could only be made effectual by introducing oaths of 
 office, which excluded every honest opponent from holding 
 office. The "Act for the Regulation of Corporations " makes 
 a confession of the illegality of resistance a condition of being 
 admitted to, and also of continuing in, any civic office. Those 
 elected to serve in the future must, besides, have received 
 the sacrament according to the rites of the Anglican Church 
 within the year before their admission to office. In like 
 manner, by a new Act of Uniformity, the acceptance of the 
 Anglican Prayer-book was made a test for ecclesiastical 
 offices, in order, in spite of solemn assurances, to drive away 
 the Presbyterian clergy from their benefices. When the 
 appointed day arrived, two thousand clergymen resigned their 
 places. Every ordained clergyman must in future take an 
 oath as to the theory of non-resistance, otherwise he is 
 prohibited from teaching in schools, and is even forbidden to 
 reside within a radius of five miles from an incorporated 
 town. Supplementary police laws against the so-called con- 
 venticles, that is, against the religious service of Dissenters, 
 and laws for the limitation of the right of petition and for 
 securing a stricter censorship of the press, are the ordinary 
 apparatus of a political reaction, which here proceeds spon- 
 taneously from both houses of Parliament. (2) 
 
 (2) The second Parliament, also both gentry and Established Church 
 called the Long or Pensioner-Parlia- in a passionate party spirit begin to 
 merit, meets on the 8th of May, 1661, make of their regained power was un- 
 and continues, with long adjournments justifiable. Their hate appears to be 
 and prorogations, until the 24th of implacable, and frames one persecuting 
 January, 1 679 ; that is, almost eighteen measure after another. The Corpora- 
 years. At the commencement of this tion Act (13 Car. II. c. 12), for the 
 Parliament the Restoration suddenly purification of the civil bureaucracy 
 changed into an immoderate reaction and for the permanent expulsion of all 
 against the former republican and Dissenters from the municipal offices; 
 middle parties. But, as is always the the Act of Uniformity (13 and 14 
 case, the war-cries of the watchmen of Car. II. c. 4), more severe than that 
 Sion ring out loudest in Church and under Charles I., for the expulsion of 
 State when there is no longer any opponents from the ecclesiastical offices 
 danger to combat, but when selfish- and benefices ; the press and censorship 
 ness begins to make profit of the Acts (13 and 14 Car. II. c. 33; 16 
 victory that others have gained. The Car. II. c. 7) ; the Act against con- 
 Eestoration was justifiable from the venticles (16 Car. II. c. 4 ; 22 Car. II. 
 point of view of the ruling class, in so c. 1). But the deeply framed Test Act 
 far as what it strove for and recovered (25 Car. II. c. 2), which contains the 
 really belonged to it. The use, which rule that all offices of authority must
 
 The Restoration. 585 
 
 The exaggerated party watchwords of the Eoyalists, the 
 violence of their measures against all opposition, against the 
 press and the rights of societies, may easily cause the appear- 
 ance of retrocession beyond the boundaries of parliamentary 
 constitution. And thus has the Eestoration been, in fact, 
 frequently considered, though very erroneously. In spite of 
 all the indignation against the Eevolution, all the ostentation 
 on the part of the universities, and all the patriarchal theories, 
 the fact remained that the Eestoration meant the reinstating 
 of the monarchy by the wealthier classes, who on that very 
 account, in both Upper and Lower House, assert a pretentious 
 self-consciousness, such as had not been seen in England since 
 the barons' Parliament. Notwithstanding all theories, no 
 single advantage which had been gained in the Eevolution 
 was surrendered by these classes, and not one single real 
 parliamentary right acknowledged in the struggle with Charles 
 I., was again disputed. The watchword " Non-resistance," 
 upon which so much stress was now laid, only expresses the 
 royalist theory in the defensive, very different from the positive 
 claim to "absolute sovereignty," which was advanced in 
 former days. Just as little could the established ecclesiastical 
 hierarchy undo the fact that it had been reinstated by the 
 wealthy classes, and not vice versa. The independent hier- 
 archical tendency of the Episcopal Church broke down from 
 that time, and as from the first it found in Charles II. no 
 sincere protector, it was obliged to lean upon Parliament. 
 Both to its advantage and to its prejudice, the Church 
 henceforward was again interwoven with the position of 
 the ruling class. The Eevolution, in spite of all the hatred 
 which it had left in its train, had smoothed the way of parlia- 
 mentary government. The firmness of character displayed 
 by a Hampden, a Pym, and an Elliot, and the unscrupulous 
 determination of the Puritan champions, had left behind them 
 the universal feeling that the limits of the royal power could 
 not in future be overstepped by any minister without danger 
 to his life, or by any king without risking his throne. Charles 
 II. and his ministers were thus far perfectly agreed as to 
 the present position of the constitutional question. Within 
 these landmarks of the constitution, the ultra- royalist party 
 could be allowed to have its own way, which it did without 
 making any attempt to tamper with the foundations of the 
 constitution. In considering the theoretical principles of the 
 party, the practical ground of their rights was never for- 
 gotten, least of all in the Upper House. A restoration of the 
 monarchy was understood to mean a restoration of the long- 
 be held by members of the Established to the court idea of a reconciliation 
 Church, is meant as a counter-move with the papal chair.
 
 586 Constitutional History of England. 
 
 established prerogatives limited by the estates of the realm, 
 as they had existed before the encroachments of the Stuarts. 
 Magna Charta, the Petition of Eight, and the old-established 
 constitutional laws, were partly by word and partly by deed 
 acknowledged as continuing in force. (2 a ) 
 
 Charles the Second's Government is, in so far, a normal 
 parliamentary Government in the more modern sense. All 
 the legislation of this era is dependent upon an indisputable 
 majority of legally elected Parliaments. No attempt was made 
 at extraordinary legislation by the council; an insignificant 
 ordinance against coffee houses was even recalled on account 
 of doubts as to its being a constitutional measure. Just as 
 indisputable was the right of taxation ; no attempt was made 
 to raise by indirect means tolls, benevolences, and forced 
 loans. Parliamentary control of the administration and right 
 of impeachment were exercised more effectually than ever. 
 Formal encroachments on the part of the executive are much 
 rarer than under the Tudors. The possibility of such pro- 
 ceedings was also in a great measure removed, for even the 
 most extravagant supporters of the divine right of the Crown 
 and of non-resistance did not desire, and would have scouted 
 the idea of a Star Chamber and Court of Commission. The 
 institution of a Court of High Commission was expressly 
 forbidden, and on the restoration of the ecclesiastical juris- 
 diction, the express clause was inserted, that it was " not 
 the intention to restore that court, nor to give validity to 
 
 (2 a ) The Parliamentary history of army of officials. Here lay a main root 
 
 this period in its intricate details is of the opinions that only slowly changed 
 
 clearly told by Hallam, Const. in the course of the Long Parliament. 
 
 History, ii. c. 11, 12 (cf. Parry, " Par- In the life of the counties, towns and 
 
 liaments," pp. 533-587) ; for an artistic parishes, the dominant class evolved 
 
 description of its complication with from within itself a spirit of modera- 
 
 England's foreign relations, cf. Kanke, tion, which an unprincipled monarchy 
 
 vol. iv. p. 174, to vol. v. p. 92. The did not understand how to spread 
 
 Long Parliament of 1661 is the hinge about itself. The long duration of 
 
 upon which the question turns, whether Parliament was originally intended to 
 
 party-passion is the more dangerous in secure to the royalist party the full 
 
 the form of a sovereign legislative or fruits of its influence. But in the con- 
 
 of a political Government not limited sciousness of this security collisions 
 
 by law, and whether a system of party very soon began between the Upper 
 
 is more dangerous in its effects upon and the Lower Houses. In the years 
 
 the King in Parliament or upon the 1667-1670 party spirit reached its 
 
 King in Council. Party legislation turning point. From that time forward 
 
 has certainly been more effective in its the schisms gradually lead to a modera- 
 
 workings ; but a Government by law tion, to which the bye-elections, which 
 
 made the mistakes of the legislation so had become necessary after seventeen 
 
 perceptible even to the dominant party, years, also conduce. At the close the 
 
 that it was inclined to make concessions. retrospect of numerous impeachments 
 
 Still more strongly did the English of ministers and important laws for the 
 
 self-government work in this direction. protection of personal liberty presents 
 
 In the sphere of the community unjust a striking contrast to the feelings 
 
 and oppressive laws were felt in a much evinced at the beginning, 
 greater degree than in a disciplined ,
 
 The Restoration. 587 
 
 the Canons of 1640, nor to extend the authority of the 
 Church." 
 
 And yet, as is generally acknowledged, since the days of the 
 dishonourable John, England had not been worse governed 
 than in this period of a normal parliamentary and ecclesias- 
 tical constitution. The true position of the kingdom, which 
 certainly more than ever needed a royal mode of government, 
 was that the upper classes, restored to the possession of their 
 influence, only make use of this power for the systematic 
 persecution of their opponents in both Church and State. 
 This phenomenon was not new, but whilst formerly it had 
 affected a few individual persons of high standing, it was 
 now with legal consistency directed both against parties and 
 classes. It had formerly its chief seat in the Upper House ; 
 but now pre-eminently in the Lower. But just in this 
 point was seen how much the centre of gravity of con- 
 stitutional rule now began to move towards the Lower House, 
 and how much more dangerous the influence of parties could 
 be upon the legislation and administration in a factious 
 elective assembly. 
 
 There certainly was still a power which could put a check 
 upon these party practices. The King, personally popular 
 and influential, was again in a position to exert his royal 
 right of protection in favour of the weaker party, and to 
 regain the true rights of royal Government, being all the 
 more urgently called upon to do so, as he owed his throne 
 quite as much to the persecuted middle party as to the 
 persecuting party. What was required was the granting of 
 the solemnly assured protection both in Church and State 
 to a party, which as a majority in the Lower House in 
 December, 1648, and which as the last remnant of the Upper 
 House in the January of 1649, had manfully supported the 
 rights of the Crown and the person of the King in spite of 
 the violent action of the army. But for the second time at 
 a crisis we discover the true spirit of the Stuarts. Ignoring 
 his royal vocation, Charles II. once more discharged his God- 
 appointed office with a degree of frivolity and falseness that 
 has never been equalled in English history. With captivating 
 manners, but at heart empty, unconscientious, and immoral, 
 this Stuart used the throne primarily as a means of joviality 
 and pleasure. During his rule, which lasted twenty-five 
 years, the historian vainly looks for a trait of royal apprecia- 
 tion of the Church or the State, of institutions or of men. 
 As he dishonoured the service of the Church by frivolous 
 witticisms, so he degraded the peerage by his six bastards 
 whom he raised to the ducal dignity; and thus the parties 
 of the Upper and the Lower House were only important in
 
 588 Constitutional History of England. 
 
 his eyes according as they affected his comfort. The extreme 
 selfish proceedings of the royalists and their press he endea- 
 voured at times to stave off from his person, as troublesome 
 to him. Later, any criticism on the conduct of his court was 
 obnoxious to him ("that a set of fellows should inquire into 
 his conduct " (Burnet). But the thought of the more serious 
 duties of the Crown never occurred to him. He let factions and 
 ministers rise and fall or be impeached, while he trafficked 
 with English interests to fill his coffers. The only faith 
 that we can discover in his mode of action, is the faith in the 
 hereditary nature of the Crown ; the only dread, the thought 
 of re-awakening the Puritan opposition. Whilst Charles I. 
 politically undermined the belief in the Crown, Charles II. 
 undermined it morally. The deficiencies in the constitution, 
 owing to which such a mode of Government was rendered 
 possible, will be seen from the following chapter. (3) 
 
 (3) The later short Parliaments of ment and then the dissolution (Eanke, 
 
 Charles II. are contemporary with the v. 93-111). 
 
 controversy to be discussed below The fourth Parliament (from the 17th 
 
 (Chap, xlii.) as to the Protestant sue- of October, 1680, until the 18th of 
 
 cession. January, 1681), was again characterized 
 
 The third Parliament lasts from the by vehement resolutions passed against 
 
 6th of March until the 12th of July, the Papists, against the members of 
 
 1679, and is characterized by the the Privy Council, and against the 
 
 violent feelings displayed in both succession of the Duke of York. 
 Houses, and by the bill touching the The fifth Parliament (from the 21st 
 
 exclusion of the Duke of York from the to the 28th of March, 1681), was closed 
 
 succession, which having been adopted after the second reading of the ex- 
 
 in the Lower House by 207 against 128 elusion bill in the Lower House 
 
 votes, brings about firstly the adjourn- (Ranke, v. 138-179).
 
 ( 589 ) 
 
 CHAPTEE XLI. 
 Bfng fa Council anfc ify IBUng fa parliament. 
 
 WITH the Eestoration the old structure of the State is again 
 set up. The King is again surrounded by his smaller and 
 larger circle of councillors ; but in this period a change occurs 
 in their mutual relations, to the prejudice of the Crown and 
 to the advantage of Parliament. 
 
 I. ^Ije ^fttbg Council is revived, as a natural result of 
 the restoration of the Crown. It again consists of the great 
 officers, lords and " others," whom the King summons to it. 
 The great functionaries continue as enumerated in the rules 
 of precedence issued by Henry VIII. At their head is still 
 the Lord Chancellor who, since Lord Ellesmere (1603), is 
 more frequently elevated to the hereditary peerage. 
 
 The Lord Treasurer passes into the new position of a direct- 
 ing minister of State and finance. Under Charles II., the 
 Treasury, in the character of the supreme financial control, 
 becomes permanently separated from the old Exchequer in its 
 capacity as a general depository of revenue. The Treasury 
 receives a new location in the Cock-pit, whence decrees, 
 orders, reports and instructions proceed ; the personal appear- 
 ance of the Treasurer in the Exchequer ceases from this time. 
 Under the influence of the party-system the custom is also 
 introduced of dissolving the office into a commission of several 
 persons, (a) 
 
 Under Charles I. a special Lord President of the Council 
 was appointed; Charles II. had, in the interest of personal 
 rule, left the office unoccupied, until in 1679 it became 
 permanent. 
 
 To the great offices of State is now added also that of 
 Master of the Ordnance, for the management of munitions of 
 
 (a) The Lord Treasurer in this cen- to the financial department is a general 
 
 tury frequently appears as the leading excise office, similar to that which was 
 
 minister. But at intervals the admin- first formed in 1643 by the Long Par- 
 
 istration of the office is carried on by a liament. By 12 Charles II. cc. 23, 24, 
 
 commissioner, as in 1612, 1618, 1635, the excise becomes an ordinary tax 
 
 1641, 1654, 1658, 1659, 1660, 1667, under a chief excise office in London. 
 1679, 1684, and 1687. A new addition
 
 590 Constitutional History of England. 
 
 war, the head of which since 1603 received the title of general; 
 after the Restoration, the office was regarded as a ministerial 
 office, and by warrant of 1683, constituted in the way in 
 which it has remained until our own times. (&) 
 
 More and more important does the office of the two Secre- 
 taries of State appear, under Charles II. with separate ad- 
 ministrative departments. From them there further becomes 
 separated off in 1666 a Secretary at War, for the financial 
 administration of the army, in a somewhat subordinate 
 position, (c) 
 
 The stat. 16 Charles I. c. 10, touching the abolition of the 
 Star Chamber, is significant as affecting the position of the 
 council. As no constitutional experience failed to produce its 
 effect upon Parliament, the Eestoration did not seek to revive 
 the Star Chamber, which, in the significant words of the stat. 
 16 Charles I. c. 10, had now lost all remnants of adminis- 
 trative justice. The law declares the Star Chamber and every 
 tribunal of equal or similar jurisdiction to be illegal, denies 
 all jurisdiction, power, or authority of the council in all the 
 hitherto customary forms (below, Chap, xlviii.), and threatens 
 every official with heavy penalties, who shall take part in an 
 attempt to renew that jurisdiction. These powers were hence- 
 forward exercised by the King's Bench, so far as they could 
 be derived from a superintendence of the courts of law and 
 the magisterial jurisdiction ; but for the most important 
 extraordinary cases the only method of procedure was by 
 private bill, bill of pains and penalties, restitution, etc., which 
 shows that these extraordinary powers have passed from the 
 King in council to the King in Parliament. An important 
 motive for retaining a corporate form of council was thus 
 actually removed. For mere deliberative functions, the insti- 
 tution of smaller committees could not appear inappropriate. 
 Even under Charles I. the beginning had been made by a 
 Council of War and a Foreign Committee. At the commence- 
 ment of the Eestoration it was intended to form a number of 
 
 (6) The Ordnance Office is connected Restoration, cf. below, Chapter xliii.). 
 
 with the attempts of the Stuarts to (c) The office of Secretary of State 
 
 introduce a standing army. The war- also hns now still a somewhat fluctu- 
 
 rant of 1683, places at the head a atiug form. Whilst Elizabeth had, 
 
 Master-General of the Ordnance, under during the last years, kept Sir William 
 
 him a lieutenant-general and four high Cecil as a sole Secretary of State ; in 
 
 officers, and in this manner the ord- the years 1616, 1617, we meet with 
 
 nance office continued down to 1854. even three Secretaries of State ; after 
 
 The standing army (the so-called this time two is the regular number, 
 
 guards) who were retained after the There still continue reminiscences of 
 
 Eestoration, amounted at first to only the former less important office of 
 
 about 5000 men; but in 1685 the cabinet counsellor. Under the Restora- 
 
 nutnber was increased to 8700, with an tion their position as full ministers of 
 
 additional 7000 in Ireland. (As to the State is indisputable, 
 newly organized military system of the
 
 The King in Council and the King in Parliament. 591 
 
 special administrative departments. A document, probably 
 of a date shortly after 1660, is preserved in the Eecord Office, 
 which gives a list of the proposed committees. 
 
 1. A committee of foreign affairs, including the correspond- 
 ence with the magistrates and other county officials. 
 
 2. A committee for the Admiralty, military, and fortification 
 business, etc., so far as they are adapted for the council. 
 
 3. A committee of petitions of complaint and grievance, ex- 
 cluding those of a purely private nature. 
 
 4. A committee for commercial affairs, particularly for the 
 colonies, including Scotland and Ireland. 
 
 The Secretaries of State are to form part of all the com- 
 mittees. Besides these established committees, extraordinary 
 affairs, needing special deliberation, were to be treated by 
 specially appointed committees, " as was hitherto customary." 
 Such committees were to present written reports to the King, 
 to be laid before his Majesty at the next sitting of the council. 
 Of these projected departments only one council board was 
 practical at that time, which, under the name of a department 
 for foreign affairs, really discharged the whole business of 
 Government. But after the fall of Clarendon, all was merged 
 in the diffuse cabinet Government of Charles II. The com- 
 mittee remained only a name for the confidential transaction 
 of more important affairs in the King's cabinet, which soon 
 afterwards received the name, and assumed the character of 
 the " Cabal." Of the remaining committees only a Board of 
 Trade attained a definite form. After Cromwell's commercial 
 policy, it was not thought right to refuse trade and the 
 colonies a certain degree of stable administration. By patent 
 of the 7th of November, 1660, a council accordingly was 
 created for the general state and condition of trade, and by 
 patent of the 1st of December, 1660, a council of foreign plan- 
 tations, partly with the functions of a minister of the colonies ; 
 in 1660 both were combined in a council of trade and planta- 
 tions. In 1675, however, this department was again dissolved, 
 and it was not until 1695 that a new Board of Trade was 
 formed. 
 
 II. && 23pptr f^OUSe, in which the bishops again take 
 their places, on the 20th of November, 1661, assumes an 
 altered character, owing to the large increase in the temporal 
 peerage. Under James I. the number of the peers had been 
 doubled, and at the close of the period it was trebled. The 
 higher dignities conferred on peers, and the new creations are 
 computed at 98 under James I., 130 under Charles I., 137 
 under Charles II., 11 under James II. ; altogether 376 under 
 the Stuarts, against 146 during the period of the Tudors. 
 James I. created 62 new peers, Charles I. 59, Charles II. 64,
 
 592 Constitutional History of England. 
 
 James II. 8 (May, "Const. Hist.," c. 5) altogether 193, 
 against which were to be set off 99 extinct peerages. James I. 
 for some time even sold the dignities of baron, viscount, and 
 earl for the respective sums of 10,000, 15,000, and 20,000. 
 These lords are no longer like the nobility of the Middle Ages ; 
 they are the heads of the gentry, who conduct the internal 
 administration of the country, whose permanent position in 
 the office of justices of the peace and the county militia politi- 
 cally elevated and morally reinvigorated the peerage from 
 below. As early as James L, recognition had been obtained 
 for the principle that a peer must be summoned for each par- 
 liamentary session ; the position of the Upper House as the 
 supreme tribunal in the land is thus re-established and 
 strengthened. In the civil wars, with insignificant fluctua- 
 tions, the attitude of the lords on both sides was dignified and 
 commanded respect. They successfully vindicated their posi- 
 tion as depositaries of the law of the land, on the 2nd of 
 January, 1649, when the peerage, in spite of the onslaught 
 of the army after the King's condemnation, showed its courage 
 by unanimously rejecting the resolutions of the Lower House. 
 From the time of the Eestoration onwards the peerage proved 
 itself the permanent organ of the ruling class ; at first, it is 
 true, going with the ultra-royalist current, but soon again 
 appearing at the head of the opposition. By the numerous 
 new creations of this period, fresh energy and fresh influence 
 flowed from decade to decade from the counties into the Upper 
 House, which, in the time of corruption and party intrigues, 
 was the first to restore a moral support to Parliament, and 
 gained a paramount influence by the continual ministerial 
 changes. The peerage has now become the moderating 
 element for the protection of the constitution, in the face of 
 vehement party clamouring for change. (2) 
 
 (2) The constitution of the Upper the number of the temporal peers alone 
 House changes its character owing to is now 142. In 31 Car. II. the whole 
 the very numerous creations of peers. number (including fourteen minors and 
 The peerage, which under Elizabeth seven recusants) is 181, and in 1 James 
 was held with a tight hand, appears II., 178. The number of the bishops 
 under James I. to be visibly increasing. (26) remains unchanged. The founda- 
 In 4 James I. writs of summons are tion of the power of these new peers lies 
 directed to one marquis, 22 earls, three in the county self-government, and in 
 viscounts, and 46 barons. A generation their pre-eminent position in the local 
 later writs to the Long Parliament are military and police administration, to 
 issued to one duke, one marquis, 63 which their position as hereditary coun- 
 earls, five viscounts, 54 barons, two sellors of the Crown corresponds in the 
 archbishops, aud 24 bishops; the whole central administration. With the radi- 
 number has thus increased to 150 ; the cal abolition of all the remains of feu- 
 temporal peerage has already almost dalism by 12 Car. II. 24, their newer 
 doubled. To the Long Parliament of position appears still more unalloyed 
 Charles II. in 1661, there were sum- and decided. In 22 Car. II. the King, 
 moned five dukes, four marquises, 56 renewing an old custom, again began 
 earls, eight viscounts, and 69 barons ; to take part personally in the proceed-
 
 The King in Council and the King in Parliament. 593 
 
 III. fEDe Hofoer I^OUSe, during the period of the Stuarts, 
 experienced only trifling changes in its constitution by the 
 admission of the county palatine of Durham, and by another 
 increase in the representation of the boroughs. In the Par- 
 liaments of the Republic, the towns, from possessing four- 
 fifths of the votes in England, had been reduced to one-third, 
 but were now again represented in greater number than 
 before. After the Eestoration, country gentry, Church, and 
 Crown all agreed to keep down the spirit of independence that 
 was showing itself in the middle classes of the towns. The 
 Corporation Act (13 and 14 Car. II. c. 2), sufficed for this 
 purpose for a number of years. But during the Long Parlia- 
 ment of Charles II., opposition in this quarter was again dis- 
 cernible in the several by-elections. Thus situated, Charles 
 II., in 1681, resolved, in the interest of court influence, still 
 further to cripple the constitution of the boroughs. By the 
 writ of quo warranto the new principle of a "forfeiture of the 
 municipal constitutions " was applied in cases of abuse or 
 informality. The charters were cancelled in great numbers, 
 to be replaced by new ones of an oligarchical nature. James 
 II., continuing this campaign, created everywhere small select 
 committees, which, like the civic offices, were to be revocable 
 at the pleasure of the Crown. In London alone, Jeffreys 
 robbed 1900 enfranchised freemen of their suffrage, and was 
 nevertheless blamed by the King for not making a more tho- 
 rough clearance. In a few years 200 new charters of this 
 description were issued. Including the mutilated municipali- 
 ties, the number of members for England and Wales after 
 the restoration was 512. (3) 
 
 ings, without, however, enhancing the tion and creation of close boroughs a 
 
 dignity of the proceedings by his high very " politic " measure, and in the 
 
 presence. twelfth year of his reign, when Dun- 
 
 (3) The constitution of the Lower gannon, in Ireland, was made a borough, 
 
 House was increased under James I. it was declared by his judges that the 
 
 by twenty-seven, under Charles I. by King could by his charter so incorporate 
 
 eighteen, and under James II. by six the city in the form of select classes and 
 
 members. The excessive number of a commonalty, that the whole body had 
 
 borough representatives had for cen- the rightto send membersto Parliament, 
 
 turies been a legislative problem. It whilst the exercise of the right was at 
 
 had arisen at a time when the Commons, the same time confined to the select 
 
 as yet in a subordinate position, as- classes. After this fashion, under 
 
 sembled principally to vote the taxes. James I. and Charles I., seventeen old 
 
 The Lower House was now a corporate boroughs were reinstated in their lost 
 
 unity, the members of which, after parliamentary franchise ; and four new 
 
 long political struggles, had for a long parliamentary boroughs were created. 
 
 time considered themselves no longer The Parliament itself, which since 
 
 merely as delegates of their constituen- James I. had gained the exclusive 
 
 cies, but of the whole country. With right of deciding its own elections, 
 
 the Stuarts begins a general tendency now also acknowledges in a resolution 
 
 to a transformation of the municipal of committee of the year 1623 the prin- 
 
 communities by incorporation. Even ciple that a limitation to a narrower 
 
 James I. considered a social organiza- circle of electors could validly tak 
 
 2Q
 
 594 Constitutional History of England. 
 
 Apart from this, the constitutional struggle greatly elevated 
 the self-reliance of the Commoners. The local government 
 system became consolidated in the parishes, and allowed the 
 middle classes, who took part in it, to exercise a stronger 
 influence upon the parliamentary elections. Besides this, 
 the enormous suppression of the poorer electors in the munici- 
 pal constituencies by the new corporation charters assimilated 
 the relations in town and country to each other in favour of 
 a uniform influence of the gentry in both borough and county. 
 The great extension of the magisterial office especially 
 strengthened the legitimate influence of the gentry, began to 
 level the difference between the greater and lesser nobility, 
 and to give to the whole of the more highly educated and 
 wealthier classes the common feeling of a dominant class. In 
 the intellectual life of the people the internal effect of the 
 Eeformation was now everywhere manifest. It is accordingly 
 easy to understand, how, after the Eestoration, the House of 
 Commons was enabled to proceed with an amount of self- 
 reliance till then unknown. During its eighteen years' dura- 
 tion, the Parliament, much against Charles the Second's 
 intentions, had educated a body, the most illustrious members 
 of which felt themselves the equals in political experience and 
 social position of many of the peers recently created from 
 among themselves. Thus may be explained the numerous 
 disputes between the two Houses concerning competence and 
 etiquette. 
 
 With respect to the finances, the influence of the Lower 
 House appears materially enhanced. In 1626, the Commons 
 succeeded in establishing their precedence in the question of 
 money bills, with regard to which they figure as the solely 
 voting part of the legislature. This claim was further 
 
 place by "prescription and custom, respected the interests of the towns 
 
 whereof the memory of man runneth and their feelings, and endeavoured 
 
 not to the contrary." In another to win them over. They remain ac- 
 
 direction, in a celebrated committee of cordingly the chief hearth of political 
 
 the year 1640, under the presidency of and dissenting opposition, from which 
 
 Serjeant Glanville, the old maxim that the provincial opposition drew its chief 
 
 every one paying scot and bearing lot strength. Instead of a reform the 
 
 was entitled to the franchise, was again Crown, however, only gives them the 
 
 recognized to be the regular rule, and mutilation of the right of suffrage by 
 
 applicable in every doubtful case. After charters framed upon oligarchical lines, 
 
 the experiences of the revolutionary Moreover, it was reserved to the Crown 
 
 period the question had now become to make changes from time to time in 
 
 a highly important one which on all the new charters, at its pleasure, through 
 
 Bides now began to be estimated aright. Government commissioners. Instead of 
 
 The municipal elections opened to the restoring a self-relying and independent 
 
 landed gentry in their magisterial and citizenship on lines analogous to those 
 
 social position an almost greater per- of the county system, the Stuarts prac- 
 
 eonal influence than the county elec- ticed their kingcraft even upon the 
 
 tions, yet not to every gentleman, but towns, 
 only to such as to a certain extent
 
 The King in Council and the King in Parliament. 595 
 
 strengthened by the abolition of the hereditary feudal revenue 
 of the King. The concentration of the whole of the direct 
 State taxes by a uniform assessment, combined with the new 
 requirements of the State and the army, but most especially 
 the bad financial economy under Charles II., conduce to a 
 constant extension of the right of voting the money bills. 
 After 1664 tenths and fifteenths are no more mentioned, but 
 the old republican mode of assessing land and income tax in 
 concrete is again resorted to ; Cromwell's rectification of the 
 tax-rating and assessment lists was accordingly retained. 
 Into this thorough taxation-assessment, ecclesiastical property 
 was likewise drawn. Since the special money grants of the 
 clergy had long since lost their peculiar character, it was only 
 a somewhat delayed consequence, that the outward form also- 
 of the grant in Convocation was in 1664 abolished by means 
 of a simple agreement between the Lord Chancellor and the 
 archbishop, in return for which, as a matter of course, the 
 right of suffrage in parliamentary elections was conceded to 
 the clergy by virtue of their freehold tenure. By 16 and 17 
 Car. II. c. 1 the parliamentary subsidies were for the first 
 time raised according to this new system. The long labour 
 of reuniting the clergy with the laity had involuntarily at- 
 tained this result. Still more durable was the influence of 
 the Lower House owing to the introduction of the so-called 
 appropriation clauses into the money bills. Amid all the 
 intrigues of the court and of parties, a change was effected 
 by 17 Car. II. c. 1, according to which a clause of expenditure 
 is annexed to the money grant, by which the Lower House 
 assumes the control of the expenditure-budget of the State, 
 and thus gains a less apparent but a permanent influence 
 upon the course of political administration. (3 a ) 
 
 (3) Oddly enough this change in of the Government, loans from bankers 
 the budget was brought about by the (at that time the Goldsmiths' company, 
 aid of an intrigue at court. Sir George in London), upon the personal credit 
 Downing, one of the tellers in the Ex- of the King and the Lord Treasurer, 
 chequer, suggested to Charles II. that The King probably wished by this 
 a proviso should be added to the im- clause to evade the obligation of em- 
 pending bill of supply, "that all moneys ploying the moneys voted for the re- 
 to be raised by the bill should be ex- payment of such advances. The minis- 
 clusively applied to the purposes for ters strove to get the dangerous in- 
 which they were voted." By this novation annulled (" Life of Claren- 
 means the disposal of supplies would don," continuation, p. 315, eeq.) ; but 
 be taken from the Lord High Treasurer, the bill had already passed the Lower 
 and the King would be enabled person- House, and though it was delayed by 
 ally to conduct the business of the Ex- the Lords, it could not be thrown 
 chequer, so that the Exchequer would out, without risking the whole vote 
 at once afford the best opportunity for (1,250,000). The King accordingly 
 investing moneys, and in consequence declared that the clause had been pro- 
 would become the greatest bank in posed with his sanction, and the Act 
 Europe. This was connected with the (17 Car. II. c. sec. 5) really passed with 
 custom of raising, for the current needs the proviso, that a separate account
 
 596 Constitutional History of England. 
 
 It is characteristic, that both Houses, when at the height 
 of their loyalty, are bent with a hitherto unheard of zeal upon 
 establishing and enlarging their personal privileges. In 
 15 Charles II. the House recurred to the unconstitutional 
 criminal proceedings taken against Sir John Elliot and his 
 associates. With the complete concurrence of the Upper 
 House, the judgment delivered at that time by the King's 
 Bench was declared null and void, and the unconditional 
 irresponsibility of the members for their speeches and pro- 
 cedure in the House was recognized by express resolution 
 (Hatsell, " Preced.," i. pp. 86, 208 seq., 251 seq.). Liberty of 
 speech has since that time never again been called in question. 
 
 The relation of the Crown towards the greatly increased 
 pretensions of Parliament was in no wise so favourable as the 
 ultra-royalist theories led men to expect. However, in spite 
 of the abolition of the Star Chamber and the Court of High 
 Commission, there was still many a loophole for the effectual 
 exercise of the King's influence in his spiritual supremacy and 
 temporal prerogatives; by the appointment of the council 
 and the judges of the realm, and by other rights of appoint- 
 ment in both Church and State, by grants of favours, by 
 personal influence with the members of both Houses, and 
 with important local officials. The future of the monarchy 
 depended upon the use which it made at this time of its per- 
 sonal rights. But Charles II., fatally misjudging the future, 
 exercised these rights in a manner which has covered his 
 name with everlasting obloquy. The narrower the sphere of 
 a possible use of the royal prerogatives had become, the more 
 unconscientiously was it exercised by Charles II. and James II. 
 
 1. The right of appointment vested in the council leads in the 
 hands of Charles II. to the transformation of an honourable 
 council of ministers into an unprincipled cabinet. James I. 
 had, after the death of Elizabeth's old ministers, abandoned 
 the custom of the continuous transaction of State business in 
 the council in order to enforce his private ideas with respect 
 
 should be kept of the moneys raised in 19 Car. II. c. 9, "an Act for taking 
 
 accordance with this act, distinct from the accounts of the several sums therein 
 
 the King's other revenue, " and that mentioned," by which the Lower House 
 
 no moneys leviable under the act should effectually secured a power that had 
 
 be issued out of the Exchequer during been occasionally exercised in the 
 
 the war, but by order or warrant, men- fifteenth century, of examining into 
 
 tioning that they were payable for the the special application of the public 
 
 service of the war." In the ensuing revenue, and thus exercising the right 
 
 year the Commons again voted the sup- of jointly controlling the expenditure 
 
 plies with the same disagreeable pro- budget. The clause of appropriation 
 
 viso, to which the King agreed with a became from that time forth more and 
 
 bad grace, and promised to appoint a more a standing formula, and in the 
 
 commission under the great seal, which eighteenth century witli some excep- 
 
 wae indeed, pro forma appointed. But tions was permanently inserted. 
 in the ensuing year was passed the stat.
 
 The King in Council and the King in Parliament. 597 
 
 to Church and State in confidential cabinet deliberation. 
 Charles I., himself irritable and inexperienced, carried on 
 with heedless advisers this mode of government, which at 
 every critical moment gave the Queen and the courtiers a 
 deciding voice. But under Charles II. the second era of a 
 cabinet government begins, which is remarkable as the per- 
 sonal creation of the King. Even after the judicial powers of 
 the council had been cut away root and branch, there was 
 left to this cabinet the decision as to important measures of 
 domestic policy, and the whole province of foreign affairs, 
 which latter, from their very nature, could not be dealt with 
 according to legal principles and parliamentary laws. The 
 use made of these under the Cabal ministry, as well as under 
 Shaftesbury's and Danby's administration, is known to his- 
 tory. In the European complications of that time, France 
 pursued no other aim but that of hindering the consolidation 
 of the constitutions in the neighbouring states, weakening 
 their participation in European diplomacy, fostering their 
 internal dissensions, and directing the personal interests of 
 the several rnonarchs to dynastic alliances and treaties of 
 peace. The great Louis actually succeeded in doing this in 
 England. The position of foreign affairs had, in the second 
 half of the seventeenth century assumed a more complex form 
 than in the first half. The question of Protestantism stood 
 no longer alone in the foreground, but was intermixed with 
 questions of the European balance of power. The natural 
 alliance of England and Holland was at times opposed by a 
 petty spirit of trade jealousy. Here was a fruitful soil for 
 diplomatic complications, for which Clarendon's dismissal 
 was the signal. When in 1668 the King found his coffers 
 empty and the temper of his Parliament doubtful, he devised 
 the plan of entering into secret negotiations with the King of 
 France, which might lead to the furnishing of money supplies. 
 In the course of the confidential correspondence, the question 
 of religion became mixed up with the money question. In 
 January, 1669, the King summoned Clifford, Arlington, and 
 Arundel to a confidential conference at the Duke of York's, 
 and declared how painful it was for him not to be able to 
 confess his true faith. With tears in his eyes he entreated 
 them to advise him as to the best manner of enforcing the 
 Catholic religion in the realm. This negotiation leads, after 
 the lapse of a year, to the secret treaty with France (1670), 
 in which it is left to Charles to choose the time that shall 
 appear most suitable to him for publicly declaring himself a 
 Catholic. On the other hand France promises an annual 
 sum of 200,000 for defraying the war expenses, for the pro- 
 mised assistance against the Dutch, and for keeping down the
 
 598 Constitutional History of England. 
 
 dissatisfaction that was to be expected in England. Both 
 parties give up all claim to independent peace negotiations 
 (Eanke, iv. 858 scq.) When the French subsidies are ex- 
 hausted, Charles again demands, in the year 1674, a fresh 
 subsidy of 400,000, with the intimation that otherwise Par- 
 liament would have to be convened, which would at once 
 declare for war in alliance with Holland against France. 
 Louis, however, on this occasion, pleads want of money, and 
 grants only about one-fourth of the sum demanded, on the 
 King's promising to prorogue Parliament from November, 
 1674, to April, 1675. In the later negotiations (1678) Charles 
 II. adheres to the policy of selling his neutrality at the highest 
 price which could possibly be obtained from France. Whilst 
 the increasing greatness of France fills Europe with alarm, 
 and Parliament, ready for war, in 29 Car. II. declares for 
 an alliance with the States General, the King ungraciously 
 replies to the address, "that it was a matter ill calculated for 
 the interference of the House, which was encroaching upon 
 his prerogative of making war and peace." In this state of 
 affairs, Louis accords a further payment of 2,000,000 livres 
 for the year 1681, and an annual allowance of 500,000 crowns 
 for the two following years. Whilst the King declares to 
 Parliament his readiness to begin a war with France, and 
 demands subsidies for this purpose, he is at the same time 
 engaged in selling his services to the French King at the 
 highest possible price. The legal responsibility of the minis- 
 ters for violations of law certainly did not suffice for treason 
 -on the part of the King himself. It ean easily be understood 
 how Parliament came to extend impeachments of ministers 
 io their political conduct, to the "honesty, justice, and 
 ability " of the ministerial administration, a principle which 
 was first laid down in the impeachment of Danby, and led to 
 the idea of a so-caUed political responsibility of the ministers 
 to Parliament. (1) 
 
 (1) The cabinet and the foreign II. 'there was added to the perverse 
 
 policy of Charles II. was the develop- family traditionsthe influence of French 
 
 ment of a system of earlier invention, .education and manners. A thorough 
 
 James I. had more and more abandoned description of these foreign affairs 
 
 the solemn sittings of the council, regu- (Ranke, iv. 196-496 ; v. 1-92) presents 
 
 lar deliberations with the assistance of extraordinary difficulties on account of 
 
 the judges, and the formal recording the complication of the European and 
 
 of the proceedings. Charles I. had cabinet intrigues with the party-system 
 
 during the civil war at last given up of Parliament. As to the first attempts 
 
 all formality. The loophole which was at a reunion with Rome cf. Ranke iv. 
 
 here afforded Charles II. left the whole 232-256 ; as to the origin of the Test 
 
 of foreign policy open to an irregular Act, iv. 411-425; as to the secret 
 
 treatment. Alliances, treaties, and Treaty with France of 1670, iv. 358- 
 
 political combinations in foreign af- 376. It was only in the later compli- 
 
 fairs were the proper field for the cations that Louis XIV. came into im- 
 
 frivolity of his character. In Charles mediate connection with the opposition
 
 The King in Council and the King in Parliament. 599 
 
 2. The right of appointing the judges had been already made 
 use of by Charles I. for filling the bench with men of con- 
 fidence and adherents of absolute sovereignty, and, by the 
 influence of the cabinet and the court for making the judges 
 instruments of an unconstitutional Government. The second 
 period of the Stuarts in this matter likewise went to greater 
 lengths than the first. After 1665, the revocable appoint- 
 ments of judges were resumed, and, after Clarendon's dismis- 
 sal, the King thought he need put no further constraint upon 
 himself. During his reign three lord chancellors, three chief 
 justices, and six judges were dismissed, notoriously for politi- 
 cal reasons, and, on the other hand, the most important 
 places were filled by pliant minions of power. The maxim 
 of Government, which Bacon had applied to Henry VII., had 
 returned, viz. " he governed his subjects by the laws, but the 
 laws by the lawyers." The more cunning devices of Charles 
 the Second tried to prevent these manipulations of justice 
 from becoming too notorious. In the action against Sir S. 
 Barnardiston, however, a procedure was employed which was 
 patent to every one, by which the King, immediately before 
 the decision in the appeal court, appointed as members of the 
 court sundry counsel who had conducted the prosecution. 
 When the proceedings touching the pretended papist plot 
 began, Chief Justice Bainsford was dismissed to make room 
 for Scroggs, who proved himself entirely worthy of the confi- 
 dence reposed in him, by continuing the false charges first in 
 one direction and then in another, and by freeing the Duke 
 of York from a serious charge, by the sudden dismissal of a 
 grand jury. As he had, however, completely lost his credit 
 by this notorious scandal, it was found to be expedient to give 
 him a successor, who had, on the same occasion, proved him- 
 self quite as unconscientious. Pemberton was made chief 
 justice, chiefly, that he might preside at the trial of Lord 
 Bussell, whom he certainly brought to the scaffold without, 
 however, satisfying all the expectations of the court. He was 
 accordingly soon replaced by a successor, on whom the King 
 could even more implicitly rely. The judicial decision most 
 important for the King at this time was the annulling of the 
 municipal constitution of London and of the borough charters. 
 For this purpose, after the dissolution of the last Parliament 
 (28th March, 1681), the proceedings began by a writ of quo 
 warranto, under the conduct of Saunders, the most adroit 
 special pleader of his day. After the case had been drawn 
 
 in Parliament (Ranke, v. 55-73), as to ments- to members of Parliament is 
 
 which Charles was quite as much de- said, however, not to have exceeded 
 
 ceived as the Parliament was by him. the sum of 16,000. 
 The total amount of the French pay-
 
 600 Constitutional History of England. 
 
 up with every artifice, Saunders was appointed Chief Justice 
 of the King's Bench (Amos, 141, 263). As an extra precau- 
 tion, Charles personally exhorted the judges that they should 
 deliver judgment in his favour, whereupon the city was con- 
 demned to lose its municipal privileges and to pay a fine of 
 70,000. James II. was still more shameless, and in three 
 years went so far as to dismiss twelve judges, and to raise 
 that personification of dishonour, Lord Jeffreys, to the chief 
 justiceship of the King's Bench, to the post of Lord Chan- 
 cellor, and to that of president of a kind of pseudo Court of 
 High Commission. Sir Edward Herbert and Sir Francis 
 Withers were in 1685 dismissed from the King's Bench on 
 account of their refusal to issue a legal decree at the King's 
 behest ; Chief Justice Jones, Chief Baron Montague, and the 
 Judges Charleton and Nevil were dismissed in 1686 on 
 account of their scruples as to the King's power of dispensa- 
 tion, and the judges Powell and Holloway in 1688, on account 
 of their vote in the trial of the seven bishops. On the decisive 
 question of the dispensing power, James first of all obtained 
 a legal opinion as to his power to suspend the Test Act. 
 Then, for the sake of form, a prosecution was commenced 
 against a Catholic officer in the King's Bench, which Court, 
 after the removal of the opposing judges, and with the aid 
 of fresh appointments (among which were those of two Catho- 
 lic judges), now at length arrived at the decision, that the 
 laws were "the King's own laws," from which the dispensing 
 power of the King was deduced. James called this a simple 
 measure, in order that the judges should be "all of one 
 urind." (2) 
 
 With this staff of judges, the political trials were now con- 
 
 (2) The appointments to tbe judicial dismissal was that he had on circuit 
 
 bench returned with the restoration to contradicted the opinion of Scioees 
 
 the old forma A monograph on the " that the presentation of a petition' 
 
 Constitution under Charles II., by for the summoning of Parliament was 
 
 Amos (London, 1857), gives the details high treaeon, and that the Kin- could 
 
 the administrative conditions for th.e by ordinance ordain what he pleased " 
 most part correctly, though somewhat Pembertou's dismissal was followed by 
 exaggerated by the manner of grouping the still more scandalous appointment 
 them. After 1665 Charles II. appears of Saunders. After the death of Chief 
 to have made use of the long proroga- Justice Saunders, Jeffreys was ap- 
 tion ol Parliament, quietly to reintro- pointed chief justice primarily for the 
 duce revocable appointments durante conduct of the political trial of Sidney 
 bene plactto. In quick succession Lord On the occasion of the impeachment of 
 Chancellor Clarendon, Shaftesbury, and Lord Danby Lord Jeffreys also per- 
 tfridgeman, Chief Justices Eainsford, formed the still more important service 
 bcroggs, Pemberton, and six justices of freeing the minister from arrest on 
 were dismissed, notoriously for political bail, without setting forth any reasons 
 reasons. Apparently for the same the first dumb judgment in West- 
 reasons the judges Atkyns and Leeke minster Hall," as it has been called by 
 gave m their resignation (Foss, vii. 4). a later Solicitor-General (Amos 56V 
 In the case of Atkyns the reason for his
 
 The King in Council and the King in Parliament. GO I 
 
 ducted according to instructions from court, and thus were 
 the unsettled principles of high treason, sedition, and the 
 laws and ordinances touching the press manipulated. The 
 chief handle for such action was found in the old indefinite- 
 ness of the laws affecting high treason, which indefiniteness 
 was increased by the clause in an Act of 1661, to the effect 
 that " printed matter, writing, sermons or malicious and 
 deliberate speeches " were to be regarded as a sufficient evi- 
 dence of fact. Just as elastic was the notion of sedition since 
 Clarendon had laid down that the publication of a seditious 
 work was equivalent to bringing an army against the King's 
 throne. Amongst others, the trial of the seven bishops was 
 set on foot on a charge of sedition, the notion of which, to use 
 an expression of Lord Guildford, was of the " nature of soft 
 wax," But most elastic of all was the notion of libel. The 
 interpretation of such notions was supplemented by the press 
 laws of the time. The leading statute 13 and 14 Car. II. c. 33 
 was only to remain in force for three years, but was twice 
 prolonged until 1679. After it had expired, a new ordinance 
 appeared in the London Gazette on the 17th of May, 1680, 
 and was the object of violent attacks in Parliament. Yet, in 
 the stream of reaction of the year 1685, the old press laws 
 were again revived. In consequence of the large powers 
 appertaining to the judicial office, the criminal sentences, 
 especially for libel, overstepped all bounds. Not only were 
 fines of 40,000 and similar sums imposed, but even lashes 
 with the cat-o'-nine-tails (Johnson, a clergyman, was con- 
 demned to 317 lashes for libel, cf. Amos, 253). Judgment was 
 given in favour of the Duke of York for damages of 100,000 
 on three different occasions. 
 
 From this judicial staff proceeded that brutal intimidation 
 of juries, which characterizes this period. The natural result 
 was the passing of the Habeas Corpus Act, and the uncon- 
 ditional acknowledgment of the irresponsibility of juries. In 
 a famous decision of 1679, the courts of common law at 
 length recognized that the jurors were not responsible for the 
 legality of their verdict. Under James II. the acquittal of 
 the bishops, in the face of their prosecution by a despotic 
 monarch, produced a permanent conviction, that in an unani- 
 mous verdict there lay the strongest guarantee, which a 
 judicial constitution can afford against despotism and party 
 passion. The whole body of the judges, however, was so 
 corrupt, that, after James's expulsion, only criminal prosecu- 
 tion and dismissal could be resorted to. After these experi- 
 ences it even did not appear to be easy to declare the judges 
 irremovable by law ; rather was the more attention paid to 
 impressing the legality of the Government, not merely upon
 
 602 
 
 Constitutional History of England. 
 
 the consciences of a number of paid justices, but upon a still 
 broader combination of the judicial office with the propertied 
 classes. (2 a ) 
 
 8. The personal influence of the court upon Parliament, and 
 upon the appointments of other officials, was still extensive, 
 and was exercised by Charles II. in a manner which gained 
 for the Long Parliament the name of the Pensionary Parlia- 
 ment. Amidst such surroundings it was really difficult to 
 maintain personal integrity in a parliamentary office, or, in 
 party formations, anything like constancy. The list of the 
 recipients of pensions as a sort of official salary, includes the 
 
 (2 a ) An impediment to such an ad- 
 ministration of jiistice was still found 
 in the jury. According to a clever 
 plan, which he had continued for 
 years, and in which Chief Justice 
 North, his brother, and a Turkey mer- 
 chant were employed, together with a 
 third brother, Charles II. by unworthy 
 means succeeded in appointing subser- 
 vient sheriffs for London, with a view 
 to the summoning of the grand jury. 
 In the correspondence on this subject 
 the name of the object is directly de- 
 clared to be the removal of that mon- 
 ster which in the years 1680-1682 had 
 raged in the city of London under the 
 name of Ignoramus (that is, the ignoring 
 of bills by the grand jury). The ques- 
 tion for the Crown was, whether treason 
 and sedition were still punishable in 
 London and Middlesex or not. The 
 details are given by Amos, 266 seq. 
 One of the objects of annulling the 
 municipal charters was to remove the 
 independent sheriffs and magistrates, 
 who had to draw up the lists of the 
 jurors liable to serve. In November, 
 1683, by a jury under the new system, 
 Algernon Sidney was actually brought 
 to the scaffold. In the midst of such 
 a state of things the Act of Habeas 
 Corpus was passed, after various at- 
 tempts at the measure in the years 
 1668, 1670, 1674, and 1675 ; cf. Amos, 
 pp. 180-190. Lord Shaftesbury must 
 be regarded as the prime author of 
 this Act. The reason for its accept- 
 ance by Charles II. was that he was 
 just about to dissolve Parliament, to 
 attain more favourable elections against 
 the Bill of Exclusion. Under these 
 conditions the bitter words of Marvell 
 at the close of Charles the Second's 
 reign are readily understood, " what 
 French counsel, what standing armies, 
 what parliamentary bribes, what 
 national oaths, and all the other ma- 
 chinations of wicked men had not 
 
 been able to effect, was more compendi- 
 ously acted by twelve men in scarlet " 
 (Amos, 261). But still more shameless 
 does this royal system appear under 
 James II. Lord Chancellor Jeffreys, 
 who may well be regarded as an au- 
 thority upon such questions, describes 
 his colleagues of that time with his 
 accustomed frankness, " as for the 
 judges, they are most of them rogues " 
 (Foss, vii. 201). The uncongenial task 
 of sketching the life of this Chief 
 Justice, Lord Chancellor, and Presi- 
 dent of the Court of High Commission, 
 is again undertaken by Foss, vii. 226, 
 seq. After James the Second s expul- 
 sion not one of the ten justices who 
 were then in office was found worthy 
 of being retained ; Lord Jeffreys was 
 condemned to outlawry and the confis- 
 cation of his goods, and six others were 
 expressly excluded from the Act of In- 
 demnity. Under these circumstances 
 England learned to appreciate the 
 value of an honorary magistracy in 
 self-government, which granted to the 
 official, in spite of his revocable ap- 
 pointment, a full judicial independence 
 by virtue of property. After the Re- 
 storation had removed the oppression 
 which Cromwell's military governors 
 had practised, the judgments of jus- 
 tices of the peace, in spite of the some- 
 what patriarchal exercise of their 
 powers, and their excessive rigour in 
 dealing with poachers, were still re- 
 garded as an upright justice in a 
 corrupt time. Among the abuses by 
 which James II. characterized his short 
 reign, is to be reckoned also the sys- 
 tematic consistency with which magis- 
 trates, who had shown a want of 
 complaisance to the intrigues of the 
 court, were struck off the lists, but 
 without any particular result. The 
 office of justice of the peace and the 
 jury passed unspotted into the eigh- 
 teenth century.
 
 The King in Council and the King in Parliament. 603 
 
 names of the first men of the day. At times there appears to 
 prevail also among the opposition only belief in the material 
 value of money and office, as the one great object of the time. 
 To the great public offices in those days were attached salaries, 
 which amounted from one to two per cent, of the whole State 
 revenue ; greater than the income of the richest lords. The 
 struggle for office, acted and reacted upon by the intrigues of 
 parliamentary parties, became thus a struggle for life and 
 death, and round the leading men of the moment were 
 gathered a number of intimate friends, who clung fast like 
 polypi to the State treasury. All that was required for office 
 was a confession of faith in the dominant faction, a readiness 
 to further their nearest aims and ends, adroitness in intrigue, 
 and a quick perception, in order to be able to descry the 
 change of parties at court and in Parliament at the right 
 time. In like manner, the internal administration of this 
 period left behind it the impression, that the trustiness and 
 honesty of the central government were not to be expected 
 to emanate from the Crown and the court, but from Parlia- 
 ment, and most especially from the character of the nation. 
 In opposition to the court party, a " country party " had 
 become formed. The council, though internally broken up, 
 .enters, in the persons of the individual and responsible 
 ministers, into more apparent relations with the majorities 
 in the Parliament, in which also the growing participation of 
 the Lower House, especially in the offices of Secretary of 
 State and in the Treasury Commissions, is also visible. (3) 
 The transition to the system of party government is through- 
 out visible. 
 
 (3) The general character of the ad- restored. They had seen the Long 
 
 ministration and the bureaucracy may Parliament thrice supreme in the State, 
 
 be explained by the deeply rooted and thrice dissolved amidst the curses 
 
 animosity displayed by the parties, be- and laughter of millions. . . . They 
 
 tween which the bureaucracy stands had seen a new representative system 
 
 without finding any support in the devised, tried, and abandoned. . . . 
 
 Crown. It is characteristic of the They had seen great masses of property 
 
 programme put forth by each party violently transferred from Cavaliers to 
 
 that the name of the King and the will Roundheads, and from Roundheads 
 
 of God have never been more common back to Cavaliers. During these events 
 
 in the mouths of mf n of political no man could be a stirring and thriving 
 
 and ecclesiastical authority than under politician who was not prepared to 
 
 this dishonourable system. The cha- change with every change of fortune, 
 
 racter of the politicians and officials . . One who, in such an age, is deter- 
 
 of this time is described by Macaulay mined to attain civil greatness must 
 
 in his "History," chap. ii. t as follows: renounce all thought of consistency. . . . 
 
 " Their character had been formed He catches without effort the tone of 
 
 amidst frequent and violent revolutions any sect or party with which he chances 
 
 and counter revolutions. In the course to mingle. . . . There is nothing in the 
 
 of a few years they had seen the eccle- state which he could not, without a 
 
 siastical polity of their country repeat- scruple or a blush, join in defending or 
 
 edly changed. . . . They had seen in destroying. Fidelity to opinions and 
 
 hereditary monarchy abolished and to friends seems to him mere dulness
 
 604 Constitutional History of England. 
 
 CHAPTER XLIL 
 (Sxpulsum of tijt >tuarts. 
 
 IN the miserable state of the epoch of the Restoration, the 
 first symptoms of an amelioration became apparent in the 
 life of the communities in town and county. Firstly, it was 
 the old landed gentry, rough, stolid, and full of prejudice, 
 but yet full of zeal for the honour of the nation, in whom 
 indignation at such a method of government found expression. 
 In the boroughs, the oppressed puritan spirit gradually began 
 to stir. The royalist party had wished to restore an ideal 
 taken from England's past. Their ideal of a monarchy was 
 derived from the glorious days of good queen Bess ; instead 
 of these, a Stuart had been restored with a corrupt court and 
 an unprincipled bureaucracy. There were many who still 
 believed that the King was only entangled in the meshes of 
 a small number of wicked men, and thus estranged from his 
 faithful people, and that the deception could not last. But 
 yet it lasted, and a bad ministry was succeeded by a worse. 
 Every exclusive acquisition of power by any party was followed 
 by a period of disappointments. The neglected Cavalier, the 
 
 and wrongheadedness. Politics lie re- 300,000, in order to "balance" the 
 gards, not as a science of which the Lower House, which was at that time 
 object is the happiness of mankind, but estimated at 400,000. As a counter- 
 as an exciting game of mixed chance poise to both court and Parliament 
 and skill, at which a dexterous and there shall accordingly be formed 
 lucky player may win an estate, a again a standing political body, and 
 coronet, perhaps a crown, and at which the statesmanlike originator of the 
 one rash move may lead to the loss of scheme hoped that the responsibility 
 fortune and of life." The wretched of the business and the deliberation 
 state of affairs that ensues, and obser- would again engender a corporate 
 vation of the fact that by the dissolution spirit. But for an active governmental 
 of the council only the influence of body, the number of the members was 
 Parliament was enhanced, appears in too large ; at all events the attempt 
 1679 to have obtained a hearing for Sir after three such reigns came too late 
 W. Temple's plans of reform. The for England. Neither the King nor 
 council is for the future to consist of the parties were in earnest. There was 
 thirty members, of whom one-half are at once again formed of this council a 
 to be high state officials; the other half secret committee, and the whole institu- 
 te be appointed from among the chiefs tion had after the lapse of a year 
 of the opposition, both in the Upper nothing more than a nominal existence 
 and in the Lower House. The mem- (Ranke, v. 101 seq. ; Macaulay, Essay 
 bers shall have a joint income of on Sir W. Temple).
 
 The Expulsion of the Stuarts. 605 
 
 persecuted Presbyterian, and the dismissed officer of the 
 army, had each his own peculiar grievance and found himself 
 in a worse position than ever before. Charles the Second's 
 government was not modest in the demands it made upon the 
 taxpayers. Of the employment of the people's money, of 
 the negotiations with foreign countries, of the immoral state 
 of things at Westminster, enough was heard in the counties 
 to awake a strong mistrust. Such feelings could only in- 
 directly and sporadically affect Charles the Second's Long 
 Parliament by means of by-elections ; but, from the year 
 1665 on, they gradually increased, and showed themselves in 
 the judicial proceedings. Attention was more drawn to the 
 abuses of the administration, national grievances again revive, 
 and impeachments of ministers and high officers return again, 
 and down to the close of the period have attained the hitherto 
 unheard-of number of forty. It is the perennial spirit of 
 legality and equity, which is ever renewed in the independent 
 activity of this nation, and in the daily exercise of the magis- 
 terial office, especially in the judicial and police administra- 
 tion. In the social life of the community, that party spirit, 
 which separates the established churchmen from the dissenters 
 becomes gradually quieted down. Both are still united in their 
 detestation of papistry, that irreconcilable foe of the Estab- 
 lished Church and of the parliamentary constitution. The 
 royalists acknowledge, though with much reluctance, that 
 their non-conformist opponents may still be "religious men" 
 and good subjects. In opposition to the abuses of the 
 administration, a sense of legal liberty again returns in the 
 Parliaments of 1679 and 1680, which reminds us of the 
 commencement of the Long Parliament of 1640. Disregard- 
 ing the doctrines of Oxford, the Parliament again demands 
 a government " according to law." The servants of the King 
 must obey the laws ; the King must neither excuse them from 
 observing the law, nor pardon a minister who has been con- 
 demned for its violation. The taxes must not only be voted 
 by Parliament, but their employment also be regulated and 
 controlled by Parliament. No one must be arrested except 
 upon special and legitimate grounds, nor detained in arrest 
 except by the decision of a judge, nor condemned otherwise 
 than by the verdict of an independent jury. Amidst all the 
 changes and intrigues of parties there is preserved a spirit of 
 civil liberty, which with the Habeas Corpus Act, the irre- 
 sponsibility of the jury, the right of the Lower House with 
 regard to the budget, and the struggle against a censorship of 
 the press, enforces a new Magna Charta, which is this time 
 won not by the barons, but by the wider circle of the gentry, 
 and mainly by the Lower House. With civil order the sense
 
 GO 6 Constitutional History of England. 
 
 of civil liberty returned. After the extreme parties both in 
 Church and State, under bloody Mary, Strafford and Arch- 
 bishop Laud, Cromwell and the Puritan army, had become 
 worn out and had finally shown their impotence, more liberal 
 ideas at length established the opinion, that conceptions of 
 God and of divine things and political conceptions of the 
 civil power should be subjected to no absolute veto by the 
 censorship of the press. The abrupt change in its application 
 at last overcame the censorship in principle, so that it is from 
 henceforth only retained by Crown and Parliament as an 
 exceptional measure, to be applied under extraordinary cir- 
 cumstances.* It is this spirit which, in spite of all party 
 errors, both internally and externally, at least strives after 
 what is right, and which makes this time an era of " good 
 laws and bad government," as it has been called by Fox. 
 But the right bounds are once more overstepped. 
 
 The bill for the exclusion of the Catholic succession, agitated 
 for by the minority, led after 1681 to dissension and reaction. 
 The opposition had boldly advanced so far as to threaten the 
 hereditary monarchy. And here for the first time that party 
 agitation which has periodically repeated itself down to our 
 times becomes prominent. It developed a hitherto unheard- 
 of election struggle, in which the rival parties figure as- 
 petitioners and recusants. The party passion of the opposition 
 called the royalists Tories, a word derived from a Catholic 
 party sect among the common people in Ireland ; whilst 
 the country party called their opponents Whigs, a name 
 taken from a low and extreme class of covenanters. Men 
 
 * Its application in the reverse direc- persecution in religious matters. After 
 
 tion caused the fall of the censorship these rules had been enforced for 
 
 of the press in England. Charles the twenty years in an adverse sense, a 
 
 First's Csesaro-papisrn had introduced statute 13 and 14 Charles II. c. 33, 
 
 the most comprehensive system of with a rigour which is characteristic 
 
 press laws by decrees of the Star of the Kestoration, essentially repeated 
 
 Chamber of the llth of July, 1637. the ordinances of Parliament relative 
 
 In the war against Charles I., however, to the printing licences. The number 
 
 the Long Parliament continues the of master printers was restricted to 
 
 practice of the Star Chamber. In the twenty ; they must give security, and 
 
 year 1643, similar ordinances were on demand of the censor give up the 
 
 issued by both the antagonistic Par- name of an author. The printing 
 
 liaments, and censors appointed. After places for books are London, York, and 
 
 the King's defeat, Lord General the two university towns. This law 
 
 Fairfax and, in later times, Cromwell was only to remain in force two years, 
 
 carried out the ordinances of Parlia- but was twice prolonged until 1679; 
 
 ment. In 1653 an order of council and then by ordinance of the 17th of 
 
 enjoined that no public news or com- May, 1680, it was again renewed after 
 
 munications should be published with- violent opposition in Parliament ; then 
 
 out the leave and approbation of the in the reaction of 1685, it was again 
 
 Secretary of State. In 1654 and 1656 prolonged for a further period of seven 
 
 new commissions were appointed, with years ; finally, for two years, by 4 
 
 morerigorous measures against political William and Mary, c. 24, until 1694, in 
 
 writings, by which, however, Cromwell which last-named year the censorship 
 
 endeavoured to moderate the thirst for was finally extinguished.
 
 TTie Expulsion of the Stuarts. 607 
 
 soon became accustomed to these mutual nicknames, chosen 
 in the heat of the struggle by each party for its opponents, 
 and they have been retained down to the present day. The 
 supporters of exclusion (petitioners), however, are in the 
 minority, attacking as they did the basis of the prerogatives 
 and the source of the privileges of the upper classes. The 
 clergy, deeply interested in the question, wage an actual 
 crusade against these principles. Once more the doctrine 
 of passive obedience, of the unchangeable hereditary right 
 of the Crown, of the divine origin of the patriarchal descent 
 of the monarchy, resounds from every pulpit. The London 
 Gazette is again full of addresses of loyalty. The Crown 
 quickly took advantage of this favourable turn of events, to 
 strike a decisive blow at the municipal constitutions, which at 
 that time were considered as the chief impediment in the way 
 of the influence of the court upon the Lower House. Instead 
 of encountering a real evil in a legitimate way, the Stuarts 
 preferred to make confusion worse confounded by attacking 
 the internal life of the towns, and made use of the corrupt 
 benches of judges for the purpose of annulling the municipal 
 charters. The judgment passed on London was followed by 
 similar "informations" against other towns; most of the 
 towns anticipated the attack by voluntarily surrendering their 
 charters, in the place of which they received new ones " after 
 a conservative pattern." The justices of assize especially 
 abused their official powers to this end. Jeffreys, on the 
 northern circuit, "made all charters fall before him like the 
 walls of Jericho, and returned to London laden with sur- 
 renderings, the spoils of the towns." ** 
 
 ** The position of the parties on the their country. Bnt this opposition 
 
 accession of James II. requires some had to contend with the great dif- 
 
 explanation. The specifically royalist ficulty that the treasonable proceedings 
 
 party of this period bad as an extreme at court, and the plots to overthrow the 
 
 agitating background the Roman Established Church, were only known 
 
 Catholic faction ; the radical opposition to the leaders, and to these only in 
 
 contained the remains of the repub- part ; that the high church party would 
 
 lican party. In order to gain influence not believe in them ; and that they 
 
 with the landed classes, which for the could not be clearly and in detail laid 
 
 most part were attached to the present before the constituencies. The opposi- 
 
 constitution, the one party had been tion had in this critical position and 
 
 obliged to emblazon the " Monarchy," in its extravagant ardour, made serious 
 
 the other "Protestantism," upon its mistakes. Not particular as to the 
 
 standard. These powerful watchwords means it employed, it successfully 
 
 never failed in their effect at elections. utilized a papist plot, which Titus 
 
 The efforts of the opposition, which now Gates and his accessories took the 
 
 demands civic freedom and protestant trouble to detect, as a means of agita- 
 
 tolerance, are personified in men like tion. But the perjured witnesses 
 
 Bhaftesbury, William Russell, and were followed by a number of perjured 
 
 Algernon Sidney ; of whom the two counter-witnesses ; this trumped-up 
 
 last named, through the judicial means was no longer believed in, and 
 
 murder contrived by Charles II. him- in consequence the party lost credit in 
 
 gelf, became martyrs to the liberty of the larger circles. The daring plan of
 
 608 Constitutional History of England. 
 
 Amidst this movement, James II. ascended the throne, 
 under circumstances which remind us of the accession of 
 Mary Tudor. The great majority of the people were satisfied 
 that the regular hereditary succession, and not the adven- 
 turous plans of a new doctrine, had gained the victory. 
 James's first addresses caused great joy in the breasts of 
 those who now called themselves " the faithful portion of the 
 nation." The University of Oxford promised once more 
 obedience without any limitation or reservation. The House, 
 elected under the influence of the new charters of corpora- 
 tion, declared any bill in Parliament for changing the 
 succession, to be high treason, and after the suppression of 
 the Monmouth insurrection voted <700,000 for a standing 
 army. The loyalty of the landed gentry, the submission of 
 the intimidated municipal corporations, a standing army with 
 a submissive corps of officers (for the most part Irish and 
 English Catholics), an unconscientious and servile bench of 
 judges, the high church clergy with their article of faith of 
 non-resistance, and the disunion of Protestant sects among 
 themselves, all these disclosed a prospect which was decidedly 
 not unfavourable. But, all the same, the campaign against 
 the municipal corporations, the intimidation and the syste- 
 matic appointment of "well-affected" persons to the civic 
 offices still continued. The triumph which James celebrated 
 over the ill-advised insurrection of Monmouth, brought his 
 personal plan all the sooner to maturity -the plan of reward- 
 ing the attachment of his people by the overthrow of the 
 constitution. 
 
 The events under Charles I. had proved indisputably that 
 England did not tolerate spiritual and temporal absolutism 
 at one and the same time. But James was of the opinion 
 that so soon as the authority of the Catholic Church should 
 have been restored, a new generation could be educated by 
 Church and school to bring back the people to unconditional 
 obedience to the temporal head-shepherd. " I would rather 
 
 their leader, SLaftesbury, to exclude The immoderate agitation for the Bill 
 
 the Duke of York from the succession, of Exclusion accordingly could not fail 
 
 and in his stead to place the vain, to arouse the just mistrust of all, who 
 
 weak-minded bastard, Monmouth, upon now, after their experiences of the 
 
 the throne, was too Quixotic. By this republic, cleaved to the hereditary 
 
 device all those adherents, who re- monarchy with redoubled zeal. By 
 
 garded Mary (the wife of the Stadt- these mistakes the opposition had, in 
 
 holder of the Netherlands, afterwards 1681, brought about that reaction, 
 
 William III.), as entitled eventually to which rendered the first systematically 
 
 succeed to the throne, felt themselves Tory party government in England 
 
 with reason aggrieved. Besides, the possible, and which now directed its 
 
 succession of James, who, being only a attacks openly against the strongholds 
 
 few years younger than Charles II., of the opposition in the municipal con 
 
 was as likely as not to predecease him, stitutions. 
 seemed at that time quite hypothetical.
 
 The Expulsion of the Stuarts. 609 
 
 have the papacy, because it has so much power over men's 
 minds, if only the Pope did not also demand power over 
 kings," had once been the opinion of James I. His grandson 
 conceived that he could divide the absolutism by restoring to 
 the Pope the spiritual half. Hitherto their court theology 
 had supplied to the Stuarts the place of the Jesuit father- 
 confessors, who had, by their absolute ignorance of the rights 
 of nations, brought the dynasties of the Continent to destruc- 
 tion. James II. thought, after the manner of converts, that 
 he ought to drink of the pure waters of Jesuit counsel and 
 advice. He had certainly solemnly sworn to uphold the con- 
 stitution of Church and State and the rights of the clergy, 
 but his Jesuistic morality whispered to him that these privi- 
 leges, which had been sworn to, were the very same that 
 Edward the Confessor had accorded, and " no one would 
 doubt that Edward was a Catholic." 
 
 In the meanwhile the line of attack upon the constitution 
 of the country by the legislation under Charles I. and II. was 
 not only materially narrowed, but the object of the attack 
 had become an essentially different one. The Anglican 
 Church had issued from the struggle against papists and 
 levellers strengthened in its nature ; it had now become bound 
 up with the feelings of the dominant class and of the nation, 
 as being a Christianity that harmonized with the common 
 sense of the people ; it had made peace with Parliament, and 
 had become the standard of the royalist party, both in and 
 by the Eestoration, and moreover, it was strengthened at all 
 points by constitutional laws. In another direction, owing 
 to the development of self-government and the rights of 
 Parliament, the dominant class had become much more 
 powerful and capable of resistance ; the whole of the legal 
 armed forces of the country and their equipment had been 
 placed in the hands of the dominant class, with which a hired 
 army could not compete, in consequence of its want of a fit 
 corps of officers.*** 
 
 The opening, which James thought he had nevertheless 
 found for the realization of his plans, lay in the ecclesiastical 
 
 *** Cf. concerning the new militia, language), under papal officers, found 
 as being the army of the propertied 'themselves completely isolated amidst 
 classes in town and county, the de- a population that was in no wise de- 
 scription given above, p. 582, note. fenceless. In many counties the 
 Charles II. had planned the formation militia could actually be still mobi- 
 of a rival force of hired troops, the lized ; all the arsenals were in the 
 so-called guards, but these, in con- possession of the landed gentry. Any 
 sequence of his constant pecuniary attempt at a struggle would scarcely 
 embarrassment, could not attain any have left the " blackguards " the 
 importance. The troops which were possibility of a retreat like that of 
 hastily got together by James II. (the Xenophon. 
 so-called "blackguards" in popular 
 
 2R
 
 610 Constitutional History of England. 
 
 supremacy and in the royal dispensing power. The last- 
 named prerogative was regarded as an undisputed right of 
 pardon in criminal offences, and its extent beyond this was, 
 according to old precedents, uncertain; hut it was most 
 doubtful of all in the province of ecclesiastical legislation, 
 in which the intervention of Parliament was of recent date 
 and only exercised amid violent struggles. The limits of the 
 constitution appeared to afford him here scope for action. 
 Though no minister and no judge could be found who dared 
 assert that a positive legislative power to alter the common 
 law and the temporal statutes resided in the King, yet there 
 were still to be found both councillors and judges who decided 
 in favour of a negative prerogative, by which the whole 
 ecclesiastical legislation, and with it the constitution of the 
 Anglican Church, might be dispensed away at will. James 
 thought he had gained the requisite power for " dragon- 
 ades " in his standing army, with its Catholic officers; the 
 means of keeping up this army having been voted by Par- 
 liament itself, after the suppression of the insurrection of the 
 Duke of Monmouth. By means of an illegal ecclesiastical 
 commission, with Lord Jeffreys at its head, the King thought 
 to gain a disciplinary power sufficient for Catholicizing the 
 national church. Everywhere we meet the Catholic system ; 
 monasticism and the ecclesiastical garb begin once more to 
 peer forth. At last, by ordinance under the name of a 
 "declaration of the liberty of conscience," the Established 
 Church is abolished. 
 
 Well arranged as these measures -might be according to the 
 Jesuit doctrine, yet, when measured by the substructure of 
 the English constitution, and by the legal and dominant 
 position of the estates and Church in England, their utter 
 perversity and futility becomes apparent. The established 
 clergy, in their ecclesiastical and political position of influ- 
 ence, the old gentry in their attachment to the " Church 
 of England " and to the militia system, the towns with their 
 Puritanical reminiscences, and the whole nation in its jealous 
 pride in its national church, were all mortally offended. The 
 first symptoms of resistance in the very party of non- 
 resistance, the opposition of the bishops, ought to have warned 
 the King in time. But James, inflexible, a fanatic in his 
 belief in the infallibility of Jesuit counsels, a pessimist in his 
 estimate of men, hard and obstinate even to fatuity, per- 
 sistently follows his aim.f 
 
 t Absolutism was before all incom- re-establishment of a Court of High 
 patible with the Established Church. Commission, against the plainly ex- 
 James II. offended, in the first place, pressed rules of law. Just as un- 
 the Established Church party by the equivocally directed against the Tories
 
 The Expulsion of the Stuarts. 
 
 611 
 
 The consequence, apart from the dramatic details, was the 
 coalition of both the great parties, of those who held the 
 theory of resistance and of the non-resistants, into an actual 
 armed resistance ; the summoning of the Prince of Orange ; 
 the flight of the monarch, whom all forsook ; the summoning 
 of the " Convention Parliament ; " the transfer of the crown 
 (which had now been declared "vacant") to the Prince of 
 Orange ; and the formal arrangement as a compact between 
 the Prince and the Parliament, by which all previous en- 
 croachments of the prerogative made up to that time were 
 declared to be illegal. 
 
 To the present day a feeling of the legality of this act, called 
 by the name of " the glorious revolution," still lives in the 
 consciousness of the nation. " Nothing," says Hallam, " was 
 done by the multitude ; no new men, either soldiers or dema- 
 gogues, had their talents brought forward by this rapid and 
 pacific revolution : it cost no blood, it violated no right, it 
 was hardly to be traced in the course of justice." In short it 
 
 was the suspension of the county 
 militia, and the systematic disarming of 
 the propertied classes. Sixteen lord- 
 lieutenants were dismissed from office, 
 and twelve of these places, as well as 
 one-third of the sheriffs' offices, were 
 filled by Catholics. But the suppres- 
 sion of ecclesiastical legislation by a 
 so-called right of dispensation was a 
 crushing blow, invalidating the en- 
 forcement of all laws which had been 
 passed for the establishment of the 
 Anglican Church, declaring all contra- 
 ventions of them unpunishable, and the 
 oath of supremacy and the provisions 
 of the Test Acts touching the appoint- 
 ment to public offices no longer 
 requisite. Already under Charles II. 
 an attempt had been made to issue a 
 declaration of indulgence, which was 
 intended to work in the spirit of 
 restoration, in favour of the Catholics, 
 and not in favour of the Protestant 
 sects. But that declaration, with the 
 usual caution of that reign, had been 
 kept within the forms of a royal right 
 of pardon, and was recalled at the first 
 serious remonstrance of Parliament. 
 The declaration of James II., on the 
 other hand, appeared as a direct aboli- 
 tion of the ecclesiastical laws, by 
 virtue of royal supreme power, and 
 this offensive expression was actually 
 employed in the declaration which was 
 issued for Scotland. The declaration 
 of James II. was based upon the Jesuit 
 maxim, which at all times appeals to 
 the principles and laws of civil 
 
 " liberty," and even asserts the most 
 advanced principles of " popular sove- 
 reignty " against governments and 
 national laws, in order to remove all the 
 barriers of ecclesiastical power, in order, 
 after the removal of these barriers, to 
 rule with all the coercive means at its 
 disposal. The Anglican clergy was 
 enlightened as to the meaning of the 
 declaration, after its experiences of the 
 papal clause " non obstante." The lefial 
 profession was not, indeed, as yet quite 
 clear as to the exact boundaries 
 between the acknowledged right of 
 pardon residing in the Crown, and a 
 systematic invalidation of the legisla- 
 tion of the land by royal supreme 
 power. But the demonstrative appear- 
 ance of the Catholic monastic costumes 
 in all public places made the sig- 
 nificance of the question patent to all. 
 The union of the two great parties was 
 a necessary consequence. It was cer- 
 tainly a marvellous fate, which forced 
 the most zealous preachers of passive 
 obedience to furnish the first example 
 of disobedience. The seven bishops 
 who petitioned against the declara- 
 tion were arraigned for sedition, but 
 acquitted by the jury, and among 
 the clamorous rejoicings of the people 
 on account of this acquittal, which 
 even carried away with it the " black- 
 guards," the open insurrection breaks 
 out; the flight of the King, and the 
 further steps of a change in the succes- 
 sion follow each other rapidly.
 
 612 Constitutional History of JEngland. 
 
 was an event which "united the independent character of a 
 national act with the regularity and the coercion of anarchy 
 which belong to a military invasion." 
 
 The " gloriousness " of this revolution is not to be sought so 
 much in the martial deeds of the men who brought it about 
 as in the political wisdom and prudence of the parties which 
 united together to form it. As in olden times at the period 
 of Magiia Charta the two great parties of the Middle Ages, 
 prelates and barons, united together in harmonious co- 
 operation, as in the Eestoration of 1660 the Presbyterian 
 party had been obliged to help the Eoyalists, so the Tories in 
 1688 were obliged to aid the Whigs in expelling the Stuarts. 
 This revolution was not founded upon any party programme, 
 but upon the recognition of common rules and conditions, 
 within the limits of which both parties for the future will 
 move. The ground .upon which the two opposite political 
 ideals now met in harmony was the demand for a government 
 of State and Church according to the laws of the land. Upon 
 this common ground both parties succeeded in formulating 
 a code of principles, according to which the government of 
 the country was for the future to be undeviatingly carried 
 on. This code was drawn up in the following thirteen clauses 
 of the "Declaration of Eights : " 
 
 1. That the pretended power of suspending laws, and the 
 execution of laws by regal authority, without consent of 
 Parliament, is illegal. 
 
 2. That the pretended power of dispensing with laws, or 
 the execution of laws by regal authority as it had been 
 assumed and exercised of late, is illegal. 
 
 3. That the commission for creating the late Court of 
 Commissioners for ecclesiastical causes, and all other com- 
 missions and courts of the like nature, are illegal and per- 
 nicious. 
 
 4. That levying of money for or to the use of the Crown, 
 by pretence of prerogative without grant of Parliament, for 
 longer time or in any other manner than the same is or shall 
 be granted, is illegal. 
 
 5. That it is the right of the subjects to petition the King, 
 and that all commitments or prosecutions for such petitions 
 are illegal. 
 
 6. That the raising or keeping a standing army within the 
 kingdom in time of peace, unless it be with the consent of 
 Parliament, is illegal. 
 
 7. That the subjects which are Protestants may have arms 
 for their defence suitable to their conditions, and as allowed by 
 law. 
 
 8. That elections of members of Parliament ought to be free.
 
 The Expulsion of the Stuarts. 613 
 
 9. That the freedom of speech or debates, or proceedings in 
 Parliament, ought not to be impeached or questioned in any 
 court or place out of Parliament. 
 
 10. That excessive bail ought not to be required, nor 
 excessive fines imposed, nor cruel and unusual punishments 
 inflicted. 
 
 11. That juries ought to be duly impanelled and returned, 
 and that jurors which pass upon men in trial for high treason 
 ought to be freeholders. 
 
 12. That all grants and promises of fines and forfeiture of 
 particular persons, before conviction, are illegal and void. 
 
 13. And that, for redress of all grievances, and for the 
 amending, strengthening, and preserving of the laws, Parlia- 
 ment ought to be held frequently. 
 
 These were in the main exactly the points in which the 
 royal rights of Government had in the last decade been 
 successively abused, as was set out point by point in the pre- 
 amble, tt 
 
 These articles presuppose and once more set forth in a 
 declaratory form the national foundation of the English 
 State, as it had been built up from Norman times, and as it, 
 since the Eeformation, had subordinated and incorporated the 
 Church. They treat of : 
 
 The Crown as the source of all powers ; 
 
 The legal tribunals as a limitation ; 
 
 Legislation as the supreme regulator of the government. 
 
