^\ ESSAYS INTROniTTORY TO THE STUDY OF ENGLISH CONSTITUTIONAL HISTORY ESSAYS INTRODUCTORY TO THE STUDY OF ENGLISH CONSTITUTIONAL HISTORY BV RESIDENT MEMBERS OF THE UNIVERSITY OF OXFORD EDITED BV HENRY OFFLEY WAKEMAN, M.A. \\ FELLOW OP ALL SOULS COLLEGE, TUTOR OP KKBLB COLLEGE AND ARTHUR HASSALL, M.A. TUDEMT AND TCTUk OP CHK1ST CHUKCH LONDON LONGMANS, GREEN, & CO. AND NEW YORK: 15 EAST 16* STREET 1894 [New Edition} PREFACE. THE writers of the Essays contained in this volume do not pretend that it is the result of original research, or that it will throw any additional light on the many unsolved problems of English Constitutional History. Their object is the much humbler one of trying to arrange the well-ascertained facts connected with the growth of our institutions in such a way as may make the study of them more intelligible, and more attractive to beginners. Each Essay attempts to bring into strong relief the central principle of con- stitutional development which is characteristic of the period of which it treats ; and is complete in itself, although a certain unity and chronological order is preserved throughout. The picture of the growth of the Constitution thus presented is doubtless rather a photograph than a portrait. The leading features are brought into ex- ceptional prominence at the expense of due harmony, and occasionally, perhaps, of fidelity of effect. Some features are thrown too much into the background, or are altogether obscured. In a work confessedly introductory to a subject so difficult as Constitutional History, it was thought worth while to run the risk of much unevenness and inadequacy of treatment in vi Preface. order to gain, if possible, the compensating advan- tages of clearness and simplicity. Whether the experiment has succeeded it will be for the reader to judge. The Constitutional History of Dr. Stubbs has, with his permission, been taken throughout as the founda- tion of the work ; and references to it, therefore, have not been inserted. To the kindness of Dr. Stubbs in looking over the proofs of this volume, and to his ready sympathy and help accorded to them in their undertaking, the authors wish to express their deep obligation. They are sensible how much of what there may be of value in the following pages is due to his suggestion and criticism. OXFORD, September, 1886. IN preparing a Second Edition for the press, little alteration has been found necessary except in the first Essay, on the subject of which a good deal of light has been thrown by recent research. The wide and accurate knowledge of the Rev. A. H. Johnson, Tutor of Merton University and Trinity Colleges, has been of great assistance in the revision of this part of the work, and requires special recognition and thanks. OXFORD, January, 1891. CONTENTS I. THE EARLY ENGLISH CONSTITUTION H. HENSLEY HENSON, M.A., Fellow of All Souls College i II. FEUDALISM W. J. ASHLEY, M.A., Professor of Political Economy in the University of Harvard, formerly Fellow of Lincoln College 45 III. THE ANGLO-NORMAN AND ANGEVIN ADMINIS- TRATIVE SYSTEM (1100-1265) C. \V. C. OMAN, M.A., Fellow of All Souls College . . 113 IV. PARLIAMENT DUDLEY JULIUS MEDLEY, M.A., Tutor of Keble College 159 V. CONSTITUTIONAL KINGSHIP (1399-1486) ARTHUR HASSALL, M.A., Student of Christ Church . . 224 VI. THE INFLUENCE OF THE CHURCH UPON THE DEVELOPMENT OF THE STATE HKNRY OFFLEY WAKEMAN, M.A., Fellow of All Soul College 267 ESSAY I. THE EARLY ENGLISH CONSTITUTION. THE Constitutional History of the English General differs essentially from that of the other Euro- iendfnf y towards pean nations. It differs, yet it is not without feudalism. points of resemblance. In England before the Conquest, as in the other countries of Europe, there was a tendency towards that state of society and government which we call feudalism ; and that tendency was neither weak nor in- effective. It worked with such energy as to convert a constitution founded on personal re- lations into one permeated from pinnacle to base with territorialism. And yet, although this was so, between the England of the eleventh century and the France of the eleventh century there existed an essential difference. For in England there were certain forces hostile to feudalism which, owing to the circumstances of early English history, retained their vitality, and operated as a check on the triumphant tendency of the age. The deep divisions of the 2 The Early English Constitution. English, stereotyped, so to say, by the circum- stances of the conquest of Britain, manifested themselves in perpetual inter-tribal wars, in continuous struggles against the supremacy of any one kingdom, in the local isolation which handed the country over as a prey to the northern invaders. The northern invaders them- selves projected into a half-feudalized society, a society kindred, indeed, but more primitive, personal, and free. Beneath all and through all the Teutonic spirit worked with unique purity, with unique liberty. These are the great forces antithetical to feudalism, which operated as such in the first six centuries of English history. They are not the dominant forces. The trium- phant tendency of the age is towards feudalism ; but they act as checks on that tendency. The feudalism which is developed naturally on English soil, the feudalism which the Norman knights and lawyers remodel into a more ordered form, is a half-feudalism, a feudalism awkwardly elevated on a sub-structure of free institutions and immemorial customs. The Early The machinery by which a barbarous tribe governs itself is necessarily of a very simple description. It involves an anachronism to bestow on such primitive arrangements the name of a constitution. It is only when the TJu Early English Constitution. 3 social state has become complicated, and the tribe has expanded into a nation, that the need arises for that careful adjustment of political power between various classes which we connect with the idea of a constitution. This general observation is perhaps less true in the case of the primitive Germans than of most barbarians ; for the system described by Tacitus in the Germania is not without a certain order and beauty of its own ; yet it would argue ignorance or folly to credit the primitive Germans with the constitutional theories of modern times, although they may truly be regarded as the unconscious exponents of the same. At the basis of the Teutonic system lay the Ranks. threefold division of ranks, (i) The blood- noble eorl distinguished by the higher pecu- niary value attached to his life (wergild}, and by the higher legal value of his oath ; entitled, doubtless, to a greater share in the conquered land on account of his nobility, but without special political rights. (2) The freeman ceorl possessed of full political rights, his place in the host and in the folk-moot assured to him, as also his share in the conquered land, his alod. (3) The dependent last not fully free, yet not a slave, with no political rights, but yet personally free, a cultivator of the land of another the man 4 TJte Early English Constitution. of a class half-way between freedom and slavery, and recruited from both, destined, perhaps, with various modifications, to become the villein of the Middle Ages. These are the three classes of the nation. Below them is the slave, the chattel theow with no rights, until the Church suc- ceeds in persuading men of his humanity. Allotment The English, thus divided into ranks, migrated into Britain, and there planted themselves, re- producing, we may be sure, the combinations of their former life, as far as was possible under the The new conditions of migration and conquest. The s allotment of the conquered land, which followed the victory of the tribe, settled the kindred free- men in free village communities to carry on agriculture, at first probably on a system of common cultivation, which, however, in most cases speedily gave way before the principle of individual ownership. On the larger allotments of the kings and eorls the Icets were likewise grouped in dependent communities, similar in organization, but owing rent and services to a lord. And here the system of common cultivation known as the three-field system long survived in the later manor. Under this system the arable land was divided into three common fields : two were sown with crops every year, and one was left fallow. The Britons who survived the cata- T/u Early English Constitution. 5 strophe which robbed them of their land were probably settled in dependent villages on the estates of the king and nobles, and on the unal- lotted land which formed the national property. 1 The townships were grouped into hundreds, The in combinations which possibly reproduced in fact as well as in name the existing divisions of the tribe in its military aspect. More probably, however, the hundred had already lost its ori- ginal connection with the host. 8 Each of these divisions township and hundred possessed its 1 The question as to the origin of the Anglo-Saxon village or township, and as to the character of the early system of agriculture, is at the present moment a subject of much controversy. Those who wish to pursue the matter further should consult Stubbs, " Constitutional History," vol. i. ch. iii. 24; ch. v. 39; Maine, "Vil- lage Communities," lect. iii. ; G. L. von Maurer, " Ges- chichte der Markenverfassung ;" Fustel de Coulanges, "Recherches sur quelques Problemes d'Histoire," pp. 145-186, 262, 320-326; Seebohm, " English Village Com- munity," chs. iv. v. viii. ix. x. xl ; Denman Ross, "Early History of Land-owning among the Germans;" Pollock, "Land Laws" (Citizen Series), ch. ii. and Appendix A ; Vinogradoff, " Early English Land Tenure,* Clarendon Press ; Earle, " Land Charters," introduction. 1 The origin of the hundred, by some attributed to a later date, is a matter of much controversy. The following authorities may be consulted : Stubbs, " Consti- tutional History," vol. i. ch. ii. 16-18 ; ch. v. 45-47 ; Stubbs, "Select Charters," p. 68; Fustel de Coulanges, " Institutions de 1'Ancienne France," vol. ii. p. 195, fl, 224, ft 6 The Early English Constitution. own court, presided over by its own elected officers. The Folk- Above the hundred court stood the Folk- moot i the popular assembly of the tribe, in which every freeman had a voice ; while sur- rounding the king himself stood the assembly of the Wise Men the Witenagemot. But as the process of consolidation advanced, changes took place in the primitive organi- zation : (1) The Folk-moot of the once independent tribe shrank into the shire court of later times with less extensive powers 4 and a more definite sphere of work mainly judicial. (2) The Witenagemot of the smaller nation became absorbed in that of the conquer- ing race circling round the victorious king. (3) The Folk-moot, or popular assembly of the rapidly growing nation, lost its vitality, meeting only from time to time on some great occasions such as the coronation of a king when by its shouts it expressed its approval of that which had already been decided by the more aristocratic assembly of the Witan. ThtKing. Kingship may have been created by the The Early English Constitution. 7 Conquest; it may have been a more primitive possession of the race. The statement of Tacitus, that some German tribes had no kings^ seems to be definitely attached to those tribes which conquered Britain, by the description which Beda 1 gives of the old Saxons, and by the curious return to the earlier form of government in Wessex, which is recorded to have followed the death of Cenwalh. 9 But the antiquity of the institution is of little importance. It is certain that as soon as they appear in the light of history the tribes which planted themselves in Britain without exception were ruled by kings. The king of the earliest English history is bound to his people by personal ties. As his name implies, he is the head of the race, the kin ; he represents, symbolizes, embodies in a concrete form the unity of the race. He is both the rex and the dux of Tacitus, because perhaps he is always, as Hengest, first dux (heretoga) and then rex (cyning). 8 Descent from Woden is claimed by every English king, but it is not his sacred character so much as his function of leader in war that forms the basis of his subse- 1 u Hist EccL," v. 10, p. 309, ed. Moberly. 1 Ibid., lib. iv. c. 12. 8 See Anglo-Saxon Chron., sub anno 448 and 455 (Rolls Edition, voL i. p. 21). 8 Tlie Early English Constitution. quent power. The early years of the life in Britain were necessarily years of unceasing war. The hereditary general exercised habitually his extraordinary powers. His special privilege, the possession of a comitatus, now was most valuable. War multiplied the comites (gesiths) ; war utilized them ; war gave their lord the power to reward them. As conquest extended the borders of his kingdom, the king's power in- creased. He emancipated himself from close contact with his subjects and lived remote. Surrounded with his court of sworn dependents, guarded by their swords, more and more sepa- rated from the daily life of his people, beheld by them from an ever-growing distance, his figure dilated before their eyes, he became more terrible and more sacred. Two events in particular involved a great development of the kingly power the conversion of the English, and the consolidation of the kingdoms. Influence That Christianity elevated the royal power Chunk. was tne resu lt not f th e Church's self-abasement, but of her lofty conception of duty. The great service she bestowed on the kingship was the sense of responsibility. She destroyed the divine descent and substituted the divine mission. The prestige of a sacred origin was supplanted The Early English Constitution. 9 by the prestige of a sacred function. In holding out a lofty ideal of the kingly duty, the Church wished to raise the kingly character. At the same time she preached no servile obedience : the deposition of the bad king was the natural judgment of Heaven, and accepted as such by the Church. " You see," wrote Alcuin to Ethel- red of Northumbria, " how your ancestors, kings and princes, perished because of their unright- eousness and rapine and impurity. Fear you their fate." But perhaps the Church worked in favour of the crown less directly than indirectly. In paving the way for national union by her discipline, her doctrine, and her consolidation and organization, by counteracting the disruptive forces which were always threatening to break up the not yet consolidated realm, far more than by hedging round with the august rites of unction and coronation the accession of a new king, did the Church minister to the growth of the royal power. The conquest of Britain had been the work of C many little kindred tribes, acting in complete kingdoms. independence of one another; and when the migration ceased, the eastern half of England was dotted with small kingdoms, alike in polity and nearly related in blood, but jealously in- dependent of outside influences. The extension io The Early English Constitution. of the conquest, and the consequent expansion of these little states over the country, soon brought them into contact with one another ; and that contact seems to have been invariably of a violent nature. The slaves exported from the island to the Roman market were no doubt captives taken in these inter-tribal wars. The tendency towards consolidation began to work. The tribal kingdoms were grouped into seven or eight larger kingdoms, forming what we call the Heptarchy. One kingdom generally acquired a shadowy supremacy over the others. Kent, East Anglia, Northumbria, Mercia, Wessex, in turn exercised some vague supremacy over the other kingdoms. In the hands of the West- Saxon kings this vague supremacy was changed into a permanent dominion. This process of consolidation no doubt had its origin in the ambition of individual kings. The union of the Heptarchic Churches in the obedience of the Archbishop of Canterbury led the way to the union of the Heptarchic kingdoms in the obedience of the King of Wessex. For long it was doubtful which kingdom would obtain that supremacy. The last to attempt the task was the kingdom of Wessex ; and the supremacy of Wessex alone became permanent. The rival kingdoms T/t Early English Constitution. n had had their day, and were on the decline. Yet they were still powerful, independent, and irre- concilably jealous of one another. Something more than the efforts of Egbert were necessary before, in any true sense, a kingdom of the English could be said to exist Such a result could be brought about by nothing less than the destruction of the kingdoms, and the extinc- tion of the local dynasties. The rough hand of heathen conquest swept away every English kingdom but one, and that one was Wessex. Then remained the doubtful duel between the Dane and the West-Saxon. The ability of the house of Cerdic gave the victory to the latter. The treaty of Wedmore (A.D. 879) may be regarded as both the record of the unification of the English, and the epitaph of the independ- ence of the sub-kingdoms. The northern invaders ministered to the increase of the royal power in two ways. First, as we have seen, by destroying possible rivals, and giving the West-Saxon king the position of the sole representative of the English race ; in a word, by rendering* possible the union of the English under a single rule. But they did more than this ; they brought about a change in the character as well as in the position of the king, and in the extent of his realm. We have said 12 Tlie Early English Constitution. that the early English king was bound to his subjects by personal ties. He is emphatically the head of the race. By what ties shall he be bound to the alien Northmen whom he conquers ? Obviously he is not connected with them by blood-bonds. He is the conqueror of their country, the lord of their land. That is his title to their allegiance ; territorial, not personal. From the time of Edward the Elder, the king reigns over two classes of subjects by a twofold title. He is king of the race to some; he is lord of the land to others. His position in respect of the one is personal ; in respect of the other it is territorial. This dualism contains within itself the seeds of change. It is clear that one title or the other will yield ; and the king will be united to his subjects by an uniform tie ; and it is equally clear that the title to yield will be the personal one, because it is not transferable. By no stretch of imagination can the man of the Danelaw regard the English king as the head of his race, of one blood with himself. The personal title has no elsteticity. Moreover, it is rapidly becoming obsolete, even among the English, for even from the earliest times there had been a notable exception to the general rule amongst the English themselves. There The Early English Constitution. 13 had been one class of subjects, and that an ever-growing class, bound to the king by ties which were indeed personal, but were not ties of blood. The right to keep a comitatns, origi- The comi- nally enjoyed by the greater men of the tribe, had come to be the peculiar privilege of the English king. What was the comitatus? It was a body-guard of volunteers bound by oath to serve the lord of their choice. They formed his companions (comites, gesiths) ; he bestowed on them military equipment, maintenance, pro- tection, and reward. They returned to him service and allegiance, the means of gaining power and of keeping it. The tie which united the princeps to his comes, the ealdorman to his gesith, was the oath of allegiance, not the blood- bond. War has its effect in altering the position of the comes. The reward of victory necessarily takes the form of a grant of land. It is not a beneficinm, although the holder owes military service to a superior ; for the beneficium is given as the condition of future work ; the gesith's grant is given as the reward of past service. Yet, clearly, the difference will wear away in time ; and the service of the thegn will be indistinguishable from that of the feudal knight or vassal The increase of the king's power modifies his 14 The Early English Constitution. relation to his gesiths. They rise in power absolutely, but relatively to their lord they sink into a lower condition. No longer com- panions (gesiths), they become soldiers (thegns]. This land-holding, service-owing thegnhood constitutes a powerful territorial aristocracy, which gradually absorbs the older nobility 6f blood, and develops into something almost identical with the feudal baronage of later times. Commen- The personal relation originally existing between the king and his people had been further undermined by the practice of com- mendation, a practice which, in the stormy period of war, was very common. By commendation a freeman placed himself under the protection of some powerful person, whom he acknowledged as his lord, and from whom he received protec- tion. The freemen were constantly on the decrease. In a time of perpetual commotion they had a strong inducement to surrender up their alods into the hands of an over-lord, often the king, and receive them back, laden, indeed, with conditions of suit and service, but guarded by his powerful protection. Thus, perhaps, we can understand how easy was the transition from the personal to the territorial conception of kingship, how rapidly the newer relation absorbed the older when Tlie Early English Constitution. 15 once the commendation of the conquered Danes had placed the two relations in opposition. The legislation of the sons of Alfred marks the transition. It is complete when Edmund (A.D. 943) exacts the oath of fealty from all his subjects. The English king does not cease to be the head of the race, but that is not his most prominent function. The relation between him and his people is identical with that between a man and his lord, in a word, it is a feudal relation. All are to be faithful to Edmund, " Sicut liomo dcbct esse fidelis domino suor The changed position of the king is to be Develop- traced in different directions : in legislation, in t ^ e r ^ a i the maintenance of the peace, in the treatment t ffwer - of the folk-land, the constitution of the Witan, the assumption of imperial titles. Alfred's legislation contains the first law of '(i) Treason. treason ; * the law which separates " treason against a lord " as the crime for which alone no money bot could be taken. "If any on* plot against tlie king's /iff, of himself, or by harbouring of exiles, or of his men; let him be liable in his life and all that he has"* Edmund, as we have seen, asserts that the 1 " Select Charters," 4th edit., p. 62. 1 Ibid., p. 67. 1 6 Tlie Early English Constitution. king is the lord of his people ; and a law of Ethelred 1 seems to make absence from the fyrd, or national levy, when the king in person con- venes it, a treasonable offence ; the wife of one hundred and twenty shillings suffices for ordi- nary neglect of the fyrd. There can be little doubt that the offence of treason assumed a special importance in time of war ; and the fact that the Danes were heathens invests the English wars against them with a semi-sacred character. Treason, perhaps, involved apostasy, for it was an offence against the champion of the faith. (2) The Originally the peace, the unwritten covenant km s > * on which society bases itself, was maintained ptcue. by the folk itself; the hundred and the shire had their own "peace." But from the first there had existed, side by side with this general peace of the folk, a limited and special peace, the grith or mund of the king. As the frith of the folk was maintained by the national officers, so the grith of the king was maintained by the royal officers. The king's peace ex- tended over the four Roman roads, over rivers and navigable streams, which are the highways of commerce. Three times a year, at the great festivals of Christmas, Easter, and Whitsuntide, 1 " Select Charters,' p. 73. The Early English Constitution, 17 the king proclaimed his peace over all the land. The divisions of the shires were deter- mined by him, and he could even extend his protection over the estates of others. It is not difficult to understand how the king's peace was far more efficiently maintained than that of the folk. In times of disturbance the con- trast would be emphasized. It would become an object of ambition to the freemen to gain the securer protection of the sovereign ; and when the first great Danish war had come to an end, and society began to repair the injuries received, there would be a strong tendency to strengthen the central power, as the one power able to maintain the peace of the land. This we find to have been the case. Alfred organized the defence against external foes. Edward reformed the internal condition of the country. The Witan at Exeter were persuaded to "be in that fellowship that he was, and love that which he loved, and shun that which he shunned, both on sea and land ; " l that is to say, the nation, speaking by its constitutional representatives, entered into the grith of the king. The peace becomes the king's peace ; the courts of justice become his courts ; the national 1 " Select Charters," p. 64. C 1 8 TJie Early English Constitution. officers become his officers. "If any one fail to attend tlte gemot thrice, let him pay the king's oferhymes . . . if any one will not ride with his fellows (to arrest the wrong- doer), let him pay the king's oferhymes." * To neglect the court or disobey the officers is to insult the king, and must be atoned for by a " fine for contempt." (3) Treat- And as the peace, and the courts of justice, "folk-land* ^-^ t ^ ie administrative officials cease to be the folk's and become the king's, so does the folk- land gradually become changed into the king's demesne. The folk-land was what we have described as the unallotted land which remained over after the settlement of all claims. It was the property of the nation, and therefore the management of it remained in the hands of the nation. The early grants of folk-land invariably express the consent of the WitenagemoL The king grants "cum consilio, consensuet licenlia pro- cerum." a But from the time of Alfred this clause is of rarer occurrence. The consent of the Witan becomes their attestation. No longer as gran- tors but as witnesses they attach their names to the charters ; but they do not lose their right altogether until the eleventh century. The reign of Ethelred II., perhaps, marks the change. 1 " Select Charters," p. 66. a Vide Kemble's " Saxons in England," vol. ii. p. 226. The Early English Constitution. 19 The king exercised an ever-growing influence (4) The over the composition of the Witenagemot. The free elements the aldermen and bishops were outnumbered by the ethelings and king's thegns. And, perhaps, this easy manipulation of the central" assembly was the reason why it suc- ceeded in preserving so considerable a proportion of its ancient powers. The king could effect his purposes with less risk of unpopularity if he effected them through its agency. There could be no object in destroying so useful an instru- ment. Two rights the Witenagemot succeeded in retaining throughout the whole of its existence the right of legislation, and that of electing and deposing the king. The laws of Ethelbert form the earliest ex- isting fragments of English legislation, and they were issued, so Beda informs us, cum consilio sapientium)- The earliest extant West-Saxon laws, the laws of Ini, are issued by that king " with the advice and by the teaching of Cenred my father, and of Hedde my bishop, and Ercenwold my bishop, with all my ealdormen, and the most eminent witan of my people, and also with a great assemblage of God"s servants" a Alfred, whose reign in many respects marks a 1 Beda, bk. il ch. 5. * " Select Charters," p. 61. 2O The Early English Constitution.' great advance of the royal power, acknowledges in ample terms the action of the Witan in his legislation. "7 tfien, Alfred, King of the West- saxons, showed these [laws] to all my witan, and they then said, that it liked them well so to hold them" 1 Athelstan, perhaps, was the most powerful sovereign of the house of Cerdic, yet his reign contains 'an emphatic assertion of the legislative right of the Witan. " These are the dooms which the witan at Exeter decreed, with the counsel of Athelstan the king?* In Edgar's reign the theory of the_ kingship reached its highest level, although the zenith of real power would seem to have passed ; yet the " peaceful king," like his predecessors, legislates " with the counsel of his witan"* Ethelred II., a prince not without a strong inclination towards absolu- tism, if without capacity for government, freely acknowledges the right of the Witenagemot to make laws. " Wise" he says, " were those secular Witan who to the divine laws of justice added secular laws for the government of the people ; and decreed hot to Christ and the king, that many should thus, of necessity, be compelled to right"* The conquering and imperial Canute 1 " Select Charters," p. 62. Kemble's "Saxons in England," vol. ii. p. 210. " Select Charters," p. 71. 4 Kemble's "Saxons in England," vol. ii. p. 212. TJie Early English Constitution. 21 retains at the head of his collection of laws the customary formula ; and the witness of his reign completes the chain of evidence on this subject. The English kingship was both hereditary (0) EUc- li~i and and elective ; that is to say, it was elective deposition within the limits of a single family ; failing that f thekin s- family it was elective absolutely. No right of primogeniture was recognized ; the nearest capable relative of the dead king was elected ; obviously in most cases that relative would be his brother or his eldest son. Alfred succeeded his brother, and no voice protested that Ethel- red's children were wronged. Edred was chosen by the Witan on the death of Edmund, whose two sons were yet children. This election was no mere form ; even the Danish kings found it necessary to veil the fact of conquest by the fiction of a forced election. At the very close of early English history the Witenagemot exer- cised their ancient right under exceptional and perilous circumstances in the election of Earl Harold. A natural deduction from the right of electing the king is the correlative right of deposing him ; although the occasions on which the latter right was exercised were of comparatively rare occur- rence. The Anglo-Saxon Chronicle, 1 under the 1 Anglo-Saxon Chron. (Rolls Series), vol. i. p. 82. 22 T/ie Early English Constitution. year 755, records the deposition of Sigebert by the West-Saxon Witan, acting under the leader- ship of a rival claimant of the throne. " This year Cynewulf and the West- Saxon Witan deprived Sigebert of his kingdom, except Hamp- shire, for his unjust doings? In A.D. 774, the Northumbrian Witan deposed Alcred ; and the history of the northern kingdom is full of the sudden and violent depositions of kings, some of which at least must have been regular pro- ceedings, although many no doubt were not. These cases belong to the Heptarchic period. After the consolidation of the kingdom under the line of Cerdic, three cases of deposition occur. When Ethelwulf returned from his pilgrimage to Rome, we learn from Asser, 1 whose evidence, however, in face of the silence of the Chronicle, is scarcely conclusive, that the West-Saxon Witan, at the instigation of Ethelbald, deposed him. The Mercians deposed Edvvy in favour of his brother Edgar ; and the Witan of the whole king- dom abandoned Ethelred II. in A.D. 1013, and accepted Swegen. In every case the action of the Witenagemot was the result of dynastic intrigue or of some other external agency ; and without such agencies, it is more than probable that neither Ethelwulf, nor Edvvy, nor Ethelred Asser, ed. Wise, 1722, pp. 8-10. The Early English Constitution. 23 would have been deposed. Deposition, it must be remembered, involves a far greater exercise of power than election ; for it is in itself some- thing far more than the simple undoing of election. The king is king by virtue of some- thing more than election. His assumption of the crown is hedged round by the threefold sanction of election by the Witan, unction and coronation by the Church, and the oath of alle- giance from the nation. That king was either very guilty or very unfortunate whose conduct brought into play so far-reaching an act of power. We have traced at some length the develop- Summary. ment of the kingship, because, perhaps, that development is one of the most characteristic features of early history. The process which changed the tribal king into the territorial king, the lord of the land, went on under various con- ditions in other portions of the constitution. Everywhere the personal and official tended to be absorbed by the territorial and feudal. We have observed this tendency operating in the case of the comifatus, changing the personal relationship between the ealdorman and his gesith into the semi-feudal relationship between the king and the land-holding, service-rendering thegns. We have seen that the Danish wars had results in the same direction, by inducing the free ceorls to 24 The Early English Constitution. purchase security by the sacrifice of their free- dom, and by substituting the territorial for the personal relation to the king. We must now slightly change the method of our inquiry, and mark the working of the same tendency in its results on the judicial and military organization of the country. opposing Feudalism includes two essential conditions, which may serve as the tests or marks of the ^ eu< ^ a ^ state. The one condition attaches to History, the land the duty of military service to an over- lord ; the other attaches to the land the duty of attending the court of the over-lord. The feudal tenant, in short, owes his over-lord "suit and service." By applying these tests to the England of the eleventh century, we ascertain, perhaps, with the greatest exactitude, the extent of the pro- gress made by the feudal principle, and the extent to which the institutions of the country retain their primitive freedom. And here it is necessary to remember that from the very first among the English, both in their military and in their judicial institutions, there had operated two principles, fundamentally opposed. There was first the popular principle which lay at the foundation of the military and judicial arrangements of the tribe. This principle im- Tlte Early English Constitution. 25 posed on the freeman the honourable burden of sharing in the national defence, and the important privilege of trial by his fellows. The courts of justice and the host were organized on a popular basis ; indeed, at first the distinc- tion between the two was a very slight one. The judicial arrangements reproduced for another purpose the divisions of the host. After the settlement in Britain, the judges in the courts of the township, the hundred, and the shire were the suitors upon whom, as upon all free- men, lay the burden of national defence. Concurrently with the popular principle, there operated another and rival principle, which may be called feudal. This lay at the root of the comitatus. The companions who followed their chief to battle recognized his jurisdiction in time of peace. The feudal principle removed them to some extent from the host of the free- men, and from the courts of the folk. In the dim past of the earlier history of the English, these rival principles can be perceived at work. Side by side there exist upon the soil of Britain the quasi-manorial communities of the loets, and the village-communities, the townships of the free ceorls. The book-land of the gcsith and the eorl is contrasted with the alods of the freemen. Eorls coexist with 26 T/ie Early English Constitution. thegns, the free ceorl with the commended ceorl, the freely elected township-man presid- ing over the moot of the free township with the lord's nominee, gerefa or bailiff, presiding over the moot of the incipient manor. These concurrent principles thus embodied in concrete forms are found in collision with one another, and with an invariable result. The weaker principle yields to the stronger. Feudaiiza- On the side of the military organization of military the nation the feudal principle encroached on t ^ ie PP u l ar > as commendation transformed the freemen under the banner of the sheriff into the dependent following of the thegn. The host which the ealdorman led forth from the shire to resist invasion was indeed the folk in arms, the primitive host, but it was the folk organized to a very large extent on the feudal model. In theory the immemorial obligation of the fyrd rested on every citizen ; in fact, before it reached the mass of the citizens that immemorial obligation had been transmuted into the summons of an over-lord. The course of the political history to some extent counter- acted the tendency of the constitutional. The early English wars were almost exclusively wars of defence. The principle which dictated to the freemen the duty of the fyrd was per- The Early English Constitution. 27 petually reasserted by being perpetually acted upon. Had it not been so, the popular organi- zation of the national defence might have easily sunk into the insignificance into which the kindred organizations of the continent fell, sur- viving only for the lower purposes of police. Watch and ward, police and defence, formed the twofold obligation of \hzfyrd. In the organiza- tion of the national defence, perhaps more than in anything else, the primitive popular principle of the national polity succeeded in asserting itself continuously against its rival. On the side of the judicial organization of and 'of th* the nation, the feudal continually gained ground at the expense of the popular principle. The tlon ' process was somewhat different Here it was rather by narrowing the sphere of action, than by interfering with the action itself, that the advance was made. The jurisdiction of the popular courts was ever being encroached upon by the creation of rival private jurisdictions. It has been already pointed out that the gesiths or thegns of the king were in \i\sgrith and under his jurisdiction. This was the fact when the tribe possessed no settled territories, and the tic which bound companion and chief together was purely personal. It continued to be the case where the tribe had settled in 28 The Early English Constitution. Britain, and the personal tie had begun to lose itself in the territorial. The thegn, with his estate of book-land carved out of the folk-land, owed suit and service to the king. At a very early time it became a common practice to couple with grants of land grants of jurisdiction. This was expressed by the later formula " Sac and Soc" an alliterative phrase of which the origin and exact meaning are not free from obscurity. It would seem probable that in most cases the grant of sac and soc conveyed an exemption from the hundred-court only, not from the shire-court. Yet sometimes the latter was also included : a notable instance occurs in Domesday, in the case of Worcestershire, the sheriff of which declares that in seven out of the twelve hundreds of the shire he has no authority. Grants to the thegns and grants to the Church removed an ever-increasing portion of the population from the jurisdiction of the royal or national courts. The right of justice became an incident, an inseparable incident, of land tenure, until the thegn with his normal hold- ing of five hides counted among the privileges of his rank the possession of his private court. Consequent The feudal principle, making territorial all royal relationships, had, indeed, enabled the kingship P ffwer - to absorb into itself the national powers ; now The Early English Constitution. 29 the same principle snatched from the kingship the substance of strength, and left but the shadow. The zenith of the monarchy synchro- nized with the rapid rise of the private franchises, by which monarchy was in danger of being reduced to a name. When over whole districts the royal power was vested in powerful local landowners when as judges and land-ricas these sat as presidents in the hundred-courts and received a share of the profits of the hundred, when they exercised jurisdiction over the lesser landowners then, indeed, the English king was menaced with the lofty impotence of the feudal position. This state of things did not exist before the reign of Canute (A.D. 1016-1035) ; the appearance of the land-ricas is just one of those facts which give the reign a revolu- tionary appearance. Another is the division of England into the four great earldoms of Wessex, Mercia, East Anglia, and Northumbria. That division seems to form a symmetrical Division completion of the process which had been doming steadily in progress during five centuries towards f mr s reat feudalism. The anarchy of Edward the Con- fessor's reign was the logical and inevitable outcome of the policy of Canute. The great earldoms became practically hereditary in the families of their first possessors ; the power of 3O TJie Early English Constitution. the crown was as nothing before the power of the earls. The position of the Confessor between two rivals of equal strength and am- bition by turns the tool of both can only find a parallel in a country which was essentially feudal. Edward the Confessor may share with his contemporary, Henry I. of France, the position of the typical feudal king. Neverthe- less, the political anarchy did not involve any very considerable disturbance of the organiza- tion of the country. The establishment of the great earls seems to have left untouched the shire-system. The royal writ was sent to the earl and bishop and sheriff of each shire, although all those officers included several shires in their jurisdictions. It is possible that the earl presided in the shire-court by a deputy who bore the discarded title of ealdorman ; but this is mere conjecture. The shire-moot sur- vived the changes of Canute's and the anarchy of Edward's reign, not unaffected by them, but still retaining a very considerable proportion of its ancient importance. However dilapidated in its composition, and depressed from outside by the progress of feudalization, the shire-moot embodied in its organization and its functions almost all that remained of the primitive freedom of the English polity. The Early English Constitution. 31 The historic shires had not a common origin. The shire. Some represent the primitive union of several more ancient districts, tribal or other, in a federa- tion for religious, judicial, and political purposes; others, especially those in Wessex, represent the kingdoms first established in Britain by the inva- ders; others, more especially those in the North; represent the later district, into which the country was artificiallydivided for purposesof government by the West-Saxon kings. And the organization Character of the shire bears witness to its threefold origin, "organiza- The shire-moot is an agglomeration of hundred- '""* moots; it is also the folk-moot of the tribal king- dom ; it is also theunit forpurposesof government On the one hand it stands in intimate relationship with the popular courts below, and on the other it connects itself through its officers with the Wite- nagemot and the king. Thus it brings the local machinery of the hundreds and the townships into connection with the central government. In its popular composition it bears witness to its popular origin. In its self-sufficiency it commemorates its ancient political independence. In its relation to the central power it reveals the design of its later creation. The shire-moot was nothing else than the collection together of the hundred-moots under the officers of the shire. As such it included three several elements : the popular element, 32 The Early English Constitution. represented by the reeve and four men from every township ; the feudal element, represented by all lords of land shire-thegns both those who attended the hundred-moot, and those whose more extensive franchises exempted them from attendance ; the official element, represented by the hundred-man and twelve " senior-thegns " from every hundred. The Us officers, officers of the shire were three : the bishop, the ealdorman, or later the earl, 'and the sheriff, representing respectively the Church, the folk, and the central government. The bishop and the ealdorman were members of the Witenage- mot It is quite true that the bishop's diocese was not always restricted to a single shire, and that both ealdormen and sheriffs exercised juris- diction over several shires at once ; still the constitutional fiction supposed a bishop, an ealdorman, and a sheriff to every shire, and the king directed his writs accordingly, although, probably, in many shire-moots, bishops, ealdor- men, and perhaps even sheriffs, only appeared (i) Tht by their deputies. Although the bishop sat in the shire-moot, and expounded there the " law of God," that court by no means formed the sole sphere of his judicial activity. Like other great landowners, he possessed his own franchise, and, as a spiritual officer, his religious The Early English Constitution. 