^\
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<KiaikL- stitutional history of a people is intimate and
toryofthe inseparable. The tendencies which work in
period.
the one will also work in the other. The
history of the constitution will advance pari
passu with the history of the social state. The
one interprets the other. We have said that the
tendency of early English history is from greater
freedom to lesser freedom, from liberty to feudal-
ism ; and we have traced the unequal struggle
between the principle of primitive freedom on
The Early English Constitution. 41
the one hand, and the innovating principle of
feudalism on the other. We have observed the
forces internal and external which helped for-
ward, retarded, or mutilated the final triumph of
feudalism. Now it remains to mark the same
tendency, the same unequal struggle, the same
various influences at work in the social history.
Placing side by side the picture which Tacitus (ij status.
has drawn in the Germania of the social life of
the Teutonic tribes of the first century a picture
which all subsequent evidence justifies us in
believing is essentially true of the English of
the fifth and sixth centuries and the picture
which William the Norman caused to be painted
on the parchment of Domesday Book of the
social condition of the English in the eleventh
century, what conclusions are suggested by the
comparison? We observe at once that the
two pictures are very dissimilar, yet not without
some points of resemblance. The one presents
to view a free society, containing within itself
the seeds of feudalism. The other portrays
a feudal society, containing within itself the
relics of primitive freedom. We infer then
first of all, the continuous development of the
feudal principle. We observe further that
the relics of liberty are unequally distributed t
numerous here, invisible there. Here, in the
42 The Early English Constitution.
shires which form the old West-Saxon kingdom,
the manorial system predominates, and alodial
tenure is unknown. There, in the region of the
Danelaw, it is scarcely an exaggeration to affirm
that the converse is the case. Sochmanni and
Liberi-tenentes, elsewhere unknown, form in
Lincolnshire and East Anglia a great propor-
tion of the population. Mr. Seebohm 1 has
shown with admirable clearness the distribution
of the population according to the classes
mentioned in Domesday. Generally it is true
to say that the unfree element is strongest in
the south, and the free element strongest in the
Danish districts.
We infer, then, in the second place, that the
development of the feudal principle, though
continuous, was not symmetrical ; and that an
antagonistic force, a check on the process, was
found in the northern invasions.
(2) Land- Turning from the question of status and
applying ourselves to that of land-tenure, we
find an enormous mass of land, once the national
land or folk-land, now registered in the Domes-
day Book as the Terra Regis, the royal demesne.
We find, moreover, the king regarded as the
ultimate owner of all the land in the kingdom.
The cyning of English antiquity is placed in
1 " The English Village Community," ch. iii.
Tfu Early English Constitution. 43
contrast to the king of the survey ; and we
infer, in the third place, that the development
of feudalism has involved an increase in the
royal power and a change in the theory of
kingship.
It is not necessary to pursue the inquiry ;
enough has been said to show that the history
of the English, both constitutional and social,
had the same direction in the period before
the Norman conquest The feudalization of
society went hand-in-hand with the feudaliza-
tion of the national institutions ; nay, the latter
was but the expression of the former.
The period of English history with which Summary.
we have had to deal is in no way a simple
one. This lack of simplicity has its origin and
explanation in what may be called the lack
of obvious continuity. There are not wanting
great events, but they stand apart in little
apparent connection with the course of the
history. There is no symmetry in the dubious
continuity which closer observation perceives
to exist. Even the development of the royal
power which certainly constitutes the most
luminous fact of the constitutional history is
not a symmetrical development ; and the close
of the epoch leaves royalty in a weakened
condition.
44 The Early English Constitution.
The view that regards the six centuries of
early English history as the arena of an un-
ceasing struggle for supremacy between the
rival principles of freedom and feudality, ensures
at least a continuous interest in the history, for
unquestionably that struggle is the predominating
fact, which lies at the root of all the inconsis-
tencies of the period. In that long and dubious
contest the events of the social, political, and
religious history are factors. The ultimate out-
come is the victory of feudality ; but the defeated
principle is rather driven out of sight than de-
stroyed. Freedom has capitulated to feudality,
on conditions which ensure at least a continued
existence.
It is precisely at this crisis that the Norman
conquest takes place ; and it is because it takes
place at this crisis that its importance in the
constitutional history of England is so immense
and far-reaching.
ESSAY II.
FEUDALISM.
SIR FRANCIS PALGRAVE and his successors The
have added six centuries to English history ; we conquest .
no longer think of the story of our country as
beginning at the Norman Conquest, or that the
English of Elizabeth and Edward I. were a dif-
ferent nation from the English of Alfred and
Egbert Yet, in spite of all insistence on the
unity and continuity of our history, we still feel
that the Norman Conquest brought a great
change in the character of English institutions,
and this belief is confirmed by the abundant
new knowledge we have gained of that period.
It might perhaps be expressed in some such
phrase as this : the Norman Conquest made
England a feudal state. What is involved in
such a statement, how far or in what sense it is
true, are the questions here to be answered.
The essence of the feudal organization
society was that it rested completely on land-
46 Feudalism.
tenure, and on one system of land-tenure a
tenur*. system in which ownership was divided between
the actual tenant of land and the lord "of" whom
he "held" it, and in which the relation as to
land was accompanied with a close personal tie
between the lord and tenant, involving mutual
duties and responsibilities. He who was lord
to one man or set of men, might and usually
did himself hold his estate of a superior lord ;
so that society came to be made up of hundreds
of series of lords and tenants, beginning with
the villein, who was lord of no man, and ending
with the king, who was tenant of no man. The
duty of the lord was to protect his tenant, of
the vassal to serve his lord ; which meant that
over the greater part of Western Europe the
vassal followed his lord to the field, and was
' subject to the jurisdiction of his courts. And
it is clear that, where the central government
was weak, the result inevitably was to split
up a state into a number of petty principalities ;
in the language of Guizot, 1 to fuse together
sovereignty and property, by giving to the lord
of a district all or most of the rights over his
tenants which make up sovereignty.
Origin of It is now known that this organization did
m ' not arise on the Continent, as used to be sup-
1 " Histoire de la Civilisation en France," iii. 29.
Feudalism. 47
posed, from a partition of conquered lands by
the chiefs of the barbarian tribes which overthrew
the Roman empire. Its growth was gradual, and
was due to the converging action of many causes
at work during five centuries. Chief of these
causes were : (i) grants of benefices, i.e. of estates
to be held in usufruct so bringing about the
division of ownership ; (2) commendation of in-
feriors to superiors, which created the relation of
vassalage, and came to be inseparably associated
with the gift of a benefice, so that the receiver
was bound to personal fidelity to the grantor;
and (3) the grant to territorial lords of immuni-
ties, or exemptions from the national courts,
which completed the power of the lord by
giving him jurisdiction. 1 But in England such Di/erenct
influences had either been absent, or had played En^nd
but a secondary part For here it was an a " dt ^ e
institution which abroad was of little impor-
tance, namely, the comitatus, or body of imme-
diate companions of the king, which did most to
modify the older system. It was out of this, as
the previous essay has shown, that thegnhood
had arisen ; and thegnhood, working together
with grants of jurisdiction and the police system
1 This has been worked out most clearly by Waitz ;
but for substantially the same explanation, see Hallam,
" Middle Ages," note xL to ch. ii., and vol. i. 239 (ed. 1878).
48 Feudalism.
which compelled every man to find a surety,
had certainly made England before the Norman
Conquest very much like a continental feudal
state. But in England the dominant idea was
still that of personal relation of a thegn to the
king, of a man to his borh, or to his lord by
commendation, and not that of territorial obliga-
tion of service or jurisdiction because of land.
Social organization did not yet rest on tenure.
Const' Let us now look at the immediate conse-
quences of the Norman Conquest. In the first
Conquest: place, all land comes to be held of the king,
new held mediately or immediately; he is the supreme
Mug. l r d f land, and all men are his tenants. It
may not indeed at first sight appear that the
position of a great thegn before the Conquest
differed from that of an important tenant-in-
chief under William I. The thegn forfeited his
land if he did not obey the summons to the
field. Moreover, although thegnhood did not
necessarily imply a close personal relation, as of
a gesith, to the king, probably most thegns were
in fact in such a relation, or were descended from
men who were gesiths when they received their
estates from the king. The thegn's situation
was then in these respects roughly parallel to
that of the feudal vassal. The important differ-
ence is this, that military service before the
Feudalism. 49
Conquest was a duty equally incumbent on
every freeman, as a freeman, and not a special
duty of landholders in a certain relation to the
prince. Refusal to obey the summons to the
host was visited with severe penalties. But
although the penalty in the case of a thegn was
the forfeiture of his land, it was not because such
land had been given upon definite condition of
service. His land, if indeed it had been received
as a grant, had been given in absolute owner-
ship, as a reward for past and not in considera-
tion of future service. These distinctions seem,
perhaps, unimportant, but they involve a differ-
ence of principle which it is essential to observe.
The thegn was regarded as having complete
property in his land ; the ownership of the
tenant-in-chief, on the contrary, was but partial,
and was limited and conditioned by the claims
of the grantor.
The change from the old to the new tenure Means by
was effected in two ways : by grant to Normans ^^
of forfeited land, and by confirmation of the e ff efted -
rights of Englishmen. The lands of those who
had fought for Harold at Hastings were treated
as forfeited, and speedily granted to William's
followers ; and the subsequent rebellions of the
West and North enormously increased the
number of forfeited estates at his disposal.
E
5O Feudalism.
But the only method of holding land familiar
to the Normans was the feudal tenure just
described. The natural consequence was that
William conferred these lands in the way
usual on the continent, i.e. to be held of him
subject to the conditions there customary.
Every recipient did "homage," by placing his
hands between those of his lord and acknow-
ledging that he became his " man." Henceforth
all the great lords were tenants-in-chief of the
king. And the same was the case with those
English who were allowed to remain in pos-
session of their lands. Mr. Freeman has shown
that the evidence of Domesday and of the
English Chronicle points to a general redemp-
tion of estates by the English immediately
after William's coronation. "Archbishop Ealdred
consecrated him king," says the Chronicle, " and
men paid him tribute and delivered him host-
ages and afterwards bought their land;" "when
the English redeemed their lands," appears in
Domesday as a time from which men reckoned.
We can scarcely be mistaken in inferring that
those who had taken no part in resistance to
William were confirmed in the possession of
their estates on the payment of considerable
sums of money. The ordinary Englishman
would think that it was unfortunately necessary
Feudalism. 5 1
to bribe the successful Pretender. Possibly, if
he were of a legal turn, he might look upon it
as the payment of fyrdwite a fine for not
coming to the national host in support of the
man who claimed to be rightful heir. But
certainly, to William and the Norman lawyers,
the transaction would seem much more than
this. It would seem a surrender of their hold-
ings by the English, and a regrant by William
on feudal terms. Thus, the lawyers' doctrine
that all land must be a grant from the crown,
does for the first time become true in England. 1
The consequence is clearly marked twenty years
later in Domesday. There it is assumed of all
lay land that lawful posession can rest only on
grant from William, and that this must be
proved either by producing a writ under the
king's seal, or showing evidence of livery of
seisin, i.e. a formal putting in possession by
a royal official.