 All political powers proceed from the Crown, and remain 
 centred in the Crown (tout fuit in luy et vient de lui al com- 
 
 ft The Declaration of Eights con- siastical power (1, 2, 3) of the King, 
 eludes with these categorical words, They were laid before the Prince of 
 which express the character of cousti- Orange in the manner of a treaty to be 
 tutional principles, " and they do claim, signed as a preliminary to his election, 
 demand, and insist upon all and and it was. only after they had been 
 singular the premises as their un- accepted by both Houses under the 
 doubted rights and liberties ; and no name of the " Declaration of Eights," 
 declarations, judgments, doings, or pro- had been read, acknowledged, and 
 ceedings, to the prejudice of the people accepted by the Prince, that the pro- 
 in any of the said premises, ought in clamation of the new monarchy was 
 any wise to be drawn hereafter into made on the 13th of February, 1689. 
 consequence or example." The rules In the Act of Parliament incorporating 
 thus formulated, which, as a code of the Declaration, a modification was pro- 
 fundamental rights, or as a declara- posed respecting the illegality of the 
 tion of human rights in general, would dispensing power of the Crown. In 
 certainly be very deficient, are sig- the same session a new statute was to 
 nificant when read in connection with be passed, regulating the limits of a 
 the customary principles and laws as permissible exercise of such a power, 
 to the exercise of royal sovereign rights. This statute was, however, never passed. 
 They relate to the points that have to With regard to the change ;of succes- 
 Bome extent been left undecided in the sion, the parties united in framing a 
 military power (6 and 7), judicial power formula which represents James the 
 (3, 10/11, 12), police power (5, 10), Second's action as an abdication of the 
 financial power (4, 12), and eccle- throne.
 
 614 Constitutional History of England. 
 
 mencement), but they are moderated by the limits imposed by 
 the Crown itself, which bind the King for the past to the 
 common law, as established by usage, -to his own laws, and 
 to the laws of his predecessors ; and for the future bind him 
 by the necessity of the consent of the two Houses of Parlia- 
 ment to every change and to every deviation from the law 
 thus established. This was a laying down of the principles of 
 government, as yet unattempted in the history of nations, and 
 which left to generations to come the problem (below, Chap, 
 liii.) to solve, whether a political government under such 
 conditions was capable, at any given time, of satisfying the 
 real needs of the State and of society. 
 
 In the struggles of the century, in all the infinitely com- 
 plicated phases of the conflict, the internal contrasts of the 
 political system of the nation have successively in all their 
 varied stages been presented to the eye, in a manner that 
 appeals to the understanding and the mind in their very 
 inmost core. In this conflict, the events of the Middle Ages, 
 both in Church and State, are once more revived as an inex- 
 haustible material of controversies for both sides. The same 
 treatment was applied to the doctrines of revealed religion. 
 For the intellectual life of the nation the period is one of 
 a gigantic advance towards self-consciousness as to political 
 topics and things of general human welfare. But what 
 characterizes these party struggles is their immediate prac- 
 tical bearing upon the State and its administration. The ap- 
 preciation of that which is essential, which was possessed by 
 the nobles at the time of Magna Charta, returns in the present 
 generation on a higher scale. In Cavaliers and Puritans, in 
 Hobbes and in Locke, are reflected the practical experiences 
 of the actual State. The training exercised by local govern- 
 ment with its common centre in Parliament gives the different 
 parties the power of comprehending the State under all con- 
 ditions, and an effectual influence upon the State. The habit 
 of communal life and its purifying moral power, from the 
 lowest strata in the State upwards, casts off once more that 
 corruption which the court of the Stuarts had propagated. 
 In marvellous contrast to the later revolutions on the Con- 
 tinent, in which enthusiasm for the idea of liberty engenders 
 violence and subjection, in England the era of the wickedest 
 royal family, of the most corrupt court, and at times of the 
 most corrupt Parliament, becomes the era of great laws, which 
 form the foundation of the political and moral liberty of the 
 people. The struggles which have been carried on within 
 this constitution, between the great factors of political life, 
 will remain for all future times fruitful precedents, which 
 European society has won ; a lasting and durable gain for
 
 Society at the End of the Seventeenth Century. 615 
 
 the recognition of the first principles of political liberty. At 
 the close of the period certain unassuming alterations in the 
 factors of the executive power are seen ; otherwise, a century 
 of revolutions and restorations has passed by, without ap- 
 parently leaving any traces in the permanent bases of the 
 State, in local institutions, and in the mutual relations of the 
 estates of the realm. 
 
 CHAPTER XLIIL 
 
 Contritions of &ocietg at tfje SnU of tfje 
 Century 
 
 WITH the period of the Tudors and Stuarts another era of 
 six generations has come to a close ; a period of time, which 
 in the Middle Ages almost exactly marks the epochs,, in which 
 the great revolutionary changes of society in the European 
 civilized world are accomplished. Under reformation and 
 revolution, the organization of society into Estates has again 
 proceeded on an undisturbed, unvarying course, that must be 
 once again examined in this place, seeing that it is the funda- 
 mental basis of th& now fully developed parliamentary 
 government of the eighteenth century. 
 
 The multifarious transformations of the communal system, 
 the more lively activity of the upper and middle classes in 
 the parish as well as in the district, in conjunction with 
 the flourishing condition of agriculture and the rise of com- 
 merce and trade, have brought about an upward movement 
 of classes, for which the breaking up of the power of the 
 great martial barons had made room. In the gradations 
 of society at the close of this period it must be understood, 
 that the middle class of the earlier constitutional period now 
 takes its place as "gentry" beside the lords, and the former 
 enfranchised " third estate " now takes the place of the middle 
 classes each class having in a certain sense advanced one 
 degree higher. 
 
 I. Lords and gentry have, in this period, gradually come so 
 close to each other, that the hereditary peers of the realm no 
 longer stand alone as a separate ruling class, but have become 
 an hereditary nobility within a much more numerous domi- 
 nant class, which is fairly distinguishable under the designa-
 
 616 Constitutional History of England. 
 
 tion " gentry" given to it in legal language, as in that of the 
 herald's office and of everyday life. 
 
 The influences of property have in the first place at the 
 commencement of the period become in a great measure 
 changed, owing to the fact that the old honours of the 
 princely peers, which were confiscated under Edward IV., 
 were not regranted in the old fashion, but in parcels and 
 with diminished revenues; and that, in another direction, 
 hereditary peerages were more and more granted to land- 
 owners, whose lands, whether acquired by descent or by 
 regrant, especially from former monasterial estates, were very 
 different from the old " baronies," which were ordinarily 
 continued, in the Exchequer, under the name of " honours." 
 In these estates there was no longer any connection with a 
 neighbourhood in which gentlemen and tenants were wont to 
 regard themselves as retainers of an old " worshipful lord." 
 They were estates like many others of the freeholding knight- 
 hood. In consequence of the development of the times, which 
 was seldom disturbed by external wars, and in consequence of 
 the lively intercourse with the towns, which were now rapidly 
 becoming wealthy, the revenues from the lands of the landed 
 proprietors, who came next after the nobles, had increased 
 to a considerable extent. When in 1640 the Long Parliament 
 was convened, the income of the members of the Lower House 
 was computed at 400,000, and their estates at three times 
 the extent of those of the lords. The estates of the lords 
 spiritual in Parliament appear to be considerably diminished, 
 in consequence of the secularizations ; and the few newly 
 created bishoprics were not endowed with the old rich landed 
 possessions. 
 
 But, together with the relations of property, the legal 
 position of the nobility in the county and local unions had 
 become altered. The former importance of the barons as 
 personal lords of a martial retinue had long since ceased. 
 All the duties of the landed estates, formerly discharged in 
 the public interest, together with their influence, now falls 
 upon the militia and police administration. The high hono- 
 rary offices now occupy the position that the seigneurs of the 
 Middle Ages had filled. Their influential participation in 
 State functions now lies in the first place in the commissions 
 of peace, which for the most part are filled by the same 
 individuals as compose the staff of the militia organization. 
 The habitual form of these commissions was accordingly 
 certain in the long run to determine the legal conceptions of 
 rank, as the feudal militia system had formerly done. But 
 the commission of peace included, as its chief constituents, the 
 great landed proprietors of the county ; the appointments to
 
 Society at the End of the Seventeenth Century. 617 
 
 it, in fact, passed almost as certainly from father to the first- 
 born son, as did the landed estates. At the head of the com- 
 mission stood regularly, as custos rotulorum (who was at the 
 same time ordinarily made lord-lieutenant of the militia), a 
 temporal lord of Parliament. The number of lords was 
 maintained under the Tudors in a certain proportion to the 
 number of the counties, so that a seat in the Upper House 
 and a commission at the head of the county administration 
 generally went together. But in the last-named capacity the 
 hereditary noble and counsellor of the Crown only appeared 
 as primus inter pares, with similar official duties and rights. 
 In spite of all deference to "my lord," this was a very 
 different position to that when the great baron held his court 
 with his retinue. The idea of a mere precedence takes the 
 place of the old idea of subordination and personal fealty. 
 
 In the period of the Stuarts this new view finds expression 
 in the considerable number of elevations to the peerage. (1) 
 In the period of the Tudors the total number of peerages had 
 been raised to the maximum of 59. But James I. went so 
 far as to make 62 new creations, Charles I. 59, Charles II. 64, 
 and James II. 8, altogether 193, which, after deducting 99 
 extinct peerages, gave a total of about 150 temporal peers. 
 
 (1) As to the newly created peerages 
 and elevations under the Tudors, cf. 
 above, p. 473. In the time of the 
 Stuarts this number increased to 98 
 under James I., to 130 under Charles I., 
 to 137 under Charles II., and to 11 
 under James II. ; altogether 376 under 
 the Stuarts, as against 146 in the days 
 of the Tudors. The reigns of the Tudor 
 dynasty brought about on the average 
 one change in the peerage in every year, 
 that of the Stuarts three. James I. 
 created 62 new peers, Charles I. 59, 
 Charles II. 64, James II. 8 ; altogether 
 193. (In the following century, from 
 1700-1800, there were created 36 dukes, 
 29 marquises, 109 earls, 85 viscounts, 
 and 248 barons.) At the commence- 
 ment of the Long Parliament it was 
 computed (Eushworth, ii. 1156) that 
 about two -thirds of the earls and 
 barons who had been summoned had 
 only been created within the last 
 generation. James I., as has been 
 already mentioned, for a time offered 
 the dignities of a baron, a viscount, and 
 an earl for sale, for 10,000, 15,000, 
 and 20,000 respectively, which offer 
 was taken advantage of in a single year 
 by four earls (Franklyn's Annals, p. 
 33). With their unkingly method of 
 government, the frivolous distribution 
 
 of the highest dignities in the State 
 also increased under his successors. 
 It is true that besides the English, 
 gentry many Scotch peers were also 
 received among the number of the 
 English lords ; but the Scotch peerage, 
 too, was also enriched under James I. 
 and Charles I. and II. by 214 new 
 creations more than are met with 
 in the whole Scotch history from 
 Malcolm III. downwards. That Charles 
 I. when in dire need, in 1640, once more 
 summoned the peerage to him in the 
 form of a Magnum Consilium, was only 
 an anachronism. The Houses of Lords 
 and Commons had long since become 
 combined into one great body, and 
 could, in the present constitution of 
 the State, be no more parted than 
 could office and tax. After the events 
 of the last hundred years the lords had 
 lost not merely the influence of their 
 possessions, but also so much moral 
 respect, that they could not possibly 
 now, together with the royal cabinet, 
 form a special and separate constitu- 
 tional body. They accordingly declared 
 themselves to be incompetent. On that 
 very account the lords form no longer 
 a factor in the civil wars, but are 
 divided like the gentry between two 
 camps and two Parliaments.
 
 618 Constitutional History of England. 
 
 Their number was in itself sufficient to determine the new 
 view which began to regard the peerage as an hereditary pre- 
 cedence among the gentry granted by patent, and not as a 
 dominant class per se. The Restoration completes this 
 political position, and that, too, contemporaneously with the 
 total abolition of feudal tenures by 12 Charles II. c. 24. With 
 the conversion of feudal estates into socage, the full powers of 
 devise aver landed estates return. Already by 32 Henry VIII. 
 c. 1, and 34 Henry VIII. c. 5, the landowner had been 
 empowered to dispose by will and testament of two-thirds of 
 his lands held in knight's tenure, and of all his lands held 
 in free socage. By the conversion of all knights' fees into 
 free and common socage, the latter became now the general 
 mode of tenure. (l a ) There still were to be found at the head 
 of the peerage some few families with truly princely posses- 
 sions, and boasting royal blood ; but in the main the English 
 nobility had already become an " elevated gentry." 
 
 But this gentry extends in every generation with the landed 
 possessions and with the public offices, upon which it is based. 
 Its marrow was at the close of the Middle Ages the free- 
 holding knighthood, whose estates, in spite of their liability 
 to alienation, could be preserved fairly intact by the law of 
 primogeniture and entail. On the other hand, under Henry 
 VIII., the law as ta the liberty of devise by will, and in the 
 seventeenth century the civil war, had led to multifarious 
 changes of ownership, in consequence of which the rich muni- 
 cipal classes enter into possession in great numbers. The 
 new owners pass through the commission of the peace and 
 Parliament, at first politically, and then, after a certain 
 time, socially also, completely into the ranks of the old gentry. 
 But as commissions of the peace and Parliament also include 
 municipal dignitaries, it came about that these were in ever 
 greater numbers admitted into the ranks of the gentry. 
 The honorary designation of esquire, which at the close of 
 the Middle Ages was only granted in isolated cases, broadens 
 out and includes the rich civic class of liberal education and 
 occupation, almost within the same limits within which these 
 
 (l a ) In harmony with, this-living form. Car. II. c. 24) has as truly radical a 
 of the estates the feudal nexus was form as a statute for the abolition of 
 abolished as a completely antiquated feudal tenures can well have. All 
 institution. James I. and Charles I. had feudal tenures are for the future ex- 
 negotiated with Parliament on the pressly declared to be held upon " free 
 subject. The Long Parliament had and common socage," and merge with 
 (Feb. 24th, 1645) directly abolished all the urban freeholds into an indis- 
 feudal burdens, and the Eestoration tinguishable mass of freehold. It was 
 found in this one of the few points also declared that " all future grants of 
 which could be accepted from the land by the King should be in free and 
 revolution without any reservation. common socage." 
 The statute abolishing this nexus (12
 
 Society at the End of the Seventeenth Century. 619 
 
 classes were wont to seek and find admission into the com- 
 missions of the peace. As a matter of course the old beneficed 
 clergy kept their old honorary rank, combined with numerous 
 appointments to the commissions of the peace, and to these 
 were added also the higher class of lawyers (the quorum of 
 the commissions of the peace), physicians who had studied, 
 and the higher civil and military officials. With almost 
 excessive liberality, the somewhat lower predicate gentleman 
 was given in ordinary life. (l b ) 
 
 Thus, both in State and society a first class of consider- 
 able extent has become formed, partly with personal and 
 partly with higher hereditary designations of honour. Within 
 the highest degrees of the peerage there extends a higher 
 rank down to grandchildren; within the lower degrees, and 
 among those eligible as knights of the shire, to the sons. 
 It is not the family with all its descendants, but only the 
 owners of the family estates, and the vocation to public 
 activity involved therein, who receive the legal or customary 
 title. Pecuniary embarrassment caused James I. to increase 
 these honours by the hereditary dignity of a baronet, which, 
 differing from the general English rule, is a mere title with 
 no public duties attached to it. Under the Stuarts this dignity 
 was granted successively to nine hundred persons, and be- 
 
 (l b ) The equality in rank accorded! learning) forms the common bond of 
 
 the dignitaries of the towns with the the gentry, within which, however, the 
 
 titles of esquires and gentlemen dates pretensions of old birth, great estates, 
 
 principally from the days of Henry and high office by hereditary dignities, 
 
 VIII. This was the time in which the titles and precedence make themselves 
 
 word gentleman began to be used almost felt. In this spirit, from the time of 
 
 in the modern sense "which dis- Henry VIII., there arose by law, by 
 
 tinguishes the gentleman legally from the practice of the courts and the 
 
 the noble, and morally from the un- herald's office, a very comprehensive 
 
 educated plebeian " (Mackintosh, Hist. table of precedence, which is closed 
 
 i. 269). The inclusion of the citizen by the general headings esquires and 
 
 worthies still slowly increases. The gentlemen, within which rank a very 
 
 rich citizen, the banker and merchant, numerous body of persons is conspicu- 
 
 the alderman of the larger cities was ous by birth, dignity, and office aa 
 
 reckoned to this class almost without a more distinguished class (Gneist, 
 
 question. The commission of peace for " Adel und Kitterschaft," pp. 47-50). 
 
 the county and the towns was a general Gradations which now appear to us 
 
 standard for the " rathsfahige " classes, pedantic have in their day served to 
 
 as they have been called in German satisfy the pretensions of the older 
 
 cities. Large estates, education, and distinguished classes so far as they 
 
 customary service in the magisterial were content with the moderate right 
 
 offices are here, as among the landed of precedence, and did not aspire to be 
 
 gentry, the distinguishing feature. For made a separate caste. The narrower 
 
 this reason the retail tradesman, the definition of gentry in the books on 
 
 dealer, and the artisan were not heraldry, and which is different from 
 
 reckoned among such, even when that given in the law books, certainly 
 
 they actually surpassed in wealth brings precedence by birth much more 
 
 many a country noble. Habitual prominently into the foreground. But 
 
 activity in an honorary position in these books have never had any in- 
 
 the militia, in the court (commission fluence upon political life, 
 of peace), and in the Church (by
 
 620 Constitutional History of England. 
 
 came a kind of middle degree connecting the peerage with the 
 wider circle of gentry. (l c ) At the close of the period the 
 average income of a peer was usually assessed at about 3000, 
 that of a baronet at 900, and that of a member of the 
 Lower House at 800. 
 
 II. The enfranchised freeholders of the counties and the 
 enfranchised citizens of the towns now appear, after the gentry 
 has been thus raised, as politically entitled to be called the 
 middle class. The old line of demarcation, according to which 
 the classes which habitually discharge the duties of jurors, 
 that is, the forty-shilling freeholders, also help to form the 
 enfranchised body, has been retained unchanged in the 
 county. There is added, moreover, to these the service of 
 constables, churchwardens, and overseers of the poor and 
 of highways, which do not fall under the same qualification, 
 but as a matter of fact, ordinarily keep within the same 
 classes. There are added, moreover, the poor rates, which 
 have now become considerable, and the highway and bridge- 
 building burdens, to which these classes contribute large 
 amounts. Almost the same relation exists in the militia 
 service. If, with regard to these, the franchise had been 
 lowered, it would, on the other hand, have been necessary to 
 raise it again ; for by stat. 27 Elizabeth, c. 6, the qualification 
 for jurors had been doubled. On the whole, the rate of 
 forty shillings, however, still answered to the average calcu- 
 lation of personal service. There was, accordingly, no in- 
 clination evinced to alter the old valuations in any way. (2) 
 
 (l c ) The hereditary title of baronet more than 1700, of whom about 750 are 
 
 was intended to a certain extent to still in existence, to whom must be 
 
 take the place of that of banneret, added a small number of Scotch and 
 
 which was for the last time granted at Irish baronets, whose special creation 
 
 the battle of Edgehill, 1642. Accord- ceased with the Union. The richest 
 
 ing to the original statutes, the new old knightly families passed for the most 
 
 dignity was as a rule purchasable for part into the peerage and into this 
 
 1095, but regard was to be had to baronetcy; yet there are also still a 
 
 good family, to the descent from great number of old freeholding families, 
 
 persons who bear arms from their who only indicate their descent by their 
 
 grandfather on the father's side, and coat of arms. 
 
 who have an annual income of 1000, (2) The enfranchised middle classes 
 which was specified more in detail. have in the course of the seventeenth 
 As, however, it was not very easy to century attained to political conscious- 
 find purchasers for all the 200 patents ness and to an influential significance, 
 proposed, these conditions were not which they did not enjoy either in the 
 strictly adhered to, which, as being preceding or in the subsequent period, 
 limitations of the prerogative, did not The statistics as to the numbers and 
 bind the successor. The first baronet, prosperity of the yeomanry at the time 
 created in 1611, was Sir Nicholas Bacon of the civil wars are confirmed by 
 and then this dignity was, under James their money payments in the civil wars, 
 I., conferred upon 200 persons, under and by the great influence of the middle 
 Charles I. upon 253, under Charles II. classes at elections. The house of the 
 upon 426, and under James II. upon English yeoman was rough enough, 
 20. The total number of creations and down to Elizabeth's time had not 
 down to the present day amounts to even a chimney ; but the good food
 
 Society at the End of the Seventeenth Century. 621 
 
 On the other hand, the division in the boroughs was very 
 doubtful. In these the restriction of an active participation 
 in their government reacted continuously upon the suffrage, 
 so that in the majority of cases only the select bodies, 
 capital burgesses, etc., took part in the elections, -and the 
 old rule that the right to vote resided in all those who paid 
 scot and bore lot, became actually the exception. Indifference, 
 a result of being no longer accustomed to personal service, 
 want of all statistics for examining into the state of things, 
 and tacitly, also, a feeling that such a restriction was neither 
 illegal nor inequitable, all worked together here. "Incor- 
 poration " had become the legal form for this exclusion, which 
 was, on being granted, either expressly restricted to a narrow 
 circle, or was understood to have been so granted. This con- 
 ception so predominated in the practice of the courts, in juris- 
 prudence and in the election decisions of the Lower House 
 since James I., that we must perceive in it not merely a chain 
 of abuses, but a tacit equalization of the anomalously large 
 representation by an equally anomalous restriction of the 
 enfranchised classes. Even James the Second's brutal treat- 
 ment of the municipal constitutions cannot in this respect 
 be particularly blamed. At the eleventh hour James issued, 
 on the 17th of October, 1688, an ordinance for reinstating the 
 corporations, annulling the act of disfranchisement and re- 
 newing the ancient charters. The majority of the towns took 
 advantage of it, yet only returned to a sort of degenerate 
 
 and the comfortable appearance of the the great landowners as well as of the 
 middle and lower classes has been higher clergy upon the middle classes, 
 frequently and credibly testified to. The old oath of fealty to a mesne lord 
 Henry the Eighth's merits have been became under these conditions of things 
 recently perhaps too highly estimated a pure formality. The classes which 
 in Froude's enthusiastic description, formerly in great numbers belonged to 
 and the guild and labour protection the great manorial households as idle 
 system somewhat idealized. But the servants, now found as tenants, trades- 
 raising of the economic independence men, and mechanics a more burden- 
 of the middle classes within the some, though a more independent ex- 
 agricultural regulations then existing istence. The novelty of their position 
 has scarcely been over-estimated. Cer- and the want of a fixed limit to the 
 tain social political laws also of Eliza- middle classes is moreover seen in 
 beth's disclose a direct intention to the -deficiency of all proper desig- 
 advance the maintenance of a land- nations of class and rank. The name 
 owning middle class by parcelling of yeoman for the country freeholder 
 estates. In the following period I shall almost takes the place of the probtts 
 again refer to entails, which were of a et legalis homo of the Middle Ages, 
 contrary tendency. A change was The designation mystery, magisterium, 
 moreover introduced in the social and the word "mister "(master) derived 
 customs of this time, which more and from it, were widely employed as names 
 more prevented the means of the for the respectable tradesman and corn- 
 aristocracy from being spent in hospi- mercial man even in legal documents 
 tality to their neighbours, followers, (Coke, " Inst.," ii. p. 668). In the 
 and servants, diverted their expen- tables of precedence the whole middle 
 diture into other channels, and thus class is taken together under the name 
 diminished the immediate influence of of yeomen.
 
 622 Constitutional History of England. 
 
 existence, in which no serious reform was thought of. After 
 the parliamentary suffrage in the boroughs had become inter- 
 woven with the influence of a ruling class and its various 
 parties, a reform proceeding from Parliament could no longer 
 be expected. Like the castles of the Middle Ages, the 
 boroughs now became fortified strongholds for the political 
 influence of the Whig and Tory nobility, and for a smaller 
 part of a municipal patrician clique. The Convention Parlia- 
 ment expressly confirmed all the abuses of the select bodies ; 
 the most zealous Whigs soon showed themselves the most 
 zealous representatives of the deformities in the right of 
 corporations, and no sincere attempt to restore a regular 
 municipal franchise was again made for a century to come. 
 As a final result the gentry secured by this means a para- 
 mount influence, as was in truth due to them of right for 
 their exertions in the county and parochial unions. In spite 
 of glaring anomalies in individual cases, there was on the 
 whole in the distribution of the franchise a jus fequum, 
 although a hard problem was left for a future generation, 
 in which that equalization no more existed. (2 a ) 
 
 The class of electors thus limited is, from an economic 
 point of view, a rising one. The number of freeholders has 
 without doubt increased, owing to the passing of huge 
 monastic properties into private hands, to the divisibility of 
 landed estates, and the freedom of devise since Henry VIII. 
 Still more have the progress of agriculture and the market 
 found for produce in towns that have now become wealthy, 
 increased the revenue even of the smaller freeholders. The 
 later calculation, that there existed in the- seventeenth century 
 160,000 freeholders, with an average income of 60 to 70, is, 
 like all statistics of these times, probably exaggerated; but, 
 making all allowance for great differences in different coun- 
 ties, the existence of a numerous and well-to-do class of free 
 farmers at this time is beyond all question. A prosperous 
 middle class was also to be found in the cities, in conse- 
 quence of a fairly uniform rise in commerce, navigation, and 
 trade. Excepting some unfavourable times and the decay 
 of certain branches of industry, both wealth and prosperity 
 steadily increased in the seventeenth century in spite of the 
 civil wars. This economic position, allied with the conscious- 
 ness of political influence, with an energetic activity in the 
 parish, and with the progressive development of ecclesiastical 
 
 (2 a ) The relations of the municipal refer the reader to Gneist, " Geschichte 
 
 constitutions and the municipal fran- des Self-Government," pp. 318, 325, and 
 
 chise to Parliament had at the close of to the survey in Gneist, " Self-Govern- 
 
 this period become so complicated that ment" (3rd edit., 1871), sec. 100. 
 for a more detailed description I must
 
 Society at the End of the Seventeenth Century. 623 
 
 reform, made the middle classes the depositaries of inde- 
 pendent thought and the mainspring of the opposition to the 
 dynastic hierarchy of the Stuarts ; for which reason also the 
 Eestoration attacked religious dissent and political heterodoxy 
 among the civic middle classes, without essentially checking 
 their material development. 
 
 III. The unfranchised classes in town and country form, it is 
 true, a personally free class, and one on an equality with the 
 classes socially above them, both in respect of rights of 
 family and property, but one which has no active share in 
 expressing the will of the State. Both socially, and also in 
 respect of their private rights, this class appears to have 
 become to a certain extent raised. 
 
 The position of the petty freeholders, who were excluded 
 from the franchise, was involuntarily changed by the rapid 
 depreciation of the coinage and the value of money,- especially 
 since Henry VIII. While the shilling had fallen to one-third 
 of its former value, and the money produce of land had 
 steadily risen, a number of small freeholders were constantly 
 rising into the class entitled to exercise the franchise. 
 
 The copyholders, from being tenant-farmers, have now 
 become partly hereditary possessors, and in part are at least 
 now protected against arbitrary dispossession. Villein tenure 
 only now continues in the form of actual burdens and dues 
 payable on change of possession. The consent of the lord to 
 alienations and the fees payable on change of tenant served 
 the practical end of preserving this kind of real tenure in 
 a more fixed and intact state than freehold. The more 
 persons of higher -degree were anxious to acquire such 
 estates, the more did the idea of villeinage become lost in the 
 idea of an inferior tenure. 
 
 The status of the propertyless working men was also raised 
 by the growing prosperity, and by the protection of guilds, 
 which the Tudor legislation allowed as an equivalent for its 
 police measures regulating trade and labour. 
 
 The legislation of the Tudors also made fatherly provision 
 for the poor working classes, by fixing the prices of provision 
 and wages. Credible statements inform us that a daily pay 
 of 3Jd. was, when compared with the price of provisions, rela- 
 tively high. (3) The Eestoration, too, only exercised a pressure 
 
 (3) The unenfranchised, properly equally entitled with regard to private 
 
 speaking, the third estate, was in legal rights. The disappearance of the re- 
 
 and popular language never so termed, mains of serfdom in Elizabeth's day is 
 
 because the styles of estates and ranks testified to by Sir Thomas Smith de 
 
 were regularly taken from former epochs. Rep., iii. c. 10. An occasional mention 
 
 But as a fact it has this third position of serfs in judicial decisions under James 
 
 as being formed of a number of liberi I. is an antiquarian curiosity. Consider- 
 
 homines in the old sense, all being ing the general couditionsof paid labour,
 
 624 Constitutional History of England. 
 
 upon political views, and not upon the social position of the 
 lower classes, particularly in towns. There is especially no 
 tendency apparent to extend the labour-police. 
 
 English society, regarded as a whole, forms at the close of 
 this period a pyramid with gradually descending relations of 
 protection and dependence ; at the head the peerage, as the 
 apex of a landed gentry on a broad foundation, firmly rooted 
 in the county; this latter again as leader of a still wider 
 class of patrician families ; the whole ruling class again with 
 an ascendant influence upon the enfranchised middle classes ; 
 the whole population held together upon the basis of equal 
 family and property rights, in which even the institution of 
 entails is quite as accessible for the farmer as for the greatest 
 peer in the realm. That the whole system was conceived of 
 as being a just distribution of civil rights and civil duties 
 is shown by the course of the revolution, in which the most 
 passionate pretension of the rights of the person and the 
 realization of the republican ideal led, not to a lowering 
 but, to a raising of the electoral qualification. The social 
 bases of this political system were so firmly established, that 
 the violent proceedings of Charles I. and James II., the violent 
 deeds of Cromwell and the Puritans, two royalist, one repub- 
 lican, and one aristocratic revolution passed by and left the 
 constitution externally unscathed. 
 
 the ruling classes had neither any in- cause they were regarded as private 
 
 terest in keeping up nor yet any incli- jura qusesita. Accordingly the incident 
 
 nation to retain, that isolated fragment fines payable on alienation, taking up 
 
 of Middle-Age barbarism. As to the the inheritance, the heriots, etc., to the 
 
 conditions of the copyholders, and as to lord of the manor still remains. As to 
 
 privileged villeinage and pure villein- the legislation of the period affecting 
 
 age, cf. Blackstone, ii. 92 seq. The trade, cf. above, p. 468. How this class 
 
 real burdens of copyhold which were was politically regarded in Elizabeth's 
 
 akin to the feudal burdens were not time, is shown by the testimony of 
 
 abolished by 12 Charles II. c. 24,'be- Harrison (1568).
 
 ( 625 ) 
 
 THE PARLIAMENTARY GOVERNMENT OF 
 THE EIGHTEENTH CENTURY. 
 
 CHAPTER XLIV. 
 Structure of $e ^nglisf) &tate afar rt)* ifobolutum.* 
 
 WILLIAM AND MART, 1689-1695 GEORGE I., 1714-1727 
 
 WILLIAM III., 1695-1702 GEOKGE II., 1727-1760 
 
 ANNE, 1702-1714 GEORGE III., 1760-1820 
 
 WITH the Eeformation, the Eevolution, the Restoration, and 
 the expulsion of the Stuarts, the limits of the executive power 
 were in England defined, and the political constitution was 
 formally established. An external change was brought about 
 by the union with Scotland (1706), and with Ireland (1801). 
 Apart from this, the accession of William III., with the De- 
 claration of Rights, marks the commencement of parliamen- 
 
 * The authorities of this epoch, " Commentaries on the Laws of Eng- 
 
 which in their voluminousness belong land," was published, which down to 
 
 partly to political history, and partly the close of the century passed through 
 
 to jurisprudence, allow only a slight eleven editions. It contains in vol. i. 
 
 selection to be made with reference to (rights of persons) an admirably written 
 
 the following points : The statutes of survey of public laws, clearly empha- 
 
 this period form an almost boundless sizing the chief points, which has not 
 
 mass of matter, for which the official been excelled by its later commentators 
 
 collection of Statutes of the Kealm (Stephen, Bowyer, Warren, Kerr, etc.). 
 
 ends with the death of Anne. The On the other hand, the historical intro- 
 
 current collections of statutes, however, ductions are merely short sketches. For 
 
 contain the text complete and correct an exclusive survey of the rich political 
 
 in all material points. For the Pro- literature, I may refer my readers to R. 
 
 ceedings in Parliament, the " Parlia- von Mohl, " Literatur des Staatswis- 
 
 mentary History," vols. v.-xxxvi., ex- eenschaften," vol. ii. 1856, pp. 3-236. 
 
 tends from the year 1668 to the 12th For local government there appeared 
 
 of August, 1803, with which date this in this period a standard work, Burn's 
 
 collection stops, and is continued in a " Justice of the Peace " (1st edit., 1755, 
 
 new series as (Hansard's) parliamentary two small vols., then increasing to four 
 
 debates. vols. down to the 19th edit., 1800, and 
 
 A work upon the history of English now in the 30th edit, in five very corn- 
 
 Law for this period is wanting. About pendious vols. containing more than 
 
 the middle of the period the first edition eight thousand pages). 
 
 (1765) of Blacketone's famous work, Of general and political histories the 
 
 2s
 
 626 Constitutional History of England. 
 
 tary government by party, the consideration of which requires 
 a comprehensive survey of the structural fabric of this political 
 system in the eighteenth century. 
 
 Like all great free states, the British is based upon a 
 strong and firm construction of the executive. In so far as 
 it is necessary to make the person and the property of the 
 individual serviceable to the State, this State is stronger than 
 the most absolute despot in Europe. Since the Norman days, 
 a feature of military obedience and discipline pervades the 
 English political system, a system which, hitherto unknown 
 to the States of the Continent, has only been efficiently por- 
 trayed to them by modern historians. 
 
 The Crown is at all times the source, the courts of justice 
 the barrier, and the law the supreme regulator, of these 
 powers. But, throughout the four hundred years of legisla- 
 tion since Edward L, a relation of mutuality has entered 
 into these elements, which circumscribes State and society, 
 State and Church, local government and estates alike with 
 fixed legal barriers. These self-imposed bounds of the Crown 
 work at the same time as legal limitations of Parliament 
 and parties, and as a legal protection of classes, corpora- 
 tions, and individuals. The sanctity and inviolability 
 of this system was acknowledged by a formal agreement 
 between the two great parties of the nation, on James 
 the Second's abdication ; and all party formations, all party 
 movements since that time have been based upon the fol- 
 lowing conditions. 
 
 1. The law recognizes the hereditary Crown as the funda- 
 mental institution of the land, and establishes its fixed 
 succession by the Act of Settlement. 
 
 2. The law controls the sovereign rights of the State, 
 imposes the requisite duties upon the subjects, and specializes 
 these duties in a manner which prevents arbitrary proceedings 
 against individuals. 
 
 3. The law regulates the exercise of magisterial rights by 
 counties, towns, parishes, and corporations, which thus become 
 
 following must be specially mentioned : The very rich matter is in many cases 
 
 Hallam, "The Constitutional History almost too intimately connected with 
 
 of England ," vol. iii. (down to the death the family and party relations of the 
 
 of George II.) ; Lord Mahon, " History present times. 
 
 from the Peace of Utrecht," etc., 1836- For the statistical and administrative 
 
 1854, six vols. (from a Tory point of conditions of the eighteenth century, 
 
 view); W. Massey, " History of England John Adolphus, " The Political State 
 
 under George III., vols. i. and ii. 1855 of the British Empire " (London, 1818, 
 
 seq. ; Thomas Erskine May, " Consti- seq. 4 vols. 8vo), contains much valuable 
 
 tutional History since the accession of matter ; to which much may be added 
 
 George HI.," vol. i., 1861 (German from the writings of McCulloch and 
 
 translation by Oppenheim); Charles other politico-economic works, espe- 
 
 Duke Yonge, " The Constitutional His- cially on the history of the poor law 
 
 tory from 1760 to 1860," London, 1882. system.
 
 Structure of the English State after the Revolution. 627 
 
 the fixed depositaries of political functions, according to the 
 peculiar system of English self-government. 
 
 4. The law affords for the maintenance of these adminis- 
 trative functions a legal protection, by a comprehensive 
 system of remedies ex debito justitas, the now so-called adminis- 
 trative jurisdiction. 
 
 5. The law determines also, with the duties of the subjects, 
 the corresponding rights of the estates, among which a " ruling 
 class," with an influential share in the executive, makes itself 
 prominent. 
 
 6. and 7. The law governs their combination as a repre- 
 sentation of the communitates in the Lower House, as a spiritual 
 and temporal peerage in the Upper House, each with a suit- 
 able share in the exercise of the political powers among 
 themselves and towards the Crown. 
 
 8. The law guarantees to the Established Church the 
 self-government necessary for ecclesiastical activity, and thus 
 succeeds in finally reconciling Church and State. 
 
 9. Upon these foundations a new relation is formed 
 between the " King in council " and the Parliament, which 
 has become known under the name of Parliamentary Govern- 
 ment. 
 
 Within this framework ** the parties of the English poli- 
 tical system are formed, as well as the practice of parlia- 
 mentary government and the transition to the reorganization 
 of society in the nineteenth century (Chapters liv.-lviii.). 
 
 ** There is perhaps no more fruit- eighteenth century with that existing 
 ful and instructive parallel than the at the close of the fifteenth century 
 comparison of this structure in the (Chapter xxix.).
 
 628 Constitutional History of England. 
 
 CHAPTEE XLV. 
 I. ^fje Restoration of tfce f^erefcitarg JWonarcfjg. 
 
 JAMES THE SECOND'S deposition threatened to produce a series 
 of struggles and revolutions, such as from the Norman times 
 downward had always attended every breach of the legiti- 
 mate succession. Only too vividly did the consequences of 
 the execution of Charles I., which had happened only a gene- 
 ration previously, stand before the eyes of the men of those 
 times. To avoid similar consequences, both parties, after 
 long scruples and deliberations, framed the resolution "that 
 King James II., having endeavoured to subvert the constitution 
 of this kingdom, by breaking the original contract between 
 King and people, and by the advice of Jesuits and other 
 wicked persons having violated the fundamental laws, and 
 having withdrawn himself out of the kingdom, has abdicated 
 the government, and that the throne is thereby vacant." 
 
 The fact of deposition was veiled by the fiction of a resigna- 
 tion, which in some measure was in accordance with the 
 circumstances under which the King had quitted the country, 
 and by the further fiction that the heir already born, Prince 
 Edward, was illegitimate, an assertion which coincided with 
 a widespread popular opinion, as well as by the addition of 
 further circumstances of the event, which, according to human 
 calculation, could not recur in the same form, so that the 
 danger of forming a precedent was avoided. 
 
 In consequence of these fictions, the Crown was held to 
 devolve upon James the Second's eldest daughter, as heiress, 
 who was now recognized, in conjunction with her husband, as 
 the rightful heir to the throne. Quite as consistent .was the 
 devolution of the Crown to her younger sister Anne, failing 
 issue of the union of William and Mary, a contingency that 
 was not anticipated in the year 1688, but which actually 
 happened.* 
 
 * The declaration of the 12th of failing such issue, the Princess Anne 
 
 February, 1688, determines the sue- and her issue ; failing these, William's 
 
 cession thus: first William and Mary issue, as the grandson of Charles I., and 
 
 jointly ; then the survivor of them ; nephew and son-in-law of James II. 
 then the issue of Queen Mary ; then,
 
 The Restoration of the Hereditary Monarchy. 629 
 
 This was ex necessitate rei the closest practical adherence 
 to the traditional descent of the Crown, due regard being paid 
 to the fact that, in consequence of the great shock sustained 
 by the realm, a male ruler appeared indispensable, and that 
 therefore William should be joint sovereign together with his 
 consort, of whom he should even take precedence. 
 
 A still further limitation of the succession appeared neces- 
 sary, according to the experiences of the past. The succession 
 of the Catholic Mary I. had plunged the country into a bloody 
 counter-revolution, the succession of the Catholic James II. 
 had brought about a fresh revolution. The nation was not to 
 be exposed for the third time to the disastrous vicissitudes of 
 a Catholic succession. Accordingly the stat. 1 William and 
 Mary, c. 2, was passed, to the effect that every person, " con- 
 fessing the popish religion," or who should contract a mar- 
 riage with a popish consort, should be for ever incapable of 
 succeeding, that the people in such case should be freed from 
 all allegiance, and that the Crown should pass to the next 
 Protestant heir. 
 
 When, towards the end of William the Third's reign, a 
 failure of male issue became probable, alike in his case and 
 in that of the Princess Anne, the final Act of Settlement 
 (12 & 13 Will. III. c. 2) was passed, which in case of the 
 failure of Protestant descendants of Charles L, goes back to 
 the electress Sophia of Hanover, the daughter of Princess 
 Elizabeth, who was the daughter of James L, whose agnate 
 Protestant descendants were to succeed to the throne in the 
 event of the deaths of William and Anne.** 
 
 The legal and moral verdict of posterity has with rare 
 accord acknowledged the " glorious revolution " as justifiable. 
 It was no breach of divine and human law when, after the 
 experiences of three generations, the nation emancipated 
 itself from the male line of a dynasty, which had utterly 
 misunderstood and neglected every duty of the Crown and 
 every task imposed by the times. Former centuries had 
 ended the life of more than one English king in a manner 
 that was more akin to a breach of right than was the treat- 
 ment experienced by this King. If the English nation had 
 
 ** Legal construction was obliged builds up from this proceeding his four 
 to resort, for these deviations from the positions concerning the royal title: (1) 
 legitimate succession in the male line that the Crown is hereditary, (2) here- 
 in favour of daughters, to legal fictions ditary in its own manner (analogous to 
 and to a deduction ex necessitate rei, to the descent in real estate), (3) that the 
 reduce the breach that had been made right of succession may be from time 
 in the fixed rules of hereditary descent to time altered or limited by resolution 
 to its lowest possible importance, and of Parlinment ; with whicli restrictions 
 to avoid dangerous precedents for the (4) the Crown always will be hereditary, 
 future, so far as human prudence and is so and remains so. 
 wisdom could effect this. Blackstone
 
 630 Constitutional History of England. 
 
 for three whole generations borne the misgovernment of such 
 a dynasty, if it at the last veiled over the most frivolous 
 tyranny of James II. with the good-natured fiction of an 
 abdication, the reason for this moderation lay in the mature 
 experience of a people that had arrived at man's estate. It 
 was not the inexperience of a people that has been long unac- 
 customed to all spontaneous action in public life, such as 
 characterizes the French revolution and its successors, but it 
 was the consciousness of the great shock to all legal and moral 
 foundations, which follows the overthrow of a legitimate mon- 
 archy, it was the probability of the consequent swamping of 
 the State by the egoism and the party-system of society, 
 which made the nation endure so much with patience. For 
 the first time, with the clear consciousness of the consequences 
 that would attend a change of dynasty, the English people 
 took the manly resolve to accept the consequences in spite 
 of all. 
 
 In truth, the conditions of things that ensued after the 
 change of dynasty, resembled the times immediately following 
 Magna Charta. Discontent had never been greater than it 
 now was, when everything appeared won. A factious nobility, 
 with complicated plans of action without any great aims, and 
 capricious changes in the prevailing opinions, fill the whole 
 of the next generation. The Whigs, whose chief strength lay 
 in their majority among the nobility and in the upper classes 
 in the cities, did not cease, in spite of all legal fictions, to 
 regard the King as their own creation; the Tories persisted 
 in considering him only as a sort of regent. The working 
 classes in sullen apathy witnessed the departure of their 
 natural protector, the legitimate monarch ; and they received 
 their new lord with the same indifference. Parliament, 
 church, and common law returned to their old places ; yet the 
 victorious party regarded this as a natural consequence. No 
 one felt himself socially in a better position ; but the Tory 
 party found to its vexation, that only their hated opponents, 
 and with them a foreign prince, had attained to power. This 
 new monarchy, even though an act of political necessity and 
 wisdom, was and remained an artificial thing. The hearts 
 of the people were not with the King, and therefore, perhaps, 
 the King had no hearty feeling for England. William's chief 
 object in life, the struggle against the ascendancy of France, 
 and the maintenance of the independence of Holland, and of 
 the balance of power in Europe, was not in accordance with 
 insular views. The grand struggles of the statesman neither 
 gained for him the approval of the great parties, nor endeared 
 him to the multitude. Parliament had certainly gained all 
 that could be gained in this constitution ; the monarchy was
 
 The Restoration of the Hereditary Monarchy. 631 
 
 now " an expensive but otherwise inoffensive capital to the 
 social column." The result, however, was not an exalted feel- 
 ing of civil liberty, but constant collisions of the Government 
 with a proud and hot-blooded nobility, a purse-proud middle 
 class, and an intriguing divided clergy.*** 
 
 The lesson taught by the glorious revolution, a lesson never 
 to be forgotten by the English people was, that even the most 
 righteous insurrection of society against the constitutional 
 executive is the greatest disaster that can befall a nation. 
 After this glorious revolution, there remained innumerable 
 difficulties to contend with, throughout the whole system in 
 the internal life of the nation which a just, wise, and con- 
 scientious monarch would have spared the English people. 
 Even in the second generation there is disclosed to us in the 
 new order of things an open attempt at rebellion. It was not 
 until the third generation that the evil effects of the change of 
 dynasty were really healed. 
 
 *** The riddle of the phenomena strike the balance for his little world 
 
 which occur after every great rising of his ego and begins to calculate how 
 
 a nation (as also after the reformation much of the glory and fortune of the 
 
 in Germany) can never be otherwise great whole belong to this ego. Vexed 
 
 explained than from the nature of so- at the small balance in his favour, and 
 
 ciety itself : " After the display of the even finding a deficit in the account of 
 
 noblest energies, and after the highest his prosperity, he gives way to the 
 
 ideal aims have been realized, there nature of his social character, pays the 
 
 comes a weariness, and with it an un- tribute due to the imperfection of human 
 
 fettering of social interests, which nature by an attitude which degrades the 
 
 by 'Freedom' only understand the great relations to the lowest standard, 
 
 immoderate satisfaction of their own after their exaltation to the highest 
 
 interests. After the most glorious re- and holiest " (Gneist, " Preuss. Finanz- 
 
 sult has been gained for the whole reform," 1881, p. 247). 
 community, the individual proceeds to
 
 632 Constitutional History of England. 
 
 CHAPTER XL VI. 
 II. !>e Regulation of ^otetgn 3&fpj)ts fog Hata. 
 
 IN the course of the Middle Ages the Germanic nations display 
 a national tendency to regulate, hand in hand with the here- 
 ditary monarchy, the exercise of the royal sovereign rights 
 to the widest extent by fixed principles, which, acting on both 
 sides, bind both King and people. At the close of the Middle 
 Ages, this specialization had made such progress on the Con- 
 tinent, that the development of an administrative legislation 
 may be regarded as the main point of contrast between the 
 modern political system and the Middle Ages, as well as the 
 ancient world. In England, the long struggle against the 
 absolutism of the Norman Crown and the century of Stuart 
 misgovernment brought the specialization of these rules of 
 law to an extreme form, which reached its height in the 
 eighteenth century. This regulation by law embraces all de- 
 partments of internal political life to the utmost possible 
 limits. 
 
 I. The regulation of the military power of the State by law is 
 based upon a separation of the armed force into the ordinary 
 military system of the militia, and the extraordinary organi- 
 zation of a standing army. 
 
 The militia laws of the eighteenth century are bound up 
 with the system of the Eestoration for the acknowledged pur- 
 pose of keeping the wealthy classes at the head of the armed 
 forces. These statutes repeat in monotonous detail, and, as 
 a rule, literally, the clauses of their predecessors. After evil 
 experiences as to the small utility of the militia forces, the 
 stat. 30 George II. restricts the number to 30,740. However, 
 in 2 George III. an extension and a refraining was made, and, 
 after many additional provisions, a new consolidation was 
 effected in 26 George III. c. 107, in which form the militia 
 continued down to 1802. In the later statutes, the strength 
 was fixed at 120,000 men, and in like manner the number of 
 supplementary militia was limited. This legislation, however, 
 of course not only determined the personal service of the 
 soldiers, the manner of drawing them, and the grounds of 
 exemption from service, but even the composition of the
 
 The Regulation of Sovereign Rights by Law. 633 
 
 regiments, battalions, and companies, the organization of 
 the staff and the times of training. But this statute 
 principally regulates the composition of the administrative 
 commissions and the qualification of the officers. By 2 
 George III. c. 1, and 26 George III. c.. 107, the lord-lieutenant 
 appoints in each county twenty or more deputy-lieutenants 
 with a qualification of 200 income from freehold, in the 
 smallest counties 150. He appoints the colonels with a 
 qualification of 1000 income, or double that sum in ex- 
 pectancy. The qualifying income of the lieutenant-colonel is 
 600 ; that of a major or captain, 200 (or heir to 400, or 
 younger son of a landowner of 600). A lieutenant must have 
 50 income and 1000 personalty (or both together 2000, or 
 the son of a deceased landowner of 600), An ensign 20, 
 or personalty valued at 500, etc. There is no stronger 
 contrast to this form of land army than the Prussian 
 canton-system of the same period, which casts the whole of 
 the personal service upon the peasant classes and lower 
 classes in the towns, and raises funds for the army expenses 
 by contributions from peasant farmers and the excise of the 
 cities. (1) 
 
 In equally strong contrast to the needs and legal relations 
 existing in Continental States is the conception of a stand- 
 ing army in England. The rough military rule of Crom- 
 well, as well as the attempts at overthrowing the constitu- 
 tion made by James II., had left behind them the lasting 
 
 (1) The very dubious utility of an wars. In 1793 and 1796 a supplementary 
 
 army organized according to this sys- militia was introduced to increase the 
 
 tern was seen on the occasion of the forces. But the inclinations of the upper 
 
 invasion of the Pretender in 1745. Such classes were directed rather towards 
 
 experiences and -the constant mistrust forming volunteer corps. The first 
 
 of a standing army led from time to statute on this subject is 34 George 
 
 time to improvements and strengthen- III. c. 31. Four years later the stat. 
 
 ing of the forces. But after the scare 38 George III. c. 51, was passed for the 
 
 had passed away the old carelessness formation of mounted volunteers (yeo- 
 
 returned. With the exception of the manry cavalry). All supplementary 
 
 city militia of London, in the middle of militia and volunteer corps still keep 
 
 the century reviews and trainings up the connection between the armed 
 
 were again neglected, until, in the year forces and landed property ; the com- 
 
 1756, the danger of an invasion led to missions of all the officers are conferred 
 
 the resolution to form a less numerous, by the lord-lieutenant. In the time of 
 
 but more efficient militia. But soon the threatened invasions from France 
 
 the number was again considerably considerable contingents of volunteers 
 
 increased, to 120,000 men. The militia were even furnished and equipped by 
 
 thus organized was and remained un- rich landowners at their own expense, 
 
 satisfactory for immediate employment The supplementary militia organized 
 
 in the field ; but it was still so con- in accordance with the statute of 1796 
 
 siderable in numbers, and the standing was actually mobilized in the spring 
 
 army, compared with it, so small, that of 1798, but those troops served very 
 
 materially as well as morally it was soon as material for drafting into the 
 
 thought that the elements were almost standing army, which was with cer- 
 
 evenly balanced. The militia actually tain restrictions allowed and voted by 
 
 again revived in the period of the French Parliament.
 
 634 Constitutional History of England. 
 
 impression, that every standing army was a source of danger 
 to the constitution and in irreconcilable opposition to the 
 rights of the estates. Yet, as such an army appeared indis- 
 pensable, considering the colonial possessions and the inter- 
 national position of England, a paid army was after 1688 
 tolerated under the following conditions : 
 
 1. Under an acknowledgment to be annually repeated, that 
 the existence of a standing army in times of peace is contrary 
 to law. 
 
 2. Under the acknowledgment to be also reiterated every 
 year, that this army is not necessary for the maintenance 
 of political order, but only convenient for "upholding the 
 balance of power in Europe." 
 
 3. Under the condition that the expenses of this army are 
 to be entirely defrayed by an annual subsidy, and thus depen- 
 dent upon a free grant of money voted by the Lower House 
 and liable to be refused. 
 
 4. Under the condition that the command and disciplinary 
 powers of the Crown necessary for a standing army are as 
 extraordinary powers to be granted each year by Parliament 
 by a Mutiny Act (beginning with 2 William and Mary, c. 5, 
 sess. 2, c. 14), on the refusal to grant which the army would 
 be ipso facto disbanded, 
 
 5. Finally, with a condition that was still further developed 
 in the course of the century, that by the system of purchase 
 of the officers' commissions, the whole corps of officers, both of 
 the infantry and cavalry, remains reserved to the sons of the 
 dominant classes. 
 
 Under these very anomalous conditions the effective strength 
 of the army in England is dependent upon the resolutions 
 of Parliament, which annually determines how many paid 
 soldiers shall be recruited and kept on foot. 
 
 The principal object of this military system, the main- 
 tenance of the national independence against foreign attack, 
 is fulfilled for this island power by the navy, which, in strength 
 and activity, in the eighteenth century finally takes the posi- 
 tion which the peculiarity of the country demands. In this 
 normal organization of national defence the normal principles 
 of a military system are to some extent again met with, e.g. 
 the fixing of the permanent organic institutions by statute 
 (beginning with 2 William and Mary, c. 3) ; the regulating 
 of technical details by ordinances, royal warrants, and regu- 
 lations. (l a ) 
 
 (l a ) The English military system, measure neutralize each other. (1) The 
 
 compared with the entirely opposite English system of the annually varying 
 
 institutions of the Continent, is based strength, the Mutiny Bill, the paid 
 
 upon three anomalies, which in some soldiery, and purchase of officers' com-
 
 The Regulation of Sovereign Rights by Law. 635 
 
 II. The regulation of the judicial power by law is based upon 
 the fundamental distinction between the administrative side 
 of justice (the holding of a court) and the judicial side to use 
 a Koman expression, a distinction between imperium and 
 jurisdictio. 
 
 Only the administrative side belongs to the province of 
 administrative law, and is in England fixed by a few organic 
 arrangements, beside which the Lord Chancellor, the Home 
 Secretary, and the common law courts issue rules and exer- 
 cise a regulating power, of which considerable use has been 
 made in the nineteenth century. 
 
 All that, on the other hand, belongs to jurisdiction, in the 
 proper sense (the principles of private and criminal law, the 
 formation of the courts, and the procedure regulating the 
 rights of the parties) is founded partly still upon custom and 
 the practice of the courts (common law), supplemented by the 
 numerous statutes since Edward I., which, like the common 
 law itself, can only be altered by statute. The judicial system 
 appears also in this epoch to be the most stable part of the 
 constitution. In the higher courts, since William III., the 
 appointment of judges for life is again restored, and is legally 
 sanctioned by the Act of Settlement. The jury system is 
 strengthened by the legal control of the lists of jurors which 
 are now made out by the local officers (7 William III. c. 32 ; 
 3 George II. c. 25). The qualification of jurors was by 4 
 and 5 William and Mary fixed at 10 from freehold or 
 copyhold; by a later statute an annual income of 20 from 
 lands held on a life lease is put on an equality with this 
 qualification. The principle that the courts have only to 
 decide according to law, and that they have of themselves 
 to interpret the rules of law, is common to England and to 
 Germany. (2) 
 
 missions is applicable to a country the existence of a system of national 
 
 which needs its troops for service in defence, which no nation can dispense 
 
 distant colonies, and is only inclined with entirely, are again found in the 
 
 at long periods to engage in active navy, even united with a very harsh 
 
 warfare within the European family of system of pressed service. That it has 
 
 nations. (2) The militia, which in this been thought possible to apply the sys- 
 
 form would in any other country be tern of Mutiny Bills to continental 
 
 utterly insignificant, still retains in its States, and that it has been considered 
 
 orps of officers military elements, as to be a pattern " constitutional " insti- 
 
 the colonies and East Indian posses- tution, belongs certainly to the most 
 
 sions afforded the gentry a field for absurd imitations of foreign institutions, 
 
 practical military service, in which even (2) As to the details of the legal or- 
 
 great military capacities could he de- ganization of the judicial system, cf. 
 
 veloped. While the state of the country Gneist, "English Verwaltungsrecht," 
 
 would otherwise easily lead to effemi- " c. 6. As to the further extension of 
 
 nacy, there was preserved here in the the right of issuing rules in the province 
 
 dominant class a military skill, which of the administration of justice, cf. 
 
 was also advanced by purchase in the Gneist, " Verwaltungsjustiz," sec. 6. 
 army. (3) The normal conditions of
 
 #36 Constitutional History of England, 
 
 III. The control of the police power by law led even in 
 the Tudor and Stuart eras to an innumerable series of special 
 police laws affecting security of life and property, trade, 
 morals, luxury, the poor, labour, highways, etc., which in 
 their outward form are very similar to the German imperial 
 and country police regulations. But this broad system be- 
 comes more and more extended, as every amendment has to 
 be brought about by parliamentary statutes. Yet this legis- 
 lation does not suffice, but needs rather to be supplemented 
 in numerous points by reference to the old police functions 
 of the magistrates, the coroners, the constables, and other 
 officers of the peace according to common law, which all 
 were fixed and determined by the practice of the administra- 
 tion. The tendency to restrict as much as possible in this 
 department the discretionary powers of the officials, could 
 only be worked out in part, and even in the most special 
 police laws the introduction of discretionary empowering 
 clauses was unavoidable. The "general clauses " which are 
 indispensable to the German police administration are repro- 
 duced in England for the most part in the " powers of the 
 officers of the peace according to common law." Special 
 local police needs are provided for by local acts, and to a 
 limited extent also by by-laws of the county and local boards. 
 In London and in numerous provincial towns, for example, the 
 urgent demands for a police for fires, building, paving, street- 
 cleaning, watering, lighting, watchmen, and embellishing are 
 met by comprehensive local statutes and by-laws. 
 
 The influence of the class interests of the ruling gentry 
 upon the police legislation is characteristic of this period. 
 This is more especially shown in the legislation affecting 
 game, which, in most immoderate exaggeration, goes even 
 so far as to inflict death for the most serious poaching 
 offences. And secondly in the poor law legislation, which, 
 in order to alleviate the burden of providing for the poor, 
 which fell upon landed proprietors ever since Charles the 
 Second's day, allowed a division of parishes into small town- 
 ships and hamlets. The narrow-minded treatment of the 
 right of settlement and the system of removal, which begins 
 with 13 and 14 Charles II. c. 12, and is continued under 
 James II., is declared to be permanent by 12 Anne, c. 18. The 
 further series of statutes is also pre-eminently occupied with 
 the difficulties of an ever narrower and stricter right of 
 settlement. In a similar spirit by 3 and 4 William and 
 Mary, c. 12, the right of appointing overseers of highways 
 was vested in the magistrates instead of election in the 
 parish union. Moreover, the codified highway regulations 
 of 13 George III. c. 78, retain a mixed system of enforced
 
 The Regulation of Sovereign Rights by Law. 637 
 
 labour in connection with the highways and of highway 
 rates. Other characteristics of this period are the endeavours 
 to regulate more exactly the judicial functions and procedure 
 of the justices of the peace, to make the decisions of the 
 magistrates in courts of first and second instance as a rule 
 final, and to secure the obedience of the constables and other 
 executive officers by the express threat of disciplinary penal- 
 ties ; by all which the range of the police laws is more and 
 more increased. (3) 
 
 IV. The regulation of the financial power by law is based 
 still upon the distinction between the King's ordinary and 
 extraordinary revenue (Blackstone, i. c. 8). 
 
 The ordinary revenue includes the old hereditary income 
 of the King, the original property of the State, which belongs 
 to the King independently of any vote of Parliament. This 
 original property has very considerably decreased in conse- 
 quence of the great alienations of the demesnes, the abolition 
 of feudal incidents, etc., and now displays merely a shadow 
 of past greatness. Yet if it had been only properly managed 
 it could have sufficed for the royal household. But through 
 careless management, the Crown lands were, under George 
 III., so heavily burdened with debt that this monarch pre- 
 ferred to assign to Parliament by agreement (1 George III. 
 c. 1) the administration of the Crown estates, and to receive 
 in exchange a fixed sum from the State revenues (civil list). 
 This arrangement, which was made only for that king's 
 life, has, on the accession of all his successors, been 
 renewed, though under different conditions, but always only 
 as an arrangement pro tempore, which reserves to the Crown 
 
 (3) The range of police laws in- period is so artificially framed that it 
 creased to such a boundless extent can only be understood in a detailed 
 that they can only be surveyed in an exposition. The codified highway 
 exposition of the magisterial office as regulations of the year 1773 still re- 
 it now exists (cf. Gneist, " Self-Govern- tain the system of manual labour (con- 
 ment," chap. v. pp. 189-517, 3rd edit., tributions in kind), yet allow low rates 
 1871, and the sections dealing with the to be paid in acquittance of such 
 police administration in the towns, sec. labour and services, and raise the 
 107, the pauper police, sec. 119, the expenses by a highway rate. (There 
 police for public health and building, is extant a calculation of the year 
 chap, xi., the highway police, sec. 140). 1814, according to which the value of 
 The far-reaching extent of these laws service in kind is computed at 551, 241, 
 etands also in connection with the ad- the moneys paid in lieu thereof at 
 ministrative jurisdiction. The police 287,095, and the highway rate at 
 jurisdiction required very special rules 621,504.) The necessity for con- 
 for deciding each particular case, and structing roads, which had begun to 
 on the other hand for the practical use make itself felt, was regulated by 
 of the magistrates, their clerks, and local acts, by which committees are 
 under officials, it was necessary that formed for this purpose, the members 
 the laws, which were to be applied in being magistrates and interested per- 
 each single case, should be found in as eons. A general supplementary act 
 complete and compact a form as poa- for regulating highways was issued in 
 bible. The pour law legislation of this 13 Guorye III. c. 84,
 
 638 Constitutional History of England. 
 
 at every change of Government the option of taking back 
 the hereditary revenue into its own keeping and manage- 
 ment. (May, " Const. History," c. 4.) 
 
 By the extraordinary revenue is understood the income 
 derived from direct taxation, customs, and excises granted by 
 vote of Parliament. The great and constant needs of the 
 State in the eighteenth century, and the rise of a national 
 debt, no longer allowed the machinery of the English State 
 to be dependent upon periodical votes of subsidies, which the 
 Lower House also no longer needed for the sake of influence. 
 In the course of the eighteenth century, accordingly, all the 
 subsidies that were till then temporary passed into permanent 
 taxes ; the taxes and custom dues to be raised after that time 
 were no longer "voted," but were raised for the State coffers 
 by operation of law. It was only on the introduction of the 
 modern income tax and the legal regulation of the new 
 customs tariff, that a movable form was again provided for 
 a moderate portion of the direct taxes and certain articles 
 included in the customs tariff, so that perhaps from one-tenth 
 to one-seventh of the revenue is dependent upon the vote of 
 Parliament. With the regulation of the customs and taxes 
 by law, the most precise specialization entered also into the 
 financial statutes, which determined the subject, object, mode, 
 and measure of the tax to the very confines of possibility. The 
 influence of the ruling class here shows itself in refusing each 
 and every new assessment, and consequently in the decay of 
 the old land tax, on the other side in an immoderate increase 
 in the excise and customs, the last named in the protective 
 interests of great manufacturers and landowners. (4) 
 
 Strict regulation by law is also applied to the system of 
 local rating, in which, by many hundred statutes and by the 
 
 (4) Customs became permanent taxes provisions, articles of luxury, and trade) 
 
 by 9 Aniie c. 6, 1 George I. c. 12, and 3 were introduced as the financial needs 
 
 George I. c. 7 ; with 27 George III. c. increased, and codified in 48 George 
 
 13, the systematic customs tariff begin. III. c. 55. In like manner the special 
 
 The old subsidies, tithes, and fifteenths stamp duties (cf. Vocke, " Gesch der 
 
 were by 4 William and Mary, c. 1, made Steuern des brit. Keichs." Leipzig, 
 
 fixed taxes, in the case of which the 1866). The alleged "constitutional" 
 
 contributions arising from personalty principle that the Parliaments had 
 
 were almost entirely waived and the annually to vote all the revenue to the 
 
 now so-called land tax was levied upon Government has in Germany arisen less 
 
 the counties and towns, by 38 George from the English pattern than from a 
 
 III. c. 60, changed into a permanent tax confusion of the old periodical subsidies 
 
 upon landed property. Into the place voted by the Landstande with the 
 
 of the periodical subsidies came, after modern system of taxes regulated by 
 
 1797, a legally fixed property and in- law, which latter is alone admissible 
 
 come tax, but with a varying scale. A and practicable for our modern State 
 
 house and window tax was introduced organization. The constant mistaking 
 
 by 7 William III. c. 18, as a permanent of votes of subsidies for taxes created 
 
 tax. In like manner the assessed taxes by statute is an inexhaustible source 
 
 (that is, a group of taxes levied upon of confusion.
 
 The Regulation of Sovereign Rights by Law. 639 
 
 practice of the courts, subject, object, and method have been 
 exactly laid down, and the local authorities are allowed no 
 autonomy in fixing the rate of taxation, but may merely make 
 a calculation of the annual need and co-operate in assessing 
 the rates and taxes. 
 
 V. Lastly, the ecclesiastical power and supremacy was limited 
 and controlled by the Acts of Supremacy and Uniformity of 
 Elizabeth, and the supplementary statutes of the Eestoration, 
 directed towards upholding the power of the State against 
 possible encroachments of the ecclesiastical authorities, by the 
 statutes of prasmunire, Mortmain, and other similar statutes. 
 The Act of union with Scotland added a guarantee of the 
 permanence of the constitution of the Anglican Church. (5) 
 
 In spite of the enormous extension of this legislation, the 
 original rival relations subsisting between law and ordinance 
 in administrative law remained fixed and established. The 
 activity of a State can, in spite of all endeavours, never become 
 exhausted in statutes. Society rather, in its varying phases 
 according to time and place, requires an ever fresh activity in 
 ordering or prohibiting on the part of the State. And what 
 the executive has to order in individual cases, it can also, in 
 cases of a similar kind, command or forbid by ordinance. 
 The requirements of civil life remain accordingly an inex- 
 haustible fount of new rights of ordinance. In consequence 
 of the misgovernment of the Stuarts, however, we find in every 
 case where the executive power addresses itself immediately 
 to the person or property of the subjects of the State, the 
 English legislation so extremely specialized, and the depart- 
 ment of internal administration so extensively preoccupied 
 and overgrown by legislation, that the field for an independent 
 right of ordaining appears exceedingly limited, so that English 
 jurisprudence made the error of holding that the right of 
 ordinance only existed for the purpose of " executing the law." 
 And thus the blessings of legal regulation and control became 
 a galling fetter, which gave the English administration an 
 unwieldy character, that could only be gradually removed 
 by a more intimate bond of union between ministry and 
 Parliament (Chap, liii.).* 
 
 (5) Cf. Gneist, "Englishe Verw. tribunals is exclusively dependent upon 
 
 Recht," ii. c. 8, and below, Chap the rules laid down by the legislature, 
 
 xlvii. whilst in the department of adminis- 
 
 * That the relation between law and tration, ordinance remains binding for 
 
 ordinance, as it was established at the State officials and subjects so far as its 
 
 close of the Middle Ages (above, p. 374), province has not been already occupied 
 
 remained also unchanged in England, by a positive administrative law. But 
 
 has been proved in Gneiet, " Verwal- this was in England the case to such 
 
 tung, Justiz, Rechtsweg" (1869), chap. a wide extent, that the right of ordi- 
 
 vi. p. 69 seq. Only the administration nance, appears even in Blackstone only 
 
 of justice oy the civil and criminal as a supplementary function. With re-
 
 640 Constitutional History of England. 
 
 CHAPTEE XLVII. 
 
 III. 2Tf)t Connection of ^obneip <tHtg!)ts toit!) Hocal 
 Institutions ^Jtf ^gstem of &df=gobnnnunt. 
 
 As the exercise of sovereign rights must take place according 
 to geographical districts, the State needs executive organs in 
 the greater and smaller unions of the counties, hundreds, 
 towns, parishes, and villages. Since the Anglo-Norman times 
 these functions have in England been taken more and more 
 from the vicecomites and bailiffs, to be discharged as far as 
 was possible by the parishes, and, in their further development, 
 principally by individual officers chosen from the resident staff 
 of the communities. The English unions of parishes are, 
 however, not privileged to regulate their own police system, 
 poor-law boards, and rates according to their own will, but 
 they exercise legally limited authoritative rights in their 
 capacity as indirect State officials, and raise and extend their 
 rates according to a legally determined scale, for legally deter- 
 mined objects. English self-government has accordingly 
 formed itself into a system of offices and rates, regulated and 
 determined by law. 
 
 If for this system (which even in England has never been 
 legally defined) is used the expression self-government, there 
 will still be needed a distinction between magisterial self- 
 government, which is pre-eminently meant by the term self- 
 government, and economic self-government, which has its centre 
 in the system of local taxation and the assessment and em- 
 ployment of that taxation within the respective unions. 
 
 I. Jtflagistnial self=gobtrnmnt is bound up with the high 
 offices, which arose as early as the Middle Ages, the com- 
 petence of which is regulated partly by common law and partly 
 
 gard to the forms, the English ordi- quently of a secretary of State. In 
 
 nances are almost identical with our like manner the division into inde- 
 
 own. The ordinance appears either in pendent ordinances, executive ordi- 
 
 the solemn form of a royal resolution, nances, and the ordinances reserved 
 
 countersigned by the whole ministry by law is in England identical with 
 
 (order in council), or as a cabinet order ours in Germany. The department of 
 
 with the counter-signature of the head district and local police ordinances, on 
 
 of a department (warrant), or as a dele- the other hand, is much more restricted 
 
 gated right of ordinance, most fre- than in Germany.
 
 The System of Self-government. 641 
 
 by statute. The English central government had, until quite 
 recent times, no other organs for provincial, district, and local 
 government than these offices within the several communities. 
 For this reason they all have this characteristic, that being 
 free from every element of manorial jurisdiction or manorial 
 police control, they are regarded as pure official functions, 
 and are subject to the civil and criminal responsibility, 
 the right of control, the right of supervision, the disciplinary 
 control, and the right of dismissal, almost exactly correspond- 
 ing to the German notion of " Mittelbare Staatsbeamten." Of 
 this kind are the following offices : 
 
 1. The ancient office of sheriff, Vicecomes, which indeed has 
 lost its important ancient functions in the course of centuries, 
 but which still continues as a subordinate judicial office for 
 summonses, executions, and for carrying out the sentence of 
 the law, with the presidency in the still nominally existing 
 "county court," a right of precedence, and many remnants 
 of an old vice-royalty. The office is annually filled by one of 
 the great landowners of the county.* 
 
 2. The office of the lord-Ueutenant, the modern vice-royalty 
 of the county, is filled by one of the most aristocratic land- 
 owners in the county, practically for life, and with powers to 
 appoint the officers of militia and the commissioners of the. 
 militia department, who for the most part are also on the 
 staff of magistrates, just as the lord-lieutenant is, as a rule, 
 made first magistrate, custos rotulorum. 
 
 3. The office of justice of the peace, dependent upon the 
 royal commission of peace the life and soul of the district 
 administration, with almost unlimited functions for examining 
 criminal cases as police magistrates, as court of higher in- 
 stance for the parish, as district government board, and as 
 a criminal court with a jury in the quarter sessions. 
 
 4. The office of coroner, whose principal duties are those 
 of a commissioner of inquiry, wherever unusual deaths have 
 occurred, with a jury from the neighbourhood; anomalously 
 not appointed by the King, but elected by all freeholders in 
 the county. 
 
 * In the main the " civil court " of rally discharge the greatest part of the 
 the sheriff has now become an accessory detail business. Thus arises a pro- 
 department of the common law courts cedure not unlike that of the French 
 for summonses, executions, and sum- huissiers. In like manner the sheriff 
 moning the jury. For these current was responsible for the appointment of 
 official functions he appoints for the the officers of the county prison. The 
 period of his year of office as his office of sheriff signifies accordingly in 
 deputy an under-sheriff, whose law- the main a right of appointing to a 
 yer's office is the central bureau, from number of lower offices, which are thus 
 which are issued the various orders, withdrawn from the ministerial patron- 
 carried out by the bailiffs of hundreds, age. 
 but in whose stead bound bailiffs gene- 
 
 2 T
 
 642 Constitutional History of England. 
 
 The office of constable is subordinated to these magisterial 
 officers of self-government.** As subordinate officers, though 
 in a more independent position, are to be regarded the church- 
 wardens and overseers of the poor and of highways, who, in 
 their principal functions, belong to the department of economic 
 self-government. 
 
 This official system is supplemented by a powerful bond of 
 connection with the people, namely: 
 
 The immediate activity of the middle classes as a jury in 
 civil and criminal cases at the assizes and at the quarter 
 sessions ; 
 
 The grand jury in assizes and quarter sessions ; 
 
 The participation of the whole people in the duties of prose- 
 cuting and giving evidence, which liability is enforced by the 
 justices of the peace against the proper persons, by binding 
 over to appear and prosecute. 
 
 Finally, to these are added the activity in the assessment 
 commissions for the land tax, which, since the civil wars, 
 have, both in the persons comprising them," and in their 
 procedure, become more and more identified with the office 
 of justice of the peace. The same system is extended to the 
 assessed taxes, as well as to the income tax introduced by Pitt 
 at the close of the century. 
 
 The independence of the higher officers of self-government 
 and thus the independence of the local government itself 
 results not from the freedom of their decisions, and not from 
 an autonomy such as arose in Germany in former centuries 
 for provincial and district unions, as well as for towns and 
 villages. The independence of self-government is rather 
 entirely founded upon the position of the honorary office held 
 by the officer, which, by the fact of his tenure of it, grants him 
 a judicial independence, and which, in conjunction with the 
 administrative jurisdiction (Chap, xlviii.) developed in the 
 course of the eighteenth century, has had the indirect conse- 
 quence, that the honorary officer can, as a rule, be only made 
 responsible by judgment and law. 
 
 II. (Bconomic sdf=gobtrnment is primarily rooted in the 
 economic communion of the small country parishes and in 
 the spiritual needs of the ecclesiastical parish, which latter 
 
 ** The high constable is imme- creasing business of the magisterial 
 
 diately subordinated to the body of department they become more and 
 
 justices of the peace, as bailiff of the more executive officers for the decrees, 
 
 district, principally appointed for the ex- orders, and judgments of the several 
 
 ecution of such magisterial orders as are justices of the peace and sessions, in 
 
 addressed to several under-constables. which they regularly appear to make 
 
 The petty constables still retain their their presentments and reports. After 
 
 ancient functions as independent cus- the decay of the court leet they were 
 
 fades pacis, with their own right of regularly appointed by the justices of 
 
 arrest ; but in consequence of the in- the peace.
 
 The System of Self-government. 643 
 
 in England was pre-eminently the basis of a local parochial 
 constitution. But legislation in early times made the most 
 important and most valuable police functions touching 
 paupers and the regulations of highways and bridges, the 
 object of general regulations. This is influenced by the early 
 introduction of payments in money into the English local 
 government system. The economic self-government is ac- 
 cordingly rooted in the system of local taxes, which appear in 
 the eighteenth century in five separate forms 
 
 1. The Church rate, which has retained a more autonomic 
 form, and is voted by the vestry according to annual require- 
 ments ; on the model of this the later poor rate was created. 
 
 2. The poor rate, dating from the statute of Elizabeth, is 
 assessed by the overseers of the poor, according to the neces- 
 sity of the case. In the years 1748-1750, it attained an 
 average of 730,000 ; in the years 1783-1785, of 2,000,000 ; 
 and in 1801, amounted to 4,000,000. 
 
 3. The county rate, consolidated by 12 George II. c. 29, as 
 a district rate for the courts of justice and police, is raised 
 upon the scale of the poor rate, and amounts at the close of 
 the century to about 200,000. 
 
 4. The borough rate, for the municipal, judicial, and police 
 administration, is raised upon the same principles. 
 
 5. The highway rate, supplementary to labour in kind, for 
 the maintenance of the highways, now amounts to a consider- 
 able sum, certainly more than 500,000. 
 
 By hundreds of statutes and by the practice of the courts 
 the nature of these local rates has been established as real 
 taxes, all which are to be raised from the " visible profitable 
 property in the parish." According to a later report (1843), 
 there were not less than 180,000 parochial officers annually 
 employed in connection with their assessment. Their total, 
 however, at the close of the century exceeded the already 
 antiquated land tax by more than four times 'the amount ; 
 in the year 1803, it came to 5,348,000. These taxes are 
 further supplemented by the rates levied by the overseers of 
 the poor and highways, whose offices were instituted in the 
 period of the Tudors, and who, as taxing officers of the 
 parishes, take a somewhat more independent position. Their 
 chief function is to assess, raise, and apply the local taxes, 
 and to summon the vestry to pass the necessary resolutions. 
 
 Connected with these parochial offices and taxes are the 
 vestries as organs of economic self-government. The parish 
 meetings developed themselves first of all out of the church 
 rate, as these contributions were originally voluntary. But 
 the contributions towards provision for the poor, which had 
 their origin in equally voluntary subscriptions, were very
 
 644 Constitutional History of England. 
 
 soon turned by the Tudor legislation into legal obligations, 
 according to a legally fixed scale. There lacks accordingly for 
 these purposes a sufficient object for independent parochial 
 deliberations, and all the more so as the overseers of the poor 
 are not elected, but are appointed by the justices of the peace. 
 The case of the highway government is analogous. Since the 
 chief current business of these vestries is confined to assessing 
 the parish rates, the degeneration, which is seen in the 
 municipal corporations, is again met with here, and the place 
 of the parish meeting is more and more taken by permanent 
 committees. Both legislation and practice have developed 
 this formation of select vestries in the following directions : 
 
 Committees formed by custom, composed of quondam 
 churchwardens and overseers of the poor, supplying vacancies 
 by co-optation, were recognized by the practice of the courts 
 as " good customs," and as legitimate representatives of the 
 parish. 
 
 By local and private Acts of Parliament select vestries 
 became more and more frequently formed for individual 
 parishes on the same pattern, as by 2 George II. c. 10, for 
 Spitalfields, the select vestry was to consist of the parson, 
 the churchwardens, overseers of the poor, and such persons 
 as had once discharged such an office, or who had paid the 
 fine for non-performance. This example was followed by a 
 number of further local acts. 
 
 By special acts, on the re-building of churches, select 
 vestries were often appointed of the ecclesiastical parish, apart 
 from the old connection with the civil parish. By 10 Anne c. 
 
 II, especially, a commission for the building of fifty churches 
 in and about London, was empowered to form, with the 
 consent of the bishop, " a select vestry, from a suitable 
 number of wealthy parishioners in each parish," which should 
 afterwards complete its numbers by co-optation.* 
 
 The increase in the poor law burdens and the numerous 
 complaints brought against the administration, led, towards 
 the end of the century, to the famous Gilbert's Act (22 George 
 
 III. <c. 83), which establishes new principles of pauper man- 
 agement, in such parishes as are willing to accept the Act. 
 By this Act the raising of the rates was separated from the 
 current administration, and a system of paid guardians was 
 instituted. Several parishes might unite and form a union 
 of parishes for the management of the poor, and organize a 
 workhouse with a view to putting industrial occupation in 
 the place of pecuniary alms.** 
 
 * A survey of the conditions in a and other Vestries, 1830, No. 25, 215. 
 number of parishes in rather later ** Gilbert's Act is the pattern for 
 times is given by the Reports on Select the total poor law reform in the nine-
 
 The System of Self-government. 645 
 
 The centre of the economic self-government is thus to be 
 sought in the parochial offices, the discharge of which is 
 uniformly enforced by law. 
 
 III. tEfje necessarg cohesion betfoeen tfje magisterial anfc 
 WpnomiC self=aofjnnnunt is brought about by the fact that the 
 higher officers of the self-government form the court of higher 
 instance of the parishes, so far as this is necessary for secur- 
 ing the due execution of the administrative laws by the local 
 board. This hierarchy of office supplements the administra- 
 tive law, being bound up with the central departments of 
 State and the central courts. The local rating system 
 completes the financial administration in a rationally ordered 
 relation to the general State taxation. Both elements are 
 inseparably blended together, yet in such a manner, that in 
 the one the character of the magisterial department is espe- 
 cially prominent, and in the other the element of taxation 
 is the chief factor, and is only controlled by the magisterial 
 department. 
 
 The whole system manifestly converges in the police ad- 
 ministration. The police power has now become the imme- 
 diate political bond of European society as now constituted, 
 and is therefore in England as various and as comprehensive, 
 and pervades all the social relations of civil life in the same 
 way as on the Continent. In England there is wanting no 
 function of what we call the " Polizeistaat," yet with this 
 difference, that the police is not controlled and administered 
 by agents of the central government, but by honorary offices, 
 by men of property and education ; in the towns by unpaid 
 notables, who have a permanent office by virtue of royal 
 appointment. By their efficiency, these commissions of the 
 peace have thrust back from them the superintendence 
 residing formerly in the central government, have transferred 
 the old powers of the privy council to a reference to the law 
 courts as to questions involving legal principles, and have 
 referred all else to a "correspondence" between the lord 
 lieutenant and the Home Secretary. But the important 
 element, which this local government brings with it into 
 Parliament, is the intimate acquaintance with public business. 
 Quite three-fourths of the members of the Lower House were, 
 down to the first Keform Bill, practical administrative officials 
 in this sense ; not in the service of the party governments, 
 
 teenth century. On the other hand, payers of the county rate, that is, a 
 
 the representation of the ratepayers in representative body side by side with 
 
 the English borough administration the bench of magistrates, who are ap- 
 
 was first instituted in the system of pointed, not elected, has often been 
 
 elected representatives by the Muni- attempted by modern bills, but has not 
 
 cipal Act of 1835. The creation of yet become law. 
 an elective representation of the rate-
 
 646 Constitutional History of England. 
 
 but in a position of full independence, which even under party 
 changes has maintained the integrity of the administration, 
 and as a court of higher instance for economic self-govern- 
 ment has preserved an impartial character. 
 
