ym
 

 
 THE CONSTITUTIONAL HISTORY 
 OF ENGLAND 
 
 IN ITS ORIGIN AND DEVELOPMENT 
 
 WILLIAM STUBBS, M. A. 
 
 lieyius Professor of Modem Ilislonj 
 
 VOL. I. 
 
 SECOND EDITION 
 
 AT THE CLARENDON PRESS 
 
 M DCCC LXXV 
 
 \^All rif/hts reserved^
 
 . r 
 
 n 
 
 V. ( 
 
 MACMILLAN AND CO. 
 
 PUBLISHERS TO THK UNIVERSITY OF
 
 The History of Institutions cannot be masteretl, — can 
 scarcely be approached, — Avithout an effort. It affords little 
 of the romantic incident or of the picturesque grouping which 
 constitute the charm of History in general, and holds out 
 small temptation to the mind that requires to be tempted to 
 the study of Truth. But it has a deep value and an abiding 
 interest to those who have coiu-age to work upon it. It 
 presents, in every branch, a regularly developed series of causes 
 and consequences, and abounds in examples of that continuity 
 of life, the realisation of which is necessary to give the reader 
 a personal hold on the past and a right judgment of the 
 present. For the roots of the present lie deep in the past, 
 T^* and nothing in the past is dead to the man who would learn 
 how the present comes to be what it is. It is true. Consti- 
 tutional History has a jx)int of view, an insight, and a language 
 of its own ; it reads the exploits and characters of men by 
 a different light from that shed by the false glare of arms, 
 and interprets positions and facts in words that are voiceless 
 to those who have only listened to the trumpet of fame. The 
 world's heroes are no heroes to it, and it has an equitable 
 consideration to give to many whom the verdict of ignorant 
 posterity and the condemning sentence of events have con- 
 signed to obscurity or reproach. Without some knowledge 
 of Constitutional History it is absolutely impossible to do 
 justice to the chara cters and positions of the actors in the 
 great drflH^SH^^H^Bossible to understand the origin
 
 IV 
 
 of parties, the development of principles, the gi'owth of nations 
 in spite of parties and in defiance of principles. It alone can 
 teach why it is that in politics good men do not always think 
 alike, that the worst cause has often been illustrated with the 
 most heroic virtue, and that the world owes some of its 
 greatest debts to men from whose very memory it recoils. 
 
 In this department of study there is no portion more valu- 
 able than the Constitutional History of England. 
 
 I would fain hope that the labour spent on it in this book 
 may at least not repel the student, and that the result may 
 not wholly disappoint those friends in England, Germany and 
 America, by whose advice it was begun, and whose sympathy 
 and encouragement have mainly sustained me in the under- 
 taking. To them I would dedicate a work which must stand 
 or fall by their judgment. And I would put on record my 
 grateful feeling for the unsparing good will with which my 
 woi'k in other departments has been hitherto welcomed. A 
 more special deljt I would gladly acknowledge to the two 
 Scholars who have helped me with counsel and criticism 
 whilst passing the book through the Press ; to whom I am 
 specially drawn by their association with my early Oxford 
 ambitions, and whose patient kindness an acquaintance of now 
 nearly thirty years has not exhausted. 
 
 Kettel Hall, 
 Christmas Day, 1873.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 INTRODUCTION. 
 
 1. Constitutional History, p. i. 2. Its German origin — in France, p. 2. 
 3. In Spain, p. 4. 4. In Germany, p. 5. 5. In England, p. 6. 6. Ana- 
 logy of Language, p. 7. 7. Of Religion, p. 8. 8. Of Law, p. 9. 9. Re- 
 sult of the comparison, p. 10. 
 
 CHAPTER II. 
 
 CAESAR AND TACITUS. 
 
 10. Caesar's account of the Germans, p. 12. 11. General bearing of it, 
 p. 15. 12. Germania of Tacitus, p. 16. 13. Traces of constitutional 
 organisation; Land, p. 19. 14. Ranks, p. 21. 15. Administration, 
 p. 26. 16. Councils and Courts of Justice, p. 28. 17. The host, p. 30. 
 18. Territorial divisions, p. 31. 19. General deductions, p. 31. 
 
 CHAPTER III. 
 
 THE SAXONS AND ANGLES AT HOME. 
 
 20. Appearance of the Franks and Saxons, p. 37. 21. The Angles and 
 Jutes, p. 39. 22. Saxons in Germany as described by Bede, Nithard, 
 Rudolf, and Hucbald; and noticed in the Capitularies, p. 4I. 23. No- 
 tices of the Angles in Germany, p. 47. 24. The mark system and 
 common husbandry, p. 48. 25. Early system illustrated by the Salian 
 law, p. 53. 26. Further illustrations, p. 56.
 
 vi Contents. 
 
 CHAPTER. IV. 
 
 THE MIGRATION. 
 
 27. Conquest of Britain, p. 58. 28. Condition of the Britons, p. 59. . 
 29. Theory of earlier German settlements, p. 62. 30. Theory of con- 
 nexion between Welsh and Anglo-Saxon laws, p. 63. 31. Effect of the 
 conquest on the conquerors, p. 64. 32. Adoption of royalty, p. 66. 
 
 CHAPTER V. 
 
 THE ANGLO-SAXON SYSTEM. 
 
 33. Anglo-Saxon system, p. 69. 34. Continuity of terminology, p. 70. 
 35. Allotment and division of land, p. 71. 36. Primitive tenure, p. 74. 
 37. Ranks and classes of men, p. 78. 38. The family, p. 81. 39. The 
 township, p. 82. 40. The parish, p. 85. 41. Tithing and frankpledge, 
 p. 85. 42. The dependent township, p. 89. 43. Court of the township, 
 p. 90. 44. The burh, p. 92. 45. The hundred or wapentake, p. 96. 
 46. The hundred court, p. 102. 47. The Liberty or soken, p. 106. 
 48. The shire, p. 108. 49. The ealdorman and sheriff, p. iii. 50. The 
 shiremoot, p. 114. 
 
 CHAPTER VI. 
 
 THE WITENAGEMOT AND THE KING. 
 
 51. The witenagemot, p. 119. 52. Its composition, p. 124. 53. Its 
 powers in legislation, p. 126. 54. In grants of land, p. 130. 55. In 
 judicature, p. 132. 56. In taxing and general politics, p. 133. 57. In 
 election of magistrates, p. 133. 58. In election and deposition of kings, 
 p. 135. 59. The king, [). 140. CO. Coronation and unction, p. 144. 
 61. His promises to his people, p. 146. 62. The oath of the people, 
 p. 148. 63. The comitatus, p. 149. 64. Nobility by birth, p. 150. 
 65. Nobility by service, p. 152. 66. The ealdormanship, p. 158. 
 67. Use of the wergild, p. 161. 6S. The Bretwalda, p. 162. 
 
 CHAPTER VII. 
 
 DEVELOPMENT IN ANGLO-SAXON HISTORY. 
 
 69. Development in Anglo-Saxon history from personal to territorial 
 system, p. 165. 70. Increase of royal power in intension as the king- 
 dom increases in extension, p. 169. 71. The king becomes lord or 
 jiatron of the people, j). 175. 72. He becomes the source of justice
 
 Contents. vii 
 
 p. 179. 73. Jurisdiction becomes territorial, p. 183. 74. The tenure 
 of land affected by the territorialising of judicature, p. 187. 75. Terri- 
 torialising of military organisation, p. 189. 76. Legislation; absence 
 of personal law, p. 194. 77. Influence of the Danes, p. 197. 78. In- 
 fluence of Frank legislation, p. 203. 79. No real growth of unity, 
 p. 207. 80. Seeds of national life still preserved, p. 209. 81. National 
 character, p. 210. 
 
 CHAPTER VIII. 
 
 THE ANGLO-SAXON CHURCH. 
 
 82. Growth of the church organisation in England, p. 217. 83. Freedom 
 from the leaven of Roman imperialism, p. 219. 84. Monasticism, p. 222. 
 85. Divisions of Dioceses and origin of parishes, p. 224. 86. Tithes 
 and endowments, p. 227. 87. Ecclesiastical councils, p. 230. g'8. Re- 
 lations of the church to the state, p. 234. 89. Revival under Alfred, 
 p. 240. 90. The eleventh century, p, 242. 
 
 CHAPTER IX. 
 
 THE NOEMAN CONQUEST. 
 
 91. Complex results of the Conquest, p. 247. 92. State of Normandy, 
 p. 248. 93. Growth of Feudalism, p. 250. 94rFeudal ideas of the 
 Conquest, p. 256. 95. National policy of William, p. 257, 96. Intro- 
 duction of Feudal usages, p. 260. 97. Maintenance of old forms, p. 267. 
 98. Results of changes of administrators, p. 269. 99. SubordiuAte 
 changes in judicature, p. 274. 100. In taxation, p. 278. lOL In 
 ecclesiastical affairs, 280. 102. Transitional character of the period, 
 p. 288. 
 
 CHAPTER X. 
 
 POLITICAL SURVEY OF THE NORMAN PERIOD. 
 
 103. Points of contention in the Norman reigns, p. 290. 104. Title of 
 William Rufus : struggle with the feudatories, p. 292. 105. Recog- 
 nition of the rights of the English, p. 295. 106/ Absolute tyranny: 
 in Church, p. 297. 107. In State, p. 300. 108. Accession of 
 Henry I, p. 302. 109. Humiliation of the feudatories, p. 306. 110. 
 Alliance of king and people, p. ail. 111. Institution of strong 
 government system, p. 312. 112. Ecclesiastical policy, p. 316. 113. 
 Accession of Stephen, p. 318. 114. His misgovernment, p. 323. 115. 
 The consequent anarchy, p. 327. 116. Scheme of refomi, p. 333.
 
 viii Contents. 
 
 CHAPTER XL 
 
 ADMINISTRATION DURING THE NORMAN PERIOD. 
 
 117. New character of the constitution, p. 337. 118. The king, p. 338, 
 119. The royal household, p. 343. 120. The justiciar, p. 346. 121. 
 The chancellor, p. 351, 122. The great officers, p. 353. 123. The 
 national council, p. 356. 124. Earls, barons, and knights, p. 360. 
 
 125. Legislative, judicial, and other business of the courts, p. 370. 
 
 126. The Exchequer, p. 376. 127. The Curia' Regis, p. 387. 128. 
 The popular courts, p. 393. 129. The Manor and Honour, p. 399. 
 130. Royal demesne and forests, p. 402. 131. The boroughs, p. 403. 
 132. The labourer, p. 426. 133. The army, p. 431. 134. Innovation 
 or development, p. 434. 
 
 CHAPTER XII. 
 
 HENRY II AND HIS SONS. 
 
 135. General features of the period, p. 445. 136. Henry II, his character 
 and training, p. 446. 137. His accession and first measures, p. 449. 
 138. The year^ 1158-1163, p. 454. 139 .'The contest with Becket, 
 p. 460. 140.' Constitutions of Clarendon, p. 464. 141. The Assize 
 of Clarendon, p. 469, 142. The year 11 70, p. 472. 143. The years 
 1171-1173, p. 475. 144. The rebellion of 11 73-4, p. 475, 145. 
 Reforms after the rebellion, p. 482. 146. Latter years of Henry II, 
 p. 488. 147. Summary of the reign, p. 492. 148. Richard I, p. 
 495. 149. William Longcharap, p. 498. 150. Administration of 
 Walter of Coutances and Hubert Walter, p. 501. 151. Accession 
 of John, p. 513. 152. Loss of Normandy, p. 517. 153. Quarrel with 
 the Church, p. 519. 154. Quarrel with the barons, p. 523. 155. 
 The Great Charter, p. 530. 
 
 CHAPTER XIII. 
 
 ADMINISTRATIVE AND REPRESENTATIVE INSTITUTIONS. 
 
 156. Character of the period, 1 155-12 15; amalgamation and national 
 unity; — in blood, p. 544. 157. In language and law, p. 547. 158. 
 The king, p. 551. 159. The National Council, p. 563. 160. Legis- 
 lation, p. 573. 161. Taxation, p. 576. 162. Military organisation, 
 p. 587. 163. Judicature, p. 594. 164. The institution of Juries, 
 p. 608. 165. The Towns, p. 623. 166. The Clergy, p. 632. 167- 
 Conclusion, p. 637.
 
 CHAPTER I. 
 
 INTKODUCTION. 
 
 1. Constitutional History. — 2. Its German origin: — in France. — 3. In 
 Spain. — 4. In Germany. — 5. In England. — 6. Analogy of Language. — 
 7. Of Religion. — 8. Of Law. — 9. Result of the comparison. 
 
 1. The growtli of the Enolish Constitution, which is the Elements of 
 • -11 o 1 f Constitu- 
 
 subject of this book, is the resultant of three forces, whose tioual life. 
 
 reciprocal influences are constant, subtle, and intricate. These 
 are the national character, the external history, and the insti- 
 tutions of the people. The direct analysis of the combination ' 
 forms no portion of our task, for it is not until a nation has 
 arrived at a consciousness of its own identity that it can be 
 said to have any constitutional existence, and long before that 
 moment the tlu'ee forces have become involved inextricably ; 
 the national character has been formed by the course of the 
 national histoiy quite as certainly as the national liistory has 
 been developed by the working of the national character ; and 
 the institutions in which the newly conscious nation is clothed 
 may be either the work of the constructive genius of the 
 growing race, or simply the result of the discipline of its 
 external history. It would then be very rash and unsafe to 
 attempt to assign positively to any one of the three forces the 
 causation of any particular movement or the origin of any par- 
 ticular measure, to the exclusion of the other two ; or to argue 
 back from result to cause without allowing for the operation of 
 other co-ordinate and reciprocally acting factors. 
 
 But it does not follow that cautious speculation on questions Preiiniinary 
 of interest, which are in themselves prior to the stai'ting point, 
 would be thrown away ; and some such must necessarily be dis- 
 cussed in order to complete the examination of the subject in its 
 
 B
 
 2 Constitutional Histo'iy. [chap. 
 
 • *•" intfe'grlty* by. .a comparison of its development ^'ith the corre- 
 . J ; "l t"- epondiiig ; stages" -.and contemporary phenomena of the life of 
 *• ** * •* • bfher •nations. '• "Of these questions the most important, and 
 perhaps the only necessary ones, for all minor matters may be 
 comprehended under them, are those of nationality and geo- 
 graphical position ; — who were our forefathers, whence did they 
 come, what did they bring with them, what did they find on 
 their arrival, how far did the process of migration and settle- 
 ment affect their own development, and in what measure was it 
 indebted to the character and jirevious history of the land they 
 colonised ? 
 Germanic Such a form of stating the questions suggests at least the 
 
 English. character of the answer. The English are not aboriginal, that 
 is, they are not identical with the race that occupied their home 
 __ at the dawn of liistory. They are a people of German descent 
 in the main constituents of blood, character, and language, but 
 most especially, in connexion with our subject, in the possession 
 of the elements of primitive German civilisation and the common 
 germs of German institutions. This descent is not a matter of 
 inference. It is a recorded fact of historj', which those charac- 
 teristics bear out to the fullest degree of certainty. The con- 
 sensus of historians, placing the conquest and colonisation of 
 Britain by nations of Gei'man origin between the middle of the 
 fifth and the end of the sixth century, is confirmed by the 
 evidence of a continuous series of monuments. These show the 
 unbroken posi-ession of the land thus occupied, and the gi'owth 
 of the language and institutions thus introduced, cither in purity 
 and unmolested integrity, or, where it has been modified by 
 antagonism and by tlie admixture of alien forms, ultimately 
 vindicating itself by eliminating the new and more strongly 
 developing the genius of the old. 
 
 Influence of 2. Tlie four "reat states of Western Christendom — Entrland, 
 the Ger- ■,<-.• .... 
 
 manic races France, Siiain, and Germany — owe the leadin<' principles wliich 
 
 in KuroiKj i, . ,. . . ,,. , 
 
 geneniiiy. are Worked out in their constitutional lustory to the same 
 source. In tlie regions which had been thoroughly incor^iorated 
 with the Roman empire, every vestige of primitive indigenous 
 cultivation had been crushed out of existence. Roman civilisa-
 
 1.] German System in France. 3 
 
 tion in its turn fell before the Germanic races : in Britain it 
 had perished slowly in the naidst of a perishing people, who were 
 able neither to maintain it nor to substitute for it anything of 
 their own. In Gaul and Spain it died a somewhat nobler death, 
 and left more lasting Influences. In the greater part of Germany 
 it had never made good its ground. In all four the construc- 
 tive elements of new life are barbarian or Germanic, though 
 its development is varied by the degrees in which the original 
 stream of influence has been turned aside in its course, or 
 affected in jDm-ity and consistency by the infusion of other 
 elements and by the nature of the soil through which it flows. 
 
 The system which has for the last twelve centuries formed the Constitu; 
 history of France, and in a gi-eat measure the character of the tory of 
 French people, of which the present condition of that king- -^ 
 dom is the logical result, was originally little more than a 
 simple adaptation of the old German jiolity to the govern- 
 ment of a conquered race. The long sway of the Eomans 
 in Gaul had re-created, on their own principles of adminis- 
 ti'ation, the nation which the Franks conquered. The Franks, 
 gradually uniting in religion, blood and language with the 
 Gauls, retained and developed the idea of feudal subordina- 
 tion in the organisation of government unmodified by any 
 tendencies towards popular freedom. In France accordingly 
 feudal government runs its logical career. The royal power, 
 that central force which partly has originated, and partly owes 
 its existence to the conquest, is first limited in its action by the 
 very agencies that are necessary to its continuance ; then it is 
 reduced to a shadow. The shadow is still the centre round which 
 the complex system, in spite of itself, revolves : it is recognised 
 by that system as its solitary safeguard against disruption, and 
 its witness of national identity ; it survives for ages, notwith- 
 standing the attenuation of its vitality, by its incapacity for mis- 
 chief. In coui'se of time the system itself loses its oi'iginal 
 energy, and the central force gradually gathers into itself all the 
 members of the nationality in detail, thus concentrating all the 
 powers which in cai'lier struggles they had won from it, and 
 incorporating in itself those very forces which the feudatories 
 
 B 2
 
 4 Constitutional History. [chap. 
 
 had imposed as limitations on the sovereign power. So its 
 Changes in character of nominal suzerainty is exchanged for that of absolute 
 
 the consti- . t i -l 
 
 tution of sovereignty. The only checks on the rojal power had been the 
 
 France. ^^ *> ^ •/ x 
 
 feudatories ; the crown has outlived them, absorbed and assimi- 
 lated their functions ; but the increase of jDower is turned not 
 to the strengthening of the central force, but to the personal 
 interest of its possessor. Actual despotism becomes systematic 
 tyranny, and its logical result is the explosion which is called 
 revolution. The constitutional history of France is thus the 
 summation of the series of feudal development in a logical 
 sequence which is indeed unparalleled in the history of any 
 great state, but which is thoroughly in harmony with the national 
 The working character, forming it and formed by it. We see in it the 
 feudalism. German system, modified by its work of foreign conquest and 
 deprived of its home safeguards, on a field excej^tionally 
 favourable, prepared and levelled by Roman agency under a 
 civil system which was capable of speedy amalgamation, -and 
 into whose language most of the feudal forms readily translated 
 themselves. 
 
 Kindred 3. In Spain too the permanency of the Germanic or of the 
 
 influences ... . p i r. i • • i 
 
 of the Goths kindred Visigothic influences is a fact of the first historical 
 and other . __ _ . , . 
 
 races in importance. Here, upon the substratum of an indigenous race 
 
 conquered, crushed, re-created, remodelled into a Roman province 
 more Roman than Rome itself, is superinduced the conquering 
 race, first to ravage, then to govern, then to legislate, then to 
 unite in religion, and lastly to lead on to deliverance from 
 Moorish tyranny. The rapidity with which Si)anish history 
 nnfolds itself enables us to detect throughout its course the 
 identity of the ruling, constructive nationality. The Visigothic 
 element is kept to itself at first by its heresy ; before the new- 
 ness of its conversion has given it time to unite with the 
 conquered nation, it is forced into the position of a deliverer. 
 The Moorish conquest compels union, sympathy, amalgamation, 
 but still leaves the apparatus of government in the hands of the 
 Visigothic kings and nobles ; the common law, the institutions, 
 the names are Germanic. Although the history of Spain, a 
 crusade of seven centuries, forces into existence forms of civil 
 
 Spain.
 
 1.] Spai)i and Germany. 5 
 
 life and expedients of administration wliich are peculiar to itself, 
 they are distinctly coloured by the pertinacious freedom of the 
 primitive customs ; the constitutional life of Castille is, in 
 close parallel or in marked contrast, never out of direct relation 
 with that of Germany and England, as that of Aragon is with 
 French and Scottish history. To a German race of sovereigns 
 Spain finally owed the subversion of her national system and 
 ancient freedom. 
 
 4. In Germany itself, of course, the development of the primi- General 
 tive polity is everywhere traceable. Here there is no alien race, German 
 for Germany is never conquered but by Germans ; there is much tionai 
 migration, but there is much also that is untouched by migration : 
 where one tribe has conquered or colonised another, there feudal 
 tenure of land and jurisdiction prevails : where the ancient race 
 remains in its old seats, there the alod subsists and the free 
 polity with which the alod is inseparably associated. The 
 imperial system has originated other changes ; there are Swabians 
 in Saxony, Saxons in Thuringia : feudal customs in each case 
 follow the tenure, but where the feod is not, there remains the 
 alod, and even the village community and the mark. In the 
 higher ranges of civil order, a mixed imperial and feudal organ- 
 isation, which like the Spanish has no exact parallel, retains a 
 varying, now substantial, now shadowy existence. The imperial 
 tradition has substituted a fictitious for a true bond of union 
 among the four nations of the German land. To the general reader 
 the constitutional struggle is merely one of nationality against 
 imperialism ; of the papal north against the imperial south ; 
 but under that surface of turmoil the lower depths of national 
 life and constitutional organism heave constantly. Bavaria, 
 Saxony, Franconia, Swabia have their national policy, and pre- 
 serve their ancient modifications of the still more ancient customs. 
 The weakness of the imperial centre, the absence of central legis- 
 lature and judicature, allows the continued existence of the most 
 primitive forms ; the want of cohesion prevents at once their 
 development and their extinction. So to deeper study the won- 
 derful fertility and variety of the local institutions of Germany 
 presents a field of work bewildering and even wearying in its
 
 6 Constituiional RistorT/. [chap. 
 
 abundance : and great as might be the reward of penetrating it, 
 the student strays off to a field more easily amenable to philo- 
 sophic treatment. The constitutional liistory of Germany is the 
 hardest, as that of France is the easiest, subject of historical 
 study. As a study of principles, in continuous and uniform 
 development, it lacks both unity and homogeneousness. 
 ConstiUi- ^" England, although less homogeneous in blood and character, 
 
 Hi'tor • ^^ more so in uniform and progressive growth. The very diversity 
 deveiopmeut of the elements which are united within the isle of Britain serves 
 
 oi (jennanic 
 
 ijriuciples in to illustrate the strength and vitality of that one which for thirteen 
 
 comparative, ° ^ , ... 
 
 piirity. X hundred years has maintained its position either unrivalled or 
 
 ^ in victorious supremacy. --If its history is not the perfectly pure 
 development of Germanic principles, it is the neai-est existing 
 approach to such a development^. England gained its sense of 
 unity centuries before Germany : it develojied its genius for 
 government under influences more purely indigenous : spared 
 from the curse of the imperial system and the Mezentian union 
 with Italy, and escaping thus the practical abeyance of legisla- 
 tion and judicature, it developed its own common law free from 
 the absolutist tendencies of Eoman jurisprudence ; and it grew 
 equably, harmoniously, not merely by virtue of local effort and 
 personal privilege, 
 states^f "'^^ In the four great nationalities the Germanic influence is the 
 Europe. dominant principle : in England, Germany and France directly ; 
 whilst in Spain all formative power is traceable to the kindred 
 Gothic rule. The smaller states share more or less in the same 
 general characteristics ; Portugal with Spain ; Scandinavia with 
 Germany and England, with whose ins^titutions it had originally 
 everythijig in common, and whose development in great tilings and 
 in small it seems to have followed with few variations, translating 
 Italy. their constitutional systems into language of its own. In Italy 
 
 the confusion of nationalities is most complete, and there Roman 
 institutions, owing perhaps to the rapid succession of conquerors 
 and the shortlivedncss of their organisations as contrasted with 
 the permanency of the p.npal-imj)erial system, subsisted with 
 
 • Bethmann-IIoUweg, Oivilprocess, iv. lo. Konrad Maurer, KritiBche 
 Ueberschau, i. 47. Gneist, Self-govomnient, i. 3.
 
 I.] Evidence of Language. 7 
 
 least change. Yet there also, the Noiihern States through the 
 (ierman, and the Southern through the Normau connexion, 
 both moreover having gone through the crucible of Lombard 
 oppression, retain marks of Teutonic influence. The institu- 
 tions, national and free in one aspect, feudal and absolutist in 
 another, testify, if not to the permanence, at least to the abiding- 
 impressions of the association. The republican history of the 
 North and the feudal system of the South, the municipalities 
 of Lombardy and the parliaments of Naples, are much more 
 German than Roman. 
 
 6. Nor do the great nationalities return a different answer Effect of 
 
 ,.. .11 ••,,i,i,~ , the Germau 
 
 when interrogated by more convincing tests than that of external and Gothic 
 
 history. If language be appealed to, and language is by itself language. 
 
 the nearest approach to a perfect test of national extraction, the 
 
 verdict is in close accordance. The impact of barbarian conquest 
 
 split up the unity of the Latin tongue as it did that of the Latin 
 
 empii-e ; it destroyed its uniformity and broke up its construc- 
 
 tional forms. But in the breaking it created at least three great 
 
 languages — the French, the Spanish, and the Italian ; each 
 
 possessing new powers of development which the Latin had lost, 
 
 and adapting itself to a new literature, fertile in beauty and 
 
 vivacity, far surpassing the effete inanities that it superseded. 
 
 The breath of the life of the new literatures was Germanic, varied and on new 
 
 according to the measure of Germanic influence in other things. 
 
 The poetry of the new nations is that of the leading i-ace : in 
 
 Soutli France and Spain Visigothic, in North France Normau, 
 
 even in Italy it owes all its sweetness and light to the freedom 
 
 wliich has breathed from beyond the Alps, In these lands the 
 
 barbarian tongue has yielded to that of the conquered ; in Spain 
 
 and France because the disproportion of the numbers of the two 
 
 races was very great ; both Franks and Visigoths liad become 
 
 Romanised to a cei'tain extent before the conquest ; and the 
 
 struggle with the native peoples assumed in neither case the 
 
 character of extermination. In Italy the succession of masters 
 
 was too rapid to allow a change of language to come into question 
 
 among the greater and more abiding part of the people. Of the 
 
 Germans of Germany and the English of early times it is scarcely
 
 8 Constitutional History. [chap. 
 
 necessary to speak, for whatever may have been the later modi- 
 fications, the influence of the Latin of the fifth centuiy on the 
 language of either must have been infinitesimal. No European 
 .\nalogyof tongue is more thoroughly homogeneous in vocabulary and in 
 and polity, structure than that known as the Anglo-Saxon : it is as pure as 
 those of Scandinavia, where no Roman influences ever penetrated, 
 and no eai'lier race than the German left intelligible traces. 
 Early and medieval German are also alike unadulterated. The 
 analogy between language and institutions is in these cases direct: 
 in Spain and France the outer garb is Roman, the spirit and life 
 is Germanic : one influence preponderates in the language, the 
 other in the polity ; and the amalgamation is complete when the 
 Gaul has learned to call himself a Frenchman, when the Goth, 
 the Suevian, the Alan and the Vandal, are united under the 
 name of Spaniard. 
 Evidence of 7. The most abiding influence of Rome is that of religion ; 
 
 religion. ° . . . 
 
 the Roman church continues to exist Avhen the old imperial 
 
 administration has perished. Spain, Gaul and Italy, even 
 Western Britain and Western Germany, I'etain the Christianity 
 which Roman missions have planted. Yet in this very depart- 
 ment the importance of the new spring of life is specially 
 conspicuous. Spain alone of the four nations owes nothing to 
 German Christianity. Her religious history is exactly analogous 
 to that of her language : after a century's struggle the Visigoth 
 and the Suevian become Catholic. In France and Western 
 Germanic Germany, which had been Christianised mainly under the 
 
 influence on . • i • « i . ■, 
 
 the Church, imperial innuences, and had developed an independent theology 
 ~ during the Roman period, the influx of the Franks and their 
 subsequent conversion produced a complex result. The Chris- 
 tianity which had stood out against Visigothic indifference or 
 intolerance, withered under Frank patronage. The secular 
 tendencies of the imperial religious administration expanded 
 under the Merovingian imitators, and had it not been for the 
 reformation begun by Boniface and worked out under the auspices 
 of the Karolings, tlie Gallican church might have sunk to the 
 level of the Italian or the Byzantine. But the same Austrasian 
 influences which revivified the composite nationality, breathed
 
 I.] Evidence of Law. 9 
 
 new life into the fainting clmrcli, drawing from England and tlie 
 converted North new models of study and devotion. The 
 labours of English missionaries in German Saxony helped to 
 consolidate and comj^lcte in both chui-ch and state the Germanic 
 empire of the Karolings. The Austrasian domination was more 
 purely Germanic than the Neustrian which it superseded. 
 Charles the Great, as the reformer of the church and founder 
 of the modern civilisation of France, was a German king who 
 worked chiefly by German instruments. 
 
 8, In the domain of Law the comparison is equally clear. Inflvienccof 
 
 mi 1 r • • • • • 1 -German 
 
 The number of possible factors is small : the primitive codes of customs on 
 
 T 1 • 1 1 1 ttie common 
 
 the conquerors, the Koman law under which the conquered were law of the 
 living, and the feudal customs which were evolved from the rela- 
 tions of the two races. For there remain no original vestiges of 
 the indigenous laws of Spain and Gaul, and it is only from 
 Irish and Welsh remains of comparatively late date that we 
 find that the Celtic tribes had any laws at all. 
 
 The common law of Spain is throughout the medieval period Spain. 
 Germanic in its base : although the written law of the Visigoths 
 is founded on the Theodosian code, and the so-called Roman 
 natives lived by Roman law, the fueros which contain the 
 customary jurisprudence are distinctly akin to the customs of 
 England and Germany ; the wergild and the system of com- 
 purgation, the primitive elements of election and representation, 
 are clearly traceable ^ It is not until the fourteenth century 
 that the civil law of Justinian supersedes the ancient customs, 
 and then with its invariable results. 
 
 Medieval France is divided between the feudal customs of the France. 
 North and the personal law of the South, which last was chiefly 
 based on the Theodosian and earlier Roman jurisprudence. The 
 former territory is more Frank in population, nearer to the 
 German home, and bears more distinct marks of Karolingian 
 legislation ; the latter, before the Frank conquest, has borne the 
 successive waves of Visigothic and Burgundian invasion, and has 
 
 * Dunham, History of Spain and Portugal, iv. 109-118 : from Edinb. 
 Review, No. 61 (an article attributed to Palgrave). Palgrave, Common- 
 wealth, pp. 128-131, &c. Lea, Superstition and Force, p. 65.
 
 lo Constitutional Histo)-^. [chap. 
 
 strengthened through tliem, or imparted to them, its own legal 
 system as developed under the Eomans. Of the great exposi- 
 tions of feudal custom, most are from Northern France: the 
 lihH feudorum were compiled by Lombard la^\'j-ers from the acts 
 of the Franconian and Swabian emperors ; and the Assizes of 
 Jerusalem are based on the work of a Lotharingian lawgiver. 
 The essence of feudal law is custom, and custom escapes the 
 jealousies and antipathies that assail law imposed by a legislative 
 centre : it grows and extends its area by imitation rather than 
 by authority : and the scientific lawj-er can boiTow a custom of 
 feudal jurisprudence where he cannot venture to lay down a 
 principle of Eoman law. Hence the uncertainty of detail cmi- 
 trasted Avith the uniformity of principle in feudal law. 
 
 Germany Germany, except in the few Capitularies of the Frank sove- 
 
 reigns, has no central or common written law ; even the Capitu- 
 laries are many of them only local in their operation : she does not, 
 except by way of custom, adopt the Roman civil law ; her feudal 
 law is, like the feudal law^ elsewhere, based on the Frank cus- 
 tomals. Her common law, whether sought in the jurisprudence 
 of the Alemanni, the Franks and the Saxons, or enunciated in 
 the Sachsenspiegel and the Schwabenspiegel, is primitive, just 
 as all her lower range of institutions may be said to be ; it 
 subsists but it does not develop. 
 
 English England has inherited no portion of the Roman legislation 
 
 (•oinmon ° _ ^ _ " _ 
 
 law based on excei)t in the form of scientific or professional axioms, intro- 
 early Ger- i , , . . , , . 
 
 manic duced at a late period, and through the ecclesiastical or scholastic 
 
 or international university studies. Her common law is, to. a 
 far greater extent than is commonly recognised, based on usages 
 anterior to the influx of feudality, that is, on strictly primi- 
 tive custom ; and what she has that is feudal may be traced 
 through its Frank stage of development to the common Germanic 
 sources ^ 
 
 General ^ 9. The result of this comparison is to suggest the probability 
 that the polity developed by the German races on Britisli soil is 
 the purest product of their primitive instinct. With the excep- 
 tion of the Gothic Bible of Ulfilas, the Anglo-Saxon remains are 
 
 ' Brunner, in HoltzendorfT's Encyclopiidie, pp. 226, 227.
 
 i.l Puntij of Fjiiglish Law and Pollti/. ii 
 
 the earliest specimens of Germanic language as well as literature, 
 and the development of modern English fi-om the Anglo-Saxon 
 is a fact of science as well as of history. The institutions of the The German 
 Saxons of Germany long after the conquest of Britain were the the paternal 
 most perfect exponent of the system which Tacitus saw and the English 
 described in the Germania ; and the polity of their kinsmen in 
 England, though it may be not older in its monuments than the 
 Lex Salica, is more entirely free from Roman influences. In 
 England the common gei'ms were developed and ripened with the 
 smallest intermixture of foreign elements. Not only were all the 
 successive invasions of Britain, which from the eighth to the 
 eleventh century diversify the history of the island, conducted 
 by nations of common extraction, but, with the exception of 
 ecclesiastical influence, no foreign interference that was not 
 German in origin was admitted at all. Language, law, custom 
 and religion preserve their original conformation and colouring. 
 The German element is the paternal element in our system, 
 natural and political. Analogy, however, is not proof, but illus- 
 tration : the chain of proof is to be found in the progressive 
 persistent development of English constitutional history from 
 the primeval polity of the common fatherland.
 
 CHAPTER II. 
 
 CAESAR AND TACITUS. 
 
 Caesar's 
 notices of 
 the Ger- 
 mans. 
 
 Annual 
 change of 
 land. 
 
 10. Caesar's account of the Germans. — 11. General bearing of it. — 12. Ger- 
 mania of Tacitus. — 13. Traces of constitutional organisation ; Land. — 
 14. Ranks. — 15. Administration. — 16. Councils and Courts of Justice. 
 — 17. The host. — 18. Territorial divisions. — 19. General deductions. 
 
 10. The earliest glimpses of the social and political life of our 
 forefathers are derived from Caesar, who has in one passage of 
 the Commentaries compressed into a few lines all that he could 
 ascertain about the Germans in general ; and in another de- 
 scribes, with very slight variations, the Suevi, whom he believed 
 to be the greatest and most warlike of the kindred tribes. 
 After contrasting the religion of the Germans with that of the 
 Gauls, and praising the industiy, chastity and hardiness of their 
 lives, which he describes as divided between hunting and the 
 study of arms ', he proceeds to remark that they do not devote 
 themselves to husbandi-y, but live chiefly on milk, cheese and 
 flesh. No one has a fixed quantity of land or boundaries that 
 may be called his own, but the magistrates and chiefs assign 
 annually, and for a single year's occupancy, to the several com- 
 munities, larger or smaller, whom the tie of common religious 
 rites or consanguinity has bi'ought together, a portion of land, 
 the extent and situation of which they fix according to circum- 
 stances. The next year they compel them to move elsewhere. 
 Of this institution many accounts are given ; one reason is that 
 the people may not ])c induced by habitual employment in hus- 
 
 ' Caesar, de Bello Gallico, vi. 21.
 
 Caesuras notices of the Germans, 13 
 
 handry to exchange for it the study of arms ; another that they Reasons for 
 may not devote themselves to the accumulation of estates ; that 
 the more powerful may not expel the meaner from their posses- 
 sions ; that they may not be led to build houses with too great 
 care to avoid heat or cold ; that they may prevent the growth 
 of avarice and through it the creation of factions and dissen- 
 sions ; and tliat the general body of the people may be kept 
 contented, which can be the case only so long as every man sees 
 himself in material wealth on a level with the most powerful of 
 his countrymen^. 
 
 Of the several political communities, nations or states as they isolation of 
 may be called, the greatest glory is the extent of unpeopled land territories. 
 which surrounds their territory, and which they have devastated. 
 They regard it as a peculiar mark of prowess that their old 
 neighbours have fled from their settlements for fear of them, 
 and that no new comer has ventured to approach them. There 
 is policy moreover in the plan ; it is a guarantee of public 
 security; sudden invasion is an impossibility. 
 
 When one of the states engages in Avar, offensive or defensive. Want of 
 special officers are chosen to command, with power of life and centra^""-"^ 
 death \ in time of peace there is no common or central mawis- ^'^^'^'^ *°"' 
 tracy, but the chiefs of the several divisions, ' principes regiouum 
 atque pagorum,' administer justice among their people, and do 
 their best to diminish litigation. Predatory expeditions under- 
 taken beyond the borders of the particular state do not involve 
 any infamy ; on the contrary, they are openly regarded as expe- 
 dient for the training of the young, and for the encouragement 
 of active enterprise. One of the chiefs offers himself in the warlike 
 public assembly as the leader of such an expedition and calls on ^^i^'^'^*'""*- 
 volunteers to join him ; as soon as the announcement is made, 
 those warriors who api)rove the cause and the man rise up and 
 promise their aid, amidst the applause of the assembled people. 
 If any of those who are so pledged betray their engagement, 
 they are regarded as deserters and traitors, and no trust is ever 
 after reposed in them. 
 
 ^ Caesar, de Bello Gallico, vi. 22.
 
 14 Constitutional History. [chap. 
 
 Comparison The rights of hospitalltj' are held sacred ; it is strictly for- 
 and Gauls, bidden that any should injure the strangers who for any reason 
 whatever may visit them ; they are considered as sacred ; every 
 house is open to them, and every one will share his fare with 
 them'. There had been a time when the Gauls were superior 
 in prowess to the Germans, and even threw their colonies across 
 the Rhine, but matters were now altered ; the Germans had re- 
 tained their simplicity, poverty and hardihood, the Gauls had 
 grown so used to defeat that they had ceased to claim equality 
 in valour 2. 
 The Suevi ; The description of the Suevi is in one or two points more 
 divisions circumstantial ; their normal condition seems to be war, aggres- 
 s^ystem! ^^ sion for the purpose of conquest : they have a hundred terri- 
 torial di\nsions, or pagi, each of which furnishes to the host a 
 thousand champions ; the rest stay at home and provide food 
 for themselves and for the warriors^. After a year's service the 
 warriors return home and till the land ; their places are sup- 
 plied by the husbandmen of the previous year ; so agriculture 
 and warlike discipline are perfectly maintained. But private 
 No several ^^d separate estates of land do not exist, and the term of occu- 
 fand.^^ ^ pation is restricted to the year. Like the kindred tribes, the 
 Suevi find employment in hunting, live on animal food, and 
 possess gi'eat strength and power of endurance*. They also are 
 proud of having no neighbours ; on one side devastated territory 
 for six hundred miles testifies to their victorious might and 
 forms a barrier against invasion, on another side lies a tribu- 
 tary nation which they have reduced to insignificance in i3oint 
 of power °. 
 
 This sketch, drawn by one of the greatest statesmen of the 
 world, has a value of its own : and, as a first attempt to charac- 
 terise the race from which we spring, it has a special interest. 
 But the details are scarcely distinct enough in themselves to 
 furnish a truf^twortliy basis of theory, and even when inter- 
 
 * Caesar, de Bello Galileo, vi. 23. ^ Ibid. vi. 24. 
 
 ' Just aH in Alfred's war with the Danes in A.D. 894 lie divided his force 
 into two bodies, so that one half was constantly at home, tlie other half in 
 the field. Chron. Sax. A.n. 894. Cf. Horace, Od. iii. 24. vv. 11-16. 
 
 * Caesar, de Bello Gallico, iv. i. ^ Ibid. iv. 3.
 
 II.] Picture drawn hy Caesar. 15 
 
 preted by later notices they contain niiich tliat is obscure. Colouring of 
 Caesar wrote from the information of Gallic tribes who natu- picture, 
 rally exaggerated the qualities of their triumphant rivals ; and 
 he himself dwells chiefly on the points in which the Germans 
 differed from the Gauls. To this must be attributed the stress 
 laid on the equality of the common lot, on the discourage- 
 ment of party struggles and personal litigation, and on the tem- 
 perance and voluntary poverty which must have especially struck 
 hira in contrast with the neighbour nation which was now rapidly 
 becoming mercenary, and, in the decay of liberty, devoting itself 
 to the acquisition of wealth. 
 
 11. The general impression derived from the outline is, that He saw the 
 the tribes whom Caesar knew by report were in a state of state o"'* 
 transition from the nomadic life to that of settled cultivation. ^"^^^ 
 The nations had their defined territory surrounded by a belt of 
 unpeopled or subject land. But within the national area, the 
 customs of pastoral life still prevailed ; the smaller communities 
 moved annually in search of fresh pasturage ; they cultivated 
 only enough land to supply the year's provision of corn, chang- 
 ing their occupancy every year, and having accordingly no per- 
 manent homesteads or substantial dwelling-houses^ The tie 
 which united these smaller pastoral communities was simply 
 that of kindred ; not that the social organisation depended on 
 nothing else, for the maintenance of the common peace and the 
 administration of justice were provided by the tribal magistracy, 
 but that the ideas of settled homes and the obligations of perma- 
 nent neighbourhood were realised only in the fonn of relationship. 
 Except for war the tribal communities had no general organi- 
 sation ; in war they followed leaders chosen for the particular 
 occasion. The predatory expeditions which under the approval 
 of the state were carried on by voluntary leaders, were not 
 managed through the machinery of the state, or by warriors 
 who were permanently attached to their captains ; they volun- 
 teered and were bound by honour to their leaders only for the 
 
 ' See Bethmann-Hollweg, Civilprocess, iv. 79. Kemble, Saxons, 1. 40, 
 rejects the testimony of Caesar on tliis point; see, on the whole question, 
 VVaitz, Deutsche Verfassungs-Geschicbte (Kiel, 1S65), i. 93-105.
 
 i6 Cotistitutional History. [chap. 
 
 Small particular expedition^. In national wars, like those in which 
 
 amount of 
 
 national the Suevi lived, the whole population took part iu active service 
 
 ori^nisation. . . i ,i • 
 
 and in reserve in alternate years ; and their armies were 
 arranged according to the contingents which represented the 
 tribal sub-divisions. The only judicial organisation was that of 
 the sub-divisions ; their magistrates allotted the land annually, 
 and administered justice : but, though there was no central magis- 
 tracy, there was a national council which determined on wars 
 and peace, and gave public sanction to volunteer enterprises. 
 
 It is obvious that such a state of things must be transitional : 
 that the determination of the territorial bounds of the nation is 
 not permanently consistent with internal nomadic migrations, 
 but can only allow them so long as the area is vastly too wide 
 
 Indistinct- for its inhabitants. Nor is it conceivable that war should be the 
 nessof . . p -i -i • • •^• • 
 
 Caesar's out- sole occupation 01 any tribe so tar advanced m civilisation as 
 
 the general description implies. The account of the Suevi can 
 
 be true only of the populations bordering on Gaul or on the 
 
 empire, which were kept on the defensive by the news of the 
 
 approach of the Romans, or were still affected by the great 
 
 migratory w'ave which had begun its course half a century 
 
 before. Of the tribes of interior Germany we learn nothing 
 
 directly, and can only infer from the looser details that their 
 
 political and social organisation was very slight ; consisting 
 
 mainly in the tie of kindred and local connexion under numerous 
 
 chiefs who, whether chosen by the communities or inheriting 
 
 power from their fathers, were independent one of another, 
 
 united only by tribal name and of equal rank iu the tribal 
 
 council. We must look to Tacitus for the filling in of details 
 
 as well for the clearer, broader, and more definite elaboration 
 
 of the outlined 
 
 1 2. Tacitus wrote about a century and a half after Caesar. 
 
 During this period the llomans had been constantly in collision 
 
 * See Waitz, Deutsche Verfassuiigs-Gescliichte, i. .^.=)5-.357- Bethmann- 
 Hollweg, Civilprocess, iv. 93. Konrad Maurer, Kritische Ueberschau, 
 ii. 418. 
 
 ^ On the relation between Caesar and Tacitus in this point see Zeuss, 
 Die Deutschen und die Nachbarstamme, pp. 52 sq. ; BethmannHollweg, 
 Civilproceas, iv. 71, 72.
 
 11.] The Germania of Tacitus. 17 
 
 with the Germans, and the knowledge they now possessed of them The Ger- 
 
 !• • rni /-( • niii'li!' of 
 
 must have l)een direct, abundant, and explicit, ihe Germania Tacitus, 
 is an inestimable treasury of facts and generalisations, but it is 
 not without many serious difficulties ; arising partly from the 
 diflerent stages of civilisation and political organisation which 
 the several tribes must be supposed to have reached. In 
 attempting to compress into a general sketch the main features 
 of so large a family of tribes, the historian is scarcely able to 
 avoid some inconsistencies ; and it is possible that his eye was 
 caught in some instances rather by the points in which the German 
 institutions were contrasted with the Roman \ than by those 
 which expressed their essential character. But of the general 
 faithfulness of the outline Ave have no doubt : the little inconsis- 
 tencies of detail serve to preserve additional facts ; and the 
 generality of statement enables us to obtain the idea of the 
 common Germanic system, which is approximately true of it 
 at every stage of its early development, although there may 
 never have been a time at which the whole description in its 
 exact details was true of any portion of it. 
 
 Germany as described by Tacitus was a vast congeries of Physical and 
 
 ° _ relitrious 
 
 tribes, indicjenous and horaon^eneous throuo-hout : speakino- the "nityof tho 
 
 , ,. . , , , German 
 
 same language, woi'shippmg the same gods ; marked by com- races. 
 mon physical characteristics and by common institutions, but 
 having no collective name in their own tongue and no collective 
 organisation-. They were singularly free from the commixture 
 of blood with foreign races ; their primitive traditions and 
 mythology were altogether their own. They had, as in Caesar's 
 time, their own breeds of cattle, and their only wealth was the 
 possession of herds'. Money and merchandise were of little 
 
 ' No one now believes the Germania to be a satire on Rome, as vras 
 once the case. Waitz, Deutsche Verfassungs-Geschichte, i. 21. See also 
 Guizot, Civilisation in France (ed. Hazlitt), i. 418. 
 
 "^ Tac. Germania, cc. 1-3. On the origin of the name Germania see Waitz, 
 D. V. G. i. 24 ; he rejects all German derivations, and concludes that it is 
 originally Gallic, the name given (as Tacitus indicates) by the Gauls first 
 to the Tungri and afterwards to all the kindred tribes. The meaning may 
 be either ' good shouters ' (Grimm, Gescbichte der Deutschen Sprache, 
 P- 787), or, according to other writers, 'East-men' or 'neighbours.' 
 
 ' Tac. Germ. c. 5 ; Caesar, de Bello Gallico, vi. 26 ; Grimm, Gescbichte 
 der Deutschen Sprache, pp. 28 -42.
 
 i8 
 
 Constitutional History. 
 
 [chap. 
 
 Common 
 features of 
 German life. 
 
 Advance on 
 the state of 
 thincs 
 described 
 by Caesar. 
 
 account with tliem. They had no cities, nor even streets in 
 their villages ; their buildings were rudely put together from 
 rough undressed materials \ Their chastity and regard for 
 marriage, the plainness and simplicity of their dress, their 
 general temperance and sobriety, are still strongly marked. Tn 
 most of these points there is no difference between the accounts 
 of the two great historians ; but in the time of Tacitus the love 
 of hunting has declined, and the warriors spend the seasons of 
 peace in lazy enjoyment^ ; they have begun to use wine and 
 that not in moderation, and they have become inveterate and 
 business-like gamblers^. Agriculture of a simple description, 
 and for the growth of wheat only, would seem to have 
 increased ; and the freemen and slaves alike have settled 
 homes. Local organisation, too, is either much more largely 
 developed, or forms a more prominent part of the general 
 description. 
 
 It would be rash to affirm that these latter particulars prove 
 a definite progress in civilisation since the days of Caesar ; but 
 in some respects such an advance was a necessity. The increase 
 of population and the extension of settlements involve the 
 diminution of the number of animals of chase, and may account 
 for the disuse of hunting and the absolute necessity of enlarged 
 agi'iculture. Tlie continuous struggle with the Romans may 
 account alike for the creation of a more purely military spirit 
 among the warriors, and for the misuse of their scarce and 
 ungrateful seasons of leisure. But fui'thor than this it is scarcely 
 safe to go ; and it is unadvisable to undervalue the quantum of 
 civilisation which had been attained in the time of Caesar, in 
 order to point more gi'aphically the bearing of Tacitus's enco- 
 mium*. With all the drawbacks he mentions, there can be no 
 doubt that the general tone of society and morality, so far as 
 he knew it, was far higher in Germany than at Rome, ' plus- 
 que ibi boni mores valcnt quam alibi bonae leges'^.' It is, how- 
 
 * Tac. Germ. c. i6. * Thid. cc. 15, -22. ^ Iliid. c. 24. 
 
 * Niobulir tliouLflit tliat the GcrnianK of T.icituH's time were not more 
 unciviliHL'd tlian tlio Wcstphalian and Lower Saxon peasants of his own 
 time. Wait/,, Deutsclie Verfassungs-Gebchiclite, i. 29; ]5etluiiann-Hollweg, 
 CivilproceHS, iv. 71, 72. '■> Tac. Germ. c. 19.
 
 II.] German Land System. 19 
 
 ever, on points of social and political organisation that our 
 greatest debt to Tacitus is owing. 
 
 13. Although the pursuit of agriculture is now general, the Common 
 wealth of the Germans consists chiefly if not solely in their land. 
 herds of cattle : for these the vast tracts of forest and unen- 
 closed land afford abundant pasturage, and for the purpose of 
 pasturage no particular appropriation of the soil is needed. The 
 wide forests and unfilled plains are common property. But there 
 is not yet apparently any separate owuershiji even of the culti- 
 vated land. Ti'ue, we read no longer of the annual migrations 
 of families or small communities from one portion of the territory 
 of the tribe to another. The villasre settlements are permanent, Character of 
 
 • -r. 1 11*^^^ village 
 
 and the dwellings substantial and extensive. But the arable settlements. 
 laud is occupied by the community as a body, and allotments, 
 changed annually, are assigned to the several freemen according 
 to their estimation or social importance'. The extent of waste 
 land prevents any difficulty in the suj^ply of divisible area. 
 The arable area is changed every year, and there is aljundance 
 over^ ; for they do not attempt to utilise by labour the whole 
 productive power or extent of the land, in planted orchards, 
 divided meadows, or watered gardens ; the only tribute levied 
 on the soil is the crop of corn^. 
 
 Still, property in laud can scarcely be said to be altogether Several 
 unknown *. The villagers choose places for their homesteads as land. 
 
 * Tac. Germ. c. 26 : ' Agri pro nuniero cultorum ab universis in vices {al. 
 vicis) occupantur, quos mox inter se secundum dignationem partiuntur.' 
 If the reading 'in vices' be retained and the annual change of allotment 
 be understood, tliis passage must be translated, ' The fields are alternately 
 occupied by the whole body of cultivators according to their number, and 
 these they afterwards divide among themselves according to their individual 
 dignity.' But Dr. Waitz, with good MS. authority, prefers to read in'/N, and 
 to understand the statement as referring to initial occupation ; — ' Tlie lands 
 are occupied by the collective townships according to the number of cultiva- 
 tors, and these they afterwards di\Tide among themselves (the cultivators) 
 according to their dignity.' The passage is confessedly one of great diffi- 
 culty. See for an account of the very numerous interpretations Waitz, 
 D. V. G. i. 132-137. See also G. L. von Maurer, Einleitg. pp. 5, 6. 
 
 ^ Tac. Germ. c. 26 : ' Arva per annos mutant et superest ager.' See 
 Kemble, Saxons, i. 40, and p. 15 above. ' Tac. Germ. c. 26. 
 
 * Private possession of laud is regarded as introduced after the Viilker- 
 wanderung (Bethmann-Hollweg, Civilprocess, iv. 15), and, in regions not 
 affected by that change, as a development consequent on the improvements 
 
 C 2
 
 20 
 
 Constitutional History. 
 
 [chap. 
 
 The home- 
 stead. 
 
 Relation 
 of Caesar's 
 statement 
 to that of 
 Tacitus. 
 
 the supply of water, wood, or pasture tempts them. Their 
 buildings are not crowded upon one another^ : in collective 
 villages or in solitary farmsteads each man has his own house 
 and a space of ground surrounding it. Even if this arrange- 
 ment, as Tacitus states, is the result of their dislike of neighbours 
 or of their fear of fires, it is unnecessaiy to limit it by such 
 considerations : the homestead of the rich and poor freemen 
 alike must have included granaries, cow-houses, and stack -yards^. 
 And in this no one but the owner could have any right. It is 
 possible that it contained land enough to furnish hay for the 
 winter, for Tacitus mentions no annual re-apportionment of 
 meadow-ground, although it is more probable that that was 
 allotted on the same principle as the arable. But on any 
 h}7Dothesis the freeman had complete and several property in 
 his homestead ; he had a definite share in the arable field, 
 annually assigned by the community itself, varying in situation 
 and quality, but permanent in every other particular; and he 
 had an undefined but proportionate right to the use of the 
 common woods and pastures^. 
 
 In this very general statement it may be thought that a 
 distinct advance may be traced on the land system described 
 by Caesar; the nomad stage has ceased*, the communities have 
 settled seats and each man his own home. It is however 
 uncertain whether the tribes which Caesar describes as nomad 
 are the same as those which Tacitus describes as settled ; it has 
 been contended that Caesar misled Tacitus and that Tacitus 
 misunderstood Caesar. But the mere interpretation of the rela- 
 tion between the two authors does not affect the material truth 
 of Tacitus's picture. The member of the community had a fixed 
 
 of agriculture, and strictly regulatefl byjealou.s custom. Bethmann-Holl- 
 weg, CivilprocesH, iv. 16 ; G. L. von Maurer, Einleitg. pp. 93 sq. ; Palgrave, 
 Commonwealth, pp. 71, C)3, &c. 
 
 * Tac. Genu. c. 16. Tlie hou.ses in the villages are separated from one 
 another: other hou«eH arc built apart wherever the settler chooses: the 
 difference between the vili.ige-iifc and the separate fann-life ab-eady appear- 
 ing. W.aitz, D. V. G. i. 108-110. 
 
 ^ See Waitz, D. V. G. i. 113. Tacitus (Germ. c. i6) mentions subterra- 
 nean storehouses. 
 
 ^ Waitz, I). V. O. i. 1 15-118 ; G. L. von Maurer, Einleitg. pp. 139-152. 
 
 * Waitz, D. V. G. i. 33.
 
 II.] Jua/h in German Society. 2i 
 
 share of a changing area of cultivated land, a pi'oportionate 
 share in the common pasturage, and a house and homestead 
 of his own \ 
 
 14. But was this absolute equality in the character of the Differences 
 hold on land a sign of social equality in other relations of life ] ° "^"^ **• 
 Although there is apparently no difference in the political status 
 of all the fully qualified freemen, there are unmistakable grades 
 of class and rank. There are distinctions of wealth, although 
 wealth consists of cattle only. There are distinctions of blood, 
 some are noble and some are not ; and of status, there are nobiles, 
 ingenui, liberti, and servi^. There is further a distinct array of 
 official personages, princlpes, duces, sacerdotes, reges^. Of these 
 differences, that based upon wealth does not require discussion, 
 except so far as it implies a pre-eminence which would be 
 marked by a larger allotment of arable land, and the possession 
 of a larger homestead. Tacitus, in the obscure passage in which 
 he describes the apportionment of the land, mentions the dig- 
 natio*, or estimation of the individual, as one of the principles 
 of partition. The annual re-allotment involves an equality of Possible 
 subdivisions, but does not preclude the possibility of two or allotments.^ 
 more subdivisions being assigned to the same jierson. The 
 wealth in cattle involves of necessity a proportionate enjoyment 
 of pasture and meadow, and the employment of servile cultiva- 
 tors implies an inequality in the shares of the arable which they 
 cultivate for their respective masters. And the privilege which 
 of necessity is granted to the rich man, can scarcely be withheld 
 from the nobleman or magistrate who may demand it, if he pos- 
 sesses servants enough to cultivate a larger share than that of the 
 simple freeman. But the inequalities in the use or possession of 
 the land involve no inequalities in social and political rights*. 
 
 * The whole property, homestead, arable and pasture together, bore the 
 name of Hube, hoba, in Germany; and was the higid, terra familiae, nian- 
 8US, cassate or hide of the Anglo-Saxons. G. L. von Maurer, Einleitg. pp. 
 126-134. 
 
 ' Tac. Germ. cc. 7, 24, 25,44 ; Grimm, Rechtsalterthiiuier, pp. 227, 30S. 
 ^ Tac. Germ. cc. 7, 10, 11, 14, &c. 
 
 * Ibid. c. 26; dignitatem is Grimm's reading ; dignationem the common 
 one. 
 
 ^ Waitz, D. V. G. i. 218. Kenible (Saxons, i. 135) seems to confound 
 the ncbilis with the princeps. See too Grimm, R. A. p. 280.
 
 22 Constitutional History. [chap. 
 
 Character The distinction between the nobiles and the ingenui naust be 
 
 and rights of 
 
 nobiuty. taken in its ordinary sense : the nobihty can be only that of 
 descent, either from ancient kings, or from the gods, or from the 
 great benefactors and military leaders of the race\ It is on the 
 ground of nobility that the kings are chosen in the tribes that 
 have adopted a monarchical government^; pre-eminent nobility, 
 like great age, entitles a man to respectful hearing in the tribal 
 councils, and to special rank in the comitatus of the magistrate 
 to whom he attaches himself^; but it confers no political 
 privilege, it involves no special claim to the office of magistrate 
 or leader in war *, or to the right of having a comitatus or fol- 
 lowing such as belongs to the magistrate. The ingenuus or 
 simple freeman is in every point except descent the equal of the 
 noble. But it may be questioned whether freedom or nobility of 
 birth implies in itself the possession of political rights. The 
 young men are, until they are admitted to the use of arms, mem- 
 bers of the family only, not of the stated When they come to 
 years of discretion, and the voice of the nation permits it, they 
 are formally invested with a shield and spear either by the magis- 
 trate, or by father or kinsman, in the assembled Council. This 
 investiture, or emancipation as it may be deemed, may entitle 
 them to an honourable place in the host, but scarcely to a voice 
 in the Council until they have obtained by inheritance or allot- 
 ment their share in the common land". 
 
 The freed- On this point howevcr Tacitus is silent. Nor can we discover 
 from his words whether the liherti or freedmen, whom he men- 
 tions as constituting an important element in the tribes that 
 are governed by kings '^, possessed more than merely personal 
 
 ' Bethimimi-Hollweg, Civilprocess, iv. 85. Cf. Tac. Germ. c. 1 3, 'magna 
 patrum merita.' Waitz, D. V. G. i. 1S9-191; Grimm, R. A. pp. 265 sq. 
 
 * Tac. Gei-m. c. 7. ^ Ibid. cc. 11, 13. 
 
 * Yet most of the principes mentioned in Tacitus are of noble birth : 
 hence it is argued that nobility gave a presumptive if not exclusive claim 
 to office. See Bethniann-Hollweg, Civilprocess, iv. 90. Waitz, D. V. G. 
 j. 221, maintains that there is no such connexion, and it cannot be 
 proved. 
 
 ' Tac. Germ. c. 13. 'Ante hoc domus pars videntur, mox reipublicae.' 
 " Waitz, I). V. G. i. 323,324; Sohm, Frankische Rcichs- und Gerichts- 
 verfasHung, pp. 545-558. 
 
 ' Tac. Germ. c. 25. Cf. Waitz, D. V. G. i. 174. 
 
 men
 
 II,] Ranks in German Society. 23 
 
 freedom. It is most improbable ou all analogies that they 
 possessed any political rights. 
 
 The unfree or servile class is divided by Tacitus into two^ : The servile 
 one answering to the coloni of Roman civilisation, and the 
 other to slaves. Of the former each man has a house and home 
 of his own. He pays to his lord a quantity of corn, of cattle, or 
 of clothing ; he must therefore hold laud on which to grow the 
 corn and feed the cattle, and this land is of course a portion 
 of his lord's. Possibly the more dignified and richer freemen 
 cultivate all their lands by these means ; but if the analogy with 
 the Roman coloni holds good'^, the servus is personally free except 
 in relation to his lord and his land, neither of which he can for- 
 sake. His condition is not a hard one ; he is very rarely beaten The cuitiva- 
 or forced to labour ; but if his lord kill him, as sometimes may 
 be done in passion, it is done with imj)unity; no satisfaction 
 can, it would seem, be recovered by his family. The origin of this 
 servile class may be found in the subjugation, by the tribe, of the 
 foi'mer occupiers of the land ; a process which, in the nomadic 
 and warlike phase of public life that had now passed away, must 
 have been by no means uncommon, and which may have even 
 created a subject population, cultivating the land of the tribe in 
 immediate dependence on the state or king. There is no reason 
 to suppose that the depressed population were other than German 
 in origin, although of covu'se unconnected by any tribal tie with 
 their masters. Even the sons of the poorer freemen may be 
 supposed to have taken service as cultivatoi's under the richer 
 men or on the public lands. 
 
 The second class of servi contained those who had lost their The slaves, 
 freedom by gambling ; possibly also prisoners of war : of penal 
 servitude there is no distinct trace. This cannot have been 
 
 ^ Tac. Germ. cc. 24, 25 ; Grinun, R. A. pp. 300, 301 ; G. L. von Maurer, 
 
 Hofverfassg. i. 5 sq. 
 
 ^ Savigny has collected and arranged all the materials for the history of 
 the colonus in a paper translated in the Philological Museum, ii. 117: he 
 carefully points out that, notwithstanding a close analogy, there is no his- 
 torical connexion whatever between the Roman coloni and the German 
 serfs ; pp. 144, 145. See also Waitz, D. V. G. i. 175 sq. G. L. von Maurer, 
 Hofverfassg. i. 27-37, 385-387.
 
 24 Constitutional History. [chap. 
 
 a large body : the gamblers were generally sold, the possession 
 of such victims being no credit to the owner \ 
 
 The official The pWwci/:»es, or official magistracy, have of course pre-emi- 
 nence in dignity and privilege. They are elected in the national 
 assemblies, and receive a provision in the shape of voluntary 
 offerings or distinct votes of corn and cattle, made by the state 
 itself". Such votes imply the existence of some state domain or 
 public land, the cultivation of which must have been performed 
 by servi or coloni; and the natural tendency of such an ari'ange- 
 ment would be to annex some portion of the territory as an 
 official estate to the dignity of the ^:)rmce/)s. It is clear that it 
 had not reached this stage in the age of Tacitus^. Outside of 
 his official authority, the chief or only privilege of the jjriiiceps 
 was the right of entertaining a comitatus*. 
 
 The ccmi- This was a body of warlike companions, who attached them- 
 
 fcelves in the closest manner to the chieftain of their choice. 
 They were in many cases the sons of the nobles Avho were ambi- 
 tious of renown or of a perfect education in arms. The princeps 
 provided for them horses, arms, and such rough equipment as 
 they wanted. These and plentiful entertainment were accepted 
 instead of wages ^. In the time of war the comites fought for 
 their chief*, at once his defenders and the rivals of his prowess. 
 For the prince2)s it was a disgrace to be surpassed, for the comites 
 
 ' Tac. Germ. c. 24. 
 
 ^ ' Eligunturiniisdem conciliis.' Tac. Germ. c. 12. ' Mos est civitatibus 
 ultro ac viritim conferre principibus quod pro honore acceptum etiam neces- 
 sitatibus suhvenit.' Ibid. c. 15. This is the origin of the nafurulia of the 
 Frankish, and perhaps ot the feorm-fultum of the Anglo-Saxon, kings. 
 Kenible, Saxons, ii. 31. 
 
 3 Waltz, D. V. G. i. 255. 
 
 * Wiiother the right of comitatus was attached to the office of king and 
 princeps is a matter of dispute ; Bethmann-HoUwcg, Civilprocess, iv. 93. 
 Waitz (D. V. (}. i. 228-737) regards it as exclusively so. Konrad Maurer, 
 arguing that in an early stage of society the companions and free servants 
 of the jtrincepH would be the same, inclines to regard the comiics of the 
 princeps as corresponding with the servants of private persons. Krit. 
 Ueberschau, ii. 396-403. However this may be, it is enough for our pur- 
 pose to remark that it was oidy the jninrciis who could give a public status 
 and char.acter to his comites. 
 
 ^ ' Nam cpul;i; et ((uanrpiam incompti, largi tamen, apparatus pro stipen- 
 dio cedunt.' Tac. Germ. c. 14. The warhorse and spear were the gift of 
 the princeps and the origin of the later lieriot. 
 
 ^ 'Principes pro victoria pugnant, comites pro principe.' Tac. Germ. c. 14.
 
 II.] the Comliatus, 25 
 
 it was a disgrace not to equal tlie exploits of theii* leader, and Tie of the 
 
 ,. . ^ n ^ ^ I'liiii-n (V(m/to tO the 
 
 perpetual infamy to retn-e from the field on which he had fallen, prinaps. 
 
 They were bound by the closest obligation to defend and protect 
 
 him, and to ascribe to his glory their own brave deeds ^ In the 
 
 body thus composed, there were grades of rank determined by the 
 
 judgment of the princeps ^ : and a high place in the comitatus 
 
 was an object of ambition to the noble youth just as much as 
 
 the possession of a numerous and spirited body of retainers was 
 
 to his patron, who found that his dignity, strength, glory, and 
 
 security depended in no small degree on the chai^acter of his 
 
 followers. The princeps who entertained such a company, was 
 
 renowned both abroad and at home ; he was chosen to represent 
 
 his nation as ambassador ; he was honoured with special gifts ; 
 
 and sometimes the terror of his name would put an end to war 
 
 before blood had been shed. War was the chief if not the sole Their em- 
 
 i 1 1 ploynients. 
 
 employment of the coniites : when there was peace at home, the 
 
 youth sought opportunities of distinguishing and enriching them- 
 selves in distant warfare. In the times of forced and unwelcome 
 rest they were thoroughly idle ; they cared neither for farming 
 nor for hunting, but spent the time in feasting and sleep ^. The 
 comitates is one of the strangest but most lasting features of 
 early civilisation, partly private and partly public in its character, 
 and furnishing a sort of supplement to an otherwise imperfect 
 organisation. The stroii" and close bond of union thus described 
 by Tacitus can scarcely be the same institution as the voluntary 
 and occasional adhesion to a military leader, which Caesar 
 mentions in connexion with the aggressive expeditions of his own 
 time ■*; but the one may have grown out of the other. Glory 
 
 * Tac. Germ. c. 14 : 'Sua quoque fortia facta gloriae ejus assignare prae- 
 cipuum sacramentum est.' Waltz understands this to imply an actual oath. 
 D. V.G. i. 347. 
 
 ^ Tac. Germ. cc. 13, 14. The difficult passage 'Insignis nobilitas aut 
 magna patrum merita priiicipis dignationem etiam adolescentulis assignaiit ' 
 is commented on at great length by Waitz, D. V. G. i. 260-270 ; and Sohm, 
 Fr. K. G. V. pp. 555-558 ; both of whom give a transitive sense to diijnatw- 
 ncm. Kemble translates ' principis dignationem assignant,' •'give the rank 
 of princes.' Saxons, i. 166. 
 
 ^ Tac. Germ. c. 15: a passage which does not refer e.vclusively to the comHc.t. 
 
 * Caesar, de Belle Gallico, vi. 23 ; above, § 11. The idea of Sybel and 
 others that Caesar describes an earlier form of the institution is rejected by 
 Waitz, D. V. G. i. 357; K. Maurer, Krit. Ueberscbau, ii. 418.
 
 26 
 
 Constikdional Jlistory. 
 
 [chap. 
 
 The comi 
 tatus. 
 
 and booty seem to have been the chief end of the expeditions 
 organised by both, and the tie of personal honour and attach- 
 ment the common bond ; but in Caesar's account the leadership 
 is not restricted to the official magistrate, and the engagement of 
 the follower is for a single campaign only. That the relation to 
 the princeps implies personal dependence is clear : no one need 
 blush, says Tacitus, to be seen among the comites ^ j but the fact 
 that it was necessary, from the Roman point of view, to say so, 
 involves of necessity some idea of diminution of status. It may 
 be questioned whether any one in this relation would be regarded 
 as fully competent to take part in the deliberations of the tribe, 
 but it is scarcely reasonable to suppose, as has been sometimes 
 maintained, that a position of so much honour, and so much 
 coveted, could only be obtained by the sacrifice of freedom ^. But 
 the importance of the comitatus lies mainly in the later history, 
 and in its bearing on kindred but distinct developments. 
 
 The priests. Of the priests of the German races we learn little more from 
 Tacitus than that they formed a distinct class of men who pre- 
 sided at the sacrifices, took the auspices for public undertakings, 
 proclaimed silence in the assembly, and in the name of the god of 
 war discharged the office of judge and executioner in the host ^ 
 
 It is, however, in relation to the administration of government 
 that the notices of the Germania have their greatest value. 
 
 1 5. There was not in the time of Tacitus, any more than in that 
 of Caesar, any general centre of administration, or any federal 
 bond among the several tribes, although the great kindred races 
 had common religious rites and sanctuaries. Each nation had a 
 constitution of its own. In some there was a king with kindred 
 nobility and of course a i^ersonal comitatus, the patron of freed- 
 
 Royalty. men and serfs *. But the king was by no means vested with ir- 
 
 * Tac. Germ. c. 1 3 : ' Nee rubor inter comites aspici.' 
 
 ■■' This seema to be Kenible's view ; Saxons, i. 1 73 ; ' it is clear that the idea 
 of freedom in entirely k)st,' being replaced by tliat of honour. It is entirely 
 rejected by Waitz, D. V. G. i. 348, and K. Maurcr, Krit. Ueberscbau, ii. 394. 
 
 3 Tac. Germ. cc. 7, 10, II. Waitz, D. V. G. i. 257, 258. 
 
 * Tac. Genu. cc. 7, 25. The essence of German kingship was not in the 
 command of the liost, or in the leadershi]) of a comitatus, or in the union of 
 several trilies under one sceptre, or in an authority more efficient than that 
 of the princeps ; but in its hereditary character, or in the choice, by the 
 people, of a ruler from a distinct family. Waitz, D. V. G. i. 288-293. 
 
 The triball 
 constitution
 
 II,] German Kingship. 27 
 
 responsible or unlimited powers \ He was elected from the body Limited 
 of the nobles, for strictly hereditary succession was confined to royalty. 
 private property: he had not the sole command in war ; that was 
 engrossed by the duces, who also owed their position to election, 
 determined by the renown they had already earned, and sus- 
 tained by the willing obedience of their companions in arms^. He 
 might take a leading part in council, but others qualified by age, 
 nobility, honour, and eloquence had a not inferior claim to be 
 heard ^. He received a portion of the fines imposed in the courts 
 of justice, but he did not appoint the judges *. His position was 
 dignified and important, as impersonating the unity of the tribe 
 and implying a dominion more extensive than that held by the 
 other non-monarchical communities ; but unless he were person- 
 ally endowed with the gifts or reputation of a military leader, it 
 could be one only of simple honour. There was no such relation 
 between him and the jprincipes ° as there was between the jprin- 
 clpes and their comites : the pnncipes fought not for him, but for 
 victory, and the only treason, except that which consisted in the 
 betrayal of the voluntary tie, was that which was committed 
 against the nation ^. 
 
 We may undei-stand that a tribe which had adopted monarchy 
 must gradually have modified these conditions ; that a king 
 strong enough to maintain his position at all, must have gathered 
 the chiefs of the land into a comitatus of his own ; but there is 
 no sign as yet that this was done : nor is there any indication 
 that the king exercised, except in the case of auguries ^, any such 
 
 K. Maurer, Krit. Ueberschau, ii. 419-423. This hereditary character is 
 absolutely inconsistent with the supposition that royalty originated in the 
 comitatus : and is in distinct contrast with the elective principle applied in 
 the case of the principes. 
 
 ^ Tac. Germ. c. 7 : • Nee regibus infinita aut libera potestas.' 
 
 - • Duces ex virtute siimunt . . . et duces exemplo potius quam imperio . . . 
 praesunt.' Tac. Genn. c. 7. Waitz however maintains that the king was 
 the regular general for the monai'chic tribes ; D. V. G. i. 310 sq. 
 
 ^ Tac. Germ. c. 11. 
 
 ' ' Pars mulctae regi vel civitati, pars ipsi qui vindicatur vel jwopinquis 
 ejus exsolvitur.' Ibid. c. 12. 
 
 ^ Nor were the nohiles the king's comitatus : but the question belongs to 
 a later stage. Waitz, D. V. G. i. 365 sq. 
 
 " 'Proditores et transfugas arboribus suspendunt,' &c. Tac. Genu. c. 12. 
 
 ^ Ibid. c. 10.
 
 28 Cyonstitiit'ional History. [chap. 
 
 sacerdotal influence as in ancient times might be supposed to con- 
 sole a sovereign whose power bore no proportion to his dignity. 
 But it is not easy to argue with certainty from the words of 
 Tacitus, that those tribes in which the power and pre-eminence of 
 the p7'incipes were of so great importance, were really subject to 
 kings at all. 
 The central For a very large proportion of the tribes dispensed altogether 
 
 administra- ,, . .. j 
 
 tioiiwasin With royalty: the state or civitas'^ was a sumcieut centre, and 
 
 whether the tie of nationality a sufficient bond of cohesion. In these 
 monarchic .„ • r^ , • i • • i ■ ji x- i 
 
 or not. still, as in Caesar s time, the j^^'incijjes chosen m the national 
 
 councils acted independently of one another in peace, and in war 
 
 obeyed the leader whose valour marked him out for election. 
 
 Under this system the state received the portion of the mulcts 
 
 which in the monarchies fell to the king": there is no evidence 
 
 that the election of the princijpes was influenced by the here- 
 
 •Yhnprindpes ditary principle ', or that their status involved any of the 
 
 of the non- ..,.,.. 
 
 monarchic lionours of royalty. In the monarchical tribes it is probable 
 that the king may have gradually appropriated the powers and 
 honours of the princij^es, but in the non-monarchical ones there 
 is nothing to show that the principes were more than the elec- 
 tive magistrates of free and kindred communities. 
 The central 16. Under both systems the central power was wielded by the 
 the civiuis, a national assemblies. These were held at fixed times, generally 
 the host. at the new or full moon *. There was no distinction of place ^ : all 
 were free, all appeared in arms. Silence was proclaimed by the 
 priests, who had for the time the power of enforcing it. Then 
 the debate was opened by some one who had a personal claim to 
 be heard, the king, or a prlnceps, or one whose age, nobility, 
 military glory, or eloquence entitled him to rise. He took the 
 
 ' Tacitus uses the word civitas to express the tribe in its constitutional 
 aspect, in the Gennania, cc. 8, lo, 12, 13, 14, 15, 19, 25, 30, 41 ; and Annales, 
 i. 37. Gens is also used in the same sense, but not so 2'>mjus, which always 
 means a suljdivision ; as in Caesar, de Bello Gallico, i. 12, ' Omnis civitas 
 Helvetia in (juattuor paj^os divisa est.' Waitz, D. V. G. i. I40. Sohm 
 (Fr. 11. G. V. }ip. 1-8) carefully works out the jiosition that whereas the 
 unity of the Oerman race was one of l)h)0(l and religion only, the tribal or 
 state unity exhibited in the councils was political, and that of the l)agi or 
 Imndreds simply a judicial organisation. 
 
 •^ Tac. Germ. c. 12. ^ See above, p. 22, n. 4. * Tac. Germ. c. 11. 
 
 * Possibly tliey arr.anged themselves, as in the host, in liindreds. Waitz, 
 D. V. G. i. 325. 
 
 1
 
 II.] National Councils. 29 
 
 tone of persuasion, never tliat of command. Opposition was 
 expressed by loud shouts ; assent by the shaking of spears ; 
 enthusiastic applause by the clash of spear and shield. 
 
 Of matters of deliberation the more important were transacted Delibcm- 
 
 ,, „ ,, , , 1 • 1 11 1 f • 1 1 tioiisol'tlic 
 
 in tlie tull assembly, at Avhicli all tiie Ireemen were entitled to founeii of 
 be present. But the business was canvassed and arranged by 
 the i^rinci^oes before it was presented for national determination ; 
 and matters of less import and ordinary routine were dispatched 
 in the limited gatherings of the magistrates. Of the greater 
 questions were those of war and peace, although these, together 
 with proposals of alliance and elections of magistrates, were fre- 
 (juently discussed in the convivial meetings which formed part of 
 the regular session of the council. The magistrates for the ad- 
 ministration of justice in the pagi and vici were elected in the 
 general council. It also acted, in its sovereign capacity, as a high 
 court of justice, heard complaints and issued capital sentences^. 
 
 The local courts of justice were held by the elected principes Judicial 
 in the larger divisions ov pagi, and in the villages or vici. But of thef^afw. 
 their office was rather that of president of the court than of 
 judge. The princeps bad, in the jmgus at least, a hundred 
 assessors or companions to whom he was indebted not only for 
 advice but for authority also ^ : doubtless they both declared the 
 law and Aveighed the evidence. Capital punishments were not 
 rare ; hanging was the reward of treason and desertion : the 
 coward and the abandoned person were drowned or smothered 
 
 ' ' De reconciliandis invicem iriimicitiis et jungendis affinitatibus et ad- 
 sciscendis principibus, de pace deriique ac bello, plennnque in conviviis con- 
 sultant.' Tac. Germ. c. 22. Wl)etber the custom of drinkinc^ the fines for 
 non-attendance, which was a time-honoured practice in the Gennau mark- 
 courts (G. L. von Maurer, Markenverfassg-. p. 275), and still prevails in 
 England in rural clubs, can be traced to this usage, need not be discussed. 
 It certainly seems that the manorial courts still support their existence by 
 (dinners after business : and so in the time of Athelstan the ' bytt-fylling,' 
 ' impletio vasorum,' was an important part of the proceedings of the local 
 gatherings. Tlie vexed question of scof ales and church ales, and the func- 
 tions of the ale-taster connect themselves with the primitive practice : and 
 so also the guilds. See Chap, xi, below. 
 
 « Tac. Germ. c. 12. See Sohm, Fr. R. G. V. p. 5. 
 
 ' ' Eliguntur in iisdem conciliis et principes, qui jura per pagos ^^cosque 
 reddunt. Centeni singulis ex plebe comites consilium sinml et auctoritas 
 adsunt.' Tac. Germ. c. 12.
 
 30 Constitutional History. [chap. 
 
 under hurdles : other offences were expiated by fines, of which 
 
 one portion went to the king or the state, the rest to the injured 
 
 Finesincom- person or his relations. The system of compensation extended 
 
 pensation "■ pit \ ^ • • i • -kc 
 
 for offences, even to the reconciliation of hereditary quarrels : homicide itself 
 
 might be atoned for by a fine of cattle : the whole house of the 
 
 slain man joined in accepting it as an indemnity, and the breach 
 
 of the public peace was healed by a fixed shared 
 
 Organisation 17. In war the compulsory maintenance of discipline was 
 
 in time of . . . 
 
 war. tempered greatly by the spirit of the comitatus. The leader of 
 
 the host was the chosen champion ; not necessarily the king 
 
 or the local magistrate, but the dux whose prowess had earned 
 
 the confidence of the nation, and who as princeps was followed 
 
 by the largest train of companions^. From each pagus a 
 
 hundred champions were sent to the host ^, just as the hundred 
 
 assessors were furnished to the court of justice. Well-trained 
 
 infantry were thus supplied ; they took the van in battle and 
 
 were supported by or mingled with the cavalry. The chief 
 
 burden fell on thecZitces*, who had to set an example rather than 
 
 to enforce command, and on the principes with their mounted 
 
 comites^. The maintenance of discipline in the field as in the 
 
 council was left in great measure to the priests " ; they took 
 
 the auguries and gave the signal for onset, they alone had power 
 
 to visit with legal punishment, to bind or to beat. Otherwise 
 
 the cohesion and order of battle was kept up by the voluntary 
 
 regularity of the armed freemen, who arranged themselves, when 
 
 not otherwise tied, in families and affinities^. Three principles 
 
 at least seem to be at work in this system ; the national force 
 
 * The passages that illustrate this are of great importance on the whole 
 subject (if Gt-mian criminal law ; the u'er-r/Ud, the hot, the ivite, the character 
 of the peace, the idea of the right of private war, the so-caWed fehde-i'echt, 
 and the position of the king as guardian of the peace, and of the Idndred as 
 sharers in the feud. Tac. Germ. cc. 1 2, 2 1, 22. Waitz, D. V. G. i. 389-420. 
 K. Maurer, Krit. Ueherschau, iii. 26-36. 
 
 * 'Ipsa plerumque fania bella profligant.' Tac. Germ. c. 13. 
 ' ' Centeni ex singulis pagis.' Ibid. .c. 6. 
 
 * 'Si prompti, si conspicui, si ante aciem agant.' Ibid. c. 7. 
 
 * The war-horse of the comes was the gift of the princcps as well as his 
 arms. Ibid. c. 14. 
 
 « Ibid. c. 7. 
 
 ' 'Non casus nee fortuita conglobatio turmam aut cuneura facit, sed 
 familiae et propinquitates.' Ibid. c. 7.
 
 II.] The Host. 31 
 
 consisting of tlie dux and chosen centuries of infantiy ; the pro- 
 fessional warriors with their trains of disciples, the 2^i'i>i<^^^^s 
 fighting for victory, and the comites for their princeps ; and 
 the mass of the freemen arranged in families fighting for 
 their homesteads and hearths. It is to these last, according to 
 Tacitus, that the strength of the force and the confidence of 
 earnest valour is chiefly due, whether the immediate excitement 
 be the rivalry of jealous neighbours or the urgency of common 
 interests. The host is thus the whole nation in arms. 
 
 18. And the nation in its territorial aspect is not altogether Personal 
 unlike the host in permanent encampment : the i^agus and vicus these 
 are rather the di\T.sions of the people than of the land, and may ments. 
 be reasonably supposed to have been marked out with reference 
 to the numerical arrangement of the host, and in that strict 
 adherence to definite numbers which appears so constantly in new 
 or loosely settled communities, whether civilised or not. The 
 hundred warriors and the hundred judges of the pagus, may on 
 this supposition represent tlie hundred free families to which the 
 jHigus was originally allotted, that primitive institution of the 
 hundred which appears in eveiy branch of the Germanic race 
 in its earliest historical form ; not yet a definite geographical 
 division, l)ut a social and jiolitical one\ The vici may be sub- 
 divisions in equal proportions, both of the personalities and of 
 the territorial allotment of the hundred : and their subdivision 
 by re-allotment may have been equally symmetrical. But it 
 would be wrong to state this as more than a theory. 
 
 19. With very few exceptions, by way of inference, this de- 
 scription is a mere abstract and jiaraphrase of the hinguage of the 
 Germania. The general features of it are clear if not minute. It 
 will probably always be a favourite exercise for learned ingenuity 
 to attempt to trace distinct reference to the later institutions 
 
 * Waitz, D. V. G. i. 154, understands the hundred companions of the 
 piiticcps in judgment to be the fully qualified members of the communit3' ; 
 no special stress is to be laid on the number, as Tacitus himself warns us. 
 They formed then a full hundred-court, and not a mere council of assessors, 
 as Tacitus supposed. Bethmann-Hollweg takes the same view (Civil- 
 process, iv. 102). The older view, regarding them as a committee of the 
 freemen, is on the whole less likely. The princijile that in these courts all 
 the suitors are judges is very ancient. See also Waitz,. D,.V. G. i. 3,^3.
 
 33 
 
 Constitutional Histori/. 
 
 [chap. 
 
 Prospective 
 and retro- 
 spective 
 value of the 
 Germania. 
 
 No principle 
 works in 
 isolation. 
 
 Traces of 
 primitive 
 society. 
 
 of the race : and it is quite lawful to work back, through ob- 
 vious generalisations and comparisons with the early phenomena 
 of society in other nations, to the primitive civilisation of the 
 Aryan or the Indo-Germanic family. It would be foreign to our 
 present pui-pose to attempt the latter task : and the former can 
 only be partially undertaken in a work, the object of which is 
 historical rather than philosophical. But the words of Tacitus 
 require interpretation, and the unity of his sketch demands, for 
 intelligent comprehension, some reference to the early principles 
 of social development. 
 
 Among the first truths which the historical student, or indeed 
 any scientific scholar, leai'us to recognise, this is perhaps the most 
 important, that no theory or principle works in isolation. The 
 most logical conclusions from the truest principle are practically 
 false, unless in drawing them allowance is made for the counter- 
 working of other principles equally true in theory, and equally 
 dependent for pi'actical truth on co-ordination with the first. No 
 natural law is by itself sufficient to account for all the phenomena 
 which on the most restricted view range themselves within its 
 sphere. And with respect to pi-imitive society, this is especiall}- 
 notev.'orthy. The patriarchal theory, as it is called, will certainly 
 not account for any great proportion of the phenomena of the 
 social system under any of its phases : yet there are in the 
 Germania some traces of the idea on which it is based ; the 
 vmion for some pui-poses of sacerdotal with royal functions^, and 
 the vast and permanent importance of the family tie^. Of the 
 four chief forms of })olitical life, which in their earlier stages are 
 compatible with the existence of a people in the pastoral, the 
 hunting, and the predatory stages of its development, the most 
 complex, that of the city, is expressly excluded by the words of 
 Tacitus ; the Germans had no cities', no fortified places of resort 
 or refuge ; and when at a later period they ado^it a city life, its 
 
 ' Tac. Germ. c. lo. 
 
 * In relation to the hoHt, Tac. Clonn. c. 7 ; to feuds, c. 21 ; to inheritance, 
 c. 10 ; the relatioHH witncs.s the punishment of the unfaithful wife, c. 19 ; 
 marriagCH with alien nations are unusual, c. 4. Waitz, T>. V. G. i. 49-92. 
 
 ' Tac. (Jerni. c. 16. They regarJi^d them as ' muuiuieiita servitii.' Tao. 
 Hist. iv. 64.
 
 II.] Primitive Social System. 33 
 
 constitution is based on that of the ancient villages rather than on Germs of 
 any imported idea of the classical municipality \ The lordship, — tions con- 
 that quasi-manorial system, in which the lord of the land lives Germania. 
 among his free tenants and cultivates his proper demesne by 
 serfs or hired labourers, possessing the original title to the 
 whole, waste as well as cultivated, with jurisdiction over and 
 right to service from all who dwell within the boundaries, — is 
 only in very few particulars reconcileable with the sketch of 
 Tacitus. The village system in which, the tie of community of The village. 
 land not necessarily existing, the freer and simpler institution of 
 a common machinery for the preservation of peace, the adminis- 
 tration of justice, and the fulfilment of public duties as part of 
 a wider organisation, is the direct and pi'imaiy bond, does fall in 
 more easily with the general tenour of the description. The vici 
 or villages exist and have justice administered by the principes. 
 But further references, irrespective of the question of the land, 
 are scanty and open to much discussion. The idea of the The Mark. 
 Mark System, as it is called, according to which the body 
 of kindred freemen, scattered over a considerable area and culti- 
 vating their lands in common, use a domestic constitution based 
 entirely or primarily on the community of tenure and cultivation, 
 is an especially inviting one, and furnishes a basis on which a 
 large proportion of the institutions of later constitutional life 
 may theoretically be imposed. And there are nations in which 
 such a system has ever been the rule, although they are not those 
 whose progress has made a part of the world's history'^, whilst 
 the very fact of their permanent insignificance may be regarded 
 as a positive refutation of the claim of their system to include all 
 the germs of greater and more active free institutions. But this 
 system, in its bare simplicity, is scarcely consistent with the 
 general sketch of the Germania, and totally insufficient as a key 
 to the whole. The German communities, although they hold their 
 
 * See this worked out by G. L. von Maurer, Stiidteverfassg. i. 134 sq. : 
 he rejects the idea of Roman municipality, of the manorial system, of the 
 Schoffenthum, or of the guild, as the origin of city life among the Germans, 
 and traces it to the Mark. 
 
 ^ See, especially in reference to India, Sir H. S. Maine's Lectures on 
 Village Communities, London, 1S71. 
 
 D
 
 34 Constitutional History. [chaf. 
 
 land in common, are scarcely described as tliose of an agricultural 
 people : while the mark system is wholly and entirely an agri- 
 cultural one, and must, if it had existed in its integrity in 
 Tacitus's time, have impressed its leading features more dis- 
 tinctly upon his memoiy. Nor can a mixture of the systems of 
 the lordship, the village and the mark, claim a greater proba- 
 bility ; we have no one of the three in its completeness and 
 cannot be warranted in supposing the co-existence of all. 
 Tjie sketch j^ jg Q^]y ]jy viewing the description of the Koman historian 
 contains the ^s referring to a stage and state of society in which the causes 
 
 several prni- ... . 
 
 ciples of later ^ve at work which at different periods and in different regions 
 society. -^ ° 
 
 develop all the three, that any approach can be safely made 
 
 towards bringing it into relation with the facts of historical 
 sociology. We have not the mark system, but we have the 
 ])rinciple of common tenure and cultivation, on which, in India, 
 the native village communities still maintain a primitive prac- 
 tice much older probably than the Germania, and of which very 
 distinct vestiges exist still in our own country, in Switzerland, 
 and in Germany ^ We have not the village system in its in- 
 tegi'ity, but we have the villages themselves, their relation to 
 the ^agi, and through them to the civitas, and the fact that they 
 were centres for the administration of justice. We have not the 
 manor, but we have the nobleman, we have the warlike magis- 
 trate with his attendant comites, whose services he must find some 
 way of rewarding, and whose energies he must even in peace 
 find some way of employing. The rich man too has his great 
 house and court, and his family of slaves or dependents, who 
 may be only less than free in that they cultivate the land that 
 belongs to another. We dare not say that we have a perfect 
 alodial system, although the land, so far as it may be held in 
 severalty, is held alodially : we cannot say that we have feudality, 
 
 ^ See below pp. 49-51. It appears rash to make the mark system, pure 
 and simjile, the hasiH of (JenManic society. No doubt in some cases not only 
 villages, but huiidreils, and still larger territories possessed common lands, 
 and the Englisii folk-land is in a manner the mark-land of the nation: but 
 it does not follow that in these all constitutional relations were based upon 
 it. Still I0S.S in other regions where not so much as even this can be 
 proved.
 
 II.] General Resulfs. 35 
 
 for the tie between the lord and his dependent is distinctly not 
 one of which land is either the exponent or the material basis. 
 
 But we have germs and traces of all. The military ^rmc^p* A slialu de- 
 has but to con(iuer and colonise a new territory, and reward his would turn 
 followers on a jjlan that will keep them faithful as well as free, ciples int"" 
 and feudalit-ni springs into existence. The members of the village 
 society have but to commute their fluctuating shares in the annual 
 redistribution of land for a fixed allotment with definite duties 
 incumbent upon them as independent owners, and we have the 
 alodial system of village life ; let the warriors of the tribe sink 
 their predatory ardour in the fulfilment of immediate duties, cul- 
 tivate their land and live on the pi'oduce of it, and they will pro- 
 bably fall back into the simplicity of the pi'imitive mark life, out 
 of which they emerged, and into which their descendants, in many 
 cases, Avhen civilised and humanised by the arts of peace, chose, 
 in the prospect of freedom and social independence, to return. 
 
 If the free village organisation seems to recommend itself as General 
 the most adequate explanation of the facts recorded, it mustnessofthe 
 be remembered that its plausibility depends on its obscurity ^^ 
 and indefiniteness. It may contain or it may exclude the 
 ])rinciple of common tenure and cultivation ; it may include or 
 exclude the estates of the rich men and their slaves, the halls 
 of the in'inci'pes and their companions. We can affinn little 
 more than that the vicus was a commimity of common cultiva- 
 tors ; a centj-e or a subdivision of the pagus for the purposes of 
 police or judicature. On the analogy of the pagus we may 
 infer that it furnished in its elders a body of assessors to assist 
 the princeps on the bench of justice, and in its young men a 
 contingent towards the chosen centuries of the host. All beyond 
 this is theory, or derived from interpretation by later facts^. 
 
 ' Sohm (Fr. E.. G. V. pp. i-8) combats the idea that the constitution of 
 the race (Stamm), that of the civitas ( Volk), and that of the pagus {Ilundtrt- 
 schaft), are based on the same principle, so that one is the reproduction of 
 the other on a different field. He contends that, in tlie Geraiania, they ex- 
 hibit the people in three different phases : the religious, the political, and the 
 judicial. 'The old German constitution is characterised b}' the organic 
 connexion in which the different sides of the national life stand to the dif- 
 ferent stages of the national organism.' Grimm (R. A. p. 745) and Waitz 
 vD. V. G. i. 316) ai-e inclined to regard the several constitutions as conver- 
 sant, in the main, with the same matters. 
 
 D 2
 
 3^ Constitutional Kistory. 
 
 The three But the looseness and unjointed character of the upper 
 
 kindred, organisation is by itself sufficient to prevent us from accepting 
 and personal a symmetrical theory. If the villages and the 'pagi are arranged 
 on one principle, the supreme authority seems to be exercised 
 at least on tkree. The king in the monarchic states does little 
 more than represent the unity of race ; he has a primacy of 
 honour but not of power ; he reigns but does not govern. The 
 national council under the elective ■princi^yes is sovereign in 
 peace, but in war its powers are vested in the dux ; and yet 
 the authority of the dux over his comites does not rest on the 
 election of the nation, but on the personal tie by which they 
 are bound to him. Just so in each subordinate poi'tion of the 
 fabric, the three principles of the kindred, the community, and 
 the personal influence, complement and complicate each other's 
 action. The lower organisations are more coherent than the 
 upper, because it is more possible for them to exist unmixed, 
 or in personal union : the kindred may be the community, and 
 the personal and official influence of the wise man or champion 
 may be united in the chief of the family settlement. But even 
 here the cohesive force may be exaggerated. 
 
 The conclusion that such a survey suggests, especially with 
 a view to later history, is this : A great family of tribes whose 
 institutions are all in common, and their bonds of political 
 cohesion so untrustworthy, are singularly capable of entering 
 into new combinations ; singularly liable to be united and 
 dissolved in short-lived confederations, and to reappear under 
 new names, so long as they are without a great leader. Yet in 
 that very community of institutions and languages, in the firmness 
 of tlie common basis, and the strength of the lower organisation, 
 if a leader can be found to impress on them the need of unity, 
 and to consolidate the higher machinery of political action into 
 a niiiional constitution, instead of small aggregations and 
 tumultuary associations, they possess a basis and a spring of 
 life, from aiid l)y wliich they may rise into a gi'cat homogeneous 
 people, symmctiicaily organised and united, progressive and 
 thoroughly patriotic.
 
 CHAPTER III. 
 
 THE SAXONS AND ANGLES AT HOME. 
 
 20. Appearance of the Franks and Saxons. — 21. The Angles and Jutes. — 
 22. Saxons in Germany as described by Bede, Nithard, Rudolf, and 
 Hucbald ; and noticed in the Capitularies. — 23. Notices of the Angles 
 in Germany. — 24. The mark system and common husbandry. — 25. Early 
 system illustrated by the Salian law. — 26. Further illustrations. 
 
 20. For nearly two hundred years after tlie age of Tacitu.s Reappear- 
 very little is known of the internal history of tlie German German 
 tribes, and nothing new of their political institutions. From new names, 
 the facility with which the latter, when they reappear, may be 
 made to harmonise with the account of the great historian, it 
 is almost necessarily inferred that they had continued without 
 change ; nor is there any occasion to presume a development in 
 the direction of civilisation. The Germans of Caesar's time 
 were very far from being savages, but those of the fourth 
 century were still a very long way from the conditions of 
 modern society. How very long the institutions of a half- 
 civilised nation may remain stationary we have both in the 
 East and in the West very abundant evidence. 
 
 During these centuries, at various periods, the Roman empire 
 was alarmed and shaken by the appearance on her boixlers of 
 nations gi-eat in mass and strength, as their predecessors had 
 been, but bearing new names. In the reign of Caracalla Rome 
 first heard of the Goths and Alcmanni*; a little more than half 
 a century later the Franks appear ; and about the same time 
 the Saxons, who had been named and placed geographically by 
 Ptolemy, make their first mark in history. They are found 
 
 ' Ael. Spartianus, Caracalla, c. lo ; Zeuss, Die Deutschen und die Xacli- 
 barstiimme, pp. 304, 401.
 
 38 
 
 Constitutional History. 
 
 [chap. 
 
 Indetermi- 
 nateness of 
 thf collec- 
 tive names. 
 
 employed in naval and piratical expeditions on the coasts of 
 Gaul in A.D. 287^ 
 
 Whatever degi'ee of antiquity we may be inclined to ascribe 
 to the names of these nations, and there is no need to put a 
 precise limit to it, it can scarcely be supposed that they sprang 
 from insignificance and obscui'ity to strength and power in a 
 moment. It is far more probable that under the names of 
 Frank and Saxon in the fourth century had been sunk the 
 many better-known earlier names of tribes who occupied the 
 same seats, as the Sigambri, the Salii and the Ubii were all 
 now known as Franks^, so the Cherusci, the Marsi, the Dulgi- 
 bini, and the Chauci^ may have been comprehended under the 
 name of Saxons. The nations of the Germania had no common 
 name recognised by themselves, and were content, when, ages 
 after, they had realised their unity of tongue and descent, to 
 speak of their language simply as the Lingua Theotisca, the 
 language of the people * (theod). The general name by which the 
 Romans knew them was one which they had received from their 
 Gallic neighbours. Much of the minute and obscure nomen- 
 clature of the early geographers had probably a similar origin. 
 The freemen of the gentes and cognaliones might not care 
 much about the collective name with which perhaps a casual 
 combination under some gi'eat warrior had tempoi'arily endowed 
 them. So long as they retained amongst themselves their 
 family or gentile names, it mattered little whether the foreigners 
 called them Inffaevones^ or Cherusci, Germans or Saxons. 
 
 * Eutrnpius, ix. 13 ; Zeuss, p. 381 : Grimm, Gesch. der D. Spr. p. 625. 
 
 * Grimm, Gesch. der Deutschen Spr. pp. 520 sq. ; Zeuss, pp. 326, 329. 
 ' Oriimn, Gescli. der Deutschen Spr. pp. 614, 624. 
 
 * Whence the name ' Deutsch.' Zeuss derives it rather from the root 
 of ' douten," to explain, so that theotisc should mean ' significant.' But the 
 root of thcod and i/cutcu is tiie same. See Max Midler, Lectiu-es on the 
 Science of Language, ii. 730; Grinim, Gesch. der Deutschen Spr. p. 790; 
 Waitz. D. V. G. i. 28. All decide against the connexion with the Teutones. 
 
 ' Grimm's identification of the Ingaevones with the Saxons, of tlie Iscae- 
 vones with the Franks, and of the Henninones with the Thuringians is 
 convenient : Pref. to his edition of the Gennaiiin, p. iv. Gesch. der 
 Deutschen Si)r. pj). 829, 830; W.aitz, D. V. G. i. 9-11 ; Max Miiller, 
 Lectures on the ^ciencu of Language, ii. 502, 503. There is, I believe, 
 no etymological olijection to connecting the Iwj of the Ingaevones with the 
 Ang of the Angles and the L'tig of England.
 
 111.] New Names. 39 
 
 It is possible that the sudden prominence of new names 
 sometimes signified the acquisition of dominion by a rising 
 tribe; that the Liter career of the Franks may be but the 
 fulfilment of a destiny that had begun to work centuries 
 earlier ; it is not impossible that a confederation of free and 
 neiglibour tribes may have become known to the world by a 
 collective name which they were scarcely conscious of bearing^: 
 nor is it unlikely that in some cases the collective name itself 
 testifies to a series of rapid subjugations and annexations. But, 
 however this may be, the bearing of the common name was Importance 
 in itself a long step towards political unity : the Saxon commu- collective 
 nities might have no yearning towards it themselves, but when '"^ 
 they found that their neighbours treated them as one, they 
 would find it gradually necessary to act as one. It is needless 
 for us to attempt now to generalise on the widely varying 
 causes that led to this constitution of the later nationalities. 
 Some had originated in the necessity of defence against Eome, 
 some in the tempting prospect of rich booty ; the later ones per- 
 haps in the turmoil which accompanied the great upheaval in 
 Central Asia that first threw the Goths upon the empire. It is 
 safer to ascribe them in general to some such extei*nal cause They are not 
 than to suppose them to have proceeded from, or even to have ferred to 
 evinced, a "tendency towards political union. The very causes federation, 
 which made combination easy would seem to preclude the 
 possibility of any conscious active tendency towards it. Whilst 
 the nations on the Lower Rhine were all becoming Franks, 
 those between the Rhine and the Oder were becoming Saxons ; The Saxons, 
 the name implied as yet no common organisation, at the most 
 only an occasional combination for attack or defence. 
 
 21. In close neighbourhood with the Saxons, in the middle The Angles, 
 of the fourth century, were the Angli, a tribe whose origin is 
 more uncertain and the application of whose name is still more 
 a matter of question. If the name belongs, in the pages of the 
 
 ' Waitz, D. V. G. i. 342, rejects the idea of anj'thing like federal consti- 
 tutiont; in these early times. But a long alliance may, for foreign nations, 
 easily bear the appearance of a confederation. See also Grimm, Gesch. der 
 Deutschen Spr. p. 518.
 
 4© Constitutional History. [chap. 
 
 Movements several geographers, to the same nation, it was situated in the 
 
 in Germany, time of Tacitus east of the Elbe ; in the time of Ptolemy it was 
 
 found on the middle Elbe between the Thuringians to the south 
 
 and the Varini to the north ; and at a later period it was forced, 
 
 perhaps by the growth of the Thuringian power, into the neck of 
 
 the Cimbric peninsula. It may however be reasonably doubted 
 
 whether this hypothesis is sound, and it is by no means clear 
 
 whether, if it be so, the Angli were not connected more closely 
 
 with the Thuringians than with the Saxons^. 
 
 The Jutes. To the north of the Augli, after they had reached their 
 
 Schleswig home, were the Jutes, of whose early history we 
 
 know nothing, except their claim to be regarded as kinsmen 
 
 of the Goths, and the close similarity between their descendants 
 
 and the neighbour Frisians'^. All these tribes spoke dialects 
 
 Language of of the language now known as the old low German, in contrast 
 
 the three 
 
 tribes. with the Suevic or Swabian tribes, whose tongue was the basis 
 
 of the high German, and with the Frank, Avhose language, now 
 
 almost entirely lost, seems to have occupied a middle position 
 
 between the two. That of the Goths was outside, but still akin 
 
 to all the three varieties. 
 
 These tribes It was by these tribes, the Saxons, the Angles, and the Jutes, 
 
 Southern that Southern Britain was conquered and colonised in the fifth 
 
 and sixth centuries, according to the most ancient testimony. 
 
 Bede's assertion^, although not confirmed by much independent 
 
 authority, is not opposed by any conflicting evidence ; and such 
 
 arguments as can be gathered from language and institutions are 
 
 in thorough harmony with it. 
 
 Of the three, the Angli almost if not altogether pass away 
 
 into the migration : the Jutes and the Saxons, although migrating 
 
 in great numbers, had yet an important part to play in their own 
 
 homes and in other regions besides Britain ; the former at a 
 
 later period in the train and under the name of the Danes ; the 
 
 latter in German history from the eighth century to the present 
 
 day''. The devcloijincnt of the Saxons, however, was more 
 
 ' Grimm, Gesch. der Deutsdien Spr. j>]). 641, 642. 
 
 '■' Ibiil. |<|). 735, 736. ^ Hist. Eccl. i. 15. 
 
 < Tiie riiuiie of Auibrones, given by Nennius as equivalent to 'Aid
 
 III.] The Old Saxons. 4 1 
 
 rapid, and is mucli more fully illustrated by histoiy in England 
 than in Germany ; and the traces of Anglian institutions in 
 their ancient home are of the most insignificant character. 
 
 22. There are several notices extant of the social and political Historical 
 
 . notices of 
 
 condition of the continental Saxons at the time when they first the old 
 
 Saxons. 
 came into collision with the Frank empire, and wlien their con- 
 version was first attempted. These seem to show that they had 
 remained until then altogether free from Roman influences, and 
 from any foi'eign intermixture of blood or institutions. They had 
 preserved the ancient features of German life in their purest forms. 
 Of these witnesses Bede is the most ancient. He wrote whilst Bede's state- 
 they were still unconquered, from the report of the English 
 missionaries. They are not only unconquered, but unconsoli- 
 dated. ' These same old Saxons,' he ^v^■ites, ' have not a king 
 but a gi-eat number of satraps set over their nation, who in any 
 case of imminent war cast lots equally ; and on whomsoever 
 the lot falls, him they all follow as leader during the war; 
 him they obey for the time ; but when the war is over all 
 the satraps again resume their equal power ^.' Except the 
 method of selection by lot, instead of election by merit, this 
 description is in close harmony with that of Tacitus. The 
 military leader is chosen for the time only : his success does 
 not make him a permanent ruler or king : the union of the 
 gentes or nations is temporary and occasional only ; when the 
 emergency is over each tribal ruler is independent as before. 
 In connexion with the same story, the venerable historian 
 describes one of these satraps as acting with summary jurisdic- 
 tion on the inhabitants of a vicus which was under the mediate 
 
 Saxones,' and applied to the Northumbrians of the seventh century 
 (M. H. B. p. 76), is found in Livy and Plutarch in connexion with the 
 Teutones. Zeuss (Die Deutschen, &c. pp. 147, 151) collects the passages 
 where the name occurs, and conjectures that it was a traditional name of 
 the people known later as Saxons. 
 
 ' Hist. Eccl. V. 10. 'Nou enim habent regem iidem Antiqui Saxones, 
 sed satrapas plurimos suae genti praepositos, qui ingniente belli articulo 
 niittunt aequaliter sortes, et quemcunque sors osteuderit, hunc tempore 
 belli tiuconi omues sequuntur, huic obteniperant ; peracto autem belle 
 rursum aequalis potentiae omnes fiunt satrapae.' The word duccin is 
 translated by Alfred ' to heretogan * and ' to ladtheowe.' Smith's Bede, 
 p. 624.
 
 42 Constitutional History. [chap. 
 
 The town- government of a villicus \ Kinw Alfred when he translated Bede 
 
 ship among _ ^ ... 
 
 the Old- had no difficulty in recognising in the satrap the ealdorman, in 
 the villicus the tungerefa, in the vicus the tiuiscipe of his own 
 land ; possibly the same names were used in both the continental 
 and the insular Saxonies ^ 
 
 ^Kt?!?®"*, The next historical witness is Nithard. The OTandson of the 
 
 ofNithard. _ _ _ ° 
 
 great Charles, writing about a.d. 843, describes the nation that 
 
 his grandfather had converted as one of most ancient nobility 
 
 and most brilliant military skill. The whole race is divided 
 
 into three ranks, edhilingi or tiobiles, friliugi or ingenuiles, lazzi 
 
 or serviles ^. It was by promises made to the frilingi and the 
 
 clasps of ^^^^^ ^^^^ *^^^ Emperor Lothar gained their aid against his 
 
 S^ie"sa™ons^ brothers : he undertook to restore to them the old law under 
 
 which they had lived before their conversion. Thus encouraged 
 
 they rose against their lords, and having expelled them nearly 
 
 all from their country, lived under their ancient law, each man 
 
 as he pleased. In the division of noble, free and unfree, which 
 
 is preserved also in a Capitulary* of A.D. 797, as the nohilis, 
 
 the ingenuus and the litus, we have a clear maintenance of 
 
 Tacitus's distinction of the nobilis, the ingenuus, and the servus 
 
 or colonus — the eorl, the ceorl and the laet of the Kentish laws 
 
 two centuries earlier in date. 
 
 Later Bede and Nithard both state the facts existing in their own 
 
 notices of an _ ° 
 
 earlier state day : but we have two very valuable evidences of a much earlier 
 
 of things. . . . 
 
 condition of things from writers of later date. Rudolf, the 
 
 ' 'Qui venientes in provinciam, infraverunt hospitium cujnsdam villici, 
 petieruntque ab eo ut transniitterentur ad satrapain.' Hist. Eccl. v. 10. 
 
 * ' J)a hi (Va on eald Seaxan conion. Sa eodon hi on sumes tunirerefan 
 gfstairn, and iiine baedon that he hi onsende to ^am ealdormen.' Smith's 
 fcede, p. 624. 
 
 •' Nithard, Hist. iv. 2 : ' Saxones .... qui ab initio tarn nobiles quam et 
 ad bella proniptissinii multis indioiis saepe clanieruiit. (iiiae gens oinnis in 
 tribuH ordiiiil)us divisa consistit; mint eniin inter illos qui edhilingi, sunt 
 (jui frilitiLri, nunt (pii lazzi illorutu lingua dicuntur; Latina vero lingua hoc 
 sunt, nobilcH, inginuilen atqiu' serviles.' 
 
 * Ciipitulare S.ixonuiii, lialuzi!, i. 199, 200; art. 3: 'Item placuit 
 onmibua Saxonibiis ut uljicmuiuo Franci secundum legem solidos duodecim 
 solvere debent. ibi nobiliorcs Saxones solidos duodecim, ingenui (juinque, 
 liti (piatuor c(im|)on:iTit.' In art. 5 : 'Si (juis de nobilioribus ad placitum 
 mannituM venire contcm]>serit, solido (piatuor compcmat, ingenui duos, liti 
 unum.' See llichtlioltn, Zur Lex Saxoaum, p. 346.
 
 III.] The Old Saxons. 43 
 
 author of the Translatio Saiicti Alcxandri, M'^ritlng about a.d. 
 863, describes the Saxons of the early Frank empire as a nation 
 ' most unquiet and hostile to the settlements of neiohbours, but Statement of 
 at home peaceable and benevolently mindful of the interests of 
 tlieir own people. Of the distinctions of race and nobility they 
 are most tenaciously careful : they scarcely ever (and here the 
 writer quotes the Germania) allow themselves to be infected 
 by any mamages with other or inferior races, and try to keep 
 their nationality apart, sincere and unlike any other.' Hence the 
 universal prevalence of one physical type. 'The race consists 
 of four ranks of men, the noble, the free, the freedmen, and the 
 servi. And it is by law established that no order shall in con- 
 tracting marriages remove the landmarks of its own lot ; but 
 noble must marry noble, freeman freewoman, freedman freed- 
 woman, serf handmaid. If any take a wife of different or 
 higher rank than his own, he has to expiate the act with his 
 life '.' * They used also most excellent laws for the punishment 
 of evildoers, and had taken pains to cultivate many institutions 
 beneficial and accordant with natural law, which might have 
 helped them in the way to true bliss, if they had not been 
 ignorant of their Creator and aliens from the truth of His 
 worship.' Whatever this statement loses by the close imitation 
 of the words of Tacitus, it more than gains by the clear identifi- 
 cation of the Saxons as peculiarly answering to his account of 
 the Germans generally. 
 
 Hucbald, the biographer of S. Lebuin, writing in the middle statement of 
 of the tenth century of the Saxons of the eighth, draws the 
 following remai'kable picture. ' In the nation of the Saxons in 
 the most ancient times there existed neither a knowledge of the 
 most High and Heavenly King, so that due reverence should 
 
 * ' Quatuor igitur differentiis gens ilia consistit, nobilium scilicet et liber- 
 orum, libertorum atque servorum. Et id legibus firmatum ut nulla pars 
 in copulandis conjugiis jiropriae sortis terminos transferant, sed nobilis no- 
 bilem ducat uxorem et liber liberaui, libertus coiijuugatur libertae et servos 
 anciUae. Si vero quispiam horum sibi non congruenteni et genere praestan- 
 tiorem duxerit uxorem, cum vitae suae damno componat.' Rudolf, Transl. 
 S.Alex.; Pertz, ii. 674. See Waitz, D. V. G. i. 213. Richthofen, Zur Lex 
 Saxonum, pp. 223-229.
 
 44 Cund'ituiional Hidory. [chap. 
 
 Hucbald's be paid to His worship, nor any dignity of honour of any earthly 
 
 of the Old- king by whose providence, impartiality, and industry the nation 
 Saxons. . i. ~ ' 
 
 might be ruled, corrected and defended. The race was, as it 
 
 still is, divided into three orders ; there are there those who 
 Their ranks, are called in their tongue Edlingi ; there are Frilingi ; and there 
 are what are called Lassi ; words that are in Latin nobiles, in- 
 ftovemment, gemd, and serviles. Over each of their local divisions or jyagi, 
 at their own pleasure and on a plan which in their eyes is a 
 and annual prudent One, a single princeps or chieftain presides. Once every 
 yeai", at a fixed season, out of each of these local divisions, and 
 out of each of the three orders severally, twelve men were 
 elected, who having assembled together in Mid-Saxony, near 
 the Weser, at a place called Marklo, held a common council, 
 deliberating, enacting, and publishing measures of common in- 
 terest according to the tenour of a law adopted by themselves. 
 And, moreover, whether there were an alarm of war or a pro- 
 spect of steady peace, they consulted together as to what must 
 be done to meet the case ^.' The Saxons then in the tenth cen- 
 tury could look back on a time when they were under this pri- 
 mitive constitution. The orders of men were what they had 
 been in the days of Tacitus, although the sei^ile class had got a 
 new name and a far superior condition, which gave them some 
 develop- share even of political power. Still the jyrincipes ruled each his 
 principle of own pagus, and the national council Avas held once a year. That 
 tion. council alone expressed the national unity; there was no 
 
 king ; each chieftain ruled by the custom of the nation. The 
 assembly was a representative council of the most perfect 
 kind ; and, stated simply, must have been as much in advance 
 of the constitutional system of other countries in the tenth 
 century as it had been in the eighth : for the double principle 
 
 ' ' Sunt deriinue ibi qui illoruni lingua Edlingi, sunt qui Frilingi, sunt 
 qui L.'iMsi dicuntur, quod in Latina sonat lingua nobiles, ingenui, atque 
 servilcH. Pro huo vero libitu, con.silio quoque ut sibi videbatur prudenti, 
 singuliB pagiH principes praeerant singuli. Statute quoque tciii])ore anni 
 scinol ex singulis ])agis, atquc ex iisdena ordiiiibus tripartitis singillatim, 
 viri duoducini elccti et in ununi collecti, in media Saxonia secus flumen 
 Wiserani et iocuui Marklo nuncupatum, exercebaut generivle concilium.' 
 V. S. Lebuini ap. Suriuui, iv. fo. 90. The opening words are of course 
 from Nitbard : alwve, p. 42, note 3.
 
 III.] The Old Saxons. 45 
 
 of representation, local and by orders, involves the double 
 character of the gathering : in one aspect it is an assembly of 
 estates, in another the concentration of local machinery : and in 
 either it is a singular anticipation of polities which have their 
 known and historical development centuries later. It may 
 indeed be reasonably doubted whether such a complete and 
 symmetrical system can have existed ; it would be as startling 
 a phenomenon if it existed only in the bi'ain of the Frank 
 monk, as it would be in proper history \ Nor have we any 
 distinct information about it from any other soui'ce. 
 
 The Capitularies of Charles the Great, the Lex Saxonum, and illustrations 
 
 ^ , / from the Ca- 
 
 other monuments of later Saxon jurispru^dence down to the pitularies. 
 Sachsenspiegel, preserve a few traces of primitive law, and 
 furnish now and then contrasts and analogies that illustrate 
 the institutions of England. It would be premature in this 
 place to enlarge upon these. The particulars in which they 
 coincide with the traditions of the historians already quoted 
 are sufficient to show the main })oints that are now of imjDor- 
 tance, the primitive chai-acter of the polity, the careful exclusive- 
 ness of the pure Saxon race, the existence of the general assem- 
 blies, and the threefold division of classes, with the exceptional 
 position of the lowest of the three. The Capitulatio de partibus 
 Saxoniae, issued immediately after the conquest, and during the 
 process of conversion, is strictly devoted to ecclesiastical regula- 
 tions. Amongst its clauses are two which direct the contribution 
 of the litres towards the maintenance of the clergy on the same 
 principle as that of the nohilis and ingenuus ; the litus is fined for 
 neglect of baptism, for transgression of the law of marriage, and 
 for the observance of heathen rites, and in a fixed proportion ; he 
 pays half the mulct of the ingemms, a fourth of that of the noble. 
 Another clause forbids the Saxons to hold any public assem- 
 blies unless authorised by a royal Missus ; and in this may be 
 
 * Waitz, D. V. G. i. 178, 341, allows that the passage is suspicious, but 
 declines to follow Schauinann in rejectinsj it altogether. See also vol. iii. 
 p. 114. Richthofen, Zur Lex Saxonum, pp. 277, 278, regards it as pro- 
 blematical, especially with reference to the liti, but allows that a uniform 
 rule respecting them did not prevail in the German tribes.
 
 45 
 
 Constitutional History. 
 
 [chap. 
 
 Illustrations traced a possible reference to the free national ffatlierinffs meu- 
 
 froiu the Ca- ^ c 
 
 pitularies. 
 
 From the 
 Lex Saxo- 
 luim. 
 
 Position of 
 the htus. 
 
 tioned by Hucbald ; for the count, as the king's deputy, is still 
 allowed to hold pleas and do justice in his own government^. 
 The Saxon Capitulaiy of a.d. 797, which places the noble 
 Saxon in the point of pecuniary mulcts on a level with the 
 Frank, and regulates the exercise of supreme jurisdiction, again 
 recognises the position of the liti. Whei*e the noble pays four 
 solidi, the ingenuus pays two, and the litus one ^. The same 
 conclusions may be drawn from the Lex Saxonum, which fur- 
 nishes besides some interesting coincidences in regard to pay- 
 ment for personal injuries with the earliest English code. The 
 lord of the litus answers only for actions done at his command ; 
 in other cases the litus must prove his innocence like a freeman: 
 a litus of the king may buy a wife wherever he pleases^. In 
 each case the litus appears to be distinctly recognised as a 
 member of the nation ; he is valued for the wer-gild, summoned 
 to the placitum, taxed for the church, allowed the right of 
 compurgation and choice in marriage. It is probable from 
 other evidence and on analogy that his services furnished part 
 of the military resources of his country *. Instead of being 
 a mere dependent with no political rights, the remnant of a 
 conquered alien people ^ he is free in relation to every one 
 
 ' 'Capitulatio de partibus Saxoniae,' Bahize, i. 181, artt. 15, 17, 20, 21. 
 Art. 34 is this : — ' Interdiximus ut omnes Saxones generaliter conventus 
 publicos nee faciant nisi forte missus noster de verbo nostro eos cungregare 
 fecerit. Sed unusquisque comes in sue ministerio placitu et justitias faciat ; 
 et hoc a sacerdotibus consideretur ne aliter faciat.' Cf. Ricbthofen, Zur 
 Lex Saxonum, p. 171. Richthofen, p. 216, assigns A.D. 777 as the date of 
 tWs act : Pertz fixes a.d. 785, Waitz, a.d. 782. 
 
 ^ Above, p. 42, note 4. 
 
 ' Lex Saxonum, ap. Lindenbrog, pp. 474-478. The wer-gild is 120 
 shillings, cap. ii. 3. See also cap. ii. 5 ; x. I : ' Lito regis liceat uxorem 
 einere ubicun([ue voluerit, sed non liceat ullam feminam vendere,' cap. .wii. 
 Richthofen, Zur Lex Saxonum, pp. 331 sq., fixes the date of this code 
 between a.d. 777 and A.D. 797 ; perhaps in A.D. 785. 
 
 * See Waitz, D. V. G. iii. 115. He regards the high position of the 
 adalings and the superior condition of the lazzi as Saxon peculiarities. 
 Tliey were an essential part of the Saxon people, iv. 299. A case in which 
 they went to the host is given iv. 508 ; see also iv. 454. 
 
 * It is argued that tlie Saxon lazzi were not pure Germans, from the 
 words ofNithjjrd: ' Sciavi proi)ter affiiiitatem Saxoiiibus qui se Stellinga 
 nominavrraiit.' Hist. iv. 2. Ivoln-rtson, Scotland under her Early Kings, ii. 
 235. Rut botii frilingi and lazzi were named Stellinga, and affinity does
 
 Til.] Laws of the Angles. 47 
 
 but his lord, and simply unfree as cultivating land of which 
 he is not the owner. The slave, servus or knecht, is in a very 
 different plight. In this it may well he we have a proof of the 
 freedom of the ancient life, notwithstanding the preponderance 
 of the nobiles : liberty is more penetrating and more extensive 
 than elsewhere, and the condition of the liti has no small im- 
 portance in its bearing on the history of the colonisation of 
 Britain. 
 
 23. Of the history of the Angli unconnected with that of i he laws of 
 
 ■nil 1 I'll 1 c 1 • *^^® Aiii?lii 
 
 England we have no details ; but a code of laws is extant, and Werini. 
 dating perhaps from the eighth century, and entitled, The Laws 
 of the Anglii and Werini ^. This document j^reserves several 
 noteworthy details which may be regarded as subordinate links 
 in the chain between England and the Germania. Such are 
 the proportions of the wer-gild and the money-fines ; and the 
 classification of the free people as adalings and liberi. Of the 
 ingenuus and Utus as opposed to one another there is no trace : 
 the wer-gild of the adaling is thrice that of the free man ; the cor- 
 resjjonding payment for the slave is one-twentieth of that of the 
 adaling ; the slave is atoned for with thirty solidi, the freedman 
 with eighty, the freeman with two hundred, and the adaling 
 with six hundred ^. The Utus apparently does not exist. But 
 although these points have a certaiir interest in themselves, they 
 form part of a subject-matter which is common to all the Ger- 
 manic races, and rest on an authority the exact value of which 
 is too uncertain to make it worth while to examine them in detail. 
 If we possessed a complete Mercian or Northumbrian code, and 
 were quite certain of the connexion of the Anglii of these laws 
 with the Angli of the migration, the case might be difierent. 
 
 not imply actual consanguinity. They were more probably the remains of 
 a conquered Thurins^ian population. See Waitz, D. V. G. i. 178. 
 
 ' Edited by Merkel in 1851 ; Canciani, vol. iii. ; Lindenbrog, pp. 482- 
 48^*: see also Thorjie's Lappenberg, i. 90, 91; Waitz, D. V. G. iii. 143: 
 Kichthofen, Zur Le.x Saxonum, pp. 407-418. The theory that the laws be- 
 longed to two small communities, Englehem and Werinefeld, in Southern 
 Thuringia (Kichthofen, p. 41 1), is accepted by Brunner, Schwurgericht, p. 19. 
 ITie laws belong to the age of Charles the Great. 
 
 ■■' Tit. i. artt. I, 2 ; titt. ii-iv; tit. vii. art. 6 ; and on the coincidences I'e- 
 tween the Anglian and Anglo-Saxon laws, see Thorpe's Lappenberg, i. 
 93- 94-
 
 48 Constihit'ional Histort/. [chap. 
 
 Caution in Still less is it necessary to appeal to the evidence of later 
 
 the use of ... J ii 
 
 analogies. Danish institutions for the illustration of the polity of the 
 
 Jutes^, or in proof of their connexion with the Frisians. It 
 
 is true that the common law of a nation is even more certainly 
 
 than its language a detei-mining evidence of its extraction. But 
 
 so great is the mass of material, and so much of it is common to 
 
 this Avhole family of nations, that it is at once unnecessaiy to 
 
 ■work it into detail, and unwise to dwell upon such detail as 
 
 proof of more distinct closer affinities. The common law of the 
 
 race is abundant and comparatively clear ; but minute inferences 
 
 from minute coincidences are sometimes deceptive : it would be 
 
 unsafe to infer from such resemblances anything more than 
 
 original consanguinity^. 
 
 Importance 24. These scanty particulars have their value, first, as fur- 
 
 of these . , . . . » 
 
 early notices, nishing points and analogies illustrative of the tribal character 
 
 of the Saxons and their neighbours, which throw light on some 
 important features of their migration and early colonisation of 
 Britain ; and in the second place, as marking the peculiarities 
 of their institutions which caught the eye of the historian and 
 legislator by their contrast with those of the other nations of 
 Germany. Only those details are noticed which serve to divide 
 them from the nations whose system has now a less pure and pri- 
 mitive character. Hence we are waiTanted in conckiding that in 
 other points their social and political condition was not far removed 
 from that of their neighbours, and are prepared to look amongst 
 the German tribes of the fifth and sixth centuries generally for 
 traces which may illustrate the polity of the particular race. 
 Common Such traces will be found chiefly in the department of land 
 
 German life tenure and local government, on the earlier phases of which 
 and sixth ^ much has been said already. The laborious investigations of 
 recent scholars have successfully reconstituted the scheme of 
 land tenure as it existed among the Germanic races, by careful 
 generalisations from charters, records of usages and the analogies 
 
 * Lai)I)enberg, i. 96, reffardu as possibly Jutish the Kentish division into 
 l(ilhri<, :in<l the custom of fixing the age of majority at fifteen. 
 
 * These remarks of course do not refer to the imi)()rtance of Scandinavian 
 anah)gics with Anglo-Saxon history, which is very great, but simply to the 
 relics of Jute tradition as brought to prove special connexion. 
 
 centuries.
 
 III.] The Mark Sptem. 49 
 
 of Scandinavian law and practice, wliicli at a later date re- 
 produces, with very little that is adventitious, the early condi- 
 tions of self-organising society. This scheme has been already The Mark 
 mentioned more than once under the name of the mark system ^ 
 Its essential character depends on the tenure and cultivation of . 
 the land by the members of the community in partnership. The 
 general name of the mark is given to the territory which is held 
 by the community, the absolute ownership of which resides in 
 the community itself, or in the tribe or nation of which the 
 community forms a part. The mark has been formed by a primi- 
 tive settlement of a family or kindred in one of the great plains 
 or forests of the ancient world " ; and it is accordingly like any 
 other clearing surrounded by a thick border of wood or waste, 
 which supplies the place or increases the strength of a more 
 effective natural boundary. In the centre of the clearing the 
 primitive village is placed : each of the mark-men has there 
 his homestead, his house, courtyard, and fai-m-buildings ^. This 
 possession, the exponent as we may call it of his character as a 
 fully qualified freeman, entitles him to a share in the land of 
 the community *. He has a right to the enjoyment of the 
 woods, the pastures, the meadow, and the arable land of the 
 mark ; but the right is of the nature of usufruct or possession 
 only ", his only title to absolute ownership being merged in the 
 general title of the tribe which he of course shares. The 
 woods and pastures being undivided, each mark-man has the 
 right of using them, and can turn into them a number of swine 
 and cattle : under primitive conditions this share is one of abso- 
 lute equality*'; when that has ceased to be the rule, it is regTilatcd 
 by strict proportion. The use of the meadow-land is also defi- 
 
 * The great authority on this is G. L. von Maurer, who has collected 
 and arranged an enormous quantity of material on the subject in his 
 Einleitung, and in his works on the Markenverfassung, Doi-fverfassung, 
 Hofverfassung, and Stiidtevcrfassung. 
 
 ^ The idea of a forest clearing is not necessary to tlie mark. K. INIaurer, 
 Krit. Ueberschau, i. 65-72. 
 
 * G. L. von Maurer, Einleitg. p. 21. 
 
 * Dorfverfassg. i. 61-65; Markenverfassg. pp. 59-62. 
 s Einleitg. pp. 6, 93, 97. 
 
 " Markenvei'fassg. pp. 142 sq.
 
 50 Constitutional History. [chap. 
 
 Aliportion- nitelj' apportioned. It lies open from hay harvest to the follow- 
 mider the ing spring, and during this time is treated as a portion of the 
 System. common pasture, out of the area of which it is in fact annually 
 selected. When the grass begins to grow the cattle are driven out, 
 and the meadow is fenced round and divided into as many equal 
 shares as there are mark-families in the village : each man has 
 his own haytime and houses his own crop : that done, the fences 
 are thro^vn down, and the meadow becomes again common pas- 
 ture : another field in another part of the mark being chosen 
 for the next year. For the arable land the same regulative 
 measures are taken, although the task is somewhat more com- 
 plex : for the supply of arable cannot be supposed to have been 
 inexhaustible, nor would the mark-men be likely to spend their 
 strength in bringing into tillage a larger area than they could 
 permanently keep in cultivation. Hence the arable surface must 
 be regarded as constant, subject to the alternation of crops. In 
 the infancy of agriculture the alternation would be simply that 
 of corn and fallow, and for this two divisions or common fields 
 would suffice. But as tillage developed, as the land was fitter 
 for winter or spring sowing, or as the use of other seed besides 
 wheat was introduced, the community would have three, four, 
 five, or even six such areas on which the proper rotation of 
 crops and fallow might be observed ^ In each of these areas 
 the mark-man had his equal or proportionate share; and 
 this share of the arable completed his occupation or possess- 
 sion. 
 
 This system of husbandry prevailed at different times over 
 the whole of Germany, and is in complete harmony with the 
 idea of a nationality constituted on a basis of personal rather than 
 Personal territorial relations. As the king is the king of the nation, 
 (lithe polity not of tlic land, the land is rather the sign or voucher for the 
 svstem pre-*^ freedom of its possessor than the basis of his rights. He pos- 
 ^'" ■ scsscs his land as being a full-free member of the connnunity ; 
 
 henceforth tlie ])ossession of it is the attestation, type, and em- 
 bodiment of his freedom and political rights. 
 
 • (J. L. von Mauror, Einleitg. pp. 73-75, 77 sq.
 
 III.] The Mark System. 51 
 
 For every such mark becomes a political unit : every free The political 
 
 1 1 • • 11 r. 1 11-1 "■''iuiiots of 
 
 mark-man has his place in the assembly of the mark, which the Mark 
 regulates all the internal business of the partnership and of the 
 relations that arise from it. The choice of the meadow, the 
 rotation of the crops, the allotment of the shares from year to 
 year, are determined in this council ^ ; and without its consent 
 no man may settle in the territory ^, build himself a house, or 
 |»urchase the share of another. It is unnecessary to suppose 
 that there was a period when the village marks administered The village 
 
 • 1 • 1 • • 1 • court or 
 
 justice amongst themselves ; for withm historical times they mark-moot. 
 appear only as members of larger communities : but even these 
 communities may have been originally constituted on the same 
 principle, and have possessed common woods and pasture grounds 
 in which the village marks have their definite shares. But the 
 initiatory stage of legal proceedings may well have been gone 
 through, complaints heard and presentments drawn up, in the 
 village council. On such a hypothesis also it may have elected 
 its own aimual president ^, although again within historic times 
 such magistrate seems to have been imposed by the king or 
 governing council of the nation. 
 
 If a member of the mark, or a new settler with permission of Separate 
 
 ... , ,1 -11 sottli'inents, 
 
 the mark-men, chose to build his house apart Irom the village, outside the 
 
 ,./.,, 11- 1 • villages. 
 
 in a remote portion 01 the common land or in a new clearing, 
 
 ho might do so \ and in such case he would have a permanent 
 
 allotment of arable and meadow lying close to his farm, and not 
 
 subject to the annual reapportionment. His partnership in the 
 
 use of the common land would thus be limited to the use of 
 
 wood and pasture, in which his rights would be determined on 
 
 the common principle of proportion, by which also the extent 
 
 of the original area which he was allowed to appropriate was 
 
 limited *. 
 
 As the population increased and agriculture itself improved, 
 
 the mark system must have been superseded everywhere. The 
 
 * G. L. von Maurer, Einleitg. pp. 144-150. 
 ^ Ibid. pp. 141 sq. ; Lex Salica, tit. 47. 
 
 ' G. L. von Maurer, Einleitg. p. 140. 
 
 * Ibid, p. 9. 
 
 £ 2
 
 52 Constitutional History. [chap. 
 
 Changes in foundation of new villages on the common lands, standing in a 
 the Mark . , . . . . 
 
 system. filial relation to the original settlement, and looking to it as the 
 
 source of their political rights, must have soon exhausted the 
 available territory. The partnership in tenure of the arable 
 would necessarily become obsolete when the love of agriculture 
 and the practice of careful husbandry demanded for the culti- 
 vator a tenant-right in his allotment : it could continue only so 
 long as all men farmed equally well : as soon as the husbandman 
 succeeded in keeping his annual plot better than his neighbour, 
 he might fairly insist that a longer possession was therefore due 
 to him, and that he might commute the annual for a perpetual 
 allotment. So the arable fell into the condition of separate 
 ownership together with the homestead ; the rights to wood and 
 pasture remaining in common, though liable also, when the pro- 
 cess of inclosure has begun, to similar appropriation. And the 
 Inequality of right of separate ownership being established, inequality of 
 land.*^^ ° estate, which must have prevailed to some extent from the first, 
 would become the rule instead of the exception. But whilst the 
 political importance of the system would thus pass away, the 
 plan of common husbandry and common rights of wood and 
 pasture, the local gatherings of the freemen and their by-laws 
 or internal regulations, would remain and become available 
 Permanent for administrative purposes guided on other principles. The old 
 Markusages. feeling of freedom and of the inseparable connexion between 
 land ownership and tlie possession of public rights would con- 
 tinue ; possibly also the habit of looking up to the owners of the 
 primitive homesteads as the natural leaders, the representatives 
 of the half mythical forefathers of the village. 
 