Much, indeed, of the land which had at first Fiction
been redeemed was forfeited after the risings
in the North and West, and given to Normans, A
' i/J tmfor-
so that at the time of the Domesday survey
scarcely any of the lay tenants-in-chief were
of English blood. Yet William carefully ab-
stained from ever assuming the position of a
1 Freeman, " Norman Conquest," v. 369.
52 Feudalism.
conqueror who had a whole country at his dis-
posal. He throughout maintained the fiction
that he was the rightful successor to the throne
of the Confessor, and that changes in owner-
ship were consequences simply of individual
misconduct. Nowhere, therefore, was there an
entirely new partition of territory. The usual
practice was to grant to a Norman an English-
man's forfeited estate in a particular district
as a whole ; so that the new lords stepped into
precisely the same positions as to extent and
inland?' character of property and authority as were
as*to7to ^ eld ky those they displaced. It is not difficult
villagers, to see what would follow from such a substitu-
tion. Every important English landholder had
stood in the position of patron or superior to
many different classes of dependents. Obscure
as is the early history of the manor, it may
safely be said that by the middle of the eleventh
century almost every township was in some
measure subject to a lord. In many cases, no
doubt, this dependence was due to the fact that
the village community had been formed by
settlement on a lord's land ; but in many others
it was caused either by the voluntary commenda-
tion of the inhabitants to the powerful man of
their district, or by a royal grant giving to such
a magnate jurisdiction over the inhabitants.
Feudalism. 53
Certainly the condition of things was far from
being uniform in different parts of the kingdom,
and wide differences remained in degree of
dependence. Of all these distinctions, to him
unintelligible, the Norman grantee made very
short work. Accustomed to the Norman manor,
in which every man was subject to the jurisdic-
tion of a seigneur, and held his land of him, he
would treat the people of an English village in
the same way. Such and such men were some-
how dependent upon him. Such and such men
appeared in a court of which the president was
his steward, and of which the fines were paid to
him ; " then, of course," he would think, " such
men must be my tenants, must hold their land
of me."
But as yet we have mentioned only the two as to the
extremes of the feudal scale, the tenants-in-
chief, and the villeins or villagers. Between
these were many classes and gradations of rank.
The great king's thegns had, before the Con-
quest, thegns of their own, who were also in
the possession of land, probably often of whole
townships. Such thegns would soon be regarded
as sub-tenants of the Normans who had taken
the place of their lords, as holding their estates
not, as before, in complete ownership, but by the
grant of their superiors and subject to the rights
54 Feudalism.
of those superiors. Moreover, Domesday shows
that many of the smaller English landholders
who had before possessed land in their own
right, recognizing no man as their lord, were
able to retain their land only on condition of
sinking into dependence as tenants of a neigh-
bouring lord. Thus everywhere the simple
feudal tenure took the place of the confused
congeries of rights and customs which had
previously existed. Instead of the two thousand
proprietors in their own right of the time of the
Confessor, there were now, including ecclesi-
astical holders, some six hundred tenants-in-
chief. 1 The greater part of the agricultural
population were, doubtless, immediately subject
to these tenants-in-chief, so that their lord was
the only person between them and the king.
But there were also almost eight thousand sub-
tenants, half of them English thegns, holding
of greater lords manors and other lands upon
which were freemen, socmen, and villeins.
Summary The speedy result of the Conquest, therefore,
was to com pl ete tne process of feudalization
of land-tenure which had long been going on ;
to effect " a universal assimilation of title ; " to
make the king the supreme land-lord ; to give
to the relations between the greater landholders
1 Gneist, " Hist, of the Engl. Const.," i. 125 (Eng. trans.).
Feudalism. 5 5
and the king, and between these and the mass
of the population, the same character as they
bore in the rest of Western Europe.
So much it has been necessary to say by way The ques
of introduction; for the "feudal system" of
society and government rested on the feudal
tenure of land. The question remains, what,
in the first place, were the consequences of
feudal tenure in the organization and character
of society ? and secondly, what were its con-
sequences in government ? Like all other men,
the Conqueror was limited by the conditions
of his time and place. For him, a state of
society other than one resting on a feudal land-
tenure was inconceivable. And, indeed, from
certain of the results of feudalism, the central
power might profit. A strong monarch found
himself much helped by the universal recogni-
tion of certain rights belonging to him as
supreme landlord, as suzerain. On the other
hand, William's experience in Normandy had
taught him that vassals were likely, and Norman
vassals certain, to endeavour to become petty
princes upon their territories, and reduce the
royal authority to a shadow. The policy for
a monarch who saw the possibilities of the
situation was obviously to prevent government
becoming feudal, while permitting land-tenure
Feudalism.
Division
of the
subject.
I. Social
changes
due to
feudal
tenure.
(a) Mili-
tary
service.
and the social relations based on it to become
feudal. And such a policy may be traced in
almost every measure of William and his two
successors.
The different parts of the subject are so
inextricably connected, that any systematic
division is impossible. But it will perhaps add
to clearness of thought, if an attempt is made
to distinguish (i) what the introduction of
feudal tenure brought about in society, (2) what
constitutional results sprang from it, and (3)
what results in government the policy of the
Norman kings prevented.
I. It has already been pointed out that the
feudal bond was of the nature of a contract,
and that the tenant held his land on condition
of performing due service to his lord. The
service which was of by far the greatest impor-
tance was military service. At first, the change
in this respect, produced by the introduction
of the new tenure, was rather in idea than in
fact, in that men were bound to serve the king
no longer merely as citizens, as members of
the nation, but also because such service was
the condition upon which they held their estates.
For some time before the Conquest the cus-
tomary quota, at any rate in some counties,
seems to have been one fully armed man for
Feudalism. 57
every five hides of land ; and probably this was
roughly the amount of obligation understood
to be incurred by the new possessors. Domes-
day Book, by presenting an accurate register
of property and its value, made the task of the
royal officials in duly assessing each vassal's
contingent easier, and this was doubtless one
of the purposes for which the survey was de-
signed. But as yet the burden was estimated
in rude proportion to the size of each estate,
and weighed on the whole of it; no definite
share being borne by any particular portion.
On passing to the beginning of the reign of Division
Henry II., a very different state of things ^nighfs
presents itself. That king demanded and 7 '"'
obtained in 1159, a payment from his vassals
in lieu of military service. This, which soon
became an ordinary method of taxation, was
known as escuage or scutage, because it was a
certain amount for each scutum, for each knights
fee. But such a measure implies that the whole
country was already divided into knight's fees,
i.e. fiefs or holdings from each of which one
knight was expected to appear. And for the
next two centuries the knight's fee is the unit
of reckoning for most military and many
financial purposes.
Now all our evidence goes to show that this
58 Feudalism.
arrangement was the result of a gradual process,
which occupied the hundred years which fol-
lowed the Conquest. With wars frequently
recurring, with sovereigns strong enough not
to let the vassals forget the terms on which
they held their estates, nothing was more natural
than that the vassals should carve off portions
of their land, and give them to sub-tenants, on
condition that each should be ready to serve
when summoned. Thus they would save them-
selves from the very real danger of not being
able to find enough knights to make up their
due quota when called to the field. The piece-
meal adoption of this expedient throughout the
century is easily observable, especially upon the
lands of ecclesiastics, for whom it was naturally
more difficult than for laymen to find men to
serve for them on an emergency. And when
the division was completed, and the whole of
the country parcelled out in this way, the
knight's fee, when there was no other guide,
was reckoned as on an average five hides. The
estate from which a knight's service was due
was, however, sometimes as small as two, some-
times as large as twelve hides, according to the
conditions of the enfeoffment, which may have
been determined by grace or by the character
of the land ; and indeed it would seem from inci-
Feudalism. 59
dental notices, as well as from the later practice
in compulsory knighthood, that the knight's fee
was commonly measured rather by value than
area, usually by an annual value of twenty
pounds. The obligation to knight-service was
limited moreover by very early usage to forty
days in the year. For half a fee twenty days'
service was given, for fractions or multiples a
similar proportion ; and it may be remarked
that, until the end of the twelfth century, no
resistance was offered to demands of service
abroad as well as at home : the very words of
the oath of fealty taken by the tenants-in-chief
declared that they would be faithful to their
king within England and without.
It will now be apparent that the conception
which used to be assigned as the explanation
of the origin of the feudal system, is really that
which " dominates it in its finished form." *
That feudalism began in the grant of land on
definite condition of so much service for so
much land, is unhistorical ; but the statement
points to the truth that the necessity of military
service, its definition and limitation, are the
main ideas of the feudal tenure when fully
developed. It is essentially a military organi-
zation. The king is enabled by it to bring
1 See Pollock's " Land Laws," ch. iii.
60 Feudalism.
The mili- together the feudal array, when he thinks fit, by
befonand summoning the tenants-in-chief, that is those
directly holding land of him, to fulfil their ob-
ligations ; while these vassals are in the same
way enabled to furnish their due contingents
because their sub-tenants are similarly bound
to them. It is easy to see that with a strong
and prudent sovereign such an organization
must have enormously increased the military
power of a kingdom by individualizing respon-
sibility. Before the Conquest it had been neces-
sary for the sheriffs, each time an army was
needed, to negotiate with the moots of every
shire as to the number of armed men they
would provide. Local custom varied, and a
county or town was frequently permitted to
send a smaller number than its due. Even if
a king's thegn did not appear in the host, it
was only the king's thegn himself that could
be punished. But after the division into knight's
fees had taken place, the extent of the obligation
of each military tenant was unvarying and
exactly known ; and there was a ready means
of punishing the absence even of one knight.
Thus the feudal array was more constant in
number and quality than any force which an
earlier system could have furnished.
(0) Prime- A consequence of military tenure wl ich has
gemture.
Feudalism. 6 1
lasted till to-day is primogeniture. The old
Teutonic law of inheritance was one of equal
division among the sons. The family holding
was not the property of the father but of the
family, and could not be alienated save with the
consent of the family. But by the beginning of
the eleventh century such a rule would, in Eng-
land apply probably only to the smaller land-
owners. The greater proprietors held their
estates as book-land, in most cases as grants
from the king, and unless the original instrument
expressly limited the grant to one or more lives,
or prohibited alienation from the family, the
holder could dispose of it as he pleased, by will
or by grant When, however, feudal tenures had
been introduced, the landholder ceased to have
complete property in his estate. The lord had
granted it in order that he might be furnished
with service. It could not be permitted that a
tenant should at his own choice put by will or
grant another man in his place a man who
might easily be on the worst terms with the lord,
and from whom the lord could in no case look
for the gratitude which he might fairly expect
from his own grantee. Partition between sons
was almost equally objectionable, when applied
to what was in idea an office of military com-
mand with land attached. Such considerations
62 Feudalism.
caused primogeniture to be insisted upon, and
accepted as the rule for all lands held in chivalry,
by military service ; and the tendency towards
the extension of this rule was so strong that even
in the case of socage lands, i.e. lands held by free
tenants doing suit and service, but not subject
to military duties, it was generally adopted by
the end of the thirteenth century.