 The weak side of the system is certainly to be found in the 
 executive organs and the ministerial officers of the local gov- 
 ernment, especially the constables, who even in the eighteenth 
 century were reduced to such a subordinate position, that it 
 was only too frequently necessary, by the imposition of fines, 
 to force men to take the office. Complaints against the 
 overseers of the poor and of highways, in consequence of their 
 reluctant, negligent, and mechanical method of discharging 
 their duties, are in this century very frequent. A certain 
 want of spontaneous activity is on this account also observable 
 in the administrative system of the municipalities.* But 
 in general the excessive number and the variety of the 
 smaller offices and the jury service kept alive even among 
 the enfranchised middle classes a knowledge of public business 
 and an interest in it. 
 
 Scanty as are the statistics of the eighteenth century, they 
 yet allow of an approximate estimate of figures. We find at 
 close of the last century in England and Wales 3800 active 
 justices of the peace (among them dukes of royal blood and 
 numerous lords) ; at least twice as many gentlemen as militia 
 officers, deputy-lieutenants, and sheriffs ; about 10,000 jurors 
 at the county assizes, and four times a year at the quarter 
 sessions. And then in about 14,000 parishes and townships, 
 changing once a year, at least one constable, an overseer of 
 highways, two churchwardens, from two to four guardians 
 of the poor, and other sub-offices and committees perhaps 
 about 100,000 persons, who were employed in assessing taxes 
 alone. The sum total of this activity forms the material 
 part of the internal government of the country ; all developed 
 out of the simple elements of the State as it existed in the 
 
 * In the urban, parishes the system parishes,, this separation was externally 
 of churchwardens and overseers of the noticeable, as every parish, for the 
 poor and of highways, as well as the purposes of poor law and highway ad- 
 rating indispensably connected there- ministration, did not form a mere 
 with, is similar to that in the country. quarter of the town* but an indepen- 
 But it must be remembered that this dent community with independent 
 new formation had taken its own inde- rights and duties. The citizens, too, 
 pendent course, without any connection for these purposes, consisted of persons 
 with the old municipal government, of different positions. The duties of 
 which, having sprung from the old the parish were performed, and a voice 
 court leet, served for the judicial and in the vestry was enjoyed by all parish- 
 police administration, for the office of ioners ; whilst a share in the municipal 
 justice of the peace and the formation government was only accorded at most 
 of the jury, as well as for the govern- to the old suitors of the court leet, but 
 ment of the old municipal property. generally only to the capital burgesses, 
 In towns which consisted of several or a similar small body.
 
 The System of Self-government. 647 
 
 Middle Ages. It is the " State " in those functions, which 
 transform the character of society, and accustom the people 
 not merely to run after money and pleasure, but to gain the 
 practical understanding of, and the right sense for, what is 
 necessary to the common weal.** 
 
 It is manifest to what an extent this personal activity in the 
 service of the commonwealth must influence a body of electors, 
 that in the eighteenth century was limited to 200,000 at most. 
 For this reason the county and parish unions became the 
 most important sub-structure of the House of Commons, to 
 which we shall again refer in Chapter L 
 
 CHAPTER XL VIII. 
 IV. ^&e Bfbelopmmt of tfce a&minfettattoe 
 
 SINCE the days of Magna Charta, a number of new adminis- 
 trative principles had been proclaimed in England, first in 
 the royal charters, and later, in assizes and in parliamentary 
 statutes, in the confidence that the principles thus laid down 
 would be adhered to. Similarly, in modern constitutional 
 charters, a number of " fundamental rights " are enumerated, 
 in confidence in their bond fide execution. But England early 
 experienced that, under a party government, these principles 
 are not followed, and centuries later the misgovernment of 
 the Stuarts showed that even a degenerate monarchy did not 
 bind itself to the most solemn legal sanctions, that the respon- 
 sibility of the ministers was not sufficient for this purpose, 
 but that a special legal protection was needed by the subject, 
 in order to guarantee the legal course of the innumerable 
 
 ** Self-government forms the exact which has produced upon the Continent 
 contrary of the ideas of the nineteenth an all-pervading separatism in pro- 
 century of a representation of "inter- vinces, districts, towns, and smaller 
 ests," which as such can attain to no communities, owing to the laxity and 
 unity in the State. The county, passiveness of the executive power. It 
 borough, and parochial unions are not is a mere playing with words to call 
 local parliaments. These intermediate every tendency towards self-help, " self- 
 processes between the State and the government." The English self-gov- 
 individual are not intended to foster ernment gives comparatively little 
 the interests of the individual, but to scope to the local and individual will, 
 accustom the individual to fulfil his but grants all the greater political 
 public duties. Self-government forms rights by uniting the equally organized 
 just as much a contrast to autonomy, communities to a whole in Parliament.
 
 648 Constitutional History of England. 
 
 magisterial acts, which day by day are encountered within the 
 sphere of individual rights. 
 
 The ordinary courts proved insufficient for this purpose ; 
 for the ordo judiciorum was limited from the beginning to 
 customary methods of action (legis. actiones) for the protection 
 of private rights, and for giving penal satisfaction. The 
 newly created legal provisions for the exercise of the rights 
 of political sovereignty, at no time came within the sphere of 
 the competence of judge and lawmen or of judge and jury. 
 
 The ordinary civil courts, indeed, serve indirectly to regulate 
 the limits of public law, so far as they render the official 
 answerable who, by exceeding his official powers, injures a 
 private individual, extra officium. Furthermore the claims of 
 the State upon the purse of its subjects are brought within 
 the legal pale by the- constitution of the Court of Exchequer 
 as a common law court. The actiones adversus fiscum are, in 
 England, only addressed to the Lord Chancellor by way of 
 petition, but afford, in the result, a sufficient protection. 
 
 Further, the ordinary courts of criminal law serve to define 
 and interpret the public law by establishing, in their decisions 
 as to high treason, sedition, assaults against peace officers, 
 and other delicts against the State, important precedents in 
 questions of administrative law, which no Government can 
 disregard. In still wider spheres they decide, by their penal 
 sentences on abuses of office, the competence of all organs 
 of the Government. Still more extensively, they secure, by 
 their judgments, the interpretation of the laws affecting the 
 police, customs, taxes, and royalties. In England this has 
 taken the form of a summary jurisdiction, by which one or two 
 justices of the peace administer justice over the wide field of 
 police excesses, frauds, and contraventions of the customs, 
 taxes, post, and stamp laws, by which means about the half of 
 the police and financial law is placed under a sufficient legal 
 control.* 
 
 This legal protection, however, is still insufficient for the 
 needs of a constitutional State, because of the inevitable 
 influence of the party system upon the Government. For 
 official excesses, malicious abuse of office, as well as other 
 matters within the jurisdiction of the ordinary courts, form 
 
 * This vocation of the common law tions of justice in the case of officials 
 
 courts has in England never been over- and as to actes administratifs which is 
 
 looked, and has adhered strictly to the peculiar to French law, is foreign to 
 
 national principles of our administra- English law, and in England could be 
 
 tion of justice, according to which the dispensed with, owing to the fact that 
 
 court has to try independently every the common law courts discharged also 
 
 major supposition of its decision, un- the functions of a supreme administra- 
 
 biassed by any previous decision of tive tribunal by their writs of manda- 
 
 any administrative body. The limita- mus, of certiorari, etc.
 
 The Development of the Administrative Jurisdiction. 649 
 
 only the minority of the excesses compared with the endless 
 chain of abuse and mischief that may result from the tam- 
 perings of a party Government with the police, financial, and 
 military powers of the State. England experienced this to 
 excess in the Middle Ages, but most of all under the Stuart 
 Government. The Stuart system of Government in this 
 sphere also brought about the full development of a reliable 
 legal control over all those parts of the administrative law 
 which were exposed to the abuse of party. The legal pro- 
 tection afforded against it, forms, on the Continent, the so- 
 called administrative jurisdiction that portion of the political 
 structure that may be least of all overlooked. 
 
 As formerly in Germany the first institutions of the kind 
 were attached to the Imperial Court of the Holy Eoman 
 Empire to enable it to interpret and carry out the polizei- 
 ordnungen of the realm ; in like manner the English control 
 has become developed in the police laws, which form the 
 centre and foundation of the system, to which are attached 
 the less important departments in analogous application. 
 But the administrative jurisdiction in police matters presup- 
 poses the distinction between two materially different kinds 
 of administrative laws, which may be distinguished under 
 the names of police penal laws, and police administrative 
 laws. 
 
 The first class, the police penal laws, is addressed to the 
 subjects, and comprises those parts of the police regulations 
 which can be enforced by simple and direct commands and 
 prohibitions. In this great province of police law, which is 
 based upon daily recurring uniform needs of civil order, 
 there was no necessity for new institutions. The summary 
 penal jurisdiction of the justices of the peace handles this 
 department in England in a short criminal procedure on 
 public prosecution, under the name of convictions. The system 
 of legal remedies by appeal, in this case, is in England 
 comparatively limited, and has no special peculiarities. 
 
 The other class, the police administrative laws, on the other 
 hand is addressed to the officials, and includes such needs 
 of the civil order as cannot be satisfied by simple commands 
 and prohibitions addressed to the subjects, but can be met 
 only by magisterial orders, decrees, and measures adapted 
 to the individual case, after previous examination of the cir- 
 cumstances, expressed in England by the term order. 
 
 The magisterial activity is thus divided into the two spheres 
 of convictions and orders. A supplementary administrative 
 jurisdiction was only needed for this latter department (for 
 the administrative laws in the narrower sense), that is to say, 
 for those laws and ordinances which direct the action of the
 
 G50 Constitutional History of England. 
 
 officials. The legal control of magisterial activity can, how- 
 ever, as experience teaches, be properly effected only within 
 the magisterial sphere itself. Even in the Norman adminis- 
 trative system a considerable number of administrative con- 
 trols had been created for this purpose, all of which reached 
 their normal height in the Tudor period (above, p. 582) in the 
 following manner : 
 
 By the disciplinary or corrective penal law, the officials 
 were forced to fulfil their duties as required by law, under 
 pain of dismissal or summary punishment by fine. 
 
 By virtue of the superintendence ex officio an illegal or 
 improper act of the authorities is annulled or altered by the 
 superior court or council. 
 
 A remedy of complaint finally arises through the double 
 position of the court or council exercising the supervision. 
 An illegal or improper administrative act is quite as often, if 
 not oftener, invalidated on the motion of the injured party as 
 it is officially. 
 
 In the Tudor epoch, in addition to the common law courts 
 as the higher court of the justidarii pacis> the Privy Council 
 was a general supervisory court of higher instance, in which 
 complaints might be lodged, and which subjected the adminis- 
 trative acts of the lower authorities to a revision, annulling 
 or altering them according to circumstances (vide p. 532). 
 The gross abuse of these royal powers under Charles I. led, 
 however, to the abolition of the Star Chamber (16 Charles 
 I. c. 10), whereby every jurisdiction of the King in council, 
 and every kind of legal decision, on complaint, petition, or 
 otherwise, is withdrawn from the Privy Council; so categorical 
 was the language of this Act, that no minister of the Crown 
 dare countersign a writ which decided a legal question in 
 dispute, without immediately exposing himself to impeach- 
 ment.. But, as the lodging of complaints before the King on 
 appeal was still constantly in use by injured parties, and as 
 such an institution was indispensable for redressing just 
 complaints in the administration of the country, it was 
 accordingly henceforward exclusively left to the justices of 
 the common law courts to issue the proper writs, in the name 
 of the King, in complaints on appeal.* The modern proce- 
 
 * The limitation and definition of any arbitrary way to determine or dispose 
 
 this administrative jurisdiction is de- of lands, goods, etc., to determine any 
 
 pendent upon an interpretation, which matter or thing in the said court by any 
 
 the courts of common law had to give judgment, sentence, order, or decree, etc., 
 
 to the complex stat. 16 Cbarles I. c. 10. with express reservation of a habeas 
 
 In the preamble, petitions or suggestions corpus in cases of arrest that is, all 
 
 made to the King or to his council, are sorts of complaints against material 
 
 spoken of, and further a prohibition, by decrees of the administration, which 
 
 English bill, petition, articles, libel, or immediately contain an encroachment
 
 The Development of the Administrative Jurisdiction. 651 
 
 dure was formed readily enough from the continual connec- 
 tion of the royal council with the common law courts, in 
 the person of the Chancellor, through whose officina the 
 writs also passed. Administrative complaints of the highest 
 instance were now assigned to the justiciarii regis to be tested 
 and decided. The highest court (generally the King's Bench) 
 became thus the supreme administrative court, not by virtue 
 of the old ordinary competence of the courts, but by virtue of 
 a newly created legal control for all magisterial and official 
 departments, which arose only in the later Middle Ages (as 
 in Germany). 
 
 In England, as in Germany, however, it was soon found that 
 a bench of judges, placed at a distance, can scarcely determine 
 such disputed points otherwise than according to the reports 
 made by the subordinate departments, and has accordingly 
 little effect in redressing the abuses of the police power. In 
 order to give effect to these legal complaints, there was needed 
 rather a further development of the magisterial system in the 
 provincial and local spheres, such as was formed in the 
 larger German provinces in the seventeenth century by the 
 permanent Verwaltungscollegien. 
 
 But in England no " separation of justice and administra- 
 tion " was necessary for this purpose. The office of justice of 
 
 on the property 01 the liberty of tha subsequent testing of a decretum of the 
 
 person. Herein the courts of common authorities from the point of view of 
 
 law have, however,, secured to them- its legality (revisio in jure). 
 selves an unusually wide discretion There is on that account no actio for 
 
 relative to the question of lodging the recognition of an individual right, 
 
 complaints and proving facts, as well but a querela for wrongful application 
 
 as with regard to the practical needs of the rules of administrative law ; the 
 
 of the administration, and furthermore, maxim tot sunt actiones quot sunt jura 
 
 when in doubt, have followed the is not applicable in this case, but it is 
 
 maxim: boni judicis est ampliare juris- an imploratio ojficii judicis, uniform in 
 
 dictionem. The English central courts all its parts, consisting in an appeal to 
 
 thus took up a position analogous to the higher authorities, 
 that taken in Germany by the Reich- Because^ therefore, the question ia 
 
 ehofrath and the Meicliskammergericht one of the subsequent testing of an act 
 
 as a supreme court of appeal in com- of official authority, the decisions of 
 
 plaints arising from imperial and pro- the superintending authorities are held 
 
 vincial police laws. Here,, as well as to be concurrent, and there does not 
 
 in England^ these questions of admin- arise a res judicata inter paries. For 
 
 istrative jurisdiction form their own this reason the ordinary proceedings 
 
 special department^ quite distinct from are not resorted to, but (as in the Ger- 
 
 the ordinary civil and criminal juris- man Keichsgerichte) a procedure by 
 
 diction, and display the following cha- writ of certiorari, writ of mandamus, 
 
 racteristics : and other supplementary writs. 
 
 The order (police-resolution, com- Finally, the legal complaint is limited, 
 
 mand, or other administrative decree) according as practical needs require, to 
 
 is the resolution of the authorities as more important cases (causes duriores vel 
 
 to their own legal competence, and ac- atrociores, as the practice of the German 
 
 cording to the nature of it the legal court called them), that is, upon the 
 
 steps to be taken vary. ground which is known by experience 
 
 The administrative complaint is ac- to be exposed to the abuse of party, 
 cordingly characterized as being the
 
 652 Constitutional History of England. 
 
 the peace was originally at once a police and a judicial office 
 (custos et justiciarius pacts). It had further developed itself 
 in this spirit. It now comprised and combined in itself a 
 power of preliminary examination, a police magistracy, and 
 a court of higher instance for the parochial government ; the 
 quarter sessions were at once a criminal court and a county 
 government board. There was no reason for altering this 
 system. For the justice of the peace stands near enough to 
 the local police to be able to examine into the necessity and 
 the reasons for any police act; he is placed in the midst 
 of civil life, that he may keep himself free from bureaucratic 
 partiality. He possesses, moreover, the full independence of 
 the judicial office by his property, and in like manner the 
 permanence of the judicial office, since the honorary official 
 cannot be dismissed on party considerations. The experiences 
 made on the latter point in the Stuart era were so dis- 
 couraging, that no later ministry in England ever again 
 attempted to dismiss the justices of the peace as a party 
 measure. Habitual activity and co-operation on the bench 
 with others in discharging the magisterial duties combines in 
 the honorary office the sense of honour and duty of the higher 
 class, and the same feelings of a professional justice, in one 
 single person, and thus produces the character of the judicial 
 office in its best form.** 
 
 In consequence of this permanent combination of a police 
 and judicial office, the administrative sphere in England 
 retained the name and character of a, jurisdiction. As in the 
 canon law the name jurisdiction was retained for such func- 
 tions of the higher administration, so here also was the form 
 and spirit of an administration of justice preserved. 
 
 All decrees of the police authorities, which affect the person 
 or the property of the party concerned (distinct from mere 
 formal decrees, precepts, warrants, etc., by which proceedings 
 are begun), are issued in the form of an order, i.e. a formally 
 framed written resolution, drawn up by a clerk, and in more 
 important cases signed by a second justice of the peace as well. 
 
 ** In Germany the development of bureaucracy in its proper and accus- 
 
 the magisterial system went baud in tomed departments. It does not apply 
 
 hand with the separation of justice and to the system of honorary offices, upon 
 
 administration, as the experience had which the English magisterial system 
 
 been made, that the customs, views, and has been for centuries built, and upon 
 
 procedure of the judicial office were not which it has arrived at full develop^ 
 
 suited to the administration, and vice ment. The reasons why, after an ex- 
 
 versd. In the place of the querela of perience of two centuries, the higher 
 
 the central courts now came in Prussia honorary offices cannot be dealt with 
 
 and elsewhere the Geheime Stoats- in respect of appointment and dismissal, 
 
 rath, the provincial Segierungscollegi en, to suit the changes of party, are given 
 
 Landrathe, etc. The necessity for the in Gneist, " Self-Government," pp. 485, 
 
 separation of justice and administra- 486. 
 tion only applies to the professional
 
 The Development of the Administrative Jurisdiction. 653 
 
 Against this order, from which in the Tudor and Stuart 
 epoch complaint could be made, as a matter of course, to the 
 Privy Council by removal of the action by writ of certiorari, 
 and only in exceptional cases by appeal to the bench of 
 justices of the peace, there was instituted in the eighteenth 
 century by numerous parliamentary statutes an appeal to the 
 general and quarter sessions of the justices of the peace. 
 The controlling jurisdiction of the central courts begins now 
 to be curtailed, so that the parties are generally prohibited 
 from applying to the central tribunals for a writ of certiorari. 
 
 According to the system of the eighteenth century, the 
 majority of orders made by justices of the peace, in less 
 important questions, are ipso jure final. 
 
 The more important cases are adjudicated upon by the 
 justices of the peace in their corporate capacity, in the greater 
 and petty sessions, and in the great majority of these cases 
 also this decision is final. 
 
 Only in a comparatively small number of disputed adminis- 
 trative acts (now less than one hundred annually) the quarter 
 sessions are appealed to, and in quite as few eases the common 
 law courts. The course of procedure of police administration 
 is as follows : 
 
 1. The ordinary administrative court of first instance is 
 formed by the single justices of the peace, who issue orders in 
 the police department, especially such as affect public safety, 
 order, public morals, health, the poor, highways, water, 
 field, forest, fishery, trade, building, and fire, and particu- 
 larly numerous orders against begging and vagrancy, as 
 well as regulations of wages, servants, apprentices, and day 
 labourers on the basis of Elizabeth's legislation. In many of 
 these cases an order of two justices of the peace is prescribed, 
 who then co-operate in the forms of a summary proceeding. 
 
 2. For more important police-resolutions of a court of first 
 instance the special sessions of the justices of the peace of a 
 hundred form a kind of court of intermediate instance, the 
 periodical formation of which falls as late as the eighteenth 
 century. The older laws had already provided for a meeting 
 of three or more justices of the peace for certain matters. 
 For the appointment of overseers of the poor even all the 
 justices of the peace of the hundred were to be summoned 
 together, etc. Occasion was thus given for a periodical meet- 
 ing of all the justices of the peace of the hundred, which could 
 also be practically utilized for the discharge of other adrnin- 
 strative business. The chief town in the hundred was 
 generally fixed upon as the place of meeting, a chairman and 
 a clerk to the justices were chosen, and the order of the pro- 
 ceedings was determined. Legislation since the eighteenth
 
 654 Constitutional History of England. 
 
 century has referred the appointment and confirmation of 
 parochial officers, highway disputes, the grant of wine, beer, 
 and spirit licences, and other matters requiring decision, to 
 such special sessions, so that these sub -districts form an 
 important intermediate stage of the administration. 
 
 3. The quarter sessions, which bring together all justices of 
 the peace at least four times a year, are primarily a court of 
 appeal from penal sentences ; but at the same time also a 
 district government board for the most important general 
 business of the district : the making of the county rate, the 
 appointment of treasurers of the county chest, and governors 
 of the county prison and house of correction, for the issue of 
 police regulations affecting the price of provisions, wages, etc. 
 (according to the system of the Middle Ages), settlement of 
 fees of the county officials, granting of licences for powder- 
 mills, etc., and the registration of dissenting chapels (1 William 
 and Mary, c. 18) a great mass of discretionary business 
 ordinarily known in practice as the county business. 
 
 With this county business is connected the hearing of 
 appeals from the orders of individual justices of the peace 
 and the petty sessions, whenever an appeal is expressly 
 allowed by the statutes, as was generally done In more 
 important questions in the administrative statutes of the 
 eighteenth century, with the further clause that an applica- 
 tion to the central courts by writ of certiorari should no 
 longer be allowed.*** 
 
 The appellate jurisdiction of the courts of common law 
 retires more and more into the background, as the decisions 
 falling within the sphere of the office of justice of the peace 
 become final, and at this period is exercised in hardly more 
 than one hundred cases annually, with the following distinc- 
 tions : 
 
 1. A writ of certiorari is the normal legal method, by which, 
 on motion, a police order that has been issued is sent to the 
 higher court for decision as to whether the administrative act 
 is in accordance with existing law, whether the court is com- 
 petent, and whether the administrative law has been rightly 
 interpreted. This constitutes, in fact, a kind of revisio in jure. 
 
 *** This interposition of the quarter convictions the regular court of appeal, 
 
 sessions as a court of appeal for the and the court of higher instance for 
 
 final decision of disputed cases is con- complaints from the orders below, 
 
 nected with the striving after power Even to-day the historically explainable 
 
 of the dominant class. Whilst the rule exists, that an appeal to the 
 
 quarter sessions only form a court of quarter sessions only lies where it is 
 
 higher instance in a few statutes of the expressly given by law, and that the 
 
 preceding period, since the Kestoration remedy to the courts of common law by 
 
 the statutes more and more frequently writ of certiorari is only taken away, 
 
 allow an appeal to the general sessions, where it is expressly taken away by 
 
 which are 'now in cases of summary law.
 
 The Development of the Administrative Jurisdiction. 655 
 
 This legal remedy exists as a rule for every oppressed party, 
 where it is not expressly taken away by law. But even where 
 no certiorari is reserved by law, it yet remains in force for 
 cases of absolute incompetence and absolute nullity of pro- 
 ceeding. It is also always employed, in the public interest, 
 and can be resorted to by the ministry for the time being, by 
 its attorney-general or other legal representative, (a) 
 
 2. Against coercive measures by imprisonment the uni- 
 versal legal remedy is the writ of habeas corpus, controlling 
 not merely the question of arrest in criminal proceedings, but 
 every administrative execution in police, finance, and other 
 cases. As arrest is, according to the English system, the 
 ordinary coercive measure for enforcing the regulations of the 
 administration, the habeas corpus in the central courts took 
 the form of an universal legal control of the administration 
 in the stage of execution, (b) 
 
 8. A general subsidiary legal measure is further a writ of 
 mandamus for enforcing the injunctions of administrative law 
 against towns, corporations, and all other authorities and 
 private persons, where the ordinary supervisory jurisdiction, 
 the system of disciplinary punishments and that of the 
 ordinary legal measures, proves insufficient. This supple- 
 mentary writ fills all gaps, which owing to the unequal 
 development of the police powers are to be found, especially 
 in the municipal governments, and replaces also the measures 
 
 (a) It was only since the time of the courts of common law shall remain open , 
 Restoration that this legal remedy wherever considerable interests of pro- 
 began to be withdrawn from private perty, fundamental rights, and prin- 
 parties. By 12 Charles II. c. 23, 24, ciples of public law are involved. The 
 the right to a certiorari was taken difficulties attending the certiorari led 
 away in certain taxation cases. By 3 in practice to a simpler mode : that 
 and 4 William and Mary, c. 12, all the lower tribunal sent up a special 
 highway disputes are to be settled in case (status causse) to the court of 
 the county, and no indictment and no common law for the decision of the 
 order shall be appealed from by cer- question of law. The simpler mode 
 tiorari. In like manner by 1 Anne, c. has become very popular in modern 
 
 18, disputed questions as to the repair legislation. 
 
 of bridges ; but where " the right and (6) It is the rule of common law that 
 
 the title to repair is called in question," where the law empowers a justice of 
 
 the matter may come by report to the the peace to compel a person to any 
 
 King's Bench (5 and 6 William and action, and the party there present 
 
 Mary, c. 11). In this way accordingly refuse, the justice of the peace may 
 
 the legislation | proceeds. The use of send him to gaol, until he obey (Haw- 
 
 this remedy was moreover rendered kins, ii. c. 16, sec. 2). To avoid the 
 
 difficult by the high bail required for hardship of this administrative com- 
 
 the action and other formalities (8 and pulsion, the English statutes insert in 
 
 9 William III. c. 33 ; 5 George II. o. many thousand clauses the penalty of 
 
 19, etc.). In later statutes the exclu- fines and distraint, whereby the matter 
 sion from a right to a certiorari became is decided in a summary manner. But 
 a standing clause. The exceptions, for imprisonment remains everywhere a 
 instance, in bastardy, excise, high- supplementary coercive measure, as 
 ways, poor, turnpike acts, etc., show us the habeas corpus remains as a legal 
 that the appellate jurisdiction of the control.
 
 656 Constitutional History of England. 
 
 of Zwangsetatisirung which occur in our administrative 
 systems in Germany, (c) 
 
 This system of administering justice in the police depart- 
 ment, forms, as before said, the centre of administrative 
 justice. The numerous experiences of the English party 
 struggles have shown those weak points where party influence 
 threatens administrative order, and where, accordingly, the 
 ordinary supervisory jurisdiction needs to be strengthened by 
 judicial elements. The administrative police laws have at all 
 times shown themselves as being most in need of legal protec- 
 tion, and among these again the police licensing system is 
 especially prominent, as being particularly exposed to the 
 abuse of party. The other departments of administrative 
 justice are analogous and supplementary. 
 
 In the province of the militia administration, the deputy- 
 lieutenants exercise in their special and general meetings an 
 administrative jurisdiction for disputed questions of military 
 duty, immunity from service, etc., perfectly akin to the 
 magisterial administration of justice. 
 
 In the province of the standing army, the office of justice of 
 the peace confines itself to the specific maintenance of the 
 Act relating to recruiting and a few subordinate points. 
 
 In the province of local taxation, the special and general 
 sessions of the justices of the peace are the ordinary tribunals 
 for the decision of disputed assessments. 
 
 In the province of the central taxation, for such taxes as are 
 to be raised by assessment in concreto, impartial decisions are 
 guaranteed by means of the commissions of assessment. 
 
 For the municipal government the writ of mandamus in 
 many ways acts as a supplementary legal control, particularly 
 applicable to illegal resolutions of the representative body. 
 
 In the ecclesiastical department, the legal control is given 
 by a recursus ab abusu before a specially appointed eccle- 
 siastical court (court of delegates), and partly also by writs of 
 the central courts.f 
 
 (c) There is no point in the English control of the administration, so far as 
 
 self-government at which the execu- is necessary to ward off the abuse of 
 
 tion of the administrative laws is not magisterial power by parliamentary 
 
 secured by corresponding measures of parties. For the daily action of the 
 
 enforcement. The other writs of pro- administration in England also, the 
 
 hibition, or quo warranto, etc., supple- supervisory jurisdiction and other ad- 
 
 ment the legal controls, especially in ministrative controls are regarded as 
 
 the province of ecclesiastical and finan- sufficient. No one has ever yet enter- 
 
 cial matters. tained the idea of a " system" of ad- 
 
 f As to the administrative jurisdic- ministrative jurisdiction. The table of 
 
 tion in ecclesiastical matters, cf. Gneist, competence for the sessions of the 
 
 " English Verwaltungsrecht," voL ii. justices of the peace alone (Keeming 
 
 chap. vii. Our German so-called Ver- and Cross, " Quarter Sessions," 2nd 
 
 waltungs-jurisdiction is purely the re- edit. 1876, pp. 354-476) comprises 
 
 suit of the need for strengthening the more than one hundred headings of
 
 The Development of the Administrative Jurisdiction. 657 
 
 In its general result the administrative jurisdiction makes 
 the enforcement of administrative laws, so far as in any point 
 there is danger of a misapplication of them for party, and 
 especially for election purposes, independent of the ministry in 
 power. The whole internal government of the country is, in 
 consequence, unaffected by changes of government and by that 
 party influence which the majorities for the time being in 
 Parliament could bring to bear upon the personnel and maxims 
 of the administration. The experience of many centuries as 
 to the disastrous consequences of the party-system for the 
 internal government completed this laborious structure of 
 legal controls in the eighteenth century, and thus gave the 
 English constitution a foundation upon which the conduct of 
 the highest State business could be left to changing cabinets, 
 without danger to the stability of the administration, to the 
 integrity of officials, and to the security of individual rights. 
 Thanks to this intermediate structure, England, peculiar in 
 this respect, has succeeded in preserving, in spite of all 
 changes of party government, the impartiality and integrity 
 of the central and local Government, a result which all 
 imitations of this Parliamentary constitution have, as a rule, 
 failed in attaining, owing to the want of the necessary sub- 
 structure. The English aristocracy has in no other point so 
 tenaciously asserted its vocation to- rule as in this ; the want 
 of a politically educated aristocracy on the Continent has in 
 no other point been felt so keenly as in the deficient under- 
 standing of these preliminary conditions of a constitutional 
 system. 
 
 appeals in administrative law, with arrangement has been made by Gneist, 
 
 innumerable variations both in times "Self-Government," 3rd edit. 1871, 
 
 and procedure. A table of legal reme- chap. v. sec. 7. Neither the English 
 
 dies in the central court, as supreme nor the French jurisdiction adminis- 
 
 adminifltrative court, a table of cases, trative has as yet gone beyond the 
 
 etc., would, perhaps, be ten times as method of an empiric limitation, as 
 
 large. An attempt at a systematic need requires.
 
 658 Constitutional History of England. 
 
 CHAPTER XLIX. 
 V. 2T!) Jpfnal OTonsolfoatiott of tftt titling ODIass. 
 
 As the influence of the dominant class had already become 
 established by the Eestoration, the imprudent attack of James 
 II. only conduced still further to strengthen its secure position, 
 which was based upon personal duties and taxation. The 
 magnates of the land had, since the days of Magna Charta, 
 repeatedly appeared as the guardians and guarantors of the 
 rights of the people ; yet never with such a complete and 
 entire success as in the " glorious revolution." As is the case 
 in every political revolution, this one also was followed by an 
 enhanced influence* of the dominant class of society. 
 
 With comparative moderation the gentry now make use of 
 their influence upon the legislation to secure to themselves 
 by means of the electoral qualification the control of the 
 Lower House. By 9 Anne, c. 5, the knight of the shire must 
 have 600 annual income, derived from freehold or copyhold, 
 the burgess in like manner 300 from real estate. The quali- 
 fication for the office of justice of the peace is fixed at a 
 higher amount, in order to secure to the landed interests the 
 influence of the police power in the county. For the justices, 
 who were counted by thousands, by 5 George II. c. 18, 18 
 George II. c. 20, an income of 100 from freehold or copyhold 
 is required, such freehold and copyhold being inherited or held 
 for life, or at least for a term of twenty-one years ; no special 
 qualification is needed for lords, their eldest sons and heirs, 
 or for the eldest sons and heirs of a person possessed of an 
 income of 600 derived from real estate. At this time arose 
 the custom among aristocratic families of giving, especially 
 to the eldest son, that education in schools and universities- 
 which through the office of justice of the peace leads onward 
 into Parliament. The justices of the peace thus qualified! 
 needed no longer the assistance of a body of jurists learned 
 in the law (quorum), and accordingly it becomes more and 
 more the rule to appoint all justices of the peace with the 
 higher qualification of the quorum, and thus to make the 
 appointment of jurists learned in the law superfluous in the 
 commissions of the peace. A qualification with numerous
 
 The Final Consolidation of the Ruling Class. 659 
 
 grades was finally laid down for the officers and commis- 
 sioners of the militia. All other limitations of the gentry and 
 their titles was left to the practice of the courts and to 
 custom. 
 
 Moderate as these privileges appear, when compared with 
 the class privileges of the Continent, yet they are all based 
 upon a well-considered system, calculated so as to concentrate 
 every element of political power in a class essentially homoge- 
 neous, and to close up every opening where a renewed attack 
 upon their position might be apprehended. The significance 
 of these institutions is, when they are viewed as a whole, so 
 thoroughly patent, that it cannot possibly be misunderstood. 
 
 1. The military power, above all, is secured to the ruling 
 class by the formation of the militia under commissioners of 
 200 income, and a corps of officers of from 50 to 1000 
 income from real estates, etc. (p. 632). By its side a stand' 
 ing army is in an entirely precarious position by being depen- 
 dent on the annual vote of supplies and the power of command 
 in the Lower House ; it is led by officers whose patents are, 
 at the purchase price of 450 to 6000, from ensign up to 
 lieutenant-colonel, only attainable by the sons of the gentry, 
 a plan which also furnishes an honourable means of providing 
 for younger sons. (1) 
 
 2. The qualification of 100 income from real estate as 
 the necessary condition of holding office as a justice of the 
 peace, further strengthened by a tacit renunciation on the 
 part of the justices of all salaries and pay whatever, leads to 
 a firm establishment of the civil powers of the ruling class. 
 In order to estimate aright the significance of this privilege, 
 it is necessary to call to mind the great extent of these powers > 
 which control the whole internal life of the county and the 
 government of the parishes. The magisterial gentry now 
 thrust out the professional lawyers as such from the com- 
 missions of the peace, and even give the presidentship in the 
 criminal and administrative business of the quarter sessions 
 to a chairman chosen from among themselves. To this must 
 
 (1) The mistrust of the ruling class be explained why in the regulations of 
 was at this point naturally increased 1763 the purchase system of officers 
 by the growth of the standing army. patents appears already fully de- 
 Its strength of ] 6,000 men under veloped. From time to time we find 
 George I., considerably increased dur- again the militia system strengthened, 
 ing the seven years' war and the at all events sufficiently so for the 
 American war. After the close of the maintenance of internal order and the 
 latter, 40,000 men were kept on foot preservation of a military spirit in the 
 in England and Ireland, who in con- upper classes, among whom personal 
 sequence of the wars with France, courage and good equipment could in 
 again became a considerable army. some degree compensate for the de- 
 Beside these the militia was at times ficiencies of military training and dis- 
 iii a very decayed state, and thus may cipline.
 
 660 Constitutional History of England. 
 
 be added the political influence of the grand jury, which, at 
 the assizes, is regularly composed of justices of the peace and 
 analogous elements, as well as the office of sheriff, which, by 
 reason of the heavy honorary expenses connected with it, is 
 only open to the gentry. (2) 
 
 8. This influential position is still further consolidated by 
 the system of entails which, though existing in former cen- 
 turies, only in the eighteenth century became apparent in 
 its immense political and economic importance. The social 
 tendency of the landed interests to secure to themselves the 
 property in the land by means of long trusts, and to exclude 
 others from the right of acquisition, did not in England 
 attain the fullest development, as the Crown adhered in 
 principle to the alienability of the knights' fees (cf. above, 
 p. 427). The inventive ingenuity of lawyers, however, found 
 the way to construct entails, by which the inalienability of 
 the land is settled in favour of an heir, and can, by constant 
 renewal of the arrangement, be continued from generation to 
 generation. This preference, not in itself very extravagant, 
 kept back in England the natural development of tenure. 
 In the eighteenth century, by commerce and colonial pos- 
 sessions, an immense accumulation of capital had arisen, 
 which the gentry, in order to gain political influence, invested 
 for the most part in the purchase of land at home, for this 
 purpose buying up the medium-sized and small estates. It 
 was this combination that gave rise to the present accumu- 
 lation of real estates, which unites four-fifths of the profitable 
 land in the hands of seven thousand of the nobility and 
 landed gentry. (3) 
 
 4. The gentry class thus built up from below, accordingly 
 reserves to itself the exclusive composition of the Lower House 
 by persons chosen from among it by virtue of a qualification 
 of 600 annual income from land for the county members, 
 and 300 for the burgesses. Still more effectually do the 
 heavy expenses of every parliamentary election, and the 
 system of unpaid representatives, which, since the seven- 
 teenth century, owing to their tacit refusal to accept any 
 remuneration, has become a point of honour and a rule, serve 
 
 (2) The qualification of 100 in- (3) A clear survey of the difficult 
 
 come from real estate does not, indeed, system of entails is given for German 
 
 exclude civic dignities who own land readers by Thomas Solly, " Grundsatze 
 
 clergy, etc., and is not binding upon des Englischen Eechts iiber Grund- 
 
 the municipal commissions of the besitz und Erbfolge," Berlin, 1853, 
 
 peace ; but for the great county union and also by Von Ompteda in the 
 
 it gives the landed gentry a decided "Preuss. Jahrbucher," 1880, vol. 
 
 ascendancy and a firm political organi- xlvi. p. 401 seq., together with a sta- 
 
 zation, which, owing to the concur- tistical survey of results arrived at 
 
 rent powers of the commissions of the by Arthur Arnold (" Free Land," 
 
 peace, also pervades municipal life. 1880), viz. : 7000 landowners, as posses-
 
 The Final Consolidation of the Ruling Class. 661 
 
 the same end, and thus render the entrance into the most 
 powerful body in the realm only accessible to the richer and 
 richest members of the gentry. (4) 
 
 5. Finally, this position becomes consolidated by a second 
 representation of the ruling class in their most aristocratic 
 heads by the hereditary peerage. If in the former century 
 the peerage had become but a powerful part of the gentry, 
 there were now newly created by patent in the century from 
 1700-1800 no fewer than 34 dukes, 29 marquises, 109 earls, 
 85 viscounts, and 248 barons. The importance of this lies 
 in the permanent influence secured to the landed interests in 
 the legislature ; all that is feudal in it is only name and 
 legal fiction, calculated to secure to the first families of the 
 ruling class an hereditary seat in the council of the realm, 
 and to regulate the manner of inheritance. The peerage thus 
 formed is nothing but a second honorary representation of 
 the gentry, independent of varying election influences, from 
 whose ranks it proceeds, and in whose ranks the whole family 
 remains in the background, except the peer himself. The 
 creation of 268 peers and 528 baronets under George III. 
 denotes the climax of this position. (5) 
 
 eors of 10,900 estates of more than 
 1000 acres, are in possession of more 
 than four-fifths of the profitable soil 
 in the United Kingdom; the peers 
 alone are in possession of almost one- 
 fourth ; in Scotland five peers are in 
 possession of quite one-quarter of the 
 soil ; one-half of England is in the pos- 
 session of 150 persons, one-half of Scot- 
 land in the possession of 75, one-half 
 of Ireland in that of 35 ; the remain- 
 ing fifth of the soil is divided among 
 little more than 100,000 possessors of 
 more than one acre. 
 
 (4) Here, too, the system is adhered 
 to of attaching aristocratic privileges 
 to burdensome performances, so as in a 
 certain measure to buy them. It is 
 this tendency which, since the Restora- 
 tion, made a renunciation of salary 
 a point of honour. The same ten- 
 dency with deliberate prudence left 
 untouched the gross abuses of parlia- 
 mentary elections, which, even at the 
 present time, make every fresh elec- 
 tion a pecuniary sacrifice amounting to 
 several thousands of pounds. 
 
 (5) The manner in which the peer- 
 age could still be regarded as a con- 
 tinuation of the nubility of the Middle 
 Ages, is characteristic of the social 
 conception of all pedigrees. At the 
 time of the Reform Bill, among 249 
 lords no fewer than 188 asserted them- 
 
 selves to be of the mediaeval nobility, 
 whilst a somewhat strict investigation 
 by Sir Harris Nicolas proved, that of 
 the English peerage as existing in 1830, 
 only one-third were incontestably de- 
 scended from the knighthood of Eliza- 
 beth's reign, and among these only a 
 small fraction could lay claim to baro- 
 nial descent. The 9458 families who, 
 according to a parliamentary investi- 
 gation in 1798, were entitled to bear 
 family arms, certainly contain numer- 
 ous elements which correspond to the 
 lower nobility of the Continent, and 
 who in their time contrived also on 
 the Continent to prove their " tourna- 
 ment and chapter right." But among 
 them the majority are families of the 
 modern gentry, who have registered 
 their arms according to the prescribed 
 rules. Special knights-corporations 
 and guilds, autonomic rights of family, 
 property, and inheritance, by which 
 in Germany the gulf between the 
 privileges and the political duties of 
 the upper classes became with each 
 successive century more extended, have 
 certainly never existed in England. 
 The popularity and the political influ- 
 ence of the great families kept this 
 kind of self-deception far removed 
 from the heads of society, and thus 
 moderated the pretensions of the lesser 
 gentry. Every one knew, for example,
 
 G62 Constitutional History of England. 
 
 Side by side with this great increase in the influential 
 position of the ruling class there can be unmistakably discerned 
 a relative diminution in the political and economic importance 
 of the English middle classes, which, in the course of the 
 eighteenth century, makes itself more and more felt. The 
 influence of these classes in elections is, it is true, still of 
 importance for the conditions under which the ruling class 
 exercises its dominion over the executive, and for the spirit 
 in which this dominion is employed, but yet it is only a 
 moderating element. 
 
 Throughout the whole period, the enfranchised middle class 
 pre-eminently contained within it the elements which perform 
 the jury-service and fill the offices of the hundred. It is still 
 limited in the counties by the medieval qualification for a 
 juror (forty shillings income from freehold), and in the 
 boroughs by active participation in the corporation. But 
 these legal conditions have in individual cases long ceased to 
 be exact. The qualification for a juror is at the commencement 
 of this period increased to 10, but the franchise of the small 
 freeholders is retained. Conversely, copyholders of 10 have 
 now been admitted to the jury and the local offices, without 
 ^obtaining a right of suffrage. By the buying up of the still 
 existing freeholds and by the withdrawal of the squires, occupied 
 with political life, from personally farming their lands, such 
 .an enormous increase in the leasehold interests arose, that 
 the whole of the middle class in the country in its dependence 
 upon the landlords was ordinarily described as " farmers.'* 
 Hand in hand with this economic dependence, we perceive an 
 ever-increasing decay of the spontaneous activity of the middle 
 classes in parish and corporation, an increasing formation 
 of select bodies and select vestries, and a dangerous indulgence 
 of legislation and practice, which ever more extensively kept 
 excusing the more intelligent trades and professions from 
 serving on juries and discharging the duties of the parochial 
 offices. The middle classes, as a whole, lacked a cohesion in 
 organized bodies, such as the ruling class had in its quarter 
 sessions, its grand juries, and corporations. The number of 
 electors was in the year 1768 given only as 160,000 (Massey, 
 i. 338), and in the course of the century probably did not 
 exceed an average of 200,000. But the weight of numbers 
 was more than counterbalanced by the predominating in- 
 
 that the male line of the proud old Smithson, son of an apothecary. The 
 Percies has become extinct no less real genealogical tree of the peerage 
 than three times, and that the family is formed by the hereditary duties 
 name has passed on to the husband performed by the owners of the landed 
 of the heiress-daughters ; and that the estates for the sake of the common- 
 Percy, Duke of Northumberland, ere- wealth, 
 ated under George II., was Sir Hugh
 
 The Final Consolidation of the Ruling Class. 6f3 
 
 fiuence of the ruling class. The right of suffrage of the 
 middle classes is of importance as a protection against the 
 better legal education and the social exclusiveness of the ruling 
 class ; that its value was well known is shown in the long 
 conflict touching the election of the notorious Wilkes. But 
 all political initiative and party formation has its seat in the 
 ruling class. The pocket constituencies and the dominant 
 influence of the gentry in all local government make the 
 middle classes a kind of retinue of the upper classes, whose 
 vote is only of importance where there is an open contest 
 between the parties in the State, but not as against the strong 
 common interests of the upper class. 
 
 In a still greater degree is this of course true of the whole 
 of the rest of the people infra classem, of the smallest free- 
 holders who were excluded from the franchise, of the whole 
 class of copyholders and of the non-propertied working classes. 
 The entirely irregular form of municipal parliamentary repre- 
 sentation had, however, this result, that in a small number 
 of places the old right to a vote of those paying scot and 
 bearing lot, still continued, which brought about purely 
 democratic election-meetings, even down to the labouring 
 classes. In this direction the ruling class permitted every 
 anomaly to remain intact, as well as various kinds of popular 
 turbulence at elections, so as to prevent the idea becoming 
 prevalent among the lower strata of the people that their class 
 was excluded from representation. The tumultuous move- 
 ments of 1780, and the proposals of the Whig opposition to 
 introduce universal suffrage, were forerunners of the reform 
 bill which was still half a century distant. They were hasty, 
 and as yet quite immature proposals, and therefore these 
 movements again disappeared for a whole generation.* 
 
 * The position of the ruling class with money and personal services, with 
 may be regarded down to the close which the lower class neither wished 
 of the century as a perfectly firm and nor were able to compete ; whilst, on 
 secure one. The bases of the aristocracy the other hand, in every material point 
 were and remained unassailable, so in which the most jealous social views 
 long as it in reality represented an could demand a formal equality of 
 aristodoulie, which claimed a precedence rank, such equality was actually re- 
 in public duties, and which bought cognized. It was only an essential 
 every single one of its privileges (in revolution in labour and wealth which 
 the militia as on the commission of the in the nineteenth century was able 
 peace, in the influential offices of the successfully to attack the exclusive 
 military and civil administration, in dominion of this aristocracy, 
 the Upper and in the Lower House)
 
 664 Constitutional History of England. 
 
 CHAPTER L. 
 YI. tE&c formation of tfjc Hofocr $^ousc. 
 
 THE House of Commons, as the incorporation of the comnu- 
 nitates bound together by self-government (Chapter xlvii.)., 
 consists in its now definite form of 
 
 80 members for the 40 counties of England, 
 
 12 12 Wales, 
 
 50 25 cities, 
 
 839 , 172 boroughs, 
 
 1 16 8 seaports, 
 
 4 . 2 universities, 
 
 45 Scotland, since 1706, 
 
 100 Ireland, since 1801. 
 
 In a process of formation extending over four hundred years 
 these elective bodies have gained that internal cohesion which 
 has made the English Lower House the most powerful body 
 in the civilized world, and has enabled it, in spite of the 
 apparently capricious changes of parties, to carry on the 
 government of a world-wide empire with success. If the out- 
 ward extent of these constituencies be compared, from the 
 great county of York down to a decayed borough, their 
 descending scale is almost like that of the old German 
 imperial estates from the Electorate of Saxony down to the 
 free imperial cities of Aalen or Bopfingen. But if the im- 
 portance which the whole mass of these corpora attained in 
 the British realm be compared with that of those in the 
 old German empire, we shall find ourselves forced to acknow- 
 ledge that the strength and importance of a national repre- 
 sentation is entirely dependent upon the internal cohesion 
 which holds together such bodies among themselves and unites 
 them with the political commonwealth. Were it merely a 
 question of combining as great a number of intelligent and 
 able men as possible in constituencies as nearly equal as 
 possible, then many imitations of the English Parliament 
 would probably achieve quite as much as the original insti- 
 tution. But that cohesion is dependent in England neither 
 upon the democratic principle of local election (urban district 
 and provincial representations), nor upon the feudal principle
 
 The Formation of the Lower House. 605 
 
 of hereditary estates (district and provincial estates), but upon 
 the opposite of both, upon the system of local taxation and 
 self-government, which again here must be set forth as being 
 the primary basis of the English Parliament. 
 
 I. The system of local taxes in the form of a county, 
 hundred, or tithing rale had already arisen in the days of the 
 Plantagenets. Somewhat later, the church rate was added 
 to these for the parishioners. With Tudor legislation the 
 relief of the poor, the highway burden, and the duties arising 
 from these were assigned to the parish, upon the broad basis 
 of the tax-paying " Christian family." The amount of these 
 local burdens increased down to the close of the eighteenth 
 century to an annual sum of more than 5,000,000, more than 
 that of the direct taxes, and at times equal to half the whole 
 revenue of the State. This being the case, the legislature 
 could not shut its eyes to the fact that State taxation and 
 local rates could no longer continue independently of each 
 other, that, in consequence, in the modern State there was 
 no room for an autonomy of the townships and districts in 
 taxation, and that the whole of the needs of the common- 
 wealth and the whole of legal taxation must be regulated and 
 arranged upon one uniform and systematic plan. In this 
 arrangement the legislature strictly reserved two of the three 
 fundamental systems of taxation to itself the income tax, as 
 well as the customs and excise. These State taxes were, by 
 reason of the rapidly increasing financial needs of the British 
 empire, much increased in the eighteenth century, and in the 
 course of the great wars with France were extended in a 
 manner hitherto unheard of. On the other hand, the State 
 abandoned the old land tax system, in order to gain the full 
 force and capacity of expansion of direct taxation for all 
 purposes of a village, town, hundred, district, and provincial 
 organization,* according to the following points of view : 
 
 That the basis of the household of a community, can only 
 be a permanent and uniform one, independent of the annual 
 changes in persons and property incidental to a shifting 
 population, with which such a small household could not exist ; 
 
 That on that account the burdens of the local unions should 
 be distributed among all the appurtenances of such a com- 
 munity (fields, buildings, industrial works, mines, etc.), ac- 
 
 * Hand in hand with the temporal poral unity. When in later times the 
 
 local taxation system, in the eighteenth church rate, owing to the refusal of 
 
 century the church rate was also em- the dissenting parishioners, became a 
 
 ployed, so long as it was possible, in subject of dispute and began to fall 
 
 maintaining the sole ascendancy of the into decay, the taxation system of the 
 
 national Church in perfect strictness, temporal village union was adhered 
 
 to force the dissenters to it, and to up- to with the greater tenacity, 
 hold the parish as a spiritual and tern-
 
 666 Constitutional History of England. 
 
 cording to the capabilities of the object and not according 
 to the income of the subjec.t ; 
 
 That to maintain the official staff of such a community the 
 local rate should be raised from the person of the resident 
 occupier, and be annually re-assessed ; 
 
 That on that account, and in order to effect an equal 
 distribution of local burdens among the greater and smaller 
 unions, the poor rate of Elizabeth should be uniformly 
 enforced for each and all the burdens of the village, hundred, 
 and county.** 
 
 These were the points of view, according to which, from 
 decade to decade, from generation to generation, and from 
 century to century, the Legislation, the practice of the courts, 
 and the administration fixed the local taxes, and thus 
 maintained the material bond, which makes the communi~ 
 tates suitable elective bodies for the Lower House. The 
 old vicenetum remains throughout bound together in the 
 consciousness that all the pecuniary and other perform- 
 ances that were necessary to maintain civil order, poor- 
 relief, communications with neighbouring villages, and the 
 numerous humanitarian calls upon the parochial union 
 everything, in short, that in the lower strata makes a State 
 of society should be permanently and uniformly raised from 
 the appurtenances of the community, which are as much the 
 essential basis of the community as its territory is the basis of 
 the State. The more English society was in danger of being 
 dissolved, from its lowest foundations and elements upwards, 
 by changes of abode, freedom of trade, cosmopolitan ideas of 
 commerce, the roving spirit of the rural labouring popula- 
 tion, and the increasing splitting up of the villages into 
 various churches and sects, the more tenaciously did the 
 legislation instinctively cling to the system of real taxation, 
 as being the sole bond capable, where society has become 
 revolutionized, of maintaining the cohesion of the constituen- 
 cies. And in this system men were not led astray by any 
 class interest of society. In particular the English great 
 landowners had to bear the excessive local burden resulting 
 from it (sometimes a local burden of 25, 40, and in certain 
 cases even 100 per cent, of the annual value), which was in 
 
 ** The question, whether the rates custom. In England the raising of local 
 were to be raised from the person of taxes from the occupier was rendered 
 the occupier or from that of the owner, necessary by the accumulation of great 
 whether they were accordingly to be landed possessions. Where hundreds 
 raised in the towns as house tax or as of houses and innumerable leases 
 rent tax, or should be divided between belonged to a single non-resident land- 
 owner and occupier in certain proper- lord it was impossible to do otherwise 
 tions, appears to be a relative question than raise the real taxes and rates from 
 dependent upon the nature of the the occupier, 
 property and economic conditions and
 
 The Formation of the Lower House. 
 
 667 
 
 a comparatively short time satisfactorily equalized by the 
 sharing of the excessive burdens with greater communities, 
 and by the annually increasing portion which dwelling-houses 
 and manufactories had to bear of the local rates.*** 
 
 II. The second personal bond of union of the constituencies 
 is formed by magisterial self-government, that is, the exercise 
 of the higher State functions in the district, hundred, and 
 village unions by honorary offices discharged by the upper 
 classes service on juries and the smaller offices by the 
 middle classes supplemented as need required, by certain 
 professional officers learned in the law and by numerous paid 
 clerks and under officials. This system of internal govern- 
 
 *** The experiments in taxation 
 (p. 390 seq.~) which were made in favour 
 of the landed interest down to the 
 close of the Middle Ages ceased with 
 the period of the Tudors. Their place 
 was taken, under the name of sub- 
 sidies, by (1) a uniform taxation of 
 objects (land tax); (2) a uniform taxa- 
 tion of subjects (property and income 
 tax, tithes and fifteenths) ; (3) a uni- 
 form tariff of customs, duties, and 
 excise. Under Cromwell new assess- 
 ments were made, which were retained 
 by the Restoration. In the eighteenth 
 century the old system of voting 
 periodical subsidies passed into that 
 of the tax laws, and the periodical 
 itaxes in vogue up to that time, which 
 the State needed year by year, were 
 now also raised by tax laws from year 
 to year without any special vote of 
 Parliament, new taxes being added to 
 them from time to time by law. In 
 this new stage of tax legislation the 
 system of customs and excise was cer- 
 tainly excessively extended in the 
 interest of the ruling class. A new 
 and considerable income tax (in the 
 
 Elace of the tithes and fifteenths which 
 ad become merged in the land tax) 
 was first imposed as a temporary tax 
 during the great wars with France 
 (1798-1815). These, like the indirect 
 taxes, were entirely refused the com- 
 munities. On the other hand, parlia- 
 mentary legislation closed the book of 
 the State land tax, .made no more land 
 registrations since 1692, declared the 
 land tax which had fallen into decay 
 to be redeemable (1798), so that it 
 only still continues in a residuum of 
 about 1,050,000. The room thus 
 made had now become free for the local 
 rates, which in the year 1803 had 
 increased to 5,348,000, and in the 
 course of the present century had at- 
 
 tained the double and the treble of this 
 sum and are still increasing. Soon 
 after the Reform Bill, the intolerable 
 overburdening, which had resulted 
 from the smallness of the townships 
 parcelled out for poor and highway 
 rates, called forth an agitation for the 
 "disburdening of the land," which 
 was, however, pacified by the distri- 
 bution of the burdens among greater 
 unions, so that in recent times the 
 heavy burden of maintaining the 
 village schools has again fallen upon 
 the local rates. England has been 
 spared a class conflict on the question 
 whether the land does not pay too 
 much and personal property too little. 
 I seldom find in the pages of .the 
 reports on the subject any reference at 
 all to such a tax-grinding policy, but 
 only the natural reflection, that ia 
 their freedom of acquisition the 
 wealthy classes may, as they think 
 proper, be either landowners or capi- 
 talists. The well-founded complaints 
 are only based upon this, that by the 
 dwarfish formation of the poor law 
 unions in those days an intolerable 
 burdening of certain great estates and 
 townships resulted. A critically exe- 
 cuted survey of these conditions of 
 taxation is given by the former 
 President of the Poor Law Board, 
 later First Lord of the Admiralty, 
 Mr. G. Goschen, in his Reports and 
 Speeches on Local Taxation (1875). 
 The annual value of the land was 
 in 1868 taken at equal to 143,872,000 
 (for parochial taxation assessed only 
 at 100,612,000). The total of local 
 taxation burdening it will soon have 
 reached the amount of 20,000,000, 
 whilst in 1803 the whole of the annual 
 value of the land was estimated at 
 34,864,000 (cf. Gneist, " Self-Govern- 
 ment," 1871, sees. 25, 152, 160).
 
 Ofi8 Constitutional History of England. 
 
 ment of the country is not due to any special predilection, 
 peculiar to English life, for a dilettante government by " lay- 
 men," but to the experience that the higher police duties are 
 actually well administered by socially independent men of 
 general education, and according to a freer and surer view 
 of general life, than by an exclusive bureaucracy, and that 
 any deficiency of experience in the routine of duties can be 
 supplied by the numerous clerks and lower attornies, of whom 
 there are so many in England, and in practise can be more 
 easily made good than can deficiencies in personal character 
 and qualities. The equally important significance of the 
 honorary offices is that, in spite of the principle of the dis- 
 missibility of all administrative officers, it secures to the 
 official the full independence of the judicial office ; only by 
 the insertion of these elements of judicial independence could 
 that system of administrative justice be formed, which sup- 
 ports the parliamentary government, whilst the prefectorial 
 councillors of a professional bureaucracy cannot hold their 
 ground when confronted with changes of government and the 
 agitation of influential parties. More important than all else 
 is, however, the social side ; namely, that this spontaneous 
 activity binds together the disunited strata of society, in that 
 which is common to them all, viz. the administration of 
 justice, the maintenance of civil order, and provision for the 
 poor. Whilst the life of society tends rather to separate than 
 to bind together men in narrower and wider circles, in the 
 interests of possession, acquisition and labour, in creeds and 
 in professions, it is of incalculable value, when the same men 
 meet together in fulfilling common civil and humanitarian 
 duties, and learn to know and to esteem one another in their 
 activity for the common good. This is the side which gives 
 to personal activity within the community a value that cannot 
 be replaced by any other institution in the world. And if 
 in this activity the lower strata of society learn to know the 
 upper classes not only as men who are in the enjoyment of 
 greater gifts of fortune and wealth, but also as men who do more 
 for the good of mankind, who by the sense of honour, inde- 
 pendence of thought, and character that honestly acquired pro- 
 perty give to men, administer the magisterial office with justice 
 and with honour, there results a conciliatory element in view 
 of the disparity of classes, which has in England been created 
 and maintained by the permanent institutions of the country. (1) 
 
 (1) This personal importance of self- sidered a representation of tax-payers, 
 
 government has been especially en- and has left the magisterial adminis- 
 
 larged upon in my "Self-Government" tration exclusively to the prefects of 
 
 (3rd edit., 1871). This side has been the departments, districts, and town- 
 
 altogether missed in the French muni- ships ; it has, however, been perfectly 
 
 cipal system, which has only con- recognized in the Prussian Stadte-ord-
 
 The Formation of the Lower House. 669 
 
 III. But the communitas attains its full importance for the 
 parliamentary constitution by the permanent organic blending 
 of self-government with local taxation, by the personal union 
 of the magisterial and economic self-government, which is 
 also peculiar to the municipal system of Germany. This 
 personal union first creates for the social contrasts of pro- 
 perty, business, labour, and creed, a counter organism, quite 
 as durable and effectual, which again binds them together, 
 changing social prejudice into political judgment, and pro- 
 ducing that sense of right which enables a nation to govern 
 itself. Above all, it is the management of the whole by the 
 honorary office of the justices of the peace, which preserves a 
 sense of civil order and public spirit. The constant exercise 
 of civil duties educates and accustoms the mind of society in 
 these elective bodies, and engenders, in those that take part 
 in them, the consciousness of a due influence in their sphere, 
 by continually reminding them that they have to exercise 
 this influence by virtue of a calling they have received from 
 the State, and only according to a law that binds them, and 
 not by virtue of their birth or property. The social life of 
 the county and the villages is pervaded and enriched by a 
 right understanding for the State, by a spirit, a faithfulness 
 and a public spirit, which absolutism even in its best shape 
 can only succeed in making a privilege of the bureaucracy. 
 
 It is only the transformation and moderation which class 
 contrasts receive from this local self-government, that pro- 
 duces those moderate political parties, which are capable of 
 conducting a parliamentary government after the English 
 fashion. The elections of such a body present a "diagonal " 
 of common aspirations, in which the extreme prejudices and 
 tendencies of the social classes have been already overcome. 
 Thence proceed first of all those fundamental tendencies, which 
 modern times are wont to designate by the terms liberal and 
 conservative, in contrast to the unmitigated purely social 
 extreme parties. From out the daily life of these neigh- 
 bouring, cohesive, equally responsible self-governing com- 
 munities, there arises a political consciousness, which unites 
 the natural diversity of opinions and aspirations to a common 
 will. The majority of the elective communitates thus receive 
 an essentially characteristic physiognomy, an individual cha- 
 racter. This joint and common will of a corporate body 
 cannot be otherwise expressed than by a resolution of the 
 majority, as against which a representation of minorities is 
 altogether absurd.* 
 
 nung of 1808, and in its imitations, ordnung," Berlin, 1870). 
 
 especially in the Prussian Kreis-ord- * The working out of social con- 
 
 nung of 1872 (Gneiflt, " Preuss. Krois- trasts with a view to a common con-
 
 670 Constitutional History of England. 
 
 Yet all this was not effected in England without a reserva- 
 tion for the urban constituencies. The English towns at 
 present form two groups. About two hundred cities and 
 boroughs in England and Wales send, as special civic con- 
 stituencies, members to Parliament, as parliamentary boroughs ; 
 about one half of them were in the course of time incorpo- 
 rated by express charter, and fell accordingly under the follow- 
 ing head. 
 
 Nearly three hundred towns have, on the other hand, since 
 the close of the Middle Ages received a positive organization, 
 as a rule with mayor and council, as municipal boroughs ; to 
 these belong also nineteen cities with the more extensive 
 privileges of a County Corporate, which gives them also the 
 right of having their own sheriff, coroner, and a special urban 
 militia.** 
 
 This municipal system certainly was and remained an 
 accumulation of anomalies, which only accidentally compen- 
 sated one another. The old civic constitution of the corpo- 
 ration, limited to the police administration and the old civic 
 property the burdensome and expensive part of the poor law 
 and highway administration in the hands of the parishes, 
 completely disconnected with it other parts again of the civic 
 system in the hands of special commissions or trusts ', some of 
 the towns represented in Parliament, brought by charters of 
 incorporation into a formal constitution ; others still remain- 
 ing on the basis of the now decayed, mediaeval court leet ; part 
 of the incorporated towns represented in Parliament, another 
 
 sciousness, and not the sum total of by former charters of incorporation and 
 the individual opinions contained local observance remained in principle 
 therein, gives the votum of the body unchanged. The decisions of the 
 its importance. The greatest number Lower House as to the validity of 
 of intelligent and well-meaning men elections in boroughs remained as 
 since James I. voted certainly under before sometimes influenced by party 
 the name of the Universities of Oxford considerations, sometimes void of prin- 
 and Cambridge, which have neverthe- ciple and fluctuating, and a later 1 
 less contributed the strangest figures statute could only instruct the sheriffs 
 to the English Parliament. It is much always to proceed according to the 
 the same with the elections of the great latest decision of the Lower House, 
 cities. Inasmuch as the internal con- An endeavour was now made with the 
 nection of the elective bodies is the co-operation of Parliament to meet the 
 essential point, it was in principle a numerous local needs of municipal 
 justifiable arrangement that an equality government by local acts, of which we 
 in the representation of the greater and find 11 under William III., 10 under 
 smaller counties and the greater and Anne, 15 under George I., 46 under 
 smaller boroughs was maintained, so George II., and no less than 400 under 
 long as a due proportion of the repre- George III., by which new and arbi- 
 eented classes of society was on the trarily formed administrative bodies, 
 whole provided for. and representations of citizens were 
 ** The violent mutilation of the again formed. As to the caricatures 
 municipal constitutions, so far as it of a municipal system, which pro- 
 originated with James II., was finally ceeded from this, cf. Gneist, " Self- 
 rescinded, but the irregularities caused Government," 1871, aec. 73.
 
 The Formation of the Lower House. 671 
 
 part not ; the smallest, quite decayed towns represented like 
 the greatest counties by two members ; and finally some places 
 that had now become great towns entirely unrepresented. 
 
 Such were the latest visible results of the representations 
 of boroughs, heaped up upon one another without any system, 
 and more than ten times as strongly represented as they 
 should be. The unavoidable consequence was the subordi- 
 nation of the real local interests to the interests of Parliamen- 
 tary parties, as the struggling parties of Parliament sought 
 their elective influence principally in the small or otherwise 
 normally formed boroughs, which since George III. were hot- 
 beds of systematic bribery and corruption. The greater the 
 number and the smaller the importance of the boroughs 
 became, the more they fell under the dominating influence 
 of the neighbouring large landowners. In many of these 
 boroughs the great noble families have established themselves 
 as securely as in the castles of the Middle Ages. The election 
 statistics of the eighteenth century were shrouded in a not 
 unintentional obscurity. At the end of the century a peti- 
 tion of the " Society of Friends of the People " pledged itself 
 to furnish proof that 200 representatives of towns were 
 elected by constituencies of less than 100 electors, and that 
 altogether 356 members were nominated by 154 patrons 
 without meeting with any serious refutation. This was still 
 a sort of equalization for a borough representation, ten times as 
 strong as it should be, certainly at the expense of the morality 
 of the small constituencies- and the interests of the middle 
 classes, whilst the energy and the influence of the county 
 gentry was again enhanced by these anomalies. But the re- 
 presentation of the boroughs in Parliament always remained 
 the weak point of the great and otherwise harmoniously con- 
 stituted parliamentary body the undefended position which 
 the Eeform Bills of later times with good reason attacked.*** 
 
 *** If in spite of all we inquire into tegrity in the administration has been 
 
 the ultimate reasons for the prudent maintained, why the position of the 
 
 moderation which distinguishes the judges, and the possessions and the 
 
 English parliamentary system from all independence of the national Church 
 
 its imitations, why it has better re- have remained untouched by party 
 
 spected the public rights of the country governments ; the reasons are to be 
 
 than the monarchy that preceded it, sought purely in the spirit of the 
 
 why the whole change of office of an elective bodies, from which the House 
 
 English Government by party is con- of Commons proceeds, in that internal 
 
 fined to half a hundred political offices, cohesion, which has given these bodies 
 
 why with this exception a permanent the right will to exercise their political 
 
 professional bureaucracy and full in- liberty aright.
 
 672 Constitutional History of England. 
 
 CHAPTER LL 
 VII. i)t position of tfje 23pptr 
 
 Upper House is the necessary supplement to the Honse 
 of Commons, as being the depositary of the existing system of 
 laws, protector of minorities against majorities, and the 
 guardian of the permanent interests of the State against the 
 daily changing interests of society. For this reason a second 
 representation is accorded to the ruling classes by the heads 
 of their noblest families, independent of the changing in- 
 fluences of elections. The number of 166 peers that were 
 existing at the accession of William III. was further increased 
 in the course of the eighteenth century by 84 dukes, 29 
 marquises, 109 earls, 85 viscounts, and 248 barons. Among 
 the total number of peers (372 at George the Third's accession, 
 at the present time (1882) as many as 512), the representation 
 of the Established Church by two Archbishops and 24 bishops 
 becomes an ever diminishing minority, a mere complement of 
 the pre-eminently temporal character of the institution, which 
 on the one side gives to the ruling class its highest privileges, 
 and on the other to the political body of the State the requisite 
 stability.* 
 
 Since the eighteenth century the constitutional lawyers of 
 all nations, with scarcely any exceptions worth naming, have 
 arrived at the unanimous opinion that side by side with a 
 popular representation, with its well-known changing majori- 
 ties, a stable element is absolutely necessary, which, according 
 to the differences in the bases of .the State, and according to 
 the nature of the social system ought, either by life members 
 or hereditary members, or by a representation of permanent 
 bodies, in one way or another, to obtain a higher degree of 
 
 * On George the First's accession the ruling class was completed and thus 
 
 the Upper House consisted of 22 dukes, that unity of action was produced in 
 
 two marquises, 64 earls, 10 viscounts, the parliamentary body which England 
 
 67 barons, 16 Scotch peers ; of these has neither before nor afterwards pos- 
 
 peerages there were only 52 existing at sessed to such a degree. A foolish and 
 
 the death of George IV. It was by the presumptuous attempt of the nobility 
 
 numerous creations of peers under to limit the royal prerogative appointing 
 
 George III. that the consciousness of peers to a fixed number, was soon under- 
 
 the internal unity of the Government stood aright as to all its consequences, 
 
 with the enfranchised communss and and rejected by the Lower House (1719).
 
 The Position of the Upper House. 673 
 
 permanence in order to be a support to the existing political 
 and social system.** Unfortunately these well-founded 
 theories, as a rule, lose their influence upon public opinion 
 just at the time when modern society has the greatest need of 
 this moderating influence. 
 
 In the struggles between the Crown and the estates, England 
 has empirically attained to that formation which in the 
 eighteenth century appeared the natural and proper one. In 
 its rise the Upper House had come into the world as a council 
 of State, strengthened by the power of landed property. Into 
 the permanent council the greatest feudatories and prelates 
 had entered, representating the great landed interests, yet not 
 merely property, but including those spiritual magnates who 
 conducted the actual government of the Church, as well as 
 those temporal magnates who were both ready and able to 
 discharge the ardua negotia regni in common with the highest 
 servants of the Crown, and who also both in political burdens 
 and taxation everywhere stood at the head of the people. 
 The ability of this aristocracy, acting in the very reverse 
 manner to the old French Parliament, pushed back the merely 
 bureaucratic element and subordinated the royal justiciarii 
 and mere professional officials as assistants to the main body. 
 The spiritual and temporal peerage, in the periodical sessions 
 of the royal council, tacitly became a permanent body and 
 an essential factor of the legislature, and also the highest 
 tribunal of the judicial system. Its individual prominent 
 members form in the eighteenth century the majority of the 
 highest servants of the Crown, who under the name of 
 the Privy Council carry on the actual Government of the 
 State. 
 
 Where in this manner both Upper and Lower House 
 together discharge the real business of the State, no 
 theoretical proofs are needed of the necessity of the system 
 of two chambers, which is of itself sufficiently apparent in 
 the daily action of Parliament. 
 
 Without the Upper House the legislature would immediately 
 lose its footing, or rather would not exist at all ; the resolutions 
 of the Lower House (in consequence of its exclusive financial 
 power and its decisive influence upon changes of ministry) 
 would, like the daily resolutions of a convention, take the 
 place of the legislature, and the difference between the 
 statutes and the daily resolutions of the majority would 
 
 ** The petty state, in which the ele- nation to a greater political whole 
 
 ments for the constitution of a first whether this be called a federation or a 
 
 chamber are wanting, thereby shows confederate state, and are only in this 
 
 itself to be a civitas imperfecta. In conjunction capable of fulfilling the 
 
 reality such states exist only in subordi- duties of a " state." 
 
 2x
 
 674 Constitutional History of England. 
 
 immediately cause legislation to become an empty form and 
 a mere name. 
 
 Without an Upper House a Government according to law 
 would at once cease, as every resolution of the majority in 
 the Lower House would at any given moment be able even to 
 repeal, suspend, or do away with the existing laws. The 
 protection of the rights of individuals by the tribunals would 
 at once be abolished, as the higher legislative power of the 
 resolutions of the majority could at any given moment set 
 aside both the judicial tribunals, their officers, and their 
 judgments. 
 
 This is the hurried process through which all constitutions 
 framed according to the ideals of pure democracy and accord- 
 ing to the doctrinaire systems of a sovereignty of the people 
 pass forthwith into a dictatorship, and even into an unbounded 
 absolutism, which tears down every barrier of the executive. 
 England, under Cromwell's short reign, had just enough ex- 
 perience of the one-chamber system to prevent a recurrence 
 to it. This popular opinion was sure to become more and 
 more firmly established, the more that the rapid change of 
 parliamentary majorities and ministries in the eighteenth 
 century showed the necessity of a firm support for the legal 
 and administrative system a support which was no longer to 
 be found in the Crown.*** 
 
 At the same time, in the course of centuries, England 
 practically learnt that a political body which was to hold its 
 own side by side with the mighty power of the House of 
 Commons must be rooted like the communitates, not only in 
 property, but also in the lowest foundations of the structural 
 edifice of the State. In fact every communitas contains those 
 elements which, when concentrated in Parliament, form the 
 Upper House. The peers, who ordinarily stood as lord- 
 lieutenants and custodes rotulorum at the head of the actual 
 county government, of the administration and the command 
 of the militia, which was in the eighteenth century still in an 
 efficient state, continue the idea of a leading position also in 
 their combination to an Upper House. The principle of the 
 royal appointment of the magistrature, which prevails in the 
 province of the military, judicial, and police power, also con- 
 tinues the principle of appointment into the Upper House, f 
 
 *** It is characteristic of the prac- in the State that even John Stuart 
 
 tical views of life which arise from Mill advocates a system of two 
 
 real labour in the State, even at the chambers as being a necessity. The 
 
 present day, that even the modern idea of the sovereignty of the people, 
 
 Bchool of political economy in England, however, changes the order of prece- 
 
 which would fain build up the State dence. The first chamber must for the 
 
 merely of interests in the widest ima- future be called the " second chamber." 
 
 ginable extent separating itself from t In this question also the practical 
 
 the notion and the necessity of a right views even of English radicalism re-
 
 The Position of the Upper House. 675 
 
 The customary self-government of the counties by hereditary 
 landowners leads further to the recognition of an hereditary 
 peerage, just as in an absolute bureaucratic State the nature 
 of the office leads to the higher officials being appointed for 
 life and to their association into a permanent official body. 
 The cohesion of the individual with the whole, the uniform 
 co-operation of the elements according to a fundamental 
 system, gives also the English Upper House a footing in the 
 English political and social system. 
 
 The noble Upper House too, in the same way as the Lower 
 House, represents an organic combination of property and 
 office not that of an ancient and now fictitious office, con- 
 tinued by mere title of nobility (like the titles of nobility on 
 the Continent), but of a living, continuous activity in the 
 highest business of government and in the daily labours of 
 local administration, in actual service on behalf of the 
 commonwealth, with the complete responsibility of a public 
 office. Just as little is it the representation of a privileged 
 landed interest which has disappeared with the now perfectly 
 unmeaning feudal bond in England, but of all property 
 paying taxes and fulfilling personal duties towards the State. 
 The position of the peers in legislation and in taxation 
 corresponds to their quality as the greatest tax-payers, like 
 that of the gentry in the county. In this cohesion the position 
 of the Upper House was, in the eighteenth century, securely 
 established."!"!" 
 
 cognize the necessity of appointment to in- the counties are where we expect 
 the higher offices of authority. The to find a great tax-payer and a jus- 
 estrangement of society upon the Con- tice of the peace, and as these cora- 
 tinent from personal activity in the bined together form the centre of the 
 State could certainly not perceive the local and provincial government, so 
 necessity of the principle of appoint- do they appear concentrated in the 
 ment for the first chamber in the mon- House of Lords. And this relation 
 archical State. From the point of view continues, at all events as an average 
 of society these chambers must also rule, down to the nineteenth century, 
 be elected, like all elements of self- In the lists of 1855 I have counted as 
 government, beginning from the lowest belonging to the English Upper House 
 to the highest. The necessity of creat- 61 lords who are lord-lieutenants at 
 ing the military, judicial, and police the head of a county government, 116 
 authorities by appointment, by a higher lords who are officers of the militia 
 authority, and not by election, only and on the militia commissions, 58 in 
 becomes intelligible by an habitual co- the active army, 67 active or former 
 operation in military and judicial ministers or under-secretaries of State, 
 duties and in the police control. and 108 former members of the Lower 
 tt The strong movement in the ranks House, etc. The type of the lord as a 
 of the peerage and the new creations mere private gentleman, which was in 
 repeated from year to year prove to the eighteenth century the uninfluen- 
 us that their honours are acquired tial exception, is unfortunately to-day 
 honours, as in the Middle Ages. more and more on the increase. 
 Just as the residences of the gentry
 
 67G Constitutional History of England. 
 
 CHAPTER LII. 
 
 VIII. 2tf)e <Bstablts|)& (Satire!) as a Ht'nfe in tfje Astern 
 of ^Jarltamtntarg (ffioternment. 
 
 WITH great difficulty and very gradually the Established 
 Church in the course of the eighteenth century made its 
 peace with the reformed parliamentary State. It is nothing 
 more than the truth if we recognize that the Church in the 
 conflicts of the Parliament with the Stuarts ran a great risk 
 of becoming an instrument in the hands of changing parlia- 
 mentary parties. Therefore it was that, with her theories of 
 absolute power, she so energetically supported the jure divino 
 monarchy of James I. and his successors. The antagonism 
 of the sects opposed to her was in later times silenced by the 
 rigorous prohibitory laws of the Eestoration. From that 
 time on, the Anglican clergy had begun, both in their writings 
 and in their sermons, to vie in dangerous competition with 
 the Eoman Catholic clergy for the favour of the two royal 
 brothers, each religion putting itself forward as the true and 
 sole support of the throne and of social order. The clergy 
 was unable again to divest itself of this political character. 
 Sometimes in favour, and sometimes in opposition, they found 
 themselves drawn into the whirl of parliamentary parties 
 during the last decades of the Stuart dynasty. The pulpit 
 had become a chair of political teaching, and all the more 
 effectively seeing that the orator found no contradiction, and 
 that the press was still under censorship. Instead of devoting 
 themselves to the cure of souls and to their vocation as teachers, 
 the clergy and their two universities found a favourite topic 
 in the burning questions and controversies of the day, in 
 the denunciation and refutation of opinions displeasing to 
 themselves. In their zeal for the jure divino monarchy, 
 however, they were so often injured by the Stuarts, and at 
 last so grossly deceived by James II., that they finally joined 
 the cause of the party of resistance, and even by their own 
 resistance gave the signal for the outbreak of the " glorious 
 revolution." 
 
 By the second revolution and the change of dynasty, how- 
 ever, the danger of their subjection to a variable system of
 
 The Established Church. 677 
 
 rule by parliamentary parties became more threatening than 
 before. In unconquerable dislike to such a state of things the 
 clergy very soon returned to the colours of the Stuarts. The 
 political secession of the "non jurors" continued for a 
 generation in open antagonistic opposition to the reigning 
 dynasty, and traces are even perceptible down to the corny 
 mencement of this century. But as the Whig ministries 
 appointed Whig bishops, the estrangement between Church 
 and State was followed by an estrangement between the 
 higher and the lower clergy, and a further consequence was 
 a bitter feud between the doctrines of the High Church and 
 those of the Low Church. 
 
 There lay, however, in the ecclesiastical system a contrast 
 to the parliamentary system, which makes the two organisms 
 appear like opposite poles. Benefices, chapters, universities, 
 and colleges cannot be governed like temporal communitates, 
 nor the office of instructor administered like that of a police 
 magistrate. All applications of a parliamentary constitution 
 to the Church only result in a predominance of extreme ten- 
 dencies, a bitter party strife (which, being a struggle for 
 creeds, cannot be allayed by resolutions of a parliamentary 
 majority), and above all in constant conflicts with the tem- 
 poral Parliaments. The spirit and the objects of Church 
 doctrine and the cure of souls necessitates, very differently 
 from a parliamentary constitution based upon self-govern- 
 ment and taxation, a standing and perpetual ecclesiastical 
 government with complete supervisory powers, perfectly dis- 
 tinct from all temporal party interests. An application of 
 social and parliamentary formations has accordingly at all 
 times only been practicable when subordinated to a strong 
 ecclesiastical government, and then only in questions of ritual 
 and property.* The ruling class in England had before its 
 eyes the vivid picture of the dangers of an ecclesiastical 
 parliamentarism, not only from recollections of the disastrous 
 system of the Presbyterian Churches under Cromwell, but 
 still more vividly by the development of the Scotch Church, and 
 we cannot but admire the circumspection by which, in the 
 following manner, a modus vivendi was arrived at with the 
 ecclesiastical system. 
 
 * The synodal constitution of the of the subordination of the general 
 
 Convocations under the Tudors was synod to a royal high commission, as 
 
 fairly well established, but only under the highest court of the ecclesiastical 
 
 the condition (1) of very large rights state (Chap. xlii.). The second con- 
 
 of appointment by the Crown for the dition had ceased with the Stuarts, 
 
 members of the general synod, and of the third since the Kestoration, and all 
 
 controlling powers exerciseable by the conditions in the eighteenth century, 
 
 royal commissioner ; (2) of a correct after the non-reinstating of a high 
 
 exercise of the royal prerogative in the commission, had become a leading prin- 
 
 epirit of Christian tolerance ; (3) and ciple of the constitution.
 
 678 Constitutional History of England. 
 
 1. By recognition of the hierarchy of the Anglican Church 
 according to the Episcopal system, from the archbishop's 
 office down to the parson s ; by the retention of the bishops' 
 seats in the Upper House ; by avoiding any interference with 
 the internal affairs of the Church ; by incorporating the juris- 
 diction of "the King in council" as a court of supreme 
 instance in a Court of Delegates, which in later times obtained 
 the name of a permanent division of the Privy Council. The 
 periodical general synods of the clergy in their Convocations, 
 which were seen to be incorrigible depositaries of clerical 
 caste-exclusiveness, were in the long run found to be incom- 
 patible with peace in the Church, and after the year 1717, the 
 pacificatory course was adopted of suspending their activity 
 by summoning them in the usual manner, and, after opening 
 the sitting by a royal commission, immediately adjourning 
 it on account of want of business (a proceeding which lasted 
 until the middle of the present century). The direct anta- 
 gonism between spiritual and temporal parliaments was thus 
 removed. A link remained above in the persons of the bishops 
 sitting in the Upper House, below, in the constitution of the 
 parish. The members of the ecclesiastical system that lay 
 between these two extremes had to be reconciled to the new 
 order of things by the following further concessions : 
 
 2. The Church property is protected and preserved by 
 Parliament more conscientiously than in any other century ; 
 and under Queen Anne increased by a great endowment. 
 This property represents even to the present day the income 
 of a continental kingdom (according to the assessment of 
 1851, estimated at .5,000,000 annual income, and landed 
 estates of 1,500,000 acres), as was deemed necessary in 
 England to maintain the dignity of the Church side by side 
 with a wealthy ruling class. 
 