 The system, necessarily shortlived in its integrity, thus leaves 
 deep and abiding impressions whercvei- it has once prevailed ; 
 and those, if we arc to trust to the nomenclature which belongs 
 to it, in regions of political life where we should hardly look 
 for them. The homestead of the original settler, his house, 
 farm - buildings and enclosure, ' the toft and croft,' with the 
 share of arable and appurtenant common rights, bore among 
 the northern nations the name of Odal, or Edhel ; the primitive 
 mother village was an Athelby or Athclham ; the owner was
 
 III. J The Salian Laiv. e^'^ 
 
 an Atliclbonde ' : the same word Adel or Athel, signified also The Mod 
 nobility of descent, and an adaling was a nobleman. Primitive Adaling. 
 nobility and primitive landownerslii]) thus bore the same name'"^. 
 It may be questioned whether any etymologic;d connexion exists 
 between the words odal and alod, but their signification as 
 applied to land is the same : the alod is the hereditary estate 
 derived from primitive occupation ; for which the owner owes 
 no service except the personal obligation to appear in the 
 host and in the council. The freeman who does not bear the The free- 
 name of adaling, is the descendant of the later settler who has 
 been admitted to full rights in the community ; or he may be 
 descended from the original settlers but has not inherited the 
 homestead. Beneath these comes the free class of labourei's who The cultiva- 
 lultivate the land which others own. The three classes are men's land, 
 kept distinct by the difference of the wergild : the killing of 
 the adaling is atoned for by a fine twice or three times as large 
 as that which can be demanded for the freeman ; and his oath in 
 C()mi)urffation is of twice or thrice the weight. Sometimes this The distinc- 
 
 / , . 1 ,. 1 , !•«. i- 1 tionofthe 
 
 difterence of valuation may be referred to the difference ot the wergild, 
 size of the estate which each holds ; and the value of the oath 
 bears an exact proportion to the acreage of the alod. But 
 this rule belongs probably to later times. It is enough for the 
 present to obsei-ve that the mark system preserves in itself the 
 two radical principles of German antiquity, the kindred and 
 tlie community of land ; and their primitive appmienances, the 
 wergild and compurgation, in which the kindred share the rights 
 and responsibilities of the individual freeman; the right and 
 obligation are based on the tie of kindred, regulated by the land 
 tenure, and subject to the general administration of the peace. 
 
 25. Ascending from the simplest form of local organisation The higher 
 to the juridical and political administration of the tribe, we as'c\cnipii- 
 have in the ' Pactus Legis Salicae,' or summary of the customs salian law. 
 of Frank law in the fifth century, a store of facts which may 
 illustrate a general theory although they cannot form the basis 
 
 • G. L. von Marer, Einleitg. pp. 14-17. 
 
 * See Grimm, K. A. p. 265 ; Waltz, D. V. G. i. 185-187; K. Maurer, 
 Krit. Ueberschau, i, 97; Vigfiisson, Icelandic Diet. s. v. A&al, 06al.
 
 54 Constitutional Kistory. [chap. 
 
 TheSaliaii of one \ In some i)oints the Salian law is contrasted with the 
 law. 
 
 customs of the interior nations of Germany, the Saxons for 
 
 instance : such are those especially that have reference to royalty, 
 
 which was unknoAvn to the one nation long after it had become 
 
 a regular institution of the other : where therefore the authority 
 
 of the king is mentioned in it, we must, in applying the analogy 
 
 to the Saxons, substitute for it the rule of the elective lorinceps, or 
 
 of the assembly, or the local community, as the case may require. 
 
 Traces of the The mark system has left its traces in the Salian law. The 
 
 ■" '^"^ ■ system of common cultivation may have passed away, but no 
 
 settler is allowed to take up his dwelling in the vill without the 
 
 express permission of the community, or authority from the 
 
 king in whom the central rights of the community are vested^. 
 
 The social organisation of the vill may be identical perhaps 
 
 with that of the mark ; it is capable of holding assemblies, 
 
 discussing grievances, and making by-laws, but it is not a court 
 
 of justice ; its president is the officer who collects the royal 
 
 dues, and is nominated by the king^ 
 
 The court of The ordinary court of iustice is the mallus or court of the 
 
 justice, the •'_ '' ^ 
 
 mallus, or hundred, of which the centenarius or thunginus * is the presi- 
 
 hundred- _ .... 
 
 court. dent, elected by the national council. With him sits the 
 
 sacebaro, to repi'esent and secure the king's rights'''. The 
 court consists of all the fully qualified landowners, who bear, 
 in their name of rachi'niburgi, a title that shows their capa- 
 city for legal functions ; for they furnish the centenarius with 
 a body of assessors, selected from time to time, and called, 
 during their period of service, the sitting rachimbui-gs ^, in oppo- 
 sition to the rest of their body, who are the standing members. 
 From the decisions of the mallus there is no appeal, except to 
 
 ' Lin(lenV)rog, Logen Earharorum, pp. 309 sq. ; Canciani, ii. 1 7 ,sq. ; Baluze, 
 Capitularia Kit. Ff. i. 1201 Hq. ; Wailz, iJas Alte Recht, Kiel, 1846. 
 
 * Titt. xiv, xlv ; Waitz, Das Alte lieclit, pp. 124. 210, 228, 253 ;G. L. von 
 Maurer, Eiiileitg. p. 141 sq. ^ Waitz, 1). V. G. ii. 314, 353, 354. 
 
 * Savigny, R. R. i. 273 ; Waitz, Das Alte Recht, p. 294 ; D. V. G. i. 248. 
 ■ Sohiii, Fr. R. G. V. i. 84-94. 
 
 ' Waitz, D. V. G. i. 334. The name belongs to all fully qualifieJ fn^emen 
 among the IVankH, and answers to Ariniannus among the Lombards ; 
 Savigny, Ii(ini. Kecht ini Mittcl.ilter, i. 191, 214 sq. On the ilerivation of 
 th'! word see Savigny, i. 222 (Rck = ric]i, great ; and burg = borh, surety) ; 
 G;imm, R. A. ])p. 293, 7,-4 (ragin ^consilium) ; Waitz, Das Alte Recht, 
 p. 291 ; D. V. G. ii. 36.
 
 111.] The Saltan Law. 55 
 
 the king himself; no court intervening between that of the 
 hundred and the supreme council of the nation^ The Graf, The Graf. 
 or administrative ruler of the province which is composed 
 of the aggi-egations of the hundreds, is a servant of the king, 
 fiscal and judicial, and as such executes the sentences of the 
 mallus, but has no special court of his own^. 
 
 The Salian law recognises fully the importance of the kindred No tribunal 
 in relation to the descent of property, the wergild and com- 
 purgation ; but affords no trace of any political or juridical 
 organisation founded upon it, and contains no reference to any No blood 
 primitive nobility^, the only differences in the wergild arising '^ " ^' 
 from employment in the host or in the king's service*. The posi- 
 tion of the leius is nearer to that of the slave here than in the 
 Saxon institutions, which however are in close conformity with 
 the Frank law in tlie prohibition of mixed marriages ^ Separate Inequality of 
 ownership of land, in the greatest completeness and in the most 
 unequal propoi-tions, has become the rule*^ : the more ancient 
 system is to be detected only by the vestiges of its nomenclature : 
 the * teri'H salica ' answering to the Alod or Adalsgut ^. 
 
 The king is the ruler of the nation ; he ajjpoints the grafs Tiie Kin?, 
 and the magistrates of the vills ; he has a comitatus of personal 
 followers who supply the place of hereditary nobility and per- 
 manent guard. He is the guardian of the peace of the nation, 
 and supreme judge of appeal. The supreme political council The national 
 is the nation in arms : but of any central gathering of the people 
 for justice there is no mention ; we can only infer that, if there 
 were any, it must have necessarily coincided with the assembly 
 of the host. The succession to the royalty is hereditary in one 
 family, but the person who succeeds is chosen by the nation*. 
 
 » Waitz, D. V. G. ii. 493-495. 
 
 ^ Nor even a share in the jurisdiction of the mallus; Savigny, R. K. i. 
 256, 265 ; Sohm, Fr. R. G. Verf. i. 83. 
 
 " Cf. Savigny, R. R. i. 223 ; Waitz, Das Alte Recht, p. 103 ; D. V. G. ii. 
 289-291. 
 
 * Waitz, Das Alte Recht, p. 104. * Ibid. p. 106. 
 
 * Ibid. p. 117; D. V. G. ii. 217. This seems to be the consequence of the 
 conquest of a Roman province. 
 
 " Waitz, D. V. G. ii. 220: the land attached to the 'sala' or house. 
 Cf. Grimm, R. A. p. 493. 
 
 * Waitz, Das Alte Recht, pp. 203-214 ; D. V. G. ii. 148-164.
 
 ^6 Constitutional History. [chap. 
 
 Difference of So simple was the groverumental system of the Franks in the 
 
 Sabanand i » J ^ 
 
 Saxon cus- fifth century : that of the Saxons was simpler still, for they were 
 without the complication of royalty. The name of the huudred, 
 the institution round which the Frank system circles, and the 
 origin of which has, as we shall see, its own complexities, does 
 not occur amongst the continental Saxons^ : and although it 
 does not follow that it was unknown to them, its non-appearance 
 is a pi-esumptive evidence of superior simplicity of organisation. 
 We shall trace, as we proceed in the history of the English, vestiges 
 of the systems, or of parts of the systems, thus briefly character- 
 Danger of ised : perhaps we have shown already by implication how very 
 
 forming too , i • . 
 
 complete much any complete scheme or general picture must be based on 
 
 inferences and analogies, such as by their very nature raise a 
 suspicion of pretentious speculation and warrant us in content- 
 ing ourselves with a modest and tentative dogmatism. 
 Analofries in 26. And this consideration restrains us from even attempt- 
 
 Scandina- . in 
 
 vian histoi-j-. ing to apply to the Saxons the minute and regular machinery of 
 local divisions and jurisdictions which we find in the Scandina- 
 "vdan laws, and of which the colonisation of Iceland is the best 
 and the favourite specimen. The existence of numerical divi- 
 sions of the utmost minuteness is not inconsistent with great 
 antiquity ; but it is a sign not so much of antiquity as of the 
 absence of more natural determinants. The nomad race has 
 scared}' anj' possible priucijile of arrangement other than number : 
 it is indispensable also to the machinery of the host, and in 
 consequence the occupation of a conquered country, or the 
 colonisation of one newly discovered, is regulated in this way. 
 The usage is then no sign of either age or race. Yet it is useful 
 to observe the analogy, especially when, as in Iceland, a perfect 
 instance can be adduced. 
 
 Constitution Iceland is divided into four fiordungs or quarters, as Yorkshire 
 of Iceland. ,. .^ , , , _ °. ^, . . _, 
 
 may have been divided by the Danes into tm-ee ridings. Each 
 
 fiordung was divided into three things, and each thing into three 
 
 * Waitz, D. V. G. i. 153. The traces of tbe system alleged by Waitz 
 are que.stioned by Richtliofen. K. Maurer, Krit. Ueberacliau, i. 76. It is 
 also unknown among tlic Frisians. Waitz mentioniJ however a ' Camminge 
 hunderi * in WcBtphalia.
 
 ni.] The Constitution of Bithmarschen. 57 
 
 godords or lordships : tlie nortliernmost fiordung however con- 
 tained four things, so that there were thirty-nine godords in all. 
 The godord was originally a personal not a territorial division^. 
 
 In the court of the fiordung were thirty-six judges, twelve from The court of 
 
 1 • ic • 1 the fiordung. 
 
 each godord, named by the lord, who did not himselr sit there. 
 
 The general assembly of the island was called the Althing. The Thelogretta. 
 liigretta, the judicial and legislative committee of the althing, was 
 composed of the thirty-nine gothar, or godordsmen proper, and 
 nine supplementary ones chosen by those of the three southern 
 fiordungs ; each of the forty-eight had two nominated assessors, 
 so that the whole number was 144; with these sat the bishop 
 and the lawmen ; forty-eight being a quorum^. Here is a late 
 but distinct jji-oduct of the Germanic centralising system marked 
 by singular regard to numerical symmetry. 
 
 Another instance may be found, also at a late period, in Constitution 
 the immediate neighbourhood of Saxony proper. The little marschen. 
 territory of Dithmarschen was colonised by two kindreds from 
 Friesland and two from Saxony : the Frisians formed two 
 marks, the Norderstand and the Suderstand ; the Saxons two 
 others, Norderhamm and Suderhamm ; and the four were in 
 A. D. 804 made into a Gau, in which the archbishop of Bremen 
 had the royal rights of Heerbann and Blutbann : a fifth mark 
 or doft't was afterwards added. The rights of the archbishop 
 being guarded by an advocatus or vogt, sometimes by one to each 
 mark, the state was governed by its own landrath : each mark 
 had twelve elected consules : the forty-eight constituted the land- 
 rath. When in the sixteenth century the vogts disappeared, 
 the territory became, Avhat it had been originallj', a systematic 
 organism for self-government^. This furnishes no bad com- 
 mentary on the testimony of Hucbald^ 
 
 ' The godord (gotliorth) was the lordship which looked to the Hof or 
 temple as the centre of its religious and legal organisation under the Gothi 
 or priest-lord. 
 
 ■ Gragas, i. pp. 1-4; Palgrave, Commonwealth, p. 115 ; Bluntschli in 
 Krit. Ueberschau, i. 120-127; Vigfusson, Icelandic Dictionaiy, s. v. Althing, 
 Gothi, Logretta. K. Maurer's Beitriige zur Rechtsgeschichte des Geruian- 
 ischen Nordens, p. 1 76, and his recently published * Island ' are the- 
 authorities on tlie subject. 
 
 ^ G. L. von Maurer, Einleitg. pp. 289-292. 
 
 * Above, p. 43.
 
 CHAPTER IV. 
 
 THE MIGEATIOX. 
 
 27. Conquest of Britain 28. Condition of the Britons. — 29. Theory of 
 
 earlier German settlements. — 30. Theory of connexion between Welsh 
 and Anglo-Saxon laws. — 31. Effect of the conquest on the conquerors. — 
 32. Adoption of royalty. 
 
 Different 
 circum- 
 stances of 
 Frank and 
 Saxon con- 
 quest. 
 
 27. The fifth century saw tlie foundation of the Frank do- 
 minion in Gaul, and the first establishment of the German races 
 in Britain. The former was effected in a single long reign, by the 
 energy of one great ruling tribe, which had already modified its 
 traditional usages, and now, by the adoption of the language and 
 religion of the conquered, prepared the way for a permanent 
 amalgamation with them. In this process, whilst the dominant 
 tribe was to impose a new mould upon the material which Roman 
 dominion had reduced to a plastic mass, it was in its turn to take 
 forms which but for the pertinacious idiosyncrasy of the Gallic 
 genius, and the Roman training to which it had been subjected, 
 it would never have taken. Frank feudalism would scarcely have 
 grown up as it did but for the pre-existence of the type of Gallic 
 society which Caesar had remarked, and the care taken by the 
 Roman governors to adapt the Gallic character to their own ends. 
 It was a rapid if not an easy process : the Salian Frank entered 
 into the place of the Roman and the Goth ; the Visigoth retired 
 soutlnvards ; tlie Ripuariaii, tlie Alemannian, and the Burgundian 
 accepted either feudal dependence or political extinction. 
 
 It was very different with Britain. The Saxons, Angles, and 
 Jutes, although speaking the same language, worshipping the 
 same gods and using the same laws, liad no political unity like
 
 Saxon Conquest of Britain. 59 
 
 tlie Franks of Clovis ; they were not moved bv one impulse or Conquest of 
 
 ... • mi (•'-!-> "i • ii -Britain. 
 
 invited by one opportunity. The conquest oi Britain was tlie 
 result of a series of separate expeditions, long continued and 
 perhaps, in point of time, continuous, but unconnected, and 
 independent of one another. It was conducted by single chief- 
 tains, who had nothing whatever in common with the nation 
 they attacked, and who were about neither to amalgamate with 
 them nor to tolerate their continued existence. They were men, 
 too, on whom the charm of the Roman name had no power, and 
 whose institutions were, more than those of the rest of the bar- 
 barians, free from Roman influences ; for three centuries after 
 the conquest the Saxons in Germany were still a puj'e nation- 
 ality, unconquered by the Franks, untainted by Roman manners, 
 and still heathen. 
 
 These separate expeditions had doubtless changed their clia- Diverse 
 
 ,. p. -!-,•• ...... I'harat'tei- of 
 
 racter in course oi time. Beginning as mere piratical visitations the expetii- 
 of the coast — such as were those of the Danes and Norsemen at a 
 later period — they had before the end of the third century called 
 forth the defensive powers of Rome, and tasked the energies of 
 the count of the Saxon shored It is not until the middle of 
 the fifth century that they assume the dimensions of conquest, 
 colonisation, migration; and when they have attained that 
 character, the progress and success of the several attempts are 
 not uniform ; each little state reaches greatness by its own 
 route, and the history of its growth makes a mark upon its con- 
 stitution. 
 
 28, If the Saxons and Angles are contrasted with the Franks Difference 
 still more are the Britons with the Gauls. Rome had laid G.iui"ml 
 a very strong hand on Gaul, and Gaul had repaid in a remark- 
 able degree the cultivation of her masters. At the time of the 
 downfall of the empire Gaul was far more Roman than Italy 
 itself; she possessed more flourishing cities, a more active 
 and enlightened church, and a language and literature com- 
 
 ' The shore infested by the Saxon pirates, not the shore coloniseii by 
 Saxons, as sometimes undeistooil. See Freeman, Norm. Conq. i. 1 1, and 
 the references given tliere; of. Selden, Mare Clausiim, lib. ii. c. 7. The 
 other view was hekl by Lappenberg (ed. Thorpe), i. 46, 47. Kemble seems 
 also to favour it, Saxons, i, 10, 11 ; Palgrave, Commonwealth, p. 3S4.
 
 6o 
 
 Constitutional Hhtorij. 
 
 [chap. 
 
 Roman civi- 
 lisation in 
 Britain. 
 
 Its extinc- 
 tion. 
 
 Weakness 
 of the 
 Britons. 
 
 Date of the 
 conquest. 
 
 Diversity of 
 growth of 
 the kinK- 
 donis. 
 
 pletely Latin, althoiigli of course far beneath tlie standard of the 
 classical ages. Britain had been occupied by the Romans, but 
 had not become Roman ; their formative and cultivating power 
 had affected the land rather than the owners of it. Here, too, 
 had been splendid cities, Christian churches, noble public works 
 .and private mansions; but whatever amount of real union may 
 have existed between the two populations ended when the legions 
 were withdrawn. The Britons forgot the Latin tongue ; their 
 clergy lost all sympathy with the growth of religious thought : 
 the arts of war had been disused, and the arts of peace never 
 thoroughly learned. The old tribal divisions, which had never 
 been really extinguished by Roman rule, rose from their hiding- 
 places ; and Britain was as fertile in tyrants after the Roman 
 conquest as it was before it. But Roman rule had disarmed and 
 enervated the people : constant foreign invasion found them con- 
 stantly unprepared, and without hope or energy for resistance. 
 They could not utilise the public works or defend the cities of 
 their masters. So Britain was easy to be conquered in propor- 
 tion as it was Romanised. A succession of calamities had 
 diminished the population, already greatly reduced by the with- 
 drawal of the dependents of the Romans into Gaul ; and when 
 once the invitation or the concessions of the British chiefs had 
 given the invaders a standing-ground in the island, the occupa- 
 tion of the eastern half at least was accomplished iu a short 
 tinted The middle of the fifth century is the approved date for 
 this settlement. Kent seems to have been won by a single 
 victory : the kingdom of Sussex was the result of the capture of 
 Anderida ; the history of Wessex is the long story of encroach- 
 ments on the native people, who retired very gradually, but 
 became stronger in resistance as they apjjroached the moun- 
 tains and the western sea, until a balance of forces compelled 
 an armed peace '^. Mercia, the country of the Southern and 
 Middle Angles, was an aggregation of many smaller settlements, 
 each apparently the result of detached Anglian expeditions. 
 
 ' Bede, II. ?'. i. 1,^-15; (Jildas, xiv, xxii; Hallam, Middle Ages, chap, 
 viii. note iv. Kendilo. Saxons, ii. 287 sq. 
 
 * See on the growth of Wessex, Freeiuau, Norm. Conq. i. 24, 25.
 
 IV.] Desolalion of Britain. 6i 
 
 Of the formation of the Nortlmmhrian and East Anglian king- 
 doms we have scarcely any of those traditional data, which, whether 
 historical or not, serve to give an individnality to the others ^. 
 The dislocated state of Britain seems, next to its desertion by Want of 
 the Romans, to have made way for the conquerors. The same weak the Britons.' 
 obstinacy which had failed to combine against invasion, refused 
 to accept the new dominion ; and the Saxons, merciless by habit, 
 were provoked by the sullen and treacherous attitude of their 
 Adctims. The Britons fled from their homes : whom the sword 
 spared famine and pestilence devoured : the few that remained 
 either refused or failed altogether to civilise the conquerors^. 
 For a century and a half after their arrival the Saxons remained Their refusal 
 
 n 11 • • ji n 1 to combine 
 
 lieathen ; for a century alter their conversion they were repelled with the 
 from communion with the Celts : the Britons retarded rather than 
 promoted the religious change which the Spaniards forced on their 
 Arian conquerors, and which Clovis voluntarily adojited to unite 
 him with his Gallic subjects. This period, instead of being one 
 of amalgamation was one of divarication. There was room 
 enough for both Britons and Saxons : the Roman cities might 
 have been homes for the one, and the woods and broad pastures 
 have furnished the others with their favourite prospects. But 
 the cities went to ruin ; Christianity became extinct, and all 
 culture with it. There were still Roman roads leading to the General 
 walls and towers of empty cities : the Roman divisions of the 
 land were conspicuous : the intrenched and fortified camps, the 
 great villas of the priiacely families, churches and burial places ; 
 but they were become before the days of Bede mere haunted 
 ruins, something like the mysterious fabrics Avhich in Central 
 America tell of the rule of a mighty race whose name is for- 
 gotten '. 
 
 It is not to be supposed that this desolation was uniform : in Local 
 some of the cities there were probably elements of continuous Ufe. 
 life : London, the mart of the merchants, York, the capital of 
 the North, and some others, have a continuous political existence, 
 
 * Freeman, Norm. Conq. i. 25, 26. 
 
 ^ Bede, H. E. i. 13-i.s ; Gilclas, xiv, xxii. 
 
 ' Kemble, Saxons, ii. 297.
 
 62 Constitutional History. [chap. 
 
 Remains of although tliey wisely do not venture, like some of the towns of 
 
 the Britons. i:> J J ^ » 
 
 Southern Frauce, to claim an unbroken succession from the 
 Roman municipality. The new race found the convenience 
 of I'eady-built houses and accumulated stores of material ; and 
 wherever the cities were sjjared, a portion at least of the city 
 population must have continued also. In the country, too, 
 especially towards the West and the debateable border, great 
 numbers of Britons may have survived in servile or half-servile 
 condition : some few of the greater men may have made, and 
 probably did make, terms for themselves, especially in the dis- 
 tricts appropriated by the smaller detachments of adventurers ; 
 and the public lauds of the new kingdoms must have required 
 
 No general native cultivators. But all these probabilities only bring out 
 
 mixture of . . . ^ . 
 
 races. more strongly the improbability of any general commixture or 
 
 amalgamation of the races. Centuries after the conquest the 
 
 Briton by extraction was distinguished by his wergild from the 
 
 man of the ruling race. It is impossible that such a commixture 
 
 could have taken place without leaving its traces on the language 
 
 or the religion. The English of Alfred's time is, except where the 
 
 common terms of ecclesiastical language come in, purely Ger- 
 
 or of institu- manic : British Christianity stood out against Saxon for a century 
 
 after the death of Augustine ; and the vestiges of Romano-British 
 
 law which have filtered through local custom into the common 
 
 law of England, as distinct from those which were imported in 
 
 the middle ages thi'ough the scientific study of law or the insensible 
 
 infection of cosmopolitan civilisation, are infinitesimal. 
 
 KarlierGer- 29. The theory that some ai)i)iTciable i)roi)ortion of the popu- 
 manic settle- _ ' ^ ^ ' ' ' ' ^ '■ 
 
 ments. lation of Roman Britain Avas already Germanic ; that the Belgae^ 
 
 or Coritani or Catieuchlani - of the island might have welcomed 
 the Saxons and Angles as distant cousins, has had learned sup- 
 porters, but has no basis either in fact or in probability. The 
 Belgae of Caesar's days were Gauls, and their British kinsmen 
 could scarcely have retained, five centuries later, any recollection 
 of a language which their fathers, if they had ever known it, had 
 fio long forgotten. It is ncilhcr impossible nor improbable that 
 on the northern and eastern coasts shipwrecks and piratic ex- 
 
 ' Palgrave, Commonwealth, pp. 26 sq. ^ Kemble, Saxons, i. 9.
 
 IV.] Welsh Antiquities. 63 
 
 ]>eilitions may have founded colonies of Germans much earher Not imiwrt- 
 
 thau the beginning of history. But to base any historical theory history. 
 
 on such contingencies is about as wise as to accept the notion 
 
 tliat the German Saxons were a colony from English Britain \ 
 
 or that the conquerors of Britain did not come from Germany, 
 
 but were a hypothetical colony from a hj'pothetical settlement 
 
 on the Littus Saxonicuni of Gaul ^. 
 
 30. Nor again can any weight be attached to the results of the Thepai-aiieis 
 
 , . . . » . . ... ofWelshand 
 
 careful uivestigation of able schohirs into Welsh social antiquities, Knslish laws 
 
 . • -I Ti> 1 I not to be 
 
 jis anectnig the present question '. If the agreement between the relied ou. 
 local machinery of the Welsh laws and the Anglo-Saxon usages 
 were much closer than it has ever been sho^\^l to be ; if the most 
 ancient remains of Welsh law could be shown not to be much 
 younger in date than the best established customs of Angle and 
 Saxon jurisprudence ; the fact would still remain that the his- 
 torical civilisation is English and not Celtic. The cantred of 
 Howel dha may answer to the hundred of Edgar, but the 
 hundred of Edgar is distinctly the hundred of the Franks, the 
 Alemanuians and the Bavarians. If the price of life and the 
 value of the compurgatory oath among the Welsh were exactly 
 what they were among the Saxons, it would not be one degree 
 less certain than it is that the wergild of the Saxons is the wergild 
 of the Goth, the Frank, and the Lombard. The Welsh may 
 in late times have adopted the institution from the English, 
 or in all the nations the common features may be the signs 
 of a common stage of civilisation ; but the kinship is between 
 the English and the German forms. The Welsh laws may be 
 adduced for illustration and analogy, but not for historical 
 
 ' The old and curious inversion of the true story which appears in Rudolf, 
 Transl. S. Alexandri, Pertz, ii. 674. 
 
 * The view propounded by Dr. A. F. H. Schaumann, Giittingen, 1845 ; 
 see K. Maurer, Krit. Ueberschau, i. 51. The tlieory of Roman military 
 colonies of German race settled in Britain at a much earlier period is not 
 improbable, but rests on very scanty evidence : for Saxon settlements of the 
 kind there can be of course no evidence. But the root of the false hypo- 
 thesis lies in each case in the misunderstanding of the name Littus Saxoni- 
 cum. See above, p. 59. 
 
 ^ Much useless labour is spent by Sir F. Palgrave on this subject in the 
 ' Rise and Progress of the English Commonwealth,' to a certain extent 
 impairing the value of that great work.
 
 64 Constitutional Kisiory. [chap. 
 
 argument. However, vre have no remains of sucli laws that are 
 not much later than the days of Alfred. 
 Effect of the 31, If it were possible to form a clear idea of the amount 
 
 couquest on ^ 
 
 the new- of civilisation which the invaders already possessed, or of the 
 comers. _ _ . . 
 
 organisation which they were to substitute for that which thus 
 
 vanished before them, we should be better able to determine the 
 
 effect which was produced on them by the process of conquest. 
 
 But as it is, only two great generalisations seem to be possible. 
 
 First, conquest under the circumstances compelled colonisation 
 
 Necessity of and migration. The wives and families were necessary to the 
 
 comfort and continued existence of the settlements. It was not 
 
 only that the attitude of the Britons forbade intermarriages ; the 
 
 Saxons, as all testimony has shown, declined the connubium of 
 
 foreign races ^ : they could not give to the strange woman the 
 
 sacred prerogative of the German woman, let her cast then* lots 
 
 or rear their children. The tie of the cognatio and the gens was 
 
 as strong as it had been of old : the new settlements were called 
 
 by Gentile names, and these names involved the retention of the 
 
 rights and duties of the mcegth. The invaders came in families, 
 
 and kindreds, and in the full organisation of their tribes : the 
 
 three ranks of men, the noble, the freeman and the Iset ^ : even 
 
 the slaves were not left behind. The cattle of their native land 
 
 were, it would appear, imported too : the store they set by their 
 
 peculiar breeds is proved by the reseai'ches into the grave-places 
 
 of the nations. 
 
 It could scarcely be otherwise, unless we are to suppose an 
 
 ' See above, p. 43. 
 
 ^ There seems to be no reason for questioning tliat the eorl, ceorl, and 
 Iset of the earliest English laws, those of Ethelbert, answer exactly to the 
 edhilin;:, the friiing, and tlie lazzus of the old Saxons. Whether the Kentish 
 laets were of German origin has been questioned. Lappenberg (ed. Thorpe), 
 ii. 324, thinks that they were 'unfree of kindred race.' K. Maurer, Krit. 
 Uebcrschan, i. 421, thinks them a relic of ancient British population who 
 come between the free wealh and tlie slave. Robertson, Scotland under 
 her Early Kings, ii. 233, regards the lest of Kent as answering to the wcidh 
 of Wessex, and therefore British. The name (lazzus = slow or lazy, 
 (irimm, K. A. ])p. 305-309) .signifies condition, not nationality. On the 
 general condition of the class, see G. L. von Maurer, Hofverfg. i. 12-18, 
 Grimm, K. A. pp. 305-309; and on their position as a part of the Saxon 
 nationality, on which their importance as illustrating the migration depends, 
 Bee above, [)](. 45 -47. The wcr-gild of the Kentish l;et was 40, 60, or 80 
 shillings according to rank, tliat of the ceorl being 200.
 
 IV.] The Migration. 65 
 
 innate propcnsion in the adventurers for reproducing one and the The coloni- 
 saiue system without historical connexion under the most different the work of 
 circumstances. The mere settlement of predatory bands without constituted 
 their homes and families must have resulted in their adoption of iiatio'n°'^ 
 the institutions of the natives, those natives being their superiors 
 in civilisation : they could not have reproduced pui'C German 
 life and language from mixed materials ; or retained their tribal 
 organisation so long and closely as they did, if it had been shat- 
 tered at starting. It was far otherwise : the tribal identity was 
 a reality boiind down to no territorial area. The ownership of 
 land Avas the outward expression rather than the basis of political 
 freedom j and even that ownership was, under the primitive sys- 
 tem, variable in its subject-matter, and in itself a usufruct rather 
 than a possession. The tribe was as complete when it had removed 
 to Kent as when it stayed in Jutland : the magistrate was the ruler 
 of the tribe not of the soil : the divisions were those of the folk 
 and the host, not of the land ; the laws were the usages of the 
 nation, not of the territory : and when they had found their new 
 homes, the Angles at least left a desert behind them ; for in the 
 days of Bede theiln^j<Zi<s,the land between the continental Saxons 
 and Jutes, whence the Angles came, still lay without inhabitant \ 
 testifying to the truth of the tradition that they had gone forth 
 old and young, noble, gentle and simple, free and slave, their 
 flocks and herds with them. We may fairly argue that the 
 amount of social and political organisation which the Saxons Amount of • 
 brought with them to Britain was not less than the sum of brouKht'by 
 common civilisation possessed by them and their German kins- * '-'colotust^. 
 folk in the eighth century, and that hatever differences existed 
 in the eighth century were due to causes which had worked in one 
 or both of the nations since the fifth. On their arrival in Britain, 
 then, the Saxons had their threefold division of ranks : they had 
 the association of the township, and that of the pagus, whether 
 or no it bore the name of hundred ; some remains of the mark 
 system of land ownership and cultivation ; the principle of 
 
 ' Bede, H. E. i. 15 : 'De ilia patria quae Angulus dicitur et ab eo tem- 
 jiore usque hodie manere desertus inter provincias Jutarum et Saxonum 
 pei-liibetur.'
 
 66 Constitutional IIisto?y. [chap. 
 
 Expansion election to public functions ; and the tie of the kindred still pre- 
 stitutfons! serving its legal rights and duties. It is unnecessary to suppose 
 that a migrating family exactly reproduced its old condition : it is 
 more probable that it would seek larger scope for extension and 
 more abundant areas of cultivation : the adventurer of the con- 
 quest might seek to found a new family of nobles : every element 
 of society vs'ould expect advancement and expansion. But all 
 allowance being made for this, the ft-amework of the older custom 
 must have been the framework of the new. No creative genius 
 can be expected among the rude leaders of the tribes of Noi'th 
 Germany. The new life started at the point at which the old 
 had been broken off. Hence we can scarcely suppose that the mark 
 system was developed, lived its life, and faded away on English 
 soiP; or that it is necessary to begin the story of English civili- 
 sation by comparing the state of Britain in the fifth century with 
 that of Germany in the first. Even if old ties were, more than 
 we need suppose likely, broken in the process of migration, the 
 names, functions, and rights of the magistrates, the principles of 
 customary law and local organisation, survived and took new 
 root and grew. 
 
 32. But in the second place, the process of migration and 
 
 of the results conquest must have produced such changes as are traceable at 
 
 ofthemifiTa- . . ^ . . " 
 
 tion. the beginning of our national history. It must have produced 
 
 royalty, and the important political appurtenances of royalty^. 
 
 The Saxons had no kings at home, but they create kingdoms in 
 
 Britain. The testimony of tradition helps to confiim what is 
 
 a sufficiently safe inference. According to the Chronicle the 
 
 Brito-Wclsh in a.d. 443 invited to Britain the Ethelings of the 
 
 Anglos: in a.d. 449, under two heretocjas, Hengist and Horsa, 
 
 the strangers came : in A.n. 455 Hengist and Aesc his son came 
 
 to the kingdom. In a.d. 495 'came two ealdormen to Britain, 
 
 ' Tlie importance of this seems to l)avo been overlooked by Kemble in liis 
 invalnalilo work on the Saxons in Enpfland. 
 
 ^ See Allen, Intjuiry into the Kise and Growth of tlie Koyal Prerogative 
 (Lond. 1S49), pp. 164, 165. ]'>ethniann-Hollwej^, Civilprocess, iv. 97, gives 
 several instances in which tlie separation of a tril)e, \>y migration, from the 
 nation to which it belongs, is followed by the institution of royalty. See 
 also Freeman, Norm. Conq. i. 74, 75.
 
 IV.] Institution of Kingshij). 6y 
 
 Cerdic and Cynric ;' in a.d. 519 they became kings of tlie West institution 
 
 Saxons. In each case the erection of the throne was probably the " "^ ^ • 
 
 result of some great victory, or of the permanent securing of a 
 
 definite territory ; but the institution was not a transference of 
 
 British royalty : the new kings are kings of the nations which 
 
 they had led to conquest, not of those they had conquered^. In 
 
 each case the son is named Avith his father as sharing in the its heredi- 
 
 n , • r T • 1 • • P11T tary charat;- 
 
 nrst assumption 01 the title, a recognition ot the hereditaiy ter. 
 character^ which is almost the only mark distinguishing the 
 German kingship from the elective chieftainship. The royal 
 houses thus founded assume a divine pedigree ; all trace their 
 origin to Woden ; and when they become extinct the indepen- 
 dence of their nation comes to an end. It would seem that the 
 change of government followed almost necessarily on the crea- 
 tion of the new nationality ; and the example of Frank conquest 
 may have led the Saxons to adopt the monarchic form. The 
 nation is no longer one of a cluster of kindred nations; it has its character 
 to assert an identity that requires a distinct representation, in^ national 
 a unity of which it has become more conscious than it was 
 before. It can no longer safely endure divided command, it 
 must have a king who can deal with kings. Unquestionably 
 individual prowess and ambition determined the change, but 
 these deeper causes must have led the people to acquiesce in it. 
 For a hereditary king, however limited his authority may be by Advantages 
 constitutional usage, is a stronger power than an elective magis- royalty. 
 trate : his personal interests are the interests of his people, 
 which is in a certain sense his family : he toils for his children, 
 but in toiling for them he works also for the people whom they 
 will have to govern ; he has no temptation to make for himself 
 
 * The origin of roy.alty is regarded by Kemble .as ' rooted in the Germ.an 
 mind and institutions,' Saxons, i. 137; so also Bethmann-Hollweg, Civil- 
 process, iv. 84. Allen regards it as repugnant to the genius of the Germans 
 and .as a phantom borrowed from imperial Rome (Hist. Prerog. p. 14). The 
 conamon theory that it was the work of the comitatus of a successful adven- 
 turer seems to rest on a mis.apprehension of the nature of the comitatus. 
 
 ' Bethmann-Hollweg, Civilprocess, iv. 94, 96, holding that nobility gave 
 a title to the office of princeps, questions whether the hereditary succession 
 was peculiar to royalty, and finds the differentia of monarchy in the head- 
 ship of the collective people, as above. 
 
 F 2
 
 68 Comtituiional History. 
 
 Superiority or them a standing-ground apart from liis people. He is trusted 
 
 of the king _ ., ^^ ,\ ,,,, 
 
 to the also With greater power : he becomes the regular leader of the 
 
 princeps, a host, or if disabled by age, its guide and counsellor : he under- 
 adopting takes the maintenance of the national peace, and executes justice 
 on the breakers of it ; his power is co-ordinate Avith that of the 
 national council, not subordinate to it, or a mere part of it. 
 Altogether his position is stronger and moi-e dignified than that 
 of the princeps. He enters at the same time into a share of the 
 common stock of the historic dignities of kings. More can 
 scarcely be affirmed until we come to ages in which we have 
 clearer data.
 
 CHAPTER V. 
 
 THE ANGLO-SAXON SYSTEM. 
 
 33. Anglo-Saxon system. — 34. Continuity of terminology. — 35. Allot- 
 ment and division of land. — 36. Primitive tenure. — 37. Ranks and 
 classes of men. — 38. The family. — 39. The township. — 40. The parish. 
 — 41. Tithing and frankpledge. — 42. The dependent township. — 43. 
 Court of the township. — 44. The burh. — 45. The hundred or wapen- 
 take. — 46. The hundred court. — 47. The Liberty or soken. — 48. The 
 shire. — 49. The ealdonnan and sheriff. — 50. The shiremoot. 
 
 33. We are scarcely justified in applying the name of system TUeAngic- 
 
 ., ii'ii ii- r Saxon sys- 
 
 to any theoretical arrangement, by which the several notices ot tem. 
 constitutional matters, scattered through the Anglo-Saxon his- 
 tories, laws, and charters during a period of six centuries, can 
 be harmonised. To do so would be to disregard both the 
 development which certainly took place in the national character 
 and organisation, and the several disturbing causes which gave 
 to that development some part at least of its character. On 
 the other hand, as we have scarcely any materials for determin- 
 ing the steps of such advance, and as at the close of the period 
 we find only such organic differences between the common 
 ])olity of the earliest and that of the latest ages as can easily be 
 accounted for, we are at once compelled to fall back ujion such 
 a general theory, and are to a certain extent justified in the 
 speculation. The disturbing causes, though startling, are not 
 permanently potent ; and they proceed from agencies closely 
 analogous to those already at work in the normal action of 
 society; the Danish conquest, and even the Norman, hastens and 
 precipitates events that are already working to completion. But 
 the developments themselves are not very striking^; they are the 
 
 * See further on, Chapter VII.
 
 70 
 
 Constitutional History. 
 
 [chap. 
 
 Correspond- 
 ence of the 
 Latin and 
 Enprlish ter- 
 minology. 
 
 greatest in the upper ranges of the fabric and leave the lower, 
 in which we trace the greatest tenacity of primitive institutions, 
 and on which the permanent continuity of the modem with the 
 ancient English life depends for evidence, comparatively un- 
 touched. It is possible then to gather into two or three general 
 groupings most of these features and their known developments. 
 34. In attempting to draw such a sketch of the system and to 
 trace its connexion Avith that of the Germania, Ave have the great 
 advantage of being able to use a distinct and intelligible termin- 
 ologj". Hitherto we have been indebted for all our information 
 to Latin authors whose nomenclature could not be safely re- 
 garded as more than analogous to that of the ancient Ger- 
 mans, and we consequently run a certain risk in arguing ft-om 
 their expressions as if they had an ascei'tained and invariable 
 definite force. It would be at first sight somewhat rash to 
 argue from the use of such words as princeps, dux, pagus, vicus, 
 concilium, civitas, nobilis, and servus, either that they always 
 involve the same idea, or that that use is altogether unafi'ected by 
 their common application to Eoman ideas. Is the Avord pnnce2)s 
 a definite translation of some German Avordl is it a mere 
 general expression, like our 'prince' or 'chieftain,' that may 
 cover a number of merely analogous relations, or has it an im- 
 plicit relation to some Roman function, having been applied to the 
 German in consequence of some fancied resemblance 1 It is most 
 fortunate for us, as Ave haA-e to rely on Caesar and Tacitus, that the 
 former was obliged by circumstances to fonn a clear notion of the 
 differences of the barbarian systems Avith Avliich he Avas brought 
 in contact ; Avhilst Tacitus Avrote from singularly good iuforma- 
 tion, and is unrivalled as a writer for clearness of perception 
 and distinctness of ex])rcssion. The confidence Avliich Ave derive 
 from their consistent and precise use of Avords is borne out fully 
 Avhen Ave come to the investigation of later authorities. In the 
 Ecclesiastical History of Bede Ave find the very same Avords 
 used and in the same senses. Bede, Avriting in a foreign lan- 
 guage, would be even more likely than Caesar and Tacitus to use 
 the same Avords to express the same things ; and, having a great 
 acquaintance Avith classical Latin, Avould probably use also the
 
 \.] Transfer of German Institutions to Britain. 71 
 
 most approved Avords. The princejys, dux, nobilis, vicus of Bede Link 
 
 uio the princeps, dux, nobilis, vicus of Tacitus. A hundred and Tacitus and 
 
 Alfred. 
 
 iifty years after the death of Bede his History was ti^anslated 
 into English, most probably under the eye of Alfred ; and in 
 this translation again the same English Avords are used regu- 
 larly and almost unifoi'mly as giving the sense of the same 
 Ijatin. As the functions of the offices thus denoted are .the 
 same in the History of Bede and in the laws of Alfred, we have 
 a link between the primitive and the medieval systems which no 
 criticism is strong enough or sharp enough to sever. 
 
 35. The exact process by which the transference of the Ger- Uncertainty 
 
 .... ,-n'' (f , ^ • 11 .of the exact 
 
 man institutions to Britain was etiectea is not recorded : nor is process of 
 
 it necessary to suppose that it was uniform in the several states 
 and settlements. In some cases it may have been accomplished 
 by unconnected bands of squatters, Avho took possession of an 
 uninhabited tract, and, rej)rodiicing there the local system of 
 their native land, continued practically independent until the 
 whole surrounding districts were organised by a central state- 
 power. In other cases, the successful leader of a large colony 
 or a victorious host, having conquered and exterminated the 
 natives, must have proceeded to divide their land according to 
 u fixed scheme. The principle of this allotment he would find 
 la the organisation of his host. That host was the people in 
 iirms, divided into hundreds of warriors, sustained and united 
 by the principle of kindred. When the war was over the host 
 became again the people : the hundreds of warriors^ would 
 require a territory in the new land to compensate them for 
 what they had left in the old, and this when allotted to them The regular 
 they would subdivide according to the divisions of the kindreds : ments result 
 and in such case the Anglo-Saxon village might reproduce the pieted con- 
 name, the local arrangements, the very personal relations of*^"^*" 
 the German home. The isolated settlements would be then 
 incorporated and receive a share of political rights and duties. 
 A regular and authoritative division would prevent tribal quarrels 
 
 ^ The non-existence of the territorial hundred among the continental 
 Saxons, even if proved, does not affect the organisation of the hoot iu 
 hundreds. See above, p. 56,
 
 73 
 
 Constitutional History. 
 
 [chap. 
 
 Convenience for the possession of the best districts, and would maintain the 
 of a general . , , ... . . , . , 
 
 allotment, national strength, the military organisation which, on the hypo- 
 thesis of a haphazard and independent appropriation, must have 
 broken up and perished long before the necessity of defence was 
 past. This principle of allotment would do no violence to the 
 pride or ambition of a German host^; in the time of Caesar, it 
 was thus that the chieftains of the tribes provided for the annual 
 resettlements of the pagi ; and long after the Saxon migration, 
 it was the rule with the Norsemen^. As the Yandals in the 
 fifth century divided pro-consular Africa^, as the Norwegians 
 in the tenth divided Iceland*, as Halfdane in the ninth 
 divided Northumbria, so in the fifth and sixth centuries the 
 kingdoms of Wessex and Kent must have been portioned out^ 
 It does not follow that the division was in exact proportion and 
 symmetry ; that every kindred contained the same number of 
 households, or that every pa jus or ' hundred ' contained the 
 same number of townships : or that the early independent 
 settlements were reduced to an equality of area with the newer 
 and more regularly constituted ones. The number of acres 
 assigned to each family may well have been determined by 
 exact rules, but the district assigned to the toAvnship as a whole 
 may have been marked out by natural boundaries. The centenae 
 or hundreds of the host, which in Tacitus's time had become an 
 indefinite number, may have been still compelled to maintain 
 a corporate completeness, and yet have occupied in peace areas 
 of very different cliaracter and dimensions. A perfect and 
 
 Allotment 
 not neces- 
 sarily uni- 
 form. 
 
 * It is unnecessary to refer to the system of tripartite division adoi)te(l 
 by the Burgundians and other conejuerors of the IJoman empire on the 
 continent, for there are no traces of such a jdan in England. See on them 
 Savigny, Kcim. Recht im Mittelalter, i. 296, 300,310, 331 ; Hallam, Middle 
 Ages, i. 146; Allen, Prerogative, pp. 193-195. 
 
 '■' Godred divided the Isle of Man by lot ; Kemble, Saxons, i. 90. 
 
 ' Gibbon, viii. 227, 228; G. L. von Maurer, Einleitg. p. 72. ' Exer- 
 citui Zi'UgitanaiM vel proconsularem funiculo hereditatis di visit.' Victor 
 Viten.sis, Hist. purs. Vaud. i. 4. So tlie tradition of Normandy, ' ill. am 
 terrani suis fidolibus funiculo divisit.' Dudo, p. 85 ; Thorpe's Lappenberg, 
 iii. 18. The term funiculus Jureditatis is borrowed from the Vulgate, 
 Dfut. XXX. 9; I's. civ. 11. 
 
 * Above, J). 56. 
 
 ' Mercia was partly divided the following year, Chr. Sax. a.d. 876, 877.
 
 v.] Allotment of Land. 73 
 
 symmetrical division of the whole land would be possible only Importance 
 
 •' ^ of the public 
 
 on the theory that the colonisin<j people were numerous enough lands in this 
 
 7 111- point, 
 
 to occupy it. That they were not is proved by the existence 
 
 of the public lands, which down to a late period form a con- 
 spicuous and peculiar feature of Anglo-Saxon polity. Ultimately 
 no doubt a territorial arrangement of hundreds and townships 
 did cover the land exhaustively ; but that result was attained 
 only when the personal basis of the hundred was entirely lost 
 sight of, and the term had a geographical application only. 
 Then the judicial organisation of one hundred extended to the 
 borders of the next, the public lands were included within the 
 same organisation, and the name of hundred ceased to have 
 any numerical signification. So the inequality of the existing 
 divisions may partly be accounted for \ 
 
 The existence of the classes of nobles, freemen, and Isets, Existence of 
 
 . , , . unequal 
 
 among the conquerors, would seem further to imply the existence estates. 
 
 of larger and smaller private estates^. The extent of the land 
 
 unappropriated to the simple freemen must have left it open 
 
 for the new king to reward his chief followers with extensive 
 
 grants, even if they did not from the first claim a larger share 
 
 in the allotment. On these domains and on the public land, The l.-etic 
 
 . and native 
 
 the lasts would find their home and occupation : the remnants cultivators. 
 of the native race would find more lenient treatment than they 
 could expect at the hands of the common freeman, and might 
 return as cultivators to the land which had been their own. 
 But although such estates are found existing as soon as docu- 
 mentary history begins, their origin cannot be safely referred to 
 this cause only ; for even if absolute equality were the rule in 
 the original division, the extinction of families and the transfer 
 of small estates might easily throw an accumulation of land New estates 
 into the hands of a single owner ; and on the other hand the the public 
 public laud afforded a supply from which new properties might 
 be carved continually, without any regard to size. In all 
 respects except those resulting fi'om ownership these estates 
 might be, and seem to have been, regulated by the same machi- 
 nery as the townships of simple freemen ; but the relations 
 ' See further, § 45, p. 96, below. ^ Cf. Gneist, Verwaltungsrecht, i. 4.
 
 74 
 
 Cofistittcfional Histoiy. 
 
 [CHAJ. 
 
 General 
 theory of 
 allotment. 
 
 Question of 
 
 Iirimitive 
 
 tenure. 
 
 of the cultivator of another man's hxnd to his lord belong to 
 another portion of our investigation. 
 
 The general conclusion at which we arrive is that there must 
 have been, over a large portion of each colony, a regular allot- 
 ment of land to the bodies of colonists united in their native land 
 by the tie of blood or of neighbourhood, and for the moment 
 represented by the divisions of the host^; that these allotments 
 varied according to the numbers of the kindred, the portion 
 assigned to a single family or house being a hide of land"^ ; that 
 besides these the nobles or other great men received grants of 
 estates, or perhaps attached themselves to the political centre on 
 the condition of retaining estates which they had already 
 appropriated; and that the surplus land remained the common 
 property of the nation. This surplus land during a long period 
 after the first invasion would go on increasing as the Britons 
 were diiven farther west^^'ard : after the conversion it fiu'nished 
 the stock from which the monasteries were endowed, and by 
 grants to them and to individuals it was much diminished, until 
 finally it became mere demesne of the king. 
 
 36. The question of the primary allotment leads directly to 
 that of the ])rimitive tenure. The possession of land was, even 
 whilst the idea of nationality was mainly a personal one, the 
 badge, if not the basis, of all political and constitutional right. 
 On it depended, when the personal idea yielded to the ten-itorial, 
 
 * Kenible, Saxons, i. 69-71, 125. 
 
 ^ On the vexed question of the extent of the hide it is not necessary here 
 dilate ; Kemble, Saxons, i. 88 sq., attempts to fix it at thirty -three acres 
 or thereabouts, or 1 20 acres of a size one-fourth of the present acre. But 
 although his ar;:;uineut obviates many difficulties, it opens the way for 
 many more. The mansus, niansa, manens, cassatuni, terra aratri, of the 
 charters are all interpreted to mean tlie same thing, although they may 
 have had local differences. See Robertson, Historical Essays, pp. 88-102 : 
 G. L. von Maurer, Eiideitg. p. 120. The later hide was no doubt i 20 or 100 
 acres. Grimm, R. A. p. 535, gives several passages in which the German 
 hoha is made to contain thirty or forty acres. It is passible that some of 
 tlie greatest inconsistencies in the use of these words may arise from their 
 being used to express tlie whole sliare of one man in all the fields of his 
 village. A liide of tliirty acres in a system of common cultivation would 
 represent sucli an alldtment in each of the cultivated areas, i.e. if there 
 were four cumnion fields, it would be 120 acres. l>ut this will not explain 
 all ; and local and national peculiarities, as well as variations at different 
 times, and differeuces iu the quality of tlie land, must be taken for granted.
 
 v.] Tenure of Land. 75 
 
 the rights uud obligations, the rauk, value and crcilihility of the Importance 
 member of the body politic ; it became the basis as well as the chanictci- of 
 
 tenure* 
 
 tangible expression of his status. According to the tenure by which 
 it was held \evy much of the internal and external history of the 
 nation changes its aspect. It is wrong to suppose that an early 
 stage of society is favourable to simplicity in determining the 
 character of tenure and the relations dependent upon it. Simple 
 as the origin of property may have been, we have no historical 
 data concerning it, and when the subject does come within the 
 ken of history, it is anything but simj)le and uniform. In the 
 early Germanic system it is difBcult, as we have seen, to prove the 
 existence, except by way of inference, of any determinate property 
 in severalty : the original gift comes from the community of 
 which the .receiver is a member, the gift is of itself mainly of 
 the character of usufruct, the hold is ideal rather than actual ; 
 except in his own homestead the freeman can but set his foot 
 on the soil and say, ' this is mine this year, next year it will be 
 another's, and that which is another's now will be mine then.' 
 It is only by way of inference that we discover that there must 
 have been larger and smaller properties ; the larger held by 
 those who had to support a larger household, the magistrate 
 with his comitatus, or the noble with his great train of kinsmen. 
 Without conjecturing how the change took place, we may safely Absolute 
 
 • /> 11 ownership 
 
 assume that, although traces still remain of common laud tenure the rule in 
 at the opening of Anglo-Saxon History, absolute ownership of times. 
 land in severalty was established and becoming the rule. We 
 may then regard the land as referable to two great divisions : Private ami 
 that which was held by individuals in full ownership, and that of P" '" '^ 
 which the ownership was in the state ; the intermediate case 
 of lands held by local communities in common, and used in 
 common by the owners of land as appurtenances to their several 
 estate, may be for the moment put out of sight. The land held 
 in full ownership might be either an ' ethel \' an inherited or 
 
 ' Elhcl is used here on the authority of Kemble, Grimm, !M:iurer and 
 other writers on land ; but whenever the word occurs in history it is equi- 
 valent to ' patria,' and has no special reference to landed estate. See Bede, 
 H. E. iii. I, S, 9, 28, &c. &c.; and the Anglo-Saxon Gospels.
 
 76 Constitutional History. [chap. 
 
 The alod, otherwise acquired j)ortion of original allotment ; or an estate 
 land. created by legal process out of the public land. Both these are 
 
 included in the more common term 'alod'*; but the former looks 
 for its evidence in the pedigree of its owner or in the witness 
 of the community, while the latter can produce the charter or 
 book by which it is created, and is called 'bocland'^. As the 
 primitive allotments gradually lost their historical character, as 
 the primitive modes of transfer became obsolete, and the use of 
 written records took their place, the ethel is lost sight of in the 
 bookland^. All the land that is not so accounted for '\sfolcland, 
 Public or or public land : it comprised the whole area that was not at the 
 
 foikland. • . , ,, . •, .,..,, .,. , 
 
 original allotment assigned to individuals or communities, and 
 
 that was not subsequently divided into estates of bookland. The 
 
 foikland was the standing treasury of the country : no alienation 
 
 of any j^art of it could be made without the consent of the 
 
 national council ; but it might be allowed to individuals to hold 
 
 portions of it subject to rents and other services to the state, 
 
 The 'trinoda from which the owners of bookland were exempt, except in the 
 necessitas.' 
 
 three cases of ihefyrd or military service, the repair of bridges, 
 
 and the maintenance of fortifications*. These estates of foikland 
 
 * The word alod does not occur in Anglo-Saxon documents before the 
 eleventh century, when it appears in the Latin of Canute's laws in the 
 Colbertine MS. as the equivalent of hocland or hereditas. Schniid, Gesetze, 
 &c. p. 261. 
 
 ^ The different explanations of foikland and bookland, given at different 
 periods, are collected by Schniid, Gesetze, &c. p. 538. Spelnian thought 
 that bookland implied a written title, whilst foikland was based on the 
 witness of the people. Verelius interpreted bookland as feudal ; Phillips 
 thought bookland feudal, and foikland alodial ; and was followed by 
 Griiiini and Gaupp. Even Palgrave connected foikland with the odal, 
 and bookland with Itenland. On the other hand, Somner, Lambard, Lye, 
 and other antiquaries, considered bookland to be freehold held under 
 charter, foikland to be held at the will of the lord. The view now 
 accepted was established by Allen, On the Prerogative, pp. 125-153; 
 Kemble, Saxons, i. 289 ; K. Manrer, Krit. Ueberschau, i. 69, 107 ; Hallam, 
 Middle Ages, ii. 406-410 ; Gtieist, Verwaltungsrecht, i. 4. 
 
 ' Boclaud is the term used in Alfred's Bede as equivalent to possessio or 
 possessiuncula. Borlanda ahte is posxessiones pi'uedionim, H. E. iii. 24. 
 In the Latin of Alfred's laws (art. 41), it is terra hereditaria ; in Athel- 
 stan, vi. i, it is terra te4amcntalin\ in Edgar, ii. 2, it h fcuduvi; in 
 Ethelred, I. i. 14, libera terra; in Canute, i. 11, hereditas or alodium, 
 though the passage is a mere re-enactment of Edgar, ii. 2 (fcndum) ; in 
 Canute, ii. 77, tcJTa hereditaria; in other places the vernacular is retained. 
 
 * The trinoda nec(;ssitaB first ap))cars in genuine Anglo-Saxon charters 
 about the beginning of the eighth century. It occurs liowever earlier in
 
 v.] The Free and the JJnfree. 77 
 
 may have been for a life or lives, or subject to testamentary dispo- Foikiand, 
 
 -. , ,, p ,, 1 1 L ii 1 • distinct from 
 
 sition, accoruing to the terms of the grant ; but the ownership royal estate. 
 continued to reside in the state, and the proceeds to furnish the 
 revenue. The foikiand was, although in strict analogy with the 
 common lands of the township in the mark system, peculiar to 
 England^; in the other Germanic kingdoms there seems to have 
 been no difference between the royal demesne and the other lands 
 of the nation. Here the king himself could not appropriate a 
 part of the foikiand without the consent of the witenagemot. 
 
 Either bookland or foikiand could be leased out by its holders ; Diversity of 
 and, under the name of Icenland^, held by free cultivators : the cultivators. 
 gi'eater owners could so let their distant estates to hereditary 
 dependents, such as Isets and freedmen, whilst their home farm 
 was cultivated by hired labourers or by slaves. The multiplicity 
 of ranks in the cultivating classes, which was thus engendered, 
 according to the legal status of the individual, his relation to the 
 landlord, the extent or character of his holding, and the nature 
 of his service, produced the somewhat bewildering nomenclature 
 
 disputed ones, e.g. a.d. 6i6, Cod. Dipl. dcccclxxxiii. It is mentioned in the 
 act of the council of Clovesho of A.D. 742, Councils, &c. iii. 341 ; and in a 
 charter of Ethelbald, issued at Godmundesleah in A.D. 749, ibid. p. 386. 
 It occurs two or three times in charters of OfFa, more frequently in those 
 of Kenulf, and becomes very general after the time of Egbert. Tlie cor- 
 responding obligations in the Frank empire are attendance on the host, 
 repairing of roads, fortifications, and bridges, and watch. Waitz, D. V. G. 
 iv. 30, 31. This is called by Charles the Bald ' antiquam et aliarum gentium 
 consuetudinem ;' and although first traceable on the continent in the reign 
 of Charles the Great, is probably much older in custom ; but the argu- 
 ments which refer it to Roman origin want both congruity and con- 
 tinuity. The nearest approach to it is in a law of a.d. 423, in the code 
 of Justinian, xi. 74. § 4: ' igitur ad instructiones reparationesque itinerum 
 pontiumque nullum genus hominum nuUiusque dignitatis ac venerationis 
 meritis cessare oportet.' Mr. Coote, in his ' Neglected Fact,' has argued 
 with great learning and ingenuity for the Roman origin : he refers further 
 to Code viii. 12, §§ 7, 12, iS, Cf. Pearson, Middle Ages, i. 266; Robert- 
 son, Scotland under her Early Kings, ii. 337. 
 
 ^ The Lombards had public or state land.s, the disposal of which was at 
 the pleasure of the king. The Vandals gave their king a separate allot- 
 ment of very great extent. Among the Franks and other conquering races 
 all the land not in private hands was royal property. Waitz, D. V. G. iv. 
 239, 240; Sohm, Fr. R. G. V. i. 31-34. 
 
 ' Kemble, Saxons, i. 310-326 ; K. Maurer, Krit. Ueberschau, i. TO4-107. 
 Probably foikiand let out at rent was called gafol-land, but the term may 
 have extended to all lands for which rent or taxation in lieu of service was 
 taken. See Robertson, Historical Essays, pp. 102-112.
 
 78 
 
 Constitutional History. 
 
 [chap. 
 
 Question of 
 freedom. 
 
 Slavery a 
 primitive 
 institution. 
 
 Classes of 
 slaves. 
 
 that meets us in Domesday-book ; and tliese have an impor- 
 tance of their own in social history. 
 
 37. There is no department of Anglo-Saxon law which presents 
 gi'eater difficulties, or has been more variously viewed, than that 
 of status. In one aspect all men are free except the slave pure 
 and simple who is his master's chattel. In another all are unfi'ee 
 except the fully qualified freeman, the owner of land for whicli 
 he owes no dependence on another^ ; all who stand in the 
 relations of personal dependence, however entered and however 
 terminable, are regarded as unfree. The former view appears 
 the more simple and true. 
 
 It cannot be denied that slavery in the strictest sense was an 
 early, if not a primitive, institution of the race. Tacitus knew that 
 the slave had no remedy against the violence of his master ; even 
 his life could be taken with impunity. And in the earliest English 
 laws such slaves are found ; the theow~ or slave simple, whether 
 weaJh — that is, of British extraction captured or purchased, — or 
 of the common CTCrman stock descended from the slaves of the first 
 colonists : the esne^ or slave who works for hire ; the wite-theoio* 
 who is reduced to slavery because he cannot pay his debts ; the 
 man who has sold himself or his children to avoid starvation' ; 
 
 * Savigny, R. E. i. 235. This is Kemble's view (Saxons, i. 122 sq.), 
 but seems to be exaggerated by him beyond reasonable dimensions. He 
 treats tlie wife and son as unfree in relation to the father, as being in his 
 mund. K. Maurer however lays it down as a principle that ' only the free 
 can stand in mund : the unfree can stand only in possession ' (gewere = 
 seizin). Bethmann-Hollweg explains the mund as covering the relations 
 of lord and unfree as well as husband and wife, father and child. Civil- 
 process, iv. II. Waitz thinks it best to describe the dependent class 
 (Horige, laets, &c.) as neither free nor unfree. D. V. G. i. 176. See 
 K. Maurer, Krit. Ueberschau, i. 405 sq. ; Sohm, Fr. R. G. V. i. 359. 
 
 * Theow, from the same root as dienen, to serve ; Grimm, R. A. p. 303 ; 
 Scbmid, Gesotze, &c. p. 669. 
 
 ^ £me (Gothic asncia), an unfree hireling. Grimm, R. A. p. 304. 
 KemVjle, Saxons, i. 215, considers the esne as superior in position to the 
 theow. See, however, Schmid, Gesetze, &c. p. 568, who regards vir, juvenis, 
 as the original meaning. 
 
 * Wite-theow, possibly the man who is reduced to slavery as not able to 
 pay the fines by which the breach of the peace is redeemed ; so that he is 
 in a state of j)enal servitude. See Schmid, Gesetze, &c. p. 679 ; K. Maurer, 
 Krit. Ueberschau, i. 409. 
 
 * There is in Kemble, C. T>. dccccxxv, a manumission of several men who 
 had ' bowed their heads for niwit in the evil days.' Theodore's Penitential 
 (Councils, &c. iii. 202) allows this voluntary servitude.
 
 v.] The Slaves. 79 
 
 the slave who works in his master's house and the slave who The slave is 
 works on tlie farm : all are regarded as a part of the stock of chattel, 
 their owner and are valued according to their importance to him : 
 their offences against a third person he must answer for, as for 
 the mischief done by his cattle : they have no wergild, no credi- 
 bility, no legal rights; wTongs done to them are regarded as 
 done to their master. In some respects the practice of the law 
 is better than the theory : the slave is entitled to his two loaves 
 a day^, and his holydays are secured to him^; he can pui-chasc 
 
 his freedom with savings^ which in some unexplained way the Slavery 
 
 . 1 . • 1 1 /• hereditary. 
 
 law has allowed him to keep, and the spiritual law can enforce a 
 
 penance on the master for illtrcating him. But his status 
 
 descends to his childi*en ; all his posterity, unless the chain is 
 
 broken by emancipation, are born slaves *. 
 
 If the status of the free be held to include all who have lec^al The fully 
 
 free: 
 
 rights, the class may be divided, first, into those who have land landed or 
 
 lundJcss* 
 
 of their own, and those who have not. Of the former the law 
 
 can take immediate cognisance, they have a tangible stake in 
 the community through which the law can enforce its obliga- 
 tions. Of the latter it can take cognisance only mediately, The landless 
 through some person whom the law can touch, and they are have a lord, 
 therefore compelled to put themselves in dejiendence on some 
 one with whom it can deal as answerable for their forthcoming. 
 The relation of dependence on a lord may however be entered 
 into by a free landowner for the Siike of honour or protection '. 
 
 ' ' Seven hundred and twenty loaves, besides morning meals and noon 
 meals.* Dialogue of Salomon and Saturn, ap. Kemble, Saxons, i. 38. 
 
 * By Ini's law a slave working on Sunday at his master's command 
 became free (Ini, § 3). See also Canute, Sec. 45 ; Ethelred, vii. 2, § 2 ; 
 Alfred, § 43 ; Theodore, Penit. ii. 13, § 3. ' Non licet homini a servo tol- 
 lere pecuniam quani ipse labore suo adquesierit.' Councils, &c. iii. 202. 
 
 * Kemble, C. D. mcccH : a slave buys his own liberty of the abbot of 
 Bath ; others buy their own children. See also dccccxxxiv, &c. 
 
 * On Anglo-Saxon slavery see Kemble, Saxons, i. 185-225 ; Sharon 
 Turner, Hist. Ang.-Sax. ii. 96-102. 
 
 ' This practice is traceable throughout Anglo-Saxon history from the 
 hlafeta, the bread-eater of the hlaford or bread-giver (Ethelb. § 24), to 
 the liber homo of Domesday, ' terram tenens et quo vellet abire valens,' 
 who ' suminisit se in manu Walterii pro defensione sua '; i. 36. Bat the 
 practice of commendation in England was generally the result of the police 
 origan isation, not of the land system. See Chapter VII below ; Gneist, 
 Self-government, i. 42 ; Verwaltungsrecht, i. 11, 12,
 
 8o 
 
 Constitutional History. 
 
 [chap. 
 
 Classes of 
 dependent 
 freemen. 
 
 Classes of 
 landed free- 
 men. 
 
 The dependent class thus includes a great variety of relations ; 
 the comitatus or personal following of the king or ealdorman ; 
 all freemen hired as household servants or field labourers ; the 
 rent -paying tenants of other men's lands ; and the hereditary 
 dependents who have personal rights, the Isets and the freedmen : 
 the landless, the homeless, the kinless, must all seek a lord whose 
 protection is to he secui'ed by voluntary service, who is respon- 
 sible for their appearance in the law courts, and who in some 
 cases exercises an actual jurisdiction over them ^. 
 
 The fiilly qualified freeman who has an estate of land, may be 
 of various degrees of wealth and dignity, from the ceorl with a 
 single hide, to the thegn with five hides, a place in the king's hall, 
 a bell-house and burh-geat seat ; to the still more powerful man 
 who has ' thriven to eorl-right,' or who has his forty hides^; to the 
 ealdorman and the etheling. He may be a simple husbandman 
 or the lord of a soken and patron of hundreds of servants and 
 followers. The cross division according to blood and wergild 
 
 ^ Konrad Maurer, Krit. Ueberschau, i. 415 sq. The law of Athelstan, 
 ii. § 2, is as follows : ' Et diximus de illis, qui dominos non habent, de 
 quibus rectum difficile conquiritiir aut nullum; praecipiatur cognationi 
 eorum ut eos ad rectum adducat et dominum eis inveniat in conventu 
 publico.' Maurer points to the Edictum Pistense of Charles the Bald as 
 a parallel (a.d. 864), § 6 : ' Quidam leves homines de istis comitatibus 
 qui devastiiti sunt a Nortmannis, in quibus res et mancipia efc domos 
 hahuerunt, quia nunc mancipia et domos non habent, quasi licenter malum 
 faciunt ; et quia non habent domos ad quas secundum legem manniri et 
 banniri possint, dicunt quod de mannitiono vel bannitione legibus compro- 
 bari et legaliter judicari non possunt.' The count is therefore to send a 
 missus into the district and ' si neoesse fuerit ipse in forbannum mittatur 
 qui ad justitiam reddendam venire noluerit.' Athelstan's law continues 
 ' et si hoc efficere nolit vel non possit, ad tenninum sit Ule forbannitus 
 deinceps :' the ]iarallel seems more than accidental, although the remedial 
 measures are different. In Iceland every one wl)o is not himself settled as 
 a peasant pr()])rie(or must choose himself a domicile (gri'S.) Maurer, 
 p. 427. The Capitulum of a.d. 847, 'Voluraus etiam ut unusquisque 
 liber homo in nostro regno scniorem qualem voluerit in nobis et in nostris 
 fidelibus accipiat,' morely gives the liberty of choosing a lord, does not 
 enforce it as a duty. Waitz, U. V. G. iv. 234. The Capitula Lombardorum 
 afford a better parallel : ' Et quia sunt nonnulli qui sine proprietatibus in 
 regno nostro degentes judicia comitum etfugiunt, atque non habentes res 
 aut Hubstantiam quibus constringi j)ossint, ideo circumquaque malitias exer- 
 cere non cessant, de illis nobis jilacuit ut ipsi cum (piibus videntur manere 
 aut eos pracsentent aut pro eorum miilefactis rationem reddant.' Waitz, 
 D. V. G. iv. 363. 
 
 ' Ranks ; ydimid, Gesetze, &c. p. 389.
 
 v.] The Family. 81 
 
 affects both classes of the free : the noble may be forced to have Gradation of 
 a lord, the ceorl having land may dispense with one. The 
 eorlcundman is wortli his high wergild even if he be landless : 
 the ceorl znay. attain to thegn-right and yet his children to the 
 third generation will not be gesithcund^. But there is no 
 impassable barrier between the classes : the ceorl may become 
 thegn-worthy, and the thegn eorl-worthy^. And there are 
 gradations in every class ; four lauks of the eorlcund, and 
 three of the Isets ; three even of the household slaves^. The 
 great distinction however is that of wealth, the landless ceorl is 
 little better off" than the slave, except that he may choose his 
 own master. 
 
 38. The primary element which the law regards is the land- importance 
 owning freeman ; the first relation in which he stands is that of reiationTx ^ 
 the family*. The political importance of the tie of kindred is in Germany, 
 prehistoric : the early Germans were associated in families for 
 the service of the host and for the occupation and cultivation of 
 land, but the family had no jm-isdiction over its o\vn mem- 
 bers, nor any representation in the state. So also in England, 
 it is probable that all the primitive villages in whose name the 
 patron}nnic syllable ing occurs were originally colonised by com- 
 munities united either really by blood or by the belief in a common 
 descent'' : but the legal relations were for most purposes merged 
 
 ' Wer-gilds, Schmid, Gesetze, p. 399. 
 
 * Ibid. p. 389. 
 
 ' Laws of Ethelbert, § 75, mentions four classes of the eorlcund ; § 26, 
 three classes of Isets; §§ 11 and 16, three classes of theows. 
 
 * K. Maurer, Kritische Ueberschau, i. 52-62. The view of Kemble 
 (Saxons, i. 234 sq.) seems to exaggerate the political importance of the 
 mcEghurh, at least if it refers to ^nglo-Saxon institutions however early. 
 See also Robertson, Scotland under her Early Kings, ii. 309-340 : where 
 likewise far too much latitude of conjecture is taken. As for the im- 
 portance of the principle in the development of the Gennan state-system 
 generally, the views of Sybel are combated by Waitz, Das Alte Recht, 
 pp. 126, 127; Deutsche Verfassungs-Geschichte, i. 50-56 sq., and re- 
 jected by K. Maurer, Kritische Ueberschau, i. 61. It is true that in the 
 nom.ad state the fomily bond is the only trustworthy one, but the Germans 
 had passed that stage when they entered history. Still there are sufficient 
 vestiges of the prior importance of the principle to make the inquiry 
 valuable. 
 
 * On this and on its connexion with the Slark system see Kemble, 
 Saxons, i. 58 sq. and Appendix A.
 
 8z Constitutional Histori/. [chap. 
 
 already in those of the township or the mark, and the political 
 weight of the kindred was accidental only. Yet significant 
 traces of the old importance of the bond remain : as in the 
 Duties of the Germania the kindred have a share in the fines paid for the 
 wrongs of theu* kinsman^ so in England the msegih share in 
 the wergild paid for their slain brother, and contribute to the 
 payment for one whom their brother has slain^ ; they are the 
 legal compurgators for one another^ in accusation or defence, 
 they are bound to protect their kinsman in his minority*, to 
 seek a lord and find a home for him if he is lordless or home- 
 less ^ All these however are legal rather than constitutional 
 obligations. 
 
 The 39. The unit of the constitutional machinery, the simplest 
 
 township. 
 
 form of social oi-ganisation, is the township, the mllata or vicus^. 
 
 It may represent the original allotment of the smallest subdivision 
 
 of the free community, or the settlement of the kindred colonising 
 
 on their own account, or the estate of the great proprietor who 
 
 has a tribe of dependents. Its headman is the tun-gerefa, who 
 
 in the dependent toAvnships is of course nominated by the lord", 
 
 ^ Tac. Germ. c. ai. 
 
 ^ For the share of the kindred in the receipt seeSchmid, Gesetze, p. 394 ; 
 for their share in the payment, Alfred, §§ 27, 28 ; Edmund, ii. 7, &c. 
 
 * Laws of the Northumbrian Priests, § 51 ; Hen. I, 64, § 4. 
 
 * Hlothere and Eadric, § 6. * Athelstan, ii. § § 2, 8. 
 
 * Tun, viculus, vicus, Bede, H. E. iii. 17; ttin-scipe, vicus, v. 10; tun 
 gerefa, villicus, iv. 24, v. 10 ; tun-scipe, Edgar, iv. 8 ; iunes-man, ibid, 
 iv. 8, 13. The tun is originally the enclosure or hedge, whether of the 
 single farm or of the enclosed village, as the harh is the fortified house of the 
 powerful man. The corresponding word in Norse is gardr, our garth or 
 yard. The equivalent German termination is heim, our ham ; the Danish 
 form is hy (Norse 6« = German laa). Some inferences might be drawn 
 from these differences as to the contrasts of early colonisation. See Grumn, 
 R. A. p. 534. Tlie notion of the dorf or thorpe seems to stand a little 
 further from the primitive settlement. 
 
 ^ Athilstiin, iii. § 7 : 'Si tunc sit aliquis qui tot homines habeat, quod 
 non sufiiciat omnes custodire, praeponat sibi singulis villis praepositum 
 unuin, &c.' On the origin of the word gerefa, see Max Midler's Lectures 
 on Language, ii. 281. It lia*f been regarded generally as the same word 
 with the German graf, and derived from gruii, grey = senior, but many 
 other explanations have found favour ; Grimm coimected it with rui-o, 
 tignuin, tectum, and interpreted it as comes, socius, the inmate of the 
 same liouse ; Sfielman connected it with reafan, to jdunder, and thus .ac- 
 counted for tli(j Latin word exactor used to translate it ; Kemble with rdfan 
 or r('fan, to call aloud, jnaking it originally mean the ?;a?/7/i7oror proclaimer 
 of the court; liichthofen derives it from the Greek ypd<pu; and other
 
 v.] The Township. 83 
 
 but in the independent ones mav have been originally a chosen Free nnd 
 
 ^ " o ^ dci)eiidciit 
 
 officer, although when the central power has become stronger he townships. 
 
 may be, as in the Frank villa, the nominee of the king, or his 
 officer. The internal organisation in both cases seems to have 
 been much the same, for the dependent communities had prob- 
 ably in most instances been originally free, and reduced to 
 dependence by a powerful neighbour ; or Avere composed of his 
 tenants who entered into the rights and duties of men whose 
 estates their lord had pm'chased or accumulated by inheritance. 
 
 This corporate unity is subjected to changes both by way of Relation of 
 development and under legislative action. In its earlier stage it tiie to\TO- 
 may have been the community of free and kindred cultivators, 
 or what is called the inxarh}. It cannot be safely affirmed that 
 the German settlers in Britain brought with them the entire 
 system of the mark organisation, or that that system was ever in 
 Anglo-Saxon times the basis of local administration. The com- 
 parative rarity of the word, whether in laws and charters or in 
 local names, forbids the idea of such completeness, universality, 
 or fundamental constitutional significance^. But of such an 
 
 derivations are also imagined. Max Miiller would not ' be at all surprised 
 if the Anglo-Saxon gerefa turned out to be etymologically unconnected 
 with the German graf (Lectures, ii. 284), and this is so far probable, that 
 whereas the fundamental, universal and permanent idea of the gerefa is 
 stewardship, the graf is not, so far as appears, a steward at all, but primarily 
 and universally a magistrate. If then they are the same word, the English 
 application seems to be most primitive, and there is at least one link 
 missing between it and the gi-af. 
 
 * Kemble has the credit of being the first to recognise the applicability 
 to English history of the results of German investigations into the mark, 
 system : but with his usual tendency to exaggeration. Since he wrote, the 
 whole subject has been worked out by Dr. G. L. von Maurer in several 
 works : the most important results of which for the history of early society 
 agree with the view of Dr. Waitz in the Deutsche Verfassungs-Geschichte. 
 Sir Henry Maine, on Village Communities, and Dr. Nasse, on The Land- 
 Community of the ]\Iiddle Ages, have some important remarks on the 
 English side of the subject : which is also illustrated in a curious Essay by 
 William Maurer, published at Manchester in 1855. Dr. Gneist, Self- 
 government, i. 2, goes too far in regarding the expenditure of learned inves- 
 tigation on this part of the subject as unfruitful, but he is undoubtedly 
 right in refusing to recognise the Mark as the basis of our polity. See too 
 Schmid, Gesetze, p. 630; Gneist, Verwaltungsrecht, i. 61. 
 
 ^ Kemble ascribes the rarity of the term to the foct that ' the system 
 founded upon what it represents yielded in England earlier than in 
 Germany to extraneous influences.' Saxons, i. 36. Tlie word occurs in 
 charters — e.g. Cod. Dipl. dcxxxiii — in the full siguitication ; but more 
 
 G 2
 
 84 
 
 ConstiUdional History. 
 
 [chap. 
 
 Traces of 
 the mark. 
 
 in the 
 commons, 
 
 and in the 
 court baron 
 of the 
 manor. 
 
 institution there are distinct traces. We nowhere see the 
 qualification of the freeman for political right depending on a 
 partnership in tenure and cultivation of common land. It may 
 have been the case very early, but it is more probable that the 
 settlers had passed beyond this stage before they migrated. Yet 
 in the nomenclature of the villages the same significant syllable 
 that points to the idea of cognatio j^oints equally to the mark : 
 and what is indisputable, the existence of the common system of 
 cultivation, and of common lands belonging in usufruct to the 
 members of the township, prove the abiding influence of the 
 mark principle^. Community of land and joint action in 
 cultivation might exist without forming the basis of the political 
 unity of the community : it cannot be shown to have precluded 
 the possession of private estate among the sharers of it, and in its 
 later forms it appears merely as an appendage to such private 
 possession. Common lands of manors and townships exist at 
 the present day, and, within a century, common cultivation also 
 existed in many parts of England. It is to this system that 
 the origin of some part of the machinery of local courts of the 
 manor and township which still exist may be traced^. The 
 right of the markmen to determine whether a new settler should 
 be admitted to the township exists in the form of admitting a 
 tenant at the court baron and customary court of eveiy manor' ; 
 the right of the markmen to determine the by-laws'*, the local 
 arrangement for the common husbandry, or the fencing of the 
 
 generally as a simple boundaiy. The 'mercemot,' mentioned in Cod. 
 Dipl. dlxviii, is referred l)y Kemble to the place where the markmoot was 
 held, Saxons, i. 55. Schmid, Gesetze, p. 631, gives some other ])assag:es 
 where the word mark occurs, but it is not found in the full sense in the 
 laws. 
 
 * Ini, § 42 : ' If ceorls have a common meadow, or other partible land to 
 fence, and some have fenced their part, some have not, and [strange cattle 
 come in and] oat up the common corn or grass, let those go who own the 
 gap and compensate to the others.' The common wood, ' commune silfa 
 qnam nos Saxonice in geraennisso dicimus,' is mentioned in a cliarter of 
 Ethelwulf, Cod. Dipl. ii. i ; the common land, ' gemanan lande,' ib. 
 iv. 326. 
 
 ^ Kemble, Saxons, i. 54 ; Maine, Village Communities, pp. 138-140 ; and 
 W. Maurer's Essay. 
 
 ' See Kemble, Saxons, i. 54. That the markmoot was a court of justice, 
 as Kemble conjecturcH, seems altogctlier improbable. 
 
 * Nelson, Lex Maneriorum, pp. 54-58.
 
 v.] The Totvnship in Kashandry. 85 
 
 hay-fields', or the proportion of cattle^ to be turned into the 
 common pasture, exists still in the manorial courts and in the 
 meetings of the townships : the very customs of relief and 
 surrender which are often regarded as distinctly feudal, are 
 remnants of the polity of the time when every transfer of 
 property required the witness of the commtmity, to whose 
 membership the new tenant was thereby admitted. Still be- The histori- 
 
 11 1 • 11 • f I- • 1 • 1 1 • ^'^ township 
 
 tween all this and the enjoyment of political rights there is no has out- 
 
 T. -T-' i«iii 1 giowu the 
 
 immediate connexion, it is as an owner ot land, not as a member mark. 
 
 of the mark -community, that the freeman has rights and duties, 
 
 and there is no evidence that in England the only way of owning 
 
 land was the membership of the mark. 
 
 The historical township is the body of alodial owners who have 
 
 advanced beyond the stage of land-community, retaining many 
 
 vestiges of that organisation ; or the body of tenants of a lord 
 
 who regulates them or allows them to regulate themselves on 
 
 principles derived from the same. 
 
 40. In a further stage the township appears in its eccle- The town- 
 siastical form as the parish^ or portion of a parish, the district trictofa 
 assigned to a church or priest ; to whom its ecclesiastical dues parish! 
 and generally also its tithes are paid. The boundaries of the 
 parish and the township or townships with which it coincides, 
 
 are generally the same : in small parishes the idea and even 
 name of to^vnship is frequently, at the present day, sunk in that 
 of the parish ; and all the business that is not manorial is dis- 
 patched in vestry meetings, which are however primarily meet- 
 ings of the township for church purposes. 
 
 41. The name of tithing, which in some paiis of England The Tithing, 
 still replaces that of township as the unit of local administra- 
 tion, and which occurs as early as the time of Edgar*, must be 
 
 * Nasse, Land Community, ed. Ouvry, pp. 17, 18 sq. ; G. L. von Maurer, 
 Dorfverfassg. i. 358. 
 
 * Nelson, Lex Maneriorum, pp. 59, 67. 
 
 ^ Pearson, Early and Middle Ages, i. 251 ; Toulmin Smith, The Parish. 
 On the formation of parishes see below, Chapter VIII. The ' Church of a 
 town ' is mentioned by Bede, H. E. v. 12. 
 
 * In the Judicia civitatis Lundoniae, Ath. vi. 2, 8, § i, it is not a local 
 but a personal association of ten. See Chapter XI below. Edgar, i. 2, 4, 
 mentions the tithingraan as taking jiart in the action of the hundred in 
 matter of theft. It is curious that (euihung should be ordinarily used for an
 
 86 Constitutional History. [chap. 
 
 ^^"^°*"^'^^ understood to represent a subdivision of the hundred. Natu- 
 Tithing. rally tlie word wovild mean the tenth part of the larger division, 
 and if an instance were forthcoming of the historical intro- 
 duction of the hundred, or the colonisation of a border territory, 
 it would probably be found that the hundred and tithing were 
 measured in proper proportion. But as this cannot be done, it 
 is safer to allow to the tithing the same laxity of interpretation 
 that Tacitus allowed to the hundred. It is however quite pos- 
 sible that the term was a relic of the same sj'stem that the 
 hundred itself represents \ and that it was revived for police and 
 fiscal purposes, as a personal as well as a territorial division, 
 ultimately sinking its functions, and, except in some of the 
 western counties, the name also, in those of the township^. It 
 would thus mark a stage in the process by Avhich the personal 
 organisation of the free people passed into the territorial system. 
 But the name of tithing has been very commonly applied both by 
 
 association of ten, as the only whole of which the tithe is ten must be the 
 hundred ; and if, as generally believed, the Anglo-Saxon hundred was the 
 long one of six score, the tithing ought to have contained twelve ; and 
 rieta speaks of the frankpledges as dozeins. The only other place where 
 the tithing occurs is in the Secular law of Canute, § 20. PalgTave, Com- 
 monwealth, pp. cxxi-cxxvi. 
 
 ^ The (lecanus and decania, or decuria, occur in the organisation of the 
 host, in the laws of the Visigoths and Bavarians ; and in connexion with 
 the police system in the Lombard laws also. The decanus in Frank law 
 is the lowest officer in the host, or in police administration ; but nowhere 
 is there any trace of a division of land connected with the number. The 
 Frank host recognised the contuhcrnium of ten men, but there is no cer- 
 tainty that this was connected with the decanus. Waitz, D. V. G. i. 458- 
 47,3- Cf. Gneist, Self-government, i. 9; Palgrave, Commonwealth, p. 199. 
 
 - Tithings at present exist in Somersetshire and Wiltshire; and accord- 
 ing to Pearson (Maps, 52) in Gloucestershire and Worcestershire, and in 
 all counties south of the Thames (except Kent and Cornwall), wlieie they 
 answer to the townships of other counties. Pearson, IMiddle Ages, i. 250, 
 says, ' Ten families constituted a tithing, the self-governing unit of the state 
 which is now represented among us by tlie parish, and ten tithings were a 
 hundred.' Robertson, Hist. Essays, p. Ixv, also uses the word as generally 
 equivalent to township. It is however very rash to adopt any such gene- 
 ralisation. Gneist, Verwaltungsrecht, i. 51, 59, alleges that tlie word is 
 not found in Domesday, and rejects the territorial ai)plication of it. Pal- 
 grave (p. cxxi.) gives instances of both pernonal frankpledges and local 
 tithings in the rcig'n of Henry III : tlie former from Kent and Warwick- 
 shire, the latter from Devon, He iilso suggests that tlie local tithings in 
 the West may liave been remains of the British divisions of Cantreds and 
 Trefs. Mr. I'earson says that the hundreds of Devmi generally contain 
 about ten parishes, and infers thence the original identity of the parish 
 with the tithing.
 
 v.] Tithing and Franhpledge. 87 
 
 historical writers and in legal custom to denote a different 
 
 idea, the association of ten men in common responsibility legally 
 
 embodied in i\\Q fnthhorh or frankpledge. 
 
 This institution \ of which there is no definite trace before The mth- 
 
 the Norman Conquest, is based on a principle akin to that of frankpledge. 
 
 the law which directs every landless man to- have a lord who 
 
 shall answer for his appearance in the courts of law. That 
 
 measure, which was enacted by Athelstan^, was enlarged by a 
 
 law of Edgar ^, who required that every man should have a Principle of 
 
 uIcclsTCS 
 surety who should be bound to produce him in case of litigation, 
 
 and answer for him if he were not forthcoming. A law of 
 Canute* re-enacts this direction, in close juxta-position with 
 another police order ; namely, that every man shall be in a 
 hundred and in a tithing : where the reference is probably to the 
 obligation of the hundred and the tithing to pursue and do 
 justice on the thief. The laws of Edward the Confessor, a com- 
 pilation of supposed Anglo-Saxon customs issued in the twelfth 
 century, contain a clause on which the later i^ractice of frank- 
 pledge is founded, but which seems to originate in the con- 
 fusion of the two clauses of the law of Canute. By this article. The 
 
 accepted 
 which describes itself as a comparatively recent enactment", all law of the 
 
 men are bound to combine themselves in associations of ten, to 
 
 which the name of frith-horh is given in the South, and that of 
 
 tenmannetah in the North of England. Each association has 
 
 a headman, a ' capital pledge,' horhs-ealdor or frith-horge-head, 
 
 to manage the business of the ten. Thus constituted, they are 
 
 standing sureties for one another : if one break the law, the 
 
 ' On this subject a great literature exists, which m.ay be seen summed 
 up in Waitz, D. V. G. i. 424-473 ; Schmid, Gesetze, pp. 646-648 ; K. Mau- 
 rcr, Krit. Ueberscbau, 1.87-96 ; Gneist, Verwaltgsr. i. 166 ; .Self-government, 
 i. 26 sq. Palgrave (Commonwealth, p. 196 sq. and notes), who anticipates 
 most of the later arguments, refei-s the institution to Canute. See Hallam, 
 M.A. ii. 2S9. 
 
 * Athelstan, ii. 2. If a reeve dare not warrant any of his lord's men, 
 the suspected man must find twelve pledges among his kindred, who shall 
 stand in secui-it}' for bim, ibid. iii. 7, § 2. This looks like a frankpledge, 
 but probably is a variety of the compurgatory obligation of the kin. 
 
 ' Edgar, iii. 6 ; iv. 3. 
 
 * Canute, ii. 20 ; Gneist, Self-government, i. 26. 
 ' Edw. Conf. § 19 ; Select Charters, p. 74.
 
 88 Constitutional llldory. [chap. 
 
 Law of other nine shall hold him to right ; if they cannot produce him, 
 ran p e ge. ^^ capital pledge with two of his fellows, and the head men 
 and two others out of each of the three nearest /n7/i-6or/iS, are to 
 purge their association of complicity in the flight of the criminal, 
 or to make good the mischief he has done. The association of 
 the ten is called also the tithing^, and the ' capital pledge ' the 
 tiiliing-nxzM. Whether before the Conquest this vmion or con- 
 fusion to the two distinct ideas had taken the form of a 
 law, there is nothing to show : and the word frankpledge is 
 used in the so-called laws of the Conqueror simply for the 
 Possibly of Surety^ ; but it is probable from the view of his legislation in the 
 the ^ case of murder, by which the responsibility of producing the 
 
 onques . criminal was laid on the hundred^, that a kindred measure of 
 universal application may have then been introduced, and that thus 
 the mutual responsibility of the frankpledge was imported into the 
 English law. The ' view of frankpledge,' the business of seeing 
 that these associations were kept in perfect order and number 
 and of enforcing the same by fine, was one of the agenda of the 
 local courts, and became ultimately, with the other remunerative 
 Continued parts of petty criminal jurisdiction, a manorial right exercised 
 courti'^t.^" in the courts leet, where it still exists*. It was made one 
 way of maintaining the practice of local representation : the 
 capital pledge and a portion of his tithing taking the duty of 
 appearing for their township or bcrewic in the popular courts'* ; 
 and thus again the ideas of the township and the tithing come 
 
 ^ Madox, Hist. Exch. p. 392 ; Palgrave, Commonwealth, pp. 196 sq. 
 
 ^ William, i. 25, 52, » Ibid. iii. 3 
 
 ^ Palgrave (Commonwealth, pp. 202, cxxiii) asserts that the view of 
 frankpledge did not exist in the ' shires which constituted the ancient 
 kingdom of Northunibria,' and gives reference to records to prove that 
 it was not general in Mercia in the reign of Henry Til. However this 
 may have been, it is certainly found in Yorkshire at the present day. 
 The exceptions may be perhaps accounted for on the gi-ound of the in- 
 habitants of exempt districts being under tlie pledge of the lord of the soil 
 at the time of tlie institution. But the question is oljscure. Cf. Gneist, 
 Verwaltungsrecht, i. 1 78. But tcnmentalc in Richmondshire, which in 
 Henry II's reign was an extent of 14 carucates, paid 4s. "jd. as an annual 
 tax. Gale, Keg. Hon. dc Ilieiiinond, p. 22. 
 
 " Customs of Kent, Statutes of tlie llealm, i. 223. The borghesaldor and 
 four men aj)peared for each township in the court of the justices in Eyre ; 
 each borough however was represented by twelve men.
 
 manor. 
 
 v.] Tithing and Frankjdedge. 89 
 
 into connexion. It is in this point that the frankpledge has its ^^fj^^^j'^^ 
 chief historical importance. It has been very much exaggerated ; importance 
 some writers having even gone so far as to make it a common frankpledge, 
 institution of the whole German race, and possibly the basis of 
 political combination : by others again, it has been regarded as 
 a form of guikP ; and as a substitute for, or development of, the 
 principle of the accountability of the kindred for wergild^. 
 These views and others equally speculative, may be safely dis- 
 carded : there is no trace of any similar institution on the 
 Continent, or, even in England, earlier than the middle of 
 the twelfth century, although, as has been said, the enactment 
 of the law would be not strange to the legislation of the Con- 
 queror. 
 
 42. To return however to the township. Besides its cha- siuplTtoe 
 racter as representing the principle of the mark, and forming 
 the basis of the parish, the township has a share in the creation 
 of the later territorial jurisdiction of the manor : and those 
 early townships which were founded on the land of a lord, are 
 in many respects much the same as manors^. The lord exercised 
 in both the functions depending on the free possession of the land 
 
 * The gegUdan who are mentioned in the laws on which this theory is 
 built, are the associates or companions of strangers ; and furnish no evi- 
 dence of any institution of the kind for collective responsibility. Waitz, 
 D. V. G. i. 432-438. The guilds themselves had quite a different object. 
 See the next note and Chapter XI below. 
 
 "^ The importance of the subject of frankpledge is much exaggerated 
 owing to the extraordinary variety of views that have been entertained 
 upon it. It is obvious that associations of ten men may be embodied 
 (i) as in a guild for mutual help and obtaining of redress; (2) in police 
 organisation, to join in the pursuit of a thief who has robbed and may be 
 concealed within their neighbourhood : this is supposed to be the character 
 of the decima or decenna when mentioned in connection with the hundred; 
 (3) as a compulsory organisation of collective responsibility as in the 
 frankpledge. 
 
 ^ Ordericus Vitalis (lib. iv. c. 7) regarded the township and the manor 
 as identical : ' villas quas a manendo manerios vulgo vocamus.' Palgrave 
 seems to hold that nearly all townships in Anglo-Saxon times were under the 
 rule of a lord, Commonwealth, p. 65 : ' Every Anglo-Saxon township was sub- 
 ject in demesne to a superior, to the sovereign whether king or ealiiorman, 
 who succeeded to the very extensive possessions of the British princes ; 
 or to a lord, — hlaford, or landrica. In some few instances the township 
 belonged to small corporations, if such a term may be used, whose mem- 
 bers held the township as a joint property ;' the reference in the last case 
 being apparently to the alodiaries of Domesday.
 
 9© ConstUulional History, [chap. 
 
 Origrinal and whicli in the free community belono-ed to all the townsmen, and 
 
 created . . ■'_ ° , , , , ' 
 
 jurisdiction likewise a lurisdiction in civil and criminal suits, which, with all 
 ofthe ^ n ■ • • • ■ 
 
 manor. the profits, — for in early times the pecuniary interests of justice 
 
 formed no small part of the advantages of judicial power, — was 
 conferred on him by the original gift, and removed from the 
 cognisance of the hundred. In consequence of this system, the 
 exact development of which belongs to a later stage of our in- 
 quiry, some part of the business properly belonging to the town- 
 ship is dispatched in the manorial courts, varied of course by 
 local custom and the terms of particular grants. 
 
 Theassem- 43. In all these forms and relations the townsmen retain 
 
 bly ofthe 
 
 township, their right of meeting and exercising some sorts of jurisdiction, 
 
 although, until the criminal jurisdiction in court leet comes to 
 
 the lords of manors by special grant, their participation in such 
 
 matters is of the character simply of police-agency. Their 
 
 assemblies are rather ^emois or meetings than proper courts^; for 
 
 any contentious proceedings amongst men so closely connected 
 
 and so few in number must have been carried immediately 
 
 to the hundred court. But they may be safely understood to 
 
 The by-laws, have had the power of making their own by-laws: the word 
 by-law itself is said to mean the laws enacted by the township, 
 the ' by' of the Northern shires^: the gemot also elected its own 
 
 Election of officers, possibly the gerefa and the hydeV'; it arranged the re- 
 presentation of its interests in the courts of the hundred and the 
 shire, where the gerefa and four best men appeared for the 
 township ; it carried out the requisitions of the higher courts 
 in the way of taxes and other exactions, the pursuit of criminals 
 and the search for stolen goods* ; on the institution of the 
 frankpledge it prepared the tithing lists for the view of the 
 
 ' The tunscipesmot occurs in a charter of Richard I ; Eyton, Shropshire, 
 iii. 237. 
 
 ^ l'al<,Tave, Commonwealth, p. 80 : he quotes Jomandes for the use of 
 the word 'bellagines' in Iho same sense ; de Rebus Geticis, c. 2. 
 
 ^ The usual custom after the Conquest and still. Palgrave, Common- 
 wealth, p. 82. The tithiuLjiiian is of course an elective officer. The idea 
 that he was a sort of village magistrate is without basis ; although in a sim- 
 ple conununity of peasants the office of a constable, for such seems to have 
 been the position of the tithingnian, was held in more honour than it is 
 now. See Hallam, M. A. ii. 282. 
 
 * Hlothere and Eadric, § 5 ; Edgar, iv. §§8, 13; Ethelred, iii. § 15.
 
 v.] Remnants of the Ancient System. 91 
 
 sheriff. In the dependent townships some of these functions Similar 
 
 process in 
 
 devolved on the lord's steward, or nominated gerefa, as the dependent 
 
 delegate of the master on whom the original gift had conferred 
 
 the power of enforcing these sections of jurisdiction: but the 
 
 actual process must have been much the same as in the freer 
 
 communities, if we may judge by the common law of the later 
 
 manors where the suitors are judges in court baron stilP. 
 
 As the national customs which belong to the lowest range of Township 
 
 . organisation 
 
 machmery are subject to the fewest organic changes, these at tlie 
 
 courts have continued to exist until the present day. In the 
 vestry-meeting the freemen of the township, the ratepayers, 
 still assemble for pui'poses of local interest, not involved in the 
 manorial jurisdiction ; elect the parish officers, properly the 
 townsliip officers, — for there is no primary connexion between 
 the maintenance of roads and collection of taxes and the parish 
 as an ecclesiastical unity, — the churchwardens, the Avaywardens, 
 the assessors, and the overseers of the poor. In the courts of the 
 manor are transacted the other remaining poi-tions of the old 
 township jurisdiction ; the enforcing of pains and penalties on 
 the breakers of by-laws ; the election of the capital-pledges of 
 frankpledges, oi 'plehiscitarii'^ or by-law men, aletasters, constables, 
 and other officers of a character of which nine-tenths of English- 
 men know nothing. The court-baron and customary court con- 
 tinues, in its admission of tenants and witnessing of surrenders, 
 the ancient business of the markmoot ; the court leet exei'cises 
 the remaining share of the higher jurisdiction involved in the 
 grant or exemption of the original gift. The vestry is the 
 representative of the gemot with which it was once identical ; 
 but as the jurisdiction of the courts of the manor was defined 
 
 * As in Domesday, i. 193, 'Hanc terrain tenuerunt vi. sochemanni et 
 dare et vendere ten-am suam potuerunt. Unus eorum homo re<^s Edwardi 
 fuit et iuwardum inveiiit vicecomiti. Tres istorum sochemannorum accom- 
 modavit Picotus Rogerio comiti, propter placita sua tenenda, sed postea 
 occupaverunt eos homines comitis et retinueruut cum terris suis sine libera- 
 tore, et rex inde servitium nou habuit nee habet, sicut ijjse vicecomes dicit.' 
 An important passage, showing further how manors were enlarged by usur- 
 pation. 
 
 ^ Manorial Register of Aldborough, Yorkshire : the officers elected in 
 the ninth of Charles I were four by-lawmen or [iltbhc'itarii, two constables, 
 two aletasters, and one ' communis impercator ' or piuder.
 
 gz Constitiitional History, [chap. 
 
 by charter, or by the ciistomary law existing at the moment of 
 their creation, all matters arising outside that jurisdiction come 
 ofthe^^ves- ^^^^^^ ^^^^ management of the vestry. Nor can the importance 
 ii^itutfcf^'"^ °^ ^^^^^ point be exaggerated, when we look further on and see 
 in these local gatherings the chief element in the origination of 
 the borough system of later date. The comparatively restricted 
 character of the powers of the local courts was probably the 
 cause why liberty of election was suffered to exist in them during 
 ages in which in the higher ranges of the polity it was entirely 
 lost. A curious instance of the earlj^ confusion of the ideas of 
 the township and the parish may be found in the defensive war 
 ofA.D. 1 1 38 S when the parish priests with their parishioners 
 assembled and joined the army of the barons. In the hundred- 
 courts the parson still joined in the representation of the town- 
 ship^. The host was the nation in arms ; here it is the church 
 in arms also. 
 The burh. 44. The ' burh ' of the Anglo-Saxon period was simply a 
 
 more strictly organised form of the township. It was probably 
 in a more defensible position ; had a ditch and mound instead of 
 the qviickset hedge or ' tun ' from which the to^^^lship took its 
 name ; and as the ' tun ' originally was the fenced homestead of 
 the cultivator, the ' burh ' was the fortified house and court -yard 
 of the mighty man — the king, the magisti-ate, or the noble. Al- 
 though there is no evidence which connects the hurlis of the Anglo- 
 Saxons with the remains of Eoman civilisation^, and although 
 
 Growth of like the rest of the Germans thev abhorred walled towns as the 
 the burns. 
 
 defences of slavery and the graves of freedom , they must neces- 
 sarily have used, during the process of conquest, fortified camps 
 which, after peace was obtained, served as civil centres for the 
 districts in which they were placed. Other towns gi'ew up 
 round the country houses of the kings and ealdormen, round 
 
 ' R. Hexham, ed. Tw^sden, c. 321. ^ Hen. I, vii. §§ 7, 8. 
 
 ' Pearson, Early and Middle Ages, i. 264, follows Mr. T. Wright (Arch- 
 aeologia, xxxii) in an ingenious argument for the continuitj^ of Roman 
 municipal institutions in Anglo-Saxon Britain : illustrating the subject by 
 reference to the trinoda iienssitas, extra-mur.al burial, and some other par- 
 ticulars ; all, however, caj)able of other and far more probable explanation. 
 Tacitus, Hist. iv. 64.
 
 v.] The Burh. 93 
 
 tlie great monasteries in which the bishops had their seats\ 
 and in such situations as were pointed out by nature as suited 
 for trade and commerce. Where such communities were de- ^^®J retain 
 
 tne lorms or 
 veloped out of the village townships, or founded on the folkland, ^^^ f''^ 
 
 their institutions and organisation would continue free until 
 
 the time at which the king began to be regarded as the owner 
 
 of the folkland, and the lord of every man who had no other 
 
 lord. In these the idea of the free township was retained : 
 
 municipal authority depended on no different organisation ; the 
 
 presiding magistrate was the gerefa ; in mercantile places such 
 
 as London or Bath, the port-gere/a ; in others the wic-gerefa or 
 
 the tun-gerefa simply^ : his assessors were the owners of the 
 
 homesteads which had been allotted to the original settlers, or 
 
 of the estates which had been formed by the union of such 
 
 allotments. The common lands of the burh testified to its 
 
 origin in a state of society in which the mark system was not 
 
 yet foi-gotten^. 
 
 Very little indeed can be stated with certainty about the Thejurisdic- 
 •' •' tioii of the 
 
 bwh constitution of early times. We know from Bede that i^u^h. 
 
 Lincoln had a gerefa* in the seventh century, and from Domes- 
 day that in the eleventh it was governed by twelve lawmen, 
 who inherited their jurisdiction, their sac and soc, with their 
 tenements^ ; but Lincoln had gone through several centuries of 
 
 ^ We have the cyninges burJt, Edm. ii. 2, &c. ; the ajmnges tun, Alfred, 
 i. ■2; the eorleg tun, Ethelbert, § i,^ ; cyninges ealdor hotl (villa regalis), 
 Bede, H. E. ii. 9 ; ceastre, (i.e. Carlisle), ibid. iv. 29; the mynstcr dnwe 
 and folc-stowe, urbana et rustica loca, ibid. iii. 5. The five Danish 
 burhs, Lincoln, Nottingham, Derby, Leicesjter, and Stamford, had not only 
 special privileges of their own, but a common organisation apparently of 
 the nature of coufedei-ation ; but the history is veiy obscure. Cf. Laws of 
 Ethelred, iii. 1 ; Chron. Sax. a.d. 1013, 1015 ; Palgrave, Commonwealth, 
 p. 49. 
 
 - London and Winchester had a wic-gerefa ; London, Bath, Bodmin, and 
 Canterbury had a port-gerefa ; the burh-gerefa does not occur, Schmid, 
 Gesetze, p. 598. 
 
 ' On the common lands of the Scottish burghs, see Maine, Village Com- 
 munities, p. 95. Each of the four wards of York has its own common 
 pasture, on which only freemen have rights ; the same rule may be found 
 in most ancient towns, Oxford, Colchester, &c. 
 
 « Hist. Eccl. ii. 6. 
 
 ^ ' In ijisa civitate erant xii lageman, id est habentes sacam et socam . . . 
 Modo sunt ibi totidem habentes sacam et socam,' Lincoln, Dom. i. 336.
 
 Inindred. 
 
 94 Constitutional History. [chap. 
 
 Danish rule in the meantime.. The city of Chester on the other 
 hand belonged, in the reign of Edward the Confessor, to the 
 Earl of Mercia, subject to the rights of the king and bishop, and 
 The govern- had a governing body of twelve judges, chosen from the tenants 
 burh resem- of the three ^. It would appear from the use in these instances 
 of The ^ of the number of twelve for the governing magistracy, that the 
 constitution of the larger towns resembled that of the hundred 
 rather than that of the township- ; and, in fact, each such town 
 generally contained several parish churches with a township 
 organisation belonging to each. Hence, in the law of Edgar 
 directing the election of witnesses in each community to legalise 
 transfers of cattle and goods, the number fixed for the larger 
 burhs is thirty-three, that for the hundreds and smaller burhs 
 twelve only^. The burh-gemot is to be held three times a year, 
 when that of the hundred is held monthly, and that of the shire 
 half-yearly*. Probably the townships which made up the hurli 
 had their weekly courts also, and the weekly market day would 
 serve as a general gathering for the whole. But it is far easier 
 to trace in existing monuments vestiges of early differing systems 
 than to construct out of them any consistent idea of a uniform 
 constitution. All the definite knowledge that we have of the 
 subject belongs to a later date. Of the influence of guilds, as 
 a subsidiary part of town organisation, there are some traces 
 which at a later period assume great historical impoiiance ; but 
 there is nothing to justify the notion that they were the 
 basis on which the corporate constitution of the burh was 
 founded ". 
 
 Stamford also had twelve la;j;omanm with sac and soc in their own houses 
 and over their men, ibid. ; and there were lagenianni also in Cambridge. 
 The burh-thegns in London may have been the same sort of dignitaries. 
 Kcmlile, C. D. iv. 214, 221. 
 
 * 'Civita.s de Cestre . . . Tunc erant xii judices civitatis ; et hi erant de 
 homiiiibus regis et episcopi et comitis. Horum si quis de hiindret remane- 
 bat (lie (juo sedebat sine excusatione manifesta x solidis emendabat inter 
 regem et comitem.' Dom. i. 262. 
 
 * Palgrave, Commonwealth, p. 102 ; Sonmer's Canterbury, p. 52. It is 
 however necessary to remember that a hundred might take its name from a 
 borough, and the liundred court bo held in the borough, without extinguish- 
 ing the proper township court, or borough-moot. 
 
 3 Edi,'ar, iv. §§ 4, 5. ' Ibid. iii. § 5. 
 
 ^ See below in Chapter XI.
 
 v.] The Burh. 95 
 
 The city of London, when it springs into historical light, is Examples of 
 a collection of communities based on the lordship, the township, 
 the parish, and tlie guild ; and there is no x'eason to doubt that 
 similar coincident causes helped the growth of such to\viis as 
 York^ and Exeter. Their size and power, and perhaps also the 
 extent of the suburban common lands, entitled many of them 
 to the name as well as the constitution of the hundred ; Canter- 
 bury, Feversham, Norwich, Thetford, Cambridge'^, and many 
 others, appear in Domesday as hundreds. But the basis of the 
 system was that of the township or cluster of townships which 
 had coalesced or grown up into the city organisation. The 
 duty of ' burh-bot,' which formed part of tlie tnnoda necesskas, 
 and was incumbent on every owner of land, threw the burden 
 of repaii'ing the fortifications on the land-owning townsmen of 
 the particular 6 ?;77i; every hurh was to be put in good repair 
 within a fortnight of the Rogation days^ ; just as in Grermany 
 the duty of keeping the town hedge and ditch in order Avas a 
 part of the general business of the village communities*. 
 
 With the exception of the burhs, the townships were gene- The officers 
 rally very small communities, and the heads of families would ships, 
 not be so numerous as to require a select body of magistrates. 
 The tun-f/ere/a, answering to the schulz or schultlieiss of the 
 German dorf^, and the tithingman, are the only officers of 
 whom we read at all ; the duties of the foi-mer were, like those 
 of all the gerefan, fiscal as well as judicial ; and in the depen- 
 dent townships he was the officer responsible for the production, 
 and even for the credibility of bis lord's men" ; he may also 
 have commanded them in the fyrd. In the free townships, he 
 and the four best men were the legal representatives of the 
 community in the court of the hundred and the shire''. The 
 
 * ' In Eboraco civitate tempore regis Edwardi praeter scyi-am Archi- 
 episcopi fuerunt sex scyrae. Una ex his wasta in castellis.' Dom. i. 29S. 
 Tlie wards of Canterbury were called hundreds. Somner, p. 52. 
 
 " Cambridge ' defeudit se pro uno huudret.' Dom. i. 190. 
 ^ Athelstan, ii. § 15. See the customs of repairing the walls of Oxford 
 in Domesday, i. 154 ; those of Chester, iliid. i. 262. 
 
 * G. L. von jNIaurer, Dorfverfassg. i. 356-361. 
 
 ' Ibid. ii. 22-30 ; Waitz, D. V. G. ii. 350-353 ; Grimm, R. A. p. 755. 
 ^ Athelstan, iii. § 7. ' Hen. I, vii. § 8.
 
 96 
 
 Constitutional History, 
 
 [chap. 
 
 The 
 
 hundred 
 and wapen- 
 take. 
 
 Danish or 
 
 AngUan 
 
 origin. 
 
 The wap- 
 entake. 
 
 The Hun- 
 dred. 
 
 tithingman is only known as carrying out the police system of 
 the hundred^. 
 
 A 5. The union of a number of townships for the purpose of 
 judicial administration, peace, and defence, formed what is 
 known as the hundred or wapentake ; a district answering to 
 the pagus of Tacitus, the hcerred of Scandinavia, the huntari or 
 gau"^ of Germany. The terms wapentake and hundred are 
 both, in Anglo-Saxon records, of somewhat late occurrence. 
 The wapentake is found only in the Anglian districts, York- 
 shire, Lincolnshire, Nottinghamshire, Derbyshire, Rutland, and 
 Leicestershire. To the north the shires ^ are divided into wards, 
 and to the south into hundreds. Hence the wapentake may be a 
 relic of Danish occupation. It finds a kindred form in the Norse 
 vapnatah, which is however not applied to the district but to the 
 form of ratifying the decisions of the local court, and hence 
 to the decisions themselves*. The Norman lawyers explained 
 the word in reference to the formal recognition of the local . 
 magistrate by touching his arms^; but this is very question- 
 able, and the exact origin of the term cannot be ascertained, 
 although it unquestionably has reference to the armed gather- 
 ing of the freemen, and so to the assembly rather than to 
 the district which it represents. The name of the hundred, 
 which, like the wapentake, first appears in the laws of 
 Edgar", has its origin far back in the remotest antiquity, but 
 the use of it as a geographical expression is discoverable only in 
 
 ' I can find no authority whatever for regarding the tithingman as tlie 
 head of the free township or titliing, and the tun-gerefa that of the depen- 
 dent one. Tiie apparent analogy of shireman, liundrednian, and tithing- 
 man, with .sheriff, hundred-reeve and town-reeve, is of cour.se inviting, but 
 there is nothing in the earlier or later fimction.s of the tithingman that 
 gives him the character of a magistrate. He is the mei-e servant or executor 
 of the law. 
 
 ^ Grimm, R. A. p. 532 ; Kenible (Saxons, i. 72), uses the woi-d 'g»' for 
 the aggregation of ' marks,' but the word is found only in one document of 
 very questionalde value, cf pp. 81, 82; Gale, Script, xv. 748. See Gneist, 
 Verwaltung.srccht, i. 47, and below, p. ill. 
 
 ^ Tlie wa]>entake of Sadberge iu Durham is one instance north of Tees. 
 Script. Dunelm. App. xi. 
 
 ^ Grimm. ]{. A. p. 770 ; Vigfiisson, Icelandic Dictionary, p. 685. 
 
 " Edw. Conf. § 30. 
 
 ' Edgar, i. Constitutio de hundredis. The wa])entake is first mentioned 
 in Edgar's Secular Law, § 6.
 
 v.] The Hundred. 97 
 
 comparatively late evidences. The pagus of the Germania sent Tlie terri- 
 
 1 ii'iii torial huii- 
 
 its hundrca warriors to the host, and appeared by its hundred dred. 
 judges ill the court of the jpi'inceps. The Lex Salica contains 
 abundant evidence that in the fifth century the administration 
 of the hundred was the chief, if not the only, machinery of the 
 Frank judicial system'; and the word in one form or other enters 
 into the constitution of all the German nations. It may be 
 regarded then as a certain vestige of primitive organisation. But 
 the exact relation of the territorial hundred to the hundred of the its relation 
 Germania is a point which is capable of, and has received, much dredsofthe 
 discussion. It has been regarded as denoting simply a division 
 of a hundred hides of land ; as the district which furnished a 
 hundred warriors to the host ; as representing the original 
 settlement of the hundi'ed warriors ; or as composed of a hun- 
 dred hides, each of which furnished a siugle warrior-. The 
 question is not peculiar to English history, and the same result 
 may have followed from very different causes as probably as from 
 
 the same causes, here and on the continent. It is very probable, English 
 
 hundreds, 
 as already stated, that the colonists of Britain arranged themselves 
 
 in hundreds of warriors ; it is not probable that the country 
 
 was carved into equal districts ^ The only conclusion that 
 
 > Above, pp. 54, 55. 
 
 ^ The several views are enumerated by Konrad Maurer ; Philipps, 
 Turner, and Palgrave despair of any explanation ; Lingard combats the 
 ideas of earlier enquirers without suggesting one of his own; Spelman 
 refers the hundred to the collective responsibility of an association like the 
 frankpledge ; Leo takes a similar view. Verelius regarded it as an aggre- 
 gate of a hundred households ; and Grimm (R. A. p. 533) accepts the 
 same notion. Hire, with some diffidence, suggests that the hundred was 
 merely the district which furnished the hundred warriors : Sclimid and 
 Lappenberg accept this. Eichhom maintained that the hundred was 
 originally the personal union of the hundred waiTiors ; and, on their settle- 
 ment, was used to denote the territoi-ial area which they occupied. Vels- 
 chow and Waitz hold that a warrior was due from every hide of land, and 
 accordingly the hundred was at once an area of a hundred hides, and a 
 district responsible for a hundred warriors. Maurer himself follows the 
 view of Eichhom, which is also Kemble's. Krit. Ueberschau, i. 77, 78. 
 See too Gneist, Verwaltungsrecht, i. 49, 50, 58, 59 ; Hallam, Mid. Ages, 
 ii. 281. 
 
 ' Neither the hundreds in England nor the shires appear ever to have 
 had common lands, like the hdrraths-almanningar and lands-almanningar 
 in Sweden, where tiie bi/s-almanninciar answer to the common lands of the 
 township, K. Maurer, Krit. Ueberschau, i. 69. But too much stress must 
 not be laid on this statement. The sevei-al townships iu the forest of
 
 98 Constitutional History. [chap. 
 
 seems reasonable is that, under the name of geographical hun- 
 Thehun- dreds, we have the variously sized pagi or districts in which 
 ptK/iw. the hundred wai'riors settled ; the boundai'ies of these being 
 
 detei'mined by other causes, as the courses of the rivers, the 
 ranges of hills, the distribution of estates to the chieftains, 
 and the remnants of British independence. 
 Eji^'slaw The fact that the hundred appears first in the laws of Edgar', 
 dred. ^-qi^ with an adaptation to a particular police institution, the 
 
 pursuit and capture of thieves, might seem to mark the definite 
 application of the name to the ten'itorial area, which may have 
 been called wapentake, ward, or even shire, at an earlier period. 
 But the particular measure then adopted seems rather to imply 
 the previous existence of the district name ''■. In this case, we may 
 refer to a parallel institution of the Frank kings, Childebert and 
 Clothair, three centuries and a half before the days of Edgar ; 
 to which the introduction of the name as that of a local division 
 hundred'of ^^ ^^^ Frank kingdom has been ascribed, although the hundred 
 the Franks, system is known from the Salian law to have been in full work- 
 ing a century earlier^. 
 
 Knaresborough each had an allotment at the enclosure, and this seems a 
 fair instance of common lands of a hundred, although the particular hun- 
 dred is regarded as a manor. Kemble regards the public buildings of the 
 county as representing the common land of the shire (i. 76). Whatever 
 was the case with the hundreds, before the shire system had become general 
 the idea of the common mark had given way to that of folkland. If Sussex 
 had folkland when it became part of Wessex, that folkland became part of 
 the folkland of Wessex, did not remain as common land of the shire to 
 Sussex. 
 
 * Select Charters, pp. 67-70; Brompton (Twysden, pp. 847, 848) places it 
 amongst Athelstan's laws, and so it was regarded by Palgrave, Common- 
 wealth, p. cxxi ; it is however certainly later than Edmund, and can 
 scarcely be thrown later than Edgar. See Schmid, Gesetze, p. xlviii. 
 
 ^ Robertson, Scotland under the Early Kings, ii. 335, refers to this act 
 as the introduction of the terijtorial hundred : and regards the law of Childe- 
 bert and Ciotliair as instituting the same on the continent. 
 
 ^ Baluze, Capit. i. 14; Select Charters, p. 69. The words of Clothair, 
 A.D. 595, ' Dccretiim est ut qui ad vigilias, hoc est ad wactas, constituti 
 noctumas diversos fures non caperent, eo quod per diversa intercedente 
 conludio scelera sua praetenuissa custodias exercerent, centenas fierent ' — 
 are scarcely strong enough to prove the usage an innovation; though 
 it may well liave been an application of old machinery to a now purpose. 
 And Sohm, wlio lias thoroughly examined the sul)jcct, decides that the 
 centenae now instituted were merely a police force arranged numerically 
 for the watching ofthe already existing territorial hundreds. Reichs- und 
 Gerichtsverfassg. i. 182-190.
 
 v.] The Jhmdred. 99 
 
 The tradition preserved bv William of MalinesbuiT,that Alfred Thetra- 
 devised the arrangement into hundreds and tithings, although, Alfred, 
 as it stands, irreconcileable with facts, may embody a portion 
 of a historical truth ^. Alfred may have adopted the hundred 
 as a basis of rating, as Edgar did for police, or may have an- 
 ticipated the measures of his descendant ; and if in the several 
 recoveries of territory from the Danes, or conquests on the 
 British border, a re-division or re-measurement of lands was 
 requisite, either to satisfy old claims or to provide for the security 
 of the frontier, it is probable that the measure of a hundred 
 hides of land would be adopted, as in the reign of Ethelred it 
 was for the purpose of taxation ^. But the inequality of the improba- 
 hundreds, as we everywhere find it ^, precludes any hypothesis symmetrical 
 of a primitive symmetrical division on any such principle ; and 
 we may rest satisfied on the Avhole with recognising in the name 
 the vestige of the primitive settlement, and in the district itself, 
 an earlier or a later subdivision of the kingdom to which it 
 belonged ; possibly a greater mark, possibly a smaller shire. 
 
 The wapentake in all respects of administration answers The 
 
 wapentake. 
 
 directly to the hundred, and no attempt can be made to account 
 for its origin on the principle of symmetrical division. Nor is 
 it easy to determine the origin of the variety of systems into 
 
 * Will. Malmesb. G. R. ii. § 122 : ' Et quia occasi'one barbarorum etiam 
 indigenae in rapinas anhelaverant, adeo ut nulli tutus commeatus esset 
 sine aniiorum praesidio, centurias quas dicunt hundrez, ct decima.s quas 
 thethingas vocant, instituit, ut omnis An^lus legaliter duntaxat vivens 
 haberet et centuriam et decimam. Quod si quis alicnjus delicti insimul- 
 aretur, statim ex centuria et decima exliiberet qui eum vadarentur ; qui 
 vero hujusniodi vadem non reperiret severitatein legiun horreret. Si quis 
 autem reus vel ante vadiationem vel post transfugeret, omnes ex centuria 
 et decima regis mulctam incurrerent.' 
 
 ^ Chron. Sax. A.D. 1008. 
 
 ' Pearson, Hist. Maps, p. 5 1 , discusses the statement of the Leiger book 
 of Peterborough, that the hundred contained a hundred hides: he shows 
 that the Domesday hidage in each of the counties of Bedford, Huntingdon, 
 Northampton and M'ilts. taken in the aggregate, nearly contains as many 
 hundred hides as they do territorial hundreds, but without any agreement 
 between the single hundred and the hundred hides. The document given 
 by Ellis, Intr. to Domesday, i. 184, as showing that the hundreds of North- 
 ampton each contained a hundred hides, seems to be a mere attempt of an 
 early scribe to force tliem into sjonmetry. Eyton (Shropshire, xii. 184) 
 thinks that ' districts which were originally half-hundi-eds or quarter- 
 hundreds came to be called liundreds.' 
 
 H 2
 
 100 Constitidional History. [chap. 
 
 Various ar- which the hundred jurisdiction is -worked. In Kent, for in- 
 rangements ,, t-ti x i- 
 
 ofthehun- stance, the hundreds are arranged m Lathes or Lests ; and in 
 drcdSi 
 
 Sussex in Eapes. The Lathe and the Rape may represent the 
 undershires of the Heptarchic kingdom ; but the Lathe is the 
 organised judicial division of which the hundreds are mere 
 geographical subdivisions, while the Rape on the contrary is 
 a mere geographical expi-ession, the judicial organisation remain- 
 ing in the hundred^ In Cornwall, in the twelfth centuiy, the 
 subdivisions were not called hundreds but shires^; one of which, 
 Triconscire, now the hundred of Trigg, is mentioned in Alfred's 
 wilP. Yorkshire and Lincolnshire were divided into Trith- 
 
 Eidings. ings or Ridings, subdivided generally into wapentakes ; but in 
 Domesday the East Riding is divided into hundreds only, and in 
 Lincolnshire, Northamptonshire, and Rutland*, the wapentake 
 
 Small shires and the hundred are arranged side by side. Of the Yorkshire 
 
 of York- ... .* •' . 
 
 shire. subdivisions two, Borgheshire and Craveshire, the latter of which 
 
 is never called a wapentake, retain the name of shire ; and it is 
 given in later documents to Richmondshire, Riponshire, Hallam- 
 shire, Islandshire, Norhamshire, and probably other similar 
 districts^ Nottinghamshire, Derbyshire, and Leicestershire are, 
 in Domesday, arranged in wapentakes, but in one place the 
 term ' hundred ' is used in reference to a division of the last- 
 named county. It may seem not impossible that the oi-iginal 
 name of the subdivision immediately above the township was 
 
 ^ Palgrave, Commonwealth, p. loi ; Ellis, Intr. to Domesday, i. 178 sq. 
 
 ^ Simeon Dun. ed. Hinde, i. 221 : ' In Cornewalas sunt sex parvae scirae.' 
 
 ' Cod. Dipl. ii. 114. Kemble explains Triconshire as Cornwall generally; 
 it is the Trigerscire hundred of the Pipe Eoll of A.D 1 130, p. 159. 
 
 * In Rutland, the wapentake of Alfiiodestou contains two hundreds; but 
 half of it is in Turgastune wapentake, anil half in Brochelestou, in Not- 
 tinghamshire. Martinsley wapentake contains one hundred. Dom. i. 293 b. 
 
 ' Robertson, Scotland under her Early Kings, ii. 4,33, is inclined to trace 
 the tritliing in Kent and Sussex ; Kent was divided into East and West, 
 each arranged into three lathes, which in East Kent are double. Sussex 
 was divided into East and West, each again divided into three rapes. In 
 the trithing he sees the threefold division of the land allotted to the Norse 
 odallers ; thus Yorkshire and Lincolnshire, which were so divided, repre- 
 sented the lands measured out by Halfdane in A.D. 876 : the other por- 
 tions of the Danish conquests being left to their Saxon proprietors, under 
 the special rule of the king : the trithings were thus held as odal-land, and 
 the other parts as gafol-land or tributary. Tlie view is very interesting, 
 but very conjectural.
 
 v.] The Hundred and Wajpentake. loi 
 
 scir or shire, a term of various applicatiou. The city of Yok Siiall thires. 
 was divided into seven sliires^, and the us'^'oi! tlte' word \iil ••' '*' 
 northern Northumbria, the present Lowlands of Scotland, a 
 territory which was peopled by Saxons and little disturbed by 
 Danish aggression, points to the same conclusion". It would be 
 rash however even to attempt a generalisation on these obscure 
 diflfercnccs, much more so to attempt to force them into con- 
 formity with the local arrangements existing under the later 
 Scandinavian institutions whose symmetry testifies to an 
 artificial origin'. 
 
 The presiding officer of the hundred or wapentake bears various Chief officer 
 ... . , . , . ., . ofthehuii- 
 
 names : nor is it quite certain that we are right m ascribing clrcd. 
 
 the functions so denoted to a single magistrate. The centenarius 
 or tlmnfjinus of the Frank law was the elected head of his hun- 
 dred, and exercised his jurisdiction in company with the king's 
 sacebaro, and in later times under the graf, the royal repre- 
 sentative in the larger province of which the hundred was a sub- 
 division*. The officer answering to the centenarius in England, 
 may be the hundreds-caldor ^, to whom the laws of Edgar direct 
 the townsmen to refer in questions of witness, or the hundred- 
 man who with his tithingmen goes forth to execute justice on the 
 thief. The headman of the wapentake is called in the laws of 
 
 ' Above, p. 95, note i. 
 
 ' See, for example, the Record.s of the Priory of May, Cartae, p. 3 : ' Sira 
 de Chellin,' ' Sira de Chercl,' p. 5, * Sire de Erdros.' The diocese of 
 St. Aldhelin is called Selwooilshire by Ethelwerd, M. H. B. p. 507. 
 
 ^ The idea of Sachse (Grundlagen des Deutschen Staats- und Eechts- 
 lebens, §§ 11, 12) is that each kingdom was divided into four pro-\ances, each 
 province into three shires ; each shire into three trithings, each trithing into 
 four hundreds ; each hundred into twelve tithings and each tithing into 
 twelve free households. Gnei:>t, Verwaltgsr. i. 55. Mr. Robertson's theory, 
 which however is put forth only as a theory, makes a square league equal 
 to a turbe or tithing:; four tithings a small shire or barony; three such 
 shires one hundred; three hundreds one quarter ; two quarters one larger 
 shire or fylki ; and two such shires one province or thiiifada. Essays, p. 131. 
 Palgrave, Commonwealth, p. 97, arranges East Anglia in hundreds, each 
 divided into four head leets or tribes, and each tribe into three subordinate 
 leets. 
 
 * Above, p. 55. 
 
 * Edgar, iv. §§8, 10. 
 
 8 Ibid. i. §§ 2, 4, 5. The gerefa, mentioned in Edward, ii. 8, must also 
 have been the reeve of the hundred or wapentake. See ISchmid, Gesetze, 
 p. 589. Cf. Palgrave, Commonwealth, p. 99. The mot-gerefa of Edward 
 
 USRAaY 
 
 iini\'ERg:ty of California
 
 ■Toa Constitutional History. [chap. 
 
 Possible, .Ethelred tbe e-erefa' .. It is possible to trace heix tlie existence 
 double gor. • •= ■ ^ -.,.,. . • .1 
 
 vernuifiut'6f',ox .twG oiftce.ViS,, tlje. representative of the kings interest in the 
 
 dred. gerefa, who becomes after the Conquest the bailiff of the hun- 
 
 dred ; and the representative of the freemen in the hundredes- 
 ealdor, who also survives the Conquest and is found in the 
 thirteenth century, as the elected ealdorman of the hundred, 
 I'epresenting his hundred in the shire-moot^. There is not 
 sufficient evidence to allow us to claim for the hundred-man the 
 presidency of the hundred court : and later usage would incline 
 us to regard him as the convener rather than the chairman. 
 But at the time at which the name first occurs, the management 
 and profits of the local courts had already passed into the hands 
 of the great men to whom the name of land-rica is given, and 
 who appear later as lords having sac and soc in whole hundreds 
 and wapentakes. This change must have tended to depress 
 the status of all elected officers, although it might not much 
 affect the judicial process : the old names continue, but the 
 reeve or grave of the hundred-court is the servant rather than 
 the president. On analogy, however, we may fairly maintain 
 that the original hundred-man or hundredes-ealdor was an 
 elected officer, and the convener and constituting functionary 
 of the court which he held. 
 
 Hundred- 46. This court, the hundred-gemot or wapentake court, was 
 
 held every month ; it was called six days before the day of 
 meeting, and could not be held on Sunday^. It was attended 
 by the lords of lands within the hundred, or their stewards 
 
 the Confessor's charter to Abingdon, Kemble, C. D. iv. 200, is doubtless 
 the same. In Domesday he is the praefectus, or praepositus hundred!. 
 Ellis, lutrod. i. 188. 
 
 * Ethelred, iii. § 3. 
 
 * Hen. I, viii. § i. See Palgrave, Commonwealth, pp. 635, cccli : ' Et 
 hundreda baroniae (do Aquila) dant ad auxilium Viceconiitis £9 1 7s. 6(i. per 
 quod barones et milites totius baroniae quicti sunt de sceta ad comitatum, 
 salvia Aldermannis Hundrodorum qui faciuiit sectam ad comitatum pro hun- 
 dredo.' Rot. llund. ii. 204, 205. ' Bedcllus qui vocatur Aldreman, qui dat 
 pro balliva sua \\v\' annum quatuor marcas, et nihil habet de certo de quo 
 possit dictam firniam Icvare, nisi ([uod potcrit extorquere de populo sibi 
 subdiio, et injuste. Et aliquo tempore solebant hujusmodi bedelli eligi per 
 sectatores hundred!, et tunc parum vel nihil dederunt pro balliva sua.' 
 Ibid. ii. 214. 
 
 ^ Edw. ii, § 8 ; Edgar, i. § i ; iii. § 5. 
 
 moot.
 
 v.] The Hundred Court. 103 
 
 representing them, and by the parish priest, the reeve, and four 
 
 best men of each townships The judges of the court were Judges of 
 
 the whole body of suitors, the freeholders answering to the moot. 
 
 ' rachimburgii ' of the Franks ; but as various inconveniences 
 
 might arise from the uncertainty of the number, qualifications, 
 
 or attendance of the whole, a representative body of twelve 
 
 seems to have been instituted as a judicial committee of the 
 
 court. These twelve may have been in some cases like the 
 
 scabini or schufFen ^, a fixed body holding their appointment for 
 
 life ; or like the lawmen of Lincoln, the hereditary owners of 
 
 sac and soc in the territory ; or chosen merely for the occasion. 
 
 They may be discovered in the twelve thegns of the wapentake, 
 
 who by the law of Ethelrcd declared the report of the district 
 
 in the gemot ^ ; or in the twelve chosen witnesses of Edgar's 
 
 law, before whom all bargains and sales are to be transacted*; 
 
 in the thirtj'-six ' bai'ous ' or twenty-four ' judices ' chosen in the 
 
 East Anglian county courts to determine the suits of Eamsey 
 
 and Ely'^ ; and in the twelve legal men of the hundred, who are 
 
 directed in the Assize of Clarendon " to act as part of the Grand 
 
 Juiy before the judges in Eyre, and who play so important 
 
 a part in the legal reforms of Henry II and his ministers. 
 
 Whether the ealdorman of the shire, the sheriff" or the bishop, 
 sat regularly in the hundred court at any period may be 
 
 ' Hen. I, vii. §§ 4, 7; li. § 2. 
 
 * Compare Savigny, i. 239, who argues that the official scabini were 
 instituted by Charles the Great. Seven scabini were requisite for a full 
 mallus. Ibid. i. 248. No other freemen but the scabini and the vassi comi- 
 tum were compelled to attend after the capitulary of a.d. 809 ; ibid. 250. 
 
 ^ ' Let pleas be held in each wapentake, and let the twelve senior thegns 
 go out and the reeve with them and swear on the halidome which shall be 
 put in their hands that they will accuse no innocent man and conceal no 
 guilty tme.' Ethelrcd, iii. § 3. ' Et judicium stet ubi tayni consenserint ; 
 si dissideant, stet quod ipsi xiW dicent.' Ibid. § 13. K. Maurer, Krit. 
 Ueberschau, v. 389, refers this to the Danelaw only : and its whole piurport 
 is contested by Brunner, Schwurgericht, pp. 402, 403. See below, 
 p. 611. 
 
 * Edgar, iv. §§ 4, 5. 
 
 ^ Hist. Ramsey, Gale, p. 415 : ' xxxvi barones de amicis utriusque partis 
 pari numero electos, ipsi judices constituerunt.' Hist. Ely, Gale, p. 471 • 
 ' coram xxiv judicibus.' ' Tandem veniens Aegelwinus Alderman ad Grante- 
 burge habuit ibi grande placitum civium et hundretanorum coram xxiv 
 judicibus.' Ibid. p. 478. 
 
 ^ Select Charters, p. 137. See also Hallam, M. A. ii. 3S6 sq.
 
 104 Constitutional History/. [chap. 
 
 Theealdor- tloubtetP : the number of hundreds in each shire must have 
 hundred- prevented a monthly attendance at each, and it is more likely 
 ™°*^ ■ that the one or tvio occasions on which the ealdorman is men- 
 
 tioned as present were cases of exceptional impoi'tance. The 
 sheriff may not improbably have been rej)resented by a deputy, 
 * gingra '^ or junior ; who would look after the king's rights. 
 Jurisdiction The hundred court was entitled to declare folk right in every 
 dred. suit^ ; its jurisdiction was criminal as well as civil, and volun- 
 
 tary as well as contentious. It tried criminals, settled disputes, 
 and witnessed transfers of land. The testimony of the country 
 and the recoi'd of the law were supplemented by the compur- 
 gatory oath and ordeal. It had also a common chest which 
 di\ided the profits of jurisdiction with the king and the lord 
 or land-rica* ; and no suit might be carried to a higher court 
 unless it had been first heard in the hundred^. The suitors 
 were under special protection of the law on their way to and 
 from it ; and those who neglected the summons to it were 
 fined^ 
 
 As was the case with the township, the organisation of the 
 hundred lent itself i-eadily to the judicial, ecclesiastical and 
 fiscal developments of later times. The criminal jurisdiction 
 of the hundred is perpetuated in the manorial court leet. On 
 Thehun- the institution of the frankpledge, a hundred coui't was held 
 as sheriff's twice a year to ascertain the observance of the law ''. This 
 became the business of the sheriff's tourn of later times, held 
 twice a year, in the octave of Easter and Michaelmas, in 
 different parts of the county. It was the great court leet, as 
 the old hundred court was the court baron of the hundred, and 
 the county court that of the shire^ : the distinction of origin 
 being maintained in the principle that in the courts baron, 
 whether in the manor, the hundred or the shire, the suitors 
 
 ' Gneist, Venvaltungarecht, i. 78 ; Palgrave, Commonwealth, pp. 98, 99, 
 
 * Alfred, 38, § 2, speaks of the kinf^'s ealdorman's gingra or junior as 
 liolding pleas. They are mentioned also in three charters of Berhtwulf 
 king of Mercia, Kemble, C. D. ii. pp. 14, 25, 34. 
 