(7) Feudal As to what were called the incidents of feudal
tenure, it is readily seen that they are all de-
ductions from this military conception. The
(\\for* simplest and most obvious were forfeiture upon
tre ' violation of the conditions of tenure by dis-
obedience to the summons to war, still more by
(2) achtat, fighting against the lord ; and escheat, the return
of an estate to its immediate lord who repre-
sented the original grantor, on the failure of
heirs to a tenant. Not only did the land fall
back into the hands of the lord in a case such
as this, but in theory it was resumed tempo-
rarily on the death of every tenant. On the
continent the grant of a benefice had at first
been for life only. The renewal of the grant
to the son of the previous owner was at the
lord's pleasure. And although the hereditary
character of fiefs was generally recognized before
the end of the ninth century, a trace of the
older practice remained in the necessity for the
Feudalism. 63
heir to obtain investiture before he could law-
fully enter into possession. It was natural
that upon such an occasion a present should
be made by the heir to his lord, and out of
this arose the demand, as a right, of the pay-
ment known as a relief. The word itself, (3) relief,
which implies a taking up of what had been
laid down, indicates the difference of prin-
ciple between the relief, and the customary
payment before the Conquest, known as Jteriot. compared
The heriot had arisen from the simple personal
relations between the king and his immediate
companions, the gesiths. Upon the death of
a gesith the horses and arms which the prince
had bestowed upon him naturally returned to
the lord. Thus it remained the practice, long
after the gesiths had grown into a territorial
nobility of thegns, for the heir of a thegn to
pay a certain number of horses and suits of
armour to the king. And although by the
time of Canute this payment comes to consist
partly of money, the ideas underlying heriot and
relief remained different. The heriot was a cus-
tomary payment on the death of the previous
holder, the new holder succeeding by alodial
right ; the relief implied a suspension of
ownership, and was a payment by one not yet
in possession to obtain as it were a regrant of
64 Feudalism.
lands which had for a time reverted to the over-
lord.
(4) ward- When an heir was under age, the lord enjoyed
shi P* t he right of wardship, i.e. of managing and
receiving the profits of the fief until the tenant
came of age. When the lord was the king, the
right of wardship, with the profits arising from
it, was often sold to some courtier or other baron
who made a satisfactory offer. Between guar-
dianship in chivalry and guardianship in socage
there is a significant contrast. In the latter
case the guardian of the lands is the nearest
kinsman who cannot succeed, until the heir
arrives at the age of fourteen, when he can
choose a guardian for himself; the guardian
must manage the estate for the benefit of the
heir, and account for receipts and expenditure.
But in the case of lands held in chivalry the
profits go to the lord, because in idea the estate
is his during the interval ; it has reverted to its
original grantor, although a custom which be-
comes a law, enforced later by the assize of mort
<f ancestor, obliges him to put the heir in posses-
sion when he comes of age. 1 And the heir can-
not fairly demand more, for until he reaches
manhood he cannot render that military service
on condition of which the estate has been given.
1 Cf. Pollock, " Land Laws," 60, 6r.
Feudalism. 65
In the case of an heiress, moreover, the lord (5) war-
had the right of marriage^ *>. 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-<hief; continuity; the more important persons in the
kingdom are still summoned, but these now
hold their estates directly of the king, and the
idea common to all feudal states at once
appears that the qualification for membership
is that a man should be directly holding of the
king. This was the theory as late as Magna
Carta, the only noticeable modification being
that a distinction has arisen between the
" greater barons " and all the others " who hold
of us in chief," the former receiving a personal
summons, the latter summoned generally through
the sheriff. The adoption of the feudal theory
affected even the clerical members, although
the same number continued to be sum-
moned. The lands of bishops and abbots
came to be looked upon as holdings in capite
of the king, and an article of the Constitutions
of Clarendon laid it down that they were to be
held " as a barony." To the old character of the
bishops and abbots as Witan, was now added
the character of great tenants-in-chief, or barons;
though it does not follow that the earlier qualifi-
Feudalism. 79
cation disappeared, and that they were deemed
to sit in the assembly only as barons. Indeed,
their very presence was probably due to the
fact that William wished to maintain, as far as
was convenient to him, the old form of the
Witenagemot ; for in Normandy the bishops are
said to have been excluded from the Great
Council altogether. 1 This indication that Wil- but retaim
Ham's policy was to give to these assemblies \" s /j fy
the character of Witenagemots and of feudal P owers -
courts at the same time, throws some light on
a question which has been vehemently disputed
as to the power which the national assembly
possessed in the Norman period. Gneist has
argued that the gathering was merely for court
display ; that its consent should be regarded as
necessary in taxation and legislation is, accord-
ing to that writer, to antedate later ideas. 2 But
it is certain (i) that the Witan did in theory
possess such a right of sanction ; (2) that con-
temporary observers did not think that the old
institution was abolished and a new one created ;
(3) that the English Chronicle continues to
speak of the assembly by the old name, and
that the equivalent sapientes is used by Latin
writers far into the twelfth century. And when
1 Freeman, M Norman Conquest," iii. 290.
1 " History of the English Constitution," L 247, 250 .
80 Feudalism.
we find that William thinks it expedient to
say that he legislates with the common council
and consent of the magnates, and Henry I. to
state that an aid was given him by the barons.
we can hardly doubt that the old theory of the
power of the national assembly was retained
and recognized. On the other hand, it is
equally clear that the mention of counsel and
consent was as yet but a form, and that in
matters of legislation and taxation the Norman
kings were practically absolute.
( in The growth of the administrative system will
judicature, ^ e traced j n fa e essa y w hich follows. The early
history of the central judicial and administra-
tive machinery, of what was subsequently the
Curia Regis and Exchequer, is extremely obscure;
it is, however, clear that its development was
hastened after the Conquest by the new needs of
government. As early as the time of Ethelred
II. it had been enacted that a king's thegn should
be subject only to the soc or jurisdiction of the
king himself; though this may only imply that
the king was to receive the fines arising from such
cases. A theningmannagemot, a court of thegns,
is, indeed, once mentioned in the reign of Edgar
as that before which an important suit was
brought, but the sequel of the story shows that
the shire-moot could insist on having even
Feudalism. 8 1
weighty matters submitted to it in the first
instance. Yet the mere appearance of a special
court of thegns is in itself significant, and marks
the strong tendency in England towards institu-
tions like those of the continent After the Con- owing to
quest and the change of tenures, the creation 1
of a feudal court for tenants-in-chief became ^ P eers -
necessary. For in all feudal societies the prin-
ciple is asserted that a man ought to be tried
by his peers, i.e. by those who hold in the same
way of the same lord. The immediate lord
has the jurisdiction ; that is, the courts are
held in his name ; he or his representative pre-
sides, and to him go the profits of justice ; but
the judges must be the other tenants of the
same fief. Thirty years before the battle of
Hastings, the Emperor Conrad II. had given
express recognition, in the famous Edict of
Milan, to the principle that no man should
be deprived of his fief but by the judgment of
his peers. 1 The claim rested on a just con-
sideration that, as most suits arose out of land,
men were not so likely to receive fair treatment
from those of whom they held, or who held of
them and of their equals, as from men who were
in exactly the same position as to tenure. In
England the principle quickly received the stamp
1 Hallam, M Middle Ages," i. 166.
82 Feudalism.
of law. In the so-called "laws of Henry I."
it is laid down that no one shall judge his
lord, or pass judgment upon him whose liege-
man he is. Probably the county court, as
Gneist suggests, would continue to be resorted
to for petty criminal matters ; for, of the four
or five hundred tenants-in-chief, there would
surely be enough in each shire to furnish the
sheriff with a jury of pares. But land was the
chief subject of litigation, and Henry I. expressly
enacted, in an order issued early in his reign,
that " when henceforth a plea arises concerning
the division of lands, if it is between barons
holding of me in chief (inter barones meos
dominicos] it shall be tried in my court, and if
it is between the tenants of two lords it shall
be tried in the county court." This proves, at
any rate, the existence of a court for the trial
Composi- of suits between tenants-in-chief. As to the
f Curia. *"* composition of this court, controversy is still
busy. Gneist proves, what needs no proof,
that there was no recognized body of great
vassals which could act as a feudal court of
peers ; and he argues that whenever a case
was excepted from the jurisdiction of the
county court it was tried by special com-
missions appointed by the king, and really
acting in virtue of the king's absolute authority,
Feudalism. 83
though they might nominally be peers of the
parties engaged. 1 On the other hand, in one
great case, that of the Bishop of Durham, in
1088, it is clear that all the magnates were
present, as at a national assembly ; and sentence
was pronounced in the name of "the court of
the king and these barons." All that can be
said with certainty is, that in the reign of
Henry I. the Curia Regis does become distinct
from the Common Council of the realm, and
consists of officials. Perhaps in the two pre-
vious reigns there was a difference in fact
between the small body of officials who would
act in ordinary cases, and the whole assembly
of tenants-in-chief, who might come together
for judicial purposes when the business was
important ; but probably this difference in fact
had not yet translated itself into theory. What-
ever else the court may have been, and however
it may have been constituted, it was, evidently
enough, a feudal court of peers, meeting needs
arising from the introduction of novel ideas ;
and that such needs had to be met, must be
reckoned one at least among the causes which
led to the appearance of the Curia Regis as
a separate body and to its rapid growth in
importance.
1 i. 257-261 (Eng. trans.).
84 Feudalism.
(t) In The other branch of the central administra-
tion, known later as the Exchequer, was, we can
hardly doubt, somewhat similarly influenced by
the results of feudal tenure, in that the develop-
ment of the financial office, which was certainly
of much earlier origin than the Conquest, was
hastened by the new duties thrown upon it. For
the influence of the change on the amount and
character of the royal revenue is especially
noticeable.