33 jurisdiction. It is, however, certain that the close union between Church and state dispensed with the rigid definitions of their respective spheres of action which marked the subsequent age. The piety and policy of the English tribes assigned to the clergy a position of great power and dignity. An indication of this is to be found in the law of Ini, 1 which decrees that the hot for the bishop's burg-bryce shall be equal to that for the king's, in both cases one hundred and twenty shillings, while the penalty for a similar offence in the case of an ealdorman is fixed at eighty shillings. As the number of bishops increased and the supremacy of the West-Saxon kings became assured, the relative importance of both underwent an immense change. The tenth-century record of the wergilds of the northern people witnesses to this change. 9 There an archbishop is ranked on an equality with an etheling, and a bishop with an ealdorman, while the king's wergild is estimated at a much greater amount and on a different basis. Although the relative im- portance of the bishops thus diminished, at the close of the early English period they still appear in possession of an immense influ- ence. Forming the most homogeneous and 1 M Select Charters," p. 62. * Ibid., p. 65. D 34 The Early English Constitution. politically capable section of the Witenagemot, exercising a considerable influence over the national courts, adding to both the peculiar force of their spiritual position, the clergy exerted an extensive and beneficent authority in the affairs of the nation. (2) The The ealdorman is the most imposing figure among the officials who preside at the shire- moot Perhaps himself the descendant of the ancient kings, he has not altogether lost his royalty. Around him gather the cherished memories of the tribe memories which survive the shock of West-Saxon conquest, and preserve the individuality of the once independent folk. He takes his place as president of the court ; he leads forth to war the forces of the shire. He represents the popular element in the ad- ministrative machinery of the country. As the king symbolizes the unity of the nation, so the ealdorman symbolizes the unity of the shire. He typifies, so to say, its individuality. Within historic times the king and Witenagemot would seem to have united in appointing this officer; but the consent of the shire was also expressed, probably in the ceremony of his installation. The ealdormanship was less affected by the feudalizing tendency of the time than many other institutions. In most The Early English Constitution. 35 cases the office was held for life ; the cases when son succeeded father are exceptional. The king seems to have maintained unimpaired his authority over the ealdormen. Expulsions from office for high treason or other offences are by no means rare, and the Saxon Chronicle records one instance in which the punishment of death was inflicted. "The high reeves of the Northumbrians burned the Ealdorman Beorn at Selet-un," is the brief record of the Chronicle under the year /So. 1 Henry of Huntingdon assigns the severity of the unhappy "consul" as the cause of his death. 9 However that may be, the action of the "high reeves" is suggestive of some right recognized in the suitors of the shire-moot to call their ealdorman to account for his actions. The power of the ealdorman was great enough to justify this jealous supervision. He presided over the internal and external relations of the shire. Before him were borne the symbolic staff and sword, for in his hands were centred both the executive and the judicial authority of the shire. He declared the law and he led 1 Anglo-Saxon Chron., vol. i. p. 93. 1 Hen. Hunt (Rolls Series), p. 126. It is, however, by no means certain that the " high reeves " were the officers of the shire. 36 The Early English Constitution. the host Moreover, he was a member of the Witenagemot of the realm, where he occupied a position of special importance as distinctively representing the nation. His dignity was equal to his power ; it was hedged round with various safeguards. A higher wergild and a weightier compurgatory oath, a limited right of sanctuary belonging to his house, the heavy penalties attached to insults addressed either to his dwelling or his person, marked his superiority to every subject save the primate. As his power was great and his dignity lofty, so also was his income considerable. Public lands, a share (probably a third part) of the profits of jurisdiction, voluntary offerings, a share in the profits of war, the proceeds of the regalia on his own public and private lands, perhaps in some cases the right of coinage, these were the main sources from which the ealdorman drew the income which enabled him to maintain the state befitting his position. One circumstance gives an unique interest among early English institutions to the ealdor- manship. It alone failed to perpetuate itself in any recognizable form in the later history of the constitution. The earl who, under the Danish dynasty, supplanted the ealdorman, monopolizing his functions and almost oblite- The Early English Constitution. 37 rating his name, cannot in any legitimate sense be regarded as perpetuating the office. The earl and the ealdorman represent rival prin- ciples, and the triumph of the first is also the triumph of the feudal principle. The third officer of the shire was the gerefa, who bore the name of shire-man or shire-gerefa, (3) 7< whence the later sheriff. He held his position by royal appointment, in which the Witan had not even a ponsenting voice. As he had no seat in the Witenagemot, his appointment did not directly interest that assembly as did that of the ealdorman or bishop. It would seem probable that in the earliest age of the national history the sheriff, like his fellow-officials, owed his position to popular election ; and it is possible that the tradition of election lingered on in some form of acceptance by the shire. It is, however, certain that in the earliest times of which we have any record the sheriff is in no sense a popular official. He is the nominee of the king, and as such he stands contrasted with the ealdorman, in whom, as has been shown, the idea of national representation is centred. To a very great extent it is true to say that the sheriff acts as the ealdorman's subordinate, but this is not altogether the case. If in time of war the sheriff follows the banner of the 38 The Early English Constitution. ealdorman at the head of the freemen of the shire ; in time of peace he, not the ealdorman, is the " constituting officer " of the shire-moot. Without his presence no shire-moot can be held. He alone, in the absence of bishop and ealdorman, can hold a shire-moot. 1 Wulfsige, the sheriff of Kent, acting by himself, decided an important dispute about the title to some land, in which the Archbishop St. Dunstan appeared as one of the litigants. The sheriff was the principal fiscal officer of the shire. He had charge of the royal estates, and of the folk- land. He levied all fines to the king, seized the lands and chattels of criminals, and, when the pressure of the northern wars compelled the imposition of national taxation, collected the taxes levied on the nation by the Witenagemot There can be little doubt that the sheriffs were guilty of oppression in their fiscal arrangements. " This is the alleviation" runs the law of Canute, 2 '* -which it is my pleasure to secure to all the prople, of that which hath heretofore too much oppressed them. First, I command all my reeves that they justly provide for me on my own, and maintain me therewith: and that no man need give them anything as 'feormfultum ' 1 u Dipl. Aug. oevi. Sax.," p. 273. u Select Charters," p. 74. The Early English Constitution. 39 unless he himself be willing. And if any one after that demand a 'wife' let him be liable in his wer to tfte king" The duration of the tenure of the sheriffdom is not certainly ascer- tained ; it seems clear that the office never became hereditary before the Norman conquest The emoluments of the sheriff arose for the most part from the same sources as those of the ealdorman. Probably he also possessed estates attached to his office, shared in the judicial profits of the shire, received voluntary offerings from suitors, and a portion of the plunder taken in war. According to the law of Edgar, 1 the sheriff convened the shire-moot twice in the year ; he proclaimed on those occasions any laws which the king and his Witan had passed in the interval, and the suitors formally accepted them, perpetuating in the ceremony of acceptance the long obsolete right of legislation. There is extant an address to Athelstan from the shire-moot of Kent, declaring acceptance of the recent legislation of the Witan at Greatanlea. 8 It would seem that the sheriff required from the freemen a wedd or pledge that they would obey the new law. This arrangement in some sense made 1 " Select Charters," p. 71. 1 See Kemble's M Saxons in England," vol. ii. p. 233. 4O The Early English Constitution. amends for the great fault of the Witenagemot, viz. its non-representative character. Instead of the constitutional obligation to submit to the acts of its representatives, the nation would seem to impose, as a preliminary to submission to the acts of its wise men, the condition of its own acceptance. A peculiar constitutional interest attaches to the organization of the shire, for thereby was carried forward into the succeeding age the forms and something of the spirit of the ancient administration. Under all the weight of feudalism it remains a memorial of the free past, until in the twelfth century it is utilized by the royal power to provide a simple and sufficient machinery whereby the task of self- government is accomplished. impor- The union between the social and the con- *s. the right marrying her to a person of his choice, usually on consideration of a payment made by, or on behalf of, that person, or of demanding a fine upon her refusal to marry, or in return for leave to marry as she pleased. The heiress would never herself be able to render the military ser- vice due ; it was therefore necessary, so it was argued, for the king to choose a husband whom he could trust to perform the duty for her. So important was it to prevent lands passing into the hands of the king's enemies, that the sove- reign insisted on the necessity of his consent even to the marriage of the heiress of a tenant- in-chief during her father's lifetime. In later times, this right of marriage was extended to include the right of marrying male heirs if under age to wives of the lord's choosing. This, how- ever, was based on a strained construction of a clause in Magna Carta, and clearly had no justi- fication in the theory of tenure. 1 Such were the incidents of feudal tenure till they were abolished in the seventeenth century. They grew up gradually on English soiL were not suddenly introduced from abroad at the Conquest, for on the continent and in England 1 Digby, " History of the Law of Real Property," 106. F 65 Feudalism. alike the time when they first take a systematic shape was the eleventh and twelfth centuries. With us, indeed, their development and elabora- tion can, with much probability, be assigned to one man, the minister of William II., Ranulf Flambard. In the reign of William I. they are scarcely to be seen even in germ. The charter of Henry I. at his accession, the main purpose of which is to reform the abuses introduced by his brother, takes the incidents for granted, and indeed, recognizes that every lord has the same rights over his vassals as the king over his tenants-in-chief. Their development must there- fore have taken place in the reign of William II. Now Flambard is directly accused of instigating a policy toward the lands of the Church which was based on the same idea, the idea that an estate reverted to the king whenever there was no holder who could perform its duties in the words of the chronicler, that the king was " every man's heir." It is therefore likely that it was Flambard who shaped the burdens upon lay tenants. In so doing he did but continue the policy of the Conqueror, of drawing from the theory of tenure all those deductions, but those only, which profited the central power. Indeed, the social and legal growth of feudalism went in England much farther than it did abroad ; for it Feudalism. 67 is a striking fact that the two most lucrative incidents, wardship and marriage, are scarcely found in a complete form anywhere else than in England and Normandy. 1 Hitherto we have been considering the rela- (g) Com- tions of military tenants, great and small, to^* their lords, and the unit of most importance in manorial this connection is the knight s fee. Let us now take the manor as our unit, and look at the relations of the lord to his manorial tenants. A manor must be carefully distinguished from the knight's fee. It might be made up of one or more knight's fees, and the lord of a manor often had military tenants holding whole fees or parts of fees under him. Upon most manors, the majority of the tenants were villeins and cottars, manor -.Ike bound to do certain semi-servile work upon the ** WWIM lord's demesne, but possessing an hereditary right to their holdings so long as they performed those services. That an estate should possess the free- the character of a manor, and that its lord should have a right to hold its most important court, the court-baron, it was early recognized that among the inhabitants there must be, in addition to villeins, at least two freeholders. These freeholders were either military tenants or i For Flambard, see Freeman, "Norman Conquest," v. 372-382 ; and a William Rufus," i. 334-342. 68 Feudalism. socagers, the latter being bound to make certain payments, or to perform services sometimes little less onerous than those of villeins. Mr. Seebohm, in his recent book on the " English Village Community," has done good service by making us see more clearly than was possible before the nature of the common cultivation of the lands of the manor, and the way in which the demesne of the lord and the holdings of the free tenants were intermixed with those of the villeins. He has also shown that the organiza- tion of the manor is of earlier origin than we are wont to suppose. But in taking up the extreme position that all the inhabitants of what after- wards became a manor were always in a con- dition of more or less servile dependence on a lord, he comes into evident conflict with clearly ascertained facts. As was seen when speaking of commendation, we can distinctly trace, before and after the Conquest, the way in which free alodial holders, owning no man as their lord save the national king, sank into dependence. After the Conquest, indeed, all the inhabitants of every township are found, in some way or other, dependent upon a lord of the manor ; but certainly the Conquest itself did a great deal to bring this about. It may however be confessed that little was Feudalism. 69 needed to complete the manorial organization ; Changes it the really important changes due to the Conquest were rather (i) the more or less compulsory Conquest. adoption of military tenure by many of the holders, dependent freeholders, of which something has already been said; and (2) the speedy dis- as to slaves. appearance of slavery. There had been a con- siderable class of theows y absolute slaves, treated as farm implements, and sold as chattels. But, Slavery as has been justly remarked, there was no room ^ for the slave in the feudal theory. 1 For the feudal principle was one of reciprocal duties and rights ; a class without rights it could not include. And this is probably the explanation of the fact that, much as other classes were depressed, the position of the slave manifestly improved. The English had long carried on a brisk slave trade, especially with Ireland a trade resulting in iniquities such as we are wont to think peculiar to more modern times. All that previous kings had done was to prohibit the sale of slaves to heathens ; the Conqueror, influenced by the higher morality which accompanied the Church revival of his time, forbade it altogether ; and his legislation was assisted by the preaching of S. Wulfstan, and the decree of Anselm's Synod at Westminster. Henceforth a lord would find it 1 Freeman, " Norman Conquest," v. 4&x 7O Feudalism. more to his interest to settle such slaves as were not needed in the household on plots of ground taken from the " waste." The universal tendency towards making services fixed and definite would lead to the limitation and enrolment even of the work expected from a slave. These labour-dues would come to be regarded as the condition on which such a man held his land ; so that, after a time, his position would only differ from that of the villeins proper in the more Villeins in onerous nature of his services. The unreal regardant, distinction of the lawyers between villeins in gross and villeins regardant the former defined as mere chattels, the latter as unfree only in certain respects and in relation to their lords may be due to a vague recollection that among villeins were comprised slaves who had risen as well as freemen who had fallen. Manorial In the manorial courts no very distinct change >urtt: can be attributed to the Conquest, save the in- troduction of new names for old institutions. Thus, distinctions are soon drawn between three " courts of the manor," and different functions (0 the attributed to them. The court-baron, the court 'baron * ^ e " barons " in the old sense of freemen, doubtless represents the old township moot. The lord nominates or confirms the reeve, and receives the profits of jurisdiction, but does not Feudalism. 71 interfere with the customary procedure. Here, as in all the national courts, " the suitors are the judges," />. all those who are present at, or "do suit at," the court, join in giving the decision. Every manor had such a court-baron ; and every manor had also a court-customary, which dealt (2) the with matters arising out of the villein tenures, customary and in which the lord or his steward was judge. But, besides these, many manors had also a court-leet. The term leet everywhere implies (3) the criminal jurisdiction ; and it is probable that c these seigneurial courts arose out of those grants of exemption from the hundred court (the lowest national court possessing criminal jurisdiction) which were frequent in the centuries before the Conquest These grants conferred what, from the reign of the Confessor, became known as sac and soc. And there is this negative argument for the pre-Conquest origin of the manorial court- leet, that had it been introduced from Normandy, or had it grown up after the Norman invasion, it would certainly have taken the shape of a court for a whole barony, or group of manors, rather than that of a court for a single manor For it is a singular characteristic of English English seigneurial courts, that, except in the case of honours, they are always only manorial courts. Even when a lord possessed several adjacent 72 Feudalism. manors, and held one court day for all of them, it was regarded as but a junction of many separate courts which chanced to be held at the same time and place, and not as the court of a whole barony. Liberties. More dangerous than these to the unity of the state were the courts of the great liberties or honours. These seem to have originated in grants which, before the Conquest, had placed many hundred-courts in dependence upon some neighbouring magnate, some land-rica who had been made the king's representative over a wide district Such grants would, at first, pro- duce no change in the tenure of the other land- owners of the district, many doubtless themselves lords of dependent townships; the only alteration being that the bailiff, who presided over the suitors at the hundred-court, was nominated by this great neighbour, who also got a share of the fines. But the troubles of the Danish invasions would tighten the bond between such a magnate and the inhabitants of various ranks who were subject to his jurisdiction ; and the Conquest completed the process. For the new Norman lord could not understand how a man could do service in his court without holding his land of him. Without intending injustice, he would treat all the landowners of the hundred, or larger terri- Feudalism. 73 tory, as his vassals. In a case like this we have the nearest approach in England to a baronial court of the continental type. II. Such are some of the main features of the //. social organization which resulted from the intro- duction of feudal tenures. It must have been ,. feudal apparent that such an organization could not tenures. have been without important results in the sphere of government And indeed the consti- tutional changes were numerous and far-reaching, in the position of the king, in the constitution of the national assembly, in the organization of justice, and in the method of taxation. To the king it meant the addition of the (a) In the character and power of a suzerain, or feudal r ^ wer over-lord, to the character and power of a sovereign, or national leader and magistrate. We have seen how much more effective the military force was made by the imposition of feudal responsibilities upon landholders ; and this is only a particular instance of a general truth. Compare, for instance, the relations of (i) over great ealdormen and thegns with the Confessor, ***" ' and those of earls and barons with the Norman king. Between the Saxon king and the great noble there was no other tie than the almost nominal bond of thegnhood ; a turbulent or traitorous magnate would need to be tried before 74 Feudalism. the Witan, and the Witan would probably acquit him. But William, as suzerain, would have much less difficulty in gaining the acquiescence of a court of peers to the forfeiture of the estates of a tenant-in-chief for breach of his feudal obligation. Not that the mere change in tenure gave the king this greater power. Had there been no increase of strength owing to other causes, the altered tenure would rather have brought weakness. But the point to be noticed is this, that the feudal theory gave the suzerain a right to punish disobedience at his discretion a right which was intelligible and generally recognized, and which there was a uniform and simple means of enforcing ; and that such a right was a weapon of tremendous efficacy in the hands of a strong king. (2) aver It might be urged that in relation to his mtt thcgns the king had, before the Conquest, taken up much the same position, though with less power, as a suzerain after the Conquest. But at any rate, with regard to the towns and with regard to the folk-land, he had occupied no other position than that of national king ; and yet here the consequences of the new doctrine of tenure are also strongly marked. Some of the towns had doubtless grown up on the lands of lords ; others, arising independently, had been subjected Feudalism. 75 by royal grant to the jurisdiction of powerful neighbours. But since in the minds of the new lords jurisdiction and land-tenure were inse- parably connected, after the Conquest all towns soon came to be regarded as on the demesne 01 him who had the jurisdiction, and their inhabi- tants were conceived of as holding from him by a tenure (burgage) similar to socage. Most English towns, however, had remained independent of any private lord, and subject to the jurisdiction of the national courts alone. But, as early as the beginning of the tenth century, such courts were considered royal courts, and the king was held to be the fountain of the justice administered in them. And thus because the king had the jurisdiction, and, in feudal phrase, there could be " no land without a lord," these towns, including the most important in the kingdom, were treated as part of the royal demesne. Folk-land was peculiar to England, and absent (3) ever in other Teutonic states. From this national reserve of land grants could be made by the king, but only with the consent of the Witan. Such part of the land, however, as was not given in grant did not remain entirely unoccupied. Tenants were allowed to settle upon it, and over these the king was recognized as having a special jurisdiction. The folk-land tended, indeed, from 76 Feudalism. the first to become the private property of the king. After the eighth century the consent of the Witan to grants from it is scarcely more than nominal. And, therefore, the change was insen- sible when, after the Conquest, the folk-land shared the lot of the towns for exactly the same reasons, and was swallowed up in the royal demesne. How important this was in the matter of taxation we shall see later. (j8) In the Lastly, feudal ideas caused important modifi- t moMnhy. cations in the very theory of the kingly dignity. As all land was held of the king, it was natural to regard him as standing in much the same relation to his country as a lord to his estate. The royal position began to be regarded as a possession rather than an office a contrast marked by the use of the term King of England, instead of King of the English} In consequence, Rules of it was soon thought that the same rules applied succession. ^ Q t ^ e success j on O the throne as to the succes- sion to a private estate, viz. hereditary succes- sion, and in default of heirs bequest or adop- tion. This had long been accepted as law in Normandy. But William, anxious to make no break in the external regularity of English tradition, was careful to recognize the old 1 For the transition from " tribal " to " territorial " sovereignty, see Maine, "Ancient Law," 106. Feudalism. 77 English right of election, and his own personal preference for Rufus prevented him from putting forward his eldest son as his due successor. The ambition of Henry and Stephen, and the death of the Etheling William, still further delayed the recognition of the feudal rule as applicable to the crown. Yet it is seen gradually forcing its way. For instance, a contemporary chronicler speaks of Stephen's seizure of the throne as "alike against human and divine law divine because he broke his oath, human because he was not the legitimate heir ; " although the claim of a woman, Matilda, was almost equally dis- cordant with feudal feeling, and Henry II. showed that he recognized this by getting him- self appointed heir by Stephen. The form of election and national acceptance still remained, and with it its corollary, the principle of the right of deposition ; but by its side appeared a new doctrine of far greater strength and in- fluence, that of hereditary right. A similar substitution of the new for the old (?) / tht principle is seen in the national assembly. It assembly, had been the Gcmot of the Witan, the assembly of the wise of those to whom wisdom was ascribed in virtue of their offices as ealdormen, bishops, or ministri. But England after the Conquest appears rather as an estate divided 7# Feudalism. among tenants-in-chief than as a nation with officials. And for such a state the national assembly is naturally one, not of great officials, which but of tenants-in-chief, sitting in virtue of their becomes one of tenants- tcnure-m-chief. There is no violent break m m-. freeholders, having lands in the county. But the really important points are that the courts are maintained, that at the great hundred court all owners of land bishops, earls, barons, vavassors, and a long list of other H 98 Feudalism. lords and their representatives are still ex- pected to be present, and that it is still held, according to the "laws of Henry I.," that it is the duty of a lord to there present his accused " man." (^Creation The other weapon of the sovereign against the Judicial lords was the Curia Regis. This is a subject machinery. w hj c h w m more fi t iy t>e dealt with in the follow- ing essay ; but it may be well to mention in this place some of the methods by which the judicial authority of the king was enlarged. First was the increase of the number of criminal offences treated as matters reserved to the crown. Such cases would doubtless be tried in the national courts, and taken out of the hands of the mano- rial lords. Another plan was the frequent issue of writs, rarely employed before the Conquest. These were sent through the sheriffs to the lords of manors, especially upon matters concern- ing land, admonishing them to do justice, and adding, "unless you do so, the sheriff will do it, that we may no longer hear complaint of failure of justice." And finally, with the reign of Henry I. begins the despatch of itinerant justices through the counties to hold civil and criminal pleas. Yet great dangers long remained. Several of the more powerful lords had liberties or Jwnours, Feudalism. 99 in which all the courts were subject to them, and from which in some cases even the sheriff was excluded until the Assize of Clarendon. Every lord of a manor who had only a court-baron coveted a court-leet and power of criminal juris- diction, like the French liaute justice with its scaf- fold. And when the strong hand of the king was removed, the anarchy of Stephen's reign showed what the Norman conquest would have made England but for William's policy. Among the Rtntitt in results of that policy may be placed these three } ftL Con- facts : that the seigneurial courts remained merely courts of manors, and did not become courts of whole baronies ; that no gradation of feudal courts arose as in France ; and that the right of appeal directly to the king was recog- nized from the first The final end of the struggle to limit seigneurial power may be seen in two statutes of the reign of Henry III., the statute of Merton, forbidding magnates to have their own prisons, and the statute of Marlborough, enacting that " no one for the future, except our lord the king, shall hold a plea in his court for false judgment in a court of his tenant, since pleas of this kind specially pertain to the crown." 1 1 Compare with the notices of the subject in Stubbs i " Const. Hist.," ch. xi. of the first vol. of Gneist, " Hist of the Engl. Const" (Engl. trans.). loo Feudalism. Three par- The baronial right of private warfare was never recognized in England. It implied that (\} Private there was no superior strong enough to compel recourse to his tribunal ; and weakness such as this no English king was ever obliged to confess. In France, on the other hand, the right of a baron to prosecute a quarrel by arms was repeatedly acknowledged by the king. All that could be done was to lessen its evils, as by those edicts in the thirteenth century which provided that hostilities should not begin till after an interval of forty days from the offence, nor while the king himself was at war with a foreign en^my. But in England private war was always a "crime" and an "unusual crime," as the historian says of Ivo of Grantmesnil, who was expelled from England in 1102, and who had tried to set the evil example. During two periods only in our history was private warfare at all. frequent in the reign of Stephen, and in the reigns of Henry VI. and Edward IV. The evils of the former time were repressed by the strong hand of Henry II. ; those of the latter called for the rule of the Tudors. (2) Private One main reason, certainly, why England was castles. unlike France in this respect was the firm hold which the sovereigns managed to retain over baronial castles. In Normandy, the dukes had Feudalism, 101 kept the right of garrisoning such strongholds ; in England a licence from the king was held necessary, and castellatio sine licentia appears in the " laws of Henry I." as an offence which put a man "at the king's mercy." Stone castles, indeed, had never been built in England before the Conquest ; and of the forty-nine which appear in Domesday, thirty were in the king's hands. The worst feature in the lawlessness of Stephen's reign was the building of hundreds of castles by barons of the king's party with his permission, and soon by every baron who was able to do so. In these castles were wrought the worst of those iniquities which made men say that Christ and His saints slept. "All became forsworn and broke their allegiance," cries the English chro- nicler ; " for every rich man built his castles and defended them against the king, and they filled the land with castles. They greatly oppressed the wretched people by making them work at these castles, and when the castles were finished they filled them with devils and evil men." Among the conditions of the treaty of Walling- ford was the destruction of such adulterine, or unlicensed, castles ; and Henry carried out his purpose at the beginning of his reign, in spite of a vigorous opposition which forced him to lay siege to several of the fortresses. Such as were IO2 Feudalism. allowed to remain were either garrisoned by the king, or put under castellans approved by him. (3) Private As to the right of coinage but little need be said. It was generally and rightly regarded as a most essential prerogative of sovereignty, and it was one of the rights which every king, as soon as he was able, reserved to himself. But while the French monarchs did not succeed in this until the end of the fifteenth century, so that, for instance, in the reign of Louis IX. there were as many as eighty lords who struck coin for their own territories, in England, except in Stephen's reign, the royal monopoly was never attacked. Under Stephen, baronial mints appeared, with all the other feudal abuses. "There were as many kings, tyrants rather, as there were lords of castles," says a contemporary writer ; " each had the power of striking his own coin, and of exercising, like a king, sovereign jurisdiction over his dependents." Coins remain which were issued by Henry the great bishop of Winchester, and by Robert of Gloucester. But Henry II., in the treaty of Wallingford, insisted on the removal of adulterine coinage as well as adulterine castles, and from his reign England has possessed a uniform royal currency. Dangers g o f ar ^ e dangers we have been enumerating peculiar to England, were dangers which attended feudal tenure in Feudalism. 103 all countries. But the hardest part of William's task lay in overcoming dangers peculiar to England. England before the Conquest seemed on the point of splitting up into three or four The great semi-independent principalities. This was an ea evil which had been growing for two centuries ; for scarcely had the early separate kingdoms disappeared, before the old provincial feeling and the weakness of the central authority led to the creation of great ealdormanries. These ealdormanries, known later as earldoms, com- prised several counties ; and around the families which gained hereditary possession of them, all the old feelings of local patriotism and provincial independence speedily revived 1 The disasters of Ethelred II. were due largely to his untimely attempts to overthrow these too powerful magis- trates. Canute, on the contrary, taking up rather an imperial than a national position, accepted the fact of provincial separateness, and perhaps thought that disunion would make it more easy to rule. At any rate, during his reign England was divided into four great earldoms Northum- bria, Mercia, Wessex, and East Anglia. Three great princely houses arise whose struggles make up the history of the Confessor's reign that of 1 Compare Green, " Conquest of England," p. 304 ; and map of " England under the Ealdormen," 0-316 IO4 Feudalism. Siward in Northumbria, of Leofric in Mercia, of Godwine in Wessex. East Anglia is tossed from side to side, held now by a son of Leofric, now by a son of Godwine, with the shifting fortunes of the rival families. William's It was, therefore, a question of the gravest moment what action William should take in the matter of the ealdormanries. If, relying on his power to make the earls his servants, he continued the old system of dividing the country into three or four provinces, it was likely that the Norman magnates who thus gained over many shires the power of ealdormen in moot and fyrd would succeed in creating hereditary principalities. But William proceeded very cautiously. An earl, Ralph Guader,was appointed in East Anglia, and no change was at first made in the character of the office. But to none of his followers would he entrust the earldom of the whole either of Mercia or Northumbria. Mercia was divided between Hugh of Avranches, as Earl of Chester, Roger of Montgomery, as Earl of Shrewsbury, and Roger of Breteuil, as Earl of Hereford ; Northumbria was partitioned between Alberic, Earl of Northumberland, and the Bishop of Durham ; Wessex he kept in his own hands. This explains the significance of 1075- the conspiracy of the earls in 1075. Two of Feudalism* 105 the men just mentioned Ralph Guader, whose earldom of East Anglia had always been in- ferior to the other three provinces, and was getting narrowed to Norfolk ; and Roger of Breteuil, who would fain turn his earldom of Hereford into an earldom of Mercia com- municated their plans to Waltheof, whose name, as son of Siward, would they thought win them popular support. "Let us," they proposed, " restore England to the condition in which it was in the time of that most pious King Edward ; let one of us be king, the other two dukes, and so let us share all authority in England between us." But the revolt was soon suppressed, with the aid of the bishops and of the English, who thus early saw that in the undivided authority of a single ruler lay the only hope of good government If William needed to be taught the dangers of government through earls, this experience was a sufficient lesson. Henceforth the earldoms become merely titular dignities ; the earls cease to have any connection with the shires from which they are named ; they no longer command the host of the county, or preside in its court. Stephen's creation of merely nominal earls, supported by Exchequer pensions, completed the change ; and in later reigns it was not from the jurisdiction io6 Feudalism. of the earls, but from that of the sheriffs, that dangers appear. Scattered Even without the power which the authority estates. Q f ea id orman WO uld give to a baron set on aggrandizing himself, it might seem that the mere possession of large estates would tend to make the great feudatories semi-independent. But this was prevented by a circumstance which, taken in conjunction with other acts of the Conqueror, we can hardly help attributing to definite policy, viz. that the lands granted to each of the great barons were scattered over many counties, and seldom lay near together. Some forty great vassals are prominent above the rest for the extent of their possessions, but in every case their manors are distributed over more than six counties, and several have them in as many as twelve or fourteen. William's policy as to the earldoms had prevented England from being split up into three or four great principalities, comparable to French duchies ; by this method of distributing his grants he avoided the creation even of fiefs comparable to Norman counties. For, a lord whose manors were scattered over six shires could not round off his territory into a compact whole ; he could not, as we have before seen, create a central court for his manors ; and what was still more Feudalism. 107 important, he was watched and checked by half a dozen sheriffs, each ready to summon the fyrd and the lesser tenants-in-chief to overcome revolt And this mention of the sheriff suggests increased another important element in the policy of the "' a> Norman kings. Their rule gave England a central administrative system incomparably stronger and better organized than anything that appears in the later Saxon reigns ; and William soon recognized the value of the sheriffs as the local ministers and agents of this central government. The office of sheriff, the special representative of the king, was as old as the shire itself; but his office had always been of quite secondary importance when compared with that of the ealdorman who stood in the place of the old tribal chieftain, and still more when com- pared with that of the ealdorman of later times, who ruled over several counties. But now the great earldoms disappear, and even the earls bearing titles derived from shires cease to have any official connection with those shires, except that they receive a third of the fines. The sheriff becomes the commander of the national militia and of the lesser tenants-in-chief in his shire; and the withdrawal of the bishops, after the separation of the spiritual and secular courts, io8 Feudalism. leaves him alone in the shire-moot Not that this arrangement was entirely free from risk ; in some cases the office of sheriff became hereditary, and when to this was added the possession of great estates in the county, a power grew up dangerous to the state ; but this belongs to a later period. That the sheriffs were believed to help in the maintenance of good order is shown by the fact that their restoration was one of the terms of the peace of Wallingford. The To such a policy the creatipn of palatine ^arMoms. earldoms was an exception for the sake of the national defence Chester and Shrewsbury against the Welsh, Durham against the Scotch, and Kent against France. But the palatine earldom of Kent disappears with the fall of Odo ; and the banishment of Robert of Belesme put an end to that of Shrewsbury. In Durham the bishop, in Chester the earl, were the lords of all the lands in the county, issued writs, and held baronial courts. These made the nearest approach to the position of a great continental feudatory, and even of these one was a church- man who could not found a family, j Summary. We can now answer the question with which we set out. The Norman Conquest did make England a feudal state in the sense of in- Feudalism. 109 troducing feudal tenure with many of its con- sequences ; it did not make it a feudal state in the sense of making its government feudal. We have seen how William prevented what might have been the worst results of the Con- quest. But without the Conquest England would inevitably have fallen asunder into a number of principalities, and union would have been harder to secure even than in France. From such a fate the strong hand of William saved this country. The old Saxon princely houses were destroyed, and no Frenchmen were allowed to take their places. An alliance with the Church and the support of the English enabled the Norman kings to establish and maintain their authority. Their success must not be wholly ascribed to politic measures ; it must not be forgotten that the England they had to rule was but a third of policy the size of France, and that its population was far more homogeneous ; therefore the distance over which royal authority had to be exercised was less, and provincial feeling was weaker. But much we must attribute to conscious policy. The maintenance of the old theory of sovereignty, the retention of the old national courts and array, gave the king weapons of which we can trace the use. And, as the result, "a power- HO Feudalism. ful and well-served monarchy, and a baronage relatively feeble, were the two important charac- teristics which distinguished England from other European states." 