 ^^Edgar, i. § 7. * Ibid, § 3. 
 
 * Athelstan, ill. § 3 ; Edgar, iii. 2 ; Canute, ii. 17, 19. 
 
 * For illustrations see below, p. 114, note 6. 
 ' Hen. 1, viii. §1. * Blackstone, Comm. iii. 33, 34; iv. 373. 
 
 tourn.
 
 v.] The Taxation of the Ilnndred. 105 
 
 Avere the judges, wliilst it was otherwise in the courts leet\ and 
 in the sheriff's tourn among them, the steward being judge in 
 the leet, the sheriff judge in the tourn ^. The criminal jurisdic- 
 tion of the hundred was early cut up by grants of sac and soc, 
 and later on was lost or merged in the general jurisdiction of the 
 crown exercised by the judges in assize, in which it appears only 
 as helping to constitute the juries. 
 
 There can be no doubt that the organisation of the hundred The imn- 
 \ t f 1 • /• • 1 • ji Hi. /. (Ired as an 
 
 had a fiscal importance, not merely as furnishing the profits 01 area for 
 fines and the produce of demesne or folkland, but as forming 
 a rateable division of the county. The fiscal system of the Anglo- 
 Saxons is very obscure ; and it may be questioned whether any 
 money taxation properly so called ever existed before the 
 imposition of Danegeld by Ethelred the Unready. The tribute 
 from the remaining folkland, and the rent of the royal demesne, 
 which was scarcely a tax, sufficed for most of the expenses of the 
 king's household. The obligations of the trinoda necessitas 
 were discharged by personal service. The profits however of 
 each hundred were no doubt accounted for by the sheriffs, and 
 when general taxation became necessary it would be collected 
 by the same machineiy. When King Edgar confirmed the bishop 
 of Worcester in the possession of his estates, he made up the 
 amount of land by new grants to the extent of three hundreds, 
 which he directed to furnish one scjqifylled or * navipletio ' ^ to 
 the national fleet. In the year 1008 Ethelred ordered that 
 a ship should be furnished by every three hundred hides* and 
 we learn from Domesday that tlie hundred of Oswald's law, com- 
 prising the three hundreds of Edgar's charter, contained three 
 
 * Viner's Abridgment, vii. 8. Although the suitors are judges in the 
 court baron, the steward is judge in the court customary of the copy- 
 holders, a result of the early depression of the free into dependent town- 
 ships, as well as of the later organisation of manors. 
 
 * Ibid. vi. 586; vii. 3. 
 
 ' Dugdale, ISIon. Angl. i. 617, 61S, 'scilicet ut ipse episcopus cum mon- 
 achis suis de istis tribus centuriatibus . . . constituant unam navipletiouem 
 quod Anglice dicitur scj-pfilled, oththe Scy]iborae.' Kemble, C. D. vi. 240, 
 for the last word reads ' scypsocne.' The town of Bedford paid towards 
 ships as much as a third of a hundred. Domesd. i. 209, Warwick furnished 
 four batsweins. Ibid. i. 238. 
 
 * Chron. Sax. A. D. 1008.
 
 io6 Constitutional History. [chap. 
 
 liundred hides \ It may be inferred then that every three 
 hundreds were liable to be called on to furnish one ship, whilst 
 eveiy ten hides were accountable for a boat, and every eight 
 hides for a helm and breastj)late^. 
 orliberti^^ 47. In Anglo-Saxon as in later times, there existed side 
 by side with the hundreds and wapentakes large y?*anc/mes or 
 liberties in which the jurisdiction was vested in private hands. 
 To these exempt districts the name of sitliesocn has been given, 
 on somewhat scanty authority^, indicating their origin in a grant 
 by the king to one of his gesitlis or companions, of an estate 
 upon which he may enjoy all the rights and profits that had 
 belonged to the king, nominating the officers and exercising the 
 jurisdiction. The particular rights thus conveyed were termed 
 sac and soc, to which others, toll and team and the like, were 
 frequently added*. In some cases exemption from the hundred 
 is specially mentioned^, in which case the grantee would hold 
 the courts on his own estate. In other cases the jurisdiction of 
 the hundred is itself granted, even when the ownership of the soil 
 was not affected by the grant. In the latter case the status of 
 the free tenant within the hundred would not be at first changed 
 by the gift. Far the largest proportion of these jurisdictions 
 belonged to the churches and coincided with the ownership of 
 the soil, which the clergy leased out to their sokemeu on fairly 
 
 ' Doinesd. i. 172. 'Ecclesia S. Mariae . . . habet unum hundret quod 
 vocatur Oswaldeslaw, in quo jaceiit ccc hidae.' 
 
 ^ Chron. Sax. A. D. 1008, with Earle's note, pp. 3.^6, 337. 
 
 * The word ' sithesocn ' does not occur in any ancient document, unless in 
 the form of ' sipessocna,' which Dugdale and other scliolars following him 
 regarded as a miwreading of ' sibewocna.' It is found in the laws of Henry I, 
 vi. § I, and two or three times in the Pipe Rolls. Archdeacon Hale 
 argued from the use of the word ' scypsocne ' in Edgar's charter, quoted 
 above, p. 105, that it referred to the association of three hundreds to pro- 
 vide a ship's crew; Hale, Register of Worcester, p. xxxiii. But if this be 
 thought im])robal)le, it is scarcely wise to regard it as an authentic term 
 for the jurisdiction of a franchise. Hee Roberts(m, Scotland under her 
 Early Kings, ii. 336, 457; Essays, p. Ixvi ; Dugilale's Warwickshire, p. 4; 
 Thorpe, Anglo-Saxon Laws, i. 512 ; Lappenberg, ii. 331. 
 
 * See (or examples, Kendjle, C. D. iv. 138, 1S7, 233, 247. 
 
 " Edward the Conffssor frees certain lands of W^estminster from t])e 
 shire and the hundred; Kemhle, C. D. iv. 191, 213. There were seven 
 hundreds in Worcestershire, ' ita quieti, sicut scira dicit, quod vicecomes 
 nichil habet in ei«.' Domesd. i. 172.
 
 v.] Judicature of the Hundred. 107 
 
 liberal terms. Edward the Confessor gave the hundred of Home- The lum- 
 
 o mi (Jreu court 
 
 mere to Abingdon \ and that of Goddelie to Chei-tsey". The ex- in piivute 
 tent to which these exemptions must have weakened the hundred 
 organisation may be inferred from the statement that the thegn 
 holding five hides often if not always had a right of magistracy, 
 a bui"h-geat-setl ^, But although separated from the body of the 
 hundred in this way, the liberties were not exempt from the 
 jurisdiction or organisation of the shire, and may be regarded as 
 private hundreds standing to the others in a relation analogous 
 to that wliich existed between the free township and the manor 
 of the lord : and they are often regarded simply as larger manors. 
 In all these the machinery of the hundred or wapentake was 
 strictly preserved, and the law was administered on the same 
 principle. The sokemen elected their officers and made report, 
 the steward of the lord acting as president in their courts and 
 leading them in a separate body to the host. This is especially 
 provided by Edgar in the charter akeady referred to : the tenants 
 of the see of "Worcester are to fulfil their militaiy duties not 
 with the king's servants or the exactors of the hundi'ed, but 
 under the bishop as their archiductor *. 
 
 The courts of the great franchises, where they still exist, will Modern 
 be found to furnish the best instances of the ancient constitution 
 of the hundred court : for they were less touched than the 
 hundred courts themselves by general legislation, and have 
 preserved their constitution in greater integrity. In the courts 
 of the Eorest of Knaresborough each of the townships or 
 berewics which form the manor of the forest is represented by 
 the constable and four men ^ ; from these the jurors of the leet 
 are chosen ; and by them the praepositus or grave, and the 
 
 ' Kemble, C. D. iv. 200. In Domesday, i. 280, the Countess Godeva is 
 said to have had sac and soc in the whole wapentake of Newark. 
 
 ^ Kemble, C. D. iv. 206, 207. The jurisdiction of eight hundreds and a 
 half was gi-anted by tlie same kinsr to S. Edmund's. Ibid. iv. 243, 253; 
 vi. 203. The gifts of hundreds to Ely and Peterborough by Edgar, ibid. iii. 
 61, 93, are of questionable authenticity. 
 
 ' Ranks, § 2. 
 
 * Mon. Angl. i. 617. So in Domesday, i. 87, the men of Taunton attend 
 the courts of the bishop of Winchester, ' profectio in exercitum cum homin- 
 ibus episcopi.' 
 
 * Hargrove, Hist, of Knaresborough (ed. 1798), pp. 44, 45.
 
 io8 Constitutional History, [chap. 
 
 bedell. In the manor of Wakefield the repi'esentation is 
 
 by the constable and two men, just as in 1181 in the half 
 
 hundred of Chingford in Essex the tenants of St. Paul's were 
 
 represented by the reeve and two men ^. There is no ground 
 
 for connecting the hundred with the tithing of frankpledge, 
 
 other than the right of the former to view the frankpledges in 
 
 a half-yearly court. In the ecclesiastical system the hundred 
 
 bore the same relation to the deanery rural as the township 
 
 bore to the parish : but the deaneries do not alwaj'S coincide 
 
 geographically with the hundreds. 
 
 Interme- 48. Between the hundred, or wapentake, and what is now 
 
 diatedivi- , , . . . -i i i •> • -,- t • • 
 
 sions: com- the shii'e, it is possible that other intermediate divisions may 
 binations of , , • i i • • 1 • t p 
 
 hundreds, at an early period have come in ; answering to the ridings ot 
 
 Yorkshire and Lincolnshire, the rapes of Sussex and the lathes 
 
 of Kent. If this were the case they may have had courts of 
 
 their own as is the case with the lathe, and officers of their own 
 
 such as the tithing-reeve and the leide-reeve who occur in two 
 
 manuscripts of the so-called laws of Henry I '^. But the evidence 
 
 of such aiTangement is altogether wanting. The association of 
 
 two, three or more hundreds is occasionally mentioned as used 
 
 for the purpose of witness^, a custom which may be interpreted as 
 
 the relic of some more sjTametrical arrangement, but is more 
 
 probably a mere expedient for extending the application of 
 
 the compurgatory system. All the intermediate districts which 
 
 bear the name of shire and have been already referred to, are 
 
 of too late formation to illustrate this supposition. The lathe 
 
 Bystcm in Kent answers closely to that of the hundred elsewhere, 
 
 and all the existing machinery of the ridings, save the name 
 
 and boundaries, is comparatively modern *. 
 
 * Hale, Domesday of St. Paul's, p. 144. 
 ^ Schmid, Gesetze, p. 663. 
 
 ^ Etlielred, i. i, § 3 ; Canute ii. 30, § 3. Hist. Ely, pp. 473, 475, 479. 
 
 * Tlie territorial arrangements of the Domesday hundreds are now so 
 much changed that it is dani^crous to generalise from them, but some in- 
 stances may be given. Euckinghamshire in Domesday contained eighteen 
 hundreds ; these arc now combined into five hundreds of three each, 
 and tliree old liuiidreds which also have a collective name, the Chiltern 
 Hundreds. The arrangement in threes may be as old as the naviidetio 
 referred to above (p. 105). Lancashire and Leicestershire, which Mr. 
 Robertson (Essays, p. 1 20) refers to as retaining the ancient division into
 
 v.] The Shire. 109 
 
 The name scir or Bliirc, which marks the division imme- The shire, 
 diately superior to the hundred, merely means a subdivision or 
 share of a hirger whole, and was early used in connexion with 
 an official name to designate the territorial sphere appointed to 
 the particular magistracy denoted by that name. So the diocese 
 was the bishop's scire \ and the stewardship of the unjust steward 
 is called in the Anglo-Saxon translation of the Gospel his groef- 
 scire ^ : and we have seen that the original territoi-ial hun- 
 dreds may have been smaller shires^. The historical shires or Creation of 
 
 . . X 1 CI modern 
 
 counties owe their origin to different causes*. Kent and Sussex shires. 
 
 are two of the Heptarchic kingdoms, of which their lathes and 
 rapes are perhaps the original shires. Kent however appears 
 as 'Cautescp-e' as early as the reign of Athelstan^. Essex, 
 Middlesex and Surrey are also ancient kingdoms. Norfolk and 
 Suffolk are the two divisions of East Anglia, representing 
 possibly the two 'fylkis' or folks into which the Norsemen 
 divided their province ", or possibly the two dioceses assigned to 
 Elmham and Dunwich before the invasions of the Danes. Of 
 the Northumbrian kingdom, Yorkshire is the only one of the 
 existing subdivisions which dates as a shire before the Con- 
 quest. Mercia, during its existence as a kingdom, was arranged 
 into five regions none of which bore the name of shires : 
 Lindsey, the district of the Lindisfari and diocese of Sidnacester ; 
 Hwiccia the diocese of Worcester and its appendant Magasse- 
 tania ; Mercia proper with its bishop at Lichfield and its royal 
 city at Tamworth ; Middle Anglia and South Anglia, dependent 
 ecclesiastically on Leicester and later on Doi'chester. These 
 represent the early settlements out of which the Mercian kingdom 
 was created by Penda and his immediate predecessors, and which 
 
 six hundreds (above, p. loi note 3), have been somewhat rearranged since 
 the Domesday Survey, but the fact may go in support of the same theory. 
 
 > Bede, H. E. iii. 7. &c. &c. (Alfred). 
 
 ^ Lindisfarne Gospels, iii. 130; S. Luke xvi. 2. 
 
 ' Above, pp. 98, loi. 
 
 * On this see Palgrave, Commonwealth, pp. 116, 117 ; Gneist, Verwalt- 
 ungsrecht, i. 56, 57. 
 
 * Athelstan, iii : ' omnes Cantescyrae thaini ' ; possibly only a late trans- 
 lation of an Anj,do-Saxon document. 
 
 ® Eobertson, Hist. Essays, p. 120.
 
 no 
 
 Constitutional History. 
 
 [chap. 
 
 Shires of were arranged as dioceses by Theodore before tlaeir several nation- 
 
 Mercia; ^• ^ ^ ^ c it- 
 
 ality bad been forgotten ; nor were they rearranged as shires and 
 named after their chief towns before the reconquest of Mercia from 
 the Danes under Edward the Elder. In Wessex however the divi- 
 of Wessex ; sion is more ancient; Ini speaks of the Scirman ; the names Hamp- 
 tonscire, Defnascire, and Bearrocscire ^ appear in the Anglo- 
 Saxon Chronicle as early as the reign ofEthelwulf, side by side 
 with the Dorssetas, the Wilseetas, and the SumersEetas. As the 
 earliest possible date of the chronicle is the age of Alfred, it is 
 not impossible that the arrangement may be due to that king- : 
 but it is probably much earlier, and determined by the divisions 
 of the early settlements of the West Saxons, or their successive 
 conquests. The terminology was not however general in the 
 time of Bede, who knew only the larger provinces of Mercia as 
 regiones, maegths or settlements of kindred tribes, and those of 
 Wessex as dioceses. The aiTangement of the whole kingdom in 
 shires is of course a work which could not be completed until 
 it was permanently united under Edgar ; and the existing sub- 
 divisions of Southern England are all traceable back to his day at 
 the latest. The Northern counties have undergone some changes 
 since the Conquest, although the new lines have been drawn on 
 older landmarks : Durham is the county palatine of the Con- 
 queror's minister, formed out of the patrimony of St. Cuthbert ; 
 Lancashire was formed in the twelfth century by joining the 
 Mercian lands between Ribble and Mersey with the northern 
 hundreds, which in Domesday were reckoned to the West Riding 
 of Yorkshire; Cumberland is the English share of the old Cum- 
 brian or Strathclyde kingdom ; Northumberland and Westmore- 
 land are the remnants of Northumbria and the Cumbrian frontier, 
 appropriated ecclesiastically to Durham or York, and temporally 
 to Appleby and Newcastle. 
 
 The constitutional machinery of the shire thus represents 
 either the national organisation of the several divisions created 
 by West Saxon conquest ; or that of the early settlements which 
 
 ' C'hron. Sax. A.n. 851, 860. 
 
 * Gneist, VcnvaUungsrecht, i. 56, consitlers A.n. 880 as the most probable 
 (late, and inclines to connect the division with the treaty arrangements of 
 Alfred and Guthnim. 
 
 of Nortli 
 umbria.
 
 v.] The Shire. iii 
 
 united in the Mercian kingdom, as it advanced westwards ; or 
 the reaiTangement by the West Saxon dynasty of the whole of 
 England on the principles already at work in its own shires. 
 A shire system had been at work in "Wessex as eaidy as the 
 reign of Ini ^. Whether, before the name of shire was intro- Question as 
 
 '^ to an earlier 
 
 duced into Mercia, the several msegths or regions bore any com- name for 
 raon designation, such as that of gau, must remain m entire 
 obscurity. Tiiere is extant a list of thirty-four divisions of 
 England, gathered out of Bede and perhaps other sources now 
 lost, and recording the number of hides contained in each ; the 
 termination 'ga' which is found here, in some cases, may be the 
 German ' gau ' ; but the age and value of the document are very 
 uncertain, and the divisions as a rule do not correspond with 
 the historical shires ^. 
 
 Each shire contained a number of hundreds, so various how- Number of 
 
 . ^ • •^ 1 1 • hundreds in 
 
 ever that it seems almost impossible to suppose that in any case the shire. 
 
 it was arranged on a numerical principle ; although, as each 
 
 three hundreds had to supply a ship, the number of hundreds 
 
 in each of the later constituted shires might be expected to be 
 
 a multiple of three. The organisation of the shire was of much 
 
 the same character as that of the hundred, but it was ruled by 
 
 an ealdorman as well as by a gerefa, and in some other respects Officers and 
 , .J - ., . . , • 1 1 i. -i. courts of the 
 
 bore evidence ot its previous existence as an indepenclent unity, shire. 
 
 Its gemot was not only the scir-gemot but the folc-gemot^ also, 
 
 the assembly of the people ; its ealdorman commanded not 
 
 merely the military force of the hundreds, but the lords of the 
 
 franchises and the chmxh vassals with their men. Its gerefa 
 
 or sheriff collected the fiscal as well as the local imposts. Its 
 
 ealdorman was one of the king's witan. 
 
 49. The ealdorman, the princeps of Tacitus, and princeps*, or 
 
 ' Tlie scir-man is .=ipoken of as the president of a court, Ini, § 8 ; the 
 ealdoi-man may forfeit his scir, ibid. § 39 ; and the dependent is forbidden 
 to withdraw from his lord into another scir, ibid. § 36. 
 
 ''' Gale, Eer. Angl. Scriptores, xv. 748 ; Kemble, Saxons, i. 81, 82 ; two 
 of the ga's are Noxga-ga and Ohtga-ga. 
 
 ^ Alfred, 38, § i ; Athelstan, ii. § 12 ; v. i, § i ; Ethelred, v. § 13 ; vi. 
 § 22. 
 
 * Ealdorman stands for princeps, Bede, H. E. iii. 15; and, generally, for 
 optimas, iii. 30; for subregulus, iv. 12 ; toTsatrapa, v. 10 ; for dux, iv. 13, 15.
 
 112 
 
 Constitutional History. 
 
 [chap. 
 
 The ealdor- 
 man. 
 
 Nominated 
 by the king 
 and witan. 
 
 Hereditary 
 succession. 
 
 The ealdor- 
 man ad- 
 ministered 
 several 
 shires. 
 
 satrapa, or subregulus of Bede, the dux of the Latin chroniclers 
 and the comes of the Normans, was originally elected in the 
 general assembly of the nation, and down to the Norman Con- 
 quest, even when hereditary succession had become almost the 
 rule, his nomination required the consent of the king and the 
 witenagemot. There is no reason to suppose that he was ever 
 elected by the body over which he was to rule ^ although some 
 form of acceptance by the shire may not impi-obably have been 
 gone through. The hereditary principle appears however in 
 the early days of the kingdom as well as in those of Edward the 
 Confessor ; in the case of an under-kingdom being annexed to 
 a greater, the old royal dynasty seems to have continued to 
 hand down its delegated authority from father to son. The 
 under-kings of Hwiccia thus continued to act as ealdormen 
 under Mercia for a century; and the ealdormanship of the 
 Gyrwas ^ or fen-countrymen seems likewise to have been here- 
 ditary. The title of ealdorman is thus much older than the 
 existing division of shires, nor was it ever the rule for every 
 shire to have an ealdorman to itself as it had its sheriff. The 
 ealdormanship of Mercia comprised a very large portion of 
 the Mercian kingdom ; Wessex in the reign of Ethelred was 
 aiTaufjed under two ealdormen ^. But each shire was under an 
 
 The first writer who uses ' comes ' as equivalent to ealdorman is Asser, and 
 the fact has been used as an argument against the genuineness of his 
 book. It occurs however in some of the questionable charters of Ethelwulf 
 apparently in the same sense. Kemble, C. D. ii. 50; v. 97. 
 
 ^ Gneist, Verwaltungsrecht, i. 76. 
 
 ^ Bede, H. E. iii. 20, iv. 19 ; Hugo Candidus (Spai-ke, p. 2) ; Felix, Vita 
 S. Guthlac ; Mabillon, Acta Sanctorum, iii. 260. 
 
 ^ On this point Mr. Robertson's essay on the ' King's kin ' (Essays, pp. 
 177-189) is highly instructive and suggestive. He argues that the great 
 ealdordom of Mercia subsisted until the banishment of Elfric the child in 
 985, and that of East Anglia until the death f)f Ethelwin in 992, after 
 which they were administered by high-reeves under the king until Canute 
 reconstituted tliem. Wessex he regards as divided into two great ealdor- 
 doms, that of the western and that of the central ])rovinces ; which, with 
 Kent under archbishop Sigeric, made a threefold division of the south of 
 England. Tliese, witli Essex and Northumbria, would make up seven great 
 territorial magistracies. But Sussex had an ealdorman as late as 982, and 
 the arrangements are so short-lived that it is iinpossiljle to regard them as 
 parts of a ])ermanent methodical system. And the same may be said even 
 of Canute's fourfold division.
 
 v.] The Ealdorman and Sheriff. 113 
 
 eaklorman, -who sat with the sheriff and bishop in the folkmoot, 
 received a third part of the profits of the jurisdiction \ and com- 
 manded the military force of the whole division. From the 
 latter character he derived the name of heretoga ", leader of the 
 host {here), or dux, which is occasionally given him in charters. 
 
 The sheriff or scir-gerefa, the scir-man of the laws of lui ^, The sheiifr. 
 was the king's steward and judicial president of the shire, the 
 administrator of the royal demesne and executor of the law. 
 His sphere of jurisdiction was distinctly a single shire, although 
 after the Conquest for a long period the shires were adminis- 
 tered in pairs. It is probable on early analogy that the gerefa 
 was chosen in the folkmoot ; but there is no proof that within 
 historical times this was the case *, although the constitutional- 
 ists of the thirteenth century attempted to assert it as a right, 
 and it was for a few years conceded by the crown. As a rule 
 he was, as a royal officer, nominated by the king; the ealdor- 
 man, as a national one, by the king and witan. The sheriff 
 as well as the ealdorman, was entitled to a share of the profits 
 of administration, and possibly had in some cases an endowment 
 in land^. 
 
 ' The third penny of the county appears from Domesday (i. i, 26, 203, 
 246, 252, 280, 298, 336) to have been paid to the earl in the time of Edward 
 the Confessor; Ellis, Introd. to Domesday, i. 167, i6S. Compare the share 
 of the count in the Capitulary of A.D. 783 ; one third to the count, two 
 thirds to the palace, Waitz, D. V. G. ii. 628 ; iv. 145. 
 
 ^ Elfhere, ealdorman of Mercia under Edgar, is called heretoga, Cod. 
 Dipl. ii. 383 ; iii. 5, 49, 159, 259 sq. His son Elfric is called ealdorman. 
 See Kemble, Saxons, ii. 126; Freeman, Norm. Conq. i. 581. 
 
 ^ Scirman, Ini, § 8 ; Ethelwin is scirman in Kent under Canute, Kemble, 
 C. D. iv. 9. See also iv. 304; Leofric, scires-man, iv. 267; and Wulfsi 
 priest, the shire-man, vi. 127. Pontius Pilate is scirman of Judaea, St. 
 Luke iii. i. The word used in the laws is generally gerefa s'mply : scir- 
 gerefa however is found in charters, Kemble, C. D. iv. 10, where Ethel- 
 win, the scirman in Kent, is called scir-gerefa; also iv. 54, 201, &c. &c. 
 The Latin word is generally praepositus or praefectus. Ethelwerd (M. H.B. 
 p. 509) calls the sheriff of Dorset exactor in A.D. 787. See above, p. 82. 
 
 * The statement of the chapter ' de lieretochiis ' in the so-called laws of 
 Edward the Confessor, is a fabrication of the thirteenth century at the 
 earliest, Schmid, Gesetze, p. 510. See Gneist, Verwaltungsr. i. 78. 
 
 ^ Such was the wardpenny paid in Cambridgeshire, Domesd. i. 190 ; the 
 allowances made to the sheriff of Wilts, in kind, are enumerated in vol. i. 
 69; and he also had rights in reveland, which possibly were attached to 
 his office. Reveland is mentioned also in Herefordshire, Domesd. i. 179, 
 181; Ellis, Introd. to Domesd. i. 168, 231; Allen, Prerog. p. 214. The 
 sheriff of Sh>ropshire had the third penny of the town of Shrewsbury, ibid. i.
 
 114 
 
 Constitutional History. 
 
 [chap. 
 
 Double go- 
 vernment by 
 ealdorman 
 and sheriif. 
 
 The shire- 
 moot. 
 
 The system of double administration by a national leader and 
 a royal steward, although common to the eai'ly Grermanic con- 
 stitutions, the Frank, the Gothic and the Lombard, is in its 
 later form almost peculiar to England. In the later Frank 
 kingdom the graf, who now stood in the place of the national 
 as well as the royal officers of eai'ly days, exercised the functions 
 of both in immediate dependence on the king •* ; and in medieval 
 Germany, where the title of duke or herzog presents some 
 analogy with that of the ealdorman, he is rather a national prince 
 than an imperial officer : every attempt made by the central 
 authority to assert its power thr£)ugh counts or counts-palatine, 
 ending in the foundation of new hereditary principalities, 
 either coordinate with or subordinate to the dukes, but in 
 both cases equally neglectful of any duties to the emperor. 
 In England, on the contrary, the sheriff'dom as a rule never 
 became hereditary, and after the Norman Conquest, undei- 
 the changed title or translation of vice-comes ^, it was used by 
 the kings as a means of ousting or preventing the creation of 
 any feudal rule such as that of the counts and dukes of the con- 
 tinent. The history of the sheriffdom is thus one of the most 
 important departments of Constitutional History. 
 
 50. The sheriff held the shiremoot, according to Edgar's law, 
 twice in the year ^. Although the ealdorman and bishop sat in 
 it to declare the law secular and spiritual, the sheriff" was the 
 constituting officer *. The suitors were the same as those of 
 the hundred court : all lords of lands ^, all public officers, and 
 from every township the reeve and four men ^. The latter point, 
 
 252. In Surrey were three manors from vvliich the sheriff had £7, 'de eo 
 quod impendit eis adjutorium cum opus habent,' Doniesd. i. 30. See 
 above, ji. 102, note 2. 
 
 ' Waitz, 1). V.G. ii. 363. Sohm, Fr. R. G. V. i. 156-181, 463-472. 
 
 ^ Viceconics occurs as the Latin word for slierifF in Canute's letter to 
 the bishops, given by Florence of Worcester : but this is clearly a transla- 
 tion of Norman date. ' Edgar, iii. § 3 ; Select Charters, p. 70. 
 
 * Hallam, M. A. ii. 283 ; Kemble, Saxons, ii. 158, 159. 
 
 " Called in this aspect scir-thegns, Kemljlc, C. D. vi. 198; iv. 170; 
 Saxons, ii. 2,'!4, 235. Kemble contends, and with good reason, that these 
 Hcir-tlu'gns are not necessarily king's thegns. It may be added tliat there 
 is no reason to regard them as all possessed of five liides of land, very many 
 of tlie thegns of Domesday having far less. See too Gncist, Verwaltgsr. i. 37. 
 
 " Com])are the following jiassages from Domesday: in Archenefield, i. 
 1 79, ' Si vicecomes evocat eos ad siremot, meliores ex eis, vi aut vii, vadunt
 
 v.] The Shiremoot. 115 
 
 loft questionable in the laws, is proved by the later practice. Attendance 
 In the county courts of the reiG;n of Henry III, the reeve and and four 
 four men took part in mattei's of election, of arming and of 
 assessment ; and in the reign of Edward I the Kentish horhs- 
 eahlor and his four fellows represented each township in the 
 court of the itinerant justices, itself a form of the county court. 
 Every one on his way to and from the gemot was under the 
 special protection of the law. 
 
 Here again the suitors were the iudcjes : but the twelve The twelve 
 senior thegns appear m the county court as well as m the 
 hundred \ and, on the institution of the grand-jury, present the 
 report of the hundred-. Thus limited, the authority of the sheriff 
 was rather that of a chairman or moderator than that of a judge. 
 The duty of seeing the law executed devolved upon him, and in 
 fiscal as well as judicial matters he exercised a good deal of 
 somewhat irresponsible power. 
 
 Besides the judicial power of the shiremoot, which, like the Vestiges of 
 hundred, was competent to declare folkright in every suit^, aKioninthe 
 some shadow of legislative authority seems to have remained to 
 it in the time of Athelstan, when the bishops of Kent and all 
 the thegns, eorl and ceorl*, of Cantescyre, declared to him in 
 their gemot at Faversham, their acceptance of the measures 
 taken for the maintenance of the peace in the recent witena- 
 
 cum 60. Qui vocatus non vadit dat ii solidos aut unum bovem regi, et qui 
 de hundret remanet, tantundem persolvit.' In the city of Hei-eford, ' qui 
 equum habebat ter in anno pergebat cum vicecomite ad placita et ad hun- 
 dret.' Ibid. In Derby hundred (inter Ribble et Merse), ' Si de hundredo 
 remanebat aut non ibat ad placitum ubi praepositus jubebat, per v solidos 
 eniendabat.' Ibid. i. 269. The participation of ceorls in tlie shiremoot is 
 mentioned in a charter of Canute, Cod. Dipl. iv. 11, and illustrated by the 
 direction of writs to all thegns of the shire twelf-hynd or twy-hynd. 
 
 * Compare the direction of Lewis the Pious in a.d. 819, that every graf 
 should attend the general ])lacita with twelve scabini, or, if there were not 
 so niany, the number -should be made up from the best men of the county. 
 See Savigny, i. 248; Waitz, D. V. G. iv. sq. The appearance of the senior 
 thegns in the -shiremoot is mentioned in Cod. Dipl. iv. 137. 
 
 ^ Select Charters, pp. 137, 251. 
 
 ' But with a restriction of appeal until the lower court had failed to do 
 justice. In the same way the shiremoot intercepted all appeals to the 
 king, Hallani, M. A. ii. 285. Wills are frequently attested by it, e.g. 
 Kemble, C. D. vi. 198. Other acts done before the shire will be foimd in 
 Cod. Dipl. iv. 117, 137, 138, 234; iii. 292. 
 
 * Comites et ^^llaui, Athelstan, iii. 14S ; Kemble, Saxons, ii. 233, 234 ; 
 Hallam, M. A. ii. 376; Palgrave, Commonwealth, p. 637. 
 
 I 2
 
 ii6 Constitutional History. [chap. 
 
 gemot of Greatley. la this we may trace a I'ecognition of the 
 importance of the popular reception of a law', which induced 
 Charles the Great to ask the consent of the mallus to the capi- 
 tularies which he had drawn up^, and which appears in England 
 in the measures taken for the publication and preservation of 
 !Magna Carta. 
 Evidence of The institution of the shiremoot in England is not paralleled 
 nationality by any similar arrangement in the primitive Frank kingdom, in 
 which the hundred court or mallus admits of no appeal, except 
 to the judgment of the king ^. This point further illustrates the 
 theory that in the shiremoot, as a folkmoot, we have a monument 
 of the original independence of the population which it repre- 
 sents. If the shire be the ancient under-kingdom, or the district 
 whose administrative system is created in imitation of that of the 
 under-kingdom, the shiremoot is the folkmoot in a double sense, 
 not merely the popular court of the district, but the chief council 
 of the ancient nation who possessed that district in independ- 
 ence, the witeuagemot of the pre-heptarchic kingdom. Such a 
 theory would imply the much greater preponderance of popular 
 liberties in the earlier system, for the shiremoot is a represen- 
 tative assembly, which the historical witenagemot is not ; and 
 this is indeed natural, for the smaller the size of the districts 
 and the more neai'ly equal the condition of the landowners or 
 sharers in the common land, the more easy it would be to as- 
 semble the nation, and so much the less danger of the supreme 
 authority falling into the hands of the king and the magistrates 
 without reference to the national voice. But this can only be 
 matter of conjecture. 
 iiatin§of Under the late shire-system, before as after the Conquest. 
 
 the shire. , , . . 
 
 the shire was a unit for purposes of rating. Each shire was 
 l)ound to furnish ships in proportion to its number of hun- 
 dreds'*, and from the produce of what had been the folkland 
 
 * Kemhlo, Saxons, ii. 238. 2 Waitz, D. V. G. iii. 506-510. 
 
 ^ .See Waitz, 1). V. (i. ii. 494. It was however usual among the Bava- 
 rians and, at a later period, general. 
 
 ^ Chron. Sax. a.d. 1008; with Earle's note, pp. 336, 337: see above, 
 p. 105. Hence ArchbiHhop Elfric leaves a ship to the people of Kent and 
 another to Wiltshire, Keuible, C. D. iii. 352.
 
 v.] The Shire. 117 
 
 contained in it, to pay a composition for the fcorm-fultum, Composition 
 or sustentation, of the king ^. The military contingents of the service. 
 shire were also made a matter of composition, the number of 
 fighting men furnished for the fyrd being often much smaller 
 than the number of hides which furnished them ^. Whether 
 these compositions were, as in the case of the churches, a matter 
 of privilege, can scarcely be determined in the almost entire 
 deficiency of secular charters before the Norman Conquest. It 
 is however probable from Domesday that long before that event 
 the shires had been allowed to acquit themselves of several of 
 these duties by paying fixed sums or furnishing fixed contin- 
 gents, answering in some measure to the firms, ferms or farms 
 for which the sheriffs were liable. 
 
 In ecclesiastical matters the shire had the same indefinite The shire 
 
 ecelesiasti- 
 status which belonged to the hundred : the archdeaconries, as eally. 
 
 geographical divisions, do not occur earlier than the twelfth 
 century. At that time the archdeacons, who had been ministers 
 of the bishop in all parts of the diocese alike, received each his 
 own district, which in most cases coincided with the county. 
 
 The sj'stem adopted by Edgar and Ethelred of combining the Combina- 
 government of a whole cluster of shires in the hands of a single several 
 ealdorman, is so nearly contemporary with the general institu- an eaidor- 
 tion of a shire-system for all England, that it can scarcely be 
 determined whether it is an exceptional departure from, or a 
 stage in, the development of the new rule. Until the shire- 
 system was made uniform, it is (luite possible that the witena- 
 gemots of the heptarcliic kingdoms may have continued to 
 exist ^. But after that organisation was completed, though one 
 
 ' Tlie county of Oxford paid firm of three nights, or 150Z. That of 
 Warwick paid 65^ and 36 sextaries of honey, Domesday, i. 154, 238. 
 Northamptonshire paid firm of three nights, ibid. i. 219. Many other 
 instances are adduced by Ellis, Introd. to Domesd. i. 261, 262. 
 
 ^ In Berkshire one man went for each five hides, each hitie paying four 
 shillings for his maintenance. The whole city of Exeter furnished only the 
 service of five hides. Oxford sent twenty burgesses to represent all the rest; 
 Leicester sent twelve, and, if the king was going to sea, furnished four 
 horses to convey arms to the fleet. Domesday, i. 56, 100, 154, 230. War- 
 wick sent ten. Ibid. i. 238 ; Wilton one man for five hides. Ibid. i. 64. 
 
 ^ The charters of Ethelred, ealdorman of Mercia under Alfred, are gene- 
 rally attested by Mercian bishops only, and therefore very probably issued
 
 ii8 Constitutional History. 
 
 The great ealdormau miglit govern and lead to battle the forces of several 
 
 earldoms do ■,-,-, ■, e -i • ' • ■\- • i 
 
 not involve suires, lie had no general court or gemot ot his jurisdiction : the 
 ganization of ealdorman of the Western provinces would take his seat in the 
 moot. folkmoot of Devonshu'e and Cornwall, but would not have a 
 
 united council for the two. Nor is there any reason to suppose 
 that after Canute had divided the Avhole realm into four earl- 
 doms, any such provincial witenagemots followed the institution. 
 The royal writs are directed to the bishop and earl and sheriff 
 of each shire, although both bishop and earl presided over 
 many such shires. Whether any subordinate officer took in the 
 shire the place of these powerful earls and ealdormeu, or whether, 
 if it were so, he also bore the title of ealdorman, can scarcely be 
 determined from our existing materials. On the one hand there 
 is no distinct mention of such official : on the other hand the 
 use of the word ealdorman was becoming very different from 
 what it had been ; it was superseded in the higher ranks of 
 organisation by the title of earl, and in the lower was acquiring, 
 or returning to, the primary and loose meaning of a head-man, 
 in which it could be applied to almost any local officer. But 
 however this may have been, there Avas no intermediate organ- 
 isation between the shire with its folkmoot and the central one 
 of the kingdom with its witenagemot. 
 
 in Mercian witenagemots. Cod. Dipl. ii. 107, 112; v. 126, 134, 140. In the 
 last case Ethelred states that he has summoned to Gloucester ' a;lle Mercna 
 weotan .... bisceopas and aldermen and alle his duguthe,' and that with 
 King Alfred's witness and leave. See also Cod. Dipl. v. 143, 154. There 
 are also charters of Edgar drawn up whilst he was king of the Mercians 
 only, and attested by the Mercian witan ; Cod. J)ipl. ii. 348, 358. The 
 charters of the kings of the West Saxon dynasty are of course often attested 
 by the West Saxon witan only. See Gneist, Verwaltgsr. i. 48. An East 
 Anglian witenagemot of A.D. 1004 is spoken of in the Chronicle, which may 
 or may not have been a folkmoot ; for East Anglia, like Kent, was only one 
 administrative division. See Freeman, Norm. Con(i. i. 103.
 
 CHAPTER VI. 
 
 THE WITENAGEMOT AND THE KING. 
 
 51. The witenagemot. — 52, Its composition. — 53. Its powers in legislation. 
 — 54. In grants of land. — 55. In judicature. — 56. In taxing and general 
 politics. — 57. In election of magistrates. — 58. In election and deposition 
 of kings. — 59. The king. — 60. Coronation and unction. — 61. His pro- 
 mises to his people 62. The oath of the people. — 63. The comita- 
 
 tus. — 64. Nobility by birth. — 65. Nobility by service. — 66. The ealdoi-- 
 raanship. — 67. Use of the wergild. — 68. The Bretwalda. 
 
 51. The civitas or populus of Tacitus, the union of several The supreme 
 
 • • A 1 CI 1 • 1-1 1 • assembly of 
 
 7)a<ji, IS in Anglo-oaxon history the rice, or kingdom ; and its the king- 
 
 . . . . . dom. 
 
 council, the concilium pnncipum, is the witenagemot or assem- 
 bly of the wise. This is the supreme council of the nation, 
 whether the nation be Kent or Mercia as in the earlier, or the 
 whole gens Angloinim et Saxonuni, as in the later history. The 
 character of the national council testifies to its history as a later 
 development than the lower courts, and as a consequence of the 
 institution of royalty. The folkmoot, or popular assembly of 
 the shire, is a representative body to a certain extent : it is 
 attended by the representatives of the hundreds and townships, 
 and has a representative body of witnesses to give validity to 
 the acts that are executed in it. If each shire represented a 
 complete kingdom, the shiremoot would give a complete repre- 
 sentative system existing in each kingdom. But as the small The witena- 
 
 '' . . gemot not 
 
 kingdoms coalesced or were united by conquest, it does not seem a folkmoot. 
 to have been thought necessaiy to extend the system ; the coun- 
 cil of the aggregated state is not a folkmoot but a witenagemot. 
 In those early kingdoms again, which were identical with the 
 later shires, Kent for instance, it might be expected that we
 
 I20 Constitutional History. [chap. 
 
 should find two central councils, the folkmoot or council of the 
 people of Kent, and the witenagemot or council of the chiefs, 
 Question as answering to the greater and narrower assemblies of the plehs 
 existence of and of tlie prindi^es in the Germania. It is by no means im- 
 aml witena- probable that such was the case ; but as our knowledge on the 
 '^*'™*^ ' subject is derived from the charters attested by these assemblies, 
 
 or issued with their consent, and as the consent of the witan only 
 was necessary for the transfers of land, we have not the docu- 
 mentary evidence that would suffice for proof. "We have many 
 charters issued in witenagemots under the kings of Kent ; but 
 the only document issued by a folkmoot of Kent belongs to a date 
 Avhen it had long been without a king^. The customs, however, 
 of the folkmoot are so common and so ancient, that they afford 
 a strong presumption of their universality ; so that Kent and 
 Sussex, and perhaps Essex and East Anglia, maybe fciirly supposed 
 to have had the two regular assemblies in primitive simplicity as 
 long as they continued independent^. With regard to Wessex 
 and Mercia, which were aggregations of smaller states, no 
 such hypothesis will hold good. There is no probability that a 
 Mercian king would introduce a new constitution into the or- 
 ganisation of his kingdom. It was enough that the Hwicciaus, or 
 Hecanians, or Magassetanians had their folkmoot, without the 
 Mercians having one too ; and it was enough for the king, as 
 ruler of !Mercia, to have his witenagemot without continuing to 
 hold similar gatherings as overlord of Hwiccia and the associated 
 districts. The folkmoot was left to the shire, the witenagemot 
 was gathered round the king. 
 Question as Yet even in the seven kingdoms, even in the united kingdom, 
 therinKof when there was a general summons to the host, some concentra- 
 mMtsiri tlon of the armed folkmoots must have taken place. For the 
 promulgation of the hnvs also, at least in the period before Alfred, 
 the national assembly must have comprised a much wider class 
 
 * Athelstan, iii : ' Karisaime, Episcopi tui de Kancia et omnes Cantescyrae 
 tliaini, coniitcH ct villani.' See Kemble's comment, Saxons, ii. 234, 235 ; 
 Hallain, M. A. ii. 377. 
 
 * See (;nci--t, Verwaltungsrecht, i. 43, who seems to take a contrary view, 
 and regards the witenagemot and folkmoot of the small kingdoms as iden- 
 tical. Both views are of course conjectural. 
 
 arms.
 
 VI.] The WUeiiagemot. I2i 
 
 than the wltan ^ On great occasions too, coronations and the General pa- 
 
 theriiigs ol' 
 
 like, during the history of the later West Saxon dynasty'^, or the nation at 
 
 , P -r^ • 1 . . v. ; thewitena- 
 
 on the sudden emergency of a Danish invasion, or for the re- gemot, 
 ception of Canute's promulgation of Edgar's laws^, we must 
 understand the witenagemot to have been attended by a con- 
 course of people whose voices could be raised in applause or 
 in resistance to the proposals of the chiefs *. But that such 
 gatherings shared in any way the constitutional powers of the 
 witan, that they were organised in any way corresponding to not organ- 
 the machinery of the folkmoot, that they had any representative presentative. 
 character in the modern sense, as having full powers to act on 
 behalf of constituents, that they shared the judicial work, or 
 except by applause and hooting influenced in any way the 
 decision of tlie chiefs, there is no evidence whatever. They 
 might, by an easy and welcome fiction, be considered as repre- 
 senting the nation, although they were really the mere retainers 
 of the nobles or the inhabitants of the neighbouring villages. 
 
 So long as the heptarchic kingdoms lasted, each having its l^I'*'.?f'^^^- 
 own witenagemot, there was no attempt at general organisation only unity. 
 even for cases of the greatest emergency, except the eccle- 
 siastical. The provincial or family tie was as strong as ever, 
 
 * See the prologues to the Laws of WihtrsEd and Ini. 
 
 ^ For example, in A.D. 1051, when Godwin was exiled : 'Rex in suo 
 concilio et omnis exercitns uuanimi consensu .... decreverunt.' Flor. 
 Wig. A.D. 1051. 
 
 ^ Freeman, Norm. Conq. i. 103, and Appendix Q, thinks tliat ' every 
 freeman retained in theory the right of appearing in the Assembly of the 
 kingdom '; and adds, ' expressions are found which are quite enough to 
 show tliat the mass of the people were theoretically looked on as present 
 in the national Assembly, and as consenting to its decrees.' Most of the 
 passages quoted in favour of this opinion refer to the occasions on which 
 a king was elected, or laws pi'omulgated. Kcnible, Saxons, ii. 239, fur- 
 nishes similar quotations from charters : Cod. Dipl. Ixxiii, ' cum praesentia 
 populationis ' ; ccclxiv, ' tota populi generaUtate ' ; mciii, ' tota plebis gene- 
 ralitate.' He sums up thus, ' Whether expressions of this kind were in- 
 tended to denote the actual presence of the people on the spot ; or whether 
 populi(s is used in a strict and technical sense, that sense wliich is confined 
 to those who enjoy the full franchise, those who form part of the iroKirfvixa, 
 or finally, whether the assembly of the witan making laws is considered 
 to re[)resent in our modern form an assembly of the whole people, it is clear 
 that the power of self-government is recognised in the latter.' Ibid. ■240. 
 
 * Such was the case in the shiremoot. Cod. Dipl. mcxxix, where all the 
 people who stood around cried out, ' Sy hit swa, Amen, Amen.' Kemble, 
 Saxons, ii. 238.
 
 123 
 
 Constitutional History. 
 
 [chap. 
 
 Occasional 
 meetings of 
 kings in the 
 heptareliic 
 period. 
 
 Ascendency 
 of one great 
 king or 
 djiiasty. 
 
 Frank 
 assemblies. 
 
 and although the gens Anglorum had leai-ned to recognise itself 
 under one collective name as early as the time of Augustine, 
 it was only on the ancient lines that any power of organisation 
 was developed until the cluu'ch was strong enough to form a 
 national union. The kings met occasionally for alliance or for 
 arbitration ; for some great purpose, such as the choice of a 
 primate ^ ; but the nation met only in the ecclesiastical councils, 
 which were held with some frequency, from the days of Theo- 
 dore to those of Athelstan, quite apart from and independently 
 of the witenagemots of the several states. As occasionally the 
 kings, and frequently the ealdormen, of different kingdoms 
 attended these assemblies, and as they were, like other courts, 
 useful for the witnessing of acts which required powerful attest- 
 ation and general promulgation, the nation learned from them 
 the benefit of common action. Another powerful help in the 
 same direction must have been the ascendency, during the whole 
 of that period, of some one great prince, who by war or alli- 
 ances exercised an overwhelming influence over the rest. Such 
 a position was occupied after the middle of the seventh century 
 by the kings of Northumbria, during the eighth by those of 
 Mercia, and, after the rise of the West Saxon power, by Egbert 
 and his successors. But the existence of this hegemony, whether 
 or no its possessor boi"e the title of Bretwalda, was not accom- 
 panied by unity of organisation or even by any act of con- 
 federation. 
 
 In the Frank kingdom, if we may accept the testimony of 
 Adalhard to the existence of the rule, some shadow of the double 
 council of the Germania seems to have been preserved ^. Charles 
 
 ' Bede, H. E. iii. 2q : ' Reges Angliae nobilissimi, Oswiu provinciae Nor- 
 danhyiiiliroiuni et Ecgberct Cantuariorum, habito inter se consilio,' &c, 
 JVIiiny instaiiccH of deliberatiou between the kings preparatory to the re- 
 ception of Chriwlianity may be found in I'ede. A clear example of more 
 general deliberation is furnished by Bishop Waldhere, in his letter to Briht- 
 wald (Councils, &c. iii. 274) : ' Ante pauoos autom dies hoc j)lacitum com- 
 muni ccjnsensione contlixerunt, ut in idus Kalendarum Octobrium, in loco 
 qui dicitur Breguntford omnes adveiiissent reges ainl)aruin partium, epi- 
 Hco))i et aijbates judicescjue reIi({uos, et iuibi adunato consilio omnium 
 dissiniultatiim cau.sae deterniinarentur.' 
 
 " ' ConHuetiido autem tunc teinporia erat nt non .saepius sed bis in anno 
 placita duo tenerentur. Unum ^uando ordinubatur status totius itgni ad
 
 VI.] The Witenagemot. 123 
 
 the Great held two great annual assemblies of his people, one in The sprinK 
 
 1 • 1 -IT • 1 1 1 • IP atidautumu 
 
 May at the Campus Madius, which Pippin had substituted for gathering. 
 the Campus Martins of the ^lerovingiaiis ; and another in the 
 autumn. The spring meeting Avas attended by the inajores, 
 optimates, and seniores, and held at the same time with the 
 great military levy, the assembly of the people in arms. The 
 autumnal one comprised the royal counsellors only, and answered 
 nearly to the witenagemot\ But although these assemblies 
 afford a superficial parallel with the system sketched by Tacitus, 
 the functions of the principes and the plebs were interchanged : 
 in the first, the optimates were assembled 'propter consilium 
 ordinandum '; the minores were allowed to be present ' ad con- 
 silium suscipiendum,' sometimes also 'pariter tractandum,' but 
 not as of old to give authority to the determinations of the 
 lords. It was in the autumn council, to which only the seniores 
 and chief counsellors were admitted, that the policy of the 
 ensuing year was settled. 
 
 Without denying that occasionally an Anglo-Saxon kino- Question as 
 
 . . . ? . tothesimi- 
 
 might call together his witan, and hold his militaiy review at lar practice 
 
 •• 1 1T1T-C11 in England, 
 
 the same time, it may be generally concluded that, ii such had 
 
 been the rule, some evidence would have been forthcoming. Of 
 
 anything like the Campus Madius there is no trace : but very 
 
 many of the dated charters of the period Avere issued in the 
 
 anni vertentis spacium, quod ordinatiim nnllus eventus rerum, nisi summa 
 necessitas quae similiter toto regno incurabebat, mutabatur. In quo placito 
 generalitas universorum niajoruni tain clericoruin quani laicorum conve- 
 nicbat ; seniores propter consilium ordinandum, minores propter idem 
 consilium suscipiendum et interdum pariter tractandum, et non ex po- 
 testate, sed ex proprio mentis intellectu vel sententia, confirmandum. Cae- 
 terum autem propter dona gen eraliter danda aliud placitum cum senioribus 
 tantum et praecipuis consiliariis habebatur ; in quo jam futuri anni status 
 tractari incipiebatur, si forte talia aliqua se praemonstrabant, pro quibus 
 necesse erat praemeditando ordinare, si quid mox transacto anno priore 
 incumberet pro quo anticipando aliquid statuere aut providere necessitas 
 esset.' Adalhard (ap. Hincmar), cc. 29, 30. On the interpretation, see 
 Waitz, D. V. G. iii. 463 sq.; Kemble, Saxons, ii. 187-191. The Capitu- 
 lary of Pippin (Baluze, i. 1 19), § 4, orders, ' ut bis in anno synodus fiat,' on 
 March 1 and Oct. t, in the king's presence : the ecclesiastical assembly was 
 thus in strict analogy with the general one. 
 
 * There are difficulties in harmonising Adalhard's account with historical 
 data; but the jirinciple enunciated in it is the onlj- important question as 
 illustrating early practice. See Waitz, D. V. G. iii. 465.
 
 124 Constitutional History. [chap. 
 
 autumn ^ ; and it is by no means improbable that the reception 
 of annual presents^ after harvest, Avhich was a regular pai't of 
 the agenda of the Frank court, may have caused a similar meet- 
 Three gi-eat ing in the early kingdoms. As we approach the Conquest, it 
 
 jinnual i i i i i -i i i 
 
 courts. seems more probable that the great courts were held as they 
 
 were by William the Conqueror, at Easter, Whitsuntide, and 
 Christmas ■''; and that the deliberations of the witan took place 
 in them. Such coui'ts would account for large gatherings of 
 the people who, although without organisation, might be re- 
 garded as representing the nation at large *. 
 Members of 52. The members of the assembly were the wise men, the 
 gemot. ' sapientes, witan ; the king, sometimes accompanied by his wife 
 and sons ; the bishops of the kingdom, the ealdormeu of the 
 shires or provinces, and a number of the king's friends and 
 dependents. These last generally describe themselves as inini- 
 stri, king's thegns, and numbered amongst themselves no doubt 
 the chief officers of the household, and the most eminent of the 
 persons who, in the relation of gesith or comes to the king, held 
 portions of folkland or of royal demesne, and were bound to 
 him by the oath of fealty. These ministri answer roughly to 
 the antrustions and vassi of the Frank court ; but the term is a 
 very general one, and perhaps embraced others than the sworn 
 dependents of the king^. Occasionally a praefectus or gere/a 
 
 * See Cod. Dipl. Ixxix, Nov. 24: xcvii, Sept. 29: cxl, Sept. 22: cxc, 
 Aug. 6 : cxcvi, Aug. i : cci, Nov. 25 : ccxvi, Sept. 20 : ccxviii, Sept. 30 : 
 ccxxvii, Aug. 28 : — the later charters are seldom dated, and the dating 
 of such documents generally weakens rather than confirms then- churns to 
 genuineness. The ecclesiastical councils were mostly held in autumn ; that 
 of Hertford on Sept. 24, 673 : in this an animal council on the 1st of August 
 at C'lovesho was ordered. Tlie council of Hatfield was Sept. 1 7, 680 : that 
 of Berghamsted on the 6th of Rugern or August (Schniid, Gesetze, p. 15) : 
 that of Bretitford, Oct. 16, 705 : that of Clovcsho, July, 716 : another at 
 Clovesho, Sept. 747 : one at Pincahala, Sept. 2, 787 : one at Aclech, Sept. 
 ■29, 788 : the great council of Clovesho, Oct. 6-1 2, 803 : and that of Chelsea, 
 July 27, 8t6. (See Councils, &c. iii.) 
 
 * Annual presents were offered also at the spring gathering; but the 
 autunm must have l)een the most natural time. Instances of both are 
 given by Waitz, D. V. G. iii. 479. 
 
 ■' ' Easter and Christm.as were usual times for the meetings of the witan.' 
 Kemble, Saxons, ii. 191. Documents ai'e dated at Easter, Cod. Dipl. cxciv, 
 cclxx, cclxxi, &c. : at (!liristmas, ccili, ccxxxii (Egbert), ccxlvii, ccxlviii, 
 ccxlix ; at Whitsuntide, ccxvii, &c. * Kemble, S;ixons, ii. 237-240. 
 
 ^ Kemble, Saxons, ii. 195-197, thinks that the ministri of the charters 
 may many of them have been sheriffs, which is quite possible ; but he goes
 
 VI.] The Members of the IFitena gemot. 125 
 
 appears in tlic early charters ; he is probably the heah-gerefa 
 
 or hiffh-steward of the household' ; the ealdormen appear under Classes of 
 
 \ 1- 1 • T • • X 1 members. 
 
 the variable title of prmceps or dux, applied indiscriminately : 
 
 now and then the names of the bishops are followed by that of an 
 
 abbot, who may have been the king's chaplain or the predecessor of 
 
 the later chancellor, as the heah-gerefa might be of the justiciar. 
 
 Under the later kings, a considerable number of abbots attest the 
 
 charters, a fact which may be ascribed either to the increased power 
 
 of the monasteries, or to the advance in secular importance of 
 
 the ecclesiastical body generally, after the reign of Athelstan. 
 
 The number of the witan was thus never very large. The Number of 
 
 •' ° the witan m 
 
 Mercian charters of the reign of Offa furnish us with an enu- early times. 
 meration of all the members who could be ranged under the 
 heads already mentioned, and may be taken as acts of the 
 most completely organised assemblies, the Kentish and West 
 Saxon charters being as a rule very scantily attested. These 
 documents are witnessed by the five Mercian bishops, five, six, 
 or seven ealdormen, principes or duces, and a number of miuistri 
 about equal to that of each of the other classes'^. The list of 
 bishops is certainly exhaustive, for Mercia contained only five 
 dioceses : the list of ealdormen is probably as complete, for the 
 names recur in all the charters of Offa ; and the whole number of 
 persons who bore the title during his reign is not much more 
 than a dozen. The list of ministri is more variable, but they are 
 still a very limited body, and, on the analogy of the bishops and 
 ealdormen, must have been exhaustively enumerated ; nor is it to 
 be supposed that the king would venture to outnumber by h"s 
 own nominees the national officers, lay and clerical, who formed 
 the older and more authoritative portion of the council. 
 
 The witenaQ-emots of Athelstan and Edijar are of course much Number 
 
 ^ , . '^ . . under the 
 
 more numerous, but only in proportion to the increased size of later kings. 
 
 the realm. The whole tale of the bishops and ealdormen are Number of 
 
 . the witan. 
 
 easily identified, but the number of ministri is variable, and the 
 
 too far when he artjues from Athelstan, vi. lo, that all the sheriffs were 
 present even at a particular witenagemot. 
 
 * The Norihuuibrian highreeves probably answered to the sheriffs of the 
 other kingdoms. Robertson, Essays, p. 177. 
 
 "^ See Cod. Dipl. c.\xi, cxxii, cxxxi, (five bishops, seven abbots and 
 six ealdormen) ; cxxxvii, (five bishops, one abbot, seven principes and
 
 136 Constitutional History. [chap. 
 
 abbots form occasionally a foi'midable addition. In a witenagemot, 
 
 held at Luton in November a.d. 93 1\ were the two archbishops, 
 
 two Welsh princes, seventeen bishops, fifteen ealdormen, five 
 
 abbots, and fifty-nine ministri. In another, that of Winchester 
 
 of A.D. 934^, were present the two archbishops, four Welsh kings, 
 
 seventeen bishops, four abbots, twelve ealdormen, and fifty-two 
 
 ministri. These are perhaps the fullest extant lists. Of Edgar's 
 
 witenagemots, the one of a.d. 966 contained the King's mother, 
 
 two archbishops, seven bishops, five ealdormen, and fifteen 
 
 ministri^ ; and this is a fair specimen of the usual proportion. 
 
 Increase in It is clear that as the feudal principle grew stronger the numbei' 
 the number ~i.,i ,i -, ,. , , ,. 
 
 of ministri. of kings thegns must have largely mcreased, and as their power 
 became preponderant in the assembly, the royal authority be- 
 came supreme in the country at large ; the office of ealdorman 
 also began at this period to be held chiefly by persons connected 
 with the king's kin. A further inference may be drawn from the 
 attestations of the charters. They are most of them those of the 
 bishops and ealdoi'men, whose local duties would keep them 
 generally distant from the coui*t. The charters are therefore not 
 the acts of a standing council of the king, or of casual gatherings 
 of his nobles, but evidences of assemblies regularly constituted, 
 and probably, for the paucity of exact dates prevents us from 
 being certain, held at fixed times and places. 
 
 Proceed- 53. The part taken by the witan in the transaction of business 
 
 inpsofthe /• n i i • • n-. t • f ii -kt ^i 
 
 witena- was lull and authoritative. Lede gives an account ot the JN orth- 
 
 umbrian council which received Christianity, and represents 
 
 the king as consulting his princes and counsellors one by one : 
 
 each declares his mind; and the king decides accordingly^. 
 
 Eddius describes the assemblies in which Wilfrid was banished 
 
 and recalled ; accusation, defence and sentence fall into their 
 
 regular order ; the bishops and ealdormen sj)eak, and the king 
 
 or ruling ealdorman pronounces the determination, 'haec est 
 
 voluntas regis et principum ejus''.' With these exceptions we 
 
 two duces); cxxxviii, (four bishops and four ealdormen); cxl, clii, cliii, 
 &c. &c. ' Cod. Dipl. cccliii. 
 
 * Ibid, ccdxiv. See also mcvii. Kemble say.s tbat the largest number 
 given is 106. Saxons, ii. 200 ; Gneist, Self-government, i. 49. 
 
 ^ Cod. Dipl. dxviii. * Bede, H. E. ii. 13. 
 
 " Eddius, c. lix. (ed. Gale, \\ 86.) 
 
 gemot.
 
 VI.] Procedure of the Witan. 1 27 
 
 have not at any period much material evidence to show the order 
 of deUbcration ; most of the early councils in which speeches and 
 votings are recorded being ecclesiastical. The clergy were no Independ- 
 doubt very influential, and the great ealdormen, if we may clergy and 
 judge by their action under Edred and Edwy, were not less 
 independent. Under Edward the Confessor, Godwin and Leofric 
 are able to sway the policy of the sovereign, or to neutralise each 
 other's influence. It may be presumed that in the early stages 
 and under the weaker sovereigns, the determinationVas elicited by 
 bond fide voting. And, under the stronger and later kings, it was 
 decided by the sovereign himself, as he chose to follow or to thwart 
 the policy of his leading adviser. But we have little more than 
 conjecture and analogy to guide us. It is rarely that even the 
 Frank kings ai-e described as acting under the constraint of their 
 people * : the days of Ethelred the Unready, and even of Edward 
 the Confessor, can scarcely be appealed to as giving the normal 
 condition of the relations of king and council ; nor is it until the 
 reign of Henry II that we find any historical data as to deliber- 
 tions in which the king does not get his own way. 
 
 The formula however by which the co-operation of the witena- Counsel and 
 gemot was expressed is definite and distinct". The laws of Ini the witan. 
 are enacted ' with the counsel and teaching of the bishops, with 
 all the ealdormen and the most distinguished witan of the 
 nation, and with a large gathering of God's servants^;' those of 
 Wihtrsed are decreed ' by the great men with the suffi'ages of all, 
 as an addition to the lawful customs of the Kentish people*.' 
 Alfred issues his code^ with the counsel and consent of his witan ; 
 Athelstan writes to the reeves with the counsel of the bishops^; 
 at Exeter the witan decree with the counsel of the king, and the 
 king with theirs'. Edmund before he legislates has deliberated® 
 
 * As for example, when the host compelled King Clothair to go to war , 
 pulling down his tent and loading him with abuse. Greg. Turon. iv. 14 ; 
 Waitz, D. V. G. ii. 146. 
 
 * The legislative authority of the witan is the subject of Kemble's second 
 canon, Saxons, ii. 205. ' The witan deliberated upon the making of new 
 laws which were to be added to the existing folkright, and which were then 
 promulgated by their own and the king's authority.' 
 
 ^ Schmid, Gesetze, p. 21. * Ibid. p. 15. ^ Ibid. p. 69. 
 
 * Ibid. pp. 126, 127. '' Ibid. pp. 150, 153. ' Ibid. pp. T72, 173, 177.
 
 128 Constitutional Histori/. [chap. 
 
 with the counsel of his witau, both ecclesiastical and secular. 
 
 Edgar ordains with the counsel of his witan in pi-aise of God, 
 
 and in honour of himself and for the behoof of all the people ^. 
 
 Ethelred and his witan issue ordinances at Woodstock^ ; Canute 
 
 at Winchester with the counsel of his witan ■''. 
 
 Examples of Such in fact was the traditional theory of all the German races, 
 this usage in ^., . tiz-wtit 
 
 the German The Burgundian laws are stated to be issued by Gundebald ' ex 
 
 tractatu nostro et communi omnium voluntate,' and are signed 
 by thirty -two comites'^. The Salian laws had been settled by the 
 Franks and their proceres before they Avere repromulgated by 
 Clovis and Charles^ ; those of the Lombards were issued by 
 Eotharis, ' cum primatibus meis judicibus ^ ; ' those of the 
 Alemannians are reissued by King Clothair with his princes, 
 thirty-three bishops, thirty-four duces, and sixty-two comites, 
 ' vel caetero populo ^.' The Bavarian laws are re-enacted, re- 
 formed, and augmented, ' apud regem et principes suos et apud 
 cunctum populum^' 
 
 In the The Capitularies of the Merovingian kings of Neustria, who to 
 
 Frank laws. , ^ & o j 
 
 a certain extent aped Roman forms and ruled mainly over a 
 conquered population of Romanised Gauls, are more distinctly 
 iipperative ; but Childebert of Austrasia declares, before he 
 issues his ' decretio,' that he has treated of the matter with 
 his optimates^. And when the Austrasian influence becomes 
 supreme, the form reverts at once to the ancient type. Carloman 
 ordains ' per consilium sacerdotum et optimatum ^" ; ' Pippin 
 'cum consensu episcoporum sive sacerdotum vel servorum Dei 
 consilio ; sive comitum et optimatum Francorum";' Charles 
 the Great augments the Lombard laws as emperor, king of Italy, 
 and conqueror ^^, but his Capitularies are the result of synodical 
 deliberation often expressed and generally implied. The suc- 
 
 ' Schmid, Gesetze, pp. 184-187, ^ Ibid. pp. 198, 199. 
 
 ^ Ibid. pp. 250, 251. * Lindeiibrog, p. 267 ; Canciani, iv. 13, 14. 
 
 ' Lindenbrog, pp. 313, 314; Canciani, ii. 10, 13, 15, 121. 
 
 " Canciani, i. 6.v ' Lindenbrog, p. 363 ; Canciani, ii. 323. 
 
 ' Lindenbrog, p. 399; Canciani, ii. 296 ; Baluze, i. 18. In all these 
 cascH tlio Codes are republications of national laws, for the attestation of 
 which the witnesH of the wise would be absolutely necessary. 
 
 * r>aluze, i. 11 (a.U. 595). '" Ibid. i. 103 ; Karloman, c. i. § i. 
 
 " 13aluzc, i. 133. ^ Ibid. i. 247.
 
 VI.] Share of the JFUan in Legislation. 129 
 
 ceedinff Karolinffians acknowledge almost always the counsel and Counsel and 
 
 ,. , . . • 111 ^ i 1 • 1 consent in 
 
 consent of their optimates, in a way remarkably contrasted with legislation. 
 
 the legislation of the third race, and with the principles of the 
 
 imperial system which they imagined themselves to represent. 
 
 Instead of * quod principi placuit legis habet vigorem,' Charles 
 
 the Bald, in the famous Edictum Pistense, enunciates the doctrine 
 
 that ' lex consensu populi fit et constitutione regis \' the consent 
 
 of the people being sought not merely in the assembly of the 
 
 chiefs but, as we have seen, in the acceptance by the mallus. 
 
 The laws in the enactment of which the witenajremot joins are Ecclesiasti- 
 1 1 1 1 . • 1 , . 1 . P T • callawsof 
 
 not merely secular ones : the ecclesiastical legislation 01 ini, the witena- 
 Alfred, Ethelred and Canute is, equally with the temporal, trans- 
 acted with the counsel of the witan. The great influence exercised 
 by the bishops and other ecclesiastics in the assembly may account 
 for the fact that no jealousy of this legislation appears during 
 this long period. Even the more distinctly ecclesiastical as- 
 semblies which, like the councils of Clovesho^ and the synod of 
 London under King Edmund ^, issued canons and spiritual dooms 
 of their own, admitted the great counsellors of the kingdoms to 
 their sittings, and allowed their acts to be confirmed by lay sub- 
 scription. That in both cases the spiritual witan prepared the 
 enactments, in the initial as well as in the final form, there can 
 be no question ; but it would be unsafe to argue with reference 
 to the spiritual dooms of the general witenagemots, that this 
 participation of the lay witan was admitted simply to give public 
 or legal ratification to the resolutions of the clergy. It is more 
 probable that in this, as in the action of the folkmoots, the 
 distinction between spiritual and temporal authorisation, as also 
 between moral or religious and legal obligation, was very lightly 
 drawn. The Legatine Councils of a.d. 787 *, which in their very 
 nature were entirely ecclesiastical, were attended by kings and 
 ealdormen as well as by bishops and abbots, and must therefore 
 
 ' Baluze, ii. 120. Edict. Pistense, §6. 
 
 ' Council of Cloveslio, a.d. 747 : ' Anno autem regni Aedilbaldi regis 
 Merciorum, qui tunc aderat cum suis principibus ac ducibus, xxxii".' 
 Councils, &c. iii. 362. 
 
 ' Scbmid, Gesetze, pp. 172, 173. Edmund, i. I. preamble. 
 
 * Councils, &c. iii. 447-461. 
 
 K
 
 of land. 
 
 130 Constitutional History. [chap, 
 
 be numbered amongst true witenagemots. Amongst the ecclesi- 
 astical articles wliich come most naturally within the scope of 
 secular confirmation, are the enforcement of Sunday and festival 
 holydays, the payment of tithe, the establishment of the sanctity 
 of oaths, of marriage and of holy orders, all of them frequent 
 matters of early legislation ^. 
 Consent of 54. A second class of subjects submitted to these councils, of 
 
 the witan to i i i • i 1 
 
 royal grants which we have abundant documentary evidence, concerns the 
 transfer of lands ^, and especially the gi^ants made by charters 
 which turn folkland into bookland. It is not necessary to suppose 
 that every transfer of land required the assent of a court of law, 
 although it might be necessary that it should be conducted under 
 a certain form and before witnesses ; that form being sym- 
 bolical, before as well as after the use of charters for the purpose. 
 Still, in cases where a large grant of private estate was made 
 by a powerful person, to the possible detriment of his heirs, the 
 confirmation of the gift might be sought in the witness of the 
 witenagemot and even by a ratification under their hand and 
 that of the king. And this was no doubt the reason why so 
 many monastic charters of confirmation passed under the eye of 
 this assembly. But where folkland was turned into bookland, that 
 is, where a grant was made by which the land given was released 
 from the obligations of folkland and made alodial or heritable 
 for ever, the consent of the nation, the owner of the folkland, 
 was imperatively necessary. In such cases the king who makes 
 the grant states that it is done with the advice and consent of 
 the principes'. The subscribing witnesses are of course the 
 
 ' Kemlde's seventh canon, Saxons, ii. 222 : ' The king and the witan had 
 also ))ower to regulate ecclesiastical matters, appoint fasts and festivals, and 
 decide upf)n the levy and expenditure of ecclesiastical revenue.* Cf. Gneist, 
 Self-government, i. 44. 
 
 ' Kemble's tenth canon, Saxons, ii. 225: ' Tlie witan possessed the 
 power of recommending, assenting to, and guaranteeing grants of land, and 
 of permitting the conversion of folkland into bookland, and vice versa.' 
 See also i. 305. 
 
 ' This is the case in a very large proportion of charters ; e. g. that of 
 Ceolwulf of Mercia to Archbishop Wulfred in A.D. 823 ; ' Actuin est . . . cum 
 consensu ct consultu episcoporum meorum ac principum quorum nomina 
 a<lnotata tencntur &c.' Cod. Dipl. ccxvii. Egbert's grant to Shaftesbury : 
 ' Ego Ecgbertus gratia Dei Occidentalium Saxonum rex, cum consensu et
 
 VI.] Action of the Witenagemot i)i Transfer of Lafid. 131 
 
 principes whose counsel and consent are rehearsed in the body of Examples.' 
 the grant, and who were the witenagemot in session. It is with 
 such a form that Ethelwulf added twenty hides of land to his 
 oAvn inheritance in a.d. 847^ ; and in the great majority of royal 
 grants the circumstances were the same. Occasionally a king 
 made a grant out of his private estate with like formality ; the 
 necessity for counsel and consent in such cases arising probably 
 from the immunities which formed part of the grant ^. Where 
 the witness of a select body of freemen was necessary even for 
 the sale of cattle, it cannot be regarded as improbable tliat in 
 the case of land also security would be sought by publicity 
 quite as much as by careful performance of the legal routine. 
 That the great majority of the charters are gifts to churches 
 may show that, notwithstanding the pious liberality of the period, 
 such endowments required special guarantees ; in most other 
 transfers where neither folkland nor any prominent public right 
 was concerned, the transaction would be completed by a ' livery 
 of seisin ' in the presence of the neighbours. In the greater gifts Publicity 
 the witenagemot occupies an analogous position to that held by thus 
 the townsmen when they admit the new comer to his share in the 
 common land. The gift of a king to one of his courtiers^ would 
 require the same secuiity and publicity as a grant to a church ; 
 both would be very liable to be resumed. That the participa- 
 tion of the witan in royal grants had any connexion with the 
 supposed right of the comites to limit the liberality of their prin- ■ 
 cops is a theory that cannot bear investigation for a moment*. 
 The members of the witenagemot whose consent is generally re- 
 hearsed, the ealdormen and bishops, did not, as ealdormen' and 
 bishops, stand in the relation of comites to the king ; it is far more 
 in conceii with history to understand these acts as based on the 
 
 communi consilio episcoporum et principum meorum ac totius plebis meae 
 seniorum, hanc testiinonii cartulain conscribere jussi.' Ibid, ccxxxii. 
 
 ' Kenible, C. D. cclx ; a similar act of Offli is mentioned, ibid. mxix. 
 Edgar also (ibid, mccxlv) takes an estate of five bides and frees it, with the 
 attestation but without the expressed counsel and consent of the witan. 
 
 - E. g. Ethelwulf in a.d. 841 : ' dabo et concedo Beornmodo Hrobensis 
 ecclesiae episcopo aliquam partem terrae juris mei . . .cum consilio et 
 licentia episcoporum et principum meorum.' 
 
 ' E. g. Cod. Dipl. mccxlvi, ccliii. 
 
 * Kemble, C. D. i. pref. pp. cii-civ sq. 
 
 K 2
 
 gemot. 
 
 13a Constitutional History. [chap. 
 
 ancient right of the community to regulate all changes of owner- 
 ship which affected their own body. This principle of course 
 applies primarily and necessarily to conversions of public land 
 into private estate. 
 
 Judicial 55. The witenagemot was, further, a court of justice, although 
 
 power of the , . , , . • i • i i , • i 
 
 witena- only m the last resort, or in cases m which the parties concerned 
 
 were amenable to no other than the royal jurisdiction ^ They 
 decided suits and tried criminals. Of the contentious jurisdic- 
 tion there are sufficient proofs in the charters^; the chroniclers 
 furnish less abundant, but not less satisfactory, proof of the 
 exercise of a criminal judicature also. The witenagemot of 
 Northumbria condemned Wilfrid to imprisonment and exile in 
 the seventh century^ : Elfric, Ethelweard, Swegen, and Alfgar 
 were outlawed by like assemblies in the eleventh* : and even in 
 Norman times the Anglo-Saxon chronicler does not find a better 
 name for the court of the justiciar that hanged forty-four thieves 
 at Hundehoge in a.d. 1124, than 'gewitenemot^' The criminal 
 jurisdiction was'much the same under Edward the Confessor as 
 it had been in the days of Tacitus. The king and witenagemot 
 may be said to have possessed a supreme jurisdiction ' over all 
 persons and over all causes,' although from the nature of the 
 case it may not have been frequently exercised. The sentence of 
 outlawry issued so often in the struggle between the houses of 
 Leofric and Godwin may stand as the best illustration". 
 
 ' Kemble's twelfth canon, Saxons, ii. 229 : ' The witan acted as a supreme 
 court of justice both in civil and in criminal causes.' The eleventh (ibid, 
 ii. 228), ' The witan possessed the power of adjudging the lands of offenders 
 and intestates to be forfeit to the king.' 
 
 * Examples will be found in Cod. Dipl. ccxx, ccxlv, mcclviii ; many of 
 the earlier and more interesting suits were decided by arbitration in the 
 ecclesiastical councils, which were to a certain extent international and 
 cannot be regarded as simple witenagemots ; e. g. Cod. Dipl. clxxxvi, ccxix. 
 
 3 Eddius, V. Wilfr. 
 
 * Chron. Sax. a.d. 1020, 105 1, 1055. Cod. Dipl. mcccxii : 'synodale 
 concilium ad Cymeceastre universi optimates mei sinnil in unum convene- 
 runt et eundem Elfricum majestatis reum de hac patria profugum expule- 
 runt et universa ab illo possessa mihi jure possidenda onmes unanimo 
 con.sensu decreverunt.' So Leofsin was condemned by the sapientcs for the 
 murder of Aefic tlic high reeve. Cod. Dipl. dccxix; Chr. Sax. A.D. 1002. 
 
 '■ Chron. Sax. a.d. i i 24. 
 
 " The cases of grant of forfeited land quoted by Kemble, Saxons, ii. 53, 
 228, are Cod. Dijd. mcxii, mccxcv, ccclxxiv, mcccxii. The king receives 
 in the same way the lands of a person dying intestate, ibid, mxxxv.
 
 VI.] The Witenagemot a Court of Justice. 133 
 
 56. The imposition of extraordinary taxation was directed by Taxation by 
 
 ,,. .11 ici • ii-' -11 king and 
 
 the king with the counsel 01 the witan ' ; this is more especially witan. 
 conspicuous in the case of the taxes levied for war against the 
 Danes, or to buy off their hostility. In a.d. 991 tribute was 
 given to the Danes by deci-ee of the witan, amongst whom the 
 Archbishop Sigeric and the ealdormen Ethelweard and Elfric 
 are specially mentioned ^ ; three years later the unhappy king 
 * procerum suorum consilio,' levied sixteen thousand pounds for 
 the same purpose ; the measure was repeated under the same 
 advice in a.d. 1002, 1007, and loi i ^ These are indeed the only 
 cases of extraordinary imposts of which there is any record: 
 the maintenance of the royal state being fully provided for by 
 the proceeds of the royal farms and public lands, and all local 
 requirements being met by the alodial obligations discharged 
 by personal service. 
 
 The participation of the witan in the determination of war General 
 and peace*, in the direction of the fleet and army®, as well deliberation, 
 as in the furnishing of funds, is abundantly proved by the 
 chronicles of the same reign. The highest subject on which 
 their general powers of deliberation could be exercised is exem- 
 plified in the acceptance of Christianity by the Northumbrian 
 witan, as related by Bede *'. It may be safely affirmed that no 
 business of any importance could be transacted by the king in 
 which they had not, in theory at least, a consultative voice ''. 
 
 57. As one of the chief powers of the councils of the Ger- 
 mania was the election of the principes, and as the consent of 
 
 1 Kemble's eighth canon, Saxons, ii. 223 : ' The king and the witan had 
 power to levy taxes for the public service.' 
 
 ^ Chron. Sax. A.D. 991. * Chron. Sax.; Flor. Wig. 
 
 * Kemble's third canon, Saxons, ii. 213 : 'The witan had the power of 
 making alliances and treaties of peace, and of settling their terms.' See the 
 peace of Alfred and Guthrum ; and the terms made by Ethelred with Olaf, 
 Chron. Sax. A.n. 994. 
 
 * Kemble's ninth canon, Saxons, ii. 224: 'The king and his witan had 
 power to raise land and sea forces, when occasion demanded.' Chrou. Sax. 
 A.D. 999, 1047, 1048. They also arranged for the command of the fleet. 
 Ibid. A.D. 1052. 
 
 ' Hist. Eccl. ii 13. 
 
 ' This is Kemble's first canon, and it is large enough to cover all the 
 rest. Saxons, ii. 204 : ' First, and in general, they possessed a consultative 
 voice and a right to consider every public act which could be authorised 
 by the king.'
 
 134 
 
 Constitutional History. 
 
 [chap. 
 
 Election of tlie witenasremot to the deposition of the ealdormen was ap- 
 ealdormen. .... . . 
 
 parently requisite \ it is probable that in theory the election of 
 
 those officers belonged to the king and witan conjointly ^. But 
 the constant tendency, in all the important offices, to the prin- 
 ciple of hereditary succession, miist have been a limit to the 
 exercise of the right ; and it would not be safe to regard the 
 expressed consent of the witan as an absolute condition of 
 Of bishops, appointment. In the election of bishops the same uncertainty 
 of both theory and practice exists. In the earliest days the 
 kings of Northumbria and Kent deliberated on the election to 
 Canterbury, as a matter of international interest ^ : and in a.d. 
 1051 Edward the Confessor summarily set aside the choice of 
 the monks *. Dunstan was appointed ' ex respectu Divino et 
 sapientum consilioV Edward the Confessor appointed Arch- 
 bishop Robert in a witenagemot at London, and nominated 
 Spearhafoc to London at the same time ®. Yet nothing can be 
 more certain than that in many cases the clergy and even the 
 people of the dioceses were consulted. Alcuin writes to the 
 priests of York, urging them to make a right election "^ : the 
 chapter of St. Paul's could exhibit a bull of Pope Agatho con- 
 ferring on them the exclusive right ^ A bishop of Lichfield in 
 the ninth century declares himself elected by the whole church 
 of the province®; and Helmstan, of "Winchester, in a.d. 839, 
 
 ' See the Chronicle, a.d. 1055 ; Freeman, Norm. Conq. i. 126. 
 
 * Kemble's sixth canon, Saxons, ii. 221 : 'The king and the witan had 
 power to appoint i)ri.lates to vacant sees.' The same right with respect to 
 the ealdormen is discussed, ibid. ii. i-tS, 149. 
 
 ' Bede, H. E. iii. 29 : * Cum electione et consensu sanctae ecclesiae gentis 
 Anglorum.' 
 
 * V. Edw. Conf. (ed. Luard) p. 400 : ' Rodbertus vero .... regis munere 
 archiepiscopus, totius ecclesiae filiis banc injuriam pro nisu suo reclamanti- 
 bus.' It was done in a gemot at London. Clinm. Sax. A.n. 1050. 
 
 * See the contemporary life of Dunstan, in Memorials of St. Dunstan, 
 pp, 36, 38. Flor. \ViL,'orn. A.D. 959. Oskytel was made archbishop in A.D. 
 971, l>y favour of the king and his witan : Cliron. Sax. A.D. 971. Elfric was 
 chosen by Ethelrcd and all his witan in 995. Ibid. 
 
 ® Chron. Sax. a.d. 1050. 
 
 '' Alcuin writes in A.D. 796 to a powerful man in Northumbria, urging 
 him to defend the freedom of the election to York, and to the clergy of 
 York praying them to avoid simony. Ale. Kpp. 40, 48 ; Councils, &c. iii. 
 499, 500. * Councils, &c. iii. 161. 
 
 " ' (^uoniam me indignum famulum tuum tota ecclesia provinciae nostrae 
 sibi in ejiiscopatus otticium elcgerunt.' Councils, &c. iii. 613.
 
 vi.J The Witan elect the Kings. 135 
 
 niontious the pope, the kiug, the church of Winchestex", and all Election of 
 1 1 • I 1 • • r> 1 -wT ... bishops, 
 
 the bishops, optimates, and nation of the West feaxons, as joining 
 
 in his appointment \ It is probable then that under the hept- 
 archic kings the action of the churches was comparatively free 
 in this respect, and that the restriction was a result of the 
 growth of royal i)ower : but that, like all other ecclesiastical 
 business, the appointment of bishops was a matter of arrange- 
 ment between the parties concerned : the election by the clergy 
 was the rule in quiet times, and for the less important sees ; 
 the nomination by the king in the witenagemot was frequent 
 in the case of the archiepiscopal and greater sees ; the con- 
 sent of the national assembly to the admission of a new member 
 to their body being in all cases implied, on behalf of the most 
 important element in it, by the act of consecration performed 
 by the comprovincial bishops ^. 
 
 58. Of all elections, the most important was no doubt that Election of 
 of the kings ; and this belonged both in form and substance to 
 the witan ^, although exercised by them in general assemblies 
 of the whole nation. The kiug was in theory always elected, 
 and the fact of election was stated in the coronation service 
 throughout the middle ages, in accordance with most ancient 
 precedent. It is not less true, that the succession was by con- 
 stitutional practice restricted to one family, and that the rule 
 of hereditary succession was never, except in great emergencies 
 and in the most trying times, set aside. The principle may be 
 generally stated thus, — the choice was limited to the best 
 qualified person standing in close relationship to the last 
 sovereign : for it is seldom, except in case of revolution or 
 conspiracy, that any one but a son or brother is chosen ; and 
 in the case of a king dying in mature years, his eldest son 
 would be, and was in practice held to be, in every resi>ect 
 
 ' ' A sancta et apostolicae sedis dignitate, et ab congregatione civitatis 
 Wentauae, necnon Aethel .... regis et episcoporuiu optimatorumque ejus 
 et totius genti Occidentalium Saxonum unaiiiiniter ad episcopalis ofticii 
 gradum electus.' Councils, &c. iii. 622. 
 
 ^ Gncist regards tlie bishops as royal nominees far too e.Kclusively. Self- 
 government, i. 44 ; Verwaltungsrecht, i. 73. 
 
 ^ Kemble's fourtli canon, Saxons, ii. 214 : 'The witan had the power of 
 electing the king.' Freeman, Norm. Conq. i. 593-597.
 
 136 
 
 Constitutional History. 
 
 [chap. 
 
 Foiinal elec- 
 tion of the 
 king. 
 
 The three- 
 lold sanc- 
 tion. 
 
 Deposition 
 of the king. 
 
 Cases of 
 deposition. 
 
 the safest successor^. It may be sufficient however here 
 to lay down the rule, that both the formal election preparatory 
 to the act of coronation, and the actual selection when the 
 necessity for a free choice occuiTed, belonged to the witan : they 
 included among them both the principes or national magistrates, 
 to whom, on the most ancient pi'ecedents of heathen times, the 
 power appertained ; the bishops, whose recognition by the act 
 of anointing and coronation was religiously viewed as conveying 
 the Divine sanction, and as requisite for the enforcement of the 
 moral duty of the subject ; and the ministri or personal retainers 
 of the crown, whose adhesion, expressed in their particular oath 
 of fealty, was in the highest degree necessary for the safety and 
 peace of the new reign ^. The recognition by the assembled 
 people was a complementary security, but implied no more real 
 right of admission or rejection than belonged to the persons actu- 
 ally present : for the crowd that surrounded the coronation chair 
 was no organised or authorised representation of the nation ^. 
 
 The right of deposing a worthless king seems to be a corollary 
 from the right of election * ; but it is not in reality so simple 
 a matter either in history or in theory ; for the right of an 
 elected, accepted, crowned and anointed king, is fenced round 
 with sanctions that cannot be broken by the mere resolution 
 of his electors. The cases in which the power was exercised 
 
 ^ Hallam, M. A. ii. a 73. The instances in which express mention is 
 made of the act of election, are collected by Kemble, Saxons, ii. 215-219, 
 and Freeman, Norm. Conq.i. 591. They are, Alfred (Asser, M. H. B. 477, 
 Sim. Dun. a.D. 871); Edward the Elder (Ethelwerd, c. 4, M. H. B. 519) ; 
 Athelstan (C'hron. Sax. A.D. 924) ; Edred, 'electione optiniatum subrogatus' 
 (Cod. Dipl. ccccxi) ; Edgar ' eligitur' (Flor. Wig. a.d. 957); Edward (Flor. 
 Wig. A.U. 975); Ethelred (C'hron. Sax. 979); Edmund (Chron. Sax. A.D. 
 1016); Canute (Chroi). Sax. A.D. loi 7); Harold I. (Flor. Wig. a.d. 1035 : 'con- 
 sentientibus quam plurimis majoribus natu,' a.d. 1037, 'rex eligitur') ; Ed- 
 ward the Confessor i Chron. Sax. A.D. 1042) ; Harold (Flor. Wig. A.D. 1066). 
 
 ^ In the case of Alfred it is saidj ' a ducibus et a praesulibus totius gentis 
 eligitur et non solum ab ipsis verum etiam ab omni populo adoratur.' Sim. 
 Dun. ad 871. Edred 'frater ejus (i.e. Edraundi) utcrinus, electione opti- 
 matum subrogatus, pontificali auctoritate eodem anno oatholice est res et 
 rector ad regiia quadripcrtiti regiminis con.secratus.' Cod. Dipl. ccccxi. 
 
 ' FVeemaii, Norm. Conq. i. 591. 
 
 * Kcmljlo's fifth canon, Saxons, ii. 219: 'The witan had the power to 
 depose tiie king, if hia government was not conducted for the benefit of his 
 people.'
 
 VI.] Poiver of Deposition. 137 
 
 by the witenagemot must be dealt with singly. j\rost if not 
 all of these belong to the heptarchic period. In the eighth In North- 
 century there wei'e fifteen kings of Northumbna all duly 
 elected, of whom at least thirteen ended their reigns by ex- 
 traordiuary means ^ : of these, two, Ceolwulf and Eadbert, are 
 recorded to have resigned quietly and entered the ranks of the 
 clergy; one, Osric, is simply said to have been killed; three, 
 Osred, Oswulf, and Elfwald, were slain by conspiracy of their 
 own officers or retainers ; two, Eadwulf and another Osred 
 were expelled by similar bodies without being murdered; Os- 
 
 ' The order of their reigns is as follows : — 
 
 1. Aldfrith, died in a.d. 705. Bede, H. E. v. 18. 
 
 2. Eadwulf, ' de regno quod duos menses tenuit, conjuratione facta 
 
 adversus eum espulsus est.' Edd. V. Wilfr. c. 57. 
 
 3. Osred, son of Aldfrith, ' cognatorum insidiis caesus,' W. Malmesb. 
 
 G. R. § 53. ' Immatura et terribili morte praeventus.' Ep. Bonif. 59. 
 
 4. Coenred, 'infirmatus.' Henry of Huntingdon, "J foedo exitu auras pol- 
 
 M. H. B. 734. Muere. W. Malmesb. 
 
 5. Osric, killed. Cliron. Sax. A.D. 731. J G. R. § 53. 
 
 6. Ceolwulf, brother of Coenred, 'captus, attonsus et reuiissus est in 
 
 regnum; ' Cont. Bedae, a.d. 731 : 'sua voluntate attonsus regnum 
 Eadbercto reliquit ; ' Ibid. a.d. 737. 
 
 7. Eadbert, ' filius patrui Ceolwulfi ' — ' accepta Sancti Petri tonsura, 
 
 filio suo Oswulfo regnum reliquit.' Ibid. a.d. 758. 
 
 8. Oswulf, ' a suis ministris facinorose occisus,* ibid. a.d. 759; 'occi- 
 
 sus est nequiter a sua familia,' Sim. Dun. A.D. 758. 
 
 9. Ethelwald, 'a sua plebe electus ; ' Cont. Bed. 759 : 'regnum amisit 
 
 in Winchenheale ;' Sim. Dun. A.D. 765. 
 
 10. Alcred, ' prosapia Idae regis exortus.' Ibid. 'Consilio et consensu 
 
 suorum omnium, regiae familiae ac principum destitutus societate, 
 exilio imperii mutavit majestatem.' Ibid. A.D. 774. 
 
 11. Ethelred, son of Ethelwald, ' tanto honore coronatus.' Ibid. ' Ex- 
 
 pulso de regali solio et in exilium fugato.' Ibid. a.d. 779. 
 
 12. Elfwald, son of Oswulf, 'conjuratione facta ab ejus patricio, Sicgan 
 
 nomine, miserabili occisus est morte.' Ibid. 788. 
 
 13. Osred, son of Alcred : ' dolo suorum principum circumventus et 
 
 captus ac regno privatus attonsus est — coactus exilium petit.' 
 Ibid. 790. ' De exilio .saci-amentis et fide quorundam principum 
 clam .... venit .... captus .... occisus.' Ibid. 792. 
 II. Ethelred restored ; killed by his subjects in A.D. 796. Sim. Dun. : — 
 Letter of Alcuin to Offa ; Councils, iii. 499. 
 
 14. Osbald : 'patricius a quibusdam ipsius gentis principibus in regnum 
 
 estconstitutus et po.st xxvii dies omni regiae familiae ac principum 
 est societate destitutus, fugatusque et de regno expulsus.' Sim. 
 Dun. A.D. 796. 
 
 15. Eardulf: ' De exilio vocatus regni infulis est sublimatus.' Sim. Dun. 
 
 796. ' Regno et patria pulsus.' Einhard, A.D. 808. ' Per legatos 
 Komani pontificis et domini imperatoris in regnum suum redu- 
 citur.' Ibid.; Councils, iii. 561.
 
 138 Constitutional History. [chap. 
 
 Deposition ij^ld was Set up and set aside by a faction ; of the end of 
 
 of Nortniun- ^ . 
 
 brian kiugs. Coenred we are told nothing, but that it was calamitous ; Alcred 
 was deprived of his kingdom by the counsel and consent of 
 his own people, that is no doubt by regular act of the witena- 
 gemot ; his predecessor, Ethelwald, lost his kingdom at Win- 
 cenheale, the meeting-place of the Northumbrian councils, — 
 most probably therefore by a similar act ; Ethelred was dis- 
 placed in A. D. 779, and restored in a.d, 790, only to be mur- 
 dered six years later by equally competent authority ; Eardulf 
 was expelled from his throne and country in A. D. 808, and 
 sought restoration through the intercession of the pope and 
 
 Example m emperor. In Wessex the tale is somewhat different : during 
 the same period Ini, following the example of his predecessor, 
 Ceadwalla, resigned his crown and went to Rome; Ethellieard 
 and Cuthred, who followed him, reigned as long as they lived ; 
 Sigebert, the next king, was^, after a year's reign, deposed by 
 Kynewulf and the West Saxon witan, one province being left 
 him for his maintenance ; Kynewulf was mui'dered, and Brihtric 
 was poisoned by his wife. In such a record it is scarcely wise 
 to look for constitutional precedents ^. The depositions, how- 
 ever, of Alcred and Sigebert, stand out as two regular and formal 
 acts ; the authority by which they were sanctioned being fully 
 though briefly stated, the deposition not being followed by 
 murder, and, in one case, provision being made for the support 
 of the royal dignity. It is probable that these instances might 
 be multiplied, if we had fuller details as to the conspiracies by 
 which the Northumbrian kiugs were unseated. The depositions 
 of Alcred and Sigebert may have been the result of a con- 
 spiracy, and those of the others may have been determined in a 
 witcnagemot, all under the inspiration of a competitor for the 
 throne : but in these cases, on any theory, the deposition was 
 
 ' Chron. 8ax. A.D. 755 : ' Tlii.s year Cyncwulf and the West Saxon witan 
 deprived Sigebert of his kingdom, except Hampshire, for his unjust doings.' 
 
 ^ The deposition of Beornred, king of Mercia, in A.D. 758, related in the 
 VUae daoriim Offunim, l)y Matthew Paris (ed. Wats, pp. 10, 11), is scarcely 
 historical, but may l)c (juite true : ' Pro eo quod ixjpulum non acquis legi- 
 bus sed per tyrannidcni gubernaret, convenerunt in unum omnes tarn nobiles 
 quani igiiobiks, et Otfa duce .... ipsum a regno expuierunt.' M. Paris, ed. 
 Luaid, i. 342, 343. 
 
 I
 
 VI.] Tower of Bepontlon. 139 
 
 decreed in the national council. Whether such depositions were Complka- 
 
 111 p T 1 J- • i.- £■ 11 tioiiofthe 
 
 completed by any act 01 degradation or renunciation or alle- question. 
 giance, we are not told : at a later period, when coronation and 
 the national recognition by homage and fealty were regular 
 parts of the inauguration of a king, something more than a 
 mere sentence of the supreme court would have been necessary, 
 if all such ceremonies had not been summarily dispensed with 
 by murder. In the cases of Ceolwulf and Eadbcrt, the voluntary 
 tonsure was regarded as a renunciation of the rights conferred by 
 coronation. In the cases in which the expulsion or deposition is 
 said to be the result of conspiracy or desertion of the ' familia ' of 
 the luckless prince, we have an indication of some process on 
 the part of the comitatus, the ministri, or king's thegns, analo- 
 gous to the renunciation of allegiance in feudal times. But our 
 authorities are scanty and brief, and even if such conjectures are 
 true, it would be unsafe to regard these cases as instances under 
 a general rule. The time was one of unexampled civil anarchy, Scarcity of 
 and there is no instance in which, without the pressure of a tional prece- 
 competitor, who had perhaps an equal title to the throne by 
 hereditary or personal qualifications, a king was simply set aside 
 for misgoverninent. The immorality and other misdeeds of the 
 Northumbrian kings would have been amply sufficient to justify 
 more regular proceedings than a succession of conspiracies 
 among their near kinsmen. 
 
 Amono; the descendants of Egbert three cases occur : the Later cases 
 ° _ ° _ _ , exceptionul. 
 
 West Saxons discard Ethelwulf after his return from Rome, in 
 favour of Ethelbald : the Mercians reject Edwy and elect Edgar ; 
 and the whole kingdom renounces Ethelred the Unready. In 
 the first two instances, however, it is a revolt or civil war rather 
 than a legal deposition, and it results in a division of an ill con- 
 solidated kingdom between two competitors. Ethelred also is 
 renounced in favour of his conqueror, rather than formally 
 deposed, and the action of the witan is more clearly concerned 
 with his restoration than with his expulsion^. 
 
 In all these points, the actual exercise by the witenagemot of Riphts 
 
 their allowed and recognised riijht, must have depended very exerted by 
 1 1 • 1 1 ,1 %. the witiui. 
 
 much on the circumstances of the case, and on the character 01 
 
 * V. S. Dunstani, p. 35 ; Asser, M. H. B. p. 471 ; Flor. Wig. a.d. 1014.
 
 I40 
 
 Constitutional History. 
 
 [chap. 
 
 Real exer- 
 cise of 
 powers by 
 the witan. 
 
 the sovereign with whom they had to deal. It is in legislation 
 alone that we can affirm that their right to advise and con- 
 sent was invariably recognised ; their participation in grants 
 of land is not much less frequently particularised, but is often 
 mentioned in a way that shows it to have been formal and 
 perfunctory, and after the end of the tenth century often ceases 
 to be expressed at all. The election to the office of ealdorman 
 was regulated more by the king's favour and by hereditary 
 claims, than by a substantive selection, except in a few extra- 
 ordinaiy cases ; that to the episcopal sees was limited both by 
 canonical custom and by the piety or determination of the 
 king ; in either case, the election might easily obtain consti- 
 tutional confirmation, for both the friends of the monks and the 
 retainers of the king wei'e numerous in the gemot. Thus the 
 English king, although fettered both in theory and in practice 
 by important restrictions, was scarcely more like the king of Ger- 
 man antiquity than like the king of feudal times. He was hedged 
 in by constitutional forms, but they were very easy to break 
 through, and were broken through with impunity wherever 
 and whenever it was not found easier to manipulate them to the 
 end in view. The reason why the West Saxon kings of united 
 England had so few difficulties with either clergy or lay coun- 
 sellors may have been that, their power of increasing the number 
 of their dependents in the witenagemot by nomination being 
 admitted, they could at any time command a majority in favour 
 of their own policy. Under such circumstances, the witenagemot 
 was verging towards a condition in which it would become simply 
 the council of the king, instead of the council of the nation ; the 
 only limit on the power of nomination being on the one hand 
 the importance of canonical sanction, and on the other the diffi- 
 culty of setting aside hereditary claims among the ealdormen and 
 the ministri. The feudal principle advances until it stands face 
 to face with the determination of the tax -payer. 
 
 59. The king ^ then, who crowns the fabric of the state, is 
 
 ' On the origin of the word Icing, see Max Miiller's Lectures on the 
 Science of Language, ii. 282, 284; Freeman, Norm. Conq. i. 583, 5^4! 
 Grimm, li. A. p. 230; Scliniid, Gesetze, ji. 551. Max Miiller decides tliat 
 'the old Norse konr and konungr, the old high German chuninc, and the
 
 VI.] The King. 141 
 
 neither a mere ornamental appendage nor a ruler after the im- The limited 
 perial model. He is not the supreme landowner, for he cannot the king- 
 without consent of the witan add a jiortion of the public land " '^' 
 to his own demesne. He requires their consent for legislation 
 or taxation, for the exercise of jurisdiction, for the determination 
 of war and peace. He is elected by them, and liable to be de- 
 posed by them. He cannot settle the succession to the throne 
 without their sanction. He is not the fountain of justice, which 
 has always been administered in the local courts ; he is the de- 
 fender of the public peace, not the autocratic maintainor of the 
 rights of subjects who derive all their rights from him. But, 
 notwithstanding, he is the representative of the unity and 
 dignity, and of the historical career of the race; the unquestioned 
 leader of the host ; the supreme judge of appeal. The national 
 officers are his officers ; the sheriffs are his stewards ; the bishops, 
 ealdormen, and witan are his bishops, ealdormen, and witan. The 
 public peace is his peace ; the sanction which makes him in- 
 violable and sccui'e, is not the simple tolei'ation of his jieople, 
 but the character impressed on him by unction and coronation, 
 and acknowledged by himself in the promises he has made to 
 govern well and maintain religion, peace, and justice. 
 
 Royalty has besides many distinctive and most impoi'tant Privileges of 
 privileges or prerogatives ; rights which only in a very modified 
 way exist among the subjects, and which are practically limited 
 only in a slight degree by the action of the council. In the 
 first place, it is hereditary ; that is, the successor or competitor 
 possible to the reigning sovereign, cannot be any merely am- 
 bitious ealdorman or factious neighbour ; royalty, though elective, 
 belongs to one house, one family, always kept within very narrow 
 proportions by the hazardousness of their employments, by 
 
 Anglo-Saxon cyning, were common Aryan words, not formed out of German 
 materials, and therefore not to be explained as regular German derivatives. 
 .. ..It corresponds with the Sanskrit ganaka .. ..It simply meant father of 
 a family.' Therefore it is not cyn-ing, the cliild of the race. But the Anglo- 
 Saxons probably connected the cyuing with the a/n more closely than 
 scientific etymology would permit ; witness such words as cyne-hlaford, in 
 wliich however we are told that cyne means nobilis, not (jenas. Schmid, 
 Gesetze, p. 551. Sir F. Palgrave's idea of deriving the word from the Celtic 
 cen, 'head,' and the notion connecting it with 'can' and 'cunning' are 
 alike absurd.
 
 142 
 
 Constitidional History. 
 
 [chap. 
 
 Election of 
 kings, 
 fettered by 
 hereditary 
 right. 
 
 The royal 
 estates. 
 
 private jealousy, and not unfrequently by stern cruelty^. The 
 king is safe from competition, except by his own immediate 
 .kinsmen, and if he live long enough to have a gi'own-up son, he 
 may count surely on not being deposed. This mark seems to 
 be universal : the Yisigoths are the only tribe of Germanic 
 connexion which we know to have maintained royalty unfettered 
 by hereditary right, and that only in their decline, and after the 
 extinction of the house of Alaric. In all other cases, save that 
 of simple alodial inheritance, public offices were filled and 
 political position bestowed by nomination or election for life 
 only. As hereditary sovereign, the king had every inducement 
 to labour for the consolidation of the state, the government of 
 which he should leave to his son, and not for the mere accu- 
 mulation of wealth or territory for heirs who would sink into 
 a private station when he was gone. 
 
 The king had, in the next place, a large property in land and 
 revenue. His property in land may fall under three heads : first, 
 his private estate, which he could dispose of by his will, and which 
 might be either bookland', or folkland of which he had taken 
 
 ' The example of Nortliumbrla (above, p. 137) may suffice for hept- 
 arehic times. In the West Saxon family, after the reign of Egbert, the chief 
 exceptions to hereditary succession are found in the fact that the four 
 sons of Ethelwulf followed in order of birth, the brother being preferred to 
 the son of the last king ; Alfred at least certainly succeedetl, although he 
 had two nepliews, sons of an elder brother. But in this case it may be 
 observed, (i) that the kingdoms held by Ethelwulf were not yet consoli- 
 dated ; Ethelstan had reigned as king of Kent with Ethelwulf until A.D. 
 850, Ethelbald had been king of Wessex from A.D. 856 ; Ethelbert had 
 been king of Kent as early as A.D. 853 (Cod. Dipl. cclxix) ; and during the 
 reign of Ethelred, Alfred had been secundarius, that is, had probably an 
 inchoate royalty of a stronger character than that of heir presumptive ; so 
 that the family arrangement which j)rovided for the descent of the inherited 
 estate (see Alfred's Will) may have been followed in the succession to 
 the kingdom also : f ii) the sons of the elder brother must have been minora 
 at the time of Alfred's succession. That Edward the Elder should suc- 
 ceed his father to the exclusion of his cousins, was ipiite natural. The 
 sons of Edward the Elder succeed one another in the same way ; Athelstan 
 however seems to have had no children : and as Ednmnd was only eighteen 
 when he began to reign in 940, his cliildren must have been infants when 
 he died in 946. It is not necessary here to examine into the nature of 
 Alfred's anointing at Rome, which Asser desciibes as royal unction, but 
 which has been expl-iined of confirmation. See Pauli, Life of Alfred (ed. 
 Thorjje), pp. 54, 84; Kemble, C. D. cccxiv ; Liber de Hyda, p. 327. 
 
 * Huch as are disposed of in the wills of Alfred and Edred. Liber de Hyda, 
 PP- 62, 153.
 
 VI.] Royal Estate and Revenue. 143 
 
 leases of lives ; secondly, the proper demesne of the crown com- Various 
 prising palaces and their appendant farms, the cyninges hotl and rf).yai estate 
 the cyninges tun, and even cities and burghs founded upon old 
 royal estates : these belonged to the king as king, and could not 
 be alienated or burdened without the consent of the witenagemot^. 
 And he had, thirdly, rights over the folkland of the kingdom, 
 rather of the nature of claim than of possession ; the right of 
 feorm-fultum for himself, and that of making provision for his 
 followers with the consent of the witan. After the reign of 
 Ethelred, this third class of property seems to have been merged 
 in the crown demesne. 
 
 Under the head of revenue may be placed the fines and other Revenue of 
 proceeds of the courts of law which the king shared as guardian 
 of the peace,^ ; the right of maintenance or procurations for him- 
 self and his retinue in public progresses ^ ; the produce of wreck 
 and treasure trove *, mines and saltworks ^ ; the tolls and other 
 dues of markets, ports and transport generally" ; and the heriots 
 and other semifeudal payments resulting from the I'clation be- 
 tween the sovereign and his special dependents''. The existence 
 of many of these sources of income is known only from gi-ants 
 of land in which they are retained or remitted. It is probable 
 that the character of many of them varied much from time to 
 time ; but there is no subject on which we have less information 
 than the administration of public revenue in the Anglo-Saxon 
 times : a curious point of contrast Avith the age that follows, 
 that of Domesday and the Pipe Rolls. With these sources of 
 profit may be noted such minor rights as the protection of 
 strangers, and the power of erecting bridges and castles ^ The The king's 
 higher price set on the king's life", the wergild payable to his ^^'^' 
 kin on his violent death, testifies to the importance attached 
 
 ' See a grant of Ethelred II to Abingdon (Cod. Dipl. mcecxii), in which 
 he carefully distinguishes between his propria hcrcdUas, which he could 
 alienate, and the terrae regales et ad regios filuis pertinentes, the alienation 
 of which the witan had refused to sanction. Kenible, Saxons, ii. 30. 
 
 ' Kenible, Saxons, i. 157; ii. 54, 55. 
 
 5 Ibid. i. 152; ii. 58-61. * ibid. ii. i;5, 64, ' Ibid. ii. 69. 
 
 « Ibid. ii. 75. ' Ibid. ii. 98 sq. » Ibid. ii. 88, 91. 
 
 ' Ibid. i. 153; ii. 32 ; Schmid, Gesetze, p. 552. Allen, Prerogative, pp. 
 36, 40; Gneist, Verwaltungsrecht, i. 21.
 
 144 
 
 Constitutional History. 
 
 [chap. 
 
 The king's 
 wergild and 
 cynebot. 
 
 Honorary 
 privileges. 
 
 Consecra- 
 tion, includ- 
 ingcrowning 
 and unction. 
 
 to his person. By the Mercian law it was 7200 shillings, by 
 that of the North people 15,000 thrymsas, or nearly half as 
 much again. A fine of equal amount, the cynehot, was at 
 the same time due to his people. The existence of these 
 regulations may be interpreted as showing that the idea of 
 treason against the king was as yet unknown, no other punish- 
 ment being prescribed for the regicide, and the value of the 
 king's life being made to differ in degree only from that of the 
 subject ^. How far this is true in theory we may consider 
 further on ; as to the fact, it may be stated that in the earliest 
 laws no wergild is assigned to the king, and hence it may be 
 inferred that none would be accepted ; in the cases in which 
 it is assigned, the sum is so large that it would necessitate the 
 enslaving of the murderer and his kin, if not such a failure of 
 payment as death alone could expiate. Tiie fines for transgi'essing 
 the king's protection, breaking into his ' burh,' and injuring his 
 dependents, were correspondingly high, but not so much so as to 
 imply a difference in kind from like offences against private men. 
 
 The raised seat or throne, the crown or royal helmet, the 
 sceptre, the standard, tufa or lance ^, all the ordinary insignia of 
 historical royalty, seem to have been used by one or other of the 
 Anglo-Saxon kings. The ceremony of anointing and coronation 
 has however an especial interest in their case. 
 
 GO. The royal consecration in its most perfect form included 
 both coronation and unction. The wearing of a crown was a 
 most ancient sign of royalty, into the origin of which it is useless 
 now to inquire ; but the solemn rite of crowning was borrowed 
 from the Old Testament by the Byzantine Caesars ; the second 
 Theodosius was the first emperor crowned with religious cere- 
 monies in Christian times ^. The introduction of the rite of 
 
 ' Allen, Prerogative, p. 40 : 'It appears . . . from these legal and his- 
 torical details that in early timcH ho had no other security for his life than 
 what the law afforded to tiie meanest of his sulijects.' 
 
 * Sceptra, Sim. Dun. ad. 755 ; tufa, Bcde, H. E. ii. 16. 
 
 ^ Maskell, Monumenta Ritualia, iii. p. iv; Robertson, Esisays, pp. 203-215. 
 The word ' consecration' would as a rule imply unction and, a fortiori, coro- 
 nation. But the unction of Alfred at Rome was rather a prophetic and 
 presumptive inaui^'uratiou than a formal act, and can scarcely have included 
 coronation. Alfred .at any rate di<l not receive the title of king with it, and 
 it ifl most reasonably referred to his confirmation.
 
 VI.] Unction and Coronation. 145 
 
 anointing is less certainly ascertained. It did not always ac- Origin of 
 
 . 1 1 1 1 1 • coronation 
 
 company coronation, and, although usual with the later emperors, and unction, 
 is not recorded in the case of the earlier ones, whilst in the 
 middle ages the kings of England, France, Jerusalem and Sicily, 
 were the only sovereigns below the imperial rank who were 
 entitled to it. There is no evidence that Theodosius was 
 anointed, but his successor Justin certainly was ; and in general 
 where unction is stated to have taken place, coronation may be 
 understood to have accompanied it. It is not easy to determine, 
 when crowned and anointed kings are spoken of rhetorically, 
 whether anything more is meant than a figurative statement 
 that their power is ordained of God : and consequently the 
 fact that Gildas speaks thus of the British kings can scarcely 
 be pleaded as actual evidence of the performance of the rite'^. 
 S. Coluniba however ' ordained,' that is crowned and conse- 
 crated, King Aidan of Dalriada^. The unction of Clovis by 
 S. Remigius, so far as it is true at all, is better understood of his 
 baptism than of his coronation^ ; and between Clovis and Pippin 
 there is no authenticated case of any Frank king being anointed*, 
 although it was customaiy among the Visigothic kings of Spain^. 
 From the ancient Pontifical ascribed to Egbert archbishop of 
 York, we learn that the English kings were both crowned with 
 a helmet and anointed". Whether the custom was borrowed 
 
 * ftildas, Hist. cxix. (M. H. B. 12): ' Ung:ebantur reges et non per Deum ; 
 sed qui caeteris crudeliores extarent ; et j^aulo post ab unctoribus non pro 
 veri exaininatione truciilabantur, aliis electis trucioribus.' 
 
 ^ ' Sanctus verbo obsecutus Domini ad lovam transnavigavit insulam 
 ibidemque Aidanum iisdem adventantem diebus in regem, sicut erat jussus, 
 ordinavit.' Adamnan, V. S. Columbae ; ed. Reeves, p. 198. Councils, &c. 
 ii. 108. 
 
 ^ Waltz, D. V. G. ii. 130, 131 ; iii. 219. Maskell regards the whole as a 
 fabrication, Mon. Rit. iii. p. vi. Waitz refers the unction to the baptism. 
 Clovis wore a diadem, after receiving the consular insignia from Constan- 
 tinople, D. V. G. ii. 13^. Cf. Hallam, M. A. 1. 107, loS. 
 
 * Waltz, D. V. G. ill. 61. 
 
 * Robertson, Essays, p. 204. Waltz, D. V. G. iii. 63. 
 
 * Pont. Egb. (Surtees Soc.) pp. 100-105. See also Kemble, Saxons, 1. 
 155. Bede does not, so far as I remember, mention any coronation or unction. 
 The ancient Northumbrian annals, used by Simeon of Durham, say of 
 Ethelred of Northumbria, A.D. 774, ' tanto honore coronatus'; of Eadbert, 
 A.D. 758, ' regnum sibi a Deo coUatum'; of Eardulf, A.D. 7y6, 'regni 
 infulis est sublimatus, et In Eboraca, in ecclesia Sancti Petri, ad altare 
 beati apostoli Paull, ubi ilia gens prlmum perceperat gratium baptlsml,
 
 146 Constitutional History. [chap. 
 
 from the Britons or taken direct from the Old Testament may be 
 Import of made a matter of question. The ceremony was understood as 
 
 tll6 ccrB- 
 
 mony. bestowing the divine ratification on the election that had pre- 
 
 ceded it, and as typifying rather than conveying the spiritual 
 gifts for which prayer was made\ That it was regarded as 
 confeiTing any spiritual character or any special ecclesiastical 
 prerogative there is nothing to show : rather from the facility 
 with which crowned kings could be set aside and new ones put 
 in their place without any objection on the part of the bishops, 
 the exact contrary may be inferred. That the powers that be 
 are ordained of God, was a truth recognised as a motive to 
 obedience, without any suspicion of the doctrine, so falsely im- 
 puted to churchmen of all ages, of the indefeasible sanctity of 
 royalty^. The same conclusion may be drawn from the compact 
 made by the king with his people and the oaths taken by both. 
 If coronation and unction had implied an indefeasible right to 
 obedience, the oath of allegiance on the one side, and the promise 
 of good govei-nment on the other, would have been superfluous. 
 Yet both were given. 
 
 Royal oath 61. The undertaking of the king- to govern righteously is not 
 of accession. . ° t? & o J 
 
 improbably a ceremony of much older date than either of the 
 
 symbolical rites. But the earliest instance of an oath to that 
 
 effect is that of Caribert king of Paris, father of the Kentish 
 
 consecratus est.' Of the other kinirdoms we have no contemporary 
 Chronicles ; but the consecration of Egfrith the heir of OfFa is mentioned 
 in the Chronicle under the year 785, and there is a charter of Ceolwulf of 
 Mercia in which he mentions his consecration as having been performed by 
 Archbishop Wulfred on the 15 Kal. Oct. 822. (Cod. Dipl. ccxvi.) The coro- 
 nation of Edmund, king of the East Angles, docs not rest on any good 
 authority ; but the practice had j)robably become general before the time of 
 Alfred. Florence of Worcester mentions the consecration of Athelstan at 
 Kingston, a.d. 924; that of Edred at the same place in a.d. 946 ; that of 
 Edwy, also at Kingston, in A.D. 955 ; but none of these are specified in the 
 Chronicle. The Chronicles (not contemporary) which give an account of 
 Egbert's consecration at Winchester, are of no authority whatever. Ethel- 
 werd states that Edward the Elder was crowned at Whitsuntide in the year 
 after Alfred's death : he also mentions the coronation of Eilgar. 
 
 * The term ' christus Domini,' the Lord's anointed, apjjlied to kings in 
 the canons of the legatine synod of A.D. 787, nmst be regarded as a pre- 
 sumptive evidence of the existence of the practice commonly at that date. 
 Councils, &c. iii. 453. 
 
 '^ Tlie statements of Allen, Prerogative, ]). 22, on this point are very 
 shallow and unfair. To atti-ibute the ideas of the seventeenth century to 
 the ages of S. Gregory, Anselm, and Becket seems an excess of absurdity.
 
 VI.] The K'mcfs Pro^nises. 147 
 
 Queen Bertha, who is recorded to have sworn that he would not 
 inflict new laws and customs upon his people, but would thence- 
 forward maintain them in the state in which they had lived 
 under his father's rule, and that he would impose on them no new 
 ordinance, to their damage ; there is some doubt however to 
 whom the promise was made\ In the Pontifical of Egbert the 
 declaration is made in the form of a decree^ : ' It is the duty of ^^ratj^^*'""" 
 a king newly ordained and enthroned to enjoin on the Christian 
 people subject to him these tlu-ee precepts ; first, that the Church 
 of God and all the Christian people preserve true peace at all 
 times ; secondly, that he forbid rapacity and all iniquities to all 
 degrees ; thirdly, that in all judgments he enjoin equity and 
 mercy, that therefore the clement and merciful God may grant us 
 His mercy.' In almost exactly the same form is the oath taken by 
 Ethelred the Unready at the bidding of Dunstan^ : ' In the name 
 of the Holy Trinity, three things do I promise to this Christian 
 people my subjects : first, that God's Church and all the 
 
 * Greg. Turon. ix. 30 : * Post mortem vero Chlothacharii regis, Chari- 
 berto regi populus hie sacrataentum dedit ; similiter etiam et ille cum 
 juramento promisit, ut leges consuetudinesque novas populo non infligeret, 
 sed in illo quo quondam sub patris dominatione statu vixerant in ipso hie 
 eos deinceps retineret, neque ullam novam ordinationem se inHictunim 
 super eos quod pertineret ad spolium, spopondit.' See Waitz, D. V. G. ii. 
 158, 161. 
 
 ^ Pont. Egb. p. 105. Select Charters, pp. 61, 62. I quote the Pontifical 
 of Egbert under that name as usually given to it; but it is by no means 
 clearly ascertained whether the service it contains is to be regarded as an 
 edition by Egbert of a service for an Anglo-Saxon coronation, or as a common 
 form already in use. It certainly appears to contain the germ of the cere- 
 mony which was expanded in later times according to local circumstances; 
 as in the service for the Emperor Henry, Canciani, i. 281. On the later 
 question, as to whether the kings of France borrowed their service from 
 England, see Selden, Titles of Honour, pp. 177, 189; and MaskeU, Mon. 
 Hit. iii. 14, 15. In the service of Charles V of France (MS. Cotton Tiberius 
 B. 8) the archbishop prays for the king, ' ut regale solium videlicet Saxo- 
 nuni, Merciorum, Nordanchimbrorum sceptra non deserat.' Maskell further 
 quotes a service for the coronation of the king of the Franks in which 
 the prayer runs ' et totius Albionis ecclesiam deinceps cum plebibus sibi 
 annexia ita enutriat, &c. ;' and the form given by Canciani may be 
 compared in both particulars. The conclusion seems pretty certain that 
 English MSS. had been used for the original drawing up of the service 
 in both instances. See also Freeman, Norm. Conq. iii. 622-625, The 
 earliest coronation service that we have, to which a certain date can be 
 given, is that of Ethelred II, printed in Taylor's ' Glory of Regality.' 
 
 * Kerable, Saxons, ii. 36 : from Reliquiae Antiquae, ii. 194. Maskell, 
 Mon. Rit. iii. 5. Memorials of S. Dunstan, p. 355. 
 
 L 2
 
 148 Constitutional History. [chap. 
 
 Royal oath. Christian people of my realm hold true peace ; secondly, that I 
 forbid all rapine and injustice to men of all conditions ; thirdly, 
 that I promise and enjoin justice and mercy in all judgments 
 that the just and merciful God of his everlasting mercy may 
 forgive us all.' The promise made by the same Ethelred 
 on his restoration to the throne in a.d. 10 14, is an illustrative 
 commentary on this, for it shows the alteration in the relations 
 of the king and his people which had taken place since the more 
 ancient oath was drawn up ; ' he promised that he would be to 
 them a mild and devoted lord, would consent in all things to 
 their will : whatever had been said of reproach or shame, or done 
 frowardly to him or his he would placably condone ; if all with 
 one mind and without perfidy would receive him to the kingdom^.' 
 The promise to do the will of his people although they receive 
 him as their lord is a step towards the form of the medieval 
 coronation oath, 'to maintain just laws and protect and strengthen 
 as far as lies in you, such laws as the people shall choose, accord- 
 ing to your strength.' 
 
 Oath of the 62. The duties and obligations of the people toAvards the 
 
 people to the 
 
 king. king may very probably have taken the form of an oath of 
 
 allegiance in primitive times, although no such form has been 
 preserved. The Frank kings on their accession made a progress 
 through their kingdoms, showed themselves to the nation and 
 received an cath from all ^. The oath does not however appear in 
 our own records until the aucient idea of kingship had been some- 
 what modified. It is first found in the laws of Edmund, and it 
 there bears the same mark as the legislation of Alfred respecting 
 ^ treason^. 'All shall swear, in the name of the Lord, fealty to 
 King Edmund as a man ought to be ftiithful to his lord, without 
 any controversy or quarrel, in open and in secret, in loving what 
 he shall love, and in not willing what he shall not will*.' This 
 
 ' Flor. Wigoi-n. a.d. 1014. 
 
 * Greg. Turon. vii. 7 : ' Priores quoqne de regno Chilperici ... ad 
 filiiim ejus . . . se collegeriint, qneni Clilotliarium vocitaverunt, exigentes 
 Bacramenta per civitates quae ad Chilpericmn prius a.sj)exerant, ut scilicet 
 fideles es.'^e dobcant CJuntcliramno regi ac m>i)oti siio Ciilothario.' Also ix. 
 30, quoted above ; other instances are given l>y Waitz, D. V. G. ii. 158. 
 
 » See Chapter VII. 
 
 * Edmund, iii. § 1 . Select Charters, p, 66.
 
 VI.] Oath of Allegiance. 149 
 
 however is no unconditional promise ; for tlie oath taken bv the Conditional 
 
 . . oath, 
 
 man to his lord, on which the above is framed, specially adds ' on 
 
 condition that he keep me as I am willing to deserve, and fulfd 
 all that was agreed on when I became his man and chose his will 
 as mine ^.' But it is not the less clear that the obligation, though 
 mutual and conditional still, is not the mere right and duty of both 
 to maintain the peace of the people, but a stage in the develop- 
 ment of those mutual relations by which the subject became per- 
 sonally dependent on the sovereign as lord rather than as king. 
 
 63. The greatest constitutional prerogative of the king, his right The royal 
 to nominate and maintain a comitatus ^ to which he could give gesiths or 
 territory and political power, is marked by similar develoj^ments. ^^^P'^^''^"*' 
 Like the Frank king, the Anglo-Saxon king seems to have 
 entered on the full possession of what had been the right of the 
 elective principes : but the very principle of the comitatus, when 
 it reappears in our historians, had undergone a change from 
 what it was in the time of Tacitus ; and it seems to have had in 
 England a peculiar development and a bearing of special im- 
 portance on the constitution. In Tacitus the comites are the 
 personal following of the princeps ; they live in his house, are 
 maintained by his gifts, fight for him in the field. If there is 
 little difference between comi^anions and sei'vants, it is because 
 civilisation has not yet introduced voluntary helplessness. The 
 difference between the comites of the princeps and the household 
 of the private man ^ depends fundamentally only on the public and 
 political position of the master. Now, the king, the perpetual 
 pi'inceps and representative of the race, conve\ s to his personal 
 following public dignity and importance. His gesiths and thegns 
 
 ' Oaths; Schmid, Gesetze, p. 405: 'In illo Deo pro quo sanctum hoc 
 sanctificatuin est, volo esse domino meo N. fidelis et credibilis, et amare quae 
 amet, et absoniare quae absoniet, per Dei rectum et seculi competentiam, et 
 nunquam ex velle et posse, verbo vel opere, quicquam facere quod ei magis 
 displiceat ; ut me teneat sicut deservire volo, et totum m^ihi compleat quod 
 in nostra praelocutione fuit, quando suus deveni et ejus elegi voluntatem.' 
 
 ^ See Kemble, Saxons, i. 162 ; K. Maurer, Wesen des altesten Adels, 
 Sec. pp. 137 sq. ; Krit. Ueberschau, ii. 388 sq. 
 
 * Gneist, Self-government, i. 6. K. Maurer, Krit. Ueberschau, ii. 396. 
 G. L. von Maurer, Hofverfassg. i. 138-142. The equivalents of gesith 
 {comes) are hlafieta, the loaf-eater, who eats the bread of the hlaford ; fol- 
 garius, the fellower ; geneat, the companion (genoss). See above, p. 24.
 
 150 Constitutional History. [chap. 
 
 The royal are among the great and wise men of the land. The right of having 
 such dependents is not restricted to him, but the gesith of the 
 ealdorman or bishop is simply a retainer \ a pupil or a ward ^ : 
 the free household sei'vants of the ceorl ai'e in a certain sense his 
 gesiths also. But the gesiths of the king are his guard and 
 private council ; they may be endowed by him from the folkland 
 and admitted by him to the witenagemot. They supply him 
 with an armed force, not only one on which he can rely, but the 
 only one directly amenable to his orders ; for to summon the fyrd 
 he must have the consent of the witan. The Danish huscarls of 
 Canute are a late reproduction of what the familia of the North- 
 umbrian kings must have been in the eighth century ^ The 
 gesiths are attached to the king by oath as well as by gratitude 
 for substantial favours * ; they have exempt jurisdictions from 
 which the national officers are partially excluded, and dependents 
 of their own whom they may make available for the king's service. 
 The king is not therefore left alone in forlorn majesty like the 
 later Merovingian monarchs ; he is his own mayor of the palace, 
 the leader of his own comitatus, and that comitatus supplies him 
 with strength both in the council and in the field. But the chief 
 importance of the gesiths lies in their relation to the territorial 
 nobility, at its origin. 
 
 64. It has been sometimes held that the only nobility of 
 blood ^ recognised in England before the Norman Conquest was 
 
 * Others besides kings and ealdonnen might liave gesiths or gesitlicund- 
 men in dependence on them ; see Ini, § 50. The under-kings of Hwiccia 
 retained the right of endowing their comites ; see Cod. Dipl. xxxvi, cxvii, 
 cxxv. So too Queen Ethelswitha of Mercia ; ibid, ccxcviii, ccxcix. 
 
 ^ The household of Wilfrid is described by Eddius, c. 21, 'principes 
 quoque saeculares, viri nobiles, filios suos ad erudiendum sibi dederunt, ut 
 aut Deo servirent si eligereiit, aut adultos si maluissent regi annates 
 commendaret.' No wonder king I'^gfrith was jealous of his ' innumerum 
 sodalium exercitum, regalibus vrstilms et annis ornatum.' Ibid. c. 24. 
 
 * K. Maurer, Krit. Ueberschan, ii. 400. The Iniskurlar are of tliree classes 
 (l) Servants ; (2) (restir, who do the king's l)usiness abroad and naeet at his 
 table only on holydays, guests ; (3) Hiredhmcnn, the inmates of the court. 
 
 * Cod. Di|)l. clxxix. Cenulf grants land to Huithun ' eo videlicet jure si 
 ipse nobis et optiniatilms nostris tidelis mansorit minister et inconvulsus 
 amicus.' Ibid, ccccxxxvii. Edwy desci'ibes lOlfhere as 'cuidam comiti non 
 solum mihi per omnia fideli suijjectione obtempcranti, verum etiam in 
 omnibus meuni velle sul)jicienti.' Ibid, cccclxii. ' vassallo.' 
 
 " On the subject of nobility see K. Maurer, Ueber das Weseii des iiltesten
 
 VI.] NohilUij of Blood. 151 
 
 that of the kind's kin^. The statement may be regarded as Question as 
 
 ^ _ , . to the exist- 
 
 deficient in authority, and as the result of a too hasty generalisa- enceofa 
 
 ^ . nobility of 
 
 tion from the fact that only the sons and brothers of the kings blood. 
 bear the name of iietheling. On the other hand must be alleged 
 the existence of a noble (edhiliug) class among the continental 
 Saxons who had no kings at all : and the improbability that 
 the kindred nations should undertake so large expeditions for 
 conquest and colonisation with but one noble family in each, or 
 that every noble family that came to England should succeed in 
 obtaining a kingdom ^. The common use of the word nobilis in 
 Bede and Eddius shows that the statement is far too sweep- 
 ing, and the laws of Ethelbert prove the existence of a class 
 beai'ing the name of eorl of which no other intei-pretation can be 
 given ^. That these, eorlas and cethel, were the descendants of the The^pri and 
 
 cetll^l. 
 primitive nobles of the first settlement, who, on the institution of 
 
 royalty, sank one step in dignity from the ancient state of rude 
 independence, in which they had elected their own chiefs and ruled 
 their own dependents, may be very reasonably conjectured : and 
 when the hcptarchic kingdoms gathered in the petty royalties of 
 the earlier date, and were themselves in turn gathered in under the 
 West Saxon supremacy, the numbers of the families which claimed 
 blood nobility must have largely increased, whilst the accumula- 
 tion of power in the king's hand must have at the same time 
 widened the interval between nobility and royalty. The rise 
 of royal dignity and the diminishing importance of the ancient 
 nobles may likewise have tended to restrict the title of getheling 
 to the royal house. And this would certainly follow as soon as 
 
 Adels der Deutschen Stamme, Miinchen, 1846, and Krit. Ueberschau, iii. 
 424-440. 
 
 ' Thorpe's Lappenberg, ii. 312, 313. Tlie Franks had no true ancient 
 nobility, such as the rest of the German tribes had. Waitz, D. V.G. ii. 
 289-291. See above, p. 55. 
 
 ^ K. Maurer, Krit. Ueberschau, ii. 424. See Bede, H. E. iii. 14: ' no- 
 bilibus simul atque ignobilibus,' translated ' aethelum and unicthelum ' ; 
 similar expres.sions are countless. For the 'eorl' see Ethelbert's laws, 
 §§ 13, 14, 75, &c. &c. Schmid, Gesetze, pp. 5^6-568. The word eorl is said 
 to be the same as the Norse jarl, and another form of ealdor (Ji) ; whilst the 
 ceorl answers to the Norse karl ; the original meaning of the two being old 
 man and young man. See Max Midler, Lectures on Language, ii. 2S0. 
 
 * K. Maurer, Wesen dea altesten Adels, &c. p. 187.
 
 152 
 
 Constitutional History. 
 
 [chap. 
 
 Changes of the nobility of blood be»an to be merged in the much more 
 
 names and ^ . 'T , i mi 
 
 titles. numerovis nobihty of official and territonaJ growth. Ihe ancient 
 
 name of eorl, like that of cetheling, changed its application and, 
 under the influence perhaps of Danish association, was given like 
 that of jarl to the official ealdorman. Henceforth the thegn 
 takes the place of the (Bthel, and the class of thegns probably 
 embraces all the remaining families of noble blood. The change 
 may have been very gradual ; the north ijeo'ples law of the tenth 
 or early eleventh century still distinguishes the eorl and sethel- 
 ing with a wergild nearly double that of the ealdorman and 
 seven times that of the thegn ^ : but the north people's law 
 was penetrated with Danish influence, and the eorl probably re- 
 presents the jarl rather than the ealdorman, the great earl of the 
 fourth part of England as it was divided by Canute '^. The eorl- 
 riht to which the successful thegn might aspire, and which he 
 perhaps acquired by the possession of forty hides, may possibly 
 be otherwise explained than by the supposition of a class of 
 eorls as distinct from ealdormen, of which the histories preserve 
 no individual names ^. 
 
 65. The development of the comitatus into a territorial 
 nobility seems to be a featui^e peculiar to English History. 
 Something of the kind might have occurred in the other Ger- 
 manic races if they had not been united and assimilated under 
 the Frank emj^ire, and worked out their feudalism under the 
 influence of the Frank system. The Lombard gasind, and the 
 Bavarian sindman were originally the same thing as the Anglo- 
 Saxon gesith *. But they sank into the general mass of vassalage 
 as it grew up in the ninth and tenth centuries. And Frank 
 vassalage, although it superseded and swamped the comitatus, 
 
 ' The wergild of the king is 15,000 thrymsas, and his cynebot the same ; 
 ihe wergild of the archbishop and wtheling or eorl is 15,000 ; that of the 
 l)isliop and oaldonuiui, Sooo ; that of the hold and high rt-cve, 4000 ; that 
 of the therjn, 2000; tii.at of ceorl, ■sGy. Schmid, Gesetze, pp. 396, 397. 
 
 ^ lloVjertson, Scotland under her Early Kings, ii. 281, refeis the ealdor- 
 man and thegn to Saxon Nortlunubria, the earl and hold to the Scandina- 
 vian lords. This is most prohal)le, but it is unnecessary to suppose the 
 document earlier than the time of Canute. 
 
 ^ See below, p. 157, n. 2. 
 
 * Waitz, D. V. G. ii. 182; iv. 190. Grimm, K. A. p. 318; G. L. von 
 Maurer, Hofverfassg, i. 167-170. 
 
 Peculiar 
 growth of 
 nobility by 
 sennce.
 
 VI.] The Gesith and the Thegn. 153 
 
 srrew out of circumstances entirely unconnected with \\}. The Peculiar 
 
 . ^ ,. ,,,r>- , ,1 f«'!ituresof 
 
 practice of commendation and the beneticiary system were the Anftlo-Saxon 
 basis of it. The beneficiary system bound the receiver of land 
 to the king who gave it ; and the act of commendation placed the 
 freeman and his land under the protection of the lord to whom 
 he adiiered ; the result was to bring all the landholders of the 
 country gradually into personal dependence on the king. Each 
 of these practices had its parallel in England. The bestowal of 
 folkland, however, rather presupposed than created the close rela- 
 tion between the king and the receiver of the gift, and in most 
 cases it was made to a gesith in consideration of past services, 
 implying no new connexion. The choice of a lord by the land- 
 less man for his surety and protector, and even the extension 
 of the practice to the free landowner who required such protec- 
 tion, was less liable here than on the continent to be confounded 
 with feudal dependence, and in fact created no indissoluble rela- 
 tion. Hence the important difference. The comitatus with its 
 
 • Waitz, D. V. G. ii. 262: 'It is usual to derive the later vassalage 
 from the ancient comitatus, but tliere are no grounds whatever for doing 
 so. Tlie former, wherever we find it, appears in wider extension, in relation 
 to private persons as well as to the king ; in relation to them it gives no 
 honours or rights such as the members of the comitatus enjoyed ; nor does 
 it create that close personal connexion in which the comites stand to their 
 lord.' See also vol. iv. 210 sq. The dependent might be connected with 
 the king (i) by service, (2) by comitatus, (3) by commendation, (4) by 
 reception of land as a benefice. Frank feudalism grew out of the two 
 latter, the English nobility of service from the two first. It is not con- 
 tended that either the principles at work in English society or the results 
 at which they arrived before the Norman Conquest were very different 
 from the corresponding influences and results on the continent ; but they 
 had a distinct history which was different in every stage, especially in the 
 point that, as in so many other things, the personal relation in England 
 takes the place of the territorial, as it was in France ; and the feudalism 
 that followed the Conquest was Frank and territorial, that which preceded 
 it grew from personal and legal, not from territorial influences. On the 
 growth of Frank feudalism, see Waitz, as f)uoted above ; on the growth of 
 dependence among the English, see the following chapter. Here the 
 important point is this, that whereas the later Anglo-Saxon nobility grew 
 out of gesith-ship and thegn-ship, on the continent the feudal nobility grew 
 out of vassalage, the beneficiary system and immunity. There are how- 
 ever two pomts in question, (1) the creation of the Anglo-Saxon nobility of 
 service, and (2) the creation of the general system of dependence of Avhich 
 the king was the centre and head : of these ouly the first is here noticed. 
 In the Frank empire the beneficiary s^'stem is unconnected with the comi- 
 tatus, in the English they are in the closest connexion. See below, 
 p. 251, n. 2.
 