 3. The ecclesiastical benefices by the legal fiction of a " cor- 
 poration sole " are preserved intact, and serve, as did the incor- 
 poration of the universities, to keep the influence of parlia- 
 mentary parties far removed from the ecclesiastical offices. 
 In another direction the patronage of these offices is distri- 
 buted amongst the King, the spiritual and temporal lords, 
 the landed gentry, the chapters, the universities, and other 
 bodies, almost corresponding to the present influence of the 
 ruling class. 
 
 4. The Established Church still retains a considerable 
 ecclesiastical jurisdiction, subject indeed to a State tribunal 
 as a court of supreme instance, but yet with sundry magis- 
 terial rights extending even over dissenters. 
 
 5. Conformity to the Established Church remains the con- 
 dition of entering Parliament and taking office in the State.
 
 The Established Church. 
 
 679 
 
 The subtle system of the Test Acts (25 Charles II. c. 2) has 
 extended this bond, subsisting between the Church and the 
 dominant class, which had existed for nearly a century and 
 a half, to everything upon which political influence in the 
 State depends, i.e. to those holding any office, civil or mili- 
 tary, or receiving pay, salary, fee, or wages, by patent or 
 grant, etc. On the other hand the ecclesiastical possessions 
 throughout are subject to the burdens of the parish, the 
 clergy are active members of the vestry, an important element 
 of the commissions of the peace, and become gradually more 
 and more blended together with the dominant class in par- 
 liamentary government.** 
 
 The ideal of a united Church in a united State was thus 
 again attained. In practice the condition of things here was 
 similar to that existing in continental States, in which, accord- 
 ing to the one-church system, either the Eoman, the Lutheran, 
 the Reformed, or the Greek Church, was so bound up with the 
 institutions of the State, with the family rights, the education, 
 and the customs of the nation, as to represent an essential 
 element of the national State. A feeling of the upper classes 
 (we may call it tolerance or indiiference), characterizes the 
 eighteenth century in England also, practically almost invali- 
 
 ** Cf. as to the constitution of the 
 State Church, Gneist, " Das Englische 
 Verwaltungsrecht," vol. ii. chap. viii. 
 The whole displays a picture of an 
 intimate relation of interests between 
 Church and State, and between the 
 clergy and the dominant class, in 
 which the Church preserves the essence 
 of her constitution and the indepen- 
 dence of her ministering office, under 
 peculiar conditions. The dominant 
 class has on its part so completely 
 understood the full importance of this 
 connection for its position among the 
 lower classes of society, that the motto 
 " Church and King " became and re- 
 mained the watchword of the Tory 
 party. The strong side of this system 
 was the political side, in so far as 
 by this means a main foundation was 
 gained for the possibility of a parlia- 
 mentary party government. All this 
 again was certainly in some measure at 
 the expense of ecclesiastical efficiency 
 in teaching and the cure of souls, and 
 had a certain weakening effect upon 
 the education of the people and upon 
 the intellectual life of the nation 
 generally. After the Church had been 
 fully secured in her corporate inde- 
 pendence, there again supervened, as 
 in former epochs, a slackness in the 
 
 spiritual calling. No sect was any 
 longer a serious rival ; the Catholics 
 were kept down under penal laws. 
 The highly placed prelates and rectors 
 thus lost in many instances their in- 
 terest in the cure of souls. Even, 
 under Queen Anne, it was calculated 
 that the larger portion of the livings 
 were occupied by scantily endowed 
 vicars and curates with an average in- 
 come of 50. In many places the 
 population gradually increased far be- 
 yond the limits of the parish ; but 
 instead of forming new parishes with 
 all the rich resources at the disposal 
 of the Church, these people were 
 abandoned to neglect and Methodism, 
 which now separates itself off in a 
 great degree from the Church, which 
 had become too aristocratic. This is 
 the natural cause of the growth of 
 dissent of the eighteenth century, 
 which was the outcome of feeling, 
 whilst the older sects, which had 
 arisen in the struggle against the 
 State Church of the Stuarts, take up 
 a distinct and separate position, almost 
 devoid of influence. It was not until 
 the nineteenth century that the Es- 
 tablished Church endeavoured to re- 
 pair these gross neglects.
 
 680 Constitutional History of England. 
 
 dating the penal laws passed against Catholics and dissenters, 
 allowing the dissenters by annually repeated acts of indem- 
 nity (since 1727) to hold office and exercise political rights, 
 and according all creeds in the main the legal equality of 
 individuals in civil matters, without on that account abandon- 
 ing the position of the Established Church. She remains the 
 Church of the King and of Parliament, the Church in all 
 decrees and acts of the State, the Church, which in exercise 
 of her jurisdiction, her right to tithes, her church rates, and 
 her church marriage (after the Marriage Act of 1753), treats 
 other creeds as non-existent. For the dominant class, confor- 
 mity to the Established Church is the condition precedent of 
 the constitution for the King in council as for the King in 
 Parliament recognized by Whigs and Tories alike. 
 
 This welding of the Established Church into the parlia- 
 mentary state was the last decisive step towards establishing 
 the cohesion and internal harmony, with which an even pulse 
 returns into the life of the nation. And herewith the clergy 
 at last ceases to be an agitating element in the struggle for 
 power and social interests, and to vaunt itself as being the 
 true prop of the throne and order ; but it finds its conserva- 
 tive calling again in teaching and the cure of souls, in repre- 
 senting the Christian moral law, as it is incorporated in the 
 Anglican Church, homogeneous in itself, and intelligible to the 
 minds of the majority of the nation.*** 
 
 In the dignity of their vocation, in political clear-sighted- 
 ness, in patriotism, and in respect for civil society, there was 
 probably no clergy in Europe that could equal the Anglican 
 clergy, and if their activity was only too intimately bound up 
 with the position of the dominant class, yet it was and 
 remained a high vocation in its sphere, and of great and 
 important influence upon the present legal order of the State, 
 which thus stood on a secure foundation in a universally 
 recognized doctrine of the Christian moral law. This posi- 
 tion of the State Church was the latest development in the 
 organism of parliamentary constitution, but not the last in 
 point of effectiveness. 
 
 *** This recognition of the equality must be organized in the same state 
 
 of the individual believers of other (as was the case in Germany after the 
 
 confessions is something entirely dif- peace of Westphalia by the union of 
 
 ferent from the system of the parity of Catholic and Evangelical territories 
 
 two Churches, which would be incom- into a confederation of states), public 
 
 patible with the English parliamentary opinion in England appears to have 
 
 system. The Presbyterian Church, it but little clear idea, although England, 
 
 is true, was the State Church for Scot- since the re-establishment of Catholic 
 
 land, yet only as a provincial institu- bishoprics in the country (1850) is 
 
 tion, and as being a kindred church brought face to face with the same 
 
 system. As to how a two-church system problem as Germany.
 
 CHAPTER LIII. 
 
 IX. S&e delations of tfje OTrofon to ^arliament tftfje 
 in OCouncil antf tfce 3ting in parliament. 
 
 UPON the thus consolidated basis of the hereditary succession 
 of self-government, viz. the ruling class in their Upper and 
 Lower House (Chaps, xlv.-lii.), there now becomes developed 
 a new position of the royal council as regards Parliament, 
 which for more than a hundred years, under the name of a 
 "parliamentary government," has as an ideal of a monarchi- 
 cal constitutional government, stood before the nations of the 
 civilized world as a goal to be attained. 
 
 The Eevolution had preserved the royal office, not as a 
 monarchy of divine appointment, but as an hereditary mon- 
 archy of human institution, with a parliamentary title, to be 
 compared with the accession of Henry the Seventh. The 
 English State remained accordingly a monarchy, and indeed 
 a constitutional monarchy with a double organization; as 
 King in Parliament and as King in council, that is, the King, 
 in exercise of the executive power, is bound either to the con- 
 sent of the one or to the assistance of the counter- signature 
 of the other. The old powers of the Crown still continue, 
 though from time to time enlarged, limited, and modified by 
 the legislature, that is, by " the King in Parliament." 
 These powers have become divided among a number of con- 
 stitutional departments (courts, commissions, and boards), all 
 at length converging in the "King in council," the King as 
 head of the now so-called executive power. The events of 
 1688, however, have produced changes in the relation of these 
 powers, which also react upon the form of the central admin- 
 istration. 
 
 I. The Privy Council is still the constitutional seat of the 
 Government, but with essential limitations of functions as 
 also of persons. 
 
 The supplementary power of the King in council to issue 
 ordinances still continues ; but as the sovereign rights are to 
 the widest extent fixed by statute, and become continuously 
 more and more fixed, the ordinances are restricted more and
 
 682 Constitutional History of England. 
 
 more to colonial and foreign affairs, to executory ordinances 
 and instructions to officials. 
 
 The power of the council to decree extraordinary measures 
 of temporary government has not been expressly abolished ; 
 but, since all power of dispensing with and suspending par- 
 liamentary statutes has been taken away, the more important 
 measures pass to Parliament in the form of private bills, etc. 
 
 The jurisdiction of the council in civil and criminal causes 
 disappeared with the Star Chamber ; all that has remained of 
 it is only a right of preliminary inquiry. To this were added 
 the following further changes : 
 
 The permanency of the judges' office was made a rule by 
 13 William III. cap. 2; 
 
 The whole police administration, the superior jurisdiction 
 of the local government, the militia, and everything that is 
 liable to abuse of power from above, was " de-centralized," by 
 an endless series of statutes, and placed under a system of 
 administrative justice ; 
 
 The Church has attained her independence of the ministry 
 in power ; 
 
 The Upper House finally, has become so consolidated, as to 
 enable it to take again, as in the fifteenth century, the position 
 of an independent council of the realm. 
 
 The practical centre of gravity in the governmental system 
 now lies essentially in the deliberation of the King, touching 
 the summoning and dissolution of Parliament, and the bills 
 to be laid before it. The present council in its deliberations 
 deals with measures of foreign and colonial policy, with the 
 introduction of new laws, with temporary measures, and with 
 the re-appointment to vacant offices ; that is, with business 
 for which the ceremonious sittings of a numerous body appear 
 actually neither necessary nor suitable. All functions, for 
 which the permanence and the divisions of a council of the 
 realm are essential, are (as was already partly the case in 
 the preceding period) actually withdrawn from the council. 
 
 And accordingly the remaining business of the council 
 passed to a council of ministers formed of five, seven, or 
 more principal members of the council as "His Majesty's 
 present government" (cabinet). This method of government, 
 which proceeded from the cabinets of James I. and Charles I., 
 from the cabinets or cabals under Charles II. and James II., 
 proved itself at the commencement of this period to be the 
 only possible form, paying as it did due regard to the 
 predominating party in Parliament. Even that great man 
 William III. was unable to form a coalition government of 
 Whigs and Tories ; in the years 1793-96 the dissenting 
 elements silently retired, until an homogeneous Whig cabinet
 
 The Relations of the Crown to Parliament. 683 
 
 remained. William III. last presided at real deliberations of 
 a council. Men became convinced by practical experience 
 that the new bills and measures to which the council was now 
 confined, could only be laid before Parliament by a united 
 government entertaining the principles it advocated. For 
 this reason no serious attempt was made to return to 
 the old course of business in full sittings of the whole council.* 
 But as nothing has been altered by law in the cases where, 
 according to constitution or law, an order in council is requisite, 
 a nominal royal council is held, to which, besides the ministers 
 pro forma, some of the members of the council, who are of 
 the same mind as the ministry for the time being, are invited. 
 The Privy Council exists now only as a ceremonious sitting 
 of the ministry for the formal ratification and publication of 
 such measures as constitutionally must proceed from the 
 " King in Council." 
 
 To this form of State government is attached the predomi- 
 nating influence of Parliament over its members and their 
 policy. 
 
 II. To the King in Parliament, therefore, all those powers 
 are transferred which have been lost by the King in council ; 
 that is to say, the ministers of the Crown, for the time being, 
 now need the consent of Parliament to a long series of cases 
 which were in former times discharged, as a matter of course, 
 in the council. 
 
 This new method of government in England in no way 
 rests upon the normal powers of Parliament, its share in the 
 legislation, its voting of supplies, and its right of controlling 
 the Government as such had been historically developed since 
 the fourteenth century, and fixed by numerous precedents. 
 The dynasties of the Tudors and the Stuarts had nevertheless 
 with this Parliament carried on a monarchical regime, and 
 even after the numerous other limitations imposed under 
 Charles I. and Charles II., a conscientious monarch might 
 have found in the constitution sufficient scope for the exercise 
 of his royal power. It was the new position of the Crown 
 after the Declaration of Eights that perfectly altered the 
 position of the King in council, and the King in Parliament. 
 
 The material point lies in the unalterable truth that every 
 
 * The Act of Settlement attempted council as had deliberated upon and 
 
 once more to restore the original rela- consented to them. But this clause 
 
 tion by providing, that for the future was repealed without ever being carried 
 
 all matters touching the government into effect. Men were convinced that it 
 
 of the realm, which would ordinarily be was impracticable. As to the question 
 
 dealt with in the Privy Council accord- of the constitutionality of the new mode 
 
 ing to the laws and customs of the of business, cf. note at the end of thin 
 
 realm, should be there so dealt with chapter, 
 and signed by such members of the
 
 684 Constitutional History of England. 
 
 political constitution must leave loopholes, which may be 
 described as extraordinary powers, dictatorial powers, latent 
 powers, or the like, but which ever arise anew from the 
 relations of State and society. No human wisdom and fore- 
 sight can exhaustively circumscribe supreme power in the 
 State by laws or constitutional rules, since the unforeseen 
 needs, and even urgent requirements of society, in every short 
 period demand new measures, for which no sufficient rule has 
 as yet been discovered. In the republic, as in the monarchy, 
 this dictatorial power must lie on the one side or the other, 
 and the element of power that is taken from the one side 
 must ever be given to the other. Nations which have grown 
 up under a monarchical constitution, and have preserved an 
 intimate relation to their monarchy, reserve these powers to 
 the sovereign in the well-grounded feeling that they rest 
 more securely in an institution which in every personal and 
 family interest is identical with the permanent welfare and 
 prosperity of the country. The English nation, too, has 
 adhered to this monarchical tradition up to the furthest 
 possible limits. Even after very evil experiences in every 
 former century (pp. 451-453) the circle of the latent powers 
 was carefully, hesitatingly, and almost timidly drawn some- 
 what closer by the legal definition of certain points. It was 
 the unexampled breach of faith, and perversity of a dynasty 
 throughout three successive generations that made the nation 
 waver in this belief, and brought about that change which, under 
 the name of the " glorious revolution," deprived the Crown 
 of every tittle of extraordinary power, because that power 
 had been abused in the most flagrant manner. Every single 
 sentence of the Declaration of Eights was only too much 
 justified by preceding events ; but this whole chain of 
 negations since the days of Charles I. leads to a materially 
 altered system of government. The total result of these 
 negations is this, that in every such loophole the powers of 
 the Crown have been expressly taken away, and any attempt 
 made to exercise such appears as an unequivocal case for an 
 impeachment of ministers, and that accordingly every 
 remnant of dictatorial power, which can have any practical 
 importance in a State system, is from that time forth denied 
 to the King.** 
 
 ** In this decisive point of the so- the Bill of Eights only lop off single 
 
 called ; parliamentarism there are no and grossly abused prerogatives. The 
 
 "general constitutional truths," but unconscientious employment of State 
 
 the English nation has even here pro- resources under Charles II. first of all 
 
 ceeded slowly and prudently by the caused that rigorous framing of the 
 
 light of experiences that are peculiar clause of application, by which the 
 
 to England. The Petition of Right, State government, not only in new, but 
 
 the abolition of the Star Chamber, and also in old expenditure (so far as such
 
 The Relations of the Crown to Parliament. 
 
 Although according to the doctrines of democracy the powers 
 that had thus been taken away ought to have benefited 
 popular liberty, the result was in reality otherwise. Like 
 " the sovereignty of the people " itself, the powers which were 
 taken away from the crown fall into the hands of the dominant 
 class of society, that is, in England, to the now fully developed 
 ruling class in its perfected parliamentary organization. But 
 as the needs of the nation continuously grew out of the 
 existing legislation, as the State, year by year, needed new 
 and extraordinary powers, there was nothing left except that 
 the actual government by the King in council should return 
 to the King in Parliament, return so as year by year to be 
 in a position to cause the necessary means and powers to be 
 voted by Parliament, and thus to enter into a continual 
 confidential relationship to Parliament, that is, into a con- 
 stant dependence upon it. 
 
 But in the eighteenth century there met together a series 
 of circumstances which increased to the utmost extent this 
 dependence of the Government upon the intentions of Parlia- 
 ment. Of these the mention of the following will suffice : 
 
 Whilst the existence of a standing army was dependent in 
 all its needs of resources and legal conditions upon the 
 annual, perfectly free consent of Parliament, no king of 
 England could any longer dispense with this military force, 
 whether for retaining the hold over Ireland, or for maintain- 
 ing the position of the country in Europe, or yet that of the 
 empire which had spread itself throughout every quarter of 
 the world. 
 
 Further, the determination by statute of the whole of the 
 internal administrative law which had gradually increased in 
 
 expenditure has not been provided by in the King in council. It was only 
 law), is subjected to the control of the the experiences of three such genera- 
 Lower House. The destructive plans tions that left behind the conviction 
 of James II. necessitated the annual that a party government proceeding 
 sanctioning of the standing army by from the ranks of the ruling class in 
 a mutiny bill. The serious abuses of this country offered more guarantee 
 the administration at last caused the for a strong and just rule, and less 
 boundary between legislation and ad- danger to liberty than the old method 
 ministration to be drawn in this way, of government by " King in council." 
 that everything partaking of the The main point did not consist in 
 character of an incident money bill, formal institutions (which can readily 
 or an encroachment upon property, or be imitated) but in dynamic forces in 
 an exception from the common law the life of the nation. When nations 
 falls within the province of private cease to believe in dynasties capable of 
 and local bills, and thus into the governing them, disbelief in classes, 
 sphere of Parliament. But as finally parties, and party men, capable of doing 
 here was not one of the royal rights so, ensues. Whilst all monarchical 
 that had not been abused by the forms and notions were retained, this 
 Stuarts, those laws took away the belief moved the centre of the State 
 whole of the movable part of the from the council to the House of 
 powers of Government which still lay Commons.
 
 686 Constitutional History of England. 
 
 an unusual degree, called for new statutes from year to year, 
 and rendered private and local acts necessary for the smallest 
 change in the administrative rules acts for which the consent 
 of Parliament was requisite, whilst under the normal con- 
 stitution the ordaining power of the Government, the grant 
 of corporative rights, etc., had sufficed for the current needs. 
 
 And if, further, the normal right of the Parliaments to vote 
 taxes was in itself compatible with the maintenance of the 
 royal prerogative, the Continental wars of England, and later 
 the American war, and still more the gigantic struggle with 
 the French Revolution, demanded such unheard-of resources 
 and loans for the State, that even in the former State of 
 the constitution, the monarchy, pro tempore, would have come 
 into an unusual state of dependence upon the tax- voting 
 Lower House. 
 
 With an empire in such a critical state, it was only too soon 
 perceptible that no royal council was any longer capable of 
 conducting the business of government even for a single year 
 if in antagonism with the Parliament ; the resulting 
 
 III. Relation of the Cabinet to the Parliament appears for 
 these reasons to be practically necessary as a continuous 
 understanding between the Government for the time being 
 and the " supreme council " of the King in Parliament, which 
 latter from its very nature, could only take an informal con- 
 fidential shape, so far as the initiative of Government measures 
 was concerned. 
 
 This new relation was necessitated by the now unavoidable 
 dependence of every administration upon Parliament, especially 
 in financial matters. Dependence upon Parliament, however, 
 means dependence upon the majority in the Houses, that is, 
 upon the parties for the time being predominating in it. 
 
 The more difficult it was to carry through new laws and 
 measures in the great representative body of the realm, the 
 more necessary did it become to undertake the task of carrying 
 them through only by the agency of compact parties, under 
 the advice and co-operation of their most able leaders. In 
 spite of the counter-endeavours of the Crown, the system of 
 party government accordingly came more and more into 
 vogue, and in the continual fresh and more critical situations, 
 there remained at last no choice but to commit the conduct of 
 the affairs of State immediately to the leaders of the most 
 strongly organized party. 
 
 The principal danger that attended such party governments 
 in former generations was removed by the present form of 
 administrative law ; party government was not developed 
 until the whole of the internal government of the country 
 had been rendered independent of the principles of the
 
 The Relations of the Crown to Parliament. 687 
 
 dominant party. A Whig and a Tory ministry meant under 
 these conditions only new schemes of bills, new financial 
 measures, and a new line of foreign policy ; whilst the judicial, 
 police, financial, military, and ecclesiastical government kept 
 on its established customary course. 
 
 Thus, after a century, the place of the "confidential men" 
 in the cabinets of the Stuarts, was taken by the "confidential 
 men" of Parliament in the ministry (the cabinet in the 
 modern sense). In the first generation of the period these 
 were almost entirely nobles of the Upper House, because 
 (in consequence of the Eevolution) the dominating influence 
 of great noble families preponderated in the Lower House 
 also. But later, with the increasing competition of the 
 principal debaters in the Lower House, the ruling class upon 
 its broader basis began to be more independent in the money- 
 voting body (as was the case at the time of the Eestoration), 
 yet still decisively influenced by old and powerful family con- 
 nections, such as are generally formed of a fixed and secure 
 class -predominance. 
 
 In consequence of the abnormally increased pecuniary needs 
 of the country under George III. the central power in the 
 State had unmistakably fallen into the Lower House, and 
 for a century past in England the only fear has been not of an 
 abuse of the executive power as against the majority, but of 
 an abuse of the executive power by the majority. The Parlia- 
 ment, and especially the House of Commons, instead of con- 
 trolling the government of the State, and calling ministers 
 to account, has, in an increasing degree, itself become the 
 ruling body. Its majority no longer merely controls the 
 central government, but even designates the rulers them- 
 selves. The legal responsibility retires before a "political" 
 responsibility, that is, before a system of change of ministry 
 dependent on the relations of parties in the Lower House.*** 
 
 The rapid alternation of these party ministries is not owing 
 to a general "constitutional" principle, but once again to the 
 peculiar position of the British empire. There have been, 
 since the commencement of the parliamentary method of 
 government, only a few epochs, in which a permanent policy 
 has been clearly and fixedly laid down for a government : the 
 epoch of the consolidation of party government under the 
 
 *** Herein also the question is one isolated instances ; for since that time, 
 
 of a change in the relations of power. owing to the change in the position of 
 
 In the transition to the new method the ministry, a direct abuse of the 
 
 of government impeachments were executive power was almost impossible, 
 
 brought in the first generation after and the temptation to such abuse was, 
 
 the revolution against the highest in face of a predominating majority in 
 
 servants of the Crown in fifteen cases, Parliament, very small, 
 but since that time only in a few
 
 688 Constitutional History of England. 
 
 House of Hanover (Walpole's ministry), and the struggle 
 against the French revolution and the Napoleonic hegemony 
 (Pitt's ministry). But as a rule the position of the British 
 empire throughout the world in its great changes of political 
 and commercial relations to foreign countries, and to the 
 colonies, as well as the very heterogeneous composition of the 
 elements of the empire, necessitated such a frequent change 
 of measures, that the laboriously settled programmes of party 
 leaders and parties could not suffice for the new position of 
 affairs. A short continuance of the ministries in power was 
 accordingly the rule even in the eighteenth century. At every 
 fresh change, however, the experience was repeated that the 
 necessary unity of action could only be attained if the ministry 
 in office was composed of men who were agreed in principle 
 as to the chief measures to be adopted by the ministry, and 
 who on these points already commanded, or had the means 
 to command, a majority in both Houses. 
 
 In no one of these stages of development did the new 
 method of government depend upon law, but everywhere upon 
 a tacit understanding between the leading statesmen and the 
 opposition, that is, upon the acknowledgment that a govern- 
 ment of Great Britain by both Houses of Parliament could 
 only be carried on upon these lines. 
 
 NOTE TO CHAPTER LIII. Whether and the great seal necessitate that a 
 government by a cabinet is constitu- person can never be wanting to bear 
 tional or unconstitutional has been the political responsibility. From the 
 the subject of political controver- nature of the case the present form of 
 sies. A careful examination of the transaction between a ministry and the 
 question is to be found in Hallam, majoritiesoftwoHousesof Parliamentas 
 " Const. Hist.," iii. c. xv. It is true to the initiative in government measures 
 that no English law recognizes a could be as little fixed by law as the 
 cabinet as a constitutional body, that forms of negotiation with foreign powers 
 the members, as members of such as to alliances and treaties of peace, 
 cabinet, have no legal rights or duties This form of government would cer- 
 whatsoever, but solely as members of tainly be liable to the severest censures 
 the Privy Council. The existence of a if the exercise of the existing public 
 cabinet is declared by no official act, law (as on the Continent) were depen- 
 and its members are not made known dent in any manner upon such irre- 
 to the public, to the authorities in the eponsible meetings of party men. But 
 State, or to Parliament. Blackstone the entirely different position of the 
 and De Lolme, in their treatises, do not administrative law gives to the ques- 
 even mention the name " cabinet." It tion for England a totally different 
 is also true, that the responsibility of aspect from that for a ministry of the 
 the ministers is in some measure continental states. In spite of the 
 relieved by the formlessness of this cabinet the government remains a 
 council of ministers, of whose proceed- government by law, protected against 
 ings no official record is wont to be the danger of a party administration, 
 kept. A legal rule, as to what members, William the Third's resistance at first 
 how many members, and with what to the formation of party ministries 
 forms are to be summoned to the council, was very conceivably due to the feel- 
 bad never existed, and from the nature ings and the traditions of the monarchy, 
 of the case could not well be prescribed But he himself in the course of time 
 for a Privy Council of the King. The became convinced that the initiative of 
 gradations of the signet, the privy seal, new measures in this State could only
 
 The Modern Ministerial System. 
 
 689 
 
 proceed from party ministries essen- 
 tially united in their intentions, and 
 with a united scheme of action. He 
 tacitly permitted that only active 
 members and a few other members of 
 their confidence should be summoned 
 pro forma to the sittings of the Privy 
 Council, and in like manner the oppo- 
 sition conceded the point. Since that 
 time the practice has been observed 
 which silently excluded the non-con- 
 fidential members from the delibera- 
 tions of the council. Once more, at 
 the deathbed of Queen Anne, was the 
 old constitution in some measure re- 
 vived. Bolingbroke and his adherents 
 in the cabinet had already resolved 
 upon the succession of the Stuarts, 
 when the Dukes of Argyle and Somer- 
 set suddenly made their appearance in 
 the council chamber, took their places, 
 and declared that in view of the dan- 
 gerous state of the Queen, although 
 not specially summoned, they offered 
 their assistance. They proposed that 
 the royal physicians be heard, upon 
 whose report it was resolved at onoe 
 to appoint to the office of Lord of the 
 
 Treasury, and to propose to her Majesty 
 the Duke of Shrewsbury in that capa- 
 city. Here was again an open place 
 left for the latent powers of the King 
 in council. On George the First's 
 accession the Privy Council was dis- 
 solved, and a new one formed of thirty- 
 three members ; but it was again re- 
 solved that only eight members should 
 belong to the cabinet (Nottingham, 
 Sunderland, Somers, Halifax, Towns- 
 hend, Stanhope, the Lord Chancellor, 
 and Marlborough). Since then the 
 number of the nominal members of 
 the council has steadily increased by 
 members of former ministries and the 
 honorary Privy Councillors being 
 habitually continued in the list, and 
 also re-confirmed after the accession of 
 a new sovereign, so that at the present 
 day the list contains more than two 
 hundred persons, among whom a cor- 
 porate discharge of business would be 
 practically impossible. As to the func- 
 tions of the Privy Council as they are 
 now, and its divisions, cf. Gneist, 
 " Englisches Verwaltungsrecht," vol. 
 ii. pp. 72&-761. 
 
 CHAPTER LIV. 
 
 dissolution of tfje (Stoat (&flfas ^e transition 
 to tf) JWotem .Pltntsterial 
 
 A FURTHER consequence of the transformation of the Privy 
 Council into a movable cabinet was the slowly but steadily 
 progressing absorption of the historical great offices into the 
 modern system of a ministerial administration) which becomes 
 more and more bureaucratic in its character, and which, 
 besides the minister, generally receives from the Upper or the 
 Lower House one or two members of Parliament as represen- 
 tatives of the department. 
 
 The cabinet was at first formed almost exclusively of mem- 
 bers of high nobility. The predominating regard paid to the 
 Upper House was not only rendered requisite by the necessity 
 of its consent to every important measure, but also in an even 
 greater degree by the increased influence of the great families 
 during the revolutionary period, families, themselves the heads 
 
 2 Y
 
 690 Constitutional History of England. 
 
 of the ruling class, who by their mutual connections and local 
 influence in the county and borough towns, represented the 
 most compact power in the State. Gradually, however, the 
 necessary consideration due to the body of the Lower House 
 asserted itself, and Walpole, who was at first only appointed 
 paymaster-general, obtained after 1721 even the leadership 
 of the cabinet. From that time forth it became the custom to 
 give certain principal debaters a seat in the cabinet, and now 
 a system of the distribution of the offices was formed 
 generally on the following lines : 
 
 The court offices are still engrossed by the heads of noble 
 families, or their relations ; without any direct share, indeed, 
 in the conduct of business, but with a high honorary rank, 
 considerable salaries, and an assured influence at court. 
 
 The great offices of State always fall to a great extent to 
 the noble members of the dominant party, who have also in- 
 fluence in Parliament, special regard being paid to the party 
 relations of the Lower House ; for this reason, in the eighteenth 
 century, a considerable number of ministerial offices are also 
 given to members of the Lower House, who do not belong to 
 the peerage. 
 
 A change of ministry is followed, according to party usage, 
 by changes in the representative court offices, in the under 
 secretaryships, and in some subordinate offices (altogether 
 about half a hundred), whilst in the permanent service, only 
 those offices which become vacant in the course of the period 
 of the administration fall to the patronage of the ministry and 
 its friends.* 
 
 The arrangement in detail was carried out according to a 
 gradually established practice by the leader of the party, 
 authorized by the Crown, due regard being naturally paid to 
 the merits of rising members ; firstly, to merits in parlia- 
 mentary debate, and secondarily, also to merits in administra- 
 tion. Since the share of the members of the Lower House 
 has increased, a homo novus occurs now and then among the 
 leaders of the party. In order, however, to give greater 
 elasticity and solidarity to the cabinet, an important change 
 was seen to be necessary viz. the dissolution of the old 
 great offices; which necessitates once more a reference to 
 the offices of the Privy Council in its old organization. 
 
 * The formation of the ministerial paratively unnecessary offices with 
 
 department is only touched on by high salaries were retained and various 
 
 Blackstone and his commentators, with new ones created, to draw the members 
 
 relation to the statutes passed with of the Upper and Lower House into the 
 
 reference to it, which give no picture temporary administration and into its 
 
 of the true administration. The cen- interests. To characterize the method 
 
 tral administration was even in the of this central administration I add in 
 
 eighteenth century exceedingly com- the following notes certain dates from 
 
 plicated. A number of old and com- the middle of the period (1755).
 
 The Modern Ministerial System. 691 
 
 1. To the Lord Chancellor have been delegated numerous 
 other powers in addition to his original functions. He can, 
 therefore, of course, only personally administer his judicial 
 office in the most important cases. Beside him, the Master 
 of the Eolls holds a separate court as Vice-Chancellor; his 
 Masters in Chancery become counsellors making reports upon 
 the higher judicial and official business. The rest of the 
 enormous mass of business is carried on as usual in permanent 
 offices. The Lord Chancellors, who go out of office with the 
 parties, exercise, as such, no important influence upon the 
 administration, but they have the patronage of a very large 
 number of highly paid offices. (1) 
 
 2. The Lord Treasurer in the eighteenth century appears as 
 a rule the leading Minister of State. As the Lower House 
 disposes of the national purse, a strong representation of the 
 commoners was necessary in this department. Since George 
 I., therefore, the powers of the Lord Treasurer were made over 
 to a body, consisting of 
 
 (1) A First Lord Commissioner, either a peer or a commoner. 
 
 (2) Three or four Junior Lords ; among them, if possible, a 
 Scotch and an Irish member. 
 
 (3) The Chancellor of the Exchequer, who is the second 
 principal member of the commission, and always a member of 
 the Lower House. This constitution of the central depart- 
 ments as a board is, however, now merely a nucleus for the 
 formation of a number of higher offices. The First Lord has 
 as a rule, as presiding minister, the general control of the 
 administration, without any special connection with the 
 financial department. The Junior Lords are confidential 
 men selected from Parliament, who confine themselves to 
 counter-signing important decrees. The head of the finance 
 department is the Chancellor of the Exchequer alone. If 
 the Premier (First Lord of the Treasury) is a member of 
 the Lower House, he can be at the same time Chancellor of 
 the Exchequer; if he is a peer, the offices are always distinct.(2) 
 
 (1) The department of the Lord Lord Chancellor" consisted in 1755 of 
 Chancellor with its permanent bureaus the Lord Chancellor, the Earl of Hard- 
 is scarcely materially altered by a wicke (at a salary of 2100 and fees ; 
 change of party ministries. It is greatly together more than 7000), the Master 
 to the honour of the ruling class, and of the Bolls, twelve masters in Chan- 
 of the legal profession, that this great eery, a principal registrar, the Duke of 
 Chancellor has always preserved the St. Albans, with two deputies, the 
 spirit of judicial administration. Out clerk of the hanaper (the Duke of 
 of regard to the Upper House, in which Cbandos) and deputies, etc. (more 
 he presides, the Lord Chancellor is than one hundred officials in permanent 
 now always raised to the hereditary service). The Duchy of Lancaster con- 
 peerage. At times this office also is tains an imitation of the Chancery on 
 ' put into commission, and then a com- a small scale, altogether about thirty 
 missionary speaker of the Upper House sinecures, 
 is appointed. The great " Court of the (2) The department of the Treasury
 
 602 Constitutional History of England. 
 
 3. The Lord President of the Council loses with the council 
 his former importance. His office is an honorary one, like 
 that of a minister without a portfolio, and of itself is of no 
 decisive influence upon State business. 
 
 4. The Lord Privy Seal seals the orders or warrants for the 
 great seal, and accordingly is a controller of the ministerial 
 course of business, without a separate administrative depart- 
 ment. 
 
 5. The Lord Chamberlain's functions are those of superinten- 
 dent and censor of theatres. 
 
 6. The office of Lord High Constable has ceased to exist. 
 
 7. The Earl Marshal is head of the Herald's Office. 
 
 8. The office of the Lord High Admiral has resigned its 
 judicial business to the Court of Admiralty ; for the admini- 
 strative control, an Admiralty Office has been formed, con- 
 sisting of a First Lord of the Admiralty, and six Junior Lords 
 with a deliberative vote ; all of whom go out of office with the 
 ministry. (3) 
 
 9. 10. The Lord High Steward as active chief, and the 
 Lord Chamberlain for the court department of the wardrobe, 
 chaplains, physicians, etc., belong entirely to the royal house- 
 hold. 
 
 11. The Ordnance Office has consisted unchanged since 
 Charles the Second's time, of the Master of the Ordnance, 
 
 includes, as a rule, the Prime Minister, 7597. To the account side belong 
 
 First Lord of the Treasury, and the twelve for the most part very ancient 
 
 Chancellor of the Exchequer, in the offices. Still more numerous are the 
 
 capacity of minister of finance. The independently formed under-depart- 
 
 old Exchequer still continues as a very mentsof the Treasury ; theupper custom 
 
 cumbrous general financial control with office, the general excise office, the salt 
 
 numerous offices, whicli are now in commission, stamp office, land-tax 
 
 great measure sinecures for members commission, general post-office, and 
 
 of Parliament, and in part also are mint. Certain heads of the under 
 
 feudal hereditary offices. In the year departments (such as the department 
 
 1755 the Treasury consisted of a First of the demesnes and forests, and the 
 
 Lord, the Duke of Newcastle (8000), board of works) received occasionally 
 
 three Junior Lords (the Earl of Darling- a seat in the cabinet. Including the 
 
 ton, Viscount Dupplin, B. Nugent), under departments, the whole staff was 
 
 and the Chancellor of the Exchequer so enormous, that the Treasury alone 
 
 (Legge). The Exchequer consisted included about half of the whole civil 
 
 of the auditor (the Earl of Lincoln), service. 
 
 the clerk of the pells (Sir Edward Wai- (3) The Admiralty Department con- 
 pole), the four tellers (the Earl of Mac- sisted in 1755 of seven lords com- 
 clesfield, Hon. T. Townshend, Viscount missioners (1000). To this depart- 
 Royston, and H. Walpole), each with ment belongs a list of six admirals, 
 a deputy ; the two chamberlains. Sir nine vice-admirals, six rear-admirals, 
 S. Stewart, and Sir W. Ashburnham, and 237 captains. The Navy Corn- 
 each with a deputy ; several officers of mission consisted of a comptroller of 
 the Exchequer department, the usher the navy, nine higher officials, and 
 of the Exchequer (H. Walpole), pay- thirteen local boards for the arsenals; 
 masters, and so on. In the year 1780 the victualling department of the navy 
 the auditor of the Exchequer received consisted of seven commissioners, the 
 as pay 1-4,060, each of the four treasurer of the navy, etc. 
 tellers 7038, the clerk of the pells
 
 The Modern Ministerial System. 693 
 
 and five members, usually of Parliament, all changing with 
 the ministry. (4) 
 
 Still retaining their names, titles, pay and fees, four chief 
 departments of State have sprung from the old great offices. 
 
 (1) A principal Department of State and Finance. 
 
 (2) A Department of the Lord Chancellor. 
 
 (3) An Admiralty. 
 
 (4) An Ordnance Department. 
 
 To these departments are added others, which are formed 
 by dividing the department of the Secretary of State. From 
 the original position of a cabinet -councillor, the Secretary of 
 State came to conduct correspondence in the name of the 
 King with the local boards touching measures of internal 
 government and police, and to correspond with foreign envoys 
 and foreign cabinets, functions which, in consequence of the 
 altered position of the cabinet, were inseparable from parlia- 
 mentary party government. Immediately after the Revolution, 
 the Secretaryship of State, as an important office for a 
 high peer belonging to the dominant party, was divided be- 
 tween a first and second secretary. Under George I. the first 
 Secretary of State, Lord Townshend, was even regarded as 
 Prime Minister. After the union with Scotland, a third 
 Secretary of State was appointed, for Scottish affairs; but 
 his office was abolished after 1746. In the year 1768 a third 
 Secretary of State was created for the American colonies, but 
 his office was abolished in 1781. Meanwhile, by arrangement 
 between the two chief Secretaries of State, a division of the 
 business was effected, into a north and south department. In 
 the year 1781 a systematic division into a home department 
 and a foreign department was at last effected. In the year 
 1794 the relations with France necessitated again the appoint- 
 ment of a third Secretary of State, for war, to whom in 1801 
 was entrusted also the administration of the colonies. Ac- 
 cordingly at the close of the period, out of the Secretaryship 
 of State there had proceeded three further chief principal 
 secretaryships. 
 
 (5) A Principal Secretary of State for the Home Depart- 
 ment. (5) 
 
 (4) The department of Master of of two armies, 10,000 as commander of 
 
 the Ordnance existed formerly under the Dutch troops, 15,000 percentage 
 
 the Duke of Marl borough in a manner from the hired eoldiery, 5<iOO pension ; 
 
 that at once gives an idea of the Whig the Duchess held four court offices and 
 
 administration of those times. The a pension together amounting to 
 
 duke was Master of the Ordnance with 9500). The military branch of the 
 
 3000 salary, 1825 travelling ex- ordnance office includes a chief of the 
 
 penses, 1000 representation money, engineers, eight directors, etc., and the 
 
 and 2000 as colonel of the foot guards whole artillery. 
 
 (besides 7000 as plenipotentiary of (5) About the middle of the eigh- 
 
 the Netherlands, 10,000 as commander teenth century the Secretaryship of
 
 694 
 
 Constitutional History of England. 
 
 (6) A Principal Secretary of State for the Foreign Depart- 
 ment, to whom the diplomatic and consular system was sub- 
 ordinated. (6) 
 
 . (7) A Principal Secretary of State for War and the Colonies 
 (since 1816 principally confined to the administration of the 
 Colonies). (7) 
 
 Every secretary of State has as a rule two secretaries, 
 who here receive the title of under secretary. But still the 
 secretaries of State in the eye of the law are only considered 
 as one person ; the distribution of business among them is, 
 accordingly, a matter of administrative arrangement. 
 
 In the nineteenth century, I may say at once, this process 
 has been continued by the further division of the Secretary- 
 ship of State, and by the formation of central boards for new 
 branches of a newly organized administration by parliamentary 
 legislation (parliamentary boards). There have been added 
 in particular 
 
 (8) A Secretary for War who combines the old ordnance 
 office and sundry under departments in a single ministerial 
 department. 
 
 (9) A Secretary of State for India, after the older controlling 
 
 State still forms a whole in the sense 
 that the geographical division pre- 
 dominates, and the division of business 
 is subordinate. To the northern depart- 
 ment belong nine envoys and ministers 
 plenipotentiary, to the southern depart- 
 ment a like number, added to these 
 twenty-five consuls, twenty agents for 
 the colonies, etc. The pay of a Secre- 
 tary of State was in 1795 fixed at 
 6000, whilst under Elizabeth it had 
 only amounted to 100 with free table. 
 Since the systematic separation of the 
 Secretaryship of State for the Home 
 Department and for Foreign Affairs, 
 since 1782, the home department con- 
 sists in a very simple form of the Princi- 
 pal Secretary, two under Secretaries of 
 State and a moderate staff of clerks. 
 Connected with it is a series of func- 
 tions concerning the administration of 
 penal justice, which with us in Ger- 
 many are assigned to the ministry of 
 justice, whilst in England the office of 
 Lord Chancellor is essentially confined 
 to the province of civil justice. By 
 being combined with the home depart- 
 ment, criminal prosecutions and the 
 carrying out of the sentence of the law 
 especially gained a more elastic form. 
 
 (6) The foreign department consisted 
 since 1782 likewise of one Principal 
 Secretary, two under secretaries, etc. 
 
 (7) The department of Secretary for 
 the Colonies and War was so consti- 
 tuted, that sometimes the colonies were 
 the chief, and the war administration 
 the secondary department, and some- 
 times vice versa. To the colonial depart- 
 ment belonged, in 1755, an Auditor- 
 General of the Plantations (H.Walpole), 
 twenty-one governors with vice-govern- 
 ors, commanding officers, judges, and 
 attornies-general. The paid army was 
 in 1755 under two civil chiefs of second 
 grade, the Secretary at War, and the 
 Paymaster-General. The Secretary at 
 War (Henry Fox), and the Paymaster- 
 General (W. Pitt), form together the 
 general department of war. Here as 
 in all administrations of public money 
 the salaries were exceedingly high, and 
 were further increased by -the -balances 
 which the officials in consequence of 
 long delay in payments often retained 
 in their hands for years and could 
 make use of. The Paymaster-General, 
 for instance, in 1781 had 3061 salary, 
 but his balances for the twelve preced- 
 ing years amounted to 558,898. The 
 chief clerk had 460, which by fees 
 rose to 7159. A survey for this 
 time is given by Geisler, " Geschichte 
 Grossbrittanischen der Kriegsmacht" 
 (1784).
 
 The Modern Ministerial System. 695 
 
 office for the government of India had developed into a bureau- 
 cratic ministerial department. 
 
 (10) A Chief Secretary of State for Ireland. 
 
 From an extension of the poor office in our own day a 
 central board has proceeded for the modern system of local 
 administration by district boards (Local Government Board). 
 Under the name of committees of the Privy Council, a Minister 
 for Trade and a Minister of National Education have been 
 created. All new formations, however, follow the bureau- 
 cratic system of departments. According to the arrangement 
 of the cabinet for the time being, moreover, the Postmaster- 
 General, the Paymaster-General, the Chancellor of the Duchy 
 of Lancaster, and other officials of the second order can be 
 favoured with a seat in the cabinet, and be also made 
 members of the cabinet without portfolios, so that in the last 
 century the number of members with a voice in the cabinet 
 fluctuates between 10 and 17, and as a rule between 12 and 
 15. As well with regard to an easier arrangement in distri- 
 buting the places in the ministry, as also with regard to the 
 necessity of giving an elastic form to the ministerial adminis- 
 tration in an era of reforms, the determining of the com- 
 petence of the central boards by law has been avoided as 
 much as possible, the distribution of business among all 
 " secretaries of State " being rather regarded as a matter 
 purely of internal administration ; and in other respects also 
 a definition of the department by the legislature has been 
 avoided as much as possible.** 
 
 ** This question of constitutional cially treated by Gneist, " Gesetz und 
 law, which has been the object of much Budget " (1879. Abhandlung, ii.). 
 discussion in Germany, has been ape-
 
 696 Constitutional History of England. 
 
 CHAPTER LV. 
 ^formation of ^arltamentarg parties. 
 
 As the dependence of the central Government upon Parliament 
 has led in logical consistency to changes of ministries, so 
 also the ascendancy of the Lower House led to the fixed 
 organization of two parliamentary parties, which have since 
 the beginning of this epoch alternately taken the reins of 
 Government, the coalition ministries formed of both parties 
 each time representing only a short period. 
 
 This party formation is the expression of the fixed political 
 and social order, as it had now become perfected. It pre- 
 supposes a constitution recognized by all parties, the uncon- 
 tested position of a ruling class, and the internal harmony 
 in the intermediate links of local Government, as well as the 
 blending of the executive power with an ecclesiastical system 
 recognized as a national Church. So soon as this unity in 
 head and limbs has been attained, the fundamental conceptions 
 of the State appear in the simplest possible form as two parties. 
 
 The philosophical ideals of a perfect political system, 
 which without party strife shall unite together the natural 
 diversities of a popular will to a one-minded and undivided 
 will be it republic or monarchy, democracy or aristocracy 
 are based on a misconception of human nature. Man, as a 
 sentient animal, with his various necessities, is at all times 
 and in all places dependent upon the outward goods of nature, 
 the acquisition, possession, and enjoyment of which invariably 
 forges a chain of relations of dependence, which in innumerable 
 combinations form the firm strata of society, in which the 
 individual with his family, and every wider community finds 
 itself planted and bound in perpetual conflict with the 
 interests of others. In this perpetual struggle for existence, 
 in the constant endeavour to possess and to enjoy, to exclude 
 others from this possession and enjoyment, and in the con- 
 stant interest in getting rid of or diminishing personal depen- 
 dence, and in consolidating and extending the dependence of 
 others, every nation attains and asserts the greatest possible 
 measure of human liberty only in subordination to the absolute
 
 The Formation of Parliamentary Parties. 697 
 
 commands of a moral law in the Church and of a fixed 
 external legal order in the State. 
 
 After bitter struggles the English nation had at last suc- 
 ceeded in reconciling the violent antagonism between society, 
 State, and Church by internal perfection of structural cohesion. 
 But that which had been thus united was and remained a 
 twofold organism, built up of political and social elements, 
 in the whole as in part, and therefore in as constant movement 
 as the life of the individual, and on that very account the 
 subject of a double conception and double direction of effort, 
 according as the State is looked at from above or from 
 below, according as the necessary unity of the political will, 
 or the free will of the individual is taken as the starting 
 point, according as the sovereign right of the supreme ruler, 
 or the rights and liberties of the people are regarded as the 
 highest principle of the whole. In the Long Parliament of 
 Charles II. the great parties had become definitely distinct. 
 The web of religious and political views, obscure in the 
 civil wars and in the time of the Republic, has now become 
 disentangled into two fundamental systems, which since 1680 
 find their popular expression in the party names of Whigs 
 and Tories. As since the days of Magna Charta, with the 
 development of self-government, of the Great Council and of 
 Parliaments, the English conception of domestic policy is 
 characterized by practically grappling with its immediate 
 tasks, so after two generations of conflict between the ex- 
 tremes of Puritan and High Church theories, the pre- 
 dominating conception returned to that realistic tendency, 
 which conceives of and formulates political questions purely 
 according to the experiences of its own past. 
 
 The united gentry had overcome James II. The constitu- 
 tions of Parliament, the county, and the corporations, as well 
 as the whole legal system of the country, was declared to 
 be inviolable by royal prerogative. The mutuality of the 
 relation of rights and duties between the people and the 
 Crown had, owing to the open breach of it on one side, again 
 come to be clearly understood, and enforced as an " original 
 contract " between King and people. The inviolability of 
 the popular rights had even been sanctioned by the expulsion 
 of a dynasty, and the legality of this event had become 
 a necessary condition of the existing constitution. In the 
 eyes of the one party this appeared to be the highest principle 
 of civil liberty in the State : the right of resistance to the 
 Crown in the event of unconstitutional encroachments; 
 resistance the watchword of the Whigs. 
 
 On the other hand, it is after all only the ruling class that 
 actually exercises political rights. It controls the central
 
 698 Constitutional History of England. 
 
 administration through Parliament and the county through 
 the office of justice of the peace. It needs accordingly a sanc- 
 tioning authority in order to command the obedience of the 
 lower classes. The million does not regard it as a ruler in its 
 own right ; it merely exercises its powers in the name of the 
 King in Parliament and the King in council. Only as far as 
 the reigning class itself obeys a moral law, which is incor- 
 porated for all classes alike in the Church of England, is a 
 moral use of its power guaranteed ; as on the other side for 
 the mass of the people obedience arises not so much from a 
 commandment of reason as from a feeling of duty and belief. 
 In the eyes of the other party the highest principle was 
 " Throne and Altar" or rather, with an intentional reversion 
 of the words, Church and Crown the watchword of the Tories.* 
 
 Both party principles are reflexes of one and the same 
 condition of things, linked together like the actual State and 
 society in England. They are the conflicting creeds of the 
 Middle Ages, which survive in a higher development in these 
 parties : in the Tories the idea, inherited from the Church, 
 of the necessity of a firmly established permanent executive 
 power as the basis of civil order ; in the Whigs the confederate 
 ideas of the Germanic community as the basis of constitu- 
 tional liberties. The political ideas which in the Middle 
 Ages were divided between imperium and sacerdotium have 
 now become fundamental conceptions within the political 
 unity of the State. Both parties accordingly recognize each 
 other, however far their ideas concerning the development of 
 the constitution and the policy of the administration may 
 differ. 
 
 Under the names of Whigs and Tories, throughout the whole 
 of the eighteenth century, the wealthy classes gave the 
 Government its policy closely bound up with hereditary 
 family traditions and the social interests of the gentry. The 
 battle cries of the parties were at the commencement of the 
 century still resistance and non-resistance ; then the Stuarts 
 and Hanover, then the American war, and then the French 
 revolution. During the greater part of the century the Whig 
 Government, with its recollections of the encroachments of the 
 Crown, was on the whole in an ascendency ; during the last 
 decades of that century, when the obedience of the lower 
 classes was distrusted, the Tory Government decidedly pre- 
 dominated. But both parties are primarily factors of the 
 
 * During the civil war Cavaliers and Exclusion Bill Petitioners and Ab- 
 
 Boundheads were distinguished ; in horrers ; and immediately following 
 
 the movements of the Restoration, these, Whigs and Tories, which were 
 
 Royalists and Presbyterians, the court first used as terms of contempt at the 
 
 and country party ; at the time of the elections of 1680.
 
 The Formation of Parliamentary Parties. 699 
 
 ruling class, with great noble families at their heads. In the 
 parliamentary elections a fluctuating majority is seen in the 
 wider circles of the gentry and the enfranchised middle classes, 
 which is not accidental, but in visible connection with neces- 
 sary movements of the legislation, and the financial and foreign 
 policy. Naturally, the views of the individual regarding the 
 State are determined by individual experiences of life and by 
 the general tendencies of the human mind ; in this sense a 
 Whig or Tory tendency may be found in every social group 
 and in every individual. England's past has displayed in 
 this matter a two-sided view, in exceedingly rich and vivid 
 pictures, in which sometimes fear of " unbridled licence " in 
 the people, and sometimes fear of " encroachments " of the 
 Government obtained the upper hand. 
 
 The reasons urged in support of these theories are in 
 harmony with the state of culture of the times. The theo- 
 logical reasons, from the standpoint of the Episcopalians and 
 the Puritans, had in the course of the civil war and the Be- 
 public become much secularized. What still remained of them 
 after the Eestoration is less an expression of religious convic- 
 tion, than the affected party language of a political clergy. 
 The theory then prevailing derives the system of political 
 government from the nature of mankind. On the one side, 
 from the nature of freewill, was evolved the theory of " State 
 contract," which in Locke's system is an abstraction of the 
 English county and parliamentary constitution ; on the other 
 side a system of inherited "authority" is derived from the 
 feeling of dependence and from the necessity of government 
 which inevitably results from the nature of society. The 
 influence of wealth upon the form of the State had not as 
 yet in England attained to a systematic conception, but still 
 lived in the consciousness of the nation as an important factor, 
 after the experiences of the constitutional struggles. In 
 Hobbes, the fundamental conception is clearly abstracted from 
 the impressions of the civil war. This empirically national 
 tendency has, since the seventeenth century, given both 
 parties an historical point of view, the standard of which on 
 the one side was the sovereign power of the Norman kings, and 
 on the other the traditional liberty of the Saxon communities. 
 But the enormous number of precedents was subjected to 
 such a various classification according to previously adopted 
 points of view, that even history, under the hands of partizans, 
 changed its form, and the experiences of the past were no sure 
 guide for the present.** 
 
 ** For the theological reasons I may alistic ground. The theories then pre- 
 refer to Chap. xxxv. The eighteenth valent basing government upon the 
 century stands essentially upon ration- nature of the human will, do not so
 
 700 Constitutional History of England. 
 
 Though the leading spirits both in Church and State 
 regularly move in one party direction, yet the policy of both 
 parties was limited by the administration of justice, and its 
 further development into jurisprudence. The conservative 
 feature of the constitution of Parliament, which accumulates 
 customary law and statutes from generation to generation, 
 and makes all changes in them dependent upon the agree- 
 ment of all three factors of the legislature, had left behind a 
 positive system of legal principles, which in defmiteness left 
 much, in specialty little, to be desired. Upon this given basis 
 both parties found their hold. Both alike condemned the 
 Stuarts' treatment of the tribunals, and by tacit agreement 
 put an end to the abuse of the judicial power to serve party 
 ends. With this century there begins for England a new era 
 of judicial purity. A feeling engendered of bitter experience 
 withheld the parties from meddling with the time-honoured 
 constitution of the tribunals, and the legal institutions. In 
 them was found the buttress of public and private law, as 
 well as a judicial firmness of character, which among the 
 conflicts of the day established and developed the existing 
 law. The commentators upon English law endeavour to 
 shape their matter in some measure according to principal 
 points of view and maxims. From laws, precedents, and 
 leading judgments there becomes formed a continually pro- 
 gressing, judge-made law, similarly to the manner in which 
 
 entirely in England, as on the Conti- genealogical tree ; its pious forgeries 
 nent, overlook the fact that the State reach back even into the thirteenth 
 is no product of the abstract will, but century (modus tenendi parliamentum). 
 that it rests like the individual man " Thus, in our country," says Macau- 
 upon the basis of property and labour, lay, " the dearest interests of parties 
 and upon the needs, interests, classes, have frequently been staked on the 
 and ranks thereby produced. For this results of the researches of antiquaries, 
 reason, in the seventeenth century, the The inevitable consequence was, that 
 historical method began. In this direc- our antiquaries conducted their re- 
 tion the works of Selden, Prynne, searches in the spirit of partisans. It 
 Cotton, and others are of lasting value, is therefore not surprising that those 
 but they hold too much to the ex- who have written concerning the limits 
 ternal appearance of the precedents. of prerogative and liberty in the old 
 The one-sided deductions which (for polity of England should have gene- 
 instance) Brady and his school drew rally shown the temper, not of judges, 
 from true facts, made it a national but of angry and uncandid advocates, 
 duty to argue away the whole form of ... With such feelings, both parties 
 the Norman State by assigning to old looked into the chronicles of the Middle 
 indefinite expressions the later par- Ages. Both readily found what they 
 liamentary meaning, taking certain sought, and both obstinately refused to 
 maxims from the connection subsisting see anything but what they sought" 
 between various generations, and bind- (" History of England," c. I.). A prin- 
 ing them together by the logic of later cipal magazine for these arguments is 
 jurisprudence. This picture, devoid Tyrrell, Bibliotheca Juridica, 1694. 
 as it was of perspective, was called in As to the English party literature 
 England the " history of law." It generally, cf. E. v. Mobl, " Litteratur 
 has found for the Lower as well as for der Staats-Wissenschaften," vol. ii. pp. 
 the Upper House a highly respectable 38, seq.
 
 The Formation of Parliamentary Parties. 701 
 
 the Roman jurisprudence developed its law from the ratio and 
 from an originally scanty legislation. A systematic support 
 was finally given to it by Blackstone's celebrated commenta- 
 ries.*** The chief merits of this work are impartiality and 
 perspicuous and pleasing description, together with a wonder- 
 ful optimism of feeling which could, in a time of the open 
 corruption of a Whig administration, form an ideal of the 
 English constitution. Although the real practical basis of 
 the English political life, self-government and the adminis- 
 trative organism are only fragmentarily treated, yet this 
 treatise has, owing to its connection with a classical educa- 
 tion and Montesquieu's division of powers, entirely influ- 
 enced continental ideas of the English constitution down to 
 the present day. 
 
 *** The party colouring of the his- partiality which pays due deference to 
 
 torical, philosophical, and religious con- the constitutional advocates of both 
 
 ception gave the legal profession, which parties, and after weighing the pro 
 
 was kept distinct from both universi- and cons, the facts and the reasons, the 
 
 ties, its high importance for the public precedents of ancient times, the Middle 
 
 law. But as the decisions and grounds Ages, and modern times, draws con- 
 
 for the decisions of the English juris elusions according to the custom of 
 
 auctores in their great collections were the judicial office. The clearness and 
 
 inaccessible to the Continent, the elegance of the treatise have made 
 
 systematic compilation in Blackstone Blackstone the centre of what is called 
 
 became almost the only source of know- English constitutional law. And the 
 
 ledge for the European world. Its modern science of constitutional law 
 
 merits do not lie in comprehensive his- has not advanced in England much 
 
 torical investigation, nor in depth of beyond commentaries on Blackstone. 
 philosophic theories, but in the im-
 
 702 Constitutional History of England. 
 
 CHAPTEE LVI. 
 anto practice of ^adtamentarg $artn drobenxment. 
 
 PARTY ideals, like those of a concentrated popular will, cannot 
 be realized without a constant appeal to social forces and 
 interests, which are at all times difficult to concentrate upon 
 one aim. For every important measure, necessitated by the 
 position of State or society, the cabinet needs in this constitu- 
 tion the consent of a majority in both Houses of Parliament, 
 which involves a very high degree of self-control, subordin- 
 ation, and discipline, such as in Parliaments can only be 
 acquired by a continuous discharge of the ardua negotia 
 regni, and in the constituencies only by firm cohesion and 
 by similarity of bases, as well as by the habit of common 
 activity. 
 
 Every revolution, even the most justifiable and successful 
 one, is a misfortune for a nation, because it shakes those 
 cohesions and habits to their foundation, partially breaks 
 through them, and occasions a storm of all the elements of 
 social contrasts, the waves of which are scarcely calmed 
 down in a single generation. It was a blessing for the nation 
 that the greatest statesman of the time, William III., with 
 the cool glance of a helmsman, steered the tempest-tossed 
 barque of the State for half a generation. During this critical 
 time the Crown still retained in its hand the initiative 
 and the appointment of the ministers, even in spite of six 
 changes of the cabinet, and an enforced regard to the 
 party combinations in the Upper and Lower House. The 
 great Prince of Orange did not succeed in gaining the thanks 
 and acknowledgments of the parties, the sympathies of the 
 nation, or even any appreciation of his policy. 
 
 With William's death this leadership ceases, and the 
 return of the sway of the noble parties, which was so dis- 
 astrous in former centuries, is now combined with the party 
 system of the financially powerful Lower House. Under the 
 vacillating Anne, party policy was so closely bound up with 
 the interests of families and factions, that the constitutional 
 ideals of both parties are sought for in vain. Upon the 
 banner of the Whigs is emblazoned : Septennial Parliaments ;
 
 Theory and Practice of Party Government. 703 
 
 the French war ; the old commercial policy ; no Popery. 
 Upon the Tory banner : Triennial Parliaments ; opposition to 
 the French war, to protective duties, and limitations of trade ; 
 union with the Catholic faction in England, and with the 
 national party in Ireland. Even the glory of the English 
 arms is only reckoned as a party factor. The leading men 
 are either without moral worth, or their great qualities are 
 blended with meanness, as in the case of Marlborough. At 
 Anne's death the return of the Stuarts seems almost to turn 
 upon an intrigue of the nobility, which was frustrated by a 
 counter-intrigue. 
 
 It was only on the accession of the House of Hanover 
 (1714) that the permanent ascendency of the great noble 
 party, which had stood at the head of the resistance to the 
 Stuarts, was secured. And with the consciousness of its 
 decided superiority, the great noble league also regained a 
 feeling of responsibility for the welfare of the country. But 
 to gain the Parliamentary majorities necessary for the con- 
 duct of the political Government, the noble league had no 
 longer at its command the old resources and ways of the 
 monarchy, but only a shrewdly calculated exercise of the 
 ministerial patronage of honours and offices, a careful utiliza- 
 tion of personal and local interests, together with a strict 
 party discipline for gaining and maintaining majorities. It 
 was not easy to accustom English politicians, whose feeling 
 of individual independence, and whose obstinacy are not less 
 decided than those of the Germans, to that strict subordin- 
 ation under a party rule which is the essential condition of 
 a parliamentary party Government. It required more than 
 a whole generation, before the schooling of parliamentary 
 parties under the discipline of an acknowledged leader was 
 complete. The extension of the periods for which Parlia- 
 ments were summoned from three to seven years by the 
 Septennial Act (1 George I. ch. 2, c. 38), was very conducive 
 to this end. Down to the ministry of the younger Pitt, 
 intrigue and desertion is an only too frequent phenomenon 
 in the party. But the actual necessity for a concentrated 
 will in the conduct of the State, and the charm of political 
 power at last solved this problem also.* 
 
 * With every change of situation the consent of many hundred in- 
 
 the experience was repeated, that with- telligent, influential, and independent 
 
 in this fixed rigid framework of public men, causes a clumsiness in a govern- 
 
 law a cabinet of solidarity, in close ment by party, which only English 
 
 connection with both Houses of Parlia- energy, with its party discipline in tho 
 
 ment, had become an absolute neces- form of a cabinet has, in the course of 
 
 sity, because without it any movement two generations, overcome. Real pro- 
 
 in the political body did not appear gress, even in this more practicable 
 
 possible. The tremendous difficulty of form, is difficult enough, even at the 
 
 gaining for every important measure present day, and every initiated per-
 
 704 Constitutional History of England. 
 
 This Whig Government continued for nearly fifty years, 
 and by systematically availing itself of all the powers of 
 Government, succeeded in mastering the Tory opposition, 
 consisting of country squires and clergy. But in doing this 
 it certainly lost the ideal foundation of its party policy, now 
 that its principle of "resistance" had lost its object. It is 
 now nothing more than a combination of great noble families, 
 which by agreement with the borough interests maintains 
 a majority in the Lower House ; but on that very account 
 gradually spJits up into intriguing coteries. The nation, 
 however, accustoms itself to the ways of a party Government. 
 Walpole's administration again strives for the systematic 
 advancement of material interests, and deserves well of the 
 country, whose commerce, finances, and general prosperity it 
 promotes. But in all personal relations intrigue and a 
 commercial spirit predominated. The method of bribery in 
 Parliament first of all showed itself in the form of "retain- 
 ing fees " for the Scotch members, and developed itself further 
 into direct money payments, pensions, and sinecures. The 
 rule of George I. and George II. allowed this manipu- 
 lation of parliamentary majorities to proceed. Their Ger- 
 man electorate was more intelligible to both than were the 
 mysteries of the English Parliament. George I. did not even 
 know the English language. Their civil list was punctually 
 paid ; the Whig Government did not even disdain to pay 
 every mistress of George I. 10,000. The extension of the 
 duration of Parliament from three to seven years, the im- 
 moderate personal pretensions of the members of Parliament, 
 and the overgrowth of conflicts of privilege, as at the time of 
 the Restoration are all characteristic features of this period 
 of development of party government. In the interior of the 
 country, throughout all these changes, the local government 
 pursued a steady course, and this habit of common action 
 begins again to react upon the Parliament. 
 
 George III. (1760-1820) ascended the throne with the 
 firm resolve to break down the party government he found 
 existing, and to assert the personal will of the monarch in 
 the State. But in order to defy a party government which 
 had consolidated itself for two generations, there would have 
 been requisite a commanding intellect, the solution of a great 
 
 son knows what difficulties, now as his own future, to unite in adopting 
 
 formerly, the apparently omnipotent resolutions. That eternal problem, how 
 
 Prime Minister has to overcome, not in a free State to bleud the diversities 
 
 only above and below, but also in the of individual wills together into one 
 
 circle of his own colleagues, before he united and single will of the State, 
 
 succeeds in inducing a cabinet of a is concentrated in an English cabinet 
 
 dozen capable men, every one of whom as in a focus. 
 has his own system, his own past, and
 
 Theory and Practice of Party Government. 705 
 
 national task, and a judicious choice of prominent men, who 
 were really fitted for the leading offices in Parliament. But 
 the youthful monarch failed during the first twenty years 
 of these attempts, quite as much in measures as in the 
 lack of competent men. George III. certainly succeeded, . 
 by his personal adherents (the King's friends), in perpetually 
 thwarting the sway of the parliamentary parties, and more 
 than once, though with the best intentions, he injured the 
 true interests of the State. But all the less did he succeed 
 in defeating the established power of the noble parties ; ill- 
 timed endeavours of this kind even compelled him to accept 
 for the first time a united ministry (1782) against his openly 
 declared will. 
 
 But, nevertheless, the King had again become a positive 
 factor in the State-system, and regained influence when, in 
 conjunction with the regenerated parties, he began to pursue 
 popular aims. Such tasks had again arisen for the English 
 Government with the war against the American colonies ; 
 the highest tasks arose in the gigantic struggle against the 
 French revolution. It was certainly only after the Crown 
 entered once more into the struggle of the parties that the 
 epoch of great statesmen begins, with whose names modern 
 European opinion of the English constitution is intimately 
 bound up. Even in this time the position of the parties 
 remains a labyrinth of personal relations, and the system of 
 corruption spreads, after the accession of George III., from 
 the Lower House to the small boroughs. The real task of 
 George the Third's life, as that of his statesmen, was only 
 found in the great struggle against France, the social revolu- 
 tion in which country was diametrically opposed to the inmost 
 nature of English society. In the period of this struggle 
 Pitt's commanding intellect was at the head of a well-disci- 
 plined party, which, hand in hand with the King and the 
 masses of the people, wielded a safe majority in the Lower 
 House and an enormous political power until the national 
 cause triumphed (1815). 
 
 There is certainly a curious contradiction in the fact that 
 every new contribution to historical literature and memoirs 
 brings to light new weaknesses in the times and in the men 
 who adorn the acknowledged zenith of parliamentary govern- 
 ment. But the reasons for this phenomenon are invariably 
 contained in the nature of a self-governing society, and are 
 accordingly repeated in every analogous period, and in the 
 period of glory in every republic. The party government 
 then in power, which required for every important act of 
 Government the support of social forces, found itself face to 
 face with a new and serious necessity. Now that it was no 
 
 2z
 
 706 Constitutional History of England. 
 
 longer practicable, in view of the powerful influence of the 
 press, to buy the votes of individual members of Parliament, 
 the parties at this time began to gain and to maintain the 
 constituencies by artificial means. The immediately effectual 
 means, that of employing the police-power and the " super- 
 intending power of the State " to promote ministerial elections, 
 of which the constitutional ministers of the Continent soon 
 learnt to make use in order to defend their position, was 
 denied to England. As the system of self-government, and 
 the administrative jurisdiction did not permit of any threats 
 of " disadvantages " to influence the elections in favour of 
 the Government, there remained nothing left but the promise 
 of " advantages " a kind of bribery certainly not for private 
 interest, but for the purpose of carrying through a system of 
 government considered to be right. A broad field for this was 
 furnished by the small boroughs and Scotch constituencies, 
 so that at the turning-point of the century the disbursements 
 of the "borough-mongers" were reckoned at 1,200,000, in 
 which system the rich self-made "nabobs" of the citizen- 
 class vied with the country gentry. It is this system which 
 disfigures the most glorious epoch of parliamentary govern- 
 ment, and ever afresh brings before our eyes the fact that 
 the real Parliament was in no wise a mirror of virtue, and 
 that the mere history of the party systems, party men, and 
 their great mass of family connections, with all human weak- 
 nesses and jealousies, scarcely allows of the greatness of this 
 political system in its full development being understood or 
 even dreamt of. And yet it has probably never been different 
 in any free constitution. Eest and progress in the State alike 
 demand in such a constitution a spontaneous party activity 
 when in conflict with the antagonistic party, which brings 
 society in wider and wider spheres into a state of discomfort, 
 or else excites its deepest passions. This continual bringing 
 together of a number of individuals to a unity of will, neces- 
 sitates the employment of artificial party means, the subor- 
 dination of the individual will to the iron discipline of party, 
 and so much resignation on the part of the individual, so 
 many feelings of vexation, and so much self-denial on the 
 one side, and disappointment on the other, that the period 
 of a free State is never a time of comfort and contentment 
 for society. The mutual public criticism of party views may 
 lead to undivided blame, but never to undivided recognition, 
 for the test of character to which every person in a party- 
 conflict is subjected is passed even by the best men of the 
 time only according to the measure of human faculty. Such 
 a system of government in its final result cannot be estimated 
 by the position of a party government and party men at any
 
 Theory and Practice of Party Government. 707 
 
 given moment, but must be studied by the light of the whole 
 movement of the State, of the whole character of the people, 
 and of the whole result. 
 
 This external result is certainly a magnificent development 
 of the British power in all quarters of the globe, a progressive 
 expansion of its warlike and commercial power in close bond 
 of union with each other. And in its internal character also 
 this period has in the main, as regards steadfastness and 
 fidelity towards recognized truths, done more than other 
 times and nations. On that very account the qualities of the 
 apxalog ?rXovroc and the ap\aia aptTij come unmistakably 
 into the foreground. It is a thorough aristocratic govern- 
 ment with its bright and its dark sides, certainly the best 
 aristocratic government in the history of mankind, though 
 in no way capable of application to other nations, in the 
 absence of the previous conditions upon which it arose. 
 
 NOTE TO CHAPTER LVI. The Con- 
 tinental views concerning the system of 
 parliamentary government were always 
 influenced by the state of things exist- 
 ing in those times, and among those 
 nations that turned their attention to 
 it ; accordingly they form a history of 
 their own. We must not only test in 
 historians what they have found, but 
 still more what they have sought. 
 " There was a period which regarded 
 England as the pattern of a political 
 State, in whose constitutional forms 
 the whole secret of its liberty and its 
 fortune was said to lie. There came 
 another period, which discovered 
 nothing but defects in the same in- 
 stitutions, defects to which the other 
 had been blind, and doubted altogether 
 a liberty, that was so difficult to ex- 
 plain. The exaggerated admiration 
 for England was followed by an equally 
 exaggerated depreciation of it. The 
 good had been sought where it was not 
 to be found, and it was thought proper 
 to deny its existence because it was 
 not found where it had been errone- 
 ously sought. Curiously enough, it was 
 a foreigner, De Lolme, who was the 
 first to call the attention of the English 
 to the secret charms and benefits of 
 their constitution " (Jochmann's " Re- 
 liquien," ii. 134). 
 
 Not so much in the period of great 
 parties and party leaders, as in a 
 much less brilliant time, did the Eng- 
 lish constitution produce ineffaceable 
 impressions upon the Continent, which 
 were visible even before the middle of 
 the much-agitated eighteenth century. 
 
 There lie behind these the first move- 
 ments of the upper classes to gain an 
 active share in State government ; and 
 most of all, where the bureaucracy had 
 established itself earliest and in the 
 most rigid form in France. The ver- 
 dict upon England was thus of neces- 
 sity one-sided, like every view which 
 seeks something that is wanting. Here 
 was found a powerful and respected 
 nobility, elected Parliaments, liberty 
 in the commune, liberty of speech, and 
 liberty of the press. These were ths 
 desiderata. The real origin of the 
 English constitution and its social bases 
 were unknown to Montesquieu. But 
 he supplied the deficiencies with bril- 
 liant versatilityand French perspicuity, 
 from antique and mediaeval ideas, 
 building them up to a " system of the 
 division and equipoise of powers," which 
 through Blackstone and De Lolme be- 
 came traditional in England. Nobles 
 and prelates, knighthood and cities, all 
 the bases of a Parliament had been 
 present with us also in the Middle Ages 
 and in more grandeur than in Eng- 
 land. The constitutions of the estates 
 of the realm were based upon an un- 
 contested right to vote taxes and to 
 share in the administration. The di- 
 vision of the powers could readily be 
 effected. Why should that be denied 
 to the Continent, which in England 
 so honourably existed together with the 
 legal security and the prosperity of the 
 country ? In spite of numerous disap- 
 pointments, since then the feeling has 
 been left behind in the Germanic and 
 Roman races of Europe, that no con-
 
 708 
 
 Constitutional History of England. 
 
 tent can return and no progress be made 
 towards attaining a vigorous political 
 system, without, analogous institutions. 
 What is easiest to borrow is certainly 
 the election of a popular representa- 
 tion upon a broad or the broadest 
 basis with absolute powers over the 
 finances of the State, and in conse- 
 quence over the choice of ministers. 
 But that is only an imitation of the 
 external si it'll, without the internal 
 essence, as the nations of South Europe 
 have experienced to the detriment of 
 their administration and the well- 
 being of their people ; whilst Germany, 
 through its monarchical form of govern- 
 ment and the deeper struggle of party 
 contrasts, was compelled to lay the bases 
 in a manner in some degree satisfactory, 
 before it passed over to the forms of 
 the parliamentary system. 
 
 A comparatively impartial picture of 
 party governments as they really were 
 in the first half of the century, is given 
 in Hallam's " Constitutional Hist.," iii. 
 cc. 15, 16 ; whilst Macaulay's brilliant 
 description only brings us down to the 
 beginning of the eighteenth century. 
 From George III. onward, the relation 
 of party governments to the Crown 
 
 has been thoroughly treated by May, 
 " Const. Hist.," i. cc. 1, 2, 7, 8, with 
 most praiseworthy objectivity. From 
 the Tory standpoint the subject has 
 been dealt with in Lord Mahon'a 
 " History ; " more impartially in W. 
 Massey's " History of England under 
 George III." Cf. von Norden, " Die 
 Parliamentarische Parteire<>ierung in 
 England," in von Sybel's " Historische 
 Zeitschrift," xiv. 45-118. For a verdict 
 upon the real state of things there is 
 needed, at all events, a knowledge of 
 the historical writings of both sides, 
 and, so far as possible, of the memoirs 
 and special literature. To the special 
 history of the parties belong from former 
 times : Thomas Somerville, " History of 
 Political Transactions from the Resto- 
 ration to the Death of William III.," 
 London, 1794. Wingrove Cooke, " His- 
 tory of Party, from 1666-1832," 3 vols., 
 1836-1837 (Whig). C. Lewis, "Essays 
 on Administrations of Great Britain," 
 1783-1830, by Head, London, 1864. 
 Medyn, " Chiefs of Parties," London, 
 1859, 2 vols. Cf. also Fischel, "Die 
 Englische Verfassung," vii. c. 12. 
 Bucher, " Der Parliamentarismus," 
 second edition, 1881. 
 
 CHAPTER LVII. 
 
 ^Parliaments of tfte ^TtnetEent!) (taturj) fcofon to tfje 
 meform 23tli (1832). 
 
 THE attempt to sum up the total results of the thousand 
 years' political development of the English nation is a task 
 of such magnitude, that the English historians themselves 
 shrink from undertaking it. So far as it can be solved, it 
 must be combined with a full description of the social, 
 political, and ecclesiastical conditions of the present day. 
 But what the present work may attempt at the close, is to 
 give prominence to leading points of view marking the transi- 
 tion to the nineteenth century the century of social reform 
 and reform bills, which, as it has not yet run its course, does 
 not come within the scope of an historical work. 
 
 During the eighteenth century, England, as the only great 
 free State, stood alone amongst the other great European
 
 The Parliaments of the Nineteenth Century. 709 
 
 States, in which the height of absolutism and the ancien 
 regime held full sway. Excepting sundry small States, among 
 the peoples of the old world, the English was the only nation 
 that, after a long and honest fight, had victoriously triumphed 
 over political and ecclesiastical absolutism and Caesaro- 
 papism. It appeared as though this Germanic people was 
 destined by Providence to preserve to Europe during the 
 eighteenth century the picture of a free State, in order that 
 in the nineteenth century it might be made the common 
 property of the European world. 
 
 In it social and personal liberty were not, as in the ancient 
 State, sacrificed to political liberty. For the first time in 
 history there was here realized in a great State the full mean- 
 ing of liberty : 
 
 Social liberty, that is, the legal faculty for the lowest to rise, 
 by merits and talent, to possessions and honour ; 
 
 Personal liberty, which, with the full power of the executive, 
 maintains respect for the person and property of the individual ; 
 
 Political liberty, enabling the people to impose upon itself its 
 own laws, and to execute them itself in free self-government. 
 
 Nations cannot but desire liberty, thus defined, in its 
 entirety. What may appear to a one-sided view as a limita- 
 tion of liberty, was here as a fact only the fulfilment of its 
 whole essence.* 
 
 The internal strength of this community is due to the fact, 
 that among all the contrast and conflict of social interests, it 
 directs the efforts of the people to the welfare of the State ; 
 that it arouses an interest in public life not only in the lords 
 and gentry, but also in the middle classes ; and that it binds 
 together all classes of society in this spirit, before all giving 
 to the upper classes those manly aims and that energy which 
 seek their scope and their value in what the individual is 
 worth in the State. The most simple recognition by the 
 State is here the aim and the pride of a man's life, whilst 
 where this feeling is wanting in the aimless doings of the upper 
 classes the multiplied honours of the State become worthless. 
 
 It is not the rights of Parliament and the forms of parlia- 
 mentary government that have founded England's greatness, 
 but (as in the case of ancient Rome) the personal co-operation 
 
 * At the close of the Middle Ages activity in the State. They have, 
 
 the peculiar tendency becomes promi- under these surroundings, become the 
 
 nent, -which by abolishing class- powerful levers of liberty, where they 
 
 barriers has advanced the free develop- bind together the ideas of a people, 
 
 ment of the individual in an incom- which in daily exercise of them has 
 
 parable manner (p. 442). Elections won the consciousness of public duties, 
 
 and franchise, press and right of unions, the practical knowledge of the State, 
 
 have become the mighty bonds of this and the right feeling for it. 
 liberty, the essence of which is self-
 
 710 Constitutional History of England. 
 
 of all, from the lower classes in the social scale upwards, in 
 the daily duties of the State. The individual institutions 
 are simple, sober, and earnest, as in the old Roman life, far 
 removed from the fantastic pictures once disseminated in 
 Europe by the author of the " Esprit des Lois." But these 
 sober institutions are firm and durable, and in the hour of 
 danger and trial, when great tasks are imposed, they display 
 the energy and the greatness of character of a proud free 
 nation. In the struggle for the American colonies, and still 
 more in the struggle with the French revolution, it was 
 apparent from the results, what the education of a people 
 for the duties of State may accomplish. In old England, 
 upon a territory of the extent of about three Prussian pro- 
 vinces, a State had grown up, which incorporated Wales, 
 Scotland, and Ireland, colonized the North of America, pos- 
 sessed itself of the wealthier part of Asia, as well as of a 
 new quarter of the globe, had gained the maritime supremacy 
 of the world, and an equality with the continental powers 
 through the glories of its arms. And what seems to be more 
 than all this, we perceive a nation, which, forming the pivot of 
 the commerce of the world, had accumulated the wealth and 
 the luxury of the whole earth, which in every generation had 
 assimilated with its gentry numbers of parvenus and nabobs, 
 and in all the fortune and glory of a world-wide dominion 
 had preserved simplicity of manners, the love of truth, the 
 fear of God, and the sense of justice and moderation that is 
 due from the strong towards the weak. 
 
 It is human nature, that all progress, whether social, 
 ecclesiastical, or political, should, on the other side, be pro- 
 ductive of contradictions, disparities, and injustice all which 
 create ever fresh problems in the development of the nations 
 of the earth. 
 