Two of the new sources of revenue have been
already mentioned, the " incidents " of feudal
tenure, bringing the king money in the shape
of reliefs and payments for wardship and mar-
riage ; and "scutage," the commutation for mili-
tary service introduced by Henry II. Two
Aids. others have to be noticed aids and tallage. The
right of demanding aids arose from the close
tie, as between man and man, which the relation
of lord and vassal implied and the words of
homage expressed. In natural agreement with
such an idea, the lord could call upon his
vassal to assist him with money on emergencies,
although the vassal was understood to be free
from taxation as a rule, because he defended
his lord with his body. These emergencies soon
became limited to three the ransoming of
the lord from captivity, the knighting of his
Feudalism. 85
eldest son, and the marriage of his eldest
daughter each needing an amount of money
such as was not usually at the disposal of a
feudal lord The same claim as was made by
the king upon his tenants was made by the
barons upon their tenants ; and Magna Carta,
by the clause forbidding the king to permit
lords to take from their tenants other than the
three customary aids, recognizes their right to
take these. The word "aid" came, however,
to be extended to most other imposts, though
the word itself had at first implied a free assist-
ance. Hence it became necessary to lay down
in Magna Carta that aids, on other than the
three above-mentioned occasions, should not be
imposed save by the Common Council of the
realm.
Tallage, a tax which originated under the Taliagt.
Norman kings, though it is not given the name
till the reign of Henry II., may similarly be
regarded as a result of the feudal theory. It
was an impost levied at the king's pleasure
upon the royal demesne, including, as has been
pointed out, after the Conquest, most of the
towns in the kingdom. Probably the theory on
which it was justified was this that as military
service was the burden of a special class, of those
holding in chivalry, it was equitable that those
86 Feudalism.
who were exempted from this duty, the socage and
burgage holders, should contribute by taxation
to the national defence. The barons claimed an
equal right of tallaging their own demesnes ; and
it was not without a struggle that the Exchequer
succeeded in establishing the principle that all
such seigneurial tallages needed royal consent.
As late as 1305 Edward I. granted leave to
the barons to tallage their lands as he had
tallaged his. The towns, however, on baronial
demesnes had long succeeded in buying exemp-
tion ; and the royal right itself disappeared
after the statute of 1340. Tallage in England
was never so important as its parallel, the
fat//e, in France, and this for two reasons : first
because the maintenance of the national militia
took away the excuse for demanding money
for national defence ; and secondly, because it
proved to be the king's interest not to tallage
the towns heavily, in order to induce them to
increase the annual payments known as the
borough ferms. 1
III. Cer- III. We now turn to consider the question
wherein and why England continued to differ
^ rom a com pl ete ly feudalized state such as
the Nor- France ; to notice the dangers to which it was
tnp ' subject, and the means by which these dangers
1 Gneist, I 21 in.
Feudalism. 87
were escaped. The tendencies of a feudal state
may be described in two phrases : on the side
of the king, sovereignty tended to disappear in
suzerainty ; on the side of the vassals, owner-
ship tended to become sovereignty. The great
tenants-in-chief, and smaller sub-tenants when
the immediate lord was weak, might, and in
France and Germany did, succeed in becoming
practically independent of any external control.
The king's authority as national sovereign was
lost, and its place taken by narrowly defined
rights over those immediately holding of him.
But we must be careful to avoid exaggerations.
As Palgrave has said, " there was no govern-
ment in mediaeval Europe founded on feudality,"
in the sense of accepting as a principle this
limitation of royal power to an over-lord's rights
over his vassals. It has recently been shown
that even by the early Capetian kings such a
limitation was neither recognized in principle
nor conformed to in practice. 1 Yet such was
in the main, and over a great part of western
Europe, the result of the forces at work ; and
such results might seem especially probable in
England. For England was a country con-
quered by men penetrated with feudal ideas.
1 Luchaire," Histoire des Institutions Monarchiques de
la France," L i. ch. i.
88 Feudalism.
The new king appeared to depend on his vic-
torious army for the retention of his prize ; and
everywhere else the existence of a large con-
quered population had stimulated the growth of
baronial independence. To understand why this
did not occur in England it is necessary to
realize, before everything else, the position as-
sumed by William and his successors. The
Conqueror, throughout his reign, posed as the
lawful heir of the Confessor. The battle of
Hastings and the ravagings of north and west
were, in this view, but unfortunate episodes
which did not prevent the king, who had been
elected in due form by the Witan, and crowned
by an English primate, from ruling as English
kings before him, with unaltered authority. The
policy of William was evidently this, to use all
the power which could be derived from the
feudal relation, but at the same time to add to
it all the power of the English monarchs. Many
an old institution which a despot with a free
hand would never have devised, he found it
useful to maintain as weapons against feudalism.
Danger The first and greatest danger was lest it
lest tenants . ..
should should be believed that the tenant was bound
their'ivrds to *" s immediate lord even against the king.
against the This did become the doctrine in France and
Germany, and from it the deduction even was
Feudalism. 89
drawn that, while the vassal who had waged
war on his lord was worthy of forfeiture, his
tenants, who had but obeyed his summons, were
innocent and ought not to be punished. Thus
/
the Etablissements of S. Louis, which were
designed to extend the royal power, though
they lay down that a tenant is not bound to
serve his lord against the king if the king
will do the lord justice, yet declare that " if
the chef seigneur persist in his refusal to do
justice, the vassal ought either to follow his
lord, or resolve to lose his fief." 1 For here
the idea of personal relation and duty predomi-
nated : a personal tie bound the tenant to his
lord ; there was no such bond between this
tenant and the king. This relation was created
by the act of homage and oath of fealty; so
that, to take another instance from the reign of
S. Louis, when that king was going on crusade,
Joinville refused to join the barons in taking an
oath of faith and loyalty to the king's children,
on the express ground that he was not the king's
man, but the man of the Count of Champagne.*
He was not willing to incur obligations which
might conflict with his first duty, fidelity to his
immediate lord.
Hallam, Middle Ages," i. 168 .
" Mdmoires " (e<L Michel), 37.
9O Feudalism.
Oath of Facts such as these make us understand the
significance of William's action at the assembly
of Salisbury in 1 086. The Domesday Survey
had just been completed ; henceforth the king
could learn with certainty who were in posses-
sion of the soil. His next act was to make the
holders recognize that, whoever might be their
immediate lord, their duty to the king was
paramount to their duty to their seigneur.
William wished to make it clear that he was
not a mere feudal suzerain, and, as such, only in
distant relation to the mass of the people ; but
that he was also the sovereign of the nation, and
claimed obedience from every member of the
nation. And so " he ordered," says Florence of
Worcester, " that archbishops, bishops, abbots,
earls, barons, sheriffs, with their vassals (cum suis
militibus\ should meet him at Salisbury; and
when they had come together he compelled their
vassals to swear fealty to him against all men''
Contemporary writers plainly intend to show
that the oath was understood to be one binding
them to the king even against their immediate
lords. The English chronicler puts it in this
way : " There came to him his Witan, and all
the landowning men there were, over all Eng-
land, whose soever men they were, and all bowed
down to him and became his men, and swore
Feudalism. 91
oaths of fealty to him, that they would be faith-
ful to him against all other men."
A similar attempt to stem the tide of feudalism
has been made by Charles the Great ; and many
a king had tried to get a clause inserted in the
formulas of homage and fealty which should
reserve the vassal's duty to his sovereign. But
efforts to preserve the reality of national sove-
reignty had failed on the continent ; and this
oath at Salisbury, important as it is as a declara-
tion of principle, would have been worthless had
not the king possessed means of enforcing its ful-
filment No number of oaths could long prevent
the vassals of a great lord with absolute authority
in his own district from choosing rather to follow
their lord against the king than lose their fiefs.
What, then, were the devices of the Norman
monarchs, what the circumstances assisting them,
which so limited the power of local magnates that
their vassals could dare to be true to the king ?
In the first place, William and his successors Means by
were able to have recourse to a military force
other than the feudal levy, namely, the Q\& prevented.
, ... . (1) Alain-
national militia, orfyra. The most important
the three duties binding on every freeman had
been attendance in the national host William
was not slow to see the expediency of keeping
men aware that they remained under the same
92 Feudalism.
instances obligation. Two years after Hastings, the men
tf its use. o f the already conquered districts had obeyed
his summons, and had even joined in the attack
upon their countrymen of Exeter. And men
did not venture to resist even when the true
character of the fyrd, national defence, was dis-
regarded, and it was used for foreign warfare.
In 1073, when William's first conquest, Maine,
seemed slipping from him, an English army took
the chief part in the campaign which ended in
its subjugation ; and in 1094, ten thousand foot-
men came together at the royal summons at
Hastings, though only to be robbed of their
road-money by Flambard, and sent home again.
Far more important, however, are the instances
of the use, and successful use, of the national
militia against the forces of feudal anarchy ; for
they show that, in spite of the severities of the
new government, the great body of the conquered
English quickly learnt where their interest lay ;
better for them that the king should succeed than
the barons ; better one tyrant than many. After
the Conqueror's death, the barons twice endea-
voured to place Robert on the throne in the
place of his sterner brothers. For the weak
administration of that prince in Normandy
assured them that he would hold the reins laxly
in England. The first of these attempts fol-
Feudalism. 93
lowed the coronation of William II. ; it was In 1087.
joined in by the foremost " French " magnates
in England Robert of Mortain, Robert of Mow-
bray, Robert of Belesme, Eustace of Boulogne,
the Bishops of Bayeux and Coutances. Then
William, "seeing that almost all the Normans
had conspired against him, summoned the Eng-
lish," winning them by promises of good govern-
ment With English help he took castle after
castle, drove back the fleet which Robert, like a
new Conquerer, had sent to Pevensey, and finally
captured Rochester, Odo's stronghold. " Many
Frenchmen forlet their lands and went over sea,"
says the chronicler briefly of the consequences,
" and the king gave their lands to the men who
were faithful to him."
In HOI, the struggle seemed likely to befal/o/
repeated, this time between Henry and Robert ; BeUsme.
" but all the English, knowing nothing of the
rights of any other prince, remained firm in
fidelity to their king," and Robert did not
venture on a battle. The failure of Robert
brought with it the punishment of his greatest
supporter. Robert of Belesme was the leader,
and worst example of the lawless, self-seeking
baronial party. Son of Roger of Montgomery,
one of the chief followers of the Conqueror, he
had become Count of Ponthieu and Alen^on in
94 Feudalism.
France, with the earldoms of Shrewsbury and
Arundel in England, the former of itself a petty
principality. He had assisted Robert in his
revolts against his father, and in his rivalry with
his brothers. Power had created in him, as in
Italian despots of a later age, a taste for cruelty,
so that he became a byword for the wanton tor-
tures he inflicted. The presence of such a man
was a constant menace to the royal authority ;
and we can well believe that when he was driven
out, all England, as Orderic tells us, exulted,
and cried, " Rejoice, King Henry, and thank God
that you have now begun to reign, now that you
have conquered Robert of Belesme, and driven
him from the borders of your realm." *
A conquest by Robert of Normandy, aided by
men like Robert of Belesme, might, indeed, have
made England a feudal state in the sense in
which France was a feudal state. But the help
of the English enabled William II. and Henry to
pass through the crisis, and the danger was never
again so great. And so the importance of the
English militia diminished, until Edward I. was
able to make out of it a system of police
and watch and ward. Yet for a long time
it remained one of the forces with which an
ambitious feudal aristocracy had to reckon.