 154 Constitutio7ial Histoi'y. [chap. 
 
 antrustions is on the continent absorbed in the landed vassalage. 
 The comitatus of gesiths and thegns forms the basis of a new 
 and only partially vassalised nobility. 
 Change in But in the process the character of the gesith and thesfu is 
 
 the charac- . ^ . 
 
 terof the largely modified. He who had at first been a regular inmate of 
 the king's house begins to have an estate of land assigned him. 
 He may be a noble, the son of a landed noble, like Benedict 
 Biscop, who received a provision of land from King Egfrith which 
 he resigned when he became a monk-'. To the folkland the sons 
 of the nobles, and the warriors who had earned their rest, looked 
 for at least a life estate^ ; and according to Bede the pretended 
 church endowments, the pseudo-monasteries, of his day had so 
 far encroached on the available stock as to be a public evil. It 
 is unreasonable to suppose that the relation to his lord dimin- 
 ished at all the personal status of the gesith^. In the time 
 of Tacitus, the noble German did not blush to be seen amongst 
 the comites. Beowulf the son of the noble Ecgtheow became 
 the gesith of King Hygelac, and when he rose to be a chieftain 
 had lands, treasm-es, and gesiths of his own*. Of gifts of land to 
 the gesiths we have abundant instances in the charters, and in 
 almost every instance in which the comes is mentioned by Bede, 
 it is as possessor of an estate. In this respect almost at the 
 dawn of History the chai'acter of the association is varied : the 
 ancient comes lived with his lord, and was repaid for his services 
 by gifts and banquets ; the English gesith, altliough bound by 
 oaths to his lord still, lives on his own domain. There are still 
 
 * ' Cum asset minister Osuiu regis et possessionem terras suo gradui 
 competentem illo donante perciperet, . . . iastidivit possessionem caducam 
 ut adquirere posset aetemain ; despexit militiam cum corruptibili donativo 
 terrestrem, ut vero Regi militaret, regnum in superna civitate mereretur 
 habere perpetuum.' Bede, Hist. Abbatum, c. I. 
 
 ^ ' Quod enim turpe est dicere, tot sub nomine monasteriorum loca hi qui 
 raonachicae vitac jjrorsus sunt expertes in suam ditionem acceperunt . . . ut 
 omnino desit locus ubi filii nobilium aut emeritorum militum possessionem 
 accipere possint; ideoque vacantts . . . banc ob rem vel patriam suam pro 
 qua militare debuorant traas mare abeuntes relinquant, vol &c. &c.' Bede, 
 Letter to Egbert, c. 7. 
 
 ' Kemble regards the status of the comes as unfree, ' the unfree chattel of 
 a prince,' Saxons, i. 175 ; see above, j). 26, n. 2. 
 
 * Kemble, Saxons, i. 168, Beowulf, ed. Thorpe, v. 391.
 
 VI.] The Thegn. 155 
 
 of course gesiths without land', who may live in the palace ; but 
 the ancient rule has become the exception. 
 
 Closely connected with the gesitli is the thegn^; so closely that The thegn, 
 it is scarcely possible to see the difference except in the nature of 
 the employment. The thejn seems to be primarily the warrior 
 gesith ; in this idea Alfred uses the word as translating the miles 
 of Bede'. He is probably the gesith who has a particular mili- 
 tary duty in his master's service. But he also appears as a land- 
 owner. The ceorl who has acquired five hides of land, and a 
 special appointment in the king's hall, with other judicial rights, 
 becomes thegn-worthy ; his oath and protection and wergild are 
 those of a thegn*. The thegn therefore is now the possessor of Theiand- 
 
 . . , owning 
 
 five hides of land, and as such bound to service m war, not thegn. 
 necessarily by his relation to the king, but simply as a land- 
 owner. And from this point, the time of Athelstan, the gesith 
 is lost sight of except very occasionally ; the more important 
 
 * Ini, §§ 45, 50, 51, 63. K. Maurer, Wesen d. iilt. Adels, &c. pp. 138, 139. 
 Maurer understands the gesith of Ini's law, where contriiated with the 
 thegn, as the landless gesith, p. 141. He also maintains that the original 
 difference was that the gesith was bound only to military service, whilst 
 the thegn had a special oflBce in the court over and above the military one ; 
 the second stage is reached when the thegn has special ser^'ice in the field ; 
 and a third when the military service is united to the possession of five 
 hides, pp. 160-163. 
 
 ^ Thegn, ' thegen, vir fortis, miles, minister.' Kemble, Saxons, i. 131, 
 who however, at p. 169, regards the word as meaning originally a servant. 
 Waitz compares the gesith with the Frank antrustion, and the thegn with 
 the vassus; D.Verfassgs.-Geschichte, i. 363. K. Maurer identifies the geneat 
 with the gesith (Wesen des iiltesten Adels, &c. p. 146), and points out that 
 the original meaning of thegn is not a servant, but a warlike man. Its 
 origin is not the same as that of the German dienen, to serve ; the cognate 
 word with which is theow, a slave. See too K. Maurer, Kritische Ueber- 
 schau, ii. 389. 
 
 ' Bede, H. E. iii. 14: 'Divertitque ipse cum uno tantum milite (thegn) 
 sibi fidelissimo nomine Tondheri, celandus in domo comitis (gesithes) 
 Hunvaldi, quem etiam ipsum sibi amicissimum autumabat . . . ab eodem 
 comite (gesith) proditum eum Osuiu, cum praefato ipsius milite (thegn) 
 per praefectum (gerefan) suum . . . intt'rfecit.' Hist. Eccl. iv. 22: 'Ad 
 dominum ipsorum, comitem (gesith) videlicet Aedilredi regis, adductus ; 
 a quo interrogatus quis esset, timuit se militem (cyninges thegn) fuisse 
 confiteri,' &c. 
 
 * As the Danish wars compelled the king to call out the whole popula- 
 tion to arms and not to rely on his own comitatus, or on his gesiths and 
 king's thegns, the distinction of the king's thegn from other landowners 
 disappeared (K. Maurer, Krit. Ueberschau, ii. 409, 410), and the gesith 
 with it.
 
 156 
 
 Constitutional History. 
 
 [chap. 
 
 The gesith 
 disappears. 
 
 members of the class liaving become thegns \ and the lesser sort 
 sinking into the rank of mere servants to the king. The class of 
 thegns now widens ; on the one hand the name is given to all 
 who possess the proper quantity of land whether or no they stand 
 in the old relation to the king-; on the other the remains of the 
 older nobility place themselves in the king's service. The name 
 of thegn covers the whole class which after the Conquest appears 
 under the name of knights, with the same qualification in land 
 and nearly the same obligations'*. It also carried so much of 
 nobility as is implied in hereditary privilege. The thegn-born are 
 contrasted with the ceorl-born ; and are perhaps much the same 
 as the gesithcund. Such thegn-born and gesithcund men may 
 themselves be called thegns even where they hold no land, but 
 they do not acquire the piivilege of their blood until they have 
 reached the third generation from the founder of the family 
 dignity *. 
 
 Under the name of thegn are included however various grades 
 of dignity^. The class of king's thegns is distinguished from 
 
 ^ This is self-evident in the case of the laws. As to charters the foUowing 
 is the general conclusion ; down to the time of Egbert grants are made to 
 comites and ministri in nearlj' equal numbers ; Ethelwulf's grants are all 
 to miuistri ; so are those of his successors down to Edmund who grants 
 twice to his comites Ethelstan and Eadric, both of whom are ealdormen ; 
 and from this time comes frequently has that signification ; the terms miles 
 (Cod. Dipl. ccccxxvi, mclvi, mclviii), homo (ccclxxxvi, ccccxii), and vassallus 
 (ccccxxxi, mlxxx) occur occasionally during the tenth century. It would 
 appear from this that the use of the word gesith in Alfred's translation of 
 Bede may have been an intentional archaism. 
 
 ^ This is the great jmint maintained by K. Maurer, Wesen d. alt. Adels, 
 p. 158 ; who asserts that in the later Anglo-Saxon times, the king's service 
 without the five hides did not confer the rank of thegn, whilst the five 
 hides without the king's special service did. The whole view is combated 
 by Schmid, Gesetze, pp. 664-668. See Gneist, Self-government, i. 13, 16, 17. 
 
 ' Select Charters, p. 87, above p. 155. The word cniht occurs in the 
 charters occasionally, e. g. Cod. Dipl. dlvii, dcxii, dclxxxv, dcxciv, mcccii, 
 mcccxxxvi, apjjai'ently in the sense of minister or thegn to a noble person. 
 See Schmid, (Jesetze, p. 548. 
 
 ' There are doubts about the rea*ling of the passage on wliich this 
 depends, Wergilds, §§ 9-12. See K. Maurer, Wesen d. alt. Adels, &c. pp. 
 139, I40; who understands that altiiouj^h every pos.sessor of five hides was 
 a thegn, it was only in tliree generations that he became gesithcund or 
 ennobled in hhmd ; if a ceorl was a gesith or military follower without the 
 five hides, lie was not a thegn and could have only a ceorl's wergild. 
 
 ' Of the olficial thegns of the king's household, the liors-thegn, disc-thegn 
 .ind the rest, it is not necessary to speak here ; they are officers, not classes 
 or ranks of society.
 
 Yi.] The Thegn. 157 
 
 that of the medial thegns, and from a residuum that falls in rank Ranks of 
 below the latter ^ The heriot of a king's thegn by the law of 
 Canute comes midway between that of an eorl and that of the 
 medial thegn. His estate of land would seem then to fall between 
 the forty hides of the one and the five hides of the other ^. 
 Over a king's thegn none but the king himself could exercise 
 jurisdiction *, whilst there were thegns who were in actual 
 dependence on others bearing the same title* : and Canute in 
 one of his charters addresses his thegns as 'twelfhjiide and twy- 
 hyndc,' as if some at least of the order were in wergild indis- 
 tinguishable from the ceorls *. Some thegns had socen or 
 jurisdiction over their own lands, and others not *'. We may well 
 believe that the combinations and permutations of nobility by 
 blood, office and service, would create considerable differences 
 among men bearing the common title. The alodial eoi^l who for 
 security has commended himself to the king and bears an hono- 
 rary office at court, the official ealdorman Avho owes his place 
 to royal favour earned in the humbler status of a dejiendent, 
 
 ' Canute, Sec. § 72. Maurer (p. 171) refers this graduation merely to 
 the extent of the possessions held by each class ; citing Domesday, Not- 
 tinghamshire, p. 280 ; Yorkshire, p. 298 ; where the thegn who has more 
 than six manors pays a relief of eight pounds to the king ; he who has 
 six or less pays three marks to the sheriff. The custom of Berkshire was 
 different ; there the whole armour was given to the king with one horse 
 saddled and another unsaddled. Gneist (Self-government, i. 17) connects 
 the extension of the heriot to alodial owners with the acquisition of the 
 position of thegn by every owner of five hides. 
 
 ^ The forty hides that conveyed the dignity of a procer (Hist. Eliens. ii. 
 40) are of course eight times the five hides that made a thegn. So the 
 eorl's wergild was 15,000 thrymsas and the thegii's 1200 shillings. I con- 
 fess that I see no other explanation of the passage and of the similar one 
 in the Ranks, than that the possession of forty hides entitled a man to the 
 wergild and credibility of an earl ; it could scarcely confer a claim on the 
 ealdormanship in its character of magistracy, although there is a passage in 
 Hist. Eliens. i. 5 which might lead to such a conclusion. Robertson, Essays, 
 p. 169. But there may have been a rule, such as that of Clothair II (Baluze, 
 i. 16), that no one should be an ealdorman who did not hold forty hides of 
 land in the territory he w-as to rule ; or the forty hides may have been the 
 appanage or official estate of the earl. 
 
 ^ Ethelred, iii. § 1 1 . 
 
 * Ranks, § 3. Select Charters, p. 64. 
 
 ' Cod. Dipl. dccxxxi. K. Maurer doubts the pertinency of this passage. 
 Such persons were probably the scir-thegns to a large extent, simply land- 
 owners, such as the numerous tainiof the Western shires, noticed in Domes- 
 day-book. See Schmid, Gesetze, p. 667. 
 
 ^ Canute, ii. § 71. 3.
 
 158 
 
 Constitutional History. 
 
 [chap. 
 
 Different 
 sorts of 
 thegns. 
 
 The title of 
 aitheling. 
 
 The ealdor- 
 maii. 
 
 the mere courtier who occupies the place of the ancient gesith, 
 the ceorl who has thriven to thegn-right, the landowner of five 
 hides or more, and the smaller landowner who has his own 
 place in the shiremoot, all stand on different steps of dignity. 
 The very name, like that of the gesith, has different senses 
 in different ages and kingdoms ; but the original idea of military 
 service runs through all the meanings of thegn, as that of 
 personal association is traceable in all the applications of gesith. 
 The king's thegn was both the landowner and the military 
 gesith. In the latter character he was bound by a very stringent 
 oath of fidelity; and he received from his lord the equipment 
 which was returned as a heriot on his death. He was a member 
 of his personal council, and as such attested the acts of the 
 witenagemot. Sometimes the assent and counsel of the coraites 
 is expressed in a charter ^, and occasionally a comes attests a 
 grant, but more frequently the king's retainers style themselves 
 ministri or thegns, and when the term comes viltimately emerges, 
 it is as the translation of eorl or ealdorman, in the century 
 immediately preceding the conquest ^. 
 
 When the more ancient blood nobility which had existed in the 
 time of Ethelbert of Kent, and survived as late as that of Alfred, 
 had finally merged in the nobility of sei'vice, when the eorl and 
 sethel were lost in the thegn, it is no wonder that the title of 
 aetheling was resti'icted to the king's kin. Then too the position 
 of the ceorl seems to have sunk, although not so low as it did 
 after the Conquest : the mere possession of land, however free, 
 was no longer the sole qualification for political power. 
 
 66. Whilst the title of thegn speaks distinctly of the origin 
 of the rank in military service, that of ealdorman evinces 
 equally clearly its connexion with executive government ; for 
 although it is sometimes loosely or generically applied as an 
 equivalent to lord, senior, or noble, it is, when given to a par- 
 ticular person, or appearing in a public document, always refer- 
 able to the chief magistrate of a shire or cluster of shires. It 
 
 * But only in Huspioious documents, Kuch as the grant of Ethelwulf, Cod. 
 Dip], ml. 
 
 ^ See above p. ii i, n. 4.
 
 VT.] The Ealdorman. 159 
 
 thus answers to the comes or graf of the coutineut, and by 
 Asser and the other historians who have used his work, the 
 word comes is employed as its Latin equivalent. Alfred, how- 
 ever, uses ealdorman to translate the princeps of Bede. The 
 use of dux for ealdorman is not rare in the Latin chronicles, The dux. 
 and the term is occasionally found in charters as early as the 
 eighth century interchangeably with j^rincejjs^. Whether in such 
 cases the dux should be understood to have the military com- 
 mand of the shire, wliilst the ealdorman possessed the civil, 
 and the gerefa was simply the guardian of the king's interest ; 
 whether the dux ruled over a wider territory than the simple 
 ealdorman ; or whether the terms are not really equivalents, can 
 only be conjecturally decided. 
 
 The history of the ealdoi-manship is thus in close connexion Ealdormen 
 with that of the shire '^. The smaller principalities of Mercia, kings. 
 retaining, under the rule of Penda and his sons, somewhat of 
 their earlier individuality, have their ealdormen in the descen- 
 dants of their royal house. Oshere, Osric, and their race ^, rule 
 Hwiccia for a century and a half as a hereditary lordship ; the 
 ealdorman of the Gyi'was is in the seventh century suflSciently 
 noble to marry the daughter of the king of East Anglia * : and 
 the ealdorman of the Gaini in the ninth took a wife of the royal 
 house of Mercia, and gave his daughter as wife to King Alfred^. 
 In the cases in which such an origin is clear, the relation of the 
 ealdorman to the king has probably been created by commenda- 
 tion rather than by conquest ; and consequently the hereditary 
 descent of the office is only occasionally intei'fered Avith by royal 
 nomination, as was the rule in Saxon Northurabria *'. 
 
 As the heptarchic kingdoms successively came under West Ealdormen 
 Saxon domination, their ruling houses being extinct, ealdormen 
 were placed over them. The Mercian kingdom, or so much of 
 it as was not in Danish hands, was administered by the son-in- 
 law of Alfred as ealdorman, and an attempt was made to render 
 
 * Cod. Dipl. Ixvii. &c. * Above, p. iii. 
 
 ' See the chartprs in the Cod. Dipl. Iv, Ixxxiii, cii, cxvii, exxv. Cf. Pal- 
 grave, Common wcnlth, p. ccLxxxviii. * Bede, H. E. iv. 19. 
 
 * Asser, M. H. B. p. 475. Her mother was of the royal house of Merci.T,. 
 ® See the succession in Hoveden, i. 57 sq.
 
 i6o Constitutional History. [chap. 
 
 Ealdormen ^he dignitv hereditary iu the person of his dauf?hter\ Each 
 of shires or o J J i _ o ^ 
 
 provinces, of the West Saxon shires ah-eady had its ealdorman^ ; and as 
 soon as the subjugation of the Danes made it possible to intro- 
 duce a uniform shire-administration, the same organisation was 
 adopted throughout the kingdom. But either the arrangement 
 was carried out by the collection of several shires under one 
 ealdorman, or a superior ealdormanship was established over 
 a number of subordhiate ones ^ : for in the time of Edgar and 
 earlier, these gi'eat jurisdictions existed, as we have seen 
 already*, and led the way for the summary division of the 
 country by Canute into four earldoms, which continued with 
 some slight variations until the Norman Conquest. The title 
 
 Title of earl, of earl had begun to supplant that of ealdorman in the reign of 
 Ethelred : and the Danish jarl, from whom its use in this sense 
 was borrowed, seems to have been more certainly connected by 
 the tie of comitatus with his king than the Anglo-Saxon ealdor- 
 man need be supposed to have been^. Hence in the laws of 
 Canute the heriot of the earl appears side by side with that of 
 the thegn, and he himself is included in the servitial nobility. 
 The original idea of the ealdormanship is, however, magistracy 
 or jurisdiction, as implied in the attribute of age, and is not 
 necessarily connected with either nobility of blood or with that 
 of service, or even with the possession of a separate estate of 
 land greater than that of the ordinary freeman. 
 
 ' Flor. Wig. A.D. 920. 
 
 ^ Ethelwulf is eaklorni.an of Berks in A.D. 860, Asser, M. H. B. p. 473 ; 
 Athelhelm ofWilts in A.D. 887, ibid. p. 491 ; Elanwulf of Somerset, a.d. 
 867, Ethelvv. M. H. B. p. 513 ; Osric of Hants in a.d. 860, Asser, p. 473; 
 Odda of Devon, A.D. 878, Ethelw. p. 515; Ceolmund of Kent in a.d. 897, 
 Chron. Sax. ; Huda of Surrey in A.D. 853, Asser, p. 470 ; Osric is ealdoi-- 
 man of Dorset in a.d. 845, Chron. Sax. See Palgrave, Commonwealth, 
 Appendix. 
 
 ^ I cannot find that, after the consolidation of the kingdom, the Mercian 
 shires ever liad their own ealdormen like the West Saxon, except Lindsey, 
 tlie ealdorman of which district wns killed at Assandun. They were under 
 the great ealdormen of Mercia ; yet OfFa had governed by ealdormen, and 
 something must bo allowed for tlie scantiness of records. 
 
 * Above, p. 1 1 7. ]\obertson. Essays, j)]). 1 77-189. Tlie title of patricius, 
 which aj)fiears from time to time in An^lo-Saxon records from the eighth 
 century to thi! eleventh, is referred by Robertson to the senior ealdorman 
 of the king's kin ; according to Sohm it is eijuivaleiit to dux. 
 
 ' K. Maurer, Wesen d. alt, Adels, p. 180.
 
 VI.] ' Tlie Ealdorman. i6i 
 
 67. Althouj^h the various origins of the various ranks of Tho wergild 
 
 1 • 1 1 1 1 T ■ • 1 , as a distinc- 
 
 dignity are thus luvolved, the distniction between man and tionofrauk. 
 
 man was sharply drawn for all the most impoi'taut purposes 
 
 of judicature by the institution of the wergild. Every man's 
 
 life had its value, and according to that valuation the value of 
 
 his oath in the courts of justice varied, and offences against his 
 
 protection and person were atoned for. The oath of the twelf- 
 
 hynd man was worth six times that of the twyhynd man, and 
 
 twice that of the sixhynd man. Each of the Germanic races 
 
 had its own tariff of wergilds, varying according to the cii-cum- 
 
 stances of the case ^ ; as the freemen were mingled more or less 
 
 with loetic or native races, or affected by the influences of 
 
 royalty and nobility^. In most of the English kingdoms the 
 
 basis of the calculation was the wei'gild of two hundred shilliugs, 
 
 which marked the ceorl, twyhynd or simple free man. The 
 
 thegn was worth twelve hundred shillings. The Briton or wealh 
 
 was worth half as much as the Saxon or Angle : if he possessed 
 
 five hides he was sixhynd, if he possessed but one he was worth 
 
 a hundred shillings ^. The higher ranks, the king, archbishop, 
 
 bishop, ealdorman, and earl, were estimated in multiples of the 
 
 same sort : the king's high reeve was worth twice the thegn, 
 
 the bishop and ealdorman four times, the king and archbishop 
 
 six times ; but the rules are neither general nor constant. 
 
 But although English society was divided by sharp lines. No caste 
 
 and broad intervals, it was not a system of caste either in 
 
 the stricter or in the looser sense. It had much elasticity in 
 
 ^ See them collected by Robertson, Scotland under her Early Kings, ii. 
 
 ^ On this subject, which is in itself of great importance, but cannot be 
 worked out here, see K. Maurer, Wesen des iiltesten Adels, pp. 130-132, 
 where the different usages of Kent, Wessex, and Mercia ai"e compared. 
 
 ^ The sixhynd-man is a difficulty. K. Maurer holds the twyhynd-nian 
 to be the landless ceorl, the freeman on anotlier's land ; and therefore the 
 sixhjTid-man woukl be the ceorl who had land of his own, but less than 
 five hides, which was the qualification of the twelfhynd-man, p. 134; Ro- 
 bertson, Scotland, &c. ii. 280, 297, thought that the British owner of five 
 hides (_Ini, § 24) was the only sixhjTid-nian, and as such proprietors be- 
 came extinct or merged early in the mass of the people, the rarity of the 
 tenn may be thus accounted for ; but in his Essays (p. xlviii) he in- 
 cludes the Northumbrian dreng, and also the landless gesithcund-man of 
 Wessex.
 
 1 62 Constitutional History. [chap. 
 
 Possibilityof practice, and the bouudaries between the ranks were passable. 
 
 rankf ^ The ceorl who had thriven so well as to have five hides of land 
 rose to the rank of a thegn ; his wergild became twelve hundred 
 shillings ; the value of his oath and the penalty of trespass 
 against him increased in proportion; his descendants in the 
 third generation became gesithcund. Nor was the character of 
 the thriving defined : it might, so far as the terms of the custom 
 went, be either purchase, or inheritance, or the receipt of royal 
 bounty. The successful merchant might also thrive to thegn- 
 right. The thegn himself might rise to the rank, the estimation, 
 and status of an eorl. 
 
 Intricacy of 68. With such an intricate system was royalty surrounded; 
 le system. ^ system rendered the more intricate by poverty of nomen- 
 clature, variety of provincial custom, and multiplicity of ranks, 
 tenures, and ofiices. Most of these characteristics belong both 
 to the heptarchic and to the aggregated kingdom. Under the 
 former system the organisation ends here ; for no higher ma- 
 chinery either of race or territorial nationality can be shown 
 to have existed until the hegemony of the "West Saxon kings 
 began the work of consolidation. At several periods the most 
 powerful monarch of the seven did, as we have seen, exercise 
 a supremacy more than honorary, although not strictly of the 
 nature of government. To such the name of Bretwalda ^ has 
 
 * On the Bretwalda see Hallam, M. A. ii. 270, 352, and Arcbaeologi.t, 
 xxxii. 245 ; Kemble, Saxons, ii. 8-22 ; Freeman, Norm. Conq. i. 542-556. 
 Bade, H. E. ii. 5, mentions seven kinfjs who had a primacy (imperium or 
 ducatus) — Ella of Sussex, Ceawlin of Wessex, Ethelbert of Kent, Redwald 
 of Eiist Anglia, Edwin, Oswald, and Oswy, of Northumbria. One of these, 
 Oswald, is called by Adamnan, who wrote before Bede, ' totius Britanniae 
 imperator ordinatus a Deo.' The Anglo-Saxon Giironicle, A.D. 827, gives 
 to these seven the title of Bretwalda ; and makes Egbert of Wessex the 
 eighth. The word occurs in a bilingual charter of Athtlstan, Cod. Dipl. 
 mcx, as Brytienwalda, translating the title ' rex et rector totius Imjus Bri- 
 tanniae insulae.' Kemble, however, doiived it from the Anglo-Saxon breotan, 
 to 'distribute,' and explained it 'widely ruling.' Rapin, who seems to have 
 Vjeen the first historian who attached much importance to it, regarded it as 
 denoting tlie headship of a federal union of kings ; Sharon Turner also 
 mentions it ; Lingard goes so far as to assimie that it was a regular title 
 borne b}' several kings in succession, and arranges the early history under 
 theni as Bretwalda I, Bretwalda 11, &c. Balgrave went on to connect it 
 with the imperial status of the kings, as sharers in the remains of the lio- 
 nian Caeaarship, and supposed the Bretwaldas to be the successors of the
 
 VI.] Ranks and Classes. 163 
 
 been given by historians ; but the denomination is not contem- What was 
 
 X • *'^° Bret- 
 
 poraneous or 01 common use. It is most probable that the waldaV 
 superiority Avas one of power and influence only; but it may 
 have been recognised by occasional acts of commendation by 
 which the weaker sovereign placed himself under the protection 
 of the stronger, entering on an alliance for defence and offence 
 in which the determination of the defence and offence belonged 
 to the superior. The commendation was ratified by oath and 
 was one of the chief steps towards organised feudalism. In itself 
 however it was not feudal any more than the comitatus : the 
 origin of the tie in each case being personal and not territorial, 
 whilst in the feudal system the origin of the obligation is in the 
 land, and not in the persons connected by it. Such a theory, 
 however, will not account for all cases in which the title of 
 Bretwalda is given : some may have been due to conquest and 
 occupation of short duration, such as the alternate superiority 
 of Mercia and Northumbria in the seventh century : some to 
 the mere threat of war, or to the flattery of courtiers, or to the 
 renown of the gi-eat king whose very name, as in Tacitus's time, 
 settled the fate of battles. 
 
 During this period the unity of the church was the only Ecclesiasti- 
 working unity : the law of religion the only universally I'ecog- 
 nised common jurisprudence. The archbishop of Cant?rbury 
 stood constantly, as the Bretwalda never stood, at the head 
 of an organised and symmetrical system, all the officers of which 
 were bound by their profession of obedience to him. The arch- 
 bishop of York governed Northumbria with a much firmer and 
 more permanent hold than the kings, and in secular as well 
 as ecclesiastical matters occupied a jiosition stronger and safer. 
 
 British pseudo-emperors Maximus and Carausius. Mr. Freeman of course 
 throws over the hitter part of Palgrave's theoiy, but regards the title as sig- 
 nificative of a real and substantial hegemony, though in no way derived from 
 Roman or British dominion. The supremacy of Egbert was acknowledged 
 by all the English princes in Britain, and his successors took titles of im- 
 perator, basileus, &c., wiiich express the same supremacy, and although in 
 themselves quaint and pedantic imitations of foreign usage, imply a dis- 
 tinct assertion of the independence of the English crown of all earthly 
 superiority. The Appendix B. to Mr. Freeman's first volume contains all 
 the information on the subject, which is only very incidentally connected 
 with constitutional history. 
 
 M 2
 
 164 Constitutional History. 
 
 The bishops of the several kingdoms could meet for common 
 council and issue canons that were of equal validity all over 
 the land. And this fact was recognised by Oflfa and Egbert, the 
 two kings who made the gi'eatest strides towards a union of the 
 kingdoms. But the origin, growth, and constitutional develoj)- 
 ment of the English church requires separate and independent 
 treatment.
 
 CHAPTER VIL 
 
 DEVELOPMENT IN ANGLO-SAXON HISTORY. 
 
 69. Development in Anglo-Saxon history from personal to territorial 
 system. — 70. Increase of royal power in intension as the kingdom 
 increases in extension. — 71. The king becomes lord or patron of the 
 people. — 72. He becomes the source of justice. — 73. Jurisdiction 
 becomes territorial. — 74. The tenure of land affected by the territorial- 
 ising of judicature. — 75. Territorialising of military organisation. — 
 76. Legislation ; absence of personal law. — 77. Influence of the Danes. 
 — 78. Influence of Frank legislation. — 79. No real growth of unity. — 
 80. Seeds of national life still preserved. — 81. National character. 
 
 69. Although the framework of Anglo-Saxon society was Deveiop- 
 permanent, and its simple organisation easily adapted itseli to Angio- 
 the circumstances that fill the five centuries of its history, it was history. 
 capable of development and liable to much internal modification, 
 according to the variations of the balance of its parts, and the 
 character of its regulative or motive force. The exact chrono- 
 logical sequence of these variations it is difficult to determine, 
 but as to the fact of the development there can be no question. 
 A comparison of the state of affairs represented in Domesday 
 book with the picture that can be drawn from Bede sufficiently 
 proves it. The ages had been ages of straggle and of growth, 
 although the struggle was often fi-uitless and the growth ended in 
 weariness and vexation. But the transition is more distinctly 
 apparent if we look back further than Bede, and rely on the 
 analogies of the other Germanic nationalities in draAving our 
 initial outline. And this we are justified in doing by the 
 completeness and homogeneousness of the constitution when it 
 first appears to us, and by the general character of the early laws.
 
 1 66 Constitutional History. [chap. 
 
 Difficulties But the subject is not without its difficulties : the first and last 
 
 of treat- •' 
 
 ment. terms of the development are as remote from each other in 
 
 character as in date. There is a very gi-eat difference between 
 the extreme and confusing minuteness of Domesday and the 
 simplicity and elasticity of the ideal German system of the 
 sixth century : whilst on the other hand the scantiness of 
 our knowledge of the latter is compensated by its clearness, 
 and the abundant information of the former is deprived of 
 much of its value by the uncertainty of its terminology. For 
 it is unquestionable that great part of the Anglo-Saxon 
 customary law, of which Domesday is the treasury, was un- 
 intelligible to the Norman lawyers of the next century, on 
 whose interpretation of it the legal historian is wont to rely. 
 The process of change too was veiy gradual : it is not marked 
 by distinct steps of legal enactment ; the charters afford only 
 incidental illustrations, and the historians were, for the most part, 
 too far removed in time from the events they described to have 
 a distinct idea of it, even if it had been possible for the annalist 
 to realise the working of causes in so slow and so constant action. 
 But all the great changes in the eai'ly history of institutions are of 
 this character, and can be realised only by the comparison of suffi- 
 ciently distant epochs. There ai'e no constitutional revolutions, 
 no violent reversals of legislation ; custom is far more potent than 
 law, and custom is modified infinitesimally every day. An altera- 
 tion of law is often tlie mere registration of a custom, when men 
 have recognised its altered character. The names of offices and 
 assemblies are permanent, whilst their character has imper- 
 ceptibly undergone essential change. 
 
 General The general tendency of the process may be described as a 
 
 Cii3r2ict6i or rt 1 ^ 
 
 the develop- movement from the personal to the territorial organisation ' ; 
 
 from a state of things in which personal freedom and political 
 
 right were the leading ideas, to one in which personal freedom and 
 
 political right had become so much bound up with the relations 
 
 created by the possession of land, as to be actually subservient to 
 
 it : the Angel-cynn of Alfred becomes the Engla-lande of Canute. 
 
 — The main steps also are apparent, i In the primitive German 
 
 * Pa]grave, Commonwealth, p. 6j.
 
 VII.] Stages of Development. i6y 
 
 constitution the free man of pure blood is the fully qualified Progress 
 political unit ^ ; the king is the king of the race ; the host is the sonai to 
 
 . . . , territorial 
 
 people in arms ; the peace is the national peace ; the courts are system. 
 the people in council ; the land is the property of the race, and "^-^ 
 the free man has a right to his share. In the next stage the 
 possession of land has become the badge of freedom ; the freeman 
 is fully free because he possesses land, he does not possess the land 
 because he is free; the host is the body of landowners in arms ; 
 the courts are the courts of the landowners. But the personal 
 basis is not lost sight of : the landless man may still select his 
 lord ; the hide is the provision of the family ; the peace implies 
 the maintenance of rights and duties between man and man ; the 
 full-free is the equal of the noble in all political respects. In a 
 further stage the land becomes the sacramental tie of all public 
 relations ; the poor man depends on the rich, not as his chosen 
 patron, but as the owner of the land that he cultivates, the lord 
 of the court to which he does suit and service, the leader whom 
 he is bound to follow to the host : the administration of law 
 depends on the peace of the land rather than tliat of the people ; 
 the great landowTier has his own peace and administers his own 
 justice. The king still calls himself the king of the nation, but 
 he has added to his old title new and cumbersome obligations 
 towards all classes of his subjects, as lord and patron, supreme 
 landowner, the representative of all original, and the fountain of 
 all derived, political right. 
 
 The first of these stages was passed when the conquest of 
 
 ' Sohin, Fr. R. G. Verfg. i. 333 sq., maintains that in the Frank dominion 
 it was not the possession of land but personal freedom that entitled or 
 obliged a man to attend in the courts of law, in the host and other assem- 
 blies : and that it was oidy in trials in wliieli land was concerned that the 
 witnesses were required to have a land qualification (ibid. p. 355). lu 
 this as in many other points, this writer combats the received view. 'The 
 full freedom of the German law is, in host and in court, given by personal 
 freedom ' (ibid. p. 359). Waitz on the other hand holds that ' the hide 
 was the basis of freedom in the fuU sense of the word,' D. Verfassgs.-Gesch. 
 i. 120; and ' only he who possessed land was fully qualified in the com- 
 munity ' (ibid. iv. 450). See above, p. 78. Where there is so much diver- 
 gence in the application of terms, it is somewhat dangerous to speak posi- 
 tively about stages of development ; and in this, as in many other points, the 
 statements of the text must be understood as referring chiefiy if not solely 
 to English history.
 
 i68 Constitutional History. [chap. 
 
 Britain was completed ^ ; and only showed what it had been in 
 the vestiges of the mark system, and in the permanence of the 
 personal nomenclature. The village was the kindred settlement, 
 the hide of land the allotment of the head of the family, the tribal 
 
 The great divisions — the hundred, the msegth, the theod, — all personal^. 
 
 Arpio-Saxon The tracing of the process of change under the second and third 
 stages is the problem of Anglo-Saxon Constitutional History. 
 The series is not fully worked out. The Anglo-Saxon king 
 never ceases to be the king of the nation, but he has become its 
 lord and patron rather than its father ; and that in a state of 
 society in which all lordship is bound up with landownership : 
 he is the lord of the national land, and needs only one step to 
 become the lord of the people by that title. This step was 
 however taken by the Norman lawyers and not by the English 
 king ; and it was only because the transition seemed to them so 
 easy, that they left the ancient local organisation unimpaired, 
 out of which a system was to grow that would ultimately reduce 
 the landownership to its proper dimensions and functions. If 
 the system had in England ripened into feudalism, that feudalism 
 would in all probability have been permanent. Happily the 
 I change that produced feudalism for a time, introduced with it 
 the necessity of repulsion. The English, who might never have 
 struggled against native lords, were roused by the fact that their 
 
 ' It may be tliought that in granting so much, we are placing the 
 landless Englishman on a lower level than the lanilless Frank ; see the last 
 note. But it is to be remembered that in Gaul and the other Romanised 
 provinces, the fully free Frank was surrounded by a vast servile population, 
 whilst in England the servile class formed a minority comparatively in- 
 significant. The contrast is between full fi-eedom and servitude in the 
 former case ; and in the latter between greater and smaller duties and 
 liabilities. But it is (piite jirobable that the rights of attending court and 
 host were burdens rather than i)rivileges"'to the Anglo-Saxons ; and the 
 rule that the landless man must have a lord was a measure rather compel- 
 ling him to his duty, than dujjriving him of right. Until that rule was 
 laid down, it is probable that tlie fully free Englishman, whether he owned 
 land or not, was capable of taking part in the judicial business. Large 
 numbers of lanilless men must have constantly attended the courts; and 
 mere resiiUnce as W(;ll as possession of estate must have determined in what 
 court tliey should attend. 
 
 ^ The msegth of Alfred is the provincia of Bede ; the theod lande of 
 Alfred is the regio, the theod being the gens. Bede, H. E. ii. 9, iii. 20, v. 
 12, &c.
 
 VII.] Growth of the Kingdom. 169 
 
 lords were strangers as well as oppressors, and the Norman ' 
 
 kings realised the certainty that if they would retain the land 
 
 they must make common cause with the people. 
 
 Fivo historical events mark the periods within which these Historical 
 
 • p ^ n ij.1 1. • landmarks. 
 
 ch>tnges were working : the accretion 01 the small settlements in 
 heptarchic kingdoms ; the union of the heptarchic kingdoms 
 under the house of Cerdic ; the first struggle with the Danes ; 
 the pacification of England under Edgar ; and the introduction of 
 new forms and principles of government by Canute. 
 
 70. The development of constitutional life depends largely on Growth of 
 the historical career of the nation, on the consolidation of its dom. 
 governmental machinery in equality and uniformity over all its 
 area, on the expansion or limitation of the regulative power for 
 the time being : in other words, on the general and external 
 history marked l)y these eras ; on the extension of the kingdom 
 and on the condition of the royal power. England at the period 
 of the Conversion, when for the first time we are able really to 
 grasp an idea of its condition, was composed of a large number 
 of small states or provinces bound in seven or eight kingdoms ^. 
 The form of government was in each monarchical, and that of the 
 same limited character. By the middle of the tenth century it 
 has become one kingdom, and the royal power is much more 
 extensive in character. During a great part of the intervening 
 period the consolidation of the kingdom and the power of the 
 king have undergone many variations. The tendency towards 
 union has been developed first under one tribal supremacy and 
 then under another, and the royal power, whose growth is of 
 necessity greatly affected by the extension of its territory, and 
 the presence or absence of rival royalties, has fluctuated also. 
 The two of course rise and fall together. But as a rule, at the 
 end of any fixed period, both manifest a decided advance. 
 
 It can scarcely be said that the tendency towards territorial 
 
 ^ I use the word heptarchy for the sake of brevity and convenience, and 
 of course without vouching either for its accuracy of form or for its exact 
 applicability to the state of things preceding the West Saxon hegemony. 
 During far the greater portion of its duration there were actually seven 
 kingdoms of Germanic origin in the island, and I see nothing in the term 
 that implies any unity of organisation.
 
 170 Constitutional History. [chap. 
 
 Causes of union proceeded from any consciousness of national unity or from 
 
 union of the . . •' . . *^ 
 
 seven king- any instinct of self-government. Nor can it be attributed solely 
 
 tioms. . . . . 
 
 to the religious unity, which rather helped than originated such a 
 tendency. This tendency resulted not so much from the strivings 
 of the peoples as from the ambition of the kings. The task 
 which was accomplished by the West Saxon dynasty had been 
 tried before by the rulers of Kent, Northumbria and Mercia, 
 and the attempt in their hands failed. Nor would it have 
 been more successful under the genius of Athelstan and Edgar, 
 but for the Danish invasions, the extinction of the old royal 
 houses, and the removal, to a certain extent, of the old tribal 
 landmarks. 
 Maintenance The ancient German spirit showed its tenacity in this. The 
 boundaries, land had been settled by tribes of kinsmen, under rulers who as 
 families. kings acquired the headship of the kin as well as the command 
 of the host. Whilst the kin of the kings subsisted, and the 
 original landmarks were preserved, neither religion nor common 
 law, nor even common subjection sufficed to weld the incoherent 
 mass. And it may have been the consciousness of this which 
 hindered the victorious kings from suppressing royalty altogether 
 in the kingdoms they subdued : the vassal kings either became 
 insignificant, sinking into eorls and hereditary ealdornien, or 
 gradually died out. But, until after the Danisli wars, provincial 
 royalty remained, and the cohesion of the mass was maintained 
 only by the necessities of common defence. When Ethelbert of 
 Kent acquired the rule of Essex, when Ethelred of Mercia annexed 
 Hwiccia, when Egbert conquered Mercia, the form of a separate 
 kingdom was preserved ; and the royal house still reigned under 
 the authority of the conquerors until it became extinct. Such 
 a 8yst(!m gave of course occasion for frequent rebellions and re- 
 arrangements of territory ; wlion a weak king succeeded a strong 
 one in the sovereign kingdom, or a strong chief succeeded 
 a weak one in the dependent realm. But tlie continuance of 
 such a system has the effect of gradually eliminating all the 
 weaker elements. 
 
 This process of natural selection was in constant working ; it 
 is best exemplified in the gradual formation of the seven
 
 VII.] Union of Kingdoms. 171 
 
 kingdoms and in their fuial union under Wessex : the heptarchic 
 king was as much stronger than the tribal king, as the king of 
 united England was stronger than the heptarchic king. 
 
 The kings of the smaller divisions disappear first, either Gradual dis- 
 
 altogether, or to emerge for a moment when the gl'cater kingdom of the 
 
 ■ 11 
 
 itself loses its royal house or falls into decrepitude. In the early sovereign- 
 days of Mercia, kings of Hwiccia, Hecana, Middle Anglia, and 
 Lindsey, still subsisted^. Kent in the eighth century broke up into 
 the kingdoms of the East and West Kentings, probably on the 
 lines of the earlier kingdoms which are said to have been united 
 by Ethelbert ^. In "VVessex, besides the kings of Sussex ' which 
 has a claim to be numbered among the seven great states, were 
 kings of Surrey* also. On the death of Kenwalch in a.d. 672, 
 Wessex was divided among the ealdormen (just as the Lombard 
 kingdom broke up on the death of Clephis), and was reunited 
 thii-teen years later by Csedwalla^ : Hampshire was separated 
 
 ^ The Hwiccian kings were connected with those of Sussex and North- 
 umbria, and were under the protection of the Mercian kings until they 
 sank into the rank of ealdormen. Bede gives toOsric, one of these princes, 
 the title of king, and the see of Worcester no doubt owes its existence to 
 the fact that their national existence apart fi cm Mercia was still recognised. 
 Hecana or Herefordshire was the kingdom of Merewahl, one of Penda's 
 sons (Flor. Wig. M. H. B. p. 638), and has Hereford for its see. Middle 
 Anglia was the kingdom of Peada, another of his sons, and retained its 
 separate organisation long enough to have a see of its own, — Leicester, 
 settled like the other three by Theodore. The pedigree of the kings of 
 Lindsey is preserved by Florence (M. H. B. p. 631), and although none of 
 them are known in history, the territory was in dispute between Mercia 
 and Northumbria in 678, so that they could not have been long extinct; 
 its nationality also was recognised bj' the foundation of a see, at Sidnacester. 
 
 ^ The existence of the see of Rochester is adduced in proof of the 
 existence of a separate tribal kingdom in Kent, and the same inference is 
 drawn from the fact that double settlements, as in Norfolk and Suffolk (of 
 two fylkis), were common among the German tribes. See Freeman, Norm. 
 Couq. i. 342; Robertson, Essays, p. 120; Kemble, Saxons, i. 148. But 
 the historical mention of the East and West Kentings is later : and where 
 two kings are found reigning together they seem to be of the same family. 
 
 * Mr. Roljertson infers a twofold arrangement in Sussex from the fact 
 that two ealdormen were slain there by Casdwalla (Essays, p. 120), but 
 Sussex as an independent kingdom must have always been united. After 
 its subjection to Wessex it seems to have had two or three kings at a time. 
 (Palgrave, Commonwealth, p. cclxxiv.) They are no longer heard of under 
 Egbert, 
 
 * Frithewold, subregulus or ealdorman of Surrey, was the founder of 
 Chertsey Abbey. Malmesb. G. P. lib. ii. The name seems sufficient to 
 prove it an independent settlement. 
 
 \ Bede, H. E. iv. 12.
 
 173 
 
 Constitutional History. 
 
 [chap. 
 
 Small pro- 
 vincial 
 kingdoms. 
 
 Extinction 
 of the 
 frreater 
 kingdoms. 
 
 from the body of Wessex in a.d. 755 ^, as a provision for the 
 deposed Sigebert. The Isle of Wight had a king of its own ^ 
 In East Anglia several traditionary kingdoms are commemorated 
 by poetical traditions^. Northumbria was in constant division 
 between Bernicia and Deira : and besides the Anglian and Saxon 
 kingdoms, there were in Cornwall, Wales, Cumbria, and on the 
 borders of Yorkshire *, small states of British origin whose rulers 
 were styled kings. These kings were not merely titular ; the 
 kings of Hwiccia, in the endowment of their comites, exercised 
 one at least of the most important powers of royalty, and con- 
 tinued to subsist as suhreguli or ealdormen, ruling their province 
 hereditarily under the sovereignty of Mercia. But they died out, 
 and by their extinction their teriitory was consolidated perma- 
 nently with the superior state. And so it probably was in the 
 other cases. 
 
 Again when Wessex and Mercia have worked their way to the 
 rival hegemonies, Sussex and Essex do not cease to be numbered 
 among the kingdoms until their royal houses are extinct. When 
 Wessex has conquered Mercia and brought Northumbria on its 
 knees, there are still kings in both Northumbria and Mercia : 
 the royal house of Kent dies out, but the title of king of Kent is 
 bestowed on an cetheling, first of the Mercian, then of the West 
 Saxon house ^. Until the Danish conquest the dependent royalties 
 seem to have been spared ; and even afterwards organic union 
 can scarcely be said to exist. Alfred governs Mercia by his 
 son-in-law as ealdorman, just as Ethclwulf had done by his 
 
 * Chron. Sax. A.D. 755. ^ Bede, H. E. iv. 16. 
 ' Thorpe's Lappenberg, i. 1 1 7. 
 
 * Elmet had a king according to Nennius, M. H. B. p. 76. 
 
 ■'' The succession of the hiter kings of Kent is extremely obscure, and the 
 chronology as generally received is certainly wrong. It would seem that it 
 had become dynastically connected with Wessex in the latter part of the 
 eighth century. E.ilhmund, father of the great Egbert, was king in Kent 
 in the time of Offa ; Chron. Sax. A.D. 784 : after Offa's death the kingdom was 
 seized by Eadbert I'ra'n ; he was overcome by Kenulf of Mercia, who made 
 his hrotiier (Jiitlirod king; after Cuthred's death it was ruled by Kenulf 
 himself; and on his death was seized by Haldred, who in his tuni was 
 conquered by Egbert, Ethelwulf son of Egbert ruled Kent during his 
 father's life ; when he succeeded to Wessex, his sons Ethelstan and 
 Ethelbert reigned successively in Kent : and on I'^thelbert's succession to 
 Wessex, Kent was consolidated witii the rest of Southern England.
 
 VII.] Growth of the Royal Power. 173 
 
 son-in-law as king^ : but he himself is king of the West-Saxons ; Consolida- 
 
 o 1 r o • p *''^" under 
 
 Edward the Elder is king of the Angul-Saxones ^ ; some times 'of vVessex. 
 the Angles ' ; Athelstan is ' rex Anglorum ' king of the English, 
 and ' curagulus ' of the whole of Britain ^. The Danish kingdom 
 still maintains an uncertain existence in Northumbria ; Mercia 
 under Edgar sets itself against Wessex under Eadwig. At last 
 Edgar having outlived the Northumbrian royalty and made up 
 his mind to consolidate Dane, Angle and Saxon, receives the 
 crown as king of all England * and transmits it to his son. 
 
 If the extinction of the smaller royalties opened the way for Influence of 
 
 •' ^ , '' the Danish 
 
 permanent consolidation, the long struggle with the Danes struggle. 
 prevented that tendency from being counteracted. The attemjDts 
 of Etlielwulf to keep central England through the agency of 
 Mercian and East Anglian subject kings signally failed. It was 
 
 ^ Egbert conquered Mercia and deposed King Wiglaf in a.d. 828 ; 
 he restored him in 830 ; in 839 Berhtwulf succeeded bim and reigned till 
 851. Burbred bis successor was Etbehvulfs son-indaw, and reigned until 
 874. Ceolwulf his successor was a puppet of the Danes. As soon as 
 Alfred bad made good bis bold on Western Mercia be gave it to Etbelred 
 as ealdorman, and married bim to his daughter Ethelfleda : Etbelred died 
 in 912, and Ethelfleda in 920. Her daughter Elfwina, after attempting to 
 hold the government, was set aside by Edward the elder, by whom Mercia 
 was for the first time organically united with AVessex. 
 
 ^ See Hallam, M. A. ii. 271. Edward is rex ' Angul-Saxonum,' or 
 'Anglorum et Saxonum,' in charters, Cod. Dipl. cccxxxiii, cccxxxv, 
 mlxxvii, mlxxviii, mlxxx, mlxxxiv, mxc, mxcvi ; ' Rex Anglorum ' simply 
 in cccxxxvii ; and king of the West Saxons in mixxxv. 
 
 ' A list of the titles assumed by the succeeding kings is given by Mr. 
 Freeman, Norm. Conq. i. 54S-551. Athelstan s title of Curagulus or 
 Coreguhis is explained as derived from cura, caretaker (ibid. p. 552); and 
 as co-regulus or corregulus in its natural sense seems to be opposed to 
 monarcha, it is probable that the derivation is right ; the cura representing 
 the mund under which all the other princes had placed themselves. 
 
 * On this subject see Mr. Robertson's remarkable essay, Hist. Essays, 
 pp. 203-216; and Freeman, Norm. Conq. i. 6:6. The last Danish king 
 of Northumbria was killed in 954. In 959 Edgar succeeded to the king- 
 dom of the West Saxons, Mercians and Northumbrians. Edgar's coronation 
 at Bath took place immediately after Archbishop Oswald's return from 
 Rome, which may be supposed to have been connected with it. Mr. 
 Robertson concludes that Edgar ' would appear to have postponed his 
 coronation until every solemnity could be fulfilled that was considered 
 necessary for the unction and coronation of the elect of all three provinces 
 of England, the first sovereign who in the presence of both archbishops — 
 of the " sacerdotes et principes" of the whole of England, — was crowned 
 and anointed as the sole representative of the threefold sovereignty of the 
 West Saxons, Mercians and Northumbrians.' Tlie ancient theories about 
 this coronation may be seen in the Memorials of S. Dunstan, pp. 112, 214, 
 423-
 
 area. 
 
 174 Constitutional Kidory. [chap. 
 
 Anialgama- only Wcsscx, altliougli With a far larger sea-board, that success- 
 
 tion of the . . 
 
 Danes with fully resisted conquest. Mercia and Northumbria, thousfh 
 thcEngUsh. "' , • 1 , , , ,. . , ^ , , . . '' 
 
 conquered with great slaughter, and divided by the victorious 
 
 Norsemen, exchanged masters with some equanimity, and the 
 
 Danes within a very few years were amalgamated in blood and 
 
 religion with their neighbours. The Danish king of East 
 
 Anglia accepted the protection of the West Saxou monarch and 
 
 Mercia was brought back to allegiance. Alfred, by patient 
 
 laborious resistance as well as by brilliant victories, asserted 
 
 for Wessex the dominion, as his grandfather had the hegemony, 
 
 of the other kingdoms; and his son and grandsons perfected 
 
 his work ^. 
 
 The king It could not fail to result from this long process that the 
 
 increases in, i-ii. ii/^-i 
 
 strength as character 01 royalty itself was strengthened. Continual war gave 
 increases in to the king Avho was capable of conducting it an unintermitted 
 hold and exercise of military command : the kings of the united 
 territory had no longer to deal alone with the witan of their 
 original kingdom, but stood before their subjects as supreme 
 rulers over neighbouring states ; the council of their loitan was 
 composed no longer of men as noble and almost as indepen- 
 dent as themselves, ecddornien strong in the affection of their 
 tribes and enabled by union to maintain a hold over the kings, 
 but of members of the royal house itself, to whom the kings 
 had deputed the government of kingdoms and who strengthened 
 rather than limited their personal authority^. So, as the king- 
 dom became united, the royal power increased, and this power 
 extending with the extension of the territory, royalty became 
 
 ' The story that Egbert after his coronation at Winchester directed 
 that the whole state should bear the name of England is mythical. It 
 originates in the Monastic Annals of Winchester, MS. Cotton, Dom. A. 
 xiii ; extracts from which are printed in the Monasticon Anglicanum, i. 
 205. ' Eiiixit ilia die rex Etjbertus ut insula in posterum vocaretur Anglia, 
 et qui Juti vol Saxones dicebaiitur onmes coniniuni nomine Angli vo- 
 carentur.' On the names England and English, see Freeman, Norm. 
 Conq. i. App. A. The era of Egbert's ac«|ui.-.ition of the ducatas, by which 
 he dates some of his charters to Winchester (Cod. i)i|)l. nixxxv, mxxxvi, 
 mxxxviii), must be a.d. 816 ; and, if the ducatus be really a Bretwaldaship, 
 may be marked by his conquest of West Wales or Cornwall, which is placed 
 by the Chronicles in A.D. 813, but belongs properly to A.D. 815. At this 
 period however Kenulf of Mercia was still in a more commanding position 
 than Egbert. 
 
 * See Mr. Robertson's essay on the king's kin ; Hist. Essays, pp. 177-189
 
 VII.] Primitive Bignity of the King. 175 
 
 territorial also. The consolidated realm enters into continental 
 politics and borrows somewhat of the imperial form and spirit ; 
 and this brings on some impoi-tant changes. 
 
 71. The earliest legislation exhibits the king as already in a Earliest 
 
 ...,., , . . -I 1 p •{• ^ status of the 
 
 position in which personal preeminence is secured and lortiiicd Anglo-Saxon 
 by legal provisions. In the laws of Ethelbert the king's 
 mundbyrd is fixed at fifty shillings, that of the eorl at twelve, and 
 that of the ceorl at six ; and wrongs done to members of his 
 household are punished in proportion \ These laws mention no 
 wergild for the liing, but it seems probable that if there were 
 one it also would be calculated on a like scale. A century later 
 the laws of Wihtrsed direct that the king is to be prayed for 
 without command, that is, that intercession for him shall be part 
 of the ordinary service of the church ; his word without oath is 
 incontrovertible, and even his thegii may clear himself by his own 
 oath. The king's mundbyrd is still fifty shillings ^. The laws of 
 Ini king of Wessex, who was contemporary with Wihtrsed, show 
 that in that conquering and advancing kingdom the tendency 
 was more strongly developed. If a man fight in the king's house 
 both his life and property lie at the king's mercy ; his geneat Increase in 
 may ' swear for sixty hides ' ; his hurh-hryce is a hundred and importance, 
 twenty shillings ^. But in the reign of Alfred the king's horh- 
 hryce or mundbyrd was fiv:e pounds, his hurh-hryce a hundred 
 and twenty shillings, whilst that of the ceorl was only five *. The 
 value of the protection given by the higher classes rises in propor- 
 tion to that given by the king, whilst that of the simple freeman 
 remains as before, or is actually depressed. It is by the same code 
 that the relation between the king and his subjects is defined as 
 
 that between lord and dependent : ' if any one plot against the Law of 
 ,.,. . . .. treason, 
 
 king s life, of himself or by harbouring of exiles, or of his men, 
 
 let him be liable in his life and in all that he has. If he desire to 
 
 prove himself true, let him do so according to the king's wergild. 
 
 So also we ordain for all degi'ees whether eorl or ceorl. He who 
 
 plots against his lord's life let him be liable in his life to him and 
 
 in all that he has, or let him prove himself true according to his 
 
 » Ethelbert, §§ 8, 15, &c. « Wihtrted, §§ i, 2, 16, 20. 
 
 * Ini, §§ 6, 19, 45. * Alfred, §§ 3, 40.
 
 176 Constitutional History. [chap. 
 
 Idea of loi'd's wer ^.' The law of Edwai'd the elder contains an exhor- 
 treasou. 
 
 tation to the witan for the maintenance of the public peace, in 
 
 which it is proposed that they should ' be in that fellowship in 
 which the king was, and love that which he loved, and shun that 
 which he shunned, both on sea and land ^ :' a clear reference to 
 the relation between the lord and his dependent as expressed in 
 the oath of fealty. The same king, in a.d. 921, received the 
 submission of the East Anglian Danes on the same condi- 
 tion : ' they would observe peace towards all to whom the 
 king should grant his peace, both by sea and land ^ : ' and 
 the people of Noi-thamptonshire and Cambridgeshire especially 
 The king chose him to hlaforde and, to mnndhora,' so placing them- 
 
 lordofhis selves under his personal pi'otection. The priuciiile is enun- 
 people. . . 
 
 ciated with greater clearness in the law of his son Edmund, 
 
 in which the oath of fealty is generally imposed ; all are to 
 
 swear to be faithful to him as a man ought to be faithful 
 
 to his lord, loving what he loves, shunning what he shuns*. 
 
 This series of enactments must be regarded as fixing the date 
 
 of the change of relation, and may perhaps be interjji'cted as 
 
 explaining it. The rapid consolidation of the Danish with the 
 
 Angle and Saxon population involved the necessity of the 
 
 uniform tie between them and the king : the Danes became the 
 
 king's men and entered into the public peace ; the native 
 
 English could not be left in a less close connexion with their 
 
 king : the commendation of the one involved the tightening of 
 
 the cords that united the latter to their native ruler. Something 
 
 ' Alfred, § 4. In the introduction to liis laws, § 49. 7> lie also excepts 
 treason from the list of offences for which a hot may be taken : ' in prima 
 culpa jiecunialoni emend;itionem capere quam ibi docreverunt, praeter 
 proditionem doniiiii, in qua nulhmi pictateni ausi sunt intueri, quia Deus 
 omnipotens nulhun adjudicavit contemptoribus suis.' This is referred to as 
 a judg-inent of ancient synods. 
 
 ^ Edward, ii. i, § i, above p. 149. 
 
 ' Tliui-fcrth the eorl and tlie holds and all the army that owed obedience 
 to Nortiiampton sought him ' to Idafordo and to nnnidboran ; ' all who 
 were left in the Huntingdon country sought 'his frith and his nuind- 
 byrde ; ' the lOast Anglians swore to 1)0 one witli him, that they would all 
 that he wouM, and would keep peace with all witli whom the kinp; should 
 keep peace either on sea or on land ; and tiie army that owed obeiUence 
 to Candjridge chose him ' to hlaforde and to mundbora.' Chron. Sax. 
 A.D. 921. 
 
 * Edmund, iii. § i.
 
 VII.] IloT/al and Imperial Titles. 177 
 
 of the same kind must have taken place as each of the heptarchic 
 kingdoms fell under West Saxon rule, but the principle is most 
 strongly brought out in connexion with the Danish submission. 
 
 From this time accordingly the personal dignity of royalty Imperial 
 becomes more strongly marked. Edmund and his successors adopted. 
 take high sounding titles borrowed from the imperial court ; to 
 the real dignity of king of the English they add the shadowy 
 claim to the empire of Britain which rested on the commendation 
 of Welsh and Scottish princes ^. The tradition that Edgar was 
 rowed by eight kings upon the Dee is the expression of this idea 
 which it was left for far distant generations to realise ^. 
 
 Under Ethelred still hijfher claims are urged : again and again Religious 
 the witan resolve as a religious duty to adhere to one cyne-hlaford'^ : obedience. 
 and the king himself is declared to be Christ's vicegerent among 
 Christian people, with the special duty of defending God's church 
 and people, and with the consequent claim on their obedience ; 
 ' he who holds an outlaw of God in his power over the term that 
 the king may have appointed, acts, at peril of himself and all 
 his property, against Christ's vicegerent who preserves and holds 
 sway over Christendom and kingdom as long as God grants it*.' 
 The unity of the kingdom, endangered by Sweyn and Canute, is 
 now fenced about with sanctions which imply religious duty. 
 Both state and church ai-e in peril ; Ethelred is regarded as the 
 representative of both. A few years later Canute had made good 
 his claim to be looked on as a Christian and national king. 
 The first article of his laws, passed with the counsel of his witan 
 to the praise of God, and his own honour and behoof, is this : 
 
 ' Athelstan is 'rex Anglorum, et curagulus totius Britanniae,' or 
 ' priinicerius totius Albionis,' or ' rex et rector totius Britanniae.' Edred is 
 ' imperator,' ' cyning and casere totius Britanniae,' 'basileus Anglorum 
 hujusque insulae barbarorum ; ' Edwy is ' Angulsaxonum basileus &c.' or 
 ' Angulsaexiia et Nortbanhumbronuu imperator, paganorum gubernator, 
 Breotonuinque propugnator ; ' Edgar is ' totius Albionis imperator Augus- 
 tus; ' and so on. See Freeman, Norm. Conq. i. 548 sq. 
 
 ^ In A.D. 922 the kings of the North Welsh took Edward for their lord ; 
 in 924 he was chosen for father and lord by the king and nation of the 
 Scots, by the Northumbrians, Dane and English, and by the Strathclj'de 
 Britons and their king. On the real force of these commendations see 
 Freeman, Norm. Conq. i. 565 ; and Robertson, Scotland, &c. ii. 384. sq. 
 
 ' Ethelred, v. § 5 ; viii. §§2, 44. * Ibid. viii. § 42.
 
 178 
 
 Constitutional History. 
 
 [chap. 
 
 'that above all other things, tbey should ever love and worship 
 one God, and unanimously observe one Christianity, and love 
 King Canute with strict fidelity ^.' 
 otroval'^'*^^ It is wrong to regard the influence of the clergy as one of the 
 ncft'to b*^°'^ chief causes of the increase in the personal dignity of the kings, 
 to*'?''"^ The rite of coronation substituted for the rude ceremony, 
 adulation, whatever it may have been, which marked the inauguration of a 
 heathen king, contained a distinct charge as to the nature of 
 royal duties ^, but no words of adulation nor even any statement 
 of the j^ersonal sacro- sanctity of the recipient. The enactments 
 of the councils are directed, where they refer to royalty at all, 
 rather to the enforcement of reforms than to the encouragement 
 of despotic claims^. The letters of the early Anglo-Saxon 
 bishops are full of complaints of royal misbehaviour : the sins of 
 the kings of the eighth century almost seem to cancel the memory 
 of the benefits received from the nursing fathers of the seventh *. 
 Far from maintaining either in theory or in practice the divine 
 right of the anointed, the prelates seem to have joined in, or at 
 least acquiesced in, the rapid series of displacements in North- 
 umbria ^ Alcuin mourns over the fate of the national rulers, but 
 grants that by their crimes they deserved all that fell on them. 
 They are, like Saul, the anointed of the Lord ", but they have no 
 
 * Canute, i. § i. 
 
 '^ Above p. 146 ; where I have protested distinctly against the view of 
 ^ Allen, Prerogative, pp. 18-24; ^^^ ^^^ Memorials of S. Dunstan, p. 355. 
 
 ^ The canon {12) of ttie legatine council in a.d. 787 (Councils, &c. iii. 
 453), attempts to prohibit the murder of kings, so frightfully common at 
 the time, by enforcing regular election and forbidding conspiracy ; ' nee 
 christus Domini esse valet et rex totius regni, et heres patriae, qui ex 
 legitimo non fuerit connubio generatus,' &c., but the preceding canon (11) 
 is an exhortation to kings; th(! bisho])s and others are warned, ' fiducialiter 
 et veraciter absque uUo tiinore vel adulatione loqui verbum Dei regibus,' 
 the kings are exhorted to obey their bishops, to honour the church, to have 
 prudent counsellors fearing the Lonl and honest in conversation, that the 
 peof)le instructed and comforted by the good examples of kings and princes 
 may profit to the praise and glory of Almighty God. 
 
 * See especially the letter of Boniface to Ethelbald, Councils, &c. iii. 350, 
 " Above p. 137. 
 
 * See Councils, &c. iii. 476 ; writing to Ethelred of Northumbria he says, 
 ' vidistis (juoinodo ])crieriiit antocessores vestri reges et principes propter 
 injustitias et rapinas et imiriunditias . . . timote illorum jierditionem . . .' 
 p. 491. 'Qui sanctas legit 8cri])turas . . . invcniet pro hujusniodi peccatis 
 reges regna et populos patriam perdidisse.' p. 493.
 
 VII.] The King's Peace. 179 
 
 indefeasible status. lu the preaching of peace and good will, the importance 
 maintenance of obedience to constituted powers is indeed insisted gious^s^deof 
 on, but the duty of obeying the powers that be is construed ^^^^^ '""• 
 simply and equitably ^. It is only when, in the presence of the 
 heathen foe, Christendom and kingdom seem for a moment to 
 rest on the support of a single weak hand, that the duty of 
 obedience to the king is made to outweigh tlie consideration of 
 his demerits. And yet Dunstan had proj^hesied of Ethelred that 
 the sword should not depart from his house until his kingdom 
 should be transfei'red to a strange nation whose worship and 
 tongue his people knew not ^. 
 
 Nor is it necessary to regard the growth of royal power, Royal 
 as distinct from personal pomp, among the Anglo-Saxons, as not the re- 
 affected by the precedents and model of the Frank empire ^. imitation of 
 
 All liiii p ^ • ^ • -/-Ni 1 Frankish 
 
 Although the theory of kingship was 111 Gaul perhaps scarcely practice, 
 less exalted than at Constantinople, the practice was very differ- 
 ent, for the Merovingian puppets were set up and thrown down 
 at pleasure. But during the eighth century the influence of 
 England on the continent was greater than that of the con- 
 tinent on England. The great missionaries of Germany looked 
 to their native land as the guide and pattern of the country 
 of their adoption. It is only with the Karolingian djTiasty 
 that the imitation of foreign custom in England could begin ; 
 but even if the fact were far more clearly ascertained than 
 it is, the circumstances that made it possible, the creation of 
 national unity and the need of united defence, were much more 
 impoi-tant than a mere tendency to superficial imitation. The 
 causes at work in Gaul and Britain were distinct and the results, 
 in this point at least, widely different. 
 
 72. As the personal dignity of the king increased and the The king 
 character of his relation to his people was modified, his official sourS^of 
 powers were developed, and his function as fountain of justice J"^*'°^- 
 
 ' 'The words of the old writer followed by Simeon ' deinde Domini 
 sufFragio potitus ' clearly show the opinion of the age that the God of 
 battles gave his verdict in victory, and that war was only an appeal to the 
 judgment of God on a large scale.' Robertson, Essays, p. 208. The 
 principle thus expressed might be extended still further ; there were no 
 kings de jure except the kings de facto. 
 
 ^ Flor. Wig. ad ann. 1016. ' Allen, Prerogative, p. 20. 
 
 N 2
 
 i8o Constitutional History. [chap. 
 
 Growth of became more distinctly recognised. The germ of this attribute 
 the idea, , . . .mi • 
 
 lay in the idea of royalty itself. The peace, as it was called ^, the 
 
 j)rimitive alliance for mutual good behaviour, for the performance 
 and enforcement of rights and duties, the voluntary restraint of 
 free society in its earliest form, was from the beginning of mon- 
 archy imder the protection of the king. Of the three classes of 
 offences that came under the view of the law ^, the minor infrac- 
 tion of right was atoned for by a compensation to the injured, the 
 
 The king's hot with which his individual good will was redeemed, and bv a 
 share in the . ^ j 
 
 fines for j^aymcnt of equal amount to the king by which the offender bought 
 
 peace. back his admission into the public peace ^. The greater breaches 
 
 of the peace arising either from refusal to pay the fines, or from 
 the commission of offences for which fines were inadequate, were 
 punished by outlawry; the offender was a public enemy, set 
 outside the law and the peace ; his adversary might execute his 
 own vengeance, and even common hospitality towards him was a 
 breach of the law, until the king restored him to his place as a 
 member of society *. The third class of offences which seemed be- 
 yond the scope of outlawry, and demanded strict, public, and direct 
 
 His power of rather than casual and private punishment, were yet like the former 
 
 accepting i r > ./ 
 
 money com- capable of composition, the acceptance of which to a certain 
 pensation. ^ ^ ' ^ 
 
 extent dej^cndcd on the king as representing the people ^. In all 
 
 * Wilda, Strafiecht, pp. 255 sq., 264 .sq. Waitz, D. V. G. i. 391 ; 'the 
 peace is the relation in which all stand whilst and in so far as all continue 
 in the union and in the riglit on wliich the community rests. He who acts 
 against this commits a bi'each of the peace. The breach of the peace is un- 
 right ; the transgression against right is a breach of the peace.' He who 
 sins against one, sins against all ; and no man may redress his own wTongs 
 until he has appealed to the guardians of the peace for justice. Hence the 
 peace is the great check on the ])ractice of private war, blood feuds, and the 
 so-called lex talionis. I think the German writers take too higli a view of 
 the power of the Anglo-Saxon king as guardian of tlie peace. See Schmid, 
 Gesetze, p. 584; Gneist, Verwaltungsrecht, i. 26. 
 
 * K. Maurer, Krit. Ueberscliau, iii. 26 sq. Bethmann-HoUweg, Civil- 
 process, iv. 25 sq. Rchmid, Gesetze, p. 584. Palgrave, Commonwealth, 
 p. 204. Waitz, D. V. G. i. 392 ; ii. 40. 
 
 ^ K. Maurer, Krit. Ueberschau, iii. 45. LI. Hloth. and Eadr. §§ ir, 12, 
 13. Ini, §§ 3, 6, 7, 10. Schmid. Gesetze, p. 679. 
 
 * Athelstan, ii. § 20, 3. Edgar, i. § 3 : ' ot sit utlaga, id est exul vel 
 cxlex, nisi rex ei patriam concedat.' Etlielred, viii. § 2. 
 
 * Alfred, § 7; ' f^'t in arbitrio regis sic vita sic moi-s, sicut ei condonare 
 voluerit.' Also Ini, § 6 ; Edmund, ii. § 6; Etheh'ed, iv, § 4; but compare 
 Alfred, Introd, § 49. 7 ; as given above, p. 1 76.
 
 VII.] The King's Peace. i8i 
 
 this the kins: is not only the executor of the peace, but a sharer The king is 
 
 . . . . » „ guardian of 
 
 in its authority and claims. But this position is far from that the peace, 
 of the fountain of justice and source of jurisdiction. The king's 
 guarantee was not the sole safeguard of the peace : the hundred 
 had its peace as well as the king ^ : the king too had a distinct 
 peace which like that of the church was not that of the country 
 at large, a special guarantee for those who were under special 
 protection ^. 
 
 The qritlh ^, a term which comes into use in the Danish The people 
 
 ■^ . pass into 
 
 struggle, is a limited or localised peace, under the special the king's 
 
 • j)C3iCG or 
 
 guarantee of the individual, and differs little from the protection protection. 
 implied in the mund or personal guardianship which appears 
 much earlier * ; although it may be regarded as another mark of 
 territorial development. Wlien the king becomes the lord, patron 
 and mundborh of his whole people, they pass from the ancient 
 national peace of which he is the guardian into the closer 
 personal or territorial relation of which he is the source. The 
 peace is now the king's peace ^; although the g7-ith and the 
 mund still retain their limited and local application, they entitle 
 their possessor to no higher rights, they do but involve the 
 transgressor in more special penalties ; the frith is enforced by 
 
 1 Edmund, iii. § 2. Edgar, i. §§ 2, 3 ; iii. 7. Ethelred, iii. 3. Canute, ii. 
 §§ 15) 3°- ^ Schmid, Gesetze, p. 584. 
 
 ^ Grith [gridh] is properly the domicile, Vigfiisson (Icelandic Diet, s.v.), 
 and consequently, asylum ; then truce or peace limited to place or time. 
 Schmid, Gesetze, pp. 584, 604. So Church-grith is sometimes used for 
 sanctuary; but it really means as much as Church-frith, the peace and 
 security which the law guarantees to those under the church's protection. 
 Schmid arranges the special peaces or several griths under three heads : (l) 
 Place ; churches, private houses, the king's palace and pi-ecincts ; (2) Time ; 
 fasts and festivals, coronation days, days of public gemots and courts, 
 special gatherings at drinking parties, sales, markets, guilds, &c., and the 
 times when the fyrd is summoned ; (3) Persons; clergy, widows, and nuns. 
 Gesetze, p. 585. Gneist, Verwaltgsr. i. 38, 39. The curious enactment of 
 Ethelred, iii. § i, distinguishing the grith of the king, that of the ealdorman, 
 that given in the burh-moot, the wapentake and the alehouse, with different 
 fines for breach, is very noteworthy. 
 
 * Gneist, Verwaltungsrecht, i. 26. The original meaning of mund is 
 said to be hand, Schmid, Gesetze, p. 634 ; but it also has the meaning of 
 word, sermo; and of patria potestm. Waitz, D. V. G. i. 55. 
 
 * Edward, ii. i, § i : 'Inquisivit itaque qui ad emendationem velit 
 redire, et in societate permancre qua ipse sit.' Edmund, ii. § 7 : ' Pax 
 regis.' See Gneist, Verwaltungsrecht, i. 26 ; Self-government, i. 29 ; K. 
 Maurer, Elrit. Ueberschau, iii. 46.
 
 i82 Constitutional Hidm-y. [chap. 
 
 Special the national officers, the cjrith by the king's personal servants ; 
 the one is official, the other personal ; the one the business of the 
 country, the other that of the court ^. The sj^ecial peace is 
 further extended to places where the national peace is not fully 
 provided for: the great highways, on which questions of local 
 jurisdiction might arise to the delay of justice, are under the 
 king's peace. But the process by which the national peace 
 became the king's peace is almost imperceptible : and it is very 
 gradually that we arrive at the time at whith all peace and law 
 are supposed to die with the old king, and rise again at the 
 proclamation of the new ^. In Anglo-Saxon times the transition 
 is mainly important as touching the organisation of jurisdiction. 
 
 The peace is The national officers now execute their functions as the king's 
 
 the king's _ _ ° 
 
 peace. officers, and executors of his peace; the shire and hundred 
 
 courts, although they still call the peace their own, act in his 
 
 ' The king's ha-nd-grith, in the law of Edward and Guthrum, § i, must 
 mean the king's mund ; the special peace given by the king's hand ; see too 
 •Ethelred, vi. § 14, the ' pax quam manu sua dederit,' Canute, i. § 2. 2. To 
 this belongs also the chapter on the Pax regis in the laws of Edward the 
 Confessor, in which the peace of the coronation-days, that is, a week at 
 Easter, Whitsuntide and Christmas ; the peace of the four great highways, 
 Watling-street, Ikenild-street, Ennin-street, and Foss-way, and the peace of 
 the navigable rivers, are protected with special fines that distinguish them 
 from the common-law peace of the country, which is also the king's peace. 
 Besides these there is a fourth peace called the king's hand-sealde grith, and 
 one given by the king's writ, which answer more closely to the idea of the 
 mund as personal protection ; and with this are connected the original 
 pleas of the crown (see below, p. 187). Other offences against the peace, 
 and the protection of other roads and riveis, belong to the view of the local 
 courts, the phire and the sheriff, although not less closely related to the 
 king's ])eace and jurisdiction. Cf. Glanvill, de Legg. i. i ; LI. Edw. Conf. 
 § 12 ; Palgrave, Conmionwealth, jtp. 284, 285. 
 
 '■' 'The SovereigTi was the fountain of justice ; therefore the stream 
 ceased to flow when the well spring was covered by the tomb. The judicial 
 bench vacant ; all tribunals closed. Such was the ancient doctrine — a 
 doctrine still recognised in Anglo-Norman England.' Palgrave, Normandy 
 and Pjiigland, iii. 193. Speaking of the special protections above referred 
 to, the same writer says : ' Hoinotime after the Conquest all these special 
 protections were reiilaced by a general proclamation of the king's peace 
 which was made when the community assented to the accession of the new 
 monarch, and this first proclamation was considered to be in force during the 
 remainder of his life, so as to bring any disturber of the public tran([uillity 
 within its ])enalticH. So niucli inq)()rtancc was attached to the ceremonial 
 that even in the reis^n of .lohn, offoiiccs committed during the interregnum, 
 or period elai)8iiig between the day of the death of the last mojiarch and the 
 recognition of his successor, wore unpunishable in those tribunals whose 
 authority was derived from the Crown.' Commonwealth, p. 285.
 
 VII.] Royal Jurisdiction. 1 83 
 
 name ; the idea gains ground and becomes a form of law. 
 
 Offences against the law become offences against the king, and Contempt of 
 
 . . . p , . the king's 
 
 the crime of disobedience a crime of contempt to be expiated by law is 
 
 , specially 
 
 a special sort of fine, the oferhyrnesse \ to the outraged majesty of punislmble. 
 the lawgiver and judge. The first mention of the oferhyrnesse 
 occurs in the laws of Edward the elder ^, at the era accordingly 
 at which the change of idea seems to have become permanent ^. 
 
 73. But although it may be convenient to accept this approxi- fj^"^^ "^ 
 mation to a date, the influence of the idea may be traced much rovai juris- 
 
 ' _ •' _ , diction. 
 
 further back. The administration of the peace is inseparable 
 from the exercise of jurisdiction ; those who are in the national 
 peace ai'e subject only to the national courts ; those who are in 
 the church's grith, are also in the church's socn ; those who are 
 in the king's mwid, are under his cognisance ; those who are 
 amenable to any jurisdiction, owe suit and service to the courts 
 of the jurisdiction ; when all are in the iiiund or gi'ith or frith of 
 the king, he is the supreme judge of all persons and over all 
 causes, limited however by the counsel and consent of his witan. 
 
 * Ofer-hyrnesse (subauditio, male audire) answers to the later over- 
 seunnesse (over-looking, contempt) ; it is marked by special penalty in the 
 cases of buying outside markets, refusal of justice, accepting another man's 
 dependent without his leave, refusing Peter's pence, sounding the king's 
 coin, neglect of summons to gemot or pursuit of thieves, and disobedience 
 to the king's ofiBcers. See Schmid, Gesetze, p. 638. 
 
 ^ ' Si quis extra portum barganniet, oferhyrnesse regis culpa est.' 
 Edward, i. § i. 
 
 * The concluding chapter of Asser's life of Alfred (M. H. B. p. 497) 
 gives some important data, not only as to the participation of the king in 
 judicature, but as to the composition of the local courts in his day. The 
 nobiles and ignobiies, the eorls and ceorls, were constantly disagreeing in the 
 gemots, ' in concionibus comitum et praepositorum ; ' a proof that ealdorman 
 and gerefa, eorl and ceorl, had their places in these courts. None of the 
 suitors were willing to allow that what the ealdormen and gerefan deter- 
 mined was true ; a proof that although the officers might declare the law 
 the ultimate determination rested in each case with the suitors. This caused 
 a great number of causes to be brought before the king : he summoned the 
 faulty judges before him and carefully examined into each case ; or examined 
 them through his messengers : insisting when he found them guilty that 
 they should either resign the offices which he had committed to them, or 
 devote themselves to the study of equity. We learn from this that the ap- 
 pointments to the sheriffdoms and ealdormanships were made by him, not 
 by election of the people ; and, as ignorance was the excuse of their sin, 
 equity the object of their enforced study, that it is clearly in the declaration 
 of law not in the determination of suits that they were faulty. The same 
 general conclusion results from the reading of his laws.
 
 184 Constitutional History. [chap. 
 
 Royal juris- In regard to the holders oi folhland, the special royal juris- 
 the tenants diction must have been much older than the time of Alfred ; as 
 these tenants were liable to special burdens payable directly to the 
 state, and as the profits of jurisdiction which were counted among 
 these burdens, were inseparable from jurisdiction itself, it is proba- 
 ble that the jurisdiction of these lands was administered by royal 
 officers, not necessarily separate fi'om the business of the hundred 
 courts, but as a part of their work, having special reference to the 
 king's interests \ They would be from the first in the peace of the 
 king rather than in that of the hundred. ^Mien, however, folk- 
 lands were turned into booklands in favour of either churches or 
 individuals, and all their obligations save the trinoda necessitas 
 transferred with them, the profits of jurisdiction and jurisdiction 
 Private itself followed too. Such jurisdiction as had been exercised by 
 ^tioM. ° the king, in or out of the popular courts, was now vested in the 
 recipient of the grant. This may have been a very early inno- 
 Sac and soc. vation. The terms sac and soc ^, which imply it, are not found 
 until late in the period, but occur almost universally in Norman 
 grants of confirmation, as describing definite immunities which 
 may have been only implied, though necessarily implied, in the 
 original grant, and customarily recognised under these names ^. 
 
 ^ In the Salian Mallus (above, p. 54), the thunginus acted on behalf of 
 the nation, tlie saceljaro looked after the interests of the king. In the later 
 county court, some such division of duties and interests must have existed 
 between the sheriff and the coroner ; and in the Anglo-Saxon time, there 
 may have been a hundred-reeve as well as a hundreds-ealdor (above, p. loi). 
 Yet in the county court the sheriff was nominated by the crown, the 
 coroner chosen by the people ; and earlier, the ealdorman was appointed 
 by the king and witan, the sheriff apparently by the king alone. And it 
 is extremely difficult to distinguish lietween the duties of tiie sheriff exe- 
 cuting the peace as the oflBcer of the nation, and collecting the revenue as 
 steward of the king. 
 
 ^ Sac, or sacu, seems to mean litigation, and socn to mean jurisdiction ; 
 the former from the thing (sacu) in dispute ; the latter from the seeking 
 of redress; but the form is an alliterative jingle, which will not bear close 
 analysip. Kemble refers sacu to the preliminary and initiative process, and 
 socn to the right of investigation, ((.'od. iJi|)l. i. p. xlv.) Ellis makes sac the 
 juristliction, and hoc the territory within which it was exercised. (Introd. i. 
 273). '^ee also Sclmiid, Gesetzu, p. 654. 
 
 ^ Kemble (C. 1). i. p. xliv), remarks, tliat except in one questionable grant 
 of Edi'ar, sac and soc are never mentioned in charters before the reign 
 of Edward the Confessor; and concludes tliat ' they were so inherent in 
 the land as not to re(|uire particularisation ; but tliat under the Normans, 
 when every right and privilege must be struggled for, and the conse-
 
 VII.] Grants of Jurisdiction. 185 
 
 The idea of jurisdiction accompanying the possession of the soil Grants of 
 
 , , . , . sac anil soc 
 
 must be allowed to be thus ancient, although it may be questioned removed the 
 
 ... I'-iiii-' lands from 
 
 whether, except in the large territorial lordships, it was actually thejnrisdic- 
 exercised, or whether the proprietor would not as a rule satisfy hundred 
 himself with the profits of jurisdiction, and transact the business 
 of it through the ordinary courts. It is probable that, except 
 in a vei-y few special cases, the sac and soc thus granted were 
 before the Conquest exemptions from the hundred courts only, 
 and not from those of the shire ^ ; and that thus they are the 
 basis of the manorial court-leet, as the mark-system is that of the 
 court baron. There is no evidence of the existence of a domestic 
 tribunal by which the lord tried the offences or settled the dis- 
 putes of bis servants, serfs, or free tenantry ; he satisfied him- 
 self with arbitrating in the latter case, and producing the 
 criminal in the public courts ^. But when grants of sac and 
 soc became common, these questions would swell the business of Growth of 
 his private courts, and his jurisdiction would apply as much to courts. 
 those who were under his personal, as to those who were in his 
 territorial protection. By such grants then, indirectly as well 
 as directly, large sections of jurisdiction which had been royal 
 or national, fell into private hands, and as the tendency was for 
 all land ultimately to become bookland, the national courts 
 became more and more the courts of the landowners. The 
 ancient process was retained, but exercised by men who de- 
 rived their title from the new source of justice. Their juris- 
 
 quences of the Norman love of litigation were bitterly felt, it became a 
 matter of necessity to have them not only tacitly recognised but solemnly 
 recorded.' The idea that the manor originates in the gradual acquisition 
 by one family of a hereditary right to the head.-<hip of the township and 
 the accumulation in that capacity of lands and jurisdiction, does not seem 
 to have anything to recommend it. In fact, within historic times the head- 
 man of the township does not occupy a position of jurisdiction, simply one 
 of police agency. 
 
 ' In Cod. Dipl. dcccxxviii and dccclviii, Edward frees certain estates of 
 Westminster, ' mid saee and mid socne, scotfreo and gavulfreo, on hundrede 
 and on scire,' but the exemption is unusual, and even in these passages may 
 not be a full exemption from j urisdiction. However, when in Domesday the 
 sheriff of Worcestershire reports that there are seven hundreds out of the 
 twelve in which he has no authority, it is clear that such jurisdictions must 
 have been already in being. 
 
 ' K. Maurer, Krit. Ueberschau, ii. 56.
 
 i86 
 
 Constitidional Histort/. 
 
 [chap. 
 
 Jurisdiction 
 of the 
 thegus. 
 
 Hereditary 
 jurisdic- 
 tions. 
 
 Weakening 
 of the real 
 power of the 
 king. 
 
 diction was further modified by enactment : as the tliegn had 
 socn over his own men, the king had soon over liis tliegns ; none 
 but the king could exercise or have the profits of jurisdiction over 
 a king's tlieg-n} ; none but the king could have the fines arising 
 from the ofiences of the owner of bookland ^. And altliough this 
 might practically be observed by recognising the popular courts 
 as royal courts for the smaller owners of bookland, the king had 
 a *■ thening -manna' court, in which his greater vassals settled 
 their disputes^. But the time came when the great local land- 
 owner was vested with the right of representing the king as 
 judge and landrica in his whole district, and so exei'cised juris- 
 diction over minor landowners. This change, the bearing of 
 which on the history of the hundred courts, which also were 
 placed in private hands, is very uncertain, seems to have taken 
 place in the reign of Canute ; and may have been a local enact- 
 ment only \ Wherever it prevailed it must have brought the 
 local jurisdictions into close conformity with the feudalism of 
 the continent ; and may thus serve to explain some of the 
 anomalies of the system of tenure as it existed in the times 
 i-eported in Domesday. 
 
 These immunities, tying the judicature, as it may be said, to 
 the land, and forming one of the most potent causes of the 
 territorial tendency, so far ousted the jurisdiction of the na- 
 tional courts, whether held in the name of the king or of the 
 people, that it miglit be almost said that the theoi'ctical cha- 
 
 * Ethelred, iii. § 1 1 : ' Et nemo liaboat socu.ani 8uj)er taynum regis, nisi 
 solus rex.' Gneist insists tliat this refers only to thegns who were mem- 
 bers of the witenagemot. Verwaltungsrecht, i. 25, 37, 38. 
 
 ^ Ethehed, i. §§ i, 14: ' Et habeat rex forisfacturas omnium eorum qui 
 liberas terras (bocland) habent, nee componat aliquis ])ro iiUa tyhtla, si non 
 intersit testimonium ]iracj)ositi regis.' See also Canute, ii. §§ 13, 77. 
 
 ^ Kemble, Cod. Dipl. nicelviii; Saxons, ii. 46, 47. In this instance the 
 bishop of Rocliester sues tlie widow of Elfric in tlie king's ' theningmanna 
 gemot' for certain title deeds alleged to have been stolen : the court ad- 
 judged them t(j tlie bishop. Afterwards her relations brought the matter 
 before the ealdornian and the folk, who compelled the bisliop to restore 
 them. It is a very curious case, and certainly serves to illustrate the prin- 
 ciple that the shire could compel recourse to itself in the first instance 
 even wiiere such high interests were concerned. See K. Maurer, Krit. 
 Ueberschau, ii. 57. 
 
 * LawB of the Northundjrian Priests, § 49 ; K. Maurer, Krit. Ueberschau, 
 ii. 50-
 
 VII.] Pleas of the Crown. 187 
 
 racter of the sovereign rises as the scope for his action is limited. Pleas of the 
 
 ° '■ , crown 
 
 This, however, was to some extent counteracted by the special reserved in 
 
 ATI- grants of 
 
 retention of royal rights in laws and charters. Accordingly, m jurisdiction, 
 the later laws, the king specifies the pleas of criminal justice, 
 which he retains for his own administration and profit ; such a 
 list is given in the laws of Canute ; breach of the king's pro- 
 tection, house-breaking, assault, neglect of the fyrd, and out- 
 lawry ^ These were the original pleas of the crown, and were 
 determined by the king's officers in the local courts. By a 
 converse process, such small parts of criminal process as still 
 belonged to these courts, arising from the ofifences of smaller 
 freemen, together with the voluntary and contentious juris- 
 diction for which the courts of the landowners were not com- 
 petent, came to be exercised in the king's name. He inter- 
 fered in suits which had not passed through the earlier 
 stage of the hundred and the shire ^ : and asserted himself as 
 supreme judge in all causes, not in appeals only. All juris- 
 diction was thus exercised either by the king through his offi- 
 cers, or by landowners who had their title from him. The royal 
 officers acted in the hundred courts with freemen of all classes 
 that still owed suit to them ; and the shire courts were com- 
 posed of all lords of land, scir-thegns, and others, including a 
 representation of the humblest landowners. 
 
 74. The subject of tenure in Anglo-Saxon times is beset with DifTicuities 
 many apparently insuperable difficulties ^. We have not mate- Saxon 
 rials for deciding whether a uniform rule was observed in the 
 several kingdoms or in the legal divisions which continued to 
 represent them down to the Norman Conquest and later : whe- 
 ther the Danish conquest may not have created diflferences in 
 Mercia, Northumbria, and East Anglia ; or whether the variety 
 of nomenclature found in Domesday Book implies a difi'erence 
 of character in the relations described, or merely the variations 
 
 ' Canute, ii. § 12; K. Maurer, Krit. Ueberschau, ii. 55. The charter of 
 Alfred, in which these rights are granted away to the abbey of Shaftesbury 
 (Cod. Dipl. cccx), seems to be very doubtful. 
 
 * Kemble, Saxons, ii. 46 ; Cod. Dipl. dcsciii, dcclv. In the reign of 
 Ethelred the king sends his insegel or writ to the shiremoot of Berkshire, 
 bidding thum arbitrate between Leofwine and Wynflied ; C. D. dcxciii. 
 
 * Hallam, M. A. ii. 293 ; Palgrave, Comnionwealth, pp. 576 sq.
 
 1 88 Constitutional Histor?/. [chap. 
 
 The Anglo- of local and customaiy terminology ; the result of an Investi- 
 system of gation transacted by different officers, many of whom were 
 grew out of Normans, and scarcely understood the meaning of the wit- 
 out of the nesses whose evidence they were taking. There is, however, 
 no question of any general subversion of the primitive rule 
 before the Norman Conquest. No legislation turned the free 
 owner into the feudal tenant : whatever changes in that direc- 
 tion took place were the result of individual acts, or of very 
 gradual changes of custom arising indirectly from the fact that 
 other relations were assuming a territorial character. Domes- 
 day Book attests the existence in the time of Edward the Con- 
 fessor of a large class of freemen who, by commendation, had 
 placed themselves in the relation of dependence on a supe- 
 rior lord ^ ; whether any power of transferring their service 
 still remained, or whether the protection which the com- 
 mended freeman received from his lord extended so far as to 
 give a feudal character to his tenure of land, cannot be cer- 
 tainly determined ; but the very use of the term seems to 
 imply that vassalage had not in these cases attained its full 
 growth : the origin of the relation was in the act of the de- 
 pendent. On the other hand, the occupation of the laud of the 
 greater owners by the tenants or dependents to whom it was 
 granted by the lord prevailed on principles little changed from 
 primitive times and incapable of much development. It would 
 seem, however, wiser to look for the chief cause of change in 
 the alteration of other relations. This tendency with reference 
 to judicature wc have just examined. When every man who 
 / was not, by his own free possession of land, a fully qualified 
 I member of the commonwealth, had of necessity to find himself 
 a lord, and the king had asserted for himself the position of 
 lord and patron of the whole nation ; when every free man had 
 to provide himself with a permanent security for his own ap- 
 pearance in the courts of justice, of which the king was the 
 source, and for the maintenance of the peace, of which the king 
 
 ' EUIh, Introd. to DomeHclay, i. 64-66. The term is most frequent in Essex 
 and East Ani,'lia; l)ut (l(.'Hcri|)tions that imply the general use of the prac- 
 tice arc aluiiidant ; such an 'ire cum terra ubi volucrit,' ' quaerere dominum 
 ubi volucrit.' liallaui, M. A. ii. 276, note z.
 
 VII.] Territorial Jurisdiction. 189 
 
 was the protector ; when every owner of bookhind had the right [j\e°7d^a°ot' 
 of jurisdiction, and the king alone could exercise jurisdiction '°''f,f.^i{' IJ** 
 over the owner of bookland ; the relation of the small land- ^^'^^ 'J^'"!- 
 owner to the gi-eater or to the king, and the relation of the 
 landless man to his lord, created a perfectly graduated system 
 of jurisdiction, every step of which rested on the possession of 
 land by one or both of the persons by whose relations it was 
 created. The man who had land judged the man who had not, 
 and the constant assimilation going on between the poor land- 
 owner and the mere cultivator of his lord's land, had the result 
 of throwing both alike under the courts of the greater pro- 
 prietors. As soon as a man found himself obliged to suit and 
 sex'vice in the court of his stronger neighbour, it needed but a 
 single step to turn the practice into theory, and to regard him 
 as holding his land in consideration of that suit and service ^ 
 Still more so, when by special gi-ant other royal rights, such as 
 the collection of Danegeld and the enforcement of military ser- 
 vice, are made over to the great lords - ; the occupation, though 
 it still bears the name of alodial, returns to the character of 
 usufruct out of which it sprang, when the national ownership, 
 after first vesting itself in the king as national representative, 
 has been broken up into particulars, every one of which is capable 
 of being alienated in detail. 
 
 75. In the oblisration of military service, may be found a Military 
 
 » J ) J service. 
 
 second strong impulse towards a national feudalism. The host 
 was originally the people in arms ; the whole free jDopulation, 
 
 ' Hence the alodiaries of Domesday are represented as holding their 
 lands of a superior ; not because they had received them of him, but be- 
 cause they did suit and service at his court, and followed his banner. 
 Hence, too, Edward the Confessor was able to give to the Abbej"^ of West- 
 minster his own alodiaries ; the king being lord of all who had no other 
 lord. They remained alodiaries by title and inheritance, and probably 
 escaped some of the burdens of territorial dependence. 
 
 ^ Gneist, who treats this subject from a different point of view, inclines 
 to refer the sinking of the ceorl into dependence generally to three causes : 
 (i) Tlie burden of military service, which led him to commend himself to a 
 lord who would then be answerable for the military service; (2) to the 
 convenience which the poor aloilial owners found in seeking justice from 
 a strong neighbour rather than from a distant court ; and (3) in the need 
 of military defence during the Danish wars, which drove men into the pro- 
 tection of fortified houses. Verwaltungsrecht, i. 52, 53.
 
 ipo 
 
 Constitutional History. 
 
 [chap. 
 
 Military 
 service 
 originally a 
 personal 
 obligation. 
 
 It becomes 
 connected 
 with land. 
 
 Difference of 
 penalty for 
 neglect of 
 the host. 
 
 whether landowners or dependents, their sons, servants, and 
 tenants. Military service was a personal obligation : military 
 organisation depended largely on tribal and family relations : in 
 the process of conquest, land was the reward of service ; the 
 service was the obligation of freedom, of which the land was the 
 outward and visible sign. But very early, as soon perhaps as 
 the idea of separate property in land was developed, the military 
 service became, not indeed a burden upon the land, but a per- 
 sonal duty that practically depended on the tenure of land ; it 
 may be that every hide had to maintain its warrior ; it is cer- 
 tain that every owner of land was obliged to the fyrd or expe- 
 ditio ; the owner of bookland as liable to the trinoda necessitas 
 alone ; the occupier of folkland as subject to that as well as to 
 many other obligations from which bookland was exempted. 
 But although folkland and bookland agreed in this, there was 
 no doubt a fundamental difference in their respective obliga- 
 tions, which was probably expressed in the penalty to which 
 they were severally liable in case of default. The holder of 
 alodial land was subject on the continent to the fine for neglect- 
 ing the Heerbann ^ ; the holder of a beneficium to forfeiture ^ 
 The same practice would apply in England to bookland and folk- 
 land, although from the peculiarly defensive character of Eng- 
 lish warfare after the consolidation of the kingdom, it might 
 very early be disused. The law of Ini, that the landowning 
 gesithcundman in case of neglecting the fjTd, should forfeit his 
 land as well as pay 120 shillings as fyrdwite ^, may be explained 
 either of the gcsith holding an estate of folkland, or of the land- 
 owner standing in the relation of gesith to the king : it seems 
 natural however to refer the fine to the betrayal of his character 
 
 ' ' Quicuinque liber liomo in liostcni bannitus f ueiit et venire contemp- 
 serit plenum heribannnm id est koHiIoh 60 persolvat.' Cap. Bonon. 811, c. u; 
 Baluze, i. 337; Waitz, D. V. G. iv. 486. 
 
 * ' Quiciiniqiie ex liis qui beneficium principis habent parem suum contra 
 hostes in exercitu pergentem dimiHcrit, ct cum eo ire vel stare noluerit, 
 honorom Hiiinn ct beneficium perdat.' Cap. Bonon. 811, c. 5 ; Baluze, i. 338 ; 
 Waitz, 1>. V. C. iv. 492. 
 
 ^ Ini, § 51. 'Si liomo sithcundus terrarius expeditionem supersedeat, 
 emendet cxx HolidiH et perdat terram suam ; non habens terram Ix solidis ; 
 cirliacua xxx solidis pro fyrdwita.'
 
 VII.] Military Service. 191 
 
 of free man, his forfeiture to his desertion of his duty as gesith. 
 The later legislation, which directs forfeiture in case of the 
 king's presence with the host, whilst a fine of 1 20 shillings was 
 sufficient atonement if he were not present, would seem to be 
 the natural result of the change which placed the whole popu- 
 lation in dependence on him as lord ^. 
 
 It is by no means improbable that the final binding of land- The militarj; 
 ownership with military attendance on the king in the form of the thegn. 
 the thegn's service ^, is connected with the same legislation of 
 Alfred and Edward, which we have already examined in refer- 
 ence to treason and the maintenance of the peace. To their 
 date approximately belong the definitions of the thegn as pos- 
 sessing five hides of his own land, church and kitchen, bell- 
 house and burh-geat-setl, and special service in the king's hall : 
 the thegn of Alfred is the miles of Bede ; the history of the 
 year a.d. 894 shows an amount of military organisation on 
 Alfred's part, of which there is no earlier evidence, an army of 
 reserve and a definite term of service'. The militaiy policy 
 too of Charles the Great may by this time have affected Eng- 
 land; the improvement of organisation involves a more dis- 
 tinct definition of militaiy duties ; and it is certain that the 
 increased importance and costliness of equipment must have 
 
 ^ Ethelred, v. § 28; vi. § 35. 'Quando rex in hostem pergit, si quis 
 edietu ejus vocatus renianserit, si ita liber homo est ut habeat socam suam 
 et sacam et cum terra sua possit ire quo voluerit, de omni terra sua est in 
 misericortlia Regis. Cujuscunque vero alterius domini liber homo si de 
 hoste remanserit, et dominus ejus pro eo alium homineni duxerit, xl solidis 
 domino suo qui vocatus fuit einendabit. Quod si ex toto nullus pro eo abi- 
 erit ipse quidem domino suo xl sol., dominus auteni ejus totidem sol. regi 
 emendabit ;' Domesday, i. 172, Worcestershire. In Canute, ii. § 65, neglect 
 of the fyrd involves a fine of 120 shillings, but in § 77, whoever flies from 
 his lord or his companion, in sea or land expedition, is to lose all that he has, 
 and even his bookland is forfeited to the king. His lord enters on the land 
 that he has given him, and his life is forfeit ; but this is not the neglect 
 of the fyrd, but the hcruliz of the continental law, which was punishable 
 by death. Cap. Bonon. 8ii, c. 4; Baluze, i. 338. 
 
 ^ Gneist, Self-government, i. Ii : The thegn's service was clearly, (i) per- 
 sonal ; (2) at his own cost of equipment ; (3) he paid his own expenses 
 during the campaign. 
 
 ' Chron. Sax. a.d. 894. ' The king had divided his forces (fierd) into two, 
 so that one half was constantly at home, half out in the field ; besides those 
 men whose duty it was to defend the burhs.'
 
 192 ConstiUUional Kidory. [chap. 
 
 No exact confined effective service to the rich ^ But althousfli the 
 
 parallel vntn ... 
 
 feudal legis- them was bound to military service, we have not sufficient 
 
 lation on '=' • t 1 1 i • • i 
 
 military Warrant for accepting the theory that his service bore to the 
 extent of his land the exact proportion that is laid down in 
 feudal times ^. The hide might furnish its man; the thegn 
 might be answerable for five men, or for one warrior five 
 times as well equipped as the ordinary free man : in the 
 reign of Ethelred, eight hides furnished a helm and a coat of 
 mail ^ j in Berkshire in the time of Edward the Confessor, the 
 custom was that every five hides sent one wai'rior (miles) ■*, and 
 each furnished him with four shillings for the provision of two 
 months : if he failed to attend he sufi'ered forfeiture. But we 
 have few more indications of local, and none of general practice, 
 and it is probable that the complete folloAviug out of the idea of 
 proportion was reserved for Henry II, unless his military reforms 
 are to be understood, as so many of his other measures are, as the 
 revival and strengthening of anti-feudal and prae-feudal custom. 
 Still even these traces are sufiicient to show the tendency to 
 bind up special possession with special service, and consequently 
 to substitute some other liability for that of military service in 
 cases where that special qualification did not exist. Whether the 
 simple freeman served as the follower of the lord to whom he 
 had commended himself or to whose court he did service, or as 
 the king's dependent under the banner of the sheriff or other 
 lord to whom the king had deputed the leading, he found him- 
 self a member of a host bound together with territorial rela- 
 tions ''. If he were too poor to provide his arms, or preferred 
 
 * Gneist, Self-government, i. 10. The stages may be thus marked : (i) the 
 universal obligation ; (2) the obligation of tlie hundred to furnish a hun- 
 dred warriors ; (3) the increased cost of armour restricting effective service. 
 lu the seventh century, on the continent, full equipment was worth 33 solidi, 
 that is the price of as many oxen, or of a hide of land : in England, the 
 service was on foot. (4) Although the fully armed warrior might be the 
 king's thegn, all owners of five hides were liable to the same service, and the 
 whole population was still summoned to defensive war, like that against 
 the Danes. Ibi<l. i. n-13, 14. Robertson, Hist. Essays, pp. vii-xix, has 
 some very valuable remarks on the whole subject. 
 
 * Gneist, Self-government, i. 13. 
 
 * Chron. Sax. A.D. 1008. * Above, p. 117. 
 
 ' Gneist (Self-government, i. 15 ; Verwcaltgsr. i. 15) rightly maintains that 
 the military service was still a personal duty, nut a burden on the laud ;
 
 VII.] Military/ Service. 193 
 
 safe servitude to dangerous employment in warfare, there was Commuta- 
 110 lack of wailike neighbours who, in consideration of his ac- tary service, 
 ceptance of tlieir supeiiority, would undertake the duty that 
 lay upon his land : he was easily tempted to become a socager, 
 paying rent or gavel, instead of a free but overworked and 
 short-lived man-at-arms. 
 
 But a further conclusion may be drawn on other grounds. Change of 
 
 , •', -111 thefolkland 
 
 From the time of Alfred the charters contain less and less to royal 
 
 tlciucsnc 
 
 frequently the clause expressing the counsel and consent of the 
 witan to the grant. It never altogether disappears; but the witan 
 gradually sink into the position of witnesses, and their consent, 
 probably perfunctory enough at any time, becomes a mere at- 
 testation. It would seem to follow from this that the folkland 
 was becoming virtually king's land, from the moment that the 
 West Saxon monarch became sole ruler of the English ; a date 
 agreeing nearly with those which Ave have fixed for the turning 
 point of the system. If then the king was hencefoiih special 
 lord of the folkland, the folkland itself becomes scarcely dis- 
 tinguishable from the royal demesne ; and every estate cut out of 
 it, whether turned into bookland or not, would seem to place the 
 holder in a personal relation to the king wliich was fulfilled by mili- 
 tary service. Every man who was in the king's peace was liable The duty of 
 to be summoned to the host at the king's call, but the king's defence, 
 vassals especially ; the former for national defence, the latter for 
 all service^ : but all the English wars of the tenth and eleventh 
 
 but the personal duty was at every turn conditioned by the possession of 
 the land. 
 
 ' See Gneist, Self-government, i. 13, 18. In the Karoling period this 
 general armament ah-eady bore the name of the landivelir. ' Ad defensionem 
 patriae omnes sine ulla excusatione veniant.' Edict. Fistense.A.D. S64, c. 27. 
 ' Et volumus ut cujuscumque nostrum homo, in cujuscunque regno sit, cum 
 seniore suo in hostem vel aUis suis utilitatibus pergat, nisi talis regni invasio, 
 quam lantvveri dicunt, quod absit, acciderit, ut omnis populus illius regni 
 ad earn repellendam communiter pergat.' Con v. Marsn. a.d. 847. adn. 
 Karoli, § 5. The continuance of the fyrd as a general armament of (he 
 people during Anglo-Saxon times was no doubt the result of the defensive 
 character of the warfare with the Danes ; otlierwisc it might have sunk, as on 
 the continent, to the mere wacta or police of the country (see above, p. 77) ; 
 a character which it possessed in Enyland also, and whicli was called out 
 by the legislation of Edward I. It is important to note this double cha- 
 racter of the third obligation of the trinoda nccessitas ; watch and w;ird ;
 
 194 Consi'duilonal Hhtory. [chap. 
 
 centuries were wars of defence, and hence the fyrd system was 
 
 maintained in its integrit}", although the special duty of the 
 
 thegns, as aftei'wards that of the knights, subsisted side by side 
 
 Composition with it. Still, as in the most primitive times, the host contained 
 of the army. ,. ,.i-.i-ii •• 
 
 the free people fighting in theu' local organisation, and the 
 
 specially qualified, specially bound, servants and companions of 
 the leaders^. The cultivators of Kent might not be bound by 
 the special service^, might pay gavel, or rent, instead of fight- 
 ing, be drengs instead of thegns or knights, but they had no 
 right to hold back from the defence of the country. 
 Form of 76. In the region of legislation, beside the general tone and 
 
 legislation . * °. i , i . • 
 
 unchanged, tendency which have been illustrated under the lieads of justice 
 and land-tenure, the growth of the royal power and the accom- 
 panying increase of territorial influences could appear only in 
 the form of enactment, or in the growth or elimination of the 
 principle of personal law. In the former point no change is 
 perceptible. Ethelred and Canute invariably express the counsel 
 and consent of the wise men of the nation to their promulgation 
 of the laws, just as Ini and Alfred had done. The king never 
 legislates by his own ordinance. The codes are in fact not so 
 much the introductions of new principles as the declarations of 
 the customs or common law of the race, dating from far beyond 
 the existence of written record, preserved in the memories of the 
 wise, and kept alive for the most part in constant general expe- 
 rience. It may be that, when the knowledge of law has become 
 professional, or when under new influences indigenous customs 
 are becoming obsolete, they are written down in books ; but as 
 a rule it may be said that a publication of laws is the result of 
 some political change or series of changes ; so that the very act 
 of legislation implies some crisis in the history of the legislator. 
 
 one against malefactors, the other against armed hosts. In the German 
 trinnda ncecssitaH the wacta \h more important because in more constant 
 requiHiti'in, tlian the latitwcri ; in England the fyrd i:^ in more constant re- 
 quisition, until after the Conquest, than the watch; but the two ideati are 
 never really divorced. 
 
 ' Above, p. 30. 
 
 * See IJolK-rtsini, Essjiys, pp. 1-liv. Elton, Tenures of Kent, pp. 45-.';8. 
 Tlie drengs who Irld l:inds under the archbishop were turned into knights 
 by Lanfranc. Ej)p. C'antuar. p. 225.
 
 VII.] Legislation. 195 
 
 Tlie most ancient Germanic code, the Pactus Legis Salicae, Nwlp^isla- 
 
 tion the 
 
 seems to mark the iicriod at which the several Frank tribes result of 
 
 . „ some 
 
 admitted the sovereignty of the Salian king. The laws 01 national 
 Ethelbert of Kent were the immediate result of the conversion' ; 
 those of Wihtra?d and Ini, of the changes which a century of 
 church organisation made necessary in that kingdom and in 
 "Wessex. The codes of Alfred and Edgar are the legislation 
 which the consolidation of the several earlier kingdoms under 
 the West Saxon house demanded, the former for Wessex, Kent 
 and llfercia", the latter for the whole of England. Not the least 
 important part of the laws of Alfred and Edward are clothed in 
 the form of treaty with the East Anglian Danes. The laws of 
 Canute are the enunciation, with the confirmation of the con- 
 queror, now the elected king, of the legislation which he had 
 promised to preserve to the people who accepted him. Most of 
 the shorter laws are of the nature of amendments, Imt serve 
 occasionally to illustrate the growth of a common and uniform 
 jurisprudence which testifies to the increase in strength of the 
 power that could enforce it. Thus the very fact of the issue of 
 a code illustrates the progress of legislative power in assimilating 
 old customs or enacting provisions of general authority. The 
 share of the provincial folkmoots in authorising legislation, 
 though not in originating it, appears as late as the reign of 
 Athelstan ; but the single instance that proves it exhibits it in 
 the form of acceptance only. The bishops and thegns of Kent, 
 eorl and ceorl, acquiesce in the enactments of the witenagemot 
 at Great ley ^. 
 
 The increase of territorial influences misfht naturally be Question of 
 
 ° ■• personal 
 
 expected to put an end to the system of personal law wherever ^^'''^^ 
 it existed, except in the border territories of Wales and Scot- 
 land. But in spite of the differences of local custom, it may be 
 
 ' Bede, H. E. ii. 5. ' Inter caetera bona quae genti suae consul endo 
 conferebat, etiam decreta illi judiciorum juxta exenipla Romanoruni cum 
 consilio sapientiuni constituit.' 
 
 ^ ' Nolui multa demeis in scriptura ponere quia dubitamus quid posteris 
 inde placeret ; sed quae repperi diebus Inae regis cognati mei, vel OfiFae 
 Mercenorum regis, vel ^tiielbrihtes qui primus in Anglorum gente bapti- 
 zatus est rex, quae mihi justiora visa sunt, haec collegi et caetera dimisi.' 
 Alfred, Introd. 49, § 9. ^ ggg above, p 115. 
 
 O 2
 
 196 Constitutional Hidory, [chap. 
 
 questioned whether in England the system of personal law ever 
 Tables of prevailed to an extent worth recording. It is time that the 
 
 wci'ffilds 
 
 table of wergilds of the different kingdoms differ^ ; but the dif- 
 ferences are very superficial, nor is thei-e anything that shows 
 certainly that the wergild of the slain stranger was estimated by 
 the law of his own nation and not by that of the province in 
 which he was slain. But if there ever was a period at which 
 the former was the rule, it must have disappeared as soon as 
 the united kingdom was ranged under the threefold division of 
 Division of West Saxon, Mercian and Danish law, an arrangement which 
 according to appears to be entirely territorial ^. The practice of presentment 
 of Englishry in the case of murder which was once attributed to 
 Canute^ is now generally regarded as one of the innovations of 
 the Norman Conquest. The laws of Edgar however contain an 
 enactment which seems to give to the Danes some privilege of 
 personal law, if not also of actual legislation. In the Supple- 
 mentum enacted at the Council of Wihtbordcsstan, the king and 
 witan enact an ordinance for the Avhole population of the king- 
 dom, English, Danish and British ; but with a sort of saving 
 Right of tlie clause, ' I will that secular rights stand among the Danes with 
 as good laws as they best may choose. But with the English let 
 that stand which I and my witan have added to the dooms of 
 my forefathers for the behoof of all my people. Only let this 
 ordinance be common to all*.' This is a distinct recognition of 
 the right of the Danes of the Danelaga not only to retain their 
 own customs, but to modify them on occasion : the few customs 
 which they specially retained are enumerated by Canute, and 
 seem to be only nominally at variance with those of their neigh- 
 bours, whilst of their exorcise of the right of separate legislation 
 there seems to be no evidence. And what is true of the Danes, 
 
 * Sclimid, GoHKtzn, pp. 394-400. 
 
 ' See Krucinaii, Noim. Conti. i. 433. 
 
 ^ LI. Edw. Coiif. § 16. Dialof^im (le Scaccario, I. cap. x (Select Cliarters, 
 p. 19.1)- A similar measure may poB.siljly have Ijeeii taken by Canute. If 
 an unknown man was fouiul slain, lie was ])resiiined to Ije a Norman, and 
 tlie iiundred fined accordin'^dy, uidi:s>i tlioy could prove tliat he was English. 
 ' Noll prori'dit noq Kolvatur |)ro niurdro Anj^licus sed Francigena ; ex quo 
 vero due.st (jui inU-rfcctuni hominem coniprobet Anglicum esse, Francigena 
 rejiutatur.' LI. Ifenr. \, § 92. 6. 
 
 * Edgar, iv. § 2. I.
 
 VII.] InJIitence of the Danes. 197 
 
 is equally true of the Mercians and Northumbrians ; the vari- Personal law 
 
 , . not inipor- 
 
 utions of custom arc vernal rather than real ; and wliere, as in t;mt in 
 
 the case of the wergilds, they are real, they are territorial rather 
 
 than personal. The deeper differences of Briton and Saxon laAvs 
 
 on the Western border, or of early Danish and English custom 
 
 in East Anglia were settled by special treaty, such as those 
 
 of Alfi-ed and Edward with Guthrum, and the ordinance of 
 
 the Dunsaetas. The subject of personal law then illustrates the 
 
 Anglo-Saxon development only incidentally ; there was no such 
 
 difference amongst the customs of the English races as existed 
 
 between Frank, Visigoth and Roman, or even between Frank, 
 
 Alemaunian and Lombai'd. 
 
 77. Of the influence of the Danes and Norsemen on the Eflfect of 
 
 Danish m- 
 constitutional life of England, whether in their character as vasion. 
 
 conquerors generally, or in special relation to the districts which 
 they ravaged, divided and colonised, little that is affirmative can 
 be certainly stated. For nothing is known of their native in- 
 stitutions at the time of their first inroads ; and the differences 
 between the customs of the Danelaga and those of the rest of 
 England, which follow the Norse occupation, are small in them- 
 selves and might almost with equal certainty be ascribed to the 
 distinction between Angle and Saxon. The extent of the Danish 
 occupation southward is marked by the treaty of Alfred and 
 Guthriim, ' upon the Thames, along the Lea to its source, then Limits of 
 right to Bedford and then ujoon the Ouse to Watling Street ^' pation. 
 To the north they were advanced as far as the Tyne ; and their 
 Western boundaiy was the mountain district of Yorkshire, 
 Westmoreland and Cumberland ^. Over all this region the traces 
 of their colonisation abound in the villages whose names end 
 in 'by,' the Scandinavian equivalent of the English 'tun,' or 
 ' ham ' : the division into wapentakes may be Scandinavian 
 more probably than Anglian, and the larger arrangement of the 
 trithiugs or ridings of Yorkshire and Lincolnshire may be of the 
 same origin. But it is not probable that they introduced any 
 
 * Alf. andGuthr. § i. 
 
 "^ See Mr. Ivobertson's Essay on the Danelaw in Scotland under her 
 Early Kings, ii. 430-444. Freeman, Nonn. Conq. i. 644-647.
 
 198 Constitutional History. [chap. 
 
 The infusion Substantial changes into tbe customs of the common law, for 
 
 of Danish ._,- , ,. -i-c,! 
 
 usages was Several reasons, in the first place their organisation tor the 
 owing to ' purpose of colonisation Avas apparently only temporaiy. It was 
 condition; nearly two centuries before they effected a permanent settlement, 
 during which period they ravaged the coasts in the summer, and 
 in the winter either returned home or remained in camp. Their 
 expeditions were headed by independent chieftains allied, as the 
 old Saxons had been, for the pm-pose of war, and after the war was 
 over returning to equality and isolation. They were accordingly 
 far more likely to amalgamate with the Anglian population which 
 submitted to them ^ than to create a great and new nation upon 
 lines of their own. The evidence of a popular migration, as dis- 
 tingaiished from mere settlement, is wanting, and although the 
 local extermination of the natives must have occasionally made 
 the institution of a new organisation necessary", it would ap- 
 pear that such instances were not numerous enough to alter the 
 and possibly general complexion of society. In the second place, the Angles 
 affinity with whom they conquered were, of all the English tribes, the most 
 e ng es. (,|Qgg|y connected with them in their primitive homes. The 
 civilisation which the Danes now possessed was probably about 
 equal to that Avhicli the Angles had had three centuries before ; 
 they were still heathens, and of their legal system we know no 
 more tlian that they used the universal customs of compurga- 
 tion, wergild, and other pecuniary compositions for the breach 
 of the peace ^. Their heathenism they renounced with scarcely a 
 struggle, and the rest of their jurisprudence needed only to be 
 translated into English. Just as in France the Normans adopted 
 the religion and institutions of the conquered, so in England the 
 Danes sank almost immediately into the mass of the Angles. 
 
 It cannot be doubted that the influx of a body of new settlers 
 whose ideas of freedom had not been trained or shaolded with 
 
 ' Freeman, Norm. Conq. i. 148. 
 
 ' Such jierliaps was the original confeJeratiou of the Five Boroughs ; 
 above, p. 93. 
 
 ^ See tlie laws of Alfred and Guthrum, and Edward and Guthrum. The 
 lahslit of the Danes is the wito of tlie Anijlo-Saxona ; and in many cases, as 
 we liave already seen, new nanioH, rather than new cu.stonis, date from the 
 Danish occu])ation : the earl, the hdld. tlie grith, tlie trithing, tlie wajjentake 
 jierhaps, supersede the old names, but witii no percepliblc diH'erence of mean- 
 ing. For the word lava itself (lab) we are, it is said, indebted to the Danes.
 
 VII.] Ivfluence of the Danes. 199 
 
 three centuries of civilisation, must have introduced a stroncj Bracine 
 
 ^ iiinuwicc of 
 impulse in favour of the older institutions which were already the Danisk 
 
 '■ _ "^ infusion. 
 
 on the wane. The alodial tenure of the North must have been 
 reinstated in Yorkshire and East Anglia in its full strength ', 
 even if the subject Angle sank one degree in the scale of liberty. 
 The institutions of the Danish settlements of the Five Boroughs^ 
 stand out as late as the Conquest, in the possession of a local 
 constitution which, as well as their confederation, seems to date 
 from their foundation in the ninth centuiy. But speculation on 
 such points is scarcely necessary. The amalgamation of the 
 Dane and Angle population began from the moment of the 
 conversion. The peace of Alfred and Guthrum established 
 the social equality of the races : the prowess and policy of 
 Edward and of Ethelfleda reunited the Southern Danes under Speedy 
 
 union of 
 
 the "West Saxon dyuastv, and the royal houses of Northumbria Danes and 
 
 •^ . "^ ' "^ . English. 
 
 and Wessex intermarried. The attraction of the larger and more 
 
 coherent mass, itself consolidated by the necessity of defence, 
 
 and the quarrels of the Danish chieftains amongst themselves, 
 
 led the way to their incorporation. The spasmodic efforts 
 
 of the Northumbrian Danes were checked by Edmund and 
 
 Edred ; and Edgar, who saw that the time was come to join 
 
 Dane and Mercian on equality in all respects with the West 
 
 * Robertson, Scotland, &c. ii. 269. ' It will be found that at the date of 
 the Norman Conquest, contrary to the usually received idea, a greater 
 amount of freedom was enjoyed in the Danelage than in England proper, 
 or in other words Wessex and English Mercia. Throughout the latter 
 district, except in the case of the Gavellers of East Kent, military tenure 
 seems to have prevailed with hardly anji exception ... In the Danelage, on 
 the contrary, omitting Yorkshire from the calculation, between a third and 
 a fourth of the entire po])ulation were classified either as liberi homines, or 
 as socmen . . . Free socage, the very tenure of which is sometimes supposed 
 to have been peculiarly a relic of Anglo-Saxon liberty, appears to have been 
 absolutely unkn iwn except among the Anglo-Uanes.' Whether these con- 
 clusions are to be accepted may be questionable, but the argument illus- 
 trates remai-kably tlie expression in the text. 
 
 ^ It would be hazardous to argue from what is called the ' North People's 
 Law,' Schmid, Gesetze, p. 396 ; but a reading of it suggests that the Danes 
 estimated their own wer-gilds at twice the value of the Angles, just as in 
 early daj's the Saxons had valued themselves at twice as much as the 
 wealh. The eorl is worth i;ooo tlirymsas ; the ealdorman 8000; the 
 hold is worth 4000, and the thogn 2000; the king's high reeve is worth 
 4000, and there is no counterpart to him, probably because he would 
 always be valued as a Dane. Mr. Robertson dates this earlier than 
 Canute, Scotland, &:c. ii. 281.
 
 200 
 
 Constitutional History. 
 
 [chap. 
 
 Ecclesiastics 
 of Danish 
 estraction. 
 
 The want of 
 cohesion not 
 a result of 
 Danish infu- 
 sion only. 
 
 Gfeneral con- 
 clusion as to 
 the first 
 D.mish 
 struggle. 
 
 The second 
 
 Danish 
 
 struggle. 
 
 Saxon, consolidated the Xoiihumbrian kingdom with his own. 
 The Danish Odo, Oskytel, and Oswald were archbishops in less 
 than a century after Halfdane had divided I^orthiimhria ; and in 
 the struggles of Ethelred, Sweyn and Canute, the national 
 differences can scarcely be traced. The facility with which the 
 Danes of the eleventh century conquered the provinces which 
 their kinsmen had occupied in the ninth can scarcely' be referred 
 to this cause with more probability than to the fact that Mercia 
 and East Anglia during the Anglian period had never united 
 with Wessex. The ill-consolidated realm of Edred broke up 
 between Edwy and Edgar, just as that of Ethelred broke up 
 between Edmund and Canute, and that of Canute between 
 Harold and Hardicanute. 
 
 It may be concluded then, tbat whilst very considerable 
 political modifications and even territorial changes followed the 
 Danish conquest of the ninth century, whilst a rouglier, stronger, 
 and perhaps freer element was introduced into the society, into 
 the language, and even into the blood of the Angles, the institii- 
 tioual history is not largely affected by it. During the conquest 
 the Danes were the host, or here; when it was over they 
 subsided into the conditions of settled society as they found it ; 
 their magisti'ates, their coins, their local customs, like their 
 dwelling places, retained for a while their old names ; but under 
 those names they were substantially identical with the magis- 
 trates, coins and customs of the Angles, and in the course of time 
 sank all differences in a common nomenclature. 
 
 Nor again can much of the constitutional charge which 
 followed the second Danish domination, that founded by Sweyn 
 and Canute, be attributed to the Infusion of new customs from 
 the North \ Its chief effects were political, and its constitutional 
 
 ' If the authenticity of the Constitutiones Forestae, ascribed to Canute, 
 were proved, they might be useful as marking the introduction of forest 
 law into England ; but they are either spurious, or so much interpolated as 
 to he \vithf»ut value. They are accepted indeed by Kemble and Lappenherg, 
 and with some liesitation by Schniid also (Gesetze, p. Ivi), but K. Maurer 
 rejects them as a Caljrication of much later date (Krit. Uelierschaii, ii. 410). 
 Freeman, Norm. CJonq. i. 732, thinks that the code carries its own confu- 
 tation with it, and !*>runner(in Ifoltz^ndorff 's Encyclop.adie, p. 232) detects 
 in it the ring of Noniian legal terminology. Busidos these laws the in- 
 stitution of the huskarls is the only peculiarity of the Danish regime : on
 
 VII.] Canute's Earldoms. 20 1 
 
 consequences may be referred to political far more than to ethnical No new 
 
 ^ *^ 1 • n 1 r "safres iiitro- 
 
 causes. The laws of Canute are but a reproduction of those ot duced by 
 
 . Canute into 
 
 Edgar and Ethelred ; not a snigle custom can be assigned to Ins the laws, 
 rule with any certainty that it cannot be found earlier ; and the 
 infusion of Danish blood and language is less important in the 
 eleventh century than in the ninth. The changes which are 
 traceable, and which have been adverted to in the general sketch 
 just given of the grow'th of the royal power, are to be ascribed to 
 the fact that Canute was a great conqueror and the ruler of 
 other far wider if less civilised territories than England. His 
 changes in the forms of charters and writs, if they were really 
 anything more than clerical vai-iations, simply show that he did 
 with a strong hand what Ethelred had done with a weak one. 
 Even the great mark of his policy, the division of England into 
 four great eiirkloms or duchies, may be paralleled with the state 
 of things under Edgar and his sons. 
 
 It is however possible to refer the last measure to an idea of Imperial 
 
 ^ ... . cliaracter of 
 
 reproducing something like the imperial system which Canute Canute, 
 saw in Gei-many. He ruled, nominally at least, a larger 
 European dominion than any English sovereign has ever done ; 
 and perhaps also a more homogeneous one. No potentate of the 
 time came near him except the king of Germany, the emperor, 
 with whom he was allied as an equal. The king of the Norwegians, 
 the Danes, and a great part of the Swedes ', was in a position 
 which might have suggested the foundation of a Scandinavian 
 empire with Britain annexed. Canute's division of his dominions 
 on his death bed, showed that he saw this to be impossible ; 
 
 them see Freeman, Norm. Conq. i. 733. Although they recall very di.-itinctly 
 the features of the prhuitive com'itatus (above, p. 150, n. 2), they do not concern 
 Constitutional History further, and add in no important degree to the ele- 
 ments already existing in English society. The heriot is often regarded as 
 an institution of Canute ; but there are many examples of t!ie custom in the 
 chaiters much earlier, which sliow that he simply declared the law of an 
 ancient, probably primitive, ustige. Kemble, Saxons, ii 99. The heriots of 
 Theodred, Bishop of Elmham (Cod. Dipl. dcccclvii), Ethelwald the ealdor- 
 man (mclxxiii), Elfgar (mccxxiii), Beorhtric (ccccxcii), and many others 
 are known ; and they seem to imply an assessment similar to Canute's 
 own. And in this view of the case, where the pMyment had become a 
 settled amount due from persons of a particular rank, it ' became possible 
 for women to be charged with it.' In other words the heriot was become a 
 burden on the land rather than on the person. 
 
 ^ See his letter to the bishops, in Florence of Worcester, a.d. 1031.
 
 302 Constitutional Illdory. [chap. 
 
 Canute's Norway, for a century and a half after his strong hand was re- 
 empire not T • 1 p • • 1 
 permanent moved, was broken up amongst an anarchical crew ot piratic and 
 
 dated. bloodthirsty princes, nor could Denmark be regarded as likely 
 
 to continue united with England. The English nation was too 
 much divided and dernoralised to retain hold on Scandinavia, 
 even if the condition of the latter had allowed it. Hence Canute 
 determined that during his life, as after his death, the nations 
 should be governed on their own principles, and as the Saxons, 
 the Bavarians, the Swabians and the Franconians obeyed Conrad 
 the Salic, so the Danes, the Norwegians, the Swedes and the 
 English should obey him. But still further, the four nations of 
 the English, Northumbrians, East Angles, Mercians and West 
 Saxons, might, each under their own national leader, obey a 
 sovereign who was strong enough to enforce peace amongst them. 
 Feudal ten- The great earldoms of Canute's reign were perhaps a nearer ap- 
 Canute's proach to a feudal division of England than anything which 
 by earls. followed the Norman Conquest. That of Mercia was a vast 
 territory in which the earl, an old jSIercian noble, united the 
 great territories of the national aethel with the official authority 
 and domain of the ealdorman, and exercised the whole ad- 
 ministration of justice, limited only by the king's reeves and the 
 bishops. And the extent to which this creation of the four earl- 
 doms affected the history of the next half century cannot be 
 exaggerated. The certain tendency of such an arrangement to 
 become hereditary, and the certain tendency of the hereditary 
 occupation of great fiefs ultimately to overwhelm the royal 
 power, are well exemplified. The ])rocess by which, as we have 
 seen, the king concentrates in himself the representation of the 
 nation, as judge, patron, and landlord, reaches its climax only to 
 break up, save where the king's hand is strong enough to hold 
 fast what he has inherited, and the i^eojde are coherent enough to 
 Pei(^ of sustain him. The history of the reign of Edward the Confessor 
 Confessor, is little more than the variation of the balance of power between 
 the families of Godwin and Leofric; the power of the witenagemot 
 is wielded by the great earls in turn ; each has his allies among 
 the Welsh, Irish and Scottish ])rinces, each his friends and refuge 
 on the continent : at their alternate dictation the king receives
 
 VII.] Frank lujluences. 203 
 
 iiiul dismisses his wife, names and sets aside liis bishops. The Policy of 
 
 . . Godwin and 
 
 disruption of the reahn is imniineut. The work of Godwin is Luuiric. 
 crowned by the exaltation of Harold, who saw the evils of the 
 existing state and attempted at the sacrifice of his own family 
 interests to unite the house of Leofric in the support of a 
 national sovereignty. But the policy of Leofric, followed out 
 by the lukewarm patriotism of Edwin and Morcar, opened the 
 way to the Norman Conquest by disabling the right arm of 
 Harold. The Norman Conquest restored national unity at a 
 tremendous temporary sacrifice, just as the Danish Conquest in 
 other ways, and by a reverse process, had helped to create it. 
 
 In all this however there is nothing that would lead to the 
 conclusion of any formal infusion of Scandinavian polity ^ The 
 measure, so far as it is new, is rather Frank or German, and in 
 advance rather than in the rear of the indigenous development. 
 
 78. A glance at the Karoliiigian legislation of the ninth ceu- Question of 
 tury suggests the important question whether the legal measures of Frank' 
 adopted by Alfred and his descendants were to any great extent tiie later 
 influenced by continental precedents. The intercourse between system^'"'"" 
 the two courts had been close and constant, the social condition 
 of the two nations was far more uniform than a superficial view 
 of their history would lead us to believe, and in the laws of their 
 respective legislative periods there are coincidences which can 
 scarcely be regarded as accidental. During the reign of the 
 Great Charles the Frank court was the home of English exiles, 
 as well as of English scholars ". Egbert spent as a banished 
 man in France three years, one of which was marked by Charles's 
 
 ' Hallam, M. A. ii. 272, comes to the same conclusion. The views of 
 Northern antiquaries, who refer every point of siniilaritv between Scandi- 
 navia and En^dand to Norse and Danish influences in Britain, seem to be 
 maintained in ignorance of the body of English history which existed earlier 
 than the Norse invasions, the civilising and Christianising influence of 
 England on Scandinavia, and the common stock of institutions that both 
 nationalities possessed. The temperate and critical treatment of Konrad 
 Maurer is strongly in contrast with this. But even the introduction of the 
 huskarls and the forest law are to a certain extent outside our present 
 subject : the former was no permanent institution, and the latter rests on 
 too weak evidence to be accepted. I have therefore preferred to mentioa 
 what is important about them under other heails. 
 
 '■' See the letters of Otta, Alcuin and Charles, in the Councils and Eccle- 
 siastical Documents, iii. 487, 49S, 561-565.
 
 204 Constitutional History/. [chap. 
 
 Intercourse assumption of the imperial dignity ^ It is quite possible tliat 
 
 of the West , . •nin- p ITI- 
 
 Saxon kings there he conceived the desn-e of establishmg a supremacy over 
 Karolings; the English kingdoms as well as the idea of binding to himself 
 and his dynasty the mother church of the land in alliance for 
 mutual patronage ^. The character and some part of the history 
 of Ethelwulf are in strict parallel with those of Lewis the Pious, 
 whose correspondent he was in his early years and whose grand- 
 daughter he married on his return from his Roman pilgrimage. 
 Alfred drew from the empire some at least of the scholars whose 
 assistance in tlie restoration of learning repaid to a great extent 
 the debt due to England for the services of Alcuin. Charles the 
 Simple and Otto the Great were married to two of the sisters of 
 Athelstan ; aud wliilst Otto was consolidating the Saxon empire 
 on the continent, his nephew Avas gathering sulyect kings at his 
 coui-t and taking to himself the titles of emperor and Augustus, 
 contempo- As Otto collected the great duchies of Germany into the hands 
 
 rar.v policy c ■, • ^ 
 
 of the Saxon of his SOUS and sons-in-law, Edgar placed the great ealdorman- 
 tjni pcrors. 
 
 ships of England in the hands of his own kinsmen. In ecclesias- 
 tical legislation at the same time England was largely copying 
 fi'om the manuals of Frank statesmanship. The Anglo-Saxon 
 Canons and Penitentials of the tenth century are in great part 
 Intercourse translations aud expansions of the Frank books of discipline 
 which had a hundred years earlier been based on the works of 
 Theodore and Egbert. It would be very rash to affirm that 
 while the bishops, who composed so large a part of the witena- 
 gemot, sought foreign models for their canons, they did not seek 
 foreign models for the secular laws. Dunstan had learned 
 monastic discipline where he might also have furnished himself 
 with the knowledge needed for the great office of first adviser to 
 the king. But the brilliant period of imperial legislation was 
 Periods of over before the time of Alfred; in the disorganisation of the 
 EiiKlish" latter period of the Karolings much of the framework of their 
 (lonotco?n- Bystem had ceased to exist exce])t in the law books; and the 
 ^ parallels between Frank and English law must not be pressed 
 
 ' Cliritn. Sax. A.D. S36. Brilitric ilied in A.D. 802 ; Eghcrt's stay in 
 France niiiHt have covered the date of Charles's coronation. 
 ^ .See (Jliaptor VIIJ. p. 236.
 