1 Future Such a result was full of hope for the future. quences. The overwhelming power of the king, especially after Henry II. had armed monarchy with an all-reaching administrative machinery, led to despotism, and despotism to revolt. The weak- ness of the barons made it alike necessary and possible for them to obtain the aid of the great body of the people in their revolt ; and from this united opposition sprang the mediaeval parliamentary constitution. The English par- liament, again, would have been very different from what it was, had not the towns been kept from assuming an isolated position by a royal authority which would protect them from the barons ; and had not national institutions, notably the county court, been retained to unite the various classes of Commons.'' Royal We ask, finally, what had all this " policy " to P th?dM d do with the mass of the innabitants of England, life of the the small landholders, the socagers and villeins peopu. 1 Cf. "Le Parlement en Angleterre," by E Boutmy, in the Revue des Deux Afondes, clxxvi. 90 (1886), where an interesting contrast is drawn between England and France in the eleventh century. Feudalism. ill and townsfolk, above whose heads it was being worked out ? for we are only too apt to think of " constitutional development," and to forget the condition of the people. What the people craved was that they might be allowed to labour in quiet, safe from the violence of the strong. Perhaps the most pathetic figures in the Middle Ages are the preachers of peace who ever and again appear, like that carpenter in Guienne in the twelfth century, with banner bearing for inscription, " O Lamb of God, grant us Thy peace ; " or that monk of Vicenza in the thirteenth century, who, reminding men of the words, " Peace I leave with you," reconciled the cities and factions of Lombardy. 1 They created peace for a time, but the evils of private warfare and lawlessness quickly re- turned. By the truce of God the Church tried to do what the state had failed to do to secure that men should feel themselves free from pillage at least for two or three days each week ; and its work was almost in vain. We owe it to the strong policy of the Norman kings that a better state of things was established in England. "Among other things is not to be forgotten the good peace he made in this 1 Robertson, "Charles V.," Proofs, 21; Symonds's "Renaissance," i. 551. 1 1 2 Feudalism. land," says the English chronicler of the Con-' queror ; of Henry I. in like manner: "No man' durst misdo against another in his time. He made peace for man and beast." Orderic puts the matter simply : " The foremost counts and lords of towns and audacious tyrants he craftily overpowered ; the peaceful, the religious, the mean people he at all times kindly cherished and protected. ... He always sought peace for the nations under him, and rigidly punished with austere measures the transgressors of his laws." The reign of Stephen, when the nobles " fought among themselves with deadly hatred, and spoiled the fairest regions with fire and rapine," seemed all the darker by contrast But with the accession of Henry II. the time of troubles was over ; " peace and justice were recalled." The English had much to bear from their new masters; the pressure of government was heavy and constant ; but in the maintenance of the peace of the country they found a suffi- cient recompense. ESSAY III. THE ANGLO-NORMAN AND ANGEVIN ADMINIS- TRATIVE SYSTEM (HOO-I265). THE essential divergence between the history character of England and that of the continental states n ii s ^ is shown as clearly in the twelfth and thirteenth centuries as at other epochs. Beyond the Channel the danger to society lay in the pre- dominance of feudalism, which at first seemed likely to prove fatal alike to royal power and to municipal liberty. On this side of the straits of Dover the fear was that the inordinate development of the authority of the king would reduce all the other elements of the constitu- tion to impotence. Henry I. was obeyed with a punctuality on which no contemporary sovereign of Christendom save John Comnenus in the far East could reckon. So firmly had the English administrative system taken root by the middle of the twelfth century, that not I H4 The Anglo-Norman and even the anarchy of Stephen's reign could break it down. Henry II. was the most powerful king in Europe, not so much from the extent of his dominions, as from the order in which he kept them. Even the weak Henry III., when backed by the forces of administra- tive tradition, was formidable enough to task the whole energy of the nation in his repression. strength What then was the system which rendered English the English monarchy so strong, in the days adminis- w h en other states were suffering from the worst tranve system. evils of feudal anarchy? It was a system the essential principles of which lay in the complete subordination of all the branches of the administration to the royal power, and in the ease and certainty with which that power could make itself felt throughout the land. It reduced the dangers of feudalism to a minimum, by vigorously enforcing the direct jurisdiction and authority of the sovereign over all his subjects, great and small. It drew into the exchequer all the proceeds of feudal dues and incidents ; but it secured, by means of a separate scheme of national taxation, that the king should never be entirely dependent on his feudal revenues. It retained the power of calling feudal levies into the field whenever it might be necessary ; but it relied also on a Administrative System. 115 national militia, raised by the king's own officers, and drawn from the whole body of freemen. By rendering the king independent of the support of his baronage both in military and fiscal matters, it took away the two great levers by which the forces of feudalism could hope to overturn his throne. Consequently it required something more than a revolt of the tenants-in-chief to curb the tyranny of a John or end the misgovernment of a Henry III. To prevail over the royal power, the baronage had to ally itself with the nation ; and when Magna Carta was exacted and confirmed, it .was not feudalism which profited. There resulted from the victory not a relapse into anarchy, but the establishment of a new form of constitution, in which neither the king nor the baronage held undisputed sway. From the reign of Edward I. onward, the Commons no less than the sove- reign and the greater nobility, have an appre- ciable influence on the conduct of affairs, Let us now turn to the details of this adminis- trative system, which made the King of England master in his own land, after a manner of which continental rulers could have no conception. As the supreme legislative and judicial body !** Great in the realm, we have the King's Great Council, which carries on in a measure the traditions of Ii6 The Anglo-Norman and the old English Witenagemot. But while the Witan had been essentially national, and had possessed in all matters a power almost co-ordi- nate with that of the king, the new Great Council gradually grew into a semi-feudal body of the tenants-in-chief of the crown. No violent break appears between the two institutions, because the bishops and landed magnates who would natu- rally have appeared at the Witenagemot were precisely the same persons as the great tenants- in-chief who came to the Great Council. The lesser tenants-in-chief, who in theory were sum- moned to the Great Council as much as their more important compeers, did not in reality present themselves. Thus the assembly, though gathered on a new theory, presented an appearance very similar to that of the body which it replaced. Three times a year, on the great Church festi- vals of Christmas, Easter, and Whitsuntide, the Anglo-Norman king summoned his Great Council around him, and " wore his crown in public " at the solemn session. His projects, legislative and financial, were laid before the assembly, and passed by its " counsel and consent ; " while the more important judicial cases, which had by process of appeal come up to the highest tribunal of the realm, were tried and decided by the same body. Even greater importance attached Angevin Administrative System. 117 to the Great Council as the body which chose the king. The reigns of all the four Anglo- Norman kings opened with a disputed succession, and the successful prince in each case insisted, not on his hereditary right, but on the fact of his election. It is true that the councils which elected Henry I. and Stephen were mere shadows of the bodies which they pur- ported to represent, hastily summoned and meagre in numbers, yet on their authority rested the claim of the newly chosen king. A ruler whose title was bound up with the rights of the assembly which had crowned him could not avoid perpetuating the elective theory of kingship a theory which goes far towards miti- gating absolutism. The French kings who for eight generations passed their crown on in hereditary succession from father to eldest son,, were for the moment, indeed, powerless before their baronage ; but by the undisputed trans- mission of the royal power for so many years they caused the fact that the French throne was elective, no less than the English, to pass into oblivion ; and thus laid up for their descendants claims of divine right which could not be foisted on England. The Great Council could not always be in TTu session, yet there was continually needed some 1 1 8 The A nglo-Norman and body which should exercise a general control over the administration of the realm, and take off the king's hands the details and drudgery of government. Around the person of the sovereign were grouped a body of officials and advisers (representatives of the old royal "minis- tri " of Anglo-Saxon charters) who fulfilled this purpose. Collectively they are known as " Curia Regis," a name which the Great Council also claimed for itself. Apparently they could be considered as a permanent committee of the larger and more authoritative body, and could therefore employ its name. But, though enjoy- ing administrative and judicial authority, they could, of course, make no attempt to trench on the legislative power of the Great Council, or to assume its privilege of sanctioning extraordinary taxation. The members of the Curia Regis fall into two classes. The first consisted of the great officers of the royal household, whose privileges in England (just as in Germany and France) soon became hereditary. These were the constable, chamberlain, steward, marshal, and butler, whose positions descended in the fami- lies of Hereford, Oxford, Leicester, Pembroke, and Arundel. But these functionaries were by no means the most important part of the Curia. If the king had been compelled to act through Angevin Administrative System. 119 them alone, his power could never have estab- lished itself with that firmness which charac- terized Anglo-Norman and Angevin rule. The fact that the offices were hereditary, and their holders great nobles, would have rendered the control of the king over them almost nugatory. The really important members of the Curia Regis were those who were purely royal nomi- nees, appointed by the king and removable at his pleasure. These were the Justiciar, Chancellor, and Treasurer, with some other less dignified officials who bore no special title, and appear as "judices," "ministri," "barons of the exche- quer," etc The Justiciar a capitalis justitia," was in Eng- The jut- land, as in Sicily and Aragon, the second person in the realm. He was not only the head and president of the supreme legal court, as his name shows, but also a permanent prime minister, and the king's chief represen- tative. Whenever the king was over-sea en- grossed in the affairs of his broad lands in France, the Justiciar was regent in England, "vicedominus totius Angliae," and exercised the royal authority in his master's behalf. When the sovereign was at home, the Justiciar, besides presiding in legal business the amount of which was enormous in a country like England, where I2O The Anglo-Norman and the privilege of appeal to the supreme court was frequently granted acted as the confidential minister and chief of the executive. The Anglo- Norman kings, while feudalism was still danger- ous, avoided placing the justiciarship in the hands of laymen or nobles. Such officials could not have been trusted with the all-important charge. They chose for their prime ministers Churchmen, usually men of humble fortunes, whose sole claim to their position rested on royal favour. Both as ecclesiastics and as " new men " the justiciars felt no temptation to play into the hands of the baronage, and kept firm to their allegiance to the king, to whom they owed everything. William II., the most unscrupulous of men, found his fitting right-hand-man in the rapacious Ranulf Flambard. Henry I.'s reorganization of the administration was carried out by the firm hand of Roger of Salisbury. The anarchy of Stephen's reign is marked by the temporary dis- appearance of the office a fit sign that the king's writ had ceased to run throughout his realm. Henry II., when feudalism had made its last struggle in vain, was able to take the new step of nominating laymen even laymen of rank to the justiciarship. His baronial nominees, De Lucy and Glanvil, did not belie his confidence. To the first the rapid and energetic suppression Angevin Administrative System. 121 of the rebellion of 1173 was due, while the latter was not only a strong-handed regent, but also the author of our first English constitutional treatise, the "De Legibus et Consuetudinibus Angliae." During the reigns of Richard I. and John, and in the early years of Henry III., the office was more frequently in lay than . clerical hands. Geoffrey Fitz-Peter, John's great justiciar, and Hubert de Burgh, the noblest figure in the first decades of Henry's reign, give us a new development in the history of the office, appear- ing as checks on their masters' power rather than his mere instruments. This aptly marks the fact, that the irresponsible exercise of the royal power rather than feudal anarchy had become the great danger for England, so that a patriotic minister would feel more concern for the constitution than for his master. So strong was the popular feeling in their favour, that John never ventured to disgrace Fitz-Peter, while Henry's attempt to oppress De Burgh met with the strongest resistance. Hubert, however, was the last of the great justiciars ; the successor whom the king appointed to him Stephen de Segrave was chosen for his obedience rather than his abilities, and was hounded out of office by popular clamours. He was more of a lawyer than a politician, and his successors continued 122 The Anglo-Norman and to develop the legal rather than the administrative side of their functions. By the reign of Edward I. they had become the " Lord Chief Justices " whom we know so well, and their political im- portance had passed to the chancellors, who were now the first ministers of the crown. The . The chancellor had originally been the king's tktuiaffor. private secretary ; seated behind his screen (cancella), he made out writs, took minutes, and applied the royal seal to documents. Like the justiciar, he was at first almost invariably a Churchman, one of the king's chaplains, nor was it till the fourteenth century that lay chancellors appear upon the scene. Gradually the chancellor became a more important functionary ; from being charged with the king's correspondence, he grew to have a considerable share in settling what that correspondence should contain. Becket, when chancellor, " had fifty clerks under him, and was reckoned second from the king in the whole realm." M He might be reckoned," says Dr. Stubbs, " as a sort of secretary of state for all departments." In the thirteenth century the chancellor began to take the position of the justiciar as prime minister, and his disuse of his. own old functions is shown by the fact that Henry III. first of all English kings, kept a " secretarius," as a natural consequence of his Angevin Administrative System. 123 chancellor having higher matters than corre- spondence in his charge, and being compelled to abandon the care of details. The justiciar, as we said before, sank into a purely legal official by the time of Edward I. ; but it was well-nigh four hundred years before the chancellor suffered the same fate ; and as bearing on his position, it is worth while to remember that the last clerical chancellor held office as late as 1625 (John Williams, Bishop of Lincoln). The third of the great offices whose gift lay Tfu in the hands of the king was that of the tr Treasurer, who had charge of the royal hoard at Winchester, and presided over a staff of officials charged with its administration. In sittings of the Exchequer Court, he was considered to be even more directly charged than the other members with the care of the exact accuracy and due observance of forms at the board, and he was thus brought into closer contact with the sheriffs than his companions in the committee. Besides the eight officers whose names we Other have detailed, the Curia Regis consisted of a number of minor functionaries, who, according to the functions which they happened to be exercising, appear as " barons of the exchequer," "justices," or, if they were ecclesiastics, as " king's clerks." 124 The Anglo-Norman and functions The whole body of the Curia Regis, high an d l w fulfilled at least three functions con- sultative, fiscal, and judicial. So little had the different parts of government been yet differen- tiated, that it seemed right that the same men should act as the king's privy council, as the commissioners of the treasury, and as the justices of the highest court of appeal in the realm. To realize this curious fact is the first difficulty for the student of the Anglo-Norman administrative system. The exchequer court and the privy council are merely the same men sitting in two different chambers, to deal with two different subjects ; and similarly, the man who, when he is dealing with figures, is a " baron of the exchequer," becomes a justice when he deals with legal questions. From this one body of advisers, administrators, and judges we may trace the development of institutions which now seem as far apart as institutions can be the ministry, the courts of law, and the great government offices like the Treasury or the Foreign office. The Curia Regis followed the king during his presence in England, moving with him, and sitting wherever he happened to be. As a privy council and a law court it sat as his movements dictated, but in its fiscal character there was a Angevin Administrative System. 125 difference. The " Court of Exchequer " either from the first, or at any rate from a very early date, fixed itself at Westminster to hold its great Easter and Michaelmas sessions. There, no doubt, the famous chequered table-cloth which gave the court its name had first been seen, and thither came the sheriffs with their cumbrous bags of silver pence to render their rents to the king. Of the business with which the Curia Regis was conversant when it sat as the Court of Exchequer we shall have to speak fully when dealing with the sheriff and the royal revenue. With its function again as a permanent and handy body of advisers, always at the king's side, we need not trouble ourselves, for the func- tions of all such councils are much the same. But of the judicial aspect of the Curia Regis The a short account is necessary. Before it ca firstly, all cases between the king and his tenants-in-chief ; secondly, all appeals when the parties in a suit imagined that the popular courts had failed to do them justice from un- fairness or impotence, and were strong or rich enough to obtain leave to appeal ; thirdly, special cases called directly into court by the royal favour without having been previously tried in the shire-court; and, lastly, suits which, from 126 The Anglo-Norman and (i) Itine- rant jus- tices. (2) Court of King's Bench. (3) Court of Ex- thequtr. the new or abnormal character of the questions involved, had no precedent by which they could be tried before the lower tribunals. Such were the primitive judicial functions of the Curia Regis, but ere long it commenced to throw out sub-committees which were to develop into new courts. The first institution evolved was that of itinerant justices. Henry I. began to send out members of his Curia Regis to visit and hold pleas in the county courts, thus relieving the Curia itself of some of the cases which would otherwise have come up to it. Henry did this with no fixed system or regularity, but his greater grandson stereotyped the custom, and to it we owe our existing institution of justices of assize. It was Henry II. also, who chose out and fixed at Westminster five of the members of the Curia, two clerks and three laymen, "to whom he ordered the complaints of the people to be brought ; reserving for him- self as heretofore the harder cases, to be decided with the council of the wise." These new judges came to be known as the "Court of King's Bench," the main function of which grew to be the settlement of the king's pleas, or cases in which the king was concerned. Meanwhile the Exchequer, or fiscal session of the Curia Regis, had also assumed the secondary aspect of a Angevin Administrative System. 127 court of law, dealing with revenue cases, and all disputes concerning the financial side of the constitution. Lastly, by a clause of Magna Carta, the remaining judicial functions of the itinerant Curia Regis were taken from it by the article which stipulated that " common pleas should not follow the court, but be held in some fixed place." This leads to the insti- (4) Court tution of the Court of Common Pleas, which puyf r fP r e- landholders and their stewards, together with the reeve and four men from each township as representatives of their fellows. Being thus already composed in great part of delegates, it was easy and natural for the shire- moot to carry the principle of representation a step further, by choosing committees to represent itself. Such a delegated body, for example, were the " twelve legal men " or " knights " of the Constitutions of Clarendon, who were to decide whether dis- puted lands belonged to the Church or not; the four knights who were to begin proceedings at the judicial iter of 1194; and far more im- portant the " four discreet men of the county," who were to meet John at Oxford in 1213, "to 148 The Anglo-Norman and talk with him concerning the affairs of the king- dom." This last should be specially noted as the first attempt to make the Great Council representative rather than feudal. For if to that assembly there once came men who were not tenants-in-chief, but representatives of each county, the whole character of the supreme deliberative body of the realm would have to be altered. It would be a prototype of the modern representative parliament, rather than a development of the feudal institution which figured in twelfth-century history. It is pro- bable, indeed, that these " four discreet men " of 1213 were chosen by the sheriff rather than by the full county-court ; but their importance lies in their representative function, not in the method of their election, and in the following essay we shall show how the idea thus sketched out by John's writ became the instrument of popular, not of royal influence. When, indeed, elected representatives were officiating in town- ship, hundred, and shire for other purposes for example, in assessing taxes like the " Saladin tithe" of 1 1 88 it was not to be supposed that they would not in course of time rise to fulfil the highest function of all, that of representing the shire at the Great Council. Turning to the judicial aspect of the shire- Angevin Administrative System. 149 moot, we find that during the twelfth and (3) Its thirteenth centuries its independent action w gradually being superseded by that of the king's itinerant justices. But this did not mean that royal authority was simply absorbing the last privileges of the English freeman. The crown of its own accord took the nation into partnership in this matter. We have already seen how it placed the holding of the " pleas of the crown " in the hands of a coroner chosen by the shire, in 1 194. The ordinary meeting of the county court, indeed, grew unimportant in comparison with those extraordinary meetings in which the itinerant justices appeared. But when the justices presided therein, the accused persons whom they were to try were " presented " by a jury of twelve knights or legal men from each hundred, who were in QO way chosen by royal influence, but were strictly representatives of the district Moreover, when the ordeals and judicial combats which survived far into the twelfth century finally fell into disuse, their place was filled by the finding of another kind of jury, who decided on the truth or falsehood of the facts which had formed the basis of the " presentment" made by the first jury. In these two bodies the one whose duty was present- ment, and the other whose duty was inquest 150 The Anglo-Norman and we have the origin of the modern grand jury and petty jury. The first secured that no man should come before the justices unless a body which ultimately represented the shire should hold that there was a prima facie case against him, while the second decided whether that case was borne out by the facts. Thus there was an ample check on the irresponsibility of the royal judges, and oppression was rendered difficult in ordinary times. It was only by the terrorism of a tyrant that the juries and the bodies which chose them could be so overawed as to make their functions in the courts formal and nugatory. Such oppression would not stand alone, but would be the manifestation in one province of administration of a general misrule which would render the ruler who employed it unbearable. Bad justice, in short, would be the forerunner of insurrection, wherein feudal and national elements would unite, to the confounding of the oppressor. Such a sequence may be found in the series of events which led up to Magna Carta- The towns. To complete the account of the local adminis- tration of England in the twelfth century, we must pass on to the towns, of which we have avoided much previous mention, in order to deal with their position in a single and separate section. In the days immediately after the Norman conquest Angevin Administrative System. 151 the English towns were simply townships, or clusters of townships, which differed from the humblest villages only in two respects. Firstly, 77/> they had obtained the right of having a fixed " Firma Burgi," and were thus aware of the maximum demand which the sheriff could legally make on them for that particular item of the royal revenue. But for other exactions, being considered to be in royal demesne land, unless they were formally in the hands of one of the great tenants-in-chief, they were still liable to the sheriffs oppression. Secondly, for judicial purposes the towns had been " made equal to hundreds;" that is, their inhabitants did not appear at the moot of the hundred in which they were locally situate, but had a "port-moot" of their own, which was equal in status to a hundred-moot To endeavour to get rid of the sheriffs tax-collecting visits, and to turn him out of the port-moot, were the objects of all towns, and attempts to secure these ends are the first marks of progress toward municipal liberty in England. To be able to treat with the king, and to guarantee to him the superior profits which alone could induce him to grant the town the boon it craved, some responsible body had to be found. As to the identity of that body, the most various views have been held, but it 152 The Anglo-Norman and is safest to hold with Dr. Stubbs that the organization which treated with the king com- prised the fully qualified citizens of the place, the "tenants in burgage" of the crown, who held lands and houses within the borough, and formed the port-moot. This body, if it bound itself by association into a definite un'ity, would be called a " communa," and the right to form a "communa" is, therefore, the first which a town would crave. Throughout the twelfth century the various centres of population in England obtained charters making them responsible for their own ferm, and free from certain specified forms of exaction by the sheriff. As early as lioo, London obtained another grant in the province of judicature. This was the charter of Henry I., which practically gave the city authority over the whole shire of Middlesex, by conceding to it the right to elect two sheriffs, who were to be responsible for all within the county boundary, just as were the sheriffs of other shires. Of course, when the representative of the crown became elective, the oppressive charac- teristics of his office gradually disappeared. But in this matter London was far ahead of all other towns. The very inferior privilege of exemption from the ordinary meetings of the county court was not obtained by other places for a century, Angei'in Administrative System. 153 and freedom from those more important county courts where the itinerant justices appeared, was never won at all, save by those cities which in far later times came to be reckoned as " counties in themselves." The English borough constitutions are of a Their ton- most composite and confusing character. This ftitutjons - results from the interfusion of the systems of the old township, the communa, and the guild. Of the two first we have spoken ; the last requires a few words. Guilds with social or religious purposes have already been mentioned as characterizing the period before the Conquest But it is the Guild Merchant, or association for trade purposes of the citizens of the town, with which we have now to deal. All fully privileged inhabitants of the town being members of the guild, its personality was at first practically the same as that of the town itself, so that a charter to the guild was much the same as a charter to the "communa" of the place. Richard I., for example, heads his charter to Winchester as granted "to the men of Winchester in their MercJtant Guild" instead of to the citizens. The organization of the guild was that of brethren electing aldermen, and from the early identifica- tion of the guild with the town, comes the fact that the name of alderman is now found as that 154 The Anglo-Norman and of a municipal dignitary, though the first bearers of the title were but the chiefs of a trades union. For such, in fact, was the original meaning of the guild merchant. In the thirteenth century the guild became so much the shape in which the town's identity was imagined to lie, that it obtained permission to make its own bye-laws binding on all the community. But presently as the guild merchant grew exclusive, a class arose, mainly from immigrant villeins from the shires, who were not included in it, and between the privi- leged and the unprivileged a bitter strife grew up. The alderman therefore, was the representative of the guild ; the mayor, on the other hand, was the representative of the "communa" of the place ; for the last and crowning privilege of a town constitution was that its " communa " should be " concessa" i.e. not a mere private association, but a body made legally recogniz- able, with the privilege of choosing a mayor as its formal head and representative. The town councillor, on the other hand, has an older pedigree, representing the old organization of the township with its leet-jury, before communa or guild had been thought of. The development of the constitutions of the various English towns was most irregular. In the twelfth century every different stage of Angevin Administrative System. 155 immunity from the sheriff's interference, and every form of judicial independence, was con- temporaneously existent London had a mayor and communa when many other places had barely compounded with the king for their " ferm," and all the intermediate degrees between those two points could be illustrated. But by the reign of John even the least privileged place had at any rate acquired a personality and legal status, if nothing more ; and thus it was possible for the English towns to take that important place in the politics of the realm which they assume after the reign of Henry III., a place which as mere townships they would never have occupied. Having never felt the evils of feudalism, but Opposition as having fully experienced the disad vantages towns to of the strong hand of the royal official,* towns had their own particular bent and poli- tical notions. These tended towards opposi- tion to the crown, so soon as it was clear that the strength of the crown was no longer needed to prevent the chronic outbreak of feudal anarchy. The last throes of that struggle had been seen in the rising of 1 174. It is from that * We should except from this general statement towns like Leicester or St. Alban's, which were not in royal demesne, but were subject to a lord, lay or spiritual 156 The Anglo-Norman and date, then, that we may vaguely trace the desire to curb the royal power as arising in the boroughs. Naturally, therefore, they take sides with the baronage in the reign of John, and their parti- cipation in the struggle against tyranny is marked by the name of the mayor of London, placed half-way down the list of the great twenty-five who undertook the enforcement of the instrument of English liberties. Summary A few words suffice to sum up the general course of English constitutional history in the times of the Anglo-Norman and earlier Planta- genet kings. We have investigated the leading characteristics of a period whose main feature is the development of administrative organiza- tion. We have seen how, while feudal separa- tion reigned over the greater part of Europe, one state at least was guided into a centralized and bureaucratic autocracy, in which all things ultimately depended on the will of the king. Yet from the very moment at which the crown won its last victory over feudalism, another movement begins to make itself felt. As long as anarchy had been impending, any firm central government even an oppressive one would be received with acquiescence by the nation. But when the danger was over, the heavy yoke of the Anglo-Norman administrative system Angevin Administrative System. 157 began to seem more burdensome When the working of its machinery came under the control of a versatile but callous and reckless tyrant, who was ready to utilize all the opportunities for oppression which it afforded, baronage and people alike rose in revolt. But the revolt is orderly : the baronage do not demand a return to feudal anarchy ; the people do not commence a Jacquerie. The one take their stand, not on local independence, but on their legal position as advisers of the crown ; the other borrowing a term from the borough constitution speak of themselves as the " communa " of the whole realm ; the orderly association of all freemen, not the tumultuous assembly of insurgents. Order and legality, however oppressive they had been in the government, had so impressed themselves on the nation, that even its revolt was legal and orderly. It formulates its demands as the accurate definition of already existing rights, not as the grant of fresh privi- leges ; and all English reforms ever after have taken this same shape, as assertions of old customs, not as new departures towards ideal principles. Magna Carta aims at the practical redress of visible wrongs, not at the establish- ment of a limited monarchy or any other theoretical end. This was its strength and its 158 Anglo-Norman Administrative System. weakness. Its strength lay in the clear and business-like way in which the means are adapted to the end, showing that its framers knew exactly what they wanted. Its weakness is seen by the fact that it provides no permanent machinery for keeping the conduct of affairs in the same line in which they had been set, and by its neglect to guard against the recru- descence of royal tyranny in new forms. There- fore the struggle was not ended by the charter, but had to be fought out again fifty years later. It was not till the permanent and regular check of a representative parliament replaced the inadequate check of a feudal "Great Council," and the irregular ultima ratio of armed revolt, that the overgrown power of the king, backed by the machinery of the Anglo-Norman admin- istrative system, was reduced to a fair balance in the equipoise of the constitution. ESSAY IV. PARLIAMENT. THE government of England has never been Relations T T between the theoretically a despotism. However great in king and actual practice the king's power may have been, there was always a central assembly, whether called the Witenagemot or the Great Council, the Carta. members of which were never dependent for their right upon the mere personal will of the sovereign, and whose counsel and consent were theoretically necessary to all legislation. It has been pointed out in a former essay how the Great Council became feudalized, and the king compelled to find his strength outside the feudal council. The result was that the king assumed the position of protector of the people, and sought to upset the baronage by fostering a central power based upon the popular institutions of the country, strengthened and 160 Parliament. drawn into intimate contact with the royal government The measures of Henry I. and Henry II. the establishment of itinerant justices, the creation of a new class of official baronage, the destruction of the great feudal liberties, the development of the jury system all helped to make the royal power a pure despotism, of which the whole people had become the willing instruments. But the danger of this position was apparent on Henry II.'s death. The king was now so powerful, both inside the kingdom and also in the consideration of foreign nations, that it was easy for an unpatriotic sovereign to play the tyrant. The frequent absences of Richard I. left the working and consolidation of his institutions in the hands of ministers whose primary object was to please their absent master ; and at John's accession we find how the misuse of the royal power challenged the nation to display all its capacities of resistance and, finally, of unity. The situation which gave an opportunity for this was entirely of John's own making. The power of the feudal baronage had been broken. The royal authority was popular in England, and associated with tradi- tions of success. The Church had supplied the king with his most useful ministers. There was no disposition among the various elements of Parliament. 161 society to combine together ; and all the profes- sional skill in administration was enlisted on the side of the king. Sixteen years of John's National rule threw all these various elements into an irresistible national combination. The loss Normandy equally deprived the baronage and the king of external aid, set the king face to face with the people, and raised the two im- portant questions of foreign favourites and of foreign service. The surrender of the kingdom to the pope forced the clergy into a definite attitude. Hitherto they had been the opponents of oppression in all forms. Now that the alli- ance of their two masters had cut off the pos- sibility of appealing from the nearer to the more remote, they had to choose between two con- flicting duties that which they owed to the pope, and that which was due to their country. To these two causes was added the generally oppressive working of the system which Henry II. had placed in the hands of the king. The people now began to regard the king as their greatest foe instead of their protector. In the face of a common danger all classes drew gradually together. The king had alienated even the official baronage, the trained ad- ministrators of the country, whose duty it was to guard the traditions of government. Under M 1 62 Parliament. their leadership these traditions were reduced to writing and forced upon the king. The impor- result was Magna Carta, purporting to be no- 'i/aTOi thing new, but merely the declaration of old law. Carta. Some of its provisions had been for generations among the recognized customs of the country ; others had grown recently out of the exigencies of the time. It was useful to have a definite statement of the customs of the land to which all classes could appeal. Such a code is the mark of transition from the stage of organization to that of law. But the chief importance of the charter does not consist in this. It consists rather in the witness which that document bears to the rearrangement of the political forces of which it was the result This was the work of the period which runs from the granting of the charter in 1215 to its final confirmation by Edward I. in 1297. Thefmdal No constitutional advance was possible so 'become* l n as ^ Q efforts of the popular leaders could national. b e neutralized by the action of a royal council composed of foreigners and favourites. The loss of Normandy and the feeling of national unity which had found expression in the charter, gave redoubled meaning to the outcry against the employment of strangers in the government. The king, on his side, was equally determined Parliament. 163 to revenge himself for the desertion of the official baronage by forming a body whose foreign origin should render them entirely de- pendent on himself. It was the question of personal as opposed to national rule which was in debate, and it is because the barons do not at first understand this that the struggle lasts so long. They treated the whole matter as one between themselves and the royal favour- ites jwho stood between them and the offices which they regarded as rightfully theirs. For the personal rule of the king they only substi- tuted an oligarchical government composed of the most important members of their own body. Their internal quarrels increased the confusion of the country. The machinery of government became an elaborate system of committees, composed for the most part of the same series of members. But this was not all. Magna Carta had drawn a distinction between the greater and lesser tenants-in-chief, who were all equally entitled to be consulted in matters of taxation. There was considerable risk that the most power- ful section of the baronage would recur ,to the old feudal, anti-national position. There was also a danger that the remainder of the tenants- in-chief would form themselves into a caste. In this state of things it was more than probable 164 Parliament. that the struggle for power would end in a mere scramble for booty, and that the charter would thus have increased the division between classes, instead of drawing'them closer together into a national bond. That such was not the result was mainly due to the activity of the knights in the county courts, and to the oppor- tune advent of the friars, whose self-sacrificing work tended in no mean degree to modify the selfish feelings which were fostered by the state of the political world. Formation It was by the formation of a party which national* could claim the support of both the lesser patty. tenants-in-chief and the friars, that the solu- tion of the constitutional question was worked out. The inadequacy of the constitution as arranged by Magna Carta could no longer be concealed. Henry merely used the lesser tenants- in-chief in order to recover his lost prerogatives from the hands of his self-imposed ministry ; but the power, when regained, was used, not for the benefit of his supporters, but to promote the return of the foreign kinsmen and the inter- ference of the pope. In the three years, 1261- 1264, the real solution of the difficulty was discovered. That solution was the outcome of a popular movement whose causes may be traced most definitely within these three years. Parliament. 