 We will grant that the magnificent development of the British 
 nation since the day of Magna Charta was pre-eminently 
 achieved by the courage of the upper classes of society, by 
 their foresight and love of liberty, but we are yet obliged to 
 confess that its blessings also tended primarily to the enhance- 
 ment of the aristocracy. The English political system has, 
 accordingly, the dark sides inseparable from all aristocratic 
 states, due to the constant pressure they exercise upon 
 the weaker classes. The State of the eighteenth centur} r , 
 although in the hands of the best aristocracy in Europe, did 
 nothing to promote the advancement of the weaker classes ; 
 and to this end the Stuarts had also certainly never con- 
 tributed a jot. During this period, little or nothing was 
 done for the maintenance and emancipation of small landed 
 proprietorships ; whilst the Latifundia, on the other hand, had
 
 The Parliaments of the Nineteenth Century. 711 
 
 steadily increased. The propertied class had never actually 
 withdrawn itself from taxation ; yet only under its influence 
 could that luxuriant system of indirect taxes and protective 
 duties for the benefit of trade and agriculture, but to the pre- 
 judice of the labouring classes, arise ; or that profligate waste 
 of the national revenue and the enormous indebtedness, to the 
 detriment of the country at large. Only under a ruling 
 gentry, could a system of civil justice be upheld, which, owing 
 to its costliness, was inaccessible to the lower classes, and, 
 side by side with excellent forms of penal procedure, a con- 
 fused system of criminal justice, disfigured by exceptional 
 laws. To this was added the lack of an effectual sanitary 
 system and a pauper legislation, which spent itself in an 
 illiberal system of settlement, and which, in spite of high 
 poor rates, oppressed and embittered the lot of the labouring 
 classes. The peace which the Anglican Church had con- 
 cluded with the parliamentary constitution had, it is true, 
 consolidated constitutional unity; yet the corporative inde- 
 pendence of the wealthy State Eeligion still existed with 
 tangible prejudice to the lower classes, who were abandoned 
 to neglect by a Church now too aristocratic for them. Similar 
 was the position of the universities, which maintained their 
 corporate independence at the expense of learning. Science, 
 so far as it was not fostered by corporations and endowments, 
 was left to the energy of the individual and the protection of 
 the great; the ways thither were inaccessible to, and un- 
 locked for by, the masses. But chiefly, and before all else, the 
 rich Anglican now vied with the powerful Koman Church in 
 its complete neglect of popular education. Neglect, poverty, 
 and demoralization are found in the broadest layers at the base 
 of the social pyramid, and, in the ponderous structure of the 
 parliamentary constitution, the difficulties in the way of all 
 social reform were so many, that the most eminent statesmen 
 of the eighteenth century in England were almost as sincere 
 admirers of enlightened absolutism as the best educated 
 classes on the Continent were of the English constitution. 
 
 Yet, in spite of these blemishes and failings, the cohesion in 
 the constitution was so firm that, at the close of the century, 
 there was as little prospect of revolution as of reform. From 
 the bottom upwards, the mass of the working population was 
 literally rooted to the soil and, except in few places, inac- 
 cessible to revolutionary ideas. On the other side, the 
 position of the ruling class had become so secure, and had 
 been so much strengthened by the national struggle with the 
 French empire, that all immediate attacks upon it were sure 
 to be futile. The ideas of the French Revolution and the 
 emissaries of the Jacobin clubs produced, it is true, a certain
 
 712 Constitutional History of England. 
 
 contagion, yet only upon a small stirring circle of fanatics and 
 some doctrinaires among the ruling class. This fanaticism 
 even culminated in attempts upon the life of the monarch, 
 and in violent tumults, which appeared sporadically in con- 
 venient places. But such attempts were suppressed by the 
 ordinary constabulary forces, only in a few cases calling 
 for military intervention, and were merely followed by a few 
 Acts of Parliament aimed at the repression of revolutionary 
 pamphlets and societies (a Traitorous Correspondence Act, 
 an Alien Act for the control of foreign subjects, and sundry 
 kindred, but moderate, measures) ; all which passed the House 
 of Parliament by large majorities. The mood of the nation 
 was concentrated to such an extent upon the issue of the 
 war with Napoleon, that no interest was felt in internal 
 reform. 
 
 The close of the great struggle (1815) was followed by 
 troublous years of bad harvests and commercial and indus- 
 trial depression, affording a fruitful soil for socialistic agita- 
 tion. This was the period of extravagant demands, and of 
 huge, and sometimes violent, assemblages, which resulted in 
 a serious loss of human life and destruction of property. 
 These excesses called forth a series of temporary Acts of 
 Parliament (Lord Sidmouth's Six Acts), which again passed 
 Parliament by great majorities, although they went further 
 in limiting the right of petition than either circumstances 
 warranted or, considering the character of the constitu- 
 tion, was advisable. The Government under George IV. 
 was, owing in some measure to the monarchy, somewhat 
 vacillating; for changes of ministry were frequent four 
 distinct ministries once within eighteen months. The attitude 
 of the propertied classes, however, left no doubt as to their 
 determination to guard their possessions by all legal and 
 constitutional means. 
 
 As in the twelfth century, so in this also, the first breach in 
 this firm basis was made by ecclesiastical affairs. Although, 
 after the fruitless attempts of the Stuarts, the National 
 Church attained unconditional sway in England, and be- 
 came in the course of the century reconciled and blended 
 with the ruling class ; yet this grand success was gradually 
 followed by a want of fervour within the Church itself. The 
 higher grades of the clergy were drawn into the " high life " of 
 the aristocracy, whilst the majority of the benefices were 
 committed to the charge of miserably paid curates, in spite 
 of the growing spiritual wants of a rapidly increasing popula- 
 tion. The period of enlightenment in England (as well as on 
 the Continent), whilst introducing religious toleration among 
 the upper classes, produced in them an indifference to the
 
 The Parliaments of the Nineteenth Century. 713 
 
 education of the lower orders, which, in the second half of 
 the century, drove numerous elements of the population to 
 a methodism which offered the thirsty soul that which the 
 aristocratic State Church denied. This dissenting methodism, 
 though void of political aims, tended all the same to under- 
 mine the social scale and to lead to separation from the 
 political system then obtaining. The glorious Revolution had, 
 out of fear of popery, retained all the Test and Corporation 
 Acts, which excluded dissenters from offices and political rights. 
 A sensible contradiction to this exclusive monopoly of the 
 State Church had now arisen through the union with Scotland, 
 in which land the Presbyterian Church in turn entirely 
 excluded the influence of the State Church, whilst in the 
 English Parliament both Presbyterian and Anglican members 
 were expected to exercise concurrently the highest political 
 rights ! Since the accession of George II., this contradiction 
 was overridden, in the practice of ignoring Protestant dissent 
 in official appointments, and by the constant repetition of 
 a "bill of indemnity," declaring all infringements of the 
 law which had occurred exempt from punishment. Thus 
 were the Dissenters gradually placed upon an actual footing 
 of equality, promoted by the progressive spirit of religious 
 toleration. On the other hand, the exclusion of the Eoman 
 Catholics from all political rights was adhered to with 
 obstinate consistency. Even the laws debarring them from 
 the acquisition of real estate, as well as draconian penal laws, 
 which were however not actually put in force, still obtained. 
 George III., and the majority of the nation, perceived in that 
 Church not merely an ecclesiastical, but an essentially 
 political, institution, which, owing to its extension over all 
 the States of the inhabited globe, and to its claim to external 
 sway over the life of nations, as well as to its pretensions 
 to a complete recognition of sovereignty in its spiritual 
 head, was incompatible with the constitution of the country. 
 This view was so deeply rooted in George III., that all 
 attempts made to pass an act of toleration were foiled by his 
 unyielding will. 
 
 . The breaking down of this opposition was the immediate 
 consequence of the difficult situation resulting from the union 
 with Ireland. The rule of the Emerald Isle had for centuries 
 been the blackest spot in the whole of English parliamentary 
 government. The antipathy of the two races had, ever 
 since the Eeformation, been increased by the antagonism of 
 the Eoman Catholic Church, to which the great majority of 
 the population remained faithful, whilst the conquering Pro- 
 testant settlers were in the ascendancy in respect of landed 
 property, commerce, and industry. For the latter, the
 
 714 Constitutional History of England. 
 
 island was a conquered country, partly colonized, and 
 administered, even in the eighteenth century, in a manner re- 
 minding only too vividly of the provincial government of the 
 old Roman Republic. This complete neglect and merciless 
 fleecing could not go on unchecked, now that the war with 
 the American colonies had rendered a military occupation of 
 Ireland almost impracticable, and made even the employment 
 of the natives in the standing army and as volunteers un- 
 avoidable ; to this was added the fact, that shortly afterwards 
 the breaking waves of the French Revolution made their 
 effect felt in Ireland. The English ministry now at length 
 resolved upon conciliatory concessions, and began with an 
 attempt to give the country an independent Parliament 
 (1782). But it was soon perceived that want of coherence in 
 the elective bodies, as well as the rivalry of nationalities, 
 rendered a durable Parliament an impossibility. The union 
 with Scotland ibeeame necessary as early as 1707, as the 
 English and Scotch parliaments began to pass conflicting re- 
 solutions, which threatened to throw both constitution and 
 government into confusion. The same thing occurred, when 
 the independent Irish Parliament began to pass divergent 
 resolutions affecting the Regency and other matters. But of 
 still greater moment was the circumstance that this inde- 
 pendent Parliament was regarded by the Irish national party 
 merely as an engine for separating themselves from the 
 Saxon land, which they abhorred both as a nation and as 
 a church. This increasing tendency to secession burst forth, 
 in the years 1794-98, in open rebellions and in French in- 
 vasions, in which the native population behaved with a fury 
 and cruelty which remind us of the wars of the red-Indians. 
 Pitt here perceived no other way of escape but to unite 
 the country with England upon terms of economic and 
 political equality. The State taxation was regulated accord- 
 ing to a fair scale ; the numbers of deputies (according to an 
 average of population and taxation) fixed at 100, and to 
 the Upper House were added a smaller number of 28 members 
 elected from the Irish peerage for life. The accomplishment 
 of the union appears to be one of the chefs d'ceuvre of this 
 illustrious statesman. 
 
 But with the union with Ireland, the ecclesiastical basis 
 of the parliamentary constitution was brought into a new 
 position. In England itself, a considerable portion of the 
 population no longer owned the Anglican Church, and this 
 number at the beginning of the century amounted to several 
 millions. In Scotland, more than three-quarters of the popu- 
 lation belonged to the Presbyterian Church, even to the strictest 
 exclusion of the Anglican. In Ireland, more than three-
 
 The Parliaments of the Nineteenth Century. 715 
 
 fourths of the people, now blessed with equal political rights, 
 belonged to the Eoman Catholic Church, in the face of whom 
 the Anglicans could no longer assert their position of being 
 both politically and ecclesiastically considered, the sole privi- 
 leged class. A united church in a united State, as the basis of 
 the parliamentary constitution, had thus become an impossi- 
 bility. Next followed (1828) the formal repeal of the Test Act 
 and Corporation Act, and with it the actual rending of the old 
 bond between Church and State, which had, in the case of 
 the Dissenters, been already dissolved. And now at length, 
 after a struggle which had been protracted for more than 
 fifty years, there followed, as an inevitable consequence, 
 the so-called Act of Emancipation for the followers of the 
 Koman Catholic Church. The fatal policy of the Stuarts 
 was still in such vivid remembrance, that the Saville Act of 
 1778, which only repealed some few of the draconian penal 
 laws, viz. against the reading of mass, against the education 
 of children in Catholic schools, and the incapacity of the 
 Catholics to acquire real estate, led to the formation of a great 
 counter-league of threatening attitude, and, two years later, to 
 the dangerous Gordon Eiots. The constant revolts and the 
 enmity of the Irish population kept these feelings so much 
 alive, that Pitt in 1801 found himself unable to add the clause 
 of emancipation to the Act of Union. This was the sole 
 reason for the resignation of the great minister, who, in 1804, 
 was summoned by George III. to his second ministry, only 
 under the condition of relinquishing this question. In the 
 year 1807, Grenville's ministry was again wrecked on this 
 rock. The years 1813 and 1817 saw the Grattan bills; 
 1819, motions in this matter were renewed in the Lower 
 House ; and in the years 1821 and 1825 in the Upper. But 
 it was the threatening revival of the Catholic Association, the 
 illegal election of O'Connell as member of the Lower House, 
 and the recent repeal of the Test and Corporation Acts that, in 
 1829, brought the matter to a climax. George IV. having 
 once more, in consequence of the intended alteration of the 
 oath of supremacy, withheld his consent, yielded to the con- 
 sequent resignation of his ministers ; whereupon the bill 
 passed, by 320 to 142 votes in the Lower House, and by 213 
 to 109 in the Upper. 
 
 A breach was thus effected in the entrenched position of the 
 ruling class, through which further reforms might begin to pass. 
 
 Already, in the first decade of this century, the legislature 
 had shown a somewhat altered frame of mind by passing 
 some social reforms. The ripe fair fruit of twenty years of 
 assiduous labour was (1807) seen in the legal prohibition of 
 the slave trade, which, in spite of the great sacrifices it en-
 
 716 Constitutional JJistory of England. 
 
 tailed, was forthwith carried into execution in every detail. 
 The repeal (1824) of the old penal laws against labourers' 
 unions and of certain hindrances to their freedom of settle- 
 ment was an important boon to the working classes. The 
 modest beginnings, too, of factory laws for the protection of 
 operatives began to be visible. 
 
 With an equally modest commencement did a tendency 
 towards administrative reforms begin to show itself; such as 
 the suppression of the excessive number of sinecures, all 
 created in the interest of the ruling class ; the appointment 
 of a commission to reform the antiquated Court of Chancery ; 
 reforms in the customs tariff, so overburdened with protec- 
 tive duties ; the abolition of the trading monopoly of the East 
 India Company, and modifications of the Navigation Acts. 
 
 There was, however, no prospect of thorough political 
 reform whilst the constitution of the Lower House remained 
 so marvellously knit up with the upper classes, both in 
 country and town. A removal of these anomalies would 
 necessarily attack the very heartstrings of the ruling class 
 of society. The unjust anomaly of a mass of borough con- 
 stituencies, more than ten times as strongly represented as they 
 should be, considering their population, had long been recog- 
 nized. The first proposal, an ill-considered bill, brought 
 in by the Duke of Eichmond (1780) to replace it by an 
 universal equal suffrage, was rejected without division. The 
 very moderate proposals of Pitt (1782, 1783, 1785) to dis- 
 franchise only thirty-six decayed boroughs, and to distribute 
 the vacant suffrages between the counties and the metropolis, 
 failed even to pass the House of Commons, as that body could 
 not calculate what influence this amputation might not exercise 
 upon the strength of parties. In vain did the newly formed 
 " Society of Friends of the People " offer (1792) to prove, that 
 at that time some 200 members of Parliament represented 
 small boroughs of less than 100 electors, and that altogether 
 357 members were as good as appointed by 154 powerful 
 patrons. According to a later calculation, 300 members were 
 elected by the influence of peers, 171 by the influence of 
 powerful commoners, and sixteen owed their seats to royal 
 influence, so that there only remained 171 freely elected 
 members. The Lower House refused all revision of the 
 numbers of qualified electors ; and the bloody scenes of the 
 French Eevolution now unfolding themselves before men's 
 eyes, as well as Burke's fiery " Eeflections on the French 
 Eevolution," filled public opinion with such dread of enfran- 
 chising the masses, that Grey's motions (made in 1793, 1797) 
 were rejected in the Lower House by overwhelming majorities. 
 The international war now being prosecuted against Napoleon
 
 TJie Parliaments of the Nineteenth Century. 717 
 
 riveted the attention of the nation to such an extent, that 
 even Brand's motions, in 1810 and 1812, found but little 
 support. The peace of 1815 was again followed by years of 
 famine and commercial crises, by dangerous insurrections, a 
 brutal attempt upon the life of the Prince Eegent (1817), and 
 a Cato Street Conspiracy to murder the ministers (1820). 
 Hence the now so-called radical reformers found an ex- 
 ceedingly unfavourable soil upon which to work. Sir F. 
 Burdett's (1818) radical motions were rejected by 106 voices 
 to 0. It was not until 1821 and 1822 that Lord John Eussell 
 dared to reintroduce proposals, which were, it is true, rejected 
 in the Lower House by 269 to 164 votes; but the attitude of 
 the press towards them was such as to augur a change of 
 front in this respect. A petition presented by 17,000 free- 
 holders of the county of York (1823), showed that this was 
 no longer a question of artificial agitation, but of an altered, 
 basis of society, in consequence of which powerful propertied 
 masses now supported the demand for reform. 
 
 During the course of the great struggles with France, 
 changes, at first almost imperceptible, had been made in the 
 interior of the country, yet changes which make the nine- 
 teenth century a completely new epoch even in English 
 political life. The invention of the machine began to draw 
 certain branches of rural industry to the towns ; speedily 
 attaining to greater dimensions in cotton, wool, flax, and silk, 
 and reacting upon a rapidly increased consumption of coal, 
 iron, and raw material, it soon concentrated industry and trade 
 in a way formerly unknown ; after the conclusion of peace in 
 1815, it also began to react upon agriculture, and finally, 
 hand in hand with facilitated communications, to alter the 
 economic conditions of the whole country. From decade to 
 decade the transformation of the system of production became 
 more and more apparent, as steam (and, shortly, railways) 
 increased the pace. Eeal and personal property, productive 
 and intellectual labour, entered into new and multifarious 
 combinations, which, slowly progressing, shifted the propertied 
 power from the landed estates to the capitalists. Production, 
 consumption, and exchange, passed into a new and uniform 
 system embracing the market of the world, and one which, 
 in England, owing to its world-wide commerce and colonial 
 possessions, attained to a most magnificent development. 
 
 Simultaneously with this reconstruction of the propertied 
 and industrial conditions of the country, there now appeared 
 a new link in the relations of society to the State. 
 
 The accumulation of funded and industrial capital led to 
 the formation of a large number of new households with an 
 independent personal estate equal to the average income of the
 
 718 Constitutional History of England. 
 
 quondam ruling class ; these, by the acquisition of real estate, 
 and by filling the civic office of justice of the peace and the 
 magistracies, coalesced in many cases with the landed gentry, 
 without, however, participating in an equal degree in their 
 habitual duties of public life, and lacking therefore the 
 consolidated political influence of that older gentry. 
 
 The new combinations of capital and labour, the ever- 
 increasing application of intellectual and technical knowledge 
 and the business requirements of great trading and industrial 
 firms, led likewise to a corresponding increase in the middle 
 classes, who, although they paid rates and taxes on precisely 
 the same scale as did the freeholders in the counties and 
 freemen in the towns, were yet, according to the existing con- 
 stitution, in great measure excluded from the franchise. 
 
 The labouring classes, finally, were, by the great industries, 
 brought into almost entire dependence upon industrial capital, 
 were as a rule without any participation of their own in the 
 community of their neighbours, and had not the franchise. 
 
 The fusion of these new elements into the parochial union 
 (which even to this day is the chief difficulty of the German 
 Commune) took place in England with great ease, as the 
 English parochial rates, following the elastic poor rate system, 
 were from the first levied upon the actual occupier; the 
 parochial rates upon houses and manufactories had on that 
 system long since outstripped the parochial burdens laid upon 
 land. But, on the other hand, the admission of these new 
 elements to the parliamentary franchise met with the same 
 opposition as was the case in the representative systems of the 
 Continent. The rights of suffrage in the Middle Ages were 
 inseparable from feudal and free tenure, which at that time 
 bore the whole of the State burdens. This fact had long been 
 forgotten. These political rights had from generation to 
 generation been alienated and acquired with the possession of 
 the land, and, as such, were, on their broader English basis, 
 guarded with the same jealousy as were the political privileges 
 of the aristocratic landed estates on the Continent. This 
 view was so deeply rooted, that Pitt, in making his reform 
 proposals of 1782, was for purchasing the rights of the thirty- 
 six decayed boroughs for 1,000,000 sterling, and, in effect- 
 ing the union with Ireland, actually carried out such a 
 system of purchase. The privileged freeholder in England 
 could not therefore be readily induced to accord to the copy- 
 holder, the leaseholder for sixty years, or the mere tenant 
 for a term, an equal suffrage with himself, even though, regard 
 being paid to the altered value of money, the forty- shilling 
 qualification was raised five to twenty times. The landlord in 
 the towns more readily acquiesced in the occupier being placed
 
 The Parliaments of the Nineteenth Century. 719 
 
 on equal terms with himself, inasmuch as the system of select 
 bodies was no longer feasible, and the occupier had long since 
 had to bear the chief parochial rates and taxes. Thus it 
 was that the towns, as a rule, inclined to the idea of reform. 
 The struggle for the reform of the franchise appeared, ac- 
 cordingly, from the first nothing but a struggle for the 
 privilege or equality of certain tenures, and has retained this 
 character to the present day. (1) 
 
 Meanwhile, the first generation in the development of 
 industrial society had run its course, and behind the reform 
 movement stood no longer an agitation of the friends of 
 radical reform, but a justifiable feeling of inferiority made 
 itself felt in the new elements of the propertied classes and 
 middle ranks. Their strength lay in the large towns, which 
 were either unrepresented, or quite inadequately represented 
 on the parliamentary register. But even in the boroughs 
 summoned to Parliament, the old-fangled municipal con- 
 stitution, limited to the select burgesses, excluded them 
 from political rights. In the country districts, the qualifica- 
 tion of freehold was as much out of harmony with social 
 conditions as with the rateability of the middle classes of 
 industrial society. The representation of the northern and 
 southern counties of England was out of all proportion to its 
 present population. In Scotland the total electorate in the 
 counties was restricted to 2500 heads, that of the boroughs 
 to 1440, and that of the capital, Edinburgh, to thirty-three. 
 The powerful influence of the press, and the right to establish 
 unions, lent these aims and aspirations a weight which the 
 ruling class now for the first time learnt to feel. 
 
 The consciousness of this new situation burst suddenly and 
 unexpectedly forth, in consequence of the July Bevolution in 
 France, which gave the so-called middle classes in England 
 the required influence over the Government, and, by virtue 
 of the constant contagion it spread, (2) made the reform of 
 Parliament at last an unavoidable necessity. The laws of 
 1828 and 1829 had cut away the ground under the feet 
 of the high Tory party of obstinate resistance. After Welling- 
 
 (1) The classes which were newly July Kevolution, with its ideas of 
 formed by the propertied and indus- popular sovereignty, was seen at the 
 trial conditions of the new society can, beginning of the third decade in a 
 to a certain extent, be ascertained from number of phenomena, which have 
 the census tables compiled every ten since been forgotten. I remind my 
 years, and in the lists of the income tax readers, for example, that in the wards 
 and local rates, which last show how of the freemen of tbe city of Lpndou 
 rapidly income derived from house formal resolutions were passed insist- 
 property, from manufactories and ing that members of Parliament should 
 mines, increases in comparison with for the future receive binding man- 
 that derived from land. dates from their constituents. 
 
 (2) The contagious influence of the
 
 720 Constitutional History of England. 
 
 ton had, in September, 1830, solemnly declared that the 
 parliamentary constitution needed no reform, in November, 
 
 1830, Lord Grey presented parliamentary reform to the 
 House as the ministerial programme. On the 1st of March, 
 
 1831, Lord John Eussell introduced the first draft of the 
 Reform Bill, which, after a debate lasting seven nights and 
 after seventy-one speakers had been heard, was admitted to 
 the first reading, but only passed the second by 302 to 301. 
 Having regard to the prevailing feeling of the population, 
 William IV. was induced to dissolve Parliament, which, on 
 its re-election, showed a very considerable majority for the 
 proposed reform. The bill now passed the second reading 
 in the Lower House by 367 to 231 ; and, after long obstruc- 
 tions, the third reading also by 345 to 239. But, on the 8th of 
 October, 1831, the bill was thrown out in the Upper House 
 by 199 to 158, the consequence of which was a profound com- 
 motion, such as had never before been known in the country, 
 accompanied by many violent disturbances. 
 
 A third bill was presented to the House in December, 1831, 
 which passed the second reading by a majority of 162, and 
 now, at length, passed the Upper House (after a few amend- 
 ments had been made in it), by 184 to 175 voices. Yet a 
 dilatory amendment of Lord Lyndhurst in the House of Lords 
 again jeopardized the bill. The feeling of the country 
 declared itself during this interval in a more serious manner. 
 Several lords were insulted by the mob, Nottingham Castle 
 was set on fire, and great destruction of property caused by 
 violent insurrections at Bristol. It was impossible any longer 
 to procure from juries verdicts against the authors of the 
 passionate squibs of the time. Lord Grey calculated the 
 number of crimes committed in consequence of the Reform 
 Bill at 9000. The ministers, accordingly, demanded a new 
 creation of peers, which was refused by the king; the 
 ministers hereupon resigned. However, after the Duke of 
 Wellington had vainly endeavoured to form a cabinet, the 
 king personally intervened by privately communicating with 
 the dissentient lords, requesting them to refrain from voting, 
 whereupon the bill passed into law by 106 to 22, and 
 simultaneously the kindred reform laws for Scotland and 
 Ireland. The new basis of the Lower House was now as 
 follows 
 
 I. SSiirt) respect to tfje constituencies, the Reform Bill followed 
 the sound principle of retaining only real communitates, that is, 
 counties and municipal boroughs, as constituencies ; whilst 
 paring down and restricting the totally decayed boroughs and 
 distributing the vacant seats among the greater districts which 
 had hitherto been insufficiently represented. Following this
 
 The Parliaments of the Nineteenth Century. 721 
 
 principle, 56 smaller boroughs, of less than 2000 inhabi- 
 tants, among them the notorious Old Sarum, were completely 
 disfranchised ; and 30 smaller boroughs of 2000-4000 inhabi- 
 tants limited to a single member. On the other hand, 22 
 more important towns, hitherto unrepresented (Manchester, 
 Birmingham, Leeds, etc.), now received two representatives ; 
 20 other towns (18,000-25,000), one each ; 25 great counties 
 were divided into two divisions each, each of which returned 
 two members ; seven counties received three instead of two 
 representatives ; three Welsh counties, two representatives 
 in the place of one. The remaining seats were sufficient 
 in number to give Scotland 53 (instead of 45) and Ireland 
 105 (instead of 100) members. 
 
 II. SSJitf) regarfc to tfte electoral qualifications in the counties, 
 the old franchise of the forty-shilling freeholders was retained ; 
 yet in freehold for life, the right of franchise was made in- 
 separable from the condition of actual possession, in order to 
 prevent a multiplication of votes by a parcelling of estates. 
 Apart from this reservation, freehold only gave the franchise, 
 where a yearly income of 10 was derivable therefrom. In like 
 manner, copyhold and leasehold for 60 years and upwards, of 
 an annual value of 1T). Leasehold of 20 years and more, 
 only in case of 50 annual value. According to a Chandos 
 Clause, inserted in the Upper House, every tenant and other 
 lessees were given the franchise, where the rent amounted to 
 50 and upwards. 
 
 Through the decay of the municipal corporations in the 
 towns, all principle in the matter had been so far lost, that by 
 2 Geo. II., c. 2, it was provided that that right of suffrage 
 should always obtain, which had been accepted in the last 
 decision of the Lower House. The Eeform Bill gave the 
 franchise in every case to the municipal middle classes, that 
 is, to every occupier (whether owner or lodger) of a dwelling, 
 a shop, a bank, or' building of 10 annual value. 
 
 All rights of franchise were after the old system calculated 
 not according to taxation and personal political duties, but 
 according to tenure. But, in order to guarantee the cohesion 
 of the electoral bodies, an actual payment of taxes and a 
 lengthened residence within the constituency or an acquisi- 
 tion of real estate by inheritance or marriage settlement re- 
 mained the essential qualification. 
 
 III. SSJitf) respect to tfje electoral procedure, an important 
 innovation borrowed from France was introduced, namely, 
 that complete registers should henceforth be made by the local 
 authorities, under the control and supervision of revising 
 barristers, with appeal to the high courts of justice. To 
 be entered upon the register was a necessary condition pre- 
 
 3A
 
 722 Constitutional History of England. 
 
 cedent to exercising the franchise. Whilst in former days 
 the tedious legitimation of the electors protracted the election 
 for weeks, the poll now became limited to two days, and soon 
 to one, and thus the old election disorders were in great 
 measure put an end to. A sharp Corrupt Practices Prevention 
 Act (1854) attempted finally to prevent bribery and corruption 
 still more thoroughly. (3) 
 
 The number of electors, which at the time of passing the 
 Reform Bill was reckoned at 400,000, was by that bill as 
 nearly as possibly doubled. On the completion of the new 
 electoral system (1852), in the county elections for England 
 and Wales, there were counted : 322,619 freeholders, 23,097 
 copyholders, 21,104 leaseholders, 99,019 tenants from year 
 to year. The number of borough electors too was given in 
 the draft for the second Reform Bill at only 488,920. 
 Moderate as this extension appears, in comparison with the 
 constitutions of the Continent, yet, considering the position of 
 the English parliamentary constitution, it still sufficed to make 
 the middle classes no longer a moderating but a leading 
 factor of the parliamentary system. 
 
 (3) The technical details of the given in*English treatises in a very 
 
 Reform Bill have been here iuten- complicated casuistry. For the most 
 
 tionally passed over, and especially the explicit treatise vide Lely and Foulkes, 
 
 not very considerable divergencies in "The Parliamentary Election Acts," 
 
 the Reform Bills for Scotland and London, Clowes and Sons, 1885. 
 Ireland. These details have been
 
 ( 723 ) 
 
 CHAPTEE LVIII. 
 
 parliaments of tfje tNTmettmtf) (Emturg fcofott to tfje 
 
 (1867). 
 
 IN ancient times an aristocratic constitution, as found in 
 England at the commencement of the nineteenth century, 
 would have ended with the oppression of the lower classes 
 and in a helotdom. It is a grand testimony to the power of 
 Christianity and nationality especially in the ruling class in 
 England that from those conditions the English society 
 effected a transition to a century of Reform Bills and Social 
 Reform. In like manner, we shall not be able to deny the old 
 Whig party the recognition that, faithful to its traditions, 
 it carried out the difficult task of reforming the popular re- 
 presentation with courage, persistency, and judgment, and 
 without destroying the old cohesion of the elective bodies of 
 the House of Commons. 
 
 In the January of 1833, the first reformed parliament, in 
 which only 172 Conservatives opposed 486 Liberal members 
 and their associates, assembled. In the very first session of 
 its meeting, it was confronted by a whole pile of reform 
 measures, which, proceeding from a long-checked current of 
 popular opinion, were doomed to speedily present great diffi- 
 culties to the present majority and its ministries. The 
 reform movement which had now burst forth, is divided hence- 
 forward into the threefold tendency of social, administrative, 
 and political reforms. 
 
 1. The province of social reform was primarily directed against 
 the class privileges of the old ruling class. Using great 
 moderation, this tendency contented itself with repealing the 
 qualification of ,600 and ;300 income from real estate for 
 the representatives of the counties and towns respectively. 
 This qualification had been introduced a century previously, 
 in order to render it difficult for capitalists to enter into 
 competition with the landed gentry. It was now simply 
 abrogated (1858). Motions for depriving the bishops of their 
 political functions in the Upper House, and for creating a 
 number of life peers in addition to the hereditary peers, were 
 as yet rejected.
 
 724 Constitutional History of England. 
 
 Still more incisive were the attacks made upon the economic 
 privileges of the ruling class. First of all, upon the great trading 
 monopolies which were abolished after fair compensation; 
 next, upon the overspreading system of protective customs, 
 which heing universally recognized as pernicious for a country 
 marked out for a great commercial and industrial future, 
 were in great measure suppressed, and reduced to a few 
 profitable finance duties. The Corn Laws followed suit, after 
 violent resistance. Although Lord Melbourne, as late as 1839, 
 had declared that he considered the plan of leaving the 
 great agricultural interest without protection most quixotic 
 and idiotic ; yet the Anti-Corn Law League and the power of 
 the press in the years 1838-1846 managed, under Sir Eobert 
 Peel, to pass this measure also. The powerful interest of 
 the land had also to accommodate itself to the redemption of 
 tithe, to the regulation of the peasant burdens of copyhold, 
 and to a system of the partition of common rights (though 
 with comfortable modifications). 
 
 The demand for religious equality necessitated the further 
 repeal of certain antiquated penal statutes, and the granting 
 to the dissenting sects of many rights necessary for the manage- 
 ment of their property and the conduct of their services. The 
 admission of Jewish members to the Lower House met for a 
 long time with the resistance of the Upper House, but was at 
 length (1858) rendered possible by a clumsy and dangerous 
 compromise, which permitted each house itself to prescribe 
 the form of oath for its own members. (1) 
 
 As in old days at the Magna Charta crisis, so now in the 
 nineteenth century, did the propertied classes not forget that 
 care for the weaker classes is the vital condition of every free 
 constitution. The grand work of suppressing the slave-trade 
 was extended yet further to the far more difficult task of 
 abolishing slavery itself ; this was accomplished circumspectly 
 and successfully, at the expense of ;20,000,000 sterling from 
 the State coffers. Far more difficult and manifold were the 
 social reforms in favour of the operative classes. 
 
 Favourable as was, in the first decade, the influence of steam- 
 power and manufactures for the external independence and 
 wage-earning of the working classes, yet, as time went on, the 
 wages question became more unfavourable. Within a genera- 
 tion there was produced in the new " proletariat " a picture of a 
 degenerated family life, visible in lodging, food, clothing, ill- 
 health, poverty, and the starvation and degradation of women 
 and children, which for many decades showed the black sides of 
 
 (1) An Act of Parliament for giving the violent opposition of public opinion 
 civil equality to the Jews, passed in it was withdrawn in the following 
 the year 1763, but in consequence of year.
 
 The Parliaments of the Nineteenth Century. 725 
 
 the new order of society. The years next following the Reform 
 Bill were, owing to the commercial depression of the time, 
 calculated to give these classes, in their spirit of opposition to 
 the propertied classes, a feeling of common misery and of great 
 common interests, which after 1839 assumed a threatening 
 character in the Chartist movement, which, however, finally 
 ended in a mere mass-demonstration (1848). Without show- 
 ing itself dismayed by the threatening attitude of the working 
 classes, the legislature at once addressed itself to the prac- 
 tical solution of the social questions, and began by remov- 
 ing the worst ills attendant upon family life ; restricting the 
 work of women and children, shortening the hours of toil, 
 removing the immediate dangers to life and health in 
 factories and mines by appointing factory inspectors, upon 
 whose reports the protective measures should be expanded 
 and extended from decade to decade, and by forbidding the 
 truck and cottage system, so as to prevent a recurrence to 
 villeinage. It afforded legal protection to the weaker classes, 
 by granting a system of civil justice accessible to all alike, 
 an effectual court of arbitration, and by guaranteeing the 
 freedom of trades unions, even to the enforcement of higher 
 wages (modified, of course, by penal clauses against abuse of 
 them, which sometimes showed itself in a flagrant form). But 
 of immediate and permanent effect upon the amelioration of 
 their condition was the reduction of the prices of all the 
 necessaries of life (corn, meat, tea, coffee, etc.), as a result 
 of the repeal of the Protection Laws, thus lowering the 
 housekeeping budget of the poorer classes by one-third, on an 
 average, whilst the freedom of unions and the conditions of 
 the international market obtained a slow, though on the 
 whole, steady increase in wages. The thorough and very 
 valuable sanitary and building reforms, in a series of Public 
 Health Acts, primarily benefited the working classes. For 
 the much neglected elementary education, Parliament, in 
 the year 1833, voted 20,000, which sum, in the course 
 of years has been raised more than a hundredfold, and 
 has developed into a steadily progressing system of popular 
 education. This social legislation, embracing, as it does, all 
 sides of economic and family life, has known how, at the same 
 time, to promote free self-help by an adequate regulation 
 of the union system, in savings banks, burial clubs, sick 
 clubs, friendly unions, mutual societies (under certain cir- 
 cumstances, also, with State guarantees and State grants). 
 Finally, for the unemployed, we meet with kinder and more 
 humane poor-laws, doing away with, at all events, the narrow- 
 minded repulsive system of former generations. This side of 
 State policy is and remains essentially an endless one, and,
 
 726 Constitutional History of England. 
 
 considering the peculiar conditions of the greatest industrial 
 and commercial State in the world, is not yet able to satisfy 
 the weaker classes. Looking back, however, upon what has 
 been done and attained in the course of a generation, we are 
 compelled to admit that the legislature has worthily recog- 
 nized its duties and has remained faithful to its position as a 
 propertied class in a free country. 
 
 II. 'SHie probtnce of a&mtm'stratibe reforms addressed itself 
 to the reform of the abuses which at all times arise in the 
 appointments to and the management of public offices, under 
 the stable sway of a ruling class. But here the excessive 
 precision used in laying down all the rules of administrative 
 law by statute, much as it tended to protect against the abuse 
 of party-government, gave, on the other hand, to the whole 
 system a clumsiness and rigidity which rendered these reforms 
 most difficult to make. The generation immediately following 
 the Eeform Bill displayed here also a great energy, comparing 
 very favourably with the contemporaneous condition of most 
 continental states. 
 
 In the department of war, the experiences of the Crimean 
 war led to the comprehension of the whole administration 
 under one war office. The place of universal military service, 
 unfeasible in the case of England, is taken by a wide system 
 of volunteer corps, which contains the germs of further 
 development. 
 
 Justice also experienced very energetic reforms in the in- 
 stitution of the new county courts, which for the first time 
 afforded a system of civil justice accessible to the public at 
 large ; in the thorough reconstitution of the civil procedure, 
 the chancery procedure, and in the newly organized courts of 
 probate, bankruptcy, and divorce. The criminal procedure 
 attained a practical form for the metropolis, in the institution 
 of a central criminal court, as also in a model system of pre- 
 liminary examination, and the codification and extension 
 of summary criminal procedure. Thorough reforms were 
 made in the confused and intricate criminal law. Whereas, 
 during the period between the Eestoration down to the acces- 
 sion of George IV., not less than 187 transgressions of the 
 law were visited by capital punishment, the death penalty was 
 henceforth confined to high treason and murder ; the punish- 
 ment of the whipping-post and the numerous penalties of con- 
 fiscation were abolished, and transportation for life replaced 
 by a rational system of imprisonment. 
 
 In the department of finance, after the system of pro- 
 tection had given way to the policy of great finance-duties, 
 by the cancelling of many hundred parliamentary statutes, 
 a consolidation of the Customs, Inland Eevenue, and Stamp
 
 The Parliaments of the Nineteenth Century. 727 
 
 Acts was brought about. Sir Eobert Peel's Income Tax law, 
 with the insertion from time to time of amendments, has given 
 proof of its vitality. The much-prized post-royalties passed 
 into the penny post system. For the control of the finances, 
 so neglected by party governments, the Commissioners of 
 Audit, in conjunction with the Bank of England and a finan- 
 cial commission, appointed effectual organs, as it did also in 
 respect of the newly formed Commission of the National 
 Debt. 
 
 In the Jwme and police department, the parochial constables, 
 whose services had become insufficient, were supplemented, 
 first in the metropolis and afterwards in the country, by paid 
 police in military organization, all brought into practical 
 connection with the police courts and the justices of the 
 peace. Certain branches of trading laws, especially affecting 
 public-houses, were newly consolidated; these latter, after 
 many experiments, having again to be dependent upon the 
 magistrates for their licence. After a careful consideration of 
 the agricultural and game interests, the game law of 1834 
 was passed, which put an end to numerous social injustices. 
 
 In the field of commerce, the codified Merchant Shipping Act, 
 as well as a fragmentary piece of legislation to replace the 
 somewhat deficient State control of private railways, are of 
 importance. 
 
 A strongly modernised department of home administration 
 was developed from the economic self-government of the 
 parishes. It was opened by the great poor law legislation 
 (1834) and its numerous amendments, in carrying out which 
 a central poor-law board, with its inspectors and auditors, 
 presents a picture of centralization such as was until then 
 unknown. By the formation of unions of parishes and the 
 building of workhouses, the severe abuses of the ancient regime 
 were energetically removed, though still attended by great 
 hardships. Next came the Highway Statute of 1835, which, in 
 the formation of greater unions, followed the example of the 
 pauper legislation. After numerous unsafe experiments, the 
 Public Health Act (1848) and following statutes brought some 
 degree of order into the sanitary and building regulations 
 of thickly populated districts, through rigorous powers of 
 inspection exercised by a central board. In the case of towns 
 having a municipal constitution, a new municipal law was 
 passed in 1835, which, removing the antiquated and de- 
 cayed state of things, replaced it by a uniform government 
 by mayor, aldermen, and town councillors, retaining the 
 police control in the hands of special commissions of the 
 peace appointed by the crown. After a generation had passed 
 away, this local government of the new style was formed into
 
 728 Constitutional History of England. 
 
 one whole under a newly created minister (Local Government 
 Board). 
 
 In the department of church government, the State found 
 analogous tasks as in the " self-government," inasmuch as, 
 owing to the old legal control and the corporative character 
 of the Church, grave abuses had crept in, such as the 
 Church, as a body, did not on its own account know how 
 to master. As carefully then as benevolently was the 
 government of State Church property reorganized by mixed 
 boards, its dioceses and offices increased where required, 
 thousands of churches and chapels founded by State and 
 private means, and richly endowed for the needs of instruc- 
 tion and religious service. With like consideration, to the 
 avoiding of questions of dogma, were, after reference to 
 ecclesiastical commissions, the vexed questions of ritual, of 
 Church discipline, and the formulating of the oaths of office, 
 settled; thus restoring to the State Church a rejuven- 
 escent activity both in teaching and preaching in marked 
 contrast to the condition of things which a hundred years 
 previously disgraced the Anglican Church. 
 
 In the field of education, reform contented itself for the 
 present with gently compelling the universities and founda- 
 tion schools to make new statutes. More energetic was the 
 advance in the elementary school system to comprehensive 
 regulations under the conduct of a new minister (1856), and 
 with a special department for promoting art and industrial 
 schools by the aid of considerable State allowances. 
 
 In the province of colonial government, the mother country 
 decided, after bitter experience, to grant independent govern- 
 ments to those colonies, which, owing to their situation, their 
 population, and degree of civilization, were most fitted to receive 
 them, reserving a supreme legislature in the English Parlia- 
 ment. The government of the East Indian Empire, after 
 the suppression of the Sepoy rebellion, was, by a new law 
 of organization (1858), handed over to the central govern- 
 ment, which exercises control over the governors, the tribunals, 
 and the chief departments of administration, as also over 
 appointments. 
 
 More than one hundred comprehensive administrative 
 statutes and a reorganization of the whole of the civil service 
 testify here also to the energy of the British parliamentary 
 Government. (2) 
 
 (2) The English administrative law, theories in France and Germany were 
 
 which appertains as much to the laid down, as good as unknown. Cf. 
 
 nature of the English political system Gneist, " Engl. Verwaltungsrecht," 
 
 as does the parliamentary law, was, at 3rd edit., 1883-84, 2 vols. 
 the time when the constitutional
 
 The Parliaments of the Nineteenth Century. 729 
 
 III. It is only in the province of political reforms, that is, in 
 the organization of local bodies, and in the development of the 
 parliamentary constitution, that the failures of the new order 
 of things are seen. In the case of administrative reforms, 
 the excellent business habits of the ruling class, and, in 
 the field of social reforms, the practical sound sense of the 
 commercial classes benefited the land. For the following 
 class of laws, on the contrary, the English parliaments 
 lacked practical experience, no less than did the parliamentary 
 bodies of the Continent. The organic statutes, out of which 
 the parliamentary constitution grew, are traceable to the 
 direct initiative of the monarchy when at the zenith of its 
 power (Henry II., Edward I., Edward III., Henry VIII., and 
 Elizabeth). The parliaments of the eighteenth century had 
 only drawn their life from existing institutions. New crea- 
 tions of this kind were born as little of the party struggles 
 of the eighteenth century as of the civil wars of the seven- 
 teenth ; the Commonwealth, for example, did not leave 
 to posterity one single organic law. Such new laws were 
 now imperative, seeing that, in the transition to a new order 
 of things, old bonds are dissolved and must be replaced by 
 new, such as under the influence of strong impulses and 
 favourable conditions took place in Prussia in the years 
 1808-1815, 1872-1876, but even there they were not due to 
 public opinion, but to the monarchy. This problem could, 
 however, be as little solved by the English Parliament, as by 
 the Diets of the Continent, for the reason, that such laws are 
 not wont to proceed from the struggle of the social classes for 
 their share in parochial and political life. 
 
 The upper foundation of the English parliamentary con- 
 stitution, namely, the unity of the National Church in the 
 National State, was lost with the repeal of the Test and 
 Corporation Acts. The now recognized religious equality 
 was really at first only intended as a placing of individual 
 followers of various confessions upon an equal footing. But in 
 that these dissenters formed great and distinct religious 
 systems, the religious equality of individuals did not con- 
 tent them ; they now demanded more, an equality of churches. 
 These pretensions were advanced by no denomination so in- 
 tensely as by the Koman Catholic Church, which claimed the 
 exclusive management of its own Church as being part of its 
 doctrine. The Curia consequently proceeded to a formal 
 organization of its spiritual offices and dioceses in England 
 and Wales (1850). A new state of things now ensued, in 
 which an organic legislation was needed to determine the 
 legal limitations, under which several conflicting churches 
 and creeds might co- exist in one single state (as in Germany).
 
 730 Constitutional History of England. 
 
 On the other hand, the attempt made in the Ecclesiastical 
 Titles Act (1851) to make the proclamation of the Eoman 
 hierarchy and the bearing of the episcopal title punishable by 
 law, proved utterly wrong, and had soon to be abandoned. The 
 reaction was felt in the demand for the disestablishment of 
 the English Church in Ireland, and the further separation of 
 Church and State, in the face of which the welcome revival 
 of love for the Church made the position of the State all the 
 more difficult. In spite of the deep roots she had struck in 
 the nation, the Anglican Church could not prevent seces- 
 sions right and left, both in ritualistic and in dissenting 
 directions. The Scotch Presbyterian Church had by this 
 time, over a dispute as to Church patronage, separated into 
 two almost equal halves. The Irish Church question was 
 deeply divided and bound up with an antipathy of races. In 
 all three divisions of the isles, a powerful Churchdom, deeply 
 rooted in the feelings of the population, demanded exclusive 
 recognition. If this, according to the demands of the 
 churches, was to control the whole private life and the moral 
 and intellectual development of the people, it must needs uproot 
 political unity. Though standing upon a higher step of civi- 
 lization, Great Britain has only now arrived at the point 
 where Germany stood at the conclusion of the peace of 
 Westphalia : namely, at a division into a Catholic and a schis- 
 matic Protestant country, the further development of which 
 must eventually lead to a dissolution of the imperial unity 
 (as would also have been the case in Germany, had it not 
 been for the indefatigable activity of the territorial administra- 
 tion and legislation), analogous to the way in which, in the 
 nineteenth century, the separation between Belgium and 
 Holland was brought about, which was due entirely to this 
 condition of things. 
 
 Equally privileged Church systems, of which the one, with 
 its pretensions to exclusive recognition, will allow no rival, 
 whilst the other, with its claims to exclusive validity, is not 
 wont to tolerate any civil equality in juxtaposition to itself, 
 cannot both develop in autonomous liberty without destroy- 
 ing the unity of both State and people. Instead of reflecting 
 what common institutions and legal limitations this state of 
 things demanded, English society withdrew itself from the 
 solution of this problem in its confused ideas of a "separation 
 of Church and State; " as though a separation of the ecclesias- 
 tical and political man were possible, and as if the Eomish 
 or the Anglican Church would ever surrender its coherence 
 and centrifugal tendency, even though the State (as the 
 Prussian Landrecht does) gave them the appellation of 
 "religious societies." The unavoidable problem of future
 
 The Parliaments of the Nineteenth Century. 731 
 
 legislation for maintaining the unity of the State and nation 
 was, however, at all events in its beginnings, seen in the 
 institutions of a common civil register (1836), of facultative 
 civil marriage, of common elementary schools, higher schools, 
 universities, common burial grounds, etc. But at the present 
 there only remains the negative result, that the granting of 
 equal privileges to the conflicting churches and their closer 
 conjunction dissolves the basis of the parliamentary con- 
 stitution, and introduces into Parliament itself confessional 
 fractions, in addition to the political parties. 
 
 The next essential basis of the constitution, viz., the 
 internal cohesion of the communitates had, as far as was 
 possible, been secured by the Reform Bill of 1832. But the 
 progress of social and administrative reforms led only too 
 quickly to an unintentional shifting of the foundations. The 
 new municipal regulations of 1835 again enabled, it is true, 
 the whole of the citizens to share in the civic government. 
 But this municipal government, in its permanent separation 
 from the police jurisdiction of the magistrates, from the 
 parochial relief of the poor and other important branches, 
 was so insufficient in its character, that it could do but little 
 to arouse and keep alive the public spirit of the community. 
 Added to this, was the contradiction (so much warned against 
 by Sir Eobert Peel), that in the municipal constitutions an 
 universal and equal suffrage of all households was introduced, 
 whilst the Eeform Bill had only summoned the 1Q house- 
 holders to the franchise. Thus there forthwith arose here a 
 tendency to extend the parliamentry franchise, thus creating 
 a fresh contrast to the county constituencies. In the last- 
 named, the organization of the gentry in the magistrates' 
 petty and quarter sessions still continued, though their 
 influence upon the lower classes was on the wane. The suspen- 
 sion of the militia system, which, since 1829, had been the rule 
 did their influence no slight damage. Much further in this 
 direction went the reforms in the pauper, highway, and sanitary 
 administration, by which the justices of the peace were 
 confined to a general jurisdiction and certain powers of 
 inspection. Any further development in these loosely framed 
 unions now depended upon the organization of local govern- 
 ment in the parishes. 
 
 This lowest foundation of the parliamentary system had, 
 thanks to the office of constable, churchwarden, overseer of 
 the poor, and highway surveyor, as well as to the decided 
 development of the local rate system, become such a stout 
 pillar of the communitates, that we must look to the " cellular 
 system " of the English parishes, in its close connection with 
 the office of justice of the peace, for the real root of the resist-
 
 732 Constitutional History of England. 
 
 ance made by the communitates in the great constitutional 
 conflicts. The ruling class was, however, to blame for the fact 
 that in the course of the eighteenth century the local parochial 
 offices had become degraded beneath their real significance. 
 The old office of constable had become reduced to a despised 
 policedom, which the better-situated inhabitants filled with 
 substitutes. The smallness of the poor and highway districts, 
 which was pushed further and further in the interest of the 
 large landed proprietorships, pressed down these offices like- 
 wise to a mechanical service, which was but little sought for 
 and little esteemed. Even the much-boasted English jury 
 suffered under the increasing evil, that all the better classes 
 withdrew themselves from serving, partly by the aid of the 
 law, and partly by the sheriffs' bureau. Whilst thus the offices 
 sank deeper and deeper, the mass of local rates increased, 
 and, indeed, in proportion as the said offices were badly 
 managed. The demand for a radical reform made, accord- 
 ingly, from the outset the economic employment of rates 
 its chief point. The reform forthwith took the direction of 
 an adequate control of the often exorbitant expenses by 
 trustworthy men in the form of a board. All that the rate- 
 payers claim, is a share in determining how their money is to 
 be spent, and in appointing the officials who are to collect 
 and spend it (influence and patronage), nothing more. Im- 
 provements in the poor laws, in the administration of high- 
 ways, and in sanitation, nay, the whole province of social 
 reform, required not only rates, but an extended personal 
 activity for the present welfare of the district. These high 
 personal duties (which were not forgotten in the German com- 
 munal legislation) have been perfectly overlooked amid the 
 English party struggles and conflicts. The degradation of the 
 small parochial offices was attended by the consequence, that 
 even in England the importance of the personal honorary 
 office was completely underestimated. But, before all else, it 
 was the nature of legislation born of parliamentary conflict, 
 that only new rights, never new duties, were the objects of 
 contention, for which latter in the present parliamentary 
 elections it would have been utterly impossible to find a 
 majority. In perpetual compliance with "public opinion," 
 the legislature now let all personal obligation to serve on the 
 new boards and parochial offices fall, and went even so far as 
 to expressly release the parochial representatives from all 
 personal "responsibility." (3) In the place of responsible 
 
 (3) An apparent exception is speaks of an obligation to undertake 
 
 furnished by the English municipal civil offices. But such a precept only 
 
 law of 1835, which, in accordance with remains on paper, when an universal 
 
 the old traditions of civic corporations, equal right of citizenship is extended
 
 The Parliaments of the Nineteenth Century. 733 
 
 authorities for carrying on a legal local government, according 
 to the principles of self-government, ratepayers' local parlia- 
 ments were created, which, after John Stuart Mill, gradually 
 came to be known as " local parliaments." 
 
 With this fatal step, that of doing away with every personal 
 obligation and responsibility within the communa, the roots of the 
 whole structure have been eradicated, and this change, but 
 little noticed, will be productive of more momentous conse- 
 quences for England, than the abolition of universal military 
 service would for modern Germany. Here is the organic fault 
 in the political system of modern England, a fault productive 
 of even acuter symptoms. With this abolition of the personal 
 duties of citizenship, the community actually passes into a 
 limited company system, which quite erroneously goes by the 
 name of self-government. The government of a commune 
 can, from its very nature and essence, be as little based upon 
 a system of voluntarism, as the national defence can be 
 entrusted to volunteer corps pure and simple. The govern- 
 ment of these integral limbs of the State-whole can only be 
 conducted in accordance with the laws of the land, and the 
 local resources obtained by compulsory rates may not be em- 
 ployed otherwise than to legitimate ends. But as the new 
 boards declined all responsibity, the law was obliged to make 
 the small paid clerks, auditors, inspectors, etc., a$ being State 
 officials, responsible for such government, and, consequently, 
 to place the rights of dismissal, discipline, and supervision 
 under a central board. In order to make this inspectorial 
 right effective, all details of this administration must be kept 
 under the strictest control, exercisable by State inspectors and 
 auditors. Thus arose the modern system of internal govern- 
 ment by " boards," which, in its centralization and " tutelle 
 administrative," is very similar to the French. But, together 
 with the responsibility, the essential part of the official 
 influence passed to the paid officials, and left only inferior 
 functions to the remaining local commissions and honorary 
 officers, so much so that the inclination of the upper classes 
 to take part in it disappears more and more, and more still 
 that of the justices of the peace to share in such a piece 
 
 to every household. Nine-tenths of author once (1860) proved, by the local 
 
 these small households can never statistics of Berlin and other towns, 
 
 undertake a civic office or be called on that the participation of the ratepayers 
 
 juries, and are never summoned for of the third-class in the personal duties 
 
 the purpose, let alone being compelled of the commune is even considerably in 
 
 to do so. The self-deception of the arrear of that which they yield in 
 
 democracy in this matter can be statis- taxes, and that this very class, in 
 
 tically shown, where, as in Prussia, demanding an equal suffrage in the 
 
 owing to the three-class system of the commune, claims ten to twenty times 
 
 ratepayers the real performances of as much as its performances would 
 
 the small households are seen. The justify.
 
 734 Constitutional History of England. 
 
 of business, where they are even made ex-qfficio members. 
 The unavoidable consequence was, that the degraded constable's 
 office surrendered all its police functions to paid policemen, 
 and was finally entirely given up by the legislature, and that 
 the overseers of the poor and the highways were in great 
 measure replaced by petty, paid officials. To external view, the 
 result of these reforms may be summarized as follows: A 
 corps of gendarmerie in uniform, nearly 35,000 men strong, 
 and an almost equally strong staff of clerks and subordinates, 
 as successors of the officials of self-government ; a retirement 
 of the wealthy and educated class from parochial life ; this 
 government held together and kept going by a wider and ever 
 wider system of ministerial inspectors and rescripts. The 
 extinction of a " parochial mind " is the ever louder cry, 
 without reflection how party legislation has, in eager rivalry, 
 brought about this dissolution of the moral and legal bond of 
 union in the communes ; so that ratepayers now stand side by 
 side like so many shareholders in a company. This causes even 
 the feeling of personal community in a union of neighbours 
 to disappear, whence proceeds a further demand for a ballot, 
 by which the elector completely isolates himself, and declines 
 all moral responsibility, just as the representative of the 
 parish refuses all legal responsibility. The bureaucracy 
 humoured public opinion here also, by the invention of nomi- 
 nation papers, sparing the electors all trouble of meeting, 
 deliberating, consulting, and counting ; thus reducing the act 
 of electing to a few strokes of the pen, which the elector 
 puts on his voting paper. This is the last residuum of self- 
 government, the sole trouble with which the industrial society 
 of these days believes itself capable of exercising and asserting 
 the " sovereignty of the people." 
 
 So do the communitates from year to year become further 
 dissolved, these bodies upon whose personal cohesion the par- 
 liamentary system, at its rise as also in the course of its 
 further development, rested, (4) and naturally do the altered 
 views of the reorganized bodies react upon the House of 
 Commons, upon the position of the leading party men, upon 
 the press, and upon "public opinion." 
 
 The power of tradition has preserved to the elections, in the 
 majority of counties, a certain permanent character, which is 
 also the case with a great number of enfranchised towns; 
 least of all, of course, in the rapidly increasing populations 
 of the great manufacturing centres. But, in proportion as 
 the process of dissolution proceeds, do purely social views 
 and opinions assert themselves, whose feelings are dependent 
 upon the last impression, and whose aims are directed at 
 (4) Cf. Gneist, " Engl. Self-Government," 3rd edit. (1871) chaps. 9-12.
 
 The Parliaments of the Nineteenth Century. 735 
 
 their closest interests. The House of Commons has for a long 
 time past appeared to these circles to be no longer a represen- 
 tation of communities being organic unions of State, Church, 
 and society but as a representation of the temporary in- 
 terests of the inhabitants of certain districts or groups. Whilst 
 it is precisely in England that the institutions of the parish 
 and the county, the parliament and the Church, have long 
 laboured to form the counter-pole and the counter-organism 
 of social interests, to compel the individual and accustom him 
 to understand and fulfil his personal obligations in the life 
 of the community, even against the natural bent of his in- 
 terests : so also, after the parochial mind has become extinct, 
 does society conceive of patriotism, self-control, and a sense of 
 justice as products of voluntarism. Immeasurably multifarious 
 is now the growth of social ideas, as to the improving of popular 
 representation by new groupings and distributions. Woman's 
 suffrage has obtained a considerable minority in the Lower 
 House, and the " representation of minorities " scheme a con- 
 siderable support in the Upper. Even many ministerial pro- 
 grammes for a second Eeform Bill make the impression of 
 dilettanti attempts. Every plausible idea of a new grouping of 
 interests is regarded as an important discovery, until forgotten 
 over the next fancy. Only up to this point does society 
 become more and more unanimous : that the individual shall 
 exercise his share in the " sovereignty of the people," isolated 
 and alone and without responsibility, that is by the " ballot." 
 The more the douce violence, with which the parliamentary con- 
 stitution, when at at its zenith, pressed upon social interests, 
 made itself felt, the freer did the English elector fancy that 
 he breathed under the ballot. 
 
 As soon as local unions have ceased to form the links in 
 the chain of public interests, there remains only the press 
 and the right of unions as the common bond. (5) As the 
 last-named can only exercise its influence locally and tem- 
 porarily, the press, which has now attained its full liberty, 
 remains the leading factor. After the censorship (1695) had 
 been removed, a very sensible limitation was still left in the 
 draconic jurisdiction of the courts of law, in cases of sedition, 
 conspiracy, and libel. By the Fox Act (1792), this limitation 
 was much weakened, as the jury were now required to deliver 
 their verdict as to the criminal intent of the author. Ever 
 
 (5) It is nothing but self-deception, becomes thus all the more felt, and the 
 
 if we believe that this dissolution of more does the press and the political 
 
 the bases would be improved were right of union remain the sole bond, 
 
 groups of proprietors, professions, with which the representation of the 
 
 religious societies, etc., to be all nation could under such circumstances 
 
 formed once more into corporations. attach itself to the Government. 
 The lack of a common bond of society
 
 73(> Constitutional History of England. 
 
 since the Reform Bill of 1832, the criminal prosecution of the 
 press by the Attorney-General was considered to be ill-advised 
 and unpractical. Lord Campbell's Act (1842) enunciated 
 what was really an already existing practice : declaring the 
 intention of " promoting the public weal" to be a sufficient 
 ground of justification. A statute of 1841 withdrew all publi- 
 cations issued under parliamentary authority from prosecution. 
 The year 1853 abolished the taxes on advertisements, and the 
 year 1855 the last remnant of a stamp duty. The struggle 
 for the Reform Bill, and the powerful conflict of interests which 
 raged round the repeal of the corn laws, had shown the hitherto 
 unknown but now irresistible power of the daily press. It 
 was now actually free, that indispensable and universally 
 necessary organ for the protection of interests, in all its 
 excellent and admirable efficacy; yet irresponsible withal, 
 more irresponsible than the new boards, accessible to all 
 errors, and thus insufficient for giving to social aspirations 
 and aims that moral and legal check which the State 
 needs. (6) 
 
 These new vacillating bases of the elective bodies show 
 plainly enough the altered party-groupings of this generation. 
 After the repeal of the Test and Corporation Acts, the time 
 for practical action on the part of the High Tories and High 
 Churchmen was past and over. The Moderate Tories, taking 
 part in the government of the country, called themselves 
 Conservatives. The term Liberals, for the Whigs, gradually 
 became customary, yet with a left wing of Radicals, and 
 many other generally uncomfortable associates. The large 
 Liberal majority (486) in the first reform Parliament, became 
 very soon diminished, owing to internal dissensions. The later 
 parliamentary elections gave (1835) 380 Liberals to 273 Con- 
 servatives, (1842) 286 L. to 367 C., (1847) 325 L. to 331 C., 
 the latter, however, divided into 216 Protectionists, and 105 
 Free Traders, (1852) 315 L. to 299 C., (1859) 348 L. to 315 C., 
 (1866) 361 L. to 294 C. The appellation Liberals and Con- 
 servatives was, however, only a conventional term; as a matter 
 of fact, there sat in the Parliament of 1837 six fractions : 
 100 Ultra Tories, 139 Tories, 80 Conservatives, 152 Whigs, 
 100 Liberals, and 80 Radicals. It is evident how much, 
 owing to the constant disintegration into small fractions 
 which was taking place, the difficulties of forming a cabinet, 
 both harmonious within, and at the same time in accord with 
 the majority in the Lower House were increased. And these 
 difficulties were added, moreover, to the more and more com- 
 
 (6) The development of the im- (1769) in the famous and notorious 
 portance of the press, which a hundred letters of Junius, could here be only 
 years previously made its power felt generally referred to.
 
 TJie Parliaments of the Nineteenth Century. 737 
 
 plicated problems which the government of a world-wide 
 empire was called upon to solve. 
 
 There was scarcely a single year, in this period of 35 
 years, which was not marked by bad harvests and famine, by 
 commercial and industrial crises, by revolts in Ireland, by 
 the rising of Chartists and operatives, by rebellions in the 
 colonies, by the insurrection of the great native army in 
 India, and by great foreign wars all this intermingled with 
 internal conflicts as to protection and free-trade, and great 
 social and ecclesiastical interests. The necessary conse- 
 quence was a rapid change of ministers Grey, Melbourne, 
 Peel, Eussell, Drby, Aberdeen, Palmerston ; 13 changes 
 within 35 years. 
 
 The weakest point, however, was and remained the organiza- 
 tion of the parish and new reforms in the parliamentary 
 representation. 
 
 For half a generation after the Eeform Bill, public opinion 
 was sufficiently busied with other questions, as not to think 
 of extending the franchise at once. The claims made upon 
 the reformed popular representation were so multifarious and 
 numerous, that the House (after 1839) was obliged to decline 
 the discussion of the petitions presented to it, and to con- 
 tent itself with printing the more important ones. But the 
 almost universal suffrage, which the Municipal Corporation 
 Act and the new local boards had granted, passed from the 
 local unions into the parliamentary constitution. As the 
 healthy bases of self-government once did, so now did the faulty 
 bases of boards determine the character of the body elected 
 from them. Once more it was the February Revolution in 
 Paris (1848) which spread its contagion to England, and, in 
 the year 1851, the motions of Locke King found such support, 
 as to cause Russell's ministry to bring in a new Reform Bill 
 on the part of the Government. In spite of his former assur- 
 ance, that the reform of 1832 should be final, Lord John 
 now arrived at the opinion, that the lowering of the qualifica- 
 tion from 10 to 5 would even have a " conservative " effect. 
 But a principle for electoral reform could no longer be found, 
 now that the obligation to do personal service had been aban- 
 doned in the whole chain of local institutions. Meantime also, 
 the obligation to pay rates had been dropped, since, in order 
 to render the collection of the smaller rates easy, it had 
 become permissible to levy upon the landlord instead of upon 
 the occupier (compounding rates), which in the great majority 
 of cases was very soon taken great advantage of. By a 
 fiction of law, the occupier might exercise the franchise, " as 
 if he paid rates." If thus the payment of rates as a con- 
 dition of a right to the suffrage was removed, a qualification 
 
 3 B
 
 738 Constitutional History of England. 
 
 of 5 remained just as justifiable as one of ,10 yearly value. 
 But all disputing upon the point led to resolutions passed in 
 numerous assemblages demanding the lowering of the qualifi- 
 cation. All discussion led to the same result in the eyes of 
 public opinion. Then began a rivalry between Liberal and 
 Conservative party ministers with offers of reform, and con- 
 tinued for half a generation; each party endeavouring to 
 take the wind out of the other's sails. At the last crisis, 
 (1866) Gladstone offered to lower the qualification for occu- 
 piers to 14 in counties, and 7 in the boroughs, but was 
 out-trumped by Disraeli, who (with certain amendments on 
 Gladstone's side) descended to 12 for the counties and a 
 general uniform household suffrage for the boroughs. In a 
 parliament, wearied out by electioneering discussions, the 
 third reading of the Eeform Bill of 1867 passed the Lower 
 House without a division, with the following results. 
 
 I. SSSttf) teQaro to tfje constituencies, the second Eeform Bill 
 was forbearing. It disenfranchised no borough entirely ; 
 38 boroughs (under 10,000 inhabitants) were, however, re- 
 stricted to a single member. Liverpool, Manchester, Bir- 
 mingham, and Leeds, received an additional member each ; 
 ten new boroughs were created. In constituencies returning 
 three members, for the future only two votes to be given, in 
 order to realize the experiment of minority-elections. (7) 
 
 II. &S to qualifications, the forty-shilling freeholders in the 
 counties retain the franchise, but a freehold for life only in 
 case of actual possession ; the 5 freeholders obtain it even 
 without this condition. In the same way, the copyholder and 
 the 5 leaseholders, all the rest as 12 occupiers. In the 
 boroughs, every householder (whether landlord or lodger) of 
 a dwelling or an independent dwelling obtained the franchise ; 
 sub-lessees also, if the lodging represented, unfurnished, a 
 value of 10. (8) 
 
 III. 1&ty Electoral ptOCrtmre remained for the present un- 
 changed, yet the introduction of the ballot was looming in 
 sight. At the same time, the Lower House renounced its 
 jurisdiction over disputed elections and left the same to the 
 judges of the Supreme Court. 
 
 On the passing of the Bill into law, the result was foreseen 
 to be an increase of 2,000,000 in the electors, and, judging 
 from the success attending the doubling by the first Eeform 
 Bill, the probable success of the trebling by the second could 
 to a certain extent be foretold. 
 
 (7) The attempt still to make the Lely and Foulkes, "Parliamentary 
 
 actual payment of rates as a condition Election Acts, 1885." 
 
 of exercising the franchise, will be (8) Of. Lely and Foulkes, " Parlia- 
 
 discussed in the next chapter. Cf. mentary Elections Acts," 1885.
 
 ( 739 ) 
 
 CHAPTER LIX. 
 
 $arl laments of tfce Nttuteentf) (JDmturg Uofon to t&e 
 Ifaform mil (1884-85). 
 
 THE second Reform Bill, after its full development (1885), 
 produced the following result, as regards the electors to the 
 Lower House in England and Wales. 
 
 1. In the counties : 
 
 Freeholders, copyholders, etc. . * 514,226 
 Occupiers and tenants . . . 252,493 
 
 2. In the boroughs : 
 
 Householders and lodgers . . 1,592,225 
 Sub-lessees ; . . . . 21,918 
 Owners, etc ...... 87,589 
 
 3. Altogether : county electors, 966,719 ; borough electors, 
 1,651,732; moreover, 310,441 voters for Scotland; 224,018 
 for Ireland, and 30,642 additional electors for the universities. 
 Grand total, 3,183,552. 
 
 When compared with the elective systems of the Continent, 
 this was no excessive extension of the franchise ; for Eng- 
 land it was sufficient to make the organic fault, which had 
 been caused by the disarrangement of the bases of the 
 parliamentary constitution, both patent and palpable, most of 
 all in the province of political reforms. 
 
 The group of social reforms, which two decades earlier had 
 done away with the elective qualifications of members of the 
 Lower House, now proceeded to assail the remaining bulwarks 
 of the old ruling class. On the occasion of making reforms in 
 the army, the qualification for officers and for commissions 
 in the militia was abolished, as was also the lord lieutenant's 
 right of nomination ; in the standing army, the whole system 
 of purchase was abolished. In the Upper House, motions for 
 depriving the bishops of their legislative functions were 
 rejected still ; but a beginning was made by the removal of 
 the Irish bishops. In like manner, a proposal for making up 
 the full complement of the House of Lords by the creation of 
 life peers (1869) was negatived ; but, in reforming the Courts
 
 740 Constitutional History of England. 
 
 of Justice, some life peers were added to the Upper House ; 
 a precedent which will be abundantly followed. Still more 
 serious is the attitude of public opinion towards every attempt 
 at resistance in the Upper House ; on all such occasions, the 
 influential press lets loose in reflections as to the practical 
 value of a " second chamber," which no longer betray any 
 thought of the political and constitutional significance this 
 institution has for England. 
 
 The economic privileges of the landed classes suffer a 
 severe blow in the unhappy conditions obtaining in Ireland, 
 where the radical land bills attempt to make good the wrongs 
 of ages by attacks upon the property of living generations. 
 Further onslaughts upon family entails, and the difficul- 
 ties in the way of the transfer of land, have, for the present, 
 only obtained some limitations of the first, and some sim- 
 plifications of the second. But the agitation against the 
 immoderate extension of the Latifundia, and for converting 
 the system of tenure into peasant proprietorships, under the 
 catchword " free land," appears steadily on the increase, 
 and will, within measurable distance, assume a very threaten- 
 ing form. 
 
 The demand for the equality of Churches again begins its 
 attack upon the Anglican Church in Ireland, the position of 
 which, as the sole privileged Church for little more than a 
 tenth of the population, became, after the Act of Emancipa- 
 tion, more and more untenable. After comparatively little 
 resistance, this Church was (1869) "disestablished," and 
 partially deprived of its property as the first step towards a 
 further process of disestablishment, which began in England 
 (1868) with the abolition of the church rate. 
 
 Laudable, however, is the steady progress of social reforms 
 in the interest of the working classes : the wider applica- 
 tion of the factory acts ; thorough improvements effected in 
 the sanitary system, entailing very heavy pecuniary burdens 
 upon the parishes ; the energetic institution of compulsory 
 schooling, with the lowering or abolition of school fees, 
 and with a rapid increase in the number of school-board 
 schools for children of all denominations ; the progressive 
 laying down of a "jus aequum," determining the respective 
 liabilities of employers and employed in comprehensive new 
 laws ; the provision seriously made for the amelioration of the 
 dwellings of the working classes and other kindred measures, 
 all which, though they do not prevent the revival of socialistic 
 movements, will yet tend, to a certain extent, to keep them 
 within legal bounds. 
 
 The second group of administrative reforms likewise assumes 
 a more resolute character.
 
 The Parliaments of the Nineteenth Century. 741 
 
 The standing army is made a normal national institution, 
 by the promulgation of an army Administration Act in fixed 
 terms (reserving an annual confirmation or emendation), and 
 by the abolition of purchase of commissions in the army 
 (entailing a pecuniary sacrifice amounting to ^68,000,000) ; 
 further, by ranking the East Indian army in the armed 
 forces of the State, by definitely organizing the limbs of the 
 army, by the formation of reserves, by incorporating the 
 militia and the volunteer corps into the system of the army 
 reserve, and finally by a uniform and strict administration 
 of the whole in the newly organized War Office. 
 
 The reform of justice (after a protracted resistance) now gives 
 to the Supreme Courts also a completely modernised form, 
 by uniting the Lord Chancellor, the Vice-Chancellors and all 
 the Lords Justices into one Supreme Court of Judicature, con- 
 sisting of five divisions and a Court of Appeal ; fusing, as far 
 as possible, the Courts of Common Law, of Equity, the Eccle- 
 siastical Courts and other special courts into one single 
 tribunal, with an entirely remodelled procedure. 
 
 In the province of finance, important alterations are 
 effected by the organization of the disintegrated tax depart- 
 ment into two Revenue Offices, by the extension of the 
 postal system, by the State purchase of telegraphs, and by the 
 extension of State supervision over private railways. 
 
 In the home department, local government continues to 
 make steady progress by means of boards. The poor-law 
 burdens pass from the parishes to the unions, and the high- 
 way and sanitary supervision gradually coalesces with the 
 same system. The new small unions, or agglomerations of 
 parishes, are to be brought, as far as possible, into con- 
 nection with the magisterial police divisions. In the towns, 
 legislation aims at fusing, as far as possible, the town council 
 with the several boards constituted for the management of 
 the poor, the highways, and sanitary matters. The bureau- 
 cratical system of home government is comprehended (1871) 
 under a new ministerial department (Local Government 
 Board). The elementary school administration takes a 
 similar course, though in smaller spheres. The remnants of 
 self-government are thus extinguished in the villages. The 
 parish is reduced to a mere district for the collection of rates 
 and the election of boards. The total result of these forma- 
 tions is given by the census of 1881 for the local government 
 as follows : 242 towns with municipal government, 649 unions, 
 424 highway boards, 1006 urban sanitary districts, 277 rural 
 sanitary districts, 2051 school-boards, 5064 parishes for high- 
 way administration, 14,946 parishes for poor-law administra- 
 tion, 13,000 church parishes and some other less numerous
 
 742 Constitutional History of England. 
 
 formations, all which are in imminent danger, on the occasion 
 of the next reform, of being reduced to a mechanically 
 uniform system of boards under the control of the central 
 authorities. But the boards, with their universal suffrage and 
 ballot, are paving the way for more advanced parliamentary 
 reform. 
 
 There now follow for the reform of the universities, the yet 
 more radical University Eeform Acts (1880) ; whilst the 
 popular educational system is benefited by the National 
 Education Acts (1870, 1873, 1876), which, by insisting upon 
 compulsory schooling, by uniformly constituting school-board 
 commissioners and inspectors, by placing all denominations 
 upon an equality, and by the employment of considerable State 
 funds, develop and extend the elementary school system as 
 the law intends. Parliament itself is responsible for the 
 saying, that after the large extension of the franchise " our 
 future masters " must to some extent be educated for their 
 profession. 
 
 The reform of the Civil Service, after the eradication of the 
 abuses of party-patronage, though somewhat pedantically, 
 has, on the whole, been successfully carried out. 
 
 Even in this sphere of action, an unprejudiced opinion 
 cannot refuse to recognize the practical shrewdness and 
 energy of this parliamentary legislation, so far as is necessary 
 for the attainment of the nearest aims and objects. 
 
 But the dark side is seen in the third province ; that of the 
 organic legislation affecting the local and parliamentary con- 
 stitution, where disintegration proceeds at a rapid pace. 
 
 In the discussions precedent to the passing of the Eeform 
 Bill of 1867, a serious attempt was made, upon the Conserva- 
 tive side, to insist upon the payment of rates as the condition 
 and test of all rights of suffrage. The difficulty of carrying 
 this scheme into effect was due to the fact, that the suffrage 
 was hitherto based upon tenure, as owner, leaseholder, lodger, 
 etc. But yet this clause was passed, viz., that the occupier, 
 for whom the landlord has undertaken to pay rates through 
 the "compounding rates," should only have the suffrage, in 
 case he personally undertakes the payment of rates. But 
 the force of habit and convenience, as well as the pretended 
 difficulty of carrying it into effect, and before all else the 
 tendency towards social equality, succeeded in breaking down 
 this barrier. The poor-rate assessment law of 1869 quickly 
 recurred again to the maxims that the occupier should have 
 the suffrage, whether he paid the rate himself or through his 
 landlord, provided only that somebody paid the rate. This 
 solution certainly recommends itself, by its simplicity and 
 apparently humane consideration, relieving, as it does, the
 
 The Parliaments of the Nineteenth Century. 743 
 
 working classes from house rates and all direct local taxes, in 
 the same way as the upper classes have on their part also 
 released themselves from all personal obligations. But the 
 results will show on a large scale that the legislature, by 
 releasing the citizen from every civil tie, has left the " general 
 rights of mankind " as the sole basis of the claim to exercise 
 the highest political rights. The reduction of the citizen's 
 position in the State to the abstract notion of " citoyen," the 
 " atomizing " of society, which we are otherwise wont to 
 ascribe to a single political party, was here compassed in 
 active rivalry by both parties together, for the applause of 
 public opinion. Henceforward there was no longer any 
 principle extant that could resist any claim to the franchise 
 no, not even the enfranchisement of women and minors. 
 There was thus presented a real chaos of new ideas of reform. 
 The innate right thus created, then, logically claims to be 
 exercised as a personal right of sovereignty, independent of 
 any connection with any commune, and without any kind 
 of responsibility, by ballot, which latter soon became a 
 storm and stress-demand of this period, and immediately 
 followed the second Eeform Bill (1872). The Upper House 
 attempted to resist, but in the ensuing session gave its consent 
 to the bill as a temporary measure, with which mental reserva- 
 tion from year to year the ballot exists until to-day. 
 
 The motions for extension of the franchise thus supported, 
 immediately followed the publication of the second Eeform Bill. 
 The equality cry at once attacked the unequal representation 
 in borough and county. Why in one case an equal household 
 suffrage, and in the other a qualification? The cry for 
 "equalization" appeared already in 1872 in new motions 
 for reform. Still more momentous was the demand for the 
 equalization of the constituencies, that is, for the creation of 
 electoral districts, equal in point of population. Pitt's old 
 maxim, that the electoral districts should be formed according 
 to an average amount of population and rates, now appeared 
 to have been forgotten. The parliaments only withstood 
 the ever-increasing pressure of popular demands for half a 
 generation longer, that is, until the third Reform Bill (the 
 Representation of the People Act, 1884), and the law for the 
 redistribution of the electoral districts (1885), which, with 
 some kindred statutes, forms a group of nine new constitu- 
 tional laws. 
 
 I. As to the constituencies, " equalization," that is, a radical 
 reconstruction of the electoral districts into divisions with 
 almost equal populations, has now been carried into effect. To 
 this end, 79 boroughs (of less than 15,000 inhabitants) have 
 been entirely disfranchised, so far as electing a separate
 
 744 Constitutional History of England. 
 
 representative goes ; 86 boroughs (under 50,000 inhabitants) 
 retain only one member; 14 great boroughs obtain an 
 increase in the number of their representatives, according to 
 the ratio of their population; 85 boroughs (having nearly 
 50,000 inhabitants) receive a new franchise. The counties 
 are one and all split up into electoral districts, nearly equal 
 in population, each division returning one representative. 
 This single seat system has likewise been uniformly intro- 
 duced in the case of the boroughs, with the exception of 28 
 middle-sized towns, which have been lft to return two 
 members undivided. The county of York, for instance, forms 
 26 electoral districts, the city of Liverpool nine. The total 
 result of this arrangement being, that the counties return 
 253 members, instead of 187, and the boroughs 237, in the 
 place of 297. The average population of a county division is 
 now 52,800 (formerly 70,800), the average population of a 
 borough division 52,700 (formerly 41,200). 
 
 II. As to qualification, the third Eeform Bill is based upon 
 the simple principle of equalization, in that the household 
 rateability of the boroughs has now been extended to the 
 counties. The occupation of a house or independent dwelling 
 (or even of a lodging of 10 rent, unfurnished) suffices in the 
 counties to give the franchise. In order to make it equal 
 with the -boroughs, the qualification of occupier in the 
 counties has been reduced from sS12 to 10. All former 
 rights to the suffrage have been reserved as in the former 
 reform bills ; some electoral privileges have, moreover, been 
 newly created in favour of service occupiers. 
 
 III. With respect to the electoral procedure, the polling 
 hours have been fixed at from 8 a.m. to 8 p.m., during which 
 the votes may be given, on the nomination-paper system, at 
 the convenience of the privileged elector. The other amend- 
 ments to the Corrupt Practices Bill and the electoral pro- 
 cedures are of no importance. The number of new voters, 
 according to an unreliable calculation, is taken at 2,000,000 ; 
 yet certain it is that the newly enfranchised are even less 
 fitted to continue the time-honoured parliamentary govern- 
 ment, than the 2,000,000 last admitted to the franchise 
 before them. 
 
 The burst of enthusiasm, which accompanied the passing 
 of the first Eeform Bill into law, had spent itself before the 
 arrival of the second. The third passed with a feeling of 
 resignation in both camps, after both opposing parties had, 
 however, each used all the methods of agitation to outbid 
 the other.
 
 The Parliaments of the Nineteenth Century. 745 
 
 The hope of the Conservatives, that the increase in the 
 number of county members and the division of the great 
 towns into several electoral districts will benefit their cause, 
 will not be realized. For the advantage thus accruing to them 
 will be more than outweighed by the fact, that the magisterial 
 gentry lose their great bond of union in the counties, and are 
 for the future distributed in knots among the small divisions 
 of the shire, each with their loosely connected poor-law 
 boards, parishes, and extinct boroughs. To this is added 
 the unhealthy want of a landed peasantry and a settled agri- 
 cultural population. Both parties will henceforward be 
 doubly dependent upon the interests and feelings of the times. 
 