1 See Freeman, "William Rufus," i. 179-184.
Feudalism. 95
It rescued Henry II. from what seemed over-
whelming difficulties in 1173, and among that
king's wisest measures was the Assize of Arms,
by which it was reorganized.
And if we look at the position of a great
baron, and observe the way in which his power
was limited on every side, we shall see that old
English institutions were useful in many other
ways in preventing harmful consequences of
feudal theory. Abroad, baronial power showed
itself in the right of jurisdiction, in the right of
private warfare and of holding castles, and, lastly,
in the right of coinage. Let us take each of
these in order.
The right of jurisdiction was by far the most (2) Preser-
important. One of the questions most eagerly
debated by mediaeval lawyers was whether tlonal
J courts ;
jurisdiction was an inherent part of a fief; and, hindering
though there were not wanting those \t\uo growth of
pointed out that the origin of the two
different, the fief being derived from the grantor's ****
right of property, the jurisdiction from the king's
sovereignty, yet it was generally recognized
that without jurisdiction there was no true and
complete seigniory, and the adage ran, " Fief and
justice make but one." * The result, after the
1 Gasquet, " Institutions Politiques de 1'ancienne
France," ii. ch. ii.
06 Feudalism,
practice of subinfeudation had become general,
was this that, in cases of appeal for refusal of
right or false judgment, the royal court could
not be reached until the suitor had appealed to
several intermediate lords. The king's authority
to do right and redress wrong to every subject
became a mere fiction ; the only alternatives were
the undue power of the lord of a village, or the
undue power of his superior, the lord of a county.
The growth of such a state of things was
prevented in England in two ways ; first, by the
retention of the popular courts, and secondly,
by the creation of a central judicial system, to
which the Norman and Plantagenet kings were
strong enough to enforce obedience. First, as
to the popular courts. William was too much
of a statesman not to see that in the organiza-
tion of the local assemblies of shire and hundred
lay the peculiar strength of the English consti-
tution. Were it only for his immediate and
personal purpose of appearing the lawful suc-
cessor of the earlier kings, he must refrain from
interfering with such a system. But he did
more than abstain from innovation ; he took
care that the local courts should be maintained.
For, national courts such as these, administering
royal justice and presided over by royal officials,
the sheriffs, could do more than anything else to
Feudalism. 97
keep alive the belief that justice was a national
right and not a seigneurial perquisite. In a
document which " contains, probably, the sum of
the Conqueror's legal enactments," appears the
clause, " Let the hundred and county court be
maintained as our predecessors decreed ; " and,
for each of the Norman reigns, records remain of
the trial of important suits in the shire and
hundred moots. Henry I., in a charter which
was intended to put an end to certain abuses
of the sheriff's power in the matter of these
assemblies, ordered that henceforth his county
and hundred courts should meet at the same
times and places as in the reign of King Edward.
A distinction was indeed growing up between
the lesser court of the hundred, held monthly
under the sheriff, and the great court of the
hundred, the tourn and leet held by the sheriff
twice a year, especially for the view of frank"
pledge a sort of village registration for police
purposes. And other changes appeared, such
as the introduction of trial by battle, and the
limitation of the right of joining in judgment to
" barons," i>. 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 pu<u.
had as its special function the decision of
ordinary cases, where two subjects were the
litigators, and the crown was not concerned.
Thus three separate courts are found where
in the early Norman days but one universal
judicial and fiscal body existed.
This short sketch of the higher administra-
tive machinery of England ought to suffice to
show how extraordinarily all things hinged on
the personality of the king. The Curia Regis
covered all the spheres of government by its
activity, and that body was almost exclusively
of the king's choosing ; for the existence of the
hereditary official element of the great officers
of the household in it counted for little.
Over the administration then, the king had
an almost absolute control in normal times.
But he was always liable to the occurrence of
extraordinary circumstances, which would drive
128 The Anglo-Norman and
him to consult the Great Council of the realm,
and in that body lay the sole check to his
power. Luckily, disputed successions, foreign
wars, and the need for extraordinary taxation,
sufficed to keep the traditional importance of
the Great Council alive, and prevented the
growth of absolute monarchy.
The When we descend to the details of adminis-
sheriff
tration in twelfth-century England, we soon find
that the whole system hinges on one official.
Into whatever branch of local government we
inquire, we discover ere long, that we are
recapitulating some one of the innumerable
functions of the sheriff. An account of his
position, and of his relations with the various
institutions in shire hundred and town, gives
an almost complete picture of the conduct of
affairs under the Norman and early Plantagenet
kings. It is the sheriff who is responsible for
everything ; nothing is too great or too small
for his attention. It is equally his duty to go
forth to war at the head of the armed force
of the county, and to scrape together laborious
shillings in petty fines for non-attendance at
the shire-moot He sits month by month in
the seat of judgment, but it is no less his func-
tion to see that the roof of a royal barn in his
district is in good repair.
Angevin Administrative System. 129
It is, accordingly, in the highest degree neces-
sary to give an accurate account of the person,
position, and duties of this all-important officer,
the intermediary between king and country in
well-nigh every matter wherein the two come
into contact.
The old English shire-reeve was, as has been
. tion before
stated in an earlier essay, a royal official whose the
origin goes back to the earliest times. He
appears even in the laws of Ini. For centuries
before the Conquest he had been accustomed
to act for the king in financial matters ; to
collect for him the dues of his thegns, the
produce of his royal estates, the customs of the
ports which lay in the shire. When taxes came
into being, it was the sheriff who had to get
together the Danegeld or the ship-money of
his district. Nor was this all. It was but
natural that the king's fiscal representative should
come into prominence in the shire-court, where
the settlement of money matters formed so
large a portion of the agenda. Accordingly
the shire-reeve is found sitting as one of the
three presidents of the shire-moot, in company
with the two greater magnates, ealdorman and
bishop, whose authority was exercised in the
same district. As early as the legislation of
Athelstan we find the sheriff given a yet wider
K
130 The Anglo-Norman and
sphere of action, when he was directed to
perform a duty neither fiscal nor judicial, that
of "going and putting under surety any man
who is untrue to all people," that is of exercising
police duties.
When the English ealdormanries grew larger
and larger in the tenth century, till they came
to resemble feudal states rather than mere
administrative divisions of the kingdom, it must
have become less usual to see the ealdorman
appear in person at every meeting of the shire-
moot. The more the shires in his sphere of
authority,- the less frequent must his visits have
been. By the reign of Edward the Confessor,
they must have grown to be the exception
rather than the rule. Godwine, for example,
with eight or nine shires under his hand, would
have found his life a burden if he had to attend
every shire-moot of each of his subject districts.
It may well have been the same to a certain
extent with the bishop. When the dioceses
were reconstituted after the Danish invasions,
some were large to a cumbersome degree. A
prelate whose bishop-stool was fixed at Dor-
chester on the Thames, while his diocese
stretched up to the Humber. cannot have been
a very regular attendant at Leicestershire or
Huntingdonshire courts. With the sheriff, how-
Angwin Administrative System. 131
ever, it was different He was the one president
of the shire-moot whose presence could be fore-
seen with certainty. Naturally then it was
the sheriff, not either of his greater associates,
who was the constituting authority of the
assembly. Without bishop or ealdorman the
moot could be held, but the sheriff's presence
was obligatory for its validity. Already, then,
in the days of the later kings of the house of
Wessex, the sheriff was not without his impor-
tance. Where the ealdorman stands to represent
the tendency to disruption in the loosely com-
pacted realm, the sheriff stands opposite him
to represent that direct royal authority which
was the one unifying principle in England.
Yet the tide of the times was running Against
him. If there had been no Norman conquest,
the ealdormanries would probably have drifted
into quasi-feudal states of a continental type
in which the direct interference of the king in
local matters would have ceased. In such a
state of things the sheriff must either have dis-
appeared, or have become the officer of the earl
rather than of the king have figured, in short, as
"vice-comes" in a real sense, and not in name only.
But the disruptive tendencies in England Hmo of-
were roughly checked by the Conquest. Whcn,'' C( ^
he was firmly seated on the throne, William I.
132 The Anglo-Norman and
completely broke up the system of the great
earldoms. By the time that Domesday Book
was compiled, there were only four shires in
England which were under the authority of
an earl Northumberland, Shropshire, and the
"palatine earldoms" of Durham and Chester.
In the rest of the land there was no longer any
great dignitary to stand between the shire and
the king's direct authority. But the feudal
danger was not gone ; it had only changed its
shape. The royal power, if not imperilled by
high officials bearing sway over groups of shires,
had yet to make itself supreme over the new
baronage. The French and Norman adventurers,
who had joined as partners in William's great
undertaking, intended to preserve as much local
independence as they could. The greatest of
them were only prevented by the scattered
position of their estates from becoming as for-
midable as the old ealdormen. To keep them
in check William naturally utilized the already
existing machinery of the sheriffdom, the im-
portance of which he largely increased. In
consequence of the disappearance of the earl,
and the withdrawal of the bishop with all his
ecclesiastical pleas to his own reorganized
spiritual court, the sheriff had no longer any
coadjutors in the administration of the district.
Angevin Administrative System. 133
He absorbed the military functions of the earl,
and became charged with the duty of leading
the men of his shire to war. Moreover, he was
now the sole judicial as well as the sole financial
official of the district Thus he was made
strong enough to face the baronage. William
conferred the sheriffdoms of England on trusty
followers, drawn for the most part, not from the
higher ranks of the Norman nobility, but from
the crowd of smaller men more immediately
dependent on himself. In a few cases he tried
the dangerous experiment of conferring the
shrievalty on men whose landed possessions
were large enough to render their private in-
terests incompatible with their position as royal
officials. In some instances he even allowed
son to succeed father as sheriff a custom the
hazardous nature of which may have been dis-
guised by the fact that the French and Norman
"vicomtes," to whom the English sheriffs were
assimilated in name, passed their office down in
their family. If the shrievalty had universally
become hereditary in the houses of local mag-
nates, it would have constituted a power only
less dangerous than that of the old earl. But
it was only in a few counties in Westmoreland,
for example that the dignity became perma-
nently transmissible. In most shires the sheriff
134 Th* Anglo-Norman and
continued to be a royal officer appointed and
removed at pleasure. A strong sovereign like
Henry II. could at one blow displace all the
sheriffs of England, and hold the great " In-
quest" of 1170 to investigate their past conduct
The Regarding the sheriff, then, as the instrument
functions ^ which the kingly power made itself felt in
matters of local government, let us inquire into
the details of his functions. And as he was
/. Fiscal, originally a fiscal officer, it is natural to take first
into consideration his responsibilities in money
matters. Of these, down to their smallest
details, we have an excellent account in the
lengthy " Dialogus de Scaccario," a document of
the reign of Henry II., which gives invaluable
information as regards the royal revenue,
(a) Super- The primary duty of the shire-reeve in the
V ther<yal earliest times had been to do for the king what
estates. fa e reeve of any private man was accustomed to
do for his master to supervise his estates, and
collect their rents and dues. This naturally
continued to form part of the sheriffs functions
in Norman times. He had to exercise control
over the bailiffs of all the royal manors in his
county, to receive from them the proceeds of
each estate, and to go through their accounts.