165 In the first place, there was a section of the oligarchical party whose members, though im- pelled partly by ambition, had in some degree the welfare of the kingdom seriously at heart. Such men must have begun to understand that the only way of preventing the plunder of the people, either by king or barons, would be to give them a position inside the central organiza- tion of the state. Moreover, the pressure exer- cised on the people by the union of pope and king had begun to cause the people themselves to take active measures in their own behalf. The movement took outward expression in a number of rough rhymes, both in Latin and English, which were soon scattered broadcast over the country. Thus there had been found pens to formulate the popular complaints ; there were only wanting brains and hands to organize and enforce them. It was as yet early to hope for these within the body of the people. But now, as ever at a crisis, there were members of the baronage ready to espouse the popular cause. The conduct of the king rendered necessary the employment of force. Henry used the aid of the pope to absolve him from all pledges, and employed the credit of the country in the pursuit of purely personal aggrandizement The popular party 1 66 Parliament. Policy of came together under the leadership of Simon \\lontfort. de Montfort, and the battle of Lewes, in May, 1264, left De Montfort practically dictator of the kingdom. From May, 1264, to August, 1265, he was the first man in England ; and in that period he had succeeded in finding the method in which the constitutional question could be answered. Earl Simon's supporters were drawn from the ranks of the clergy, the knightly class throughout the country, and the commercial classes of the towns, whose trade had been ruined by the king's exactions at a moment when they were growing in organiza- tion and in wealth. The assembly to which he appealed for help was one composed of these elements. The higher clergy had been accus- tomed to attend the national assembly from time immemorial. On several occasions of late representatives had been brought up from the shire courts. But no king had yet thought of including the towns in the Great Council. No doubt the immediate reason for the sum- mons of the boroughs was the dearth of the baronial following on Simon's side, and the strenuous support which the townsfolk had given him. The occasion however found them fully prepared for the honour thrust upon them, since the methods of local government had Parliament. 167 familiarized Englishmen with the two ideas of representation and election. Such was the origin of the assembly, which foreshadowed the perfected Parliament of the three estates. But for Earl Simon the complete solution was not possible. He had fought as the head of a section both of the people and of his own class, but the inevitable break-up of a party founded on the twofold and generally incompatible basis of private interest and pub- lic utility did not necessarily mean that the movement had been without result The vic- tory lay with the royal party, but only remained with it permanently because the representa- tive of royalty in the future himself stepped forward as the exponent of those ideas which had been embodied in the popular movement. When, in 1295, Edward summoned the Par- The Model liament which became the model for all ^f 3 " future national assemblies entitled to that I2 95- name, and when in 1297, his last attempts at arbitrary power gave way in the presence of the organized national force which he had been so instrumental in moulding into shape, the lesson of the last eighty years had been learnt ; the rule of feudalism in any form whatsoever was at an end. The Confirmatio Cartarum was but the interpre- 1 68 Parliament. tation of the central article of Magna Carta, forced on the king by a growing and vigorous nation. Growth In order to understand the full significance r^ea"s. of the sta S e which the constitution had reached in 1295, it will be necessary to examine individually the several portions, or as they were technically called, Estates, of which the Parliament was composed. According to the mediaeval theory, these were three : (i) the spiritual estate ; (2) the baronage ; and (3) the commons. The assembly, so composed, was called together in strict accordance with defi- nite rule ; and it is because the forms observed in 1295 were those which ultimately became stereotyped upon the constitution, that we are justified in considering the assembly of that year as the first normal Parliament. I. The The first or spiritual estate, which comprised estate the whole body of the clergy, may be divided into two : (i) the lords spiritual ; (2) the lower clergy. (i) The The lords spiritual included the bishops, spiritual, abbots, some few priors, and the heads of two or three religious orders. The original qualifica- tion of the spiritualty to take part in national assemblies had been founded, like that of all members of the Witenagemot, on their wisdom. Parliament. 169 But after the Norman conquest, unlike the temporal baronage, they had merely added the claim of tenure without impairing the original title by which they had been called. At a moment when tenure inclined to be the basis of all political claims, the greater members of this hierarchy were the possessors of large baronies. They sat in the Great Council of the realm, side by side with the great barons. Their superior learning made them the most indispensable members of that body. To all outward ap- pearance they were barons, and a very formidable class of barons. But notwithstanding the importance and numbers of the spiritual lords, there were con- ditions which rendered it far easier for the king to limit both the number and the power of the spiritualty than that of the temporally. The sees of bishops had never in England become hereditary. Abbots and priors were usually glad to escape the burden of attendance at the Great Council. It was always, there- fore, possible for the king to send writs of summons only to those upon whom he could depend. The results of this were seen when the as- sembly, which had been founded on a feudal or a class basis, gave way to one which brought 1 70 Parliament. the whole nation face to face with the sovereign. All the bishops and the baronial abbots were still included among the members whose presence the king especially desired. The jealousy of the rest of the clergy on behalf of clerical im- munities, and the double relation in which they stood towards king and pope, led them to ignore the numerous and persistent efforts of Edward I. and his successors to give them a voice in the government of the land, and to meet, as an estate by themselves, outside the national as- sembly. (2) General We have seen that the bishops and higher c ^ Gr SY enjoyed their baronial tenure in common with those of the laity who were summoned to the national council. Nevertheless, they found themselves far more in harmony with the meaner brethren of their order than with the great barons with whom they were thrown. The whole body of the clergy was trained to common action in synods and ecclesiastical councils. Such councils were frequent, and contained a complete organization of the whole spiritual body, both prelates and cathedral chapters, archdeacons and parish priests. Moreover, not only had the clergy their separate courts, but in the acceptance and use of the canon law they were amenable to an entirely different code and Parliament. 171 standard of judgment. The sole point of political or constitutional contact which remained to any portion of the clergy with the laity, was now found in the baronies of the prelates and the abbots. So long as taxation fell upon the land alone, the bishops were forced into union with the temporal members of the central council. But when taxa- tion was extended so as to include the spiritual revenue obtained from tithes and offerings, the various ranks of the clergy were drawn together by an interest common to themselves apart from the laity. In matters of taxation it had been common for the king's officers to treat from time to time with the clergy in their ecclesiastical assemblies. But the more general character which taxation had now assumed, necessitated a more general machinery of collection ; and this was found in the summoning of the Convocations, begun by Stephen Langton in 1225, but not completed in form until 1283. By the final regulations the archbishop of each province issued summonses to his senior suffragan, empowering him to col- lect on a certain day, at a certain place, all the bishops, abbots, priors, heads of religious houses, deans of cathedrals and collegiate churches, and all archdeacons in person throughout the pro- vince, and at the same time to direct that there 172 Parliament. should be chosen in each diocesan synod two proctors to represent the clergy of the diocese, and in each cathedral and collegiate chapter one proctor to act on its behalf. Repruen- In early times the organization of the Church theclegy. had led the way for that of the state. Ever since Magna Carta, however, the two had ad- vanced together. Now that Edward I. desired to define the relations between the several estates of the realm, he sought to unite the two pro- vinces in one body. This was to substitute for two spiritual assemblies, one temporal represen- tation of the spiritual estate, and thus to transfer to the national council the temporal powers which had hitherto been wielded by a purely spiritual assembly. With this object in view, after several preliminary attempts at securing a partial representation of the clergy, Edward finally, in 1295, formulated a complete temporal representation of the spiritual estate. By a clause in the general writ to the clergy, known from its opening word as the " praemunientes " clause, 1 the king directs the bishops to pre- monish the clergy to appear with him in the Parliament in the following way : (i) The deans and priors of cathedrals and the archdeacons in person ; (2) one proctor as the representative 1 Stubbs, " Select Charters," p. 484. Parliament. 173 of each cathedral chapter; (3) two proctors as representatives of the clergy of each diocese. From the very first, however, the clergy showed great reluctance to obey this summons. The old feeling of the value and importance of clerical immunity from lay control still existed. For nearly thirty years, from 1314 to 1340, a separate letter was addressed to the two arch- bishops at the summons of each Parliament, admonishing them to compel the attendance of the clerical representatives. But, as far as the king's object was concerned, this extra summons had no effect The summonses of the arch- bishops to Convocation were obeyed : the sum- monses under the " praemunientes " clause were a mere matter of form, and the only result was that another session of the clerical Convocations was held under their usual form, which dis- charged their accustomed business of voting a free gift for the royal needs. The crown in the end accepted its defeat, and though to this day the praemunientes clause is inserted in the parlia- mentary writs of summons to the bishops, no further pressure ever has been put upon the clergy to bring them into the assembly of the estates. The qualifications by which a temporal peer //. Estatt acquired the right to sit in Parliament 1 74 Parliament. Quaiifi. three in number: (i) tenure by barony; (2) 'peers? receipt of a special writ of summons ; (3) crea- tion by patent (1) Tenure. The Great Council of the Norman kings had been composed of all tenants-in-chief of the crown. It was not long however before a dis- tinction arose in that body. Those of its mem- bers who were the possessors of a large number of knights' fees were especially dignified with the title of barons ; while the holders of a single knight's fee, the obligations of which were dis- charged by the personal attendance of the holder, had to rest content with the simple appellation of knight, which they shared in common with the whole body of tenants-in-chief and of knightly landowners who held of other lords. An attempt (2) Sum- has been made to show that this distinction existed from the first ; but as we have to note so often in English history, the practical differ- ence preceded the legal recognition of its ex- istence. This difference is found as early as the charter of Henry I. By the reign of Henry II. it is clearly marked. But its final recogni- tion is established in the celebrated clause of Magna Carta ( 14), which prescribes the mode of summons to the Great Council "summoned faciemus archiepiscopos, episcopos, abbates, co- mites, et majores barones, sigillatim per litteras Parliament. 175 nostras ; et praeterea faciemus summoned in general!, per vicecomites et ballivos nostros, omnes illos qui de nobis tenent in capite." The difference thus definitely expressed was shown in more ways than one. The barons, who were entitled to a special summons, were wont to deal in all money matters direct with the royal exchequer, instead of being merely handed over to the tender mercies of a royal official in the person of the sheriff, whose transactions were directed in accordance with certain definite rules. Moreover, the greater baron came to a military levy at the head of all his tenants, whereas his lesser brother-in-arms arrayed himself with the local forces under the guidance of the sheriff. These differences were all the growth of custom, and would scarcely of themselves have organized the whole feudal array into two entirely in- dependent bodies or classes of men. 3ut the separation thus begun was very conclusively marked by the article of Magna Carta, to which allusion has been made above. Thus there was now added by law, as well as custom, to the old qualification of tenure, the new one of summons. Nor is it long before we find that this summons is in some cases, especially in those of the baronial members of the royal council, sufficient qualification of itself 1 76 Parliament. for appearance in Parliament. One great object of Edward I. was to stamp out as far as possible the importance which the feudal idea of tenure exercised in determining the political life of the country. It is in relation to this well-known feature of his policy that he has been styled the creator of the House of Lords, as much as he is generally acknowledged to be the creator of the House of Commons. Nor did Edward's innovations cease here. These special writs of summons were issued fresh for each Parliament : they were only avail- able for that individual assembly, and could not of themselves "express or found a permanent right." It was natural, however, that they should generally be sent to the same persons, namely, to those whom it would be impolitic to omit. Edward's plan of procedure did much to en- courage and to stereotype this system, which served to mark off the greater barons still more distinctly from the general throng of the tenants- in-chief. (3) Patent. The creation of a barony by letters patent is a later method. At first used only in the case of a few earldoms, it was some time before it was extended so as to apply to the lower rank of nobility. The first instance of its use is in 1387, when Sir John Bcauchamp, of Holt, was Parliament. \ 77 created Lord Beauchamp, Baron of Kidder- minster, in hereditary possession for himself and his heirs male. This specification of the manner in which the barony should descend was what especially marked off this new method of creation from the old ; for a barony, the claim of which to representation in Parliament came from reception of a special writ, often descended to heiresses. This form of creation became the usual method of bestowing a right to a seat in the House of Lords in the time of Henry VI. The position thus accorded to the new barons could not well be denied to the older members, whose only claim had hitherto been founded on the regular reception of a writ of summons. Helped by the employment of one or other Growth of of these methods, the greater barons gradually L'j^ r/ and silently acquired a community of interest " a " estatt which welded them into a permanent body, realm. The council of feudal barons became the House of Lords. Not that the royal right of summons was ever surrendered ; it merely assumed the shape of a permanent attribute of a particular body of men. The problem that remained to be worked out was simply one of giving legal form to what had already been accomplished in fact. Such legal recognition may be said to have begun in 1322, when the earls and barons, N 178 Parliament. as peers of the realm, passed sentence upon the Despencers. The position which they assumed on that occasion was again asserted in 1331, when the same body passed sentence upon Mortimer, protesting at the same time that they were not bound to sit in judgment upon " others than their equals." This was no new power that the barons were assuming. The duties of a high court of justice had belonged to the Great Council of the realm, and the barons had assembled too often in that council to merge at a moment's notice in the Parliament of the whole nation, the organization and the powers which they had hitherto enjoyed apart. Nor, as it happened, was such a surrender in the least degree necessary. When the greater barons were reinforced in Westminster Hall by repre- sentatives of the shires and boroughs, it is not likely that the various estates ever voted to- gether. At the best, the different estates occu- pied different portions of the same hall. And ere the old privileges of the feudal regime had quite disappeared before the encroachments of the popular representatives, an important event had happened. Soon after the accession of Edward III. the lords and commons had de- finitely divided off from each other into two separate assemblies. This prevented the neces- Parliamen t. 179 sity of any surrender on the part of the lords of any power or privilege which they had pos- sessed as members of the Great Council, pro- vided that the retention of such did not interfere with the rights of the commons. Of these the most important was the right of judicature, a right which the commons never attempted in the Middle Ages to usurp. Under shadow of this right the pares of Magna Carta were now acquiring a technical meaning. So much is this the case, that in 1341 the pares terra claim a fellowship in rank with each other apart from the rest of the community, when, in response to the claim of Archbishop Stratford to be tried by his peers, the lords report to the king " that on no account should peers be brought to trial except in full Parliament and before their peers." The final stage was reached on the accession of the house of Lancaster, whose legal title to the throne depended on its recognition by Parliament It was plain that if this recognition was to be a legal and constitutional act, it must proceed from a body constituted in accordance with old custom, and not from an arbitrarily summoned assembly of partisans. After this time, therefore, the council of prelates and barons assumed a more definitely fixed form. Summonses were invariably sent to the same people, and the 1 80 Parliament. method of creation by patent finally decided the status of the members of the House of Peers. We have now enumerated the constituent elements of the House of Lords. It remains for us to trace to its origin the English House of Commons. ///. Estate The third estate is not a division drawn from commons, the consolidation of classes. It owes its origin fition!^ ' ratner t tne overthrow of caste distinctions, and is the expression of political, not of social, rela- tions and interests. Briefly speaking, the body of the commons signifies two things : first, the freemen drawn together into definite bodies for the accomplishment of special purposes ; secondly, the represented freemen in contradis- tinction to the magnates. The whole body is a formation of the thirteenth century and is the outcome of the political exigencies of the times, finding their expression through the medium of the ancient machinery of local government It is made up of two clearly defined factors the knights of the shire, and the representatives of the boroughs, (i) The l n speaking of the growth of the estate of knights of the temporal lords, it has been mentioned that the membership of the feudal council belonged to an increasingly large and, as far as the varying extent of their individual possessions was con- Parliament. 1 8 1 cerned, a very miscellaneous body ; and that it was the royal power of summons, constantly exercised in the same direction, which finally reduced this body to the size of the more modern House of Lords. We saw further that the practical use of this power of summons was to bring together out of the whole feudal body such only of its members as the king either desired or was obliged to summon. The latter class those whose presence was practically necessary would naturally be the tenants of the largest lands. They seem to have acquired History the special designation of majores barones, and, ^ " on the showing of Magna Carta, to have ex- pected a special summons addressed to them in person. The rest of the royal tenants, dis- tinguished as minores baroncs, or often simple knights, had to rest content with a general summons which reached them through the sheriff. The constitutional recognition of this position in Magna Carta practically upset the feudal basis of society established at the Norman conquest. It was because the Conqueror had done all that lay in his power to prevent the extension of this feudal basis to the government, that society had broken up so soon. There can be no stability in a country, and therefore no power of progression in an orderly line, unless 1 82 Parliament. the basis of the constitution tallies with that on which the social relations are formed. The distinction between a special and a general summons had existed previous to Magna Carta, but the constitutional recognition of the dif- ference which then took place, must have de- graded to the lower class many who, by the occasional receipt of a special summons, con- sidered themselves entitled to a place among the ma/ores barones. And now that this was no longer forthcoming, the only members of the body of tenants-in-chief who would be likely to put in an appearance would be such as might find it convenient or positively necessary to attend. In this consisted the whole difficulty of the situation. Unless some new method were discovered whereby the basis of the constitution could be enlarged, the government threatened to become a permanent oligarchy of a strictly feudal type. The clause of Magna Carta would not be a solution of old difficulties, but merely the origin of new. Moreover, in his struggles with the great feudatories, the king had relied much on the help he had received at the hands of the provincial knights and the freeholders. It was scarcely probable that he would abandon, at the moment when he most wanted it, what had hitherto been his most effective weapon Parliament. 183 against the feudal oligarchy. From 1215 to 1254 the question remained undecided. It was finally solved by action taken in the absence of the king, by those who stood in his place. It was during one of Henry III.'s expeditions to Gascony that his usual demand for money was transmitted to his viceroys, the queen and the earl of Cornwall. Their first application, to the bishops, met with a flat refusal on the plea that no such grant could be made apart from the beneficed clergy. Afraid of a second refusal on a similar pretext from the barons, the viceroys averted such a mischance by directing the sheriffs of each county to cause the election of two knights, who should declare in a great council at Westminster the amount of aid which their constituents would grant At this point we are met by two questions under which it will be convenient to group all that seems necessary at present to be said regarding the knights of the shire. These questions are, first, How was it that the knights were ready to undertake the function which such a position seems to involve, and to submit to this further separation from their nominal peers? or, in other words, What social causes were at work to separate the majores and minores barones? The second question is con- 1 84 Parliament. tion be- tween the majores and minores barones. earned with the constituents of the knights : Who exactly were these knights intended to represent, being, as they were, members of the baronage, elected in the court of the freeholders ? (o) Separa- It is not necessary to dwell further upon the ^ act f ^e separation in the ranks of the feudal baronage, nor upon the constitutional method by which it was marked. Neither the one nor the other will permanently remain fixed in our minds unless we understand the social conditions which caused them. In the first place, it is probable that the greater barons regarded with jealousy the equality of suffrage which the inferior tenants-in-chief may have claimed with them- selves. This jealousy would be much increased after the clause of Magna Carta, which had no doubt been framed partly with the intention of preventing the king from flooding the council with a number of his followers, sufficient to out- vote the greater barons. It was natural, however, that the lesser barons should not resign their constitutional position asftares without a struggle. Nor, in fact, did they do so until the selfish policy of the greater barons had shown them that such obstinacy would only result in their becoming the tool of one or other of the dividing factions, so long as of themselves they were too weak to form an opposition. Parliament. 185 The tension in this position, moreover, of jealousy on the one side, and of tenacious asser- tion of old privileges on the other, increased immensely as social relations became more complicated, owing to frequent changes in the ownership of lands. Many causes had contri- buted to this. The Crusades had effected great changes by the alienations, mortgages, and partitions to which they had given rise. Again, the only method of acquiring new land, now that the whole country had been parcelled out, was by subinfeudation, i.e. by accepting land at the hands of some lord on condition of discharging the feudal service which was due for it. By the employment of this method many tenants-in-chief had become sub-vassals that is, they held land under men who were themselves not tenants - in - chief. Thus the methods of holding property became so compli- cated, that all idea of a lower rank as attaching to the position of a sub-vassal disappeared. And when, in 1290, subinfeudation was forbidden by the statute Quia Emptores, and every future sub-vassal became an immediate vassal of the crown, the old feudal grades were quite broken down ; for such new crown vassals could not well take precedence of old sub-vassals who had been for generations in possession of their 1 86 Parliament. estates. It was then a comparatively simple matter for the kings, owing to the waning influence exercised by considerations of feudal tenure, to ordain that all possessors of the quantity of property which was requisite for the status of a knight, should forthwith accept the privileges and responsibilities of that posi- tion, no matter on what tenure they held their lands. Thus the very causes which were divid- ing up the body of the tenants-in-chief, were giving to those of them who held by mere knightly tenure, interests in common with the mesne tenants and freeholders of the shire, the principal element in the local court. At the same time the barons also were drawing apart both in the Great Council as well as in the local courts. For, although in these latter their in- fluence was still very powerful, yet their presence had been excused by the provisions of several statutes. Here then in the shire court, the minor tenants-in-chief banished from the Great Council, found a new and enlarged field for their energy. Nor was this difficult as soon as they had reconciled themselves to the loss of their old position. For some time past they had been used to share with the mesne tenants and freeholders in every department of local government. They had served on the juriej, Parliament. 1 87 by means of which most of the judicial work of the country was carried on ; their votes were counted among those of the other mem- bers of the county court in the election of coroners for the conservation of the peace, and, after 1277, of the custos pacis, in whom originated the later office of justice of the peace. These same minor tenants-in-chief, too, had helped to elect and had themselves served as the re- presentatives in each county for the execution of remedial measures, such as were necessary in accordance with the terms of Magna Carta. Finally, the minor tenants-in-chief had played their part in the juries elected to assess taxa- tion. It was this last matter with which the local courts were especially busy between 1215 and 1254, and which possibly at the same time reconciled the minor tenants-in-chief to the loss of their old position in the Great Council, while it almost certainly supplied the necessary clue to the method of procedure by which they were again to be included in the great assembly of the kingdom. It is important to note the chief dates in this connection. In 1 220 we find that two lawful knights were chosen in full county court to assess and collect the carucage ; in 1225 it is four elected knights of each hundred who assess and collect the fifteenth 1 88 Parliament. that had been granted by the Great Council in return for a reissue of Magna Carta ; in 1232 an undefined number of knights is assigned for the purpose of merely collecting the fortieth, the assessment being accomplished by different machinery; and lastly, in 1237, a similar ex- pedient is employed for the collection of a thirtieth of movable goods throughout the nation. Thus, in 1254, when it was doubtful whether a grant could be obtained from the laity, the method by which their willingness might be ascertained was not far to seek. The minor tenants-in-chief had cast in their lot with the general body of freeholders in matters of local concern. This partnership was henceforth to extend to national affairs. At the same time, they themselves returned to the national council under a new qualification that of elected local representatives, under cover of which position they were the means of introducing to that council an entirely new element in the person of the freeholder. At this point we enter on our second question Who were the constituents of the knights of the shire ? (/3) Whom The more ancient writers on our constitution, knights of as represented by Hume and Blackstone, main- the shire ta j n that or jgj na iiy the tenants-in-chief of the represent T Parliament. 1 89 crown were alone suitors of the county courts, and consequently sole electors of knights of the shire. They proceed to account for the position occupied by the knights a century after the consolidation of the estates in Parliament, by supposing that at the break-up of the feudal system, and in the ensuing confusion between various kinds of tenure, tenants of mesne lords introduced themselves as members of the county court. In opposition to this view, we have that maintained by modern constitutional writers, that the knights were the representatives of the freeholders of the county, by whom they were elected in the county courts. The proofs of this position are abundant In the first place, the question practically turns on the composition of the county court at the time when knights were first elected to the national council. A description of the composition of a shire court, before it was put to the use of electing representatives, is to be obtained from the " Leges Henrici primi," 1 where not only is there given an exhaustive list of the constituents of the court, but the use of the word " Vavassores," which is generally understood as referring to the tenant of a mesne lord, and not to a tenant-in-chief, seems conclusive proof that 1 Stubbs, " Select Charters," p. 105. 1 90 Parliament. the court was not limited to the tenants-in-chief. For the constituent elements of the court, in the period during which its chief business was the election of parliamentary representatives, we are able to appeal to many of the hundred rolls, which contain instances innumerable of tenants of mesne lords who owed suit and service in courts of hundred and shire. But we cannot afford yet to put this question aside. Had the knights been merely representatives of the lesser barons, their reappearance in the national council was not, as Hallam remarks, a very extensive inno- vation. The position and presence of mesne tenants in the county court is very strongly marked. In a writ for the collection of scutage, issued in I235, 1 we find mention of " omnes milites et lib ere t entities qui de its tenent per servitium militare" where it seems as if these free tenants who held by military service were themselves entitled to the name of " milites," and were equally eligible with the tenants-in-chief to be elected as knights of the shire. Moreover, the hundred rolls, to which allusion was made just now, tell us that these mesne tenants were often in possession of larger lands than the knights of the shire, and were, therefore, presumably of greater weight in the county. In the face of this 1 Stubbs, u Select Charters," p. 364. Parliament. 191 knowledge, it seems unreasonable to suppose that men of this rank would have been passed over. Again, proof positive is supplied us from the writs for electing to Parliament, in which the sheriffs are enjoined to send "duos milites de discretioribus et ad laborandum potentioribus de comitatu? while by other writs the knights are to be chosen " in plena comitatu" and " deassensu ejusdem comitatus" l These expressions seem to admit of no such interpretation as the older constitutional writers would put on them. A final argument is found in the avowed policy of our kings to stamp out the influence which feudal theories exercised upon political life in the country. It is scarcely necessary to show proofs of this. From the Oath of Salisbury to the Dis- traint of Knighthood, our history is full of them. Was Edward I., of all people, we may ask, in the least likely, especially after the experiences of his father's reign, to stereotype the feudal method o" government ? The English system of county administration was not the product of feudal insti- tutions. Before the representatives of counties ever were summoned to the national assembly, numberless elections had been held in the county courts, and these had been carried out in accord- ance with the particular constitutions of these 1 Stubbs, " Select Charters," pp. 477, 481, 486. 192 Parliament. courts as they had descended intact from early English times. It remains to trace the growth of the knights into a distinct community, with a repi esentation in the councils of the nation. Growth Enough has been said to show that it is in knights of their common representation by the knights the shire o f fa e s h; re th a t the lesser landowners of the into a separate country find their bond of cohesion. But it was body* on the one hand necessary that these repre- sentatives should come together frequently, in order that they might learn the secret of united action against their enemies ; while on the other hand it required several summonses to give them a permanent place in the national assembly, and to reduce their representation along with that of the other estates to a recognized and accepted form. In 1213 summonses were issued to the sheriff to bring four knights to a great council ; the assembly, however, is not known to have met. We have already noted the circum- stances under which the knights were first sum- moned in 1254, as representatives from the shires. In 1261, again, the barons summoned three knights to an assembly of their own. In 1265 Simon de Montfort summoned two knights from each shire to his celebrated Parliament With the accession of Edward I. instances are multiplied. Both in 1273, and again in 1282, each shire sent Parliament. 193 four knights ; but on the latter occasion they met at two separate places. This defect was remedied in 1283, when the knights were brought together on the same day and at the same place as the lords. In 1290 the knights were summoned, two months after the magnates, and then only to ratify what had been already done. In 1294 they met again with the tem- poral lords, but without the clergy ; and in 1295 they came with the rest of the estates to the Model Parliament The second of the two factors which made up (2) The the composition of the third estate in Parliament 'fae was found in the representatives of the cities and boroughs. The history of their growth has been traced in a former essay up to the time when the most powerful of them were obtaining recognition of their corporate existence apart from the rest of the shire. But even those most completely equipped with machinery for self- government, maintained considerable connection with the organization of the shire. For instance, each borough still sent twelve burghers to repre- sent the community in the full assembly of the shire court which was summoned to meet the itinerant justices. It was under view of the sheriff that the great towns elected their own coroners, mayors, bailiffs, and constables, and managed O 194 Parliament. the rest of their machinery for carrying out the Assize of Arms, and the duties of Watch and Ward, while the sheriff also still led the military contingents which the towns supplied in accord- ance with the provisions of the Assize of Arms. Their The results of this continued connection with the connection with the shire court were most important, though they were perhaps rather of a negative than of a posi- tive nature, and are only apparent when a com- parison is instituted between the growth of our own constitution and that of any other mediaeval state. In the first place, this habit of merging themselves for certain purposes with the larger district out of which they had been carved, pre- vented the English towns from ever approaching to the position of the municipalities of France and Spain, namely powerful corporations acting on their own behalf, and forming a separate estate with interests and an organization of its own. Certainly at first there seemed no slight chance of their emulating their continental brethren, for both Simon de Montfort in 1265, and Ed- ward I. in 1283, recognized the boroughs as separate entities, in summoning their repre- sentatives by writs directed to the magistrates of each individual town. It seems almost by a lucky chance that the permanent writ was one which kept up the connection between county and town, by directing that the elections Parliament. 195 of such representatives should be returned through the sheriff of the county. But again it was probably to the enhanced importance given to the governing bodies of the towns by the summons of such representatives, that we owe the stunted condition of many of those bodies. At the time when they were first called on to send representatives, the towns were in all stages of corporate development In some few cases they were governed by a mayor and alder- men, but the more common government was through a borough court, often monopolized by the local merchant guild, or through a leet jury with a tendency to restricted membership. It was not till the fifteenth century that charters of incorporation began to be given to the towns, wherein was legalized the restricted franchise which probably had hitherto been the rule. For the present, as we shall have reason to see later, representation was regarded as a burden rather than a privilege, and the sheriff was often able to return his own nominees. The question natu- rally arises, Why were the towns summoned to Parliament at all, if their representation there was and continued for so long to be unreal? The answer must be found in two directions ; partly in the importance of the towns them- selves, partly in the needs of the kings. 196 Parliament. Reasons The larger towns of more advanced organiza- being sum- t' on had from time immemorial been treated as moned. something above the mere villages or townships, as they were called, of the surrounding country. The burhs of the early English had boasted of an organization akin to that of the hundred ; while London, to whose position the lesser towns persistently aspired, was treated like a shire with sheriffs of its own. Moreover, in the dealings of the exchequer, the towns had long been treated as separate entities. In early days the sheriff of the county had often attempted to raise the whole of the sum for which he was responsible as ferm of the shire, by extorting it out of the burghers of some wealthy town. In self-defence, then, the towns had demanded this separate recognition, and though, as we have just seen, considerable connection with the shire organiza- tion remained, they had succeeded in expelling the sheriff from the presidency of their local courts. Now too that they were acquiring magistrates of their own, and seemed to be aspiring to the position of the French communa, it was a mere piece of wise policy on the part of the rulers to prevent them from taking up a position outside the national council. But, apart from motives of policy, there was the great and ever pressing question of money, which Parliamen t. 197 finally determined the summons of the towns. They were the portion of the community whose wealth could be most immediately realized. All towns, no matter on whose demesne they were situated, paid a fixed contribution towards the ferm of the shire ; but the tallage, which was the chief tax to which they were liable, the king had to share with all his tenants-in-chief, since it was only from towns situated on his own demesne that he was able to exact it It was a remnant of the feudal and class principles of taxation, which in the midst of the break-up of feudalism, he was attempting to abolish. More- over the new method of taxation of moveables was far more lucrative than the old tallage. If however the king wished to make this new method a permanent reality, he must submit to its grant by the national assembly, in which body he must include representatives of the towns, as the people from whom the greatest amount of the new taxes would be levied. The union of the representatives of the shires Common and the towns in Parliament is perhaps the most important fact in English history. It was by no means of sudden growth. The represen- tatives of the boroughs were at first, at any rate, of an altogether different class to the knights of the shires ; of different education and seem- Ip8 Parliament. ingly different interests ; unused to stand face to face with royalty or to act in a corporate body. Moreover, although the two bodies of knights and burgesses came together long before the reign of Edward III., it was not until then that all possibility of their being severed came to an end, while there seemed every probability of the interposition between them of two other estates those of the lawyers and the merchants with a representation not local but profes- sional, whose strong professional interests would have cut the ground from under the feet of both knights and burgesses. On the other hand, many causes operated to bring the two bodies together. Chief among these was the common representative character of both. True, the absolute number of the knights was fixed, while that of the burgesses for a long time fluctuated considerably ; but the individual members in both bodies were subject to the same law of change from one Parliament to the next, and such change would lead the individuals to seek strength in concerted action. Their interests, again, were different rather in degree than in kind. They were both based on local rather than on professional considerations, and in this respect were united in interest against the peers on the one side, and the lawyers and Parliament. 