 VII.] Frank Injluences. 205 
 
 without allowing for the siniilaiity of the circunifctances which 
 prompted them aiul for the fuudaniental stock of common prin- 
 ciples and customs which underlay them. The law which provided Coinci- 
 that the landless man must have a lord appears in the Capitu- law and 
 laries of Charles the Bald half a century before it appears in the 
 dooms of Athelstan ^. The judicial investigations made by Alfred 
 through his 'fideles' may remind us of the jurisdiction of the 
 Frank 'missi'^: in England, as in the empire, the head of the shire 
 receives a third part of the profits of the law courts^: and the 
 great thegn is allowed to swear by the agency of a repi'esentative*. 
 Yet all these may be merely the I'esults of similar circumstances. 
 In other points, where the coincidences are more striking, differ- 
 ence of circumstances may be fatal to an affirmative theory. It 
 cannot be safely said that Edgar's regulations for the hundred Uncertainty 
 were borrowed from the law of Childebert and Clothair, or that 
 Ethelred's rating of the eight hides to furnish a helm and coat 
 of mail was an imitation of the Frank practice ^ or that the pay- 
 ment of Danegeld in a.d. 991 %vas consciously adopted on the 
 precedent created by Charles the Bald in a.d. 861, 866 and 877 
 in Gaul and Lotharingia ". Jurists will probably always differ 
 as to the relation betAvcen the scabini of Lewis the Pious and the 
 
 1 Above, p. 80. 
 
 ^ Asser, M. H. B. 497. ' Nam omnia pene totius snae i-egionis judicia, 
 quae in absentia sua fiebant, sagaciter investigabat qualiter fierent, jiista aut 
 etiam injusta ; aut vero si aliquam in illis judiciis inic|uitatem intclligere 
 posset, leniter advoeatos illos ipsos judices aut per se ipsum aut per alios 
 suos fideles quoslibet interrogabat.' 
 
 ' Above, p. 113. 
 
 ^ Eanks, § 5. Select Charters, p. 64. VVaitz. D. V. G. iv. 228. 'Honorem 
 enim talem nostris vassallis dominicis concedimus, ut ipsi non sicut reliqui 
 manu propria sacramentum jurent, sed melior homo iUoriira et credibilior 
 illud agere non differat.' Cap. Vern. A.D. 884, c. 11. ' Exceptis nostris 
 vassis dominicis pro quibus illorum homines meliores jiiramentum persol- 
 vent.' Ibid. c. 4. Balnze, ii. 195, 197. But this existed a century before 
 in the Lex Saxonum, where the noble is allowed to swear ' in manu liti sui 
 vel sua arniata ;' c. 8. 
 
 ' Robertson, Essay.'!, p. x. 
 
 * See the Capitularies of a.d. 86t (Baluze, ii. 103) and 877. ' Haec 
 constituta est exactio Nortmannis qui erant in Sequana tribuenda ut a 
 regione ejus recederent.' The tax in A.n. S77 is twelve denarii from the 
 mansus indoniinicatus; from the man.sus ingenuilis four from the rent, four 
 from the tenant : from the mansus servilis two from the rent and two from 
 the tenant. Baluze, ii. 175, 176. Waitz, D. V. G. iv. 102. Eobertson, 
 Es.says, pp. 116, 117. Ann. S. Bertin, a.d. 866.
 
 2o6 Constitutional History. [chap. 
 
 Parallels not assistant tlieu'us of the sliiremoot^ ; wlietliei* the twelve senior 
 
 proofs. ° P 1 1 . „ . 
 
 thegns who swear to accuse none falsely are a juiy of inquest 
 like the inquisitors of Lewis, or a compurgatory body to deter- 
 mine on the aj^plication of the ordeal. The oath imposed by 
 Canute on every one above the age of twelve, that he will not 
 be a thief nor cognisant of theft ^, runs back through the common 
 form to Edmund's oath of allegiance ', and finds parallels in the 
 earliest legislation of Charles the Great *. In more than one 
 passage the collection of early English usages, known as the 
 Leges Henrici Primi, recalls the exact language of the Capitu- 
 laries and of still earlier laws^. But although we may be 
 inclined to reject the theoiy that refers all such importations 
 of Frank law to the Xorman lawyers, and to claim for the 
 institutions, which like trial by jury came to full growth on 
 English soil, a native or at least a common Germanic origin, 
 it is wiser and safer to allow the coincidences to si^eak for 
 themselves ; and to avoid a positive theory that the first inde- 
 pendent investigator may find means of demolishing. It is 
 enough that, although in different lines and in widely contrasted 
 political circumstances, royalty was both in England and on the 
 continent workinsr itself into forms in which the old Germanic 
 
 * See above, p. 103. 
 
 * 'Volumus lit omnis liomo post d'lodecimum aetatls suae annum juret 
 quod fur esse nolit nee furi consentaneus.' Canute, ii. § 21. Compare witli 
 this the later regulations of Henry II and Richard I. Select Charters, 
 pp. 137, 256. 
 
 * Select Charters, p. 66. ' Ut nemo concelet hoc in fratre vel proximo 
 8U0 plus quam in extraneo.' 
 
 * VVaitz, D. V. G. iv. 368. 'Judex Tinusquipque per civitatem faciat 
 ju rare ad Dei judicia homines cro'lentes juxta quantos praeviderit, sen foris 
 per curtcrt vel vicoras niansuros, ut cui ex ipsis cognituui fuerit, id est homi- 
 cidia, furta, adulteria et de inlicitas conjnnctiones, ut nemo eas concelet.' 
 Capit. Langobard. A.D. 782, c. 8. Cf. Capit. Silvac. A.D. 853; Baluze, 
 ii. 44, 45. 
 
 * See Schmid, Oesetze, pp. 437, 438, 471, 472, 484, 485 : Thorpe, Ancient 
 Laws, pp. 507, 509, 510, &c. The regulations of Atlielstan (ii. § 14), 
 Edgar (iii. § 8) and Etlielred (iv. § 6) respecting coin, may be comjiared 
 with those of Lewis the l^ious (P>aluze, i. 432, 500), and Charles the liald 
 (ibid. ii. 120, 121). Cf. botli with the Homan Law (Just. Corl. ii. § 24"), 
 from whicli tliey were doubtless derived. The law against holding gemots 
 on Sundays and festivals (I'jthelred, v. 13; Canute,!. 15) also resembles 
 that of (Jharles the Great (Baluze, i. 183) and Charles the Bald (ibid. ii. 
 140, 141).
 
 VII.] The Kingdom under Ed<jar. 207 
 
 idea of the king is scai'celv recognisable, Avhilst the influence of Similar ter.* 
 
 , . . ileiicies in 
 
 long-established organisations, of settled homes, and hereditary Vrank and 
 jurisdictions, was producing a territorial system of government history. 
 unknown to tlie race in its early stages. A strong current of 
 similar events will produce coincidences in the history of nations 
 whose whole institutions are distinct ; much more will like 
 circumstances force similarly constituted nations into like expe- 
 dients ; nay, great legislators will think together even if the 
 events that suggest the thought be of the most dissimilar 
 character. No amount of analogy between two systems can by 
 itself prove the actual derivation of the one from the other. 
 
 79. Althoufjh the progress of the Anglo-Saxon system, from Formula of 
 the condition in which its whole organisation depends on per- ment. 
 sonal relations to that in which everything depends on territorial 
 ones, is marked at each step by some change in the royal power, 
 it is better described in this formula than as a progress from 
 democracy to monarchy, or from a democratic to an aristocratic 
 monarchy, or from alodialism to feudalism. The growth of 
 the royal power was theoretical rather than practical ; what it 
 gained on one side, it lost on another. The king became the 
 .source of justice, the lord and patron of his people, the owner of the 
 public lands ; but he had almost immediately to part with the sub- 
 stantial exercise of the powers so appropriated. By the grants of 
 land, constantly increasing in number, the royal demesne was 
 continually diminished, and the diminution of royal demesne made 
 the taxation of the people the only available means of meeting 
 public emergencies. The immunities which, by grant or by pre- Diminution 
 scription, were vested in the holders of bookland, actually with- real powers, 
 drew the profits and powers of jurisdiction from the source from 
 which they themselves emanated. The patroi age or lordship 
 which was to unite the king more closely than ever before with 
 the people, was intercepted by a number of mesne lordships and 
 superiorities, which kept them in reality further asunder. 
 
 Edgar bad perfected so far as we can see the theory of royalty. Royalty 
 He had collected, we are told, a fleet of not less than 3600 ships, highest 
 which every summer he reviewed and exercised in circumnavi- fedgar. 
 gating Britain, thus providing for present defence and for the
 
 208 
 
 Constitutional History. 
 
 [chap. 
 
 Edgar's 
 
 admiuistra- 
 
 tion. 
 
 His legisla- 
 tion. 
 
 maintenance of permanent discipline. The winter and spring 
 he devoted to judicial circuits, in which he traversed all the 
 provinces of the English, and accurately inquired how the 
 magistrates observed the laws of the nation and his o^ti 
 decrees, that the poor might not suffer injury or oppression 
 at the hands of the mighty ^ Possibly the tradition is brighter 
 than the reality, for the evil times that followed may well have 
 suggested an exaggeration of past blessings. But the spirit of 
 Edgar's legislation is good. The preamble of his secular laws 
 declares that every man shall be worthy of folkright, poor as 
 well as rich ; and the penalties for unrighteous judgment, with 
 the promise of redress bj; the king in tlie last resort, imme- 
 diately follow ^. With his death the evil days began at once. 
 The strong men whom he had curbed to his service, took ad- 
 vantage of the youth and weakness of his sons ; and internal 
 divisions rendered the kingdom of Ethelred an easy prej^ to the 
 Danes. The real benefit of the changes of the preceding cen- 
 tmy fell into the hands of the great ealdormen, and through 
 Increase of them to the thegns. The local jurisdictions m-ew : the feelinsc 
 
 the jjower of ... i • i i i i • • , i 
 
 the great ot national union wnicn had been springing up, was thrown 
 back : the ti'ibal divisions had become territorial, but they were 
 divisions still. The great lords rounded off their estates and 
 consolidated their jurisdictions : each had his own national and 
 ecclesiastical policy. The Mercian Elfhere banished the monks 
 and replaced them with married clerks ; the East Anglian Ethel- 
 win, God's friend, and the East-Saxon Brihtnoth, drove out 
 the clerks and replaced the monks ^. Where ecclesiastical order 
 was settled by the local rulers, notwithstanding the strong hand 
 of Dunstan, it was scarcely to be expected that temporal liber- 
 tics could be sustained by Etheb-ed. Another Danish inroad 
 
 ' Florence of Worcester, a.d. 975. Edgar's judicial circuits were copied 
 by Canute; Hist. Kamsey (ap. (jale), p. 441 : and they may have been 
 copied from tiie practice of Alfred ; Asser, M. H. 15. 497. 
 
 ^ E<li:ar, iii. § i ; ' Volo ut omiiis homo sit diynua juris publici, pauper et 
 dives, <iuicun(iuu sit, et eis justa judicia jiidiccntur ; et sit in cmendationibus 
 remihsio venialis apud Douui et a])ud sacculum tolerabilis.' The latter 
 clause is re-echoeil in the charters of Ht iiry I and .lohn ; and may be traced 
 funlier back in the legislation of Alli'ed. LI. Introd, § 49. 7. 
 
 ^ Flor. Wig. A.D. 975.
 
 VII.] Permanence of Ancient Customs. 209 
 
 seemed needed to restore the state of things that Edgar had 
 
 created. 
 
 80. One good result attended this apparent retrogi'ession. Premature 
 
 There had been centrahsation without concentration : all rights tion under 
 
 and duties were ranging themselves round the person of the king, 
 
 and there Avas a danger that the old local organisations might 
 
 become obsolete. Edgar had found it necessary to renew the law 
 
 of the hundreds and to forbid recourse to the king's audience 
 
 until the local means of obtaining justice had been exhausted ^ 
 
 His fleets and armies may not improbably have been organised 
 
 on a plan of centralisation. Such a tendency was almost a 
 
 necessity where the royal authority was becominij recoOTised The events 
 
 •' , . •' '' . that fol- 
 
 as imperial, or as limited only by a witenagemot of royal nomi- lowed his 
 
 i '_ '' ^ ■' . death had 
 
 nees in which no representation or concentration of local ma- the result of 
 
 1 1 mi /• 1 1 maintaining 
 
 chinery had a place. The fact then that the sfreat lords, by the local divi- 
 
 . » , . . , . . sionsand 
 
 extension of their own rights and the practical assertion 01 popular in- 
 stitutions. 
 independence, took to themselves the advantages of the change 
 
 and maintained their jurisdictions apart, gave a longer tenure of 
 life to the provincial divisions. The national unity was weak- 
 ened by the sense of provincial unity, and individual liberty was 
 strengthened against the time when the national unity should 
 be, not the centralisation of powers, but the concentration of all 
 organisation ; a period long distant and to be reached through 
 strange vicissitudes. In the maintenance of provincial courts and 
 armies was inherent the maintenance of ancient liberty. 
 
 For notwithstanding the series of developments which have Mainten- 
 
 ... . . . ance of pro- 
 
 been traced so far, the forms of primitive organisation still gene- vinoiai ad- 
 
 . . « ministration 
 
 rally survived. The warriors of the shire, whether free men of in iniiitar.v 
 
 matt<2rs. 
 
 full political right, or the church vassals, or the contingents of 
 the great thegns, fought as men of the shire under the ealdor- 
 man or his officer. The local force of Devonshire and Somerset- 
 shire was beaten by the Danes at Penho ; the East Anglians 
 and the men of Cambridgeshire fought apart at Ringmere ; the 
 men of Dorset, Wilts and Devon at Sherstone^. Even the 
 
 ' Edgar, iii. § 2 : ' Nemo requirat regeni pro aliqua causa nisi dorai 
 negetur ei omne (lignum recti vol rectum impetrare non possit.' 
 '■* Flor. Wig. A.D. looi, 1010, 1016.
 
 210 Constitutional History. [chap. 
 
 Political in- political attitude of the province was determined by the ealdor- 
 
 oftheearis^ man and the thegns. The Northumbrian earl Uhtred and the 
 
 West Saxon earl Ethelmar make their separate agreements with 
 
 Sweyn, and in so doing declare their independence of Etlielred ^. 
 
 Permanence But still more certainly in the local courts the old spirit of 
 of old •' 11 
 
 customs. freedom found room. The forms were the same whether the 
 
 king's gerefa or the lord's steward called them together : the 
 
 hundred retained its peace, the township its customs : the very 
 
 disruption of society preserved these things for the better daj's. 
 
 Old customs In the preservation of the old forms, — the compurgation by 
 
 contain the ^ '. . . i o J 
 
 seed of new the kindred of the accused, the responsibility for the wergild, 
 liberties. . » , . . 
 
 j the representation of the township in the court of the hundred, 
 
 j and that of the hundred in the court of the shire ; the choice of 
 witnesses ; the delegation to chosen committees of the common 
 judicial rights of the suitors of the folkmoot ; the need of 
 witness for the transfer of chattels, and the evidence of the 
 hundred or shire to the title to lands ; the report of the hundred 
 and shire as to criminals and the dutj- of enforcing their pro- 
 duction and punishment, and the countless diversity of customs 
 in which the several communities went to work to fulfil the 
 general injunctions of the law, — in these remained the seeds of 
 future liberties ; themselves perhaps the mere shakings of the 
 olive tree, the scattered grains that royal and noble gleaners had 
 scorned to gather, but destined for a new life after many days 
 of burial. They were the humble discipline by which a down- 
 trodden people were schooled to act together in small things, 
 until the time came when they could act together for great 
 ones. 
 Growth of 81. The growth of national character under these changes is 
 
 national li c c i • a i i i i • i 
 
 character, a matter 01 lurthcr interest. Altliough the national experience 
 was not enough to produce a strong and thorough feeling of 
 union, it had been equable and general. No part of England 
 was far behind any other in civilisation. The several kingdoms 
 liad been Christianised in rajjid succession, and the amalgama- 
 tion of the Danes had been so speedy as little to affect the 
 
 ' Flor. Wig. A.D. 1013.
 
 VII.] National Character. 31 1 
 
 comparative civilisation of the districts they occnpied after it Uniform 
 
 ^ . . , , , condition of 
 
 had once fairly begun. Northumbria had indeed never recovered England. 
 the learning and cultivation of her early days, but Kent and 
 Wessex had retrograded nearly as much during the dark cen- 
 tury that preceded Alfred. The depression of national life 
 under Ethelred was much the same everywhere. The free man 
 learned that he had little beyond his own arm and the circle of 
 
 his friends to trust to. The cohesion of the nation was greatest Greatest 
 
 iiii cohesion in 
 m the lowest ranges. Family, township, hundred, county held the lowest 
 
 together when ealdorman was struggling with ealdorman and the organisa- 
 
 king was left in isolated dignity. Kent, Devonshire, Northumbria, 
 
 had a corporate life which England had not, or which she could 
 
 not bring to action in the greatest emergencies. The witena- 
 
 gemot represented the wisdom, but concentrated neither the 
 
 power nor the will, of the nation. 
 
 The individual Englishman must have been formed under Effect of 
 
 , , , . J 1 • 1 national 
 
 circumstances that called forth much self-reliance and little history on 
 hearty patriotism. His sympathies must have run into very 
 narrow and provincial channels. His own home and parish 
 were much more to him than the house of Cerdic or the safety 
 of the nation. As a Christian, too, he had more real, more 
 appreciable social duties than as an Englishman. He could 
 accept Sweyn or Canute, if he would be his good lord and not 
 change the laws or customs that regulated his daily life. There 
 was a strong sense of social freedom without much care about 
 political power. It was inherent in the blood. Caesar had 
 seen it in the ancient German, and the empire of Charles and 
 Otto strove in vain to remodel it in the medieval aggregation 
 of the German-speaking nationalities ; Bavarian, Saxon, Fran- 
 conian, Swabian, were even less inclined to recognise their unity 
 than were the nations which now called themselves English. 
 
 The form however which this tendency took in the Anglo-Saxon Contract 
 
 • r. 1 11 with French. 
 
 of the eleventh century, is distinct from the corresponding phases 
 of French and German character. The Frenchman can indeed 
 scarcely be said as yet to have developed any national character; or 
 rather the heavy hand of Frank supremacy had not so far relaxed 
 its pressure as to allow the elastic nature of the Gallic element 
 
 p 2
 
 212 Constitutional History. [chap. 
 
 to assert itself ; and the historical Frank of the age is still for 
 the niost part German. The territory itself scarcely ventures 
 to take a collective name, and resembles the Gallia of Caesar 
 The growing more than that of Honorius. But the new life that is growing 
 is civic up is city life, and the liberties at which it gi'asps are collective 
 
 rural. rather than individual privileges. The iniral populations of 
 
 France are, as they were in the latter days of Roman rule, and 
 as they continued to be more or less until the revolution, a 
 people from whom social freedom had so long departed that it 
 was scarcely regretted, scarcely coveted ; to whom Christianity 
 had brought little more than the idea of liberty in another life 
 to be waited for and laboured for in the patient endui'ance of 
 the present. The true life was in the towns, where, in the in- 
 terests of commerce, or under the favour of some native lord 
 tempoi^al or spiritual, or under the patronage of a king who 
 would fain purchase help on all sides against the overwhelming 
 pressure of his too powerful friends, in the guild and the com- 
 mune, men were making their puny efforts after free action. 
 But it is as But this life had scarcely reached the surface : the acts of 
 
 yet scarcely . , "^ 
 
 conscious, kings and councils fill the pages of histoiy. Law was either 
 
 slowly evolving itself in the shape of feudal custom, or resting 
 on the changeless rock of Roman jurisprudence : the one un- 
 conscious of its development and calling forth no active partici- 
 pation in the people, the other subject to no development at all. 
 Even the language has scarcely declared itself, except in the 
 fragments of courtly minstrelsy. 
 ,g(/atrait The contrast between the Englishman and the native German 
 
 German. is not SO stroug. The disruptive tendency in the English state is 
 Ab.senccof little connected with primitive national divisions. There is little 
 nationality cvidcncc to sliow that tlic pooplc ill general felt their nationality as 
 EiiKiish. ^ West Saxons or Mercians, however much they might realise their 
 connexion as Yorkshiremen or men of Kent. The Saxon and 
 Bavarian of the continent had each their national policy: their 
 national consciousness was so strong that, like that of the Irish, it 
 constantly impressed itself even ujxm alien rulers. The Saxon 
 emperor iiiiide his nearest kinsman duke of Bavaria only to dis- 
 cover that he had made his son or brother a Bavarian instead of
 
 VII.] National Character. 213 
 
 nialdng the Bavarians loyal. The Swabian emperor sent a strcnirtii of 
 Swabian duke to Saxony in the idea that the Saxons would vinciai feel- 
 cling rather to the emperor than to an alien governor ; but the the Oer- 
 Swabian duke became forthwith a Saxon, and the loyalty that 
 was called forth was devoted entirely to the adopted ruler. 
 And these nations had their political and ecclesiastical aims ; 
 the Saxons prefciTed the pope to any emperor but a Saxon one ; 
 the Bavarians were ready to give up the empire altogether if 
 they might have a king of their own. In both there was a sin- 
 gular development of personal loyalty with a distinctly national And of 
 aim in the politics of the empire. But in the Anglo-Saxon loyalty, 
 history there is an equally singular lack of personal loyalty, 
 and a very languid appreciation of national action. Such loyalty 
 as really appears is loyalty to the king, not to the provmcial 
 rulers whom they saw more closely and knew better. The 
 ]ioetic lamentations of the chronicler over the dead kings 
 may perhaps expi-css the feeling of the churchmen and the 
 courtiers, but have nothing to answer to them in the case of 
 the provincial rulers. Tlie great earls had not, it would seem, 
 an hereditary hold upon their people ; and although they had 
 political aims of their own, these were not such as the people 
 could sympathise with. The popularity of Harold the son of 
 Godwin is only an apparent exception : it was won indeed by his 
 personal gifts and his ubiquitous activity, but carried with it 
 no feeling of loyaltv. Much even of that higher sentiment wliich Languid 
 
 i^i-i-i •! 11 fonscions- 
 
 was bestowed on his kmgly cai'eer was retrospective; they valued nessof 
 him most when he was lost. Throughout, the connexion between jjatriotisin 
 patriotism and loyalty, such patriotism and loyalty as exist, seems Enf<lisli. 
 to want that basis of personal affection which is so natural and 
 necessary to it. It is not on national glories, but on national 
 miseries that the Chronicler expatiates ; and the misery brings 
 out, perhaps moi'e than necessary, the querulous and helpless 
 tone of national feeling ; a tone which no doubt is called forth 
 by the oppressions of the Norman regime, but which might, 
 under the same circumstances, in the mouths of other men, 
 have been exchanged for one of very different character : the 
 song of the people emulous of ancient glories, girding itself up
 
 tinent. 
 
 214 Constitutional History. [chap. 
 
 for a strong and united effort after liberty. There is no breath 
 
 of this in the English remains of the eleventh centuiy, and the 
 
 history of the ill-conti'ived and worse executed attempts to shake 
 
 off the yoke of the Conqueror proves that there was little life 
 
 of the kind. Yet there was life ; although it lay deep now, it 
 
 would be strong enough when it reached the surface : nor had 
 
 the Conqueror any wish to break the bruised reed. 
 
 Little in- The lack of political aims which might give a stimulus to 
 
 in England provincial patriotism, was not compensated by ecclesiastical 
 
 eccleyiasti- partisanship, although the struggle between the seculars and 
 
 cal quarrels ^ ^ in, • t^ ■,? t 1 • ,1 
 
 of the con- regulars does nil a page m English history to the loss it may 
 
 be feared of more important matter. But the great disputes 
 between the imperial and papal pretensions that moved the 
 continent, found no echo here, and called forth no sympathy. 
 The English, like the continental Saxons, were proud of 
 their faitlifulness to Eome ; but it was a far distant Rome 
 that interfered very little with them, and that in the minds 
 of their kings and prelates had the aspect of a spiritual 
 city, very different from anything that was really to be found 
 there. The clergy had but a faint notion of the difference 
 between i)ope and antipope : even in doctrine they had scarcely 
 advanced with the age, and there w^ere points on which they 
 were falling as far behind E,oman orthodoxy as the British 
 bishops had been in the Paschal controversy. "When an English 
 archbishop visited Rome he spent his time in pilgrimages to holy 
 places : the pope received him with a splendid hospitality, that 
 shewed him only what it was desirable that he should see ; and 
 he came back rich in relics, but as poor as ever in political ex- 
 perience. The secular world was still farther away from him : 
 Canute, who had certain cosmopolitan and imperial instincts, 
 knew better than to involve England in foreign complications. 
 For a century and a half scarcely one Englishman has left his 
 name on record in the work of any foreign historian. 
 
 The reasons of this isolation are api)arent. The Englishman 
 had enough to do at home in constant resistance to a perse- 
 vering foe. But the isolation is not, as might be expected, 
 combined with intenscr patriotism. The fire of sympathy burns
 
 VII.] National Character. 215 
 
 in a very narrow circle : there is little to call forth or diversify 
 
 the latent energies. 
 
 But this is only one aspect of the Englishman. He may be Develop. 
 
 phlegmatic, narrow, languid in political development, but he js national life 
 
 neither uncivilised nor uncultivated. The isolation which has forms. 
 
 been fatal to political growth, has encouraged and concentrated 
 
 other energies. Since the time of Alfred a national literature 
 
 has been growing up, of which the very fragments that have 
 
 survived the revolution of conquest and many centuries of 
 
 literary neglect, are gi*eater than the native contemporaneous 
 
 literature of any other people in Eui'ope. No other nation National 
 
 possesses a body of history such as the Anglo-Saxon Bede and 
 
 the Chronicles. The theological literature, although slight in 
 
 comparison with that of the Latin-speaking nations, testifies, by 
 
 the fact that it is in the tongue of the people, to a far more 
 
 thorough religious sympathy between the teachers and the taught 
 
 than can be with any degree of probability attributed to the 
 
 continental churches. In medicine, natural science, grammar, National art 
 , . and domes- 
 
 geography, the English of the eleventh century had manuals m tic life. 
 
 their own tongue. They had arts too of their own ; goldsmith's 
 work, embroidery, illumination of manuscripts, flourished as 
 well as the craft of the weaver and the armourer. The domestic 
 civilisation of England, with all its drawbacks, was far beyond 
 that of France. The Norman knights despised, undervalued 
 and destroyed much that they could not comprehend. England 
 was behind Europe in some of the arts which they had in 
 common, but she had much that was her own, and developed 
 what she had in common by her own genius. She might be 
 behind in architecture, although that remains to be proved, for 
 much that we know as the work of Northern architects was 
 imitated from Roman models ; an imitation which, although it 
 later developed into systems far freer and nobler than anything 
 that had existed before, was still only advancing from its rudest 
 stage in France and Germany. England was slow in following 
 the architecture as she was in following the politics of the con- 
 tinent. It is seldom remembei'ed in comparing Norman and 
 Anglo-Saxon in point of civilisation, how very little the Norman
 
 21 6 Constitutional Jlistory. 
 
 Coutiast of broujijlit in comparison with what he destroyed, and how very 
 
 ISorman and or ./ 7 j 
 
 Eiigiisbman. little he brought that was his own. His law was Frank or 
 Lombard, his general cultivation that of Lanfranc and x\nselm, 
 far more Italian than native : in civilisation — taken in the truer 
 sense of the word, — in the organisation of the social life, in the 
 means of obtaining sjieedy and equal justice, in the whole domain 
 ■^ of national jurisprudence, he was far behind those whom he 
 despised with the insolence of a barbarian ; he had forgotten his 
 own language, he had no literature, his art was foreign and 
 purchased. But he was a splendid soldier, he had seen the great 
 world east and west, he knew the balance of power between 
 popes and emperors ; and he was a conqueror : he held the rod of 
 discipline which was to school England to the knowledge of her 
 own strength and power of freedom : he was to drag her into 
 the general network of the spiritual and temporal politics of 
 the world, rousing her thereby to a consciousness of unsuspected, 
 undeveloped powers : he was to give a new direction to her 
 energies, to widen and unite and consolidate her sympathies : 
 to train her to loyalty and patriotism ; and in the process to 
 impart so much, and to cast away so much, that when the time 
 of awakening came, the conqueror and the conquered, the race 
 of the oppressor and the race of the oppressed were to find 
 themselves one people ^. 
 
 * ' After the closing scenes of the great drama commenced at Hastings, 
 it ceased to exist as a national character ; and the beaten, ruined and de- 
 moralised Anglo-Saxon found himsolf launched in a new career of honour, 
 and rising into all the might and majesty of an Englishman. Let us reflect 
 that the defeats upon the Thames and Avon were probably nectssnry pre- 
 liminaries to victories upon the Sutlej.' Kemble, Cod. Dipl. iv. pref. vi. 
 Carlylc, Fred. II., i. 415, taking a different view of the Anglo-Saxon 
 temperament, says, ' without them (i. e. the Normans and Plantagenets) 
 what had it ever been ? a gluttonous race of Jutes and Angles, capable of 
 no grand combinations; lumbering about in pot-bellied equanimity; not 
 dreaming of heroic toil, and silence, and endurance, such as leads to the 
 high places of this universe and tlie golden mountain tops where dwell the 
 spirits of the dawn.' . .. ' Notliing but collision, intolerable interpressure (as 
 of men not perpendicidar), and constM{uent battle often supervening, could 
 have been ap])ointed those undrilleil Anglo-Sa.xons ; their jjot-bellied equa- 
 nimity its'jif continuing liable to pc;r]i(tu;d intinruption, as in the heptarchy 
 times.' Tliis recalls the words of earls Ralph and Jtoger, ' Angli sua solum- 
 modo rura colunt, conviviis et potationibus non pracliis intendunt.' Ord. 
 Vit. ap. Maseres, p. 304.
 
 CHAPTER VIII. 
 
 THE ANGLO-SAXON CHURCH. 
 
 82. Growth of the church organisation in England 83. Freedom from 
 
 the leaven of Roman imperialism. — 84. Monasticism. — 85. Divisions 
 of dioceses and origin of parishes. — 86. Tithes and endowments. — 
 87. Ecclesiiistical councils. — 88. Relations of the church to the states, — 
 89. Revival under Alfred. — 90. The eleventh century. 
 
 82. The conversion of tlie heptarcliic kingdoms during the The nation 
 seventh century not only revealed to Europe and Christendom the coti- 
 the existence of a new nation, hut may be said to have rendered its unity at 
 the new nation conscious of its unity in a way in which, under sion. 
 the influence of heathenism, community of language and custom 
 had failed to do so. The injunctions of Pope Gregory to the 
 first mission would seem to show that he knew the whole cluster 
 of tribes under the name of English \ and regarding them as one s. Greporys 
 nationality provided a simple scheme of ecclesiastical organisa- orpaiiisiiiK 
 tion for them ; there were to be two provinces each containing 
 twelve episcopal sees, governed by two metropolitans, one at 
 London, the other at York. But the comparative failure of the 
 Kentish mission after the death of Ethelbert, and the fact that 
 each of the seven kinjrdoms owed its evangelisation to a different 
 source, must have rendered the success of S. Gregory's scheme 
 problematical from the very first. Kent remained permanently Distinct 
 
 /-.,... 1 , » . • 1 ftr sources of 
 
 Christian under the successors of Augustine ; but VVessex was mission in 
 converted by liinnus, a missionary from Northern Italy, .Last klnifdouis. 
 Anglia by a Burgundiau, Northumbria and Mercia by Irishmen, 
 Essex and Sussex by the labours of Cedd and Wilfrid. It might 
 have seemed by the middle of the century that the heptarchic 
 
 1 Bede, H. E. i. 27. 29.
 
 2l8 
 
 Constitutional History. 
 
 [chap. 
 
 Causes of 
 division in 
 the early 
 English 
 church. 
 
 Policy of 
 Oswy and 
 Theodore. 
 
 Tlioodore's 
 scheme of 
 orf?anisa- 
 tioii. 
 
 divisions were to be reproduced, in tlie ecclesiastical ones. The 
 questions of discipline arising between the Roman and the Irish 
 converts lent an additional element of division. Each kingdom 
 might have had a church of its own, distinct in ritual and 
 traditions from all the rest. This danger was averted by the 
 kings OsAvy and Egbert when they joined in sending to Rome a 
 candidate for the see of Canterbuiy^ ; and Osw^'- himself, by re- 
 nouncing the Irish custom of Easter at the synod of Streoneshalch, 
 set the seven churches at peace on that most fruitful matter of 
 discord^. The policy of Oswy was thoroughly carried out by 
 Archbishop Theodore of Tarsus. Theodore's scheme of organisa- 
 tion opened the prospect of a more comj^lete unity than that of 
 S. Gregory : there was to be one metropolitan at Canterbui-y 
 under Avhom the whole of England was to be carved out into 
 new dioceses. OsAvy died before it could be seen whether he 
 and Theodore could woi'k together, and the merit of the scheme 
 actually carried out is due to the latter. This great prelate, 
 ■ himself a philosopher and divine of Eastern training, who had 
 accepted the Roman tonsure and credentials for his message of 
 peace, began his cai-eer by consolidating as well as he could the 
 several elements of life that had sui-vived the great pestilence of 
 A.D. 662. The Augustinian succession had almost, if not entix'ely, 
 died out^ Wilfrid and Chad, although they had ceased to 
 differ on points of discipline, represented in their history, their 
 sympathy and their claims, the two opposing schools. Theodore's 
 first care was to settle the personal disputes between them, and 
 through them to make permanent peace between the two sources 
 of mission. He next, in a.d. 673, at the council of Hertford, 
 combined the whole episcopate in a single synod, and provided, by 
 instituting an annual council of Clovesho*, for their permanent 
 cooperation. In a.d. 678 he divided Northumbria, and in the 
 following year Mercia also, into new dioceses : Wessex alone of 
 the larger kingdoms resisted ; but a few years after Theodore's 
 
 ' Bede, H. E. iii. 29. * Iljid. iii. 25. 
 
 ' It is questionable whether Boniface of East Amelia survived at the 
 arrival of Theodore ; but if so he must have died sliortly after: and 
 Daiuian of Rochester is described as having been lung dead Ibid. iv. 2. 
 
 ' Ibid. iv. 5.
 
 VIII.] Consol'ulatkm of the Churches. 219 
 
 death it was subdivided and the whole nation then ranged under Creation of 
 
 dioceses, 
 sixteen sees, subject to the metropolitan primacy 01 Canterbury. 
 
 The ari'angeraent was broken up shortly after, so far as to allow 
 to the see of York its title of archbishop and the obedience of 
 three suffragans ; but until the ISTorman Conquest the Northern 
 primate occupied a very subordinate position to his brother at 
 Canterbury. The institution of the archbishopric of Lichfield by 
 OfFa, in a.d. 787, threatened once more to break up the ecclesias- 
 tical system. The third metropolitanate however was very short- 
 lived\ The final subdivision of Wessex by Edward the Elder 
 completed the scheme of Theodore and the ten'itorial organisa- 
 tion of the dioceses, which has continued with some minor 
 changes and additions to the present day. 
 
 Besides devising this constitution, Theodore did his best to Other fea- 
 
 ... ,..,... , tures of 
 
 secure and promote cultivation and civihsation m other ways, Theodore's 
 
 Rolicv 
 
 especially by educating the clergy and tightening the reins of 
 moral and religious discipline. In this he was assisted by the 
 kings, without whose cooperation it could not have been 
 attempted, and who showed an amount of policy, judgment 
 and foresight, in these matters which could scarcely be looked 
 for in the rulers of a half-Christianised people, themselves as 
 much marked by internecine family bloodshed as by religious 
 devotion. In a single century England became known to Chris- 
 tendom as a fountain of light, as a land of learned men, devout 
 and unwearied missions, of strong, rich and pious kings. 
 
 83. The whole material fabric had to be built up from the Attitude of 
 foundation. Roman Christianity had j)asscd away from Eastern Christianity 
 
 Britain leaving few and indistinct traces. The greater part of Eni;hsh 
 
 .1 .1 
 the Britons either had never been converted or during the 
 
 attacks of the Saxons had fallen back into heathenism^. British 
 
 • Councils, &c. iii. 444, 445. 542-545. It lasted from a.d. 7S7 to A.D. 803- 
 The only archbishop of Lichfield was named Higbert. 
 
 ■■' Bede, H. E. iv. 13, 16, describes Sussex and the Tsle of Wight as 
 entirely heathen in the time of Wilfrid ; that is either the Christian Britons 
 had been exterminated or they had become henthonised. From the words 
 of Eddius, c. 40, referring to the same transacliun, it would seem that the 
 pagans were Saxons, ' gentis nostrae quaedam ])rovincia gentilis usque ad 
 illud tempus perseverans.' In the North of England the British clergy 
 had fled long before, deserting their property, which Wilfrid accordingly
 
 220 Constitutional History. [chap, 
 
 Christianity Lad taken refuge in the "Welsh mountains, and made 
 no attempt either to convert the conquerors or to maintain a 
 Result on spiritual hold on the conquered. There was no reason why the 
 themselves. English should not have become Christian when and as the 
 Franks did, but from the condition and temper of the native 
 population, on whom the continuance of the conquerors in 
 idolatry and persecuting cruelty brought ultimate extermination. 
 The positive paganism of the Anglo-Saxons Avas, as far as con- 
 cerns its mythology and ritual, in the most attenuated condition. 
 Scarcely was Christianity presented to them by the seventh-cen- 
 tury missions when they embraced it with singular fidelity and 
 singleness of heart. It could not have failed to prevail earlier 
 but for the attitude of the Britons, who, demoralised by desertion 
 and cut off from all the supports and advantages of communion 
 with foreign churches, had sunk into a despairing lethai'gy which 
 took for its main principle obstinate and indiscrirainating 
 isolation. 
 The English Anglo-Saxon Christianity was thus saved from the danger of 
 
 church s^vcd 
 
 from the inheriting the traditions and the burdens of the earlier system, 
 the Romano- The wave of conquest obliterated in all the South and East of 
 system. Britain every vestige of Romano -British Christianity. The 
 seats of the bishops had become desolated ruins : the diocesan 
 divisions, if they had ever existed, had been effaced with the 
 civil landmarks on whose lines they may have been drawn \ 
 And thus the wonderful vitality of imperialist traditions which 
 did so much to leaven the character and history of the churches 
 of France and the Rhincland, finding their way to light, in some 
 cases, after devastation and desolation scarcely less than that 
 which befel Britain, took no hold here. Escaping this, the 
 English church was saved from the infection of court-life and 
 corruption which forms nearly the whole history of the early 
 
 claimed for the Northumbrian cliurcli, Eddius, c. 17. Except on the 
 bordeis of Wessex and Mercia no traces of Britisli church organisation are 
 discoverahle from Uode. 
 
 ' Hadiian, Councils, i. \A^2, regards tlie attestation of the r.ritish bishops 
 at Aries in A.n. 314, as ])rovitig tlic (;xistence of dincesnn episcopacy in the 
 British church, as opposed to tlie Irish and Scottisli system 'of government 
 by aljljots, witli bisiiops as suljordinate officers discliarging episcopal func- 
 tions but without jurisdiction.' Wales also had diocesan bishops, and their 
 ]parochiac are mentioned by Ciildas. Ibid. p. 143.
 
 VIII.] Village Bishoiyncs. 321 
 
 Franco-Gallican church. Nov was it called on to act as the It escapes 
 protector of a down-trodden people, and undergo the risks that of becouiiiig 
 attend political and party religion ; it escaped the position forced 
 upon the bishops of France as secular officers, defensors, and 
 civil magistrates. And this fact is marked by the choice of 
 the sees of the bishops. They were in many cases selected in 
 full agreement with the German instinct of avoiding cities ; and 
 planted in villages or country monasteries which served as a 
 nucleus for the later towns ^. Hence, with some few exceptions, 
 the bishops were not local potentates in the way that the French 
 and German prelates were ^. They were members of the council 
 of the realm to which they belonged and sat also in the local 
 folkmoot with the prestige of wisdom and sanctity, with higher 
 wergild and oath incontrovertible ; but they did not become the Important 
 
 „,.,. ,, -ii position of 
 
 counts or dukes oi their dioceses, or entangle themselves with the the prelates 
 secular intricacies of the divided and bewildered nation whose secular com- 
 spiritual guides they were. Thus Archbishop Egbert sat at York 
 undistui'bed in his primacy during the reigns of five princes 
 bound in close relationship with himself, all of whom owed their 
 elevation and deposition to revolt. In Kent the archbishops 
 ruled from a.d. 740 to A.D. 789, during a period of so much 
 subdivision and anarchy in the kingdom that not even the 
 names of the competitors or the dates of their reigns have been 
 preserved. In scarcely any case was a bishop removed from his 
 see for political causes', until OSa attempted to disturb the 
 
 * In the cases of York, London, Canterbury, Rochester, Leicester, 
 Winchester, and possibly Sidnacester and Worcester, the mother church 
 was placed in the chief town of the kingdom. In the cases of Lichfield, 
 Lindisfarne, Hereford, Sherborne, Selsey, Elmham, Dunwich, Hexham, 
 villages were chosen or created for the purpose; and of the new sees of 
 Edward the Elder, AVells, Ramsbury, and Crediton were villages. 
 
 ^ The archbishops seem always to have had a more distinctly secular 
 position than the diocesan bi.shops. a consequence no doubt of their exercis- 
 ing jurisdiction in several kingdoms. They also coined Tiioney Ijearing 
 their own name and likeness. Tlie coins of the archbishops of Canterbury 
 run back to the middle of the eighth century, and those of York are only a 
 little later. Councils, &c. iii. 403. 
 
 ^ Tliei'e are very few cases of deposition of bishops in the Anglo-Saxon 
 church history at all. Arclibishop Theodore deposed Winfrith of Mercia for 
 disobedience, and Trumbert of Hexham also ; Bede, H. E. iv. 6, 28 ; Wil- 
 fi'id of York was banished and restored more than once ; Acca of Hexham 
 had to fly from his see in A.D. 732, probably in consequence of the disorders
 
 222 Constitutional History/. [chap. 
 
 balance and refoi'm the provincial an-angement of the dioceses. 
 The bishops were occasionally able to act as peacemakers, they 
 were probably always the friends and advisers of their kings, but 
 they were distinctly spiritual men and unfettered by secularity, 
 at least until the consolidation of the West Saxon hegemony. 
 Prevalence 84. The universality of nionasticism is the less pleasant side 
 
 of moDas- „,.. , ., , i'lii !• 
 
 tieism. of this picture ; and yet it may be questioned Avhether anything 
 
 but monasticism could have kept the church and clergy free 
 from the political combinations and dangers of the early time. 
 The original missionaries were nearly all monks; the mission 
 stations, the bishop's houses, and the homes of the country clergy, 
 were all monasteries ; not, it is true, in the strict sense of the 
 Benedictine rule, but suflBciently near it to claim all the rights, 
 privileges and immunities which were accorded to it. There were 
 great evils in this arrangement ; the privileges and immunities 
 were so great as to invite false brethren. Many houses in which 
 no rule or system of religion was observed, took the name of 
 monasteries to escape public burdens, and brought discredit and 
 reproach upon those that truly bore the name \ Even the regu- 
 larly endowed communities grew too rich, and in the time of Bede 
 engrossed too large a share of the public land ^ : in their wealth 
 they lost sight of the strict obligations of a religious life, so 
 that before the middle of the eighth century, a stringent reform 
 was demanded, and the secular were synodically divided from 
 the monastic clerks ^, But with all these drawbacks, the mon- 
 
 of Northumbria ; Wulfstan of York was set aside and imprisoned for 
 treason in An. 952, but afterwards restored; Brihthebn, tbe bishop ap- 
 pointed by Edwy to Canterbury, was set aside by Edgar. Of resignation 
 there are very many instances. 
 
 * Council of Clovesho, A.r>. 747, c. 5 : ' Monasteria, si tamen ea fas est 
 ita nominare, quae utique quamvis teniporibus istis propter vim tyrannicae 
 quandain avaritiae, ad religionis Christianae statum nullatenus inmiutari 
 possint ; id est a saecularibus, non divinae scilicet legis ordinationc, sed 
 humanae adinvcntioniH j)raesumptione, utcunque tenentur.' Councils, &c. 
 iii. 364. I'edc also speaks of innumerable places ' in mona-iterioruni ascripta 
 vocabuluni sed nihil prorsus luonasticae conversationis habentia.' Ep. ad 
 Ecgbert. ; Councils, iii. 319. 
 
 ^ 'Tot sub nomine nionasteriorum loca hi qui monachicae vitae prorsus 
 sunt exportes in suani ditionem acceperunt . . . . ut omnino desit locus ubi 
 filii nobilium aut emeritorum militum possessionem accipere possint.' Ibid, 
 p. 320. 
 
 ' Council of Clovesho, km. 747, cc. 4, 5, 19, 28. Still more strongly is it
 
 VIII.] Monasticism. 223 
 
 astic system did its work well, and that a most important work Real services 
 
 r 1 • T 1 • 1 1 p . . of the mon- 
 
 for the time, it colonised the country by means 01 missions, astic 
 furnished the supply of teachers in districts too poor and too 
 thinly peo2:)led to provide for their own clergy; and in a manner 
 levelled and equalised the country for parochial administration. 
 The monastic spirit has, further, had in all ages a singular 
 corporate consciousness ; and, besides the influence of common 
 councils and canonical customs, the fact that the clergy felt 
 their vows and spiritual relations to be a much more real tie 
 and basis of consolidation than mere nationality, must have 
 led to the elimination of provincial feeling amongst them. 
 The Mercian priest was free of all the churches. A Mercian or 
 West Saxon prelate might rule at Canterbury; the bishop of 
 East Anglia might be a Kentish man, and a South Saxon rule 
 at Rochester ^. 
 
 Whilst then the church formed a basis of national union, the No clerical 
 clergy escaped the danger of sinking into a hereditary caste, as 
 was the case largely both in the Irish churches and on the con- 
 tinent. Some marked traces of this tendency however are found 
 in England, in the age immediately preceding the Conquest^; 
 and that the escape was a narrow oue is shown by the number 
 
 insisted on in the decrees of the legatine councils of AD. 78" : ' Ut episcopi 
 diligenti cura provideant quo omnes canouici sui canonice vivant et niona- 
 chi seu monacliae regulariter conversentur.' Councils, iii. 450. This is the 
 first time the word canon occurs in an English document ; and the term 
 never became common until the eve of the Norman Conquest. 
 
 ' Instances of the international character of the priesthood, and espe- 
 cially of nionachisu), are abundant. Tatwin, the ninth archbishop of Can- 
 terbury, was a Mercian (Bede, H. E. v. 23), and after the time of Alfred 
 the archbishops were generally West Saxons. Pecthelm, the deacon of 
 Aldhelm, was made bishop of Whithern : Damian, a South Saxon, was 
 bishop of Rochester. Ibid. v. 13, iii. 20. In the North of England, and 
 during the later Anglo-Saxon period, the instances are less frequent ; 
 freedom of election, or local influence, would generally determine in favour 
 of a native candidate. 
 
 ^ On the descent of ecclesiastical property through an hereditary line of 
 priests, see Raine's preface to the Memorials of Hexham. ' The institution 
 of the Culdees, which was maintained by this custom, had probably spread 
 into the Northumbrian church. The particular Kelede.in laxity appears 
 to have been that, precisely like their Irish and Welsh congeners, they 
 lapsed into something like impropriators (to use the modern term), mar- 
 ried, and transmitting their church endowments, as if they had been their 
 own, to their children, but retaining, at any rate in most cases, their clerical 
 office.' Haddan, Councils, ii. 17S.
 
 224 
 
 Constitutional History/. 
 
 [chap. 
 
 Hereditary 
 descent of 
 clerical 
 estates. 
 
 Formation 
 of dioceses 
 out of the 
 early king- 
 doms. 
 
 of early charters, wliich distinctly prove tlie descent of the half- 
 secular monastic estates through a series of generations, in 
 which either clerical celibacy was unknown, or the successive 
 heads of the monasteries must have delayed ordination until 
 they became fathers and mothers of families large enough to con- 
 tinue the succession. These occur throughout the history of the 
 early Anglo-Saxon church, and must not be i-egarded as a mark 
 of monastic decadence, though distinctly an abuse \ The royal 
 and noble monasteries were clearly regarded as family benefices, 
 for which the only requisite was the assumption of orders or the 
 taking of vows ; they served as places of retii-ement for worn- 
 out statesmen and for public functionaries — kings, queens, and 
 ealdormen, whose forced seclusion gave to their retreats some- 
 what of the character of reformatories ^. 
 
 85. The development of the local machinery of the church 
 was in a reverse order to that of the state ; the bishoprics being 
 first formed, then the parishes ; and at a much later period, the 
 archdeaconries and deaneries. The original bishoprics of the 
 conversion were the heptarchic kingdoms; and the see was in 
 some instances the capital. Tlie kingdom of Kent formed the 
 dioceses of Canterbury and her suffragan Rochester ; Essex was 
 the diocese of London : Wessex that of Dorchester or Winchester ; 
 Northumbria that of York ; East Anglia that of Dunwich ; the 
 
 * See, for example, the charters referring to monasteries at Fladbury ; 
 Sture and Withington, in the Cod. Dipl. xxxiii, cxlvi, ccxv; Ixxx, exxvii ; 
 Ixxxii, cxxiv. In one case tlie principle is laid down thus : Abbot Headda 
 left his moiiastery at Onnanford to the see of Worcester, under condition 
 ' quod mei haeredes in mea gencalofjia in ecclesiastico gradu de virili sexu 
 percipiant, cpianidiii in niea prosapia tarn sapiens et praesciens inveniri 
 potest qui rite et monastice ecclesiasticain norinam regere queat, et nun- 
 quam potestati laicoruin subdetur.' Ibid, clxix. Benedict Biscop thought 
 differently ; he dechired that he would rather his monastery should become 
 an eternal solitude than that his brother sliould be elected abbot, not having 
 entered the way of truth. Bede, Hist. Abliat. c. 9. It was forbidden also 
 by Theodore, Penit. ii. 6 : ' Ipse non potest aliquem ordinare de suis pro- 
 pinquis.' 
 
 ^ Abundant instances, in which the retirement can scarcely be regarded 
 as voluntary, may be found in Simeon of Durham's annals of the eighth 
 century. An adulteress may retire to a monastery. (Theoil. Penit. ii. H.) 
 The thief has a choice between a monastery and slavery. Ibid. i. 3 : ' Aut 
 intret in monasterium Deo servire aut humanum subeat servitium.' Ibid, 
 i. 7 • ' Eat in monasterium et poeniteat us(iue ad mortem.'
 
 viii.] Bioceses and Tarishcs. 225 
 
 site of the original Mercian see is not fixed, but within a few 
 years of the conversion it was placed by S. Chad at Lichfield. In The diocese 
 all cases, for a short time, the diocese coincided with the king- coincided 
 (lorn, and needed no other limitation ; the court was the chief kingdom. 
 mission-station, and sent out monks or priests to convert the 
 outlying settlements. There were as yet very few cliurches : Simplicity of 
 crosses were set up in the villages and on the estates of Chris- tiou. 
 tian nobles, at the foot of which the missionaries pi-eached, said 
 mass, and baptized \ The onl}"- officer of the bishop was his 
 deacon, who acted as his secretary and companion in travel, 
 and occasionally as interpreter. The bishop's house, however, 
 contained a number of clerks, priests, monks and nuns, and was 
 both a home of retreat to the weary missionary and a school 
 for the young. These inmates lived by a sort of rule, which 
 was regarded as monastic, and the house and church were the 
 monasterium or minster.. Gifts of land were at this very early Early en- 
 stage bestowed both on the bishop's minster and on others, 
 which, although under his governance spiritually, were less ex- 
 clusively his own, having tlieir abbots and abbesses with full 
 powers of economical administration. These houses were fi'e- 
 (juently of royal foundation, ruled by persons of noble blood ; 
 some of them contained both male and female votaries, and 
 might be ruled by persons of either sex'^. 
 
 When archbishop Theodoi-e undertook to organise the church, Scanty 
 
 materials 
 
 he found little more than this to work on. He found dioceses for Theo- 
 
 dors's work, 
 identical with kingdoms ; no settled clerg)"^, and no definite terri- 
 torial subdivisions. His first measure was, as we have seen, to 
 
 ' ' Quia sic mos est Saxonicae gentia, quod in nonnullis nobiliura bono- 
 rumque hominum praediis, non ecclesiam sed sanctae crucis signuin Domino 
 dicatum cum magno honore almum, in alto eroctuni, ad coinmodani diurnae 
 orationis sedulitateui solent habere.' V. S. Willihaldi, Mab. AA. SS. saec. 
 iii. pt. 2, p. 3.^4. Tliis is late in the eightli century. Bade describes the 
 building of churches throughout Northumbria under Oswald, H. E. iii. 3 : 
 • Construebantur ergo ecclesiae per loca, confluebant ad audiendum verbum 
 populi gaudentes, donabantur regio munere possessiones.' 
 
 ^ These mixed monasteries are animadverted on but not forbidden by 
 Theodore, Penit. ii. 6 : ' Non licet viris feminas habere monachas neque 
 feniinis viros, tamen non destruamus illud quod consuetudo est in hac 
 terra.' Tlie custom was perhaps derived from Ireland. S. Hilda's mon- 
 astery at Whitby is the most famous instanofe. Tlie practice seems to have 
 subsisted until the ninth century. 
 
 Q
 
 226 
 
 ConstiUit'wnal Histori/. 
 
 [chap. 
 
 Subdivision break up the dioceses ; and in doins' so, he followed the lines of 
 
 ot dioceses ^ o ^ 
 
 on the still the still existins: territorial or tribal arrangements which had 
 
 earlier pro- ^ ^ 
 
 vincial lines, preceded the creation of the seven kingdoms. East Anglia was 
 first divided between the northern and southern divisions of the 
 folk ; the former with its see at Elmham, the latter clinging to 
 Dunwich. Northumbria followed ; York, the capital of Deira, had 
 already put in its claim, according to the direction of S. Gregory, 
 and had its own bishop. Bernicia remained to Lindisfarne and 
 Hexham ; and the Picts had a missionary bishop at Whithern : the 
 Lindisfari, of modern Lincolnshire, who at the moment of the 
 division were under the Northumbrian king, received a bishop 
 with his see at Sidnacester. Next, Mercia was divided ; the re- 
 covered province of Lindsey was recognised as a new diocese ; the 
 kingdom of the Hwiccas, which still existed as an under-kingdom, 
 furnished another with its see at Worcester ; North and South 
 Hecana had their bishop at Hereford, and the Middle Angles 
 theirs at Leicester. Wessex broke up after Theodore's death ; 
 Sussex, which now was permanently subject as a kingdom, was 
 made the diocese of the mission see at Selsey ; the kingdom of 
 Wessex proper was divided by the forest of Selwood into two 
 convenient divisions, of which the Western half had its see at 
 Sherborne, Winchester remaining the see of the Eastern half, 
 with a sort of primacy of its own, as the mother church^. 
 
 The sul)division of the dioceses was followed by a great de- 
 velopment of mouasticism ; the monastery continued to be the 
 typical church settlement, and the monastic history casts almost 
 all other into the shade. Still we may learn from Bede that the 
 country churches were also multiplied, and local provision of 
 some sort was made for the village clergy^. What measures 
 
 ' The dates of the foundation of these sees are as follows : Canterbury, 
 A.D. 597 ; London and Rocliester, A.D. 604 ; York, A.U. 625, restored in 
 A.D. 664 and 678, and endowed with the pall in A.D. 735; Dunwich, in 
 A.D. 630 ; the see of Wessex, at Dorchester, A.D. 634 (afterwards at Win- 
 chester); Lindisfarne, A.D. 635; that of Meroia, A.D. 656, settled at Lich- 
 field in A.o. 669. In A.D. C173 Theodore instituted the see of Elmham ; 
 in A.D. 676, Hereford ; in A.D. 678, Sidnacester and He.\ham ; in a.d. 680, 
 Worcester and Leicester; in A.D. 681, Whithorn. In a.d. 705 Sherborne 
 was foundc'<l; and in a.d. 709, Selsey. 
 
 * Bede ur!.,'(;s on Ef^hcrt the importance of tliis ; 'nccessarium satis est ut 
 plures tibi sacri operis adjutores adsciscas, pics))yteros videlicet ordinando 
 
 Great dc- 
 vf'loiJiiK nt 
 of monas- 
 ticisui.
 
 viir.] Oriffin of Parishes. 227 
 
 Tlieodorc, who is the traditional creator of the parochial system ^ Oriranisa. 
 took iu this direction can only be conjectured : it is unnecessary r'arishes. 
 to suppose that he founded it, for it needed no foundation. As 
 the kingdom and shire were the natural sphere of the bishop, so 
 was the township of the single priest; and the parish was but the 
 township or cluster of townships to which that priest ministered^. 
 The fact that the two systems, the parish and the township, have 
 existed for more than a thousand years side by side, identical in 
 area and administered hj the same persons, and yet separate in 
 character and machinery, is a sufficient proof that no legislative act 
 could have been needed in the first place; nor was there any lay 
 council of the whole nation which could have sanctioned such a 
 general measure. Considering, moreover, the thorough harmony 
 of church and state in these ages, any legislation would probably 
 have altogether sunk one of tlie two systems in the other. The The parisii 
 parish, then, is the ancient vicus or tun-scipe regarded eccle- ship in its 
 siastically. As many townships were too small to require or tical cha- 
 to support a separate chui'ch and priest, many parishes contain 
 several townsliips ; but the fact of a township lying partly in 
 one parish and partly in another, without being very uncom- 
 mon, is rare enough to be exceptional, and may generally be 
 accounted for by more recent local history, 
 
 86. The maintenance of the clergy thus settled was provided Mainten- 
 chiefly by the offerings of the people : for the obligation of tithe clergy. 
 in its modern sense was not yet recognised. It is true that the 
 duty of bestowing on God's service a tenth part of the goods 
 was a portion of the common law of Christianity, and as such 
 was impressed by the priest on his parishioners^. But it was 
 
 atque instituendo doctores qui in singulis viculis praedicando Dei verbo, et 
 consecrandis mysteiiis coelestibus ac maxima porasj^endis sacri baptismatis 
 oflSciis, ubi oppoitimitas ingruerit, insistaut.' Ep. ad Ecgb. c. 3. 
 
 ' Elmham, ed Hardwick, pp. 285, 2S6 : ' Excitabat fideliiira devotionem 
 et vohmtateiT), in quarunilibet provinciarnm civitatibus necnon villis, eccle- 
 sias fabricandi, parochias distinguendi, assensus eisdem regios procurando, 
 ut (]ui sufficientts essent et ad Dei honorem pro voto haberent super pro- 
 prium funihim ecclesias construere earundem perpetuo patronatu gaude- 
 reiit.' This is mere tradition or invention. 
 
 '^ Above, p. S;. 
 
 ^ Titlies are mentioned by Theodore in the genuine Penitential, in a w"ay 
 that proves the duty of making the payment, but not the right of the clergy 
 
 Q 2
 
 228 
 
 Constitutional History. 
 
 [chap. 
 
 Oriarin of 
 Tithes. 
 
 Legislation 
 on the 
 subject of 
 Tithes. 
 
 not possible or desirable to enforce it by spiritual penalties : nor 
 Avas the actual expeuditm-e determined except by custom, or by 
 the will of the bishop, who usually divided it between the church, 
 the clergy, and the poor. It was thus precarious and uncertain, 
 and the bestowal of a little estate on the church of the township 
 was probably the most usual way of eking out what the volun- 
 tary gifts supplied \ 
 
 The recognition of the legal obligation of tithe dates from the 
 eighth century, both on the continent and in England. In 
 A.D. 779 Charles the Great ordained that every one should pay 
 tithe, and that the proceeds should be disposed of by the bishop^: 
 and in a.d. 787 it was made imperative by the legatine councils 
 held in England, which being attended and confirmed by the 
 kings and ealdormen had the authority of witenagemots ^. From 
 that time it was enforced by not unfrequent legislation. The 
 famous donation of Ethelwulf had nothing to do with tithe*; 
 but almost all the laws issued after the death of Alfred contain 
 some mention of it. The legislation of Edgar is somewhat 
 minute on the subject : directing the tithe of j'oung to be paid 
 at Whitsuntide, and that of the fruits of the earth at the 
 autumnal equinox, thus testifying to the general devotion 
 
 to the sole use of them : ' Presbiter (or presbitero) decimas dare non cogi- 
 tur." Lib. ii. 2. 'Tributnm ecclesiae sit, sicut consuetudo provinciae, id est 
 ne tantum pauperes inde in deciniis aut in aliquibus rebus vim patientur. 
 Decimas non est lepitimum dare nisi pauperihus et ]>eregrinis, sive laici 
 suas ad ecclesias.' Lib. ii. 14. Bede praises Bisliop Eadberct of Lindis- 
 farne, as ' niaxime eleemosjTiarum operatione insignia, ita ut juxta legem 
 omnibus annis dccimani non solum quadrupedum verum etiam frugum 
 omnium attpie jioniorum, necnon et vestimcutoruni partem pauperibus 
 daret.' Hist. Eccl. iv. 29. In the laws of Edward the Confessor the obli- 
 gation is alleged to liave been introduced by Augustine, that is, at the 
 Conversion. 
 
 ' See Cap. de partibus Saxoniae, Baluze i. 183, Art. 15, which shows 
 that this was the rule approved by Charles ; ' ad unamquamque ecclesiam 
 curtem etdiios niansos turrae pagen^^es ad ecclesiam recurrentes condonent, 
 et inter centum viginti homines nobiles et ingenuos, similiter et litos, 
 servum et ancillam cidem ecclesiae trii)nant.' 
 
 ^ Cap. A.I). 779, Art. 1 : ' De dccimis, ut unusquisque suam decimam 
 donet atf|ue per jussiouem pontificis dispcnscntur.' Baluze i. I42. 
 
 ^ ' Prat cipimuH ut omtics studcant do onniibus quae jiossident decimas 
 dare, quia H|)f'ciale Domini Dei est.' C.-in. 17; (!ouncils, &c. iii. 456. 
 
 * Exc(;pt as showing the sanctity of the tenth portion. >Soe Councils, &c. 
 iii. 636 aq. ; Kemble, 8axous, ii. 481-490. .See p. 237 below.
 
 VIII.] Tithes. 229 
 
 of the tithe of increased The lec^al determination of the church Law of 
 to which the tithe Avas to be paid was not yet settled. The 
 same king directs that it shall be paid to the ' eald mynster,' or 
 mother church to which the district belongs ^ ; the tliegn who 
 liad on his bookland a church with a buryingplace was bound 
 to give a third of his own tithe to that church ; if there were no 
 burying])lace, his gift to the priest might be what he pleased ^ : 
 the cathedral church being it would seem the normal recipient, 
 and the bishop the distributor. But the actual determination 
 was really left very much to the owner of the land from Avhich 
 the tithe arose ; and although in the free townships it must have 
 become the rule to give it to tlie parish priests, the lords of 
 franchises found it a convenient way of making friends and 
 ])rocuring intercessions to bestow it on monasteries. This cus- 
 tom became vei-y frequent after the Norman Conquest, and it 
 was not until the council held in a.d. 1200 that the jirinciple 
 Avas summarily stated that the parochial clergy have the first 
 claim on the tithe even of newly cultivated lands *. Even after 
 that time, by the connivance of bishops and popes, the appro- 
 ])riation system worked widely and banefully. Besides the tithe, 
 the clergy received, under the name of cyric-sceat or church- 
 scot, a sort of commutation for firstfruits paid by every house- 
 holder; and sawl-sceat, soul-scot or mortuary-dues, with other 
 occasional spontaneous ofterings ''. 
 
 Rapidly and regularly as the organisation and endowment of Bede's de- 
 
 tlie church proceeded under iheodore and his successors, it was f-'i-essand 
 
 11 • !• ,T • 1 • 1 •! 1 reform, 
 
 not such as to satisfy the pious longings or to silence the severe 
 
 judgment of Bede. He saw that in the northern province much 
 
 greater subdivision was necessary ^, and he viewed with fear and 
 
 anger the corruptions of the monastic life, which the rich and 
 
 » Edgar, ii. § 3. 2 Tbid. §§ 1,2. ^ Ibid. § 2. 
 
 * Can. Westiu. 9 ; Johnson's Canons, ii. 89. 
 
 * The chiircli-scot was paid at Martinmas, Ini, § 4; 'according to the 
 hearth that a man is at at midwinter,' Ibid. § 61 ; i.e. in the township 
 where he keeps Christmas. See, on the whole subject, Kemble, Saxous, 
 vol. ii.; Schmid, Gesetze, 545 sq. 
 
 * See especially the letter to Archbishop Egbert, c. 5 ; Councils, &c. 
 iii. 319 ; and compai-e the appeals of Boniface to Ethelbald, King of Mercia, 
 ibid. 350-356.
 
 230 
 
 Constitutional History/. 
 
 [chap. 
 
 Jliscliievoiis 
 elfeets of 
 llercian su- 
 premacy. 
 
 Archbishop- 
 ric of 
 Lichfield. 
 
 liome-scot. 
 
 Ecclesia.sti- 
 ciil councils. 
 
 Pre.serice of 
 kiiijts and 
 eaidormen. 
 
 vicious were perverting in a strange degree. But the bright 
 days of the early church were ah-eady over, and notwithstand- 
 ing the efforts of Cuthbert of Canterbury in his councils, and 
 of Egbert of York in court, school, and study, the evil days of 
 Mercian supremacy told heavily on the church. These reached 
 their climax Avhen Offa in a.d. 787 proposed and carried out the 
 division of the province of Canterbury, established a new arch- 
 bishopric at Lichfield to which the sees now included in the 
 Mercian kingdom should pay obedience, and obtained by a liberal 
 tribute to Rome the papal authorisation of his plan\ This pay- 
 ment, — for there is a want of evidence as to the institution by Ini 
 of a similar tribute for the maintenance of the English school at 
 Rome, — is probably the origin of the Rom-feoh, or Peter's pence, 
 a tax of a, penny on every hearth, which was collected and sent 
 to Rome from the beginning of the tenth century, and was a 
 subject of ft'equent legislation^. But the archiepiscopate of 
 Lichfield scarcely survived its founder. 
 
 87. The ecclesiastical councils of the heptarchic period were 
 either national, such as those of Hertford and Hatfield under 
 Theodore^, or provincial, as was generally the case after the 
 vindication of the metropolitical claims of York under Egbert. 
 Of ecclesiastical assemblies of the single kingdoms there are 
 perhaps occasional traces, but they are scarcely distinguishable 
 from the separate witenagcmots. All these councils in many 
 respects resemble the witenagcmots. The presence of the kings 
 and eaidormen seems to have been by no means unusual*: and 
 although actual partici])ation by the latter in ecclesiastical legis- 
 lation may not have been permitted, their confirmation and 
 attestation of the results was not undervalued. The bishops, 
 
 ' Tlie annual tribute of ^fij mancu.ses was, accordini^ to Pope Leo III, 
 bestowed by OH'a in tlie legaline council of a.d. 787. Councils, &c. iii. 445. 
 A similar benefaction of Ethelwulf (W. Malmesb. ; Councils, iii. 646) is 
 also reconlefl. 
 
 ^ Edw. a7id Cliitlir. 6, § i ; Ethelred v. 11. It was ])aid on the feast of 
 S. Poter and S. J'aul, June 29. 
 
 •■' Ikd.;, (I. E. iv. 5, 17, 18. 
 
 ' At the Icgatine council of A.D. 787 Offa was present 'cum senatori- 
 bus terrae ;' Councils, &c. iii. 460. At the council of Chelsea in A.n. 816 
 Kenulf was present ' cum suis principibus, ducibus et optimatibus.' Ibid. 
 V- 579-
 
 VI II.] Church Councils. 231 
 
 liowevei', were the chief permanent element : abbots ai'e not Members 
 
 . . . orth'se 
 
 nnfrequently mentioned as attending, though not in large num- councils: 
 
 hers : and in one case, that of the Council of Clovesho of abbots. 
 
 A.i). 803, each bishop appears at the head of a body of diocesan 
 
 clergy, many of whom are abbots^. These are not necessarily to 
 
 lit' regarded as the heads of strictly Benedictine houses, but as 
 
 the rulers of churches which had lost much of the cenobitic 
 
 character, and answer rather to the holders of large family 
 
 l)referment or other benefices, like the mass-tliegns of the laws. 
 
 It was part of Theodore's plan that these assemblies should Places of 
 
 assembly. 
 
 be held every August at Clovesho^, a now forgotten place in 
 the Mercian kingdom, probably near London. But the rule, 
 although frequently observed as to place, does not seem to have 
 ])revailed as to time or frequency. Yet on the whole the coun- 
 cils are more numerous than could be expected in the unsettled 
 state of the kingdoms. Most of them are held on the confines 
 of the states, where the subjects of each king could at nightfall 
 retire into their own country. Such places were Brentford and 
 Chelsea, and most likely Clovesho also. As during this perio<.l 
 there could be no witenagemots of the whole nation, any 
 council at any of these places, or at which all or a majority of 
 the bishops were present, must be regarded as either an eccle- 
 siastical council pure and simple, or as a mixed gathering under 
 the eye of some king who at the moment was supreme in church 
 and state. 
 
 The subjects of discussion were various, but the strictly ecclesi- Subiects of 
 astical councils contented themselves with ecclesiastical legisla- 
 tion. They passed canons in which any interference with secular 
 law or custom is wisely avoided, and they never imitate the 
 Theocratic system of the Spanish councils with which in some 
 respects they ha\'e much in common. They seem also to have 
 exercised a friendly jurisdiction in suits for property between 
 difierent churches ; herein acting rather as arbitrators than as 
 judges, and probably expecting review or confirmation by the 
 folkmoot or witenagemot. Their legislation shows no sign of 
 needing any further confirmation, but from the frequency of 
 ' Councils, &c. iii. 546, 547. * Beue, H. E. iv. 5.
 
 233 Constitutional Hidory. [chap. 
 
 Harmony of ecclesiastical regulations in tlie general codes of the kings and 
 
 13.V unci 
 
 chiirch witan, it is certain that no jealousy as yet existed between the 
 two systems ; the bishops were members of both bodies, and did 
 not hesitate to accept the confirmation of the national council to 
 strengthen the pressure or increase the publicity of their own 
 enactments. 
 
 Power of the The judicial power and coercive jurisdiction of the gi'eat 
 
 the popular Spiritual of&cers are matters of further question. The bishops 
 covirts * 
 
 sat in the popular courts as they sat in the witenagemot, and in 
 
 in their own both With much the same power as the lay witan. They had 
 also temporal jurisdiction within the limits of their own fran- 
 chises, in which the legal process by compurgation and ordeal 
 was in no wise distinguishable from that of the hundred moot. 
 
 in peniten- They had further, as a result of that penitential discipline which, 
 
 pline; partly perliaps through the oriental training of Theodore, and 
 
 partly through the labours of the Irish missionaries, obtained 
 an early and general acceptance in the Anglo-Saxon church, a 
 powerful coercive machinery quite apart from the common law 
 or customs of the nation at large, for the enforcement of which 
 they must have been indebted to the pious assistance or neu- 
 
 ovor the trality of the laity. But between these two regions of judica- 
 ture there lay a class of suits, concerning the disputes and 
 offences of the clergy and the morals of the laity, with which it 
 
 hi questions would seem the bishops were esj^ecially charged. Unfortunately 
 our evidence on this head is very small. The Penitential of 
 Theodore contains a provision that the bishop s^hull determine 
 
 and others, the causes of the poor up to fift}^ shillings, the king if the sum 
 in question be greater. At the other end of the period, in 
 Domesday book, wo find among the Customs of Kent, that in 
 cases of adultery, the king is to have the man, the archbishop 
 the \v^man\ There is no reason to suppose that in such cases 
 any peculiar couit was provided. They would be tried in the 
 hundred-moot and shire-moot, and the bishop would claim his 
 
 ' The Law of Wihtrfcd orders the excomniunication of such offenders, § t,. 
 The penalty of the adultiTy of the yesithcunchnan goes to his hjrd, ' accord- 
 ing to ancient usage' Ihid. § 5. Alficd directs the excommunication of 
 the fugitive perjui'er ; JjI. Alfr. § i, and ("anutc also joins outlawry and 
 excommunication in his denunciation of evil doers.
 
 viii.] Jurisdiction of the Jii.shops. 233 
 
 share in the penalties as well as declare the law and the sentence Much of 
 
 • 1 1 1 • I rr- 11' 1 their juris- 
 
 of the judges^ : just as the kings officers would in cases where diction exer- 
 
 , . , , . 1 A 1 1 rr c cised in the 
 
 royal rights and interests were concerned. And the oiiences 01 popular 
 he clergy would be tried in the same way ; the special rules for 
 compurgation in their case being observed under the eye of the 
 bishop, who stood to them in the relation of lord and patron". 
 In contentious suits it is difficult to draw the line between ju- 
 dicial decision and arbitration ; the bishop with his clerks would 
 however be fully competent to arljitrate, and were probably fre- 
 quently called upon to do so. None of these generalisations 
 however cover the cases in which the spiritual offences of the 
 clergy, disobedience, heresy, drunkenness, and the like, called 
 for authoritative treatment : tliey would not come before the 
 popular courts, for they were not breaches of secular law, and \ 
 
 they were not crimes for which the penitential jurisdiction alone 
 
 was sufficient. For such, then, it is i)robable that the bishops Possible 
 
 . . . existence 
 
 bad domestic tribunals not differing in kind from the ecclesi- of separate 
 
 IIP 1 • ecclesiasti- 
 
 astical courts of tlie later ages^ and or matured canon law : m caJ courts. 
 
 which according to the common practice of the post-Nicene 
 
 clmich, the archdeacon'' as the bishop's officer executed the 
 
 sentence of his superior''; whilst for the enforcement of these 
 
 * See LI. Henr. I, vii. § 3. Tliis he would have to do in other causes in 
 which no specially religious principle was involved, as, for example, in cases 
 where tlie property of churches had been stolen, or their peace infringed. 
 It is observable that the very first of our written laws, Ethelb. § i, places 
 the property of the churches under the special protection of the law. 
 
 ^ If a priest kill a man his property is confiscated, and the bishop is 
 ordered to 'secularise ' him,. after which he is to be given up (to the relations 
 of the Aa\\\ ?) unless his lord will compound for his wer. Alfred, § 21. This 
 looks as if the clergy had some personal immunities which could not be 
 infringed until they were formally degraded. ITie bishop is indeed the 
 'mieg and mundbora' of clergy and strangers. Edw. and Guthr. § 12. 
 
 ^ The doom of the bishop is referred to in tlie case of a criminal priest, 
 in the law of Wihtrfed, § 6 ; Edw. and Guthr. § 4. If any one before a 
 bishop belie his testimony, he pays a fine of 120s ; Ini, § 13. 
 
 * The first per.son who is called archdeacon is Wulfred, who became arch- 
 bishop of Canterbury in a.d. 805, and who is so named in a charter of his 
 predecessor. Bede knew only the deacon as the bishop's officer : through- 
 out the period his office is simply ministerial. 
 
 ' The archdeacon is only once mentioned in the laws, ' If a priest disobey 
 the order of the archdeacon he has to pay twelve ores ; ' Nortliumbrian 
 Priest's law, § 6. The deans mentioned in the so-called laws of Edward 
 the Confessor, § 27, are also officers of the bishop. The territoricd deaneries,
 
 234 
 
 Constitutional History. 
 
 [chap. 
 
 Spiritual 
 sentences 
 enforced by 
 the secular 
 
 Peculiar 
 relation of 
 church and 
 state. 
 
 The West- 
 
 Siixon 
 
 period. 
 
 decisions the servants of the bishop were competent and suffi- 
 cient. In such circumstances it is probable enough that the 
 secular and ecclesiastical powers would act in concert : and even 
 if the national force were not called in to the assistance of the 
 clergy, it can scarcely be doubted that it offered no hindrance to 
 the execution of the spiritual sentence. The outlaw of God and 
 the outlaw of the king, the excommunicated man and the con- 
 victed criminal, are alike set without the protection of the peace. 
 
 The relation of the church to the state was thus close, 
 although there was not the least confusion as to the or<]janisa- 
 tion of functions, or uncertainty as to the limits of the powers of 
 each^. It was a state of things that could exist only in a race 
 that was entirely homogeneous and becoming conscious of po- 
 litical unity. The history, however, of the church of the united or 
 West-Saxon dominion, on which the fury of the Danes fell, and 
 which rose from ruin in closer union than before with the national 
 polity, has many features in marked contrast with the earlier and 
 simpler life of the heptarchic churches. 
 
 88. The rapid growth of the power of Egbert was the result 
 not merely of his own valour and policy but of the weakness of 
 the enemies with whom he had to contend : the same exhaustion 
 and incapacity for resistance which laid the nation open to the 
 Danes. Mercia sustained in the early years of Kenulf- some of 
 the glory that she had gained under Offii ; but the end of his 
 reign was inglorious, and a rapid and disputed succession of 
 
 however, as well as the territorial archdeaconries, are later than the 
 Conquest. The An^lo-8axon deans mentioned in the Chronicle and in the 
 lives of the saints are either monastic officers exercisin'^ discipline witldn 
 the house, like the later deans of colleges, or possibly the executors of the 
 spiritual authority of exem|)t monasteries, in the way in which the arch- 
 deacons executeil th(! sentence of the biKhoi)s. 
 
 ' lleligion, morality, and law seem to he regarded throughout the 
 l>criod as much tin; same thin'^. The principle stated by Tacitus that 
 among the ancient Germans, 'plus ibi boni mores valent (juam alibi bonae 
 lo;;es, is thus amplified by Alfred : ' Ex hoc uno judicio ])erpendi potest, ut 
 unicuicjue justum ju<licetnr ; vec opug est aliqao lihroJu(Ucl"Ji praeter hoc 
 fatiirari, fpiam no (piis alii judicet quod silji judicari nollet si judicium 
 lial)crctur sup(!r eum.' Tlie uiiaui Judirlmti is of course 'Quod vobis nou 
 vultis fieri non facialis aliis.' Alfr. Id. Intr. § 49. 6. 
 
 ^ Kemdf reigned from A.I) 7(j6 to Szi or 822 ; nearly twenty years con- 
 temporaneously with Egbert.
 
 VIII.] Puiver of Ihe Bishops. 235 
 
 kings after his death dcinivecl the kin')'d(;m of any hope of con- Orowthof 
 
 . . , ^ , •,,,., West-Saxon 
 
 tiuued independence. Kent was now only nominally a kingdom, power. 
 becoming a mere appendage to Mercia and Wessex in turn, with 
 a spasmodic effort between times to revive the ancient status. 
 The history of East Anglia is exactly parallel, sometimes under 
 Mercia, sometimes broken up under several ealdormen. North- 
 umbria continues the tale of revolution and anarchy which 
 marked her history in the preceding century. The royal power, 
 and with it the tribal nationality, was in suspension or solution. 
 One result of this was the supremacy of Wessex ; another was 
 prostration before the Danes ; the third was the throwing of 
 much power and secular work on the clergy, especially the Its effects 
 bishops, who represented the most permanent element of society ; church. 
 and a fourth, the consequence of the others, the general decline of 
 civilisation and learning. It was natural that in thoge kingdoms 
 in • which the church was strong, the extinction or other de- 
 feasance of the old royal houses should increase the importance increase of 
 
 tllG SGCulur 
 
 of the bishops. The Kentish church under archbishop Wulfred iniportance 
 had sustained a long and fatal dispute with Mercia, in which bishops. 
 appeals to the pope and emperor were discussed as a possible 
 solution. Not only had Canterbury succeeded in effecting the 
 humiliation of the rival archiepiscopate^ but on the death of 
 Cuthred, the brother and dependent of Kenulf, Wulfred is found 
 in open opposition to Kenulf; for seven years he contested with 
 him and his heiress the possession of the royal monasteries in 
 Thanet, and was at last victorious. Baldred, the king who 
 attempted to assert the independence of Kent during the 
 ^lercian troubles^, seems to have been in alliance with Wulfred, 
 and we may conjecture that the sturdy prelate submitted with 
 reluctance to the rule of Egbert although he also was of Kentish 
 descent. Archbishop Ceolnoth however, who succeeded AVulfred, 
 
 * Kemble, C. D. cexx. CounciLs, &c. iii. 596. In a council at London 
 Kenulf threatened to send Wulfred into exile ' et nunquam nee verbis 
 douiini papae nee Caesaris seu altering alicujus gradu hue in patriam 
 itermn recipissc.' 
 
 * Biildred was king from A.D. 823 to 825, when be was dethroned by 
 Egbert. He had attempted to secure the good will of the archbishop by 
 the gift of Mailing to Christ Church (Kemble, C. D. ccxl.) at the very 
 moment of his downfall.
 
 236 Constitutional Histori/. [chap. 
 
 was wise enough to throw himself into the arms of Egbert, even 
 
 if he did not, as is possible, owe his promotion to him^ ; and 
 
 Alliance of in A.D. 838 at Kingston a permanent alliance was concluded 
 
 tlie West- 
 Saxon kings between the church of Canterbury and the house of Cerdjc. 
 
 church of Ceolnoth undertook to maintain ' firm and unshaken friendship 
 
 ury. fj.j^j-,-^ henceforth for ever,' and received in return a promise of 
 
 perpetual peace and protection^. A similar agreement was 
 
 made at the same time with the church of Winchester : and 
 
 both were repeatedly confirmed by Ethelwulf^. 
 
 Decline of A similar state of things existed in the North of England. 
 
 the^North. Eanbald the archbishop of York, after a long struggle with the 
 king Eardulf, had seen him dethroned and a fugitive ; he was 
 restored by the intervention of the pope and emperor, but on the 
 immediate result the veil of ninth-century darkness settles down. 
 We know the consequences only from the Danish conquest of 
 the North. One or two letters of the succeeding archbishops 
 show that the light of learning was not quite extinct, although it 
 was becoming obscured by the superstitious and impious fabrica- 
 tions which were made possible by its decline. Whilst continental 
 scholars were still applying to England for manuscripts*, the 
 English bishops were puzzled with strange forms of heresy at 
 home. Nial the deacon was said to have risen from the dead 
 after seven weeks ; letters were spoken of, written by the hand 
 of God in letters of gold, and the whole court of Ethclwulf was 
 perplexed with the vision of a priest, portending grievous 
 calamities on account of the profanation of Sunday". 
 
 Decline of The same ])eriod is traditionally fixed for the extinction of 
 
 monachisin. ... , . . „ _ . 
 
 primitive monachisin tliroughout tlie nation^. It is now tor 
 
 tlic first time that we find the bishops in arms ; two West-Saxon 
 
 ' Robertson, Hist. Essays, 196, 200, conjectures that Ceolnoth was a 
 West Saxon in whose favour the Kentish Feologeld, who had been elected 
 to succeed Wulfred, was set aside. See Councils, &c. iii. (io(). 
 
 * Council of Kingston ; Councils, iii. 617. * Ibid. p. 619. 
 
 * Seu tlie letters of Lupus of Ferrieres to Ethelwulf, and Wigmund arch- 
 bishop of York ; Councils, iii. 634, 635, 648, 649. 
 
 ^ Letter of Egrcd Jiishop of Lindisfarne to Wulfsige archbishop of York ; 
 Councils, iii. 615. Aluuin had had to protest against tlie wearing of relics 
 byway of cliarins ; Epp. ed. Diininiler, pp. 719, 721. 
 
 * Prudentius Trecens. aji. Pertz, i. 433. Councils, &c. iii. 621. 
 ^ See the Anglo-Saxon Chronicle, A.u. 870.
 
 VIII.] Revival tinder Alfred. 237 
 
 prelates fell in the battle of Cliarmoutli in a.d. 835^ ; and bishop Tlie bisliops 
 Ealhstan of Sherbox-ne acted as Egbert's general in Kent in a.d. wiuriors. 
 825, and was one of the commanders who defeated the Danes on 
 the Parret in a.d. 845^. The same pi'elate thii-teen years later 
 took a leading part in the supplanting of Ethelwulf by his son 
 EthelbakP. Ethelwulf was a poor substitute for his father : his 
 pilgrimage to Rome, contemplated in his first year* and caiTied out 
 nearly at the end of his reign, his magnificent gifts to the pope^ 
 and his marriage with the daughter of Charles the Bald ^, are, with 
 , the exception of his famous Donation, the best-known parts of his 
 history. That celebrated act, the devotion of a tenth part of his The Dona- 
 
 . . , . ^ p tion of 
 
 private estate to ecclesiastical purposes, the relief of a tenth part Ethelwulf. 
 of the folkland from all payments except the trinoda necessitas, 
 and the direction that every ten hides of his land should provide 
 for one poor man or stranger, testifies to his piety and liberality '^. 
 Possibly the further subdivision of the West-Saxon dioceses was 
 begun under him : we find Ethelred the bishop of Wiltshire 
 appointed to the see of Canterbury by his sons*. This is the 
 age of Swithun also. But, notwithstandinor occasional flashes of Increased 
 
 _ _ ^ darkness 
 
 light, the darkness in church and state deepens. Alfred has to of the period. 
 
 * Chr. .Sax. a.d. 833. ' Ibid. a.d. 823, 845. 
 ■' Asser, V. Alfr. M. H. B. 470. 
 
 * Prud. Tree., Pertz, i. 433. Councils, iii. 621. 
 
 ^ Anastasius, Vit. Bened. III. ap. Mansi, xv. log, 1 10. It was on this 
 occasion, it is said, that he obtained from the pope a decree that English 
 penitents should no more be forced to work in chains ; T. Rudborne, in 
 Ang. Sac. i. 202. See Lappenberg, ii. 26. 
 
 " Ann. Bertin. Pertz, i. 450. Ealuze, ii. 209—212. 
 
 ' Councils, iii. 636 648. Kemble, Saxons, ii. 481-490. 
 
 ' Chr. Sax. a.d. 870. There seems to be no reasonable doubt that this 
 was finally carried out by Edward the Elder, who mentions in more than one 
 charter that he h.ad divided tlie old diocese of Winchester into two parts. 
 Cod. Dipl. mxc. &c. ; and we know from the lists of bishops drawn up in 
 the tenth century, that a further division almost immediately followed by 
 which the West-Saxon sees became five in number. Of the three new sees, 
 one, that of Ramsbury, had no cathedral, and was moved about in Wiltshire 
 and Berkshire, resting sometimes at Sunning, but finally joined to Sherborne 
 just before the Conquest. It may have existed in the same way before the 
 time of Alfred, and been a sort of sufi'ragan see to Winchester. The idea 
 of having a bishop to each shire of Wessex seems to have been in the mind 
 of the creator of the new sees ; Soniersetsliire had Wells, Dorsetshire, 
 Slierborne, Sussex Selsey, Devonshire Crediton, Cornwall Bodmin or 
 S. Germans, Hampshire Winchester ; whilst Wilts and Berks joined at the 
 bishop of Kamsbury. None of the other kingdoms had such a complete 
 organisation of either bishops or ealdormen.
 
 33^ Constitutional History. [chap. 
 
 Darkness in record that wlien he came to the throne there were none south 
 
 the early r- n rrii i • • t • 
 
 (lavs of of the Thames who could understand their rituals m Enorlish, or 
 
 Alired. . 
 
 translate a letter from the Latin ; very few south of the Humber 
 and not many beyond \ The monasteries still stood with their 
 libraries, but the books were unintelligible to their owners. 
 Then the Danes had come and destroyed all. 
 Revival of It is perhaps not unreasonable to connect the revival of 
 
 learning and 
 
 religion learning and ecclesiastical order under Alfred and his son with 
 
 under i i • • i • 
 
 Alfred, coin- the bracing up of the national vigour that resulted from the 
 the restora- Danish stiTiggle, and so with the growth of royal power which 
 
 tion of 1 • 1 1 1 All 1 • • 1 
 
 national was traced in the last chapter. At all events they coincide 
 the Danish in time. It was Plegmund, the associate of Alfred in his labours 
 in the service of English literature -, who consecrated the seven 
 bishops at Canterbury in Edward's reign, thus completing the 
 diocesan arrangements of "Wessex^. The final annexation of 
 Cornwall is mai'ked by the foundation of a new see under Athel- 
 stan *, The prelates, too, begin to be statesmen. Odo of Rams- 
 bury goes as ambassador to France to secure the succession of 
 Lewis the Fourth ® : as archbishop of Canterbmy he acts as prime 
 minister to Edmund and Edred ; a position which he leaves to 
 Dunstan and a long series of successors. But whilst they acquire 
 this new secular position, the bishops lose somewhat of their old 
 security. Brihthelm, the immediate predecessor of Dunstan, is 
 summarily set aside by Edgar for incapacity ®. Notwithstanding 
 the restoration of monastic order, canonical custom is set at 
 naught for party or political purposes ; one bishop holds two or 
 The bishops even three sees : translations become more common, and the great 
 acting as prelates constantly find themselves in positions in which they 
 esmen. ]^,^yg ^^ choose between their duties as bishops, as ministers of the 
 king, and as patriots. Archbishop Sigeric acts as chief magistrate 
 temporally and s})iritually in Kent", and earns the discredit of 
 
 ' Preface to tlio translation of S. Gregory's Pastoral Care, ed. Sweet, p. i . 
 =" Ibid. p. 6. 
 
 ^ W. Mahne.sl). G. R. ii. § 129. Reg. Sacr. Angl. p. 13. 
 * Between A.i). 924 and 931, See Pedler's Ancient Bishopric of 
 Cornwall. 
 
 '' HiHt. Richer, ii. c. 4; ed. Pertz, p. 53. 
 
 ' MeniorialH of S. IJunntan, p. _^8. 
 
 ^ Ethelred, ii. § i. Robertson, Hiet. Essays, p. 178.
 
 VIII.1 Increase of Secidariiy. 239 
 
 having been the first to propose the DanegehP. Under the later stigand a 
 kings the successor of Augustine appears far more as a secular tive of the 
 than as a spiritual potentate ; and the last of the native primates, prelate. 
 Stigand, has an unhappy pre-eminence, as holding the richest 
 see of England in plurality, as the partisan of a schismatic pojoe, 
 and as the chief minister of a distinctly patriotic but not 
 thoroughly spiritual party organisation. 
 
 But the Danish conquest of the north and middle of England Effects of 
 
 «■ 1 • ••r-i ^''® Daiiisli 
 
 had other enects than the rousing of tlie sinrit of the people and conquest on 
 
 ,. -r /v>i-\Tii- IIP 1 p ^'^"^ North- 
 
 kings. It cut on the Northumbrian church irom the see or umbrian 
 
 Canterbury almost as completely as it had been cut off before 
 
 the days of Oswy. The archbishop of York became the head of 
 
 a distinct nationality, preserving his seat, — with one exception, the 
 
 seven years exile of Wulf here ^, — during the numerous vicissitudes 
 
 of the Danish kingdom. Under Athelstan the northern primate 
 
 appears at the English court^, but not quite as a subject. 
 
 Wulfstan, after Athelstan's death, took sides with the Ostman 
 
 Anlaf, and had to fly before Edmund*. In a.d. 947 at Tanshelf 
 
 •he brought the Northumbrian witan to i)light their troth to 
 
 Edred^, but the next year he revolted with his people, and in 
 
 A.D. 952 was imprisoned". Two years after, he made his peace 
 
 with the king and was restored. His immediate successor 
 
 Oskytel ruled peaceably under Edgar ; but the importance of 
 
 the position of the archbishop is shoAvn by the fact that from 
 
 the year A.D. 963 to the Conquest, the see of Worcester was 
 
 generally either held by him in plurality, or bestowed on one of 
 
 his near kinsmen, at once a reward of faithfulness and a pledge 
 
 of obedience''. The wisdom of the arrangement is shown by the 
 
 ' Chron. Sax. a.d. 991. 
 
 * Sim. Dun. Hist. Arch. etl. Twj'sden, p. 79. 
 
 ' Rodward archbisliop of York appears as witness to three charters of 
 Athelstan, wbicli are questionable, Cod. Dipl. cccxlvi, cccxlix, mcl ; and 
 to one whicli is less suspicious, dated in a.d. 929, Ibid, cccxlviii. 
 
 * Chron. Sax. a.d. 943. * Ibid. a.d. 947. ^ Ibid. a.d. 952. 
 
 '' S. Oswald and his two immediate successors held Worcester and York 
 together from a p. 963 to A.o. 1016, when Leofsi seems to have been 
 appointed, probably in consequence of political events. On his death 
 Brihtege, nephew of archbishop Wulfstan, held Worcester until a.d. 1038. 
 It was then disputed betw-en archbishop Elfric and the bishop of Crediton. 
 Ealdred, who ultimately obtained it, was obliged to resign on his promotion 
 to York ill a.d. 1061 ; and S. Wulfstan followed, a.d. 1062-1096. Bishop
 
 240 
 
 Constitutional History. 
 
 [chap. 
 
 Settlement 
 oftlie North 
 
 Extinction 
 and abey- 
 ance of 
 Mercian 
 and East- ^ 
 AnglLin 
 sees. 
 
 The filorics 
 of the tenth 
 ceiitiiry in 
 churcli and 
 state. 
 
 adhesion of N'ortliumbria generally to the English king. Whilst 
 the mother church of York underwent these changes, the northern 
 suffragan sees of Hexham and Whithern became extinct; and 
 the church of Lindisfarne only survived in exile and jiilgrimage 
 with S. Cuthbert's bones, not settling finally at Durham until 
 A.D. 995. 
 
 The ecclesiastical machinery of Mercia and East Anglia suffered 
 scarcely less. The see of Dunwich perished altogether : and in 
 that of Elmham the succession of the bishops is uncertain for 
 nearly a century after the martyrdom of S. Edmund^ The 
 bishop of Leicester fled southwards, and placed his chair at 
 Dorchester in Oxfordshire, close to the West-Saxon border. 
 The succession in Lindsey vanishes^ ; and the see of Lichfield 
 itself only occasionally emerges, although there is reason to 
 suppose that there was no long vacancy. Even in London the 
 episcopate seems to have had a narrow escape from extinction. 
 As much as was possible of the old system was restored under 
 Edgar, but the modifications in the arrangement of the dioceses 
 were permanent. We do not know enough of the local history 
 of the period to ascertain how far the Mercian church underwent 
 the same secularising process as the West-Saxon and North- 
 umbrian. 
 
 89. The process of restoration begun by Alfred was carried 
 out by the great kings who succeeded him on the lines which 
 he had drawn. The vernacular literature which he had founded 
 flourished continuously : the tenth century not only is the great 
 age of the clu-oniclers, but abounds in legal and disciplinary 
 enactments in the native tongue. Every attempt to secure the 
 consolidation of the national and royal power in the state is 
 
 Sampson, liis succcKHor, was l)rotlicr to arohbisho]) Thomas I of York, and 
 father to Thomas II. Tlie disputes about the property of the two sees were 
 continued until tlie reipn of Henry II. The later archbishops possessed the 
 churcli of S. OswaM at Gloucester, wliich was given them by William Rufus. 
 
 ' The year 870 is the epoch at which the Mercian churches seem to 
 colla])SQ ; they emerge in the time of Edward the Elder, but the succession 
 of bishops is very uncertain until the middle of the century. Reg. Sac. 
 Angl. J)]). 12-14. 
 
 '•^ It re-appears in A.D. 953, Ijut is joined with Dorchester about fifty 
 years later.
 
 Mil.] Foreign Intercourse. 241 
 
 acruinpauied by a similar effort for the re-establisliment of the 
 
 church ill .streii<rth and purity. The memory of Dunstan has Influence of 
 
 Dunstan. 
 suffered rather than gained by the praises of his monastic ad- 
 mirers, but it cannot be doubted that his monastic reforms were 
 one of the h^ast of the measures that he had at heart, and that the 
 exaggerated views entertained of them in the middle ages threw 
 his greater deeds into the shade ^. He was the prime minister, 
 perhaps the inspirer, of the consolidating policy of Edgar ; he 
 restored, through the monastic and educational revival, the in- Renewal of 
 torcourse between the English Church and those of France and tercourse. 
 I'^landeis ''■, and established a more intimate communication with 
 the Apostolic See ; in so doing he did what could be done to 
 restore piety and learning. Under his influence the Mercian 
 bishoprics again lift up their heads : the archbishops henceforth 
 go to Rome for their palls : the Frank writers begin to record 
 the lives of English saints^. But the contrast between this 
 restored life and communion and the state of things that had 
 existed eaidier is strongly marked. Instead of Eng-land setting Enpiand 
 
 ° •' , '^ '' borrows 
 
 the example to France she borrows from her neighbour. John from the 
 
 continent, 
 the Old Saxon and Grimbald had come from the northern pro- 
 vinces of the empire ; the new monachism comes from Fleury''. 
 The English scribes copy the disciplinary works of Theodulf and 
 Halitgar ^, just as a century and a half before the Franks had 
 copied the penitentials of Theodore and Egbert. The royal 
 marriages" promote intercourse with the German churches also. 
 Bishop Kinewold of Worcester in a.d. 928 visited all the 
 monasteries of Germany with offerings from Athelstan, and 
 
 ' See Robertson's Essay on Dunstan, Hist. Essays, pp. 189-262 ; Hook's 
 life of him in volume i. of the Lives of the Archbishops of Canterbury ; 
 and the preface to the Memorials of S. Dunstan in the Rolls Series. 
 
 - He spent his exile in the monastery of BlanJiniuni at Ghent. Flor. 
 Wig. A.D. 956. 
 
 ^ E.g. Abbo of Fleury wrote the life of S. Edmund. Adelavd of Blandi- 
 nium wrote a eulogy on Dunst.in himself. 
 
 * S. Oswald brought the restored rule of S. Benedict from Fleury to 
 Ramsey. Hist. Rams. (Gale), p. 391. 
 
 * One of the penitentials ascribed to Egbert (Wilkins, Cone. i. 113-143, 
 Thorpe, Anglo-Saxon Laws, pp. 343-.^92) is a translation of H:ilitgar of 
 Canibray. The laws of Theodulf of Orleans are also translated; in M'ilkins, 
 i. 265 sq. 
 
 ' See above, p. 204. 
 
 B
 
 242 
 
 Constitutional History. 
 
 [chap. 
 
 Decline of 
 
 conciliar 
 
 activity. 
 
 Compila- 
 tions of 
 canons. 
 
 The 
 
 eleventh 
 
 century. 
 
 and concluded a league foi' mutual intei'cession witli the monks 
 of S. Gall \ 
 
 Some marks of this intercourse are left on the consti- 
 tutional history of the church. Although the pontifical claims 
 of Odo and Dunstau play so great a part in the popular his- 
 tories, their secular position somewhat derogated from their 
 ecclesiastical one. Whether purely conciliar action ceased, or 
 whether it be that the assimilation of the national witena- 
 gemots to the older ecclesiastical councils renders it difficult to 
 distinguish between lay and spiritual assemblies, the result is 
 the same. There are few if any distinctly ecclesiastical councils 
 of the tenth century in England ; and every royal code contains 
 large ecclesiastical regulations. The abundant bodies of canons 
 which exist are clad either in the form of constitutions, such as 
 those of Odo and Edgar ^, or in the form of private compila- 
 tions such as that of Elfric^. It would almost seem as if the 
 union between church and state had become so intimate as to 
 supersede one of the most important functions of the former ; 
 for the break in the list of councils cannot be attributed to the 
 loss of records ; abundance of charters in both Latin and Eng- 
 lish attest the activity of the church and of the monasteries, and 
 abundant penitential literature shows that the want of canonical 
 legislation was felt. It is perhaps most probable that business of 
 both sorts was transacted in the same assemblies, as was done in 
 the councils of the twelfth and thirteenth centuries, when tlie 
 difficulties of collecting the clerical witan more than once or 
 twice a year were still considerable. The fact that the persons 
 who composed the two were the same, or iiearly so, contributes 
 to the uncertainty, and possibly occasioned the confusion of which 
 this obscurity is the result. 
 
 90. The ecclesiastical history of the eleventh century is of an 
 equally varied character. On the one hand there is a great de- 
 velopment of English literature. Elfric nobly carries out what 
 
 ' GoltlastuH, Rer. Alaniann. Scr. ii. 152, 15.5 ; Memorials of S. Dunstan, 
 p. Ixxv. 
 
 '■' See Wilkins, Concilia, i. pp- 212, 225. 
 
 ' Ibid, p, 250. Johnaon'H Canons, i. 388-407. Thorpe, Ancient LaAVs, 
 pp. 441 .sq.
 
 VIII.] The Church on the Eve of the Conquest. 243 
 
 Alfred had begun. More than ever the chroniclers and sermon 
 writers put forth their strength. The society which is unable to 
 withstand the arras of Canute almost immediately humanises 
 and elevates him. The court of Edward the Confessor, although Intereomse 
 
 . . . with the 
 
 too much divided and leavened with unpatriotic counsels, is colieircs of 
 an advance in cultivation on that of his father ; and England, 
 although she has very much to lose by this foreign admixture, 
 has much also to gain. The school which Harold founded at 
 Waltham \ the whole revival of the canonical life as a more honest 
 and more practicable system than the monastic, was one result 
 of the increased intercourse with the empire and especially with 
 Lorraine. The introduction of foreign ecclesiastics into English Foreign 
 
 " ecclesiastics 
 
 bishoprics was another ^. For this latter proceeding the church in English 
 
 ... . . sees, 
 
 was not ready : English isolation has always resisted it, and the 
 
 fact of the unpopularity of the new comers, the absolute necessity 
 
 that fell on them of throwing themselves for support on other 
 
 agencies than the result of their work and the love of the people, 
 
 must have counteracted any possible benefit that could have 
 
 been derived from freer intercourse with the churches of the 
 
 continent. Amongst the prelates of this era there are very few Wuifstan 
 
 exce]>t S. \\ ulfstan Avho are spoken of with honour. Archbishop 
 
 Ealdred of York, the traveller, pilgrim and ambassador, stands 
 
 high on the list of Anglo-Saxon statesmen, but it is not until after 
 
 the Conquest that he shows much of the spirit of the patriot. 
 
 The practice of holding bishoprics in plurality, which roaches 
 
 its climax in him'*, may perhaps be excused on the same grounds 
 
 as the nomination of the foreign prelates — the default of native 
 
 candidates. 
 
 In the extreme difficulty of discriminating between the eccle- Anaiojty of 
 
 , , , . . cliurcii and 
 
 siastical and civil relations of men and things, to enter now into state, 
 the special development of church institutions in the tenth and 
 eleventh century would be to traverse again the ground already 
 
 ' See the Tractatus de S. Cruce, pref. pp. v-xii. Freeman, Norm. Conq. 
 ii. 440 sq. Epistolae Cantuarienses, pret. 
 
 ' Freeman (Norm. Conq. ii. 80, 81) regards the Lotharingian prelates as 
 German in speech, and therefore possibly welcome to Godwin and his party. 
 
 ' He held, or at least administered, at one time Worcester, Hereford and 
 Sherborne : it is fair to say that he was a good bishop when such were very 
 scarce, and that he kept foreigners out. 
 
 R 2
 
 244 
 
 Constitutional History. 
 
 [chap. 
 
 Arch- 
 deatioas. 
 
 Suirragiin 
 bishops. 
 
 gone over. The cle-\^olution of judicial powers on the lords of 
 bookland, the king's thegns, and others having grants of sac and 
 Assimilation soc, affected the territorial power of the bishops and monasteries 
 spiritual in just the same way : it is in fact from the charters of immunity 
 to the churches that we are able to di'aw the scanty conclusions 
 which can be drawn as to the status of the lay lords. The obliga- 
 tion of 'borh,' by which every man was obliged to have a security 
 for his keeping the peace, was enforced on ecclesiastics also. An 
 unpublished list of the 'festormen' of ax"chbishop Ehl-ic exists 
 on a fly-leaf of the York Gospel Book ; every priest had to find 
 himself twelve such bondsmen '^ ; Elfiic has sixty or more. The 
 office of archdeacon, which appears first at the end of the eighth 
 century, has now risen into a place of jurisdiction, although the 
 creation of territorial archdeaconries has not yet been required. 
 The bishops, instead of resigning when age and infirmity incapa- 
 citate them, employ deputies to perform their spiritual functions, 
 as the prince-bisliops did in the later middle ages. The distinc- 
 tive character of the Anglo-Saxon church, like that of the state, is 
 being changed to the general pattern of the continental churches. 
 The same cries of simony and immorality against the clergy which 
 are heard in Franco and Germany are prevalent liere, and the 
 means taken to silence them are as weak in England as abroad. 
 The revival of life and energy under Dunstan and Elfric has 
 worn itself out before the days of the Confessor. The exhaustion 
 of the church coincided with that of the state, of which li^dward 
 is a fair type, and wliicli tlie zeal of Siward, of Godwin, and even 
 of Harold coidd not counteract. The time was come for Lan- 
 franc and Anselm as well as for William of Normandy and 
 Hcniy of Anjou. 
 
 It is scai'ccly necessary to point out the special importance 
 of this portion of history in its bearing on our constitutional 
 growth. 'I'Ih! Chuich of J*]ngl;uid is not only the agency by 
 which (Jliristianity is brought to a hoatlien people, a herald of 
 spii-itual blessings and gloiious hojios in another life; it is not 
 inei-cly tlu; tamer of vxwvX natures, the civilisor of the rude, the 
 cultivator of the waste ])laces, the educator, the guide and the 
 ' Lawa of the Northumbrian Priests, § 2. 
 
 Need of 
 restoration 
 ill <;hur(;h 
 Hud state. 
 
 Importance 
 1)1' cliurcli 
 liistor.v in 
 
 (■<lMStitU- 
 
 tioii:)! 
 lilstory.
 
 viii.] The EiigVish Church. 245 
 
 protector, wlios-e t;;\iar(liansliip is the only safegxiard of the 
 
 woman, the child, and the slave against the tyranny of their lord 
 
 and master. The church is this in many other countries besides Beariup of 
 
 . . . . ' . nil 1 • *'''* Eiif-'lisli 
 
 Britain ; but here it is much more. The unity of the church in church his- 
 
 XiHgland was the pattern of the unity 01 the state : the cohesion life of the 
 of the church was for siges the substitute for the cohesion which 
 the divided nation was unable otherwise to realise. Strong in 
 its own conformation, it was more than a match for the des- 
 potic rule of such kings as Offa, and was the guardian of 
 liberties as well as the defence of the oppressed. It was to an 
 extraordinary degree a national church : national in its compre- 
 hensiveness as well as in its exclusiveness. Englishmen were in 
 their lay aspect Mercians or "West Saxons ; only in their ecclesi- 
 astical relations could they feel themselves fellow-countrymen 
 and fellow-subjects. And for a great part of the period under 
 our view, the interference of foreign churches was scarcely 
 if at all felt. There was no Roman legation from the days <;f 
 Theodore to those of Offa, and there are only scanty vestiges of 
 such interference for the next three centuries : Dunstan boldly 
 refused to obey a papal sentence \ Until the eve of the Con- 
 quest, therefore, the development of the system was free and 
 spontaneous, although its sphere was a small one. The use 
 of the native tongue in prayers and sermons is continuous ; 
 the observance of native festivals also, and the reverence paid 
 to native saints. If the stimulating force of foreign inter- 
 course was wanting, the intensity with which the church threw 
 itself into the interest of the nation more than made up what 
 was lacking. The ecclesiastical and the national spirit thus 
 growing into one another supplied something at least of that 
 strong passive power which the Norman despotism was unable 
 to break. The churches were schools and nurseries of patriots ; 
 depositories of old traditional glories and the refuge of the per- 
 secuted. The English clergy supplied the basis of the strength 
 of Anselm when the Norman bishops sided with the king. They 
 trained the English people for the time when the kings should 
 court their support and purchase their adherence by the re- 
 
 ' See Adelard's Life of Dunstan, in Memorials of S. Dunstan, p. 67.
 
 246 Constitutional Kistory. 
 
 storation of liberties that would otherwise liave been forgotten. 
 The unity of the church was in the early period the only Avork- 
 ing unity ; and its liberty, in the evil days that folloAved, the 
 only form in which the traditions of the ancient freedom lingered. 
 It was again to be the tie between the conquered and the con- 
 querors ; to give to the oppressed a hold on the conscience of 
 the desjDot ; to win new liberties and revive the old ; to unite 
 Norman and Englishman in the resistance to tyrants, and 
 educate the growing nation for its distant destiny as the 
 teacher and herald of freedom to all the world.
 
 CHAPTER IX. 
 
 THE XORMAN CONQUEST. 
 
 9 1. Complex results of the Conquest. — 92. State of Nonnandy. — 93. Growth 
 of Feudalism. — 94. Feudal ideas of the Conquest. — 95. National policy 
 of William. — 96. Introduction of Feudal usages. — 97. Maintenance of 
 old forms. — 98. Results of changes of administrators. — 99. Subordinate 
 changes in judicature. — 100. In taxation. — 101. In ecclesiastical 
 affairs. — 102. Transitional character of the period. 
 
 91. The effect of tlie Norinan Conquest on the character and Complex 
 constitution of the English was threefokl. The Norman rule conquest. ^ 
 invigorated the whole national system ; it stimulated the growth 
 of freedom and the sense of unity, and it supplied, partly from 
 its own stock of jurisprudence, and partly under the pressure 
 of the circumstances in which the conquerors found themselves, 
 a formative power Avhich helped to develop and concentrate the 
 wasted energies of the native race. In the first place it brought Its invi- 
 the nation at once and permanently within the circle of Euro- effect, 
 pean interests, and the Crusades, which followed within a few 
 years, and which were recruited largely from the Normans and 
 the English, prevented a relapse into isolation. The adventurous 
 and hiL;hly-strung energy of the ruling race comnnmicated itself 
 to the people whom it ruled ; its restless activity and strong 
 political instinct roused the dormant spirit and disciplined 
 even while it oiipressed it. For, in the second place, the It calls forth 
 
 . • , . stiviiiitli in 
 
 jjowers which it called forth were largely exercised in counter- opposition. 
 acting its own influence. The Normans so far as they became 
 English added ners^e and force to the system with which they 
 identified themselves ; so far as they continued Norman they 
 provoked and stimulated by oppositicn and oppression the latent
 
 24^ Cmishitutiotial History. [chap. 
 
 F.rmative energfies of tlie English. The iSTorman kinss fostered, and the 
 effect of the ^ . . * , r i-r t i 
 
 Conquest. Norman nobility forced out the new growth of life. In the 
 
 third place, however, the importation of new systems of admin- 
 istration, and the development of new expedients, in every de- 
 '' partment of government, by men who had a genius not only for 
 jurisprudence but for every branch of organisation, furnished 
 a disciplinary and foi'inative machinery in which the new and 
 revived powers might be trained : — a system wliich through 
 oppression prepared the way for order, and by routine educated 
 men for the dominion of law : law and order which when com- 
 pleted should attest by the pertinacious retention and develop- 
 ment of primitive institutions, that the discipline which had 
 called them forth and trained men for them, was a discipline 
 only, not the imposition of a new and adventitious polity. For 
 the Norman polity had very little substantial organisation of its 
 own ; and what it brought with it to England was soon worn 
 out or merged in that of the nation with which it united. Oidy 
 the vigour and vitality which it had called forth was per- 
 manent. 
 The 92. Of the constitutional history of the Normans of Nor- 
 
 Nonnandj" mandy we have very little information ^. A century and a half 
 before the Conquest of England, Hollo had received the province 
 from Charles the Simple : he and his people in becoming Chris- 
 tian had become to a certain extent Frank also. They retained 
 much of the Scandinavian charactei", but of the Norse customs 
 only those which fell into easy agreement with Frank law ; and 
 their native language they entirely forgot. Of Frank law in its 
 early Norman form we have equally scanty evidence. What 
 little is known is learned from later jurisprudence, and that by 
 
 ' See Palgrave, Normandy and England, i. 113. Palgrave enumerates 
 three traditions or It-gal legends of RoUo : (i) The custom of the clamcur 
 de haro, by vviiich whoever sustained or feared to sustain any damage of 
 goods or chattels, life or liinh, was entitled to raise the country by the ci y 
 Haro. (2) Tlie legend of the Roumare, according to which he tried the 
 obedience of his people by hanging his bracelets on a tree, where they 
 rem.aiiied unsjuardcd for tlirnc years and uinnolest<?d. (3) The legend of 
 Long-pann, according to wiiich he hanged a. husband and wife who hail 
 consjjired to cheat him. The first two stories are common to England and 
 other countries ; the last is in confonnity with Scandinavian jurisprudence. 
 Ibid. i. 6(j6-6ijCf.
 
 IX,] state of Noiiiiandj/. 249 
 
 inference rather than histoi-ic evidence. Even the existence of Obscurity 
 the ordinary language of feudalism in Normandy ^ before the stitutionai 
 Conquest of England has l)een questioned, unieasonaLly indeed, 
 but not witliout such probability as arises from lack of docu- 
 mentary materials of proof. The little that is clearly known 
 seems to be that the Noi-man duke or count ruled his people as 
 a personal (sovereign, and with the advice of a council of great 
 meu^; that under him were a number of barons, who owed their Theinjbles. 
 position to the possession of land for which they were under 
 feudal obligations to him, which they took every opportunity of 
 discarding ; who had the status of nobility derived from ancient 
 Norse descent or from connexion with the ducal family, although 
 that nobility neither possessed purity of blood, nor was accom- 
 panied by any feeling of honour or loyalty ; and who therefore 
 were kept faithful partly by a sense of interest and partly by the 
 strong hand of their master ^. The population of cultivators lived 
 
 • Sismomli'.s idea that Kollo introduced full-grown feudality into Nor- 
 mandy (Palgrave, Normandy and England, i. 693) is of course quite 
 untenable. Palgrave remarks that ' it remains to be proved whether any 
 system of Norman tenure had been matured into consistency by fiscal 
 talent until after the seventh duke of Normandy won the Anglo-Saxon 
 crown.' Ibid. i. 694. He regards however Richard Sanspeur, the third 
 duke, as the founder of Norman feudalism. Ibid. ii. 534. Waitz agrees 
 with Palgrave as to the comparatively late growth of it; Gottingische 
 Gelehrte Anzeigen, Nachrichten, Feb. 14, 1866; pp. 9:;, 96. 
 
 * Freeman, Norm. Conq. iii. 289 si\. Palgrave, Normandy, and Eng- 
 land, ii. 257, regards William Longsword the son of RoUo as absolute. 
 ' His was the law, his was the state, his was the church.' ' No baronage 
 surrounded his curule chair, no clerk sat at his feet. He spake the law, 
 he gave the law, he made the law, he executed the law.' Ibid. p. 258. 
 ' At no period after the first development of the duchy until it has been 
 united to the crown of France, can we discern any courts or conventions of 
 prelates and nobles e(juivalent to the Great Councils, States General, or 
 Parliaments of subsequent times.' Ibid. p. 259. 
 
 ^ Palgrave, Normandy and England, iii. 28, 29. The Norman counts 
 were at the time of the Conquest, in most cases, younger branches of the 
 ducal house or closely connected with it by affinity. The counts of 
 Brionne, Evreux, and Eu were descended from sons of Richard I ; Count 
 Odo of Auniale was the Conqueror's brother-indaw ; Count Robert of Mor- 
 tain his half-brother. The three great patriarchs of the other Norman 
 houses were Yvo of Belesme, ancestor of the Montgomery counts of I'on- 
 thieu and Alencon, and earls of Shrewsbury ; B rnard the Dane, and Osmund 
 de Centville. Ibid. ii. 535, 536 : iii. 148. The Beaumonts, whose county 
 of Meulan, or Mellent, was in the French Vexin, and who were the an- 
 cestors of the earls of Warwick and Leicester, were descended from a sister 
 of Gunnoris, the wife of Duke Richard I ; and the houses of Montgomery,
 
 250 Constitutional Historf/. [chap. 
 
 Theculti- under this aristocracy, Gallic in extraction, Frank in law and 
 
 vators. . 
 
 custom, and speaking the language which had been created by 
 their early history. These people were in strict dependence on 
 their Norman loi'ds, although they now and then showed some 
 remembrance of the comparative freedom they had enjoyed under 
 the Frank empire, and retained the local organisation which 
 
 The towns, neither Franks nor N^ormans were numerous enough to displace^; 
 and commercial prosperity and a strong communal feeling sub- 
 sisted in the great towns. Nothing but the personal character 
 of the dukes had prevented the territory thus lightly held from 
 
 Ducal policy, dismemberment. The strong hand had gathered all the great 
 
 fiefs into the hands of kinsmen whose fidelity was secured by the 
 
 right of the duke to garrison their castles, and whose t}Tannies 
 
 were limited by the right of the duke to enforce his own peace. 
 
 Their attempts at independence were checked by ruthless blood- 
 
 lit'iation of shed. The duke himself was by commendation a vassal of the 
 the duke to ,. , ,. . -i-iniiiri- 
 
 the king of king, not so much as kmg, for the gift to Kollo had leit him 
 -tannic©. 
 
 fi-ee, but as duke of the French : Richard of Normandy had 
 
 commended himself to Hugh the Great, whose descendants had 
 since become kings ^. But the hold of the royal hand on Nor- 
 mandy was scarcely perceptible ; and its constitutional con- 
 nexion is with the polity of the Karolingian rather than with 
 that of the third race of kings. What little legal system sub- 
 sisted was derived from the Frank institutions as they were 
 when Normandy was separated from the body of the Frank 
 dominion. 
 
 93. Feudalism, the comprehensive idea wliicli includes the 
 whole governmental policy of the French kingdom, was of 
 
 Warenne and Oiff'ard, from (itluT sisters of the same famous ladj' ; the 
 house of Hreteiiil from her biotlier Herfast. See the pedigrees at the 
 end of Du t'hesne's Scrijitoros Hist. Norniaiinoriim. 
 
 * Palgrave, Normandy and En^rland, iii. 41, 42 : 'When we reach the 
 era of written evidence call alisulute servitude has become ohsolete. The 
 very charter wliich designates the Terre-tenant as a survus guarantees his 
 persoiuU freedom.' Ihid. p. 44. 
 
 * On tlie status of tlie Norman dukos, .nnd tlie changes of the relation in 
 which they stood to tlie Karolinijs, tlie (lenuan kings of the Saxon line, 
 the dukes of the Franks and the kings, see I'algrave, Nortnandy and Eng- 
 land, ii. 12,1;, 727-234, ,^47, ,i>.^3 ; Freeman, Norm. Coriq. 1. 167, 220, 221, 
 609 ; Waitz, Nachriehten (as aljove), pp. 69-96.
 
 IX.] Origin of Feudalism. 251 
 
 distinctly Frank gvowtli '. The princii)le which underlies it Kr:iiik 
 may l)e universal; but the historic development 01 it with which auiUilism. 
 the constitutional history of Europe is concerned may be traced 
 step by step under Frank influence, from its first appearance 
 on the conquered soil of Roman Gaul to its full development 
 in the jurisprudence of the jMiddle i\.ges^. In the form which it 
 
 ' The word feuduni, fief or fee, is derived from the German word for 
 cattle (Gothic /«<Am; Old High German Jihu ; Old Saxon feha ; Anglo- 
 Saxon feuh) ; the secondary meaning being good?, especially money : 
 hence property in general. The letter d is perhaps a mere insertion for 
 sound's sake ; but it has been interpreted as a part of a second root, od, 
 also meaning property, in which case tiie first syllable has a third meaning, 
 that of fee or reward, and the whole word means property given by way of 
 reward for service. P)Ut this is improbable ; and the connexion of the 
 word with the Greek (fupvTivais, which is suggested by tlie similarity of 
 feudal and enijihyteutic tenure of land, will not stand the test of criticism. 
 The legal einiihyteusis is ' a perpetual right in a jiiece of land that is the 
 property of another.' This word occurs first in the Digest of Justinian, 
 and the emphyteutic possessor seems generally to be a mere lessee : it 
 appears in the Lombard Capitulaiy of a.d. 819. The word feodnm is not 
 found earlier than the close of the ninth century. But neither the etyn)0- 
 logy of the latter word nor the development of its several .meanings can be 
 regarded as certain. See Smith's Dictionary of Antiquities, s. v. Emphy- 
 teusis ; Robertson, Scotland, ii. 454 ; Du Cange, &c. 
 
 * As feudalism in both tenure and government was, so far as it existed 
 in England, brought full-grown from France, it is not necessary here to 
 trace in detail its growth in its native country. But it is important to note 
 the change in the opinion of scholars on the subject, which has resulted 
 from the recent invi stigations of (>erman writers. The view accepted in 
 the last century on the authority of Montesquieu, and generally maintained 
 by the French writers, is that the conquests of the Franks were made by 
 inde|)endent nobles, who had a powerful comitatus, and that the lands so 
 acquired were divided amongst the comites, each of whom was bound by 
 a special oath of fidelity to his lord, and held his land by the obligation of 
 military service. P2ichhorn, accepting this theory, distinguished the di\"isions 
 of territory made before Clovi.s, on the principle of free allotment, from 
 those made by that king and his successors, on a feudal principle : the 
 recipients of the latter grants were supposed to be the hudet>, and amongst 
 the leudes a narrower class of comites bore the name of autrustions. The 
 INIerovingian kingdom was, on this hypothesis, a state built up on vas- 
 salage ; the bond of unity being the connexion of classes in subordination 
 to one another, not the common and immediate subjection to a sovereign 
 government. This theory has been entirely refuted by Waitz, whose 
 authority has been, in this work, regarded as conclusive as to the ancient 
 German sj-stem. It was no irregular unorganised fabric, but a conqilete 
 governmental system. Its conquests were the work of the naticjus moving 
 ill entire order ; the comitatus was not the bond of cohesion ; the leudes 
 were not comites : all the people were bound to be faithful to the king ; 
 the gift of an estate by the king involved no defined obliu^ation of sersnce ; 
 all the nation was alike bound to military service; the only comites were 
 the antrusiious, and these were few in number; the basis of the Mero-
 
 252 Constitutional Historf/. [chap. 
 
 Condition has reached at the Norman Conquest, it may be described as 
 
 of feudalism . . /. • 
 
 at the time a complete orgamsation of society through the medmm 01 land 
 
 Norman tenure, in which from the king down to the lowest landowner 
 all are bound together by obligation of service and defence : the 
 lord to protect his vassal, the vassal to do service to his lord; 
 the defence and service being based on and regulated by the 
 nature and extent of the land held by the one of the other. In 
 those states which have reached the territorial stage of develop- 
 ment, the rights of defence and service are supplemented by the 
 right of jurisdiction. The lord judges as well as defends his 
 vassal ; the vassal does suit as well as service to his lord. In 
 states in which feudal government has reached its utmost growtli, 
 the political, financial, judicial, every branch of public admin- 
 istration is regulated by the same conditions. The central 
 authority is a mere shadow of a name. 
 
 Elements of This institution had grown up from two great sources — the 
 feudalism. _ . . 
 
 beneficium, and the practice of commendation, — and had been 
 
 specially fostered on Gallic soil by the existence of a subject 
 
 pojiulation which admitted of any amount of extension in the 
 
 The bene- uiethods of dependence. The beneficiaiy system ^ originated 
 
 ])artly in gifts of land made by the kings out of their own 
 
 estates to their kinsmen and servants, with a special undcr- 
 
 vingiaii polity was not the relation of loi-'i and vassal, but tliat of the sub- 
 ject to tlie Hovci'C'iLjn. Tlie argununits of Roth (Gesehichte des Benoficial- 
 wesens, and Feudalitilt und Unterth.uiverband) so far coincide witli those of 
 Waltz ; and the work of Sohni (Altdcutsclie Reichs- und Gerichtsverfas- 
 8urij,r) completes the overthrow of the old theory by reconstructing in a 
 very remarkable manner the old German system in Salian and Merovingian 
 times. It remains now to accotnit for tlie growth of the feudal system. 
 This is done by Waitz on tlie theory of a conjunction and intorpeuetration 
 of tlif lieiieKcial systum and the vassal relation, both being fostered by the 
 growth of immunities ; and tliis is tlie view a(U)ii.tod in the text. Roth, 
 however, goes further, connecting the antrustioiisliip with the vass.il re- 
 lation, and making the former a link between the primitive comitatus and 
 later feudalism. 'J'lie infeiidation of benelices and transfer of magisterial 
 jurisdictions to the landowners (the seigniorial system), he traces not to 
 any general movement in society, but to the violent innovation of the 
 early Karoling period, which itself resulted from the great secularisations 
 of the eighth century. Waltz's tlu;ory is maintained as against Roth, 
 in the points in which the two writers difli'r, in the last edition of his in- 
 valuable work. See also Kicliter, Anualen der Deutschen Gesehichte, 
 pp. 108-1 II. 
 
 » Waitz, D. V. G. ii. 226-258. 
 
 ficbim.
 
 ]X.] Origin of Feudalism. 253 
 
 taking to be faithful ^ ; partly in the surrender by landowners 
 of their estates to churches or poAverful men, to be received back 
 again and held by them as tenants for rent or service. By the 
 latter arrangement the weaker man obtained the protection of* 
 the stronger, and he who felt himself insecure placed his title 
 under the defence of the church. By the practice of commend- Commend- 
 ation'^, on the other hand, the inferior put himself under the per- 
 sonal care of a lord, but without altering his title or divesting 
 himself of his right to his estate ; he became a vassal ^ and did 
 homage. The placing of his hands between those of his lord 
 was the typical act by which the connexion was formed. And 
 the oath of fealty was taken at the same time. The ufiion of the 
 beneficiary tie with that of commendation completed the idea of 
 feudal obligation ; the two-fold hold on the land, that of the lord Twofold 
 
 ^ ' nature of 
 
 and that of the vassal, was supplemented by the two-fold en- vassalage. 
 
 gagement, that of the lord to defend, and that of the vassal to 
 
 be faithful. A third insfi'edient was supplied by the grants of Grants of 
 
 ° . . immunity. 
 
 immunity by which in the Frank empire, as in England, the 
 possession of land was united with the right of judicature : the 
 dwellers on a feudal property were placed under the tribunal 
 of the lord, and the rights which had belonged to the nation or 
 to its chosen head were devolved upon the receiver of a fief. 
 The rapid spread of the system thus originated, and the assimi- 
 lation of all other tenures to it, may be regarded as the work of 
 
 ' Nut a promise of definite service but a pledge to continue faitliful in the 
 conduct in consideration of which the reward is given. Waitz. D. V. G. ii. 251. 
 Such a condition of course preserved to tlie giver a hold on or interest in the 
 land, througii which he was able to enforce fidelity. See also Roth, Bene- 
 ficialwesen, p. 385 ; wlio points out that even when the possessors of great 
 benefices coiHnieiid<:^d themselves to the kings, they did not in the days of 
 Charles the Bald fall into the class of vassals ; ' episcopi, abbates, comites 
 et vassalli doininici . . . beneficia habentes Carolo se commendaverunt, et 
 fidelitatem sacramento firmaverunt.' Ann. Bertiu, A.D. 837. But thi."! was 
 a period of transition, and if tliey did not become vassals in name, they 
 entered into a relation which dift'ered very little from later vassalage. 
 
 =" Waitz, D. V. G. ii. 258-262. 
 
 ' Vassus in the Merovingian period was used, according to Roth, in- 
 variably for an unfree person ; in the Karolingian period for a freeman 
 commended, or, as he states it, placed in the relation of comitatus, to a 
 lord ; Beneticiahvesen, p 367. Waitz. as has been repeatedly mentioned, 
 rejects the idea of connecting the comitatus with commendation. 
 
 * Waitz, D. Y. G. ii. 634-645 ; iv. 243-273.
 
 254 
 
 Constitutional History. 
 
 [chap. 
 
 Benefices 
 liereditary. 
 
 National 
 origin of 
 feudalism. 
 
 Imjjortance 
 of the Anglo- 
 Saxon form 
 ofcoraitatiis, 
 
 the tenth century; but as early as a.d. 877 Charles the Bald 
 recognised the hereditary character of all benefices ^ ; and from 
 that year the growth of strictly feudal jurisprudence may be held 
 to date. 
 
 The system testifies to the country and causes of its birth. 
 The beneficium is partly of Roman, partly of German origin : 
 in the Roman sj'stem the usufruct, the occupation of land be- 
 longing to another person, involved no diminution of status " ; 
 in the Germanic system he who tilled land that was not his own 
 was imperfectly free : the reduction of a large Roman population 
 to dependence placed the two classes on a level, and conduced to 
 the wide extension of the institution Commendation on the other 
 band may have had a Gallic or Celtic origin ^, and an analogy 
 only with the Roman clientship. The German comitatus, which 
 seems to have ultimately merged its existence in one or other 
 of these developments, is of course to be carefully distinguished 
 in its origin from them. The tie of the benefice or of commend- 
 ation could be formed between any two persons whatever ; none 
 but the king could have antrustions. But the comitatus of Anglo- 
 Saxon history preserved, as we have seen, a more distinct exist- 
 ence *, and this perhaps was one of the causes that distinguished 
 the later Anglo-Saxon system most definitely from the feudalism 
 of the Frank empire. 
 
 The process by which the machinery of government became 
 feudalised, although rapid, was gradual. The weakness of the 
 Karoling kings ° and emperors gave room for the speedy develop- 
 
 ' The practice had been growing up for a long period, and the clause of 
 the Capitulary of Kiersi is rather a recognition of a presumptive right than 
 an authoritative enunciation of a princi[)le. See on it Rotli, Beneficiahvesen, 
 p. 420 ; Waitz, I). V. G. iv. 69.^ Tlie hereditary usage was not yet uni- 
 ViTHal, nor did this recognition make it so ; the emperor simply makes 
 provision as to what is to he done by his son during his absence, in case of 
 the death of a count or otlier holder of a benefice. It is, however, a clear 
 proof of the generality of the usage. See Baluze, ii. I79' 
 
 * Sec Waitz, D. V. G. ii. 225, 234. 
 
 ' Ibid. iv. 199. The arguments in favour of this theory rest on Breton 
 usages. 
 
 * See above, p. 153. 
 
 ' The tendency ha<l begun to work during the Merovingian period. It was 
 a regulation ofClothair If, that the count must lie a native of the [)rovince 
 over which he was placed. Edict. Cloth. II, c. 12 ; Baluze, i. 16 ; Waitz,
 
 IX.^ Feudal Government. 255 
 
 ment of disruptive tendencies in a territory so extensive and so introduotion 
 little consolidated. The duchies and counties of the eighth and into the ^ml- 
 ninth centuries were still official magistracies, the holders of govgrnuient. 
 ■which discharged the functions of imperial judges or generals. 
 Such oflBcers were of course men whom the kings could trust, 
 in most cases Franks, courtiers or kinsmen, who at an earlier 
 date would have been comites or antvustions, and who were pro- 
 vided for by feudal benefices. The official magistracy had in 
 itself the tendency to become hereditary, and when the benefice 
 was recognised as heritable, the provincial governorship became 
 so too. But the provincial governor had many opportunities of 
 improving his position, especially if he could throw himself into 
 the manners and aspirations of the people he ruled. By mar- 
 riage or inheritance he might accumulate in his family not only 
 the old alodial estates which, especially on German soil, still 
 continued to subsist, but the traditions and local loyalties which 
 were connected Avitli the possession of them \ So in a few years Growth of 
 
 1T11 • ii-'i- 11 feudal ma- 
 
 the r rank magistrate could unite m his own person the bene- jfistracies 
 
 /,. 1 ,ji- • ^ 1 • 1111-1. i"to proviii- 
 
 nciary endowment, the imperial deputation, and the headship cial princi- 
 of the nation over which he presided. And then it was only 
 necessary for the central power to be a little weakened, and 
 the independence of duke or count was limited by his homage 
 and fealty alone, that is by obligations that depended on con- 
 science only for their fulfilment. It is in Germany that the 
 disruptive tendency most distinctly takes the political form ; 
 Saxony and Bavaria assert their national independence under 
 
 D. V. G. ii. 377. The intention was that he should have a substantial stake 
 in the well-being of the province, such that coinpensation could be exacted 
 from him in case of niisgovernnient. 
 
 ' Abundant proof of tliis position will be found in Oerman history. The 
 rise of the successive families of Saxon dukes, aii<l the whole history of 
 Bavaria under the Saxon emperors, furnish illustrations. The Saxon dukes 
 of Bavaria carry out the Bavarian policy in opposition to their near kinsmen 
 on the imperial throne. The tfrowth of the Swahian Welfs into perfect 
 identification with the Saxons whom they governed attonls another striking 
 instance. In a less degree, but still to some extent, this was the case in 
 France also ; but the Gallic populations had lost before the Karoling period 
 most of their national aspirations ; nor did the Frank governors identify 
 themselves at any time with the people. Hence tlie great diflference in 
 social results between French and German feudalism.
 
 256 Constitutional History. [chap. 
 
 Disruptive Swabian and Saxon dukes who have identified the interests of 
 
 resolutions. \ • ^ ■ • ^ ^ . 
 
 their subjects with their own. In France, where the ancient tribal 
 divisions had been long obsolete, and where the existence of the 
 alod involved little or no feeling of loyalty, the process was 
 simpler still ; the provincial rulers aimed at j^ractical rather than 
 political sovereignty ; the people were too weak to have any 
 aspirations at all : the disruption was due more to the abeyance 
 of central attraction than to any centrifugal force existing in 
 the provinces. But the result was the same ; feudal government, 
 a graduated system of jurisdiction based on land tenure, in 
 which every loi'd judged, taxed, and commanded the class next 
 below hiin, in which abject slavery formed the lowest, and irre- 
 sponsible tyranny the highest grade, in which private war, 
 private coinage, private prisons, took the place of the imperial 
 institutions of government. 
 Opi)osition 94. This was the social system wliich William the Con- 
 the interest fjueror and his barons had been accustomed to see at work in 
 queror and P'^'^nce. One part of it, the feudal tenure of hmd, was perhaps 
 bw-oMs.^"^ the only description of tenure which they could understand ; 
 the king was the original lord, and every title issued mediately 
 or immediately from him. The other part, the governmental 
 system of feudalism, was the point on which sooner or later 
 the duke and his barons Avere sure to differ; already the in- 
 compatibility of the system with tlic existence of the strong 
 central jiower had been exemplified in Normandy ; the strength 
 of the dukes had been tasked to maintain their hold on the 
 castles and to enforce their own high justice : much more diffi- 
 cult would England be to retain in Norman hands if the new 
 king allowed himself to be fettered by the French system. On 
 the other hand the Norman barons would fain rise a step in 
 the social scale answering to that by which their dnke had 
 become a king ; and they aspired to the t^ame independence 
 wliich they had seen enjoyed by the counts of Southern and 
 Fastein France. Nor was the aspiration on their part alto- 
 gether unriasonable; they had joined in the Conquest rather 
 as sharers in the great adventure iliaii as more vassals of the 
 duke whose birth they despised as much as they feared his
 
 IX.] King and Feudatories. 257 
 
 strength ^ William, however, was wise and waiy as well as Feudal to- 
 ri 1 -1 1 1 • • 1 /> uureoflaiid 
 strong. Hence whilst by the insensible process of custom, or rather received 
 
 by the mere assumption that feudal tenure of land was the only feudal prin- 
 lawful and reasonable one, the Frankish system of tenure was veniment. 
 substituted for the Anglo-Saxon, the organisation of govern- 
 ment on the same basis was not equally a matter of course. 
 The Conqueror himself was too strong to suffer that organisation 
 to become formidable in his reign, but neither the brutal force of 
 AV'illiam Rufus, nor the heavy and equal pressure of the govern- 
 ment of Henry I, could extinguish the tendency towards it. It 
 was only after it had under Stephen broken out into anarchy and 
 plunged the whole nation in long misery, when the great houses 
 founded by the bai'ous of the Conquest had suffered forfeiture 
 or extinction, when the Normans had become Englishmen under 
 the legal and constitutional reforms of Heniy IT, that the royal 
 authority in close alliance with the nation was enabled to put 
 an end to the evil. 
 