For the punctual collection of the sums due by
them he was responsible. He would also have
Angevin Administrative System. 135
to see that the buildings on each manor were in
good order, and the stock maintained at its
proper amount. To give an example of the
minute responsibilities of the sheriff, we find
" Hugh de Bosco, sheriff of Hants, allowed
3 gs. 4d. from his accounts, for having stocked
the king's lands of Mienes with 12 oxen at 3$,
each, and 100 sheep at $d. each ; " l and " Thomas
of Cirencester, sheriff of Somerset and Dorset,
allowed for the expense of 42 quarters of wheat,
75 quarters of oats, and 5 quarters of beans, used
as seed on the manor of Camel." With the
charge of the royal estates the sheriff usually
received that of the royal castles in his shire
also. And just as he was responsible for keeping
in repair a farm-building, so was he responsible
for maintaining a fortress in a defensible state*
It is unnecessary to point out the immense
importance of this charge. The whole character
of mediaeval warfare was settled by the well-
nigh impregnable strength of the mediaeval
fortress. A king facing an unruly baronage had
no more important possession than his castles,
and the person in whose charge they were placed
took over an enormous responsibility.
With the custody of the king's territorial (?) Collet-
possessions in the shire, goes logically that of
1 Madox, u Hist of the Exchequer," p. 64^.
136 Tlie Anglo-Norman and
his claims to payment from the towns and
burghs in royal demesne, that is of all which
were not in private hands, but lay directly under
the king's authority far the larger number of
the populous places of England. The "ferm"
of these localities was in theory the composition
paid by each in return for not having to support
the king and his household for a given time.
By the Conquest the "ferms" of the different
towns were well-known definite sums ; but it
would seem that their collection was one of the
sheriff's richest opportunities for peculation. He
appears to have drawn from the burgesses not
merely the amount at which their town was
assessed, but as much more as he could wring
out of them, all the surplus going to his own
pocket. Hence the first effort in the direc-
tion of municipal independence made by the
English burghs was the attempt to gain from
the king permission to pay him their "ferm"
directly, without having to use the sheriff as
intermediary. What body it was which, by
making direct application to the king, suc-
ceeded in depriving the sheriff of his right to
collect the "firma burgi," we shall endeavour
to decide in a later paragraph, when we come
to deal with those parts of the administrative
system of the twelfth century which grew up
Angevin Administrative System. 137
from below rather than were imposed from
above,
Returning to the sheriffs fiscal duties, we ft) Collec-
must note that his next great responsibility
was for the collection of the tax which, down and
cogt,
to Henry II., was known as Danegeld, and
which, after that king's reign, although nominally
abolished, was practically retained as an occa-
sional impost under the title of "Carucage."
Its character in Anglo-Norman times was
that of a land-tax, assessed at a given sum
originally two, afterwards six shillings on
each hide of land. But so many estates were
wholly or partially freed from Danegeld by
various pleas and exemptions, that its incidence
was most arbitrary and unequal. The lands,
for example, of all royal ministers and officials,
of the sheriffs and the constables, no less than
of the barons of the exchequer and the justices,
were wholly untaxed. Many monasteries, too,
were either entirely exempt, or had secured the
privilege that all their estates, however exten-
sive, should be reckoned as a single hide, and
pay as such only. The unprivileged majority,
remote from court favour and consequent
exemptions, held the tax in special detestation ;
and a promise to abolish it was always the
most popular item in a programme of reform
138 The Anglo-Norman and
which a king could put forth. When " Caru-
cage" replaced Danegeld, these inequalities
were removed. Every caruca, or hundred acres,
no matter to whom it belonged, was now
charged with the payment of a uniform quota
of taxation. The monasteries protested, but
when Richard I. denied them access to any
court of justice till the tax should be paid, they
were driven into a speedy submission.
The "Perm" and "Danegeld" of which we
have spoken represent that part of the royal
revenue which proceeded from what may be
strictly and accurately called taxation ; but the
sheriff was also charged with the collection of
the proceeds of the law courts, and of feudal
dues and incidents.
(8) Collec- It may be suspected that the large profits
'jwiicLl which prompt justice brought to the royal
fitus. exchequer in the way of fines, account for
much of the zeal with which the Anglo-
Norman kings enforced the action of the
national courts. These profits fell into three
divisions. Firstly, in all cases tried in the
shire-courts wherein a fine was involved, one-
third of that fine went by primitive English
custom to the king, just as another share accrued
to the earl ; and thus the first item in the
sheriff's judicial budget was the " third penny"
Angevin Administrative System. 139
of the shire-moot fines. Secondly, there were
certain offences, the trial of which was more
especially in the king's hands, and any fines
that accrued from these went wholly, and not
partially, to the exchequer. These " pleas of the
crown " were tried by the sheriff in the capacity
of a royal "Justice." The most important of
these offences was " murder." That name
originally meant both the secret slaying itself,
and the fine of 36, paid by the hundred in
which the assassination had taken place, in case
of its being impossible to prove that the victim
was an Englishman. But what had originally
been a precaution on the part of William I.
against the slaying of his Norman followers, soon
came to be the ordinary method of procedure
in all cases of secret homicide. The reason
was that within a century the English and
Norman races had become so hopelessly mixed,
that it was impossible to speak with certainty
about the pureness of the blood of any free-
man. The crown, unwilling to lose its fines,
decided that every murdered man should count
as a Norman unless it could be absolutely
proved that he had not a drop of un-English
blood in his veins ; and the persons of whom
this could be proved were soon so few that
"murder" passed into being the name for all
140 The Anglo-Norman and
cases of assassination. In the time of Richard I.
the pleas of the crown were taken from the sheriff,
and given to a new officer called " coroner,"
chosen in the county court by the suitors there
assembled, and so a national rather than a royal
functionary. Gradually losing all his duties
save that of inquest in cases of murder, the
coroner drifted into his present modest position.
Thirdly, there was yet another way in which
the county court and also the hundred court
contributed to the king's revenue. Fines
were due from all who failed to attend them,
and these were carefully gathered in by the
sheriff, and formed an appreciable item in
the accounts which he had to present before
the Exchequer at his Easter and Michaelmas
visits.
(e) CotttC' From the branches of the sheriff's accounts
t feudal which were concerned with judicial profits, we
dws. turn to the feudal dues. The Anglo-Norman
kings, while careful enough to deprive their
vassals of the privileges which made feudalism
profitable to the subject, were strict in enforcing
those of its usages which benefited the royal
exchequer. First came the three legal aids,
which the king might raise on the occasions of
his eldest son's knighthood, his eldest daughter's
marriage, and his own captivity in war. Next
Angevin Administrative System. 141
we have reliefs the fines paid by a successor
on taking over the lands of a deceased relative.
William II. had made them a profitable means
of oppression, but by the time of Henry II. the
sums payable on a barony or knight's fee had
become settled at 100 and 5 respectively.
Wardship was perhaps the next most important
feudal incident. The power over the lands and
persons of heirs who were under age could
easily be turned to account by an oppressive
king ; the former by reckless exhaustion of
the stock and soil of the estate, the latter by
using the right of giving away the minor in
marriage, and receiving large sums from those
who gained by the transaction. The sheriff,
entitled as the royal representative to keep an
eye on all wards and the persons appointed as
their guardians by the king, was doubtless able
to make his profit from them. King John and
his officials were specially noted for their abuse
of wardship, a fact which has secured a con-
siderable space in Magna Carta for clauses
relating to its limitation. There were also
other minor sources of the king's feudal
revenue, among which may be mentioned
esc/teats, the reversions of land to him from
the extinction of a family or the treason of a
tenant, fees for permission to transfer estates
142 The Anglo-Norman and
in other ways than that of strict hereditary
succession, and fines exacted for the violations
of forest law e.g. for " essarfs," or illegal clear-
ings in woods, and for non-attendance at the
forest courts. In the reign of Henry II. a new
item was added to the feudal profits of the
crown by the institution of " scutage in com-
mutation of service." This was a composition
raised in lieu of the forty days' personal service
in the royal army, to which every holder of a
knight's fee was liable by the conditions of
his tenure. The knights readily accepted the
scheme, while the king found himself able to
raise with the funds of the scutage a permanent
force of mercenaries, who formed a much more
efficient army than the untrained feudal levies.
The amount of this composition was almost
invariably twenty shillings on each knight's fee.
The sheriff For all these branches of the royal revenue
Exchequer the sheriff was responsible. Twice a year he
Court. appeared before the Exchequer Court and went
through the whole of his accounts with the
barons of the exchequer. The payments were
made in huge masses of silver pence the only
coins current in the kingdom which were paid
over by weight, not by tale, that the king might
not be cheated by clipped pieces. Each sheriffs
payment of pence was also carefully tested with
Angevin Administrative System. 143
the crucible ; samples being melted down, to see
that the king might not, while receiving good
weight, be deceived with base metal. The
accounts were kept by the very primitive
method of tallies, which were notched laths of
wood, on which the sums were indicated by the
cuts. They were split down the middle, and
one of the halves was carried away by the
sheriff, while the other remained with the
exchequer. It was useless to tamper with
the signs on one half while the other was in
existence, and thus there was little danger of
quarrels over past accounts.
We have now to pass to the sheriffs next //.
class of functions his military capacities. The tary
kings of England never committed the defence
of the realm exclusively to the feudal levies.
The old theory of \hefyrd the nation in arms
was consistently kept up ; and now that there
was no one corresponding to the old ealdorman
to take the command of the armed men of the
shire, that function fell (unless the king
appointed some special commander for the,
occasion) into the hands of the sheriff. In the
case of a prolonged and distant expedition
that official would not, of course, have been
long spared from the routine of his home
duties. But in the case of sudden levies to
144 The Anglo-Norman and
meet unexpected dangers, the exercitus scirarum
would be raised and led by their sheriffs. Such
an occasion was the mustering of the army
which defeated the Scots at the Battle of the
Standard, when the sheriffs of Yorkshire took
command. Similar examples are found in the
suppression of the feudal revolt of 1173, and
in the siege of Bedford, held by Fawkes de
Breaute*'s followers, in 1224, In the fourteenth
century, however, the sheriffs authority in the
province of war was practically superseded by
the issue of "commissions of array," which
set other persons to muster men in the king's
name. But the formal abrogation of the
sheriffs military power did not take place till
Queen Mary appointed a lord-lieutenant for
each English county in 1556.