199 the merchants on the other. But after all, the social difference between the two bodies lay rather in the past than in the present. The merchant of the towns often settled in the country, and took up his position as member of the shire court Alliance with his family was now a boon to be sought by the impoverished possessor of a portion of a knight's fee. Nor was the legislature behindhand in urging on the fusion of the two classes. Distraint of knight- hood came opportunely to smoothe away any distinction based on tenure which might remain ; while the rule of the constitution which sum- moned the burgesses through the sheriff and the machinery of the county court, drew closer the bonds which were knitting together the two portions of the third estate. It has been maintained that the towns were Theory first summoned to Parliament in order that the king might the more easily exact the tallage ; ta "*? on to and that therefore it was only on the theory of its being in ancient demesne of the crown that any town was called upon to send representatives to the national councils. This is the contention of those who, arguing from the analogy that the constituencies of the counties were limited to the tenants-in-chief, urge the all-importance of tenure in determining early political relations. 2oo Parliament. The fluctuations in the number of borough re- presentatives may seem to show that sometimes, at any rate, this principle may have prevailed, and we actually find, in the writ for the collec- tion of an aid issued after the Model Parliament of 1295, the statement that "cum . . . cives> bur- gcnses et alii probi homines de dominicis nostris, civitatibus et burgis ejusdem regni septimam de omnibus bonis suis mobilibus . . . nobis curialiter concesserint et gratanter? x But, on the contrary, the writ of 1296 says that a similar grant has been made by "cives, burgenses et alii probi homines de omnibus et singulis civitatibus et burgis nostri de quorumcunque tenuris aut libertatibus fuerint et de omnibus dominicis nostris," while even in 1295 the writ of summons issued to the towns makes no mention of demesne. 2 After all, the writ for the collection of an aid, quoted above, was probably only an old form applied, without much definite meaning, to new circum- stances. But in addition to this evidence from writs, we have lists of the boroughs whose repre- sentatives were summoned. This supplies us with both positive and negative evidence, for we are able to gather the names of many boroughs which sent members, though they were not in ancient demesne ; while we miss the names of 1 Stubbs, " Select Charters," p. 486. 2 Ibid. Parliament. 20 1 many which we know from elsewhere to have occupied that position towards the king. A claim to extreme antiquity for the presence Growth by representatives of the boroughs in the national / a share council has been based upon certain ambiguous phrases of the chroniclers, and upon assertions advanced by the towns of St. Albans and Barn- staple, of certain privileges which had originated with their connection from very early days with the central assembly. But the former are too indefinite to form the basis of any positive theory, while the claims of the latter have been proved to be false. It is possible that some of the richer tenants-in-burgage may have attended royal councils side by side with other freeholders, and in 1213 we have a distinct assembly of representatives from towns on the demesne of the crown. The first definite instance, however, of a borough assembly for true parliamentary purposes is found in Simon de Montfort's sum- mons, in 1265, of the representatives of a number of separately enumerated towns through the magistrates of each. This example was not lost on Edward I. In 1273 four citizens came from every city, along with the other constituent elements of the national assembly, to take the oath of allegiance to Edward in his absence. In 1282 it was Edward's definite act which 2O2 Parliament. gathered into council two men from every city, borough, and merchant town, summoned on this occasion through the sheriff. In the next year twenty-one boroughs were summoned by name, by writs addressed to the magistrates of each. This however was not for taxation, but to give a colour of national consent to the condemna- tion of the Welsh prince Oavid. Finally in 1295 came the perfected writ, which directed the sheriff of each county to cause the election of two members from each city and borough within his county. Thus was brought to its final form the assembly of the three estates, the Parliament of the nation. Develop- We have now traced how the Witenagemot of ^ e ear ly English polity and the Great Council tutionand o f the Norman and Angevin kings developed, powers of Parlia- under the influence of the principle of represen- tation and the pressure of political necessity, into the perfected Parliament of 1295 ; and we have discussed the character and qualifications of the three estates of the realm there gathered together in the national representative assembly. The history of constitutional advance under the immediate successors of Edward I. falls prac- tically under two headings. The first deals with the consolidation of the form into which Edward had succeeded in moulding the heterogeneous Parliament. 203 elements of which his Parliaments were com- posed. The second division will be concerned with the more important matters of govern- ment, in which the national element asserted its claim to a voice. In dealing with the forms of Parliament as /. The we find them gradually fixed in the fourteenth p^^[. century, it will be convenient to give an account ****** of the summons of Parliament, of the election of its members, of the distribution of its elements as a deliberative body, and of the frequency of its meetings. The summons of Parliament and the determi- (*) Sum - mohs. nation as to the time and place of its meeting have in the law of the constitution always belonged to the sovereign. Practically, in the fourteenth century, it was decided in the King's Council. Along with the development of the means of national action, we find a similar development in the machinery through which the royal prerogative was in future to be exercised. The initiation of all legislative action rested in theory with the king, and the financial and legal business to be laid before the Parliament was prepared beforehand in the Council. The time and place of the assembly having thus been fixed, the method by which the 204 Parliament, members were to be brought together had been practically settled by Magna Carta. The lords spiritual and temporal, and the judges and occasional councillors who attended, were summoned by special writs of one stereotyped form, with slight appropriate variations. For while the spiritual lords were called "cum ccsteris praelatis, magnatibus et proceribus," the temporal lords came "cum praelatis et ccsteris magnatibus et proceribus," while the omission altogether of the word c&teris from the writs addressed to the judges excluded them from claiming a position as peers of Parliament The general writs of summons which were directed to the sheriff to secure the attendance of members from the shires and boroughs, need only be commented on in so far as they speci- fied the class of persons who were to be chosen as representatives of the shires. The whole series of writs is well worth examination ; but here it is only necessary to notice that the variations in them seem to arise principally either from the dearth of knights, which neces- sitated the election of esquires ; or from the attempts of lawyers to use their election to Parliament as a means of furthering themselves in their profession ; or from the candidature of sheriffs and others who have some sinister Parliament. 205 design which may be served by their presence in the national assembly. The writs having been issued forty days in (?) advance of the period fixed on for the assem- bling of Parliament, time was thus allowed for the election of members for both shire and borough. The former were elected in the monthly session of the county court, from which by the fourteenth century most persons of posi- tion in the shire had obtained the privilege of absence. The sheriff, therefore, had to issue a special summons for a parliamentary elec- tion ; and this fact practically placed the elec- tion in his hands, for either he could collect a body of his friends who would vote in accord- ance with his wishes, or by omitting to issue any summonses at all, he could return his two candidates unopposed. To this he was helped by the fact that representation was at first regarded as a burden, and there was consider- able difficulty in finding willing members. This evil was apparent at a very early date ; for in 1372 we find a statute which forbids the election of lawyers and the candidature of sheriffs, while in 1376 a petition is presented, praying that the knights might be chosen by common election from (de les) the better folk of the shire, and not 2o6 Parliament. merely nominated by the sheriff without due election. Nor was the result very different in the case of the boroughs. Certainly their electoral assem- blies were more definitely fixed than those of the counties, and the elements were more per- manent ; but the final steps in the election of the members took place in the county court, their names were returned on the document which contained the names of the knights, and the towns were no more able than the counties to find persons willing to undertake the difficulties of a journey to Westminster. The sheriffs, there- fore, no doubt could, and probably often did return the borough members as well as those of the shire. In the ordinary method of pro- cedure however it is probable that the bailiffs or a customary deputation of burghers announced to the sheriff in the shire court the names of those who had been chosen in the assembly of their borough. It has been noted above that both shire and borough members were difficult to find, and that the whole duty of representation was regarded as a burden rather than a privilege. (3) Pay- From the point of view of the electors, this "wages. unwillingness arose from the fact that wages were paid to their representatives, at the rate Parliament. 207 of four shillings a day to a knight, and two shillings a day to each of the borough members, both during the sitting of Parliament and for a specified time before and after. The repre- sentatives, on their side, were anxious to avoid the difficulties of travel and the neglect of private business which so long an absence entailed. Eventually the legislature had to provide that, by a process called manucaption, two sureties should be found who should make themselves responsible for the appearance of each member in Parliament The attendance of members having been thus (4) Separa- secured, the estates assembled, generally though Houses. by no means universally, at Westminster. It is possible that at first each estate sat by itself, while it is certain that each voted its own sup- plies in different proportions. Some time elapsed before the barons would merge themselves in the national assembly, or the knights of the shire discover that their interests were identical with those of the burghers. At what precise date the different estates finally arranged them- selves in two Houses is a matter of some dispute. Hallam is inclined to refer the divi- sion to 1315, but it is not till 1332 that there is a distinct record of the separate session of the estates as they are at present constituted. 208 Parliament. The time of separation may perhaps be gene- rally placed about the commencement of the (5) The reign of Edward III. The question naturally *of S1 parlia- ai "i ses How often was the country called upon ment. f o senc j j ts representatives to Westminster ? We have seen that all representation was regarded as a burden, and no doubt the frequency of the summons accentuated this opinion ; for frequent Parliaments could in the eyes of the people mean little else than an increase of taxation. Patriotic statesmen, however, saw in the constant summons of the popular representatives a check upon the arbitrary power of the sovereign. The demand, therefore, for annual Parliaments is confined to times of political excitement, when it is generally obtained from the king. But when the excitement died away the burden was again felt, and transgression of the law became common. About 1344 the practice of granting supplies for two or three years in advance was begun, which obviated the necessity under which the king had hitherto lain, both actually as well as by law, of an annual assembly of the representatives of the nation. 6) Rela- it is interesting to notice that from the first lions of the two Houses*, distinction was considered to exist between tne functions of the two Houses. The writs of Parliament. 209 summons directed to members of the first two estates define their function in the majority of cases as " tractaturi et consilitim vestrum im- pensuri" a mode of expression which seems to mark their theoretical position pre-eminently as counsellors of the crown. The knights and burghers, on the other hand, are to be elected " ad consentiendum et faciendum " what has already been determined by the common counsel of the kingdom. The function of the commons is thus shown to consist in assent, as contrasted with the advice expected from the magnates. The laws, whether in the form of Saxon dooms, or of Norman and Plantagenet charters and assizes had ever been enacted "with the counsel and consent" of the central assembly. As the commons acquired a share in this assembly, the practice at first was to include them in the formula by which the assent of that assembly was expressed ; after 1318 laws are enacted " by assent of the prelates, earls, barons, and com- monalty of the realm" But as the commons secured a more definite position in relation to the other estates, another alteration takes place in this formula; after 1327 legislation is carried out " by assent of the prelates, earls, and barons at the request of the commons" Finally, when we consider the order of growth and distri- p 2io Parliament. bution of the various important attributes of a central representative assembly, we find that as soon as ever the two Houses begin to vote their money in a definite form, taxation is said to be granted "by the commons with the advice and assent of the lords" From the enu- meration of these facts two considerations seem to result ; first, that it was co-operation rather than advice which was regarded as the function of the commons ; and secondly, that the claim of the third estate to be consulted in financial matters was allowed before any part was assigned to it in legislation or in general political de- liberation. The second of these two conside- rations will be more apparent by a separate examination of the power actually exercised by the commons in each of these three matters, from the calling of the Model Parliament in 1295, to the death of Edward III. in 1377. And, as the most important power, we deal first with taxation. II. Growth The final form assumed by the national f the council may be said to have been due to the pffwers of the double cause of necessity and of policy; of Commons. - . necessity, because the classes which stood out- side the feudal status were acquiring a formidable (i) Taxa- power ; of policy, '-because the new forms of taxation begun by Henry II. produced more for the royal exchequer than the old feudal methods. Parliament. 211 Previous to 1295 the taxes were negotiated with each estate by a special commission issued from the exchequer. Since 1282, however, if not before, the coming change was manifest The failure in the amount of subsidies so negotiated had led to an increased frequency in the sum- mons of a national assembly, until it culmi- nated in 1295 in the complete and methodical representation of all the estates. Money was now granted by each estate, at first in different proportions and in different ways, until 1334, when the proportions were settled as one-tenth of all property from the boroughs and the clergy, and one-fifteenth from the counties, the exact amount payable by each township being at the same time permanently fixed ; but the method of separate negotiations with the several com- munities is now quite superseded. The result of this new method is seen in 1297, when a combination of circumstances, greatly resem- bling that which led to Magna Carta, placed Edward I. in the hands of the council of estates to which he had so lately given form, and the authority of which he had so soon attempted to overpower. Having been sum- moned for the express purpose of granting taxes to the king, their position would indeed be a mockery, were they to allow him, in the face 212 Parliament. of their privilege, to levy contributions on the country at will. The great act of the Confir- matio Cartarum makes Edward say that "for no occasion henceforth will we take such manner of aids, tasks, or prises, but by the common assent of the realm and for the common profit thereof, saving the ancient aids and prises due and accustomed." This was, no doubt, an exten- sion to the national assembly of estates, of the power which in Magna Carta had been acknow- ledged to reside in the Great Council. But there were still loopholes through which the king could escape from being completely dependent for his supplies upon the goodwill of his people ; nor was it until each of these was in detail closed up, that the privilege of being the sole means by which money could be obtained definitely belonged to the representatives of the people. like that of 1688, not only enabled the nation to confirm to a great extent the rights already won, but proved a guarantee of further progress. Both Henry IV. and William III. came to the throne with a parliamentary title. For some sixty years after each revolution the influence of the aristocracy predominated in the country. Edward IV. and George III., under vastly different circumstances, and with means very dissimilar, succeeded in establishing, each in accordance with the ideas of the times, a strong personal government The reoo- Under Edward IV. and the Tudors, it became \yx?nLcs- P oss ibl e to carry out the objects which Richard Sar 7 II. had aimed at at least half a century too soon. though premature. At the end of the fourteenth century the baron- age was all-powerful, the Church aristocratic and strong, the commons accustomed to look to the nobles rather than to the king for political guid- ance. England required a firm rule administered by kings, willing like the Tudors in after-times, 1 " Introduction to English History," by S. R. Gardiner and J. Bass Mullinger, p. 93. Constitutional Kingship. 227 to respect the externals of the constitution, to allow development in accordance with the wish of the people as expressed in Parliament, but at the same time able to repress disorder at home and to give England peace abroad. The Lancastrian rule, though promising in its opening years, was on the whole a constitutional disappointment The foreign policy of Henry V., and the weakness of Henry VI., gave an oppor- tunity to the great lords to illustrate their selfish- ness, their personal rivalries, their overgrown power, and the ever-increasing divergence be- tween their interests and those of the rest of the people. During the latter half of Henry VI.'s reign anarchy spread over a great part of the country. The political education of the English nation was not sufficiently advanced to enable it to carry out a system of self-government, nor strong enough to control the insubordination of the aristocratic elements of society. This insub- ordination culminates in the Wars of the Roses, which brought about the downfall of a dynasty personally incapable of giving to the nation the order and good administration it demanded. The Tudor government gave to the body of the people protection of life and property, a firm administration of justice, and a foreign policy eminently popular. Above all, the House of 228 Constitutional Kingship. Commons was able quietly to strengthen itself against the time when the question between Par- liament and the royal prerogative, prematurely raised under Richard II., was fought out and decided in the seventeenth century. Thereat Henry of Lancaster came forward as the opponent of those principles the adoption of w ^ c h had cost Richard his throne ; as the sup- porter of the claims of Parliament to rights asserted during the fourteenth century. Parlia- mentary authority had for the time triumphed over royal prerogative, and the Lancastrians endeavoured, during the first half of the fifteenth century, to govern England as a constitutional kingdom. Till 1447 the rule of the Lancastrians is strictly in accordance with the declaration of Archbishop Arundel in the first Parliament of Henry IV., that the king would be governed by " common advice, counsel, and consent ; " and from 1447 till the outbreak of the civil war the government was rather weak than uncon- stitutional. The rule of the Lancastrians was in many ways important in the history of Parliament. The working of constitutional government was improved ; both Houses assert and secure valuable privileges ; the House of Lords is consolidated ; statutes are passed regulating the qualification of electors and of Constitutional Kingship. 229 members of the House of Commons. Parlia- ment is more busied with enforcing rights claimed from the crown in the previous century than in gaining new ones, and though many of these rights are little heard of during Yorkist and Tudor times, they formed important pre- cedents for the leaders of the parliamentary opposition to the Stewarts. Hence, though it is true that the fifteenth century is not a period of constitutional development ; yet under the Lancastrian kings rights previously acquired were firmly established, and placed on too secure a foundation ever to be in danger of being again successfully attacked. In the attempt of the Lancastrians to govern England constitutionally, in the results of that attempt upon Parliament, and in the causes of its failure, the history of mediaeval constitu- tionalism is comprised, With the accession of Henry IV., " the experi- 7. The */ ment of governing England constitutionally flu Lan- seemed likely to be fairly tried." The events e tHaru t of Richard's reign had clearly demonstrated, England not only the selfishness and faithlessness of the tionolly. nobles, but also the very insecure foundations on which the power of the House of Commons rested, its dependence on leaders, and its power- lessness when, deprived of those leaders, it was 230 Constitutional Kingship. brought face to face with a determined king. And it may seem surprising to find this House of Commons, a few years after the revolution of *399i m an improved position, exercising great influence on the government of the country an influence which to some extent it main- tained in the reign of Henry VI., when the aristocracy held the predominating power. Had Henry IV. succeeded with an unquestioned title ; had his exchequer not been exhausted ; had he enjoyed good health, and been free from rebel- lions at home and dangers from abroad ; had Henry VI. come to the throne a full-grown man, with the capacity of his father or grandfather the constitutional position of the House of Com- mons would not have been such a prominent feature in the history of Henry IV.'s reign, and the power of the lords would have been restricted within due limits under Henry VI. TheLan- The Lancastrian scheme of government was castrian scheme to rule the country in alliance with Parliament, an< ^ to ma ^ e Parliament the direct instrument of government. In the adoption of this pro- gramme by Henry IV., and the adherence to it by his son and grandson, we see no mere reaction against the claim of Richard to an unlimited prerogative. The period is one "in which political liberty, at any rate in theory, Constitutional Kingship. 231 reached its highest point during the Middle Ages;" 1 and the Lancastrian scheme was a definite attempt to put into practice a view of the English constitution which implied a belief that the English people were in an advanced stage of political development As a matter of fact, liberties were given to the nation which, as events showed, it was unable to appreciate or to use. Nevertheless, the effort of the Lancastrians was honest well meant, and, till the period of civil war, faithfully adhered to. Throughout the whole Position of . . . , . farliament period no attempt is made to impose taxes y accord- without Parliament, no sign is given of a wish *%* with to return to the unconstitutional position Richard II. Great freedom of deliberation is enjoyed by both Houses. The commons interfere with all parts of the administration ; they are consulted on matters connected with both home and foreign affairs. These illustra- tions are sufficient to show how close was the alliance between the Lancastrians and Parlia- ment We will now proceed to consider how that alliance was brought about. In the early days of the fifteenth century H j n I ^ O Q we have, perhaps, the best illustration of the relations existing between king and Parliament in Lancastrian times. In that year, at the suggestion of the commons, the king nominated a fresh council of seventeen, which included three commoners. These coun- cillors were compelled to swear to obey thirty- one articles, which regulated their powers and duties. The king was to be guided entirely by the advice of this council, which was itself controlled by Parliament. A vote of confidence in the council, passed by the commons in the same year, shows the importance attached by Parliament to the maintenance of its control over the council. Henry continues the same policy in 1410; and during the later years Constitutional Kingship. 237 of his reign the council, nominated according to the wishes of Parliament, governed England. Henry V., though in a stronger position than his father, continued his father's policy. Lol- lardy is put down. The nobles, ever ready to quarrel with king or commons, found vent in the French war for their constant uneasiness. Henry's success abroad and his admirable rela- tions with his Parliament at home, which implied a corresponding confidence between Parliament and the council, enabled the trial of a great con- stitutional experiment to be continued for some thirty years. With the long minority of Henry VI. the Under Privy Council attained to the height of its Henry VL power in the Middle Ages. During this minority the English nation had a real opportunity of testing its own fitness for self-government. Till 1437 tne members of the council were nomi- nated in Parliament, and consequently the council possessed the full confidence of Parlia- ment. It acted not only in its ordinary capacity, but also as a council of regency exercising all the functions of sovereignty. The harmony existing between it and Parliament is proved by the enormous powers wielded by the council. Its work was prodigious. To it was entrusted financial business, considerable 238 Constitutional Kingship. legislative and taxative powers, and the manage- ment of trade. Its judicial authority was no longer regarded by Parliament with suspicion. Even ecclesiastical and police matters came under its notice. It was responsible for the administration of justice and the preservation of order at a time when the public peace was continually broken, and local disorder often threatened to assume the proportions of private war. The council can then at this period be regarded as a political, a legislative, a judicial, and an administrative body. During the minority of Henry's reign a critical and, financially speaking, a most em- barrassing time the council was mainly com- posed of lords ; and the government of the country by the council well illustrates " the capacity of the nobility for rule." l The Great When a decision was required on some knotty question for which the Privy Council refused to be responsible, a Great Council was called. These Great Councils, summoned frequently by the Lancastrian kings, usually consisted of a number of nobles and knights who were not ot the Privy Council. " They may be regarded," says Dr. Stubbs, M either as extra-parliamentary 1 Gneist, " History of the English Constitution" (Trans- lation), ii. p. 74. Constitutional Kingship. 239 sessions of the House of Lords, or as enlarged meetings of the royal council." The resumption of personal government by Henry in 1437 marks the time when the Lancastrian scheme of making Parliament the direct instrument of government begins to break down. In 1437 the king, perhaps with the advice of Cardinal Beaufort, began to nominate members of the Privy Council absolutely. The council ceased to be in subordination to Parlia- ment, and henceforth becomes gradually the creature of the king and his party, and is found often in opposition to Parliament. Instead of Parliament controlling the council, the council, through its influence on the elections, tends to control Parliament Though Henry continued to retain a considerable hold on Parliament from 1437, and in a greater degree from 1447, when Beaufort died, he relied less and less on Parlia- ment, and more and more on his council. In 1450, in the dispute between Somerset and York, the court and council supported the former, the commons the latter. Parliament, in these later years of Henry VI.'s reign, was weak, while the council, mainly com- posed of the king's friends, was strong. The attempt of the nation at self-government had failed, with the cessation of parliamentary 240 Constitutional Kingship. control over the council. That body begins to take up the position it held under the Tudors, when, dependent on the king and independent of all other influences, it governed the country. To this council, rather than to Parliament, the nation at the end of the fifteenth century looked for the enforcement of order and good govern- ment. 1 II. The The effort of the Lancastrians to make Parlia- ment the direct instrument of government had, as mi 's^ lt De expected, no unimportant results the Lan- on the parliamentary constitution itself. The (astrians to govem century, however, does not see new rights comtitu- acquired so much as old claims reasserted and tionaiiy. made good, tendencies already at work continued and hardened. The House During the fourteenth century the hereditary "^ ' character of the House of Lords had been steadily gaining ground. The first instance of a barony being created by letters patent occurs in the reign of Richard II., though earl- doms had been created before by charter and even by patent, and were always hereditary. The constitutional position of the Lancastrians prevented them from regarding the House of 1 On the subject of the Privy Council, the reader should consult Mr. Plummets admirable notes to Fortescue's " Governance of England." Constitutional Kingship. 241 Lords as an assembly the personnel of which de- pended on their own authority. Hence, though this is in effect done long before, the hereditary right of the peers to a summons to Parliament was acknowledged, and the House of Lords became a small compact body in which the spiritual element predominated. With considerable judicial powers, the House of Lords had the advantage of a continuous existence. Its members formed the majority in the Privy Council, and in their attendance at the Great Councils summoned to assist the Privy Council with advice "it is probable that the theory which gives to all the peers of the realm the right of approaching the king was reduced to practice." In spite of the capacity of the nobles to rule, and the influence they exercised over the commons during the first decades of the century, their family jealousies and selfish factiousness, by bringing about the Wars of the Roses, threw the whole political organization into confusion, destroyed the utility of the mediaeval peerage, and left to another line of kings the task of reconstructing the House of Lords out of fresh materials. It is in the position and powers of the House The of Commons that we can find greater attempts "m at expansion, though these attempts do not R 242 Constitutional Kingship. result in much more than the recognition of the House of Commons as a coequal part of the legislature. During the fourteenth century the progress of Parliament had been rapid. Since the middle of the reign of Edward III. the two Houses had definitely ceased to sit together. The events of that and the following reign had enabled the commons to take a leading part in gaining important rights in matters of legisla- tion, administration, and taxation, and by the end of the century they were recognized as holding a position of " legal equality " x with the lords. Though the commons had in the reign of Edward III. acted to a great extent inde- pendently of the nobles, their position was by no means very secure. This helplessness, when deserted by the nobles and confronted by a strong-willed king, determined to use the great influence of the crown upon the elections, was clearly illustrated in the reign of Richard II. Henry IV's. policy, however, was to strengthen Parliament, and especially the Lower House, in order to secure its support. In his reign and in that of his successor, the commons claim im- portant rights, and take up a position not again held till the seventeenth century. To quote Dr. 1 Fortescue, "The Governance of England." Intro- duction by C. Plummer, p. 14. Constitutional Kingship. 243 Stubbs, * Never before and never again for more than two hundred years were the commons so strong as they were under Henry IV." In 1401, taking advantage of the financial needs of the king, they demand that redress shall precede supply. In 1404, on their request, a sum of money was appropriated to the defence of England, and the royal household was attacked. In the same year they claim the right of freedom from arrest In 1406 they gain the right of having the royal accounts audited, and in 1407 that of originating money grants. In 1406 and 1410 two important acts were passed, to regulate the county elections, and to check the undue influence of the crown, the great lords, and the sheriff on the choice of representatives for the House of Commons. In Henry V.'s reign the commons still further regulated the county and borough elections, and in 1414 secured a "great constitutional boon," by gaining the assent of the king to their petition, that from henceforth " statutes be made without altering the words of the petitions on which they are based." From 1407 their right to deliberate on all matters of public interest was recognized. The instances of matters of domestic policy being treated by them are numerous. In Henry IV. 's reign they interfered 244 Constitutional Kingship. with all parts of the administration. Questions connected with foreign policy were frequently brought before them and discussed. Henry V. laid before the commons, as well as the lords, his negotiations with the Emperor Sigismund in 1416. In 1445 Suffolk recounted his services to both Houses. Early in Henry V.'s reign the commons urged the king to labour for the closing of the great schism. In 1425 the three estates forbade the Duke of Gloucester to make war on Burgundy. From the accession of Henry VI. the commons gradually ceased to exercise so predominant an influence on the government of the country as they had done in the reign of Henry IV. The appoint- ment of a council in Parliament to carry on the government during the king's minority ; the ever-increasing influence of the great lords both in the council as well as in the elections ; the nomination by the king, after 1437, of the members of the council, all tended to relegate the commons to a position less prominent than that which they had held in the earlier~years of the century. Nevertheless to some extent they maintain, till the beginning of the troubles which were to end in civil war, that importance which they had inherited, and continue to take no small part in the affairs of the country. Constitutional Kingship. 245 In 1429 they are allowed to have freedom Privilege from arrest, though this right is not established "mew^. " by statute, and in 1433 they obtain definite recognition of the right to immunity from molestation for " members of either house coming to Parliament or council by the king's command" In 1430 an act was passed re- stricting the right to vote in county elections to the forty-shilling freeholders, and in 1432 and 1446 other regulations were made in the same definitive spirit In this reign, too, the commons began to introduce the practice of legislating by bills in place of petitions. We also find them dealing with matters of general interest In 1426 they urge that Beaufort and Gloucester should be reconciled ; in 1432, by a petition, they secure Beaufort from the risks of prajmunire ; in 1433 they ask for the issue of a " proclamation for the suppression of riotous assemblies;" in 1450 they impeach Suffolk. Jack Cade's rebellion in 1450 illustrates the House of helplessness of the government Suffolk's im- peachmcnt, though constitutional in form, rather the first act in the drama of the quarrel between York and Lancaster, than a legitimate step in the history of the growth of the House of Commons. The way in which it was evaded 246 Constitutional Kingship. shows the helplessness of king and council in the face of an opposition backed by public opinion, and based on the great family interest of York. Already " the Parliaments were too imperfect and too one-sided to be regarded as fair tribunals." The towns throughout the country were very inadequately represented, and that, coupled with the fact that the knights of the shire were falling under the influence of the great lords, tended to make the House of Commons very oligarchical. The Duke of York, at the close of 1450, is able, like Richard II., to influence the elections, and secure a House of Commons favourable to himself, and opposed to the court and council. In 1451 freedom of speech is violated, at the instance of the king, by the imprisonment of Thomas Young, a member of the Lower House, who had brought forward a motion declaring the Duke of York heir to the throne. In 1453 the duke himself violates the right of the commons to freedom from arrest by imprisoning Speaker Thorpe, a Lancastrian and an enemy. A few months later the first battle of St. Alban's was fought, the Wars of the Roses had begun, and parlia- mentary independence disappears. The willingness of the Lancastrians to rule Constitutional Kingship. 247 constitutionally had a decidedly beneficent (and Summary permanent) effect upon the advance of ft&tion'oftfu power of Parliament, and even in the reign of *f" Henry VI. we have seen that the commons to a great extent maintained their position. Though at first sight it might seem, from the definitive statute of 1430, and from the loss of all independence of the Parliaments which sat during the later and more troubled years of Henry VI., that things went back ; it is nevertheless true that the seeming retrogression, as seen in the invasion of the claims of the commons to liberty of speech and freedom from arrest were only temporary, due to the special circumstances of a time when illegal acts super- seded constitutional rights ; and that on the whole Parliament maintained its position and privileges till the year 1450. It is clear, from the events and legislation of the reign, that a "growing value is attached to a seat in the House of Commons." Even from the opening of the civil war to the accession of Henry VII- the leaders on both sides were always anxious to get the recognition of Parliament for their acts or claims. Richard III. received the crown at the invitation of the representatives of the three estates. It is true many of the rights claimed by the commons were claimed prematurely. The 248 Constitutional Kings/tip. right of impeachment exercised in 1376, 1386, and 1450 is not again used till the reign of James I. The right of appropriating supplies for specific purposes, and the right of appointing auditors of the public accounts, do not become established principles until the reign of Charles II. Freedom from arrest and liberty of speech were asserted with varying success in the six- teenth and the early part of the seventeenth centuries. Parliament had not gone back under the Lancastrians. Valuable precedents for future and more peaceable times were gained, when the nation had recovered from the general confusion attendant on the later years of the fifteenth century. ///. Fail- The effort of the Lancastrians to make Parlia- t Lancas- ment the direct instrument of government had As ^ e ce ntury advanced it became govern- more and more evident that they had attempted a task beyond their powers. And yet, from the circumstances of their rise, they were bound to carry on a constitutional policy. Henry IV., Bedford, and Beaufort were all men struggling against forces which must sooner or later get the mastery. The ever-increasing exhaustion of the country was followed on Beaufort's death, in 1447, by weakness of administration and a consequent growth of anarchy. The catas- Constitutional Kingship. 249 trophe, however, does not come until France is lost, and York is put forward as the heir. The fall of Henry and the house of Lancaster was due nominally to the superior claim of the house of York to the throne. Just as the personal wrongs of Henry of Lancaster were made the excuse for the revolution of 1399, so the claims of the legitimate heir furnished the reason for the deposition of Henry VI. No superior claims of birth could, however, have been successful against a dynasty which had for three generations occupied the throne, had not the Lancastrian government shown extraordinary weakness. Dr. Stubbs has charac- terized the Lancastrian period as " the trial and failure of a great constitutional experiment ; " and the failure of Henry VI. to govern England after Beaufort's death was so obvious, that men saw in a change of dynasty the only possible remedy for the existing state of things. Apart from the unpopularity of the queen, the want of confidence in the ministers, and the con- spicuous failure of an unpopular foreign policy, the weakness of the executive at home had become glaringly conspicuous. As early as 1450, two bishops had been mur- dered, in addition to the rebellion of Jack Cade. Between 1450 and 1461 things went from bad 250 Constitutional Kingship. to worse. The insecurity of the country dis- tricts, due in great measure to the presence of bands of soldiers and vagrants, increased with alarming rapidity ; and with the lawlessness of the great lords, and the imperfect enforcement of the law, marked the abeyance of all govern- ment, and rendered the cry for reform under a strong and efficient government irresistible. The Wars of the Roses in their first beginning seemed an answer to the national demand for a complete change of policy, but, after the first battle of St. Alban's, they developed into a struggle between two dynasties a struggle regarded by the nobles as a mere faction fight, in which the family jealousies which had been germinating for a hundred years might be settled. In these wars the nation was essentially interested only so far as it seemed likely to gain a ruler able to curb the factious and selfish nobility. The accession of Edward IV. brought no final settlement of the baronial strife. Hence both Edward and Richard III. were forced to have recourse to a sort of reign of terror, which tended to weaken the noble class still further, and ren- dered constitutional government impossible. It was not till after the battle of Bosworth in 1485, that the national aspirations were satisfied with the accession of Henry VII. By that time the Constitutional Kingship. 