 95. William the Con(iueror claimed the cro^vn of England as 
 the chosen heir of Edward the Confessor^. It was a claim which 
 
 ^ On the descent of the great barons of Normandy see above, p. 249, 
 note 3. Ordericus Vitalis names the chiefs who joined in the deliberation of 
 Lillebonne preparatory to the expedition to England ; the Counts Eichard 
 of Evreux, Robert of Eu, Robert of Mortain, Ralph de Conches, son of the 
 standard-bearer of Normandy, William Fitz Osbcrn the steward, William 
 de Warenne and Hugh the butler ; Hugh de Grantmesnil and Roger de 
 Mowbray, Roger de Beaumont and Roger de Montgomeri, Baldwin and 
 Richard sons of Count Gilbert of Brionue. Lib. iii. c. 1 1. At the battle of 
 Hastings, besides most of these, he mentions (iv. c. 14) Count Eustace of 
 Boulogne, Aimer Viscount of Thouars, Hugh de Montfort the constable, 
 and Walter Giffard. The curious, but questionable, list of the contributions 
 to the fleet by the allied barons, is briefly this; — William Eitz Osbern^the 
 steward furnished 60 ships ; Hugh, afterwards earl of Chester, 60; Hugh 
 de Montfort the constable, 50 ships and 60 knights ; Remi, afterwards 
 bishop of Lincoln, a ship with 20 knights ; Nicholas, abbot of S. Ouen, 
 20 ships and 100 knights ; Count Robert of Eu, 60 ships ; Fulk the lame, 40 ; 
 Gerald the steward, 40; Count William of Evreux, 80; Roger of Mont- 
 gomery, 60; Roger of Beaumont, 60; Bishop Odo, 100; Robert of Mor- 
 tain, 1 20 ; Walter Gitiard, 30 and too knights. Lyttelton, Hist, of Henry II, 
 vol. i. p. 523. These lists are useful as helps in tracing the gradual extinc- 
 tion of the Conquest families during the struggles of the Noi-man reigns. 
 
 - Freeman, Norm. Conq. ii. 169; Ord. Vit. iii. 11 ; Chron. de Bello, 
 p. 2. The Durham charters in which the king states that he is 'Rex 
 Anglorum hereditario jure factus ' are forgeries. See Greenwell, Feodary 
 of Durham, pp. Ixvii, Ixxii. See also p. Ixxsii. The king himself on his 
 deathbed declared that he had won the crown by the grace of God, not by 
 hereditary right. Ord. Vit. vii. 15. See Gueist, Verwaltuugsr., i. iii. 
 
 S
 
 258 
 
 Constitutional Histori/. 
 
 [chap. 
 
 lish king. 
 
 His corona- 
 tion engage- 
 ment. 
 
 William the English did not admit, and of which the Normans saw the 
 as an Eng? fallacy, but which he himself consistently maintained and did 
 his best to justify. In that claim he saw not only the justifi- 
 cation of the conquest in the eyes of the Church, but his 
 great safeguard against the jealous and aggressive host by 
 whose aid he had realised it. Accordingly, immediately after 
 the battle of Hastings he proceeded to seek the national recog- 
 nition. He obtained it from the divided and dismayed witan 
 with no great trouble, and was crowned by the archbishop of 
 York, the most influential and patriotic amongst them, binding 
 himself by the constitutional promises of justice and good laws. 
 Standing before the altar at "Westminster, ' in the presence of 
 the clergy and people he promised with an oath that he 
 would defend God's holy churches and their rulers, that he 
 would moreover rule the whole people subject to him with 
 righteousness and royal providence, would enact and hold fast 
 right law, utterly forbid rapine and unrighteous judgments V 
 The form of election and acceptance was regularly observed and 
 the legal position of the new king completed before he went 
 forth to finish the conquest. 
 
 Had it not been for this the Norman host might have fiiirly 
 claimed a division of the land such as the Danes had made 
 in the ninth century ^ But to the people who had recognised 
 William it was but just that the chance should be given them of 
 retaining what was their own. Accordingly, when the lands of 
 all those who had fought for Harold were confiscated^, those 
 who were willing to acknowledge William were allowed to re- 
 
 No general 
 division of 
 lands. 
 
 * Flor. Wif,'. A.D. 1066, W. Pictav. (ed. Maseres, p. 145). See Freem.an, 
 Norm. Conq. iii. 559. No doubt the coronation service used was that which 
 had been employed in the case of Ethelred, and the words of Florence re- 
 present the coronation engagement : ' Sanctas Dei ecclesias ac rectores 
 illarum dufendere, nccnon et cunctum po])uluin sibi subjectum juste et 
 regal! providcntia regere, rectam legem statuere et tenere, rapinas injus- 
 taque judicia penitus interdicere.' See above pp. 147, 148, 
 
 * See above p. 72. 
 
 ' 'Tiie evidence that we have leads us to believe that the whole of the 
 lands of those men, dead or living, who had fought at Senlac, was at once 
 dealt with as lanil forfoiteil to the king.' Freeman, Norm. Conq. iv. 24. 
 The evidence consists of references to these confiscations in the Domesday 
 survey. See too Dialogus dc Scaccario, i. c. 10.
 
 IX.] WilUaiti's Confiscations. 259 
 
 deem theirs, either paying money at once or giving hostages for Redemption 
 the payment^. That under this redemption lay the idea of a 
 new title to the lands redeemed may be regarded as questionable. 
 The feudal lawyer might take one view, and the plundered pro- 
 prietor another. But if chai'ters of confirmation or regi'ant were 
 generally issued on the occasion to those who were willing to 
 redeem, there can be no doubt that as soon as the feudal law 
 gained general acceptance, these would be regarded as conveying 
 a feudal title. What to the English might be a mere payment 
 oifijrdwite or composition for a recognised offence, might to the 
 Normans seem equivalent to forfeiture and restoration. But 
 however this was, the process of confiscation and redistribution 
 of lands under the new title began from the moment of the 
 coronation. The next few years, occupied in the x'eduction of Divisible 
 Western and Northern England, added largely to the stock of increased 
 divisible estates. The tjTanny of Odo of Bayeux and AVilliam stnijrple 
 Fitz Osbern which provoked attempts at rebellion in a.d. 1067 ; the Conqueror. 
 stand made by the house of Godwin in Devonshire in a.d. 1068 ; 
 the attempts of Mercia and Northumbria to shake off the Nor- 
 mans in A.D. 1069 and 1070 ; the last struggle for independence 
 in A.D. 107 1 in which Edwin and Morcar finally fell ; the con- 
 spiracy of the Norman earls in a.d. 1074 in consequence of which 
 AValtheof perished, all tended to the same result. After each 
 effort the royal hand was laid on more heavily : more and more 
 land changed owners, and with the change of owners the title change of 
 changed. The complicated and unintelligible irregularities of lowed with 
 the Anglo-Saxon tenui'es were exchanged for the simple and owner, 
 uniform feudal theory. The fifteen hundred tenants-in-chief 
 of Domesday take the place of the countless lando\vTiers of 
 king Edward's time : and the loose unsystematic arrangements 
 which had grown up in the confusion of title, tenure and juris- 
 diction, were replaced by systematic custom. The change was 
 effected without any legislative act, simply by the process of 
 transfer under circumstances in which simplicity and uniformity 
 
 * Chron. Sax. A.D. 1066 : ' And com to Westraynstre. and Ealdred arce- 
 bisceop hine to cynge gehalgode. and uienn guldou him gyld. and gislas 
 6ealdon. and syththan heora land bohtan.-' 
 
 S 2
 
 26o Constitutional History/, [chap. 
 
 Assimilation were an absolute necessity. It was not the change from alodial 
 
 of all tenures ^ i , ^ c c • i mi 
 
 to the feudal to feudal SO niuch as from confusion to order, ihe actual 
 amount of dispossession was no doubt greatest in the higher 
 ranks ; the smaller owners may to a large extent have remained 
 in a mediatised position on their estates ; but even Domesday 
 with all its fuhiess and accuracy cannot be supposed to enu- 
 merate all the changes of the twenty eventful years that 
 followed the battle of Hastings. It is enough for our purpose 
 to ascertain that a universal assimilation of title followed the 
 general changes of ownei'sliip. The king of Domesday is the 
 supreme landlord ; all the land of the nation, the old folkland, 
 has become the king's ; and all private land is held mediately 
 or immediately of him ; all holders are bound to their lords by 
 homage and fealty, either actually demanded or understood to be 
 demandable, in every case of transfer by inheritance or othei'wise. 
 
 Results. 96. The result of this process is partly legal and partly con- 
 
 stitutional or political. The legal result is the introduction of 
 an elaborate system of customs, tenures, rights, 'duties, pi-ofits 
 and jurisdictions. The constitutional result is the creation of 
 several intermediate links between the body of the nation and 
 the king, in the place of or side by side with the duty of 
 allegiance. 
 
 Legal On the former of these points we have very insufficient data ; 
 
 scciiient on for wc are quite in the dark as to the development of feudal 
 
 of'tenure!*^ law in Normandy before the invasion, and may be reasonably 
 inclined to refer some at least of the peculiarities of English 
 feudal law to the leaven of the system which it supcrseded\ 
 Nor is it easy to reduce the oj-ganisation described in Domesday 
 to strict conformity with feudal law as it appears later, especially 
 with the general i^revalence of military tenure. The growth of 
 kiiiglithood is a subject on which the greatest obscurity prevails ; 
 and the most probable explanation of its existence in England, 
 the theory that it is a translation into Norman forms of the 
 thegnag(; of the Anglo-Saxon law, can only be stated as probable. 
 Between the picture drawn in Domesday and the state of affairs 
 which the charter of Henry I was designed to remedy, there is 
 
 * See more on this question in Chapter XI.
 
 IX.] Inlroductlon of Feudal Tenure. 261 
 
 a diflference wliich the short interval of time will not account for, Develop- 
 ment be- 
 tween 10 
 and 1 100. 
 
 and which testifies to the action of some skilful organising hand tween 1086 
 
 working with neither justice nor mercy, hardening and sharpen- 
 ing all lines and points to the perfecting of strong government. 
 
 It is unnecessary to recapitulate here all the points in which 
 the Anglo-Saxon institutions were already approaching the 
 feudal model ; it may be assumed that the actual obligation of 
 military service was much the same in both systems, and that Rcsem- 
 even the amount of land which was bound to furnish a mounted thefrn and 
 warrior was the same, however the conformity may have been "'*" 
 produced \ The heriot of the English earl or thegn was in 
 close resemblance with the relief of the Norman count or 
 knight. But however close the resemblance, something was 
 now added that made the two identical. The change of the 
 heriot to the relief implies a suspension of ownership, and 
 carries with it the custom of livery of seisin. The heriot Difference 
 was the payment of a debt from the dead man to his lord ^ ; relief, 
 his son succeeded him by alodial right. The relief was paid 
 by the heir before he could obtain his father's lands ; between 
 the death of the father and livery of seisin to the son the right 
 of the overlord had entered, the ownership was to a certain 
 extent resumed, and the succession of the heir took somewhat 
 of the character of a new grant. The right of wardship also 
 became in the same way a re-entry by the lord on the profits of 
 tlie estate of the minor, instead of being as before a protection, 
 by the head of the kin, of the indefeasible rights of the heir, 
 wliich it was the duty of the whole community to maintain. 
 
 There can be no douljt that the military tenui'e, the most pro- Military 
 minent feature of historical feudalism, was itself introduced by dually inti-o- 
 the same gradual process Avhich we have assumed in the ease of 
 the feudal usages in general. "We have no light on the j)oint from 
 any original grant made by the Conqueror to a lay follower; but, 
 judging by the grants made to the churches, we cannot suppose 
 it probable that such gifts were made on any expressed condition, 
 or accepted with a distinct pledge to provide a certain contingent 
 of knights for the king's seiwice. The obligation of national defence 
 * Above, pp. 117, 155, 191. ^ Ibid. pp. 24, 157.
 
 262 
 
 Constitutional History. 
 
 [chap. 
 
 Grants not 
 made con- 
 ditionally. 
 
 Knights' 
 fees gradu- 
 ally intro- 
 duced. 
 
 Case inKent, 
 
 Case of 
 liamsey. 
 
 was incumbent as of old on all landowners, and the customary 
 service of one fully-armed man for each five hides was probably 
 the rate at which the newly endowed follower of the king would 
 be expected to discharge his duty. The woi'ding of the Domes- 
 day survey does not imply that in this respect the new military 
 sex'vice differed from the old : the land is marked out not into 
 knights' fees but into hides, and the number of knights to be 
 furnished by a particular feudatory would be ascertained by in- 
 quu'iug the number of hides that he held, without apportioning 
 the particular acres that were to support the particular knight. 
 
 It would undoubtedly be on the estates of the lay vassals that 
 a more definite usage would first be adopted, and knights bound 
 by feudal obligations to their lords receive a definite estate from 
 them. Our earliest information, however, on this as on most 
 points of tenure is derived from the notices of ecclesiastical 
 practice. Lanfranc, we are told, tui'ned the drengs, the rent- 
 paying tenants of his archiepiscopal estates, into knights for 
 the defence of the country ' : he enfeoffed a certain number of 
 knights who performed the military service due fi-om the archi- 
 episcopal barony. This had been done before the Domesday 
 sui'vey ^, and almost necessarily implies that a like measure had 
 been taken by the lay vassals. Lanfranc likewise maintained 
 ten knights to answer for the military service due from the 
 convent of Christ Church, which made over to him, in con- 
 sideration of the relief, land worth two hundred pounds annually. 
 The value of the knight's fee must already have been fixed at 
 twenty pounds a year. In the reign of William Rufus the abbot 
 of Ramsey obtained a charter which exempted his monastery from 
 the service of ten knights due from it on festivals, substituting 
 
 * Epp. Cantuar. p. 225. Elton's Tenures of Kent, pp. 68, 69. 'Sed et 
 liaec attc'stantur scripta vetustis.sinia, quae lingua Anglorum land-hokes, id 
 est, terraruin libros vocat. Quia vera non erant adliuc tempore regis 
 Willehni niilites in Anglia, sed threnges, praecepit rex ut de eis milites 
 fierent ad terrain defendondam. Fecit autem Lanfrancus threngos sues 
 milites ; monachi vero id non fecerunt sed de portione .sua ducentas librataa 
 terrae dodei-unt archiepiscopo, ut per milites suos terras eorum defenderet 
 et omnia negotia eorum apud curiam Romanam suis expensis expediret, 
 unde adliuc in tota terra monaciioruni nullus miles est, sed in terra 
 arcliiepi.Hcopi.' As late as 1201 the archbishop obtained a charter for the 
 same iiurpo.so ; llouard, Anc. Loix, ii. 352. 
 
 * Domesday, i. fol. 3.
 
 IX.] Knights' Fees. 263 
 
 tlic obligation to furnish three knights to perform service on the 
 north of the Thames ^ : a proof that the hinds of that house liad 
 not yet been divided into knights' fees. In the next reign we 
 may infer from the favour granted by the king to the knights 
 who defend their lands ' per loricas,' that is, by the hauberk, that 
 their demesne lands shall be exempt from pecuniaiy taxation, that 
 the process of definite military infeudation had largely advanced. 
 But it was not even yet forced on the clerical or monastic estates. 
 When in 1167 the abbot of Milton in Dorset was questioned as Case of 
 
 ' . . ^ Milton. 
 
 to the number of knights' fees for which he had to account, he 
 replied that all the services due from his monastery wei'e dis- 
 charged out of the demesne ; but he added that in the reign of 
 Henry I, during a vacancy in the abbacy, bishop Roger of Salis- 
 bury had enfeoffed two knights out of the abbey lands ^ ; he had 
 however subsequently reversed the act and had restored the 
 lands whose tenure had been thus altered to their original 
 
 condition of rent-paying estate or socage. The very term 'the Old and new 
 
 '. ° . . feoffment. 
 
 new feoffment ' which was applied to the knights' fees created 
 
 between the death of Henry I and the year in which the account 
 
 preserved in the Black Book of the Exchequer was taken, proves 
 
 that the process was going on for nearly a hundred years ^, and 
 
 ' Ramse}' Cartulary, fol. 54 b : in the 29th report of the Deputy Keeper 
 of the Records, app. p. 45. The abbot in 1 167 replies to the royal inquiry as 
 to the number of knights enfeoffed in the monastic lands : ' Homines faciunt 
 iiii. milites in cominuni ad servitium doniini regis, ita quod tota terra 
 abbatiae communicata est cum eis per hidas ad praedictum servitium faci- 
 endum.' The lands were not yet cut into knights' fees. Liber Niger 
 Scaccarii, ed. Hearne, i. 257. Similarly the bishop of Durham's service 
 for his demesne land was that of ten knights, but it was not cut up into 
 fees. Ibid. 309. 
 
 ^ Liber Niger Scaccarii, i. 75 : ' Contigit tamen aliquando, ecclesia nostra 
 vacante, Rogerum episcopum Saresberiae illam ex mandato regis Henrici 
 avi vestri in custodiam annis quinque suscepisse. Tunc praedictus epi- 
 scopus de quodam tenemento quod tenuit R. de Monasteriis feodo censujili, 
 scilicet de duabus hidis, unum fefavit militem. Postmodo vero bonae 
 memoriae R. praedecessore raeo constituto abbate, per justitiani regis 
 Henrici et consilio praefati episcopi R. feoda praedicta ad antiquum statum 
 revocata sunt ; et quos episcopus constituit milites facti sunt ceusuarii.' 
 
 ^ An objection to this argument may be found in a clause of the so- 
 called Charter of the Conqueror (LI. Will. iii. § 8), in which the full-grown 
 doctrine of military tenure is expressed thus : ' Omnes comites et barones 
 et milites et servieutes, et universi liberi homines totius regni nostri prae- 
 dicti, habeant et teneant se semper bene in armis et in equis ut decet et 
 oportet ; et sint semper prompti et bene parati ad servitium suuui integrum
 
 264 Constitutional History. [chap. 
 
 Kniplits' that the foi*m in which the knights' fees appear when called 
 snUof"*^" on by Henry II for scutage was most probably the result of 
 composition. ^ ggj.jgg ^f compositions by which the great vassals relieved their 
 lands from a general burden by carving out particular estates 
 the holders of which performed the services due from the whole ; 
 it was a matter of convenience and not of tyrannical pressure. 
 S™ow. The statement of Ordericus Vitalis that the Conqueror 'dis- 
 tributed lauds to his ^nights in such fashion that the kingdom 
 of England should have for ever 60,000 knights, and furnish 
 them at the king's command according to the occasion ^ ' must 
 be regarded as one of the many numerical exaggerations of the 
 early historians. The officers of the Exchequer in the twelfth 
 century were quite unable to fix the number of existing 
 knight's fees. ^ 
 
 No rule as to It cannot even be granted that a definite area of land was 
 
 the extent of 1 • i > r> j* i i i_ 
 
 a knight's ncccssary to constitute a knight s fee ; for although at a later 
 
 period and in local computations we may find four or five 
 hides adopted as a basis of calculation, whei'e the extent of 
 the particular knight's fee is given exactly, it affords no ground 
 for such a conclusion. In the Liber Niger we find knights' fees 
 of two hides and a half '^, of two hides^, of four*, fivc^, and six 
 hides®. Geoffrey Ridel states that his father held 184 carucates 
 and a virgate, for which the service of fifteen knights was due, 
 but that no knights' fees had been carved out of it, the obliga- 
 tion lying equally on every carucate ''. The archbishop of York 
 
 nobi.s explendum et peragendum cnm opus fucrit, secmidnni quod nobis 
 debent de feodis et tenementis suis de jure facere ; et sicut illis statuimus 
 per commune consilium totius regrii nostri pracdicti, et illis dedimiis et 
 concessiinns in fcodo jure liaureilitario.' But this charter is a mere fabri- 
 cation, and gives no authority whatever to the articles which aie not found 
 in the earlier and simpler form. See Hoveden, ii. j)rcf. pp xxxv, xxxvi. 
 If this clause be genuine, or any part of it, it must be understood to refer 
 only to the cases in which the knights' fees had been actually a])p()rtioned. 
 
 ' Ord. Vit. iv. 7. ^ Lib. Nig. i. 64, 75. ^ Il.id. i. 75. 
 
 * Ihid. i. 79. •'' Ibid. i. 79, 104, 165. 
 
 " Ibid. i. 79 ; where one hide is rcckt)ned as the sixth jiart of a knight's 
 fee; and also as a fifth part : the dill'cn;nce being of course accounted for 
 by the rpiality of the land, or hy the tenour of the enfeoffment. 
 
 ' Ihid. i. 210: 'Nullus niilitum de veteri illo fefamento feofatus fuit 
 nominatim per feodum militis; se<I unaquacque carrueata terrao ad facien- 
 dum milites xv. par est alii ad omnia servitia facienda et in exercitibus et 
 in custodiis et ubique.'
 
 IX.] KnigJits' Fees. 265 
 
 had far more knights than his tenure required^. It is impossible The knight's 
 
 f'CG WJIS of 
 
 to avoid the conchision that the extent of a knight's fee was de- the annual 
 termined by rent or vahiation rather than acreage, and that the 
 common quantity was really expressed in the twenty librates^, 
 the twenty pounds' worth of annual value which until the reign 
 of Edward I was the qualification for knighthood ^. It is most 
 probable that no regular account of the knights' fees was ever 
 taken until they became liable to taxation, either in the form of 
 auxilium viilUum under Henry I, or in that of scutage under 
 his grandson. The facts, however, which are here adduced, 
 preclude the possibility of referring this portion of the feudal 
 
 innovations to the direct legislation of the Conqueror. It may Qnestion- 
 1 IT , . 1 1 1 I • 1 I 1 ^''l6 relation 
 
 be regai-ded as a secondary question Avhether the knighthood of knight- 
 here referred to was completed by the investiture with knightly knight- 
 arms and the honourable accolade. The ceremonial of knight- 
 hood was practised by the Normans, whereas the evidence that 
 the English had retained the primitive practice of investing 
 the youthful warrior is insufficient : yet it would be rash to 
 infer that so early as this, if indeed it ever was the case, every 
 possessor of a knight's fee received formal initiation before he 
 assumed his spurs. But every such analogy woi;ld make the 
 process of transition easier and prevent the necessity of any 
 general legislative act of change. 
 
 It has been maintained that a formal and definitive act. Feudalism 
 forming the initial point of the feudalisation of England, is to in the oath' 
 be found in a clause of the laws, as they are called, of the \viiHam.^^ 
 Conqueror ; which directs that every free man shall affirm by 
 covenant and oath that ' he will be faithful to King William 
 Avithin England and without, will join him in preserving his 
 
 ' Lib. Nig. i. 303 : ' Sciatis, domine, quod .^super dominium archiepisco- 
 patus Eboracensis nullum feodum est militi.s, quoniam tot habemus fefatos 
 inilites per quos acquietavimus omne servitium quod vohis debemus, sicut 
 et praecessores nostri fecerunt, at plures etiam habemus qnam vobis debe- 
 amus. Antecessores enim nostri, non pro necessitate servitii quod deberent, 
 sed quia cognatis et servientibus suis providere volebant, plures quam debe- 
 bant regi feodaverunt.' 
 
 ^ See above, p. 262. In the return of Nigel de Luvetot in the Liber 
 Niger, i. 758, the fractions of the knights' fee are calculated in solidates, 
 or shillings' worths. See also pp. 293, 294. 
 
 * Select Charters, pp. 446, 447. Cf. Gueist, Verwalt. i. 116, 117.
 
 166 
 
 Constikd'ional History. 
 
 [chap. 
 
 The general lands and honour with all fidelity, and defend him against his 
 
 oathofalle- . . . ... 
 
 giance is not enemies ^.' But this iniunction is little more than the demand 
 
 feudal. 1 r. 1, • 1 . , 
 
 01 the oath or allegiance which had been taken to the Anglo- 
 Saxon kings, and is here required not of every feudal dependent 
 of the king, but of every freeman or freeholder whatsoever. In 
 that famous Council of Salisbury of a.d. io86, which Avas sum- 
 moned immediately after the making of the Domesday survey, 
 we learn from the Chronicle that there came to the king ' all his 
 witan, and all the landholders of substance in England whose 
 vassals soever they were, and they all submitted to him, and 
 became his men and swore oaths of allegiance that they would 
 be faithful to him against all others.' In this act has been seen 
 the formal acceptance and date of the introduction of feudalism, 
 but it has a very different meaning. The oath described is the 
 oath of allegiance, combined with the act of homage, and obtained 
 from all landowners whoever their feudal lord might be ^. It 
 
 The oath 
 taken at 
 Salisbury 
 was really 
 aiiti-l'eudal. 
 
 ^ LI. Will. I, § 2, below, note 2. See Hoveden, 'ii. pref. pp. xxv. sq. 
 where I have attempted to prove the spuriousness of the document called 
 the charter of William I printed in the Ancient Laws, ed. Thorpe, p. 2II. 
 The way in which the regulation of the Conqueror here referred to, has 
 been misunderstood and misused is curious. Lambarde in the Archaio- 
 nomia, p. 170, printed the false charter, in which this genuine article is 
 incorporated, as an appendix to the French version of the Conqueror's 
 laws ; numbering tiie clauses 51 to 67; from Lambarde the whole thing 
 was transferred by Wilkins into his collection of Anglo- Saxon laws. 
 Blackstone, Conmientaries, ii. 49, suggested that ' perhaps the very law 
 [which introduced feudal tenures] tlius made at the Council of Salisbury, is 
 that which is still extant and couched in these remarkable words,' i.e. the 
 injunction in question; and referred to Wilkins, p. 228. Ellis, in the in- 
 troduction to ijomcsday, i. 16, (|uotes Blackstone, but adds a reference to 
 Wilkins witliout verifying Blackstone 's citation from his Collection of Laws, 
 substituting for that work the ConrUia in which the law does not occur. 
 Many modern writers have followed him in referring the enactment of the 
 article to tho Council of Salisbury. 
 
 "^ It is as well to give here the text of both passages. That in the laws 
 runs thus : ' Statuimus ctiaiu ut omnis lil)er homo foedere et Sacramento 
 affirmet (juod infra et extra Angliam Willelmo regi fideles esse volunt, 
 terras et honorem illius omni tidclitate cum eo servare et ante eum contra 
 inimicos defendere.' Select Charters, p. 80. The homage done at 
 Salisbury is dcscrihed by Florence thus ; ' Nee multo post mandavit ut 
 archiepiscopi, episcopi, abbates, comites et baroncs, et vioecoraites cum 
 suis nulitihus die Kalcnd;irum Angustartnn sil)i occuri-erent Saresberiae ; 
 quo cum venisscnt, milites eorum sibi fidclitati;ni contra omnes lumiines 
 jurarc coogit.' I'hc < 'lironicle is a little more full, ' Thar him conion to his 
 witan and ealle tlia landsittimdo men the ahtes wieron ofcr call Engleland, 
 WcEJTon tbuis luaunes men the hi waeron, and ealle hi bugou to him and
 
 IX.] importance of Feudal Organisation. 16'] 
 
 is a measure of precaution taken against the disintegrating 
 
 power of feudalism, providing a direct tie between the sovereign 
 
 and all freeholders which no inferior relation existing between 
 
 them and the mesne loi'ds would justify them in breaking. But 
 
 this may be discussed further on. The real importance of the it shows that 
 
 passage as bearing on the date of the introduction of feudal theory was 
 
 tenure is merely that it shows the system to have already become accepted. 
 
 consolidated ; all the landowners of the kingdom had already 
 
 become, somehow or other, vassals, either of the king or of some 
 
 tenant under him. The lesson may be learned from the fact of 
 
 the DomQsday survey. 
 
 97. The introduction of such a system would necessarily have ''"^^^p^j""' 
 effects far wider than the mere modification of the law of tenure ; ijcy was to 
 
 defeat tlic 
 
 it might be regarded as a means of consolidating and concentrating disruptive 
 the whole machinery of government; legislation, taxation, iudica- feudal insti- 
 
 *' ° ^ o ' ^ 'J tutious. 
 
 ture, and military defence were all capable of being organised on 
 the feudal principle, and might have been so had the moral and 
 political results been in harmony with the legal. But we have 
 seen that its tendency when applied to governmental machinery 
 is disruptive. The gi'eat feature of the Conqueror's policy is 
 his defeat of that tendency. Guarding against it he obtained 
 recognition as the king of the nation and, so far as he could 
 imderstand them and the attitude of the nation allowed, he 
 maintained the usages of the nation. He kept up the popular 
 institutions of the hundred court and the shire court ^. He con- 
 firmed the laws which had been in use in King Edward's days 
 with the additions which he himself made for the benefit, as he 
 especially tells us, of the English 2. We arc told, on what seems 
 
 wasron his menn and him hold athas sworon thtet hi wohion ongean ealle 
 othre men him hoUle beon.' Gneist, Verwalt. i. Ii6 rightly points out this 
 oath as giviu* to the English polity a direction very diiferent from that 
 of the continental states. 
 
 > Statutes of William, § 8 : ' Requiratur hundredus et comitatus sicut 
 antecessores nostri statuerunt.' 
 
 ^ Ibid. § 7 : ' Hoc quoque praecipio et volo ut onmes habeant et 
 teneant legem Edwardi regis in ten-is et in omnibus rebus, adauctis iis 
 quae constitui ad utilitatem populi Anudorum.' This is re-echoed by 
 Henry I in his Charter, § 13, ' Lagam Edwardi regis vobis reddo cum 
 illis emcndationibus quibus pater mens earn emendavit consilio baronum 
 suorum.'
 
 268 
 
 ConstHutlonal ITisfory. 
 
 [chap. 
 
 Mainten- 
 ance of 
 national 
 customs. 
 
 William's 
 laws a re- 
 issue of the 
 earlier codes, 
 
 Mainten- 
 ance of the 
 national 
 militia. 
 
 Of the 
 
 witena- 
 
 gemot. 
 
 to be the highest legal authority of the next century, that he 
 issued in his fourth year a commission of inquiry into the 
 national customs, and obtained from sworn representatives of 
 each county a declaration of the laws under which they wished 
 to live ^. The compihition that bears his name is very little 
 more than a reissue of the code of Canute. And this proceed- 
 ing helped greatly to reconcile the English people to his rule. 
 Although the oppressions of his later years were far heavier 
 than the measures taken to secure the immediate success of the 
 Conquest, all the troubles of the kingdom after a.d. 1075, in his 
 sons' reigns as well as in his own, proceeded from the insubordi- 
 nation of the Normans, not from the attempts of the English to 
 dethrone the king. Very early they learned that, if their interest 
 was not the king's, at least their enemies were his enemies ; 
 hence they are invariably found on the royal side against the 
 feudatories. 
 
 This accounts for the maintenance of the national force of 
 defence, over and above the feudal army. The fyrd of the 
 English, the general armament of the men of the counties and 
 hundreds, was not abolished at the Conquest, but subsisted even 
 through the reigns of William Rufus and Henry I, to be 
 reformed and reconstituted under Henry II ; and in each reign 
 it gave proof of its strength and faithfulness. The witenagemot 
 itself retained the ancient form ; the bishops and abbots formed 
 a chief part of it, instead of being, as in Normandy, so insignificant 
 an element that their very participation in deliberation has been 
 doubted. Tlie king sat crowned three times in the year in the old 
 )»r)yal towns of Westminster, Winchester, and Gloucester^, hearing 
 
 ' ' Willolmns rex quarto anno regni sui, consilio haronum suonim fecit 
 Runimoneri per univcrsos consulalus Angliao Anglos nobiles et sapientes et 
 sua lego cruditoH ut coruni et jura et consuetudiiies ah ipsis audiret. 
 Electi igitur de singulis totius j)atriae coniitatibns viri duodecim jure- 
 jurando confirrnaverunt prime ut, quoad pos.sent, recto tramite neque ad 
 dextrain neque ad winistrain partem devertentes legum suarum consuetu- 
 dineni et sancita patefacerent, nil praetennittentes, nil addentes, nil j)raevari- 
 cando mutantes.' Ifoveden, ii. 218. The authority on which the statement 
 i.s made seenw to he that of tlie justiciar Rannlf (Ilanvill. Sec Hoveden, ii. 
 pref. p. xlvii. According to the tradition jjrcserved in the same document 
 the lavvR ultimately granted hy William were those of Edgar. Ibid. p. 235. 
 
 ^ Chron. 8ax. a.d. 1087. W. Malmesb. G. K. iii. § 279.
 
 IX.] Counteracfiou of Feudal Ideas. 269 
 
 the complaints of his people, and executing such justice as his 
 knowledge of their law and language and his own imperious will 
 allowed. In all this there is no violent innovation, only such No violent 
 
 11 -11 1 f 1 (- innovation. 
 
 gradual essential changes as twenty eventiul years 01 new actors 
 and new principles must bring, however insensibly the people, 
 themselves passing away and being replaced by tlieir children, 
 may be educated to endurance. 
 
 98. It would be wrong to impute to the Conqueror any Chanftes 
 
 .. . ... /Y>.i resulting 
 
 intention 01 deceiving the nation by maintaining its official from change 
 forms whilst introducing new i^rinciples and a new race oftrators. 
 administrators. "What he saw required change he changed with 
 a high hand. But not the less surely did the change of ad- 
 ministrators involve a change of custom, both in the church and 
 in the state. The bishops, ealdormen, and sheriffs, of English 
 birth were replaced by Normans : not unreasonably perhaps, 
 considering the necessity of preserving the balance of the state. 
 With the change of officials came a sort of amalgamation or 
 duplication of titles ; the ealdorman or earl became the comes 
 or count ; the sheriff became the vicecomes ' ; the office in each 
 case receiving the name of that which corresponded most closely 
 Avith it in Normandy itself. With the amalgamation of titles 
 
 * The correspondence of the offices of count and earl is obvious and need 
 not be discussed further, since comes had even before the Conquest been 
 adopted as the Latin word for earl or ealdorman; see above, pp. 112, 156, 
 158. The identification of the vicecomes with the sheriff requires a little 
 more illustration, for many writers have tried to explain the term cas if it 
 were of native growth and have been accordingly puzzled by the fact that 
 the vicecomes is the vicegerent, not of the earl, but of the king. See Madox, 
 Dialogus de Scaccario, pp. 31, 32. Hence also, when it was ascertained 
 that the vicecomes was imj)orted full-grown from Normandy, it was thought 
 probable that the comes whom he re()resented there was the comes Nonnun- 
 nonim, the duke of Normandy. But the teiiu is really one of Frank 
 origin. The vicecomes is the missus comitis of the Karolings, as dis- 
 tinguished from the vicarius or centenarius, who stands to him in the same 
 subaltern relation in which the vicecomes stands to the comes ; but he is 
 the judicial representative of the Karolingian comes : the name appears 
 first in Southern France under Lewis tiie Pious, but never was domesticated 
 in Germany. Sohm, Fr. E. G. Verfg. pp. 508-525. It had been main- 
 tained in Normandy by the Normans without any question of verbal cor- 
 rectness, and was in the same loose way transferred to England. The 
 duties of the Norman viscounts very much of course resembled tliose of the 
 sheriffs both fiscally and judicially, but we know little of their action before 
 the Conquest.
 
 27° 
 
 Constitutional History. 
 
 [chap. 
 
 Xew names 
 brill 2 in new 
 principles. 
 
 Hereditary 
 jurisdic- 
 tions, a 
 thing to be 
 avoided. 
 
 William 
 (rives very 
 few f'arl- 
 doms. 
 
 came an importation of new principles and possibly new 
 functions ; for the Norman count and viscount had not exactly 
 the same customs as the earls and sheriffs. And this ran up 
 into the highest grades of organisation; the king's court of 
 counsellors was composed of his feudal tenants ; the ownership 
 of land was now the qualification for the witenagemot instead 
 of wisdom ; the earldoms became fiefs instead of magistracies, 
 and even the bishops had to accept the status of barons. There 
 was a very certain danger that the mere change of persons 
 might bring in the whole machinery of hereditaiy magistracies, 
 and that king and people might be edged out of the adminis- 
 tration of justice, taxation, and other functions of supreme or 
 local independence. Against this it was most important to 
 g-uard ; as the Conqueror learned from the events of the first 
 year of his reign, when the severe rule of Odo and William 
 Fitz-Osbern had provoked Herefordshire and Kent into hopeless 
 resistance. 
 
 It was no part of William's policy to break up the unity of 
 the royal authority by the creation of great hereditary territorial 
 jurisdictions : but the absolute necessity of measures by which 
 the disruptive tendency should be defeated forced itself upon 
 him probably by degrees ; and every opportunity that was 
 furnished by the forfeitures of the first ten years of the reign 
 was turned to progressive advantage. His first earls were 
 merely successors of the earls of Edward the Confessor ; 
 "William Fitz-Osbern held Herefordshire as it had been held by 
 earl Ealph ; Ealph Guader, Roger Montgomery, and Hugh of 
 Avranchcs filled the places of Edwin and Morcar and the 
 brothers of Harold. But the conspiracy of the earls in a.d. 1074 
 opened William's eyes to the danger of this proceeding, and fi'om 
 that time onward he governed the provinces through sheriffs 
 immediately dependent on himself, avoiding the foreign plan of 
 appointing licrcditary counts, as well as the English custom of 
 ruling by vice-regal caldornicn. He was however very sparing in 
 giving earldoms at all, and inclined to confine the title to those 
 who were already counts in Normandy or in France. To this 
 plan there were some marked exceptions, which may be accounted
 
 IX.] Great Earldoms. 271 
 
 for either on the gi'ound that the arrangements had been com- 
 pleted before the need of watchfuhiess was impressed on the king 
 by tlie treachery of the Normans, or on that of the exigencies 
 of national defence. In these cases he created, or suffered the Existence of 
 continuance of, great palatine jurisdictions ; earldoms in which earldoms. 
 the earls Avere endowed with the superiority of whole counties, 
 so that all the landowners held feudally of them, in which they 
 received the whole profits of the courts and exercised all the 
 regalia or royal rights, nominated the sheriffs, held their own 
 councils and acted as independent princes except in the owing 
 of homage and fealty to the king. Two of these palatinates, the 
 earldom of Chester and the bishopric of Durham, retained much of 
 their character to our own days\ A third, the palatinate of bishop 
 Odo in Kent, if it were really a jurisdiction of the same sort, 
 came to an end when Odo forfeited the confidence of his brother 
 and nephew^. A fourth, the earldom of Shropshire, which is not 
 commonly counted amongst the palatine jurisdictions, but which 
 possessed under the ^Montgomery earls all the characteristics of 
 such a dignity, was confiscated after the ti'eason of Robert of 
 Belesme by Henry I^. These had been all founded before the 
 conspiracy of a.d. 1074 ; they were also, like the later loi'dships Their 
 of the marches, a part of the national defence ; Chester and character. 
 
 ' The earldom of Chester has, with the principality of Wales, belonged 
 to the eldest son of the sovereign since 1301 ; the palatinate jurisdiction of 
 Durham was transferred to the crown in 1836 by act of Parliament, 
 6 Will. IV, c. 19. 
 
 * The palatine jurisdiction of Odo rests on the authority of Ordericus 
 Vitalis, who speaks as if he understood what he meant by tlie term ; he 
 mentions the gift of Kent three times, (i) in A.D. 1067, ' totam Cantiam 
 fratri suo commcndavit ' ; at that time the archbishoj) Stigand was a 
 prisoner, and Odo was acting as cojusticiar ; (2) under the year 10S7 he 
 speaks of him as viceroy, ' in Anglia praeposuit Cantiae regno' ; and (3) in 
 108S, 'palatinus Cantiae comes erat, et plures sub se comitcs virosque 
 potentes habebat.' This seems distinct enough, but it may be explained 
 perhaps by supposing the writer to have confused Odo's po.sition as jus- 
 ticiar with his territorial endowment in Kent. The overwhelming character 
 of his power may be inferred from the action of the Placitum apad Pin- 
 nendcnam, below, p. 277 ; in the record of which he is called comes Cantiae ; 
 Ang. Sac. i. 335 ; as he is by Osbern, his contemporary : Vita S. Dun- 
 stani, p. 144. 
 
 ^ Mr. Eyton, in his History of Shropshire, claims it as a palatine earldom 
 for Roger Montgomery, vol. i. 22, 70, 242 sq. See too Nicolas's Historic 
 Peerage, ed. Courtliope, p. 434, where Selden is quoted as an authority for 
 the same statement : and the Keport on the Dignity of a peer, i. 407 ; and 
 see below. Chapter XI,
 
 27a 
 
 Constitutional Kistory. 
 
 [chap. 
 
 Palatine 
 earldoms. 
 
 SherilMonis 
 tx'easionally 
 hereditary. 
 
 Contijfiious 
 
 territorial 
 
 accujiiu- 
 
 lations 
 
 avoided. 
 
 Shropshire kept the Welsh marches in order, Kent was the 
 frontier exposed to attack from Picardy, and Durham, the patri- 
 mony of St. Cuthbert, lay as a sacred boundary between England 
 and Scotland; Northumberland and Cumberland were still a 
 debateable ground between the two kingdoms. Chester was 
 held by its earls as freely by the sword as the king held 
 England by the crown ; no lay vassal in the county held of the 
 king, all of the earl. In Shropshire there were only five lay 
 tenants in capite besides Roger Montgomeiy ; in Kent bishop 
 Odo held an enormous proiJortion of the manors, but the nature 
 of his jurisdiction is not very clear, and its duration is too short 
 to make it of much importance. If William founded any earl- 
 doms at all after a.d. 1074, which may be doubted, he did it on 
 a very difierent scale. 
 
 The hereditary sheriffdoms he did not guard against with 
 equal care. The Norman viscounties were hereditary \ and 
 there was some risk that the English ones would become so 
 too ; and with the worst consequences, for the English counties 
 were much larger than the bailiwicks of the Norman viscount, 
 and the authority of the sheriff, when he was relieved from the com- 
 pany of the ealdorman, and was soon to lose that of the bishop, 
 would have no check except the direct control of the king. If 
 William perceived this, it was too late to prevent it entirely ; 
 some of the sheriffdoms became hereditary, and continued to be 
 so long after the abuse had become constitutionally dangerous". 
 
 The independence of the greater feudatories was still further 
 limited by the principle, which the Conqueror seems to have 
 observed, of avoiding the accumulation in any one hand of 
 a great number of contiguous estates ^ The rule is not without 
 
 ^ See Rtajileton, ' Rotuli Scaccarii Normanniae,' i. pp. Iviii, lix, &c. 
 
 ' See Cliapter XI. 
 
 * See Thorpe's Lappenberg. iii. 201. The estates of Odo lay in seventeen 
 counties, those of Robert of Mortain in twenty ; P'ustace of Boulogne had 
 fiefs in twelve counties, and Hugh of Avranches in twenty-one, besides his 
 palatine earldom. Gneist, Self-government, i. 66, 67, gives more details, 
 chiefly from Kelham's Domesday illustrated. There are forty-one great 
 vassals, each of whom lias estates in more than six counties : of these five 
 have lands in seven, six in eight, two in nine, four in ten, four in eleven, 
 three in twelve, inu; in thirteen, two in fourteen, one in twenty, and one 
 in twenty-one ; all Ihese ai'e laymen. The greatest number of manors la 
 held by Robert of Moii-ain, 793 ; Odo has 439 ; Alan of Brittany 442.
 
 IX.] Manorial System. 273 
 
 some important exceptions, and it may have been sugpfestecl by Distributioti 
 
 . . c ^ , T of great liels 
 
 the diversity of occasions on which the fiefs were bestowed, but in distant 
 
 . counties, 
 
 the result is one which William must have foreseen. An insub- 
 ordinate baron whose strength lay in twelve different counties 
 would have to rouse the suspicions and perhaps to defy the arms 
 of twelve powerful sheriffs, before he could draw his forces to 
 a head. In his manorial courts, scattered and unconnected, he 
 could set up no central tribunal, nor even force a new custom 
 upon his tenants, nor could he attempt oppression on any exten- 
 sive scale. By such limitation the people were protected and 
 the central power secured. 
 
 Yet the changes of ownership, even thus guarded, wrought '^^"f^ theory 
 
 ° _ ^' o ' o oflheontrm 
 
 other changes. It is not to be supposed that the Norman of manors. , 
 baron, when he had received his fief, proceeded to carve it 
 out into demesne and tenants' land as if he were making a 
 new settlement in an uninhabited country. He might indeed 
 build his castle and enclose his chase with very little re- 
 spect to the rights of his weaker neighbours, but he did not 
 attempt any such radical change as the legal theory of the 
 creation of manors seems to presume. The name * manor ' is of 
 Norman origin, but the estate to which it was given existed, 
 in its essential character, long befoi-e the Conquest ; it received 
 a new name as the shire also did, but neither the one nor the 
 other was created by this change. The local jurisdictions of the Growth of 
 
 ,,, „ , .,.,.., manorial 
 
 thegns who had grants 01 sac and soc, or who exercised judicial customs, 
 functions amongst their free neighbours, were identical with the 
 manorial jurisdictions of the new owners. It may be con- 
 jectured with great probability that in many cases the weaker 
 freemen, who had either willingly or under constraint attended 
 the courts of their great neighbours, were now, under the general 
 infusion of feudal principle, regarded as holding their lands of 
 them as lords ; it is not less probable that in a great number of 
 grants the right to suit and service from small landowners 
 passed from the king to the receiver of the fief as a matter of 
 course ; but it is certain that even before the Conquest such 
 a proceeding was not uncommon ; Edward the Confessor hud 
 trausfeiTcd to St. Augustine's monastery a number of alodiaries 
 
 T
 
 274 Constitutional History. [chap. 
 
 in Kent \ and every such measure in the case of a church must 
 
 Manorial have had its parallel in similar grants to laymen. The manorial 
 institutions. ^ _ ° •' 
 
 system brought in a number of new names ; and perhaps a 
 
 duplication of offices. The gerefa of the old thegn, or of the 
 ancient township, Avas replaced, as president of the courts, by 
 a Norman steward or senesclial ; and the bydel of the old 
 system by the bailiff of the new ; but the gerefa and bydel still 
 continued to exist in a subordinate capacity as the grave or 
 reeve and the bedell ; and when the lord's steward takes his 
 place in the county court, the reeve and four men of the town- 
 ship are there also. The common of the township may be 
 treated as the lord's waste, but the toAvnsmen do not lose their 
 Estimate of customary share. The changes that take place in the state have 
 
 the amount . . .. . . 
 
 of cliange. their resultnig analogies in every village, but no new England is 
 
 created ; new forms displace but do not destroy the old, and old 
 
 rights remain, although changed in title and foixed into symmetry 
 
 The new with a new legal and pseudo-historical theoiy. The changes 
 
 pressive in may not seem at first sight very oppressive, but they opened the 
 
 way for oppression ; the forms they had introduced tended, 
 
 under the spirit of Norman legality and feudal selfishness, to 
 
 become hard realities, and in the profound miseries of Stephen's 
 
 reign the people learned how completely the new theory left 
 
 them at the mercy of their lords ; nor were all the reforms of 
 
 his successor more stringent or tlie struggles of the century that 
 
 followed a whit more impassioned, than wei'e necessary to protect 
 
 the English yeoman from the men who lived upon his strength. 
 
 99. In attempting thus to estimate the real amount of change 
 
 introduced by tlie feudalism of the Con(iuest, many points of 
 
 further interest have been touched upon, to which it is necessary 
 
 to recur only so far as to give them their proper jdace in a more 
 
 Position of general view of the reformed organisation. The Norman king 
 the Norman ?.„,,.„ . , * 
 
 king. IS stul the kmg of the nation. He has become the supreme 
 
 landlord ; all estates are held of him mediately or immediately, 
 but he still demands the allegiance of all his subjects. The oath 
 which he exacted at Salisbury in a.d. 1086, and which is cm- 
 
 * Kerable, C. D. iv. 239. Sec above, p. 189,
 
 IX.] Alliance of King and People. 275 
 
 bodied in the semi-lcfjral form already quoted, was a modification Birect rcia- 
 
 ° J n ' tionsbe- 
 
 01 the oath taken to Edmund ^, and was intended to set the tween king 
 1 1 T • I- 1 T 1 1 • • • 1 • ^"^ people, 
 
 general obligation 01 obedience to the king in its proper relation 
 
 to the new tie of homage and fealty by which the tenant 
 was bound to his lord. All men continued to be primarily the 
 king's men, and the public peace to be his peace. Their lords 
 might demand their service to fulfil their own obligations, but 
 the king could call them to the fyrd, summon them to his courts, 
 and tax them without the intervention of their lords ; and to 
 the king they could look for i)rotection against all foes. Accord- 
 ingly the king could rely on the help of the bulk of the free 
 people in all struggles with his feudatories, and the people, find- 
 ing that their connexion with their lords would be no excuse for 
 unfaithfulness to the king, had a further inducement to adhere 
 to the more permanent institutions. 
 
 In the department of law the direct changes introduced by Amount of 
 ±^ r^ •»«■ 1 1 • in change in 
 
 the Conquest were not great. Much that is regarded as pecu- jimspru- 
 
 liarly Norman was developed upon English soil, and although certain. 
 
 originated and systematised by Norman la^v5'ers, contained 
 
 elements which would have worked in a very different way in 
 
 Normandy. Even the vestiges of Karolingian practice which 
 
 appear in the inquests of the Norman reigns are modified by 
 
 English usage. The great inquest of all, the Domesday survey, Inquests. 
 
 may owe its pi'inciple to a foreign source ; the oath of the reporters 
 
 may be Norman, but the machinery that furnishes the jurors is 
 
 native ; * the king's barons inquire by the oath of the sheriff of 
 
 the shire, and of all the barons and their Frenchmen, and of the 
 
 whole hundred, the priest, the reeve, and six ceorls of every 
 
 township ^.' The institution of the collective Frankpledge, Frank- 
 , . , .... . . . pledges. 
 
 which recent writers incline to treat as a Norman innovation, is 
 
 so distinctly coloured by English custom that it has been gene- 
 rally regarded as purely indigenous. If it were indeed a pre- 
 caution taken by the new rulers against the avoidance of justice 
 by the absconding or harbouring of criminals, it fell with ease 
 into the usages and even the legal terms which had been common 
 
 ' Above, p. 148. ' Domesday of Ely; Domesd. iii. 497. 
 
 T 2
 
 2"] 6 Constitutional History. [chap. 
 
 Tri.il by fur otlier similar purposes since the reign of Atlielstan ^. The 
 trial by battle, which on clearer evidence seems to have been 
 brought in by the Normans, is a relic of old Teutonic jurispru- 
 dence, the absence of which from the Anglo-Saxon courts is far 
 more curious than its introduction from abroad \ 
 
 Jurisdiction The organisation of jurisdiction required and underwent no 
 
 of the sheriff , . , - _ i i i i 
 
 unaltered, great change m these respects. The JNorman lord who under- 
 took the office of sheriff had, as we have seen, more unrestricted 
 power than the sheriffs of old. He was the king's representative 
 in all matters judicial, military, and financial in his shire, and 
 had many opportunities of tyrannising in each of those depart- 
 ments : but he introduced no new machinery. From him, or 
 from the courts of which he was the presiding officer, appeal 
 lay to the king alone ; but the king was often absent from 
 England and did not understand the language of his subjects. 
 
 Thejn.sticiar lu his absence the administration was entrusted to a justiciar, 
 
 as the king's «. i i • i ^ \ 
 
 deputy. a regent or lieutenant of the kingdom ; and the convenience 
 
 being once ascertained of having a minister who could in the 
 whole kingdom represent the king, as the sheriff did in the 
 shire, the justiciar became a permanent functionary. This 
 however cannot be certainly affirmed of the reign of the Con- 
 queror who, when present at Christmas, Easter, and Whit- 
 suntide, held great courts of justice as well as for other purposes 
 of state ; and the legal importance of the office belongs to a 
 later stage. The royal court, containing the tenants in chief 
 of the crown, both lay and clerical, and entering into all 
 the fuiicti(jns of the witenagemot, was the sujjreme council 
 of the nation, with the advice and consent of which the king 
 legislated, taxed, and judged. 
 
 In the one authentic monuniont of AVilliam's jurisprudence, 
 the act which removed the bishops from the secular courts 
 
 • See aVjovc, pp. 87-F9. 
 
 * Pa.l}rr;ive arj(ue», from tliu fact tliat trial hy hattle is mentioned in 
 II record of a Worcester shiremoot soon after tlie (Vmijucst, that the custom 
 may poasildy have been of earlier introduction ; but it is never mentioned 
 in the laws, and as exemption from it vk^as one of the privileges conferred 
 by ch.'irter on towns in the next century, there can be no doubt that it 
 was an innovation, and one which was much disliked. See Palgrave, Com- 
 monwealth, p. 225.
 
 IX.] The National Council. 277 
 
 and recofi^niscd their spiritual jurisdictions, he tells us that he The Con- 
 
 •11 1 c 1 1 1 • 1 qiicror Jejris- 
 
 acts ' With the common councu and counsel of the archbishops, latfs with 
 hishops, abbots, and all the princes of the kingdom \' The of his 
 ancient summary of his laws contained in the Textus Roffensis 
 is entitled, ' Wliat William King of the English with his princes 
 enacted after the conquest of England^;' and the same form 
 is preserved in the tradition of his confirming the ancient 
 laws reported to him by the representatives of the shires. The 
 Anglo-Saxon Chronicle enumerates the classes of men who 
 attended his great courts : ' there were with him all the great 
 men over all England, archbishops and bishops, abbots and 
 earls, thegns and knight s'V 
 
 The great suit between Lanfranc as archbishop of Canterbury Atrinlofflie 
 
 ° _ ^ CoiKjueioi' s 
 
 and Odo as earl of Kent, which is perhaps the best reported reign. 
 trial of the reign, was tried in the county court of Kent before 
 the king's representative, Gosfrid bishop of Coutances ; Avhose 
 presence and that of most of the great men of the kingdom seem 
 to have made it a witenagemot. The archbishop pleaded the 
 cause of his chui'ch in a session of three days on Penuendeii 
 Heath*; the aged South-Saxon bishop, Ethelric, was brought by 
 the king's command to declare the flncient customs of the laws,' 
 
 ' 'Commnni concilio et consilio archiepiscoporum, episcoporum et ab- 
 batum et omnium principum regni mei.' Ancient Laws, p. 213; Select 
 Charters, p. 82. 
 
 ^ Select Charters, j). 80. ^ Chron. Sax. a.d. 1087. 
 
 * It is printed in Anglia Sacra, i. 334-336, from the Textus Roffensis, 
 and in Wilkins, Concilia, i. 323, 324. The litigation is referred to in Domes- 
 day, 1. fol. t;. From the same source we have an accoimt of another trial 
 of some interest, between Gundulf bishop of Kochtster and Picot sheriff of 
 Cambridgeshire. The suit was broui;ht liefore tlie king ; he called to- 
 gether the county court of Camlirids:esliire, and directed that the right 
 to the disputed land should be decided by their judgment. Bishop Odo 
 presided. The Cambridgeshire men, in fear of the sheriif, decided against 
 Gundulf. Odo thereupon directed that they should choose twelve out of 
 their number to swear to the truth of their report. The twelve swore 
 falsely ; and one of them having confessed his perjury to Odo, he ordered 
 the sheriff to send the jurors up to London, and with them twelve of the 
 best men of the county. He also sunnnoned a body of barons. This 
 court of appeal reversed the decision of the shire. The twelve best men 
 tried to deny their complicity with the perjurers, and Odo offered them 
 the ordeal of iron. They failed imder the test, and were finetl by the 
 rest of the county tliree hundred pounds, to be paid to the king. Ang. 
 Sac. i. 339; see below, Chap. XI.
 
 278 
 
 Constitutional History. 
 
 [chap. 
 
 Trial at 
 Pennenden. 
 
 Principle of 
 amalgama- 
 tion. 
 
 The same 
 principle 
 carried out 
 ill taxation. 
 
 and with liim several otlier Englishmen skilled in ancient laws 
 and customs. All these good and wise men supported the 
 archbishop's claim, and the decision was agreed on and deter- 
 mined by the Avhole county. The sentence was laid before the 
 king, and confirmed by him. Here we have probably a good 
 instance of the principle universally adopted ; all the lower 
 machinery of the court was retained entire, but the presence 
 of the Norman justiciar and barons gave it an additional 
 authority, a more direct connexion with the king, and the 
 appearance at least of a joint tribunal^ 
 
 The principle of amalgamating the two laws and nationalities 
 by superimposing the better consolidated Norman superstructure 
 on the better consolidated English substructure, runs through the 
 whole policy. The English system was strong in the cohesion of 
 its lower organism, the association of individuals in the township, 
 in the hundred and in the shire ; the Norman system was strong 
 in its higher ranges, in the close relation to the crown of the 
 tenants in chief whom the king had enriched. On the other 
 hand, the English system was weak in the higher organisation, 
 and the Normans in England had hardly any subordinate or- 
 ganisation at all. The strongest elements of both were brought 
 together. 
 
 100. The same idea of consolidating the royal power by 
 amalgamating the institutions of the two races was probably 
 followed also in the department of finance ; although in this 
 point neither party was likely to discern much immediate 
 l>enefit to any one but the king. William, whose besetting vice 
 was said by his contemporaries to be avarice, retained the 
 revenues of his predecessors and added new imposts of his own. 
 The ordinary revenue of the English king had been derived 
 solely from the royal estates and the produce of what had been 
 the folkland, with such commuted payments of fcormfultum, 
 or provision in kind, as represented either the reserved rents 
 from ancient possessions of the crown, or the quasi-voluntary 
 tribute ])ai(l Ity ilic nation to its chosen head. The Danegeld, 
 
 ' Exactly tlie winio ]>rincii)le was involved in the inHtitutiou of regular 
 eyrcH or circuits of the justices by Henry I or Henry II.
 
 IX.] The Bevenne. 279 
 
 that is, the extraordinary revenue arising from the cultivated land, The Dane- 
 
 — originally levied as tribute to the Danes, although it had been 
 
 continued long after the occasion for it had ceased, — had been 
 
 abolished by Edward the Confessor ^ The Conqueror not only 
 
 retained the royal estates, but imposed the Danegeld anew. In 
 
 A.D. 1084 he demanded a sum of six shillings from every hide 
 
 of land, three times the old rate'''. The measure may have been 
 
 part of the defensive policy which he adopted after discovering 
 
 the faithlessness of his brother Odo, and which connects itself 
 
 with the Domesday survey and the Salisbury council two 
 
 3ears later : but it became a permanent source of revenue. On Feudal 
 
 . . imposts, 
 
 the Norman side the supreme landlord was entitled to all the 
 
 profits of the feudal position, a description of income of which 
 
 we have no details proper to the reign of the Conqueror, but 
 
 which becomes prominent immediately after his death. It is 
 
 needless to observe that the actual burden of the feudal imposts, 
 
 as well as the older taxation, fell on the English ; for the 
 
 Norman lords had no other way of raising their reliefs, aids, 
 
 tallages, and the rest, than from the laboiu-s of their native 
 
 dependents. Tlie exaction may have been treated by them as 
 
 a tyrannical one, but the hardship directly affected the English. 
 
 The income thus accumulated was no doubt very great. The The Con- 
 
 '' ° _ querors 
 
 royal lands are known from Domesday to have produced in the income. 
 reign of AVilliam the Conqueror nearly £20,000^; and the 
 Danegeld of a.d. 1084, if levied from two-thirds of the hidage 
 of the kingdom, would be about as much more. To this must 
 be added the profits of jurisdictions and the other occasional 
 items which we have no means of estimating. Giraldus Cam- 
 brensis* mentions £40,000 as the amount which in his days 
 
 ' Edward imagined that he saw the devil sitting on the bags in the 
 treasury. Hoveden, i. no. Tlie author of the Dialogus de Scaccario says 
 that William turned the Danegeld from a regular into an occasional tax. 
 Lib. i. c. II. 
 
 '^ Chron. Sax. a.d. 1083 ; Flor. Wig. a.d. 1084 ; Freeman, Norm. Conq. 
 iv. 685. 
 
 ' Pearson, Early and Middle Ages, i. 385. 
 
 * De Inst. Princ. iii. c. 30: * Angliae, regum Anglorum tempore et 
 etiam ponultimi Edwardi Westmonasteriensis diebus, annul fiscales red- 
 ditus, sicut in rotulo Wintouiae reperitur, ad sexaginta millia marcarum 
 summam implebant.'
 
 28o 
 
 Constitutional Hidory. 
 
 [chap. 
 
 Income of 
 the Con- 
 queror. 
 
 Ecclesiasti- 
 cal policy 
 of the 
 Conqueror. 
 
 was regarded as representing the income ascribed, on the 
 evidence of Domesday, to Edward the Confessor. Ordericus 
 Vitalis, a well-informed Norman monk of the next centur}', 
 boldly states William's revenue at £io6i los. \\d. a day, 
 besides the profits of the law courts^ If, as has been cleverly 
 conjectured, this circumstantial statement refers properly to 
 the weekly revenue, we an-ive at a sum of between fifty and 
 sixty thousand pounds a year. A comparison with the revenue 
 of Henry I, which in his thii-ty-first year reached a gross amount 
 of £66,000, may show that this is not improbable^. But the 
 numerical statements of the early writers are very untrustworthy, 
 and no approach can yet be made to a precise estimate. It 
 is evident, however, that the same general principle was at 
 work in the collection of revenue as in the courts of justice 
 and in the furnishing of military defence. No class was left 
 untaxed ; all men had a distinct relation to the king over and 
 above the relation to their lords ; and the strongest points of 
 the two national systems are brought into joint working. 
 
 101. The ecclesiastical policy of the Conqueror presents marks 
 of coincidence, and also of contrast, with his secular adminis- 
 tration. There is the ?ame change of administrators, but not 
 the same fusion or modification of offices. The change of ad- 
 ministrators is gradual in the church as in the state, and nearly 
 as complete : the English church was drawn into the general 
 tide of ecclesiastical politics and lost nuich of its insular cha- 
 racter : it gained in symmetry and definiteness of action, and 
 was started on a new career. But the immediate motives of 
 William's measures are somewhat complex. His attack on 
 England was planned and carried out with the approval of Po})e 
 
 ' Onl. Vit. iv. 7 : 'Ipsi vero regi, ut fertur, mille et sexaginta librae 
 storiicnsis monetae, solidique triginta et tres oboli, ex justis redditibus 
 Angliae per siiigulos dies redduntur ; exceptis muneribus regiis et reatuum 
 redein])tioniijus, aliisque niultiplicibus negotiis quae regis aerarium quo- 
 tidie adaugent.' 
 
 ''■ Ben. Pet. ii. ])ref. xcix. The sum, calculated a.s carefully as I could 
 do it, is £66, 593, liut it includeK dcl)ts and old accounts, and cannot be 
 regarded aH an approximation totlietrue revenue. The trciKuro in Henry's 
 hands at bin death was at leabt £160,000, of which £100,000 fell to 
 Stejilieii, Will. MalnieHb. Hist. Nov. i. § 14; and £60,000 was in "Nor- 
 mandy, Ord. Vit. xiii. 19.
 
 IX.] Church ToVwy. 281 
 
 Alexander II, and the hard measure dealt out to the English Reiiitions to 
 
 . the pofje. 
 bishops personally was due quite as much to the desire of satis- 
 fying the pope, who had his own jealousies and grudges, as to 
 William's belief that the influence of the great ecclesiastics was 
 secretly working against him, or that the support of a strong 
 Norman hierarchy was absolutely necessary for his safety. But 
 William had no intention of following the papal guidance further 
 than was convenient to himself ; and in the great adviser whom 
 he chose on his own responsibility he found a very able and 
 conscientious helper. Lanfranc was a statesman as well as Influencf! of 
 a theologian, a lawyer as well as a scholar, and in feeling quite 
 as much an Englishman as a Norman : he was an Italian, too, 
 and, therefore perhaps, not a papalist \ Hence whilst attempt- 
 ing the reformation of abuses, which either the national easiness 
 and self-complacency, or the evil influence of the Norman clergy 
 had originated, he adopted no violent or rigorous scheme of 
 discipline, provoked no national antipathies, sacrificed neither 
 the state to the church nor the church to the state. His policy 
 was uniformly in agreement with the king's, and his personal 
 influence kept in harmonious working two systems, which con- 
 tained elements that after his death were to produce a long and 
 bitter quarrel. 
 
 William's own ideas of managing the church were probably William's 
 developed altogether in England itself. The Norman prelates, [i"v\vorked 
 with whom as duke he had to do, were either sons of the ruling Ensr'iand. 
 families^ or personally insignificant. They had not the position 
 of the English prelates with reference either to the jjeople or 
 to the duke. They were but a small element in his council, 
 and in no close relation with the native population, whilst in 
 
 • Several letters of Lanfranc and Gregory VIT are extant, from which 
 a certain amount of coolness may be inferred to have existed between 
 tliem. Gregory complains and Lanfranc excuses himself. See Freeman, 
 Norm. Conq. iv. 434-437. 
 
 ^ Ordericus names tliem, lib. iii. c. xi. Odo of Bayeux was the Con- 
 queror's brother: the bishop of Lisioux was brother of the coutit of En, 
 and the bishop of Avranches son of Count Ralph of Bayeux, both cousins 
 of the kiuLr; the bishop of Seez belonged to the family of Belesnie : Gosfrid 
 of Coutances was a mighty man on both sides the Channel. The arch- 
 bishop of Rouen and the bishop of Evreux were of less personal im- 
 portance.
 
 283 Constiiiitlonal Ilistory. [chap. 
 
 ^os'tio" of England they were the most numerous and coherent body in the 
 bishops. witenagemot ; and although many of Edward's bishoj:)s were 
 foreigners, they had inherited the loyalty and traditional sup- 
 poi't of the districts over which they presided. The ready sub- 
 mission of the witan in a.d. 1066 saved the bishops for the 
 moment: the Conqueror had no wish to make enemies, and 
 they had no champion to take the place of Harold. But when 
 in A.D. 1070 he had found that the influence of the episcopate 
 was so strong that it must be put into safer hands, and when the 
 legates of Alexander II demanded the humiliation of the igno- 
 rant supporters of the antipope Benedict and the enfoixement 
 of canonical order, he proceeded to displace most of the native 
 Deposition bishops. Then Stigand, who occupied two sees, one of which 
 
 of English ... 
 
 bishops. he had taken in the lifetime of a Norman predecessor, and who 
 had received the pall from a schismatic pope, was deposed and 
 imprisoned. With him fell his brother, the bishop of Elmham, 
 and the faultless bishop of Selsey whom he had consecrated, and 
 who might be regarded as sharing his schismatic attitude ^ The 
 brotlier bishops of Durham, Ethelwin and Ethelric, had incurred 
 the penalties of treason. York and Lichfield were vacant by 
 death. Dorchester had been filled up by the Norman Remigius 
 since the battle of Hastings ^. Hereford, Wells, Ramsbury, 
 Exeter, and London were already in the hands of foreigners. 
 It was by no act of extraordinary severity that the change was 
 made; but at the end of a.d. 1070 only two sees retained native 
 bishoj)S, Worcester and Rochester^. The way was open for 
 Lanfranc, and his appointment satisfied both king and pope. 
 Henceforth the bibho])S and most of the abbots were Norman * ; 
 
 ' Flor. Wifj. A.I). 1070. IJeiiiigiiis, in liis jirofession of obedience to 
 LaiifV.'iiic, nieiitioMH tlic mission of lcg;ite,s from the po[)e with orders that 
 all who had boon ordained by Stigand shoidd be dej)osed or .suspended. 
 
 * He too had been consecrated by Stigand, but the oflf'ence was not so 
 fatal in a Norman as in an Englishman ; he declares in his profession that 
 he was ignorant of Stigatid's uncanonical status. MS. Cotton, Cleopatra, 
 E. I. 
 
 ^ Siward of Rfx'hesler is said by William of Malmcsbury to have died 
 a few (lays after tlie Con(|iiest. lint he lived several yeurs longer, was 
 present at a council at Winchester in 1072, and died probably in 1075. 
 
 ' The deposition of the abbots was also gradual. See the Chronicle (ed. 
 Earle), pp. 271-275.
 
 IX.] Division of Church Courts. 283 
 
 but thcv, like the kinff, realised their new position as English- Character 
 
 . . • , 11 1 1 • p of the 
 
 men by adoption ; enterin<j immediately on all the claims or Conqueror's 
 , . , ,. , . bishops. 
 
 their predecessors and declaring that, so lar as tiieir power went, 
 
 the churches they espoused should suffer no detriment. The 
 Conqueror's bishops were generally good and able men, though 
 not of the English type of character. They were not mere 
 Norman barons, as was the case later on, but scholars and 
 divines chosen under Lanfranc's influence. The abbots were 
 less wisely selected, and had perhaps a more difficult part to 
 play, for the monasteries were still full of English monks, and 
 preserved, and probably concentrated, most of the national 
 aspirations after deliverance which all came to naught. 
 
 The most important ecclesiastical measure of the reign, the Ecclesiasti- 
 separation of the church jurisdiction from the secular business 
 of the courts of law, is unfortunately, like all other charters of 
 the time, undated. Its contents however show the influence 
 of the ideas which under the genius of Hildebrand were forming 
 the character of the continental churches. From henceforth the 
 bishops and archdeacons are no longer to hold ecclesiastical 
 pleas in the hundred-court, but to have courts of their own ; to 
 try causes by canonical not by customary law, and allow no 
 spiritual questions to come before laymen as judges. In case 
 of contumacy the offender may be excommunicated and the king 
 and sheriff will enforce the punishment. In the same way lay- 
 men are forbidden to interfere in spiritual causes ^ The reform 
 
 * Ancient Laws, ed. Tliorpe, p. 213 : ' Ut nullus episcopus vel arcliidia- 
 coiius de legibus episcopalilms aniplius in liundret placita teneant, nee 
 caiisam quae ad regimen animarum pertinet ad judicium secularium ho- 
 minum adducaut, sed quicunque secundum episcopales leges de quacunque 
 causa vel culjta iriterpellatus fuerit, ad locum quem ad hoc episcopus 
 elegerit vel noniinaverit veniat, ibique de causa vel culpa sua respondeat, 
 et, non secundum hundret sed secundum canones et episcopales leges, 
 rectum Deo et episcopo sue faclat. Si voro aliquis per superbiam elatus 
 ad justitiam episcopalem venire contempserit vel noluerit, vocetur semel, 
 secundo et tertio ; quod si nee sic ad emeiidationem venerit, excommuni- 
 cetur tt. si opus fuerit, ad hoc vindicaudum fortitude et justitia regis vel 
 vicecomitis adhibeatur. Ille autem cpii vocatus ad justitiam episcopi 
 venire noluerit, pro unaquacjue vocatione legem episcopalem emendabit. 
 Hoc etiam defendo et mea auctoritate interdico, ne ullus vicecomes, aut 
 praepositus seu minister regis, nee aliquis laicus homo de legibus quae ad 
 episcopum pertinent se intromittat, uec aliquis laicus homo alium hominein
 
 284 
 
 Constitutional History. 
 
 [chap. 
 
 Growtli of 
 the canon 
 law. 
 
 Consequence ig one which mii>ht very naturally recommend itself to a man 
 
 of the seija- _ !-. ^ j ^ 
 
 nition of the like Lanfranc. The system which it suiiersecled was full of 
 
 spiritual and , •' ... ,,.. -^^ 
 
 secular anomalies and disadvantages to both justice and religion. But 
 the change involved far more than appeared at first. The 
 growth of the canon law, in the succeeding century, from a 
 quantity of detached local or occasional rules to a great body of 
 universal authoritative jurisprudence, arranged and digested by 
 scholars who were beginning to reap the advantages of a revived 
 study of the Roman civil law, gave to the clergy generally a far 
 more distinctive and definite civil status than they had ever 
 possessed before, and drew into church courts a mass of busi- 
 ness with which the church had previously had only an indirect 
 connexion. The question of investitures, the marriage of the 
 clergy, and the crying prevalence of simony, within a very few 
 years of the Conqueror's death, forced on the minds of states- 
 men everywhere the necessity of some uniform system of law. 
 The need of a system of law once felt, the recognition of the 
 supremacy of the papal court as a tribunal of appeal followed 
 of course : and with it the great extension of the legatine ad- 
 ministration. The clergy thus found themselves in a position 
 external, if they chose to regard it so, to the common law of 
 the land ; able to claim exemption from the temporal tribunah', 
 and by appeals to Rome to paralyse the regular jurisdiction of 
 the diocesans. Disorder followed disorder, and the anarcliy of 
 Stephen's reign, in which every secular alnise was paralleled or 
 reflected in an ecclesiastical one, prepared the way for the Con- 
 stitutions of Clarendon, and the struggle that followed with all 
 its results down to the Reformation itself. The same facility of 
 cni])loying the newly develojK'd juiisprudence of the canonists 
 drew into the ecclesiastical courts the matrimonial and testa- 
 mentary jurisdiction, and that most mischievous, because most 
 abused, system of enforcing moral discipline by spiritual penal- 
 ties, at tlie instance of men whose first object was the accumula- 
 tion of money. 
 
 Hine juHtitia cji'ihco])! ad juHcium adilucat; judicium vero in nullo loco 
 ])()rtctur. insi in eiii.scopali scde aut in illo loco quein ad hoc ei)iscoi)us 
 con.stituerit.'
 
 IX,] Polici/ towards (he Tope. 285 
 
 The fouudation of si^iritual courts, and tlie exemptiou of their Attitude of 
 
 1 ,. A 1 01 William and 
 
 proceedings from the common usages of Anglo-Saxon law, had LaniVanc 
 
 , . , , . ,.,,,, . , towards the 
 
 a bearing on the relations 01 the church to the state in these papacy. 
 
 ways ; but it must not be supposed that it was in itself a sign 
 of any disposition in either William or Lanfranc to admit ex- 
 treme claims on the part of the popes. The results that have 
 been mentioned flowed from a state of things which was now 
 in process of development, and which attained full growth far 
 more rapidly than they could have expected, through circum- 
 stances which they could not foresee. Anything like a direct 
 claim on the jxirt of the papacy William repudiated at once. Not 
 only did he distinctly refuse the demand of fealty made by the 
 legate Hubert on behalf of Gregory VII ^, but he seems to have 
 established an understanding with the English church which hud 
 the force of a concordat for future times. The arrangement^ is 
 described by the faithful historian Eadmer as a novelty, but it 
 was a novelty necessitated by the newness of the cii'cumstances 
 in which the king found himself. 'He would not suffer that William's 
 any one in all his dominions should receive the i^ontiff of the ini;\vith 
 city of Rome as apostolic pope, excejot at his command, or 
 should on any condition receive his letters if they had not been 
 first shown to himself.' This principle, which was abused by 
 William Rufus, and which could only work well when the chiefs 
 in church and state were in thorough concert, expresses rather 
 than overcomes the difficulty. But it is a difficulty which has 
 
 * Freeman, Nomi. Conq. iv. 432-434, lias traced tlie history of Gret^ory's 
 correspondence with the Conqueror. Some time about a.d. 1076, the pope 
 sent a let^ate to William to ask for a more regular payment of Peter's 
 pence and to demand fealty. The king's answer was this : after the greet- 
 ing ' salutem cum amicitia,' ' Hubertus legatus tuus, religiose pater, ad 
 me veniens ex tua parte me adnionuit, quatenus tibi et successoribus tuis 
 fidelitatem facerem, et de pecunia quam antecessores mei ad Romanani 
 ecclesiam mittere solebant melius couitarem. Unum admisi, alterum non 
 admisi ; fidelitatem facere nolui nee volo; quia nee ego promisi nee ante- 
 cessores meos antecessoribus tuis id fecisse comperio. Pecunia tribus 
 fernie annis, in ('alliis me agente, negligenter coUecta est ; nunc vero 
 Divina misericordia me in regnum nieum reverso. quod eoUectuiu est per 
 praesentem legatuin mittetur ; et quod rdiquum est per legates Lanfranci 
 archiepiscopi fidelis nostri, cum opportunum fuerit, transmittetur. Orate 
 pro nobis et pro statu rciii nostri, quia autecessores vestros dilexhuus et 
 vos prae omnibus sincere diligere et obedienter audire desideramus.' 
 Selden, App. to Eadmer, p. 164; Laufr. Kpp. ed. Giles, No. x.
 
 286 Constitutional Hidory. [chap. 
 
 The Con- never yet been overcome ; and it is probable that the Con- 
 rules of deal- queror's rule went as near to the solution as any state theory 
 Church. has ever done. A second rule was this, ' He did not suffer the 
 primate of his kingdom, the archbishop of Canterbury, if he 
 had called together under his presidency an assembly of bishops, 
 to enact or prohibit anything but what was agi'eeable to his will 
 and had been first ordaiued by him.' This was a most necessary 
 limitation of the powers given to the newly established courts, 
 nor did it, in an age in which there was no discord of religious 
 opinion, create any of the scandals which might arise under more 
 modern conditions. The two rules together express the prin- 
 ciple of the maxim so well known in later times, ' cujus regio, 
 ejus religio' in that early form in which it recommended itself 
 to the gi'eat Charles. A third rule was this ; ' he did not allow 
 any of his bishops publicly to implead, excommunicate, or con- 
 strain by penalty of ecclesiastical rigour, any of his barons or 
 servants, who was informed against either for adultery or for any 
 capital ci'ime, except by his own command.' Of this also it may 
 be said that it might work well when regulated by himself and 
 Lanfranc, but that otherwise it created rather than solved a 
 difficulty^. A further usage, which was claimed by Henry I as 
 a precedent, was the prohibition of the exercise of legatine 
 power in England, or even of the legate's landing on the soil of 
 the kingdom without royal licence^. 
 
 Simplicity Such precautions as these show little more than an incipient 
 ofthese . . . . . . n , , , . : . 
 
 rules. misgivmg as to tlie relations of church and state : a misgivnig 
 
 which might well suggest itself either to the king or to the 
 thoughtful mind of the adviser, who saw himself at the head of 
 a church which had been long at uneasy anchorage apart from 
 these ecclesiastical tumults, into the midst of which it was soon 
 to be luirried. There is something Karolingian in their sim- 
 plicity, and ])ossibly they may have been suggested by the ger- 
 
 ' Eadmer, Hist. Nov. i. (ed. Selden, p. 6) ; Select Charters, p. 79. 
 
 * Eadmer, Hist. Nov. v. p. 118 : 'Rex Heiiriciis antiquis Angliae con- 
 suetudiiiibus [)racju<licinMi iiiferri non Kustinen.s, illuiu ab iuj^^ressu Ani(liae 
 dctinebat.' See also Flor. Wi;T. a.D. 1116. In this case the objection to 
 receive the legate arose from the bishops, abbots, and nobles who discussed 
 tlie question ' commuui consilio.'
 
 TX.] Herjidars and Seculars. 287 
 
 minatinc: Gallicanism of the day. Tlicy are, however, of ^eat Their im 
 ° _ •' . . poitance. 
 
 prospective importance and form the basis of that ancient 
 
 customary hxw on wliich throughout the middle ages the English 
 
 church relied in her struggles with the papacy. 
 
 The removal of the episcopal sees from the villages or decayed Removal of 
 
 , . . 1 . , 1 p 1 • 1 • 1 • • episcopal 
 
 towns to the cities is another mark or the reign which is sig- sees. 
 
 nificant of change in the ideas of clerical life, but is not of im- 
 portant consequence. The Norman prelate preferred Bath to 
 Wells and Chester to Lichfield : he felt that he was more at 
 home in the company of the courtier and warrior than in the 
 monastery. But the change went little further : the monastic 
 rigour was tenacious and aggressive : Lanfranc was himself 
 a monk, and allowed the monastic traditions of the early Eng- 
 lish church even more than their due weight in his reforms". 
 It is now that the secular clerks finally disappear from those 
 cathedrals which remained monastic until the Reformation. 
 The abuses of the rich foundations by married canons, who would Question of 
 
 •' _ ' inonasticism 
 
 perpetuate a hereditary clerical caste, were glaring; and so i}' tjie cathe- 
 strong was their interest in both Normandy and England that 
 neither legal nor ecclesiastical discouragement could, for a century 
 and a half, avail to extinguish the evil^. The cathedrals were 
 divided between the two systems in nearly equal proportions. 
 
 ' In the council of London, a.d. 1075, it was determined to remove the 
 Si^e of Sherborne to Old Sarum ; that of Selsey to Chichester ; and that of 
 Lichfield to Chester. The see of Dorchester was removed to Lincoln in 
 JoSf ; that of Elmham, which had been transferred to Thetford about 
 107S, was moved to Norwich in iioi. The see of Crediton had been 
 transfen-ed to Exeter in 1050. Bisliop John of Wells took up his station 
 at Bath in 1088. See Wilkins, Concilia, i. 363. 
 
 * See Epistolae Cantuarienses, pref. pp. xx-xxvi. Lanfranc seems to 
 have been urged by Alexander II himself to reorganise the cathedral of 
 Canterbury on monastic principles ; and the same pope forbade bishop 
 Walkelin of Winchester to expel the monks from his churcli. 
 
 ^ Epp. Cautuar. pref. xxvi. In the reigns of Edward the Confessor and 
 William, the foreign bishops of Wells, Exeter, and York attempted to 
 reduce their canons to rule by ordering them to have a common refectory 
 and dormitory. They were unable to enforce the comnuxnd. The institu- 
 tion of Augustinian canons wliich resulted fi'om the like jirojects of reform 
 was not adopted in any English cathedral until the see of Carlisle was 
 founded by Henry I, and this continued the oid}- Augustinian cathedral in 
 England until tlie Reformation. Many of the Scottish cathedrals were, 
 however, made Augustinian in the twelfth and thirteenth centuries.
 
 288 Constitutional llisiory. [chap. 
 
 But the reforming prelates showed no wish to throw in their lot 
 
 Gi-owth of with their churches. The bishop's share of the estates was sepa- 
 
 the chaptei'S 
 
 and con- rated from that of the monks, and the exemptions which had 
 
 been obtained by the favoured non-cathedral monasteries were 
 
 gi'asped at by the conventual cathedrals in order to oust the 
 
 urisdiction of the bishop in the house and in the property of 
 
 his chapter. Thus even whpn the see was transferred to the 
 
 cities, it was rather the cathedral body than its nominal head 
 
 that increased in power and pomp. New churches rivalling in 
 
 beauty and size those of the continent began to be built, and 
 
 New orders hospitable establishments to be doubled. New orders were in- 
 stituted in quick succession. The canonical reform failed, but 
 the Augustiuian canons grew up out of the failure : every 
 attempt at monastic development took ultimately the form of 
 a new rule, and in England all found a ready and too liberal 
 welcome. In many instances this liberality was exercised at 
 the expense of the parish churches, and an evil precedent was 
 established Avhich outlived in its effects very much of the advan- 
 tage gained from monastic piety and cultivation. But these 
 results are yet far distant. 
 
 Transitional 102. A general view of the reijjn of the Conqueror suggests 
 
 rli:iracteror f . ° , • , 
 
 the Oonque- the Conclusion that, notwithstanding the strength of his personal 
 ror's reign. . p -y • • ^ i • pi-i-iti 
 
 character, and his maintenance of his right as king of the English 
 
 and patron of the people both in church and in state ; — notwith- 
 standing the clearness of his political designs and the definiteness 
 and solidity of liis i)rinciples of action, there was very much in the 
 state system which he initiated that still lay in solution. So 
 much depended on the personal relations between himself and 
 Lanfranc in church matters, that after their deaths the whole 
 ecclesiastical fabric narrowly escaped destruction ; and in tem- 
 •])oral matters also, Lanfrauc's influence excepted, the king had 
 no constitutional adviser, no personal friend whose authority con- 
 tained any element of independence. William is his own minister. 
 His policy, so far as it is his own, owes its stability to his will. 
 His witan are of his own creation, — feudatories powerful in en- 
 mity, no source of strength even when they are friends and allies, 
 — with a policy of their own which he is determined to combat.
 
 IX,] The Conqueror's Bespotism. 289 
 
 His people fear him even when and where they trust him : he is General cha- 
 
 , • 1 1 r» 1 • racter of his 
 
 under no real constraint, whether 01 law or conscience, to rule Kovernment. 
 them well. His rule is despotic therefore, in spite of the old 
 national and constitutional forms which he suffers to exist : it is 
 the rule of a wise and wary, a strong and resolute, not a wanton 
 and arbitrary despot ; it avoids the evils of irresponsible tyranny, 
 because he who exercises it has learned to command himself as 
 well as other men. But a change of sovereign can turn the severe 
 and wary rule into savage licence ; and the people, who have grown 
 up and have been educated under a loose, disorganised iJolity, see 
 no difference between discipline and oppression. The constitu- 
 tional effects of the Conquest are not worked out in William's 
 reign, but in that of Henry I. The moral training of the nation 
 does not as yet go beyond castigation : the lowest depth of 
 humiliation has yet to be reached, but even that yields necessary 
 lessons of its own. It is useless to ask what the result would 
 have been if the first Norman king had been such a man as 
 William Rufus : but it was most fortunate fur the English that 
 in the hour of their great peril, when they had neither ruler, 
 counsel, nor system, they fell under the rule of one who was 
 a law to himself, who saw the coincidence of duty and policy, 
 and preferred the forms of ancient royalty to the more ostenta- 
 tious position of a feudal conqueror. He was a hard man, 
 austere, exacting, oppressive : his heavy hand made the Eng- 
 lish themselves comprehend their own national unity through 
 a community of suffering. Yet in the suffering they were able 
 to discern that there might be still worse things to bear : one 
 strong master was better than many weak ones, general oppres- 
 sion than actual anarchy. The king made and kept good peace. 
 The Danegeld and the Forest-law were not too much to pay for 
 the escape from private war and feudal disruption.
 
 CHAPTER X. 
 
 POLITICAL SURVEY OF THE NORMAN PERIOD. 
 
 103. Points of contention in the Norman reigns. — 104. Title of William 
 Rufus : struggle with the feudatories. — 105. Recognition of the rights 
 of the English. — 106. Absolute tyranny: in Church: — 107. In 
 State. — 108. Accession of Henry I. — 109. Humiliation of the feuda- 
 tories. — 110. Alliance of king and people. — 111. Institution of strong 
 government system. — 112. Ecclesiastical policy. — 113. Accession of 
 Stephen. — 114. His misgovernment. — 115. The consequent anarchy. 
 — 116. Scheme of reform. 
 
 Political his- 103. The political history of the Conqueror's reign consists 
 
 Conqueror's mainly in the three great strusfgles with the native English, 
 
 reign. . . ^® fa ' 
 
 With the rebellious earls, and with the disobedient heir. The 
 
 foreign wars and the constitutional measures which they involved 
 
 were in close connexion with one or other of these struggles. 
 
 to"Eu''l!s"f "^" *^^^ ^^^* *^^^^ William was victorious, partly through the 
 still unbroken force of his own power as leader of the Norman 
 host, and partly through the want of concert among his enemies. 
 The family of Godwin, whose strength lay in the support of 
 Welsh and Irish princes, had not a single principle in common 
 with the remnant of the West-Saxon house, whose allies were in 
 Scotland and Denmark. Eadric the Wild might raise Hereford- 
 shire, but he was too far away to help the men of Kent, The 
 strong and united Norman force met them separately and 
 crushed them in detail. The terrible vengeance wreaked on 
 the Northumbrian population effectually prevented any further 
 attempt at a rising, and the English found in obedience to one 
 strong ruler a source of unity, strength, and safety, such as they 
 had not possesstd since the days of Edgar. They suffered, 
 without power to rebel, until all the old causes of division 
 amongst them were forgotten.
 
 BevoU of the Earls. 291 
 
 The conspiracy of the earls in a.d. 1074 l)egins a new Conspiracy 
 page of history, and the speeches put by Ordericus Vitalis 
 in the mouths of the conspirators give a clue to the under- 
 standing of the next century. Roger of Breteuil and Ralph 
 Guader, the former being earl of Herefordshire, the latter of 
 Norfolk or East-Anglia, were discontented with the ample 
 provision that the king had made for them, and made a state- 
 ment of their gi'ievances, which the historian elaborates into 
 
 a speech ^ William they said was a bastard and had seized Its object 
 ^ _ "^ _ and pleas, 
 
 the English crown unrighteously; he had oppressed his nobles 
 
 in Normandy, despoiled the count of Mortain, poisoned the 
 
 counts of Bi'ittany and of the Vexin ; he had refused to reward 
 
 the followers who had fought his battles, or had given them only 
 
 barren and desolate lands. The English, although they would 
 
 gladly have had revenge, are described as contentedly cultivating 
 
 their lands, and more intent on enjoyment than on battle. The 
 
 malcontents propose to Waltheof that England should be restored 
 
 to the state in which it was in King Edward's time ; one of the 
 
 three should be king, the other two should be dukes -. Waltheof 
 
 ' Ord. Vit. iv. 14. 'Degener, utpoteriotlius, est qui rex nuncupatur, et 
 in propatulo divinitus monstratur quod Deo displieet, duni talis lierus 
 regno praesidet. . . . Ipse Willehnum Warlengum Moritolii coniitem pro 
 uno verbo exhereditavit, et de Neustria peiiitus efFugavit; Walterium 
 Pontesii eoniitem Edwardi regis nepotem, cum Biota uxore sua Falesiae 
 hospitavit, et nefaria potione siniul ambos una nocte pereniit. Conanum 
 quoque strenuissimum consulem veneno infecit. Hacc et alia multa erga 
 cognatos et affines suos scelera VVillelinus pereniit, qui super nos et com- 
 pares nostros adhuc similia perpetrard non desistit. Nobile regnum Angliae 
 temere invasit, genuinos heredes injuste trucidavit, vel in exilium crude- 
 liter pepulit. - ISuos quoque adjutores per quos super omne genus suum 
 sublimatus est, non ut decuisset lionoravit, sed multis qui sanguinem suum 
 in ejus satellitio fuderunt ingratus exstitit, et pro frivolis occasionibus ad 
 mortem usque velut hostes puniit. Vulneratis victoribus steriles fundos et 
 hostiuiu depopulatione des(ilatt)S dunavit, et eisdem postmodum restaiiratos 
 avaritia cogente abstulit seu minora%'it. Ecce major pars exercitus tians 
 pontum moratur, assiduisque bellis acriter occupatus detinetur. Angli sua 
 solummodo rura colunt, conviviis et potationibus, non proeliis intendunt, 
 suminopere tamen pro suorum exitio parentum ultionem videre concu- 
 piacunt.' 
 
 * Ibid. 'Acquiesce nobis et indesinenter iidiaere, et tertiam partem 
 Angliae nobiscum sine dubio poteris habere. Volumus enim ut status 
 regni Albionis redintegretur omnimodis sicut olim fuit tempore Edwardi 
 piissimi regis. Unus ex nobis sit rex et duo sint duces et sic nobis tribug 
 omnes Anglorum subjicientur honores.' 
 
 U 2
 
 292 Constitutional History/. [chap. 
 
 Objects of declined the project, but fell a victim to the suspicious hatred of 
 racy of the William, who spared the lives of the real offenders. The grounds 
 of the discontent thus stated seem to include three points — the 
 title of the king, the condition of the Englisli, and the restric- 
 tions imposed upon the Norman vassals : and these are the very 
 points which give interest to the history of the Norman period ; 
 for a century, no king succeeds with undisputed title ; the 
 Norman baronage is incessantly in arms in order to extend 
 their own power, taking advantage of eveiy quarrel, and ranging 
 themselves with the king or against him on no principle save 
 the desire of strengthening their own position ; and the English 
 are found by the king and his ministers to be the only trust- 
 worthy element in society, notwithstanding their sufferings and 
 the many attempts made to draw them from their allegiance. 
 The reign of William E,ufus exhibits the several elements of 
 disturbance in open working, and throws into light the different 
 interests which had been operating obscurely and confusedly 
 under the sagacious pressure of his father's hand. 
 Importance 104. The question of personal title, the right to the headship 
 tion of title of the races ruled by the Conqueror, is not directly connected 
 ings on other with constitutional history. But its bearing on the political 
 constitu- development of England is most important, and in its many 
 terest. " complexities it touches the main sources of constitutional growth. 
 The diike of the Normans had acquired the realm of England, 
 by the gift of God, as ho himself said, and by the acceptance of 
 the English witenagemot, but directly by the arms of the 
 Norman race. The Normans had availed themselves of William's 
 ambition, strength, and supposititious claims as Edward's heir, 
 and had established their hold on England ; but William himself 
 they had never loved, they despised his birth, and feared and 
 detested the very strength which sustained them. His position 
 as duke of the Normans had been won through rivers of blood, 
 and by the violent extinction of every element of rivalry, 
 England was the conquest of the race, or of a voluntary asso- 
 ciation under the head of the race. But AVilliam's hold on 
 England could not bo shaken without risking the loss of 
 England to the race itself. And yet William had most grudg-
 
 X.] Successive ReleUions. 293 
 
 inffly rewarded their aid and reluctantly acknowledged their The great 
 
 "=/ J b v:iss;i)s take 
 
 claims. Should England and Normandy be separated, should iulvantaKc of 
 
 . . i» 1 1 every ques- 
 
 tlie headship of the race continue in the progeny of the bastard, tjon of royal 
 or should advantage be taken of every opportunity of raising 
 either question, to secure more independent power to the 
 feudatories and reduce their king-duke to the position of the 
 king-duke of tlie French ? On whatever plea the struggle arose, 
 the main object of the Norman nobles was the securing of feudal 
 power, and the unavoidable result of such a consummation would 
 be the entire enslaving of the English. Hence it was that none 
 of the gi'eat houses maintained a consistent policy; they none of 
 them sincerely believed in the grounds put forth as pretexts 
 of quarrel ; but fought first on one side and then on the other, 
 and purchased promises from either side by alternate offers of 
 support. And the necessary result of this was their own 
 destruction. In such a struggle royalty must win in the end, 
 and whichever of the competitors for it ultimately succeeds will 
 take care to make his position safe against such uncertain 
 friends and such certain foes. 
 
 The conspiracy of a.d. 1074 is the first epoch of the struggle ; Re'ielHon 
 
 , of Robert. 
 
 the last of tlie English earls perished in consequence, and the 
 first of the Norman earls sufiered forfeiture. The long series of 
 humiliations which they brought upon themselves began. They 
 had asserted the right of the race and the deserts of the con- 
 federacy. The rebellion of Robei-t followed in a.d. 1078 ; he 
 
 claimed the Norman duchy by his father's gift, and was sup- He is sup- 
 
 •' -^ ® . poi-tedbythe 
 
 ported by four of the greatest barons of the new aristocracy, younger 
 
 Robert of Belesme, William of Breteuil, Roger of Bienfaite, and 
 
 Robert Mowbray, the heirs of "William's oldest and most trusted 
 
 ministers'. That rebellion was quelled, and without much 
 
 bloodshed or confiscation, though the king did not feel himself 
 
 secure without imprisoning and dispossessing his brother Odo of 
 
 ' Robert of Belesme was .son of Roger Montgomery, earl of Shrewsbury ; 
 William of Breteuil, son of William Fitz-Osbern ; Roger of Bienfaite, son 
 of Richard and grandson of Gilbert of Brionne, the Conqueror's guardian ; 
 Robert Mowbray was nephew and heir of Bishop Gosfrid of Coutances : all 
 trusted ministers of William, three of whom had actually been justiciars, or 
 royal lieutenants. Ord. Yit. v. lo.
 
 294 
 
 Constitutional History. 
 
 [chap. 
 
 William's 
 retr 'speet 
 on his death- 
 bed. 
 
 Robert's 
 claim on 
 England 
 defeated. 
 
 Stephen of 
 AumAle set 
 up against 
 William 
 Rufus. 
 
 Bayeux : and the war that was kindled by it opened the Avay for 
 the aggression of the French king which William was engaged in 
 repelling at the time of his death. His confession on his death- 
 bed, if actually made as related by Ordericus, is one of the most 
 singular monuments of history. He looked back for fifty-six 
 years on Normandy, and recounted what he suffered at the hand 
 of his enemies and how he had repaid them. He looked for- 
 ward also, and augured of the future ; but he did not attempt to 
 do violence to destiny. Roliert must have Normandy ; William 
 he wished, but dared not command, should have England ; Henry 
 he was sure v/ould have all in the end. His experience sug- 
 gested much misgiving, but furnished no means of directing the 
 future. He saw the straggle that must come as soon as his 
 death opened the question ^ 
 
 The claim of Robert to the whole of his father's dominions was 
 taken up by the restless barons at once : far the larger part ad- 
 hered to him, especially his father's brothers Odo of Bayeux and 
 Robert of Mortain ; also Gosfrid of Coutances, Robert Mowbray 
 and Roger Montgomery : indeed, all the princes of the Conquest 
 except the earl of Chester and William of Warenue ^. William over- 
 came the opposition, but was not yet strong enough to punish it. 
 The only great forfeiture was Odo's earldom of Kent. Seven years 
 later an attempt was made to get rid altogether of the Con- 
 queror's heirs, and to assert for Count Stephen of Aumale, the 
 grandson of duke Robert the Second ^, the headship of the race *. 
 
 ' Onl. Vit. vii. 15, 16. 
 
 ^ Ordericus mentions, as taking part in the first rising on Robert's behalf, 
 Bishop Odo, Eustace of Botilognc, Robert of Belesnie, and his father Roger 
 Montgomery (secretly), Hugh of (Irantmesnil, and Bernard of Neuf- 
 march^ ; lib. viii. c. 2. Florence adds Gosfrid of Coutances, Robert of 
 Mortain, and ivobert Mowbray, the last of whom is placed by Ordericus 
 on the side of William Rufus, and the bishop of Durham. On the kin.''s 
 side were Hugh of Chester, William of Warenne, and Robert Fitz- 
 Hamon ; but the mainstiy of the jiarty was Lanfranc. 
 
 ' Odo of Aumrde was married to a sister of the Conqueror, who is said 
 distinctly by Ordi-ricus to have been daughter of duke Kobert and Harlotta 
 (lib. iv. c. 7). The Contini:ator of William of Jumieges (ed. Camden, 
 ]). ^187) calls her the uterine sister of the Conqueror; it is impossible 
 that the Normans should have accepted the idea of electing an entire 
 .stranger to tlie ducal house. 
 
 * The hciuls of this revolt were, according to Florence, Robert Mowbray
 
 X.] Becognitmi of National Claims. 295 
 
 This also failed, and was followed by considerable but still Forfeitures. 
 t-autious forfeitures ; the great earl Robert Mowbray of North- 
 umberland lost his liberty and estates ; Roger de Lacy was 
 deprived of his hundred and sixteen manors, the earl of Shrews- 
 bury paid an enormous fine, count William of Eu was mutilated. 
 A great gap was already made in the phalanx of the feudatories ; 
 the death of William stayed but did not avert the destruction 
 of the rest. 
 
 105. But far more important in principle than the demolition The people 
 
 ^ \ '■ are thrown 
 
 of the single feudatories is the relation created and strengthened on the side 
 
 ° _ _ , " of the crown. 
 
 between the king and the native English. The Conqueror's 
 last wish for the disposal of England was confided to Lanfranc, 
 as the head of the witenagemot of the kingdom : and Lanfranc 
 proceeded to secure the fulfilment of it in such a constitutional 
 way as lay open to him, when the majority of the baronage were 
 inclining to duke Robert. William was ready to make any 
 promise to secure his crown. He swore to Lanfranc that if he ^™'^^ °^ 
 were made kins he would preserve iustice and e<|uity and mercy Rnfus: 
 throughout the realm, would defend against all men the peace, nation; 
 liberty, and security of the churches, and would in all things and 
 through all things comply with his precepts and counsels ^ On 
 this understanding Lanfranc crowned him and received the 
 formal enunciation of the engagement in the coronation oaths. 
 The outbreak of war immediately after forced from him another Qf^g^gyl^,*; 
 acknowledgment of his duty. He found Lanfranc his ablest 
 adviser, Wulfstan his most energetic supporter ; he called the 
 English together, declared to them the treason of the Normans, 
 and begged their aid. If they would assist him and be faithful 
 in this need, he would grant them a better law of their own 
 choosing ; he forbade on the instant all unjust taxation, and 
 
 earl of Northuralierland, and William count of Eu. Orderic adds Roger de 
 Lacy and earl Hugh of Shrewsbury. Ord. Vit. viii. 23. 
 
 ' ' Verens ne dilatio consecrationis suae inferret ei dispendium cupiti 
 honoris, coepit, tarn per se quam per oiunes quos poterat, fide sacranientoque 
 Lanfranco proinittere justitiam, aequitatem et misericordiam se per totum 
 regnuni, si rex foret, in omni negotio servaturum ; pacem, libertatem, secu- 
 ritatem ecclesiaruiu contra omnes defensurum ; necnon praeceptis atque 
 consiliis ejus per omnia et in omnibus obtemperaturuni.' Eadraer, Hist. 
 Nov. i. p. 14.
 
 2g6 
 
 Constitutional History. 
 
 [chap. 
 
 Promises of 
 William 
 Rufus : 
 
 during his 
 illness. 
 
 suiTendered his hold on their forests ^ The English too 
 willingly believed him, and throwing themselves with energy 
 into the struggle, brought it to a successful issue. The king 
 forgot his promises, and, when reminded of them by Laufranc, 
 answered in ^vrath, 'Who is there who can fulfil all that he 
 promises?' Lanfranc's death removed his best counsellor, and 
 he began to act with unrestrained and wanton tyranny. A third 
 time, in a.d. 1093, when he either believed himself to be dying 
 or wished to purchase a reprieve by repentance, he made a 
 formal declaration, pledging his faith and making the bishops 
 the sureties between himself and his God, sending them to make 
 the promises for him before the altar, A written proclamation 
 was made and sealed, all prisoners were to be released, all debts 
 pardoned, and all offences forgiven and forgotten. To all the 
 
 * Of this second formal engagement to govern well we have four ac- 
 counts, (i) Florence says: ' Congregate vero quantum ad praesens potei-at 
 Normannorum, sed tamen maxiine Anglorum, equestri et pedestri licet 
 mediocri exercitu, statuens leges, promittens fautoribus omnia bona . . . 
 tenders disposuit Roveceastr.im.' (2) Simeon of Durham: 'Hoc audito 
 rex fecit convocare Anglos et ostendit eis traditionein Normannorum 
 et rogavit ut sibi auxilio essent, eo tenore ut, si in hac necessitatt; sibi 
 fideles existerent, meliorem legem quam vellent exigere eis concederot, et 
 omnem. injustum scottum interdixit et concessit omnibus sHvas suas et 
 venationem. Sed quicquid promisit parvo tempore custodivit. Angli taraen 
 fideliter eum juvabant.' (3) William of Malmesbury, G. R. iv. § 306 : 
 * Videns Nonnannos pene omnes in una rabie conspiratos, Anglos probes et 
 fortes viros qui adhuc residui erant, invitatoiiis scriptis accersiit; quibus 
 super injuriis suis querimoniam faciens, boiiasque leges et tribjitormn 
 levamen liberasque venationes pollicens, fidelitati suae obligavit . . . Anglos 
 suos appellat ; jubet ut compatriotas advocent ad obsidionem venire, nisi si 
 qui velint sub nomine Niihing, quod ncqiiam sonat, remanere. Angli qui 
 nihil uiiserius putarent (juarn hujusce vocabuli dedecore aduri, catervatim 
 .ad repem confliuuit ctinvincibilem exercitum faciuiit.' (4) Ordericus, viii. 2 : 
 ' Lanfraucum itaque archie[)iscopum cum suffraganeis praesuiibns, coniites, 
 Anglos(iue naturales convocavit, et conatus advorsarionim ac velle suum 
 expugiiandi cos indicavit. At illi regum, ut jjcrturbatorcs picis compri- 
 meret adliortati sunt, seHeijuo promptissimos ad .•idjuvandum polliciti sunt. 
 Anglorum vero triginta niillia tunc ad servitium regis sponte sua conve- 
 nenint, rjgemque ut j)orfidos proditores ab.sque respectu puuiret admo- 
 nueruiit, dicentes " Viriliter age ut regis filius et legitime ,ad regnum as- 
 sumptus, securus in hoc regno (iominaroomnil)us. Nonne vides quot tecum 
 8UI11UM, tibique gnitanter paremua ? Passim per totam Albionem iuipera 
 omn<;s(|ue rcbelles dojice regali justitia. Fsijue ad mortem j)ro te certa- 
 bimus, nee unquam tibi alium praeponeinus. Stultum nimis et profanum 
 noto regi prai'forre liostoiii extraiieum. Detestabilis gens est quae principi 
 BUG infida est. J'halanx morti sit vicina quae domini sui gaudet ruina. 
 Rolerter Anglorum riuiare historias, invenicH<iue semper fides principibus 
 Buis AngligenaB." '
 
 X.] BecognUion of 'National Claims. 297 
 
 people moreover were promised good and holy laws, the in- 
 violable observance of right, and a severe examination into 
 wrongs such as should frighten all men from evil-doing ^ The 
 lung recovered, but behaved worse than ever''^. 
 
 The ackuowledaments of his duty were however not without Value of 
 
 ° " 111 tliese ac- 
 
 their value. The charter, if it ever existed, was lost, and the knowUUK- 
 
 , , , iiieiits of 
 
 benefits it promised were withheld. The quarrel with the duty. 
 Church followed, and the wretched king cast away even the 
 outward observance of morality and religion. But he had 
 testified to the nation his own duty and their right. He had 
 revealed to them their moral and material strength at the same 
 time. Fear of man and dread of God's present judgment forced 
 him to the promise which was a confession of justice, and 
 placed means in their hands which would set their rights on 
 a firmer basis than the conscience of a tyrant. If the reign 
 of William Rufus had no other importance, it taught a lesson 
 of profoundly valuable consequence to his successor. 
 
 106. It is not easy at first sight to determine exactly the Special acts 
 
 . . f. , . p • c -x '^^ tvi-anny 
 
 particular measures by which, in spite of his proiessions 01 good of vyiiiiam 
 government and the support which he purchased by them, 
 William Eufus earned the detestation of all classes of his sub- 
 jects. The historians describe him as a strong, fierce, and arro- 
 gant man, of abandoned habits, cruel, profane, and avaricious; 
 
 • Florence says : ' Cum se putaret cito moritunim, ut ei sui barones sug- 
 gesserunt, vitam suaiii corrigere, ecclesia.s noii amplius vendere nee ad 
 censum ponere, sed illas regia tueri potestate, irrectas levies destruere ac 
 rectas statuere Deo promisit.' Eadmer, Hist. Nov. i. p. i6: ' Adquiescit 
 ipse, et corde compunctiis cuncta quae viri .senteiitia tulit se facturum 
 necnon totam vitam suam in mansuetudine et justitia amplius servaturum 
 pollicetur. Spondet in hoc fideiii suam, et vades inter se et Deum facit 
 episcopos suo.s, mittens qui hoc votum suum Deo super altare sua vice pro- 
 mittant. Scrilntur edicttim regioque sigillo fii-matur, quatenus captivi 
 quicunque sunt in oinni dominatione sua relaxentur, omnia debita irrevoca- 
 biliter remittantur, onmes offensiones ante liaec ])erpetiatae indulta remis- 
 sione perpetuae oblivioni tradantur. Promittuntur insuper omni populo 
 bonae et sanctae leges, inviolabilis observatio juris, injuriarum gravis et 
 quae terreat caeteros e.xaminatio.' 
 
 ' ' Willelnms in principio intirmiuslaboriosiusque imjjeraret, etad concili- 
 andos sibi aninios subditorum modestior mitiorque appareret. At post- 
 quam, perdomitis hostibus et fratre mollius a^eute, roboraturn est regnum 
 ejus, exaltatum est illico cor ejus, app.aruitque succedeutihus prosperis 
 qualis apud se latuisset dum premeretur adversis.' Will. Newb. i. 2.
 
 298 Constitutional History. [chap. 
 
 but their general declamatory tone hides rather than re- 
 veals the constitutional grievances, except where they touched 
 the Church. We may however, by comparing the remedial 
 measures of Henry I with what is known of the law and custom 
 of the Conqueror's reign, form some idea of the nature of the 
 Administm- tyranny of William Rufus. Ranulf Flambard, an able and 
 
 tiori ot Ra- . 
 
 nulf Flam- unprincipled clerk, who had been long acquainted with Eng- 
 land \ and was restrained by no sympathies with either the 
 Norman nobles, the native population, or the clergy, was after 
 the death of Lanfranc taken by the king into his confidence. 
 Whether or not it is fair to ascribe to Ranulf the suggestion 
 of the tyrannical policy which marks the reign, it is to him 
 without doubt that the systematic organisation of the exactions 
 is to be attributed. He possessed, as the king's justiciar, the 
 management of all the fiscal and judicial business of the kingdom, 
 and seems to have exercised the functions of his office with 
 indefatigable zeal. William, on the other hand, although an 
 able soldier and not deficient in political craft, has left no traces 
 of administrative power such as mark the rule of his father 
 and brother. 
 
 Ranulf's policy seems to have been to tighten as much as 
 l)Ossible the hold which the feudal law gave to the king on 
 all feudatories temporal and spiritual, taking the fullest ad- 
 vantage of every opportunity, and delaying by unscrupulous 
 In cctle- chicanery the determination of every disjjute. In ecclesiastical 
 iiKitters. matters this plan was systematically pursued. The analogy 
 of lay fiefs was apj)liod to the churches with as much minuteness 
 as was possible. The feudal relation had been recognised in the 
 Conqueror's reign, the gi-eat question of investitures being set 
 aside by the mutual good underf^tandiiig of king and primate ; 
 but the obligation was liberally construed on both sides. Lan- 
 franc did his duty as a great noble, and William contented 
 himself with the constitutional claims to which the earlier 
 system had regarded the archljishop as liable. No advantage 
 was taken of the vacancies of sees or abbeys to draw the 
 
 ' See Chap. XI, pp. 347, 348, below.
 
 X.] Exactions from the Church. 299 
 
 revenues of the Church into the royal treasury, or by prolonging Prolongation 
 
 or vuciinciGs. 
 
 the vacancy to increase the accumulations on which the king 
 might lay his hand ; on the contrary, we are distinctly informed 
 that the revenues of the vacant churches were collected and 
 preserved in safe custody for the new prelate, and that the 
 elections were not unduly postponed^ The elections were 
 tliemselves scarcely canonical, but all difficulties were avoided 
 by Lanfrauc, who suggested the best men to the king for that 
 formal nomination Avhich had taken the place of election. 
 
 Ranulf Flambard saw no other difference between an ec- Churches 
 
 . p .,. . 1 • u ii treated as 
 
 clesiastical and a lay fief than the superior facilities which the lay fees, 
 first gave for extortion ; the dead bishop left no heir who could 
 importunately insist on receiving seisin of his inheritance ; and 
 it was in his master's power to determine how soon or at 
 what price an heir should be created and admitted. The 
 vacancies of the churches were prolonged indefinitely, in spite 
 of canon and custom ; their property was taken into the king's 
 hands and administered by his officers just as the barony of 
 a ward of the crown might be ; aud all proceeds were claimed 
 for the king. Not only so ; the lands were let out on farm^, 
 a large fine paid down at once, and a small rent promised for 
 the future : the king secured the fine, the bishop might or 
 might not recover the rent. Further, the longer the vacancy 
 lasted the less chance there was of redress being enforced when 
 it was at last filled up ; the king could even grant aAvay the 
 lands of the Church as hereditary fiefs to his knights, and 
 refuse to admit a new bishop until he had promised to ratify 
 his gifts. Lastly, he might demand of the new bishop such a 
 payment on entry as gave to the whole transaction a simoniacal 
 complexion, on the analogy of the relief payable by the heir 
 
 * W. Malmesb. iv. § 314: 'Tempore patris post decessuui episcopi 
 vel abbatis oinnes reditus integre custodiebaiitur, substituendo paston 
 resignandi, elisiebanturque personae religionis merito laudabiles.' See 
 also Ord. Vit. viii. 8, who distinctly charges Ranulf Flambard with in- 
 troducing the evil custom. 
 
 ^ 'Ad censum piiniitus abbatias, dehinc episcopatus, quorum patres e 
 vita discesserant noviter, accepit a regu et inde sinj'uli.s annis summam 
 pecuniae non modicam persolvit illi.' Flor. Wig. a.D. i lOO.
 
 300 Constitutional History. [chap. 
 
 of a lay fief. All these claims were contrary to the terms 
 on which the endowments of the Church had been granted ; 
 but they were in accord to a certain extent with the feudal 
 spirit now introduced into the country, and the very fact that 
 they were made shows how strongly that spirit had made itself 
 felt. The Church was open to these claims because she furnished 
 no opportunity for reliefs, wardships, marriage, escheat, or 
 forfeiture^. 
 Treatment 107. From the treatment of the churches conversely the 
 
 of teudal _ •' 
 
 vassals by treatment of the feudal landowners may be inferred : and the 
 
 A\ lUiam ^ •' 
 
 Kufus. charter of Henry I confirms the inference ; although it is not 
 
 quite so clear as in the former case that all the evil customs 
 owed their origin to the reign of William Rufus. On the death 
 of a vassal the heir was not admitted until he paid such relief 
 as the king would accept^ ; the amount demanded was some- 
 times so great as to equal the value of the pi'operty ; the estate 
 might therefore be altogether resumed, or it might be retained 
 in the king's hands as long as he pleased : and this shameless 
 exercise of power was aggravated by the practice of disregarding 
 the testamentary disposition of the vassal, so as to leave his 
 family pauperised*. The right of marriage, that is, of consent- 
 ing to the man-iage of the daughters of vassals, was interpreted 
 to mean the right to exact a sum of money for consent^ : 
 if tlu! marriage in question were that of an heiress or widow, 
 the king disposed of it without any reference to the will of the 
 
 ' Henry's promises in his charter prove the existence of all these 
 exactions under his hrother : 'Sanctani Dei ecclesiarn imprimis liberam 
 facio, ita <juod nee vendam, nee ad firmam ponam, nee niortuo archiepiscopo 
 sive episeopo sive abbate aliquid aeeipiani de dominico ecelesiae vel de 
 hominibus ejus donee sueceseor in earn ingrediatur.' 
 
 ^ 'He desired to be the heir of every one, churchman or layman.' 
 Chron. Sax. a.d. i ioo. 
 
 ' Art. 2 of Henry's charter : ' Si quis .... mortuus fuerit, heres suus non 
 redimet terram suam sicut faciebat tempore fratris mei.' See Ord. Vit. 
 viii. 8. 
 
 * See Henry's charter, art. 7: 'Si qnis baronum vel hominum meonim 
 infirmabitur, sicut ipse dabit vel dare disponet peouniam suam, ita datam 
 esse concedo. Quod si ipse praeventus annis vel intirmitate, peouniam 
 suam non dederit vel dare disposuerit, uxor sua sive liberi aut parentes, 
 et legitinii homines ejus eini pro anima ejus dividant, sieut eis melius 
 visum fuerit.' 
 
 * See art. 3 of Henry's charter.
 
 X.] General Tyranny. • 301 
 
 bride or her relations. The riglit of wardship was asserted I'ldofiniU!- 
 
 ^ ' ness of the 
 
 unrestrictedly. The amercements for offences were arbitrary : foy^' claims. 
 a vassal might be accused of crime and find himself liable to 
 forfeiture, or to give such security as made him constantly 
 amenable to forfeiture ^. In all these points the royal claims 
 were unrelentingly pressed. 
 
 Not less heavy was the king's hand on the body of the people. Oppression 
 
 r\ ^ -If,' <> n 1 1 1 f 1 • of the people 
 
 (Jn them in the lirst mstance tell the burden 01 the imposts at large. 
 laid on their feudal masters. It was from them, by similar 
 exactions of reliefs, wardship, marriage, and forfeitures, that 
 the vassals raised money to redeem their own rights : every 
 wrong that the king inflicted on his vassals they might inflict 
 on theirs. But the king too had a direct hold on them ; 
 he demanded the old tril)ute, the hateful Danegeld : he had the 
 power to insist on their military service, and did so : on one 
 occasion Ranulf brought down a great force of the fyrd to 
 Hastings, and there took from them the money that the shires 
 had furnished them with, the ten shillings for maintenance, and 
 sent them penniless home ^. He took advantage of the simple 
 machinery of justice to tax them further. Ranulf was not only 
 the ' exactor ' of all the business of the kingdom, but the 
 'placitator' also. 'He drove and commanded all his gemots 
 over all England ■'.' His management broke up for a time the 
 old arrangements of the hundred and shire-moots, making them 
 mere engines of extortion, so that men rather acquiesced in 
 wrong than sought redress at such a price. It is probable 
 further that the assemblies which met on these occasions were 
 turned to profit, being forced or persuaded to give sums towards 
 the king's necessities. The subordinates of the court followed 
 the example of their chief; no man was safe against them ; 
 the poor man was not protected by his poverty, nor the rich 
 
 ' See art. 8 of Henry '.s charter. 
 
 "^ ' Quibus ut maro transirent Heastingae congregatis, pecuniain quae 
 data fuerat eis ad victuni Ranniilfus Passeflambardus praecepto regis ab- 
 atulit, scilicet utiiciiique decern solidos, et eos doinura repedare maudavit, 
 pecuniam vero regi transmisit.' Flor. Wig. a.d. IC94. 
 
 ' Chron. Sax. a.d. 1099. On tie justiciarship in the hands of Ranulf, 
 see further, Chap. XI, below.
 
 302 Constitutional Jlistory. [chap. 
 
 story of the by his abundance \ The very recent Domesday taxation was, 
 new survey. •' j j •' 
 
 we are told, superseded by a new valuation ; the old English 
 hide was cut down to the acreage of the Norman carucate "^ : 
 and thus estates were curtailed and taxation increased at the 
 same time. Whether the charge is definitely true may be 
 questioned, for the testimony of Ordericus is not confirmed by 
 distinct statements of the English annalists ; but it is not 
 Porest op- improbable ; and the burden was but one of many. The forest 
 law or lawlessness now comes into marked prominence. AVil- 
 liam the Conqueror had afforested and desolated large territories 
 for the chase. His son made the practice burdensome to baron 
 and villein alike ; a vexation to the one, destruction and exter- 
 mination to the other. Unrestrained by religion, by principle, 
 or by policy, with no family interests to limit his greed, ex- 
 travagance, or hatred of his kind, a foul incarnation of selfishness 
 in its most abhorrent form, the enemy of God and man, William 
 Rufus gave to England and Christendom a pattern of absolutism. 
 }]-^}^^ °^ It is only to be ascribed to the weakness and disunion of those 
 Rufus. whom he wronged that he burdened the throne and nation 
 
 for twelve long years of misery. 
 
 108. The great question whether England should or should 
 
 ' On the enormities of the king's followers, who made his progresses 
 throu<rh the country resemble the march of a devastating army, see 
 W. Maliuesb. CI.R. iv. §§ ,',14, 319; Eadmer, iv. p. 94; Ord. Vit. viii. 4. 
 
 ^ Onl. Vit. viii. 8. ' Hie juvenem fraudulentis stimulationibus in- 
 quietavit regem, incitans ut totius Angliae reviseret descriptioneni, 
 Anglicaeque telluris comprobans iteraret partitionem, subditisque recideret 
 tam advenis quam indigenis quici^uid inveniretur ultra certam dimen- 
 sionem. Annuente rege omiies carrucatas, qua.s Angli bidas vocant, 
 funiculo mensus est et descripsit : postjiositi.'^que meii.suris quas liberalcs 
 Angli jussu Edwardi regis largiter distii1)uerant, imminuir, et regales 
 fiscoH accunnilans coloiii.s arva retruiicavit. Ruris itatjue olim diutius 
 nacti dimiiiutioue et insoliti vectigalis gravi exaggeraticne, supplices re;:iae 
 fidclitati jilrbes indcceiiter oppressit, ablatis rebus attenuavit, et in nimiain 
 egestatem de ingenti copia redegit.' Palgrave, Normandy and England, 
 gives an elaborate am|ilification of this story, explaining that whereas the 
 prodnctive value of the land was tlie l)asis of the earlier system of rating, 
 Kanulf introduced a simple computation of acreage. (Vol. iv. pp. 59-63.) 
 The words of Ordericus will scarcely bear this. Possibly he may refer to 
 a substitution of the .short hundred for the loni? in the reckoning of the 
 hide of land ; Init it is more j)robabl(; that the whole story is a misappre- 
 hension, and is to be ref<'rre<l to the Domesday Survey, in which Ranulf 
 seems most likely to have taken a part. See p. 348, below.
 
 t.] Accession of Henry I. 303 
 
 not be ruled by the bead of the Norman race was decided by ^uccessicjn 
 
 •' _ _ *' of Henry 1. 
 
 the promptness of Henry in his own favour. Eobert continued 
 indeed to represent to the mind of the feudatories the principle 
 of the Conquest; by the treaty arranged at Caen in a.d. 1091 
 he was entitled, as far as William's power of disposition went, 
 to the succession : he had received the homage of his brother 
 and of the great barons of the kingdom, and he had few per- 
 sonal enemies. But he was far away from England at the 
 critical moment ; his right to the crown had been disregarded 
 by his father in his settlement of his estates ; he had grievously 
 mismanaged the government of Normandy, and if he had few 
 enemies he had still fewer friends who would imperil themselves 
 for a prince who might be prompt only to avenge them. Henry 
 was on the spot. The opportunity that a seeming accident, 
 supplied he had energy to seize and courage and counsel to im- 
 prove. The very suddenness of William's death precluded the 
 possibility of preparation on either side. This he turned to 
 profit. The kingdom was taken by surprise, and when the 
 world knew that William was dead, it knew that Henry hatl 
 succeeded him. 
 
 The accession of Henry was transacted with as much deference Formality of 
 
 ..,..,,. his election. 
 to national precedent as was possible consistently with his 
 
 purpose. Among the few barons who were in attendance on 
 William on the day of his death were the two Beaumonts, the 
 earl of Warwick and the count of Meulan, Robert Fitz-Hamon 
 and William of Breteuil \ The last of these made a bold claim 
 on behalf of Robert, but was overruled by the others ^ ; the form 
 of election was hastily gone through by the barons on the spot ; 
 and the seizure of the royal hoard in the castle of Winchester 
 placed in the hands of Henry the means of securing his advan- 
 tage^. His first act was to bestow the vacant see of Winchester 
 
 * Ordericiis mentions Robert of Meulan and William of Breteuil ; lih. x. 
 c. 14. William of Malmesbury mentions the exertions of Henry of War- 
 wick on Henr3''s behalf; G. R. v. § 393. 
 
 '^ Ord. Vit. X. 14. 
 
 ' William ' was slain on a Thursday and burifnl the next morning ; and 
 after he was buried, the wit.m who were tlien near at hand chose his 
 brother Henry as kinir, and he forthwith Lrave the bishopric of Winchester 
 to William Giffard, and then went to London.' Chnm. Sax. A.D. iioo.
 
 3^4 
 
 Constitutional History. 
 
 [chap. 
 
 His mar- 
 riage. 
 
 Election and Oil William Gitfard the chancellor, so providing himself with 
 of Henryl, a strong supporter in the episcopal body. He then hastened 
 A.D. iioo. ^^ Loudon, where a few prelates and other nobles were found, 
 who after some discussion determined to accept him as king. 
 The seizure of the royal treasure on Thursday, August 2, was 
 followed by the coronation on the Sunday, August 5. On that 
 day a comprehensive charter of liberties was published, and 
 Anselm was recalled. Shortly after Eanulf Flambard was im- 
 prisoned, and before the end of the year the marriage of the 
 king with the daughter of Malcolm and Margaret completed 
 the consolidation of the title by which he intended to reign. 
 
 The election was however no mere form. Even in the handful 
 of barons who were present there were divisions and question- 
 ings, which were allayed, as we are told, by the arguments of 
 His corona- the earl of Warwick \ The oaths taken by Ethelred were also 
 
 tion oath. . • i i 
 
 required of Henry : the form of his coronation has been pre- 
 served, and it contains the threefold promise of peace, justice, 
 and equity ^. In the letter written by the newly-crowned king 
 to Anselm to recall him to England and to account for the rite 
 of coronation being performed in his absence, Henry states that 
 he has been chosen by the clergy and people of England, and 
 repeats to the archbishop the engagement that his brother had 
 His letter to made with Lanfranc : * Myself and the i)eople of the whole 
 realm of England I commit to your counsel and that of those 
 who ought with you to counsel me ^.' The undertaking to govern 
 
 ' ' In rof^em elcctua est, aliquantis tamen ante controversiia inter pro- 
 cereH ajjitJitlH atque sopiti.s, annitente nia-\inie coniite VVarwicensi Henrico.' 
 W. Malnic'Kl). G. R. v. § 39,^. 
 
 '^ Taylor's Glory of Regality, pp. 245, 330 ; Maskell, Men. Eit. iii. 5, 6. 
 The oath in aw follows : ' In Christi Nomine proinitto haec tria populo 
 Christiano niihi suhdito. In primis, me praecepturuni ct operam pro viribus 
 nn{)ensurum iit ecclesia Di;i et oninis populu.s Gliristiaiiu.s veram pacem 
 nostro arbitrio in oinni tempore Hervct ; aliud ut lapacitates et omnes 
 iniquitates oninilms gradibus interdicam ; tertium ut in omnibus judiciis 
 aequitatem et misericordiam praeeipiam, ut mihi et vobis indulgeat suam 
 misericord iam clenionH et misericor.s Deus.' See above, p. 147. 
 
 ^ It is printed among Anselm's letters ; lib. iii. Ep. 41 : ' Ego nutu Dei 
 a clero et a jiopulo Aiigliae electus, et, (piamvis invitus ])ropter ahsi'ntiam 
 tui, rex jam cotiHeeratuH, re((uiro to sieiit ])atrem cum omiii ])opulo Angliae, 
 quatonus niilii filio tuo et eidetn po])idocnjuH tibi animarum curaconunissa 
 est quam citius 2'^t.eriu venias ad consulundum. Meipsum quidem ac totiua
 
 X.] Charter of Henry I. 305 
 
 well was made not only with the archbishop as the first consti- Charter of 
 tutional adviser of the crown, but with the whole nation : it was 
 embodied in a charter addressed to all the faithful, and attested 
 by the signatures of the witan, the paucity of whose names may 
 perhaps indicate the small number of powerful men who had 
 as yet adhered to him, — the bishops of London and Eochester, 
 the elect of Winchester, the earls of Warwick and Northamp- 
 ton, and four barons ^. The form of the charter forcibly declares 
 the ground which he was taking : ' Know ye that by the mercy 
 of God and the common counsel of the barons of the whole 
 realm of England I have been crowned king of the same realm ^.' 
 The abuses of the late reign are specified and forbidden for the 
 future. The Church is made free from all the unjust exactions ; Privileges of 
 and the kingdom from the evil customs : to the English people 
 are restored the laws of King Edward with the Conqueror's 
 amendments ; the feudal innovations, inordinate and arbitrary 
 reliefs and amercements, the abuse of the rights of wardship of the 
 and marriage, the desi)otic interference with testamentary dis- 
 position, all of which had been common in the last reign, are 
 renounced ; and, as a special boon to tenants by knight-service, 
 their demesne lands are freed from all demands except service 
 
 in the field. To the whole nation is promised peace and jjood and of the 
 
 ^ ° nation. 
 
 coinage : the debts due to William Rufus, and the murder-fines 
 
 incurred before the day of coronation, are forgiven. But the 
 
 forests, as tht^y were in the Conqueror's time, are retained by 
 
 tlie king with the common consent of his barons ^. Perhaps the 
 
 most significant articles of the whole document are those by 
 
 which he provides that the benefit of the feudal concessions 
 
 shall not be engrossed by the tenants in chief: 'in like manner 
 
 shall the men of my barons relieve their lands at the hand of 
 
 regni Angliae populum tuo eorumque consilio qui tecum mihi eon.sulere 
 debent comniitti).' 
 
 ' The four barons .are Walter GifFard, Itobert de Montfort, Roger Bigot, 
 and Henry de I'ort. The letter to Anselm furnishes the additional names 
 of Gerard bisliop of Hereford, William Warelwast, Robert Fitz-Hamon, 
 and Haimo dapifer. 
 
 * Ancient Laws, ed. Thorpe, p. 215 ; Select Charters, p. 96. 
 
 * Art. 10. ' Forestas communi cotisensu barouum meorum in manu mea 
 retinui, sicut patur meus eas habuit.'
 
 3o6 Constitutional History. [chap. 
 
 Henrylpro- their lords by a just and lawful relief;' 'in like maiuier I enjoin 
 extension of that my barons restrain themselves in dealing with the sons 
 to the nation and daughters and wives of their men \' The rights of the 
 arge. dfigseg that had taken the oath of fealty to the Conqueror at 
 Salisbury are thus guarded, and Henry whilst attempting, by 
 gi'anting special boons to each order in the state, to secure the 
 good-will of all, definitely commits himself to the duties of 
 a national king. He was the native king, born on English soil, 
 son of the king, not merely, like Robert and William, of the 
 duke of the Normans. The return of Anselm, the punishment 
 of Flambard, and the royal marriage ^ were earnests of what was 
 to result from the government so claimed and so inaugurated. 
 Struggle 109. But these n^easures had scarcely been completed when 
 
 Robert. duke Robert returned from the Holy Land ; the echoes of the 
 investiture controversy in the empire were already sounding in 
 the distance, and the great feudatories in Normandy as well as 
 in England were preparing for a trial of strength. The quarrel 
 with Robert broke out early in a.d. iioi. Henry threw him- 
 self on the support of the English ^, Robert availed himself of 
 the discontent of the feudatories and invaded England. But 
 
 ' Art. 2. '.Similiter et homines baronum meorum justa et legitima rele- 
 vatione relevahuiit terras suas de doniinis suis.' Art. 4. ' Et praecipio 
 quod barones niei similiter se contineant erga filios et filias vel iixores 
 horainuni suorum.' 
 
 ^ The historians of the time do not dwell much on the political im- 
 portance of the niarriaj,% although it kept En<Tland and Scotland in peace 
 for nearly two centuries ; and to a certain cvtent tended to restore the 
 nationality of the royal house. That the latter jioint was not overlooked 
 at the time seems clear from William of Malmesbnry's story that the 
 Norman barons spoke in derision of the king and queen as Godric and 
 Godgifu. G. 11. V. § 394. 
 
 " ' Licet princ'ipibus deficientibus partes ejus solidae mangbant, qiias 
 Anselmi archiepiscopi cum episcopis suis simul et (minium Anglorum tuta- 
 Imtur favor. (.j)iiapii>i)l('r ipse provincialiuni fidei gratus et saluti jirovidus, 
 pkrumque cuneos circuieiis, docebat quomodo militum fiToeiam ebidentes 
 clypeos objectarent et ictus remitterent; quo eifecit ut ultroneis votis 
 fnignam deposcerent, in nulio Normannos metuentes.' W. Malmesb. G. R. 
 V- § 39.S- ' Venerabilis Anselmiis archiepisc^n])us et oinnes episcopi et 
 abbates cum sacro clero, et oinne-i Angli indissolubiliter regi suo adhaere- 
 bant, et pro ejus salute rcgni(|uo st;itu Ivegcm Sabaoth incensanter orabant. 
 .... Omnes quoque Angli alterius principis jura lu^sciontes in sui regis 
 fidelitate perstiterunt pro (pia cortanien inire satis oi)taverunt.' — Ord. 
 Vit. X. 18. See too the si)eech ascribed to Henry in 1 106, before the 
 campaign of Tenchebrai, in M. Paris, p. 62.
 
 X.] Stnigf/le iv'tth Rulert. 307 
 
 when the armies stood face to face the brothers saw that the The struggle 
 
 averted. 
 fruits of victory must fall to those whose strength would be 
 
 the destruction of the victor, and that the time was not come 
 for a struggle which would make either of them supreme. The 
 count of Meulan proposed peace, and peace was made. Robert 
 recognised Henry as king and released him from his fealty. 
 Henry undertook to pay Robert a heavy pension, and re- 
 stored to him the Cotentin, the Norman district which he 
 had purchased of him in his great necessity. In a.d. 1104 the [t is renewed 
 quarrel was renewed. Robert had again proved himself to be 
 neither wise enough nor strong enough to govern the Normans, 
 and Henry appeared in Normandy as a deliverer. But again 
 the struggle was settled without bloodshed. Robert transferred 
 to his brother the homage of the count of Evreux and Henry was 
 satisfied \ The next year, finding his Norman estates imperilled 
 by the irrepressible allies of Robert, he again crossed the sea and 
 added Caen and Bayeux to his possessions^, leaving Robert on 
 his return destitute alike of funds and supporters. In a.d. 1106 Final over- 
 
 '■ ^ , , throw of 
 
 Robert made ^n attempt to avert his final fall, and visited Eng- Robert, 
 land ; but it was in vain, Henry followed him home, and the 
 battle of Tcnchebrai in the summer of the same year made him 
 supreme in Normandy as in England ^. The point at issue from 
 the beginning had not been the English crown, but the power of 
 enforcing obedience on those Norman barons without whose sub- 
 mission neither country could be at peace. From a.d. ho6 to 
 
 H18 the struggle lay between them and Henry. In the latter Claims of 
 
 , • ,. -VT 1 • , 1 • I ^ , , . William the 
 
 year the young heir of Normandy, with the aid of the king of son of 
 
 France and the counts of Flanders and Anjou, made a bold stroke 
 for his rights, which was defeated by the policy and good-fortune 
 of his uncle *. Again in a.d. i i 27 his name Avas made the watch- 
 word of a renewed struggle ^ ; but his early death set Henry at 
 rest, and for the remainder of his reign he ruled without fear of 
 a rival. In England his position had been determined since 
 the year 1103 : but the battle which was fought out on Norman 
 
 * Ord. Vit. xi. lo. » Flor. Wig. a.d. 1105 ; Ord. Vit. xi. 17. 
 ' Flor. Wig. A.D. 1 106. 
 
 * Hen. Hunt. (ed. Savile), fol. 218 ; Ord. Vit. xii. i. 
 
 * Ord. Vit. xii. 45. 
 
 X 2
 
 308 Constitutional Hidory. [chap. 
 
 soil concerned the kingdom scarcely less closely than the duchy, 
 and every step was marked by an advance in the consolidation 
 of the royal power, by the humiliation of some great vassal, 
 or the resumption of some gi'eat estate. 
 Humiliation The process was begun immediately after Robert's departure 
 
 of the baron- . ^ ° "^ . ^ 
 
 age. in A.D. 1 1 o I . Robert Malet and Robert de Lacy forfeited their 
 
 gi'eat estates in Yorkshire and Suffolk \ Ivo of Grantmesnil, 
 who has the evil reputation of being the first to introduce the 
 horrors of private warfare into England, was suffered to go on 
 pilgi'image, having divested himself of all his fiefs in favour of 
 
 Resistance the count of Meulan -. Robert of Belesme, earl of Shrews- 
 
 lielesme. ° bury and Arundel and count of Ponthieu and Alen9on, was 
 summoned to answer an indictment of forty-five articles in the 
 king's court ^. He was the son of Roger of Montgomery, the 
 Conqueror's friend, and had been in arms on the side of duke 
 Robert in the last two reigns : he was an utterly selfish 
 tyrant of the worst feudal stamp, cruel, faithless, and oppres- 
 sive. He determined to resist, fortified his castles of Shrews- 
 bury, Bi'idgnorth, and Arundel, and was only reduced by the 
 king himself, who brought the whole force of the nation against 
 
 His estates him. His life was spared, but his English domains were con- 
 fiscated *, and he retired to Normandy, where he lived to do 
 
 Joy of the more mischief still. His downfall was regarded by the English 
 with gi-eat delight : the cry was, ' Rejoice King Henry and thank 
 the Lord God, for you became a free king on the day when 
 you conquered and banished Robert of Belesme^.' He had not 
 however yet accomplished his destiny. Having helped to pro- 
 voke the invasion of A.D. 1 104, and tried to make a separate peace 
 in A.D. 1 105, he escaped capture at Tenchebrai and submitted- 
 
 ' Ord. Vit. xi. i. Ilbert de Lacy, the father of Robert, had 164 manors 
 in the Domesday Survey; Robert Malet had 221 in Suffolk; Dugd. Baron, 
 p. III. 
 