 As in the ecclesiastical reformation, so also in this transi- 
 tion to the new social order, England proceeded in the opposite 
 way to continental states. Though standing upon a higher 
 step of development, England only at the close of the nine- 
 teenth century attained to the analogous conditions obtaining 
 on the Continent at the commencement of its constitutional 
 formations. A House of Commons still exists in name ; but 
 there are no longer communitates, and no longer the now anti- 
 quated responsible bodies ; nothing remains but mere social 
 groups, which find in the press and in their federations their 
 common bond of union. After the disappearance of that 
 cohesion, which in the old communitates modified their 
 joint interests by paying consideration to the demands of 
 custom and law, and which habituated the electoral bodies 
 to that measure of self-control, political sagacity, and respect 
 for law, which enabled a parliamentary party-government 
 to exist with honour, we find those social views alone of 
 influence which are perpetually engaged in struggle for 
 rights, and which, with the regularity of clock-work, repeat 
 themselves in one and the same direction among the civilized 
 nations of our day. 
 
 The social equality-cry always places in the foreground its 
 claims to the following fundamental rights : liberty and equality 
 of person, of property, of the right of forming unions, of the 
 press, of religious denominations, creeds, etc., all perfectly 
 justifiable immutable postulates of modern society, but which, 
 as abstract watchwords for heterogeneous conditions, lead to 
 contradictory pretensions which are never satisfied. 
 
 The equality-cry of society claims, under the name of self- 
 government and local liberty, not responsible bodies to carry 
 out the laws and tasks of the State, but freely elected boards 
 with autonomous powers to frame resolutions and grant offices. 
 
 The social cry of equality, as soon as it has descended from 
 the middle ranks down among the working classes, demands 
 still more, an equality of property, and an equal value for
 
 740 Constitutional History of England. 
 
 labour; which, hand in hand with the cry for political equality, 
 leads to unsolvable and violent contradictions to the nature of 
 society, the Church, and the State, but opens on every side to 
 the demagogues free scope for action. 
 
 Without seriously and uniformly enforcing the personal 
 duties of citizenship in the State, never and nowhere will a 
 stay be found against the elementary power of these currents. 
 If that tendency towards equality showed itself with redoubled 
 vigour after the second Reform Bill, so will it, after the third, 
 with threefold force give the social, administrative, and political 
 reforms an acute character, to the further democratizing of 
 the constitution and the bureaucratizing of the Government, - 
 for which the era of " radical parties " has now arrived, and 
 with it the time of the caucus and political wire-pullers ; 
 although the nation has naturally little inclination to imitate 
 American institutions. It is not street-excesses, as in former 
 decades, that are the danger of the living generation, seeing 
 that the popular education has become improved, but the 
 puritanical fanaticism of the cry for equality, that will 
 follow more Bentham's lead than that of the French, bat 
 which will on that account be all the more acute. 
 
 We might, on the other hand, again object, that the modern 
 formation of the elective bodies is similar to what has been 
 attempted more than once in continental States (under strong 
 monarchical initiative and control) without jeopardizing them 
 to any great degree. But the tenfold increase of the electors 
 in a single half century has another significance for England, 
 since the existence of ministries and the conduct of the govern- 
 ment of the realm has become almost exclusively dependent 
 upon the House of Commons. Now that all sanctions for 
 moderating the struggles for social interests have ceased to 
 be, this kind of party- government falls into a helpless depen- 
 dence upon incalculable combinations of social interests, upon 
 the relatively strongest prejudices, upon political agitation 
 and the tactical artifices of party-governments, to which, 
 under the second Eeform Bill, both Disraeli and Gladstone 
 have owed their position. 
 
 The necessary separation into a Conservative and Liberal 
 parliamentary party, so essential to parliamentary govern- 
 ment hitherto, exists no more in reality. Side by side with 
 these two parties, there are (as in Germany) radical, con- 
 fessional, national, and fractions of class interests, independent 
 members, and others, whose numbers are slowly but steadily 
 increasing. The attitude of the English parliament has 
 become so much altered under the influence of these elements, 
 that the House has been compelled to resolve upon consider- 
 able restrictions of the right of speech, and once (in 1881)
 
 The Parliaments of the Nineteenth Century. 747 
 
 had even to exclude thirty-two unruly members. Ever since 
 the Keform Bill of 1867, the disintegration of parliamentary 
 parties has set the quasi-dictatorial influence of a single man, 
 as the personal representative of the momentary average of 
 public opinion, in the place of a party-government conducted 
 in the traditional manner. Hence, until the era of radical 
 governments, coalition ministries will alone be possible. 
 
 This situation impels us to a comparison with the older 
 experiences of the Continent. Marvellous is the blindness of 
 the propertied classes to the immediately approaching crises, 
 which results from the fact that, in the narrower social spheres, 
 the dislocation of the great political institutions is not per- 
 ceived. A peer living as a private gentleman, who in former 
 generations formed quite an exception, becomes rather the rule, 
 at the very time when the Upper House will shortly have to 
 struggle for its very existence. An irresistible desire to travel 
 comes over the English gentry at a time when their presence 
 at their country seats is more necessary than ever, in order 
 that they do not entirely lose their local influence. The 
 daily press, and literature generally, move with untiring 
 energy in all the spheres of natural and moral sciences, just 
 as if the great English political system was in a haven of 
 rest. The daily press lives on in a state of self-forgetfulness 
 and self-deception as to the vital conditions of the State, as 
 if the burning question as to the "to be or not to be " of the 
 parliamentary constitution must further be decided by the 
 papal infallibility of " public opinion." Everything precisely 
 as it was once in Germany and France before great catas- 
 trophes. 
 
 But at the same time our older experiences suggest a mode 
 of solving the problem. Insensible as public opinion appears 
 to be to the sight of the abyss in which the State is moving, 
 yet, in proportion to its blindness, wonderful and violent is 
 the change wrought, as soon as the political and social catas- 
 trophes have occurred, whether they come at first from 
 without or within, or, as ordinarily happens, from both sides 
 at once. The outsider may venture to prophesy, that public 
 opinion will be difficult to recognize at the close of the century, 
 and that the influential daily and periodical press of these 
 days would be astonished, could it only be allowed to read 
 itself at the close of it, and to see how disastrous for the fate 
 of nations its idolatry of "public opinion" has been. The 
 propertied classes, in defending their own, will certainly 
 not at first display their best qualities, but the nation as a 
 whole will do so. Only amid the blows of fate and trials do 
 noble and grand nations show their true nature; only 
 then does the sense of duty towards the State, to-day
 
 748 Constitutional History of England. 
 
 latent, awake in full vigour. In this time of trials, France 
 and Germany gained the capacity to impose upon themselves 
 the heaviest sacrifices of which society is capable namely, 
 universal personal military service. The courage, the strength 
 of character and the practical sagacity of the British nation, 
 now standing before us after a thousand years of steady 
 development, are guarantees that here also the political sense 
 of duty will re-awake and accomplish the re -construction of 
 the ruined bases of its free political system. Like as the 
 human organism possesses the vital energy necessary for 
 restoring or replacing injured or mutilated functions, so too 
 does the State possess this vitality. The first problem the 
 organic legislature has to face is this ; to take in hand the 
 necessary work of reconstructing the county-constitution, in 
 which the restoration of the personal duties of citizenship in 
 self -government has for England almost the same signification, 
 as universal military service imports for continental nations. 
 As soon as this problem is taken in hand, the propertied 
 classes will at length perceive the disintegration that has 
 been proceeding in their political body, and, it is conceivable, 
 that, under the moderamen of the monarchy, a check to its 
 further progress will be given, and a change take place for 
 the better. At all events, the Crown will avert the extreme 
 dangers attendant upon a democratic conduct of the foreign 
 affairs of such an empire, owing to the fact that it has already 
 (1850) grasped these prerogatives of its own with a firm hand. 
 In the life of nations, as in that of individuals, it is friends, 
 who instead of flattering, foretell the approaching storm. 
 Uniform as is, however, the current of social movement in the 
 mid-European world, yet its issue has been various, according 
 to the differences of nationalities and their previous political 
 history. 
 
 It has been ordained that the life of a nation, as of an indi- 
 vidual, should, for its future weal, undergo such trials : yet 
 the whole of the past history of the British State, as it lies 
 before us in its thousand years' development as a creation 
 of the moral and legal consciousness of the people, justifies 
 our confidence that it will brave the storms before its path 
 and, like the German nation, whose latent strength has ever 
 resided in its communal system, find in its own past the 
 stones wherewith to reconstruct the edifice of its free political 
 system. 
 
 THE IKISH QUESTION. 
 
 NOTE TO CHAPTER LIX. The thorn halting movement into action, is Ire- 
 in the side of the parliamentary consti- land, where the conditions of property, 
 tution, which is destined to urge the owing to confiscations en masse, centu-
 
 The Parliaments of the, Nineteenth Century. . 749 
 
 ries of desolation and robbery, have 
 come into an unnatural position. The 
 dispossessed native population agitates 
 for an Agrarian Legislation ; a national 
 middle class upon hereditary estates. 
 But the model close at hand, the often 
 quoted Stein - Hardenberg agrarian 
 legislation, is not applicable to Ireland. 
 That Prussian legislation assigned the 
 fee-simple of the land to a peasantry 
 which had, for generations past, paid 
 the land-taxes and done personal mili- 
 tary service in the place of the noble 
 landowners. The legal title to the ac- 
 quisition of a " divided property " was 
 the same as in the middle ages, when 
 the nobles claimed and demanded the 
 hereditability of their fiefs. 
 
 The new Irish land bills, on the con- 
 trary, involve a partial confiscation of 
 private income, from purely political 
 and economic views of utility, for which 
 neither legal title, nor measure, nor 
 limit can be found. The greed engen- 
 dered of them will next extend to Soot- 
 land, Wales, and old England, and, 
 hand in hand with the attacks upon 
 the English State Church, drive the 
 great landowners and the ruling class 
 from a conservative into a reactionary 
 attitude. 
 
 The social tendency thus begun can, 
 however, only end in a severance of 
 Ireland from the parliamentary union 
 of Great Britain. The ever-loose cohe- 
 rence of both parts of the realm entirely 
 loses, owing to the hostile contrasts of 
 both powerful Churches and the keen 
 antipathy of races, the conditions pre- 
 cedent to a common popular represen- 
 tation. This separation of the Irish 
 political body will even be necessary, 
 in order to restore to the Parliament of 
 Great Britain that fundamental unity 
 upon which both the parliament itself 
 and the several parties depend for their 
 capability for action. On the other 
 hand, Ireland must be given that kind 
 of constitution (home rule) which is 
 practicable in the case of an essentially 
 
 Celtic nationality and a population split 
 asunder by the contrasts of religion 
 and race. This form of the future 
 " imperial dependency " will, I believe, 
 approach that of the "Napoleonic 
 Constitutions ; " a parliament, the 
 members composing which are mostly 
 appointed by the Crown, and a pre- 
 feotorial system with deliberating "con- 
 seils," which last are even now, in some 
 parts of the country, attaining to 
 greater independence, and this leads 
 us to hope that real self-government 
 will, within the next generation, be 
 attained. That the highly-gifted Irish 
 nation is, owing to its want of self- 
 oontrol, but little suited for the direct 
 application of English institutions, is 
 proved by the experiences of the United 
 States of America. 
 
 The experiences made in Germany, 
 under a strong monarchy, might seem 
 to warrant that these organic reforms 
 might be all effected simultaneously 
 after Gladstone's plans. But, under 
 the present system of party administra- 
 tions, they can only take a course 
 accompanied by violent and fitful move- 
 ments within the great social body. 
 They go too far in both directions 
 to suit the present party-programmes, 
 and call in view an " era of radical 
 parties " which alone will be capable of 
 passing Irish land bills, introducing 
 reforms in the land and effecting a 
 certain " disestablishment " of the An- 
 glican Church. It will probably be 
 reserved for the reactionary epoch 
 ensuing to give the " imperial depen- 
 dency," Ireland, a fitting constitution. 
 This done, and when political parties 
 have calmed down, we shall be able to 
 look forward to the beginning of the 
 internal reconstruction of the constitu- 
 tion upon the basis of the new " com- 
 munitates," now once more coherent, to 
 the reconsolidation of the influence of 
 the propertied classes, and to the return 
 of normal parliamentary activity.
 
 INDEX. 
 
 Abbots, 69, 201, 347, 398, 422 ; last, in 
 
 House of Lords in 1539 and 1559, 474 
 Abhorrers, 698 
 
 Acts : Alien, 712 ; Corporation, 584, 715 ; 
 Ecclesiastical Titles, 730 ; Gilbert's, 
 644, 645; Habeas Corpus, 601, 602; 
 Merchant Shipping, 727 ; Mutiny, 634 ; 
 National Education, 742 ; Navigation, 
 716 ; Public Health, 727 ; Septennial, 
 703 ; Settlement, 626, 629 ; Supremacy, 
 488, 491, 492, 539 ; Test, 584, 585, 598, 
 611, 679, 715 ; Traitorous Correspond- 
 ence, 712; Triennial, 555 ; Uniformity, 
 474, 488, 492, 539, 584; University 
 Reform, 742 
 
 Accursii, Franciscus, 502 
 
 Actiones (legis), 648 ; adversus fiscum, 
 648 
 
 Admiral, Lord High, rank of, 502 ; office 
 discontinued, 692 
 
 Admiralty Court, 333, 464, 509, 692; 
 department of, 692 ; Lords of the, 692 
 
 Advocates, 320 
 
 Alfred the Great, army personally or- 
 ganized by, 17 ; his apportionment 
 of the revenue, 29, 61 ; bases of claim 
 to throne, 32 ; beneficial rule of, 36 ; 
 division of England into counties at- 
 tributed to, 41 ; his grants for mainte- 
 nance of monasteries and churches, 
 poor, and schools, 61 
 
 JElla, of Sussex, first Anglo-Saxon leader 
 to adopt title of " Cyning," 12 ; Bret- 
 walda of Heptarchy, 35 
 
 ^thelberht, of Kent, Bretwalda, 35; 
 liberality to church, 63 
 
 JEthelingi, hereditary nobles related to 
 king, 14, 37, 47 
 
 JEthelred 1L, weakness of, 36, 72 
 
 jEthelstan, beneficial rule of, 36 
 
 Ager privatus. Vide Land. 
 
 Ager publicus. Vide Land. 
 
 Ayistors, 324 
 
 Agriculture, development of, in middle 
 ages, 424 
 
 Aidt. Vide Taxation. 
 
 Aldermen. Vide Ealdorman. 
 
 Ales, 529 
 
 Alfr., contraction for Alfred, 1 
 
 Alfred t/x Great. Vide JElj'rcd. 
 
 Alien Act, 712 
 
 Allen, William, 561 
 
 Allodial tenure of land. Vide Land 
 
 Tenure. 
 
 Almshouses, attached to monasteries, 61 
 Alyngton, William, 331 
 Amerciaments, or Fines. Vide Fines. 
 Angevin, Bernhard, 430 
 Angli, the principal colonizers of Britain, 
 2 ; grants of lands to, 108 
 
 Anglican Church. Vide Church. 
 
 Anglo-Saxon, colonization of Britain, 1, 
 2; military chieftainship the earliest 
 bond of union, 2, 3 ; distinction of land 
 into private (boc-land) and public 
 (folk-land), 3; rise of landlords and 
 degradation of peasants or freemen, 
 3, 4 ; antipathy of, to Danish invaders, 
 86-88 ; use of Anglo-Saxon language in 
 Norman law-courts, 140,141. Vide also 
 Church, Education, Judicial System, 
 King, Labourers, Land, Land Tenure, 
 Military System, and Police System. 
 
 Anne, her right to the throne established 
 by the Act of Settlement, 629 
 
 Anselm, Archbishop, quarrels with Wil- 
 liam II., 196, 197, 198; recalled by 
 Henry I., with whom he also quarrels, 
 197 
 
 Appeals. Vide Judicial System. 
 
 Appellate jurisdiction. Vide Judicial 
 System. 
 
 Archbishop, fine of, for breach of peace, 
 75 
 
 Archbishop of Canterbury, rank of, 501 
 
 Archdeaconries, 61 
 
 Aristocracy. Vide Classes. 
 
 Army. Vide Military System. 
 
 Array. Vide Military System (Tudor). 
 
 Articles, the Thirty-Nine, 488 
 
 Arundel, Earl of, claim to a barony by 
 tenure, 356 
 
 Arundel, Thomas, Archbishop, impeached, 
 341 
 
 Aihburnham, Sir W., 692 
 
 Assessments. Vide Taxation. 
 
 Assessors. Vide Taxation. 
 
 Assize, 148, 234, 236, 238, 375 ; justices 
 of, 226, 292 
 
 Assize of Arms (27 Henry II.), 134, 280, 
 287 
 
 Assize of Clarendon, 154, 197, 199, 206,
 
 752 
 
 Index. 
 
 208, 234 ; articles of, 197, 199 ; a tem- 
 porary instrument of parliament, 206, 
 235, 239 
 
 Assize of Northampton, 197, 199, 206, 
 208 ; formation of circuits at, 226 
 
 Assize of Woodstock, 325 
 
 Assizes. Vide Judicial System. 
 
 Athlb., contraction for ^Ethelberht, 1 
 
 Athlr., contraction for ^Ethelred, 1 
 
 Athlst., contraction for ..Ktlielstiitt, 1 
 
 Atkyns, Judge, 600 
 
 Attachment, Court of, 324 
 
 Attainder, Bill of, 371, 419 
 
 Attorneys, 220 
 
 Auditores compotum, or Auditors. Vide 
 Exchequer. 
 
 Auditor-General of the Plantations, 694 
 
 Augmentations and Revenues of the 
 Crown, Court of, 509 
 
 Auxllia. Vide Taxation. 
 
 B 
 
 Bacon, Sir Francis, 522, 550 
 
 Bacon, Sir Nicholas, 620 
 
 Bailiff. Vide Gerefa and Mayor. 
 
 Bailiffs, bound, 641 
 
 Bailwyck, 182 
 
 Ballistarius, 291 
 
 Ballot, injurious influence of the, 734 ; 
 introduction of, 743 
 
 Banco, Justice in. Vide Judicial System. 
 
 Bancum, or bench, meaning, 228, 230. 
 Vide Judicial System. 
 
 Banneret, 318, 620 
 
 Barnardiston, Sir S., 599 
 
 Baronet, 619, 620 
 
 Barons, 75, 77 ; first use of term, by 
 Pope Nicholas II., 98 ; Barones 
 majores, or lords, under William I., 104, 
 236, 273 ; Barones minores, or war-men, 
 104, 236, 275 ; Barones scaccaria, 184, 
 185 ; gradual modification of meanings 
 of term, 236 ; Barones majores and 
 minores recognized by Exchequer, 236, 
 237 ; at court, 237 ; and by people, 237 ; 
 but not in law, 237, 238 ; action of 
 barons in procuring Magna Charta, 
 241-244, 251-254; renewal of dispute 
 of barons with John and the Pope, 255, 
 256 ; excommunication of, 256 ; armed 
 opposition of, to Henry III., 260; 
 assemblies of magnates and, for re- 
 gulating government affairs, 261, 262 ; 
 growing influence of, over Henry III., 
 261-263 ; claims of, to share in govern- 
 ment, 262-264 ; war of, with Henry III., 
 264, 265, 267 ; defeat of, 265 ; failure 
 of, to represent nation owing to class 
 interests, 269 ; power of, in army of 
 middle ages, 289, 290 ; and in Parlia- 
 ment of middle ages, 347-349 ; baron 
 recognized as an hereditary title of 
 nobility, 353 ; creation of the first 
 baron, 353 ; distinguished as chivalers, 
 milites, armigeri, and domini, 354 ; no 
 barony held by tenure, 356 ; expendi- 
 ture and retinue of, temp. Edward III., 
 
 424 ; weakening of the baronial sway, 
 425, 426 ; altered position of, in the 
 seventeenth century, 617 
 
 Barons of the Exchequer. See Exchequer. 
 
 Basset, Ralph and Richard, 215, 223 
 
 Bastardy, 655 
 
 Bath, Order of the, founded, 430 
 
 Beadle, 617 
 
 Beauchamp, Lord, first hereditary baron, 
 353 
 
 Beaufort, Cardinal, 415 
 
 Beaumont, R. de, 215 
 
 Becket, Thomas, contumacy and punish- 
 ment of, 195, 197, 199, 234 ; murder of, 
 197 199 
 
 Bedford, Duke of, 320, 415 
 
 Bedfordshire, county of Bedefordscira, 
 38 
 
 Beggars, legislation against, 467, 468 ; 
 regulations against, 520-522 ; alarming 
 increase of, in reign of Elizabeth, 521 
 
 Belgium, separation of, from Holland, 
 730 
 
 Bench, Court of King's. See Judicial 
 System. 
 
 Benefacta, R. de, 215 
 
 Benevolences. Vide Taxation. 
 
 Beresford, Simon de, 341 
 
 Berkeley, Thomas de, 341 
 
 Berkshire, county of Berocscira, 38 
 
 Bernicia, kingdom of, 34, 39 
 
 Bible, liberty to read, as a means for in- 
 ducing the Reformation, 537 
 
 Bill of Attainder, 371, 419 
 
 Bill of Pains and Penalties, 590 
 
 Bills, private, in parliament, 375 
 
 Bishops, worth of, 10, 77 ; members of 
 legislative council, 10, 30, 68 ; ap- 
 pointed by king, 30, 190, 195 ; position 
 of prelates in Anglo-Saxon state, 58 ; 
 original holders of ecclesiastical au- 
 thority, 60 ; as judges, 68 ; equal in 
 rank to ealdormen and thanes, 69 ; 
 mass thanes by law, 69 ; fine for breach 
 of peace, 75 ; members of the national 
 assemblies, 83 ; ambition of, for power, 
 92 ; prelates under ^Ethelred II., 93 ; 
 Wulfstan, the last Saxon, 104 ; free 
 election of, granted to Church, 196 ; 
 Pope claims right to confirm election 
 of, 198 ; election of archbishops con- 
 firmed by Popes, 198 ; removal of 
 Irish, from Parliament, 739 
 
 Blackguards, 609 
 
 Board of Trade, formation of, 591 
 
 Boc-land. Vide Land. 
 
 Bohuns, 217 
 
 Boni-homines, 81, 82 
 
 Boniface, Pope, bull of, 363 
 
 Boroughs: burh or byrig, originally a 
 fort, 45 ; afterwards a borough, 45 ; 
 some, specially favoured as regards 
 low rating, 45 ; gerefas of, 56 ; Norman 
 burghs, mostly royal property, often 
 coincident with cities, let out to indi- 
 viduals, 124 ; special courts- leet granted 
 to, for money payment, 157 ; repre- 
 sentation of, in Parliament, 265, 386,
 
 Index. 
 
 753 
 
 387 ; incorporated with counties for 
 militia purposes, 310 ; special court- 
 leet characteristic of, 310 ; ranked as 
 townships and hundreds for local taxa- 
 tion purposes, 311 ; increase in number 
 of, 311, 437 ; modes of electing parlia- 
 mentary representatives for, 387 ; taxa- 
 tion of, 389, 390, 643 ; municipal system 
 of, 470^472 ; increased representation 
 of, in Parliament, 593 ; cancelling of 
 charters under James II., 593, 599, 607, 
 670 ; formation of close, 593, 594, 621, 
 622, 671 ; qualifications of burgesses 
 for Parliament, 658 ; parliamentary, 
 670 ; municipal, 670 ; futile attempts 
 to disfranchise small, 716, 718 ; undue 
 representation of small, in Parliament, 
 716 ; disfranchisement of, in 1832, 720, 
 721 ; number of electors in, in 1885, 
 739 ; small, disfranchised in 1885 ; 
 representation of the larger, 743, 744 
 
 Brand, motions for reform bv, 717 
 
 Bread, assize of, 236, 298 
 
 Bretwalda, title of leading chief of the 
 Heptarchy, 35 
 
 Bridge-ales, 529 
 
 Bridyeman, Lord, 600 
 
 Bridges, repair of, 174 
 
 Bristol, exempt from fine, for murder of 
 Normans, 153 ; a staple town, 436 
 
 British State, critical position of the, 
 747 ; conditions required to bring it 
 safely through the approaching storm, 
 747, 748 
 
 British words in English language, 88 
 
 Britons, subjection and enslavement of, 
 by the early Anglo-Saxon settlers, 
 2 ; property in land recognized by, 3 ; 
 position of, with respect to Saxon 
 settlers, 86 ; some still retained pos- 
 session of land in Anglo-Saxon period, 
 86 
 
 Brook, Richard, 431 
 
 Buckinghamshire, county of Bukinge- 
 hamscira, 38, 39 
 
 Burdett, Sir F., motions of reform by, 
 rejected, 717 
 
 Buryage tenure, 434 
 
 Burgesses, number holding land in times 
 of Edward and of William I., 104, 106 
 
 Burh, or Byrig. Vide Boroughs. 
 
 Burhgemote, 45 
 
 Burnet, Bishop, 406 
 
 Burthegn, or Chamberlain, 15 
 
 Cabal, 591 
 
 Cabinet. Vide Council, Cabinet. 
 
 Caermarthen, a staple town, 436 
 
 Cambridge, payment of, for special privi- 
 leges, 169 
 
 Cambridgeshire, county of Grantebrige- 
 scira, 38 
 
 Camerarius, or chamberlain, 15, 216, 217 
 
 Cancellarius magnus, 601 
 
 Canterbury, a staple town, 436 
 
 Cantioaraland, or Kent, 40 
 
 Capitaiis baro. Vide Exchequer. 
 
 Capitalisjusticiarius. Vide Justice, Chief. 
 
 Capitula justicia. Vide Justice. 
 
 Carlisle, payment for right to elect coro- 
 ners, 169 
 
 Carucagium, or tax on hides, 176. Vide 
 Taxation. 
 
 Cashiers. Vide Exchequer. 
 
 Cavaliers, 557, 698 
 
 Castles, right of building and fortifying. 
 Vide King. 
 
 Cato Street conspiracy, 717 
 
 Ceawlin, of Wessex, Bretwalda, 35 
 
 Cecil, Sir W., 502, 504, 590 
 
 Censorship of press, 499, 584, 606 
 
 Census in time of Edward and of William 
 I., 103, 104 
 
 Ceorls, worth of, 14, 74, 75 ; rank of, 74 ; 
 distinguished from thanes, 74, 79 ; 
 also called freemen and twyhyndetnen, 
 78, 79 ; freedom and class position of, 
 
 78 ; contempt for, 79 ; opposed to eorls, 
 
 79 ; declining influence of, 90 ; posi- 
 tion of, under feudal system, 103, 106, 
 280 
 
 Cerdic, 87, 90, 94 
 
 Certiorari, writ of, 654, 655 
 
 Chamberlain, office of, in court of Anglo- 
 Saxon kings, 15 ; of Anglo-Norman 
 kings, 216 
 
 Chamberlain, King's, 450 ; rank of, 502 
 
 Chamberlain, Lord Great, 216 ; promi- 
 nent officer of permanent Council, 329, 
 330, 331; continuance of, 450; rank 
 of, 501 ; functions of, 692 
 
 Chamberlains of Exchequer. Vide Ex- 
 chequer. 
 
 Chancellor of the Exchequer, sale of office 
 of, 171, 219; high position of, im- 
 portant duties performed by, 218-220 ; 
 Lord Chancellors and Keepers of the 
 Great Seal, 219, 317, 501 ; important 
 as royal secretary and cabinet coun- 
 cillor, 219 ; first mention of office in 
 time of Henry III., 232 ; Lord Chan- 
 cellor's office formed into a separate 
 court of law, 329 ; his seat on per- 
 manent Council, 329 ; forms part of 
 commissions to deal with special legal, 
 financial, and equitable business arising 
 in Council, 381-333; important posi- 
 tion of Lord Chancellor in the Council, 
 335-337, 501 ; social position of early 
 Lord Chancellors, 337 ; many were 
 clergymen, 337 ; rank of Lord Chan- 
 cellor, 501, 503; nearly all lawyers 
 after 1592, 501 ; functions of Lord 
 Chancellor, 501 ; chief functionary in 
 Privy Council, 689 ; position of Lord 
 Chancellor in modern times, 691 ; 
 position and functions of Chancellor of 
 the Exchequer, 691, 692 
 
 Chancellor of the Duchy of Lancaster, 695 
 
 Chancery, Court of, formation of, 329, 
 337 ; officers of, 337, 691 ; Masters in, 
 337, 691 ; continuance of, 508 ; reform 
 of, 716 
 
 So
 
 754 
 
 Index. 
 
 Charles /., conflict of, with Parliament, 
 in the matter of subsidies, 547 ; is 
 compelled to acknowledge the Pe- 
 tition of Right, 547 ; and unlawful- 
 ness of forced loans and arbitrary 
 arrests, 547 ; attempts to develop the 
 ecclesiastical supremacy into absolu- 
 tism. 547, 548 ; Catholicizing reforms 
 encouraged by, 548 ; attempts to levy 
 ship-money to meet ordinary expenses, 
 551 ; attempts to arrest members of 
 Parliament, and refuses to allow Par- 
 liament to appoint commanders of 
 militia, 55(5, 557 ; perfidy of, 558, 559 ; 
 impossibility of effecting compromise 
 between Parliament and, 558 ; over- 
 come by the Puritan standing army 
 under Cromwell, 560, 561 ; views of 
 Puritans as to conduct of, 561, 562 ; 
 inveterate kingcraftiness of, 562 ; is 
 proceeded against by Parliament and 
 executed, 563 
 
 Charles If., restoration of, 579, 581, 582 ; 
 disgraceful neglect of royal duty by, 
 587, 588 ; appears in Parliament, 592. 
 593 ; conducts State business by means 
 of a confidential Cabinet Council, 597, 
 598 ; his secret negotiations with 
 France, 597, 598 ; is bribed to intro- 
 duce Roman Catholic religion into 
 England, 597, 598 ; abuses his right of 
 appointing judges, 599, 600 ; causes 
 the judges to annul the municipal con- 
 stitution of London, 599, 600 ; appoints 
 subservient sheriffs for packing juries, 
 602 ; personal influence of, in Parlia- 
 ment, 602-604 ; national indignation 
 with bad government of, 604, 605 
 
 Charleton, J udge, 600 
 
 Charter rolls, 335, 336 
 
 Chaucer, Thomas, 331 
 
 Chester, county of Cestrescira, 38 ; county 
 palatine, 382 ; not represented in Par- 
 liament in Middle Ages, 382 ; returns 
 members to Parliament in Tudor 
 period, 474 
 
 Chichester, a staple town, 436 
 
 Chief Justice. Vide Justice. 
 
 Christianity. Vide Church. 
 
 Church : Anglo-Saxon. Quiet establish- 
 ment of Christianity,' 8, 9 ; national 
 Church versus Roman Catholics ; priests 
 derived from aristocracy ; protector of 
 the weak, encourager of education, and 
 developer of sound moral status ; 
 judicial administration largely in the 
 hands of clergy, 8 ; nationality of, 9 ; 
 land essential to clergy as intellectual 
 workers, 9 ; clergy exempt from dane- 
 geld, 29 ; half the royal revenues 
 devoted to the, by Alfred the Great, 
 29 ; under the protection and control 
 of the king, 29, 30 ; position as regards 
 the king, 30, 31 ; formation of bishop- 
 rics, 59, 60; unification and nationality 
 of ; relation of classes as regards, 59 ; 
 institutions of; bishoprics. 59, 60; 
 monasteries and nunneries of, 61, 62 ; 
 
 parish churches, 62, 63 ; early clergy 
 attached to localities, 62 ; endow- 
 ments of parish churches, 62 ; tithes 
 introduced, 62 ; distribution of income, 
 62 ; share of parishioners in manage- 
 ment of Church property, 63 ; extensive 
 property of, in land, 63, 64 ; tithes, 
 64, 65 ; local rates and customs, 65 ; 
 connection of Ciric Sceat with Church 
 rate, 65 ; connection of clergy with 
 laity, 65-68 ; spread of Christianity 
 from the higher to lower classes, 66 ; 
 celibacy in clergy, 66 ; liability of 
 clergy to taxes, and subjection to 
 secular authority, 66, 67, 68 ; judicial 
 duties of clergy, 67 ; benefits of clergy, 
 67 ; jurisdiction of , over clergy, 67, 68 ; 
 privileges of higher clergy, 69 ; rank 
 of higher and lower clergy, 69, 70 ; 
 influence of, in the national assembly, 
 69, 70, 83 ; mutual support of king and 
 clergy, 69, 70 ; Christianity of, 70 ; in- 
 fluence of, on nation, 70, 71 ; work 
 of, in blending Danes with Anglo- 
 Saxons, 71 ; relation to the pope, 71, 
 72 ; influence of Wilfrid and Dunstan, 
 71 ; ecclesiastical union of, 87 ; a 
 national reconciling element, 90, 91 ; 
 higher aims of, thwarted by land 
 interests ; influence of, in weakening 
 the national element of defence, 91, 
 92 ; sides with thanes rather than with 
 the people after Danish conquests, 91, 
 92 ; Romish views of, under Eadward 
 the Confessor, 92 ; ambition of clergy 
 for power, 92 ; influence of Christianity 
 in people, 94 ; number of ecclesiastics 
 holding land in times of Eadward and 
 William I., 104. Anglo-Norman. Re- 
 tention of land by Anglo-Saxons on 
 transference of kingdom to William I., 
 98, 103 ; number of ecclesiastics hold- 
 ing land in times of Eadward and 
 of William I., 104 ; subinfeudation of 
 land property of, 104 ; fines for neglect 
 of clergy to join troops when sum- 
 moned, 131 ; rise and decay of supre- 
 macy of, 188-201 ; influential power 
 of, 188 ; Romanizing tendency of, 188, 
 195, 199-201; endowments of; ex- 
 tensive landed possessions of, 188 ; 
 separation of ecclesiastical and State 
 jurisdiction, 189, 198, 199; nature of 
 questions dealt with by Curia Chritti- 
 anitatis, or ecclesiastical law court, 189- 
 201 ; relation of, to State, 190-201 ; ap- 
 pointment of abbots and bishops rests 
 with the king, 190, 195, 197, 198, 204 ; 
 great landed possessions of, made sub- 
 ject to feudal custom, 190, 191, 194; but 
 not the glebe lands, fees, etc., of small 
 parishes, 191 ; all clergy passively sub- 
 ject to royal court, 191, 192, 194 ; and 
 actually to police control, as also to 
 financial supremacy of king, 192 ; 
 royal supremacy over, strong under 
 earlier Norman kings, 192 ; weaker 
 under later, 193 ; popularity of, under
 
 Index. 
 
 755 
 
 Henry II., 193 ; nationality of, 193, 194 ; 
 struggle of, with Henry II. as to royal 
 supremacy ; recognition of royal pre- 
 rogatives by, 194, 234 ; appeal to pope 
 without royal licence forbidden, 194, 
 195 ; but afterwards conceded to, 195 ; 
 other concessions made, 195, 196 ; 
 benefit of clergy, 195 ; John becomes a 
 pope's vassal, 197 ; celibacy of clergy 
 gradually enforced by pope, 197 ; papal 
 legate president of the Council of West- 
 minster in 1126, 197 ; acquires right 
 to elect and consecrate bishops, 197, 
 198 ; recognition of papal legates, 199 : 
 monasteries exempted from episcopal 
 power ; abbeys transferred from bishops 
 to the pope, 199 ; Church estates and 
 revenues confiscated by Henry II. ; 
 followers of the king are interdicted 
 and excommunicated by the, 200 ; alli- 
 ance of, with barons against absolute 
 monarchy, 244. Middle Ages. In- 
 creasing isolation of clergy in govern- 
 ment of country, 313 ; primate claims 
 right to be present at all sittings of 
 permanent Council, 330 ; clergy mostly 
 appointed to office of Chancellor, 337 ; 
 as well as of Masters in Chancery, 337 ; 
 representation of, by spiritual lords in 
 Parliament, 345, 431 ; clergy pay taxes 
 on land held by barony, but decline 
 those on Church revenues, 361, 363 ; 
 yet agree to pay income-tax through 
 special commissioners, 362 ; state of, 
 at the close of the middle ages. 394- 
 404 ; confronting of the spiritual and 
 temporal powers, 394 ; great wealth 
 and political power of, 394, 395 ; popu- 
 larity of ; large number of clergy, 395 ; 
 co-operation of prelates and barons 
 in the central government, 395, 396 ; 
 attempt to represent smaller clergy 
 in Parliament, 396, 397 ; the clergy 
 vote money grants in convocation only, 
 397, 398 ; object to being summoned to 
 Parliament, 397, 398 ; and appear only as 
 members of a spiritual synod, 398 ; the 
 Commons resent papal rule, 399, 400 ; 
 temporary removal of clergy from high 
 State offices, 399 ; encroachments of, 
 checked by parliamentary prcemunire 
 statutes, 400-402 ; papal grants of bene- 
 fices interdicted by Statute of Provisos, 
 400, 401 ; prelate appointed jointly 
 by king and pope, 401 ; ineffective- 
 ness of the canonical free election 
 granted by John, 401 ; clergy for- 
 bidden to discuss State matters in ec- 
 clesiastical councils, 402 ; lessened hold 
 of clergy on national life, 402, 403 ; 
 struggle of, with heresy, 404, 413 ; op- 
 posing parties within the, 404 ; worldli- 
 ness of clergy under Henry VI., 418 ; 
 parliamentary precedency of spiritual 
 lords, high social position of arch- 
 bishops and bishops, 422 ; lessened mili- 
 tary contributions of clergy under 
 Edward I., 423 ; share of clergy in self- 
 
 government, 431 ; benefit of clergy 
 431, 483 ; the higher clergy have the 
 rank of knighthood, 431 ; ecclesiastical 
 supremacy is in the king, 453, 485, 
 493, 535, 536 ; influence of clergy as a 
 class, 482, 483. Tudor Period." An- 
 tagonism between State and, 460 ; 
 objection to foreign head, 460, 484 ; 
 application of penalties of prcemunire 
 to papists and dissenters, 468 ; non- 
 attendance at, punishable by justices of 
 peace, 469 ; position and weakness of 
 spiritual peers in Parliament, 473, 474 ; 
 the work of Reformation largely due to 
 parliamentary legislation, 476, 485 ; 
 interference with administration of, bv 
 Parliament, 477, 478 ; Reformation, 
 482^92; literature relating to the 
 Reformation, 482 ; weakened moral in- 
 fluence of clergy, 482, 483 ; national 
 aversion to Roman Catholic doctrines 
 and Roman primacy, 483, 484 ; dissolu- 
 tion of monasteries, 485 ; Henry VIII. 
 becomes supreme head of the, 486, 489 ; 
 hesitancy in establishing a new national 
 religion, 486; Gardiner's six articles, 
 486, 490 ; execution of opponents 
 to Reformation, 487 ; Reformation 
 fully carried out bv regency under 
 Edward VI., 487, 490"; chiefly by Cran- 
 mer and others, 487 ; suppression of 
 Reformation under Catholic Mary, 487, 
 488, 491 ; royal supremacy abolished, 
 488 ; eviction of Protestant clergy, 
 488; burning of Protestants, 488, 491, 
 492 ; re-establishment of Protestant, 
 under Elizabeth, 488, 492, 493; royal 
 supremacy reconfirmed under Eliza- 
 beth, 488, 492 ; organization of the 
 State Church, 493-499 ; recognition of 
 one ruling Church only by the people, 
 owing to close relationship of public 
 life with, 493 ; establishment of Court 
 of High Commission, 493 ; constitution, 
 objects, and powers of this court, 493- 
 496 ; continuation of the Houses of 
 Convocation, 495 ; mode of electing 
 bishops, 496 ; all ecclesiastical officers 
 subordinated to king, 496, 539 ; forma- 
 tion of bishoprics of Gloucester, Bristol, 
 Oxford, Peterborough, Chester and 
 Sodor and Man, 496 ; insufficiently 
 paid clergy, partly dependent on parish, 
 partly on landowners, 497 ; oath of 
 supremacy required of all officers and 
 servants of crown, 497, 498 ; stringent 
 measures for checking heresy, 498, 499 ; 
 hatred of Protestantism by Roman 
 Catholics, 498 ; care of poor trans- 
 ferred from the clergy to the parish, 
 614, 515 ; the rector, or vicar, the head 
 of the parish, 515 ; judicial and police 
 duties of rector, 515, 516 ; literature re- 
 lating to churchwardens, 516 ; church- 
 wardens essentially parish officers, 516, 
 617 ; and entrusted with management 
 of Church property and maintenance of 
 ecclesiastical discipline, 617 ; Church
 
 756 
 
 Index. 
 
 rate for keeping up buildings neces- 
 sitated by diversion of Church property 
 to other uses, 517, 518, 519, 522 ; clergy 
 liable to poor rate, 524. Stuart Period. 
 Relation of State and, 535, 536; 
 necessity for one State Church only, 
 
 536 ; struggle of, with Roman Catholic 
 Church for this position, 536-543 ; 
 liberty to read the Bible the means 
 of bringing about the Reformation, 
 
 537 ; discord amongst the reformers, 
 537 ; legality of Convocation ques- 
 tioned. 537 ; national religious sects, 
 
 537, 538 ; State opposition to sects, 
 538 ; intolerance of Church parties, 
 
 538, 539, 540 ; Church views as to 
 supreme sovereignty, 539-542, 559 ; 
 rights divine, 540 ; objections to politi- 
 cal matters being taken up by clergy, 
 641-543 ; completion of State Church 
 helped by sectarial violence, 543 ; 
 championship of Protestantism not 
 taken up by the Stuarts, 544-546 ; the 
 Stuart effort to develop the spiritual 
 supremacy into absolutism. 547 ; Catho- 
 licizing reforms of Archbishop Laud en- 
 couraged by Charles I., 548 ; struggle 
 between clergy and lawyers, 549 ; Court 
 of High Commission abolished, 556, 
 586 ; bishops impeached by Parliament, 
 556 ; property of, sequestrated, 556 ; 
 sides with king in civil war, 558 ; 
 religious toleration practised by Puri- 
 tans, 566 ; opposition of clergy to 
 Cromwell's government, 567, 575 ; 
 and of Presbyterians, 571 ; eviction 
 of clergy, 572 ; revival of jurisdiction 
 of, 583 ; restoration of property to, 
 583 ; parliamentary persecution of 
 Presbyterians, 583 ; exclusion of dis- 
 senters from office, 584; and of 
 clergymen from benefices, 584 ; renewed 
 connection of, with ruling class, 585 ; 
 parliamentary suffrage extended to 
 clergy, 595 ; active crusade of clergy 
 against Bill of Exclusion, 608 ; in- 
 creased strength of the Anglicans, 609 ; 
 James II. attempts to abolish Estab- 
 lished Church by ordinance, 610 ; re- 
 sistance of the clergy, 610, 611 ; Court 
 of High Commission revived by 
 James II., 610 ; but abolished by De- 
 claration of Rights, 612 ; diminished 
 wealth of spiritual lords, 616. Modern 
 Period. Reconciliation of State and 
 Established, 627, 678-680; regulation 
 of ecclesiastical power and supremacy 
 by law, 639 ; Church rate, 643, 665 ; 
 churchwardens, 644 ; select ecclesiasti- 
 cal vestries, 644 ; diminished repre- 
 sentation of, in Parliament, 672 ; the 
 Established Church as a link in the 
 system of parliamentary government, 
 676-680 ; political partisanship of 
 
 'clergy, 676, 677; antagonism to sects 
 and Roman Catholic Church, 677 ; 
 estrangement between State and, 677 ; 
 feud between High Church and Low 
 
 Church parties, 677 ; inapplicability of 
 parliamentary constitution to eccle- 
 siastical government, 677, 678 ; con- 
 ditional nature of the synodal constitu- 
 tion, 677 ; State recognition of the 
 hierarchy of the Anglican, 678 ; Queen 
 Anne's bounty, 678 ; value of pro- 
 perty of, 678; distribution of bene- 
 fices, 678 ; ecclesiastical jurisdiction of, 
 678 ; office dependent on conformity 
 to, 678, 679 ; declining influence of 
 clergy on the people, 679, 712, 713 ; and 
 consequent growth of dissent, 679, 713 ; 
 conformity not strictly enforced, 679, 
 680 ; vocation of, 680 ; position of 
 Presbyterian, 680 ; problem raised by 
 the establishment of Catholic bishop- 
 rics, 681 ; independent of government 
 Earties, 682 ; neglect of lower classes 
 y the, 710, 711, 712, 713; increase of 
 dissent, 713, 714, 715 ; reform of, pro- 
 moted by the State, 728 ; destruction 
 of the unity of the, 729, 730 ; religious 
 equality of individuals recognized, 729 ; 
 demand made for equality of churches, 
 729 ; difficulties in Ireland, 730 ; sepa- 
 ration of Presbyterian Church in Scot- 
 land into two parts, 730 ; Imperial unity 
 endangered by disunited Church, 730 ; 
 disestablishment of the Irish, 740 ; 
 abolition of Church rate in England, 
 740. 
 
 Church, Roman Catholic, relation of, to 
 the Anglo-Saxon Church, 71, 72 ; to 
 the Anglo-Norman Church, 188-190 ; 
 power of excommunicating and pub- 
 lishing circulars in England subject 
 to king's consent, 190, 196 ; appoint- 
 ment of bishops, etc., reserved by the 
 king, 190, 195 ; John becomes a pope's 
 vassal, 199, 201 ; encroaching powers 
 of, 200, 201 ; papal claims rejected 
 by English Parliament, 399, 400 ; penal 
 legislation against papists, 468, 469 ; 
 alienation of, in Europe, 483 ; growing 
 opposition to the doctrines of, 483, 484 ; 
 and desire to throw off the suzerainty 
 of the pope, 484 ; temporary ascend- 
 ency of, under Mary, 487, 488 ; parlia- 
 mentary statutes against, 488^492 ; 
 struggle of, to attain position as the 
 State Church, 536-543 ; James II. tries 
 to reinstate the, 610, 611 ; re-establish- 
 ment of bishoprics in England, 681 ; 
 exclusion of Roman Catholics from 
 political rights, 713 ; emancipation of, 
 715 ; relaxation of penal laws against, 
 715 ; demands an equality of the 
 churches in the State, 729 ; procla- 
 mation made against, 730 
 Church-ales, 529 
 Church and King, the Tory watchword, 
 
 679, 698 
 Churchwarden. Vide Church (Tudor and 
 
 Modern Periods) and Parish. 
 Cinque Ports, representation of, in Parlia- 
 ment, 265, 271, 387, 389 ; exceptional 
 position of, in municipalities, 436
 
 Index. 
 
 Circuits. Vide Judicial System. 
 
 dric Sceat, or Church rate, 65 
 
 Cirikfrith, 22 
 
 Civil Service, reform of, 742 
 
 Clare, Gilbert de, 218 
 
 Clarendon. Vide Assize of Clarendon. 
 
 Clarendon, Lord, 600 
 
 Classes, formation of, based on property, 
 73 ; dependence of landless, on land- 
 lords, 73, 74 ; proportionate increase of 
 freeborn subjects, 73 ; graduated scale 
 of fines according to, 75 ; class dis- 
 tinctions, 77-80 ; greater thanes, 77 ; 
 smaller thanes, the middle class, 77, 
 78 ; small landowners, 78 ; landless 
 class or freemen, or ceorls, 78, 79 ; class 
 gradations heritable with property, 
 79 ; ceorls and eorls, 79 ; class relations 
 of Anglo-Norman period, 272-281 ; 
 effect of feudal system on, 272 ; class 
 of greater vassals, 273-275 ; absence of 
 hereditary dynastic families in Eng- 
 land, 274 ; mutability of noble families, 
 274, 275 ; rise of hereditary peerage, 275; 
 class of lesser vassals, 275-279 ; class 
 of freemen, 279-281 ; period of the 
 growth of the estates of the realm, 282- 
 457 ; the three estates of the realm, 
 421-443 ; the estate of the spiritual 
 and temporal magnates, 422-426 ; ex- 
 penses and retinues of nobles according 
 to rank, 424 ; estate of the knights, 426- 
 432 ; clergy and lawyers rank with 
 knights, 431,432 ; freeholders and muni- 
 cipal burgesses, 432-440 ; unexclusive 
 nature of class privileges, 442 ; as- 
 cendency of the middle class, 568, 593, 
 594 ; general advances of all classes in 
 the seventeenth century, 615 ; gentry, 
 615-620 ; middle class of free electors, 
 620-623, 662-663 ; yeomen, 621 ; the 
 unf ranchised, 623-624 ; influence of 
 gentry on game laws, 636 ; and of land- 
 owners on the poor laws, 636, 637 ; and 
 on land tax, 638 ; final consolidation of 
 the ruling class, 658-663 ; increased 
 political influence acquired by land- 
 owners by the accumulation of entailed 
 estates, 660, 661 ; diminished influence 
 of middle class, 662, 663 ; important 
 share of the aristocracy in government, 
 663, 687, 710, 711 ; importance of an 
 organic connection between lords and 
 commoners, 673-675 ; intimate relation 
 between the dominant class and the 
 Church, 679, 680 ; Magna Charta more 
 advantageous to aristocracy than other 
 classes, 710 ; oppression of aristocracy 
 towards weaker classes, 710, 711 ; oppo- 
 sition of ruling class to political reform, 
 716; increased importance of middle 
 class in the reformed Parliament, 722 ; 
 removal of special restrictions on capi- 
 talists, 723 ; attacks on trading mono- 
 polies and protective customs, 724 
 
 Clergy. Vide Church. 
 
 Clerk-ales, 529 
 
 Clinton, Geoffrey de, 223 
 
 Close rolls, 335, 336 
 
 Cn., contraction for Cnut, 1 
 
 Cnut, forest and other laws of, 26, 27 ; 
 king of England, 32 ; energy of, 36 ; 
 divides the country into four pro- 
 vinces, 50, 51 ; governor of Wessex, 
 51 ; divides kingdom with Eadmund 
 Ironside, 88 ; relies for help on mer- 
 cenary soldiers, 90 ; concludes peace 
 with the Church, 90 
 
 Coinage of Norman period, 180 ; de- 
 preciation of, 623 
 
 Coke, Sir Edward, 507 ; dismissal of, 550 
 
 Colonies, Secretary of State for American, 
 693; Secretary of State for, 694; 
 department for, 694 ; independent 
 government granted to, 728 
 
 Comes, or Ealdorman. Vide Ealdorman. 
 
 Commons, unrepresented in earlier govern- 
 mental assemblies, 268, 269, 270 ; 
 participation of, in government, 313 
 
 Commons, House of, birth of, 270-272 ; 
 developed in Middle Ages, 313 ; ex- 
 tinction of ' commons," but survival of 
 the name, 745. Vide Parliament. 
 
 Commonwealth, 565, 576 
 
 Commune bancum, 316 
 
 Communitas, 666, 667, 668, 669 ; cohesion 
 of, weakened by municipal reform, 
 731-735, 743 ; extinction of, 745 ; im- 
 portance of, in the future reconstruction 
 of the British State, 748 
 
 Comptroller of Household, Court of, 509 
 
 Compuryators, 6, 21, 137, 149 
 
 Conservatives. Vide Parliament. 
 
 Consilium regis. Vide King. 
 
 Constable of Exchequer. Vide Exchequer. 
 
 Constable, military duties of comes sta- 
 buli, 131 ; paid commanding constable 
 appointed permanently, 131 ; all officers 
 designated, 132, 217, 236 
 
 Constable, Lord High, 217 ; privileges 
 of office, 217 ; president of military 
 courts, 323 ; summons of, to Par- 
 liament, 348 ; continuance of, 450 ; 
 rank of, 501 ; cessation of office, 501, 
 692 
 
 Constable, chief, of hundred, 287 ; petty, 
 of village, 287, 289 ; commander of 
 100 men, 289 
 
 Constable, police, or guardian of the 
 peace, relation of, to militia and 
 hundred constables ; duties of, 306, 307, 
 642 ; formerly called reeve, or tithing 
 man, 306 ; appointed by police magis- 
 trates, 469, 642 ; difficulty of obtaining 
 honorary, 646 
 
 Constitution, history of, and of the law, 
 different, viii 
 
 Constitution of England, .hi story of, during 
 the Anglo-Saxon period, 1-94 ; Anglo- 
 Norman, 95-281 ; from 1272 to 1485, 
 282-457 ; under the Tudors, 458-534 ; 
 the Stuarts, 535-624; the eighteenth 
 century, 625-708 ; and the nineteenth 
 century, 708-749; merits of Black- 
 stone's "Commentaries" as indicative 
 of, 701
 
 758 
 
 Index. 
 
 Controller of the Household has seat on 
 permanent Council, 329 
 
 Convocation. Vide Church (Tudor Period). 
 
 Cooke, John, 563 
 
 Copyhold, 441, 463. Vide also Land. 
 
 Corn Laws, abolition of, 724 
 
 Cornwall, county of, 38 ; hundreds of, 41 
 
 Coroner, appointed by king to look after 
 the royal taxes and dues, in cases of 
 sudden death, and of treasure trove, 
 300 ; procedure at coroner's inquest, 
 300 ; duties of, in modern times, 641 ; 
 elected by county freeholders, 641 
 
 Corporation Act, 584; repeal of, 715 
 
 Corrupt Practices Prevention Act, I'l'l 
 
 Cottarii, number occupying land, in times 
 of Eadward and of William I., 104 
 
 Council of Bristol, confirmation of Magna 
 Charts at, 256 ; of London, 260, 261 ; 
 of Westminster Hall, 261 ; and of 
 Oxford (1258), 263 
 
 Council, Cabinet, functions of permanent 
 Council of Middle Ages similar to 
 those of, 326 ; constitution and pro- 
 cedure of, in time of Henry VIII., 
 504 ; Henry VIII.'s share in its busi- 
 ness, 504 ; the Cabinet of modern 
 times, 682, 687 ; dependence of, on 
 Parliament, 686 ; legality of govern- 
 ment by, 688, 689 ; almost exclusively 
 formed of great nobles, 689 ; introduc- 
 tion of commoners, 690 ; need of con- 
 nection between Parliament and, 703, 
 704 ; important functions of, in organiz- 
 ing party discipline, 703 ; formation of, 
 rendered difficult by increasing party 
 disintegration, 736, 737 
 
 Council, Great, of army, 576 
 
 Council, Great, of prelates and barons, 
 afterwards the Upper House of Parlia- 
 ment, 338, 341 ; functions of, 338, 339. 
 Vide Parliament. 
 
 Council, King's, informal nature of, under 
 early Norman kings, 214, 220, 238 ; 
 not the origin of the later Privy 
 Council, 214 ; formal Council regency 
 of Henry III., 215, 221, 256-258; 
 approach of the Assize of Claren- 
 don to a formal, 235, 236 ; share of 
 commoners in, 270-272 ; powers re- 
 siding in royal council a source of 
 weakness in magisterial procedure, 
 445 ; State business illegally transacted 
 by, in reign of James I., 549, 596, 59.7 ; 
 discretionary powers of Star Chamber 
 exercised by, 549 ; the Cabal, 591, 
 597-599 ; State business transacted 
 by, under Charles I. and Charles II., 
 597 
 
 Council of State, 565 ; government by, 
 
 under Long Parliament, 576 
 Council, Permanent, nature of, in Anglo- 
 Norman period, 215, 221 ; establish- 
 ment of, in Middle Ages, 313, 325; 
 constitution, nature, and business of, 
 325-337 ; functions of, similar to those 
 of modern Cabinet Council, 326, 327 ; 
 sphere of action same as that of the 
 
 earlier informal Kings' Councils, 327 ; 
 procedure in dealing with petitions, 327, 
 328, 329 ; procedure regulated by king, 
 but occasionally by Parliament, 328 ; 
 chief officials of, 3~29 ; minor officials, 
 330 ; king president of, during Middle 
 Ages, 330 ; parliamentary restrictions 
 on the use of great seal in, 331 ; 
 salaries paid to officers, 331 ; special 
 business of, effected by delegations and 
 commissions, 331, 332 ; legal business 
 assigned to Chancellor and justiciaries, 
 
 331, 332 ; financial business to Chan- 
 cellor and treasurer, 332 ; difficult law 
 cases to Chancellor in Court of Equity, 
 
 332, 333 ; others to Admiralty Court 
 and Court of Requests, 333 ; opposition 
 to King's penal jurisdiction in, 333, 
 334 ; extraordinary powers of, 334, 335, 
 446 ; important position of Lord Chan- 
 cellor in, 335-337 ; antagonism with 
 Parliament, 350 ; becomes the Privy 
 Council of the Tudor period, 472, 500. 
 
 Council, Privy, not a development of the 
 King's Council of the Norman period, 
 214, 215, 221; established in Middle 
 Ages, 313 ; the seat of government 
 under the Tudors, presided over by the 
 king, 472, 500 ; members selected by 
 king, 472 ; censorship of the press exer- 
 cised by, 499 ; constitution of, under 
 Henry VIII., 500, 501 ; complaint of 
 lack of nobility in, 500 ; Henry VIII.'s 
 reply, 500 ; officers of, 501, 502 ; con- 
 stitution and procedure of, 502, 503, 504 ; 
 Star Chamber, a committee of, 504, 
 505 [Vide Star Chamber^ ; provincial 
 county delegations of, 508-510 ; abuse 
 of the discretionary powers of, by the 
 Stuarts, 549 ; business of, illegally 
 assumed by the royal Council, 549 ; 
 jurisdiction of, abolished by Parlia- 
 ment, 555, 650, 682 ; restoration of, 
 in State government, 589 ; constitution 
 and functions of, 589, 591, 650, 682, 
 683, 690, 693 ; proposed committees of, 
 590, 591 ; department for foreign affairs, 
 591 ; council of trade, 591 ; council 
 of foreign plantations, 591 ; chiefly 
 composed of the aristocracy, 673 ; the 
 constitutional seat of government, 681 ; 
 extraordinary discretionary power of, 
 counteracted, 682 ; relation of, to 
 .Cabinet Council, 682, 683 ; retained for 
 transaction of formal business only, 
 683 ; informal nature of its meetings, 
 688, 689 
 
 Counties, formation of English, or shires, 
 37 ; originally called scire, 37 ; shires 
 mentioned in 755 and 851, 37 ; grouped 
 into Saxon, Dane, and Mercia laws, 
 38 ; list of thirty-two Anglo-Saxon, 
 38 ; term shire applied to bishops' dio- 
 ceses, 39 ; county assemblies, 85 ; im- 
 provements in administration of, effec- 
 ted by Henry I., 112; and Henry II., 
 113 ; development of county adminis- 
 tration by Norman kings, 114-126 ;
 
 Index. 
 
 759 
 
 palatinates, 116 ; sheriffs to be chosen 
 by, 264, 270 ; representation of, in 
 Parliament, 265, 270, 271, 357, 358, 
 381, 385, 386 ; connection of military 
 system with, 286-291; of judicial 
 power with, 291-296, 447 ; of police 
 power with, 296-306 ; of financial ad- 
 ministration with, 306-309 ; repre- 
 sentatives of, in Parliament elected 
 by county assemblies, 382 ; at first by 
 all liberi tenentes, then by all forty- 
 shilling freeholders, later only by 
 those resident in the county, 384, 385 ; 
 counties as communal bodies, 447 ; 
 development of the county constitu- 
 tion, 462-472 ; royal lieutenants of, 
 appointed for recruiting purposes. 462, 
 463 ; police system of, in Tudor period, 
 465-470 ; structure of, a bulwark against 
 despotism, 554, 555 ; restoration of the 
 county constitution, 582 ; county rate, 
 643 ; increased parliamentary repre- 
 sentation of, in 1832, 721, 722 ; number 
 of electors in, in 1885, 739 ; representa- 
 tion of, in 1885, 744 
 
 Counts, Norman, 104, 114, 115; comites 
 and comitissce in Domesday Book, 104, 
 115; powers of comes with revenues, 
 1 15, 116 ; comites created under Stephen, 
 and deposed under Henry II., 116 
 
 County Court. Vide Judicial System. 
 
 County Court, jurisdiction of, 19 ; pre- 
 sided over by vicecomes; business of, 
 partly transferred to royal and hundred 
 courts, 117, 223, 225 ; constitution of, in 
 Anglo-Norman period, 136, 137 ; pre- 
 sided over by justice of assize, 295 ; 
 business of, mainly restricted to tax- 
 ation, military and administrative 
 business in Middle Ages, 382, 383; 
 position of, in Tudor period, 465 
 
 Coupland, John, 430 
 
 Court baron. Vide Land. 
 
 Court leet. Vide Manors. 
 
 Court of Augmentations and Revenues, 
 509 
 
 Court of Exchequer Chamber, 317 
 
 Court of High Commission. Vide Church 
 (Tudor Period). 
 
 Court of King's Bench. Vide Judicial 
 System. 
 
 Court of Bequests, 333, 508, 509 
 
 Court of the Comptroller of the House- 
 hold, 509 
 
 Court of the Lord High Steward, 509 
 
 Court of the Treasurer, 509 
 
 Court of Wards and Liveries, 509, 510 
 
 Cranmer, Archbishop, prominent as a 
 Church reformer, 487, 490 ; burnt, 488 ; 
 character of, 490 
 
 Crewe, Chief Justice, dismissed, 550 
 
 < 'riminal Courts. Vide Police System. 
 
 Cromwell, Oliver, takes the parliamentary 
 side in the Civil War, 557 ; forms a 
 strong standing aimy which overcomes 
 the royalists, 560,561 ; president of the 
 Council of State, 565 ; assumes the 
 representation of England as Protector, 
 
 566 ; rules wisely and well, 566 ; 
 qualifications of, for wielding the go- 
 vernment, 572 ; royal title declined in 
 favour of that of " Protector," 573, 578 ; 
 opposition to his creation of a House 
 of Lords, 573, 578 ; difficulty of obtain- 
 ing co-operation of Parliament, 574, 
 578 ; his government essentially that 
 of king in Council, 574 ; the military 
 dictatorship of, 576, 577 ; compels Par- 
 liament to recognize his authority, 577, 
 578 ; claims right of consent to every 
 enactment, 578 ; death of, 578 
 
 Cromwell, Richard, protectorate of, 578, 
 579 
 
 Cromwell, Lord Thomas, 487, 490; is 
 raised to head of government, 489, 504 
 
 CubicuJarms, or chamberlain, 15 
 
 Cumberland, county of, 38 ; wards of, 41 
 
 Cupbearer, office of, in court of Anglo- 
 Saxon kings, 15 
 
 Curia ad Scaccarium. Vide Exchequer. 
 
 Curia baronum, or Court baron. Vide 
 Land and Manors. 
 
 Curia Christianitatis. Vide Church 
 (Anglo-Norman). 
 
 Curia comitatus, or County Court. Vide 
 Judicial System, 
 
 Curia regis. Vide Judicial System 
 (Anglo-Norman). 
 
 Customary Court. Vide Manors. 
 
 Customers. Vide Tolls. 
 
 Customs, right of Anglo-Saxon kings to, 
 26 ; as also of Norman kings, 165 ; 
 regulation of, 638 ; increase of, relating 
 to land tax, 638, 665 ; made permanent 
 tax, 638 ; excess of, 667 ; reform of 
 tariff, 716 
 
 Custos rotulorum, 475, 641. Vide Molls. 
 
 Cynebot, 14 
 
 Cyning. Vide King. 
 
 D 
 
 Danby, Earl of, impeachment of, 598 
 
 Danegeld. Vide Taxation. 
 
 Danes, conversion of, 72 ; influence of, 
 on the Anglo-Saxon Church, 72 ; con- 
 quest of part of England by the, 87 ; 
 assimilation of, by Anglo-Saxons, 
 87 ; second invasion by ; conquest of 
 country, 88 ; antipathy of Anglo- 
 Saxons to, 88, 89 ; preservation of 
 law, 89 ; Danish element in England, 
 89 
 
 Dapifer, or steward, 15, 216, 274 
 
 Darcy, Sir Thomas, 600 
 
 Darlington, Earl of, 692 
 
 Decamce, or tithings, 42 
 
 Declaration of Rights, 612-614, 684 
 
 Defenascir, 37 
 
 Deira, kingdom of, 34 
 
 Derbyshire, county of Deorbiscira, 38 ; 
 hundreds of, 41 
 
 Devonshire, county of Devenascira, 3! 
 payment for right to elect sheriffs, 10'J 
 
 Dioceses. Vide Church.
 
 760 
 
 Index. 
 
 Discifer rent's, or steward, 15 
 
 Discthegn, or steward, 15 
 
 Disraeli, electoral qualifications proposed 
 by, 738 
 
 liixiti'iiters, penal legislation against, 468 ; 
 exclusion of, from office, 584, 678 ; 
 and from Parliament, 678 ; relaxation 
 of restrictions on, 680 ; increase of, 
 due to indifference of the Church to 
 the poorer classes, 713, 714 ; emancipa- 
 tion of, 713, 724 
 
 Domesday Book, 102-109 
 
 Dorsetshire, county of Dorsetescira, 38 ; 
 settlement of Dormsaetan, 38 ; hun- 
 dreds of, 41 ; payment for right to 
 elect sheriffs, 169 
 
 Downing, Sir George, 595 
 
 Dress, police regulations as to, 298 
 
 Duchy of Lancaster, formation of, 424 
 
 Dudley, 465 
 
 Duels authorized by law in Middle Ages, 
 3-23 
 
 Duke, in Parliaments of Middle Ages, 
 348 ; first creation of, 349 ; dukedom 
 based on royal patent, 353 ; expen- 
 diture of, temp. Edward III., 424; 
 temp. Edward IV., 451 
 
 Dunstan, Archbishop, Romanizing influ- 
 ence of, on Anglo-Saxon Church, 71, 
 72 ; peaceful rule of, 92, 93 
 
 Dupplin, Viscount, 692 
 
 Durham, county, 39 ; wards of, 41 ; 
 excluded from Parliament in Middle 
 Ages, 382 ; obtains seat in Parlia- 
 ment, 593 
 
 Duties levied in Middle Ages on wool, 
 leather, etc., 362, 363 ; excise duty 
 under Cromwell, 571 
 
 Dux, or Ealdorman. Vide Ealdorman. 
 
 E 
 
 Eadgar, beneficial rule of, 36 
 
 Eadric Streona, governor of Mercia, 51 
 
 Eadmund, 32 
 
 Eadward the Confessor, 32 ; beneficial 
 rule of, 36 ; favours Romish views of 
 the Church, 92 ; antipathies of, 93 ; 
 opposition to Danish magnates, 93 
 
 Eadwin of Northumbria, Bretwalda, 35 
 
 Ealdorman, worth of, 10, 49, 75 ; office 
 of, held by thanes, 10 ; has precedence 
 of thanes as such, 16 ; as commanders- 
 in-chief, 16, 48 ; as judges, 19, 21, 
 48 ; portions of fines in royal courts 
 paid to, 27, 49 ; highest Anglo-Saxon 
 civil official, 47 ; often a viceroy, 47 ; 
 later governors of shires, 48 ; duties and 
 privileges of, 48-51 ; police jurisdic- 
 tion of, 48 : sources of official income, 
 48, 49 ; subjectivity of, to king, 49 ; 
 rivalry with, and supplantation of, by 
 earls, 50 ; merged later into aldermen, 
 51 ; summons of, to national assem- 
 blies, 83 ; Waltheof, the last Saxon, 
 104 
 
 Earl, heriot of, to Anglo-Saxon kings, 
 27 ; Danish commanders-in-chief, 50 ; 
 
 supplantation of ealdorman by, 50 ; 
 " eorls " as term for higher classes, 
 79; decline of office of " eorl ;" Saxon 
 and Norman eorls, 114 ; usually con- 
 nected with high military rank ; en- 
 titled to a third of the county reve- 
 nues ; administrative duties of, cur- 
 tailed until office is little more than 
 a title of nobility, 114, 115 ; duties of, 
 transferred to sheriffs, 116 ; governors 
 of counties palatinate, 116 ; in Parlia- 
 ments of Middle Ages, 347, 348 ; earl- 
 dom based on royal patent, 355 ; ex- 
 penditure and retinue of, temp. Edward 
 III., 424 
 
 East Anglia, kingdom of, 34, 38 ; terri- 
 tory of Eastengle, 40 ; as a province, 51 
 
 East India Company, abolition of mo- 
 nopoly, 716 
 
 Ecclesiastical Titles Act, 730 
 
 Ecgberht, Bretwalda, 35 ; and King of 
 the English, 35 ; consolidation by, 35, 
 36, 87 
 
 Edg., contraction for Eadgar, 1 
 
 Edm^ contraction for Eadmund, 1 
 
 Education : Anglo-Saxon. Schools estab- 
 lished by clergy for all classes, 8 ; sup- 
 plied by monasteries, 61 ; Alfred the 
 Great's grant for schools, 61. Middle 
 Ages. Education of lower classes peti- 
 tioned against, 438. Modern Period. 
 Village schools maintained by local 
 rates, 667 ; mini.'ter of national, 695 ; 
 inaccessibility of learning to lower 
 classes, 711 ; money voted for improv- 
 ing elementary education, 725 ; further 
 reforms promoted by State, 728, 742 ; 
 attendance at school made compulsory, 
 742 ; formation of school boards, 742 ; 
 University Reform Acts ; National 
 Education Acts, 742 
 
 Edw., contraction for Eadward, 1 
 
 Edward /., escapes from captivity, May 
 28, 1265, 265 ; character and policy , 
 of, 283, 405-407, 421 ; rapid progress in 
 law in reign of, 283, 284 ; presides at 
 Court of King's Bench, 315; exorbitant 
 taxation by, 362, 363 
 
 Edward II., presides at Court of King's 
 Bench, 315 ; weak government of ; 
 executive council forced upon him ; 
 contest with nobles, 407, 408 ; murder 
 of, 408 
 
 Edward III., parliamentary government 
 in reign of, 408, 409 ; encroachments 
 of and national grievances, 409, 410 
 
 Edward IV., reign of, its stormy cha- 
 racter as regards war, and peaceful 
 character as regards law, 418, 419 ; 
 proceeds against House of Lancaster by 
 bill of attainder, 419 ; restores per- 
 sonal rule, 419. Vide York, Duke of. 
 
 Election : Electoral proceedings adopted 
 for formation of regency Council under 
 Henry III., 263 
 
 Electoral procedures and qualifications. 
 Vide Parliament. 
 
 Elizabeth, martial law proclaimed by,
 
 Index. 
 
 761 
 
 463 ; refuses the offer of a forced 
 loan by Parliament, 478, 479 ; exces- 
 sive taxation by, 479; restores royal 
 supremacy over the Church, 492 ; im- 
 portant share of, in preserving connec- 
 tion of Church and State, 538-540 
 
 Ellesmere, Lord, 589 
 
 Elliot, Sir John, judicially condemned 
 for a speech in Parliament, 553 ; judg- 
 ment annulled, 596 
 
 Elmeta, kingdom of, 35 
 
 Emigration caused by Star Chamber op- 
 pression, 553 
 
 Empson, 465 
 
 England, name introduced by Ecgberht 
 in 830, 35 
 
 English language, words of British origin 
 in, 86 ; unknown to high dignitaries 
 in Anglo-Norman Church, 193 ; use of, 
 in law courts of Middle Ages, 322 ; 
 used in official parliamentary trans- 
 actions, 368 ; statutes after 4 Henry 
 VII. in, 461 
 
 English nation, blending of Saxons and 
 Normans, 242, 243 ; predominance of 
 the Saxon element, 242 ; character of, 
 founded in Middle Ages, 312, 313; 
 prevalence of English names amongst 
 knights, 430 
 
 Entail, system of, 666 
 
 Equity. Vide Judicial System. 
 
 Eric, governor of Northumbria, 51 
 
 Escheat, 100, 167 ; escheators, 182 
 
 Esquires in system of knighthood, 132 ; 
 right to serve in Parliament extended 
 to, 385, 429 ; expenditure and retinue 
 of, temp. Edward III., 424 
 
 Esquires, or scutarii, 279, 619 
 
 Essex, county of Eastsaxe ; or Essex, 
 38 ; hundreds of, 41 
 
 Essex, Kingdom of, 34 ; territory of 
 Eastseaxan, 40 
 
 Estates of the Realm, origin of, 233-239 ; 
 recognition of, in Magna Charta, 250 ; 
 government by, developed on its tem- 
 poral side, 313 ; recognition of the 
 three, prelates, lords, and commons, 
 380 ; the three, 421-443 ; position of 
 classes based on personal performance 
 and amount of taxes paid, 421 ; the 
 estate of the spiritual and temporal 
 magnates, 422-426; the estate of the 
 knights, 426-432 ; the estate of the free- 
 holders and burgesses, 432-439 ; per- 
 manence of the three estate system, 
 439 ; population outside its pale chiefly 
 labourers, 440-443 ; mutual relation- 
 Rhip of the three estates to the Crown, 
 the source of national stability, 448, 
 449 
 
 Estreats, 186 
 
 Eudo, 216 
 
 Evesham, battle of, 265 
 
 Exchequer, not known to Anglo-Saxons, 
 29 ; organized by Anglo-Norman kings, 
 113, 115, 119; mode of rendering 
 sheriffs' accounts to Treasury, 119, 120, 
 182; amount of fines fixed by, 160; 
 
 the Norman, 178-187 ; origin of, 178, 
 179 ; part of the Curia Regis, and 
 called Curia ad Scaccarium, 178, 222 ; 
 meaning of term scaccarium, 178, 179 ; 
 routine business of, subject to king's 
 personal control, 179, 184 ; account and 
 receipt departments, 179 ; Dialogus de 
 Scaccario, 179, 183, 184; principal books 
 written on, 179, 180 ; origin of, 180 ; 
 method of making payments with, and 
 receipting and counterfoil-receipting by 
 tally-sticks, 180, 181 ; checks substi- 
 tuted for tally-sticks in 1783 ; method 
 of making payments out of, 181 ; by 
 royal writ and by treasury warrant, 
 81 ; book-keeping of, by pipe-rolls, 
 181; method of rendering accounts, 
 181, 182 ; judicial procedure of, at scac- 
 caria, or sittings, 182, 183 ; power of, 
 over debtors' intestate, and insolvent 
 estates, 183 ; extensive jurisdiction of, 
 covering all financial as well as royal 
 and land privilege questions, 183, 184, 
 210 ; barones scaccarii, 184, 185, 210 ; 
 staff of; all government departments 
 represented ; chief judge president as 
 representing the king, 184, 185 ; under- 
 officials, remembrancer or registrar, 
 ingrossers, 185, 219 ; constable,marshal, 
 185, 186, 217, 218 ; usher or huissier, 
 auditors, chamberlains, 185, 186, 216, 
 217 ; cashiers, or tellers, 185, 186 ; clerk 
 of the writs, clerk of the pells, pesours, 
 fusours, 186 ; secondary Exchequer 
 offices ; scaccarium Judceorum, 186, 187 ; 
 business of Norman Echiquier in con- 
 nection with court assemblies, 202, 205 ; 
 under Anglo-Norman kings a distinct 
 official body, altogether independent of 
 court assemblies, 205 ; chancellor of, 
 218, 219 ; growing governmental power 
 of, under William II., Henry I., Henry 
 II., and Henry III., 221; barones 
 errantes, or itinerant judges specially 
 appointed for financial lawsuits affect- 
 ing, 224 ; connection between Court of 
 King's Bench and, 230-233 ; business 
 of, in time of Richard I. and Henry 
 III., 231,232; chancellor of , mentioned 
 in time of Henry III., 232 ; separation 
 of, as a law court, 316, 317 ; chief baron 
 (capitalis baro), or president of, 316, 
 317 ; inefficient exclusion of Common 
 Pleas cases from, 316, 317; divided 
 into four parts in Middle Ages, 317 ; 
 treasurer and chancellor of, form part 
 of permanent Council, 329 ; and spe- 
 cially commissioned to deal with im- 
 portant financial questions with assist- 
 ance of officers of the, 332 ; Treasury 
 separated from, 589 
 
 Exchequer Chamber, Court of, supreme 
 appellate jurisdiction, 511 
 
 Excise duty. Vide Taxation. 
 
 Excise Office formed, 589 
 
 Exclusion Bill, 606-608 
 
 Exeter, a staple town, 436 
 
 Eyre, justice in. Vide Judicial System.
 
 762 
 
 Index. 
 
 Faith, Defender of the, 484 
 
 Familta. Vide Land. 
 
 Factory Laws, protective, 716. 7:V> 
 
 Farmers, or fermors, 119, 167, 168, 182 
 
 Fee Farm. Vide Firma burgi. 
 
 Felony, forfeiture of fief lands for, 100 ; 
 elasticity of term, 100, 101 
 
 Feoffees. Vide Land. 
 
 Feudal System, established by Normans 
 under William* I., 97, 127, 128; law 
 of, 98 ; technical terms, 98 ; feudum, 
 baron, 98 ; king's claim to recognition 
 money or relief with change of feoffees, 
 90 ; king's claim to estates of minor 
 wards and right of disposing of them 
 in marriage, 99, 100 ; aid from vassals to 
 feudal lords, 100 ; escheat or forfeiture 
 of the fief, 100 ; mode of introduction 
 into England, 101, 109-113; oath of 
 fealty subordinate to allegiance to king, 
 102, 134 ; oath of fealty rendered to 
 William I., 102, 190 ; method of sub- 
 infeudation, 103, 104; meaning of 
 feudum, miles, 107 ; and of hidce, 108 ; 
 method of marshalling armies, 129-131 ; 
 defects of feudal army lead to organiz- 
 ing the national militia, 133 ; pur- 
 chase of remissions of feudal service, 
 or scutagia, 134, 135 ; subinfeudation 
 interdicted, 143, 277 ; vassalage is to 
 the crown, not to the king, 167 ; fines 
 paid for regrant of fiefs, 171 ; larger 
 land possessions of the Church brought 
 under the, 190, 191 ; indulgence allowed 
 to the Church in exemption from mili- 
 tary services, 191 ; feudal nature of 
 Magna Charta, 250, 251 ; homagium 
 ligium and simplum, 276 ; noble digni- 
 ties of Middle Ages not dependent on 
 crown fiefs, 348 ; feudal ideas of 
 royal power in Middle Ages, 456 ; 
 estates released from feudal burdens, 
 583 ; abolition of military fiefs, 583, 
 595 ; feudal dues of crown compen- 
 sated for by a malt tax, 583 
 
 Fiefs. Vide Land Tenure (Anglo-Saxon) . 
 
 Filmer, his argument for the divine right 
 of kings, 548, 549 
 
 Finance. Vide Revenue. 
 
 Finch, Sir John, chief j ustice, subserviency 
 of, 550, 551 
 
 Fine Rolls, 336 
 
 Fines in manorial and royal courts, 21, 
 27 ; for murder, 75, 153, 203 ; for 
 violating chastity and mundium of 
 widows, 75 ; legal protection afforded 
 by, 75 ; wite or fine of independent 
 persons, 76 ; in time of Cnut, 89 ; for 
 neglecting military duties, 131 ; for 
 breaking. the peace, 151 ; for offence 
 against discipline, 159 ; for neglect- 
 ing police duties, 159 ; graduation 
 of, according to rank, 160, 161, 236 ; 
 arbitrary imposition of, 161-165 ; for 
 
 all royal favours, 169 ; for rights 
 of jurisdiction, 169 ; in lawsuits, 170- 
 171, 225, 229 ; for concessions of 
 favours in respect of offices, guilds, and 
 dispensations, 171 ; for regranting of 
 fiefs and other alienations, 171 ; for 
 neglecting summons to Exchequer 
 sittings, 183 ; heavy fines imposed on 
 Jews, 187 ; unjust fines prohibited by 
 Magna Charta, 246-249; of Middle 
 Ages, 306, 307 ; constable's tax, 307 ; 
 the fine rolls, 336 ; royal power of im- 
 posing, renewed by the Stuarts, 540, 
 553 ; emigration caused by excess of, 
 553 ; heavy fines imposed during Crom- 
 well's government, 567, 571 ; heavy 
 fine imposed for libel, 601 ; excessive 
 fines protested against, 613 
 
 Firma burgi, or fee farm, 125, 126, 312 
 
 Fisher, Bishop, executed, 487, 489, 490 
 
 Fisheries, fishing laws of Middle Ages, 
 299 
 
 FhzOsbern, W., 215 
 
 Fitzwaltcr, Robert, 244 
 
 Flambard, Ranulph, 112; applies feudal 
 law to ecclesiastical estates, 191 ; king's 
 representative, 215 
 
 Flotsam and jetsam, King's right to, 26 
 
 Folgan. Vide Personal Service. 
 
 Folk land. Vide Land. 
 
 Forests, right of Anglo-Saxon kings to 
 use of, 26 ; swan-gerefas appointed 
 for management of, 55; fines for 
 forest offences, 162 ; restriction of 
 royal rights of forestry by Magna 
 Charta, 249, 250 ; issue of a new 
 Charta de Foresta, 258, 324, 325; 
 special courts for forest cases, 324 ; 
 officials of the forest courts, 324, 325 
 
 Fox, Henry, 694 
 
 Franchise. Vide Parliament and Reform. 
 
 Franc pledge. Vide Police System 
 (Anglo-Norman). 
 
 Frankalmoign. Vide Land Tenure. 
 
 Freedom of individuals amongst Anglo- 
 Saxons, 3, 4 ; dependence of small 
 tenants and labourers, 3 ; of lower 
 classes secured by clergy, 8 ; worth 
 of freemen or ceorls, 10, 74, 105 ; posi- 
 tion of freemen under Anglo-Saxon 
 landlords, 13, 74, 79 ; migration free, 
 but subject to restricting conditions, 
 24, 152, 290 ; free peasantry, 45, 46, 74 ; 
 share of freemen in administration, 57, 
 79, 80 ; power of rising from a lower 
 to a higher rank, 79, 80, 709; liberi 
 homines in Domesday Book, 103, 105, 
 279, 280, 432, 464, 623 ; status of liberi 
 homines in the army, 134 ; in hundred 
 court, 136 ; rise of freeholders, 241, 
 242 ; increasing independence of Eng- 
 lish towns, 241 ; liberty of travel 
 provided by Magna Charta, 248, 281 ; 
 constitutional liberty secured by Magna 
 Charta, 253, 254; freemen liable to 
 serve in militia, 287 ; of intercourse in 
 Middle Ages, 297-299 ; political liberty 
 of Middle Ages, 312 ; of speech in Par-
 
 Index. 
 