251 nation had definitely learnt that the great lords, following the example set them by the clergy more than a hundred and fifty years previously, preferred their own class interests and personal aggrandizement to their inherited position as leaders of the commons. Deprived of the sup- port and leadership of the Church and baronage, the nation saw that a strong ruler with wide powers was the only hope for the attainment of peace and orderly government. Henry VII. and his council were enabled to give the country that freedom from foreign aggression and internal disorder, that enforcement of justice, and that security of life and property which had been so earnestly desired during the greater part of the fifteenth century, and which were so neces- sary for the prosperity of trade and the cultiva- tion of letters. The house of Lancaster fell through " want The house e it T / it of Lam at of governance. Its fall brought about the terftli complete overthrow of the scheme for making , r ^ nt O f Parliament the direct instrument of government, &">*" and placed a check on the constitutional expan- sion of the commons. The " lack of governance" was an evil inherited from the fourteenth century, in which the independence of the great lords had already proved a source of danger. Ever is since Edward II.'s reign, the object of the great 252 Constitutional Kingship, lords was to secure the government of the country in their own hands. The military system which car~e into force during the hundred years' war, and by which armies were raised by contracts made between the crown and nobles or others, enabled the lords to maintain, after the war was over, bands of retainers clad in livery, who constituted a very serious evil in the reign of Henry VI. Edward III.'s reign saw also carried out successfully a definite scheme for uniting, by a well-devised system of marriages, and by the foundation of a new nobility, the interests of the great lords to those of the crown. Henry III., Edward I., and Edward II. all seem to have had the same idea, and to some extent carried it out Edward III. was, however, the first king who developed this policy, not only in the hope that the crown might be able to check baronial discord, but also in order to control, by means of territorial influence, the elections to the House of Commons. Almost simultaneously with their close connec- tion with the crown can be observed a rapid decline in the numbers of the nobles, side by side with increase of their wealth and estates. This decline in numbers is due, partly to the legislation and policy of Edward I., partly to the consolidation of the mediaeval baronage. Constitutional Kings/tip. 253 As soon as the idea of an hereditary peerage became fixed, the number of peers diminished, estates tended to accumulate into fewer hands, and the gap between the lords and commons became wider. To quote the conclusive words of Dr. Stubbs, "it is difficult to overrate the quantity of land which during the Middle Ages remained in the hands of the great nobles." " Taken in the aggregate, the landed possessions of the baronage were more than a counterpoise for the whole influence of the crown and the other two estates of the realm." The accession of Henry IV. found the great lords wealthy, exclusive, with vast estates and bands of retainers, allied to the Church, closely connected by marriage with the crown, possessed of im- mense local influence, and ready on every occa- sion to use the pernicious custom of maintenance. They no longer aspired to act as leaders of the commons, but rather desired to crush the independence of that body. The events of Richard's reign had demonstrated their selfish- ness, untrustworthiness, and faithlessness ; his deposition had demonstrated their power. It was soon apparent that the lords by no means approved of Henry IV.'s policy of propi- tiating the commons, and it seemed doubtful if the alliance between king and commons could 254 Constitutional Kingship. hold its own against the tremendous territorial influence and power of the great lords. The demand for "abundant governance" is frequently heard in the reign ; robbery and marauding were common ; territorial rivalries had developed as early as 1404 into a private war ; dangers from Wales and France, and three open rebellions, showed how precarious was the position of Henry IV. and the commons. By his firmness and sagacity the king held the balance between the commons and the lords, and enabled the former to attain the climax of their power in the Middle Ages ; but it was only the foreign war of Henry V. which prevented the absence of firm internal administration from being more prominent than it was during his short reign. With the accession of Henry VI. the influence of the lords in the government of the country became paramount In spite of the genuine attempt of the council to govern with authority, private wars and general public disorder increase as the reign advances. To check riotous con- duct at county elections Parliament passed the restrictive act of 1430 ; and in 1433 the commons asked for the suppression of disorderly assem- blies. But no legislation could deal with the yearly increasing mischief. The lords began to quarrel among themselves, and the parties of Constitutional Kingship. 255 Beaufort and Gloucester are but a preliminary stage of the Wars of the Roses. The two parties struggled for supremacy in the council and for influence over the king, while the dis- organization of the country districts assumed formidable proportions. We have seen as the reign advanced how Parliament failed to control the council ; equally disastrous was the failure of the council to control Parliament by influenc- ing the elections, and to check the growing evil of local faction. At the same time, the House of Commons became more and more composed of the nominees of great men selected for purely personal or factious purposes. Thus the "family settlement" policy of Edward III. had results unlocked for in the fourteenth century. Instead of the crown checking the quarrels of the nobility, the nobles introduced into the royal house their own spirit of rivalry and jealousy. Instead of the crown controlling, through the nobles, the elections, the great lords were found in the later years of Henry VI.'s reign influencing the elections in opposition to the crown. The Lancastrians had followed the "hereditary traditions of the baronage " in aiding Parliament to maintain and strengthen its position. It was the lords themselves who, by their own territorial 256 Constitutional Kingship. rivalries and personal aims, threw away the leadership of the commons, and rendered the exercise of government by Henry VI. impossible. In the Wars of the Roses the baronage com- mitted suicide, and enabled Henry VII. to crush the power of the remaining nobles, to maintain peace at home and abroad, to govern by means of ministers, to be supreme over the Church. Richard II. had probably desired to carry out such a policy, but he had made the mistake of advancing an extreme theory of prerogative, and attempted to put his theory into practice when the power of baronage and Church was unbroken, when the nation disliked his foreign policy, and distrusted him and his ministers. (2) Social Social causes did much to strengthen the d and Indus- g reat lords and to render the task of govern- trial disor- m ent difficult. While the fifteenth century was finizaticn, a more prosperous time for the governed classes than the fourteenth, it was a century of social disorganization ; a period of continual struggles in the towns where the craft guild system was passing away ; a century which witnessed an industrial and agricultural revolution which had been developing with rapidity ever since the Black Death, and which, like most revolutions, brought with it social disorder. The Black Death was followed by dearness of labour, and a consequent Constitutional Kingship. 257 rise in wages, which the statutes of labourers were unable to check. The landlords, compelled to recognize the new state of things, and seeing the impossibility of making " farming with hired labour pay," * began to allot out portions of land to such as could pay the rent. In this way the class of tenant or yeoman farmers was formed. But the villeins who remained on the land, finding their services more rigidly claimed than ever, showed great discontent, and in the rebellion of 1381 made their well-known attempt to get rid of all claims on them for service. Their attempt failed, but a great change in the use made of land gradually enabled them to secure the objects aimed at, and to set them- selves free from their masters. This great change in agriculture was simply the gradual substi- tution of sheep- farming for the system of tillage which had existed since early English times. The growing of wool had throughout the fourteenth century been exceedingly profitable and the great wealth of the landowners, in that and the following century, was very largely due to the sale of wool. This agricultural revolution, though very beneficial to the landowners, was, 1 Cunningham, "Growth of English Industry and Com- merce," p. 196 ; also see bk. 5iL, chaps. L and ii. for an excellent account of the revolution. 258 Constitutional Kingship. while it lasted, extremely disastrous to the poorer population of the country districts. Sheep-farming required much less labour than did tillage, and consequently great numbers of the peasantry either flocked into the towns, or swelled the ranks of the vagrants, who, ever since the Black Deafn, had been a growing evil. These vagrants formed a great element of disorder in the rural districts, and their appearance coincided with the gradual break-up of the manorial system and the lessened respon- sibility of the lords of manors, who hitherto had performed a most useful function as the " social police " 1 in the country. The villein had declared his right to do what he liked with his labour. In the fifteenth century the lord of the manor asserted his right to do what he liked with his land. The break-up of the manorial system, the decline of the political influence of the Church, and the ever-increasing paralysis of the central government, combined to render life and property insecure in the country districts. " Social dis- orders followed in the wake of industrial dis- organization." 2 In a period of transition, of social reconstruction such as was the fifteenth century, the country required a clergy intent 1 Cunningham, p. 222. 8 Ibid., p. 219. Constitutional Kingship. 259 on diminishing the sufferings of the poor, land- owners not wasting their substance on retainers, but exercising a beneficial influence on the local government of the counties, at the head of the state a king and council in which was to be found the greatest administrative talent in the kingdom. Is it a matter of wonder that, under the existing circumstances, the control over the country districts gradually, though surely, escaped from the weak hands of Henry VI. and his advisers, and that local rivalries, aided by the social distress, were allowed to develop into a great and suicidal civil war? These social disorders were considerably (3) 9 of the aggravated by the long continuance and ulti- French mate failure of the French war. Henry IV., ** compelled by his necessities to abstain from an aggressive foreign policy, with difficulty held his own against the feudal houses. His suc- cessor plunged the nation into a tedious war, which, however unprincipled, was popular with all classes, and postponed for some forty years the renewal of internal dissensions. His brilliant successes prevented men seeing how impossible the conquest of France really was. The death of Bedford and defection of Burgundy brought home to Beaufort, and later to Suffolk and Somerset, the advisability of limiting their 260 Constitutional KingsJiip. ambition to the retention of Normandy and Guienne alone. The marriage of Margaret of Anjou to Henry VI., by which it was hoped that the possession of these provinces might be made secure, proved unfortunate for the Lancastrian dynasty. Her influence caused the exclusion from the council of all but her own party, upon whom fell the national wrath, when, in 1453, the final expulsion of the English took place. The loss of prestige and the damage to trade incensed the nation against the sup- posed authors of the failures abroad. The general resentment did much to render the Yorkist opposition successful, while the war itself had enabled the great lords to acquire in the country an ascendancy incompatible with constitutional government Crowds of armed and liveried retainers, fortified houses, the pre- sence of large numbers of turbulent soldiers but lately returned from the wars, together formed an element of disorder in the country which made the administration of the law well-nigh impossible. Henry V.'s foreign policy had merely postponed the unavoidable struggle between the crown and the feudal houses to a time when the great lords were in a stronger, and the king in a weaker, position. The interval of sixty years only rendered the outbreak of Constitutional Kingship. 261 disorder more organized, more general, and more intense. It might have been expected that the House (4) The e _. weakness of Commons would act as a check on the great O fthe lords, and having gained apparently a strong tomnums - position under Henry IV., would be able, even when deprived of the aid of that sagacious monarch, to maintain an independent attitude towards, and exercise a controlling influence over, such tendencies to lawlessness and insub- ordination. The strength of the commons must not, however, be estimated from the principles advanced in 1406, or, indeed, from their general position under Henry IV. " Prematurely Richard had challenged the rights of the nation, and the victory of the nation was premature." The nation in reality was not ready for the self-government offered by the Lancastrians. Parliament was not fit to become the direct instrument of government. Owing to the cir- cumstances of his accession, and to his consti- tutional leanings, Henry IV. carried on the true Lancastrian policy of propitiating the clergy and the commons, though that policy left the central power not sufficiently strong even in his day to curb satisfactorily the disorders of the times. In fact, even during Henry's reign it was apparent that the commons were strong 262 Constitutional KingsJiip. because it was his policy that they should be strong. Their attacks on the property of the Church were promptly checked, and towards the end of his reign he showed considerable firmness in dealing with them. The prominent position the commons had taken up in his reign could not be maintained in the reign of his grandson, whose minority, followed by his in- capable rule, rendered the commons subservient to the influence of the great lords. Henry IV., Henry V., Bedford, and Beaufort, each in turn continued to carry out the Lancastrian system of government, and Henry VI. always showed a great regard for Parliament ; but with the death of Beaufort, the " mainstay " of the Lan- castrians, it became evident how absolutely unready the nation was for self-government The commons were themselves partly to blame for the collapse of all government. They failed to see that the real remedy lay, not in attacking ministers like Suffolk, but in strengthening the central power. They did not comprehend that the paralysis of government could only be checked by enabling the central power to make its authority felt through the length and breadth of the land. The local insubordination which was devouring England must at all hazards be checked. As the century advanced, the Constitutional Kingship. 263 commons became more oligarchical. The act of 1430, followed later by the act of 1446, by which none of the rank of yeomen were to be eligible for election to the House of Commons, illustrates their growing exclusive spirit Eng- land was by no means ready for a system of government in many points more adapted to the nineteenth than the fifteenth century. Parliament had been given power for which it was unfit, the commons had asserted their right to privileges which they were unable to regard as fully established. The fact was, Parliament existed more for the benefit of the sovereign than it does at the present day. It was not regarded as the great controlling power in the state. Even in Henry IV. 's reign it did not meet every year. For the necessary execu- tive and for much legislative work, the nation was accustomed to look to the king and council, with whom the real control of matters was usually found. The powers gained by the commons under Henry IV. had been prema- ture. That they were premature the events of Henry VI.'s reign amply prove. The civil war finally set the commons free (5) e it j and weak- from all dependence on the nobles, and under ntss oftk* the Tudors they learned to assume an attitude ftvm of independence which enabled them successfully 264 Constitutional Kingship. to oppose the Stewarts. To a great extent the commons had relied on leaders during the reign of Richard II. Their prominent position during Henry IV. 's reign was due, as we have already seen, to that king's consistent support. But neither the weakness and blindness of the commons, nor the social distress consequent on the break-up of the manorial system, nor the lawlessness of the nobles, would have been sufficient to overthrow the Lancastrian house, had not Henry VI. been absolutely deficient of all administrative ability, and had not all three kings lived in a period when the poverty of the crown constituted a very serious draw- back to the efficiency of the government During Henry VI. 's long minority, the nation was with- out a strong king at the very moment when the lords were becoming unmanageable. At the end of his minority Henry showed himself insensible to the * responsibility of leadership," so incumbent on a ruler in those days, when it was of supreme importance that the strength of the crown should far outweigh the power of the nobles. Without the "manliness of Richard II.," * he had none of the administrative qualities of Henry IV. or Bedford. It is doubt- 1 Gairdner's introduction to " The Paston Letters," vol. i-P-53- Constitutional Kingship. 265 less true that he inherited difficulties not of his own making. The French war bequeathed to the country by Henry V. produced exhaustion, and, ending in defeat, largely contributed to the fall of the dynasty. The poverty of the crown and the low con- dition of the exchequer were other sources of weakness for which Henry was by no means responsible. Henry IV. had owned one-fifth of England at his accession, but during his reign and those of his immediate successors, the wealth and possessions of the king decreased in pro- portion as the wealth and possessions of the great lords increased. The charge of extrava- gance can hardly be brought against the Lancastrian kings. " Richard's fall initiated a long reign of economical administration," and the commons interfered not only with the admin- istration of the royal household, but also with the state expenses. When the king was expected to provide for the internal peace of the kingdom and the due administration of justice, to defend the coasts, to support an efficient navy, to keep up the marches and to maintain Calais, which as early as 1410 had begun "to be a constant drain on the resources of England," it was perhaps to be expected that the commons should be desirous to see his private revenue on 266 Constitutional Kingship. such a satisfactory basis that the king could live " of his own," and only apply to them when the national exigencies made the demand necessary. The most obvious method for placing the crown, financially speaking, on a sound footing, and for making the king sufficiently r ich "to pay his own way," was to authorize a general resumption of grants of land by the crown, and to prevent the king from alienating in the future the property of the crown. This was by no means a new idea. Since Stephen's reign frequent attempts had been made to recover alienated crown estates, and to stop a practice begun by that monarch. At the very outset of Henry IV.'s reign the question of a resumption was raised by his council. In 1404 the knights of the shire, who had already been enabled, owing to Henry's financial necessities, to take the place of the barons as constitutional leaders, proposed a re- sumption of "all grants and annuities given since 1367," in order that Henry should live "of his own." In 1450 an act of resumption was actually passed, and re-enacted in 1451, by which "all the grants made since the king's accession were annulled," and in 1456 a fresh act was passed. These acts were too late, and con- tained too many exceptions to be of any real Constitutional Kingship. 267 benefit to the tottering Lancastrian dynasty, while the grant of tunnage and poundage for life, made in 1453, only enabled Henry to rule for a time without Parliament. Had a thorough act of resumption been passed early in the period, had the crown lands been made really inalien- able, the royal revenues would not have been in- ferior to those of many great nobles in the land. The Lancastrian kings, instead of having to General weaken their own position and the future of" their dynasty by allowing Parliament to exercise governmental functions for which it was unfit, might, with the aid of a council composed of men chosen on account of their capacity, have established an efficient government able to guide the disorderly elements of society through a time of transition, and thus saved their dynasty. As it was, Henry VI.'s failure to rule the country only aggravated the dangers which were gathering round his house, and threatening its very existence. He was unfortunate enough to live in a period which saw the end of a system of government unfitted for the age, and the ab- sence of any new system in its place. The utter weakness of his character rendered him abso- lutely unfit to carry on the policy which had taxed all the powers of Henry IV. in less difficult days. Besides, in Henry IV.'s reign 268 Constitutional Kingship. that policy required important modifications. The increase of the power of the great lords required an immediate corresponding increase in the powers of the crown. The foreign policy bequeathed by Henry V., the poverty of the crown, the growing social difficulties, all de- manded a strong administration at the head of the state. The honesty and piety of Henry VI.'s character, and his adherence to the policy of his house, failed to make up for his incapacity to rule in days when a " strong hand in reform, in justice and in police," was required, ESSAY VI. THE INFLUENCE OF THE CHURCH ON THE DEVELOPMENT OF THE STATE. IT was from Archbishop Theodore that the Difficulties Church of England derived the organization necessary to fit her to enter into relations with the State, and exercise an influence upon the political growth of the nation. The Heptarchic kingdoms owed their Christianity to different sources: Kent to the Roman mission of S. Augustine, Northumbria and Mercia to the Scoto-Irish missions of Aidan and Chad, East Anglia to the labours of Felix a Bur- gundian, Wessex to those of Birinus, an Italian, and Sussex to the devotion of Wilfrid. The Church was thus herself in danger of losing the inestimable boon of unity which she was giving to the nation. Each separate kingdom might have had a Church of its own, differing in traditions from its neighbours, and proudly 270 The Influence of tfie Church on accentuating each difference as if that alone was the one point of importance in the Christian system. There were plenty of subjects of dis- pute which might well have grown to almost impassable barriers between the Churches, had it not been for Theodore's practical good sense and power of organization. When half England owed its faith to Irish sources, it was not improb- able that a system like that of Ireland might have been introduced ; where the ecclesiastical power lay in the hands of abbots of large and ill-defined monastic communities, and bishops were merely officials who received episcopal orders for the purpose of transmitting the suc- cession. It is true that at the synod of Whitby, held in 664, just before Theodore's consecration, Oswy, and north England with him, had accepted the leadership of Rome in some matters of discipline and in the question of the observance of Easter. Yet in parts of Mercia and Wessex, on the Celtic borderland, the influence of British Christianity was not yet dead, and it was still possible that on questions such as those of the observance of Easter and the primacy of Rome, some of the English kingdoms might separate themselves from the unity of Western Europe. Policy of From these dangers Archbishop Theodore Theodore. the m f ant Church. He more than the Dn'elopment of the State. 271 doubled the number of bishops, making the (i) boundaries of the new dioceses coincide far as possible with the territorial limits o the tribes which had originally settled in the land, and placed the seat of the bishop almost invariably in a small village, where his inde- pendence would be more secure than in a town. He then instituted a synod of all the bishops, to be held under the presidency of the Archbishop of Canterbury every year, and so provided for combined action and personal direction. The system thus begun by Theodore soon spread further. Just as each bishop was (2) The allotted a defined area of no very considerable system. size, if the sparseness of population is considered, for the management of which he was responsible to the archbishop ; so each township, or, when the population was small, a collection of town- ships, was formed into the parish for the spiritual necessities of which the parish priest was respon- sible to the bishop. So by degrees, quite apart from the missionary work of the monasteries, England became divided for spiritual purposes, into the definite areas of parishes and dioceses, for the ministrations of which definite ecclesi- astical authorities were responsible. In later times, when England gained political '.unity in much the same way as she had at this time 2/2 The Influence of the Church on gained ecclesiastical unity, the State took advan- tage of the local area which had now become so well known, and the parish, instead of the township or the hundred, became the recog- (3) Ecclesi- nized unit of local government. The origin unity and of parishes, though not directly due to Theodore, 'fa^"" was the natural result of his system, which was to make the Church of England national instead of provincial, and English instead of Kentish, Mercian or West Saxon. By the ecclesiastical unity thus achieved, he gave to the English people a foretaste of the political unity to which they might one day attain, and to the English Church a position apart from, and in some respects superior to, the kingdoms amongst which she was placed. This enabled her to develop her own organization with great freedom, to gain a considerable amount of political liberty and privilege, and even to do much in guiding the policy of the different state* among the difficulties which surrounded them. It is this independent position of the English Church which makes her history so different from the neighbouring state-ridden Church of Gaul Character Let us try and picture to ourselves the leading English characteristics of the early English Church, w hen, in the eighth century, she emerged from the Development of the State. 273 the hands of Archbishop Theodore who, far more than Augustine or even Aidan, has a right to be considered her real founder and began to exercise a leading influence upon the development of the national life. She was in full communion with the great ( ! ) Rtla ~ tions with Church of the West. She held the same faith, the rest of was organized on the same pattern, and was fo h governed in the same manner, as had been distinctive of the Catholic Church since the apostolic age, namely by bishops and synods. But partly owing to insular position, partly to the influence of the Scoto-Irish missionaries, who had taken so large a share in the final con- version of the northern kingdoms, partly per- haps to the traditions of British Christianity which still lingered in the countries bordering on Wales and Strathclyde, she retained a measure of self-government and real indepen- dence which was unique among the Churches which acknowledged the patriarchal dignity of Rome. The dioceses of England were sixteen in (2) Dio- number, and, indeed, did not amount to more asttt than eighteen until the Reformation, of which twelve formed the province of Canterbury and four the province of York ; but as the latter province was of comparatively small importance T 274 until after the Norman conquest, and was almost cut off from the general growth of the national life for a century or more by the Danish invasions, the real interest of eccle- siastical affairs centred round the province and see of Canterbury ; and as Canterbury was close to London, and soon became absorbed in the leading power of Wessex, the archbishops very early began to exercise a great influence upon politics. to) Govern- The business of the Church was transacted i^tnt. mainly by the bishops, either in their synods national, provincial, or diocesan or personally, in virtue of their own spiritual authority. It would seem that most ecclesiastical legislation received the sanction of the State either by the admission of the king or ealdorman to the synod in which the laws were passed though it is not probable that they actually took part in the passing of the laws or by the subsequent confirmation of the Witan. There is no doubt that the aid of the temporal power was given, to the ecclesiastical authority in carrying out the law so passed, which thus became part of the law of the State as well as of the Church, and was administered, like other law in the hundred-moots and shire-moots. It is even probable that the State recognized and the Development of the State. 275 enforced sentences of the bishop, given in his own private court, in matters which affected the morals and discipline of the clergy. However this may be, the bishops certainly enjoyed a limited jurisdiction of a temporal character by common law, besides the considerable spiritual authority which they exercised over both clergy and laity, apart from the common law, in virtue of disciplinary canons and the codes of morals called penitentiaries, the rules of which were generally recognized as binding upon the con- science. Relations between Church and State, (4) Rela- so close and so liable to become confused, are "" highly characteristic of the rough-and-ready illogical way in which the early English con- stitution developed. They were only possible in a society in which the conception of law was in its infancy, where legislators and jurists did not distinguish over nicely between law and morality, and were content to make both coincide with religion. They could not stand for a moment under the keen criticism of Norman logic, nor, indeed, could they have long withstood the disintegrating effect of the spread of knowledge. Directly men began to see that it was possible that it might not be the duty of the State to punish all actions which were contrary to the law of God, a distinction 276 The Influence of tJie Church on was established between law and religion which necessitated the separation of two systems, which, though both dealt with human action, yet dealt with it from different points of view and with different objects, the one for the protection of society, the other for the welfare of the sinner's soul. During the whole of the period before the Norman conquest that dis- tinction can be seen gradually asserting itself, and -it was only owing to the sluggish tempera- ment of the Englishman and the political troubles of the nation, that the system we have been describing existed so long. A series of relations, in which two essentially distinct func- tions, the temporal and the spiritual, are con- tinually being discharged by the same persons, in the same assemblies, with the same sur- roundings, and under the same conditions, are obviously impossible except in a peculiarly or- ganized society, where the spiritual element is the stronger in intellect and takes the lead ; where the statesmen and people are docile, and not inclined to inquire closely into the principle of arrangements which work fairly well. The relation of the Church and the State in early English times may not unfairly be described as the establishment of the State by the Church. When William I. and Lanfranc the Development of the State. 277 altered this by recognizing the authority of each in its own sphere, they were only carrying quickly into effect what must inevitably have come about slowly in the course of a few years. By substituting an alliance between the two powers for what had been almost an absorp- tion of one by the other, they were taking a necessary step onwards in the progress of the national life ; though by so doing they raised for the first time in English history the problem of the due adjustment of the relations between the two, which has always hitherto proved, and must always prove, insoluble. At first the maintenance of the clergy was (5) provided for by free offerings of the people, o which tithe was the most important item. At the Legatine Council of 787 that which had been a religious obligation on the faithful was made legally binding upon the whole as a Christian people, and the payment of tithe to the bishop became just as much an obligation of law as the payment of taxes to the king. Considerable freedom was, however, still permitted as to the church or parish to which each individual land- owner should make the necessary payment Although in theory the whole tithe of a diocese ought to be paid to the bishop, and by him divided among the several parishes at his dis- 278 The Influence of the Church on cretion, the practice soon grew up of devoting the whole, or some considerable part of it, to a monastery in return for privileges accorded to the benefactor. It was not until the year 1200 that the final appropriation of tithe to the mainte- nance of the parochial clergy was made universal, by which time a very considerable portion of the tithe of England had become annexed to religious houses, and was accordingly forfeited to the king on the dissolution of the monas- teries in the reign of Henry VIII., and by him granted out or sold to private owners. (6) Monas- The monasteries formed the greatest glory, and gave rise to the greatest abuses of early English Christianity. In the earlier days of the conversion the monastery was the station of the missionaries, the home of the bishop, and the school of the priesthood. When the Church had won the ground and was endeavouring to justify her occupation of it, it was the monastery which trained the younger candidates for the mission field, and which supplied the necessary teaching for a cultured clergy. English Chris- tianity became distinctly tinged with monasti- cism. It became the fashion for Englishmen and Englishwomen to retire into monasteries either permanently or for a limited time, with- out wholly throwing off the cares or the plea- tJie Development of the Sate. 279 sures of the world. Retirement, in an age of roughness and of loneliness, to houses which were larger, more comfortable, and better built than most of the houses of the time, where society was easily obtainable, and the restraints of religious rule certainly light, perhaps hardly perceptible, made no very great demands upon the self-denial of the inmates. But there were other evils besides this laxity of administration from which the monasteries suffered. Among them abuse of patronage was by no means the least. Kings and great men soon began to look upon the monasteries, of which they were the benefactors, in the light of their private property ; and there is evidence to show that even an hereditary succession of monastic estates in particular families was com- paratively common. By the ninth century this spirit of laxity Effect tf \ the Dam* which was thus visible in the monasteries had extended to the whole Church. During the long period of political confusion, which lasted until the time of Egbert, while one kingdom after another was enjoying a brief period of pre-eminence, from which it was sure to fall back into a condition of chaos worse than before, the Church became the only constant factor in the State polity. To the bishops, accordingly, fell 280 T/ie Influence of the Church on so considerable a portion of political power, that in some cases it would seem that the Church actually played the part of king-maker. This could not fail seriously to affect the spiritual authority of the clergy. Insensibly the standard of clerical life begins to sink among the secular clergy, as it had already sunk amongst the regulars ; and with it sinks the standard of education and culture. Bishops are found worldly enough to lead their men into the battle- field. On the accession of Alfred in 871, the ignorance of Latin was so great that there were no clergy south of the Thames who could under- stand their breviaries, and the books in the monastic libraries were perishing from neglect Upon a Church so deteriorated the Danish conquest came like a whirlwind. Northumbria, hitherto celebrated for its learning, became almost divided off from the rest of England. The power of the northern primate became seriously curtailed by the extinction of the dioceses of Hexham and Whithern. This isola- tion of the north, coming as it did just at the time when the centre of political power finally settled itself in the south, deprived his province of the benefit of the revival of learning and discipline associated with the names of Alfred and of Dunstan, and made the inaccessible north ttte Development of the State. 281 permanently lag behind the now united south in the path of civilization. It is not till after the Norman conquest that the northern primate attempts to assert anything like an equality with his brother of Canterbury. It is not till the end of the eighteenth century that the north of England plays a leading part in direct- ing the affairs of the country. In the century following the conversion, the Altered Church had taught England to be one, and thereby assumed a position of independence vt almost unique among national Churches. In Alfred. the revival which immediately followed the attacks of the Danes, the initiative, on the con- trary, came from the king, and not from the Church. It was the royal, not the ecclesiastical, power which won back for England her unity, and which taught her to lead captive her Danish conqueror. It was the royal power, not the ecclesiastical, which restored to the Church her dominion over the conquered districts of Eng- land, and which infused into her a new desire for knowledge and stirred a love of learning. The natural consequence of this was that the spiritual power became more closely united to, and more dependent on, the royal power than before. With the growth of dependence came a corre- sponding loss of initiative. During the tenth and 282 eleventh centuries the Archbishop of Canterbury takes his place as the trusted, often the chief, adviser of the king. The bishops play a large part in the assemblies of the Witan. Provincial and diocesan councils are held more rarely. English ecclesiastics begin to look abroad for assistance and improvement The connection with Rome becomes closer, and English monas- ticism is reformed on the pattern of that of Gaul. Under Edgar the Church is seen openly directing and controlling the national policy. Dunstan, although the leader of a great clerical reformation, fs yet much more a great statesman than a great ecclesiastic. He is the first of a long line of English ministers who, without forgetting their ecclesiastical position, still less unmindful of the privileges of their order, have yet devoted their time and their talents mainly to the secular work of carrying on the government of the country. In such men the close connection between Church and State appears to the best advantage, when, like Dunstan, they busy them- selves in removing all traces of difference between Danes and Englishmen, in establishing the supremacy of the English king firmly over all the subject princes of the island, in furthering the cause of religious education ; to the worst advantage, when, like Ranulf Flambard, they lend the Development of the State. 283 themselves to be the ministers and sycophants of an unprincipled despot In the last few years of early English kingship, when the foreign and the national party under Edward the Confessor were rehearsing the struggle afterwards fought out on the hill of Senlac and amid the fens of Ely, it is round Church questions that the rivalries centre. The foreign appointments of the Confessor, the intrusion of Stigand into the vacated seat of Robert of Jumieges, the relations of Harold to the antipope Benedict, are the questions which give strength and weakness to one side or the other, which decide men's actions, and do much to determine the issue of the final appeal to arms. It is significant how much the party of Godwine owed to a body whose support they had never taken particular care to secure. When we find that successive kings as different as Edward and Harold become the benefactors of the Church by the monastic foundation of S. Peter's of Westminster and the secular foun- dation of Holy Cross at Waltham, and that great ealdormen like Leofric of Mercia, are noted for liberality in the foundation of monasteries, it is clear that the Church was powerful enough for the great men of the day to wish to gain her favour. It is more difficult to say how far this partial loss of independence and incr 284 The Influence of the Church on \vorldliness helped to bring about the national failure, in the face both of Danish and of Norman conquerors, which is the distinguishing feature of the history of England in the eleventh century. Perhaps it is not unfair to assume that the ease with which English statesmen and English ecclesiastics had succeeded in retaining their dignities and emoluments under Canute, made them unable to appreciate the danger to the liberty and independence of the institutions of the nation, both ecclesiastical and civil, which was threatened by the invasion of the Normans ; too ready to acquiesce nervelessly, if unwillingly, in the rule of a foreigner, whose close connection with the papacy and whose absorbing interests in Normandy could not fail to bring England under influences quite other than those which had hitherto affected her national growth. The Nor- The effects of the Norman conquest are seen man con- . quest. at their greatest in the history of the Church. They are far more simple and far more imme- diate than those which are noticeable in civil matters, but the general tendency of both is the same. In other words, William I. was a man who thoroughly understood his own mind, and intended to have his will obeyed implicitly by all his subjects. His policy, therefore, with regard to the Church was similar in all respects the Development of t/ie State. 