We have now dealt with the deliberative and
judicial bodies which assisted the king in the
supervision of the administration of England,
and with the r^yal officials through whom the
details of the administration were carried out.
All these personages were but portions of a
simple but efficacious system for bringing the
king's will to bear on the nation. They are
all royal and not national in character, and
are in no sense representative. In the higher
branches of administration it appeared as if that
Angevin Administrative System. 145
share in the government of the realm which in the
days before the Norman conquest had fallen to
the Witenagemot, an assembly which undoubt-
edly represented the nation, had been entirely
transferred into the hands of the sovereign. But
when we descend to the lower administrative
machinery of the land, we find that the state
of things is entirely different Representative
institutions, far from disappearing, come more
and more to the front, and the elective method
which was one day to give England her House
of Commons makes its first essays in local
administration and local finance, as a prepara-
tion for its extension in the thirteenth century
to the broader and weightier affairs of the
whole country. This movement is a growth
from below, strongly contrasting with the work-
ing of the higher branches of government, where
everything was unrepresentative, and rested
ultimately on the mere will of the sovereign.
On all local institutions in England feudalism Loealad-
was superimposed ; but the new arrangements
did not replace those which previously prevailed,
but rather coexisted alongside of them. Thus in
the manor the lord held his Court Customary (i)
to deal with his tenants in accordance with
feudal usage, and his Court Leet (if he possessed
the grant of sac and soc} to try their petty
146 The Anglo-Norman and
criminal offences. But side by side with these
survived the Court Baron, which represented
the old assembly of the freemen of the township
gathered in their moot to pass bye-laws for
themselves, and transact their own local business.
Moreover, the king, being interested in the
hundred-moot and shire-moot, by reason of
the profits which he drew from them, was
naturally determined to keep the courts of the
lords of the manor in due subordination. It
was his object to secure that as little litigation
as possible should be carried on before the lord's
representative, and as much as possible before
his own, the sheriff and the itinerant justices.
Hence it came that the manor courts remained
comparatively unimportant, and all affairs of
weight came either before the courts of the
hundred and shire, the free assemblies of the
people of the smaller or larger district, who met
as common subjects of the crown, not as common
tenants of any feudal superior, or before the
itinerant justices, who were purely royal officers.
(2) The The hundred court need detain us only while
we mention that twice a year it was the scene
of the "View of Frankpledge," when all the
inhabitants of the hundred had to present them-
selves before the sheriff, to prove that they were
duly enrolled in a " tithing " of ten persons
Angevin Administrative System. 147
mutually responsible for each other's good con-
duct. The fact that the supervision of local
police machinery, save in a few exceptional cases
where a lord enjoyed special privileges, was
placed in the hands of the king's officer, to
the exclusion of feudal influences, is a point
to be clearly marked when the outlines of the
English constitution are discussed.
The shire court deserves more notice. It is (3) The
remarkable as the first body in England in Mre cowrt '
which a system of representation prevailed. In ( a ) / t de-
the twelfth century it was no longer attended vel P*. tf * e
principle
by the whole population of the county, but \>yf 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.
<a) TaU- The Confirmatio Cartarum had, in prohibiting
the taking of aids, tasks, and prises without
consent of Parliament, in no way interfered with
the right which the king possessed in his capacity
of landlord, of taking tallage from the towns in
his demesne ; for the levy of that tax had never
been dependent on a grant from the Great
Council. Now, however, that the feudal methods
were dying out and that the towns were repre-
sented in Parliament, there was no object in
Parliament. 213
maintaining the right. Yet, as if to preserve
it, each of the Edwards once during his reign
issued orders for the collection of a tallage
in 1304, 1312, and 1332. It was not likely
that, as the commons felt their strength, they
would permit the continuance of this anomaly.
In 1340 the statute of that year decreed that
no aid or charge should henceforth be made but
by common assent of the various estates in
Parliament This statute is a supplement to the
Confirmatio, and was intended to include every
kind of tax that was not authorized by the
assembly of the nation.
The customs demand a slightly more detailed (0) Cus-
treatment The privilege of licensing trade had toms '
ever been held to belong to the king, as the
representative of the nation in all external
dealings, and as the judge between man and
man. In return for this permission it had been
the royal custom, previous to 1275, to deal with
each of the chief commodities of trade in the
country in a slightly different manner. The
wine had been subject to " prisage," or the right
of the king's servants to take from each wine-
ship, on coming into harbour, a toll at the
rate of one cask from every ship containing
between ten and twenty ; and two casks, but
no more, if the number rose above twenty.
214 Parliament.
The wool was generally seized at the port
until a payment in the shape of a ransom had
been exacted, while of the general merchandise a
proportion was levied as a kind of toll or licence
to trade. In 1275 these arbitrary methods
of dealing with the trade of the country, which
was now growing to some importance, were
supplanted by a definite parliamentary grant
of fixed tolls, which is known as the Antiqua
or Magna Custuma. The king's officers were
allowed to levy at the ports, from merchandise
going out of the country, half a mark on every
sack of wool, and on every bale of three hun-
dred fleeces, or woolfels, as they were called ;
and a mark for the export of each last of
leather. These would fall naturally on the
foreign merchants, and would not interfere with
the internal trade. In 1303, however, the king
began his surreptitious dealings with the foreign
merchants, and by the Carta Mercatoria obtained
an increase of these customs on exports of wool
besides a fixed rate on other commodities, in-
cluding wine, to the amount of fifty per cent.
These duties, which were known as the Parva
et Nova Custuma, were not, strictly speaking, a
breach of the Confirmatio, for they had been
negotiated with foreigners who had nothing to
do with the grant of that document. The
Parliatnent. 215
lords ordainers in 1311 made short work with
these increased customs, but they were re-
stored by Edward II. on his recovery of power
in 1322, were confirmed on Edward III.'s ac-
accession, after which time they became part of
the ordinary revenue of the crown, and were
transformed into a parliamentary grant by the
Statute of Staples in 1353.
But this had little effect upon Edward III.'s
financial dealings. The institution of staples,
which restricted the sale of wool to certain
towns in which it was collected, had been
begun by Edward I., and had made it very
easy to tamper with that important article of
commerce. The Statute of Staples merely fixed
the number of the staple towns, and placed the
whole system on a more permanent footing
It was the enthusiasm roused by the French
war that enabled Edward III. thus to transgress
the Confirmatio, and to tax the country by
secret negotiations with the merchants without
going to Parliament at all. The commons
pursued a policy of considerable skill. At their
next session they generally authorized the exac-
tion which had been made without their assent,
judging that, if the right of granting the subsidy
now passed unquestioned, their demand to with-
draw the grant could not well be resisted when
2i6 Parliament.
the opportunity for so doing presented itself.
The king, on the other hand, was content with
the momentary advantage which he gained from
the possession of the money. The commons
had not long to wait. We have already noticed
the statute of 1340, which was aimed at pro-
hibiting the levy of any taxation unauthorized
by the estates. This, however, proved in-
sufficient ; the Statute of Staples rendered it
increasingly easy for the king to meddle with
the wool and necessitated a final declaration of
the parliamentary position in the statute of 1362,
confirmed in 1371, to the effect that neither
merchants nor any other body should henceforth
set any subsidy or charge upon wool without
consent of Parliament. The desired result
seems to have been at length attained, and the
king ceased to tamper with the chief article of
English commerce.
Hitherto we have been dealing with the
customs levied on the export trade. The foreign
merchants were comparatively easy to deal with,
because they were in the special protection of
the king. But the English merchants as a body
might also be disposed to come to terms. The
import trade was large both in wine . and in
general merchandise. In 1308 Edward II. per-
suaded a number of merchants to compound
Parliament. 217
for the royal right of prisage by paying a
definite duty of two shillings on every tun of
wine which they brought into the country. No
further step was taken in this direction until
1347, when, during Edward III.'s absence in
France, the council, under his son Lionel of
Antwerp, agreed with the English merchants
that they should pay a duty of two shillings on
every tun of wine, and sixpence on every pound
of general merchandise. With this irregular
exaction Parliament dealt as with all others.
In 1373 it was formally granted for two years,
and thenceforth became a regular portion of
the royal income under the name of tunnage
and poundage.
Besides these exactions, there were other M &"
e ^i veyance.
means of oppression open to the king. The
first of these consisted in purveyance, or the
right of the king, in the journeys of his court
through the country, to the use of his subjects'
goods. This had been a right from time im-
memorial, but the size, extravagance, and
ubiquity of the court of Edward III. rendered
it peculiarly burdensome in his reign. Despite
numerous legislative enactments, this abuse re-
mained unchecked until 1362, when it was by
statute abolished, except for the personal wants
of the king and queen.
218 Parliament.
(8) Pay- In commissions of array, the principle of pur-
veyance was extended to the purposes of war.
Despite the provisions of the assize of arms
and the statute of Winchester, Edward II. and
Edward III. took forced levies of soldiers out-
side their counties, and then compelled the
counties and townships to pay the wages of
these troops. Again statutes were of little avail
until 1352, when it was enacted that it was only
by grant of Parliament that any one, who was
not bound to do so from obligations of his
tenure, should be compelled to furnish armed
men to the king. A confirmation of this statute
was secured in 1404.
There were, however, some sources of royal
revenue over which the commons did not so
easily succeed in obtaining control. Such were
the three customary feudal aids, of which the
two most frequently called for that for the
knighthood of the son and the marriage of
the daughter were subjects of discussion until
the time of the Tudors. Moreover, the king had
a great reserve fund in the Italian bankers, who
on the banishment of the Jews in 1290 had
become the chief creditors of the crown. Nor
was he ashamed to put himself under obliga-
tions to foreign princes or to the pope, nor even
to beg in his needs for such aid as the prelates,
Parliament. 219
the monasteries, and other corporate bodies
were disposed to accord^him. And, lastly, the
votes of the clerical tenth scarcely came under
the Confirmatio. As long as the king chose
to regard the clerical grants as free gifts, it was
impossible for the commons to interfere.
In matters of legislation the chief authority (2) Legit-
lies with that portion of the community which
exercises the right of initiating measures. In
early times alterations of the law are a for-
midable matter, so that though we find almost
all modifications of existing legislation previous
to Edward II. initiated by the king or his
council, the king at the same time had the
power of issuing ordinances which were in
theory temporary explanations of the law as
it stood. Hence, though we may distinguish
between a statute and an ordinance by saying
that the former necessitated the concurrence of
the three estates for its enactment or abrogation,
whereas the latter was issued by the king through
his council, yet in actual fact we find the two to
have often been confused. As late as 1290 the
commons were considered as having no part or
lot in legislative measures ; for the statute of
Quia Emptores was passed by the magnates in
that year before the commons were summoned
to assemble. But as the third estate obtained in-
22O Parliament.
creasing recognition as a portion of the national
assembly, this position must necessarily alter.