 763 
 
 liament claimed by Commons, 380 ; 
 all liberi tenentes originally entitled to 
 vote at Parliamentary elections, 384 ; 
 afterwards restricted to forty-shilling 
 freeholders, 385, 721,738; emancipation 
 of villeins and serfs, 440, 441 ; imprison- 
 ment of freemen contrary to law pro- 
 hibited, 547 ; Parliamentary liberty of 
 speech established, 596, 613 ; freedom 
 of opinion allowed, 605, 606 ; founda- 
 tion of national, political, and moral, 
 laid in the times succeeding the Revo- 
 lution, 708, 709 ; personal and political 
 liberty in eighteenth and nineteenth 
 centuries, 709 ; greater freedom allowed 
 to labourers, 716 
 
 Freeholders. Vide Parliament. 
 
 Free Traders. Vide Parliament. 
 
 French language, gradual introduction of, 
 as the court language in Anglo-Norman 
 period, 138, 139 ; in Anglo-Norman 
 churches, 193; replaces Latin among 
 upper classes after Edward II., 344; 
 used in statutes, 372; adoption of, 
 in England, during the French wars, 
 426, 430 
 
 Fusours, 186 
 
 G 
 
 Gafol, 4. 28 
 
 Galeator, 291 
 
 Game laws, severity of, 636 ; moderated 
 by Game Law of 1834, .727 
 
 Garter, Order of the, 430 
 
 Gavelkind. Vide Inheritance. 
 
 Gemote, 10 
 
 Gentleman, 619 
 
 George I. as king, 704 
 
 George III., opposition to party govern- 
 ment, 704 ; attempts to reintroduce 
 personal rule, .704, 705 
 
 Gerefa, or bailiff, powers of, in private 
 estates, 44 ; president of burhs, 45 ; 
 worth of, 75 
 
 Germany, constitutional monarchy estab- 
 lished, v. ; necessity of self-govern- 
 ment for, vi. ; imperial schism as a 
 consequence of Church schism averted 
 in, 730 
 
 Gesith. Vide Personal Service. 
 
 Gesithcundman. Vide Personal Service. 
 
 Give-ales, 529 
 
 Gladstone, electoral qualifications pro- 
 posed by, 738 ; his plans for Ireland, 
 749 
 
 Glanville, R. de, 215 
 
 Gloucester, Duke of, 415 ; murder of, 416 
 
 Gloucester, Earl of, 262, 265 
 
 Gloucestershire, county of Gloucestrescira, 
 38 
 
 Gneist, Dr., political works leading up to 
 writing "History of English Constitu- 
 tion," author's preface 
 
 Goabini, or royally appointed select law- 
 men, unknown to Anglo-Saxons, 7 
 
 Godwine, Earl, power of, 88 ; opposi- 
 tion to Eadward the Confessor, 93 ; 
 whom he overcomes, 93 
 
 Gordon riots, 715 
 
 Government during Anglo-Norman period, 
 201-221 ; centralised about the king 
 under the appellation Curia Regis, 201 ; 
 by the Anglo-Saxon national assembly 
 replaced by government by royal 
 ordinances and feudal service, 204 ; 
 laws during Anglo-Norman period 
 emanate from king, 205-208 ; great 
 officers of the realm, chief justice, 
 215 ; lord high steward, 216 ; lord 
 great chamberlain, 216, 217 ; lord high 
 constable, 217; marshal, 217, 218; 
 chancellor, 218-220; treasurer, 220; 
 serjeanties, grand and lower, 220 ; 
 personal government of William I., 220, 
 221 ; by royal chaplain under William 
 II.; by the" Exchequer and king under 
 Henry I. and Henry II., 221 ; by a 
 government council under Henry III., 
 22.1, 256-258 ; weakness of a purely 
 personal, 222 ; personal government of 
 Henry III., 259-266; affairs chiefly 
 administered by clerks of offices, 261 ; 
 demand for government officers to be 
 appointed in Parliament, 263, 264 ; 
 by an elected council, 264 ; chief 
 officers to be annually appointed by 
 Parliament, 264 ; initiation of, by 
 parliamentary parties, 264 ; predomi- 
 nance of personal will in rule of Henry 
 III., 268, 269 ; admission of middle 
 class to, 283, 284 ; increasing power 
 and unity of executive, 285 ; union of 
 central with local, 285, 286, 447 ; ex- 
 cellency of English method of self, 
 286, 312, 313, 446, 447, 453-456, con- 
 stitutional government by law re- 
 places absolute personal rule, 313, 
 444_446 ; constitution of, in Middle 
 Ages, 313 ; functions of permanent 
 Council, 325, 326, 377 ; centred in the 
 Crown, 377, 451, 452 ; strength of, under 
 the three Edwards, 410; insecurity of, 
 under Henry VI., 415-418; distracted 
 under Edward IV., 418-420 ; strength- 
 ening of the bases of, by legal control 
 of the military and judicial powers, 
 445 ; as also the magisterial, 445 ; finan- 
 cial and ecclesiastical, 445 ; all execu- 
 tive officers under control of govern- 
 ment, 532 ; irregular government by 
 the Commonwealth, 565; Cromwell's 
 military dictatorship, 565; necessity 
 of reconstructing constitutional self- 
 government on the old lines, 569 ; an- 
 tagonistic influences in the repub- 
 lican, 569-572; difficulty of Crom- 
 well and Parliament combining to 
 establish a stable .form of, 572, 573 ; 
 Cromwell's, essentially that of king 
 in council, 574; and oppressive, 
 because opposed to social bases, 574, 
 675 ; attempts of republic to form .-i 
 constitutional, 576-579; sovereign re- 
 public, 576 ; military dictatorship, 
 576, 577 ; protectorship with a one- 
 chambered Parliament, 577, 578 ; pro-
 
 764 
 
 Index. 
 
 tectorship with a two -chambered Par- 
 liament, 578 ; bad government under 
 Charles II. due to party persecution, 
 587 ; need for controlling influence of 
 king, 587 ; the national foundation of 
 the State as set forth in the Declaration 
 of Rights, 613 ; system of self-govern- 
 ment, 640-647 ; magisterial self, 640- 
 642 ; economic self, 640, 642-647 ; in- 
 dependence of higher officers of self- 
 government due to their being honorary, 
 
 645 ; intimate connection of the magis- 
 terial and economic self-governments, 
 645-647 ; strength of self, arising from 
 honorary position of superior officers, 
 645, 652, 659, 660, 667; strength of 
 central government due to prevalent 
 familiarity with administrative details, 
 645, 709, 710 ; weakness of self-gov- 
 .ernment due to lax execution of duties, 
 
 646 ; census of self-government officials 
 in eighteenth century, 646 ; the deve- 
 lopment of administrative jurisdiction, 
 647-657 ; absence of legal control over 
 misgovernment by king and parties, 
 647, 648, 649 ; j urisdictive nature of the 
 administration, 652 ; administrative 
 justice in militia, 656, 657 ; army, tax- 
 ation, and Church, 656 ; system of ad- 
 ministrative jurisdiction, 657 ; internal 
 government rendered independent of 
 parties, 657 ; important share of aris- 
 tocracy in, 672, 673 ; necessity of 
 the principle of appointment, not of 
 election, to higher offices, 674, 675 ; 
 parliamentary, the ideal of a mon- 
 archical constitution, 681 ; by cabinet, 
 682, 683 ; absolute necessity for some 
 discretionary power in, 683, 684 ; de- 
 pendence of the, upon Parliament, 685 ; 
 concentration of ruling power in House 
 of Commons, 687 ; legality of cabinet 
 government, 688, 689 ; transition of the 
 great officers into the modern ministe- 
 rial system, 689-695 ; Whig and Tory, 
 697-699 ; theory and practice of par- 
 liamentary party government, 702-708 ; 
 excellency of the English system of 
 parliamentary, 707, 708 ; literature re- 
 lating to party government, 708 ; rise 
 of modern administrative reform, 716 ; 
 sinecures diminished, 716 ; administra- 
 tive reforms promoted by Reform Bill, 
 726-728 ; formation of a war office, 
 726 ; new municipal law, 727 ; Local 
 Government Board, 727, 728, 741 ; inde- 
 pendent, granted to colonies, 728 ; of 
 India assumed by State, 728 ; failure 
 of laws for organizing local bodies, 
 729 ; formation of local boards, 733 ; 
 their functions strictly defined, 733, 
 734 ; abolition of personal obliga- 
 tion to perform civic duties fatal to 
 self-government, 733 ; the real power 
 passes into the hands of the paid 
 officials, while the local boards consist 
 of inferior citizens, 733, 734; moral 
 responsibility relinquished by parochial 
 
 election, 734 ; important controlling 
 influence of the press on, 736 ; injuri- 
 ous influence of local boards on par- 
 liamentary representation, 737 ; exten- 
 sion of the board system, 741, 742, 745 ; 
 reform of civil service, 742 ; tendency 
 of the equality cry towards democracy 
 and bureaucracy, 746 ; the clashing of 
 interests preventive of sound party 
 government, 746 ; the safety of the 
 State depends on the resumption of 
 public duties by individuals, 748 
 
 Gray's Inn, 321 
 
 Grentismenill, 216 
 
 Grey, Lord, vain attempt at political re- 
 form by, 716, 720 
 
 Grey, Lady Jane, 487, 491 
 
 Grey, Walter de, 219 
 
 Guards, 590, 609 
 
 Guilds, taxes laid on special city, in time 
 of Henry II., 124 ; distinct from muni- 
 cipalities, 126 ; institution of, 436 ; 
 antagonism of municipalities and, 437 
 
 Habeas Corpus, 602, 655 
 
 Hale, Lord Chief Justice, 284, 570 
 
 Hampden, opposes the ship-money tax, 
 551, 552 ; unfair judgment against, 
 552; judgment cancelled by Parlia- 
 ment, 554, 555 ; sides with parliamen- 
 tarians, 557 
 
 Hampshire, county of Suthamtescira, 38 
 
 Hamtunscir, 37 
 
 Hanaper, Clerk of the, 691 
 
 Harbours, rights of Anglo-Saxon kings 
 over, 26 ; free, granted by kings, 28 ; 
 regulations for, 526 
 
 Hardwicke, Earl of, 691 
 
 Harold, his struggle with the Normans, 93 
 
 Hastings, or Senlac, battle of, 93 
 
 Headborough, Vide Prcepositus. 
 
 Heath, Sir Robert, dismissed for opposing 
 ship-money, 550 
 
 Henry I., charter granted by, 112; re- 
 forms effected by, 112, 223 ; com- 
 promise of, in dispute with Church as 
 to investiture, 192, 197 ; government 
 of, 221 
 
 Henry IL, accession of, to throne, 113 ; 
 re-establishes royal prerogatives over 
 the Church, 194, 195, 197, 199, 233-239 ; 
 loses them later, 195, 197, 199 ; govern- 
 ment of, 221, 222, 223 
 
 Henry III., assumes the government, 
 259 ; returns to method of personal 
 rule and struggles with his subjects, 
 260; incapacity of, as king, 260-266; 
 presides at Court of King's Bench, 315 
 
 Henry I V.', difficult position of, as a king 
 by usurpation, 412, 413 ; opposes the 
 answering of petitions before money 
 votes are made, 413 
 
 Henry V., character of reign of, 414 ; 
 acts of personal penal jurisdiction by, 
 414,415
 
 Index. 
 
 765 
 
 Henry VI., weak intellect, 415, 458 ; 
 regency under, 415 ; stormy and un- 
 settled reign of, 415-418, 458 
 
 Henry VII., policy of, to keep the mag- 
 nates in subjection, 458, 459 
 
 Henry VIII., enlightened despotism of; 
 care of labouring poor by, 459, 460 ; 
 520 ; significance of his personal desire 
 to discard the pope's authority ; de- 
 fender of the faith, 484 ; disclaims the 
 pope's supremacy, 485 ; becomes the 
 supreme lord of the Church, 485, 489 ; 
 difficulties of his position in Church 
 reform matters, 489, 490 ; character of, 
 490 ; resents people's complaints as to 
 the constitution of the Privy Council, 
 500, 501 ; his share in business of 
 Cabinet Council, 504 
 
 Henry de Bath, 261, 262 
 
 Heptarchy, connection of kingdoms form- 
 ing the, 34, 35 ; quarrelsomeness of 
 chieftains, 87 
 
 Heraldry, adoption of family arms, 279 ; 
 brilliant era of, under Henry VI., 
 417, 430 
 
 Herbert, Lord, 500 
 
 Herbert, Sir Edward, 600 
 
 Hereford, or Hecana, kingdom of, 35 
 
 Herefordshire, county of Herefordscira, 
 38 
 
 Heretics, penal laws against, 400, 404 ; 
 burning of, 404 
 
 Heriot dues of royal vassals, 27, 28 
 
 Hertfordshire, county of Hertfordscira, 
 38, 39 
 
 Hida. Vide Land. 
 
 Highways. Vide Roads. 
 
 Hiqf&ta. Vide Personal Service. 
 
 Hlaford, 6, 10, 16, 21, 144, 274 
 
 Holland, separation of, from Belgium, 
 730 
 
 Hollis, Denzil, judicially condemned for 
 a speech in Parliament, 553 
 
 Holloway, Judge, 600 
 
 Homagium, 276 
 
 Honors, or groups of estates under one 
 steward, 122 ; judicial rights allowed 
 to, 122 ; court retinue of, 123 ; forma- 
 tion of, discontinued by Statute of 
 Quia Emptores, 123, 142 ; meaning of 
 term, 123, 142, 237 
 
 Hordere, or chamberlain,. 15 
 
 Horsthegn, or marshal, 15 
 
 Hospitals attached to monasteries, 61 
 
 Householder, legal jurisdiction of, over 
 household, 10 
 
 House of Commons. Vide Commons and 
 Parliament. 
 
 Hubert, Archbishop, 215, 229 
 
 Hubert de Burgh, 259 
 
 Huissier of Exchequer. Vide Exchequer. 
 
 Hundred Court. Vide Judicial System. 
 
 Hundreds, originally military districts 
 bound to supply one hundred soldiers, 
 6, 48 ; police responsibility of, for its 
 members, 24, 25 ; sub-districts of 
 counties after tenth century, 40 ; formed 
 b y .Llf red, 1 1 ; unequal distribution of, 
 
 41 ; union of one hundred hides or 
 families, 41, 42 ; sizes of, 42 ; usually 
 identified with towns, 42 ; combinations 
 of, into lathes, 42; jurisdiction of 
 sheriff in, 54, 55 ; combinations of, for 
 business purposes, 55 ; responsibility 
 of, for murdered Normans, 153 ; duties 
 of, in forming juries, 154-156; hun- 
 dred-rate, 307, 311 ; as communal 
 bodies, 447 ; jury duties of, pass to the 
 grand jury in Tudor period, 466 
 
 Hungerford, Sir Thomas, first speaker of 
 House of Commons, 379 
 
 Huntingdonshire, county of Huntedun- 
 scira, 38 
 
 Hunting laws, Anglo-Saxon, 26, 27 ; of 
 Middle Ages, 299 
 
 Huricas, land of the, 35 
 
 Huscarls, or mercenary soldiers, under 
 Cnut, 18, 90 ; dissolution of, 92 
 
 Hydagium. Vide Taxation. 
 
 Impeachment, right of, of public officers 
 established, 371, 372 
 
 In. contraction for Ine, 1 
 
 Inbrevatio. Vide Land Tenure. 
 
 Income Tax, developed from the scuta- 
 gium, 175 ; mode of assessing, in Middle 
 Ages, 308, 309, 360, 361, 362, 392 ; of 
 modern period, 638, 665, 667, 727 
 
 India, Secretary of State for, 694, 695 
 
 India, East, government of, assumed by 
 State, 728 
 
 Infangtheft, 122, 140, 141, 297 
 
 Ingrossator magni rotuli pipce. Vide 
 Exchequer. 
 
 Ingrosser. Vide Exchequer. 
 
 Inheritance, law of, according to Saxon 
 and Norman law, 138 ; right of pri- 
 mogeniture, 138 ; gavelkind, 138 ; un- 
 naturalness of primogeniture, 241 ; 
 privilege of primogeniture, 275 
 
 Inner Temple, 321 
 
 Inns of Chancery, 320 
 
 Inns of Court, 321 
 
 Interregnum not recognized in law, 450 
 
 Ireland, Secretary of State for, 695 
 
 Ireland, misgovernment of, 713, 714, 748, 
 749 ; antagonism of Roman Catholics 
 and Protestants in, 713, 714 ; ascend- 
 ency of Protestants ; impossibility of es- 
 tablishing a stable independent Parlia- 
 ment in, 713,714 ; imperative necessity 
 of union, 714 ; antagonism of national 
 party of, towards England, 714 ; union 
 of, with England, 714, 715 ; difficulties 
 of ministries on the Roman Catholic 
 emancipation question in, 729, 730 ; 
 threatening aspect of the land ques- 
 tion in, 740 ; disestablishment of the 
 Anglican Church in, 740 ; the Irish 
 question, 748, 749 ; separation from 
 Great Britain necessary to stability of 
 latter, and home rule to welfare of, 
 748, 749
 
 766 
 
 Index. 
 
 James I., entangled in continental in- 
 trigues, f>l;) ; pedantry of, 545, 646 ; 
 weakness of, 546 ; confused character 
 of, 54(>; claims to act as judge, 550; 
 establishes the dignity of baronet, 619 
 
 Janies II., Parliament excludes him, as 
 Duke of York, from succession to the 
 throne, 558, 608 ; escapes trial on a 
 serious charge, 599 ; shamelessly abuses 
 his power of appointing judges, 600, 
 iiii'2; procures a decision that the 
 laws are the king's own laws, 600 ; 
 obtains damages for libel as Duke of 
 York, 601 ; joy at the accession of, 
 608 ; plans overthrow of the con- 
 stitution, 608, by catholicizing the 
 Church, army, and public offices, with 
 a view to restoring absolute rule, 608- 
 612 ; counteracts the laws by abuse 
 of royal dispensing power, 610, 611 ; 
 attempts to abolish established Church 
 by ordinances, 610, 611 ; and to reinstate 
 Roman Catholics, 611 ; resolution de- 
 claring abdication of throne by, 628 
 
 Jarls, or, Danish commanders-in-chief, 
 50 
 
 Jeffreys, Lord, 600, 602, 607, 610 
 
 Jaws, special exchequer for, 186, 187'; 
 restricted legal rights of ; heavy arbi- 
 trary fines imposed on, 187 ; privileges 
 granted to ; expulsion from England, 
 19 Edward I., 187 ; admission of, to 
 House of Commons, 724 
 
 John, arbitrary taxation by, resented by 
 nation, 177, 240 ; becomes a vassal of 
 the Pope, 197, 201 ; grants free canoni- 
 cal election of bishops, 198 ; quarrel 
 of, with Pope as to appointment of 
 Langton, Archbishop of Canterbury, 
 200, 201 ; maintains his position while 
 supported by his subjects, but yields 
 when they forsake him, 200, 201 ; is 
 deposed by Pope, but has honour and 
 kingdom restored to him, 201 ; cha- 
 racter of, 240 ; his quarrel with the 
 Church, 241 ; abuses his feudal rights, 
 241 ; his contest with the barons, 244 ; 
 compelled to sign Magna Charta, 244 ; 
 faithlessness of, 255, 256 ; renews his 
 struggle with barons, and suddenly 
 dies, 256 ; acts as president of Court of 
 King's Bench, 315 
 
 John, Archbishop of Canterbury, 340 
 
 John of Crema, papal legate, 197 
 
 Johnson, 601 
 
 Jones, Chief Justice, 600 
 
 Judye. Vide Judicial System. 
 
 Judicature, Supreme Court of. Vide 
 Judicial System (Modern Period). 
 
 Judicial System : Anglo-Saxon. Legal 
 jurisdiction of landlords over tenants, 
 4 ; two kinds of court, the hundred 
 and county courts, or gemotes : the 
 former for petty cases, the latter for 
 general and more important county 
 
 business, 6 ; county courts uiaiuly as- 
 semblies of the greater proprietors,, or 
 witan, 7, 83 ; criminal punishments 
 and fines, 7 ; tithing system for 
 maintenance of peace, 7 ; oaths and 
 ordeals conducted by clergy, 8, 67 ; 
 high magisterial position of clergy, 8 ; 
 legal offices filled by Anglo-Saxon 
 landlords, 13; the king as supreme 
 judge, but the power of pronouncing 
 sentence is vested in the community, 
 19 ; appointment of ealdormen and 
 shirgerefas as judges, 19, 20, 21 ; hun- 
 dred and county courts, 19, 20 ; king's 
 extension of manorial court powers, 
 20; 21 ; king's judicial powers sub- 
 sidiary to recognized courts , witan 
 as deciders of the right, 20 ; com- 
 purgators, 21 ; punishments and fines, 
 21 ; king's privilege of pardon, 21 ; 
 tithings as peace preservers, 23 ; 
 sureties, 24, 25 ; regular monthly meet- 
 ings of hundred courts, 42, 54 ; duties of 
 . t tithings and hundreds, 42,43; erroneous 
 ' ideas as to village courts, 43 ; lord- 
 ships and unions of freeholders, 44 ; 
 legal independence of certain hundreds, 
 44 ; burhs with special jurisdiction, 45 ; 
 with various jurisdictions, 45, 46 ; royal 
 gerefas, or special magistrates, 55 ; 
 port-gerefas, 56 ; wic-ger&fas, 56 ; 
 general review of, 57, 58 ; magisterial 
 offices monopolized by prelates and 
 thanes, 58 ; judicial duties of clergy, 
 67; bishops as magistrates, 68; sur- 
 vival of the Germanic system after 
 the fall of Anglo-Saxons, 93 ; j udg- 
 ment or trial by peers, 93. Anglo- 
 Norman. Sochemanni or magistrate 
 landowners, 103, 105, 279 ; improve- 
 ments effected in, by Henry I., 112 ; 
 vicecomes or sheriff, royal justiciary 
 for county, 117, 136; judicial duty of 
 vicecomes, 117 ; business in part trans- 
 ferred from county to royal and hun- 
 dred courts, 117 ; judicial powers of 
 landlords, 122 ; villa or lord's tithing, 
 122 ; development of, 135-150 ; ancient 
 judicial system acknowledged by 
 William I., 135 ; promise made to form 
 a codification of Saxon laws and pro- 
 cedure, 135, 136, 141 ; references to 
 literature describing, 136 ; hundred 
 courts, 136 ; procedure and constitu- 
 tions of hundred and county courts, 
 137-139 ; heterogeneousness of the law, 
 and resulting confusion, 137, 138, 146 ; 
 foundation of "common law," 138, 
 languages used in the courts, 138; 
 judicial injustice, 141, 224; concentra- 
 tion of court business, 141 et seq. ; 
 neutralization of judicial powers of 
 landlords, 141-143, 211 ; increase of 
 professional judges, 143, 148; intro- 
 duction of civil and criminal juries, 
 143, 148, 149 ; decay of private juris- 
 diction, 143 ; special courts for towns, 
 143; special court leet, 144, 157 ; county
 
 Index. 
 
 767 
 
 courts, 144 ; power of county courts 
 curtailed, 144, 223; decay of hundred 
 courts, 144 ; criminal cases mostly 
 brought before county courts, 144, 145, 
 156 ; sheriff's toiirn, or branch county 
 courts, a local police oouct^.^45, 156, 
 li>7 ; king's court, or curia regis, estab- 
 lished for reserved causes, 146, 147, 
 209, 223 ; fees payable to royal court, 
 
 147, 170, 171, 225; special judges or 
 justiciarii, 147, 148, 223-227 ; assizes,- 
 
 148, 226; improved administration of 
 justice effected by the royal court, 148- 
 150, 229-233 ; j'ury certify to facts, 
 judges declare law and justice, 150, 
 294 ; tithings as peace preservers, 152- 
 153; formation and duties of grand or 
 presentment jury, 154^-156 ; and of the 
 petty or verdict-giving jury, 155, 156 ; 
 substitution of jury system for that by 
 ordeal or duel, 156 : courts leet essen- 
 tially local police courts, and separable 
 from manors, 156, 157 ; procedure in 
 court leet, 157, 158 ; bribes for evading 
 justice, 170, 171; curia adscaccarium, 
 178; accounts rendered by judges, 
 182 ; separation of ecclesiastical and 
 State jurisdictions, 189, 198, 199; 
 nature of ecclesiastical jurisdiction or 
 curia christianitatis, 189-191 ; law terms 
 distinct from court days, proof of 
 separate origin of judicial business, 
 205 ; curia regis as a constitutional 
 central court of law, 209-214 ; inca- 
 pacity and unsuitability of Norman 
 lords for settling legal questions, 209, 
 210 ; law men appointed for special 
 cases as temporary judges, 210, 228 ; 
 lawsuits of crown vassals chiefly settled 
 in county courts, 211 ; weakness of, 
 211, 212 ; misconceptions as to existence 
 of a supreme court of judicature under 
 early Norman kings, 212-214 ; duties 
 and powers of special itinerant judges, 
 223-231 ; special judges delegated from 
 royal court, 224-227 ; justices of oyer 
 and terminer, 226 ; of gaol delivery, 
 226 ; of dower, 226 ; and of assize, 226 ; 
 country divided into six circuits, with 
 three special judges to each, 226 ; origin 
 of Court of King's Bench or curia regis, 
 227, 228 ; justice in eyre, 228 ; justice 
 in banco, 228-; constitution of Court of 
 King's Bench, 228, 229 ; perfect system 
 of procedure by this court, 229 ; only 
 one bench prior to Magna Charta, 230" ; 
 connection between King's Court and 
 Exchequer, 230-233; all great State 
 officers represented in King's Court, 
 231 ; personal privileges of King's 
 Court officials, 231 ; king's right to sit 
 in banco, 232 ; rise of a judicial body, 
 and of a class of law jurists, 232, 233 ; 
 division of curia regis into Exchequer 
 and King's Court, 233 ; limitations of 
 judicial power by Magna Charta, 246, 
 247 ; private jurisdiction prohibited by 
 Magna Charta, 246; trial by jury or 
 
 judgment by peers, secured by Magna 
 Charta, 246, 247 ; freeholders as law men 
 in hundred court /*nd jurymen, 280; 
 extension of jury system, 2~85. Middle 
 Ages. Establishment of regular county 
 assizes, 291,292; nisi prius, 292 ; penal 
 justices, 292; justices of oyer and 
 terminer, 292 ; commissions of gaol 
 delivery, 292 ; replacement of assisa by 
 civil jury; modified procedure in taking 
 evidence, 292, 293 ; grand jury, 293 ; 
 which replaces the presentment jury 
 and assumes the duty of indicting, _>:>;> ; 
 separation of grand and petty juries, 
 293 ; local men essential for petty jury, 
 294, 295 ; advantage arising from the 
 people generally aiding in adminis- 
 tration of justice, 294; fair trial, 294 ; 
 jurymen restricted to persons owning 
 land producing more than twenty shil- 
 lings or forty shillings income, 295 ; 
 objections to poor jurymen, 295; con- 
 tinued decay of hundred and manorial 
 courts, 296 ; formation of office of jus- 
 tice of the peace, 297 ; restricted juris- 
 diction of Sheriff's tourn in Middle 
 Ages, 299, 304, 305 ; justice in trail 
 baston, 300; conservatores pacis ap- 
 pointed for each county for a time, 300 ; 
 district police magistrates, question 
 raised as to their appointment or elec- 
 tion, 300, 301 ; royal prerogative of ap- 
 pointment maintained, 301, 302, 452; 
 no true justices of the peace have been 
 elected by the people, 302; election 
 confined to custodes pacis without power 
 of judging, 302 ; duties of justices of 
 the peace, 303, 304 ; has power to ad- 
 minister summary justice without a 
 jury, 303 ; must be chosen from land- 
 owners, 300 ; or be lawyers appointed 
 by the Lord Chancellor, 303, 304 ; courts 
 leet superseded by justices of peace, 
 305, 306, 307, 310, 311 ; separate justices 
 of peace for some towns and counties, 
 310; court of the clerk of the market, 
 311 ; court of pie powder, 311 ; forma- 
 tion of fixed central tribunals, 312, 313 ; 
 courts of common law, 314-325 ; consti- 
 tution and functions of Court of King's 
 Bench, 314, 315 ; cases of king's pre- 
 siding, 315 ; cessation of this custom, 
 316 ; Court of Common Pleas, reserved 
 for civil cases not involving royal 
 rights, 315, 316 ; increased number of 
 justices-, 315; attempts to confine sit- 
 tings of Court of Common Pleas to 
 Westminster, 316 ; Court of Exchequer, 
 
 316, 317 ; inefficient exclusion of com- 
 mon pleas cases .from Court of Ex- 
 chequer, 316, 317 ; disappearance of 
 itinerant justices before judicial benches 
 and ordinary justices of central courts, 
 
 317, 318 ; increased powers of justices, 
 317, 318; judges paid officials of high 
 social rank, 318, 319, 432 ; salaries of 
 judges paid by king, 3J9 ; King's Ser- 
 geants, 319; judges mostly lawyers,
 
 768 
 
 Index. 
 
 319 ; judges entitled to knighthood, 
 319, 4552 ; common law or law made 
 by judicial precedents distinguished 
 from the statute law as established by 
 Parliament, 320; rise of a special 
 legal profession, 320-322, 432 ; Inns 
 of Chancery, and Inns of Court, for 
 education of attorneys and advocates, 
 321 ; graduated rank of lawyers, ser- 
 geants-at-law, king's attorney, king's 
 solicitor, 321 ; clergy not competent 
 for legal practice, 321 ; all writs for 
 commencing action issued by Chan- 
 cellor, 322 ; directions as to use of 
 Latin and English in law courts, 
 322 ; system of special courts which 
 dispense with juries ; military courts 
 presided over by high constable 
 and marshal, 322 ; right of king to 
 order military courts, 323 ; which were 
 continued to time of Charles I., 323; 
 Court of Court Marshal for jurisdiction 
 over king's servants, 324 ; forest courts, 
 324, 325 ; remonstrations of Parliament 
 against commissions of oyer and tcr- 
 ininer being issued by permanent 
 council, 328 ; formation of Court of 
 Chancery, 329 ; chief justices form part 
 of permanent council, 329 ; legal busi- 
 ness of permanent council effected by 
 Chancellor and justiciaries, 331, 332; 
 era of great j urists under Henry VI., 418; 
 strength and steadiness of, amidst the 
 Wars of the Roses, 419, 444 ; frequent 
 employment of courts martial, and 
 occasional resort to torture, 420 ; quali- 
 fications for service in juries, 433, 
 434 ; position of judge and jury well 
 defined, 445 ; principal weakness of, 
 due to reserved cases, 445 ; magisterial 
 powers strong, 445 ; but weakened by 
 powers of the royal council, 445 ; 
 king's interference with justice provided 
 against by law, 446 ; tithings as com- 
 munal bodies, 447 ; judicial supremacy 
 of House of Lords, 448 ; hampered by 
 party differences, 570; high character 
 of judges appointed by Cromwell, 570 ; 
 arbitrary dismissal of judges by Crom- 
 well, 570. Tudor period. Military 
 duties of justices of the peace, 463 ; 
 martial law proclaimed by Elizabeth, 
 463 ; judicial system of Tudor period, 
 464, 465 ; qualifications for service on 
 jury, 464, 620 ; trial by jury with 
 witnesses, 464 ; extension of jury sys- 
 tem to higher courts, 464 ; intimidation 
 of juries, 464, 465 ; punishment of juries 
 for offences and neglect of duty, 465 ; 
 Star Chamber instituted for control- 
 ling juries, 465 ; unimportant position 
 of court leet and manorial courts, 465 ; 
 literature relating to justice of the 
 peace, 465, 466 ; extension of duties 
 of justices of the peace in criminal 
 cases, 466-469 ; grand jury takes over 
 the duties of hundreds, 466, 467 ; pro- 
 cedure of grand jury, 466, 467 ; duties 
 
 of police magistrates, 466-470 ; Court 
 of High Commission established for 
 supreme Church government, 493 ; Star 
 Chamber, 504-509; inaccessibility of 
 law courts to poorer classes, 508 ; Court 
 of Requests, 508, 509 ; commercial and 
 trade courts, 509 ; Courts of the Lord 
 Steward, Treasurer, and Comptroller of 
 the Household, 509 ; Admiralty Court, 
 509 ; Court of Augmentations and 
 Revenues of the Crown, 509 ; Court of 
 wards and liveries, 509, 510 ; provincial 
 county delegations of Privy Council, 
 510 ; the central courts of common 
 law, 511 ; Court of Exchequer Cham- 
 ber, 511 ; increased salaries of judges 
 in time of Henry VIII., 511 ; honour- 
 able conduct of judges, 511, 512; the 
 old tithing is virtually replaced by the 
 parish, 515, 527 ; powers and duties of 
 magistrates in parishes, 530-532 ; con- 
 trol of magistrates by supreme juris- 
 diction, 532-534. Stuart period. Royal 
 power of appointing officers perverted 
 into a system of selling judicial offices, 
 550 ; removing obnoxious upright 
 judges, 550, 551 ; and replacing them 
 by subservient ones, 550, 551, 599 ; 
 James I. claims right to act as judge, 
 550; unjust judicial decision as to 
 legality of ship-money, 551. 552 ; trial 
 of subservient judges by Parliament, 
 555 ; judges appointed to serve so long 
 as they act rightly, 555 ; jurisdiction 
 of Privy Council abolished by Parlia- 
 ment, 555 ; the powers of the Star 
 Chamber mainly taken by King's 
 Bench, 590 ; arbitrary dismissal of 
 judges by Charles II., 600 ; exces- 
 sive sentences passed for libel, 601 ; 
 intimidation of juries bj r judges, 601, 
 602 ; jurors not responsible for legality 
 of verdict, 601 ; juries packed by 
 Charles II., 602 ; uprightness of magis- 
 trates under the Stuarts, 602 ; Court of 
 High Commission re-established by 
 James II., 610 ; and abolished by De- 
 claration of Rights, 612. Modern 
 period. Regulation of judicial power 
 by law, 635 ; judges appointed for 
 life, 635, 682; legal control of jury 
 lists, 635 ; qualifications of jurors, 635, 
 662 ; lord-lieutenants usually first 
 magistrates, 641 ; duties of justices 
 of the peace, 641, 651, 652; share 
 of people in judicial business, 642 ; 
 supreme administrative functions of 
 common law courts, 648, 654 ; pro- 
 cedure of laying complaints before 
 king, 650, 651 ; King's Bench made 
 the highest administrative court, 651 ; 
 judicial and police powers of justices 
 of the peace, 651, 652 ; appellate juris- 
 diction of quarter sessions, 654 ; and of 
 common law courts, 654, 655 ; qualifi- 
 cations of justice of the peace, 658 ; 
 the rich favoured more than the poor, 
 711 ; institution of new county courts,
 
 Index. 
 
 769 
 
 726 ; numerous improvements in legal 
 procedure, and in state of the laws, 
 726 ; restriction of capital punishment, 
 726 ; formation of the Supreme Court 
 of Judicature, 741 
 
 Judicial System amongst Germans. 80, 81 
 
 Judicium parum. Vide Judicial System. 
 
 Juries. Vide Judicial System. 
 
 Justice in trail baston. Vide Judicial 
 System. 
 
 Justice, Chief, president of Court of 
 King's Bench, 314, 315 
 
 Justice, Chief, presiding over Court of 
 Common Pleas, 315 
 
 Justice, Lord Chief, president of Exche- 
 quer Court as representative of king, 
 184 
 
 Justiciaries, or travelling commissioned 
 judges, 147, 148, 149, 154, 213, 214, 
 223-229 ; all royal commissioners at 
 first called, 228 ; term afterwards re- 
 stricted to commissioned judges, 228 ; 
 ordinary, 228, 229 
 
 Justiciarius, capitalis. Vide Justice, 
 Chief. 
 
 Justiciarius, capitalis, Anglice, 315 
 
 Justiciarius, capitalis, ad placita coram 
 Rege, tenenda, 315 
 
 Justiciary of England, representative of 
 Norman kings when absent from king- 
 dom, 215 ; not a formal permanent 
 office till Henry II., 215, 216 
 
 Jutes, kingdom of, in I. of Wight, 35 
 
 Keeper of the Great Seal. Vide Seal and 
 Chancellor. 
 
 Kent, kingdom of, 34, 38 ; county of, 38, 
 40 ; hundreds of, 41 
 
 King : Anglo-Saxon. Personal service 
 to, an honour for privileged upper 
 class, 4 ; royal rights exercised by the 
 Witenagemote, 10 ; origin of kingship 
 from military commanders and dukes, 
 12 ; title of " Cyning " first adopted 
 by M\\&, 12 ; social causes for king- 
 ship, 13 ; prerogatives of, 14 ; worth 
 or weregeld of, 14 ; officers of royal 
 household, 15 ; court offices originally 
 unconnected with State duties, 15 ; 
 sovereign rights of, slowly developed, 
 15, 16 ; as Hlaford and Mundbora, 15 ; 
 as commander-in-chief, 16 ; right of, 
 to appoint all leaders, 16 ; right of, to 
 build castles, 19 ; as supreme judge, 
 19 ; no power to pronounce the sen- 
 tence, 19 ; judicial supremacy over 
 thanes, 20 ; royal privilege of pardon, 
 21 ; legal power of, 21, 22 ; as chief 
 preserver of the peace, 22 ; revenue of, 
 derived from private property, 25, 26 ; 
 and public sources, 26 ; right of, to 
 personal services 01 militia for build- 
 ing and repairing castles, and of heriot 
 from vassals, 27 ; to wardships and 
 marriage of vassals' widows, 27 ; to 
 
 forfeited property, 27, 28; honorary 
 gifts, and right to free lodging, etc., 
 during journeys, 28, 29 ; full control 
 over exchequer, 29 ; protector of the 
 Church, 30 ; hereditary rights of, re- 
 cognized, 31 ; subject to military fitness 
 and outward forms of election, 31, 32 ; 
 the sovereignty a personal dignity, 32 ; 
 the king being leader of the people, not 
 lord of the soil, 32; title of "Rex 
 Anglice," first used on the Great Seal 
 by John, 33 ; titles of early kings, 33 ; 
 establishment of monarchy under 
 Alfred, Eadward, ^Ethelstan, and 
 Eadgar, 36 ; dependence of shires on 
 will of, 39 ; officials appointed by, 57 ; 
 predominance of the royal power, 58 ; 
 mutual support of clergy and, 69, 70 ; 
 divine right of, 70 ; compensation to, 
 for slain freemen, 75 ; right of, as 
 regards summons for popular assembly 
 or council, 82 ; decreasing power, 
 and ascendency of thanes, 85 ; diffi- 
 culties in establishing the Anglo-Saxon 
 kingdom, 86-89 ; powerlessness of, to 
 maintain independence of small land- 
 owners and ceorls, 89, 90 ; mild sway 
 of race of Cerdic, 90 ; isolation of, 
 from nobility, 90 ; disorganization 
 of kingdom, 92. Anglo-Norman. 
 Rights of, as lord of the fee payable by 
 feudal holders of land, 99; rights 
 as feudal lord over estates and marriage 
 of wards, 99 ; revenues of, from these 
 sources, 99, 100; allegiance to, over- 
 rules all feudal rights, 102; property 
 reserved for, 103 ; the original pro- 
 prietor of all lands, 106, 140, 280, 
 449 ; claims of, based both on inherit- 
 ance from Anglo-Saxon kings and as 
 feudal lord, 108, 111 ; revolts of great 
 vassals against, 111 ; loyalty of Anglo- 
 Saxons to, 111 ; full development of 
 Norman administrative system, 113 ; 
 by counties, 114-126 ; power of earls 
 checked as being dangerous to, 114; 
 vice-comes or sheriff as bailiff of royal 
 demesnes; duties of office, 116, 117; 
 revenue of, from royal demesnes, 117, 
 118; power of, over sheriffs, 119, 120; 
 sub-division of office by, 121 ; power 
 of vassals restricted by scattered posi- 
 tion of their landed property, 123, 141, 
 142, 204 ; claim of, to military service 
 from all vassals, 127, 203 ; right to 
 decide for war or peace made a royal 
 prerogative, 127, 203 ; right of build- 
 ing castles privilege of, 128 ; com- 
 mander-in-chief by right, 131 ; leader- 
 ships of army based on king's commis- 
 sion, 131 ; firm position of, due to high 
 military organization, 132, 133 ; power 
 of, as supreme judge, 142, 209, 210, 
 211 ; retains right of distress, 142 ; a 
 true fountain of justice, 160 ; right of, 
 to issue ordinances, 190, 203 ; arbitrary 
 penal jurisdiction possessed by, 162- 
 166 ; controlling power of, over mag- 
 
 SD
 
 770 
 
 Index. 
 
 nates and subjects, 164; detailed 
 summary of sources of revenue of, 
 165-177 ; extent of royal demesnes, 
 167 ; real property belongs to the 
 Crown, 167 ; aids or extraordinary con- 
 tributions for knighting son of, for 
 marriage of daughter of, or for his 
 release from captivity, 172 ; personal 
 control of Exchequer business by, 179, 
 184 ; precedence of debts to, over all 
 others, 183, 192 ; private treasury and 
 treasury staff of, 186; right of, to 
 appoint bishops and abbots, 190, 195, 
 197, 198, 204; retention of right to 
 ratify all resolutions of ecclesiastical 
 councils, and to control papal acts in 
 England, 190, 195, 196 ; has power of 
 vassalage over all clergy, 190, 191, 
 192; earlier kings masters of the 
 Church, 192 ; not so Henry I., Stephen, 
 and Henry II., 192, 193, 197 ; nor John, 
 who became a vassal to the Pope, 197 ; 
 right of electing and consecrating 
 bishops conceded to the Church ; tem- 
 poralities and authority granted by the, 
 197, 198 ; mode of contesting with the 
 Church; power of, counteracted by 
 estrangement of upper classes, 200; 
 government centralized about the, 201 ; 
 nature of the Norman court days ; 
 mainly assemblages summoned and 
 controlled by the, 201-208, 234 ; per- 
 sonal government of, a consequence 
 of antagonistic Norman and Saxon 
 subjects, 203-205; discontinuance of 
 court days from time of Henry I., 
 208 ; subordinate position of his officers 
 and great lords as regards government, 
 209-214 ; council of, not a delibera- 
 tive assembly, 214, 215; high court 
 officers are servants of, with but little 
 political power, 215-221, 450 ; razing of 
 castles under Stephen, 222 ; right of, 
 to preside over Court of King's Bench, 
 232, 314, 315 ; as regulator of procedure 
 in courts of law, 233 ; blending of nation- 
 alities a ban to absolute rule, 242, 243 ; 
 alliance of barons and clergy against 
 monarchy, 244 ; Magna Charts a com- 
 pact between barons and, 250 ; penalties 
 for breach of compact by, 250, 251 ; 
 feudal nature of agreement, 251, 252 ; 
 Magna Charta a security for sovereign 
 rights and against arbitrary rule, 253, 
 254 ; meetings of magnates granting or 
 refusing aids to, 261, 262, 263, 266-268 ; 
 demanding redress from or regulating 
 conduct of, 261 ; attempts of, to restore 
 personal rule, 261, 267, 268 ; central 
 government placed in the hands of an 
 elected ministry, 263, 264 ; but again re- 
 sumed by Henry III., 265 ; absolutism 
 still predominant, 268-270. Middle 
 Ages. Right of, to appoint district 
 police magistrates or justices of the 
 peace maintained, 302-304, 452 ; abso- 
 lute rule superseded by constitutional 
 government by law 313 ; cessation 
 
 of custom of presiding and delivering 
 judgment in Court of King's Bench, 315 ; 
 salaries of judges paid by the, 318, 319 ; 
 judges under penal jurisdiction of, 319 ; 
 question as to responsibility of judges 
 to Parliament or to the, 319, 320 ; right 
 of, to order military courts for decid- 
 ing affairs of honour, 323, 324 ; court 
 for jurisdiction within royal palace, 
 324; functions of permanent council, 
 325, 326 ; the ultimate resource for re- 
 dress of grievances is with the, 327 ; 
 procedure of permanent council often 
 regulated by, 328 ; remnants of per- 
 sonal rule in deciding on petitions, 329 ; 
 opposition of Commons to king's penal 
 jurisdiction in permanent council, 333, 
 334, 335, 409 ; reservation of rights of, 
 334, 335 ; opposition to arbitrary use 
 of privy seal by, 336, 337 ; right of, to 
 reserve important cases for judicium 
 parum, 339 ; king in council means 
 essentially the House of Peers, 340- 
 342; will of, subject to influence of 
 great council, 343 ; no law to be 
 altered solely by ordinance of the, 
 344, 456 ; relation of, to permanent 
 council and to Parliament, 350, 351, 
 452-456 ; Parliament considered to be 
 primarily a meeting of the king's 
 council, 350, 351 ; gradual cessation of 
 personal summons to Parliament by, 
 352, 356 ; peers created by royal patent, 
 351-356 ; claims prerogative over peer's 
 seat in Parliament, 356 ; heavy taxes 
 demanded by Edward I., 362, 363 ; 
 Statutum de tallagio non concedendo 
 passed, requiring consent of Parliament 
 for all taxes, 364; taxes granted for 
 national, not royal, purposes, 365 ; tolls 
 and indirect taxes granted to, 365 ; a 
 rendering of accounts submitted on 
 demand of the Commons, 367, 368, 413 ; 
 no law made by Parliament alterable 
 by royal ordinance without consent of 
 Lords and Commons, 374, 457 ; right 
 to crown based on recognition by Par- 
 liament, 380, 413, 447 ; presence of, 
 excluded from Parliament when dis- 
 cussing money grants, 380 ; election 
 disputes settled by, 384 ; still retains 
 entire control over meetings and 
 duration of Parliament, 388 ; superior 
 claims of, to decide in all controversies 
 between spiritual and temporal powers, 
 402 ; struggles of, in Parliament, 405- 
 421 ; stability of monarchy under Ed- 
 ward I., 405-407 ; the king nominally 
 the legislator in statutes, 406, 407, 453 ; 
 deposition of, by Parliament, 412 ; 
 altered position of the king in the State 
 with accession of Henry IV., 412, 413, 
 447 ; cases of personal penal jurisdiction 
 under Henry V., 414, 415 ; fortification 
 of castles by nobles under Henry VI., 
 417, 425 ; expenditure and retinue of 
 royal household in time of Edward III., 
 424 ; the royal prerogatives, 444-457 ;
 
 Index. 
 
 771 
 
 personal will subordinated to legal rule, 
 strengthening both Crown and State, 
 444, 445, 456, 457 ; royal power the 
 source of parliamentary liberties, 447 ; 
 relations of House of Lords to Crown, 
 448 ; the " king in council " the stable 
 centre of government, 448, 449 ; royal 
 dignity enhanced by constitution of 
 Parliament, 449 ; interregnum not 
 recognized in law, 450 ; recognized 
 head of society, 450 ; the retinue and 
 expenditure of royal household under 
 Edward IV., 450 ; meaning of " royal 
 prerogative," 451 ; still commander of 
 the State, 451, 452 ; under restraint of 
 law, 452 ; retains right to appoint State 
 officers, 452 ; meaning of " royal autho- 
 rity," 452 ; military commander, foun- 
 tain of justice, guardian of peace, source 
 of honour, arbiter of commerce, head of 
 Church, real head of government, 452 ; 
 legal conceptions of powers of, 456, 
 457. Tudor period. Monarchy as an 
 institution strengthened by wars of 
 Middle Ages, 458 ; policy of the Tudor 
 dynasty to keep the barons in sub- 
 jection, 458, 459, 462 ; resumes posi- 
 tion as absolute head of the Church, 
 460, 485, 489, 536, 539; constitu- 
 tion maintained by, 462 ; ascendency 
 of personal influence of, 472 ; presi- 
 dent of the Privy Council the actual 
 seat of government, 472 ; personal 
 influence exercised over electors, 475 ; 
 and in House of Commons, 475, 476 ; 
 succession of, based on parliamentary 
 statutes, 476 ; co-operation of Parlia- 
 ment essential to the work of reforma- 
 tion by, 476 ; rejection of bills initiated 
 by, by the House of Commons, 476 ; 
 nullity of royal ordinances by, 476, 
 477 ; Parliament claims the power to 
 delegate the making of laws to, 477 ; 
 diminished hereditary revenue of, 479 ; 
 right of appointing bishops resumed, 
 485 ; royal supremacy of Church 
 abolished under Mary, 488 ; exten- 
 sive embezzlement of Crown lands, 
 491 ; Court of High Commission made 
 an attribute of sovereignty, 494 ; all 
 ecclesiastical offices subordinated to 
 the, 496, 539 ; censorship of the press 
 exercised by, through the Privy Coun- 
 cil, 499 ; rules as to use of king's 
 signet, 502, 503 ; criminal jurisdiction 
 of, as exercised by the Star Chamber, 
 605, 506 ; power of, over wards and 
 marriages of king's widows, 510 ; high 
 monarchical spirit of, 512 ; whole- 
 some government by, 512, 513 ; all ex- 
 ecutive officers appointed during the 
 pleasure of the, 532 ; important influence 
 of monarchy in preserving connection 
 of Church and State, 538. Stuart 
 period. The divine right of kings pro- 
 mulgated by clergy, 641-543, 559, 676 ; 
 conflict of the jure divino monarchy with 
 the estates, 544-564 ; power of, retained 
 
 after the Reformation, 544 ; aversion 
 of the Stuarts to exercise the duties 
 of, 544, 545 ; the establishment of 
 dynastic pretensions preferred to the 
 advancement of the national policy, 545, 
 546 ; disrespect of, for law, 545, 546 ; 
 Petition of Right prohibiting payment 
 of taxes not sanctioned by Parliament, 
 arbitrary arrests, and certain martial 
 law proceedings, 547 ; personal rule 
 resorted to by Charles I., 547; the 
 Stuarts attempt to secure absolutism 
 by a development of the ecclesiastical 
 supremacy, 547, 548 ; Filmer's argument 
 for the divine right of, 548 ; power 
 of inflicting fines, issuing ordinances, 
 granting monopolies, obtaining reve- 
 nues from forests revived by, 549 ; 
 sale of judicial offices by, 550 ; 
 system of ordinances abused by, 552, 
 553 ; power of impeaching ministers 
 evaded by, by not summoning Parlia- 
 ment, 553 ; elements of resistance in 
 English constitution against despotism, 
 553, 554 ; compelled to call a Parlia- 
 ment, 554; summoning of Parliament 
 made compulsory on, by Triennial Act ; 
 dissolution, prorogation, and adjourn- 
 ment of Parliament made subject to 
 Act of Parliament, 555 ; war between 
 Parliament and, 557, 558 ; Parliament 
 upholds the authority of the king in 
 law, 558 ; which precludes its power to 
 overthrow monarchy, 558 ; fiction of 
 " king in Parliament " resorted to by 
 Parliament, 560 ; strong feeling in 
 favour of inviolability of person of, 
 562 ; procedures of Parliament against, 
 563 ; abolition of monarchy, 564, 
 676 ; discontent of royalist faction 
 under Cromwell's rule, 566-568 ; Crom- 
 well declines the title of, 573 ; his 
 government essentially that of "king 
 in council," 674; reaction of public 
 opinion in favour of monarchy, 580 ; 
 danger of prematurely restoring the, 
 580, 581 ; enthusiasm for restoration of 
 Charles II., 581; the divine right 
 of, incorporated in Act of Parliament, 
 581 ; popular feeling against repub- 
 lican rule, 581 ; regicides tried and 
 executed, 582 ; restoration of king 
 and royal supremacy, 582 ; military 
 fiefs and feudal dues to, abolished, 583, 
 595 ; and compensated for by a malt 
 tax, 583 ; oath of non-resistance to, 
 made compulsory on all office-bearers, 
 584; the restoration is the reinstate- 
 ment of monarchy by wealthier classes, 
 585 ; cessation of taxation by, 586 ; 
 and of legislation by ordinances, 586 ; 
 need of influence of, to control party 
 excesses, 587 ; frivolity and neglect of 
 royal duty by Charles II., 687, 588 ; 
 the Duke "of York excluded from the 
 succession to throne by Parliament, 
 688 ; the king in council and the king 
 in Parliament, 689-604 ; restoration of
 
 772 
 
 Index. 
 
 Privy Council in monarchical govern- 
 ment, 589 ; scope for exercise of per- 
 sonal influence of, 596, 602, 603 ; confi- 
 dential cabinet government by James I., 
 Charles I., and Charles II., 596, 597 ; 
 James II. procures a decision that the 
 laws are the king's own laws, 600 ; 
 political trials instigated by, 600, 601 ; 
 elasticity as to notion of sedition, 601 ; 
 and of libel, 601 ; James II. plans 
 the restoration of absolutism, 608-611 ; 
 judicious mode of removing the Stuart 
 dynasty, 628-630 ; legal controls neces- 
 sitated by misgovernment of, 647-649. 
 Modern period. Compact between 
 nation and, as expressed in the Decla- 
 ration of Rights, 612-614 ; 626, 627 ; all 
 subjects may petition to the, 612 ; 
 source of all power in, 613, 626, 681 ; 
 limited by law as established by Par- 
 liament, 613, 614, 626, 627, 681 ; rela- 
 tions of, to Parliament, 627, 681, 682 ; 
 restoration of hereditary monarchy, 
 628-631 ; crown declared vacant by 
 abdication of James II., 628 ; Act 
 of Settlement as to succession to 
 throne, 629 ; Roman Catholics ex- 
 cluded from throne, 629 ; succession re- 
 stricted to Protestants, 629 ; restricted 
 hereditariness of throne, 629 ; lack of 
 national sympathy with William III., 
 630 ; the regulation of sovereign rights 
 by law, 632-639 ; diminished revenue 
 of Crown estates, 637 ; fixed sum 
 
 t ranted to, in lieu of Crown revenues, 
 37, 638 ; the connection of sovereign 
 rights with local institutions, 640 ; com- 
 plaints to, must come by writs from a 
 justice, 650, 651 ; relation of the Crown 
 to Parliament, 681-689 ; the king in 
 Parliament and the king in council, 681 ; 
 use of ordinances by, restricted, 681 ; 
 William III. the last who presided at 
 a government council, 683 ; represented 
 in Parliament by Crown ministers, 
 683 ; powers of discretion absolutely 
 denied to, 684, 685 ; army placed beyond 
 control of, 685 ; George III. attempts 
 to restore personal rule, 704, 705 
 
 King's Bench Court. Vide Judicial 
 System. 
 
 Kingston, John, 431 
 
 Knights: establishment of system of 
 knighthood, 132 ; vassal bound to 
 take dignity of, and to pay fees for, 
 knighthood, 132, 139, 278, 279, 428 ; 
 formation of English knighthood, 275- 
 277 ; knighthood not hereditary, 278 ; 
 dignity of knighthood not personal, 
 278; meaning of " knight," 278 ; claim 
 to honorary title "sir," 278; rising 
 importance of, 283, 284; employed as 
 tax assessors, 317 ; knights of the shire 
 as members of Parliament, 373, 381, 
 385, 386, 429 ; expenditure and retinue 
 of, temp. Edward III., 424 ; place 
 of, in system of self-government, 427- 
 430; sparing conferment of knight- 
 
 hood by Elizabeth, 511; freeholding, 
 the bulk of English gentry, 620 
 Knight's fees, land property not divided 
 by William I. into, 107 ; not men- 
 tioned in Domesday Book, 107 ; num- 
 ber of, in time of Henry III., 107 ; 
 value of, 109 ; distinct from manor, 
 109; subdivisions of, 131, 239, 277, 
 278, 286, 427, 428 ; obligations attached 
 to, 130, 131, 278 ; amount of, fixed by 
 Magna Charta, 245 ; alienability of, 
 277, 427, 428 ; reassessment of, 389, 
 433 ; immunities conferred on, 583 
 
 Labourers : Anglo - Saxon. Dependence 
 of, 4 ; Sundays, wages, and freedom 
 secured for, by the clergy, 8 ; political 
 inferiority of, 57 ; number of bordarii 
 occupying land in time of Edward, 104. 
 Anglo-Norman. Position of, under 
 feudal system, 103 ; number of bor- 
 darii occupying land in time of 
 William I., 104, 106 ; oppression of, 
 by petty lords, 222, 279, 280. Middle 
 Ages. Loosening of ties between 
 labour and property, 297 ; wages of, 
 fixed by law, 298, 437 ; excluded 
 from right to vote for members of 
 Parliament or municipal officers, 434, 
 439, 441 ; amusements prohibited to, 
 437 ; rebellions of, induced by exces- 
 sive labour regulations, 440 ; relation of, 
 to property, 440 ; freedom of, 440, 441, 
 442. Tudor period. Care of labourers 
 and poor in time of Henry VIII., 
 459 ; regulations affecting labour, 467, 
 468 ; oppression of, by nobles, 487, 
 491. Modern period. Increased pros- 
 perity of, 623 ; neglect of the inte- 
 rests of, by the ruling class, 710, 711 ; 
 repeal of penal laws against unions, 
 716 ; growing dependence of, on indus- 
 trial capital ; excluded from franchise, 
 718 ; depressed state of, after passage 
 of Reform Bill, 725 ; social reforms 
 passed on behalf of, 725, 740 ; demand 
 for equal value for labour, 745, 746 
 
 Lamb-ales, 529 
 
 Lancashire, 40 ; hundreds of, 41 ; county 
 palatine, 102, 116 
 
 Lancaster, Duke of, duel of, 323 
 
 Lancaster, Earl of, 343 
 
 Lancaster, house of, Henry IV. first 
 sovereign, 412; struggles of, with house 
 of York, 416-420; as rulers of Eng- 
 land, 419 
 
 Land, Anglo - Saxon division of, 2 ; 
 plough of, as unit of measure ; dimen- 
 sions of hida, familia, mansus, or 
 plough ; British property in, 2 ; deve- 
 lopment of private property in, during 
 Anglo-Saxon period, 3 ; distinction of 
 boc-land (ager privates) and folkland 
 (ager publicus) in tenth century, 3 ; title 
 deeds in, 3; largely bestowed upon
 
 Index. 
 
 773 
 
 Anglo-Saxon commanders, 3 ; depend- 
 ence of freeborn classes on great pro- 
 prietors of, 3, 4; landlords possessed 
 of legal and police jurisdiction over 
 tenants, 6, 10, 44 ; magisterial func- 
 tions mainly restricted to large owners, 
 7 ; responsibility of landowners for 
 tenants, 7 ; essential to clergy as in- 
 tellectual workers, 9 ; Witenagemote 
 chiefly composed of landed proprietors, 
 10 ; predominant influence of landlords 
 as holders of military and legal offices, 
 13 ; oppression of lower classes by 
 large landowners, 13 ; freedom of 
 landless man restricted by security 
 system, 25 ; power of Anglo-Saxon 
 queens to hold and dispose of, 25 ; the 
 king's right of usufruct in folkland, 25 ; 
 conversion of folkland into private 
 land subject to consent of National 
 Assembly, 26 ; gradual allodification of 
 folkland, 26 ; tithing not a territorial 
 division, 42, 43 ; four great provinces 
 formed by Cnut, 50, 51 ; position of 
 landowners in Anglo-Saxon state, 58, 
 76 ; class privileges based on pro- 
 perty in, 69 ; as also class relations, 
 73, 75 ; compensation to landlords for 
 slain vassals, 74 ; responsibility of land- 
 lords for personal followers, 76 ; land- 
 lord's right of arrest, 76 ; power of 
 Church based on property in, 91 ; 
 opposed to secularization of Church 
 lands for purposes of national defence, 
 91 ; and depresses the people by its 
 landlordism, 91 ; William I. lays 
 claim to all England, 96, 97 ; feudal 
 system of holding, for military service, 
 97, 98 ; confiscation of Saxon estates by 
 William I., 97 ; folkland appropriated 
 as royal property by William I., 97 ; 
 grants to Norman warriors, 98 ; 
 Church property retained, 98 ; military 
 service imposed on all landowners, 98 ; 
 at the rate of one man per five hides, 
 98; hereditability of fiefs, 98, 99; 
 powers of feoffee restricted to personal 
 use of, 99 ; no right of disposing lands 
 by will until Henry VIII. 's reign, 100 ; 
 oath of fealty rendered to William I. 
 by all landowners in 1086, 102; 
 Domesday Book, the property register 
 of the kingdom, 102-109 ; sochemanni, 
 103 ; census of landowners in times of 
 Edward and of William I., 103-106; 
 chief tenants under William I., 103, 104 ; 
 sub-tenants, 104, 105, 276 ; erroneous 
 ideas as to division of, into knights' 
 fees, 107 ; meaning of feudum, 107 ; 
 miles, 107, 275; hidse, 108; local 
 government regulated by nature of 
 property in, 121 ; description of manors, 
 122; honors, 122, 123; and burghs, 
 123-126 ; rights of Norman landlords, 
 
 122, 139; power of nobles weakened by 
 their lands being in different counties, 
 
 123, 141, 142, 242, 273; land lawsuits 
 regulated by Norman law, 138 ; allo- 
 
 diarii, 139, 279, 280 ; court baron, 139, 
 140 ; neutralization of landlords' judi- 
 cial power, 140, 141 ; landlords for- 
 bidden to have their own prisons bv 
 Statute of Merton, 142, 266, 267 ; ex- 
 tensive possessions of, by the Church 
 during Anglo - Norman period, 188 ; 
 increasing importance of freeholders, 
 241 ; landed possessions of Anglo- 
 Norman magnates, 273, 274 ; and of 
 lesser Crown vassals, 275, 276; sub- 
 infeudation not always indicative of 
 lower rank, 276, 277 ; multiplication of 
 fiefs, 278 ; freeholders as lawmen in 
 hundred courts and jurymen, 280; 
 decay of powers of jurisdiction by 
 landowners, 296, 297 ; loosening of ties 
 between labour and property, 297, 298 ; 
 landowners and lawyers only to be dis- 
 trict justices of the peace, 303, 304 ; 
 later the privilege was confined to un- 
 paid landowners, 304 ; persons holding 
 property by barony bound to answer 
 summons to Parliament, 347 ; but 
 without any legal claim to be so 
 summoned, 349 ; peerage dependent on 
 right by birth, not by possession of 
 fixed estate, 351, 352, 353, 355, 356 ; and 
 primarily based on services in Parlia- 
 ment, 356 ; extensive confiscation of, 
 by Edward IV., 419 ; wealth of land- 
 owners in Middle Ages, 424 ; number 
 and sizes of knights' estates in Middle 
 Ages, 427, 428 ; preventives to forma- 
 tion of an hereditary order of land- 
 owners, 428, 429 ; land farmed by rent- 
 paying leaseholders in place of bailiffs, 
 440 ; private rights of landowners based 
 on the theory that the king is the sole 
 landowner, 449 ; leases of large areas of, 
 tending to depopulation, prohibited in 
 time of Henry VIII., 459 ; devise of, 
 allowed after time of Henry VIII., 
 475, 618 ; extensive change of pro- 
 prietorship in, 491, 618; sewers rates 
 levied on landowners, 527 ; restoration 
 of sequestrated and forfeited estates, 
 581; conversion of baronies and 
 honours into freeholds, 616 ; increased 
 wealth of landowners, 616 ; power of 
 landowners secured by raising qualifica- 
 tions for offices, 658-661 ; system of 
 entail devised for the purpose of re- 
 taining land in possession of family, 
 660 ; and used for accumulating estates 
 in the hands of a few, 660; large 
 amount of, in the hands of nobles, 660 ; 
 power of landowners in parliamentary 
 boroughs, 671 ; oppression of the 
 smaller landowners, 710 ; evils in taxa- 
 tion, national expenditure, sanitation, 
 justice, poor laws, religious supremacy, 
 education, and science prejudicial to 
 the labouring classes due to the land- 
 owners, 711 ; transference of power 
 from landowners to capitalists, 717 ; 
 close connection of tenure of, with the 
 suffrage, 718 ; extension of franchise
 
 774 
 
 Index. 
 
 to leaseholders and copyholders, 721 ; 
 reforms in land laws, 724 ; difficulties 
 of the land question in Ireland, 740 
 
 Landlords. Vide Land. 
 
 Land Tax, developed from the scutagium, 
 175, 287 ; hide tax, 175, 240 ; caru- 
 cagium, 176, 360 ; amount of, in time 
 of Cromwell, 571 ; decay of, 638, 667 
 
 Land tenure : Anglo-Saxon. Terms on 
 which fiefs were granted, 4 ; feudal 
 system undeveloped, 6 ; tenure of 
 folkland, 18 ; allodial tenancy, 18. 
 Anglo-Norman. Feudal system of, 
 established by Normans, 98 ; land held 
 conditional on military service, 99, 
 109 ; mode of introduction of feudal 
 system into England, 101, 102, 111 ; 
 change of, indicated by Domesday 
 Book, 103 ; tenure by knights' fees, 107, 
 110, 236, 237 ; tenure by inbrevatio 
 or redemption, 108, 279 ; allodiarii, 
 139, 280 ; fines for regrants of fiefs, 
 171 ; feudal system of, applied to larger 
 estates of the Church, 190, 191 ; tenure 
 of frankalmoign, 191, 347; subinfeu- 
 dation, 276 ; complications in, caused 
 by subinfeudation, 277 ; prohibition of 
 subinfeudation, 277 ; increased number 
 of fiefs, 278; insecurity of, by peasantry, 
 279 ; burgage tenure, 434 ; socage 
 tenure, 434, 618 ; by rent, 440 ; by vil- 
 leinage and copyhold, 441, 623 ; aboli- 
 tion of military fiefs, 583, 617, 618 
 
 Langton, Stephen, appointed Archbishop 
 of Canterbury by the Pope ; John 
 disputes the election ; and after a 
 struggle the see is occupied by, 200. 
 201, 242, 244 
 
 Lathes of Kent, 42 
 
 Latifundia, 710, 711, 740 
 
 Latin language, official use of in law in 
 early part of Anglo-Norman period, 
 138 ; retained later by clergy, 232 ; 
 used in law courts of Middle Ages, 
 322 ; superseded by French amongst 
 upper classes after Edward II., 344 
 
 Laud, Archbishop, catholicizing of the 
 Protestant Church by, 548 ; impeach- 
 ment of, 555 ; executed, 556 
 
 Law, history of, and of the constitution, 
 viii. 
 
 Laws, welding of Anglo-Saxon into 
 Anglo-Norman, 95 ; works on Norman 
 jurisprudence, 95, 96, 136 ; Leges 
 Eduardi and Leges Henrici Primi, 
 95, 136 ; principal, passed in reign of 
 Edward I., 284 ; distinction between 
 common and statute, 320 ; distinction 
 between laws, or statuta vetera, and 
 acts of Parliament, or statuta nova, 375 ; 
 primarily issued by the king, 453 ; the 
 highest controlling force of State-will, 
 453, 457 ; works relating to Stuart 
 period, 535 ; James II. procures a 
 decision that the laws are the king's 
 own laws, 600 ; works on modern laws, 
 625, 626 ; relation between ordinance 
 and law, 639 
 
 Lawyers. Vide Judicial System. 
 
 Lead, exports of, restricted to merchants 
 of the staple, 436 
 
 Leaseholders, 440 
 
 Leather, duty on, 390 ; exports of, re- 
 stricted to merchants of the staple, 436 
 
 Leeko, Judge, 600 
 
 Leet-ales, 529 
 
 Legates, establishment of Roman Catholic, 
 in Anglo-Norman Church, 199 
 
 Legge, 692 
 
 Leicestershire, county of Leorcestrcscira, 
 
 38 ; hundreds of, 41 
 Lenthall, Speaker, 579 
 Levellers, 577 
 Lewes, battle of, 264 
 Liberals. Vide Parliament. 
 Liberi homines. Vide Freedom. 
 Licenses. Vide Trade. 
 
 Lieutenants of the King. Vide Lord 
 
 Lieutenants, 
 Ligium, 276 
 Lincoln, payment for firma burgi and 
 
 exemption from tallagium, 169 ; a 
 
 staple town, 436 
 Lincoln, E. of, 692 
 Lincolnshire, county of Lincolnescira, 38, 
 
 39 ; thrithings of, 41 
 Lincoln's Inn, 321 
 Lindiswaren, land of the, 35 
 Liveries, 416, 417, 426 
 
 Local Boards. Vide Government. 
 
 Local Government Board, 695, 728 
 
 Lollards, 399, 400 
 
 London, city of, 124 ; acquires position 
 of a county bv annexing Middlesex, 
 125, 310, 311 fallowed to elect its own 
 mayor, 125 ; with independent civil and 
 criminal jurisdiction, 143 ; payment 
 for right to choose sheriff, 169 ; taxes 
 of, 173 ; separate militia system of, 
 310 ; representation of, in Parlia- 
 ment, 387 ; a staple town, 436 ; con- 
 flict of guilds and municipality, 436 ; 
 petition of citizens of, against foreign 
 merchants, 437 ; municipal constitution 
 of, annulled, 599, 600, 607 
 
 Lord, a title of courtesy, 355. Vide 
 Peers. 
 
 Lord Chief Justice. Vide Justice. 
 
 Lord Great Chamberlain. Vide Chamber- 
 lain. 
 
 Lord High Constable. Vide Constable. 
 
 Lord High Steward. Vide Steward. 
 
 Lord lieutenants of counties, appoint- 
 ment of lieutenants of the king for 
 recruiting purposes, 463 ; great barons 
 as, 617 ; duties of, in modern period, 
 641 
 
 Lordships, 44 
 
 Louis, Prince, helps the English barons 
 against John, 256 
 
 Louis XIV., policy of, 597; carries on 
 secret negotiations with Charles II., 
 597, 598; bribes members of English 
 Parliament, 599 
 
 Lovell, Sir Thomas, 500 
 
 Luci, R. de, 199, 215
 
 Index. 
 
 775 
 
 M 
 
 Macclesfield, E. of, 692 
 Magisterium, 621 
 Magistrates. Vide Police System. 
 Magna Charta, the result of a national 
 feeling; foundation of the English 
 constitution, 242, 243 ; opposition of the 
 barons to John, 244 ; the meeting at 
 Runnymede, 244; literature referring 
 to, 244, 245 ; the provision of, for 
 legally limiting the feudal military 
 power, 245 ; judicial power, 246, 247 
 the police power, 247, 248 ; the financiai 
 power, 248-250; for establishing 
 estates of the realm, 250-252 ; and 
 House of Lords, 252, 253 ; keystone of 
 English liberty, 253, 254; opposition 
 to, by the Pope and John, 255 ; con- 
 firmations of, 256-258, 261, 263, 264 
 265, 267, 363, 364 
 Majorities, 669 
 Mandamus, writ of, 655 
 Manors, foundation of manorial system, 
 10 ; manors or lords' seats, 44 ; 
 distinct from knights' fees, 109 ; 
 same as Anglo-Saxon mansus, 122 ; 
 judiciary power of lords of, 122, 139, 
 140 ; creation of, ended by the statute 
 Quia Emptores in 1290, 122, 389, 428 ; 
 mostly in hands of Crown vassals, 122 ; 
 retention of manorial courts in Anglo- 
 Norman period, 139; criminal jurisdic- 
 tion of manorial courts, 140 ; subdivi- 
 sions of manorial courts ; court baron, 
 customary court, 140, 276, 277 ; courts 
 leet, 140, 156, 157, 158, 277, 526 ; lord 
 of manor answerable for fines inflicted 
 on hundreds for murder, 153 ; private 
 leets, 157 ; holder of court leet must 
 be a sheriff, 157 ; power of lords of 
 manor in court leet, 157, 158 ; not al- 
 ways enfeoffed, 277 ; decay of manorial 
 courts, 296 ; misapprehension as to 
 manorial justices of the peace, 302 ; 
 decay of court leet and manorial 
 courts in Tudor period, 465; sur- 
 vival of manorial rights, 623, 624 
 Mansus. Vide Land and Manors. 
 Margaret of Anjou, 415, 417, 418 
 Market, privilege of, under Anglo-Saxon 
 
 kings, 28 
 Marlborough, D. of, salaried offices held 
 
 by, 693 ; character of, 703 
 Marney, Sir Henry, 500 
 Marquises in Parliaments of Middle Ages, 
 348 ; marquisate based on royal patent, 
 353; expenditure of, temp. Edward 
 III., 424 
 
 Marshal, office of, in court of Anglo- 
 Saxon king, 15; bound to equip 
 royal personal troops, 16 ; military 
 duties of, in Anglo-Norman army, 
 131 ; establishment of permanent war 
 marshalship, 131 ; nature of office in 
 Anglo-Norman period ; privileges of, 
 217, 218 ; perplexity arising from there 
 
 being several offices of, 217, 218 in 
 army of Middle Ages, 289 ; president of 
 military courts, 322, 323 ; and of court 
 marshal's court, 324 ; summons of, to 
 Parliament, 348 ; continuance of, 450 ; 
 rank of earl marshal, 502 ; functions of 
 earl marshal, 692 
 
 Marshal of Exchequer. Vide Exchequer. 
 
 Marshal, 218 
 
 Mary declared heiress to the throne, 
 
 Mass-thanes, 69 
 
 Master, 621 
 
 Maunsel, J., 502 
 
 Mayor, Anglo-Norman official appointed 
 for collecting dues payable by towns, 
 earlier called town reeve, or bailiff, 
 124; free election of, granted by 
 charter, 125 ; bailiffs of hundreds, 641 
 
 Meliores terras, 82, 207, 226, 344, 373 
 
 Merchant Shipping Act, 727 
 
 Mercia, kingdom of, 34, 39 ; as a pro- 
 vince, 51 
 
 Methodism, growth of, 679 
 
 Middle Anglia, kingdom, 35 
 
 Middlesex, county of Midlesexa, 38 ; 
 territory of Middelseaxan, 40 
 
 Middle Temple, 321 
 
 Midsummer-ales, 529 
 
 Miles, equivalent to Anglo-Saxon theen. 
 107, 144 
 
 Military Courts, 323, 324 
 
 Military System : Anglo-Saxon. The 
 earliest settlers in England chiefly fol- 
 lowed military chieftains, 2, 3 ; ser- 
 vices rendered to great landlords by 
 tenants, 4 ; every freeman bound to 
 serve at his own expense, 4; but in- 
 capability to perform duty leads to 
 establishment of militia, each hundred 
 supplying a fixed quota, 5 ; furnished 
 by the county administration, 5 ; under 
 the Heptarchy each king armed his 
 own retainers, 5 ; gesithmen, special 
 war retainers, 5 ; and forerunners of 
 Thanes, 5 ; militia chiefly employed in 
 guarding, castle and road repairing in 
 each hundred, 6 ; service contingent 
 upon property, 6 ; officers chiefly land- 
 owners, 12 ; military duty a burden to 
 small landowners, 13 ; king and his 
 delegated vassals sole commanders-in- 
 chief, 16 ; right of distributing con- 
 tingents vested in the county assembly, 
 16 ; army mainly composed of personal 
 retainers of king and great lords, 17 ; 
 short-service system introduced by 
 Alfred the Great, 17 ; decay of army ; 
 constitution of army under Cnut, 18 ; 
 defects of, 18 ; faulty method of garri- 
 soning, 19 ; militia employed as police. 
 23 ; as builders and restorers of royal 
 palaces, 27; county militia equipped 
 and apportioned by ealdormen, 48 ; 
 position of clergy as regards military 
 service, 66 ; honour attached to military 
 service, 67 ; extension of, checked by 
 the accumulation of land by clergy
 
 776 
 
 Index. 
 
 91 ; defects of, 97. Anglo-Norman. 
 Replacement of Anglo-Saxon military 
 system by the Anglo-Norman, 97 ; 
 lands held by Normans conditional 
 on military service, 97, 106, 107 ; 
 or on supplying one horseman for forty 
 days for five hides, 98 ; all vassals in 
 military subjection to king, 102, 202, 
 203 ; lords and warriors in time of 
 William I., 103, 104 ; military obliga- 
 tions of great feoffees, 104 ; method of 
 subinfeudation, 104, 105; tax paid for 
 exemption from military service, 105, 
 277 ; difficulty of settling the standard 
 for apportionment of soldiery, 109 ; 
 William I. compelled to employ a paid 
 army, 110, 128 ; value of a knight's 
 fee, 110 ; sheriff, military representa- 
 tive of king in county ; military duties 
 of sheriff, 116, 117 ; leader of militia, 
 117; development of, 127-135; king's 
 claim to service abroad, 127 ; oppo- 
 sition to claim by vassals, 128 ; equip- 
 ment, etc., of soldiers provided for 
 by the county governments, 129, 130 ; 
 recruiting, 131 ; king commander-in- 
 chief by right, 131 ; leaderships held 
 by king's commission, 131 ; duties of 
 constable and marshal, 131 ; beginning 
 of military jurisdiction derived from 
 the king, 131 ; demand for constable 
 and marshal during peace, 131 ; all 
 officers called constables, 132 ; strength 
 of feudal army, 132, 133 ; its defective 
 consolidation, 133, 273 ; and lack of 
 national unity, 133 ; revival of Saxon 
 national militia, 133, 280; assize of arms 
 (27 Henry II.), 134, 280 ; purchase of 
 remission of feudal service or scutagia, 
 134, 135, 166, 173, 277, 287, 389 ; sub- 
 infeudation interdicted, 143, 277 ; in- 
 convenience of short-time service, 173 ; 
 paid soldiery employed by Norman 
 kings, 173 ; military summonses issued 
 to ecclesiastical vassals, 191,400; mili- 
 tary duties of special itinerant judges, 
 224 ; restrictions of feudal power by 
 Magna Charta, 245, 246. Middle Ages. 
 Decline of feudal military system, 
 286, 287, 289 ; remodelling of county 
 militia, 287, 289; freeholders made 
 liable to serve in militia, 287 ; arma- 
 ment of militia according to wealth, 
 287 ; military office of militia con- 
 stables, 287, 289 ; militia under sheriffs 
 in peace, under king's officers in war, 
 287 ; system of private equipments, 
 288; military levies by Edward III., 
 288 ; opposition thereto, and to com- 
 pulsory employment of militia abroad, 
 288 ; transition from militia to paid 
 troops, 289-291 ; constitution of army 
 of Middle Ages, 289 ; constables or 
 commanders of a hundred men, 289 ; 
 efficiency of county companies under 
 command of local landlords, 289, 290 ; 
 cavalry versus infantry, 289 ; pay of 
 tioops in Middle Ages ; altered relations 
 
 of men to officers, 289 ; military courts 
 held by order of king under presidency 
 of high constable and earl marshal for 
 deciding affairs of honour, 322, 323 ; 
 degeneration of military organization 
 by the liveries, 416, 417, 418, 425, 426 ; 
 lessened military contributions by the 
 clergy, 423 ; military strength of the 
 nobles, 425 ; personal service of free- 
 holders, 432 ; improved system of 
 national militia ; deficient plan of re- 
 cruiting, 445 ; king still chief com- 
 mander, 452. Tudor period. Militia 
 the only armed force in time of Henry 
 VIII., 459, 462; feudal array abo- 
 lished, 459, 460, 462 ; forced recruiting 
 revived, 463 ; graduated scale of lia- 
 bility to equipment, 463 ; commis- 
 sions of array ; martial law proclaimed 
 by Elizabeth^ 463, 464. Stuart period. 
 Weak condition of militia under 
 Charles I., 557 ; militia takes sides 
 in the civil war, 557 ; standing army 
 formed, 561, 590 ; relative military 
 efficiency of parliamentaries and royal- 
 ists, 561 ; power of the standing 
 army as regards politics, 567, 568 ; 
 incompatibility of county militia sys- 
 tem with standing army, 569, 570 ; 
 high efficiency of standing army, 569 ; 
 standing army used as a means of 
 coercion by government, 574 ; great 
 military council, 576 ; suppression of 
 military government and reorganization 
 of militia, 582 ; ordnance office, 590 ; 
 guards, 590, 609 ; and black guards, 
 609 ; relative strength of militia and 
 paid army, 609. Modern period. 
 Standing army subject to consent of 
 Parliament, 612, 634, 635 ; regulation 
 of the military power by law, 632- 
 635 ; laws relating to militia, 632, 633, 
 682 ; qualifying incomes of militia 
 officers, 633 ; fluctuating strength and 
 efficiency of militia, 633 ; mistrust of 
 standing army, 633, 634, 659 ; regula- 
 tions as to standing army, 634 ; system 
 of purchase of officer's commission, 
 634, 659, 741 ; distinctive features of 
 army, militia, and navy, 634, 635; 
 different financial status of militia and 
 army, 659 ; standing army beyond 
 control of king, 685 ; army reforms, 
 741 
 
 Militia. Vide Military System. 
 
 Milo of Gloucester, 217, 218 
 
 Minorities, representation of, 669 
 
 Mister, 621 
 
 Monarchy. Vide King. 
 
 Monarchy, as a party watchword, 607 
 
 Monasteries, the first need of Christianity ; 
 favourable conditions for, under Anglo- 
 Saxons, 61 ; the first source of edu- 
 cational and charitable systems, 61 ; 
 wealth of, 61, 62, 485 ; increase of, 
 under Norman kings, 188 ; exempted 
 from episcopal power, 199 ; dissolution 
 of ; secularization of property of,
 
 Index. 
 