285 to that which he adopted towards the State ; and it mattered not whether he was dealing with a powerful and successful pope, or a weak and discredited archbishop. In all cases he would be fair, as he counted fairness, give to each his acknowledged due, be strictly just but never generous, and take care that under no circumstances, as far as he could foresee, should any rival be allowed to the power of the king within his realm of England. Norman barons had disputed his succession to his duchy. Norman landowners, strong in the undivided allegiance of their vassals, had joined his rival of France in his earlier wars. Norman arch- bishops and bishops, sprung from feudal families, enjoying what were almost hereditary honours, had attempted to use the authority of the Church to favour the plans of his enemies. They had even been inclined to question the binding force of the papal blessing upon his English expedition. He would take care that no such dangers should threaten his English throne. English barons were to be carefully prevented from obtaining large united territorial possessions. English landowners, one and all, were to be dependent on the king and responsible to him alone. English archbishops and bishops were 286 The Influence of t/ie Church on to be merely his nominees, for as yet they were not even clothed by feudal law with the quali- fied independence of feudal lords. All traces of hereditary right in English sees and English abbacies were to be rigorously swept away. Above all things, the unity of interest between ecclesiastic and baron, which might not improb- ably threaten the supremacy of the Crown, was to be turned into jealousy and suspicion. The clergy were cut off from a participation in much of the ordinary administration of justice, and a common interest in the law of the land, by the establishment for them of a judicature and a legal system of their own in all matters not wholly secular. Placed thus under the authority of courts of their own, governed by the canon law and not the common law, they became re- sponsible in the last instance to the pope and not to the king, but the avenue to the papal court was carefully barred by the necessity of first obtaining the assent of the king before the appeal to the pope was allowed to be lodged. Character In carrying out this policy, William had the Of I^QJto* franc. advantage of having at his side one who combined in a singular manner the zeal of an ecclesiastic with the wisdom of a statesman. Lanfranc, like Dunstan, was well fitted to be the guide and adviser of a great king in eccle- t/te Development of tJie State. 287 siastical affairs. His unerring tact enabled him, unlike Dunstan, to avoid making the advice of a friend to grow into the dictates of a minister. He had a further advantage over Dunstan in that he was born in Italy, and had received the training of a lawyer. Long before William had even planned his expedition to England, Lanfranc was well known through- out the West as one of the greatest of European scholars. Italian by birth and Norman in spirit, he knew the strength and the weakness of the papal system, now growing to maturity under Hildebrand. He had himself been more than once the special advocate of Rome. He was now the trusted minister of a king who prided himself on admitting no superior authority to his own in his realm of England. If only the Nature of r , . theproblem centralization of Rome, its business capacity, before its moral power, its legal system, could be**"** made to work harmoniously with a constitution which, depending on no principle and embody- ing no theory, had yet hitherto given to the people of England a large amount of personal independence and political self-government, and was in the future, with all the changes introduced by the conquest, to save them from the anarchy of unchecked feudalism and the misery of unchecked tyranny : if the relations 288 The Influence of the Church on between Church and State could be so regulated, that the moral power of the Church might pre- vail to prevent the despotism of the king from degenerating into tyranny ; and the jealousy of the king invoked to prevent the independence of the Church from degenerating into unpatriotic privilege, how great might be the future of England ! It was a policy well worthy of two such men as William and Lanfranc, but to carry it out successfully it was necessary that many Williams and many Lanfrancs should successively direct the fortunes of England, in order that a time of steady and orderly govern- ment might appease the heart-burnings conse- quent on the Conquest, and make Englishmen not merely contented with, but attached to, the new state of things. Such a time of much-needed Measures rest was not secured. Under Lanfranc's guid- franc! ance, William remodelled the old English system. All traces of uncanonical irregularity were first swept away. Stigand was deposed, and bishops consecrated by him obliged to receive recon- secration. Normans were appointed to all the most important ecclesiastical offices. The re- lations with the papacy, which had for some time been far from cordial, were now drawn much closer. Peter's-pence was regularly paid, the approbation of the pope was sought in the Development of the State. 289 most matters of importance, his authority in legal and moral questions was more invoked. William, indeed, refused in decided terms the claim for homage made by Hildebrand, and laid down in the clearest possible way, in what he called the customs of the English Church, the absolute right of the king to decide for his subjects to whom their spiritual allegiance should be given, to control the enforcement of Church legislation, and to check the admission of papal messages ; yet, inasmuch as the opportunities given to the pope to exercise authority were naturally much increased by the incorporation of England into the society of western nations, it was only to be expected that those oppor- tunities should be fully and freely used. We find, therefore, the Church, as influenced Results of by the Norman conquest and moulded by the O f William genius of William and Lanfranc, assuming a position much more defined, and representing interests much more distinctively her own than before. She is now a society within the State, with other objects than those of the State, organized purposely as a power apart from the State. She absorbs most of the intellect, and con- sequently embodies most of the political thought, of the nation. She is ruled by a hierarchy thoroughly imbued with the high ideas of U 290 The Influence of tlie Church on spiritual prerogative dominant on the continent. She is closely attached to the papacy, which is the concrete expression of those ideas. Yet she continues to recruit the ranks of her priesthood from men who have learned to value traditional independence and constitutional freedom. Taking to herself as far as possible the cognizance of all legal questions affecting morals, she no longer makes English law coincide with Church disci- pline, but nevertheless quickens its growth by the spur of her own rival system of the canon law a system more scientific in character and more extensive in scope. of Church and State are now organized as tht Church in relation separate and possibly rival institutions. Above ' both is set the king, with a sway undisputed over the State, and limited over the Church by her spiritual independence, but nevertheless powerfully affecting her every movement. In the king is found the point in which the two systems combine. He is the champion of national freedom against the pope, of ecclesiastical order against the baronage, of uniformity in govern- ment against clerical privilege. He is therefore inevitably found sometimes on the side of, but more frequently opposed to, ecclesiastical autho- rity ; on its side when, like William I. or Henry I., he requires its aid against feudal anarchy, the Development of the State. 291 against it when, like William II. or Henry IL, he finds ecclesiastical authority interfere with the free exercise of his own methods of govern- ment Hitherto Church and State together, have, under the leadership of the Church, taught England to gain her unity, given to England her national feeling, and formed for her in no slight measure her polity. In the future we have to trace how, as separate powers, sometimes in alliance, sometimes in enmity, always in competition, each assists in the growth of the other, and helps to evolve out of the chaos of conflicting interests, something of the orderly principles and practical good sense characteristic of the English constitution. During the period that elapsed between the Alliance Conquest and the death of Henry II., the church dangers which threatened the prosperity and^^' the liberty of Englishmen came from the feudal u>ith th * People. baronage. The alliance between the Crown and the people is close throughout, and the people gladly support the supremacy, and even acquiesce in the tyranny, of the Crown, because they recognize that in the Crown is found the only efficient safeguard against the far worse tyranny of the nobles. The influence of the Church was thrown on the same side. It was to Lanfranc and the English that William Rufus owed hi? 292 The Influence of the Church on crown. Henry I. recognized Anselm as the chief adviser of himself and his people. When Anselm himself becomes the champion of papal pretension, the bulk of the clergy are found on the side of the national king. It was when Stephen quarrelled with the bishops that he began to lose the confidence of the country. Even the monks, who are found a few years later such ardent champions of papal preroga- tive, were at this time thoroughly national and patriotic in feeling. The devolution of the Crown, the suppression of the feudal risings, the maintenance of orderly government, are due in no slight measure to this close alliance between the Crown, the Church, and the people, under the Norman kings. Other results flowed from it Growth of of more questionable advantage. The Norman "lawyer sovereigns, lawyer-like in mind, anxious to ecden- stretch legal principles in their own interests as far as possible, determined never to forego any advantage which the letter of the law might give them, desired to be served by men who, free from hereditary ties and class sympathies should be wholly devoted to the service of their masters. Such a class of men was found in the lawyer ecclesiastics like Roger of Salisbury and William GifTard men whose legal ingenuity had been sharpened by knowledge of the law of the tJu Development of the State. 293 Church, who had learned business habits in administering the affairs of a great household. From being merely the servants, they grew into the advisers of the king. From being ministers, they became statesmen. The administrative reforms of Henry I. and Henry II. were largely carried out by men of this stamp. As a reward for their services they received ecclesiastical pre- ferment They brought the knowledge of legal Their . principle and procedure which they had gained from the civil and canon law, to assist the c nstttu - twn. development of royal authority, and the establish- ment of a system of procedure, sufficiently intri- cate to require the assistance of a professional class for its administration. Thus the feudal nobles became gradually ousted, not merely from the business of the country, but even from their own jurisdictions, but the Church herself, though spiritually the weaker, became politically the stronger, from having among her principal officers the men in whose hands the duty of administering the affairs of the country mainly lay. The Crown and the Church were thus in- Quarrel ... . . . i /-, , betu'een the creasing in power side by side the Crown by church being the centre of the opposition to the feudal baronage, the Church by her connection with a wider world abroad, by her official relations 294 The Influence of the Church on with the Crown at home, and by her hold on the affection of the people as representing a power higher than that of mere force. A contest was inevitable between the two, directly either attempted to assert complete freedom from the Its consti- control of the other. It is here that the consti- f imj>or? tut i na l importance of the struggle between Church and State in the twelfth century really lies. If Ranulf Flambard and William Rufus had succeeded in making ecclesiastical offices in all points subject to the ordinary law which regu- lated lay fiefs, if bishoprics had been degraded into mere pieces of patronage belonging to the king property which he might deal with as he liked, if Henry II. had succeeded in im- posing the royal supremacy completely upon the . Church, the liberties of Englishmen would have suffered no less than the privileges of the Church. To look at the struggles between Henry I. and Anselm, and between Henry II. and Becket, simply as struggles between royal supremacy and clerical privilege, is merely to look at one side of the question. The Church had joined with the Crown and the people to suppress the power of the feudal nobles. The Crown, thus rendered supreme over the feudal state, armed itself with the weapons of feudalism to enforce a similar tJie Development of the State. 295 supremacy over the Church. At the same time, the Church, stirred by the success of the papacy, conscious that it represented a higher moral ideal in government, was trying to use the weapon of the canon law to render itself independent of the control of the Crown. The complete victory of either would have been fatal to the well-being of the nation, for the Church repre- sented the only idea of moral government attainable in that age of force, and without the idea of moral government, constitutional liberty is impossible ; while the Crown represented the only idea of national unity attainable in an age of feudalism, and without national unity con- stitutional liberty could not be won. It was just because neither was completely victorious, but because each was victorious in its own sphere, that the ultimate achievement of liberty was assured. In the question of investitures the symbols of spiritual power remained with the Church, and those of the temporal power with the king. By the Constitutions of Claren- don Henry obtained a recognition of the doc- trine that in his realm of England the king is over all persons, ecclesiastical as well as civil, supreme. By the abrogation of the constitutions on Henry's penance, the Church received a guarantee that this royal supremacy would be 296 The Influence of the Church on exercised with due regard to her superior moral claims. Each of the rival powers was thus vic- torious in its own sphere, and by its victory was able first to forward the complete unity of the nation under the king, and then to limit the king's authority when it threatened to degenerate into tyranny, by the checks of the independent rights of the Church and of the people, as we find them laid down in Magna Carta. Altered Looking at the relations between Church and 'between State at the time when, by the penance of Church Henry II., the struggle may be said to have and State income- ended, we are conscious of a great change in the position of both parties. The Crown is now completely free from feudal rivalry. It has successfully established in central and local government a system of administration, both fiscal and judicial, of which it is itself the head, and to which it supplies the motive power. It has further surrounded itself with a body of officials, owing their position wholly to the royal pleasure, and entirely dependent upon the royal favour, to whom is committed the duty of administering a strongly centralized system of royal government. The bureaucracy of modern despotic and republican governments is strangely anticipated by the house of Anjou. The only check to an administrative tyranny, the Development of the State. 297 in which judges, legislators, and ministers are all dependent on the king and the king alone, is found in a Church as highly organized, with an administrative system of judges, legislators, and ministers of her own, almost independent of the king. The Church claimed to represent a higher morality than that of the State, and to give effect to it by the system of appeals to the pope, now well established. She was enabled, by the knowledge of the civil law but lately revived, and the canon law lately codified by Gratian and Ivo of Chartres, to oppose a legal system to that of the Crown as perfect and more scientific. She trained for the service of the king most of the ministers to whom the task of ad- ministering the affairs of the kingdom were en- trusted. When she added to her independent organization and intellectual superiority a unity of purpose which was strengthened by the en- forcement of celibacy, and a zeal which was stirred by the development of monasticism, she became a rival too strong for the Crown to overcome a power capable of awakening the slumbering energies of a nation which had not had time wholly to forget the traditions of its old freedom. The exactions of Richard I. and the tyranny AlHanteof of John broke the alliance between the Crown with tkt 298 The Injliience of the Church on barons and and the Church, which, though it had been a/?afst 'he sorely strained by the struggle of the twelfth Crown. century, had yet existed since the days of William I. From the death of Hubert Walter in 1205, the influence of the Church is thrown on the side of the barons and the people, in opposition to the Crown. It is the Church which, under the leadership of Stephen Lang- ton, obtains Magna Carta from John, on the basis of the charter of Henry I. It is the Church which, on the death of John, takes the lead in settling the government in the hands of the regent Pembroke, on the basis of Magna Carta. But although the influence of the Church was on the popular side, and did much to gain and establish popular liberty, ecclesiastical feeling was not by any means Formation unanimous. The unconditional surrender of partitiin J onn t ^e pope threw all the influence of the papacy on the side of the tyrant, and Church s (a) the caused the rise of a party in England which, 03) "the being primarily devoted to the interests of the national. p O p e> found itself usually supporting the autho- rity of the king. Thus was formed an alliance between despotism in Church and State which proved terribly detrimental to both. The papacy, in constant opposition to the best feeling of the Church and the free instincts of the nation tJie Development of the State. 299 forfeited her claim to represent a higher morality. The king, too often seen to be the servant and the tax-gatherer of the pope, for- feited all right to be considered in an/ way as the representative of the nation. We thus find in the Church of the thirteenth century two distinct parties. The one comprised the royal nominees, the foreign ecclesiastics and the regular clergy, both monks and friars, who, strongly attached to the papacy, and supporting the claims made by the popes to govern England as a papal fief in virtue of the submission of John, lent their assistance to a discredited crown, willing to purchase it by unworthy deference to a foreign power. The other consisted of the leaders of the constitu- tional baronage, the bulk of the secular clergy and of the commonalty of the land, who, actu- ated by strong, almost unreasoning, dislike of foreigners, and in constant opposition to the king, were anxious to resist papal encroach- ments, not because they denied papal preroga- tive on principle, but because they desired to limit it as well as that of the king by the checks of legal precedent and national right. Pope and king were therefore united by adherence to a common principle and opposition to a common enemy. Church and people found, 300 The latter themselves threatened by a common tyranny. Men like Grosseteste and Edmund Rich, second party, the t o none in their loyalty to the papacy as an supporters J J f f J of Earl institution, were compelled to head the protest of the con- against the abuse of papal power. In the rising of the barons under Simon de Montfort, and party. i n the Provisions of Oxford, the political charter of the rising, the Church made common cause with the people, and sanctioned a resort to force on behalf of liberty, as the only ultimate appeal in a constitution still imperfect In the great constitutional struggle against Edward I., which resulted in the confirmation of the charters, and the acknowledgment by the king of the principle that taxation without con- sent of Parliament was illegal, the Church under Archbishop Winchilsey, played no small part It was the opposition of the clergy to the taxation levied by Edward that stirred the oppo- sition of the baronage. It was the combined action of the two estates that forced the king to yield. The motives of the spiritualty were, it is true, by no means wholly patriotic. By the bull clericis laicos, Boniface VIII. had asserted the principles of clerical pretension and caste exclu- siveness in their worst forms, by denying the right of the temporal power to tax the clergy at all ; and the bishops in supporting him pressed tJie Development of the State. 301 their spiritual allegiance to the pope further than their duty to their country could possibly warrant Nevertheless, directly opposition to the royal demands was begun, the clergy found sympathizers with their actions, if not with their motives, from among the baronage, and the question was at once raised to a higher platform, and fought out and decided on the higher ground of constitutional principle, instead of the lower one of clerical privilege. By the institution of R Parliament Edward I. gave the answer to the great question how it was possible to combine a*<*ntstatt national institutions with monarchical govern- realm. ment, and the Church received the reward of her patriotism by the full recognition of the spiri- tualty as an estate of the realm. The power which had taken the lead in the gaining of liberty under John, had done so much to con- solidate liberty under Henry III., was under Edward I. to form an integral and important part of the institution of Parliament, by which liberty was to be finally guaranteed and de- veloped. T^L^^^^ By the organization of Parliament the struc- influence ture of the English constitution was complete. ci*rek The principle of representation thus applied to*^" M ' matters of government, when combined with the of the row- hereditary principle by that time become domi- '' 3O2 The Influence of the Church on nant over the Crown and the nobility, brought about the balance of constitutional forces known as a limited monarchy. From the time of Edward I. the question of what kind of govern- ment England was to have was settled. It was to be a limited monarchy government by king and Parliament. In the decision of that ques- tion the Church had played an important part, both politically and constitutionally politically by severing her old alliance with the Crown, and giving herself over more or less unreservedly to the cause of liberty as maintained by the barons and people in their struggles with John and Henry III. constitutionally by the influence she exerted on the actual result of the frame- work of the constitution, on the legislature, and on the executive. We will now go on to con- sider this latter point more in detail, (i) Repre- Representation. The principle of represen- tation is the key-note of the English constitu- tion. It is by the application of that principle to the different parts of government that the will of the nation is brought to bear upon the action of its rulers, and that some guarantee is obtained that the policy of the countiy will be directed in accordance with the interests of the whole body of electors, and not in favour of one particular class. Foreign writers have often remarked the Development of the State. 303 upon the ease with which this great constitu- tional principle established its supremacy among English institutions. Although it would be too much to attribute this entirely to the influence of the Church, there is no doubt that her ex- ample did much to pave the way. Representa- tion was a mode of obtaining the opinion of large numbers of people quite familiar to eccle- siastical statesmen like Roger of Salisbury, Becket, and Hubert Walter, to whom is mainly due its development as the leading principle of civil administration. Ecclesiastical councils, diocesan, provincial, or national, had been based on this principle from the earliest times. The close connection between Church and State which had existed before the Conquest had accustomed men's minds to a system which was reasonable in itself and convenient in practice. The number of important councils summoned by the popes during the twelfth and thirteenth cen- turies had shown how valuable might be the sup- port given by a body of representatives, coming from different parts of Christendom, to a cause which claimed to depend upon moral right rather than upon force. The plan, familiar to an ecclesiastical body, of electing proctors to repre- sent their case when disputes arose, before the courts of pope or the king, possibly suggested 304 The Influence of the Church on the similar machinery of the election of sworn knights to nominate the recognitors of the Great Assize. Naturally, therefore, when in the thirteenth century it was found necessary to enlist in some definite way the support of the whole nation in the effort to secure for all classes the benefits won for them by Magna Carta, recourse was had to a principle of government which, through the example of the Church, was well known to the people ; and which had brought to the Western Church in its contest with the emperor just the very kind of strength which the nation was now seeking in its struggles with the Crown. (2) Legal The Legal system. In the forms of the ^ " legal system, as gradually developed in the twelfth and thirteenth centuries, the influence of ecclesiastical procedure is more marked. The reason is not far to seek. The ecclesiastical system of law preceded the national system in time and excelled it in precision. Disciplinary canons, formally passed with all the authority of a large representative assembly, and claiming by that authority permanently to bind the action of Western Christendom, were well known and commonly obeyed, while Norman legislation was still in the tentative form of assizes and pro- visions. The canon law had been codified and the Development of the State. 305 systematized by Ivo of Chartres and Gratian before the statute-book began to be. It is not until the law takes the fully defined form of statute under Edward I. that the analogy to the ecclesiastical canon is complete. There is reason to think that the practice of the royal courts was copied direct from the courts ecclesias- tical. The Church holy days, appointed to be observed by the canon law by the cessation of all litigation, were equally observed in the royal courts. The forms of pleading by which suits were begun were substantially the same ; the same rules of practice obtained, and even appa- rently the same law of evidence. 1 Records of pro- ceedings were ordered to be kept, in imitation of the documents found so useful in ecclesiastical litigation. At the same time, it must be remem- bered that directly the common law became elaborated into a system, the jealousy shown by the common lawyers of both the canon and the civil law was most obstinate. After the time of Henry III. the influence of the ecclesiastical law and procedure ceased to be the direct influence of an example, and became merely educational, 1 This is the view of Mr. J. G. Phillimore (see " Oxford and Cambridge Essays:" Essay on the Influence of the Canon Law), but the procedure of both the canon and common law may have been taken from the civil law. X 306 The Influence of the Church on i.e. that of a rival system of jurisprudence, the study of which was interesting and necessary to the properly trained jurist, but was without direct bearing on the practice of the courts. Vindication of individual right. We have cation of .^. . . , individual seen that the Church, owing to her position of independence, was the only power that was able to withstand the authority of a king, guarded and supported by a bureaucracy of his own nomination ; and we have seen how the Church used that power in order to defend her own privileges against Henry II., and national liberty against the tyranny of John. But it was not only by the occasional assertion of general principles that the Church helped to nourish and develope the growing plant of liberty. In all questions which affected the personal rights of the individual, she is found witnessing to a higher civilization and truer standard of duty. From the first the Church had always set her face against the institution of slavery, and had succeeded in mitigating, and eventually, in the twelfth century, in putting an end to it, chiefly through the efforts of men like Wulfstan, Remigius, and Anselm. Since then personal slavery has been unknown in England. The practice of ordeal, both in the coarse old English forms or in the more chivalrous Norman form the Development of the State. 307 of wager of battle, was equally obnoxious to the spirit of Christianity, and the reform of criminal procedure carried out by Henry II. received the support of the Church all the more readily, because it was seen that thereby the use of the ordeal would be greatly lessened. A few years later no difficulty was experienced in carrying out the abolition of the ordeal altogether in obedience to the decisions of the Lateran Council of 1215. In matters of unjust taxation the Church is found still more decidedly in the forefront of the battle. To Becket we owe the first refusal of a subject to pay a tax to the Crown which he believed to be unjust ; when he refused in 1 163, to admit the king's right to levy Danegeld * on Church lands as a part of the ordinary revenue of the Crown a refusal as bold, if not so patriotic, as that of John Hampden centuries later. To Hugh of Lincoln is due the credit of being the first who maintained successfully the doctrine that lands in England were not taxable by the king for the maintenance of a foreign war, with which England had no concern. Geoffrey, Archbishop of York, went into exile in 1207 rather than consent to the levying of a tax upon the clergy of a thirteenth on moveables, 1 There seems, however, to be some reason to doubt if this tax was Danegeld. See English Historical Review, October, 1890. 3O8 The Influence of the Church on which they had not in any way consented to give. Robert Grosseteste, Bishop of Lincoln, the friend and adviser of Simon de Montfort, led the opposition to the attempt of the king to take a tenth of the revenues of the clergy in 1252, on the pretext of a crusade, and pro- tested, with a freedom unusual in that age, against the unholy alliance of king and pope to plunder the English nation and Church. To Winchilsey, quite as much as to Bohun and Bigod, is due the obtaining of the confirmation of the charters by Edward I., by which taxation was put under the control of Parliament. These are but a few instances of the kind of warfare carried on by the Church on behalf of public and private liberty, both against the king and against the pope, during the period we are dealing with. That the constitution of England was eventually under Edward I., formed on the basis of a monarchy limited by law and guided by Parliament, by which was secured to each individual the enjoyment of public and private rights guaranteed by the law and defended by Parliament, was due in no slight measure to the constant influence of Church opinion on the side of liberty, to the educating effect of Church principles, to the example of Church polity, and to the self-denying patriotic labours of the Development of the State. 309 men like Stephen Langton, Edmund Rich, and Winchilsey, the leading minds among the clergy. Under Edward I. the mediaeval English state Character system attained complete development By the organization of the country in three estates the realm, the spiritualty, the baronage, and the commonalty, under a king whose authority over all, though supreme in principle, was limited in fact by the united action of the three estates assembled by representation in Parl-ament, the nation acquired a means of bringing influence to bear upon the government which could not fail, in times of royal necessity, to amount to little less than a control of the royal policy. It is the great merit of Edward I. that he sought to make his government rest upon the national will, and looked upon the union between the Crown and the people as the surest source of strength. In pursuance of this policy he summoned the famous Model Parliament of 1295, in which all three estates of the realm were adequately represented. Although the completeness of the design was somewhat impaired by the per- sistent refusal of the clerical proctors to attend the meetings of Parliament throughout the fourteenth century except upon compulsion ; yet as the bishops and abbots, who sat as barons in the Upper House, formed a majority of that 3IO The Influence of the Church on house, the interests of the Church were not likely to be overlooked, nor could the Parliament, even without the presence of the clerical proctors, be considered in any way insufficiently representa- tive of the spiritual estate. The character of the constitutional warfare is, therefore, somewhat altered. In Parliament an institution has been found tolerably representative of the interests of the whole nation, an organization capable of asserting those interests against the Crown or the Church, a power which, when once it has obtained control of taxation, must by the law of necessity go on to obtain control of policy. The history of the constitution of England during the fourteenth and fifteenth centuries is the history of the gradual acquisition of political power by Parliament at the expense of the king, and by the commons at the expense of the king and of the nobility, and the constitutional importance of the Church 'vill be found in the influence she brought to bear upon the com- Altered batants on either side. No longer, as in former character ..,. . . . of the in- times, does she educate political opinion ; no theChvrch l n g er does s ^ e stand forth as the champion of in come- popular right, or the representative of popular quence. instincts. Her place in these matters is taken by Parliament The more that her organization is perfected, the more that definite theories of the Development of tJte State. 3 1 1 the nature and limits of her authority are enunciated, the more does she tend to become an imperium in imperio, intent upon the main- tenance of her own class interests, less and less sensitive to the pulse of the national feeling. Just as the national will is being brought to bear more directly upon government, and is. affecting constitutional growth, the Church is beginning to lose her hold upon the nation. The influence she exercises upon the development of the constitution arises no longer from the fact that she represents the best thought of the nation, but from the fact that she is in herself a great institution, rich, educated, and strong, the policy of which cannot fail to affect powerfully the fortunes of any country in which she is planted. It will be convenient to treat of the influence of the Church on the State during this period by considering her relations, first to the pope ; secondly to the king ; and thirdly to the people. Relations of the Church to t/te pope. The Relation hierarchical theory of the Church, which insisted " on the superiority of the spiritual over the temporal power, and exalted the claims of theory of the papacy as the visible embodiment of the church. spiritual power over all ties personal and national, received in the thirteenth century in England, an acknowledgment more than ordi- 312 The Influence of t/te Church on narily submissive, owing to the fact that Eng- land had been, since the reign of John, a fief of the Holy See. Men were prepared to admit the supremacy of the pope as Vicar of Christ in matters of faith and morals. By many he was regarded as their feudal suzerain. They were not clear-headed enough accurately to distinguish the claims he made upon them in his spiritual or temporal capacity. So it happened that, while the feudal exactions levied because England was a fief of Rome, were for a long time more easily acquiesced in, because of the moral prestige of the papacy ; still, on the other hand when the exactions became so intolerable as to excite indignant opposition in the nation, that opposition was directed almost as much against the spiritual claims of the pope as against the abuses of his temporal government. Those who, under king or barons, were seeking to prevent excessive papal taxation found them- selves also compelled to put a limit to papal appeals, to renounce papal suzerainty, to check papal patronage, and to vindicate national independence. The papal system had become so highly developed that it was impossible to excite opposition to any part of it without affecting the whole. Clerical taxation was one great matter of the Development of the State. 313 dispute. After the thirteenth century, hardly (2) Tax- ation of the any attempt was made by the popes to tax d^gy b y the whole nation, and by the final repudiation ttu PP e - of the papal suzerainty in 1366 all ground for such claims was taken away ; but the exac- tions on the clergy continued with more or less severity throughout the mediaeval period, although their pressure sensibly abated after the popes had removed to Avignon. First-fruits of bishoprics and other offices seem to have been paid with some degree of regularity from the beginning of the fourteenth century. Papal demands for subsidies were refused even by Richard II. and Henry VI., but the tax of a tenth of ecclesiastical revenue was frequently imposed, and, though in name it was granted voluntarily by the provincial synod, it was in reality a compulsory tax levied by the pope and enforced by the king. Impositions of this sort, regularly levied from time to time, could naturally only be collected with the consent of the king, and gave him convenient oppor- tunity to exert pressure on the pope, when he found it desirable. Besides these regular sources of revenue, the pope obtained large sums from the English clergy, in the shape of fees for appointments and dispensations and bulls of various sorts, which, being less under 3 14 The Influence of the Church on the guardianship of the State, formed a ready (3) Papal engine of fiscal tyranny. Patronage, however, magt ' was a more serious abuse than taxation, and one which affected the interests of the nation more nearly ; for, as the bishops and abbots formed the majority of the House of Lords, the question with whom their appointment lay was one of the m6st serious constitutional import. It is not, therefore, surprising to find that the kings fought hard to retain the decisive voice (a)Ap- in the nomination of bishops. Over the election qf"is/ioj>s. f abbots they could hardly expect to be able to obtain much control. Nor, indeed, did it so much matter, as the abbots, besides being in a position of less influence than the bishops, were much less regular in their attendance in Parliament Historically, the question of the appointment of bishops was a somewhat com- plicated one. Before the Conquest the nomina- tion was usually made by the king and Witan, though there are some instances of election by the clergy of the diocese. The Norman kings at first nominated bishops in their Great Council, but during the progress of the struggle about investitures it came to be the usual practice that although the king nominated the candidate, the form of election was allowed to the cathedral chapter ; while the bishops of the province con- the Development of the State. 315 firmed the appointment and the temporalities were granted by the king. In 1214 John granted to the chapters, by a charter which was confirmed by the pope, the right of free election, subject only to the approval of the Crown. Long before, however, the popes had themselves succeeded in obtaining a voice in the matter by the grant- ing of the pall to all metropolitans, without which they rarely dared to exercise jurisdiction, and by establishing their right to decide, in the last instance, all cases of disputed elections a right which, in the thirteenth century, they construed to include the privilege, not merely of deciding between rival candidates, but of deciding against them all, and of consecrating a nominee of their own instead. In the thirteenth century, by means of the skilful use of this appellate jurisdiction, so gene- rally recognized and often invoked, the popes succeeded in getting the nominations of the metropolitans in many cases entirely into their own hands, and obtaining a large share in the appointment of the suffragan bishops. In the succeeding century they completed the edifice by quietly assuming, by means of provisions, direct {/8)/v- lisions. patronage over appointments as to which in former times they had only exercised the rights of a judge of appeal. Ever since the middle of 316 The Influence of the Church on the thirteenth century the pope had persisted in claiming to appoint, by provision as it was called, their own nominee to benefices in England, in derogation of the rights of the patrons. The barons and people had from the first fought hard against the innovation, and the bishops themselves had done their best to avoid obedience ; yet so well established had that practice become by the beginning of the four- teenth century chiefly owing to the connivance of Henry III. and Edward I. that in 1313 Clement V. thought the time had come when he might safely extend it to bishoprics. During the whole of the century the system continued to flourish, generally by arrangement between pope and king, in spite of Act of Provisors, which was passed by Parliament in 1351 and re- enacted in 1 390 with the express object of putting an end to it The weakness of the papacy at the beginning of the fifteenth century through the Avignonese captivity and the Great Schism, naturally checked the successful assertion of illegal and universally detested claims. Henry V., by restoring to the chapters the right of free election during the schism, seemed to have dealt a severe blow to the papal pretensions ; but the reunion of Western Christendom, under the able and aggressive Martin V., made matters worse the Development of the State. 317 than ever. A king like Henry VI., weak in mind, the prey of court factions, and dependent upon clerical support, was in no condition to resist, and from that time to the Reformation most of the bishops seem to have been appointed by pro- vision, although the pope always took care never to pass over a candidate strongly desired by the king. The exercise of patronage, therefore, Results of during the Middle Ages, whatever its fluctua- ^jf" tions, tended to dissociate the clergy more and Church. more from the life of the people. Whether it was being exercised mainly by the popes in favour of Italian or English officials of the Roman Curia, or whether it was being exercised by the king in favour of his own courtiers or lawyer-ecclesiastics, the nominees of both equally lived apart from the life of the Church and of the nation. They had too little in common with the bulk of the clergy whom they ruled, or the people to whom they ministered. They formed an official class, obnoxious to all below them, and envied by all about them, a class the prejudices, nay, the very existence of which gave point to the attacks of Wycliffe, rendered impossible the attempted reformation of Colet and More, and left the Church helpless and defenceless when the strong arm of the royal power was turned against her by Henry VIII. 318 The Influence of the Church on (4) Papal Jurisdiction. We have seen how in matters o f patronage the popes used their position, as the supreme arbiters of Christendom, to acquire a direct control over the higher appointments in the English Church. A similar system of tactics was pursued in matters of jurisdiction. Before the Conquest, practically speaking, there were no appeals to Rome at all. Under the earlier Norman kings they became comparatively com- mon, but the previous assent of the king was always required before the appeal was lodged, and the removal of the dispute to Rome was therefore more that of a reference to an arbiter than an appeal as of right to a final court. Never- theless, as the practice of appealing to Rome became more frequent, the idea of an arbitration died away, and by the accession of Henry II. it had become pretty universally acknowledged that the Roman Curia was the final court of appeal in ecclesiastical cases. This was the practice which Henry II. tried to abolish by the Constitutions of Clarendon, and there was no part of the Constitutions more actively can- vassed by the adherents of Becket than that which provided that the court of the archbishop, acting under the special mandate of the king, should be the final court of appeal in ecclesias- tical matters. Great care was accordingly taken the Development of the State. 