The right of petition had ever belonged to the
commons, whether individually or assembled in
their local courts. The exercise of such right
would come with redoubled meaning when it
was enforced by a whole estate of the realm.
Moreover, the acknowledgment of their collateral
right of voting all supplies was a weapon in the
hands of the commons of which they would not
be long before they availed themselves. The
acknowledgment of Edward II., in 1322, that
" matters to be established touching the estate
of the king and his heirs, the realm and the
people, shall be treated, accorded, and established
in parliaments by the king, and by the assent of
the prelate, earls, and barons, and the com-
monalty of the realm," though a little prema-
ture, expressed the goal towards which the
constitution was tending. But there were two
stages to be reached before the power of the
commons in legislative affairs was recognized
in its entirety. It was necessary, in the first
place, that they should make their money sup-
plies depend on the redress of their grievances,
or at any rate on the obtaining of answers to
their petitions. It was further necessary that they
should ensure that the statute which resulted
Parliament. 221
should be a direct answer to the petition which
it was supposed to embody. The first stage
was reached when the commons adopted the
method of putting off their vote of supplies until
the last day of the session. Of this the first
occasion is in 1339. The second stage was not
reached until late in the reign of Henry VI.,
when the form of bill was substituted for that of
petition.
The right of deliberation and assent in matters (3) Ad-
of general political concern had ever been an
acknowledged attribute of the national council ;
but not such as required the presence of the
greater portion of that body for its due recog-
nition. The principle enunciated by Edward I.
in 1 295, that "what touches all shall be approved
of all," would seem to include this right also for
the successors of the feudal gathering of tenants-
in-chief. In the Parliaments both of 1301, the
celebrated Parliament of Lincoln, and in that of
1309, we find the commons taking an active
part in the presentation of a list of grievances
which included matters of general welfare. It
is, however, to the wars of Edward III. that
we can refer the first definite recognition of the
commons' rights in this respect With the
object of gaining support for his wars, Edward
pursued the policy of keeping the nation in
222 Parliament.
good humour with his schemes, by constantly
consulting their representatives. By this means
he hoped to find a way through their hearts to
their purses. But the commons preferred that
the sole responsibility for these unknown dangers
should remain with the king, and steadily
refused to express any opinion in the matter
of the war, though they readily welcomed
peace when it was offered them. In judicial
matters, again, though they never assumed the
position of a court of law, they made no scruple
of complaining of the manner in which jus-
tice was administered. Petitions were frequent
against the sale of writs in chancery, against the
judicial functions usurped by the royal council,
against the delay of justice, the interposition of
great lords on behalf of suitors, and many other
similar iniquities. The right of impeachment
was the one judicial right which was claimed
and made good. The proceedings of the last
year but one in Edward III.'s reign, when the
Good Parliament, as prosecutors, arraigned the
king's ministers before the lords, mark the
beginning of an important epoch in the struggle
between the royal ministers and the represen-
tatives of the people.
Thus far has been traced the formation of
the Parliament of the three estates, and the
Parliament. 223
entrance of the commons on their career of
victory. Their most important privileges have
been asserted and won ; the acquisition of others,
necessary to the existence of a vigorous national
rule, but subordinate to those which have been
thus hastily sketched, is a mere question of
time. It will be the object of the succeeding
essay to show how the powers thus snatched
as it were by accident from the crown, grow
and develope into well-ascertained and clearly
defined constitutional rights.
ESSAY V.
CONSTITUTIONAL KINGSHIP.
Relations THE thirteenth century saw the foundation of
crown and ^ e parliamentary constitution ; the fourteenth
^^^ century is marked by the development of the
of the four- rights of the House of Commons. The full
teenth cen- - .
tury. extent of the constitutional growth, due in great
measure to the necessities of Edward III., is
very clearly illustrated by the proceedings of the
Good Parliament The weakness of Richard II.
enabled the estates to follow up their advantage,
and secure fresh precedents on behalf of repre-
sentative government. But satisfactory relations
between the Parliament and the monarch were
by no means established in the fourteenth cen-
tury. Side by side with the constitutional
development, the royal prerogative grew. "The
history of the national growth is thus inseparable
from the history of the royal prerogative." Had
Constitutional Kingship. 225
Richard II. been a man like Edward I., or even
like Edward III., a collision might have been
by mutual concessions, averted. Richard's ill- The rev*-
advised and premature attempt to formulate the
principles on which Edward III. had acted, and
to establish an absolute government, was doomed
to failure. His temporary success showed how
fragile were the supports upon which the consti-
tution, as yet barely a hundred years old, rested.
His alienation from all the political classes by
his arbitrary acts, and by the suspicion of his
sympathy with the objects aimed at by the vil-
leins and the Lollards, enabled Henry of Lan-
caster to come forward as the representative of
the widespread discontent. Having secured a
leader, the Parliament, supported by the Church,
deposed Richard and chose Henry king. A
great constitutional revolution had taken place ;
the nation had deposed one king and had ac-
quiesced in the accession'of another. In doing
so, Parliament on the one hand ensured con-
stitutional progress, on the other hand imposed
a definite check on the hopes of the villeins,
and the more revolutionary schemes of the
Lollards. The threatened destruction of the
constitution was averted by the accession of
Henry of Lancaster, and the postponement of
questions " between the labouring and propertied
Q
226 Constitutional Kingship.
classes," 1 as well as of questions between the
Church and the nation, to a time when the last
struggles of a lawless aristocracy had died away,
was certainly a happy thing for England.
Compart- The successful termination of the revolution
f J 399> 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<m tkt
Parliament was by no means looked upon
1 Fortescuc, "The Governance of England." Intro-
duction by C. Plummer, p. 3.
232 Constitutional Kingship.
crown and the great controlling power in the state. A
cameaTout. strong executive had been necessary during the
whole of the fourteenth century, and the execu-
tive work had been done either by the kings
with the aid of their council, or by the council
during the minority or weakness of a king.
The royal This royal council was a most powerful engine,
and, till the accession of Richard II., was re-
garded with jealousy and suspicion by Parlia-
ment. Its origin may be traced to the reign of
Henry II. ; it was brought into great prominence
during the minority of Henry III. It became in
the thirteenth century a permanent council, and
its position was further defined by Edward I.
Subordinate to the king, exercising with the
king executive functions, besides wielding exten-
sive appellate and judicial powers, it naturally
incurred the jealousy of the Great Parliamentary
Councils of Henry III., and of the Parliaments
of the fourteenth century. Attempts were made
by Parliament at one time to secure the nomina-
tion of councillors, at another time to restrain the
authority of the council. From its wide, indefinite,
though salutary judicial powers, was formulated
Court of in Edward III.'s reign the Court ,of Chancery,
Chancery. w jj Ose e q u jtable jurisdiction was permanently
established under Richard II. As the interests
of the civil jurisdiction of the council and the
Constitutional Kingship. 233
Court of Chancery were identical ; the frequent
opposition of the commons, from Edward III.'s
reign to that of Henry VI., was directed against
the judicial powers of both bodies. With the
accession of Richard II., the Privy Council, as The Privy
it was then called, entered upon a new period
of its history. It was obvious that as Parlia-
ment grew stronger, frequent collisions would
take place between the legislative body and a
council exercising large and undefined executive
powers and responsible only to the king.
The council itself took advantage of the
minority and the indolence of Richard II., in-
creased -its functions and grew more powerful;
while Parliament endeavoured, at times with
success, to control the nomination of the mem-
bers of the council, who are now appointed annu-
ally, bound by special oath, and receive fixed
salaries. Instead of being "subordinate to, it
has become a power rather co-ordinate with the
king," and tended to control the prerogative.
If Richard had been successful in establishing
a despotism, the council would have occupied
a position such as it held under the Tudors
"feeble against the crown, as it was mighty
against every one else." 1 His failure brought
forward again questions which had been pressing
1 " The Privy Council," by A. V. Dicey, p. 23.
234 Constitutional Kingship.
The revo- for solution throughout the century : How were
the P owers f king and Parliament to be recon-
c iled ? how were the relations of council and
five and
Parliament to be settled ? The accession of
Henry IV. brought with it an answer to these
questions. He had inherited and had already
acted upon the principles attributed to Thomas
of Lancaster. Limitation of the royal power by
a council, patronage of the clergy and the com-
mons, these were the principles on which the
house of Lancaster had risen. He thus continued
the best features of the baronial policy of the
thirteenth and fourteenth centuries.
The events of 1399 only confirmed him in this
popular attitude. His title was weak, the crown
revenues were insufficient ; he had come to the
throne as the advocate of constitutional prin-
ciples, the champion of the nation against the
policy of Richard II., who had not only roused
the fears of the propertied classes, but had
threatened the growing powers of Parliament
itself. A common impulse united all the poli-
tical classes in opposition to the insupportable
tyranny of Richard. The revolution gave the
throne to a dynasty bound by its traditions, by
the very circumstances of the revolution, to re-
verse the policy of Richard, to adopt repressive
measures against the Lollards, whose opinions
Constitutional Kingship. 235
were at that epoch political and destructive
rather than religious and reforming, and at the
same time to govern on constitutional principles.
The temporary union of nobles, clergy, and com-
mons, brought about by the exigencies of the
moment, soon broke up after the accession of
Henry. His financial necessities, the frequent
rebellions of a powerful section of the baronage,
the continual danger from France during the
early years of his reign, and his broken health
in the later years, all tended to compel him to
rely upon the support of the clergy and the
Parliament. A policy of persecution was directed
against the Lollards, who threatened the posses-
sions rather than the doctrines of the Church.
Parliament, and especially the Lower House, was Parlia-
completely won over by Henry's honest attempt ^ ^
to settle definitely the relations between the dtrect in ~
strument
executive and legislative organs. As long as ofgovern-
jealousy existed between the Parliament and the
council, the working of constitutional govern-
ment was rendered impossible. By making the
executive organ, the council, work harmoniously
with the legislative organ, the Parliament, if.
by suffering Parliament to influence the appoint-
ment of members of the council, and by thus
eliminating all jealousy between these two bodies,
the Lancastrians were enabled to allow Parlia-
236 Constitutional Kingship.
ment to become the direct instrument of govern-
ment. From 1404 to 1437 this plan is carried
out. Councillors are appointed for the most
part agreeable to the commons, and subject to
the supervision and wishes of Parliament. This
period is most distinctly the period of mediaeval
constitutionalism.
Relations During the reigns of Henry IV. and Henry V.,
the Privy the number of commoners in the Privy Council
Council was considerable. In 1404 Henry, at the
and par- J '
liament request of the commons, nominated a council
Henry IV. of twenty-two, which included seven com-
and Henry moners> 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
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