 777 
 
 485, 506, 509; poor relief by, 520, 
 
 522 
 
 Monk, General, 579, 581 
 Montague, Chief Baron, 600 
 Montfort, Simon de, 168, 216, 262, 264, 
 
 265, 270, 271, 349 ; death of, 265 
 Montgomery, R. de, 218 
 More, Sir Thomas, executed, 487, 490, 
 
 501 
 
 Mortimer, 340, 341 
 Morton's Fork, 478 
 Mundbora, as applied to king, 15, 19 
 Mundium of widows, fines for, 75 
 Municipal government, basis of municipal 
 
 law, 125, 126 ; blending of central 
 
 fovernment with that of provinces, 
 istricts, and towns, 285, 286 ; of Middle 
 Ages, 310-312 ; qualifications of citizen- 
 ship, 434, 435 ; altered objects of muni- 
 cipal meetings, 435 ; constitution of 
 municipal meetings, 435 ; antagonism of 
 municipalities and guilds, 435, 436 ; 
 lack of cohesion between municipal 
 classes, 438 ; electoral rights exercised 
 by few citizens, 439, 621 ; nucleus of 
 municipal constitution, 464, 470, 471 ; 
 curtailment of municipal rights of elec- 
 tion by the Stuarts, 593, 607 ; anoma- 
 lies of municipal franchise, 621, 622, 
 670, 671 ; Municipal Act, 645 ; great 
 defect of French system of, 668 ; weak 
 constitution of municipalities before 
 Reform Bill, 719 ; increased number 
 of constituencies, 720, 721 ; inconsis- 
 tencies between municipal constitutions 
 and other forms of local government, 
 731 ; personal obligation to serve in 
 civil offices not recognized in practice, 
 732 
 
 Mustering Statute, 463 
 
 Mutiny Hill, 634, 635 
 
 Myrcnaland, territory of, 40 
 
 N 
 
 National character of English founded in 
 Middle Ages, 312, 313 ; high standard 
 of, 704-707, 748 
 
 National Debt Commission, 727 
 
 National Education Acts, 742 
 
 National will, power amongst Anglo- 
 Saxons, 80, 90 ; and Germans, 80-82, 
 209 ; under Anglo-Norman kings, 208, 
 209 ; as manifested in reign of Edward 
 I., 283, 284; really represented in the 
 laws of the State, 454, 457 ; unsettled 
 public opinion during the Common- 
 wealth, 568 ; public opinion always 
 reacts on aggressions against the rights 
 of society, 580 ; national indignation at 
 misgovernment of Charles II., 605 ; 
 national indifference towards William 
 111. and his aims, 630, 631 ; national 
 
 E regress always difficult, 710; that of 
 ritain mainly due to upper classes, 
 710, 711 ; idolatry of public opinion, 
 747 
 
 Navigation Acts modified, 716 
 
 Navy, special English defence against 
 foreign attack ; regulated by law, 635 
 
 Nevil, Judge, 600 
 
 Newcastle, D. of, 692 
 
 Newcastle-on-Tyne, a staple town, 436 
 
 Nisi prius, 292 
 
 Nonconformists. Vide Dissenters. 
 
 Non-resistance, oath of, 584 
 
 Norfolk, county of Northfolc, 38 
 
 Norfolk, D. of, 323 
 
 Norman court days, 201-208 
 
 Normans, introduction to England, 95- 
 97 ; hostility to Saxons, 97, 133, 202, 
 203, 204, 243; hundreds responsible 
 for murder of, 153 ; position of, in 
 Anglo-Norman Church, 190, 191 ; courts 
 of, and their connection with govern- 
 ment, judicial, and financial business, 
 201-208 ; fine for murder of, 203 ; posi- 
 tion of, in Anglo-Norman judicial 
 system, 209, 210 ; introduction of Nor- 
 man language into law courts, 232 ; 
 blending of Saxons and, 242, 243; 
 magnates compelled to side with people 
 against despotism, 253 ; predominance 
 of Norman names amongst knights, 
 temp. Edward I., 430 
 
 North, Chief Justice, 602 
 
 Northamptonshire, county of Norhamtun- 
 scira, 38, 39 
 
 Northumberland, 34, 39 ; territory of 
 Northanhymbraland, 40 ; wards of, 41; 
 as province, 51 
 
 Northumberland, D. of (temp. Edward 
 VI.), intrigues of, 487, 491 
 
 Northumberland, D. of (temp. George 
 II.), 662 
 
 Norwich, a staple town, 436 
 
 Nottinghamshire, count}' of Snotingham- 
 scira, 38 ; hundreds of, 41 
 
 Nugent, R,, 692 
 
 Nunneries, numerous under Anglo-Saxons, 
 61 
 
 O 
 
 Oath of supremacy, 488, 497 
 
 Odo, bishop of Bayeux, 192, 212, 215 
 
 Optimates, 80-82 
 
 Ordainers, 408 
 
 Ordeal, trial by, 137, 149 
 
 Order, 652 
 
 Ordinances, as distinguished from statutes, 
 
 374-376, 444; relation between law 
 
 and, 639 
 
 Ordinances of Ordainers, 342 
 Ordnance, Master of the, officers merged 
 
 in, 291 ; again added to offices of 
 
 State, 689, 690, 692 ; ordnance office 
 
 and officers, 692, 693 
 Oswald of Northuinbria, Bretwalda, 86 
 ii.-iri of Northumbria, Bretwalda, 35 
 Outfang theft, 122, 297 
 Overseers of the poor, 623; appointed 
 
 by justices of the peace, 623, 624, 663 
 Oxford, Earl of, 266 
 Oxford, Michael de la Pole, Earl of, 411
 
 778 
 
 Index. 
 
 Oxfordshire, county of Oxenefordscira, 
 
 38 
 Oyer and terminer, 292, 318 
 
 Pandulf, legate, recalled to Rome, 259 
 
 Papacy. Vide Church (Roman Catholic). 
 
 Pares. Vide Peers. 
 
 Parishes, 44; foundation of parish 
 churches, 62 ; endowments of parish 
 church, 62, 63 ; share of parishioners 
 in management of Church property, 
 63 ; formation of, as local independent 
 bodies, 460, 470; functions of jus- 
 tice of peace in matters relating to, 
 469 ; connection of State and, 470 ; 
 officers of, 470 ; municipal and rural s 
 470 ; development of the parochial 
 system, 514534 ; care of poor trans- 
 ferred from the clergy to the, 514, 
 520-523; the old tithing is virtually 
 replaced by the, 515, 527 ; rector or 
 vicar the head of the, 515 ; church- 
 wardens essentially parish officers, 
 
 516 ; synodsmen, sidesmen, questmen, 
 516 ; duties of churchwardens, the 
 management of Church property, main- 
 tenance of ecclesiastical discipline, 516, 
 
 517 ; and guardians of the poor, 517 ; 
 modes of appointmentof churchwardens, 
 517 ; sexton, beadle, parish clerk, 
 517 ; church rates raised in assemblies 
 of the, or vestry meetings, 517, 518, 519, 
 643 ; parishioners in ecclesiastical and 
 civil senses, 519 ; procedure of vestry 
 meetings, 519, 520 ; number of parishes 
 in 1371 and 1520, 520 ; poor-law dis- 
 tricts usually the, 523 ; overseers of the 
 poor, 523, 524, 644, 646 ; who are ap- 
 pointed by justices of peace, 523 ; poor 
 rates, 524 ; surveyor of the highways ; 
 manual service of parishioners for 
 repair of roads, 524, 525, 526 ; consoli- 
 dation of village system and parish 
 rates, 527, 528 ; local rates connected 
 with the poor rate, 528 ; committees of 
 jurats, 528 ; committee of assistance 
 or select vestries, 528, 530, 656 ; em- 
 powered to make by-laws, 528, 529 ; 
 Toulmin Smith's work on, 529 ; parish 
 feasts or ales, 529 ; powers of vestry, 
 529 ; business of vestries, 529, 530, 
 646 ; powers of magistrates as to 
 rates and accounts, and parish matters, 
 530, 531 ; system of self-government 
 in, as regulated by law, 640 ; personal 
 machinery for assessing and collecting 
 local taxes, 644 ; formation of poor- 
 law unions, 644 ; preponderance of 
 parochial rates from industries over 
 those from land, 719 ; formation of 
 unions, 727 ; importance of, for the 
 maintenance of communitates, 731, 732 ; 
 degradation of parochial officials, 732 ; 
 formation of boards for proper control 
 of expenditure, 732 ; parochial duties 
 
 shirked by individuals, 732 ; repre- 
 sentatives released from personal obli- 
 gation to serve, 732 ; fatal nature of 
 this step, 732, 733 ; extinction of self- 
 government in, 741 
 
 Parish clerk, 517 
 
 Parliament, rise of popular assemblies 
 amongst Germans, 81, 82 ; prepon- 
 derating influence of best men, 81, 
 82 ; decline of popular assemblies, 82 ; 
 nature of the Anglo-Saxon national 
 assemblies or king's council, 82 ; mem- 
 bers summoned directly by the king, 
 82 ; membership based on property and 
 performance of State duties, not on elec- 
 tion, 83, 84 ; Witenagemote essentially 
 a king's council, not a parliament, 83, 
 84; Norman Court assemblies in no 
 way the origin of, 204-209 ; laws of 
 William I., William II., Henry I., and 
 Anglo-Norman kings personal decrees, 
 not acts of, 205-208 ; Assizes of Claren- 
 don and Northampton, the first tempo- 
 rary beginnings of, 206, 239 ; first be- 
 ginnings of House of Lords, 223, 233- 
 239 ; the committee of barons ap- 
 pointed for ensuring the execution of 
 Magna Charta, 250, 255-258 ; late deve- 
 lopment of, in England, due to absolute 
 rule, 255 ; reason why a tax-imposing 
 national council could not be called, 
 257 ; of Oxford, 1227, 259 ; meetings 
 of barons and principal subjects for 
 granting subsidies, 259 ; first statute or 
 Act of, 260 ; first use of word " Par- 
 liament," 261 ; Council of London, 
 1242, 261 ; Council of Westminster 
 Hall ; assembly or Parliamentum of 
 London, 1246 ; various meetings of 
 magnates granting aids or demanding 
 redress, 261-263 ; aid frequently refused 
 to king, 262, 263 ; Mad, 263, 264, 265, 
 408 ; frequent meetings of, demanded, 
 264 ; officers to be appointed annually 
 by, 264 ; first beginning of syste- 
 matic party government,! 264 ; dis- 
 putes between barons and king in 
 various Parliaments, 264 ; at Winches- 
 ter, 1261; at St. Albans, 1261; of 
 December, 1263 ; at Oxford, 1264 ; at 
 London, 1264 and 1265, 265 ; at Win- 
 chester, 1265 ; at Kenilworth, 1266 ; at 
 Northampton ; at Marlborough, 1267 ; 
 at Westminster ; at London, 1271, 266 ; 
 these earlier assemblies not possessed 
 of true parliamentary powers, 267-272 ; 
 birth of House of Commons, 270-272 ; 
 consent of, required for foreign em- 
 ployment of militia, 289 ; fully estab- 
 lished in Middle Ages, 313 ; develop- 
 ment of House of Commons, 313 ; 
 question as to responsibility of judges 
 to king or to, 318, 319 ; statute law 
 comprises the Acts of, 320, 374-376 ; 
 Parliaments of Middle Ages largely 
 looked to for redress of wrongs and 
 remedy of abuses, 327 ; restricts the 
 use of Great Seal in permanent council,
 
 Index. 
 
 779 
 
 330, 331 ; the Commons object to king's 
 penal j urisdiction in permanent council, 
 333-335 ; of the prelates and barons, 
 338-357 ; great council of prelates and 
 barons, afterwards the Upper House, 
 
 338, 341 ; prominently a supreme law 
 court in time of Edward I., 339, 344 ; 
 the judicium parium of the estates, 
 
 339, 340 ; actions against royal officers 
 reserved for the king in council, that 
 is, the Great Council, 341 ; taxes granted 
 by barons and prelates in time of 
 Henry III., 341, 342 ; by these and 
 Commons in, in time of Edward I., 
 342 ; great council the supreme delibera- 
 tive council of the realms, 342, 447 ; 
 which decides questions of war and 
 peace, 342 ; considers all petitions, 
 342, 368 ; exercises paramount in- 
 fluence in appointment of great officers, 
 343 ; controls the conduct of national 
 affairs, 343 ; and frames the nation's 
 laws, 344 ; without co-operation of 
 Commons, 344 ; constitution of great 
 council or Parliament of magnates, 344 
 350 ; summoned by royal writ by Henry 
 III., Edward I., II., and III., 345, 349 ; 
 qualifications for sitting in, 346 ; spiri- 
 tual lords of, 346, 347 ; abbots, priors, 
 and small ecclesiastics seek to be ex- 
 cused from sitting in, 347 ; barons hold- 
 ing land by barony bound to serve in, 
 347, 349; temporal lords, 347-349 ; rules 
 regulating their summons, 348, 349 ; pos- 
 sessors of great Crown fiefs in, 348, 349 ; 
 no legal title to a summons to, 349, 356 ; 
 females represented by proxy in, and 
 proxies allowed for temporal lords, 349 ; 
 members of the great council, 349, 
 350 ; relation of permanent council to, 
 350, 351, 446, 447 ; virtual relinquish- 
 ment of royal right of personal sum- 
 mons to, by recognition of an hereditary 
 House of Lords, 351, 352 ; gradual dis- 
 continuance of personal summons to, 
 352, 356 ; creations of higher peers 
 usually proclaimed in, though not de- 
 pending on consent of, 35.3 ; king's 
 claim that a peer's seat in, was a royal 
 prerogative, 356 ; origin of the House 
 of Commons, 357-393 ; instances of 
 Commons being summoned by Ed- 
 ward I. for consultation, raising funds, 
 and other purposes, 357, 358 ; at Shrews- 
 bury, 1283, 357 ; at Westminster, 1295, 
 357 ; summonses made according to 
 king's discretion, 358 ; object of .con- 
 vening the Lower House to raise taxes 
 from towns and commoners, 359 ; par- 
 liamentary consent required for all taxes 
 by the statutum de taltagio non conce- 
 dendo, 363, 364 ; the unification of the 
 tax rate by different tax-paying groups 
 leads to consultation in common and 
 to consolidation of all the estates into 
 one, 364, 365, 366 ; the petitions of the 
 Commons become virtual resolutions, 
 366, 367, 377 ; owing to their powers as to 
 
 granting taxes, 367, 377 ; conditions'on 
 which taxes are granted by Commons ; 
 king compelled to render account of 
 subsidies, 367, 368 ; the Commons obtain 
 right to see petitions, 368 ; their advice 
 asked for by the king, 369 ; they actively 
 interfere in the appointment and dis- 
 missal of ordainers, 369 ; and in several 
 cases encroach upon their rights in 
 reign of Edward IV., 370; co-opera- 
 tion of Commons in regency govern- 
 ments, 370 ; apply for right to impeach 
 executive officers of royal council, 370, 
 371 ; increasing participation of the 
 Commons in legislation, 371-374; 
 right of consent of Commons acknow- 
 ledged, 372, 373 ; use of French, 372 ; and 
 English languages in, 372, 379 ; first use 
 of "by the authority of," 373; laws 
 passed by, can only be altered by, 373, 
 374, 476 ; Assizes or Acts of, 375 ; divi- 
 sion of, into the House of Lords and 
 House of Commons, 376, 377, 378 ; 
 deliberation at first confined to the 
 Lords, 377, 378 ; and afterwards exer- 
 cised by the Commons, 378, 379 ; first 
 Speaker of the Commons, 379 ; first 
 recognition of the Commons as a cor- 
 porate body, 378, 379 ; right to crown 
 made dependent on recognition by, 
 380, 413 ; king not allowed to be pre- 
 sent at meetings for discussing money 
 grants, 380 ; salaries paid to members 
 of, 380, 386, 388, 389; freedom of 
 speech in, claimed by Commons, 380 ; 
 modes of summoning members to, 
 variable and arbitrary, 381 ; mode of 
 electing knights to represent counties 
 in, 382, 387 ; choice usually dictated by 
 a selected few, 383; election disputes 
 settled by the king in Middle Ages, 384 ; 
 originally all liberi tenentes were entitled 
 to election votes, 384, 385, 433 ; after- 
 wards only forty shilling freeholders 
 in the county, 385, 433 ; representatives 
 of counties at first confined to knights 
 of the shire, afterwards extended to 
 notable esquires and gentlemen, 385, 
 386, 429 ; representation of cities and 
 boroughs, more or less a matter of 
 discretion, 386 ; summons chiefly sent 
 to tax-paying towns only, 386 ; coherent 
 compactness of elements of, with 
 government, 387, 388; subordinate 
 position of boroughs in, 387 ; duration 
 of, subject to will of king, 388 ; 
 rate of taxation definitely fixed by 
 391, 392,393,409 ; attempt to represent 
 smaller clergy in, 396, 397 ; mode of 
 legalizing the first Parliament under 
 Henry IV., 414 ; stagnation of, under 
 Edward IV., 419, 420; bill against 
 benevolences, 420 ; the three estates of 
 the realm, 421, 422; influence of 
 knights in, 430, 431 ; seats in House 
 of Commons taken by heirs to peerages, 
 431 ; Speaker chosen from knights of 
 the shire, 431 ; qualification of "com-
 
 780 
 
 Index. 
 
 munce " based on rateability, 447 ; 
 liberties of, emanate from the king, 
 447 ; House of Lords the head of all 
 judicial constitution and government, 
 448 ; relation of House of Lords to 
 Crown, 452 ; royal dignity enhanced by 
 constitution of, 448 ; party government 
 undeveloped in Middle Ages, 452 ; Par- 
 liament still subordinate to king, 452 ; 
 legislative power of, the outcome 
 of clashing interests, 453 ; only one, 
 summoned by Henry VII., 459 ; pro- 
 gress of the parliamentary constitu- 
 tion, 472-481 ; constitution of the Upper 
 House, 473 ; diminished power of, 473, 
 474 ; position of spiritual peers in, 474, 
 486 ; last abbots in Upper House in 1539 
 and 1559, 474 ; additional representa- 
 tives in Lower House, 474 ; constitution 
 of Lower House, 474, 475 ; Speaker of 
 Lower House appointed by king, 475 ; 
 personal influence of Tudor sovereigns 
 on elections, 475, 491 ; and through 
 ministers on the debates in the House 
 of Commons, 475, 476 ; co-operation of, 
 essential to the work of reformation, 
 476 ; rejection of bills initiated by Crown 
 by the Commons, 476 ; interference of, 
 with Church administration, 477 ; claims 
 power to delegate the making of laws 
 to the king or others, 477, 478 ; right 
 of voting money supplies by, estab- 
 lished, 478 ; benevolences or compulsory 
 loans allowed by, 478, 479 ; rebuffs 
 Cardinal Wolsey, when moving for a 
 subsidy, 479 ; full control of adminis- 
 tration by, 479, 480 ; overbearing con- 
 duct of, 479, 480 ; subserviency of, 480 ; 
 wrongs to individuals by, 480, 481 ; 
 debates of, not made public, 480 ; power 
 of, to remove high officers, 480 ; atti- 
 tude of Tudors to personal rights of 
 members of, 481 ; penal sentence on 
 members by a local court resisted as 
 null and void, 481 ; arrest of member 
 by sheriff punished, 481 ; statutes 
 for reformation of Church passed by, 
 488-492; Thirty-nine Articles con- 
 firmed by, 488 ; Eeformation, 489 ; Re- 
 conciliation, 491 ; retrograde behaviour 
 of, under Mary, 491 ; appellate juris- 
 diction of Upper House taken by the 
 Court of Exchequer Chamber, 511 ; 
 destruction of, averted in England 
 544 ; struggle of Charles I. with, 
 546, 547 ; dissolution of " Short," 547 ; 
 Charles I. attempts to abolish financial 
 right of, by means of the ship-money 
 tax, 549-550 ; control of executive and 
 impeachment of ministers by, evaded 
 by Stuarts, 553 ; condemnation of 
 members for speeches in, 553 ; king 
 compelled by lack of means to call, 
 554 ; Short, 554 ; Long, 554, 555, 556, 
 557, 558, 576, 577 ; declares ship-money 
 illegal ; cancels judgment on Hampden ; 
 puts subservient judges on trial, 554, 
 555 ; impeaches Strafford for high trea- 
 
 son, 555, 556 ; summoning of, by king, 
 made compulsory by Triennial Act ; as- 
 sumes power to dissolve and prorogue 
 itself, and to adjourn meetings, 555 ; 
 Laud impeached, 556 ; Court of High 
 Commission abolished, 556 ; bishops 
 impeached, 556 ; Charles I. attempts 
 to arrest members of, 556, 557 ; con- 
 stitution of " Long," 557, 576 ; king 
 refuses to allow it to appoint militia 
 commanders, 557 ; war between king 
 and, 557, 558 ; the divided, at West- 
 minster, and at Oxford, 558 ; " Mon- 
 grel," 558 ; upholds the authority 
 of the king, 558 ; and is so prevented 
 from overthrowing monarch}', 558 ; im- 
 possibility of effecting compromise 
 between Charles I. and, 558, 559 ; the 
 dilemma of, 560 ; fiction of " king 
 in Parliament," 560 ; intervention of 
 army against, 562 ; king proceeded 
 against by, 563 ; abolition of House 
 of Lords, 565, 576 ; " Little " or " Bare- 
 bone's," 568, 569, 577 ; Cromwell's 
 difficulties in obtaining co-operation of, 
 572, 573 ; opposition to formation of 
 a House of Lords by Cromwell, 573 ; 
 government by, and Council in State, 
 576 ; the House of Commons claims the 
 supreme power, 576 ; " Rump," 576, 
 579 ; loss of representative character 
 of Long, 576 ; dissolution of Long, 
 forced by Cromwell, 576 ; the one 
 chamber Parliament under Cromwell ; 
 its constitution and acts, 577, 578 ; 
 reassembling of the Long, 579 ; " Con- 
 vention," 579, 582 ; restoration of 
 House of Lords and of a representative 
 House of Commons, 582 ; acrimony 
 of, against Presbyterians and Puritans, 
 583, 584 ; new royalist, 583 ; all Dis- 
 senters excluded from office by, 584, 
 680; Long or "Pensioner," 584-586, 
 602 ; Corporation Act, 584 ; party 
 government, 585, 586 ; control by, fully 
 established under Charles II., 586 ; 
 legislation and taxation by, 586, 612- 
 614 ; short Parliaments under Charles 
 II., 588 ; decides to exclude the D. 
 of York from the throne, 588 ; altered 
 character of House of Lords under the 
 Stuarts, 591, 592 ; peers summoned for 
 each, 591, 592 ; moderating influence 
 of Upper House of, 592, 672-674; 
 Charles II. appears in, 592, 593 ; in- 
 creased representation of boroughs and 
 towns in, 593 ; increased influence of 
 middle classes on parliamentary elec- 
 tions, 594 ; increased control of Lower 
 House over money votes, 594, 595 ; par- 
 liamentary suffrage extended to clergy, 
 595 ; obtains control of the expenditure, 
 595, 596, 684, 685 ; liberty of speech 
 in, established, 596, 613 ; duplicity of 
 Charles II. towards, 597-599 ; minis- 
 ters made responsible to, 598, 684 ; 
 office-seeking members, 602 ; high 
 salaries of great public officers, 603
 
 Index. 
 
 781 
 
 hollowness of party principles, 603, 
 604 ; Sir W. Temple's plans for reform, 
 604 ; demands government according 
 to law, 605 ; and full control of taxes, 
 605 ; party struggles, 606, 607 ; peti- 
 tioners and recusants ; Whigs and 
 Tories, 606, 607, 611, 612, 698 ; standing 
 army made conditional on consent of, 
 612 ; free election of members of, 612 ; 
 frequent meetings of, demanded, 613 ; 
 intensified practical bearings of party 
 struggle, 614, 615, 657 ; close boroughs, 
 622 ; works on modern proceedings of, 
 625 ; commencement of parliamentary 
 government by party, 625, 626 ; rela- 
 tion of, to king, 626 ; attitude of Whigs 
 and Tories after the Revolution, 630 ; 
 internal government, independent of 
 parties in, 657 ; means by which 
 entry into Parliament is restricted to 
 the rich, 660, 661 ; remuneration de- 
 clined by members of, 660 ; number 
 of electors in eighteenth century, 662 ; 
 opposition to extended and universal 
 suffrage by upper class, 663, 712, 718 ; 
 the formation of the Lower House, 664- 
 671 ; present constitution of House of 
 Commons, 664 ; cohesive strength of, 
 664, 665 ; due to its system of taxation 
 and self-government, 665 ; communi- 
 ties as elective bodies, 665, 666 ; Con- 
 servatives, 669; Liberals, 669; the 
 position of the Upper House, 672- 
 675, 682 ; composition of House of 
 Lords in eighteenth and nineteenth 
 centuries, 672 ; diminished representa- 
 tion of the Church in, 672 ; necessity 
 of an Upper House in a State with a 
 changing popular representation, 673- 
 675 ; importance of an organic con- 
 nection between nobles and Com- 
 mons, 675 ; service in Upper House 
 represents combination of property and 
 office, 675 ; bases of reconciliation be- 
 tween Established Church and, 677- 
 680; parliamentary government the 
 ideal of a monarchical constitution, 681 ; 
 formation of governing cabinets, 682 ; 
 king represented in Parliament by 
 Crown ministers, 683 ; discretionary 
 powers transferred from the king to, 
 684, 685 ; consent of, required for every 
 administrative change, 686 ; depend- 
 ence of cabinet on, 686 ; need of party 
 government for law-making and de- 
 velopment of new business, 687, 688 ; 
 concentration of ruling power in the 
 Lower House, 687 ; frequent change of 
 ministry due to multiplicity of chang- 
 ing interests, 687, 688 ; unity of party 
 action requires fixity of party and unity 
 of guiding principles, 688 ; question as 
 to legality of cabinet government, 688, 
 689; ministerial patronage. 690; forma- 
 tion of parliamentary parties, 696-701 ; 
 recognition of two parties, 696, 697 ; im- 
 practicability of coalition ministries, 
 696 ; two fundamental systems of reli- 
 
 gious and political views, represented by 
 Whigs and Tories, 697-699 ; alternate 
 sway of Whigs and Tories, 698, 699; 
 conservatism of the constitution of, 
 700 ; theory and practice of parlia- 
 mentary party government, 702-708 ; 
 difficulty of combining and directing 
 party efforts, 702 ; narrow policy of 
 Whig and Tory parties in Anne's reign, 
 702, 703 ; need for connection between 
 cabinet and, 703, 704 ; Whig intrigue 
 and bribery, 704 ; George III.'s oppo- 
 sition to party government,' 704, 705 ; 
 extension of bribery, 705, 706 ; epoch 
 of great statesmen, 705 ; system of 
 party government should be judged by 
 its broad results, 706, 707 ; excellency 
 of English parliamentary government, 
 707 ; continental views on this form 
 of government, 707, 708 ; literature 
 relating to party government, 708 ; 
 ineffective attempt to establish an in- 
 dependent Parliament in Ireland, 714 ; 
 representation of Ireland in, at the 
 Union, 714, 715 ; rejection of universal 
 suffrage, 716 ; and of disfranchisement 
 of small boroughs ; preponderating in- 
 fluence of upper classes in return of 
 members to, 716 ; exclusion of trading 
 middle-class men and labourers from 
 franchise, 718 ; the Reform Bill of 1831, 
 its rejection by Upper House, 720 ; 
 again introduced and passed in 1832, 
 720 ; rearrangement of seats for, as 
 provided by the Reform Bill, 720, 721 ; 
 modification of electoral qualifications, 
 721 ; extension of franchise to copy- 
 holders, leaseholders, tenants, and 
 occupiers, 721 ; voting power depen- 
 dent on tax payments, 721 ; and on 
 entry in the register; polling restric- 
 ted to two days, 721, 722 ; great in- 
 crease in number of electors, 722 ; in- 
 creased importance of middle classes 
 in, 722 ; constitution of the first Re- 
 formed, in 1833, 723; abrogation of 
 restrictions on qualifications of capital- 
 ists, 723 ; Jews admitted to House of 
 Commons, 724 ; beneficent legislative 
 measures for improving condition of 
 poorer classes, 724, 725 ; contradictory 
 character of the suffrage in municipal 
 and other constituencies, 731, 732, 733 ; 
 interests, not communities, now repre- 
 sented in, 734, 735 ; relation of parties 
 in nineteenth century, 736; strength 
 of moderate Tories or Conservatives, 
 Whigs or Liberals, Radicals, Protec- 
 tionists, Free-traders, and ultra-Tories, 
 736 ; difficulties of forming a cabinet 
 arising from constant disintegration 
 into parties, 736, 737 ; rapid change of 
 ministries owing to multiplicity of 
 difficult business, 737 ; discussion of 
 petitions declined after 1839 owing to 
 their number, 737 ; injurious influence 
 of local bodies on character of repre- 
 sentatives returned to, 737 ; franchise
 
 782 
 
 Index. 
 
 extended to occupiers whose rates are 
 paid by landlord, 737, 738 ; proposal to 
 lower the electoral qualification to 5, 
 737 ; party rivalry in promoting reform, 
 738; passing of the Reform Bill of 
 1867, 738 ; its alterations in the con- 
 stituencies, in electoral qualifications, 
 and in electoral procedure, 738 ; in- 
 creased number of electors, 738, 739, 
 744 ; Irish bishops removed from, 739 ; 
 creation of judicial life peers, 739, 740 ; 
 serious attitude of public opinion to- 
 wards House of Lords, 740 ; attempt to 
 make suffrage depend on tax-paying, 
 not on tenure, 742 ; suffrage refused to 
 non-tax-paying occupiers, 742 ; and 
 afterwards regranted to them, 742 ; 
 introduction of the ballot, 743 ; demand 
 for equalization of franchise qualifica- 
 tion in boroughs and county, 743 ; and 
 for equally populated constituencies, 
 743 ; satisfaction of the demand by 
 the Reform Bill of 1884-1885, 743; 
 modified electoral procedure, 744 ; un- 
 fitness of new voters for the franchise, 
 744 ; House of Commons no longer 
 formed of communitates, but of mere 
 social groups, 745 ; parliamentary 
 party government rendered imprac- 
 ticable, 746 ; altered attitude of, 746 ; 
 perilous condition of its constitution, 
 747, 748 
 
 Parliamentary Reform. Vide Reform. 
 
 Parliamentary Rolls, 282 
 
 Parties. Vide Parliament. 
 
 Patent rolls, 335, 336 
 
 Paymaster-General, 694, 695 ; salary of, 
 694 
 
 Peace, proclamation of, by king, 22, 151 ;, 
 by ealdormen, 48 ; by clergy, 68 ; 
 of landlords, 74 ; by Witenagemote, 
 127 ; right to decide for war or, estab- 
 lished as a roval prerogative, 127, 
 203, 452; fines "for infringing, 151; 
 king's peace proclaimed by special 
 commissioned judges, 225 ; justices 
 and guardians of, 297-306 ; decrees of 
 war and, settled by great council in 
 Middle Ages, 343, 344; king the 
 supreme guardian of, 452 
 
 Peasantry. Vide Labourers. 
 
 Peers, judgment or trial by, 93, 158, 
 165, 184, 210, 211, 226, 235, 258, 294, 
 339, 340, 346, 350, 409 ; peerage non- 
 existent in twelfth century, 210, 237- 
 239 ; judgment by, secured by Magna 
 Charta, 246, 247; rise of hereditary 
 peerage, 275, 338 ; judicium parium 
 transformed into trial by jury, 284; 
 recognition of, 340 ; demand for a court 
 of, for impeachment of lords and mem- 
 bers of Parliament, 340, 341 ; officials 
 of great council not regarded as, 350, 
 352; "peerage" idea recognized, 350, 
 351, 353, 354 ; hereditability of, a con- 
 sequence of the position of magnates 
 acquired by wealth, experience, and pub- 
 lic duties, 351-356, 422, 423 ; members of 
 
 Parliament by right of birth, 351, 352, 
 353, 354, 355, 356 ; distinction between 
 pares terrse and pares of the county, 354 ; 
 claims of archbishops and bishops to 
 be, 355 ; creation of, by patent, not 
 by writ, 423 ; fluctuations of the peer- 
 age ; gradual increase of possessions by 
 royal, 423, 424 ; creation of peerages by 
 the Tudors, 473, 617 ; increased number 
 of, under the Stuarts, 591, 592, 617 ; 
 sales of peerages by James I., 592, 617, 
 620 ; income of, 620 ; election of, from 
 the richer gentry, 661 ; great increase 
 of peerage in eighteenth and nineteenth 
 centuries, 661, 672; pretentious nature 
 of genealogies, 661 ; the Percy genea- 
 logy, 661, 662 ; attempt by nobility to 
 restrict the number of additions to, 672 ; 
 active share of, in both State and pro- 
 vincial government, 675 ; cabinet almost 
 exclusively formed of, 689 ; Court 
 offices and great I State offices chiefly 
 occupied by, 690 ; angry feeling of 
 people against lords in 1832, 720 ; pro- 
 posal to create new peerages rejected 
 by king, 720 ; creation of judicial life 
 peers, 740 
 
 Pells, Clerk of the. Vide Exchequer. 
 
 Pemberton, Chief Justice, 599, 600 
 
 Pembroke, E. of, 244 ; made protector of 
 England, 256, 257, 259, 408 
 
 Penalties, graduated, for murder, 75 ; 
 for breach of peace, violating chastity, 
 75 ; forfeiture of fiefs for felonies 
 under Anglo-Normans, 100, 101 ; for 
 neglect to join army, 131 ; for neg- 
 lecting sheriff's duties ; and of sub- 
 jects for neglecting police duties, 159 ; 
 for neglecting Exchequer summons, 
 defalcations, or refusing accounts, 183 ; 
 abolition of confiscation penalties, 726 
 
 Penny post, 727 
 
 Percies, genealogy of the, 662 
 
 Permanent council. Vide Council. 
 
 Personal service to landed proprietors 
 rendered by poor or landless freemen, 
 3, 73, 74 ; tenants and servants called 
 Folgan and II IfifUta, 3 ; gesith or 
 service, 3 ; to king reserved as an 
 honour for privileged upper class, 3, 
 276; servants and followers called 
 to military service during wars, 5 ; 
 
 fesithmen specially retained for war, 
 ; legal dependence of Hlafata on the 
 Hlaford, 6, 10 ; power of landlord over 
 his gesith, 11 ; gesithcundman or six 
 hundred man, 11, 56, 75 ; relation 
 of gesithman to his lord, 17, 74 ; 
 Britons servants to Saxons, 86 ; 
 merged into Anglo - Norman feudal 
 service, 202 ; military personal service 
 of freeholders in Middle Ages, 432, 
 433 ; remnants of serfdom, 623 ; of 
 individuals to the State, 626 ; retention 
 of enforced labour for highways, 636, 
 637, 643 ; as parochial officers generally 
 shirked by individuals, 732 ; legal 
 sanction of voluntary, in place of com-
 
 Index. 
 
 783 
 
 pulsory, fatal to self-government, 732, 
 733 ; and to protection of public 
 interests, 733, 734, 735 
 
 Pesours, 186 
 
 Peter de Roches, (Bishop of Poitou, 260, 
 341 
 
 Peter's pence, 188, 196 
 
 Petition of Eight, 547, 556 
 
 Petitioners, 606, 698 
 
 Petitions, mode of procedure in reporting 
 and deciding on, by permanent council, 
 327-329, 366, 367; by great council 
 in time of Edward II. and III., 342, 
 343 ; variously addressed to king, 
 council, and Houses of Parliament, 
 together or separately, 368 ; limi- 
 tation of right of petition, 712 
 
 Pickering, Lord Keeper, 501 
 
 Pie-powder, court of, 311 
 
 Pincerna, or cup-bearer, 15 
 
 Pipe Rolls. Vide Exchequer. 
 
 Pitt, W., 694 ; political power of, 705 ; 
 union of England and Ireland effected 
 by, 714, 715 ; resignation of, 715 ; 
 attitude towards emancipation, 715 ; 
 proposals of, to disfranchise small 
 boroughs, 716, 718 
 
 Plantations, Auditor-General of, 694 
 
 Poinings, Sir Edward, 500 
 
 Pole, Cardinal, 491 
 
 Police System : Anglo-Saxon. Police 
 jurisdiction of landlords over tenants, 
 6 ; police control of tithings, 7 ; 
 police supremacy of king ; special laws 
 concerning peace, 22 ; people's peace 
 superseded by king's peace, 22, 23 ; 
 peace jurisdiction, 23, 24; militia em- 
 ployed as police, 23 ; system of police 
 security, 24, 25 ; police duties of 
 tithings and hundreds, 42, 43 ; class dis- 
 tinctions mainly dependent on police, 
 79 ; Anglo-Norman national police 
 system a continuation of, 151, 152. 
 Anglo-Norman. Duties of vicecomes 
 or sheriff as police magistrate, 117, 
 145 ; police surety system, 122 ; 
 development of the Norman police 
 control, 151-165 ; developed from the 
 Anglo-Saxon surety system of main- 
 taining peace, 151 ; police sureties of 
 Anglo - Saxon, the francpledge of 
 Normans, 151, 152 ; view of franc- 
 pledge established, 152, 281 ; police 
 control of tithings, 152, 153 ; police 
 control by king the result of two 
 national elements, 203 ; limitation of 
 police power provided for by Magna 
 Charta, 247, 248 ; fines to be propor- 
 tioned to the offence, 247. Middle Ages. 
 Police security, 297 ; police regula- 
 tions of trades, labour, price of food, 
 luxurious habits, meals, public labour, 
 298, 299 ; inefficiency of sheriff's toura 
 and courts leet to deal with police 
 business, 299 ; coroner appointed for 
 looking after king's money interests in 
 cases of sudden death, 299, 300 ; pro- 
 cedure of coroner's inquest, 300 ; j ustices 
 
 of trail baston, 300; conservatores 
 pads appointed for each county, 300 ; 
 temporary appointment of police 
 magistrates ; dispute as to appointment 
 or election of police magistrates, 300, 
 301, 302 ; local police magistrates made 
 permanent from 1360, 301; police 
 duties of justices of peace, 302-304; 
 origin of constables as guardians of the 
 peace, 306. Tudor period. County 
 police system, 465-470; liability of 
 tithing passes to reeve and four men, 
 466 ; that of the hundred to the grand 
 jury, 466 ; extension of duties of 
 justice of the peace in criminal cases, 
 466 ; duties of police magistrates, 
 466 ; consolidation of police laws, 467 ; 
 regulations affecting labour, 467 ; 
 vagabonds and beggars, 467, 468; 
 trades, 468 ; penal legislation against 
 Papists and Dissenters, 468, 469 ; police 
 regulations as to highways, 526 ; 
 powers and duties of magistrates in 
 parochial affairs, 530-534 ; constables 
 subordinated to magistrates in place of 
 the court leet, 531. Stuart period. 
 Harsh police system under Cromwell, 
 570. Modern period. Control of 
 police powers by law, 636, 637, 682 ; 
 anomalous influence of gentry on 
 police legislation, 636, 637 ; functions 
 of magistrates, 637 ; lord lieutenant 
 of counties usually first magistrate, 
 641 ; functions of justice of the peace, 
 641, 642, 653 ; duties of coroner ; of high 
 constable ; and of petty constables, 641, 
 642 ; position of police power in self- 
 government as the political bond of 
 society, 642, 643, 653; controlled by hono- 
 rary officers, 642, 668 ; police penal laws, 
 649 ; police administrative laws, 649 ; 
 convictions, 649, 650 ; orders, 649, 650, 
 651 ; mode of appealing against orders, 
 650-656 ; special sessions of justices of 
 the peace, 653, 654 ; business of special 
 sessions, 654 ; business of quarter 
 sessions, 654 ; writ of certiorari, 654, 
 655 ; writ of habeas corpus, 655 ; writ of 
 mandamus, 655, 656 ; constables re- 
 placed by paid police, 727 ; weakened 
 influence of magisterial gentry, 743 
 Poor relief, under Anglo-Saxons, origi- 
 nated by the clergy, 8 ; carried out 
 by monasteries, 61, 520, 522; jElfred 
 the Great's contribution of the eighth 
 of his revenue for, 61 ; sums supplied 
 by nobles, 61 ; hospitals and alms- 
 houses attached to monasteries. 62 ; 
 provided for, by tithes, 64, 620. Tudor 
 period. Laws relating to poor, 467 ; 
 care of poor transferred from clergy to 
 the parish, 614, 520-523 ; foundation of 
 poor-law system, 520, 523 ; literature 
 relating to poor law, 620 ; poor-law 
 districts and parishes, usually the same, 
 523 ; poor rate, 524 ; local rates con- 
 nected with poor rate, 628 ; duties 
 of magistrates connected with, 630.
 
 784 
 
 Index. 
 
 Modern period. Influence of land- 
 owners on poor laws, 636, 637, 711 ; 
 poor rate, 643 ; poor-law unions, 644 ; 
 rates collected by paid guardians, 
 644 ; defective pauper legislation, 711 ; 
 Poor Law Board ; improved legislation, 
 727 
 
 Pope. Vide Church (Roman Catholic). 
 
 Port-aercfas, 56 
 
 Postal si/stem instituted, 566 ; penny 
 post, 727 
 
 Postmcister-Gcneral, 695 
 
 Powell, Judge, 600 
 
 Prcemunientes, 396, 397, 398 
 
 Prcemunire. Vide Church. 
 
 Prcepositus, head-borough or provost, the 
 responsible head of a tithing, 23, 24, 
 25, 44. 122, 311 
 
 Precedence as regulated by Statute, 501, 
 502 
 
 Presbyterians. Vide Church (Stuart 
 period). 
 
 President, Lord, of the Council, rank of, 
 501, 503, 589, 692 
 
 Press, censorship of, 499, 584, 606 ; in 
 the absence of efficient looal unions 
 it is the only bond between society 
 and government, 735, 736 ; gradual 
 attainment of freedom by the, 736 
 
 Price of bread regulated by royal decree, 
 236 ; by parliamentary enactment, 297, 
 298 
 
 Primogeniture. Vide Inheritance. 
 
 Priors, summoned to Parliament, 347, 
 348 ; deposition of, 486 
 
 Prisons, houses of correction under police 
 regulations, 468 ; county prisons subject 
 to inspection by sheriffs, 468 ; officers 
 of, appointed by sheriffs, 641 
 
 Protection tax, a source of royal revenue, 
 28 
 
 Protector. Vide Cromwell, Pembroke, and 
 York. 
 
 Protestantism as a party watchword, 607 
 
 Protonotarius, 337 
 
 Provost. Vide Prcepositus. 
 
 Public Health Act, 727 
 
 Public-house licences, 468, 727 
 
 Public opinion, danger arising from allow- 
 ing State matters to be regulated by, 
 747, 748 
 
 Puritans, conflict of, with Church bishops, 
 543 ; rise of the Puritan army in the 
 civil war, 560, 561 ; superior disci- 
 pline and enthusiasm of, 561 ; views of, 
 as to conduct of Charles I., 561, 562 ; 
 religious toleration of, 566 ; unfit- 
 ness of, for government, 566, 567 ; 
 reaction against, 575, 581 ; parlia- 
 mentary persecution of, 581, 582 
 
 Q 
 
 Quarter sessions, 659 
 
 Queen, Anglo-Saxon, right of, to hold 
 
 and dispose of landed property, 25 
 Queslmen, 516 
 
 Quia emptores. Vide Manors ; Honors. 
 Quorum, the, 304 
 
 Eainsford, Chief Justice, 599, 600 
 
 Rangers, 324 
 
 Rapes of Sussex, 42 
 
 Rates. Vide Taxation. 
 
 Record Commission, publications of, 96 
 
 Rector. Vide Church (Tudor period). 
 
 Recusants, 606 
 
 Redemptions. Vide Land Tenure and 
 Tithe. 
 
 Redistribution of electoral districts, 743, 
 744 
 
 Redwald of East Anglia, Bretwalda, 35 
 
 Reeve. Vide Mayor and Constable, Police. 
 
 Reform, first beginnings of modern 
 social, 715, 716 ; as also of administra- 
 tive, 716 ; difficulty of initiating politi- 
 cal, owing to position of upper classes, 
 716, 717 ; futile attempts to extend 
 suffrage, 716, 717 ; gradual movement 
 in favour of, 717 ; anomalies in repre- 
 sentation of the propertied classes, 718, 
 719 ; necessity of parliamentary, 719 ; 
 Wellington opposes and Lord Grey 
 supports it in 1830, 719, 720 ; the Re- 
 form Bill of 1831, 720 ; a third Reform 
 Bill introduced and passed in 1832, 720 ; 
 riots and crimes connected with Reform 
 Bill, 720 ; great increase of reform 
 measures, 723; Reform Bill of 1851 
 for lowering the electoral qualification, 
 737 ; proposals made by Gladstone and 
 Disraeli, 738 ; the Reform Bill of 1867, 
 738; the Reform bill of 1872, 743; 
 the Reform Bill of 1884-1885, 743 
 
 Reformation. Vide Church (Tudor 
 period). 
 
 Regarders, 324 
 
 Registrar of Exchequer. Vide Exchequer. 
 
 Reliefs in feudal system, 99, 118, 167, 
 168, 245 
 
 Remembrancer of Exchequer. Vide Ex- 
 chequer. 
 
 Rent, introduction of system of, in land 
 tenure, 440, 441 
 
 Representation. Vide Parliament. 
 
 Representation of the People Act, 743 
 
 Republic, 565-579 
 
 Requests, Court of, 333, 508, 509 
 
 Resistance, the watchword of Whigs, 
 697, 704 
 
 Revenue, source of Anglo-Saxon kings', 
 from private and public land, 25, 26 ; 
 harbour, military roads, customs, mines, 
 flotsam and jetsam, treasure trove, and 
 forests, 26 ; from forfeited property 
 and fines, 27, 28 ; from protection tax 
 and free harbourage, 28 ; free from State 
 control, 29 ; of Anglo-Norman kings ; 
 payment in kind converted into pay- 
 ment in money, 118 ; sources of, added 
 under feudal system, 118 ; relevia, 118 ; 
 development of Norman finance control,
 
 Index. 
 
 785 
 
 165-177 ; source of Anglo-Norman 
 kings', from lapsed fief 8,1 65, 166, 167 ; 
 treasure trove, wreckage, duties, build- 
 ing bridges and castles, 165, 174 ; re- 
 liefs, wardship, marriage, 165 ; aids, 
 shield-moneys, taxes, 166-168, 172- 
 174 ; royal demesnes and forests, 165- 
 167 ; local county dues, fees, and 
 forfeitures, 168, 169 ; money payment 
 demanded for all royal favours, 169 ; 
 fines for liberties and franchises, 169 ; 
 fines in actions at law, 170, 171 ; fines 
 for concessions of favour in respect of 
 offices, guilds, and dispensations, 171 ; 
 fines for regranting of fiefs and aliena- 
 tions, 171 ; Danegeld, 174; exaggerated 
 estimate of William I.'s, 174, 175 ; the 
 Norman Exchequer, 178-187 ; finance 
 the centre of Norman government, 178 ; 
 collected by Anglo-Norman king, irre- 
 spective of will of subjects, 203 ; 
 presentation of accounts demanded and 
 obtained by the Commons, 367, 368, 
 411 ; grants made for specified definite 
 purposes, 367 ; diminution in Crown, 
 392 ; ordinary and extraordinary, in 
 Middle Ages, 445 ; high returns under 
 Cromwell, 571 ; expenditure placed 
 under control of the House of Com- 
 mons by appropriating special votes for 
 special purposes, 595 ; regulation of the 
 financial power by law, 637-639 ; ordi- 
 nary revenue, 637, 638 ; extraordinary 
 revenue, 638, 639 ; waste of national, 
 due to landowners, 711 ; reform in the 
 finance department, 726, 727, 741 
 
 Revolution, 611 . 
 
 Rex as appellation of Anglo-Saxon kings, 
 33 
 
 Richard I., tax raised for ransom of, 
 176 ; rule of ; beneficial effects of his 
 absence from kingdom, 240 
 
 Richard II., fall of, brought about by 
 arbitrary acts of a committee of great 
 council, 345 ; progress of constitu- 
 tional development under, 410-412 ; 
 deposition of, by Parliament, 412 
 
 Richard III., reign of, 420, 421; de- 
 moralized state of society under, 421 
 
 Richmond, D. of, Universal Suffrage Bill 
 of, 716 
 
 Ridings. Vide Trithings, 
 
 Rights, Declaration of, 612-614 
 
 Right, Petition of, 547, 556 
 
 Roads, rights of Anglo-Saxon kings over 
 military, 26 ; obligations of people 
 to make, 174, 524 ; first highway 
 regulations, 299 ; repairable out of town 
 rates, 307, 525 ; surveyor of highways 
 and highway rate, 525, 526 ; highway 
 police regulations, 526 ; retention of 
 system of enforced labour for, 636, 637, 
 643 ; highway rate, 643 ; highway 
 statute of 1835, 727 
 
 Roger, Bishop, 215 
 
 Roger of Salisbury, grand justiciary, 215 ; 
 founder of a new official nobility, 274 
 
 Rolls, Master of the, has seat in perma- 
 
 nent council, 329 ; custos rotulorum 
 or, 337 ; officer of modern Court of 
 Chancery, 691 
 
 Rolls, Statute, 282 ; parliamentary, 282 
 
 Roses, wars of the, 417-421 
 
 Roundheads, 557, 698 
 
 Routhale, Dr., 500, 502 
 
 Royal power. Vide King. 
 
 Royal gerefas, or special magistrates, 55 
 
 Royston, Viscount, 692 
 
 Runnymede, 244 
 
 Rural deaneries, 61 
 
 Russell, Lord, 599, 607 
 
 Russell, Lord John, his motions for re- 
 form, 717, 737 ; Reform Bill of, 720 
 
 Russell, Sir Francis, 431 
 
 Rutland county, 39 ; hundreds of, 41 
 
 Saca, 122, 140 
 
 Saca et soca, or lordships, 56, 77 
 
 St. Albans, D. of, 691 
 
 St. Albans, battle of, 417 
 
 St. Augustine, 8, 63 
 
 Sounders, chief justice, 599, 600 
 
 Scaccarium. Vide Exchequer. 
 
 Scot Ales, 529 
 
 ScroffffS, chief justice, 599, 600 
 
 Scutage, or shield-money, basis for, 110; 
 calculation as to, 129 ; purchase of re- 
 missions from feudal service, 134, 135, 
 166, 173, 174, 175-177, 286, 287, 360, 
 389 ; land and income taxes originated 
 from, 175 ; provisions of MagnaCharta 
 as to, 246, 257, 258; vote of, by 
 assembly of magnates, 262 ; vote of, 
 by knights, 262 ; right of Crown vas- 
 sals to impose, 267 ; merges in the 
 general ground tax, 287 
 
 Scutarii. Vide Esquires. 
 
 Seal, Great, royal orders at first given 
 verbally, but afterwards the Great Seal 
 was used for all writs and important 
 State documents, 336 ; rules as to use 
 of, 502, 503 
 
 Seal, Privy, used at first for non-official 
 letters ; prohibited issue of common 
 law suits under, 336 ; signet replaces 
 use of, in king's correspondence, 336 ; 
 restrictions on use of, 411 ; rules as 
 to use of, 502, 503 
 
 Seal. Keeper of the Great, 219, 501, 692 
 
 Seal, Keeper of the Privy, has seat in 
 permanent council, 330, 331 ; made 
 liable to impeachment by Parliament 
 on using the seal illegally, 413 ; rank 
 of, 501, 503 
 
 Secretary of State, rank and duties of 
 king's secretary, 502, 503 ; literature 
 relating to, 502 ; in time of Charles II., 
 590 ; in modern times, 693 ; division 
 of office, 693, 694 
 
 Secretary of State for American colonies, 
 693 ; abolition of, 693 : foreign affairs, 
 694 ; home affairs, 693 ; India, 694 ; 
 Ireland, 695 ; Scotland, 693 ; war, first 
 separation of office of, 590 
 
 3 Jfi
 
 786 
 
 Index. 
 
 Self-government, Vide Government. 
 
 Seneschal of England or Lord High 
 Steward. Vide Steward. 
 
 Serjeanties, 220 
 
 Servi, number of, occupying land in 
 times of Edward and of William I., 
 103, 104 
 
 Settlement, Act of, 626, 629, 683 
 
 Sewers, Commissioners of, 527 ; rates for, 
 charged to landowners, 527 
 
 Sexton, 517 
 
 Shaftesbury, Lord, 600, 602, 607 
 
 Sheep's skins, export of, restricted to 
 merchants of the staple, 436 
 
 Sheriff. Vide Shirgerefas. 
 
 Ship-money, 551, 552, 554 
 
 Shires. Vide Counties. 
 
 Shirgerefas, as judges, 19; presidents 
 of hundreds and county courts, 20 ; 
 appointed by king, 21 ; portions of 
 fines in royal courts paid to, 27 ; 
 governor of county under the ealdor- 
 111:111. 51 ; merged later into the 
 sheriff, 53 ; office purely administra- 
 tive ; duties of, 52-55 ; called king's 
 gerefa ; judicial powers of, 52 ; financial 
 duties of, 52, 53 ; military and police 
 duties of, 53 ; legal duties of, 53, 54 ; 
 derivation of name, 54; shirman per- 
 haps another name for, 54 ; appointed 
 and deposed by the king, 54 ; power 
 of, in the hundreds, 54, 55 ; office of, 
 filled by clergy, 67 ; replace earls as 
 governors of counties, 116 ; identical 
 with Norman vicecomites, 116, 137 ; 
 fourfold duty of vicecomes as king's 
 military representative, 116-118, 129 ; as 
 royal justiciary, 117, 145 ; police magis- 
 trate, 117, 118, 154-159; and as royal 
 bailiff, 117, 118; official establishment 
 of, 119 ; prevalent farming out of office, 
 119 ; duties of, in Anglo-Norman times, 
 119, 174; mode of rendering accounts 
 by, 119, 182, 465 ; exceptions taken to 
 sheriffs ; election of, granted for money, 
 119, 120, 169 ; importance of office ; 
 filled by nobility and lords, and after- 
 wards by gentry, 120 ; office held solely 
 by will of king, 121 ; instructions issued 
 to, 121 ; all executions for distraint 
 under control of sheriff, 142 ; sheriff's 
 tourn, 145, 156, 280 ; offences of, sub- 
 ject to penalty, 159 ; duties of, con- 
 trolled by special itinerant judges, 
 223-227; sheriffs to be appointed by 
 counties, 264 ; subordinate position of 
 sheriffs in time of Edward I., 296; 
 modes of electing sheriffs, 296 ; dimi- 
 nished jurisdiction of sheriff's tourn 
 in Middle Ages, 299, 304; undue in- 
 fluence of sheriffs in election of mem- 
 bers of Parliament in Middle Ages, 
 383 ; provisions enacted for remedying 
 this, 383, 384; sheriffs annually pre- 
 sented to king in Tudor period, 465 ; 
 Charles II. devises the appointment of 
 subservient sheriffs for forming packed 
 juries, 602 ; duties of sheriffs in modern 
 
 period, 651 ; office open to gentry only, 
 660 
 
 Shirman, perhaps same as shirgerefa or 
 distinct, 54 
 
 Shrewsbury, E. of, 500 
 
 Shropshire, county of Scrobscira, 38 ; 
 exempt from fine for murder of Nor- 
 mans, 153 
 
 Shute, Robert, 511 
 
 Sidesmen, 516 
 
 Sidney, Algernon, 602, 607 
 
 Sign manual, 336 
 
 -Sir. Vide Knight. 
 
 Six-hundred, or syxhynde, man, 75 
 
 Smith, Sir Thomas, 507 
 
 Smithson, Sir Hugh, 662 
 
 Soca, 122, 140 
 
 Socage tenure, 434, 583 
 
 Sochemanni. Vide Judicial System 
 (Anglo-Norman) . 
 
 Society, state of, under Anglo-Saxon 
 chiefs, 34 ; under Anglo-Saxon mon- 
 archy, 86-89 ; degradation of small 
 landowners, 89, 90 ; under Anglo- 
 Norman kings, 204 ; during Stephen's 
 reign, 222 ; important share of, in self- 
 
 fovernment in Middle Ages, 311-313 ; 
 isorganized in reign of Henry VI., 
 415, 416 ; unbridled warlike spirit of 
 nobles and people in reign of Edward 
 IV., 416-418; terrorism, 419, 420 ; de- 
 moralization and disturbed state of, 
 under Richard III., 420 ; position of the 
 country gentlemen in society of Middle 
 Ages, 429 ; effect of the wars of the 
 Roses on, 430 ; power of individuals to 
 rise in social scale during Middle Ages, 
 442 ; an element of strength for the 
 nation, 443 ; king recognized as the 
 head of, 450 ; lessened warlike spirit 
 of, under Tudors, 462, 463 ; increasing 
 power of gentry, 475 ; and of middle 
 class, 475 ; division of, in civil war, 
 557 ; declaration of the sovereignty 
 of, 564 ; discontent of, with Puritan 
 rule under Cromwell, 566, 575 ; ascen- 
 dency of the middle class, 568, 593, 
 594 ; demands made by same, 568, 
 577 ; reaction of, against active aggres- 
 sors on its rights, 580, 581 ; con- 
 ditions of, at the end of seventeenth 
 century, 615-634; increased number 
 wealth, and power of gentry, 618-620; 
 as also of free electors, 620-622 ; com- 
 fort of yeomanry under the Tudors, 
 620, 621 ; altered social relations of 
 aristocracy and middle class, 621 ; the 
 unf ranchised classes, 623, 624 ; stability 
 of, 624 ; relation between State and, 
 626, 627 ; discontented state of, after the 
 Revolution, 630, 631 ; indifference of, 
 for William III., 630, 631 ; extensive 
 share of, in internal self-government, 
 646, 647 ; importance of individuals per- 
 forming public duties, 646, 647, 667, 
 668, 675, 709 ; increase of lords as mere 
 gentlemen, 675 ; stable condition of, at 
 close of eighteenth century, 711 ; rise
 
 Index. 
 
 787 
 
 of socialistic agitation with trade de- 
 pression after 1815, 712, 717 ; first be- 
 ginnings of modern spirit of social 
 reform, 716 ; revolution of, effected by 
 introduction of machinery, 717 ; trans- 
 ference of power from landowners to 
 capitalists, 717, 719 ; increasing num- 
 ber of wealthy persons not fully par- 
 ticipating in public duties, 717, 718, 
 747; increase of non-voting middle 
 class, 719 ; social reforms on behalf of 
 operatives, 724, 725 ; diminished share 
 of wealthy and educated persons in 
 self-government, 731, 732 ; consequent 
 devolution of national duties to volun- 
 tary agents, 733 ; individual responsi- 
 bility evaded by the ballot, 734 ; the 
 power of the press the sole bond be- 
 tween Government and, 734, 735 ; in- 
 jurious effects of releasing citizens from 
 all civil obligations, 743 ; diminished 
 influence of magisterial gentry, 745 ; 
 the modern equality cry, 745 ; and its 
 democratic tendencies, 745, 746 ; impe- 
 rative necessity of individuals resuming 
 their public duties, 747, 748 
 
 Socn-gerefa, 56 
 
 Solicitors. Vide Judicial System. 
 
 Somerset, D. of, weak regency of, 487, 
 490, 491 
 
 Somersetshire, county of Somersetescira, 
 38 ; settlement of Samorsaetan, 38 ; 
 payment for right to choose sheriffs, 
 169 
 
 Special sessions, 653 
 
 Stabulator or marshal, 15 
 
 Staffordshire, county of Steadfordscira, 
 38 ; hundreds of, 41 
 
 Standard, Battle of the, 134 
 
 Staple towns of the Middle Ages, 436 
 
 Star Chamber, Court of, 335, 465, 541; 
 constitution, functions, and extraor- 
 dinary criminal powers of, 504, 505 ; 
 essentially a Committee of the Privy 
 Council, 505 ; origin of name, 505 ; 
 literature relating to, 505, 506 ; pro- 
 cedure of, 507 ; torture resorted to 
 by, 507, 553 ; dangerous powers of, 
 507 ; variable character of, 508 ; dis- 
 cretionary powers of, abused by the 
 royal council of James I., 549 ; illegal 
 ordinances enforced by, 553 ; abolished, 
 555, 556, 590 
 
 Star Chamber. Vide Judicial System 
 (Tudor period). 
 
 State, relation of Church to, under Anglo- 
 Saxon kings, 30, 31 ; nature of Anglo- 
 Saxon State, 57, 58 ; relation of 
 Anglo-Norman Church to, 190-201; 
 people in favour of separation of Church 
 and, 245 ; antagonism of Church and, 
 in time of Henry VIII., 460 ; relation 
 of Church to, during the Stuart period, 
 535, 536 ; strength and structure of 
 the English, after the Revolution, 625- 
 627 ; relation between society and, 626, 
 627 ; reconciliation of Church and, 627 ; 
 estrangement between Church and, 
 
 677 ; Parliament becomes the centre of, 
 by assuming the discretionary power 
 of government, 686 ; incompatibility of 
 unity of, with recognition of equal 
 churches, 729, 730 ; relation of the 
 press to the, 735, 736 
 
 State, Secretaries of. Vide Secretaries. 
 
 Statute Molls, 282 
 
 Statutes as distinguished from ordinances, 
 260, 374-376, 444 ; assizes, 375 ; framing 
 of, 375 
 
 Statutes of de circumspecte Agatis, 518 ; 
 Gloucester, 315 ; Marleberge or Marl- 
 borough, 266, 267 : Marlebridge, 143, 
 344 ; Precedence, 501 ; Provisors, 400, 
 401 ; Rutland, 317 ; Westminster, 344 
 
 Statutes, Quia emptores. Vide Manors 
 and Honors. 
 
 Statutes of Merton. Vide Land. 
 
 Statutum de Scaccarium, 317 
 
 Steallere or marshal, 15 
 
 Stephen, opposition of barons and clergy 
 to, 112 ; troublous reign, 112, 113, 222 ; 
 concession of. to Church, 193, 199 
 
 Steward, Court of the Lord, 509 
 
 Steward, Lord High, an hereditary office 
 of little political importance, 216 ; 
 presides over court for jurisdiction over 
 king's servants, 324 ; has seat on per- 
 manent council, 329 ; continuance of, 
 as Steward of the Household, 450 ; 
 rank of, 502, 692 
 
 Steward, office of, in court of Anglo- 
 Saxon kings, 15 
 
 Stewart, Sir S., 692 
 
 Stra/ord, Wentworth, Earl of, 508, 552 ; 
 his renegade policy, 549, 553 ; im- 
 peachment of, 555 
 
 Strator regis or marshal, 15 
 
 Strode, 481 
 
 Subinfeudation, 98 
 
 Subpoena, 334 
 
 Suffolk, county of Sudfolc, 38 ; hundreds 
 of, 41 
 
 Suffolk, E. of, impeachment of, 371, 415 
 
 Suffrage. Vide Reform. 
 
 Supreme Court of Judicature. Vide 
 Judicial System (Modern). 
 
 Sureties in Anglo-Saxon police system, 
 24, 25 
 
 Surrey, Earl of, 500 
 
 Surrey, kingdom of, 35 ; county of 
 Suthwai, 38 
 
 Sussex, kingdom of, 34, 38 ; county of 
 Suthsexia, 38 ; territory of Suthseaxan, 
 40 ; hundreds of, 41 
 
 Suthanhymbraland, territory of, 40 
 
 Swdngerefas, or officers for administration 
 of forests, 55 
 
 Swanimote, court of, 324 
 
 Synodsmen, 516 
 
 Tallagia or taxes. Vide Taxation. 
 Tally. Vide Exchequer. 
 Tallarum's case, 441
 
 788 
 
 Index. 
 
 Taxation, direct, unknown to early Anglo- 
 Saxons, 28 ; danegeld or tax for 
 warding off Danish invasions, 29, 128, 
 174 ; tax levied in lieu of military 
 service, 105, 360 ; hydagium or tax on 
 hides raised for providing paid soldiery 
 by William I., 110, 175 ; right to direct 
 taxation claimed by Anglo-Norman 
 kings, 111 ; tallagium levied by Anglo- 
 Normans on real estates exempt from 
 military service, 124 ; on guilds, 124 ; 
 collection of, by town reeve, bailiff, 
 or mayor, 124 ; later by towns them- 
 selves, 124, 125 ; oppression caused to 
 towns by levying of taxes by landlord ; 
 opposition thereto, 125 ; taxation the 
 basis of municipal rights, 126 ; aids or 
 auxilia, 166, 172 ; scutagia or shield- 
 money, 166, 172-174, 246, 360, 389; 
 land and income taxes derived from the 
 scutagium, 175 ; national opposition to 
 arbitrary, by John, 177, 252 ; hide 
 tax imposed by Richard I., 240, 360 ; 
 limitation of, provided for by Magna 
 Charta, 248, 249 ; auxilia and scutagia 
 made subject to control of king's 
 vassals, 252, 360 ; but this provision 
 was afterwards abandoned as imprac- 
 ticable, 257 ; mode of raising taxes by 
 regency under Henry III., 258 ; vote of 
 taxes made conditional on prior redress 
 of grievances, 262 ; right of Crown 
 vassals to vote or refuse taxes, 262, 263, 
 266 ; county rate, 288, 307, 311 ; tithing 
 or town-ley, 306-308, 311 ; hundred 
 rate or town cess, 307, 311 ; formation 
 . of local assessment committees, 308- 
 310, 361, 435, 528 ; complexity as to 
 assessment rates, 308, 309 ; assessors, 
 317 ; taxes granted by barons and 
 prelates to Henry III., 341 ; by barons, 
 prelates, and Commons in Parliament 
 to Edward I., 342; blending of taxes, 
 360, 361 ; clergy pay aids and scutages, 
 but refuse taxation on Church revenue, 
 362, 363, 390 ; exorbitant taxation by 
 Edward I., 363 ; which leads to resist- 
 ance by clergy and barons, 363 ; and 
 to the passing of the Statute de tallagio 
 non concedendo, which requires that no 
 tax be imposed without consent of Par- 
 liament, 364 ; taxes granted for national 
 welfare, 365, 406 ; all forms merge into 
 a land tax, an income tax, and a tariff, 
 365 ; redress of grievances to precede 
 grants of money, 367 ; summary of the 
 groups of taxpayers, 388-393; of Crown 
 vassals, 389 ; of under vassals, 389, 390 ; 
 all purchasers of fiefs made direct tax- 
 payers, 389 ; boroughs, 389, 390 ; tenants 
 in ancient demesne, 390 ; clergy, 390 ; 
 tax on wool, 390, 391 ; poll tax, 391 ; 
 property tax, 391-393 ; scale of, defi- 
 nitely fixed by Parliament, 392 ; land 
 tax, 392, 638 ; parish tax, 392 ; income 
 tax, 392, 393, 638, 665, 727; mostly 
 paid by knights in the Middle Ages, 
 427 ; deliberations on taxes changed 
 
 from municipal meetings to Parliament, 
 435 ; graduation of property tax accord- 
 ing to class in 1389, 443 ; parochial 
 system of, 470, 516-528 ; benevo- 
 lences, 478 ; Morton's Fork, 478 ; ton- 
 nage and poundage, 479 ; excessive, 
 during reign of Elizabeth, 479 ; no 
 tax in any form to be paid by free- 
 men without consent of Parliament, 
 547; ship-money, 551, 552, 554; its 
 legality condemned by Lord Clarendon, 
 551, 552; and by Parliament, 554; 
 inadequacy of the old system of, for the 
 republic, 571 ; monthly assessment and 
 excise duty, 571, 589 ; excessive under 
 Cromwell, 571 ; force required for col- 
 lection of taxes, 571 ; malt tax sub- 
 stituted for feudal dues to Crown, 583 ; 
 separate money grants by clergy dis- 
 continued, 595 ; extraordinary revenue 
 from, 638, 639 ; strict regulation of 
 local rating, 638, 639 ; customs, 638, 
 667 ; house and window tax, 638 ; sub- 
 sidies distinct from taxes, 638, 667 ; 
 local taxes of modern period, 643, 665- 
 667 ; church rate, 643, 665 ; poor rate, 
 643, 666 ; borough rate, 643 ; highway 
 rate, 643, 666 ; unification of system 
 of local and State, 665-667 ; local taxes 
 assessed upon resident occupier, 666 ; 
 increase of local taxes in modern 
 period, 667 ; prejudicial taxation of 
 labourers due to landowners, 710, 711 ; 
 small ratepayers released from direct 
 payment of rates, 737 ; abolition of 
 English church rate, 740 
 Team, 122, 140 
 Tellers or cashiers of Exchequer. Vide 
 
 Exchequer. 
 
 Teothings, or tithings, 42, 43 
 Test Act, 584, 598 ; repealed, 715 
 Thanes, developed from the gesithmen 
 or special war tenants, 5 ; ascendancy 
 of, 6 ; worth of, 10, 11, 14 ; power 
 of, in county and national assemblies, 
 10, 77, 78, 85 ; property qualification 
 of, 11, 70; personal service to king; 
 term applied to all royal servants, 11 ; 
 personal jurisdiction of, 11 ; Twelf- 
 hyndeman or twelve-hundred-man, 11, 
 75 ; kigher court offices filled by, as 
 honourable distinction, 15 ; inferior in 
 rank to ealdorman, 16 ; judicial su- 
 premacy of king over, 20 ; respon- 
 sible for household and tenants, 24 ; 
 heriot dues of, to king, 27 ; position 
 of, in Anglo-Saxon State, 58 ; were- 
 geld of, 69, 70 ; class relations of the 
 greater, 77 ; dignity not heritable, 77 ; 
 class relations of county, 77 ; compli- 
 cated nature of thaneship, 78 ; land- 
 less, 78; vassalage of one thane to 
 another, 78 ; thane-right of sons, 79 ; 
 homo liberalis, 80 ; summons of, to 
 national assemblies, 83 ; vassals to 
 Norman lords, 98, 103, 202; number 
 of king's, in time of Edward, 103 ; 
 equivalent to Norman term miles, 107,
 
 Index. 
 
 789 
 
 144 ; excluded from king's council, 
 202 
 
 Theodore, Archbishop, 59, 60 ; Anglo- 
 Saxon Church united under, 87 
 
 Theothings, or ti things, 42, 43 
 
 Thesaurarius, or chamberlain, 15 
 
 Throckmorton, Nicholas, 465 
 
 Throne and Altar, as a watchword, 698 
 
 Thurkill, governor of East Anglia, 51 
 
 Thurstan, Archbishop, 134 
 
 Tin, exports of, restricted to merchants 
 of the staple, 436 
 
 Tithes, introduction of, for churches, 62 ; 
 right of Church to, recognized by 
 national assemblies, 64 ; apportionment 
 of, for church repair, clergy and the 
 poor, 64, 522; vote of, for crusade, 
 263 ; diverted from parochial purposes, 
 497, 520, 521; clergy liable to poor 
 rate owing to possession of, 524; re- 
 demption of, 724 
 
 Tithing. Vide Judicial System. 
 
 Tithing man. Vide Constable, Police. 
 
 Title, 450 
 
 Tolls, grant of, to private persons, 28; 
 technical meaning, 122, 140 ; customers 
 or receivers of, 182 ; essentially taxes 
 on consumers, 362, 391 
 
 Tories, 606. Vide Parliament. 
 
 Tournaments, 430 
 
 Towns, mode of collecting taxes from, by 
 appointed officials, 124 ; acquisition of 
 power to farm their own taxes, 124, 
 125 ; growing independence of, 125, 
 126 ; privileges granted to, 125 ; op- 
 pression of, by landlords ; opposition 
 to payment of itaxes to landlords, 125, 
 126 ; increasing importance of, 241 ; 
 representation of, in Parliament, 265, 
 269, 357, 358, 386, 387, 670; special 
 civic militia of, 310 ; special court leet 
 of, 310, 311 ; special justices of the 
 peace and criminal courts, 310 ; quali- 
 fications of citizenship, 312 ; closely 
 connected with country by means of 
 military, judicial, and taxation systems, 
 312; staple privileges of, 436; staple 
 towns, 436; initial incorporation of, 
 447 ; increased representation of, in 
 Parliament, 593, 670 ; inadequate repre- 
 sentation of, in Parliament, 718; in- 
 creased representation of, in 1832, 721 
 
 Townshend, Hon. T., 692 
 
 Trade, regulation of price of bread, 236, 
 298; of beer and other necessaries, 
 298 ; regulations affecting the baking, 
 leather, woollen, malting, brickmaking, 
 coaling, and firewood trades, 298, 468 ; 
 wages of labourers fixed by law, 298, 
 437, 725 ; unions prohibited, 298, 438 ; 
 exclusive exports of wool, sheep's skin, 
 leather, lead, and tin, granted to certain 
 towns, 436 ; opposition to foreign mer- 
 chants and workmen, 437 ; laws as to 
 prices, 437, 725 ; restrictions on appren- 
 ticeships, 437 ; beerhouse licences, 
 licences for dealing in corn, butter, 
 cheese, 468; formation of council of, 
 
 and later of Board of, 591 ; Minister 
 for, 693 ; enormous development of, 
 owing to introduction of machinery, 
 717 
 
 Trail baston, justice in, 300 
 
 Traitorous Correspondence Act, 712 
 
 Treasurer, sale of office of, 171, 220; 
 importance of office, 220 ; subsequently 
 becomes that of Prime Minister, 220, 
 589; rank of Lord, 501, 503, 589; 
 division of office of Lord, 691 
 
 Treasurer of the household has seat on 
 permanent council, 329 
 
 Treasure trove, right of Anglo-Saxon 
 kings to, 26 ; of Anglo-Norman kings 
 to, 118, 165, 174; coroner appointed to 
 look after cases of, 300 
 
 Treasury, or specie chamber, thesaurus 
 regis, 179 ; separated from Exchequer 
 under Charles II., 589 ; placed in charge 
 of a commission, 589; First Lord of 
 the Treasury, 691, 692; junior lords 
 of the, 691, 692 ; officers of the depart- 
 ment of the, 692 ; large staff of the 
 department, 692 
 
 Tresilian, Chief Justice, executed for 
 attempting to maintain legality of a 
 royal ordinance, 319, 320 
 
 Triennial Act, 555 
 
 Triers, 337, 366 
 
 Trinoda necessitas, provision of armies, 
 building of castles, repairing of bridges, 
 27, 64, 174 ; incumbent on clergy, 192 
 
 Trithings, or ridings, 41, 42 ; tithings 
 miscalled trithings, 42 
 
 Tungerefas, 56 
 
 Twelfhyndeman. Vide Thane. 
 
 Twelve-hundred-man. Vide Thane. 
 
 U 
 
 Ultra-Tories. Vide Parliament. 
 
 University Reform Acts, 742 
 
 Usher of Exchequer. Vide Exchequer. 
 
 Vagabonds, legislation against, 467 
 
 Vagrants, regulations against, 520, 621, 
 522 ; alarming increase of, in reign 
 of Elizabeth, 521 
 
 Valentine, Benjamin, judicially con- 
 demned for a speech in Parliament, 
 553 
 
 Verderers, 324 
 
 Vere, Alfred de, 216 
 
 Vere, Henry de, 216, 217 
 
 Vestry, 519". Vide Parishes. 
 
 Vicar. Vide Church (Tudor period). 
 
 Vicar-General, has precedence of all 
 king's subjects, 501 
 
 Vicecotnes, Norman, equivalent to shii- 
 gerefa, 116. Vide Shiryerlfat. 
 
 Vicinetum, 6
 
 790 
 
 Index. 
 
 Villa, 122 
 
 Villatas, 515 
 
 Villeins, number holding land in times of 
 Edward and of William I., 103, 104, 
 106; "regardant" and "in gross," 280 ; 
 as lawmen, 281 ; emancipation of, with 
 rise of leaseholding, 441 ; insurrection 
 caused by attempts to reintroduce 
 villeinage, 441 ; copyhold and privi- 
 leged villeinage, 441 ; unrepresented in 
 Parliament, 441, 623 ; oppression of, 
 by nobles, 487 ; tenure by, 623 ; reform 
 measures for preventing villeinage, 725 
 
 W 
 
 Wages, regulation of, 623, 725. Vide 
 also Trade. 
 
 Wales represented in Parliament during 
 Tudor period, 474 
 
 Walpole, H., 692, 694 
 
 Walpole, Sir Edward, 692 
 
 Walpole, Sir Robert, 690; beneficial 
 administration of, 704 
 
 Walter, Chief Baron, dismissed, 550 
 
 Waltheof, last Saxon ealdorman, 104 
 
 Wapentake, the northern equivalent of 
 the hundred, 41 
 
 War, right of declaring, originally rested 
 with the people, 16 ; but was super- 
 seded in later times, 17, 18 ; right to 
 decide for peace or, established as a 
 royal prerogative, 128, 203, 452 ; Secre- 
 tary of State for, 694 ; department of, 
 694, 726 
 
 Warden, Chief, of the Forests, 325 
 
 Wardmote, 437 
 
 Wards and Liveries, Court of, 509, 510 
 
 Wardship of Norman feudal lords over 
 heiresses under age, 99, 100 ; and right 
 to dispose of them in marriage, 100 ; 
 revenue of Anglo-Norman kings from, 
 165, 167, 168 ; regulations as to, made 
 by Magna Charta, 245 ; Court of 
 Wards, 510 ; discontinuance of feudal 
 dues on, 583 
 
 Warenne, W. de, 215, 275 
 
 Warwickshire, county of Warewicscira, 
 38 ; hundreds of, 41 
 
 Weights and Measures, unification of, by 
 Magna Charta, 249 
 
 Wellington, D. of, opposed to reform, 
 719, 720 
 
 Welshmen, low-class grade of, 80 
 
 Wentworth. Vide Stra/ord. 
 
 Wercgeld, or fine fixing the worth of 
 ranks, 10 ; of king and lower degrees 
 of rank, 14; of bishops, 69, 70; of 
 archbishops and clergy, 70 ; of gerefa 
 and ealdorman, 75 ; of massthanes, 78 
 
 Wessex, kingdom of, 34 ; supremacy of, 
 35 ; rise of, 35 ; shires of, 38 ; territory 
 of Westseaxan, 40; as province, 51 
 
 Westmoreland, wards of, 41 
 
 Whigs, 606. Vide Parliament. 
 
 Whitsun-ales, 529 
 
 Whtr., contraction for Wihtraed, 1 
 
 Wic-gerefa, or royal magistrate, 56 
 
 Wilfred, Romanizing influence of, on the 
 Anglo-Saxon Church, 71, 72 
 
 Wilkes, election of, 663 
 
 William I., title of claim as king of 
 England, 93, 95, 96 ; claims posses- 
 sion of English soil, 97 ; paid army 
 employed by, 110 ; acknowledges 
 ancient judicial system, promises a col- 
 lection of Saxon laws, 135 ; supposed 
 revenue of, 175 ; power of the Church 
 recognized by, 188, 196, 197 ; court 
 days of, 201, 202 ; personal govern- 
 ment of, 205-207, 221 
 
 William III., crown of England trans- 
 ferred to, 611 ; recognition of Decla- 
 ration of Rights by, 612 ; lack of sym- 
 pathy between the people and, 630, 
 702 ; advantage of his rule to nation, 
 702 
 
 William Rufus, abuse of rights as feudal 
 suzerain, 112, 191 ; quarrel of, with 
 Archbishop Anselm, 196, 197 ; claims 
 and exercises rights of investiture of 
 bishops ; compromises the dispute, 197, 
 198 ; governs by a royal chaplain as 
 deputy, 215, 221 
 
 Williams, bishop and lord chancellor, 
 501 
 
 Wiltshire, county of Wiltescira, 38 ; 
 settlement of Wilsaetan, 38 
 
 Winchelcombeshire, a county incorporated 
 with Gloucester, 40 
 
 Winchester, bishop of, 215, 260, 331, 
 500 
 
 Witan. Vide Judicial System. 
 
 Witan, experienced lawmen, 7 ; ap- 
 pointed by king to decide difficult cases, 
 20, 31 ; members of national assembly, 
 83, 88 
 
 Wite. Vide Fines. 
 
 Witenagemdte, representative assembly 
 of landlords, in Anglo-Saxon times, 
 10 ; right of, to depose the king, 32 ; 
 clergy in, 67 ; character of, 84, 85 ; 
 not a parliament but a king's council, 
 85 ; feebleness of, 90 
 
 Withers, Sir Francis, 600 
 
 Wolsey, Cardinal, rebuffed in House of 
 Commons, 479 ; duplicity of, 489 ; 
 suggests renunciation of the supremacy 
 of Rome to Henry VIII., 489 ; chief 
 adviser of Henry VIII., 504 
 
 Woodmote, 324 
 
 Woodwards, 324 
 
 Wool, duty on, 362, 363, 410 ; export of, 
 restricted to merchants of the staple, 
 436 
 
 Worcester, exempt from fines for murder 
 of Normans, 153 
 
 Worcestershire, county of Wircestrescira, 
 38 ; hundreds of, 41 
 
 Writ of certiorari, 654 ; habeas corpus, 
 655 ; mandamus, 655 
 
 Wulfstan, last Saxon bishop, 104 
 
 Wi/att, Sir Henry, 500
 
 Index. 
 
 791 
 
 Yeoman, 441, 450, 620, 621 
 
 York, a staple town, 436 
 
 York, D. of, 330; protector, 416, 417; 
 
 ascends throne as Edward IV. Vide 
 
 Edward IV. 
 
 York, D. of. Vide James II. 
 
 York, house of, struggles of, with house 
 
 of Lancaster, 415-420 
 Yorkshire, county of Eborascira, 38 ; 
 
 tri things of, 41 
 Young, Thomas, 380 
 
 THE END. 
 
 LONDON : PRINTED BT WILLIAM CLOWM AND SOUS, LIMITED, 
 8TAMVOBD 8TBKET AND CHAK1NG CROW.
 
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