319 that the abrogation of this provision, after the death of Becket, should be full and unmis- takable. From that time to the passing of the Statutes of Pramunire in 1393, the stream of appeals to Rome flowed free and unchecked, except by the fact that after the legal reforms of Edward I., if justice and not delay was the object of the suitor, he could obtain his object much more satisfactorily in England than at Rome. Even the trenchant provisions of the Statutes of Pnemunire did not wholly put an end to the practice. There were still some cases for which the English law was inadequate to deal. There were often occasions in which it suited the king to play into the hands of the pope. Up to the very beginning of the Reformation, the papal authority on questions of marriage was unchal- lenged. Enough of the appellate jurisdiction Their un~ was left to make men feel that, in the matter effects. of ecclesiastical jurisdiction, recourse was still necessary to a foreign tribunal and a foreign system of law ; and although the influence of that system and the power of that tribunal had been considerably curtailed by the national policy, still enough remained to show that the Church had to a great extent ceased to be national. Englishmen were proud of their national constitution, they were proud of their 320 The Influence of the Church on national king, they were proud, and justly proud, of their national system of law. In the legal system of the Church, and especially in the appellate jurisdiction of the pope, they found the only exception to the triumph of the spirit of nationality. All the more readily, therefore, did they embrace the opportunity, when it was offered them in the sixteenth century, of re- nouncing once and for ever this " foreign jurisdic- tion." The constitutional importance of the appellate jurisdiction of the papacy lies in the fact that it did much to pave the way for the closer union of the civil and ecclesiastical judicatures, which has obtained from the Refor- mation up to the present time, and which is based upon a theory of a royal supremacy not very different to that expressed by Henry II. in the Constitutions of Clarendon. (5) Lego- Just as the popes used their position of diction referees in the case of disputed elections to bishoprics to gain the power for themselves of nominating bishops; so they used the acknowledgment of their authority as final judges of appeal in ecclesiastical causes in order to acquire the right of direct interference with ordinary ecclesiastical administration by means of legatine commissions. There were two kinds of legates known to the Roman system. Legati the Development of the State. 321 a latere were special commissioners sent by the pope for a particular purpose, whose authority accordingly ceased when the purpose was accom- plished. Of this nature were the legations of John of Crema in the reign of Henry I., and of Otho and Othobon in the thirteenth century. Ordinary legates 1 were resident representa- tives of the pope in England, whose authority varied from time to time, just in proportion as the nation was inclined to admit or repudiate the claims of the papal supremacy. The very appointment of a resident representative who was ex hypothcsi to exercise some authority, however vague, over the national Church, was an assertion of a superiority which was not likely to pass unheeded either by the clergy or the king. William I., Anselm, and Henry I. all refused to acknowledge that any such power lay in the pope. It was only either during troubled times like those of Stephen, or when king and primate were at variance as during the quarrel of Henry II. and Bccket, that the popes were able successfully to maintain legates of 1 These legates are sometimes inaccurately called Legati nati. The Legatus natus was an ex-officio legate, a man who exercised what were considered legatine func- tions by virtue merely of his office, without necessarily having a legatine commission. The archbishops always had commissions. 322 The Influence of tlte Church on their own, in the persons of Henry of Win- chester and Roger of York. Usually a com- promise was arrived at by the appointment of the Archbishop of Canterbury as legate. From the time of Langton (1221) this became the usual course, and from the middle of the four- teenth century the commission was also given to the Archbishop of York to act in the northern province. So jealous were the authorities both of Church and State of any attempted encroach- ment on the part of the pope, that when Martin V. suspended Archbishop Chichele from the office of legate for not procuring the repeal of the Statutes of Prasmunire and Provisors, and made Henry Beaufort, Bishop of Winchester, his special legate for the Hussite Crusade, animated and formal protests were made by the king's proctor and the primate against the sending of a legate to England, except at the request of the king, in much the same terms as those used by Henry I. three centuries before, although tftere is no evidence that Beaufort intended in any way to interfere with the ordi- Itsconsti- nary jurisdiction of the archbishop. Still, in spite of the great care which was thus taken to prevent any acknowledgment, even by inad- vertence, of the right of the pope to interfere by legation or otherwise with the ordinary the Development of the State. 323 administration of ecclesiastical affairs in Eng- land by the bishops and archbishops of the national Church, there is no doubt that the appointment of the archbishops as legates of the apostolical see did much to create confusion in the minds of men. It might be made to appear that the authority which they exercised over the Church was delegated to them by the pope, and not inherent in their own office. They were looked upon as primarily the ministers and servants of a foreign power. The system they represented was felt more and more to be divorced from the national life. Even Wolsey, independent, strong-minded, bold as he was, anxiously sought the legatine authority, as the strongest weapon he could use with which to bring about the reformation of the Church which he desired and in part accomplished : so ingrained in the national mind had become the idea that the source of all ecclesiastical jurisdiction was to be found at Rome. Relations of the Church to the king. We to the king. have seen how strongly in the Middle Ages was held the belief in the spiritual supremacy of the pope ; and how, under the double incen- tive of hierarchical theory and political neces- sity, the popes had asserted that supremacy 324 The Influence of the Church on so as to make the Church of England, as time went on, more and more papal, and less and less national ; until she became an imperium in imperio, regarded as a foreign excrescence in the midst of the national growth, strong as a part of the common Christianity of Europe, but weak as a source of healthy national life. The Theory of counterpart to the theory of the spiritual poral supremacy of the pope is that of the temporal supremacy. SU p remaC y o f the king, and in England this doctrine was held no less firmly by clergy and laity alike. It is round the adjustment of the relations of these two rival principles, so easy to be stated as abstract propositions, so difficult to be translated into fact, that the chief problems of Church and State centre. The pope represents the principle of cosmo- politanism, the king that of nationality. The one may degenerate into mere foreign aggres- sion, the other into a blind and stupid insular exclusiveness. By the healthy rivalry of the two forces, rigorous independent and sympa- thetic life is best promoted, and in the union of the two, to further their own personal and selfish interests, is found the greatest danger to both. Generally speaking, the king during the fourteenth century was the advocate of the Church against the pope, and sometimes against the Development cf the State. 325 the clergy themselves, but an advocate who never failed to exact a handsome fee for his services. Nor was this to be wondered at The friars, who had done so much to renovate the Church in the thirteenth century, and were always the humble henchmen of the papacy, were now at the zenith of their fame, and some of the thir- teenth-century primates were taken from their ranks. The papacy was filled at the beginning of the century by the most ambitious and most self-assertive of popes, Boniface VIII. During the long reign of Henry III. England had earned at Rome the expressive title of the milch cow of the papacy. It was to be expected, Tk* king the therefore, that the papal claims would be national fully maintained by Boniface and the higher clergy, and that the duty of preserving rights of the Church and people against their own natural leaders would fall upon the king. But, on the other hand, it was equally certain that if the king interfered on behalf of the Church against the pope, no barren victory in the mere interests of justice would content him. He would use the prestige thus gained Remits of to establish the authority of the Crown so firmly upon the clergy as seriously to inter- fere with their independence. The Church found herself, therefore, between two fires, and took 326 The Influence of tlie Church on shelter with the one party or the other, as the more immediate necessities of the moment seemed to suggest. The kings, true to the great principle of defending themselves against the admission of an authority co-ordinate with their own into the administration of affairs in their kingdom, were never over-careful to gauge too conscientiously the character of the power which they were demanding. The popes, while they never forgot that they were still the spiritual heads of Christendom, were yet so mixed up in the turmoil of politics, that they found themselves compelled to go any lengths and make any sacrifices in order to keep their revenues and their patronage. It is, therefore by no means easy to trace the exact constitu- tional importance of each question in dispute as it arose. In the matter of the appointment of bishops and the appointment of legates, as we have seen, a compromise was effected between the king and the pope, by which the interests both of the Church and of the people were (i) Clerical cynically sacrificed. In the matter of clerical representation, on the contrary, the exclusive spirit of the clergy completely triumphed. After a few useless attempts to induce them to take their places in Parliament, Edward III. allowed them to tax themselves in provin- tlie Development of tfie State. 327 cial synod. The Convocations met when sum- moned by the archbishops, and their meetings did not necessarily correspond with the meetings of Parliament They transacted business of all sorts connected with the Church besides the money grants, without let or hindrance ; and although certainly from the beginning of the fifteenth century it seems to have been an established custom that the clerical grant should bear a certain fixed proportion to the Parlia- mentary grant, no compulsion on the matter on the part of the king was ever exercised, perhaps because the necessity for such inter- ference never arose. With regard to many of the privileges of the (2) Anti- spiritualty it was far otherwise. Throughout ^^kuion. the fourteenth century the kings found it necessary to call to their aid the assistance of their Parliaments to check the growth of clerical pretensions, both on the part of the pope and of the national clergy. In the reign of Edward L, two important acts were passed to keep the spiritual estate in due subordination, i>. (i) the act de Religiosis, passed in 1 279, which, by (a) De rendering the consent of the king necessary for the acquisition of land in mortmain by religious houses, both checked their growth in wealth, which was becoming a serious political danger, 328 The Influence of the Church on and preserved the dues and services of the land Cir- to the lords ; and (2) the writ Circumspecte Agatis, which is with some probability assigned to the year 1285, and which put a stop to the encroachments of the ecclesiastical courts by recognizing their right only to hold pleas on matters purely spiritual. In the succeeding reigns the pretensions of the pope were more formidable than those of the clergy. Petition and remonstrance followed each other in quick succession during the first half of the fourteenth century against the system of Provisory but with no result. At last Parliament, wearied with the struggle, took the matter into its own hands, and passed in the year 1351 the famous Statute (7) Pro- of Provisors, which was repeated with additional penalties in 1365, and subsequently re-enacted and confirmed in 1390. By this act the rights of patrons were maintained, and forfeiture and banishment were denounced as punishments upon any one who procured promotion by papal provision. It is noticeable that, although the lords spiritual refused their assent to the act, it was nevertheless always treated as a perfectly valid statute, was recognized by the legislation of Henry IV. and Henry V., and although frequently disregarded in practice, was never- theless constantly appealed to as embodying tlie Development of tlie State. 329 the law on the subject As the Statute of Provisors dealt with patronage, so the Statute of Praemunire dealt with administration. In (5) Pra- 1353 an ordinance was passed inflicting the"* penalty of outlawry upon all who refused to answer for prosecuting abroad suits cognizable in the English courts. This ordinance was embodied in a statute in the year 1 365, and the statute was amplified and re-enacted in a final form in 1393, in spite of the protest of the lords spiritual. By this act any one who procured from the court of Rome any bull or process which touched the king's crown or dignity, was to suffer the penalties of a praemunire, i.e. out- lawry. Thus the kings obtained a weapon of the strongest possible character, to use against the pope if necessary. How greatly it was dreaded is shown from the feverish anxiety evinced by the popes to get it repealed, if possible, but that any immediate use was made of it seems to be improbable. In the next century, of course, it formed the pretext by which Henry VIII. laid the clergy at his feet In these two statutes Parliament asserted and maintained, on behalf of the Church and realm of England, an independence of action with regard to the pope and the clergy which forms a link between the policy of the Constitutions 33O The Influence of the Church on of Clarendon in the twelfth century, and that of the great Reformation statutes of the six- teenth. Although the lords spiritual, from motives either of duty or of fear, refused their assent, there seems little doubt that these pro- visions were a source of advantage and security to the Church and the clergy, as well as to the king and nation. (3) Legis- In the fifteenth century the Church found against herself threatened with a new danger, that of keru y- heresy, and the king with a new enemy, that of socialism. The doctrines of VVycliffe, as adopted and taught by his followers the Lollards, struck equally at the hierarchical system of the Church and the monarchical system of the State. If the prelates found their own position en- dangered by the theory that personal grace is the foundation of ecclesiastical authority, Henry IV. found his government weakened and his dynasty threatened by the Lollard attacks upon property, and their close alliance with the remnants of Richard's party. The common danger urged Church and king to combine in enforcing the series of sternly repressive measures which have been looked upon as the great blot upon the Lancastrian government and the mediaeval Church. The statutes directed against heresy were three in number. The first, passed the Development of tlie State. 331 under Richard II., was aimed against Wycliffe's poor priests, and authorized the imprisonment by the sheriffs of preachers certified by the bishops to be teachers of heresy. The second, passed under Henry IV. in 1401, is the famous statute de heretico combureiido, and provided that teachers and maintainers of heresy should be liable to be imprisoned by the bishops until abjuration, and on refusal to abjure, or on relapse after abjuration, should be handed over to the sheriffs to be burned. The third, the statute against Lollardy of 1414, passed by Henry V. after Oldcastle's attempt at revolution had failed, authorized the justices to inquire after heretics, and to deliver them to the spiritual court for trial. Upon conviction they would, under the act of 1401, be re-delivered to the king's officers for punishment By this act, therefore, heresy was made an offence against the common law as well as against the canon law, punishable in the case of the obstinate and the relapsed by death. It was put in force with some severity during the few years following Oldcastle's rising, but the vast majority of prosecutions ended in penance and recantation, and it does not appear that more than sixty persons in all suffered the extreme penalty. In estimating the importance of this legislation, we may at once dismiss from 332 The Influence of tJie Church on our minds the idea that there was anything pecu- liarly horrible to the ideas of that age in the punishment awarded. Death by burning was a form of punishment, well known to the English common law as well as to that of most countries in the Middle Ages, for some crimes of more than ordinary magnitude; and it existed un- repealed in our law-books almost to the present century. 1 Horrible as it appears to us with our finer instincts, it was not so considered in that cruel time, and even from the point of view of simple humanity it may perhaps be thought to compare not unfavourably with the lingering torture of death by the rack and the weight, dealt out to political prisoners in the more enlightened age of Elizabeth and James. Consttiu- But while acquitting the Lancastrian dynasty from the charge of special bloodthirstiness, and admitting to the full that the danger to the peace and good order of society from the Lollards was great enough to warrant ex- ceptional measures a proposition which is abundantly proved by the contents of the Lollard confiscatory proposals in the Parliament of 1410 1 The punishment of death by burning, for high and petty treason committed by a woman, which included the murder of a husband by a wife, was not abrogated till 1790 by the Act 30 Geo. III. c. 48. See Stephen's " His- tory of the Criminal Law," vol. i. p. 447. the Development of the State. 333 we cannot but pronounce the legislation itself to have been of serious detriment to the well- being of the constitution. In these acts the Crown had for the first time called in the assist- ance of the spiritual arm to aid the secular government in the performance of its own proper duties. Procedure which existed for the benefit of the soul was used to secure the safety of the State. Opinions held and words spoken became criminal matters, cognizable by tribunals which were looking quite as much to the security of the government against the traitor, as to the security of the Church against the heretic. Thus the precedent was formed and the foundation laid for that long series of acts, ecclesiastical in form but civil in intention, which, from the verbal Treasons Act of Henry VIII. 1 to the " Act for preventing the Growth of Popery " of William III., 3 have been the disgrace of the statute-book, and among the worst engines of kingly and par- liamentary tyranny. The Relations of the Church to tJie People. Relation* The relations of the Church to the nation, though the most important of all in her own internal history, are the least important from the point of view of constitutional development, for in that particular their influence must neces- 1 26 Hen. VIII. c. 13. ' 11 and 12 WilL III. c* 334 The Influence of tfie Church on sarily be but indirect. Still, the indirect in- fluence of an institution which filled so large a place in the national life, and even in the period of its decadence did so much to mould the thought and dominate the intellect of the Middle Ages, cannot but have been large enough to warrant a brief glance at its relations to the people themselves. In the thirteenth century the Church was seen at her best. The clergy were taken from every class of society, from the relations of the king to the humble friar who was the poorest of the poor. They led the nation in its struggle for liberty, they inspired it with the love of art, they taught it all that it knew of science and literature. In the centuries that followed, a breach between the Church and the people began to show itself. The clergy became ex- ceptionally wealthy and exceptionally numerous, but the wealth became principally vested in the larger monasteries and in some of the bishoprics, Th while the bulk of the clergy remained poor. As *he system of founding chantries for the saying of Mass for the repose of the departed became developed owing partly to the long French wars England became filled with a number of priests dependent upon the chantries for a miserable stipend, vowed to a celibate life, without re- the Development of the State. 335 sponsibility for the welfare of any human being, without any duties or employment except the technical one of their daily Mass. Under these circumstances it was not to be wondered at that they became a loss to the nation and a scandal to the Church, and helped to lower instead of raise the standard of morality in the community. It was possible, as the history of Archbishop Chichele shows, for men of humble origin to rise to the highest places of position in the Church. The Character requirement of learning in every candidate for priesthood ordination was rigorously insisted upon ; but time went on that learning became shared by position. the laity in daily increasing numbers, and the avenues for promotion daily became more and more closed to men of humble origin, by the closer connection between the clergy and the great families. In the fifteenth century England was the prey of the great families. The Mor- timers, the Poles, the Percies, the Courtenays, the Beauchamps, the Beauforts, the Nevilcs, absorb every office in Church and State. The Lancastrian kings, forced to ally themselves with the influential clergy, did not dare, and the Yorkists did not care, to interfere. The cause of T7u the Church becomes identified in men's minds comesailiea with the cause of the nobles. Lollardy is at once seized upon by the more democratic of the 336 The Influence of the Church on people, because they see in it a weapon which can be used against an aristocratic Church. Even the lavish gifts that seem to redeem the false- ness of the century, and endow it with such ex- quisite beauties of art, are prompted more often by the sentiments of aristocratic patronage than Divorce by the nobler spirit of self-sacrifice.. The fact is, between the . Church that just as the Church became more and more "nation. organized as a separate institution in the country, affecting the national life, instead of herself being the expression of the highest part of the national life, so she ceased to be wholly representative of the people. When the clergy became a fully de- veloped estate of the realm, owning a large part of the wealth of the country, paying a large pro- portion of the taxes of the country, absorbing a large number of the offices of government, pos- sessing a majority of the House of Lords, having a separate legislature of their own, paying an allegiance, however limited, to a foreign power, jealously guarding from outside interference a system of judicature of their own which they were at once incapable of reforming, and unwilling to permit to be reformed, the Church acquired in- terests of her own to defend which were anta- gonistic to the interests of the country, she had privileges to maintain which were dearer to her than her responsibilities. She exercised her great tlie Development of the State. 337 influence in politics and on the nation primarily for her own selfish advantage, and only secon- darily for the people, whose trustee she was. Accordingly, when the crash came, and the reformation she had refused to undertake for herself was forced on her from without, she received a fitting reward for the past by the loss for ever of her undisputed rule over the inner life of all Englishmen, and by the fatal gain of an influence, perhaps greater than before, over the politics of the nation. To try and construct ideal theories of the due Theories of relations between Church and State is a task as a^stau. unprofitable as it is interesting, for if the verdict of history is to be accepted, such relations never have existed since the Church emerged from the catacombs, and will never exist if the experience of the past is at all an earnest of the course of the future. Certainly the problem does not get less complicated as time goes on. The aim of the statesman has been rather to maintain such a balance between the two forces as should avoid injustice to either, and leave each independent enough to be able to develop freely its best energies in its own sphere. The difficulty is Difficulty exactly analogous to that experienced by poli- ticians in every limited monarchy, namely, how best to apportion power between the king and z 338 TV**? Influence of the Church on the people. It is easy, of course, to reduce the sovereign to a mere ornamental figure-head shorn of all independent political power. It is equally easy to endow him with such an extent of personal authority as to enable him, if he chooses, to impose his will upon his people. The difficulty of finding a middle course, and con- structing such a union between the two as should prevent harmful rivalry, and enable each force to bring its own powers to bear upon the healthy growth of the constitution, took England alone two revolutions and four centuries of internal struggle to solve, and it cannot be said that the solution, when found, wholly satisfied the conditions or entirely commended itself to a patriotic mind. In the Middle Ages, the theorizing on the subject of Church and State chiefly sprung from the assertion of the superiority of the spiritual power over the civil by Hildebrand and his successors. Gregory VII. himself found it necessary to lay an intellectual foundation for his hierarchical assumptions, and to defend them by reasoning in the quarrel with the Policy emperor which inevitably followed. Kings and king'. V statesmen were content merely with guarding themselves against the results of such theories, when they took the form of definite encroach- the Development of the State. 339 ments on the civil power. Acts such as Circum- specte Agatis, and the Statute of Praemunire, did not affect to proceed upon any theory of Church and State such, for instance, as that of the nationality of the Church in England, which was laid down afterwards by Henry VIII., in the preamble to the Statute in Restraint of Appeals of 1534 but ignoring, not controverting, the papal position, merely laid down certain rules, by which certain particular privileges of the clergy were curtailed. It is true that the hier- Rival archical theories of Hildebrand received, in the , ^ twelfth and thirteenth centuries, a further de- Churck - velopment at the hands of writers like John of Salisbury and Thomas Aquinas, and became (i) Thomas formulated as the orthodox doctrine on the sub- qw ject in the schools. The friars, especially the Dominicans, ardently embraced them, and fur- thered them by every means in their power, both by thought and action. It is significant that in England the greatest difficulties between Church and State arose when the primates were friars. It is equally true that in the fourteenth century, when the papacy had become to a great extent discredited, there grew up at the Univer sity of Paris a school which denied the authority of the pope in temporal matters altogether. Marsiglio of Padua and William Ockham, the 340 The Influence of the Church on (2) Mar. foremost representatives of this school, were 'padua, prepared to maintain, in the broadest possible way, the incapacity of the clergy to interfere at all outside the purely spiritual sphere. They even apparently went so far as to base eccle- siastical authority on the consent of the Church rather than on the transmission of Divine power. These theories, with the exception of the indirect influence they exercised on the mind of Wycliffe, never bore practical fruit It was not the victory of any rival theory that dispelled the illusion of the mediaeval papacy in the minds of men, but its own degeneracy. The greater the hier- archical assumption, the worse did the miserable reality appear. Men could no longer give a blind adherence to an institution which, claiming to be divine, had resulted in the Great Schism, and produced the popes of the fifteenth century. In England, where the battle between the civil and spiritual powers was less pronounced, the necessity for a theory was less recognized. Until the time of Wycliffe, there is no one whose theories become in any sense powerful factors in determining the relations between Church and State. Until then, such opinions had remained in the academical circles of the schools, and had never been applied to the (3) lVyc~ li/e. hard facts of politics. Even Wycliffe's theories the Development of the State. 341 on government were too scholastic in form and visionary in substance to have much influence on the constitution. As an enthusiastic single- hearted enemy of abuses, whether in individuals or in institutions, he won his way into the hearts of his fellow-countrymen. As the un- folder of a reasoned scheme of constructive reform, he never convinced their intellects. The relations between Church and State in England grew and varied from time to time, just as the relations between king and Parliament grew and varied, not in accordance with any fixed rule or accepted ideal, but simply in obedience with the particular need of the particular occasion. Even at the period of her greatest degeneracy as a national institution, in the fifteenth century, the Church never wholly lost her old prestige and position, as the leader of the English people and the moulder of their national life. Still in the theories of Wycliffe, as in the rapacity of the popes, in the selfishness of the kings, and in the worldliness of the clergy, is to be found one of the causes which helped to produce the religious rebellion of the next century, and to determine the peculiar course which it took in England. By the Reformation another attempt was made to settle the due relations of Church and State in Eng- 342 Influence of the Church. land an attempt, perhaps, which, although appealing to principle and based on historical precedent, will hardly be considered by the historian to have produced results more finally satisfactory than those which we have been con- sidering in the Church of the Middle Ages. INDEX. Abbots, 78, 168, 169, 171, 309 Administration, Norman and An- gevin, 113-115, 124, 156-158, 291-293 Aids, the three legal, 84, 140 Alcred, deposition of, 22 Alcuin, 9 Alderman, 154, 195 Alfred, 15, 17-19, 21, 280 Alienation of Crown lands, 264, 265 ; restrictions on, 265, 266 Alod, 3, 25 Anjou, Margaret of, 263 Anselm, 69, 292, 321 Appeals to Rome, 297, 312, 318-320 Aquinas, Thomas, theory of Church and State, 339 Arundel, Archbishop, 228 Amtr, 22 Assize of Arms, 95, 194, 218 , Clarendon, 99 , Mort d'ancestor, 64 , the Great, 304 Athelstan, 20, 39. 129 Bseda.7 Bailiff, 26, 72 Bankers, Italian, 218 Bamstable, 20 1 Barons, under Henry II., 121, 155 , John, 156, 157,161-164; be- come national, 168, 174-180, 183, 195 ; under the Lancastrians, 234- 241, 249-256, 260, 263-264 Barons, under the Norman Kings, 92. 93. 131-133 Battle, trial by, 97 Beauchamp, Lord, 177 Beaufort, Cardinal, 245, 248, 249, 255, 262, 322 Becket, 122, 303, 307, 321 Bedford, 248, 262, 264 Beneficium, 13, 47 Beorn, 35 Bigod, 308 Birinus, 269 Bishops, 32, 33, 37, 78, 79, 108, 132, 169, 170, 172, 183, 309, 314, 315 Black Death, 256, 258 Bohun, 308 Boniface VIII., 300, 325 Book-land, 25-27, 6l Borh, 48 Bosco, Hugh de, 250 Bosworth, battle of, 250 Bot, 33 l.rcautc, Fawkes de, 144 Burgage, 75 Burgbryce, 33' Burgh, Hubert de, 121 Burgundy, 744 Butler, office of royal, 118 344 Index. Cade, Jack, rebellion of, 245, 249 Calais, 265 Canon Law, influence of, 297, 304- 3S Canterbury, Archbishop of, 10 Canute, 29, 30, 38, 103 Carta Mercatoria, 214 Carucage, 137, 138, 187 Castellatio, 101 Castles, 101 Cenwalh, 7 Ceorl, 3, 25 Chamberlain, office of, 118 Chancellor, office of, 119, 122, 123 Chancery, Court of, 232 Chantry Priests, character of, 334 Charles the Great, 91 Charles II., 248 Charters, the Select, 121, 173, 189, 190, 200 Chester, earldom of, 108 Chichele, Archbishop, 322, 335 Chivalry, tenure in, 62 Chronicle, Anglo-Saxon, 7, 21, 35, Church, 4, 8, 9, 10, 28, 32, in, 160, 172, 225, 226, 250, 252, 255, 257, 261; and State, relations between, before the Norman Conquest, 274- 277 ; after the Norman Conquest, 290; under the Angevin kings, 296 ; under the later Plantagenets, 302, 310; theories of, 337-342; the national policy of, under Nor- man and Angevin kings, 289-298 ; aristocratic character of, under the Lancastrians, 226, 253, 335 Circumspecte Agatis, writ of, 328 Clarendon, assize of, 99 , constitutions of, 78, 147, 295, 318, 320, 330 Clement V., 316 Clergy, 166, 168, 172, 173, 183, 234, 235, 251, 256, 258, 261 Coinage, right of, 102 Comitatus, 7, 12, 13, 23, 25, 47 Commendation, 14, 47 Commissions of Array, 144, 218 Commons, estate of, 115, 145, 168, 176, 180, seq.; 215-222, 224, 226, 227, 229, 232, 235, 236, 241- 248, 252-254, 261-263 Communa, 154, 157 ; French, 196 Comnenus, John, 113 Confirmatio Cartarum, 162, 167, 212, 213, 215, 219, 300 Conrad II., 8l Constable, office of, II 8 Convocation, 327 Coroner, 140, 149 Cornwall, Earl of, 183 Council, the Great, 115-117, 127, 128, 148, 169, 174, 182, 187,212; the Royal, 159-162, 203, 222, 231; the Privy, 124, 233-240; under the Tudors, 240, 251 ; of Oxford, 147, 148 ; Ecclesiastical, I7O-I73; Lateran, 307 Court Baron, 67, 70, 146 Court Customary, 71, 145 Court of Common Pleas, 127 Court of King's Bench, 126 Court Leet, 71, 145 Crusades, effects of, 185 Curia Regis, 80-84, 89, 117-119, 123-127 Customs, 213-217 Cynewulf, 22 Danegeld, 137, 138, 307 Danelaw, 12, 42 Index. 345 Danes, II, 14, 17, 21,23, 36,42, 72, 130 ; effort of invasions of, upon the Church, 279-281 David of Wales, 202 Dcspencers, the, 178 Dialogus de Scaccario, 134 Domesday Book, 41, 42, 132 ; sur- vey, 50, 51, 54, 101 Dunstan, 38, 280, 282, 286, 287 Durham, bishopric of, 104, 108 Ealdorman, 32-38, 73, 103, 107, 130-132, 283 Earl, 29, 30, 32, 36, 37, 177, 240 Earldom, 103-108, 177, 240 Earls, conspiracy of, 105 Early English Church, organization of, 272, ug. East Anglia, 41 Edgar, 20, 22, 39, So, 282 Edmund, 14, 15, 21 Edred, 21 Edward the Confessor, 29, 30, 54, 7 ! 73, 103, 283 Edward the Elder, 17 Edward I., 86, 115, 162, 167, 172, 176, 191, 192, 194, 202, 211, 21 as 221, 225, 232, 252, 302, 309, 327 Edward II., 216, 218-220, 251, 252 Edward III., 178, 198, 208, 210, 215, 217, 218, 221, 224, 225, 232, 242, 251, 252, 255, 326 Edward IV., 226, 250 Edwy, 22 Egbert, 279 Elections, 145, 187, 190, 191, 205 ; attempts to influence, 242, 243, 245, 246, 252, 254, 255 ; legisla- tion on, 243, 245, 254 ; of kings, 77, "7 Eorl, 3, 4, 25 Escheats, 62, 141 Essarts, 142 Etablissements of S. Louis, 89 Ethelbald, 22 Ethelbert, 19 Ethelred II., 15, 18, 20, 22, 80, 103 Ethelwulf, 22 Exchequer, 80, 84, 86, 120, 123- 126, 140, 142; barons of, 119, 123 Feudalism, I, 2, 24-30, 40-44; checks upon, 120, 121, 132, 133, 140, 145, 147, 148, 155-157, 159, 160, 182, 197, 294, 295 Fines, collection of, 138-140. Firmaburgi, 135, 136, 151, 155 Fitz Peter, Geoffrey, 121 Florence of Worcester, 90 Folk land, 5, 15, 18, 28, 42, 74, 75 Folkmoot. Set Witenagemot. Forest law, 142 Forfeiture, 62 France, wars with, 254, 259 Frankpledge, 97 ; view of, 146 Friars, the, 164, 339 Frith, 16 Fyrd, 15, 26, 27, 51, 91-93, 107, 143 Gascony, expeditions to, 183 Geoffrey, Archbishop of York, 307 George III., 226 Germania of Tacitus, 3, 6, 41 Gesith, 48, 63 Glanvil, 120, 121 God wine, 130 Gratian, 297, 305 Grith, 16, 17 346 Index. Grossteste, Robert, 308 Guader, Ralph, 104, 105 Guienne, possession of, by the Eng- lish, 260 Guilds, 153, 154, 195, 256 Harold, 21, 283 Haute Justice, 99 Henry I., 66, 77, 82, 83, 97, 98, 112, 113, 117, 120, 152, 100, 189, 321 Henry I., of France, 30 Henry II., 57, 77, 85, 95, 100, 102, IIO, 112, 114, 1 2O, 141, 142, 1 60, 161, 174, 210, 232, 318, 321 Henry III., 99, 101, 102, 106, 114, 115, 122, 183,232,252, 325 Henry IV., 225, 229, 230, 234, 242, 243. 2 53 2 59, 261, 262, 263, 264, 265, 267, 328, 330 Henry V., 227, 236, 243, 259, 262, 265, 268, 315, 328 Henry VI., 177, 221, 227, 230, 237, 244, 247, 249, 252, 255, 256, 259, 262, 263, 266, 267, 268, 313, 317 Henry VII., 247, 250, 256 Henry VIII., 278, 317, 329, 339 Henry of Huntingdon, 35 Henry of Winchester, 102 Heptarchy, the, 10 Heresy, legislation against, 330, 331 Heriot, 63 Hildebrand, 287, 338, 339 Honour, 71, 72, 98 Hundred, 5, 31, 32, 72, 97, 146, 190, 196 Immunity, 47 Impeachment, 245, 248 Ini, 33 Iter of 1194, 147 Itinerant Justices, 126, 149, 150 Ivo of Chartres, 297, 305 Ivo of Grantmesnil, 100 James I., 248 Jews, 218 John, 115, 141, 155, 156, 160, 161, 315 Joinville, 89 Judicial organization, 24, 25, 27, 28, 125 uq. Juries, 149, 150, 187 Jurisdiction, 47, 95 Justices of the Peace, 187 Justiciar, 119, 123 King, 7-23 ; election ol, 77 ; de- position of, 21, 22 ; demesne of, 18, 42 ; power of, in Angevin times, 115, 121, 127, 128, 132, I 5 1 5S > position of, in Lan- castrian times, 252, 263, 264-267 ; position with regard to the Church, in Norman times, 289-296 ; in Plantagenet times, 296-304 ; 324- 330 ; in Lancastrian times, 322, 330-332 Knight's fee, 57, 59, 142, 174 Knights of the shire, 164, 166, 181- '93. 198, 199, 205, 245, 264 Lancaster, Henry of, 225, 228 Lancaster, Thomas of, 234 Lancastrian kings, 179; principles of, 228, 234, 261 ; scheme of government of, 230-239, 254 ; failure of scheme of, 248-268 Land, allotment of, 4 Landrica, 29, 72 Index. 347 Lanfranc, 276, 286-289, 291 Langton, Stephen, 171, 298, 308, 322 Lawyers, 198, 199, 205 ; influence of, on the Church, 292, 293 Legal system, influence of the Church upon, 304, 305 Legates, 320-323 Lewes, battle of, 166 Liberties, 72 Lincoln, Hugh of, 307 Lincolnshire, 41 Lionel of Antwerp, 217 La*, 3, 4, 25, 33, 35 Lollards, 225, 234, 235, 330-332, 335 London, 152, 196 Lords, House of, 176, 177-180, 231, 236, 240, 241, 309, 336 Lords-lieutenant, 144 Louis, S. (ix.), 89 Lucy, De, 120 Magna Carta, 65, 78, 85, 115, 127, 141, 150, 157, 158, 162, 163, 164, 168, 172, 174, 175, 179, 181, 182, 187, 203, 211, 212, 296, 298, 304 Manors, 25, 52, 53, 67, 68, 71, 98, 99, 145, 146, 258 Marriage, 65 Marsha], office of, 118 Marsiglio of Padua, theory of Church and State, 339 Martin V., 316, 322 Mary, Queen, 144 Matilda, Empress, 77 Mayor, office of, 154, 156, 195 Merchants, 198, 212 216 Mcrcia, 104 Milan, edict of, 8 1 Military organization, 24, 26, 252 Monasteries, influence of, before the Norman Conquest, 278 Montfort, Simon de, 166, 167, 176, 192, 194, 201, 300 Mortimer, 178 Norman Conquest, 44, 45, 48, 54, 58, 60, 68, 69, 72, 75-77, 80, 81, 108, 109, 131, 169, 181, 284-293 Normandy, loss of, 161, 162; re- tention of, by Henry VI., 260; final loss of, 260 Northumbria, 104 Ockham, William, 339 Odo of Bayeux, 93, 108 Oferhynes, 18 Oldcastle, Sir John, 331 Ordinance, 219 Osw-y, 270 Palatine earldoms, 108, 132 Parliament, the Model, 167, 193, 200, 210, 309 ; of 1301, 221 ; of Lincoln, 221 ; the Good, 22?, 224 ; representation of the clergy in, 172, 173, 301, 326 ; opposition of, to the royal prerogative, 225, 227, 310 ; under Edward III. and Richard 1 1., 232-234, 266; under the Lancastrian kings, 228-231 Patent, 174, 177, 240 Peers, tenure of, 174-180, 240 Petition, right of, 220-222 Pleas of the Crown, 139, 140 Pope, relations of the Church to, 288, 289, 311 seq. Pnemunicntes clause, 173 348 Index. Praemunire, statute of, 329 Prerogative, the royal, 224, 227, 233 Prisage, 213, 214 Privileges of Parliament, 245-248 Provisions of Oxford, 300 Provisions, Papal, 315 Provisors, statute of, 328 Ranulf Flambard, 65, 66, 92, 120, 282, 294 Rebellion of 1173-4, I2I > *55 Reliefs, 63, 141 Remigius, 306 Representation, influence of the Church upon, 301-304 Resumption, acts of, 265, 267 Retainers, 252, 260 Revolution of 1399, 225, 226, 230, 234, 261 Rich, Edmund, 308 Richard I., 138, 153, 166 Richard II., 224, 225, 228, 230, 231, 233, 234, 242, 246, 255, 261, 263, 264, 313 Richard III., 247, 250 Robert of Belesme, 93, 94, 108 Robert of Gloucester, 102 Robert of Normandy, 92, 94 Roger of Breteuil, 104, 105 Roger of Montgomery, 104 Roses, Wars of, 227, 241, 246, 250, 255. 256, 263 Sacandsoc, 28, 71, 145 S. Albans, 201 ; battle of, 246, 250 Saladin tithe, 148 Salisbury, assembly of, 90, 91, 191 Salisbury, Roger of, 120, 292, 303 Scutage, 57, 142 Segrave, Stephen de, 121 Sheriff, 32, 37-39, 97-99, 107, 108, 134-144, 146, 183, 191-196, 202, 204-206, 243 Shire, 31, 34, 37-40, 80, 96, 107, 108, 128-134, 140,144, 147-150, 188-193 Shrewsbury, earldom of, 108 Sigebert, deposition of, 22 Sigismund, Emperor, 244 Slavery, action of the Church with regard to, 306 Socage, 62 Somerset, 239 Standard, battle of the, 144 Statutes, 219, 228 ; of Marlborough, 97 ; of Merton, 99 ; de religiosis, 327 ; quia emptores, 185, 219 ; of Winchester, 218 ; of Staples, 215, 216; of Praemunire, 329 ; of Provisors, 316, 328; of 1430, 245, 247, 263 ; of 1446, 245, 263 ; of Labourers, 257 ; against heresy, 330, 331; in Restraint of Appeals, 339 Stephen, 77, 99, 100-102, 114, 117, 120, 266, 321 Steward, office of, 118 Stigand, 283, 288 Stratford, Archbishop, 179 Suffolk, 244, 245, 262 Tallage, 85, 212, 213 Tallies, accounts of Exchequer Court kept by, 143 Taxation, 57, 84-86, 114, 134-138, 148, 210-219, 310; of clergy by king, 307-308, 326, 327; cf clergy by pope, 312, 313 Thegnhood, 47, 48, 53, 73, 80, 81 Theningmannagemot, So Index. 349 Theodore, Archbishop, 269-272 Theow, 4, 69 Thorpe, Speaker, 246 Three-field system, 4 Tithe, 277 Tithing, in Frankpledge, 47 Tourn and leet, 97, 205 Towns, 74, 86, 150-155 ; represen- tation of, 193-202 Township, 4, 5 Treason, 15, 16, 119, 123 Treasurer, office of royal, 119, 123 Trial by combat, 149 ordeal, 149 Truce of God, 1 1 1 Tudors, the, 226, 227, 229, 240, 263 Tunnage and Poundage, 267 Tyler, Wat, rebellion of, 257 Villeinage, 257, 258 Villeins, 67, 70, 225, 257, 258 Wales, war with, 254 Wallingford, treaty of, 101, 102, 108 Walter, Hubert, 298, 303 Wardship, 141 Wedmore, treaty of, 1 1 Wessex, 10, n, 31, 42, 104 Whitby, synod of, 270 Wilfrid, 269 William I., 41, 48, 50, 55, 56, 66, 69, 74, 79, 80, 88, 90, 91, 96, 103, 104-107, 109, 131-133, 182, 276, 284-290, 321 William II., 66, 77, 93, 94, 291, 294 William III., 226 Williams, John, Bishop of Lincoln, "3 Winchelsey, Archbishop, 308, 309 Winchester, charter of, 153 Winchester, Henry of, 522 Witenagemot, 6, 15, 18, 19, 20- 22, 3, 32, 34, 36, 37, 39, 76-79, 90, 116, 145, 159, 168, 202 Wolsey, 323 Wool-growing, 257, 258 Writs, 98, 190, 191, 200, 203-205 Wulfstan, 69, 306 Wycliffe, 317, 330, 331, 340-341 York, Richard, Duke of, 239, 245, 246 Young, Thomas, 246 PRINTED BV WILLIAM CLOWES AND SONS, LIMITED, LONDON AN3 BECCLES. 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