 * Ord. Vit. xi. ■2. This fact recorded of Ivo is of considerMble importance. 
 ' Ivoncm quoque, quia guerrani in Amelia coeperat et vicinorum rura 
 suoruni incendio conilnissLTat, quod in ilia regioue crimen est inusitatum, 
 nee sine gravi ultione sit ex|)iatum.' 
 
 ^ Ord. Vit. xi. 3 ; Flor. Wig. A.n. iioi, 1102. * Ord. Vit. xi. 3. 
 
 ''' (Jrd. Vit. xi. 3: 'Gaude rex Hetirice, Dominoqne Deo gratias age, 
 quia tu Ulcere coepisfi regnare ex quo Rodbertura de Belismo vicisti et de 
 finibuB regai tui expulisti.'
 
 X.] Humiliation of the Great Barons. 309 
 
 But in A.D. 1 1 1 2 he rebelled, was arrested, and remained captive 
 until his deaths Among the forfeitures of a.d. 1102 was also Forfeitures 
 William of Warenne, earl of Surrey, who however was after- vassals. 
 wards restored ^ ; Arnulf of Montgomery and Roger of Poictou 
 shared the fate of their brother in a.d. 1103 and lost their 
 English fiefs ^; and thus fell the greatest and most thoroughly 
 representative of the Conquest families. 
 
 From A.D. 1 1 03 onwards the battle of English liberty was Humiliation 
 fought in Normandy. The penalty for rebellion there took the tories in 
 form of confiscation of the English fiefs belonging to the rebels, and ' 
 each rising left the king richer and stronger, the feudatories more 
 and more depressed. Of the gi-eat families which were endowed 
 on both sides of the channel, the earls of Chester alone were 
 unswerving in their faith to the king ; some even of the Beau- 
 monts, after the death of Count Robert of Meulan, fell away; 
 although the earls of Leicester and Warwick remained faithful *. 
 But Henry's cautious statesmanship led him to make an im- Difference 
 
 1 -n 1 • 1 J? I- "^ Henry s 
 
 portant distinction between the Norman and English fiefs, policy in 
 
 . EnKlandnnd 
 
 In the latter case he enforced entire forfeiture, whether the Normandy. 
 rebellion had taken place on Noraian or on English soil. In 
 the former he contented himself with garrisoning the castles 
 of the delinquents, so as, without rendering them desperate, to 
 deprive them of the means of being dangerous. In accoi'dance 
 with this policy, he abstained fi'om confiscating the Norman 
 estates of Robert of Belesme, and allowed his son William 
 Talvas to possess them after his father's death ^. An exception 
 
 > Hen. Hunt. fol. 217. "" Orel. Vit. x. 18; xi. 2. 
 
 ' Ord. Vit. xi. 3. Ro^er of Poictou had 398 manors in the Domesday 
 Survey. He had great part of Lancashire, and was first of tlie long line of 
 lords of Lancaster. Both the brothers are called earls by Ordericus, lib v. 
 c. 1 4. Arnulf 's fief was the castle of Pembroke and its dependencies. 
 
 * Earl Robert, who died in iiiS, left twin sons, Robert earl of Leicester, 
 and Waleran count of Meulan. The latter took up arms aijainst Henry in 
 1123, and was imprisoned. Henry earl of Warwick, brother of Robert I, 
 died in 1 1 23 ; his son Roger was now earl. 
 
 ' Ord. Vit. xii. 15. This was after the peace of .\.D. 1119. Henry 
 retained the castles in his own hands. ITiis, as I have remarked more 
 than once, was one of the great features of the roj'al jiolicy in Normandy. 
 Abbot Suger says : ' F'ere omnes turres et quaecunque fortissima castra 
 Normanniae, quae pars est Galliae, aut eversum iri fecit, aut suos intrudens 
 et de proprio aerario prociirans, aut si dirutae essent propriae voluntati 
 subjugavit.' V. Ludovici Grossi, § 15.
 
 3IO Constitutional History. [chap. 
 
 Henr.v's to the rule however was made in the cases in which the rebels 
 Ills own were members or connexions of the ducal house ; the count of 
 Mortain and Eustace of Breteuil forfeited all their estates ^ ; 
 but iu general Henry seems to have thought that it was safer 
 to keep a material hold on the traitors, than by driving them 
 to extremities to throw them into the hands of the king of 
 France as suzerain, or array them on the side of his brother 
 and nephew. In England, where his title was not really en- 
 dangered, he could act differently, and employ the great terri- 
 tories which he accumulated in the endowment of a new and 
 more faithful race of vassals. The seizure and retention of 
 the Norman castles is thus the supplement to the measure of 
 reducing the power of the feudatories which in England was 
 carried out by confiscation. 
 Landmarks The great crises of Henry's reign, after the battle of Tenche- 
 
 </f tlie reii;ii . . . 
 
 of Henry I. brai, are the rebellion which followed 'the death of the count 
 of Evreux in a.d. i i i 8 ", the loss of the heir in the terrible 
 shipwreck of a.d. 1120, and the revolt of Coimt Waleran of 
 Meulan in a.d. 1123^ It was not until a few years before 
 his death that he saw himself free from a competitor in the 
 duchy of Normandy, and his last years were embittered by the 
 
 ' Ord. Vit. xi. 21. Eustace of Breteuil received a pension in lieu of his 
 fief (li)id. xii. 22), and Breteuil was f,'iven to Ralph his cousin, son of 
 lialph Ciuader (see alwve, p. 291), whose daughter married earl Robert II 
 of Leicester. This instance shows tlie extreme rehietanee of the king to 
 extinj^uisli a great fief in Normandy. Bn teuil had belonged to William 
 Fitz-Osbern tlie justiciar ; his two sons divided his inheritance : Roger liad 
 Hertfordshire, which he lost in 1074 ; William had Breteuil, but died 
 without lawful issue. Henry I adjudged the fief to Eustace, a natin-al 
 son, whom he married to his own daughter Juliana. But the Guaders, 
 offspring of the fatal marriage of 1074, still claimed in the female line, and 
 idtimately obtained Bix'teuil. 
 
 ^ The leaders in iiiS were Hugh de Crournai, Stejihen of Aumale, 
 Eustace of Bretijuil, Richer de I'Aigle, Robert of Neufbourg son of Earl 
 Henry of Warwick, and Henry (;ount of Eu. Ord. Vit. xii. i. The faith- 
 ful were Ricliard earl of Ciicster, and his cousin and successor Ranulf, 
 Ralph de Conches, William of Wareime, W^illiam of Roumare, William 
 of Taidierville, Walter Giffard, and Nigel and William of Albini. Ibid, 
 xii. 14. 
 
 ^ The leaders of this revolt were, besides Waleran, who atoned for it by a 
 ca]>tivity of five years, William of Roumare, wlio had cdaims on tiie county 
 of Lincoln, Hugh de Montfort, who was imprisoned for the rest of Henry's 
 life, Hugh of Neufchatel, William Ijouvel, Baudri de Brai, and Pain of 
 Gisors. Ord. Vit. xii. 34.
 
 X.] Alliance with the English. 311 
 
 uucertainty of the succession. By coninellliifr the havons and His precau- 
 ■^ . , . . tioi's lor tlie 
 
 bishops to swear fealty to Matilda and her mtant son ', and by succession. 
 
 throwing more and more administrative power into the hands 
 
 of those servants on whose fidelity he most confidently relied, 
 
 he probably did all that could be done to avert the evils that 
 
 he could not but foresee. He had however himself set an 
 
 example which his success had made too tempting for the faith 
 
 of the generation that followed him. 
 
 110. A double result attended the policy which the love of Henry gains 
 
 _ Tx ^'"^ support 
 
 power, aided by circumstances, thus forced upon Henry. He of the 
 found himself, as he had from the first day of his reign foreseen, 
 compelled to seek the support of the native English ; and the 
 necessities of government called forth in him the exercise of 
 great administrative sagacity. Of the former point the con- 
 temporary historians, especially Ordericus Vitalis, afford abundant 
 illustration. Not only was Henry during the greatest part of 
 his reign in the closest alliance with the clergy, but the English 
 people, who saw in the clergy their truest friends and cham- 
 pions, uniformly supported him. In the dangers of Robert's Adhesion cf 
 invasion in a.d. iioi, when the count of Meulan, alone among 
 the great men, kept faith, Anselm Avith the clergy and people 
 adhered firmly to the king ; ' repudiating the claims of the other 
 pi-ince, they were constant in their fidelity to their own king, and 
 therefore they were desirous enough to enter the struggle ".' Their 
 joy at the conclusion of peace is contrasted with the disgust 
 and dismay of the feudatories. In the struggle with llobert 
 of lielesme, when the barons were anxious to intercede for their 
 champion *, the scale was turned in favour of strong measures 
 by the voice of the native troops ; and the congratulations which 
 the chronicler puts in the mouth of the jjcojile show that in 
 
 ' See Chap. XI, pp. 340, 341 below. * See above, p. 306, note 3 
 
 * ' Consules autem et priniores regni una convenerunt . . . diccbant enim, 
 "Si rex magnificuni coiniteni vinleuter subegerit niniiaque pertinacia, ut 
 conatur, euni exliercilitaverit, onines nos ut imbelles ancillas aniodo 
 conculcabit. . . . Pacem igitur inter eos obnixe seranius ut hero coniparique 
 uostro legitime ))roficianiU!J, et sic utrumque pertinbationes seilamlo dubi- 
 torem nobis faciamus. . . . Tunc in quodam proximo colle tria niillia 
 l)agensium luilituui .stabant et optimatum moliniina satis intelli>,'entes ad 
 regem v.ciferando clainabant, " Domine rcx Henrice noli prodituribus 
 istis credere.'" Ord. Vit. xi. 3.
 
 312 Constitutional Histori/. [chap. 
 
 S}^upathy of some quarters at least tlie real bearing of the contest was duly 
 
 vepa?d°by'' appreciated ^ The nation had accepted Henry as they had 
 
 ■ing. accepted the Conqueror and the great Canute before him. And 
 
 Henry showed himself to a certain extent grateful. He restored 
 
 the working of the local courts ^, the hundred, and the shire, 
 
 as they had been in King Edward's time. He granted to the 
 
 towns such privileges as in the awakening of municipal life 
 
 they were capable of using ^. He maintained good peace by 
 
 severe and even-handed justice ; and by strengthening the hands 
 
 of Anselm and the reforming prelates who succeeded him, he 
 
 did, after the arrangement of the question of investiture, win 
 
 to his side the most stable element of national life. 
 
 Policy of 111. In the second place, his circumstances called forth the 
 
 Henrj- in . 
 
 creating a display of greater constructive power than had been shown even 
 
 strong 3(1" rt 11 1 1 • •■! •!• /• 
 
 ministrative bv his father. Henry was fully awake to the impossibility of 
 
 body in con- •' , • , ,. i , , • , i , 
 
 nexion with governing England with feudal machinery, even clogged and 
 fettered by the checks which the Conqueror had imposed. The 
 faithless and selfish policy of the barons gave him the best 
 excuse for superseding them, gathering the reins of admini- 
 strative power into his own hands or those of his devoted 
 servants, and forming a strong ministerial body. In this 
 pui-pose he was seconded by the very admirable instrument 
 that his sagacity selected or his good-fortune threw in his way. 
 Bishop Roger of Salisbury, in the office of Justiciar, acted 
 throughout the reign as the great constructor of judicial and 
 financial organisation. This famous man, whom Henry had first 
 met as a poor priest in Novmandy and taken into his service 
 as steward and chaplain, brought to the work of government 
 an amount of laborious and minute attention which to a great 
 extent supplied the want of legal organisation. The regular 
 routine which he instituted was perhaps as great a step towards 
 a safe constitutional system as was possible under so despotic 
 a sovereign : and its elaborate machinery was in itself a check 
 on wanton tyranny. In suboi'dination to Roger, Henry raised up 
 
 ' See above, {>. 308. 
 
 ' Select Cliaiter.s, p. 99. See below, Chap. XI. 
 
 " Ibid. pp. 104-108. See below, Chap. XI.
 
 X.] New Ministers. 313 
 
 a set of novi homines, many of whom were, in nobility of blood, Rise of new 
 below the ideal standard of the ruling race. Among them Or- tive families, 
 dericus enumerates the Clintons, the Ikssets, and the Trussebuts, 
 who, although not among the tenants-in-chief of Domesday, were 
 of good Norman descent and founders of great English families'. 
 They were endowed and elevated in position with the distinct 
 purpose of forming a counterpoise to the older vassals ; and they 
 were made useful in the work of administration. This class of 
 men furnished the sheriffs of the counties, the barons of the 
 exchequer, and the justices of the Curia regis. The nobles of the wlio are 
 
 111 11- ri regarde'l as 
 
 Conquest naturally regarded them as upstarts, and this scorniul upstarts, 
 estimate of them is reflected in the writings of the historians. 
 They were in fact, for the most part, too poor as yet to make 
 themselves friends among the monks and clergy, as their rivals 
 did, by founding churches and monasteries ; and being the 
 agents of the strict measures of the king, they incurred the 
 unpopularity that always awaits economic or judicial reform. 
 In some cases, it may well be, they showed too great zeal in 
 carrying out the policy of their master, and in others they took 
 the opportunity of turning their office to their own advantage 
 rather than that of the State. But notwithstanding this, they 
 were so far an improvement on the feudal administratoi's that 
 they were not too strong to be brought to justice. 
 
 The English, although faithful and submissive to Henry, were 
 
 ' Ord. Vit. xi. c. 2 : ' Alios e contra favorabiliter illi ob^equentes de 
 ignobili stirpe ilhistravit, de pulvere, ut ita dicani, extiilit, dataque mul- 
 tiplici facultate super consules et illustres oppidanos exaltavit ; inde 
 Goisfredus de Clintona, Radulfus Basset et Hugo de Bocalanda, Guillegrip 
 et Rainerius de Bada. Willehnus Trossebot et Hainion de Falesia, Guigan 
 Algazo, et Eodbertus de Bostare.' Of these, Geoffrey de Clinton and 
 Ralph Basset were two of Henry's principal justices ; the latter founded 
 a great legal family : Hugh de Bocland also founded a baronial house. 
 Willegrip had held land in .Shropshire and Staffordshire before the Domes- 
 day Survey (vol. i. 249, 254) ; he was no doubt an Englishman, as Hugh 
 of Bocland was probably. The author of the Gesta .Stephani describes 
 their attitude in the next reign, pp. 14, 15: ' Exceptis quibusdam regis 
 Htjnrici priniis et conjunctioribus amicis, quos ex plebeio genere, inter 
 aulanos juvenculos ad ministramium assuetos, in tantum postea singulari 
 sibi dilectione astritixit, ut eos honoribus ditatos largissimis, praediisque 
 honoratos amplissiniis, et omnium palatinorum archiniinistros efficeret, et 
 omnium curialium cau-arum susceptores praescriheret.' He mentions as 
 instances only Miles of Hereford and Pain Filz-John.
 
 314 Constitutional Hhtory. [chap. 
 
 C.uis«softhe not disposed to endure his strong government without mur- 
 
 misery pre- ^ ... 
 
 vaient in the muring. The amount of taxation which he imposed was not 
 
 rei?iiof ^ . . . ^ . . 
 
 Henry I. so burdensome by its weight as by its regular and inevitable 
 incidence. Tiie exactions and the miseiy that they caused are 
 a frequent subject of lamentation with the native writers. In 
 A.D. 1 103 the Peterborough chi'onicler complains, 'This was 
 a year of much distress from the manifold taxes;' in a.d. 1104, 
 ' It is not easy to describe the misery of the land which it suffered 
 at this time from manifold oppressions and taxations;' in a.d. 
 H05, 'The manifold taxes never ceased;' in a.d. iiio, 'This 
 was a year of much distress from the taxes which the king 
 raised for his daughter's dowry;' in a.d. 1118, 'England paid 
 dearly for the Norman war by the manifold taxes ; ' in a.d. i i 24, 
 ' He who had any property was bereaved of it by heavy taxes 
 and assessments, and he who had none starved with hunger'.' 
 Allowing for the generally querulous tone of the writer, it must 
 be granted that there was much truth in the representation : 
 an extraordinary series of bad harvests and stormy seasons 
 and the general depi-eciatiou of the coinage, caused by the 
 dishonesty of the moneyers^, increased no doubt the distress. 
 But it must not be forgotten that it was by these exactions 
 that England was saved from the ravages of war, and that 
 the money so raised was devoted to the humiliation of the 
 common enemies of king and people. The amount of taxation, 
 where exact details are recorded, was not greater than could 
 have been easily borne in a period of prosperity, after good 
 harvests and in time of j)eace. The same chronicler is obliged 
 to say of the king, that ' he was a good man and great was 
 the awe of him ; no man durst ill treat another in liis time ; 
 he made peace for men and dccr^.' Much the same impression 
 
 * Cliron. Sax. undtr the several years mentioned. In 11 25, which 
 Henry of Huntingdoni describes as the dearest he could remember, the 
 hor.se-load of wheat cost six shillings (fcil. 219). The Chronicle .says that 
 between Christmas and Candlemas om." .acre's seed of wheat or barley sold 
 for six shillings, and one of oats for four. In 1 131 there was a cattle 
 jtlague. 
 
 ^ Chron. Sax. a.d. 1124. Hence the very severe measures taken against 
 the coiners in 1 1 25. 
 
 ^ Ibid. A.D. XI 35.
 
 X.] Strong Government. '^i^ 
 
 is made by the more favom'able account of Ordeiicus. ' He Estimate of 
 
 ''_ ' Henry's po- 
 
 governed with a strong hand the duchy of Normandy and the li lymade by 
 
 kingdom of England, and to the end of his life always studied Vitalis: 
 
 peace : enjoying constant good-fortune, he never fell away 
 
 from his first strength and sternness of justice. 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. From the eighth 
 
 year of his reign, in which he acquired firm hold on power 
 
 on both sides of the sea, he always sought peace for the nations 
 
 under him, and rigidly punished with austere measures the 
 
 transgressors of his laws.' His personal vices were not directly 
 
 injurious to the welfare of his people. ' Strong in energetic 
 
 industry, he increased in a manifold degree his temporal gains, 
 
 and heaped up for himself vast treasures of things which men 
 
 covet.' 'After a careful examination of the histories of the 
 
 ancients, I boldly assert that none of the kings in the English 
 
 realm was, as touching the grandeur of this world, richer or 
 
 more powerful than Henry\' He was the 'Lion of Eigliteous- and other 
 
 .„ r a •^ 1 • ■ historians. 
 
 ness of Merlin s prophecies . ' Innexible m the rigour of 
 justice,' says William of Malmesbury, ' he kept his native people 
 in quiet, and his barons according to their deserts^.' Men 
 thought diversely about him, Henry of Huntingdon tells us, 
 and after he was dead said what they thought. Some spoke 
 of splendour, wisdom, prudence, eloquence, wealth, victories ; 
 some of cruelty, avarice, and lust ; but in the evil times that 
 came after, the \ery acts of tyranny or of royal wilfulness seemed, 
 in comparison with the much worse state of things present, 
 most excellent*. He was, it is evident, a strong ruler, with General 
 a clear view of his o-\vn interests, methodical, sagacious, and Henry, 
 far-sighted : his selfish aims dictated the policy that gave peace 
 and order to his people : destroying his enemies, he destroyed 
 theirs ; and by enforcing order he paved the way for law. 
 Such a king neither expects nor deserves love; but he is 
 
 * Ord. Vit. xi. 23. 
 
 * Ibid. xii. 47. Sugar, V. Ludovici Gr., § 15 ; Joh. Salisb. Polycr. vi. 18. 
 ■ =" W. Malmesb. G. R. v. § 411. * H. Hunt. ed. Savile, fol. 221.
 
 3i6 Constitutional History. [chap. 
 
 regarded with a mixed feeling of confidence and awe, and the 
 result of bis rule is better than that of many who are called 
 beuefactors. 
 Ecclesiasti- 112. The ecclesiastical policy of Henry was the same as that 
 Henry'l'^ ° of his father ; but the circumstances of the times were different, 
 and the relations of the king with both the English Church 
 and the Pope were more complicated ^ The policy of Aui^elni 
 was in contrast with that of Lanfranc, and the tendency of 
 ecclesiastical progress had become too strong to be directed 
 by political management. The points at issue between the 
 king and the Church had become part of the great European 
 quarrel. The exact importance of those points cannot be 
 discussed here, and the constitutional results of the dispute on 
 investitures have their proper place in the history of the 
 national council. The political consequences of the struggle 
 however were to draw the clergy and people more closely 
 together, and to force on the king the conviction that, absolute 
 as he would be, there were regions of life and thought in which 
 he must allow the existence of liberty. In no respect does 
 His dispute Henry's ability show itself more strongly than in this. At 
 the beginning of his reign, although the support of the prelates 
 was absolutely necessary to him, and he was willing to win 
 it by renouncing the evil customs of his brother, he refused 
 to surrender one of the rights that his father had exer- 
 cised, or that were in question among his fellow-rulers on the 
 continent. Anselm again left England, but no interruption 
 took place in the ecclesiastical working : the clergy stood by 
 the king in his struggle with the feudatories and rejoiced in 
 his victories. When the early troubles Avere over, and Henry 
 was able to apply himself to the independent treatment of the 
 question, his thoughtful mind at once struck out the fit line of 
 compromise, and anticipated ])y fourteen years the principle on 
 which the Concordat of Worms was framed between pope and 
 emperor. His love of order led him to admit the canonical 
 rights of the chapters of the churches, the synodical powers of 
 
 ' The unfavourable picture drawn in the Ccsta Stepliani, pp. i6, 17, 
 fjhould be compared with Eadmer, vvlio its more ju.st to the king.
 
 X.] Ecclesiastical Policy of Henry 1. 317 
 
 the clerffv, and even the occasional exercise by the popes of The extent 
 
 °'' '' ^ ' of his con- 
 
 a supreme appellate and legatine jurisdiction. He saw how- cessions. 
 
 ever distinctly the point at which his own authority must limit 
 this liberty. The bishops might be elected by the chaptei'S, but 
 the election must be held in his court ; the clergy might be 
 trusted without compulsion to choose his candidates. The coun- 
 cils might be held when the archbishop chose, but the king's 
 consent must be obtained before the assembly could meet or 
 exercise any legislative power. Papal jurisdiction was not ex- 
 cluded, but no legate might visit England without royal licence. 
 In the exercise of this control he showed no self-willed caprice, as 
 William Rufus had done : the fi'eedom was never withheld simply 
 to show that it was in his power to withhold it, but only when 
 he was engaged in foreign war which might be complicated 
 by ecclesiastical interference, or when the exertion of sovereign 
 authority was needed to reconcile conflicting interests at home. 
 Henry knew how to yield with a fairly good grace, or for an 
 adequate purpose. He allowed Ranulf Flambard to make his 
 peace, and found him a useful tool. He allowed himself to 
 be over-reached by Archbishop Thurstan and Pope Calixtus II ; 
 but he saw the merits of the archbishop through the dis- 
 ingenuous policy which he had persuaded himself to employ, 
 and after a while placed him in possession of the rights of his see. 
 That in some such cases his favour was purchased by a direct 
 payment is scarcely to be wondered at. The practices that were Simoniacal 
 regarded aa simoniacal in the Church, the sale of offices and '"^ ^'^^^' 
 legal sentences, were not yet regarded as immoral in the secular 
 service of the State. Under an absolute king, whose will is 
 law, that which he chooses to sell passes for justice. Beneath 
 a thin veil of names and fictions, the great ministerial offices 
 and the royal interference by writ in private quarrels were alike 
 matters of purchase. In the Church as well as in the State, if 
 simony, as defined by the canon law, could be avoided, money 
 might pass for money's worth. But setting this aside, Henry 
 felt his own strength to be sufficiently great to spare him the 
 pangs of jealousy. Once firmly seated on his throne, he in- 
 dulged in no severities greater than his own security demanded,
 
 3i8 
 
 Constitutional Histori/. 
 
 [chap. 
 
 Henry's and, savaffe as he was by nature, put so far forth a curb on 
 
 treatment of f . ^ ' ^ 
 
 the Church his own instincts. In the same way he showed no jealousy 
 
 illusti-ates . . ^ e . . 
 
 of the clergy. Certain of his mastery, he found his interest 
 
 liis treat- 
 ment of the 
 people. 
 
 Accession 
 of Stephen. 
 
 in using them rather than tormenting them. And this sheds 
 some liglit on his treatment of the people : he cared too little 
 for them to pretend to love them ; he feared them too little 
 to take pains to propitiate them ; but he saw that for himself 
 it was best that they should be ordei'ly governed, and with 
 a strong hand he maintained the order that he may almost 
 be said to have created \ How slender the basis must be on 
 which the absolute monarch rears his selfish designs ; how little 
 the strongest will can direct the future course of events ; how 
 intrinsically treacherous is the most perfect system and order 
 that results from external will rather than from permanent 
 oi'ganisation under an internal law, may be learned definitely 
 from the history of the next reign. 
 
 113. The example which Henry had set in his seizure and 
 retention of the crown was followed in every point by his 
 successor. Stephen of Blois, the son of the Countess Adela 
 and grandson of the Conqueror, had obtained the county of 
 Mortain by the gift of his uncle ^, and that of Boulogne by 
 marriage. His wife, the niece of Godfrey of Bouillon, was a 
 gi'aud-daughter of Malcolm and Margaret, and descended from 
 the line of Cerdic in exactly the same degree as the Empress 
 Matilda. His position as count of Mortain gave liim, although 
 he was not the eldest member of his family, the first place 
 among the barons of Normandy ; and in this capacity he had 
 
 • Abbot Suger (V. Ludovici Or., § 15), coninienting on the prophecy of 
 Merlin : ' Aurum ex lilio et 111 tica extovquebitur, ct argentinn ex uiiguli.s 
 niui'ientiinu nianabit.' — 'In ilicbuH ejus aurum ex lilio, quod est ox ndi- 
 gidsis boni oiloris, ct ex urtica, (|U()d est ox saoculnrll)us piingcntibus, ah 
 eo extorquebatur ; hoc iiiteiidens ut, sicut omnibus proficiebat, ab omnibus 
 ei serviretur. Tutiua est enim uuum ut omnes defend.i.t ab omnibus ha- 
 bere, quam non habendo per unum omnes de]iorire. Argentum ex ungulis 
 mugientiuni manabat, cutn ruris securitas horreorum plenitudinem, hor- 
 rooruni plenitudo argenti copiam ])lenis scriniis ministrabat.' The last 
 sentence contains the key to much of bis administrative policy. 
 
 =* On the forfeiture of Robert of Helesme Henry I gave Alenfim to 
 Th(!obald of I'.lois, wlio gave it to Stephen in exchange for his French 
 heritage. (Jrd. Vit. xii. 4. Stephen received Mortain instead, when 
 William Talvas recovered his f.ither's estates in a.d. 1119.
 
 X.] Stephen^ s Accession. 319 
 
 thrice plodc^ed his oath to secure the succession of Matilda and 
 her infant heir\ 
 
 The death of Henry I, like that of William Rufus, took Thcsucces- 
 both Normandy and England by surprise ; and if on neither as an open 
 side of the channel any respect was paid to the engagements 
 made for the succession, it must be remembered that these 
 engagements had been to all intents and purposes forced upon 
 the barons. The very fact of their repetition had betrayed that 
 they were not on either side regarded as trustworthy. As 
 soon as the king was dead the Norman barons treated the suc- 
 cession as an open question ; and Stephen took the decision 
 as respected England into his own hands. Henry died in the 
 night following December i, a.d. 1135: Stephen immediately 
 on receiving the news crossed over to England. The men of 
 Kent, remembering the mischief that had constantly come to 
 them from Boulogne, refused to receive him^. He hastened to .«;to))iion 
 London, and was there hailed by the citizens as a deliverer Lomion an<l 
 from the danger of a foi'eign yoke : Geoffrey of Anjou and his '"'^ w!>ter. 
 wife were disliked, the former as a stranger, and the latter 
 as an imperious self-willed woman'' ; the citizens of the first 
 city in the realm might claim to exercise a prerogative voice 
 in the election of the king, and they chose Stephen*. En- 
 couraged by this success, he passed on to AVinchester, where 
 also he was welcomed by the citizens ; here he obtained with 
 little delay the royal treasure, having, by the aid of his bro- 
 ther the bishop, overcome the scruples of the justiciar. Bishop 
 Roger of Salisbury ^ Thus strengthened, he returned to London 
 for formal election and coronation''. It was not without deep 
 misgivings that Archbishop William disregarded his oath ; but 
 the exigency was urgent. The susjiension of law and peace 
 
 ' Below, Chap. XI, p. 341. 
 
 * Gervase, c. 1340: 'A Cantuarinis exclusus.' 
 
 ' Cent. Flor. \N ig. : ' Volente igitur Gaufrido coniite cum uxore sua 
 quae heres erat in regnum succedere, primores terrae jurainenti sui male 
 recordantes regem eum suscipere noluerunt, dicentes " Alienigena non 
 regnabit super 110s." ' 
 
 * ' Id quoque sui esse juris suique specialiter privilegii, ut si rex ipsorum 
 quoqno modo obiret, alius sue provisu in regno substituendus e vestigio 
 succederet.' Gesta Stephani, p. 3. 
 
 * W. Malmesb. Hist. Nov. i. § 11. * Gervase, c. 1340.
 
 320 
 
 Constitutional History. 
 
 [chap. 
 
 Election and owing to the interregnum was becoming dangerous ; the news 
 of Stephen, from Normandy brought no prospect of a speedy solution of the 
 difficulty from that quarter. Hugh Bigod, Henry's steward, 
 was ready to swear that the king had released the vassals from 
 their oath and disinherited Matilda*. All men were acting 
 as if she had no claim to be considered. Stephen pressed his 
 advantage : the three prelates undertook to act on behalf of 
 the Church, and the citizens of Loudon j&lled up the gaps in 
 the ranks of the nobles^ : he was crowned on S. Stephen's Day. 
 The hurry of the ceremony gave no time to impose new con- 
 stitutional conditions, nor were the members of the national 
 council who were present likely to demand more than Henry 
 had seen good to grant. A brief charter was issued by which 
 the new king confirmed the laws and liberties that his uncle 
 had given and the good customs of King Edward's time, and 
 enjoined the observance of them on all, a command which meant 
 little under the weak hand that signed it^. 
 
 The news of Stephen's boldness and success determined for 
 the time the minds of the Normans who had been talking of 
 electing his elder brother Tlieobald as their duke* : Geoffrey 
 and Matilda were occupied by a revolt in Anjou, and even Earl 
 Robert of Gloucester, the natural son of Henry I, seems to 
 have concluded that it was the moment for politic submission^. 
 
 * Gervase, c. 1340 : 'Quidam ex potentissiniis Angliae, jurans et dicens 
 se praesenteni afFuisse ubi rex Henricus idem juramentum in bona fide 
 sponte relaxasset.' Ralph de Diceto, c. 505 : ' Hugo Bigod senescallua 
 regis coram archiepiscopo Cantuariensi sacramento probavit, quod dum 
 rex Heniicus ageret in extremis, ortis quibusdani inimicitiis inter ipsum 
 et imperatricem, ipsam exheredavit, et Stephanum Boloniae comitem 
 heredein instituit.' 
 
 "^ 'Tribuse|)iscopispraesentibu8, archiepiscopo, Wintoniensi, Salesbiriensi, 
 niillis abb.Ttibus, paiici.ssimis optimatibus.' Will. Mahiiesb. Hist. Nov. i. 
 § 12. Gervase, c. 1340, says, 'A cunctis fere in regem electus est.' 
 
 ' ' Sciatis me concessisse et jiraesenti carta mea coiifiiTnasse omnibus 
 baronibus et hominibus meis de Anglia omnes libertates et bonas leges 
 quas Henricus rex Anglorum avunculus mens eis dedit et concessit, et 
 omnes bonas leges et bonas consuetudines eis concedo quas habucrunt tem- 
 pore regis Edwardi.' Statutes of the Realm, i. 4; Select Charters, p. 1 13. 
 
 * Ord. Vit xiii. 20. 
 
 * ' Post Pasclia Robertus comes Gloecestrae . . . venit in Angliam . . . 
 homagium re^i fecit sub conditione quadam scilicet quanidiu ille dig- 
 nitatem Huani integre custodiret et sibi pacta servaret.' Will. Malmesb. 
 Hist. Nov. i. § 1 4. The author of the Gesta Stephaui says that Robert 
 
 His first 
 cliarter. 
 
 He is 
 
 accepted in 
 Normandy.
 
 X.] Siephens Charier. 321 
 
 Only the old king of Scots took up arms on behalf of his niece ; Stephen's 
 
 11 •f>Ti 1 1 />/-iTi Til proniisfs of 
 
 and he was pac-ined by the surrender 01 Carlisle, although good f.'overii- 
 he declined to do homage, in consideration of his oath to 
 the empress \ It would seem that the necessity of binding 
 Stephen by further conditions had occurred to the barons who 
 had assembled at the funeral of the late king. This ceremony 
 had been delayed until nearly a fortnight after the coronation, 
 and it is probable that it furnished an opportunity of obtain- 
 ing some vague promises fi'om Stephen. He undertook, we are 
 told, to allow the canonical election of bishops and not to 
 I)rolong vacancies ; to give up the abuses of the forest juris- 
 diction which Henry had aggravated, and to abolish the Dane- 
 geld ^ Whether these promises wex-e embodied in a charter 
 is uncertain : if they were, the charter is lost ; it is however 
 more probable that the story is a popular version of the His second 
 document which was actually issued hy the king, at Oxford, 
 later in the year 11 36, after be had been joined by the earl of 
 Gloucester and other chief membei's of Henry's household. 
 This charter, which is the second of our gi'eat charters of 
 lil)erties, is attested by a large number of witnesses^ ; eleven 
 English and three Norman bishops ; the Chancellor Roger ; 
 
 liad been urged to take the crown himself, but he refused 'dicens 
 aequius esse filio sororis suae, cui justius competebat, regnum cedere, quam 
 praesumptive sibi usurpare.' p. 8. Notwitlistauding he did homage to 
 Stephen. 
 
 ' Hen. Hunt. fol. 221, 222. 
 
 ' Hen. Hunt. ed. Savile, fol. 221 : 'Prime vovit quod defunctis epi- 
 scopis nunquTim retineret ecclesias in manu sua sed statim election! canonicae 
 consentiens episcopis eas investiret. Secundo vovit quod nullius clerici 
 vel laici s}dvas in manu sua retineret, sicut rex Henrious fecerat, qui 
 singulis annis implacitaverat eos, si vel venationem cepissent in silvis 
 propriis vel si eas ad necessitates suas exstirpareiit vel diminuerent . . . 
 Tertio vovit quod Danegeldum, id est, duos solidos ad hidam quos ante- 
 cessores sui accipere solebant singulis annis in aeternum condonaret.' 
 These promises were made at Oxford, during the Christmas season, before 
 the news of the Scottish invasion. The cliarter, mentioned immediately, 
 was also issued at Oxford ; but, as it is attested by the earl of Gloucester, 
 who landed soon after Easter, it must be dated some time in the spring. 
 
 ' Statutes of the Eealm, i. 3 ; Select Charters, pp. 114, 115. The earls 
 are Gloucester, Surrey, Chester, and Warwick, of whom Gloucester was 
 uniformly, and Chester generally, on the side of the empress. Her most 
 faithful adherents, Allies of Hereford and Brian of \Vallingford, were also 
 among the witnesses : probably the retreat of the king of Scots had made 
 her cause for the time hopeless. 
 
 T
 
 323 Constitutional Histori/. [chap. 
 
 Stephen's foui' earls ; foui* sfreat constables ; four royal stewards ; two 
 
 second ^ o i j ? 
 
 ciiarter. grand butlers, and seven other vassals, two of whom were of 
 the rank of count. The privileges conceded by it are chiefly 
 ecclesiastical. Simony is forbidden ; the property, dignities, 
 and customs of the churches are confirmed as they were in 
 the days of the Conqueror, and the jurisdiction over ecclesiastics 
 is left in the hands of the bishops : all interference in the 
 testamentary dispositions of the clergy and in the administra- 
 tion of vacant chui'ches is disclaimed. The forests made in 
 the last I'eign are surrendered^ The promise of peace and 
 justice made at the coronation is I'enewed, and amplified by 
 an undertaking to extirpate all exactions, injustice and chi- 
 caner}^, whether introduced by the sheriffs or by others ; and 
 to maintain good laws and ancient and righteous customs in 
 reference to judicial procedure generally^. As in the charter 
 of Henry I, each of the three estates has its own clause of 
 conciliation ; the forest jurisdiction being surrendered probably 
 to gain the support of the lay nobles. But Stei)lien kept none 
 of these promises. 
 
 Want of con- He was a brave man, merciful and generous, and had had 
 fidence in . . , . . „ , . . 
 
 Stephen. Considerable military experience ; but he was gifted with neither 
 
 a strong will nor a clear head, and from the beginning of his 
 
 reign neither felt nor inspired confidence. The conditional 
 
 adhesion of Robert of Gloucester, who carefully defined the 
 
 fealty that he promised as dependent on the king's treatment of 
 
 him', was not a circumstance likely to reassure Stephen. Mucli 
 
 however might have been done by an honest perseverance in the 
 
 Early revolt promises of the charter. Unfortunately for the king, a false 
 
 '*fc''*"i • report of iijg death early in the summer produced a general 
 
 rising. Hugh Bigod, who had so lately acted as his tool, seized 
 
 * ' ForeHtiiH quas WilleliiiuB avus mens et WillelnniR avunculus meus 
 itiKtitucnint et hahueruiit, niilii rcsorvo. Ceteras omnea quas rex Henricus 
 Ruporadilidit ecclesiia et regno quietas roddo et concedo.' 
 
 '^ ' Onine.s exactiones et iujuHtitias et mesclienitigas, sive per vicecomites 
 vel per alios quonlihet male induetiis, fnnditus exstirpo.' The miakenning, 
 rariatio lot/iiflne, is explained of tlio arbitrary fines exacted for altering the 
 teriTiH of iiidietuient, or shifting the ground of an action after it was brought 
 into court. 
 
 '■' Above, J). 320, note 5.
 
 X.] Early Successes. 323 
 
 the castle of Norwich, and Baldwin of Redvers fortified Exeter. Stephen's 
 
 o 1 • 1 1 1 • 1 early 
 
 btephen, with great promptness, marched against the two sti-ong- success. 
 
 holds in succession and took them. Hugh Bigod and his party 
 
 were pardoned, but Baldwin was deprived of his estates in the 
 
 Isle of "Wight and banished. The success of the king led him 
 
 to forget his engagements, and by holding a forest assize at 
 
 Brampton he showed how little weight he allowed to the promise 
 
 which in popular estimation was of the most importance^. The 
 
 next year, 1137, ^as marked by victories in Normandy, and was 
 
 the crowning period of his prosperity^. In a.d. 1138 all the 
 
 elements of danger broke out at once into a blaze. 
 
 114. The feudal instinct, notwithstanding the repressive Gathering 
 ,. » Tx T • ? clouds, 
 
 policy of Henry I, was as strong as ever in the great vassals. 
 
 Unwarned by the fate that had overtaken their fellows, and 
 uninstructed by the good peace that Henry had made, they 
 watched with eager eyes for the moment when the disputed 
 title to the throne should give them an opportunity of striking 
 a blow for themselves. Matilda's party were gathering reso- 
 lution and collecting resources, w^hilst Stephen was spending his 
 treasures and wasting his opportunities. Matters would have 
 been bad enough if his policy had been a negative one ; but the 
 
 very measures which he took for strengthening himself were so Stephen's 
 •11 1 1 p 1 -iLT • 1 T ^ <• • imprudence, 
 
 ill chosen as to be latal. Notwithstanding the fact that it was 
 
 by an outciy against the foreigners that he had been able to 
 
 exclude Matilda from the succession, and although he must 
 
 have known the intolerant dislike felt both by the Norman His mer- 
 
 barons and by the English for foreigners, whether as favourites 
 
 or as mercenaries, he surrounded himself with an army of hired 
 
 Flemings^ In order, next, to secure more firmly the faith of Building 01 
 
 . caslles. 
 
 such bai'ons as had adhered to him, he allowed them to fortify 
 
 their houses and build castles, where they exercised without 
 
 * Hen. Hunt. fol. 122 ; Gesta Stephani, pp. 20-30. 
 
 ' Hen. Hunt. fol. 222 : 'Hi ergo duo anni Stepliano regi prosperrimi 
 fuerunt ; tertius vero, de quo dicemus, mediocris et intercisus ; duo vero 
 ultimi exitiales et pr.xerupti.' 
 
 "■' W. Malrnesb. Hist. Nov. ii. § 34. Ord. Vit. xiii. 30 : ' In ilHs praeoipue 
 fisiis est. Unde proceres Normannorum nimis indignati sunt, snumque 
 regi famulatum callide subtraxerunt." 
 
 Y 2
 
 324 Constitutional History. [chap. 
 
 limitation all the tyi-annical privileges which the feudal example 
 of France suorgested^ He went further still, Not satisfied with 
 putting this weapon iuto the hand of his enemies, he provoked 
 
 His creation their pride a,nd jealousy by conferring the title of earl upon 
 some of those whom he trusted most implicitly, irrespective of 
 the means which they might have of supporting the new dignity. 
 Their poverty was relieved by pensions drawn from the Ex- 
 chequer, which was ah-eady so much impoverished as scarcely 
 to be sufficient for the expenses of administration ^. Accordingly 
 
 WnrofA.D. when, early in A.D. 11 38, the king of Scots again invaded the 
 
 "^'*' north, the party which Robert of Gloucester had been organising 
 
 in the south and west of England threw off the mask and broke 
 into rebellion ^, Stephen, leaving Yorkshire to be defended by 
 the barons and commons, who under the exhortations of Arch- 
 bishop Thurstan mustered as in the days of old and successfully 
 repelled the invasion, himself led his forces against the rebels in 
 Somersetshire, where although he was unable to take Bristol, 
 the stronghold of Earl Robert, he achieved some considerable 
 success *. His fortunes might yet have triumphed, but for his 
 own incredible imprudence. 
 
 Attitude of Up to this time Stephen liad contrived to keep on his side 
 the clergy and the great officers of state. The bishops were 
 greatly influenced by Henry of Winchester, who early in a.d. i i 39 
 obtained the connnission of legate from Rome^, an office which 
 made him more than a match for the newly-elected archbishop, 
 
 » W. Malmeslj. Hist. Nov. i. § 18. 
 
 ^ Ibid. § 34 : ' Denique niultos etiam comites qui ante non fuerant 
 instituit, applicitis po.sse.s.sionibus et redditibus quae proprio jure regi 
 competebant.' 
 
 ^ Henry of Huntingdon, fol. 222, gives a list of the insurgents and their 
 castles. Talbot fortified Hereford ; Robert of Gloucester, Bristol and Sled 
 (Leeds) ; William Lovol, Castle Cnry ; Paganellus, Ludlow ; William de Mo- 
 liun, Diinstcr; Kobert of Tiincoln, Waruliam ; Eustace Fit/John, Midton ; 
 William P'itz-Alan, SlireWHl)ury. Ordericus Vitalis (xiii. 37) adds Walkelin 
 Mamiiiot, who coniiiianded at DDver ; William Peverell, who had four 
 castles, I'urne, Ellesmere, Wliittington, and Overton ; and William Fitz- 
 John who f(jrtifiod Harptrce. The Buauchamjw at Bedford had been brought 
 to surrender early in 1 138. Hue also Gosta Stephani, pp. 30-43 sq. 
 
 * Gesta Stephani, p. 41 sq. 
 
 ■* The date of Henry's legatine commission, wliich is ()ften mis-stated, is 
 given by William of M.'ilmesbury ; Hist. Nov. ii. § 22. It was March 1, 
 1 1 39. Tlieobald had been consecrated on the 8th of January. 
 
 the bishoiJS.
 
 X.] Atlilude of the BisJwj^s. 325 
 
 Theobald of Canterbury. Henry of Winchester was a thorougli Rocor of 
 
 11 1 • • p ^ • ^ 1 • 1 • r-< Salisbury 
 
 churchman, and, in spite or his close relationship to Stejihen, and his 
 
 IlCpllGWS. 
 
 never condescended to act as his tool. The administrative 
 machinery of the kingdom was still under the control of Eoger 
 bishop of Salisbury : he yet bore the title of justiciar ^ ; his son, 
 also named Roger, was chancellor of the king ; one nephew, 
 Nigel bishop of Ely, was treasurer ^ ; another nephew, Alex- 
 ander, was bishop of Lincoln. As the whole of the judicial and 
 financial business of the kingdom depended on the Exchequer, 
 Avhich had been for thirty years in the hands of this able family, 
 it was little less than infatuation to break with them. Bishop 
 Roger had been mainly instrumental in placing Stephen on the 
 throne. He had, perhaps, for the sake of retaining power, done 
 outrage to the sense of obligation under which gratitude to the 
 late king should have laid him ; probably also he was influenced 
 not a little by the common idea of statesmen that their fiist duty 
 is to see that the government be carried on ; without bim, he 
 knew and the event proved, the whole mechanism of the State 
 would come to a standstill. But he did not shut his eyes to the Their 
 uncertainty of his position ; he saw the vassals on every side 
 building castles and collecting trains of followers ; and, either 
 with the thought of defending himself in the struggle which he 
 foresaw, or perhaps with the intention of holding the balance of 
 the State firm until the contest was decided, he and his nephews 
 built and fortified several strong castles in their dioceses ^. Hav- 
 ing great revenues at their disposal, they expended them freely; 
 their newly-built fortresses were the noblest works of the kind 
 north of the Alps ; and the train with which they appeared at 
 court was numerous and magnificent. It is not clear whether 
 
 * ' Justiciarius fuit totius Angliae et secundus a rege.' Hen Hunt. fol. 
 218. ' Cui totius Albionis tutela januhulinu ab avunculo suo, et postmocluni 
 ab ipso, commissa fuerat.' Ord. Vit. xiii. 24. 
 
 * Nigel had been the means of revealing to the king the existence of a 
 formidable conspiracy, as late as 1137. Ord. Vit. .xiii. 32. One of his 
 clerks, named Ranulf, had contrived a plot for murdering all the Normans. 
 E. Diceto, c. 50S. 
 
 ^ Newark and Sleaford were fortified by Alexander ; Salisbury, Devizes, 
 Sherborne, and JSIalniesbury by Roger. Devizes, according to Henry "f 
 Huntingdon, was as splendid as the most splendid castle in Eurojie ; 
 fol. 223.
 
 326 Constitutional History. [chap. 
 
 Arrest of Stephen's course was prompted by a doubt of Roger's fidelity, 
 Roger. \fj the petty jealousy of his partisans among the bai'ons ^ or by 
 
 personal dislike of a too powerful subject. In June however, at 
 Oxford, he arrested the bishops of Salisbury and Lincoln, and 
 the chancellor with them, and compelled them to surrender 
 their castles. The shortsightedness of this policy was imme- 
 diately apparent ; the whole body of the clergy took umbrage 
 at the injui-y done to the bishops. A council was called at 
 Winchester, in which the strongest remonstrance was made, and 
 Stephen was entreated not to render the breach incurable 
 between the clergy and the royal party. The king as usual 
 made promises which he either could not or would not keep ^. 
 
 Arrival of Immediately afterwards the empress landed ; and war broke out 
 the empress. 
 
 again. At the end of the year the bishop of Salisbury died ; 
 
 the bishoj) of Ely was banished ; and the bishop of Wincliester, 
 
 as soon as Stephen fell into difficulties, declared himself on the 
 
 side of the empress, and procured her election to the throned 
 
 The arrest of Bishop Roger was pei'haps the most important 
 
 constitutional event that had taken place since the Conquest ; 
 
 Civil war. the whole administration of the country ceased to work, and the 
 
 whole power of the clergj- was arrayed in opposition to the king. 
 
 It was also the signal for the civil war, which lasted with more 
 
 or less activity fur fourteen years. 
 
 ' William of Malniesbury (Hist. Nov. ii. § 19) mentions the jealousy of 
 the harons ; Ordericus (xiii. 40) the susi)icions of the bishop's fidelity. The 
 count of Meulan is described in the Gesta Stephani, p. 47, as the chief 
 accuser. 
 
 ^ William of Malmesbury (Hist. Nov. ii. § 28) says, ' Malorum prae- 
 ventus cotisilio, nullani bonarum proniissionum exhibuit efficaciam.' Henry 
 of Huntingdon, 'Rex coiisilio pravorum tot et tantorum tarn verendain 
 prostemationem despiciens, nihil eos impetrare pennisit.' fol. 223. The 
 Gesta Stephani, p. 5 1 , record a penance done by the king for his attack on 
 the bishops. 
 
 ^ The arrest of the bishops took place June 24, 11 39; the council at 
 Winchester August 29 to Sept. i. Earl Robert landed Sept. 30; and 
 the empress with him. Stephen sent the bisliop of Winchester and Count 
 Mall ran of Meulan to escort her. J'isliop Roger died Dec. 11. The bishop 
 of Ely was displaced from his see at the beginning of 1140, as soon prob- 
 ably as the king knew of Bishop Roger's death. Hen. Hunt. fol. 223. The 
 bishop of Winchester, after in vain attem|)ting to mediate, took the em])ress's 
 side iia soon as Stephen had fMlleti into her luind'i, after the battle of Lincoln 
 in 1 141. Ord. Vit. xiii. 43. He is rejjrcsented in tlie Gesta Ste])]iani, p. 57, 
 as conniving at the empress's desigtis from the moment of her landing. 
 The election of the empress as 'domina Anglian' took place April 8, 1141.
 
 X.] Anarch/. 327 
 
 115. During this time the king was alternately a prisoner Feudal 
 
 1 1 1 1 i '1 1 . • aimrcliy 
 
 and a conqueror, but was never able to restore the adminis- during the 
 trative machinery ; the empress had her turns of good and evil 
 fortune, but was never able to make good her title to the crown. 
 The barons were in earnest only for their own interests ; most 
 of them caring little for either candidate ; fighting on each side 
 and purchasing new titles or privileges from both by momentary 
 support ; supplies were raised from the unfortunate people 
 and clergy. The bishops protested and mediated, but found 
 themselves powerless from the fact that there was no collective 
 interest upon which they could work. The result was that 
 feudal anaixhy which had sometimes prevailed abroad, but 
 never before in England. Stephen held his court at London 
 at Whitsuntide, a.d. 1140, but only one bishop, and he a 
 foreigner, attended \ Henceforth not even the appearance of 
 ancient state was maintained ; the solemn courts and corona- 
 tion days were given up ; the treasure was all spent ; the 
 king debased the coinage " ; there was no peace in the realm, 
 ' It is written,' says William of Newburgh ', ' of one period Miseries of 
 m the history 01 the ancient people, " In those days there 
 was no king in Israel, but every one did that which was 
 right in his own eyes." But it was worse in England in King 
 Stephen's days. For because then the king was powerless, 
 and the law weak by reason of the king's powerlessness, some 
 indeed did what was right in their own eyes, but many did 
 what by natural reason they knew to be wrong, all the more 
 readily, now that the fear of the law and of the king was taken 
 away. At first it seemed that the realm was rent in two, some 
 inclining to the king, some to the empress. Not that either 
 king or empress exercised any real control over their party, but 
 that every one for the time devoted himself to the pursuit of 
 war. Neither of them could exert command or enforce disci- 
 pline ; both of them allowed to their supporters every sort of 
 licence for fear of losing them. The parties fought for a long 
 
 ' The bishop of Seez. Will. Mahnesb. Hist. Nov. ii. § 37. The royal 
 pomp had already come to an end ; ' Ubi autem ad Natale, vel ad Pascha 
 fuerit, dicere nou attinet.' Hen. Hunt. fol. 223. Joh. Salisb. Polycr. vi. iS. 
 
 - Will. Malmesb. Hist. Nov. ii. § 34. ^ Will. Newb. i. 22.
 
 32{ 
 
 Constitutional History. 
 
 [CHAF. 
 
 Continue J 
 anarchy. 
 
 feudal 
 usurpations. 
 
 Tlie new 
 castles. 
 
 The unlaw- 
 ful taxes. 
 
 time with alternate fortune. As time went on, wearied of the 
 uncertainty of their luck, they somewhat relaxed in energy ; but 
 even this made it all the worse for England ; for when the two 
 competitors were tired of strife and willing to rest, the provincial 
 quarrels of the nobles continued to rage. In every province, 
 under the impulse of the jjarty struggle, numbers of castles had 
 sprung up. There were in England as many kings, tyrants 
 rather, as there were lords of castles; each had the power of 
 striking his own coin, and of exercising like a king sovereign 
 jurisdiction over his dependents. And as every one sought for 
 himself such pre-eminence, that some would endure no superior, 
 some not even an equal, they fought amongst themselves with 
 deadly hatred, they spoiled the fairest regions with fire and 
 rapine, and in the country which had been once most fertile 
 they destroyed almost all the provision of bread.' The lameJi- 
 tations of the Peterborough chronicler are as loud and as distinct : 
 'AH became forsworn and broke their allegiance; 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 Avith devils and 
 evil men. Then they took those whom they suspected to have 
 any goods, by night and by day, seizing both men and women, 
 and they put them in jirison for their gold and silver, a}id 
 tortured them with pains unspeakable. . . . Many thousands they 
 exhausted with lumger. . . . And this state of things lasted the 
 nineteen years that Stephen was king, and ever grew worse 
 and worse. They were continually levying an exaction from 
 the towns, which they called tensei-ie, and when the miserable 
 inliabitants had no more to give, then plundered they and 
 burned all the towns, so that thou mightest wxll walk a whole 
 day's journey nor ever shouldest thou find a man seated in a 
 town or its lands tilled '.' John of Salisbury compares England 
 during this reign to Jerusalem when besieged by Titus ^. 
 
 The struggle, unlike most of thcjse civil wars which have 
 
 ' Chron. Sax. A.D. 1137 (ed. GileH). 
 
 '■' Job. Saiiwh. Polycr. vi. 18. C'f. Onl. Vit. xiii. 32, 41; Hen. Hunt, 
 fol. 223 ; GilLfit Foliot, ep. 79, S. T. C. v. 94.
 
 X.] Tergiversation and Neutrality. 329 
 
 ilevastated Enffland, is redeemed by scarcely any examples of Selfish 
 
 ^ . . policy of the 
 
 loyalty or personal heroism. Even the fidelity of Robert of great uobles. 
 Gloucester to the interests of his sister was an after-thought, 
 and resulted in no small degree from his distrust of Stephen. 
 The patriotic resistance offered by the men of Yorkshire to 
 the Scottish invasion was an act of self-defence against here- 
 ditary enemies, rather than a hearty fulfilment of a national 
 duty. Among the great earls there is not one whose course 
 can be certainly affirmed to have been thoroughly consistent. 
 The earl of Chester, although, whenever he prevailed on himself 
 to act, he took part against Stephen, fought rather on his own' 
 account than on Matilda's ; Geoffrey de Maudeville accepted the 
 title of earl of Essex from both parties and pillaged both sides ; 
 the earl of Leicester, a mighty man in Normandy as in England, 
 made his alliances and asserted his neutrality as he pleased. 
 His brother, the count of Meulan, whose advice had led Stephen 
 to attack the bishops, condescended to avail himself of the same 
 policy \ The action of the cleriry is scarcely more justifiable. The clergy 
 Aiming at the jiosition of an arbitrator, Henry ot U inchester tration. 
 found himself arguing on each side alternately instead of judging : 
 and his position was such as to prevent Archbishop Theobald, 
 who seems to have held consistently, though not energetically, 
 to the empress, from exercising any authority over his brethren. 
 The decided success of one or other of the competitors for the 
 crown might have justified the clergy in cither adhesion or 
 resistance ; but this was wanting ^ ; no one cared enough for 
 either Stephen or Matilda to declare the indefeasible right of 
 either crowned king or legitimate succession. The citizens of Attitude of 
 London, although from inclination they probably would have 
 •supported Stephen, were obliged to receive the empress and 
 offer for a short time a politic submission ^. 
 
 The difficulties of the case seemed to admit of no decision 
 save that of military success ; and this neither party was strong- 
 enough to achieve. Stephen, by destroying the government 
 
 ' Ord. Vit. xii. 44. 
 ^ Gesta Stephani, pp. 98, 99. 
 
 3 W. Malmesb. Hist. Nov. iii. § 28; Gesta Stephani, pp. 76, 77; Hen. 
 Hunt. fol. 225.
 
 \3° 
 
 Constitutional Kistory. 
 
 [chap. 
 
 Weakness of 
 both com- 
 petitors. 
 
 Matilda 
 elected 
 sovereign 
 April 8,~ 
 
 Incidental 
 importance 
 of the 
 period. 
 
 The storm 
 subsides. 
 
 machinery, had deprived himself of the power of raising a na- 
 tional force ; and the mercenaries whom his heroic wife collected 
 on the continent alienated the people whom it was his policy to 
 conciliate. The party of the empress, on the other hand, was 
 mainly supported by the counties in which the personal in- 
 fluence of her brother was strong, and by the adventurers whom 
 she could win to her side by promises. In vain did she go 
 through the process of election as lady of England, hold her 
 courts, and issue her charters in royal form : she had not 
 learned wisdom or conciliation, and threw away her opportu- 
 nities as lavishly as did her rival. 
 
 This wearisome story of tergiversation and selfish intrigues, 
 although it scarcely concerns constitutional history directly, has 
 a most important bearing indirectly upon it, as showing the 
 evils from which the nation escaped. It was the period at 
 which for once the feudal principle got its own way in Eng- 
 land ; it proved the wisdom of the Conqueror and his sons in 
 repressing that principle, and it forced on the nation and its 
 rulers those reforms by which in the succeeding reign the re- 
 currence of such a result was made impossible. 
 
 The storm of party warfare, as William of Newburgh stated, 
 subsided gradually. The changes in the popedom put an end 
 to the legation of Bishop Henry ^ ; the death of Earl Robert re- 
 moved the main stay of the strength of the empress^, and the 
 second generation of combatants came into the first ranks with 
 somewhat freer hands. The exhaustion of both sides gave a 
 breathing time, although it was incompetent to restore the 
 national strength or unity. The clergy recovered their influence 
 first, and compelled the king to guarantee as far as he could 
 their personal safety : a scries of eccles^iastical disputes followed, 
 
 * The lei,':ition of Henry of W^inchester was granted by Innocent II, 
 who tliud in i 14.V t'ulustiiic II, wlio succccdud him, was liostile to Ste- 
 phen, and Lucius II, who followed in 1 144, although friendly to the bisho[>, 
 did not renew his cornniission. Kugetiiiis iJi, who acted under the advice 
 of S. Heniard and was generally oj)ijosed to Stephen, gave the legation to 
 Archhisiiojj Tlnohald in or before ihe year 1150. 
 
 ■^ Karl Uoiiert died in 1147; Ann. Tlicokesb: Miles of Hereford at 
 Cliristnias, 1143; J. Hexham: Geodrcy de Mandeville in 1144; H. Hunt, 
 fol. 224.
 
 X.] Suhsidence of the Storm. 331 
 
 which diverted the atteution of the bishops from general politics, Close of the 
 
 . struggle. 
 
 and threw the king and his brother again more heartily to- 
 gether ^ In A.D. 1 147 the j)reaching of the Crusade withdrew 
 from England many of the adventurous siiirits who had been 
 disciplined for rapine by the late events^. In a.d. 1149 Henry Rise of 
 of Anjou, the son of the empress, to whom in his grandfather's 
 time the oath of fealty had been taken in England and in Nor- 
 mandy, was knighted by the king of Scots ^, and a gathering of 
 the barons of Western England, in which the supporters of the 
 empress were chiefly found, threatened a renewal of hostilities. 
 But several years elapsed before Henry saw his opportunity. 
 Having by his father's death gained a firm standing-ground in 
 France, he added, by his politic marriage, the county of Poictou 
 and the duchy of Guienne to Anjou and Normandy*. An at- 
 tempt made by Stephen, with the aid of Lewis VII, to seize the 
 latter territor}-, was the first note of the renewed struggle. In The bisho|)s 
 A.D. 1152° Stephen proposed to the assembled bishops that his accept 
 son Eustace should be associated with him in the kingdom. The king. 
 prelates, under the influence of Theobald, refused, and suffered 
 forfeiture, which however, with his usual ii'resolution, Stephen 
 soon after recalled. In the following year Henry came to Eug- Henry takes 
 land and raised a native army'' ; and the horrors of active warfare mand 
 were repeated : not however on so large a scale as before, for 
 Stephen was conscious of his weakness, and Henry was now, as 
 ever, economical of human life. A decisive l)attle accordingly 
 was avoided ; and when on one occasion the two rivals stood face 
 to face, the great nobles intervened and compelled them to make 
 a truce. Henry of Huntingdon, in describing the attitude of 
 
 ' Hen. Hunt. fol. 225. 
 
 ' See R. de Monte (Bouquet, xiii. 291) ; Osbern, De expugnatione 
 Lyxbonensi, in the Memorials of Richard I, vol. i. pp. cxliv. sq. 
 
 ' Hen. Hunt. fol. 226; J. Hexham (ed. Raine), p. 159. 
 
 ■* Geoffrey of Anjou gave up Normandy to Henry, and Lewis received 
 his homage for it in the sununer of 1151 ; Geoffi-ey died soon after. The 
 divorce of Lewis and Eleanor took place in March 1152, and the marriage 
 of Henry in May following. R. de Monte (Bouquet, xiii. 292). 
 
 ^ Hen. Hunt, fol. 226; Gervase, c. 1371. 
 
 " He crossed over to England within the octave of the Epiphany, 1153. 
 R. de Monte. ' Ne tamen hoc [his success against Stephen at t'rowmarsh] 
 alienigenae ascribant viribus suis, nostro praecipue milite nitebatur.' J oh. 
 Salisb. Poly or. vi. 18.
 
 33^ 
 
 Constitutional History. 
 
 [chap. 
 
 the baronage on tliis occasion, shows how clearly he understood 
 Meiliation of the real objects of that body. ' Then arose the barons, or rather 
 the betrayers, of England, treating of concord, although they 
 loved nothing better than discoi'd : but they would not join 
 battle, for they desired to exalt neither of the two, lest if the 
 one were overcome, the other should be free to govern them : 
 they knew that so long as one was in awe of the other he could 
 exercise no royal authority upon them ^.' The death however 
 of Eustace reduced Stephen's stake in the struggle ^. The arch- 
 bishop and bishop Henry, moved at last by the distress of the 
 country, and strengthened by the support of the pope, made 
 a resolute effort for conciliation, and after some preliminary 
 meetings a peace was made at Wallingford and completed at 
 Westminster^, in which the national claims for good govern- 
 ment were strongly insisted upon, and an elaborate plan of 
 reform was drawn up. The result was stated in the form of 
 a treaty to settle the succession. Each of the parties had some- 
 thing to surrender and each something to secure. Henry gave 
 up the present possession of the throne in consideration of the 
 right of succession ; Stephen, who had other children besides 
 Eustace, gave up their title to the crown to secure to them the 
 continental estates which he had possessed before his unlucky 
 promotion. He adopted Henry as his heir of the kingdom of 
 England, and. Henry did homage and swore fealty: and the 
 nobles on both sides followed, doing homage and swearing 
 fealty to both princes. The rights of Stoplien's son William 
 were guaranteed, and a largo augmentation of property promised 
 
 Peace of 
 Wallitifrford 
 iind West- 
 niinster. 
 
 Succession 
 secured to 
 Henry. 
 
 ' H. Hunt. fol. 227 ; Gervase, 1373. 
 
 * Eustace died in August, 1153. Gervase, c. 1374; Ti de Monte. 
 
 * No<,'()ti;itiotis began at Wallingford before the death of Enst.ace 
 (Hen. Hunt. fol. 227, Gervase, 1374), in consequence of the attitude of the 
 barons ; It. de Monte gives Nov. 6 as the date of the agrccuient ; towards 
 the end of November the king and Henry met at Winchester ; Steplien 
 adopted Henry as his son, and both proceeded to London, whore the 
 Westminster treaty was proinulgatiid, before Christmas. On the 13th of 
 January, 11 54, Henry, at Oxford, received the fealty of the barons: there 
 was a conference at Dunstable S()t)n after on the question of destroying 
 the castles. Tiience they went into Kent, where Henry, discovering a plot 
 against his life, loft Stephen, and returneil by way of Lond(ni to Normandy, 
 during Lent. Hen. Hunt. fol. 228 ; Gervase, cc. 1373-1375.
 
 X.] Project of Reform. 333 
 
 him : all the kinsmen of the roj-al family and the clergy were 
 
 also bound to the agreement. Two significant clauses complete 
 
 the act. ' In the business of the kingdom,' the king says, ' I will 
 
 work by the counsel of the duke ; but in the whole realm of 
 
 England, as well in the duke's part as my own, I will exercise 
 
 royal justice^.' 
 
 116. The scheme of reform, which was drawn up at Walling- The scheme 
 
 '. '^ 1 of reform. 
 
 ford^, has not been preserved in the form of a document, but 
 
 may be extracted from the somewhat rhetorical accounts of 
 the contemporary historians. The statement made by Roger 
 Hoveden^, that Henry, in order to enforce the necessary 
 measures, undertook the office of justiciar, is perhaps an ex- 
 aggeration, although he distinctly claimed that they should be 
 carried out as a part of the pacification * : and, when he him- 
 self became king, he seems to have looked on them as furnishing 
 him with a programme of the restoration of order. They are 
 stated as follows, (i) The royal rights, which had everywhere 
 been usurped by the barons, are to be resumed by the king. 
 (2) The estates which had been seized by intruders are to re- 
 turn to the lawful owners who had enjoyed them in King Henry's 
 days. (3) The adulterine or unlicenced castles ''j by whom- 
 
 * Foedera, i. i8: from the Red Book of the Exchequer. See also Will. 
 Newb. lib. i. cap. ^o. 
 
 * Matt. Paris (ed. Wats), p. 86. 
 
 ' 'Rex vero constituit ducem jiistitiarium Angliae sub ipso et omnia 
 regni negotia per eum terminahantur.' Hoveden, i. 212. This is one of 
 the additions made by Hoveden to the earlier materials which he was 
 u.sing ; it has no contemporaneous authority, and is extremely unlikely to 
 be true. Even if it were true, Henry stayed in England too short a time 
 after the pacification to exercise any direct authority. John of Hexham 
 however says that it was one part of the agreement ' quod Henricus dux 
 negotia regni disponeret' ; ed. Raine, p. 170. 
 
 * Hen. Hunt. fol. 228. This was at Dunstable early in 1154: 'Displi- 
 cebat enim duci, (juod castella post mortem Henrici regis in pessimos usus 
 circumquaque constructa non diruerentur, sicut confinnatum et .sancitiim 
 fuerat inter eos in concordiae firmissimo foedere. . . . Quibusdam tamen 
 suorum castellis regis dementia vel versutia parcens, pacti coinmunionem 
 debilitare videbatur. Dux igitur super hoc regem angarians, repulsam 
 quidem passus est.' Ibid. 
 
 * Robert de Monte gives 375 as the number; Bouquet, xiii. 296. On 
 this point John of Hexham furnislies further contemporary evidence : 
 'Continue e\iit edictum ab eis per omnes provincias violentias compriiiii, 
 direptiones interdici, milites conductitios et sagittarios exterarum nationuta 
 a regno ejici, munitionesque quas quisque in sua possessione post mortem
 
 334 Consiihiiional History. [chap. 
 
 The scheme soever erected dui'ing tlie present reign, to the number of eleven 
 
 of rct'oriu 
 
 arranged hundred and fifteen are to be destroyed. (4) The king is to 
 Stephen and re-stock the desolate country, employ the husbandmen, and as far 
 "^" as possible restore agriculture and replace the flocks and herds 
 in the impoverished pastures. (5) The clergy are to have their 
 peace, and not to be unduly taxed. (6) The jurisdiction of the 
 sheriffs is to be revived, and men are to be placed in the office 
 who will not make it a means of gratifying private friendship oi- 
 hatred, but will exercise due severity and will give every man 
 his own : thieves and robbers are to be hanged. (7) The armed 
 forces are to be disbanded and provided for : ' the knights are 
 to turn their swords into ploughshares and their spears into 
 pruning-hooks ;' the Flemings are to be relegated to their work- 
 shops, there to labour for their lords, instead of exacting labour 
 • as lords from the English. The general security is to be main- 
 tained, commerce to be encom'aged, and a uniform coinage to be 
 struck ^ This very compi'ehensive project tlu'ows great light on 
 
 Heni-ici regis construserat dirui. Justitia ergo et pax Tibique in regno 
 revocata est.' Ed. Raine, p. 171. 
 
 ' The following is the statement of Ralph de Diceto, cc. 527, 528 : 
 ' Ducem siquidem Normamiorum rex in filium arrogavit ; ei et in eum jus 
 suuiu transtulit et potestatem, sibi quoad vixerit regiae dignitatis solam 
 imagineni reservavit. Et si propheticum illud attenderis, jam se induit 
 genitore, jam ducem arrogavit in filium. In pai-ticipem re^ni, et post- 
 moduni successorem, universi ducem recipient. In rege ducem, in duce 
 regem sinsuH venerabuntur. Et ut regem Stephanum nunc regem intel- 
 ligas, antiqua regni privilegia restaurare proponit. Regalia passim a pro- 
 ceribus usurpata recipiet, nmnitiones suis fundatae temporibus diruentur, 
 quarum numerus usque ad undecies centum quindecim excrevit. Ut autem 
 ad minora recurras, praediis assignabit colonos, insularios aedificiis, nemo- 
 riljus saltuarios, feris ditabit indagines, ovibus decorabit montana, pascua 
 re])lebit armentis. Clerus nunc dcmum domiiuibitur, pacis tranquillitatem 
 indicet, muneribus sordidis non gravabitur, ab extraordinariis vacationem 
 habebit. Defensivae locorum, s«u vicecomites, locis statuentur statutis ; 
 lion in votum exercendae cnpiditatis abibunt, non quenquani ex odio per- 
 sequentur. Non gratificalnintur amicis, non indulgentiis crimina subleva- 
 bunt, suum cuique reservabunt ex iutegro. Motu poen:irum nonnullcs 
 Efficient, praemiorum exhortatioiic pl\irimi)s cxcitabunt : fures terrebuntur 
 in furca ; pra^^dones sententia capitali plectcntur; milites cali'.'ati gladios 
 Kuos in usum vomeris ligonistpie coiivei'tnnt. A castris ad aratra, a tento- 
 riis ad eigastoria Fl.'indrcnsium plurimi revocabuntur, ct (juas nostratibus 
 operas indixerunt, dominis suis ex necessitate persolvent. Quid miiltis ? 
 Ab excubiis fatigati a commuiii laetitia respirabunt : innocens et quieta 
 rusticitas otio relevabitur ; negotiatorea commorciorum vicissitude locuple- 
 tabit. Forma jml)li(;a percussa cadem in regno Celebris erit ubique moneta.' 
 The prophecy of Merlin referred to is ' Nocebit possidenti ex impiis pietas,
 
 X.] Project of Beform. 335 
 
 the past as well as on the future, aud it is exti'emely unfortunate 
 that the exact means hy which it was to be carried into execution 
 are not recorded. It seems to have been too much for Stephen, Stephen 
 whose spirit was now broken ; and Henry, in a meeting at Dun- reforms, 
 stable before he left England, had to urge the king strongly to 
 do his duty. The last year of the reign was accordingly devoted 
 to the undoing of the work that seventeen years of war and 
 anarchy had done. Stejihen had very incompletely performed He dies, 
 his task when he died in October 1154, leaving the throne, for 
 the fii"st time since the Conquest without a competitor, to the 
 great sovereign who succeeded him. 
 
 The reign of Stephen is one of the most important in our constitu- 
 whole history, as exemplifying the working of causes aud prin- portance'of 
 ciples which had no other opportunity of exliibiting their real reign!^" *" 
 tendencies. It was a period of unprecedented general misery, 
 and a most potent lesson for later times and foreign countries. 
 The moral and social results of it are indeed more distinctly 
 traceable under Henry II, but there can be little doubt that 
 even before the king's death it had had the effect of creating 
 a feeling of national unity among Normans and English, as well 
 as an intense longing for peace. The comparative rarity of 
 notices touching the social life of the period, in the historical 
 memorials of the reign, render it difficult to form any minute 
 conclusions on the material growth of the nation. But that it 
 was a period of great social change there can be no question, 
 when we compare the reign that followed it with the three 
 reigns that preceded it. Some part of the result is of couise 
 owing to the equal government and lasting peace of the reign of 
 Henry I : but it would be to disregard the consistent lessons 
 of all history, if we were to suppose that the terrible discipline 
 of anarchy, prolonged for nearly twenty years, during which, 
 
 donee sese genitore induerit.' Geoff. Mon. vii. 3. The terms of the agree- 
 ment are thus given by Robert de Monte : 'Quod dux post mortem regis, 
 si euiu superviveret, pacifice et absque contradictioiie regnum liaberet ; 
 juratum est etiani quod possessiones quae direptae erant ab invasoribus ad 
 antiquos et legitimes possessores revocarentur, quorum fuerant tempore 
 Henrici optimi regis. De castellis etiam quae post mortem praedicti regis 
 facta fuerant, ut everterentur, quorum multitudo ad CCCLXXV. summam 
 excreverat.' Bouquet, xiii. 296.
 
 33^ Canstitutional History. 
 
 Advance of tte pressure of the legal government being removed, opportunity 
 was given for every sort of development and combination, had 
 no effect in opening the eyes of men in general to the sources of 
 their strength and the causes of their weakness. Although the 
 annalists tell mainly of the feudal usurpations and oppressions, 
 there are not wanting indications that in the town populations, 
 where feudal rule was exercised under more restriction and 
 with less impunity, an impoiiant advance towards liberty re- 
 sulted from the abeyance of government ; or at least that the 
 municipal unity was able so far to hold its own as to prevent 
 disintegration in one of the rising elements of society. But 
 this is an inference from later events rather than a distinctly 
 recorded fact of the reign. 
 
 ^•<^??^°f ^'^^ The Norman period closes with the accession of Henry II, 
 whose statesmanlike activity, whose power of combining and 
 adapting that which was useful in the old systems of govern- 
 ment with that which was desirable and necessary under the 
 new, gives to the policy which he initiated in England almost 
 the character of a new creation.
 
 CHAPTER XL 
 
 ADMINISTEATIOX DURING THE NOEMAN PERIOD. 
 
 117. New character of the constitution. — 118. The king. — 119. The royal 
 household.— 120. The justiciar — 121. The chancellor.— 122. The great 
 officers. — 123. The national council. — 124. Earls, barons, and knights. 
 — 125. Legislative, judicial, and other business of the courts. — 126. The 
 Exchequer.— 127. The Curia Regis.— 128. The popular courts.— 129. The 
 Manor and Honour. — 130. Royal demesne and forests. — 131. The 
 boroughs. — 132. The labourer. — 133. The army. — 134. Innovation or 
 development. 
 
 117. The reigns of the Conqueror and his three successors, Newcha- 
 1-1 1 1 • • 1 • ■ 1 • 1 1 1 1 • 1 r^icter of the 
 
 besides the political interest which they possess as the period constitution 
 
 of the trial and failure of feudality, have another distinct mark times. 
 in English history, partly it is true resulting from the former. 
 The Norman period, as we may call it, was the epoch of the 
 growth of a new administrative system, having the source of its 
 strength in the royal power. The constitution of this system 
 distinguishes it from that of earlier and later times. In the 
 earlier history, constitutional life seems to show itself fii'st in 
 the lower ranges of society, and to rise by slow degrees and 
 unequal impulses towards the higher ; in the later history, the 
 equilibrium of the governmental system is maintained by 
 regulating the balance between popular liberty and admini- 
 strative pressure. The foundation of the administrative system 
 marks the period that intervenes : and this foundation was the 
 work of these four reigns. In attempting a sketch of the 
 machinery which was created or developed for making good 
 the hold of the king upon the nation, we must adopt a different 
 arrangement from that under which the Anglo-Saxon polity 
 was examined in a former chapter ; and beginning with the 
 
 z
 
 ^^S Constitutional Ridory. [chap. 
 
 Plan of the person and office of the king, descend gradually to the con- 
 sideration of the powers of the individual subject and the lowest 
 form of collective organisation. For, under the new system, 
 it is from the person, the household, the court, and the council, 
 of the king that all constitutional power radiates ; and in very 
 many respects both the machinery and the terminology of 
 government bear, down to the present day, marks of their 
 origin in the domestic service of the palace. 
 Character of Hg, The Norman idea of royalty was very comprehen- 
 t)ie Norman sive ; it practically combined all the powers of the national 
 sovereignty, as they had been exercised by Edgar and Canute, 
 with those of the feudal theory of monarchy, which was ex- 
 emplified at the time in France and the Empire ; and it dis- 
 carded the limitations which had been placed on either system, 
 in England by the constitutional action of the witau, and on 
 the Continent by the usurpations or extorted immunities of the 
 feudatories. The king is accordingly both the chosen head of 
 the nation and the lord paramount of the whole of the land : he 
 is the source of justice and the ultimate resource in appeal for 
 such equity as he is pleased to dispense ; the supreme judge 
 of his own necessities and of the method to be taken to supply 
 them. He is in fact despotic, for there is no force that can 
 constitutionally control him, or force him to observe the con- 
 ditions to which, for his own security, or for the regular 
 despatch of business, he may have been pleased to pledge 
 
 Important liimself. If the descendants of the Conqueror had succeeded 
 
 result of the „ . , . 
 
 irregularity one another by the ordniary rule of inheritance, there can be 
 
 in succes- i i i ' i i i- 
 
 sion. no doubt i)ut that the lorins as well as the reality of ancient 
 
 liberty would have perished. Owing to the necessity however 
 under wliich eacli of them lay, of making for himself a title in 
 default of hereditary riglit, the ancient framework was not set 
 aside ; and perfunctory as to a great extent the forms of election 
 and coronation were, they did not lose such real importance 
 aa they had possessed eailier, l)ut furnished an important ac- 
 knowledgment of the rights of the nation, as well as a recognition 
 of the duties of tlie king. 
 
 The crown then continues to be elective : the form of corona-
 
 XI.] The Norman King. 339 
 
 tion is duly performed : the oath of good government is taken, Election and 
 and the promises of the oath are exemplified in the form of 
 charters. Of these charters only those of Henry I and Steplicn 
 are preserved ; the document called the charter of William the 
 Conqueror being a fabrication of the thirteenth or fourteenth 
 century, composed of several fragments of his legislation thrown 
 together in the traditional form. The recognition of the king 
 by the people was effected by the formal acceptance at the coro- 
 nation of the person wljom the national council had elected, by 
 the acts of homage and fealty performed by the tenants-in-chief, 
 and by the general oath of allegiance imposed upon the whole 
 people, and taken by every freeman once at least in his life. 
 
 The theory that by a reversal of these pi-ocesscs, that by re- llight of 
 . /• 1 1 1 1 • p 1 . /. 11 • deposition. 
 
 nunciation of homage, by absolution from the oath of allegiance, 
 and by a declaration that the rights conferred by consecration 
 had been forfeited, the person so chosen could be set aside, Avas, 
 owing to the existence of competition for the throne, kept promi- 
 nently before the eyes of the people ; and in the speech of Henry 
 of Winchester, proposing the election of the Empress Matilda, it 
 is explicitly stated \ The captivity of Stephen is alleged as a 
 sentence of the judgment of God, not less convincing than the legal 
 
 result of trial by battle : on this, as the summarv decision of the Argument 
 
 •' . fertile 
 
 Almighty, the vacancy of the throne is made to depend, but the election of 
 
 neglect of the solemn promises of good government is forcibly 
 dwelt upon as the justification of that decision. The oath of 
 allegiance taken to Stephen is not mentioned, because the 
 previous oath taken to Matilda in her father's reign is specially 
 insisted on. This declaration, although like the charters them- 
 selves it was meant to serve a temporary purpose, stands 
 on record as an important statement of principle : it was 
 met by Stephen's friends not by counter allegations, but by 
 intercessions : neither his misconduct nor the legality of his 
 punishment is formally denied. Yet against this significant 
 circumstance must be set the fact that no attempt was made 
 to crown the empress ; the legate himself simply proposes that 
 she should be elected lady of England and Normandy. It is 
 ' Will. Malmesb. Hist. Nov. iii. § 44. 
 Z 2
 
 340 
 
 Constitutional History. 
 
 [chap. 
 
 Matilda 
 never 
 crowned 
 queen. 
 
 Right of 
 inheritance. 
 
 Set aside by 
 the Con- 
 
 Modsiircs 
 tiikoii l).v 
 Henry I 
 to regulate 
 the succes- 
 sioit. 
 
 just possible that the consecration which she had once received 
 as empress ^ might be regarded as superseding the necessity of 
 a new ceremony of the kind ; but it is far more likely that, so 
 long as Stephen was alive and not formally degraded, the right 
 conferred on him by coronation was regarded as so far inde- 
 feasible that no one else could be allowed to share it. 
 
 But whilst the elective principle was maintained in its fulness 
 where it was necessary or possible to maintain it, it is quite 
 certain that the right of inheritance, and inheritance by primo- 
 geniture, Avas recognised as co-ordinate. The dying orders of 
 the Conqueror were so worded as neither to deny the elective 
 right of the English nation, nor to annul the inchoate claims of 
 his eldest son, even when he intended to evade both^ The 
 arrangement made by William Rufus and Duke Robert at Caen 
 in A.D. 1 09 1, that each should be heir to the other in case of 
 his dying childless ^, proves that something more was involved 
 than the ancient principle of the eligibility of all the members 
 of the royal house ; that a power of disposing of the crown 
 was supposed to reside in its wearer, and that the inheritance 
 of England was not materially distinguished from that of 
 Normandy. True, the recognition of the duke of Normandy 
 by his barons was in a manner analogous to that of the king 
 of England by his witan ; but in Normandy the right of here- 
 ditary succession was establis^hed by the precedents of many 
 generations^. The measures taken by Henry I for securing the 
 ci"own to his own children, whilst they prove the acceptance 
 of the hereditary principle, ])r()ve also the importance of 
 strejigihening it by tlie recognition of the elective theory. He 
 did not go so far as his contemporaries in France and the 
 
 ' Flor. Wig. A.D. 1 114. 
 
 " ' Neiiiinein Anglicircgni constitno herodem, sed aeterno Conditori Cujus 
 sum et in (Jujns uianu sunt omnia illiid commendo : non enim tantum 
 deouK bf.Tcditarii) jure po.SHedi.' Ord. Vit. vii. 15. 
 
 ' Flor. Wig. A.D. 1091. 
 
 * Williain of JuniirguH particularly incntionsi the process by which the 
 Norinaii did<es befon; their death procured the acceptance of their suc- 
 ceBHor.-j : lib. ii. c. 22 ; iv. 20. ' Mcum est niihi ilium subrogare, ve.strum 
 est illi fidem servare,' are the words addressed by Rollo to his lords on his 
 death-bed.
 
 XI.] Boi/al Succession. 341 
 
 Empire, and actually obtain the formal election and coronation 
 of his heir; but in a.d. i 116, in a gi'eat council at Salisbury, 
 homage was done and oaths of fealty taken to his son William' ; 
 in A.D. 1 126, at London, the whole council of the kingdom Oaths three 
 
 ..,,. IT •! 11-1 times taken 
 
 swore tiiat it the king should die witliout a male heir the to the 
 empress should be maintained in possession of the realm of 
 England'^; a similar oath, in A.D. 1131, was taken at North- 
 hampton ^ ; and after the birth of Henry II, which occurred in 
 A.D. 1 133, we are expressly told by Roger of Hoveden that 
 the prelates, earls, and barons of the whole of the king's 
 dominions swore fealty to the empress and her little son whom 
 he appointed to be king after him *. In like manner, in a.d. 
 1 152, Stephen demanded tlie recognition of Eustace as his heir, 
 and even went so far, no doubt under pi-essure applied by 
 Lewis VII, as to insist that he should be anointed and crowned ^ 
 He was indeed defeated, as we have seen, by the resolution of Stephen fails 
 
 to secure 
 
 the bishops, but Constance, the wife of Eustace, is said in after the crown 
 
 , . , „ f. 1 1 • '*"" Kiistace. 
 
 days to have borne the title of queen " ; and the importance 
 which was attached to the adoption of Henry II by Stephen, 
 under the treaty of Wallingford, shows that the rule commonly 
 adopted in the descent of fiefs was becoming the accepted theory 
 of succession in the case of the crown also. 
 
 The importance attaching to the position of the queen is not The queen. 
 a novelty of the Norman period ; the history of Eadburga, the 
 treacherous wife of Brihtric ~', had given it a peculiar interest 
 
 * Flor. Wig. A.D. Ill 6. 
 
 * Cent. Flor. Wig. a.d. 1126; Will. Malmesb. Hist. Nov. i. § 2. 
 
 ^ Will. Malmesb. Hist. Nov. i. § 6 : ' Priscam fidem apud eos qui 
 dederant novavit, ah his qui non dederant accepit.' 
 
 * Hoveden, i. 187 : ' Fecit archiepiscopos et comites et barones totius 
 suae dominationis jurare fidelitates Matildi imperatrici filiae suae, et 
 Henrico filio ejus adhuc minimo, et constituit eum rej;em post se.' 
 
 * Hen. Hunt. fol. 227 ; Gerv. cc. 1373-1,^75- See above, p. 331. 
 
 * Art de Verifier les Dates, ix. 385. The only evidt'nce that I can find 
 for the statement is contained in two letters, one of the viscount of Beziers, 
 the other of the common council of Toulouse, in which she is so spoken of. 
 Bouquet, xvi. 69, 71. 
 
 ' According to Asser, who cites Alfred as his authority, the West-Saxons, 
 after the misconduct of Eadburga, refused to allow to the king's wife the 
 name or position of queen : and Ethelwulfs second marriage, together 
 •with, the coronation and queenly title of his wife Judith, was one ground 
 of his being set aside by Ethelbald in 856. Asser, M. H. B. 471. How- 
 ever this may liave been in Wessex, Ethelswitha the wife of Burhred was
 
 342 
 
 Constitutional History. 
 
 [chap. 
 
 Coronation 
 of queens. 
 
 Their 
 pi-opertj% 
 fourt, and 
 authority. 
 
 Position of 
 the heir. 
 
 many centuries earlier : and Judith the wife of Ethelwulf had re- 
 ceived a veiy solemn consecration from the archbishop of Rheims. 
 The queens of William the Conqueror, Henry I, and Stephen 
 play a considerable part in the history of their husbands' reigns. 
 The wives of the first two of these kings received special coro- 
 nation apart from their husbands^; they held considerable estates 
 which they administered through their own officers, and which 
 were frequently composed of escheated honours ; they had 
 their own chancellors ^ ; they acted occasionally as regents or 
 guardians of the kingdom in the absence of the king, and with 
 uuthority which, if it did not supersede that of the justiciar, 
 had at least an honoraiy precedence ^ The payment of queen's 
 gold, that is of a mark of gold to the queen out of every hundred 
 marks of silver paid, in the way of fine or other feudal incident, 
 to the king, even if it is not recognisable in Domesday, is 
 probably as old as the reign of Henry I *. The acknowledged 
 importance of her position, the real power and influence with 
 which she was trusted, is in somewhat marked contrast with 
 the treatment of the king's heir. "Whether it was to avoid 
 the jealousy of the barons, or to limit the ambition of the pre- 
 sumptive successor, neither William the Conqueror nor Henry I 
 
 crowned queen of Mercia (C. D.'ccxcix). Eadgifu the wife of Edward 
 the Elder subscribes charters only as mater regis. Elftlirytha the wicked 
 wife of Edgar subscribes charters as queen. Ennna the wife of Ethelied 
 w^as also (jueen, and the rite of crowning the queen appears in the rituals 
 from this time. Possibly some tradition of the old prejudice may have 
 led Lewis VII to insist so strou'jrly on the coronation of his daughter 
 when married to the heir of the English crown. See Robertson, Essays, 
 pp. 166-17 1 ; Freeman, Norm. Conq. i. 565 ; iii. 48 ; iv. 179. 
 
 ' Tlio wife of the Conqueror was crowned by the archbishop of York, 
 at Wliitsuntide 1068. Flor. Wig. The coronation'of Matilda the wife of 
 Henry I, by Anselm, Nov. 11, 1100, and that of Adeiiza his second wife, 
 Jan. 29, 1 1 2 I, by Archbishop Ralph, are also specially noticed. Matilda, Ste- 
 phen's quc^en, was crowned at Canterbury with her husband ; Gerv. c. 1588. 
 
 ' Bernard bisho]) of S. David's was chancellor to Matilda the first wife 
 of Henry I, and Godfrey of Bath to his second. Flor. Wig. a.D. 1115 ; 
 Corit. Flor. Wig. a.d. 1123. 
 
 ^ Matilda tlie wife of Henry I, acting with the 'common counsel' of 
 the nobles in tlie king's ab.sence, sent Archliisliop Ralph to Home in 11 16. 
 Eadmer, ]>. 118; Flor. Wig. a.d. 1116. Charters issued by her are in 
 Ebuhani, p. 3-:4; Mon. Angl. i. 242 ; and Hist. Abend, ii. 98 ; cf. p. 104. 
 Stephen's (jueen negotiated and commanded during his caj)tivity, and so far 
 maintained the party of her husb.-ind that it fell to ])ieces on her death. 
 
 ■* Madox, Exchequer, p. 240; Eyton's Shropshire, xii. 156. It is probably 
 the Gersumiua reginae of Domesday, i. 154, 2j8. See Ellis, lutr. i. 172-175.
 
 XI.] The Household. 343 
 
 seems to have given to his son a separate establishment by way 
 of appanage ^ The daughters also were as a rule dowered 
 with treasure, not with land. The illegitimate sons of Henry I The king's 
 were however largely endowed, one of them receiving an ex- 
 tensive and important earldom - : and the kinsmen of the king 
 in the second degree were favoured in the same way^. But 
 the rebellion of Robert against the Conqueror, and the youth 
 of the etheling William, may perhaps explain more naturally 
 the apparent over-caution of the father in each case. 
 
 119. The great officers of the household form the first circle Great 
 round the throne, and furnish the kino- with the first elements the house- 
 of a ministry of state. There is from the very first some dif- 
 ficulty in drawing the line that separates their duties as servants 
 of the court from their functions as administrators ; a difficulty 
 which is not to be ascribed merely to the deficiency of early 
 records, but appears partly to be the result of a growing policy. 
 It may also have arisen partly from the combination of two 
 or more distinct systems. 
 
 The four indispensable servants of the primitive household The four 
 are enumerated in the Salian law, as the major, inferior, scantlo, sen'ants. 
 and mariscalcus*. The first of these answers to the praefectus 
 or heah-gerefa of the Anglo-Saxons, the second to the dapifer 
 or discthegn ; the scantio to the pincerna or cup-bearer ; the 
 mariscalcus to the horsthegn or strator^. In this early arrange- 
 
 • William the son of Henry T did however issue writs, apparently as his 
 father's representative : two of which are given by Palgrave, Common- 
 wealth, p. clxxi.v ; others are in Madox, Hist. Exch. p. 76, and in Elm- 
 ham's Chronicle, pp. 353, 354. 
 
 ^ Robert earl of Gloucester hafl the earldom confeiTed by his father, 
 but the lordship of Gloucester, on which tlie title was based, was the 
 inheritance of his wife, the daughter of Robert Fitz-Hamon. Reginald 
 earl of Cornwall got his earldom in the struggles of Stephen's reign ; 
 according to the (lesta Stephani, by marriage (pp. 65, 66) ; according 
 to William of Malmesbury, by the gift of his brother the earl of Gloucester ; 
 Hist. Nov. ii. § 34. 
 
 ' Of this Stephen is himself the most important instance. 
 
 * Lex Salica (HeroM's Text), xi. 6. The Capitula Remedii mention the 
 camerarius, buticularius, senescalcus, judex publicus, and conestabulus. 
 The Alemannic law enumerates, ' seniscalcus, mariscalcu.s, cocus, and pistor.' 
 The 'seniscalcus' is said to mean the senior servant. Waitz, D. V. G. ii. 
 401 ; iii. 420. 
 
 ^ The praefectus or praepositus of the king's household, his steward or
 
 344 
 
 Constitutional History. 
 
 [chap. 
 
 Officfrs of 
 the Karo- 
 lingian 
 court. 
 
 In the 
 Empire. 
 
 In Nor- 
 mandy. 
 
 In the pourt 
 of the Nor- 
 man kings. 
 
 ment may be traced the germ of later differences, for the prae- 
 fectus and the strator, the master of the household and the 
 master of the horse, must have forced their way into public 
 duties much earlier than the caterer and the butler. The Karo- 
 lingian court had a slightly different rule : the four chief 
 officers are the marshal, the steward, the butler, and the 
 chamberlain^ ; the major of the old law disappearing, and 
 his functions devolving, as we know from later history, partly 
 on the dapifer, seneschal or steward, and partly on the 
 chamberlain or accountant. The latter distribution of dignity 
 was permanent, and was observed, with some modifications, 
 down to the latest days of the Empire, in the electoral body, 
 where the Count Palatine was high steward, the duke of 
 Saxony marshal, the king of Bohemia cup-bearer, and the 
 margrave of Brandenburg chamberlain. A similar system had 
 been borrowed by the Norman dukes from their titular masters : 
 Normandy had its steward or seneschal, — for whom even 
 the name of comes palatinus ^ is claimed, — its cup-bearer, its 
 constable, and its chamberlain ; and these had become, it would 
 be difficult to say how early, hereditary grand serjeanties. At 
 the time of the Conquest William Fitz-Osbern was, as his father 
 had been, dajnfer and comes j^alatii. The chamberlainship was 
 hereditary in the house of Tankerville ; the lords of Hommet 
 were hereditary constables. The royal household in England 
 reproduced the ducal household of Normandy, and under the 
 same conditions ; for although the exact dates for the foundation 
 
 gerefa, occurs occasionally in Bede : Redfrith is praefecfus to Ec;bert king 
 of Kent (H. E. iv. i); he is apparently the cyninges-gerefa of the laws; 
 Schiniil. Gesetze, p. 599. The discthegn or dapifer is mentioned in the 
 Cod. Dipl. dccxv, dcccviii, &c. Oslac the pincenia of Etiielwulf was also 
 his father-in-law ; and several others who bore the same title are mentioned. 
 Tiie strator or staller was a more important person : Alfred the drntor of 
 Edward the Confessor is mentioned by Flor. Wig. A.D. 1052; and Osgod 
 Clapa the xtallcr, ibid. A.D. 1047. Keinble, Saxons, ii. 108-iri. 
 
 ' G. L. von Maurer, Hofverfassiing, i. 189. The diapensntor of Harold is 
 mentioned by Elor. Wig. a.D. 1040 ; Kemble identities him with the came- 
 rarius or cubicidarius, who occ;isionally aj)pears in the charters ; Saxons, ii. 
 107. Robert the dispcnuator of the Conqueror is mentioned by Ord. Vit. 
 viii. 8, and in Domesday ; Ellis, Intr. i. 478. 
 
 * Stapii'tnn (Rotuli Scaccarii Normritiniae, vol. i. p. xvii) gives an extract 
 from a cartulary of Trinity, IJouen, of A.D. 1068, which speaks of William 
 Fitz-Osbern, 'dapifcri, qui comes erat palatii.'
 
 XT,] The Boi/al Household. 345 
 
 of the offices cannot be given, nor even a satisfactory list of their 
 early holders, it would seem certain that, before the end of the 
 reign of Henry II, the high stewardship had become hereditary 
 in the house of Leicester, the office of constable in the descendants 
 of Miles of Hereford, that of chamberlain in the family of Vere, 
 and the butlership in that of Albini^ But whilst these offices The place of 
 
 . . hereditary 
 
 were becoming hereditary, the duties which had ongmally be- officers 
 
 ^ "^ 111- supplied by 
 
 longed to them were falling into the hands of another class of new officials. 
 
 ministers, whose titles cause a sort of duplication of official 
 
 nomenclature which is somewhat puzzling, and which even to 
 
 the present day occasionally causes confusion^. The justiciar, 
 
 the treasurer, and the marshal take their places besides the 
 
 high steward, the chamberlain, and the constable. Not that the The offices 
 
 history of these offices is in exact conformity : the constable, as ferent 
 
 histories. 
 
 ' It is however to be noticed that each of these names appears to have 
 been given to several persons at once ; there are certainly several dapiferi 
 and pincernae at the !?ame time. These were honorary distinctions pro- 
 bably, altliough they may in some instances have been grand serjeanties. 
 The dignity that emerges ultimately may be the chief of each order; the 
 high steward, the grtai butler, the lord hvjh chamberlain. In later times, 
 when these offices liad long become hereJitary, and substitutes for their 
 holders were required, tliey were instituted with special reference to the 
 household ; the lord steward of the household and the lord chamberlain are 
 still court officials. Something of the same kind niay have taken place in 
 the reign of Henry I, when the ministerial offices were founded. 
 
 ''■ The Liber Niger Scaccarii contains a document of the age of Henry II, 
 called ' Constitutio domus regis de procurationibus,' which gives the daily 
 allowances of the several inmates of the palace : it is difficult to understand, 
 and domestic servants and great officers of state are mingled in amusing 
 disorder. The following are perhaps the most im])ortant particulars for 
 our present purpose : (i) the chancellor has associated with him a Magister 
 Scriptorii ; (2) the dapifer, who hns the same allowance as the chancellor, 
 is mentioned in connexion with a mnrjhter dlspensntor panis, a clericuv 
 cxpensae pan!,'!, and a company of bakers ; (3) the larder has its staff of 
 officials, cooks and kitchen-servants; (4) the buttery, under tlie mngister 
 pincernn, whose allowance is the same as that of the steward and chancellor, 
 has under him a magister iliapcnmtor buteleriae, with several subordinates, 
 and four ' escantiones ; ' (5) the master chamberlain, the treasurer, the 
 constable, and the master marshal have the same allowances as the steward 
 and chancellor; (6) under the master marshal John (the ancestor of the 
 earls marshal of later times) are four marshals, who again have servants 
 of their own. This will account for the numliers of otfict-rs who bear the 
 same names. It exhibits further the retention of the jirimitive names in 
 the now overgrown establishment of the palace. Probably all the heads of 
 departments were important men. Roger the Larderer was made a bishop 
 by Henry I, a fact which does not show that the king bestowed a bishopric 
 on a mere servant, but that a person who was qualified to be a bishop did 
 not scruple to undertake the office of larderer.
 
 34^ Constitutional History. [chap. 
 
 long as he exists at all, retains no small share of his ancient 
 powers; the high steward, on the other hand, sees every one of 
 his really important functions transferred to the justiciar ; the 
 office of marshal becomes hereditary, those of justiciar and 
 treasurer continue to be filled by nomination or even by pur- 
 chase ; and only those offices which escape the dangers of 
 hereditary transmission continue to have a real constitutional 
 importance. 
 
 Growth of 120. The chief minister of the Norman kings is the person 
 
 thejusticiar- ... ,, ..,. .. 
 
 ship. to whom the historians and later constitutional writers give the 
 
 name oi justiciarius, with or without the prefix summus or capi- 
 talis ^. The gi-owth of his functions was gradual, and even the 
 history of the title is obscure ; for it is often bestowed on officers 
 who, although they discharged the functions which at a later 
 period were attached to it, are not so styled by contemporai'ies 
 or in formal documents. The office a2:)pears first as the lieutenancy 
 of the kingdom or vice-royalty exercised during the king's 
 Holders of absence from England. In this capacity William Pitz-Osbern, 
 the steward of Normandy, and Odo of Bayeux, acted during the 
 Conqueror's visit to the Continent in 1067 ; they were left, accord- 
 ing to William of Poictiers, the former to govern the north of 
 England, and the latter to hold rule in Kent, in the king's stead, 
 ' vice sua ; ' Florence of Worcester describes them as ' custodes 
 Angliac,' and Ordcricus Vitalis gives to their office the name of 
 ' pracfectura ^.' It would seem most probable that William Fitz- 
 Osbern, at least, was left in his character of steward, and that 
 the Norman seneschalship was thus the origin of the English 
 justiciarship. In 1074, Avhcn the king was again in Normandy, 
 William of Warenne and Richard of Bienfaite were left in charge 
 of England ; to these Ordcricus ^, who lived a generation later, 
 gives the title ' praccipui Angliae justitiarii ; ' but there is no 
 reason to suppose that the name as yet was definitely attached 
 to a particular post. On another occasion the office seems to 
 
 ' It in oljHervahlo tli;it in tlie oidinanco referred to iti the last note thei'e 
 is no provision for tlie jnstici.ar. He was not iu that eapacity a member of 
 the housi.liohl, altlioiigh the cliancellor was. 
 
 '' Will. riot. ed. MiisereH, p. 151 ; Ord. Vit. iv. i ; Flor. Wig. A.D. 1067. 
 
 ^ Ord. Vit. iv. 14. 
 
 the otfice.
 
 XI.] The Justiciar. 347 
 
 have been committed to Lanfranc \ Gosfrid of Coutauces, and 
 
 Robert of Mortain, In all these cases, although the function Question us 
 
 ,',... to the title 
 
 discharged was one which belonged to the later justiciar, and borne. 
 
 they are accordingly stages in the development of that office, it 
 would seem safer to give to the persons employed the more 
 general name of lieutenant or vicegerent. There is no evidence 
 to show that they held any such position during the king's 
 presence in England, or that they exercised even in his absence 
 supreme judicial functions to the exclusion of other great 
 officers of the court. In the placitum held at Pennenden in 
 1075 Gosfrid acted as president of the court, and in similar 
 trials touching the rights of Ely and Rochester Odo of Bayeux 
 appeared in the same position ^. 
 
 Under "William Ilufus the functions of the confidential minister Holders of 
 were largely extended ; the office became a permanent one, and under Wil- 
 included the direction of the whole judicial and financial arrange- 
 ments of the kingdom. It is probable that the king, who had 
 no great aptitude for any other business than that of war, was 
 inclined at first to throw the cares of government on his uncle 
 Odo and the bishop of Durham, William of S. Carileph ; to these 
 prelates later writers give the title of justiciar'^. But their treason 
 opened the king's eyes to the imprudence of trusting so great 
 authority to such powerful and ambitious personages, Ranulf 
 Flambard, who succeeded to the place of chief adviser'*, seems 
 to have earned his master's confidence by his ingenious and un- 
 
 * Dugdale, Orig. Jurid. 20, quoted in Foss's Judges, i. 11 ; Liber Eliensis, 
 ed. Stewart, i. pp. 256-260. The author of the life of Lanfranc, Milo 
 Crispin, a contemporary of Anselm, seems to imply the same thing : 
 ' Quando gloriosus rex Willelmus morabatur in Normamiia, Lanfrancus 
 erat princeps et custos Angliae, subjectis sibi omnibus principibus, et 
 juvantibus in liis quae ad defensionem et dispositionem vel pacem perti- 
 nebant regni, secundum leges patriae.' cap. 15. 
 
 * At Pennenden, in 1075 (above, p. 277), Gosfrid of Coutances must 
 have been acting as justiciar ; he is described in the Textus Roffensis as 
 'qui in loco regis fuit et justitiamillani tenuit.' Ang. Sac. i. 335. For the 
 Kochester and EI3' cases see Ang. Sac. i. 339 ; Liber Eliensis (ed. Stewart), 
 i. 252. 
 
 ^ ' Odo episcopus Bajocensis, justitiarius et princeps totius Angliae.' 
 Hen. Hunt. fol. 212. ' Willelmo Dunelmetisi episcopo commendata erat 
 rerum publicarum administratio.' \V. Malmesb. G. R. iv. § 306. 
 
 * ' Summus regiarum procurator opum et justitiarius factus est.' Ord. 
 Vit. X. 18. ' Kegiae voluntatis maximus exsecutor.' Eadmer, i. p. 20.
 
 348 Constitutional History. [chap. 
 
 Career of Scrupulous devices iox increasing the royal revenue, and he may 
 riambard. be looked on as the first consolidator of the functions of the office. 
 It is impossible not to suspect that he had a share in the work 
 of the Domesday Survey^. He was a native of the diocese of 
 Bayeux, in which Caen, the seat of the Norman treasury, was 
 situated, and had been brought up among the inferior officials 
 of the ducal court ^. He had held, in the days of Edward the 
 Confessor, a small estate in Hampshire^, possibly acquired in 
 the service of the Norman bishop William of London. He was 
 afterwards attached to the household of Bishop Maurice, whom 
 he left to become chaplain to the king, an office which he had - 
 held for some years before he came into prominent importance *. 
 As the annals of the Conqueror's reign furnish the names of no 
 great lawyers or financiers, as Ranulf was employed at court 
 during the later years of it, and as his subsequent career proves 
 him to have possessed great ability, if not a systematic policy of 
 administration, it is not unnatural to suppose that he rendered 
 himself useful in the compilation of the great rate-book of the 
 kingdom. And such a supposition almost answers the objection 
 taken to the statement of Ordericus, that he made a new survey 
 in the reign of William E-ufus, of which there is no otlier 
 evidence. The chronicler may have heard that he was em- 
 ployed in the registration of the revenue, and may have attributed 
 it to him as a measure adopted during his term of high office. 
 Titles given However this may have been, and by whatever name the post 
 was dif-tinguished, it became in Flambard's hands all important. 
 He is called by Florence of AVorcester ' negotiorum totius regni 
 exactor/ and ' placitator et totius I'egni exactor ^ : ' expressions 
 which recall the ancient identity of the gerefa with the exactor ", 
 and suggest that one part of the royal policy was to entrust the 
 functions which had belonged to the prajfectus or high steward 
 
 ' Ahove, p. 302. 
 
 ^ (Jnl. Vit. viii. 8: he liad been under Robert the dispensator (above, 
 p. 344), who had given liiin the name of Flainbard. 
 
 ^ Doinos(hiy, i. ;.i ; Ellis, Iiitr. i. 420. 
 
 * Mr)iiaoliUH Duiieliueiiais, Ang. Sac. i. 706. He is spoken of as a clerk 
 in the Domesday Book, i. 154, 157- Ellis. Intr. i. 420. 
 
 ' Klor. Wig. A.i). 1099, 1 100. 
 
 ' Above, p. 82.
 
 XI.] The Justiciar. 349 
 
 to a clerk or creature of the court. Robert Bloctt, bishop of 
 Lincoln, is called by Henry of Huntingdon ' justitiarius totius 
 Anglise^:' lie may have succeeded Ranulf, but of his adminis- 
 tration nothing is known. The next holder of the office is Career of 
 Bishop Roger of Salisbury. He had a history somewhat like Rof5er of 
 that of Ranulf Flambard. He also was a poor priest of the 
 neighbourhood of Caen. He had attracted Henry's notice, long 
 before he came to the throne, by his expeditious way of cele- 
 brating divine service, had been enlisted by him as a sort of 
 chaplain steward, and by his economy and honesty had justified 
 the confidence reposed in him ^. After Henry's accession he was 
 at first employed as chancellor, and after the reconciliation of 
 the king with Anselm was consecrated to the see of Salisbury, 
 being the first prelate canonically elected since the dispute 
 about investiture had arisen. He seems to have risen at the 
 same time to the place of justiciar^. Under his guidance, Hisad- 
 whether as chancellor or as justiciar, the whole administrative skill, 
 system was remodelled ; the jurisdiction of the Curia regis and 
 Exchequer was carefully organised, and the peace of the country 
 maintained in that theoretical perfection which earned for him 
 the title of the Sword of Righteousness*. He is the first 
 justiciar Avho is called ' secuudus a rege.' He retained the 
 title of justiciar until his arrest by Stephen. His personal 
 history need not be further pursued. Roger of Salisbury cer- 
 tainly bore the title of justiciar ^; whether he acted as the king's 
 lieutenant during his absence is uncertain, and even yet it must 
 
 ' Henry had been brought up in the bishop's court, and can scarcely 
 have been mistaken as to his rit;ht to bear the title. He calls him dis- 
 tinctly 'Justitiarius totius Angliae.' Anglia Sacra, ii. 695. 
 
 2 Will. Newb. i. 6 ; W. Maluiesb. G. R. v. § 408. 
 
 ' ' Kogerius vir luaiuus in saecularihus, nunc vero regis justitiarius.' 
 Hen. Hunt, de Cont. iM iindi ; Ang. Sac. ii. 700. ' Ro':;erus auteni justitiarius 
 fuit totius Angliae et secundus a rege.' Hen. Hunt Hist. lib. vii. fol. 219. 
 He is called justiciar also by William of Malme.<bury, G. R. v. § 408. 
 ' Secundus post regem in omnibus negotiis habebatur . . . curae palatinae 
 regnique negotiis cunctis specialius est praepositus ; ' Gesta Stephaiii, p. 46. 
 ' Secundus eiiini a rege in regno praeeminebat universis judiiibus et prin- 
 cipibus;' John of Hexham, p. 125. See also Ordericus Vit. xiii. 40. 
 
 * In his epitaph, Archaeologia, ii. lyo. 
 
 '■" Henry uses the term capitalis jiu-titinrius in a charter, Foed. i. 1 2 : 
 ' Nisi coram me vel capitali justitiario meo ; ' but this may not refer to 
 Boger.
 
 35° 
 
 Constihitlonal History. 
 
 [chap. 
 
 Uncertainty be Qiiestioned whether the name possessed a precise official 
 
 of the appli- . . „ ... 
 
 cation of the simificance^ Several other ministers receive the same name 
 
 titleof T . , . 
 
 justiciar. even during the time at which he was certainly in office : even 
 
 the title oi capitalis jristitiarius is given to officers of the Curia 
 regis who were acting in subordination to him^. We have, 
 however, been tracing the development of the office rather than 
 the history of the title. The latter, not improbably, gained 
 definiteness of application as the functions of the office de- 
 veloped. The ' magister justitiarius ' of the Norman kingdom 
 of Sicily, who possibly took his name from the Norman chief 
 minister of England, appears soon after the middle of the 
 twelfth century^. The title oi justiza of Aragon, a minister 
 not unlike the later chief justices of England, is first found in 
 the twelfth century*. The seneschal of Normandy receives the 
 name of jtistitiar under Henry II. It is only in the same reign 
 that the office in England acquires the exclusive right to the 
 definite name oi summus or capitalis justitiarius, or justitiarius 
 totius Angliae. 
 
 Eor the office, the development of which is thus only ob- 
 scurely traceable, it is easier to find analogies in foreign systems 
 than to produce a consecutive history to connect it with known 
 antecedents. A general view of the Norman policy suggests 
 
 Possible 
 reasons for 
 this de- 
 velopment. 
 
 ' In a letter of Henry to Anselm, dated at Rouen, he tells liim that he 
 has given notice to the justiciars to act by the archbishop's advice. 
 Whether these were the regents or the judges, or both, may be questioned. 
 We find the queen and the heir-apparent acting with considerable power 
 in the king's absence. Above, p. 342 ; and below, p. 395. 
 
 * See below, p. 389. 
 
 ' Gi:innone, lib. xi. c. 4, mentions a charter of 1141 as attested by ' Hen- 
 ricus Ollia Dei gratia regalis justitiarius.' The marriage settlement of 
 Queen .Johanna in 11 77 is signed by a ' magister justitiarius,' a ' regiae 
 curiae magister justitiarius,' a ' regiae curiae justitiarius,' and a ' sacri regii 
 palatii logotlieta' as well. Altliough the Sicilian kings copied Byzantine 
 as well as Western forms, it must not be forgotten that several of their 
 ministers and bishops were Englislimen. Robert of Salisbury, chancellor 
 of Sicily in 1147 (Joh. Salisb. Rolycr. vii. 19; John of Hexham, c. 275), 
 Herbert of Middlesex, bishop of Cosenza (R. Diceto, c. 62S), Richard 
 Palmer, archbishop of Messina in 1183, and two contemporaneous arch- 
 bisho])8 of ]\-ilermo, Walter and Bartholomew, were Englishmen. See 
 HovfMlen, vol. ii. pref. p. xcii. 
 
 * On the Judex medius of Soprarbe and the Justitia of Aragon, see 
 Du Cange, sub voc. ; Dunham, Hist, of Spain, iv. 178-182 ; Hallam, M. A. 
 ii. 49 sq.
 
 XI.] The Chancellor. 351 
 
 that tlie form taken by the institution on English ground arose 
 partly from the king's desire to prevent the administration 
 falling into the hands of a hereditary noble. In a small territory 
 like Normandy, where the duke was always at home, and where 
 very much of the judicial business was devolved on the courts of 
 the feudatories, an officer like the seneschal might suffice for all 
 necessai'v business of state. But in England, where the king Necessity 
 
 •' o ' for some 
 
 could not be always resident, where the amount of public such officer 
 . .11 • PI T • 1 inEngl'iii'l- 
 
 business was increasing rapidly in consequence of the political 
 
 changes, and where it was of the utmost importance to avoid 
 the creation of hereditary jurisdictions, it was absolutely neces- 
 sary that a new system should be devised. The same need was 
 felt in France ; and the same tide of events which threw the 
 administration here into the hands of Bishop Roger, brought the 
 management of affairs there into the hands of the Abbot Suger^ 
 In each case we see an ecclesiastical mayor of the palace : a Convenienco 
 
 . . . . . ol having an 
 
 representative of the king in all capacities, lieutenant in his ecclcsiastiL- 
 absence, chief agent in his presence ; prime minister in legal, 
 financial, and even military affairs ; but prevented by his 
 spiritual profession from founding a family of nobles or with- 
 drawing from the crown the powers which he had been com- 
 missioned to sustain. The expedient was a transitional one \ 
 the clerical justiciars were superseded by baronial ones when 
 Henry II felt himself strong enough to stand the risk, and 
 occur again only under his sons, whose exigencies and whose 
 policy compelled them to employ such ministers as they found 
 trained to their hands, and as were otherwise qualified to act 
 as mediators between themselves and their people. 
 
 121. The chancellor, who at a later period entered into many The chan- 
 cel lor. 
 
 ' Sugar's position at the French coiirt is spoken of in very nearly the 
 same terms as Roger's : ' praeerat palatio ; ' ' nee ilium a claustri cura pro- 
 hiberet curia, nee a consiliis principuin hunc excusaret nionasterium ; 
 • cumque ab eo jura dictarentur nuUo unquam pretio declinavit a recto ; ' 
 ' praecipua regni incuniberent negotia ; ' ' ex eo siquidem tempore, quo 
 primuui regiis est adhibitus consiliis, usque ad vitae illius terminum con- 
 stat regiium semper floruisse et in melius atque amplius, dilatatis terminis 
 et hostibus subjugatis, fuisse provectum. Quo sublato de medio statim 
 sceptrum regni gravem ex illius absentia sensit jacturam.' Vita Sugeri, 
 lib. i. ' Rege . . . peregre jam profecto, cum vir egregius rerum dominie 
 potiretur.' lb. lib. ii.
 
 ^^2 Constihiiional History. [chap. 
 
 The office of of the rights and dignities of the justiciar, appears in history 
 very much earlier. The name, derived probably from the 
 cancelli, or skreen behind which the secretarial work of the 
 royal household Avas carried on, claims a considerable anti- 
 quity ; and the offices which it denotes ai'e various in propor- 
 tion. The chancellor of the Karoliugian sovereigns, succeeding 
 to the place of the more ancient referendarius'^, is simply 
 the royal notary : the archi-cancellarius is the chief of a large 
 body of such officers associated under the name of the chancery, 
 and is the official keeper of the royal seal. It is from this 
 minister that the English chancellor derives his name and 
 function. Edward the Confessor, the first of our sovereigns 
 who had a seal, is also the first who had a chancellor: from the 
 reign of the Conqueror the office has descended in regular suc- 
 
 A clerical cession. It seems to have been to a comparatively late period, 
 generally if not always, at least in England, held by an eccle- 
 siastic, who was a member of the royal household, and on a 
 footing with the great dignitaries". The chancellor was the 
 most dignified of the royal chaplains, if not the actual head of 
 that body. The whole of the secretarial work of the household 
 and court fell on the chancellor and chaplains ; the keeping of 
 the royal accounts under the treasurer aud justiciar, the drawing 
 
 ' Waitz, D. V. G. ii. 409, traces the history of the Merovingian referen- 
 dariiix as a lay officer : tlie scriptores, notai ii, and cancellarii seem to have 
 been part of his staff. In the Iiipuariau law, however, lie ajipears with the 
 optimates ; and in the Karolingian period, th.e arclii-cancellarius or cancel- 
 lariiis, who keeps tlie seal, becomes an important ofticer. Ibid. iii. 426. 
 From the time of Lewis the Pious the cliancellor was generally in holy 
 orders. The same writer maintains that the arcli-chancellor had originally 
 nothing to do with the royal cliapel, e.\cept so far as it was the storehouse 
 of official documents, and that the union of the nffice of arch-chancellor and 
 arch-chaj)lain dati'S from the reigns of the sons of Lewis. Of course the 
 two functions had been long united before the, age of Edward the Con- 
 fessor, when the title of chancellor was introduced into England. ITie 
 office held by Dunstan under Edred must have been very much like that 
 of the later chancellors. Regirdjaldus, who attests Edward's charter to 
 Waltham (C. D. dcccxiii),is the only person who appears as canctUarius in 
 gcnuini; charters. Leofric bishop of Crediton is called chancellor by 
 Florence of Worci'ster, A. n. 1045. It maybe remarked that the ofBce of 
 chancellor of a cathedral was unknown in England until some time after 
 the Conquest; the officer who fulfilled the duties later given to the chan- 
 cellor bearing the title of scholasticus. 
 
 * Above, p. 345, note 2.
 
 XI.] The Treasurer. 353 
 
 up and sealing of the royal writs, and the conducting of the 
 king's correspondence. The chancellor was, in a manner, the 
 secretary of state for all departments^ He was generally 
 rewarded for his service with a bishopric, and it was not re- 
 garded as fitting that the office should be retained by him after 
 
 his consecration. Of the early chancellors none are of particular Early 
 
 „ cliancellors. 
 enunence, or perhaps tlicy are overshadowed by the greatness of 
 
 the justiciar. The office was however held by William Giffiird, 
 
 whose services were influential in procuring the election of 
 
 Henry I ; by Roger of Salisbury himself, before his promotion 
 
 to episcopal rank and to tlie justiciarship ; and by his son, also 
 
 named Eoger, who was one of the victims of Stephen '. 
 
 122. The treasurer duriuir the Norman period was the keeper The trea- 
 
 _ ^ '■ ^ ^ surer. 
 
 of the royal treasure, which was preserved at Winchester : he 
 was also an important member of the household, and sat in the 
 Exchequer at Westminster, where he received the accounts of 
 the sheriffs. William of Pont de I'Arche, who had been treasurer 
 to Henry I, is mentioned in connexion with the seizure of the 
 Winchester treasure by Stephen ^ ; and the office was so impor- 
 tant that Bishop Roger obtained it for his nephew the bishop 
 of Ely*. But, like the chancellorship, it falls far below the fiirst 
 rank of ministerial dignities. The chamberlain was another The chan;- 
 financial officer ' : his work was rather that of auditor or ac- 
 
 ' The words of John of Salisbury, ' Hie est qui regni leges cancellat 
 iiiiquas, et mandata pii principis aecjua facit,' are a curious anticipation of 
 the hi.story of the chancellor's equitable jurisdiction as developed at a later 
 period. The play on the word is only a jesting one. The reference to 
 equity is explained when it is reiueuibered that the Curia Regis was by its 
 very nature a court of remedial and e(iuitable jurisdiction in the wider 
 •ense of the word equitable. See below, pp. 390, 391. 
 
 ^ Flor. Wig. A.D. 1 102. Mr. Foss's list of the chancellors of Henry I is 
 a8 follows: — William Giffiird, 1100; Roger, iioi; William Giffard again, 
 1103; Waldric, 1104; Ranulf, 1107-1123; Geoffrey Rufus, 1124. Ilie 
 dates can only be regarded as approximations. The seal was kept during 
 Hein-y I'.s reign by the magistcr scriptorii, as ajipears from the (\)nstitutio 
 Pomus Regis (Lib. Nig. i. 341; p. 345 above); he was probably a sub- 
 ordinate of the chancellor in the position held in Hemy ll's reigii by the 
 vicechancellors. Richard, ' qui regii sigilli sub cancellario custos erat,' 
 became a bishop in 11 21. Cont. Flor. Wig. 
 
 ' Gesta Stephani, p. 5. He is called by William of Malmesbury, in 
 conjunction with Bishop Roger, custos t/itsdurorum >e<julium ; Hist. 
 Nov. i. § II. 
 
 * Dialogus de Scaccario, i. 8. 
 
 ^ See Madox, Hist. Exch. pp. 38 sq. 
 
 A a
 
 and marshal. 
 
 354 . Constiiutionnl Kidory. [chap. 
 
 countant tlian that of treasurer : he held a more definite position 
 in the household than the officers already enumerated, and in 
 the judicial work of the country he was only less important 
 than the justiciar. 
 Domestic The offices of steward, butler, constable, and marshal com- 
 
 the court, plete the machinery of the household. The first of these, as 
 The high- we have already seen, was eclipsed in his most important 
 constable, functions by the justiciar, and makes in his official capacity 
 no great figure in English history. The constable, who ex- 
 ercised the ofiice of quartermaster-general of the court and 
 army, and succeeded to the duties of the Anglo-Saxon staller ^ ; 
 and the marshal, whose functions are scarcely distinguishable 
 from those of the constable, reached at a comparatively early 
 date the position of hereditary dignities. Their military func- 
 tions however preserved them from falling into the class of 
 mere gi-and serjeanties, and at a later period they had very great 
 importance in the management of the army ^. During the 
 
 * Of the early functions, as well as of the rest of the history, of the 
 constai)les we have not much information. The name is derived from the 
 comes xtabuli of the Byzantine court, and appears in the West as early 
 as the dc-.ys of Grevrory of Tours. The duties of the constables of France 
 are given by Du Cange, s. v. ; and those of the constables of Naples by 
 Giannone, xi. i. But these officers are not exactly parallel with the 
 constables of England. In Naples the constable kept the king's sword, 
 commanded the arm}', appointed the quarters, disciplined the troops, and 
 distributed the sentiric-l.s; tlie marshals and all other officers being his 
 sul.ordinates. The French office was nearly the same. In England how- 
 ever the marshal was not subordinate to the constable. Probably the 
 English niar.shals fulfilled the duties which had been in Normandy dis- 
 chavged by the constables. The marshal is more distinctly an officer 
 of the court, the constable one of the castle or armj'. But the obscurity 
 of the distinction is accounted for Ijy the hypothesis of the text. 
 
 '■' In the reign of Edward I the Earls Bohun and Bigod, the constable 
 and marshal, refused to exercise their functions except in the king's 
 presence, and helped to bring on the crisis that led to the confirmation 
 of the charters. Carte, Hist. Ens'l. ii. 269, gives, from Anstis, an account 
 of their duties at that time : ' to examine, judge, and determine whether 
 those who owed services by their tenures answered those .services by the 
 quidities and nunibern of the persons required; then to muster those 
 whom they thought proper to admit, and to assign them quarters; and, 
 if it was an ex])edition to foreign parts, to billet them into ships for their 
 transportation, ami to govern tlnan while they were upon the sea; and 
 npoti their i.-uiding to direct into what battalions and comj)anios they 
 nhould l>e formed ; ami (hiring the aclual wars to hold court for the de- 
 terminations of all offences committed against the laws of war, and for
 
 XI.] Tlie Hoijal Ilousehohl. 355 
 
 Norman reigns neither of them comes into much prominence. 
 !Miles, the constable of Gloucester, who was made earl of 
 Hereford by the empress, and whose dignity descended to the 
 Bohuns, is the first of the number who takes the position 
 ordinarily associated with the title of high constable. Both the 
 constable and the marshal had places and definite functions 
 in the Exchequer. Somewhat of the same developing and 
 defining process which we have traced in the justiciarship seems 
 to have taken place in these offices. Not only was there a Consoiida- 
 
 ^ . , . . tionofthe 
 
 double set of officials, arisin" partly pei'haps from the consoli- Kieat offlc s 
 ' o t . 1 1 ofthecouit. 
 
 dation of the Anglo-Saxon and the Norman courts, but each 
 
 of the offices seems to have been held by several co-ordinate 
 functionaries — there are several dapiferi and camerarii ^ ; and 
 as every castle had its own constable, there were many barons 
 who had a right to call themselves the king's constables. The 
 attainment by some one of these of the right to call himself 
 high steward, or high constable, was doubtless a gradual pro- 
 ceeding ; and it may conjecturally be referred to the age of 
 Stephen when both the contending parties sought to retain 
 their fickle partisans by the gift of honours and titles. Probably 
 each one of these offices has a history of its own, for which only 
 scanty materials now exist. 
 
 The separation of the great functionaries of the household Court offices 
 '■ '^ become lie- 
 
 from those of the State is ultimately marked by the fact of reditary: 
 
 the former becoming hereditary, while the latter continue to 
 
 be ministerial. And thi; is further distin£niished : the minis- State offices 
 
 ^ saleable, 
 
 terial offices are saleable. The treasurer, the chancellor, even 
 
 the justiciar, pays a sum of money for his office, or even renders 
 an annual rent or ferm for it ^. This practice runs on to the 
 thirteenth century, when, so many of the dignities having be- 
 come hereditary, and the feeling of the nation being strongly 
 expressed in favour of reform, the king was compelled to choose 
 his subordinate ministers with some reference to their capacity 
 
 the decision of all ci\nl causes arising in the army concerning the righta 
 of prisoners and booties taken, and such like.' 
 
 ' See Madox, Exchequer, chap. ii. ; and p. 345 above. 
 
 ^ See below, pp. 383, 3S4. 
 
 A a 3
 
 35^ 
 
 Constitutional History. 
 
 [chap. 
 
 Powers of 
 
 these 
 
 officers. 
 
 Judicial 
 powers over 
 tiieir own 
 depart- 
 ments. 
 
 Tlie great 
 council of 
 the king- 
 dom. 
 
 Feudal Qua- 
 lilication of 
 its members. 
 
 for business. Such a history may account for much of the 
 indefinite and complicated character of the offices of State. 
 
 The powers of these officers were very considerable, and 
 were extended by continual encroachments. Each dignitary of 
 the household was a member of the Curia Regis and Exchequer, 
 and in that capacity exercised from time to time judicial func- 
 tions. Each too had under him a staff of servants over whom 
 he exercised judicature and discipline ; and this was extended 
 to the cognisance of all offences committed or disputes arising 
 in the department which was nominally under his management. 
 Hence the origin of the courts of the high steward, the con- 
 stable, and the marshal, which are subjects of complaint down 
 to a late period. These courts were naturally regarded as 
 exceptions to the common law of the land which was admin- 
 istered by the justiciar or under his superintendence. 
 
 123. The witenagemot of the kingdom, now subsisting under 
 the title of the great court or council, forms a second circle 
 round the sovereign \ Under the Conqueror this assembly re- 
 tained very much of its earlier character : the bishops and 
 abbots still attended in virtue of their official wisdom, and witli 
 them the great officers of State and the chief of the Norman 
 baronage. It was however rather a court than an organised 
 council. It cannot be certainly affirmed that the tenure of a 
 particular estate of laud, held by homage and fealty, either was 
 an indispensable qualification or bestowed tlie privilege of mem- 
 bership : and before the reign of Henry II it would be rash 
 
 ' Gneist, Verwalt. i. 238 sq., argues strongly against the continuance 
 of the witenagemot in the form of a feudal council, and maintains the 
 practically absolute character of the government in the Nonnan times. 
 It w(juld not now Ije contended that the assemhlii s brought together by 
 the Conqueror or Henry I had the ilefinite organisation of tlie {)arliaments 
 of Edward I, or even of the councils of Henry II. But that there were 
 such gatherings of magnates, and that those gatlierings, when they emerge 
 from obscuiity in the reign of Henry II, were assemblies of tenants-in- 
 chief, is clear on the face of the history. Tiie i)eriod was one of transition 
 and growth in every way. No legislative act turned the witenagemot 
 into a feudal council, and no legislative act turned the feudal council into 
 a parliament. On tlie other hand, Gneist's |)osition, that the Norman 
 assemblies were not indepenilent legislative or governing asseml)lies, needs 
 no proof The kings were practically absolute, but they retained the 
 tiieury and the form of a national council.
 
 XI.] The Kings Court and Council. 357 
 
 to maintain that every tenant-in-cliief of the crown was a Assembly of 
 
 tenants iii- 
 
 mcmber of the assembly, although every member of the assembly chi«;f. 
 was, after the settlement of the question of investiture, obliged 
 to hold his barony by homage and fealty. It is of course only 
 to the bishops and abbots that that measure directly applies, 
 but its operation in their case necessarily involves the obser- 
 vance of the rule in all others. It is sufficiently obvious from 
 the Domesday record that the tenants-in- chief had long had 
 their position and character defiued. That the forcing of homage 
 and fealty, with the baronial tenure, upon the bishops had the 
 effect of annihilating their earlier title to appear in the witena- 
 gemot as sapientes can scarcely be maintained ^. It completed 
 however the symmetry of the baronage, and gave a basis of 
 
 uniformity to the court in which tliey were assembled. The Other coim- 
 
 . . . sellois. 
 
 kmgs no doubt exercised the right of associating in their 
 
 deliberations such counsellors as it might seem convenient to 
 
 admit, as, for instance, a Roman legate, a Norman prelate who 
 
 would be unlikely to have lands in England, or even lawyers, 
 
 monks, or clergymen of special skill or sanctity ; but it does 
 
 not follow that such strangers w^ould be allowed to vote in 
 
 caj-e of any difference of opinion. Except in the anomalous 
 
 period of Stephen's reign, there are no records of any such 
 
 discussions as might lead to divisions. In private perhaps the 
 
 sovereign listened to advice, but, so far as history goes, the 
 
 * Matthew Paris places the coramutation of title in A.D. 1070 : ' Epi- 
 scopatus (juoque et abliatias niiines quae baronias tenebant et eatenus 
 ab omni seivitute saeculari libertatem liabuerant, .sub servitute statuit 
 niilitari, inrotulans singiilos episcopatiis et aljb itias pro voluntate sua, quot 
 milites sibi et successoribus suis hostilitatis tempore voluit a singulis 
 e.vhiberi' (ed. Wats, p. 7). Even if this refers to any real act of William, 
 and is not a mistaken account of the effect of the Domesday Survey, the 
 change is not completed until tlie prelates do homage and fealty for their 
 temporalities. The exact form and nature of episcopal homage is a matter 
 of discussion, on which see Taylor, Glory of Kegality, pp. 357 sq. Glan- 
 vill (ix. i) says, ' episcopi vero consecrati homa^dum facere non solent 
 domino regi etiam de baroniis suis, sed fidelit:iteni cum juramentis inter- 
 positis ipsi prsestare solent. Electi vero in episcopds ante consecrationem 
 suan\ homagia sua facere solent.' As no bishop could say to the king 
 'devenio hojno vester,' the form was probably of the nature of fealty 
 rather than homage. Hence the bishops were summoned to parliament 
 * in fide et ddectione quibus nobis tenemini,' lay lords ' in fide et 
 homagio.' Yet in common language the bishops held their baronies by 
 homage and fealty.
 
 ^^8 Constitutional History. [chap. 
 
 General counsellors who took part iii formal deliberations must have 
 
 iiiianimitv , . i • » i i p • 
 
 ill recorded been unanimous or subservient. An assembly of courtiers, 
 holding their lands of the king, and brought together rather 
 for jDompous display than for political business, may seem 
 scarcely entitled to the name of a national council ^ Such as 
 it was, however, this court of bishops, abbots, earls, barons, and 
 knights was the council by whose advice and consent the kings 
 condescended to act, or to declare that they acted ^. 
 
 TheXoi-man A council based on the principle that its members are 
 
 council ge- 
 nerally an qualified bv feudal tenure of land ought not to confine itself 
 assembly of ^ ■' _ ° _ 
 
 iTiajcnates: to an assembly of magnates: it should include all freeholders 
 of town or countiy who are not under any mesne lord, and 
 would thus be in theoiy a much larger and more liberal re- 
 presentation of the nation than anything that had existed since 
 but some- the days of the Heptarchy. On some occasions, especially at 
 general the great councils of Salisbury in 1086 and 11 16, it is probable 
 
 meeting of ° •' . 
 
 laud-owners, that a general muster of the landowners of the kingdom was held, 
 at which all were expected either to be present or to send their 
 excuses by the sheriffs, who on the former occasion are espe- 
 cially said to have been summoned ^. But the number of per- 
 sons who were really consulted on business, or to whom the 
 show of such attention was paid, must have been always very 
 limited. As both earlier and later was the case, only the 
 highest class was called on to treat of the highest matters ; the 
 
 ' GiiCist (Verw. i. 223) remarks that in the solemn courts held at the 
 festiva'a the oppressed English might recognise the ancient witenagemot, 
 and the proud Norman the baronial court ; whilst the Conqueror took 
 good care that they should be neither the one nor the other. The view 
 which I have maintained in these chapters is diffl nnt : I believe that the 
 Conqutror wished to make these councils ijoth witenagemots and baronial 
 courts, so maintaining form and reality that the one principle should be a 
 check upon the other ; but it is a mistake to adopt too strict dutinitions 
 in such matter. The evidence of the Chronicle is sufficient to prove the 
 form and reality of deliberatii n. In 1085, 'At mid-winter the king was 
 at CTloucester with ids witan, and he held his court (hired) there five days : 
 and afterwards the archbishop and clergy held a synod there for three 
 days. . . . After this the king held a great consultation (niycel gethealii).' 
 Chron. Sax. A.D. 1085. 
 
 * ' Arcebiscojias and leodbiscopas, abbodas and eorlas, thegnas and 
 cnihtas.' Chron. Sax. A.D. 1086. 
 
 ^ ' Archiejnscopi, episcopi, abbates, comites, barones, vicecomites, cum 
 suis militibus.' Flor. Wig. A.D. 1086.
 
 XI.] The Bishops at Court. 359 
 
 i)eonle, if tliey were called at all, would hear and obey. And Ordinary 
 
 members 
 
 thus the constituent paHs of the assembly are reduced to the of these 
 
 T , . 1 m councils. 
 
 archbishops, bishops, abbots, earls, barons, and knights, ilie 
 sheriffs, who would come invariably under one of these heads, 
 may be left out of consideration in this relation. The enu- 
 meration is however in no way based on a logical division ; 
 all the members were barons by tenure, greater or less, and 
 all the earls and barons strictly so called were probably 
 knights. 
 
 On the ecclesiastical members of the council it is unnecessary Bishops, 
 to dwell : their chai-acter is, except as affected by the acceptance 
 of feudal baronies, exactly the same as it was before ^ The The arcli- 
 archbishop of Canterbury is still recognised as the first con- P'VJ**^'?"'^ 
 
 stitutional adviser of the crown "- : William Rufus acknowledges adviser or 
 
 the crown. 
 the right of Lanfranc as distinctly as Henry I does that of 
 
 Anselm^. And the importance of this position probably lay 
 at the root of the claim made by the kings to decide which 
 of two rival poises should be recognised in the coimtry : the 
 theory that it was by the acceptance of the pall from Rome 
 that the mctropolitical status was completed, might have ex- 
 posed the king to the necessity of receiving his chief counsellor 
 from a hostile power, unless limited by such a condition * : and 
 as the papal theory of appeals and legations was not yet ajjplied 
 
 ' This is the old question of the title of the bishops to sit in parliament. 
 It is scarcely necessary to say more than that they had sat before the 
 Conquest as witan, and continued to do so without break afterwards. See 
 Selden, Titles of Honour, pp. 695, 6(j6 ; Hody, Convocation, pp. 128, 129. 
 The bishop of Rochester always sat in parliament, even when he received 
 his temporalities from the archbishop of Canterbury and not from the 
 king ; and accordingly the bishops of the sees founded at the Reformation, 
 wiio never held baronies at all, sit exactly as the other bishops. Tiie 
 qualification is however strictly official wisdom, for suffragans, although 
 spiritually equal to dicK-esan bishops, have never sat. Hody explains this 
 by saying that the bisliops sit .as governors of the Church ; and the same 
 may be said of abbots and priors, although, as their appearance in the 
 national council is for the most part subsequent to the Conquest, and a-s 
 only the abbots and priors who held baronies were summoned, the question 
 with regard to them is more complicated than that of the bishops. 
 
 ■■' This fact app-ars clearly in Lanfranc's letters ; e. g. ' hoc est consilium 
 regis et meiun,' Ep. 32 ; cf. Ep. 58. Anselm tried to obtain a promise 
 from William Rufus, that he would act on his advice in the »ame way. 
 Eadmer, i. p. 20. 
 
 * Above, p. 304. * Above, p. 2S5.
 
 36o 
 
 Constitutional History. 
 
 [chap. 
 
 His impor- 
 tant nnd in- 
 dependent 
 position. 
 
 The ai'cli- 
 bishop of 
 York. 
 
 The earls. 
 
 Tlie Oon- 
 riiieror"s 
 tairls were 
 chiefly hold 
 ors of old 
 En(rli.sh 
 cai Idoms. 
 
 to England, the power of the archbishop to further or retard 
 the promotion of bishops was practically unlimited, except by 
 means which it would have been highly dangei'ous for the king 
 to adopt. Even at the best the relations of the archbishoj>s 
 to the Norman kings were hazardous, and depended far more 
 on personal than on legal considerations. The fact that even 
 William Rufus was obliged to excejit the primatial see of 
 Canterbur}^ from his unscrupulous misuse of patronage, is 
 another proof of the strong constitutional hold of the arch- 
 bishops ; a hold which their consistent exertions for the pro- 
 tection of the people and the purification of the Church most 
 amply justified. The whole of the ejiiscopal body was until the 
 middle of Hemy I's reign sworn to obedience to Canterbury ; 
 and the archbishop of York, even after he had obtained re- 
 cognition of his independenc.e, had so small a body of suflfragans 
 as to make his position in fact subordinate. He was veiy 
 powerful in Yorkshire, but of secondary importance at court. 
 
 124. The earls of the Norman period are not numerous, nor 
 are the peculiar characteristics of the rank well ascertained. 
 The tendency towards feudalisation of the governmental ma- 
 chinery, wdiich had been growing since the days of Canute, 
 might have made the assimilation of the English ealdornian to 
 the Norman count easy and obvious ; but that tendency was 
 counteracted by the policy of William in more ways than 
 one ; and consequently it is difficult to reduce the exjicdients 
 which he adopted in the several cases to a uniform rule. In 
 the early days of his reign the earls whom he appointed seem 
 to be merely successors to the English magistrates of the same 
 name. William Fitz-Osbcrn, for instance, succeeds to the earl- 
 dom of Herefordshire which had been held by the Confessor's 
 nci)hew Ralph ; Ralph Guader has the earldom of East-Anglia ; 
 and Edwin and Walthcof retain until their fall some portion of 
 the territory which they had inherited with the same title. 
 The three great earldoms of Chester, Shropshire, and Northum- 
 berland were created by the Concjucror out of the forfeited 
 inheritance of Edwin, Morcar, and Waltheof, and may likewise 
 be regarded as continuing the line of the ancient magistracies.
 
 XI.] Earhlums. 361 
 
 Hugh of Avraiichos earl of Chester, Roger of Montgomery eai'l 
 of Shropshire, and Albcric earl of Northumberland ai'e the only 
 persons who in Domesday hold the title of comes by virtue of 
 English earldoms'; all the rest — William of Evreux, Robert of 
 Eu, Robert of Mortain, Eustace of Boulogne, Alan of Brit- 
 tany, and Robert of Meulan — were counts simply, the first three 
 of Norman, the latter three of French covinties^. In sonie other Bishops 
 cases the jui'isdiction of the ealdorman was held by a bishop, who earls. 
 may have borne the title of earl, although the evidence on this 
 point is not convincing : such was the position of Odo of Bayeux 
 in Kent, of Walcher of Durham, and pei-liaps of Gosfrid of Cou- 
 tances, the founder of the fortunes of the Mowbrays, in Northum- 
 berland. The third penny of the county, which had been a part 
 of the profits of the English earls, is occasionally referred to in 
 Domesday', but not in connexion with existing earldoms, as was 
 afteiwards the case. The title thus sparingly bestowed by the 
 Conqueror was conferred little more lavishW by his sons : Henry Earls 
 
 e r, T ^ c crcjited by 
 
 of Beaumont, brother of the count of Meulan, was made earl of William 
 Warwick*, Robert Mowbray earl of Northumbei'land, and William Henry 1. 
 of Warenne earl of Surrey^, by William Rufus ; the count of 
 Meulan himself received the earldom of Leicester from Henry I ; 
 
 ' To these may be added the Countess Judith, the wich^w of Waltheof, 
 who had the counties of Huntingdon and Northampton as earldoms, 
 which descended to her daughter Maud, and through her to the family of 
 Senlis and tlie kings of Scots. 
 
 * Ordericus Vitalis has unfortunately created a good deal of confusion 
 on this point : he savs (lib. iv. c. 7) that the Conqueror gave the county of 
 Buckingham to Walter Giffard, that of Surrey to Wdliam of Warenne, 
 and tliat of Holderness to Odo of Champagne ; in each case the comitatus 
 here given was given as a lordship, not as an earldom, and accordingly 
 none of the three apjjear as comitcs in Domesday. The lordship of Holder- 
 ness was held with the county of Auniale. The earldom of Surrey was 
 created by William Rufus : that of Buckingham is obscure in its origin, 
 but is probably to be i-eferred to William Rufus. That of Devon is said 
 to have been created for Richard of Redvers by Henry I. The most 
 famous however of the disputed earldoms is that of Richmond, the lordship 
 given by the Conqueror to Alan count of Brittany. On this see the third 
 report of the Lords' Committee on the dignity of a peer, pp. 96 sq. ; 
 Courthope's Historic Peerage, p. 395. 
 
 ^ See above, p. 113. 
 
 * The count of Meulan had considerable rights in Warwickshire, re- 
 corded in Domesday, but the earldom was created for Henry his brother ; 
 and he himself obtained the earldom of Leicester in 1103. 
 
 -r- * In 1089; Ord. Vit. viii. c. 9. See also Ellis, lutrod. i. 507.
 
 3^2 Constitutional History. [chap. 
 
 the earldom of Gloucester was conferred by the same king on 
 his illegitimate son. In all these cases it is probable that some 
 portion of the traditional authority of the ealdormanship was con- 
 ferred with the title. The next reign saw a great increase in 
 the number and a change in the character of these officers ^ 
 Stephen, almost before the struggle for the crown had begun, 
 attempted to strengthen his party by a creation of new earls. 
 To these the third penny of the county was given, and their 
 connexion with the district from which the title was taken was 
 generally confined to this comparatively small endowment, the rest 
 of their provision being furnished by pensions on the Exchequer. 
 Tlif earls A similar expedient was adopted by the empress; and as most of 
 steiiiien and the earls SO created contrived to retain their titles, it is possible 
 
 Matilda. i n /• • • i • i 
 
 that the irequent tergiversations which mark the struggle may 
 have been caused by the desire of obtaining confirmation of the 
 rank from both the competitors for the crown. Stephen made 
 Hugh Bigod earl of Norfolk, Aubrey de Vere earl of Oxford, 
 (jeofFrey de Mandeville earl of Essex, Richard de Clare earl 
 of Hertford, William of Aumale earl of Yorkshire, Gilbert de 
 Clare earl of Pembroke, Robert de Ferrers earl of Derby, and 
 Hugh de Beaumont earl of Bedford ^. The empi'ess created the 
 
 * The comites mentioned in the Pipe Roll of 31 Henry I are the counts 
 of Eu, Beaumont, Brittany, Perche, Flanders, Guisnes, Meulan, Mortain, 
 and Provins; and the earls of Chester, Gloucester, Leicester, Warenne 
 (SuiTey), and Warwick. 
 
 " As Stephen's earldoms are a matter of great constitutional importance, 
 it is as well to f,nve the dates and authorities : — 
 
 Hugh Bigod, Norfolk; before 1153. Foedera, i. 18. 
 
 Aubrey de Vere, Oxford ; question;ible. 
 
 Geoffrey de Mandeville, Essex; before 1 143. Foedera, i. 18. 
 
 Richard de Clare, Hertford ; uncertain. 
 
 William of Aumale, Yorkshire ; in 1 138. John of Hexham (ed. Raine), 
 p. 120. 
 
 Gilbert de Clare, Pembroke; in 1138. Ord. Vit. xiii. 37. 
 
 Robert de Ferrers, Derby; in 1138. John of Hexham, p. 120; Ord. 
 Vit. xiii. 37. 
 
 Hugh de Beaumont, Bedford. Gesta Stephani, p. 74. 
 
 William of Ypres, Kunt ; questionable. Meyer, Annalcs Flandriae, 
 ]). 51. The dates and authorities for the empress's earldoms are as 
 follows : — 
 
 William de Mohun, Somerset. Mon. Angl. vi. 335. 
 
 Patrick of Salisbury, Salisbui-y; before 1x53. Foedera, i. 16. 
 
 Miles of Glouce-ter, Hereford ; 1141. Foedera, i. 14 ; Selden, Titles of 
 Honour, p. 648.
 
 XI.] Palatine Earldoms, 363 
 
 earldoms of Salisbury, Hereford, Somerset, Cambridge, and 
 
 Es^sex, if not more. Two or tliree earldoms of unceitaiu creation, 
 
 such as those of Buckingham and Lincoln \ which were possibly 
 
 connected with hereditary sheriffdoms, appear about the same 
 
 period. 
 
 The dignity of an earl was conferred by a special investitui'e, Investiture 
 . . . of earls. 
 
 the girding on of the sword of the county by the king himself, 
 
 and may be regarded so far as a personal rather than a territo- 
 rial office, like knighthood itself. But the idea of official po- 
 sition is not lost sight of, although the third penny of the pleas 
 and the sword of the shire alone attest its original character. 
 The relief of the earl, like the heriot of his predecessor, is much 
 higher than that of the simple baron ; and although we have 
 no warrant for supposing that a fixed number of knights' fees 
 was necessarily attached to the title, the possessions of the earl 
 were as a rule very much larger than those of the baron. 
 
 The question of the jurisdiction of the earl in his shire is Juris(ti( tion 
 somewhat complicated. In some cases the title was joined to 
 the lordship of all or nearly all the land in the shire; in some 
 it conveyed apparently the hereditary sheriff'ship ^ ; and in a few 
 
 cases the regalia or royal rights of jurisdiction. The palatine Palatine 
 
 11 /> i-.i 1 • ^ ■ • <• 1 1 earldoms, 
 
 earldom 01 Uhester •* is the most important instance or the latter 
 
 class. The earl, as we have seen already, was said to hold his 
 
 earldom as freely by his sword as the king held England by the 
 
 crown ; he was lord of all the land in his shire that was not in the 
 
 hands of the bishop; he had his court of barons of the palatinate, 
 
 AuVirey de Vera, Cambridge. Dugdale, Baronage, p. 190; Selden, 
 Titles, p. 650. 
 
 Geoffrey de Mandeville, Essex. Selden, Titles, p. 647. 
 
 Re>^inald, Cornwall ; appointed by Robert of Gloucester in 1 140. W. 
 Malinesb. Hist. Nov. ii § 34. 
 
 ' On the history of the earldom of Lincoln, see Courthope, Hist. Peerage, 
 p. 287. 
 
 * See the grant to Geoffrey Mandeville, Selden. p. 647. The earls of 
 Salisbury were sheriffs of Wilts from the reign of Henry II to the 1 6th of 
 Henry III : their earldom being in fact based ou a liereditary sheriffdom 
 of earlier date. The Beaucliamp e;irldom of Warwick was in the same way 
 founded on a hereditary sheriffdom held almust from the Conquest. 
 
 ^ On the palatine earldom in general, see Selden, Titles of Honour, 
 pp. 640 sq. ; above, p. 271. The fii-st creation of a palatine earldom under 
 that name is that of Lancaster in 1351.
 
 3^4 Constitutional ITidori/. [chap. 
 
 The palatine the writs ran in his name, and he was in feet a feudal sovereign 
 
 e^irldoms. • r^^ ^ • ^ -t • • i i mi • ^ 
 
 in Cheshire as the king was in Normandy \ The bishop of 
 Durham occupied exactly the same jjosition in Durham, a position 
 of earlier date than the conquest, founded on the immunities 
 granted by the Northumbrian kings, and confirmed by the 
 Conqueror, in the idea probably of placing a strong and in- 
 violable jurisdiction as an obstacle to Scottish invasion ^ The 
 earldom of Kent is said by Ordericus Vitalis to have been con- 
 ferred as a palatine earldom on Odo of Bayeux ; but, although at 
 the time of the Domesday Survey he is still found in possession 
 of an enormous number of lordships in the coimty, the day of 
 his greatness was over, and we are left in uncertainty whether 
 he ever really possessed the regalia. Another case is the earl- 
 dom of Shrewsbury ^ : Roger Montgomery held as lord all the 
 land in Shropshire, save such as belonged to the church and five 
 comparatively insignificant tenants-in-chief : in a charter pre- 
 served by Ordericus Vitalis he speaks of the sheriff of the county 
 as 'my sheriff''' ' in a way that leads to the conclusion that 
 he also may have possessed palatine rights ; but this earldom 
 was forfeited before the time at which documentary evidence 
 PossiViie would be found to illustrate it more fully. The other earldoms 
 risdictioiis based Oil the Anglo-Saxon jurisdictions are liable to similar 
 
 ' The palatine earldom of Chester had its own courts, judges, and staff 
 of officers, constable, steward and the rest : it had its parliament, con- 
 sisting of the barons of the county, and was not until 1541 re])resented in 
 tlie parliament of the kini,'d<im. The eit,dit baronies of the earldom were 
 Hiilton, Montalt or Mould, Nantwich, Malpas, Shilliroke, Dunhani-Mascy, 
 Stock]>ort, and Kin<lerton : the last was held by the family of Venables, 
 which bore the title of Ijanm of Kinderton long before the head of it was 
 called to the House of Lords. The history of this imperium in imperio is 
 curious, and is given in detail in Ormerod's Cheshire, vol. i. The barons 
 spiritual are said to be eight as well as the temporal ones ; namely, tw'O 
 bishojis, Chester or Lichfield, and I'angor ; six abbots, S. Werburgh's, 
 Combcrmere, Stanlaw, Norton, r.irkenl)ea<l, and Vale-Iloyal. Ibid. pp. 
 I.)9, 150. The exact accuracy of the dutails is questionable. 
 
 - Tlie organisation of Durham was not (piite so complete as the alleged 
 palatine system of Chester: the barony of Hilton is the only one of any 
 note among the tenancies-in-chief. ]}ut it had its whole array of officers, 
 courts of justice and record, which were kejit in the name of the bishop 
 until 1836. See above, p. 271, note I. 
 
 ^ See above, p. 271. This earldom has many marks of a palatinate, but 
 became extinct too early to furnish conclusive evidence of its character. 
 
 * Ord. Vit. v. 13.
 
 XI.] Baronies. '^6^ 
 
 (lucstion^ : anil it is possible that if we posses^sed more abundant in otlier 
 
 cases, 
 materials, it would be found that the reduction of great terri- 
 torial jurisdictions to merely titular dignities was gradually 
 worked out by the Norman kings, instead of being, as is 
 generally presumed, a principle of policy fully developed by 
 the Conqueror himself. The dignity of earl was, it is scarcely Succession 
 necessary to say, hereditary ; but the heir did not acquire the 
 formal rank until he was invested, although he might obtain 
 possession of his lands, and even his share of the pi'ofits of the 
 shire-moots, before he received the sword ". There are instances 
 moreover of a division of the inheritance of the great earls : Roger 
 of Montgomery, who held the counties of Shropshire and Sussex, 
 left his Norman fiefs to his elder son, and the English to the 
 second^. The first eai*l of Leicester, who was also count of 
 Meulan, divided his estates between his twin sons, who founded 
 the houses of Meulan and Leicester respectively * ; and the earl- 
 dom of Lincoln perhaps owes its origin to a similar partition^. 
 
 The title of baron, unlike that of earl, is a creation of the The baron. 
 Conquest. The word, in its origin equivalent to homo ®, receives 
 under feudal institutions, like liomo itself, the meaning of vassal. 
 Homage (hominium) is the ceremony by which the vassal be- 
 comes the man of his lord ; and the homines of the king are 
 barons. Possibly the king's thegn of Anglo-Saxon times may 
 answer to the Norman baron ; both terms have somewhat the 
 
 * For example, William Fitz-O.sbern legislated for Herefordshire : 
 ' Manet ad hunc diem in coniitatu ejus apud Herefordiara, lei;um quas 
 Btatuit iiiconcussa fii'mitas, ut nullus miles pro qualicumque commisso plus 
 septem solidis solvat; cum in aliis provinciis ob parvani occasiunculam 
 in tran<gressione praecepti herilis viginti vel viginti quinqi;e pendantur.' 
 W. Malniesb. G. R. iii. § 256. Tlie earldom of Northumberland was also 
 more like a viceregal appointment than a hereditary dignity ; see Courthope, 
 Hist. Peerage, p. li. 
 
 * See Hoveden's account of the investiture of William Marshall and 
 Geoffrey Fitz-Peter at John's coronation, vol. iv. p. 90. 
 
 ' Ord. Vit. V. 14. * Ibid. xii. 33. ' See above, p. 363. 
 
 * It is explained as connected witli the word wcr (used in MY'rgild\ a 
 man. It occurs as early as A.D. 744 in the form of paro, meaning a free- 
 man, and is used in the Leges Alamannorum as opposed to a slave ; more 
 generally however for man generally. Waitz, D. V. G. ii. 1S3, iv. 281. 
 It does not occur in the writin^is of Englishmen before the Conquest ; but 
 appears in Domesday and in the charter of Henry I in its recognised mean- 
 ing of a tenant-in -chief of the king. See Ellis, lutrod. i. 44, 45.
 
 0,66 
 
 Constitutional Ilistorj/. 
 
 [chap. 
 
 same iudefiniteness, being applied sometimes to a personal i-e- 
 lation, sometimes to a territoi-ial one. In one aspect, any of the 
 king's dependents are harones ; in another, tlie barony signifies 
 a definite number of knights' fees ^ But as it has been found 
 impossible to reduce the territorial baronies to any fixed area of 
 extension, it is probable that the term involves, from its first 
 entrance into English history, nothing more than the idea of 
 Different roj^al vassal or tenant-in-chief '*. Of these there were many 
 
 ^rfldcs ill tli6 
 
 baronage, grades, besides the great distinction of majores and minores 
 which appears in Magna Carta ^ ; they varied according to 
 personal qualifications, official duties, and extent of property ; 
 some received special invitation, were summoned ' propriis 
 nominibus ; ' others not. The baron, as possessor of one 
 manor or of many, had a territorial jurisdiction of a limited 
 sort ; and when he possessed by royal gi-ant the profits of 
 the hundred in which his castle was situated, he acquired 
 an hereditary magistracy somewhat analogous to that of the 
 earl ; but no such power was attached to the barony by itself. 
 As lord of his manoi's, he had his court of tenants in each : he 
 might be great enough to have a body of personal counselloi's, 
 
 Xature of 
 th. courts 
 of the 
 barons. 
 
 * In the Modus fenencH ParliamcnUim a baronj' is said to contain thirteen 
 knights' fees and a third : the relation between kniL^ht, baron, and earl 
 being the same as that of the shilling, mark, and pound ; which is the pro- 
 portion of their respective reliefs in some copies of Magna Carta; Select 
 Charters, p. 193 ; Blackstone's Charters, p. 38, But this rule is quite 
 arbitrary ; there was no such proportion. On the Scottish and Irish 
 measurements wliich are called baronies, see Robertson, Essays, pp. 133 s(]., 
 142 sq. 
 
 -' On the history of the disputed question of barony see Hallam, Middle 
 Ages, iii. 6 sq. Selden maintained that all tenants-iii-chief by knight- 
 service were barons ; Madox that there was an original but undetermined 
 difference Vjetween tenure by barony and tenure by knight-service. See 
 also Giieist, Verwalt. i. 270. 
 
 ■' The distinction of majores and minores barones, although it appears 
 jiLihaps in legal phraseology first in the Dialogus de Scaccario and Magna 
 Carta, is in usage and language much earliei*. Gncist ])oints out tliat in the 
 army the difference betwet^n the single knight and tlie leader of 50 or 25, in 
 the Exchequer the difference of relief between a hundred shillings for the 
 knight and a hundred marks for the baron, in the court and in the sliire- 
 rnoot, tile interval between the two classes must have made itself apparent. 
 DialoguH de Scacc. ii. 10. It may indeed be fairly conjectured that the 
 land-owners in Domesday who jiaid their relief to the sheriff", those who held 
 six manors or less, and those who paid their relief to the king, stood in the 
 same relation to one another. See Spence, Equitable Jurisdiction of Chancery, 
 i. ji. 40; and above, p. 157, note I ; and on the special summons, p. 567 below.
 
 XI.] The Kmjliis. ?,6'] 
 
 stewards, chamberlains and constables. In a very few cases he 
 possessed a hereditary sheriffdom, but this was probably never 
 directly attached to a territorial barony, although, as both were 
 hereditary, they might descend for many generations together. 
 
 The lowest class of tenants-in-chief who are likely to have TliekniKiiis. 
 presented themselves in the national council are the knights \ 
 who are included in general under the class of barons, but de- 
 mand some further notice. In ti-acing the history of the thegn The knight 
 
 . is the sue- 
 
 in au earlier chapter ^, the knight has been described as sue- cessor ot 
 
 ,. - 1 ^ , 1 • . . TT • 1 thuthef:n. 
 
 ceedmg after the Conquest to his position. He occupies nearly 
 
 the same extent of land, and in several respects has an analogous 
 history. But the knight proper, at least of the twelfth century, 
 is not merely the possessor of a certain number of hides of land, 
 which he holds by the tenure of chivalry, •' per loricam,' or as a 
 * fief de hauberc ; ' he has undergone an honourable initiation in 
 the use of arms, which distinguishes him from the unwarlike 
 tenant in socage. The practice of ' dubbin" to knighthood ' may Institution 
 
 o V & ft y ofkniglit- 
 
 have had a corresponding usage in Anglo-Saxon times * ; it hood. 
 certainly is nowhere mentioned as a Norman innovation, and it 
 is unlikely that Ethelred, Canute, or Edwai-d the Confessor, who 
 had great acquaintance with foreign usages, should not have in- 
 troduced into England the institution of chivalry, which was 
 then springing up in every comitry in Europe. But the first 
 mention of it in our annals is in reference to the knighting of 
 
 ' C'niht is commonly used in the meaning of serrns, although it appears 
 occasinnally before the Cojiquest with a somewhat different application, 
 possibly equivalent to miles. In the guilds, in the monuments of which it 
 occurs, it is explained as 'young men,' but this is questionable. It had 
 acquireil its recognised sense by tlie middle of the twelfth century. Chron. 
 Sax. A.D. io86. 
 
 ^ Above, p. 156. 
 
 ' The story of Athelst.an's investiture by his grandfather Alfred is told 
 by William of Malmesbury. G. R. ii. § 133: 'Quern etiam praemature 
 niilitem fecerat donatum chlaniyde coccinea, gennnato Ijalteo, ense Saxo- 
 nieo cum vagina aurea.' The juactice is no doubt derived from primitive, 
 almost universal custom, althougl) only occasionally traceable in particular 
 countries. The knighthood of Charles the Bald liy his f\ither in S38 (V. 
 Ludovici, c. 59; Waitz, D. V. G. iv. 573) may have served as a p'ecedent 
 for Alfred. Palgrave regards Athelstan's knighthood as the precedent for 
 that of Richard Sans Peur, but, as it seems to me, with very little authority. 
 William the Gontjueror was knighted (militiae insignia recipiens) by the 
 king of France. W. ^lalmesb. G. R. iii. § 230.
 
 368 Constitutional History. [chap, 
 
 I'^stitutioii the Conqueror and his sons, when it appears to have had some- 
 hood, what of the character of a religious as well as of a legal rite ^ 
 Henry I was knighted by his father^ ; William Rufus is said to 
 have received his knighthood from Lanfranc * ; Henry II was 
 dubbed on his visit to England by his great-uncle King David ^. 
 But these instances seem to be examples only of a practice usual 
 in much lower ranks of society : and although the young aspirant 
 might seek lustre for his inauguration by receiving his spurs 
 from a distinguished warrior, it is not necessary to suppose that 
 the right of conferring it was restricted to a smaller body than 
 the knightly class itself. And thus the history of the institu- 
 tion may be referred to the primitive custom of investing the 
 youth in the full assembly of the tribe, by the hand of his king, 
 prince[)S, or father. Although in general no man would be re- 
 garded as entitled to the privileges of knighthood or allowed to 
 call himself a knight who had not been thus initiated, the whole 
 class of landowners who held by knight-service would be for 
 constitutional purposes comprised under the name of knights. 
 The dignity of knighthood was often bestowed on the skilful 
 warrior who had no qualification in land, and it was of course 
 possessed by the initiated members of the great military orders. 
 Here however we have only to notice those meml)ers of the 
 great fraternity of chivalry who as vassals of the king were 
 entitled to take their place in his solemn council. 
 
 Burghers There were, in some of the towns of the early Norman period, 
 
 and citizens ^ i ' 
 
 (Kciisionallj' elements of another class of vassals who may occasionally have 
 lii the '' •' 
 
 council. been brought up to attend the national gatherings ; the great 
 
 * John of Salisbury dcscribcH the ceremony iis used in the middle of the 
 twelfth century : ' Inolevit consuetude soleninin, ut, ea die qua quisquc 
 militari ciiigulo decoratur, ecclesiam aolemniter adeat, gladioque super 
 altare pcsito et oblato, quasi celebri profes.sioiie facta, seipsum obsequio 
 altari.s devoveat et gladii, id est, officii sui jugem Deo epomleat faniulatum.' 
 Polycraticu.s, vi. 10. 
 
 ■^ He is said by Ordericus Vitalia (viii. i) to have received his arms from 
 Lanfranc. This may have been so, but the Corqueror himself ' dubbade 
 iiis sunu Henric to ridere.' Chron. Sax. a.D. 1086. 
 
 ' W. MaJHiesb. G. H. iv. § 305. Abbots were forbidden to make knights, 
 in the council of London in 1 102 (Eadnur, ]>. 68). Thomas Piicket knijihted 
 the count of nuisnc.s (l)u Cange, s. v. Miles), and William bishop of Ely 
 knighlod Italpli I'ciuichanip aa late as II91. 11. Diceto, c. 664. 
 
 * Hen. Hunt. lul. 226.
 
 xr.] Attendance at Court. 369 
 
 men of London and York for instance. It is certain that on 
 several occasions the citizens of the capital took part in deliber- 
 ation. In the asseniMy at which the election of the Empress 
 Matilda took place, the ' Communio ' of the city of London was 
 heard pleading for Stephen's liberation ; but we have no evi- 
 dence for determining in what character they attended '. The 
 great citizens of Loudon would most of them l)e of knightly 
 rank, possessing qualifications in hind, and taking rank as 
 barons. The corporate character of the city constitution was 
 very grudgingly admitted, and although it is just possible that 
 some representative functions may have been discharged by its No trace of 
 
 . . o J represeiitii- 
 
 princiiml members who sat m their own personal risrht, it is tive mem- 
 
 , ,, , , . , . bersofthe 
 
 probable that the ' communio itself could only be heard by Norman 
 petition. The idea of representation which was familiar enough 
 in the local courts might be expected, in a constitution so en- 
 tirely based on land tenure, to appear in the central council as 
 well. But it is not to be traced in existing records, and, when 
 it does appear later, it is in that intermittent, growing, and 
 struggling form which shows it to be a novelty. Of any repre- 
 sentation of the freeholders in general there is not even a sus- 
 picion. The sheriffs would, as being barons themselves, have 
 their places in the council, and might report the needs and 
 wishes of their neighbours, but as royal nominees and farmers 
 of the revenue, they could not be expected to sympathise deeply 
 with the population which they had to assess and to ojopress. 
 
 It is not to be supposed that the assemblies at which all, or Gcneml 
 even a large proportion, of the tenants-in-chief presented them- ^^IJ^^n- 
 selves were very frequent. The councils of Salisbury already not frequeiit! 
 referred to^ are perhaps the only occasions on which anything 
 like a general assembly was brought together. These were for 
 the special purpose of taking the oaths of fealty, and comprised 
 other elements than the tcnants-in-chief The ordinary courts 
 or councils were of a much more limited character, seldom con- 
 taining more than the bishops and ' proceres,' a term that would 
 include only the earls and greater barons. These courts were held Tlie iBrcat 
 On the great Church festivals, Christmas, Easter, and "Whitsun- courts. 
 
 * See above, p. 329. » See above, p. 358. 
 
 B b
 
 370 
 
 Constitutional History. 
 
 [chap. 
 
 Places of 
 council. 
 
 tide : generally at the great cities of southern England, London, 
 Winchester, and Gloucester^. The king appeared wearing his 
 crown ; a special peace was maintained, necessarily no doubt in 
 consequence of the multitude of armed retainers who attended the 
 barons^ ; and magnificent hospitality was accorded to all comers. 
 ' Thrice a year,' says the Chronicle, ' King "William wore his 
 crown every year that he was in England ; at Easter he wore it 
 at Winchester, at Pentecost at Westminster, and at Christmas 
 at Gloucester. And at these times all the men of England were 
 with him, archbishops, bishops and abbots, earls, thegns and 
 knights^.' A similar usage was observed by his sons, although 
 neither he nor they regularly followed the rotation thus de- 
 scribed*; they called together their barons whenever and 
 wherever they pleased ; and many of their courts were held at 
 theii' forest palaces in AViltshire and Berkshire. Under Henry I 
 the number of places of council was largely increased, and the 
 enlarged accommodation afforded by the growing monasteries 
 was utilised. Councils were held at Windsor, Rockingham, 
 Woodstock, among the forest palaces ; at Oxford, Northampton, 
 and other midland towns ^ The cessation of the solemn courts 
 under Stephen was regarded by Henry of Huntingdon as a 
 fatal mark of national decline^. 
 
 125. These assemblies must be regarded as legally possessed of 
 and consent the full powcrs of the old witcnaoemot : but the exercise of 
 
 of the . * ^ 
 
 baronage, their powers depended on the will of the king, and under the 
 
 ' See above, p. 268. 
 
 ^ Sec above, p. 181. Tbe crown was placed on the king's head by the 
 archl)i>hop, on these occasions in his own clianiber, before he walked in pro- 
 cession. See Eadnier, lib. vi. p. i_:^7 ; Hovcdon, iii. 59 ; Girvase, c. 1587. 
 
 ^ Chron. Sax. a.d. 10S7 ; W. Maimesb. Vit. S. Wulfst. lib. ii. c. 12 : 'Rex 
 Willelmus consuetiidiiicin iniluxcrat, qiiani succcssores aliquam diu tritam 
 postmodum consenesccre perinisere. Ea erat ut tcr in anno cuncti opti- 
 mates ad curiam convenirent de necessariis regiii tractaturi, siniulque visuri 
 regis ir.signi; (juoniodo itet gcniinato fastigiatus diadcniate.' The custoin 
 was restored by Henry 11, but di.suH(;d after the year ii,s8. Gneist, who 
 will not allow tlie continuance of the witenajeniot in any shape, or the 
 existence of a regular feudal court under the Norman kings, sees in these 
 assemblies only pageants whose Kplcn<lour would indemnify the magnates 
 for the absence of all real jjower. Verwaltungsrecht, i. 224. 
 
 ■* 'Quern morem convivandi piimus successor obstinate tenuit, secundus 
 omisit.' W. Mahnesb. (J. It. iii. § 279. 
 
 * See Hen. Hunt. fol. 220 sq. * Ibid. fol. 223. 
 
 Theory of 
 the coun^cl
 
 XI,] Judicial Proceedings in the Great Courts. 371 
 
 Conqueror and liis sons there are scarcely any traces of inde- 
 pendent action in them. Their legislative authority is admitted : 
 it is with their counsel and consent^ that William the Conqueror 
 amends the laws of the Confessor, and divides the ecclesiastical 
 from the secular courts ; Henry I mentions in the preamble to 
 his charter^ that he had received the crown by the counsel of the 
 barons ; with their consent he had retained the forests ; and it 
 was with the counsel of his barons that his father had amended 
 the laws of S. Edward^ ; Stephen, in the corresponding document, In legisla- 
 asserts his election by the clergy and the people ; but neither of 
 them distinctly declares the share of the council in the act thus 
 prefaced, and we have no other legislative records of the period. 
 
 The right of the council to join in taxation is nowhere dis- in tiuation. 
 tinctly stated : yet Henry I describes an aid as ' auxilium quod 
 barones niihi dedei'unf* ;' and it must be supposed that the king 
 would lay before his barons any plan for increasing the existing 
 burdens, and that such announcement would be regarded as 
 necessary for the validity of the exaction ; the silence of the 
 counsellors or their ready assent would be a matter of form. 
 
 The judicial proceedings which took place in the king's pre-lnjudi- 
 sence are frequently mentioned, but even here a question may be 
 raised as to the freedom of debate. It was by a judicial sentence 
 that Earls Waltheof and Roger were condemned ^ ; in a gi'eat 
 session of the king's court the bishop of Durham was tried in 
 1088* ; in a council at Salisbury in a.d. 1096 William of Eu had 
 
 ' Above, p. 277, note i. 
 
 " Ancient Laws, p. 215. Eadmer (Hist. Nov. iv. p. 94) mentions an edict 
 (indicto eilicto) for the punishment of criminal courtiers, issued by Henry I 
 'per consilium Anselmi et procerum regni,' the text of which is lost. 
 
 ' Statutes of the Reabn, i. 4. 
 
 * Chron. Abingd. ii. 113. The article of Henry's charter which relieves 
 the demesne lands of the military tenants, ' ab omnibus gildis et omni 
 opere,' seems also to imply that their consent was required <or any taxation, 
 althouj;h it does not involve an assembly called to urant it. See First 
 Report on the dignity of a Peer, pp. 38, 39 ; and compare p. 39S below. 
 
 * ' Judiciali seiittntia damnatos.' Flor. Wig. a.d. 1074. ' Censoribus 
 inter se sentientibus per plures iiiducias usque in annum [judiciuu)] prote- 
 latum est.' 'Post nuiltos tractatus reum esse mortis definitum est.' Ord. 
 Vit. iv. 15. The trial was at the Christmas court at Westminster; Chron. 
 Sax. A.D. 1075. Freeman, Norm. Conq. iv. 589. 
 
 * See below, pp. 440 sq. 
 
 B b 2
 
 373 Constitutional History, [chap. 
 
 his trial by battle and his cruel punishment^ ; in the same council 
 the king sentenced William of Alderi to be hanged, and the other 
 conspirators to be imprisoned; in a.d. 1102 Hemy I summoned 
 Robert of Belesme before his court, and alleged forty-five articles 
 of treason against him^; in a.d. 1130 Geoffrey de Clinton was 
 accused of treason in the Easter court at Woodstock^. In all 
 these, and numerous other cases which might be adduced, it is 
 clearly the full national assembly, and not the mere justices, 
 before whom the trial is conducted. The barons act as judges, 
 the king apparently gives the sentence, although in this respect 
 also he is open to advice. It was by the counsel of Hugh of Chester 
 Processor that William of Eu suffered mutilation*. The mode of trial 
 
 trial in the • 1 1 • i 
 
 council. was probably the same as in the lower courts, the accusation by 
 
 sworn witnesses, compurgation, ordeal and trial by battle^. On 
 
 one occasion, we are informed, the barons interfered so far as to 
 
 recommend William Rufus to show mercy ; it was by the advice of 
 
 his wise men that he spared the minor criminals in a.d. 1096*. 
 
 .Jurisdiction Matters of civil jurisdiction were also brought before these 
 
 ofthe . •• ... 
 
 national assemblies, although the determination in such cases would fall 
 
 councils in . e -y r\ • -n • 
 
 questions of to the lot of the more experienced lawyers of the Curia Regis or 
 Exchequer. A great council at Pedreda in the Conqueror's 
 reign determined the suit between the churches of York and 
 Worcester'', and a similar quarrel between the bishops of Llan- 
 
 ^ ' Octavis Epiplianiae apud Saresbiriam celebrate co7icilio.' Flor. Wig. 
 A.D. 1096. ^ Ord. Vit. si. 3, 
 
 ^ Hen. Hunt. fol. 220. David king of Scots took part in this trial : 
 ' Dum David Rex in curia Henrici regis caute judicium iiidagaret,' &c. 
 Ord. Vit. viii. 22. ■* Ord. Vit. viii. 23. 
 
 * Ordericua tells us that Roger of Hereford ■w;\s tried by the Norman 
 laws and sentenced to the forfeiture of binds .ind perpetual iniprisonment. 
 The same penalty must have followed if he had been tried by English law. 
 If the words refer to the method of procedure it is difficult to see what 
 difference there could have been between the Norman and the English law, 
 except in the use of trial by battle, which does not appear to have been 
 employed in the case. Ord. \ it. iv. i_i;. 
 
 • Ord. Vit. viii. 23 : ' Consultu Haf)ientum hujusniodi viros pepercit.' 
 
 '' Flor. Wig. A.D. 1070 : ' In consilio in loco qui vocatur Pedreda cele- 
 brato, coram rege .ac Doruberniae archiepiscopo Lanfranco, et episcopis, 
 abbatil)UH, coinitibus et primatilnis totius Angliae.' The dispute between 
 Yoi'k and (Jantcrbury was heard in an Easter court ; ' IJtenpie igitur in 
 Paschali soleninitate ad regem venit ibique prolatis in medium partiura 
 rationibua aententiam de negotio regalis curia dedit,' V. Lanfr. c. il .
 
 XI.] Business of the Great Courts. 373 
 
 daff and S. David's came before the court more than once in the 
 latter years of Henry I^ In a.d. 1126 the king, by the advice 
 of his barons, granted the custody of Rochester Castle to the 
 arclibishop of Canterbury-. The proceedings of Stephen against 
 the bishops, impolitic as they were, were conducted with a sha- 
 dow of legality in a similar assembly^. 
 
 Most, however, of the proceedings of the national council at General 
 this period, of Avhich any record is preserved, come under the 
 head of general business. The nominations of bishops were 
 always made on these occasions until the right of canonical Elections 
 election was admitted by Henry I * : and even then the election in the 
 took place in the king's court, often at the great festivals when councils, 
 the majority of the barons were present, and when the consecra- 
 tion and the investiture could be celebrated with equal pomp ^. 
 The ceremony of conferring earldoms and knighthood was a 
 public business of the court", as well as the witnessing of the 
 homages paid to the king or his presumptive successor '^. The 
 foreign and ecclesiastical policy of the king was here canvassed 
 without much jealousy or intimidation*; war and peace, royal 
 
 * Hen. Hunt. fol. 220 : ' Po>t Pascha (a.d. 1132) fuit magnum placitum 
 apud Londoniam, ubi de pluribus quidem et niaxime de diseordia episcopi 
 Sancti Davidis et episcopi Claniorgensis de finibus parochiaium suarum 
 tractatum est.' The discussion was continued in a conventus at London, 
 and another at Winchester. This suit is described in the Cont. Flor. Wig. 
 (A.D. 1128) as discussed 'in generali concilio' some years before. 
 
 * Cont. Flor. Wig. a.d. 1126 : ' Consilio baroniim suorura.' 
 ' W. Midmesb. Hist. Nov. ii. § 20 ; Gesta Stephani, p. 49. 
 
 * Instances of tliis proceeding are very numerous : e.g. ' in Nativitate 
 Domini curiam suam Ghiwornae tenuit, ubi tribus suis capellanis .... 
 dedit praesulatuin.' Flor. Wig. A.D. 1085. 
 
 * Two instances will suffice here. Umier Henry I, after the .settlement 
 with Anselm, — ' Willt;Imus ... ad archiepiscopatum Cantuariensem Gla- 
 womae ubi in Purificatione Sanctae Mariae rex tenuit curiam suam eligitur;' 
 Cont. Flor. Wig. a.d. 1123; under Stephen, after tiie grant of free election 
 to the clergy, — ' Sciatis rae dedisse et concessisse Rodberto episcopo Batho- 
 niae episcopatum Bathoniae .... canonica prius electione praecedente et 
 communi vestro (^sc. archiepiscoporiun, episcoporum, abbatuni, comitum, 
 viceomitum, baronuni et omnium tidelium) consilio, voto et favore prose- 
 quente .... apud Westraonasterium in geueralis concilii celebratione et 
 Pascbalis festi solemnitate.' Foedera, i. 16. 
 
 ® See above, pp. 363, 368. 
 
 ' Flor. Wig. A.D. 10S6, 1 1 16, 1 1 26. 
 
 * Henry I writes to Anselm (Epp. Ans. iii. 94), 'volo legatos meos 
 Roniam mittere et consilio Dei et baionum meorum domino papae inde
 
 374 Constitutional Hidory, [chap. 
 
 Election of marriages ^, and the like. Of the shai'e taken by the baronage 
 in the election of the king enough has been said already : it 
 was a right which each sovereign in turn was' politic enough 
 to acknowledge, and of the reality of which he was so far con- 
 scious that he took every means of escaping it. The election 
 of Henry I and Stephen, the claim put forward to elect the 
 empress, the acceptance of the heir of King Henry and the 
 rejection of the heir of Stephen, place this j^rerogative of the 
 nation, however indifferently the council which exercised it 
 represented the nation, upon an incontestable basis. 
 
 Ec-ciesiasti- The power of the clergy was so strong durinfj these reigns 
 ciil business ^ pit.- • 
 
 intheereat that we must not expect to find ecclesiastical questions treated 
 councils. . , 1 
 
 in the secular councils except under the greatest reserve. It 
 
 must however have been a very large gathering that accepted 
 
 the conditions made by Henry I and Anselm in 1107^: in the 
 
 following year we find the canons of a Church council at London 
 
 passed in the pi-esence of the king, with the assent of all his 
 
 barons'; in A.D. 1 1 27, after a similar council, Henry granted his 
 
 assent to the statutes passed in it, and confirmed them ' by his 
 
 royal power and authority*,' on the principle of his father's policy. 
 
 Coincidence On this and some other occasions we find distinct traces of a 
 
 of baronial 1 • 1 ^ t ^ 1- i • • 1 1 • 
 
 and episco- usage which forms a peculiar mark 01 our ecclesiastical history j 
 the king holds his court at Westminster, whilst the archbishop 
 celebrates his council in the same city ; the two assemblies toge- 
 ther form a precedent for the coincident summoning of parlia- 
 ment and convocation in later days''. The special significance 
 
 respondere.' See also lib. iv. epp. 4, 6. The see of Ely was founded by 
 the king with the counsel of the kingdom, ' regi et archiepiscopo caeteiisque 
 principihus visum.' Eadmer, ]). 95. 
 
 ' Eadmer, lib. vi. p. 136 : 'Rex . . . consilio Radulfi Cantuariorum pon- 
 tificis et principum regni quos omnes . . . congregavit, decrevit sibi in 
 uxorem Atheleidem . . . .' See also Hen. Hunt. fol. 220. 
 
 * ' Jn kalendis AugUHti conventuH omnium episcoijorum, abbatura et 
 procerum regni Lundoniae in palatio regis factus est.* Flor. Wig. A.D. 
 1107 ; Jiadmer, p. 91. 
 
 ' ' Eiiiscopi Ht.-itiicrunt in praesentia ejusdem gloriosi resis Henrici, 
 anaensu omnium haronum suorum.' Flor. Wig. a.d. 1108 ; Eadmer, p. 95. 
 
 * ' AuditiH coricilii gestis assensum praebuit, auctorit;ite rogia et potestate 
 concessit et confirmavit statuta concilii.' Cont. Flor. Wig. a.d. i 127. 
 
 * In 1 102, 'Celel)ratum ont concilium in ecclesia heati Petri in occidentali 
 parte juxta Lundoniam sita, commuui consensu episcoporum, et abbatum 
 
 jial councils.
 
 x.r.] Ucclesiastical Business. 375 
 
 however of the king's ratification of the canons of 1127 lies 
 in the fact that the archbishop had just returned from Rome, 
 invested with that k^gatine character which was so often a 
 stumbling-l)lock both in civil and ecclesiastical affairs. The 
 king had succeeded in obtaining the office for the first time for 
 the primate, with whom he was acting in concert ; the canons The canons 
 
 . ... OlA.D. 1127. 
 
 of the council liad thus the tlu'eefold sanction of the national 
 C^hurch, the King, and the Holy See, without any concession 
 being made by either as to the necessity of confirmation by the 
 other two. These proceedings completed the harmony of Church 
 and State, which was one of the great objects of Henry's policy, 
 and which was rudely broken by the quarrels of Stephen. 
 
 In the last reign of the period the ecclesiastical councils claim Ecclesiasti- 
 and exert more real power than could be decently claimed for of Stephen's 
 such assemblies of the barons as either party could bring toge- secular 
 tlier. The assembly at Winchester in which Matilda was elected 
 was a synod of the clergy, who were present in three bodies, 
 bishops, abbots, and archdeacons, and were separately consulted ^ ; 
 but it was largely attended by the barons of the party. The 
 council of A.D. 1151, in which Stephen, Eustace, and the barons 
 appeared, and in which both parties appealed to the pope for 
 the settlement of their claims, was primarily an ecclesiastical 
 council summoned by archbishop Theobald in his capacity of 
 
 et principum totius regni : in quo praesedit Anselmus. . . Huic conventui 
 iitFueruut, Anselmo archiepiscopo peteute a rege, primates regni, qua^.enua 
 quicquid ejusdem concilii auctoritate decerneretur iitriusque ordinis con- 
 cordi cura et soUicitudine ratura servaretur ; ' Eadiner, p. 67. Florence's 
 account is based on this ; but lie adds, ' In festivitate S. Michaelis rex fuit 
 Lundoniae apud Westniouasterium et cum eo omnes principes regni sui, 
 ecclesiastici et saecularis ordinis, ubi duos de clericis duobus episcopatibus 
 investivit . . , ubi etiani Anselmus tenuit magnum concilium de his quae 
 ad Ohristianitatem pertinent.' The case of 1127 is even more distinct: 
 ' Rex anxiatus concilium tenuit ad Roijationes apud Londoniam, et Willel- 
 mus archiepiscopus Cantuariensis similiter in eadem villa apud Westmin- 
 ster.' The king's assembly was in th ■ palace, the archbishoji's in the 
 church : the date of the latter is given by the Continuator of Florence, May 
 13-16, the Friday. Saturday, Sunday, and Monday after the Rogation days. 
 ' William of Malme>bury was present and describes the council accu- 
 rately : 'Post recitata scripta excusatoria quibus absentiam suam quidam 
 tutati sunt, sevocavit in partem legatus episcopos, habuitque cum eis arca- 
 num consUii sui ; post mox abbates, postremo architUaconi convocati. . . 
 Hist. Nov. iii. § 43.
 
 376 
 
 Constitutional History. 
 
 [chap. 
 
 the kitig's 
 court and 
 Exchequer. 
 
 legate ^. It is in fact difficult to discover after the fourth year 
 of Stephen any assembly to which the name of national council 
 can be given, although, in the confused accounts of the final 
 pacification, we may detect evidence that proves such assemblies 
 to have been held. The abeyance however of all the constitu- 
 tional machinery at this period, and the almost irreconcileable 
 chronological difficulties which meet lis in the annals, may well 
 excuse some hesitation in forcing a genei'al conclusion from 
 these precedents. 
 
 126. The exact relation of the administrative system to the 
 national council is not very easy to define ; for the lawyers and 
 Eelation of historians give no glimpse of a theory of government, and the 
 council to documentary evidences of the Norman period are by no means 
 abundant. It would be rash to affirm that the supreme courts 
 of judicature and finance were committees of the national 
 council, although the title of Curia belongs to both, and it is dif- 
 ficult to see where the functions of the one end and those of the 
 other begin. And it would be scarcely less rash to regard the 
 two great tribunals, the Curia Regis and Exchequer, as mere 
 sessions of the king's household ministers, undertaking the 
 administration of national business without reference to the 
 action of the greater council of the kingdom. The historical 
 development of the system is obscure in the extreme. The 
 Conqueror, as duke of Normandy, had no doubt a high court 
 of judicature and a general assembly of his barons; Edward the 
 Confessor had his national witenagemot, which likewise exercised 
 the functions of judicature; he also, as we must infer from 
 Domesday, had a centi'alised system of finance, a tieasury 
 with its staff of keepers and assessors. How much of the new 
 administrative machinery was imported directly from Normandy, 
 how mucli was English, how much derived its existence from 
 the juxtaposition of the two, we have to decide on conjecture 
 rather than on evidence ; and the materials for answering the 
 
 ' ' Annoxvi"'. Tc(>l);il(lusCantuarionsi.s archicpisco))Uset apostolicae sedis 
 legatuH teiiuit concilium gcncrale apud Loiidoniani in media Quadra- 
 gesima, ul)i rex HtepliaiiUH et filiun huus KustacliiuH et Angliae proceres 
 interfuerunt, totuuKjiie illud coiiriliuni novis appellationibus infreuduit.' 
 Hen. Hunt. fol. 226.
 
 XI.] The Exchequer. 377 
 
 question, which concerns still wider generalisations, will be given 
 further on. It may be enough here to note, that whereas under 
 William the Conqueror and William Rufus the term Curia 
 generally, if not invariably, refers to the solemn courts held 
 thrice a year or on particular sunnnons, at which all tenauts-in- 
 chief were supposed to attend ', from the reign of Henry I we 
 have distinct traces of a judicial system, a supreme court of Central 
 
 system of 
 
 justice, called the Curia Regis, presided over by the kuig or iuiministra- 
 
 . . . , ,,,... 1 tion from 
 
 justiciar, and containing other judges also called justiciars, the the reign of 
 chief being occasionally distinguished by the title of ' summus,' 
 ' magnus,' or ' capitalist The same body also managed the assess- 
 ment and collection of the revenue, and for this purpose had a 
 separate and very elaborate organisation, through the history 
 of which the chai'acter of their judicial work is chiefly made 
 intelligible ; and which may accordingly be stated fii'st. 
 
 The Exchequer^ of the Norman king's was the coui't in which TheKx- 
 ^ _ _ ° chequer. 
 
 the whole financial business of the country was transacted, and 
 as the whole administration of justice, and even the military 
 organisation, was dependent upon the fiscal officers, the whole 
 framework of society may be said to have passed annually under 
 its review. It derived its name from the chequered cloth which 
 covered the table at which the accounts were taken ^, a name 
 
 * This of course is not in exact agreement with Gneist's view. He holds 
 that only the great magnates ever attended. It is clear however that on 
 some occasions a large proportion of the landowners were present even in the 
 Norman reigns, and under Henry II these assemblies are distinctly courts 
 of feudal tenants-in -chief, from the ver^- first years of the reign. It seems 
 far more probable that the earlier assemblies were constituted on the same 
 principle, than that that kin^r should begin his reign by a violent iimova- 
 tion. Of course, as a rule, only the great barons would take the trouble or 
 be at the cost of attending. It is of tiie greatest importance in all our 
 early history to remember that attendance at courts and councils was not 
 regarded as a privilege, but as a burden ; suit and service were alike 
 onerous. 
 
 ^ The contemporaneous authorities on the Exchequer are the Pipe Rolls, 
 and the Dialogus de Scaccario, a work on the subject written by Richard 
 bishop of London the Treasurer, who was son of Bi.shop Niijel the Treasurer, 
 and great-nephew of the justiciar Roger of Salisbury. The great work of 
 Madox, the History of the Exchequer, furnishes an enormous amount of 
 illustrative matter. 
 
 ' Dialogus de Scaccario, i. i : 'Pannus . . . nigervirgis distinctus distau- 
 tibus a se virgis vel pedis vel palmae extentae spatio.'
 
 ^yS Constitutional History. [chap. 
 
 which suggested to the spectator the idea of a game at chess 
 between the receiver and the payer, the treasurer and the sheriff. 
 As this name never occurs before the r^ign of Henry I^, and as the 
 tradition of the couii; preserved the remembrance of a time when 
 the business which took place in it was transacted ' ad taleas,' ' at 
 the tallies/ it seems certain that the date of complete organisation 
 should be referred to this period^. Under the Anglo-Saxon kings 
 we may presume that the treasure or ^ort/ was under the mauage- 
 The growth ment of a qerefa or hordere^, but although the mention of such 
 
 of the Ex- . . . 
 
 ' iiequer. an officer is not uncommon, there are no distinct traces of courts 
 of account : the taxes were collected by the sheriffs and other 
 reeves, and the treasure was preserved in the palace : some 
 
 * The argiiments for a Norman Exchequer (eo nomine) existing earlier 
 than the English are of no account. There is no genuine mention of it 
 before the reign of Henry II. The supposed mention of tlie Exchequer 
 of Normandy in a record of 1061 (Gneist, Verwalt. i. 194) is a mistake. 
 But the subject will be noticed further on. 
 
 * As the roll of 31 Henry I is still in existence, it seems quite justifiable 
 to regard the Exchequer as a fully developed part of the Norman regime, 
 although a great deal of its political and constitutional importance belongs 
 to the perio'l of revival under Henry II. 
 
 ^ The word occurs in the laws of Athelstan, 'Cyninges hordera oththe 
 ure geref ena ; ' not however as the name of a great official. The author of 
 the Dialogus says that there were in his time some who referred the insti- 
 tution back to the English kings ; he does not agree Math this, because 
 there is no mention in Domesday-book of the ' blanch-femi.' Mr. Stapleton 
 liowever in the preface to the Rolls of the Norman Exchequer points out 
 that the ' blanch ferm ' has its origin in a state of things that did not exist 
 in Nonnandy, and was 'consequent upon the monetary sy>tem of the 
 Anglo-Saxons.' The argument is very technical, but q\iite conclusive. 
 The ' ferm ' or pecuniary payment made by the sheriffs was said to be 
 'blanched,' 'dealhatum,' when it had been tested Ijy fire, weiglied, and by 
 additional payment brought to the standard of the royal mint at Win- 
 chester. There was no such fixed standard in Normandy, and as the 
 bianchferm was an integral part of the English system, it is clear that it 
 could not have been derived from the Norman. Although the blanch- 
 fcrni is not mentioned in Domesday, the ferm is in many ])laces described as 
 settled in King Jvhvard's time. This seems to ])rovo the existence of 
 a central (bpartment of finance before the Conquest from whii.h the pecu- 
 liarities of tlie English E.xchefiuer were derived. It does not of course 
 follow tliat it bore the name, or that great improvements in it were not 
 effected by the Norman lawyers. But it satisfactorily disposes of the 
 statementH of (Jneist (Verwalt. i. 194) ami Brunner(8cliwurgericht, p. 150), 
 that the court of Exchequer was ijodily imported from Normandy. The 
 Sicilian Exchcqui^r, also quoted as an argument of the Norman origin, was 
 very jirobably organised by Master Thomas Brown, the English minister of 
 King Koger, wlio was, after liis return to his natale solum, placed in the 
 English Exchequer by Henry II. Dialogus, i. 6.
 
 XI,] The Sheriff's Accounts. 379 
 
 machinery for account and guardianship must be inferred. 
 
 Under the Conqueror and AVilliam Rufus the word ' fiscus' or 
 
 ' thesaurus ' is commonly used, and even under Heniy I the 
 
 word ' scaccarium ' is by no means of common occurrence. 
 
 The officers of the Exchequer are the great officers of the Officers of 
 
 household ; the justiciar who is the president, the chancellor, chequer. 
 
 the constable, two chamberlains, the marshal, and the treasurer, 
 
 with such other great and experienced counsellors as the king 
 
 directs to attend for the public service, and who share with the 
 
 others the title of Barons of the Exchequer. Amongst these, if 
 
 not identical with them, are the justices or ordinary judges of 
 
 the Curia Regis, who appear to be called indiscriminately ' jus- 
 
 titiarii ' and ' barones scaccarii.' 
 
 Twice a year, at Easter and at Michaelmas, full sessions were Sessions of 
 , , . . the Ex- 
 
 held in the palace at Westminster, attended by all the barons, chequer. 
 
 with their clerks, writers, and other servants, each of whom had 
 his assigned place and regular duties. Two chambers were used 
 for the transaction of business : the upper one, or exchequer of 
 account, was that in which the reports were received, and all the 
 legal negotiations carried on and recox'ded ; and the lower one, 
 or exchequer of receipt, in which the money was paid down, 
 weighed, and otherwise tested^ The record of the business 
 was preserved in three great rolls ; one kept by the treasurer, 
 another by the chancellor, and a third by an officer nominated 
 by the king, who registered tlie matters of legal and special 
 importance ^ The rolls of the treasurer and chancellor were 
 duplicates ; that of the former was called from its shape the 
 great roll of the Pipe, and that of the latter the roll of the 
 Chancery. These documents are mostly still in existence. The The rolls of 
 Pipe Rolls are complete from the second year of Henry II, and chequer, 
 the Chancellor's rolls nearly so. Of the pi'eceding period only 
 one roll, that of the thirty-first year of Henry I, is preserved, 
 and this with Domesday-book is the most valuable store of in- 
 formation which exists for the administrative history of the age. 
 The financial reports were made to the barons by the sheriffs of 
 
 ^ Dialogus, i. 2. 
 
 ' Ibid. i. 5, 6 ; Select Charters, pp. 170, 175, 177, iSi.
 
 380 Constitutional History. [chap. 
 
 System of the counties. At Easter and Michaelmas^ each of these magistrates 
 account. , . . , , 
 
 produced his own accounts, and paid into the Exchequer such 
 
 an instalment or proffer as he could afford, retaining in hand 
 sufficient money for cun-ent expenses. In token of receipt a tally 
 was made ; a long piece of wood in which a number of notches 
 were cut, marking the pomids, shillings, and pence received ; 
 this stick was then split down the middle, each half contained 
 exactly the same number of notches, and no alteration could of 
 course be made without certain detection^. At the Michaelmas 
 audit these tallies were produced, and the remainder of the 
 accounts made up. If the sheriff were able to acquit him- 
 self entirely, he began the new year without arrears ; if not, 
 a running account was kept by the same primitive method. 
 Particulars The particulars accounted for by the sheriffs afford us a complete 
 
 of account: r j 1 
 
 (i)Theferm yiew of the financial condition of the country. The first item is 
 
 of the ^ _ '' 
 
 county. the ' firma ' or ferm of the shire ^. This is a sort of composition 
 for all the profits arising to the king from his ancient claims on 
 the land and from the judicial proceedings of the shire-moot : 
 the re,nt of detached pieces of demesne land, tlie remnants of the 
 ancient folkland ; the payments due from corporate bodies and 
 individuals for the primitive gifts, the offerings made in kind, or 
 the hospitality, — ^\& feorm-fultum, — which the kings had a right 
 to exact from their subjects, and which were before the time of 
 Domesday generally commuted for money ; the fines or a portion 
 of the fines paid in the ordinary process of the county courts, 
 and other small miscellaneous incidents. These had been, soon 
 after the comi)osition of Domesday, estimated at a fixed sum, 
 which was regarded as a sort of rent or composition at which 
 the county was let to the sheriff, and recorded in the Boiulus 
 Exactorius ; for this, under the name of ferm, he answered 
 
 ' I)i.aloj;^i8, ii. 2 ; Select Cliarters, pp. 204, 205. 
 
 ^ Madox, Hist. Exch. |). 708. The fire which (lestrnycd the old Houses 
 of I*arli;iiiieiit is Biiid to have originated in the burning of the old Ex- 
 chequer tallies. 
 
 " The farm, ferm, or firma, the rent or composition for the ancient feorm- 
 fultum, or provision payahlo in kind to the Anglo-Saxon kings. The history 
 of the word in itH Erench form would he interesting. The use of the word 
 for a pecuniary payment is traced long hefoic tlie Norman Conquest ; 
 Stapleton, i. p. xiv. On the Kotulua Exactoriua, see JDiaiogus, i. c. ibi.
 
 XI.] The Sheriff's Accounts. 381 
 
 annually ; if his receipts were in excess, he retained the balance 
 as his lawful profit, the wages of his service ; if the pro- 
 ceeds fell below the ferm, he had to pay the difference from 
 
 his own purse. If land chargeable with these sums fell out Sources and 
 »,,.., , . , , burdens of 
 
 01 cultivation, he was excused a proportionate amount under the ferm. 
 
 the head of waste ; if new land was brought under tillage, 
 
 he had to account for the profit under the title of increments 
 
 Before rendering this account, the sheriff discharged the king's 
 
 debts in the shire, paid the royal benefactions to religious 
 
 houses, provided for the maintenance of stock on the crown lands, 
 
 the expenses of public business, the cost of provisions supplied 
 
 to the court, and the travelling expenses of the king and his 
 
 visitors incurred within his district^. The payments had been 
 
 long made in kind, and even in the reign of Henry II old men 
 
 remembered the corn and cattle brought up to the court as the 
 
 tribute of various shires ^ ; horses, hounds, and hawks were still 
 
 received at a settled valuation, in payment of debt or fine ■*. 
 
 The next item in point of importance is the Danegeld, a tax (2) The 
 
 which had assumed in Norman times the character of ordinary 
 
 revenue, and which, like the ferm, was compounded for by the 
 
 sheriff at a fixed sum. This tax had been increased heavily by 
 
 William the Conqueror : in a.d. 1084 it had been trebled''; six 
 
 shillings were exacted from each hide of land, instead of two, 
 
 the usual sum raised under the Anglo-Saxon kings. It may be 
 
 reasonably inferred that the fixing of the sum of the Danegeld 
 
 for each county was one of the results of the Domesday Survey ; 
 
 and it must not be understood that the sums accounted for 
 
 under this head afford any clue to the extent of laud in culti- 
 
 * Madox, pp. 225, 226. ^ DialogUR, ii. 6 ; Select Charters, pp. 212, 213. 
 ' Dialog-US, i. 7; Select Charters, p. 185. 
 
 * E. g. Ivo de Heviz pays five de.xtrarii, destriers or war-horses, that he 
 may have certain lands at fee-farm ; Pipe Roll 31 Henry I, p. 7 : Reginald 
 de INTu.scans pays one fiu/ntur, or coursing-dog, for the like jirivilege : ibid. 
 35 : William de Merlai, a palfrey ; p. 36 : Outi de Lincoln, a hundred 
 'Norrisc' hawks and a hundred gerfalcons; p. in. The fugator seems to 
 have been worth twenty shillings, p. 35 ; a hawk 40s., p. 47 ; a destiier 
 ft-om 40s. to £20, pp. II, 85. In Domesdaj% tlie count of Meulau 
 (Mellent) receives a large payment in honey as one of the dues of the 
 county. Abundant ill lustrations of this may be found both in Domesday 
 and in the Pipe Rolls. * Chron. Sax. A.D. 10S3.
 
 382 Constitutional History. [chap. 
 
 Exemptions vation. Monasteries possessed in many cases immunity from 
 
 and com- ■, 1 • ^ iii • ^ 
 
 pijsitions. Danegeld ; m other cases tney had special commutations ; a 
 hirge extent of land frequently ' defendit se,' that is, Avas held 
 responsible, or rated, as one hide ; and all persons employed 
 in the king's service were excepted from the impost. The 
 Danegeld was a very unpopular tax, probably because it was 
 the plea on which the sherifl's made their greatest profit ; and 
 it was accordingly made a point among the concessions won 
 from Stephen at the beginning of his reign. It was abolished 
 by Henry II, who however taxed the land in much the same 
 way under other names ; and was in very nearly the same form 
 reproduced under the title of carucage by the ministers of 
 Richard I. "With the Danegeld may be noticed another impost 
 
 'i\\entuciiium which fell in the time of Henry I on the towns chiefly, and 
 which, altliough it bore the feudal name of auxilium ^ or aid, and 
 answers to the later tallage, was probably the tax which repre- 
 sented in the cage of the towns the same demand as in the 
 country was met by the Danegeld. It seems, like the Dane- 
 geld, to have been a fixed sum payable annually. 
 
 (.-,) Proceeds A third head of ordinary or ancient national revenue com- 
 
 ofthe crown, prised the proceeds of the pleas of the crown; the fines and 
 other profits arising fi'om the trial of offences which had been 
 severed from the ordinary operation of the shire and hundred, 
 and which, although tried Ijcfore the sheriff in his character as 
 justice, were, so far as the fines were concerned, made to contribute 
 directly to the income of the king'^. Of tliese the most important 
 
 ' In the Pipe Roll of 31 Homy I, the auxilium burgi or civitatis is in 
 every case a roiiml sum, varying from £3, the auxilium of Wiiichcombe, to 
 £120, the auxilium of London. Besides these aa.cilia bnnjoriim there are 
 some sMi.all payments in Wilts and Berks called nnxilium comitatus, and in 
 Surrey, lissex, and Devon, au.rilium mtlitum. If these are not arrears from 
 a previous year, in which there m;iy iiave been some general impost of the 
 sort, they nmst be re,'arded as special i)ayments belonging to those counties. 
 An aiixiliam de miUtihus is mentioned in thi; Liber Niger, i. 56, where it 
 is said that when the king takes an auxilium of 20,5., th'- knights of William 
 of Avranches, in Kent, pay only 1 2n. ; if lie takes a mark, they pay 8». : 
 this seems however to bo a scutage. The auxilium riceromitis was a 
 different jiayment, made to the sheriff for his services. These auxilia must 
 be distinguished from the three feudal aids. 
 
 * Above, p. 187.
 
 XI.] Feudal Revenue. 383 
 
 is the murdrum, the fine payable, as has been already stated, 
 by the hundred in which a murder has taken place in case of its 
 failing to prove the slain man to be an Englishman. The com- 
 mixture of the populations had so far proceeded in the time of 
 Henry II that it was impossible to decide the question of nation- 
 ality, and all munlers were punished alike ^ With these may 
 be mentioned a wide class of amercements, some of which have 
 their origin in Anglo-Saxon and some in feudal customs ; of the 
 former are fines for non-appearance in the hundred and sliire 
 courts, and of the latter penalties for breach of forest law. 
 
 Under the head of feudal income ^ come all the items aris- (4) Feudal 
 
 income. 
 
 ing from the transfer of lands, reliefs, guardianship, marriage, 
 escheat, and other incidents ; the sale of public offices included. 
 This was of course a large and comparatively permanent source 
 of revenue. The arbitrary sums exacted under the name of reliefs 
 by William Rufus were one of the grievances which Henry I 
 in his coronation charter undertook to redress. We are not 
 able to discover how this promise was fulfilled, for although in 
 the reign of Henry II a regular arrangement appears to be in 
 force by which the relief of the knight's fee was five pounds, and Reliefs, 
 that of the barony one hundred, the corresponding payments in 
 his grandfather's reign are not to be brought under so simple 
 a principle^. It is however probable that a record of the 
 number of knights' fees in England had been made before the 
 death of Henry I, and that it was the basis of the computation 
 adopted by his grandson. Before this was done, the valuation, 
 where the payment was not altogether arbitrary, must have 
 been made according to the record of the hidage preseiTcd in 
 Domesday. And it may be observed, that whilst Henrj' I took, 
 
 ' Dialogtis, i. lO; Select Charters, p. 193. The payments on this head 
 are very various, even in the same hundred; see the Roll of 31 Henry I, 
 pp. 8, 9, &c. 
 
 ^ The five marks of feudal tenure (i) hereditary succession, (2) reliefs, 
 (3) wardship and marriage (4) aids, and (5) escheats, all receive abundant 
 illustration from the Roll of 31 Henry I. 
 
 ' Madox, Hist. Exch. p. 2i6sq. : e.g. under Henry II Hugh deChaucumb 
 pays £30 for a relief for six knights' fees. But the sums continue to vary 
 occasionally until settled by Magna Carta, which refers to the system 
 mentioned above, as the antiquum relcviuni: and the Dialogus descrilies the 
 relief of a b;iron as matter of special arrangement with the king : lib. ii. c. 10.
 
 384 Constitutional History. [chap. 
 
 Aids. as an aid for the marriage of his daughter, three shillings on 
 
 each hide', Henry II, on a lilie occasion, took one mark on the 
 knight's fee^. Whatever was the basis of rating, all the 
 feudal incidents would be accounted for in the same way. 
 Henry I may have taken an aid on the occasion of his son's 
 knighthood, as he did on his daughter's marriage, but of this 
 there is no record. The Pipe Roll of the thirty-first year of his 
 reign contains several notices of sums paid for permission to 
 determine suits connected with land, by covenant or by trial 
 by battle ; for leave to marry, to avoid answering the claim of 
 another claimant, for cancelling agreements of exchange, and for 
 other liberties which betray the existence of a good deal of legal 
 oppression. 
 
 The forest law, which, heavy as it was under William the 
 
 Exaction.s Conqueror, seems to have reached the extreme of severity and 
 
 under the tit 
 
 forest law. cruelty under Henry I, was also made a soui'ce of revenue. 
 
 The fines exacted by the justices under this system form a con- 
 
 sidei'able item in the accounts. 
 Sale of Among the great offices of the household which appear from 
 
 offices. 
 
 the Pipe Eoll to have been saleable are those of dapifer, marshal, 
 and chancellor. The last-mentioned ofiicer in a.d. 1130 owes 
 £3006 13s. \d. for the great seaP ; the office of treasurer was 
 bought by Bishop Nigel for his son for £400 ''. Inferior places 
 in the legal staff are also sold. In Norfolk, Benjamin pays 
 £4 5s. to be allowed to keep the pleas of the crown ^; in 
 Northumberland, Uiitred son of Waltheof makes a payment 
 for the gi'ant of sac and soc, and a similar transaction is re- 
 corded in Suffolk " ; John the Marshal jjays foity marks for a 
 mastership in the king's court, Humfrey Bohun four hundred 
 marks to be dapifer regis ^; Richard Pitz-Alurcd pays fifteen 
 marks that he may sit with Ralph Basset on the king's pleas 
 in Buckinghamf^hirc *. At the same time the officers of the 
 ancient courts are found purchasing relief from their rcspon- 
 
 ' Hen. Hunt. fol. 217. * Madox, Hist. Exch. p. 398. 
 
 ' Roll 31 Henry I, p. 140. * HiHt. Ellens., Auq-. Sac. i. 627. 
 
 ° Roll 31 Henry I, p. 91. " Il)i(l. p]). 36, 98. 
 
 '' Ibid. f). 18. Adam de Port pays £9 to be dapifer. Ibid. 
 
 ' Ibid. p. loi.
 
 XI.] Domesday Survey. 385 
 
 sibilities ; the /ttcZices and juratores of Yorksliire pay £100 
 that they may be judges and jurors no longer, anxious no 
 doubt to avoid the heavy fines exacted from them either for 
 non-attendance or for other neglect of duty ^. 
 
 The sum accounted for in the single Pipe Roll of the reign Gross 
 of Henry I, including all the debts and other gross receipts, the revenue, 
 is not less than £66,000 for the year. The exhaustive and 
 orderly character of the roll is in marked contrast with the 
 very scanty details of the similar accounts at the beginning of 
 Henry II's reign, when the whole sum accounted for is not 
 more than £22,000: and this fully confirms the statements of 
 the historians and of the writer of the Dialogus de Scaccario, 
 as to the ruinous state into which the machinery of govern- 
 ment had fallen under Stephen, 
 
 But it is not only in the department of finance that System of 
 this most important record illustrates constitutional histoiy, 
 and we must refer to it again in examining the framework 
 of the Norman judicature. Before doing this it will be ne- 
 cessary to recur to the Domesday Survey, which was not only 
 the general record of the royal revenue, but the rate-book of 
 valuation of all the land in the kingdom. The formation of 
 this record afi'orded a precedent for a rating system which 
 was of no small importance in its bearing on later history : and 
 it is not a little singular that a measure taken by the Con- 
 queror, in order to fix and make available to the utmost his 
 hold upon the country, should be the first step in a continuous 
 process by which the nation arrived ultimately at the power 
 of taxing itself, and thus controlling the whole framework of 
 the constitution and the whole policy of government. 
 
 The Domesday Survey was taken by officers appointed by The Domes- 
 the king, who visited the several counties, and called before 
 them all those persons of whom in ordinary times the county 
 court was composed. Tradition recorded that, when the Con- 
 queror wished to confirm the national laws, in order to obtain 
 a true report of those laws he summoned to his court twelve 
 elected representatives of each shire to declare upon oath the 
 
 * Roll 31 Henry I, p. 34. 
 C C
 
 386 Constitutional History. [chap. 
 
 ancient lawful customs ^ A similar plan was now adopted. 
 
 The Domes- The king's barons exacted an oath from the sheriff and all 
 
 the barons and Norman landholders of the shire ; every hundred 
 
 appeared also by sworn representatives, and from each township 
 
 Taken by the priest, the reeve, and six villeins or ceorls ^. On the de- 
 inquest. . _ 
 
 position or verdict of these jurors was drawn up the report 
 
 of the name of each manor or township, and its present and 
 
 late holder ; its extent in hides, the number of ploughs for 
 
 which it furnished work ; the number of homagers, ceorls or 
 
 villeins, cotters, and serfs ; how many freemen, how many soke- 
 
 men ; the extent of Avood, meadow, and pasture ; the number 
 
 of mills and fisheries ; the increase and decrease since King 
 
 Edward's time ; the several and collective values of every 
 
 holding. By this report an exhaustive register of the land and 
 
 its capabilities was formed, which was never entirely superseded ; 
 
 for although the feudal taxation was, within a century after, 
 
 A permanent based on the knight's fee instead of the hide, much of the 
 
 &S96S9l!Q.Gnt 
 
 general taxation continued to be assessed on the hide, and, the 
 number of hides which the knight's fee contained being known, 
 the number of knights' fees in any particular holding could be 
 easily discovered. Ranulf Flambard, as Ordericus Vitalis informs 
 us, attempted to reduce the number of acres contained in the hide 
 from the English to the Norman computation, and if he had suc- 
 ceeded the measure would have compelled a new assespmcnt ' ; 
 but as Domesday continued to be the ultimate authority for the 
 rating of the country, the attempt, if it were ever made, must be 
 understood to have failed. But the changes in the ownership 
 
 * Hoveden, ii. 218 ; Select Charters, p. 78. 
 
 * 'Hie subscribitur inquisitio terraruni, quo modo barones regis in- 
 quirunt, videlicet per sacramentum vicecomitis scirae et omnium baronura 
 et eorum Francigonariim, et totius centuriatus, presbyteri, pnaepositi, 
 vi. villanorum uniusciij usque villae. Deinde quomodo vocatur mansio ; quia 
 tenuit earn tem]>ore regis Eadwardi, quis modo tenet, qnot hidae, quot 
 carrucatae in dominio, (juot hominum ; quot villani, quot cotarii, quot 
 sei-vi ; quot iiberi iioniincs, (juot sochemanni ; quantum silvae, quantum 
 prati, quot pascuorum, (]uot niolcndina, quot piscinae ; <|uaiitum est ad- 
 ditum vel al)latum ; <|uantum valobat totum simul, ct (juaiitum modo ; 
 quantum \\i\ tpiisque liber homo vel sochemannus habuit vel liabet. Hoc 
 totum tripliciter, scilicet tem])ore regis Acdvvanli et quando rex Willelmus 
 dedit, et (juomodo sit modo ; ct si j)otest plus haberi quam habeatur.' Ely 
 Domesday, Doin. iii. 497. Henry of Huntingdon gives the connnissioners 
 the title of justitiarii ; fol. 212. ^ bee above, pp. 298, 302, 348.
 
 XI.] The Curia Regis. 387 
 
 of land, the formation of new forests, and the bringing of old 
 wastes into cultivation, must have made it difficult to secure a 
 fair apportionment of taxation ; and this compelled on the part Circuits of 
 of the exchequer proceedings which we find in close connexion of the Ex- 
 witli the provincial administration of justice. It is unnecessary adjust the 
 here to anticii)ate in detail what must be repeated under the 
 head of judicature : it is enough to remark that, as early as the 
 reign of William Rufus, questions of assessment were referred 
 by the crown to the report of the county court, and that in the 
 reign of Henry I the assessment and levying of taxation seems 
 to have formed one portion of the duty of the justices, who, 
 with the functions if not wnth the name of itinerant judges, 
 transacted the local business of the Exchequer in each shire \ 
 
 127. So intimate is the connexion of judicature with finance Royal justice 
 under the Norman kings, that we scarcely need the comments source of 
 of the historians to guide us to the conclusion, that it was 
 mainly for the sake of the profits that justice was administered 
 at all. Such no doubt was the principle upon which Ranulf 
 Flambard and his master acted. A deeper and more states- 
 manlike view probably influenced Henry I and his great 
 minister — the belief that a nation in which justice is done is 
 safer and more contented, and presents therefore an easier 
 and richer body to be taxed. But there is no reason to suppose 
 that Henry acted on any higher motive : the value of justice 
 depended in his eyes very much on the amount of treasure 
 with which it supplied him ; and accordingly there is not a 
 single fiscal or judicial measure of his reign by which light 
 is not thrown both on the Curia Regis and on the Exchequer. 
 
 The Curia Regis, the supreme tribunal of judicature, of which The Curia 
 the Exchequer was the financial department or session, was, judicial 
 as has been stated already, the court of the king sitting to 
 administer justice with the advice of his counsellors * ; those 
 
 ' See below, p. 390. 
 
 ' That William the Conqueror heard cauJ^es iu person we know from 
 Lanfranc's words in a letter (Ep. 19) addressed to Herfast bishop of 
 Elmham : 'Rex . . . praecepit utqueriinonia declericisabbatis Balduiui . . . 
 sopita remaneret, quo ad usque ipst- met ipsam causam audiret vel a lue . . . 
 audiri praeciperet.' Down to the reiyn of John the kings occasionally 
 administered justice in person ; Henry II very frequently. 
 
 C C 2
 
 3^8 
 
 Constitutional Hidory. 
 
 [chap. 
 
 The three 
 
 annual 
 
 courts. 
 
 Justices of 
 the Curia. 
 
 Place of the 
 officers of 
 the house- 
 hold. 
 
 counsellors being, in the widest acceptation, the whole body of 
 tenauts-in-chief, but in the more limited usage, the great officers 
 of the household and specially appointed judges. The great 
 gatherings of the national council may be regarded as full 
 sessions of the Curia Regis, or the Curia Regis as a perpetual 
 committee of the national council, but there is no evidence 
 to prove that the supreme judicature so originated. In the 
 more general meetings, as at the three annual placita, the king 
 wore his crown, and consulted, or made a show of consulting, his 
 vassals on all matters of state. The courts in the king's absence 
 were presided over by the chief or great justiciar, acting ' ex 
 praecepto regis' or 'vice sua'; 'in meo loco,' as the Conqueror 
 expressed it ^. The other persons who bear the title of justiciar, 
 the ordinary members, as they may be called, of the court, were 
 the same as those of the Exchequer ; the same persons who 
 acted as barons in the latter acted as justices in the former ; 
 the fines paid or remitted in the Curia were recorded in the 
 Exchequer, and the writ that was issued in the one chamber 
 was treated by the other as being, what it was truly, its own 
 act. The great officers of the household seem to have acted 
 in the business of the Curia Regis, simply however as justices ; 
 we have no record that apportions to them the definite seats 
 or functions which they held in the Exchequer ; accordingly 
 
 ' Gneist's conclusions on the character of the supreme judicature of the 
 Noiinan reigns are as follows : — Under the name of the Curia Regis is 
 to be understood the personal judicature of the king : the Curia Regis 
 does not consist of the entire community of tenants-in-chief, for as /yet 
 they formed no distinct body or corporation ; nor of a definite number 
 of great vassals, for there was as yet no legal line drawn between great 
 vassals and small ; nor of a definite number of great officials, for the great 
 ofBcials were not so constituted as to fomi a court of ])eer8 : the justice 
 of tlie Curia, which was not administered by tlie king himself, was ad- 
 ministered by special commissions, not by a standing body of judges, or 
 by tlie barons of the P^xclioquer. A^erwait. i. 232, 241-243. This is an 
 extreme view, and in lianiiony with tiie general idea held by this great 
 jurist of the absolute despotism of the Norman sovereigns. On the other 
 hand, it cannot be denied that the general tendency of English writers 
 has been to ascrilie to the legal institutions of the period greater solidity 
 and definiteness than tliey can be proved to have possessed. The view 
 which I have tried to indicate in the text and in the Select Charters, 
 regarding the iierir)d as one of transition, in wiiich routine was gratlually 
 liecoming a check on desjwtic autliority, will probably not commend itself 
 to tlie maintainers of either view.
 
 XI.] The Curia Regis. 389 
 
 when we find the chancellor or chamberlain sitting in judgment, 
 we are not to suppose that the cause on which he decides is 
 one belonging specially to the chancery or the chamber ; he is 
 simply a member of the king's judicial court. 
 
 The number of persons who filled the office of justice or The number 
 baron of the Exchequer during the Norman reigils was not vei'y small, 
 large, nor are the relations of the members of the court to one 
 another very well defined ; it is even possible that a close 
 examination of existing records Avould show that all the officers 
 who discharged judicial functions were members, under some 
 other title, of the king's household. Roger of Salisbury bore 
 the name of 'justitiarius' from the year 1107 to his death; 
 but there are several other justices \ mentioned both in x-ecords 
 and by the historians, whose position seems to be scarcely 
 inferior to his '. Ealph Basset appears early in the reign of Justices 
 Henry I as a very influential judge'' ; his son Richard is called Henry I, 
 by Ordericus Vitalis and Henry of Huntingdon * capitalis 
 justitiarius^' even during the life of Bishop Roger; and Geoffi-ey 
 de Clinton, who was the king's chamberlain or treasurer, held 
 
 ' Besides the question of the chief justiciarship, treated above, the title 
 of justitia, or justitiarius, has obscurities of its own. (i) It is often used 
 in a very general way, in the salutations prefixed to charters, ' coinitibus 
 et baronibus et justitiariis et vicecomitibus; ' in which it seems to include, 
 as it did in France, all landowners who possess courts of their own, or 
 are qualified to act as judiccs in the shire-inoot. See Henry I's charter to 
 London, Stephen's charter, and the Leges Henrici I, § 29 ; Select Charters, 
 pp. 102, 103, 113. (2) It belongs to the sheriffs, who are called by John 
 of Salisbury (Polycr. v. 15, 16) jiistitlne errantes, and to whom the name 
 justitia in the so-called Laws of Edward the Confessor seems to belong. It 
 is probable that whilst the sheriff, in his character of sheriff, was competent 
 to direct the customary business of the court, it was in that of jtislitia that 
 he transacted special business under the king's wi-it. Bracton, lib. iii. c. 35 
 (ed. 1640, f. 154). (3) It is specially given to officers of the king's court, 
 e. g. to Miles of Gloucester, ' baroni et justitiario meo' (Charter of Stephen, 
 Madox, Hist. Exch. p. 135) ; in which sense it seems to prove that his position 
 was one of judicial authority as well as ministerial. (4) To the chief justice. 
 Henry of Huntingdon gives the name to the commissioners of the Domes- 
 day Survey, fol. 212, who are called barones in the Survey itself; see above, 
 p. 386. 
 
 '' See the remarks on the development of the chief justiciarship, above, 
 p. 346. Henry I tells Anselm that he has ordered the justiciars to act by 
 his advice. (Epp. Ans. iv. 93.) 
 
 ' Ord. Vit. -vi. 10, xi. 2 ; Chron. Abingdon, ii. 170. 
 
 ' Ord. Vit. xiii. 26; Hen. Hunt, de Cont. Mundi; Ang. Sac. ii. 701.
 
 390 Constitidional Kistory. [chap. 
 
 pleas in A.D. 1 130 over all England \ The Pipe Roll of that year 
 furnishes us with the names of other justices : pleas were held 
 not only by the two Bassets and Geoffrey de Clinton, but by 
 William of Albini the Butler, Eustace Fitz-John and Walter 
 Espec, Miles of Gloucester the Constable, Pain Fitz-John, Robert 
 Arundel, and Walkelin Visdeloup ^. Other names may perhaps 
 be found in the charters of Henry I and Stephen. The capitalis 
 justitia however seems to be the only one of the body to whom 
 a determinate position as the king's representative is assigned 
 in formal documents ^. 
 Cliaracterof The Curia Regis, in this aspect, was the machinery through 
 
 the L-urifl. 
 
 R«gis. which the judicial power of the crown was exercised in that 
 
 wide sphere of legal business on which, in its now complicated 
 
 relations, it was brought to bear. That business consisted largely 
 
 of causes in which the king's interest was concerned, or which 
 
 were brought up by way of appeal when the powers of the 
 
 popular courts had been exhausted or had failed to do justice *. 
 
 It inherits In these particulars it succeeded to the royal jurisdiction of the 
 
 from th"^ Anglo-Saxon kings. It was also a tribunal of primary resort in 
 
 system, aiTcT cases of disputes between the tenants-in-chief of the crown, a 
 
 from the ^ feudal court in which were arranged the quarrels of the Norman 
 
 lords, who were too strong to submit to the simple justice of 
 
 the shire and hundred ^. It was however more than this : the 
 
 * See Mon. Angl. vi. 218. Pipe "Roll 31 Hen. I. ^ ji^jj 
 ^ Sec the charter of Henry I to the canons of Trinity, Aldofate : ' Et pro- 
 
 hibeo pui)er forisfacturain nieam quod non ponantur in placitum de aliqiio 
 tenemento nisi coram me vcl capitali justitia meo.' Foed. i. 12. 
 
 * The Pipe Roll of Henry I does not expressly mention the jurisdiction 
 of the Curia Regis, but it is probalde that most of the entries ' pro recto 
 terrae suae' and the like refer to suits in vvliich a writ has been ohtMined 
 from the court. Cases in tlio King's court during the reign of Henry 1 
 will be found in the Chronicle of r>attle, p. 51 ; in the Chronicle of Abing- 
 don, ii. 182; in the Cartulary of Gloucester, i. 236; in Ehnliani, ed. Hard- 
 wick, pji. 355, 362, 366, 382. ' Ric.<l' Rullos debet i. marcain auri ut juste 
 tractetur in curia doniiiii sui ; ' IMpe Roll. p. 143. ' Walterus Maltr.avers 
 rcddit co)n](utinn de 20 nuircis argenti ut rex juvet eum versus Paganum 
 Filiuin .Tohiinnis ;' Ibid. p. 1 24. ' Burgenses de (iloeccstra debent 30 marcas 
 argenti si ])OHsent recuperare pecuniam suam per justitiam regis, quae ablata 
 fuit eis in Hibernia; ' Ibid. p. 77. 
 
 ' ' Et si ainodo exsurgat placitum do divisinne terrarum, si est inter 
 barones moos doniinicos, tractetur placitum in curia niea ; et, si est inter 
 vavassorcs duoruni doniiiiorum, tractetur in coniitatu.' Writ of Henry I: 
 Select Charters, p. 99. Such a trial is described in a charter of Henry 1 
 
 >iorman.
 
 XI.] Itinerant Judges. 391 
 
 ancient customary process of the local courts, with that strict its (growing 
 maintenance of formalities and that incapacity for regarding as'a resource 
 equitable considerations which seems inseparable from the idea of °' '^''"' ^' 
 compurgation and ordeal, was now becoming antiquated. As a 
 special favour, suits were brought up from the view of the pro- 
 vincial courts to be decided by such new methods as the wisdom 
 of the king and his counsellors might invent ; and fi'om the 
 Curia Regis issued the writs which directed inquiry and recog- 
 nition of rights as to land, the obligations of tenure, the legiti- 
 macy of heirs, and the enforcement of local justice ^. These System of 
 writs, although not absolutely unknown in England before the 
 Conquest, were derived no doubt in their Norman form from 
 the process of the Karolingian lawyers ; they were the expe- Their origin. 
 dients by which the 'jus honorarium' of the king, as fountain 
 of justice, was enabled to remedy the defects of the ' jus civile ' 
 or ' commune,' the customary proceedings of the local moots '^. 
 
 The Curia Regis had criminal jurisdiction also, as Ralph Basset Criminal 
 proved when he hanged forty-four thieves at Hundehoge ^. It 
 was in fact a supreme court of justice, both of appeal and, where 
 leave was obtained, of primary recourse. 
 
 But it was also a ministry of justice, before which the whole Review of 
 judicial action of the country passed in review. This was done judicature, 
 partly by the Court of Exchequer, in which, as we have seen, 
 the sheriffs annually rendered their accounts ; but partly also by 
 direct inspection. The provincial judicature was brought into 
 immediate connexion with the central judicature by journeys of 
 the king's judges. We have seen traces of this arrangement as 
 early as the time of Alfred, who may have been acquainted with 
 the system in use under the Frank emperors *. Edgar and Canute 
 had themselves made judicial circuits ; the Conqueror's choice 
 of the three great cities of the south of England for his annual 
 placita brought the seuse of royal justice home to the country at 
 
 in the Cartulary of Gloucester, i. 236 : and see the trial of the bishop of 
 Durham; below, p. 440. 
 
 ' Writs of these kinds will be found in great numbers in most monastic 
 cartularies ; e. g. Chron. Abingdon, ii. 92, 93, 84, 85. 
 
 ^ On the connexion of the Norman and English Brevia with the Frankish 
 Indiculi, see Brunner, Schwurgericht, pp. 76-84; and below, Chap. XII. 
 
 ^ Chron. Sax. a.d. 1124. * See above, p. 1S3.
 
 392 Constitutional History. [chap. 
 
 Circuits of large. But Henry I went a step further. He sent the oflScers of 
 ejus ices. ^^^ Exchequer through the country to assess the revenue^ ; and 
 during his reign the whole kingdom was visited by justices, officers 
 of the Curia Regis, not perhaps with the systematic regularity 
 enforced by his grandson, but with sufficient order to prove that 
 he saw and satisfied the want of such an expedient. In a.d. i 130 
 Geoffrey de Clinton, the chamberlain, had lately visited seventeen 
 out of the thirty-four counties of which the accounts are preserved ; 
 Ralph Basset had visited seven ; Richard Basset five ; Eustace 
 Fitz-John and Walter Espec had held pleas in the northern 
 counties ; Miles of Gloucester and Pain Fitz-John in the west- 
 midland and the "Welsh March; William of Albini, Robert 
 Arundel and others, in the forests and in the south-western coun- 
 
 Action of the ties. It is probable that this was by no means an exceptional 
 
 justices in . r> i -r. i 1 -r> 
 
 the country, measure; m a.d. 1124 we find Ralph Rasset, as has been ire- 
 
 intlie county . ,.. .._. ,. /-\ ■> • 
 
 courts. quently mentioned, holding a court m Leicestershire ; Ordericus 
 
 Vitalis gives an account of a trial held before him in the county 
 
 court of Huntingdonshire in a.d. iii5oriii6^. A measure 
 
 dictated still more distinctly by this policy may be traced in the 
 
 list of sheriffs for a.d. i i 30. Richard Basset and Aubrey de Vere, 
 
 a judge and a royal chamberlain, act as joint sheriffs in no less 
 
 than eleven counties : Geoffrey de Clinton, Miles of Gloucester, 
 
 William of Pont I'Arche the Treasurer, are also sheriffs as well 
 
 as justices of the king's court. That such a system was open to 
 
 Tiic slicriir- much abuse is self-evident ; these officers sitting as iudfjes and 
 domslield . ' ,• 1 , 1 • 1 
 
 by the barons in the Exchequer actually audited the accounts wmch 
 
 justices. 
 
 they presented as sheriffs ; but they were under the strong 
 
 control of the king and Bishop Roger ; and although there were 
 
 scandals no doubt, such as that for which Geoffrey de Clinton 
 
 was tried in this very year^, the important fact remains that by 
 
 these means the king and justiciar kept in their hands the reins 
 
 * The great fiscal iter of Henry I's reign is mentioned in the Dialogus 
 de Scaccario, i. c. 7 ^ in it the funn.s of the counties were fixed. 
 
 " ' Kadulfo autem J'aHset sedcnte pro tribnnali, consjregatis etiam pro- 
 vincialibuH univorsis afiud Ifuntedoriiaiii, ut nu« cut in Anglia.' Ord. 
 Vit. vi. 10. lialph may have licen sheriff of Huntingdoiishire at the time, 
 but ho was in attijudaiice on the queen, and seems to have acted on the 
 same business in Loudon shortly after. ' !See above, p. 372.
 
 XI.] The Shire-moot. 393 
 
 of the entire judicial administration. The justices whilst em- 
 ployed in provincial work sat in the shire-moot ; and this usage 
 of Henry I, with the series of similar measures initiated by 
 Henry II, forms the link between the old and new organisations 
 of the country, by which that concentration of local machinery 
 was produced, out of which the representative system arose. 
 The parliament of the thirteenth centuiy was the concentration 
 
 of local representation in and with the national council. It was Step toward 
 ^ ^ _ . self- govern- 
 
 no small step in that direction when the action of the Curia ment. 
 
 Regis was brought into direct connexion with that of the shire- 
 moot. The Norman curia met the Anglo-Saxon gemot in the 
 visitations of the itinerant justices. 
 
 128. "We thus come to the constitution of the shire-moot. In The county 
 
 courts. 
 a former chapter the history of this institution has been traced 
 
 up to and past the date of the Conquest; and it has already 
 
 been shown how in the inquest which preceded the Domesday 
 
 Sui'vey, as well as in the production of the record of Edward's 
 
 laws, the means of gaining information which it afforded were 
 
 utilised. The existence of the shire-moot through the reigns of 
 
 the Conqueror ^ and William Rufus is proved by the existence 
 
 of writs addressed, as in the preceding reigns, to the sheriffs and 
 
 other leading members '^. There is in existence a writ directed 
 
 by William Rufus to the sheriff of Northamptonshire ordering 
 
 him to call together his shire to examine into the rights of the 
 
 monks of Ramsey^. It appears from the very charter by which j^ggf^Jjfytj 
 
 Henry I orders the restoration of the ancient courts that they 
 
 had been used under his brother for the purposes of extortion *, 
 
 ' ' Requiratur huntlredus et comitatus aicut antecessores nostri statue- 
 runt.' LI. Will. I ; Select Charters, p. 8i. 
 
 ^ 'Willem king gret Willem biscop and Swein scirefen and alle mine 
 thegnes on Estsexen freondlice.' Mon. Angl. i. 301. See a similar writ in 
 favour of Chertsey Abbey, ibid. i. 431. 
 
 ' 'Rex Willelrao de Cahannis, salutem. Praecipio tibi ut facias conve- 
 nire sciram de Hamtona et judicio ejus cognosce,' &c. Palgrave, Common- 
 wealth, clxxix. 
 
 * ' Henricus rex Anglorum Samsoni episcopo et Ursoni de Ahetot, et 
 omnibus baronibus suis Francis et Anglis de Wirecestresira, salutem. 
 Sciatis quod concede et praecipio ut amodo comitatus mei et hundreda in 
 illia locis et eisdem terminis sedeant sicut sederunt in tempore regis Ead- 
 wardi et non aliter ; ego enim quando voluero faciam ea satis summonere 
 propter mea dominica necessaria ad voluntatem meani.' Select Charters,
 
 394 Constitutional HUtory. [chap. 
 
 and the same may be inferred from tlie description of Ranulf 
 Flambard as 'driving all the gemots' throughout all England. 
 From the j^ear 1108 onwards these courts, as well as those of 
 the hundred, were held 'as in King Edward's days and not 
 otherwise.' The lords of land and their stewards attended, and 
 from each township the reeve and four men^, and the parish 
 
 The shire- priest. The full court met twice a year under the sheriff or his 
 deputy, and was still competent to declare folk-right in every 
 suit ; the pleas of the crown were recorded in it for the view of 
 the Curia Regis, whether reported by the sheriff to the Ex- 
 chequer or examined by the justices in a provincial visit ^. It 
 had a criminal as well as a civil jurisdiction as before, although 
 the management of the pleas of the crown on the one side, and 
 the interfei'ence by royal writ on the other, must have mate- 
 rially affected its independence. It retained however all its 
 authority in matters of voluntary jurisdiction, witnessing trans- 
 fers of land, and sanctioning by its testimony private charters 
 and documents of all sorts. The ancient forms were also in use ; 
 witness, compurgation, and ordeal ; and the old theory that in 
 these popular courts the suitors were judges. 
 
 Antiquity of The new light thrown on the shire-moot, by the increased 
 number of records, makes it a little difficult to know what par- 
 ticulars of custom, now for the first time discoverable, are new 
 or old. The composition of the court and its times of session 
 are however clearly ancient. The custom of interference of 
 the crown by writ, although not unprecedented ^, is, as a custom, 
 
 p. 99. Compare Leges Henrici I, c. vii. § i : ' Sicut anti(|ua fuerat insti- 
 tutione formatum, salutari regis imperio, vera nuper est recordatione 
 formatiim, tjeneralia coiiiitatuum placita certis locis et vicibua et diffinito 
 tempore per singulas Angliae provincias convenire debere, nee ullis ultra 
 fatigationihus agitari ni.ii propria regis necessitas vel commune regni com- 
 modiim saepius adjiciat.' 
 
 • ' Intersiiit aiitetii episcopi, comites, vicedomini, vicarii, centenarii, 
 aldcriiianni, i)raefecti, praepositi, barones, vav.asores, tungrevii, et ceteri 
 terranim doiiiiui. ... Si utcrquc (so. baro et daj)ifer) necessario desit, 
 praepositiiH et qnatnor de melioribus villac aasint pro onmibus qui nomi- 
 natita non erunt ad placitum subnioiiiti.' Ibid. §§ 2, 6. 
 
 * 'Apantiir itaque primo debita verae Cliristianitatis jura; secundo 
 regis plucita ; i)ostremo cau'-ae singulorum dignis satisfaetionibus exple- 
 antur et (juoscunque seyresraot discordantes inveniet, vel amore congreget 
 vel sequcHtret judicio.' Ibid. ' See above, p. 187.
 
 XI.] The Shire-mooi. 395 
 
 new ^. The references to trial by battle, which now become Trial iiy 
 
 . . battle and 
 
 common, show that the Normans had introduced that custom in jiKiuesi by 
 
 its legal completeness. But the most important novelty is the 
 
 inquest by oath, which has been already referred to, and which 
 
 forms an important link in the history of the jury. William 
 
 the Conqueror directs the justiciars on one occasion to assemble 
 
 the shire-moots which had taken i^art in a suit touching the 
 
 rights of Ely ; that being done, there were to be chosen a 
 
 number of the English who knew the state of the disputed lands 
 
 in the reign of Edward ; these were to swear to the truth of In'juest by 
 ° ' sworn jurors. 
 
 their depositions ; and action was to be taken accordingly ^. A 
 similar writ of William Rufus to the sheriff of Northampton- 
 shire, already mentioned, directs a like proceeding in the affairs 
 of Ramsey ; whilst two writs of William the Etlieling to the 
 sheriff of Kent order, and direct action to be taken upon, the 
 verdict or recognition of the good men of that county in re- 
 ference to the rights of S. Augustine's'. 
 
 ^ For example ; ' Henricus rex Anglorum Nigel lo'deO ill i et Willelmo vice- 
 comiti de Oxeneforde salutem. Praecipio vobis ut faciatis abbati de Abben- 
 dona pleiiariaiii rectitiulinem de exclusa sua,' &o. Cliron. Abingd. ii. 92, 
 ' H. rex Anglorum, W. vicecomiti de Oxeneforde, salutem. Fae cito et sine 
 mora plenain justitiam Faritio,' &c. Ibid. 
 
 * ' W. rex Anglorum Lanfraneo archiepiscopo et Rogero comiti Moritonii 
 et Gauffrido CouNtantiensi episcopo salutem. Mando vobis et praecipio ut 
 iterum faciatis comjregari omnes scyras quae interfuerunt placito habito de 
 terris ecclesiad de Heli, antequam mea conjunx in Normanniara novissime 
 veniret ; cum quibus etiam sint de baronibus meis qui competenter adesse 
 poterunt et praedicto placito interfuerunt et qui terras ejusdem ecclesiae 
 tenent. Quibus in unum congregatis eligantur plures de illis Anglis qui 
 sciunt quomodo terrae jacebant praefatae ecclesiae die qua rex Edwardus 
 obiit, et quod inde dixerint ibidem jurando testentur.' Liber EUensis, i. 
 256. The result-of the inquiry is referred to by Henry I as final: ' Sicut 
 dirationatum fuit in tempore patris mei apud Keneteford, coram baronibus 
 patris mei . . . et tcstimonio plurium syrarum.' Mon. Angl. i. 482. 
 
 ^ 'Willelmus filius regis Willelmo vicecomiti de Client salutem. Prae- 
 cipio quod praecipias Hamonem filium Vitalis et pnjbis vicinis Santwic quos 
 Hamo nominabit, ut dicant veritatem de nave abbatis de Sancto Au£;ustino, 
 et, si navis ilia perrexit per mare die qua rex novissime mare transivit, tunc 
 praecipio ut modo pergat quousque rex in Angliam veniat et iterum re^aisi- 
 atur inde abbas praedictus. Teslibus episcopo Sarisb. et cancellario apud 
 Wodestoc' ' W. filius regis W. vicecomiti salutem. Praecipio quod re- 
 saisias abbatem de S mcto Augustino de nave sua sicut ego praecepi per 
 meum aliud breve et sicut recognitum fuit per probos homines comitatus, 
 quod inde abbas erat saisitus die qua rex mare novissime transivit, et in 
 pace teneat, et hoc sine mora, ne inde clamorem .amplius audiam. Teste 
 cancellario apud Windesor.' Palgrave, Commonwealth, clxxix. ; Elmhaiu,
 
 moot. 
 
 396 Constitutional Ristonj. [chap. 
 
 Question as The employment of a number of sworn themis to report on 
 
 to a jury of ^ ■' . 1 
 
 present- the character of accused persons, which has been traced to the 
 
 ment. ■* . i j 
 
 laws of Ethelred, may probably have continued to be usual \ and 
 
 thus the gi'owth of the jury in criminal matters may have kept 
 pace with its development in civil affairs. But of this we have 
 slight evidence, unless the session of Hundehoge, where the 
 Thejurors" thegns of Huntingdonshire acted with the king's justiciar, may 
 of ihe*9hfre- ^6 again appealed to. But however this may be, it is certain 
 that the administration of justice in the shire-moot was now 
 vested in persons who were bound by oath to the fulfilment of 
 their duties and to speak the truth ^ The Pipe Roll of Henry I 
 proves the existence of large bodies of judices and juratores. 
 Whether the terms are equivalent ; whether they merely mean 
 the qualified members of the courts from whose body witnesses 
 and compurgators must be chosen ; whether the judices were a 
 permanent body of local proprietors ^, and the juratores a selec- 
 tion of freemen sworn to declare the truth in the particular 
 case ; whether the judices may not have been the presenters of 
 the criminals, and the juratores the witnesses in the civil suits, 
 
 ed. Hardwick, pp. 353, 354 : in the latter place those acts are referred to 
 William Rufus during his father's life ; but this is very improbable. The 
 same authority furnishes another writ of the same sort; p. 356: ' Fac re- 
 cognosci per homines hundredi de Middeltone quas consuetuijines Abbas S. 
 Augustini habere debet in villa de Newingtone.' A writ of Stephen order- 
 ing restitution to the cliuroh of S. Martin, London, in pursuance of a like 
 recognition, ' Sicut recognitum et testificatum fuit coram M. vicecomite in 
 hundredo apud Meldonam,' is printed in Madox, Formulare Angl. p. 40. 
 In iio() Henry I commissions five barons to ascertain the customs of the 
 church of York by the oath of twelve men; Thoroton, Nottinghamshire, 
 iii. 177. 
 
 ' The promissory oath, such as that taken by the twelve thegns to accuse 
 no one falsely, and by modern jurymen to ' well and tndy try and true 
 ileliverancc make,' as well as tiiat of the modern witness, differs widely 
 from the declaratory oath of the ancient popular courts, which was confined 
 to the affirmation of a single fact, prescribed by the judges as the point to 
 be j)roved, or to tiie confirnuition by compurgators of the oath of a prin- 
 cipal. The observance of the distinction would have served to prevent the 
 construction of many improbaiile theories of the origin of juries. The oath 
 of the jury-inquest was a ])roniiHO to s[)eak the truth, ' Sacramentum quod 
 veriim dicetit ' (AKsize of Clarendon), or '(^uod inde veritatem secundum 
 conscientiam suam manifcjstabunt' (Const. Clarendon). 
 
 ^ The judices in the county court arc described in the Leges Hen. I, 
 c. xxix. : ' Regis judices sunt baronos comitatus, qui liberas in eis terras 
 habent per quos dcbent cauHae singulorum alterna prosecutione tractari, 
 villani vero vol cotseti vel ferdingi vel ([ui sunt viles vel inopes personae 
 nun sunt inter Icgum judices numerandi.*
 
 XI.] Shire-moot and Hundred-moot. 397 
 
 it would be dangerous even to guess. They appear however to 
 be distinguished from the ' miiiuti homines,' or mean men, who , 
 were likewise bound to attend the shire-moot and hundred-moot, 
 and who probably did not possess so much land as was necessary 
 to qualify a man for acting as judge in a suit in which land was 
 in question. That these persons were very numerous is certain 
 from the very large fines imposed on them for neglect of duty. 
 In Yorkshire the sheriff accounts for thirty-one marks drawn 
 from nine ' judicatores comitatus ; ' and for 336 marks five 
 shillings and sixpence 'de minutis judicibus et juratoribus comi- 
 tatus.' It is no wonder that we find almost immediately after 
 that the unfortunate payers have undertaken to compound for 
 their attendance : 'The judges and jurors of Yorkshire owe a The jurors 
 
 111 1 • ^ • ^ > andjudpes 
 
 hundred pounds that they may no more be judges or jurors', of the shire- 
 The sheriff of Kent accounts for £17 3s. ^d. from the jurors of 
 Kent, and another sum from Sussex; in Essex, £5 6s. 8(Z. is 
 raised from the ' minuti homines ;' in Lincolnshire, seventy-four 
 marks and a-half ; in Bedfordshire, forty shillings from the 
 ' juratores et minuti homines ;' and four judges of the isle of 
 Axholm i-ender account for eight marks due for the pleas of 
 William of Albini ^. It can scarcely be doubted that all these 
 fines were incurred for non-attendance, and that they prove 
 
 * Pipe Roll Hen. I, pp. 27, 28. The entry ' Judices et juratores Ebora- 
 ciscire debent £100 ut non ann)Iius sint judices nee juratores,' ibid. p. 34, 
 is sometimes quoted as referring to Walter Espec and Eustace Eitz-John. 
 This is however not the case : it is the first entry among the accounts 
 accruing from the county of York in consequence of their visitation. The 
 exact meaning of the entry is uncertain : Brunner (Schwurgericht, p. 355) 
 adduces it as an illustration of the attempts made from the beginning of 
 the jury system to escape the responsibility. It appears to me rather to 
 refer to the old system which was gradually being replaced by the jury 
 system, and to be a sort of composition for the fine incurred by non- 
 attendance at the shire-moot and hundred-moot. But tlie same desire to 
 avoid jury-work appears constantly later on, when fines ' pro defectu re- 
 cognitionis ' are frequent. To the scarcity of qualified jurors the following 
 passage refers : ' Si opus est, licet in placitis judicibus qui aderunt respect.are 
 placitum e,\ abundanti, donee senatores absentes interesse po.ssint, vel ipsi 
 judicium inquisierint ; nee jure cogeiidi sunt ad jurandum quod nesciant 
 judicium inde ;' i. e. in cases in which at the county court there is not 
 a suflBcient number of ([ualified judices informed on the particular case, the 
 trial may be respited until either they have informed themselves, or the 
 absent witan can be present. Leges Hen. I, c. 29. 
 
 ^ Pipe Roll Hen. 1, pp. 65, 69, 118, &c.
 
 398 
 
 Comtltuiional History. 
 
 [chap. 
 
 Extortion 
 l)ractised in 
 tlie shire- 
 moot. 
 
 Tlio iiuu- 
 dred-moot. 
 
 either the dislike of the free-hoklers to attend the court of the 
 justice itinerant, or a serious decline in the ancient constitution 
 of the county courts. But this does not affect the main ques- 
 tion, which is the continuance of the custom of employing jurors 
 to transact the judicial work. 
 
 The use made of the shire-moot for the purpose of raising 
 money may account for the reluctance of the suitors to attend. 
 That this was the practice is clearly shown by Henry's writ 
 for the restoration of the ancient custom : ' I will cause those 
 coui'ts to be summoned when I will for my own sovereign 
 necessities, at my pleasure^ ;' an important engagement in- 
 tended to deprive the sheriffs of their opportunities of wanton 
 exaction, but to secure to the king the right of asking for 
 or taking money when he should deem it necessary. Unfor- 
 tunately this is the only evidence that we have of the method 
 of raising money from the shire-moot ^ ; but it seems almost 
 certain that when the occasion arose, the counties would be con- 
 sulted by the barons of the Exchequer and not by the sheriffs. 
 The same wi'it directs that suits between the barons of the 
 king's demesne for the division of land are to be decided in the 
 Curia Regis ; similar suits between vassals, ' vavassores,' in the 
 county court and by trial by battle. • 
 
 Nearly all the general statements made about the shire-moot 
 are true also of the hundred-moot. Tliis also is restored by 
 Henry 1 as it was in King Edward's days. The same reluct- 
 ance to attend is proved by the entry of penalties on the Pipe 
 Roll; the sheriff of Sussex accounts for 102 marks 'for the 
 pleas of Richard Basset from the miuuti homines for default of 
 the hundred-moot ;' and in Middlesex a small payment of the 
 same kind is entered ^. The ' Leges Henrici I,' as they are called, 
 
 ' Above, p. 393. 
 
 ' The folldwiiitr curious writ of Henry I proves both the formal demand 
 of an aid from the l)aron3 of his court and the negotiation of tiie parti- 
 culars through the officers of the Exchequer : ' H. rex Anglorum R. ejjiscopo, 
 et Herbcrto camerario et Hugoni de Bochelanda, salutem. Sciatis quod 
 claiuo (jiiietas v. hidas al)l)ati3 Faricii de Abendona de eleemosyna de 
 Wrtha, de omnibus rebus, et iioininatim de isto auxilio quod barones mihi 
 dederuiit, et hoc dico, sicut cliimavi (]uiotas eas per aliud breve ineum in 
 omni teinjiore. TeHtil)Us,' &c. Clirou. Abiugd. ii. 113. 
 
 ^ Pipe Roll Hen. J, pp. 71, 151 ; cf. pp. 28, 30, 56, 117, 143.
 
 XI,] The Hundred-moot. 399 
 
 attest the existence of the two courts of the hundred, the great 
 
 one for view of frankpledge, held twice a year under the sheriff, 
 
 and afterwards called the great court of the hundred, or SherifTs 
 
 toui'n and leet ^ ; and the lesser court, the Curia parva Hundredi, 
 
 held twelve times a year, and presided over by the bailiff of the 
 
 hundred ^ : in the latter the chief business was probably the 
 
 disputes about small debts, which long continued to furnish its 
 
 sole employment '. 
 
 129. The manorial constitution, which is the lowest form of Themano- 
 . 1 • . , . . , , . . 1 • ,> '■'^1 courts. 
 
 judicial organisation, was by this time largely 11 not completely 
 
 developed. The manor itself was, as Ordericus tells us, nothing 
 more nor less than the ancient township, now held by a lord 
 who possessed certain judicial rights varying according to the 
 terms of the grant by which he was infeoffed. Every manor 
 had a court-baron, the ancient gemot of the township *, in which 
 by-laws were made and other local business transacted, and a 
 court- customary in which the business of the villenage was de- 
 spatched. Those manors whose lords had under the Anglo-Saxon Court baron, 
 laws possessed sac and soc, or who since the Conquest had had tomarv. and 
 gi'ants in which those terms were used, had also a court-leet, or ^^^ ' *^*^ " 
 criminal jurisdiction, cut out as it were from the criminal juris- 
 diction of the hundred ", and excusing the suitors who attended 
 
 * LI. Hen. I, c. viii : ' Bis in anno conveniant in lumdretum suum qui- 
 cunque liberi . . ad dinoscendum inter caetera si decaniae pienae sint.' 
 
 * Ibid. e. vii : ' Hundreta vel wapentagia dnodecies in anno con- 
 gregari.' Under Henry II these courts were held every fortnight, ' de 
 quiudena in quindenam.' Henry III fixed them every three weeks ; Ann. 
 Dunst. pp. 139, 140. 
 
 ' See Eyton's Shropshire, xii. i68 ; Viner's Abridgment, s. v. Court. 
 Early notices of transactions in the court of the hundred will be found 
 in Madox, Formulare Auglicanum, p. 40. 
 
 * The tunscipesniot occurs in a charter granted by Richard I to Wenlock 
 Priory : the king grants that all the prior's men, tithes, and effects shall be 
 quit of all oppressions and exactions, from shire-moot and hundred-moot, 
 from pleas and plaints, from husttng, portnianmot (court of portreeve in 
 boroughs), and tunscipesmot. Eyton, Shropshire, iii. 2.^7. 
 
 * On the institution of the court-leet, see Scriven on Copyholds ; Gneist, 
 Self-government, i. 89, loi, sq. Although the documentary history of these 
 courts belongs to a later age, there can be little risk in tracing their origin 
 back to the sac and soc of the older jurisdictions, and not regarding them 
 as mere creations of Norman feudalism. If they had been so, there must 
 have been some evidence of their creation after the Conquest ; but, so far 
 from this being the case, the language in which they are mentioned in 
 documents of the Norman period is distinctly borrowed from the Anglo-
 
 400 Constitutional History/. [chap. 
 
 it from going to the court-leet of the hundred ^. If tlie 
 lord had a grant of view of frankpledge also, his tenants were 
 released from attendance at the sheriff's tourn. It was only 
 the great baronial jurisdictions, which were almost shires in 
 themselves, that freed their suitors from all attendance at the 
 Liberties popular courts. These greater jurisdictions, liberties, or honours ^, 
 ' the growth of which in Anglo-Saxon times we have already 
 traced, were multiplied under the Norman sovereigns^. They 
 presented to the great feudatories the most favourable oppor- 
 tunities for extending the principles of feudal law, and making 
 themselves absolutely supreme among their dependents. It 
 tasked accordingly the energies of the national courts to yatch 
 them : they attracted to their own courts the poorer freemen of 
 the neighbourhood, to the diminution of the profits of the hun- 
 dred and the shire and to the impoverishment of the crown ; 
 they served as a basis for the judicial tyranny of the petty cas- 
 tellans, which we have seen break out into anarchy in the 
 wretched times of Stephen ; and it was no small ti'iumph when 
 Henry II forced them to admit his itinerant justices to exercise 
 jurisdiction in them *, although the proceeds of the assizes con- 
 Saxon. Tlie history of the leet-jury, which might throw some considerable 
 light on the early development of the jury principle in England, is still a 
 desidei-atum. It may be regarded as quite certain tlint if tlie manorial 
 jurisdictions had been created in the feudal period, they would have taken 
 the feudal form ; their courts would have been courts of baronies, not of 
 single manors, and their process would not have been identical with that of 
 the old popular courts, as for the most part it is. ' See above, p. 398. 
 
 '^ Tlie honour may contain several manors and hold one court-day for 
 all, but the several manors retain their separate organisation under it ; and 
 it has no indeiiendent organisation irrespective of them. ' Although an 
 honour consists of many manors and there is for all tlie manors only one 
 court held, yai are they quasi several and distinct courts.' Scriven, ii. 737 ; 
 quoted by (ineist, Verwalt. i. 164. 
 
 ^ The juriscliction of the hundreds fell more especially into the hands of 
 the territorial pro]irietors ; so much so, that before the end of the period, 
 perhaps in a majority of cases, these courts had become part of the fief of 
 the lord whose castle or manor-house was the stronghold of the neighbour- 
 hood ; and, besides these, a great number of hundreds were held by the 
 monasteries ; e. g. Robert d'Oilli had a grant of the hundred outside the 
 Northgate of Oxford : any good county history will furnish illustrations. 
 In these Ciises tlie bailiff of the hundred was nominated hy the lord and 
 presided in the courts, except at the sheriff's tourn. In the case of an 
 honour such as that of Peverell, the sheriff was excluded even from the 
 tourn. Dep. Keejier's Report, xvi. app. 41. 
 
 * Asbize of Clarendon, Select Charters, p. 238.
 
 XI.] Escheated Honours. 401 
 
 tiuucd uo doubt to increase the income of the lords. The legal 
 records of Henry I's reign furnish us with but little information 
 respecting either the smaller jurisdictions of the manor or the 
 greater ones of the honour or liberty. There is however no Procedure 
 doubt that the same principles of legal procedure were used in manorial 
 these as in the popular courts ; the jui'atores and judices were 
 there as well as in the phire and the hundred ; compurgation 
 and ordeal ; fines for non-attendance ; the whole accumulation 
 of ancient custom as well as Norman novelty. They were in 
 fact, as they had been eai'lier, public jurisdictions vested in 
 private hands ^ ; descending hereditarily in connexion with the 
 hereditary estate, and only recoverable by the crown either by 
 a forcible resumption of the estate, or by a series of legal enact- 
 ments such as reduced the dangers of private authority by increas- 
 ing the pressure of central administration. The latter process was 
 one part of the reforms of Heniy II, but the former, owing to 
 the strangely conservative policy of the kings, was very seldom 
 
 resorted to. When a great barony by forfeiture or escheat fell Treatment 
 
 . „ . . 1 -i V, o*" escheated 
 
 into the hands of the crown, instead of Ijeing mcorporated with honours. 
 
 the general body of the county or counties in which it lay, it re- 
 tained a distinct corporate existence and the whole apparatus of 
 jurisdiction which it had possessed before. Under the title of 
 an Honour, it either continued in the possession of the king and 
 
 ' An example of a transaction in the court of Bath under Bishop John 
 of Tours will be found in Madox, Hist. Exch. p. 76. The Bishop sits with 
 hi.s friends and barons. A letter is produced from the regent William, son 
 of Henry I, directing the delivery of an estate to a person who has in- 
 herited it. The bishop reads the letter, and asks the opinion of the court. 
 The jtrior of Bath .states the claim of the convent on tlie land in question. 
 A discussion follows, 'variis ab alterutro contradictionibus : ' the bishop 
 adjourns, that those members of the court who are ' neitlier advocates nor 
 favourers of either side ' may have time for consideration. Having delibe- 
 rated, they return into court, and one of them delivers the sentence : — the 
 claimant must produce his title-deeds or witnesses ; if he can do neither, 
 he must be heard no more. He makes no reply ; and the sentence is 
 approved by tlie court ; two bishops, three archdeacons with many clerks 
 and chaplains, and five laymen, probably the friends and barons mentioned 
 before ; and the document is attested by twelve witnesses. A writ from 
 the king confirms the decision of the court, directing that t!ie prior and 
 convent shall retain the land. This proceedinit is c rt.iinly more like that 
 of a witenagemot than that of a court of law, but it is recognised by the 
 king ' sicut dirationaverunt [monachi] . . per judicium curiae tuae.' 
 
 D d
 
 402 Constitutional History. [chap. 
 
 ■was farmed like a shire ^, or was granted out again as a hereditary 
 
 fief. Whilst it remained in the king's hands, the fact that he 
 
 was the lord of the honour did not raise the immediate tenants 
 
 of the barony to the rank of tenants-in-chief, or entitle the crown 
 
 to claim from them the rights that it claimed from such tenants^. 
 
 It was therefore separable from the estates of the crown at a 
 
 moment's notice, and was not used to promote the uniformity or 
 
 symmetry of the provincial organisation. 
 
 Demesne of 130. Somewhat analogous to the franchises of the nobles was 
 the crown. .... 
 
 the jurisdiction of the demesne estates of the crown, the profits 
 
 of which are recorded in the Pipe Rolls, although they were not 
 in all cases farmed by the sheriffs of the counties in which they 
 lay. The royal estate of Windsor was accounted for in the 
 year 1130 by "William de Bocland, who was steward also of 
 several other royal manors. In these estates, which, when they 
 had been held by the crown since the reign of Edward the Con- 
 fessor, bore the title of manors of ancient demesne ', vei'y much 
 of the ancient popular process had been preserved without any 
 change ; and to the present day some customs are maintained in 
 The forests, them Aviuch recall the most primitive institutions. In one 
 gi'eat division however of the royal lands, the forests, this is 
 not the case, although the forest administration itself was to a 
 certain extent modelled upon the popular system. The forests, 
 we are told by the author of the Dialogus de Scaccario, were 
 peculiarly subject to the absolute will of the king ; they were 
 outside the common law or right of the kingdom ; they were 
 not liable to be visited by the ordinary judges of the CiTi'ia 
 
 ' So the Honour of Wiillingford is specially mentioned in the Assize of 
 ' Clarendoi) ; and those of Wallingford, Notting^ham, Boulogne, and Lan- 
 
 caster in Magna Carta. Some of these were set apart as a provision for 
 the kinsr's ministers : e. g. the Honour of Berkhami)stead was held by the 
 chancellor in the reign of Henry II. The Honour of Peverell long retained 
 a separate existence, having been forfeited early in the reign of Henry II. 
 Its courts were only abolished by the statute 1 2 and 1 3 Victoria. 
 
 ^ Dialogus de Scaccario, ii. 24; Magna Carta, art. 43. 
 
 ' 'A manor of ancient domeHni; was extra-hundredal ; it was as it were 
 a hundred in itself, owing no suit nor having any concern in other hundred 
 courts, but like the latter, controlled by the county court and responsible 
 to the king's justiciars in many matters, but chiefly in those which were 
 connected with the criminal law, and came under the class called Pleas of 
 the Crown.' Eyton, Shropshire, iii. 73, 74.
 
 XI.] The Boi/al Forests. 403 
 
 Regis, but by special commission and by special officials ; they 
 
 had laws and customs of their own, and these were drawn up 
 
 rather to insure the peace of the beasts of chase than that of the 
 
 king's subjects \ The cruelty of the forest law is constantly 
 
 ascribed to Henry I, who shared with William Rufus the 
 
 character of bloody ferocity from which the Conqueror, Robert, 
 
 and Stephen were comparatively free. The master forester The forest 
 
 seems to have been independent even of the great justiciar ; the 
 
 forest courts were separate from the courts of the shire, although 
 
 in the shires in which there were royal forests the same persons 
 
 who were bound to attend the shire-moot were forced to do suit 
 
 at the forest courts ^. The constant intei'ference and irre- Forest op- 
 
 sponsible position of the officers contributed greatly to the 
 
 hatred with which the forest administration was viewed ; and 
 
 the extent of land absorbed in this way went on increasing 
 
 until the reign of Stephen. Hemy I refused to surrender the 
 
 forests which his father and brother had made ; Stephen \ ro- 
 
 mised to surrender Henry's forests, but either failed to keep his 
 
 word, or allowed the people to believe that he had failed. 
 
 The first forest code is of the reign of Henry II, but it records 
 
 the severities of his grandfather, and its report is borne out by 
 
 the words of Ordericus and other contemporaries ^ 
 
 131. A more important feature of administrative history at Growth of 
 this period is the growth of the towns *. This has been traced 
 
 • Dialogus de Scaccario, i. 1 1 : ' Sane forestarum ratio, poena quoque vel 
 absolutio delinquentium in eas, sive pecuniaria fuerit sive corporalie, seor- 
 sum ab aliis regni judiciis secernitur et solius regis arbitrio vel cujuslibet 
 familiaris ad hoc specialiter deputati subjicitur. Legibu.s quidem propriis 
 subsistit, quas non communi regni jure, sed volimtaria principis institutione 
 subnixas dicunt, adeo ut quod per legem ejus factum fuerit, non justum 
 absolute sed justum secundum legem forestae dicatur.' 
 
 ^ Assize of Woodstock, art. il. Select Charters, p. 150. 
 
 ' On the number and position of the forests, see Pearson's Historical 
 Maps, pp. 44-48; Ellis's Intr. i. 103-116. 'The royal domains consisted 
 of 1422 manors, 30 chases, 781 parks, and 67 forests;' Gneist, Verwalt- 
 ungsrecht, i. 190 (from Cowell ?), but this computation does not apply to 
 the Domesday Survey, or even to the Norman period with any strictness. 
 
 * The fortified townis mentioned in Domesilay are Canterbur}', Notting- 
 ham, York, 0.\.ford, Hereford, Leicester, Stafford, Chester, Lincoln, and 
 Colchester. The customs of forty-one cities or boroughs are either given 
 in detail or briefly noticed. Most of these are the county towns of the 
 present day. In the laws of Athelstan, ii. § 15, 2, Canterbury, Rochester, 
 
 D d 2
 
 404 
 
 Constitutional History. 
 
 [chap. 
 
 Charter of 
 the Con- 
 queror to 
 liOndon. 
 
 in a former chapter down to the date of the Conquest. We 
 have seen that they were originally no more than large town- 
 ships or collections of townships, whose constitution camiot be 
 shown to have differed from the general type of the ancient 
 village, but which had accumulated rights and functions answer- 
 state of ing more strictly to those of the hundred. And at the time of 
 
 towns at the . . 
 
 Conquest, the Conquest they had gained such importance as to have in 
 many cases special compositions for taxation, and tribunals of 
 their own\ With the exception ho'wever of London, no town 
 yet shows itself to have arrived at anything like the later civic 
 constitution ; and London under its port-reeve and bishop, the 
 two officers who seem to give it a imity and identity of its own, 
 is only a bundle of communities, townships, parishes, and lord- 
 ships, of which each has its own constitution. 
 
 The charter granted by the Conqueror to the chief city of the 
 kingdom is of a curiously jealous and scanty character : ' William 
 the king greets William the bishop and Gosfrith the port-reeve ^ 
 and all the burghers within London, French and English, friendly : 
 and I do you to wit that I will that ye twain be worthy of all 
 the law that ye were worthy of in King Edward's day. And I 
 will that every child be his father's heir after his father's day; 
 and I will not endure that any man offer any wrong to you. God 
 
 London, Winchester, Lewes, Hastings, Chichester, Southampton, Ware- 
 ham, Dorchester, Shaftesbury, and Exeter are particularly mentioned as 
 having moneyers ; very many otliers are specified in Doitiesday, and still 
 more are discoverable from coins. See Ellis, Intr. i. 174-177. 
 
 ' See above, pp. 94 96. Oxford paid £20 and six sextaries of honey in the 
 time of King Edward ; .€6d at tlic Survey. Stafford paid £9 at the former 
 period; Shrewsbury £7 i6.v. 8(i. ; Norwich £20 to the king, £10 to the 
 earl; at Huntingdcm tw<i-thirds of they?r»ta burgl were paid to the king, 
 one-third to the earl. Ellis, Intr. i. 190 sq. 
 
 ^ Tlie woid ])orl in port reeve is the Latin 'porta' (not portus), where 
 the markets were held, and, although used for the city generally, seems to 
 refer to it specially in its character of a ni.art or city of merchants. The 
 port-gerefa at Canterbury had a close connexion witli the 'ce;ipmanne 
 gilde ; ' a!:(l the same was probably tlie case in Tjondon, wliere there was 
 a cnihten-gilde, the estates of which were formed into the ward of 
 Portsoken. From the position assigned to the port-reeve in this writ, 
 which answers to that given to tlie sheriff in ordinary writs, it may be 
 inferred that he was a royal officer who stood to the merchants of the city 
 in the relation in whic^h the bisho]) stood to the cli.'rgy : and if he were also 
 the head of the guild his office illustrates very well the combination of 
 voluntary organization with administrative machinery which marks the 
 English municipal system from its earliest days.
 
 XI.] City of London. 405 
 
 keej) you ^' Here is no grant of corporate privileges ; the son 
 may succeed to his father's franchise, but there is no corporate 
 succession ; the state of things that had existed in King Edward's 
 day is guaranteed and no more. The charter of Henry I shows Charter of 
 
 . . ... Henry 1 to 
 
 a marked advance ^. The city is recognised as a distinct unity, London. 
 
 although that unity depends on hereditary succession only: it is 
 
 independent of county organisation, the county in which it lies ^^j'"®.''*"^',- 
 
 is itself let at ferm to the citizens ; it is placed on a level with London 
 
 ■' '- ... recognised, 
 
 the shires, it is to have a sheriff' of its own and a justiciar : as 
 
 a greater privilege still, it is to elect its own sheriff" and justiciar, 
 and to be open to no other jurisdiction than that of its own 
 elected officers. The citizens are not to be called before any ^^'^^w^g 
 court outside their own walls, and are freed from Danegeld, 
 from scot and lot, from responsibility for the murder-fine and 
 obligation to trial by battle : they are freed from toll and other 
 duties of the kind throughout all England, at the ports as well 
 as in land. They are to possess their lands, the common lands 
 of their townships, and their rights of coursing in Chiltem, 
 Middlesex, and Surrey. Yet with all this no new incor^joration 
 is bestowed : the churches, the barons, the citizens, retain their 
 ancient customs ; the churches their sokens, the barons their 
 manors, the citizens their township organisation, and possibly 
 their guilds. The municipal unity which they possess is of the 
 same sort as that of the county and hundred. They have their Their moots. 
 folk-moot, answering to the shire-moot outside ; their ward-moot 
 answering to the hundred court ; their hustings-court every 
 Monday, which may be regarded as a general meeting of the citi- 
 zens, although later lawyers regarded this also as a county court. 
 There is no mention of any merchant-guild, the membership of 
 which is a requisite for civic magistracy. No guild is men- 
 tioned at all, although we know from the laws of Athelstan that London 
 a frith-gild existed in London in his days, and from another 
 charter of Henry himself that there was a ' cnihtcn-gild,' or 
 confraternity of citizens which had possessed its own lands with 
 sac and soc and other customs in the days of King Edward. 
 AVhatever may have been the position of the guilds at this time, 
 
 ' Select Charters, p. 79. * Ibid. pp. 103, 104.
 
 4o6 Constitutional History. [chap. 
 
 it would seem cex-tain that they were not a part of the con- 
 stitution of the city, which clearly was organised under a sheriff 
 like any other shire. It is possible that this charter of Henry I 
 conferred a new constitution, and that the elective sheriff was 
 a substitute for the ancient port-gerefa j whilst the English 
 cnihten-gild, with which the poi't-gerefa and his soken are closely 
 connected, was dissolved, to reappear perhaps at a later period 
 
 Rise of the in the form of the merchant-guild and ' communa.' But however 
 trada-guilds _ _ , 
 
 and craft- this may have been, before the end of the reign the trade-guilds 
 guilds. ... 
 
 force their way into notice. In a.d, 1130 Robert the son of 
 
 Lefstan pays for the guild of weavers £16 into the Exchequer. 
 
 He was probably the alderman of the guild; and his father Lefstan 
 
 seems to have occuj)ied the same position in the cnihten-gild \ 
 
 But the guild, so far as it is illustrated by documents, comes into 
 
 prominence almost as early in the provincial towns as it does in 
 
 London, and requires more special mention in relation to them '^. 
 
 Constitaition Between the date of Henry's charter and that of the great 
 
 of London _ ... . 
 
 in 1 130. Pipe Roll some changes in the organisation of the city must 
 
 have taken place. In a.d. 1130 there were four sheriffs or vice- 
 
 comites who jointly account for the ferm of London, instead of 
 
 the one mentioned in the charter ; and part of the account is 
 
 rendered by a chamberlain of the city. The right to appoint 
 
 the sheriffs has been somehow withdrawn, for the citizens pay a 
 
 hundred marks of silver that they may have a sheriff of their 
 
 own choice, whilst the four sheriffs in office pay two marks of 
 
 gold each in order to be quit of it '. There is no charge for the 
 
 Danegeld, but instead there is an 'auxilium civitatis' amounting 
 
 Jealousy of to £i20. These facts may not indeed point to any oiipressive 
 theindc- . / / . 
 
 pendenceof or rejn'essive policy on the part of the king, but it may be 
 inferred, from the great dislike of the guild system shown by 
 Henry II and his ministers, that it was no part of the royal 
 
 ' Pipe Roll 31 lien. I, p. 144 : ' Robertus filius Levestani rerldit com- 
 potuin (le £16 do pilda Tclarioriini Londoninrnin.' ]n the charter of 
 Henry I, which confirinH to the church of the Holy Trinity the rights of 
 the old cniliten-gild, it ih said that they are to he held as they were ' tem- 
 pore pntris mtti ct fratrin uiei, et nipo, et tempore Leostani.' Focdera, i. 11. 
 In the Pipe Poll, Witwo the son of Levestan pays half a mark of gold for 
 his father's office. 
 
 * .See below, p. 412. ' Pipe Roll 31 Hen. I, pp. 143, 145, 148, 149.
 
 XI.] CUy of London. 407 
 
 policy to encourage municipal independence where it could not be 
 
 made directly serviceable to the humiliation of the nobles \ 
 
 Our next glimpse of the state of London is in the reifjn of London 
 r^ under 
 
 Stephen, when, as we have already seen, the chief men of the Stephen. 
 
 city were allowed to join the small body of barons and bishops 
 who elected the king. To Stephen the Londoners were for the 
 most part faithful, although Thomas Becket, the son of one of 
 them, was the adviser and executor of the policy which pre- 
 vented the succession of Eustace and secured the thi-one to 
 
 Henry 11^. In that council at Winchester by which theThe'Com- 
 
 •^ munio.' 
 
 empress was elected to be lady of the English, the citizens 
 
 appeared by messengers acting on behalf of the communio ^, a 
 description of municipal unity which suggests that the com- 
 munal idea was already in existence as a basis of civic organi- 
 sation. That idea was fully developed in the next reign, but in 
 the case cited the word may possibly mean nothing more than 
 the folk -moot which had been recognised in Henry's charter. 
 
 During the Norman period, then, London appears to have Composite 
 been a collection of small communities, manors, parishes, church- the consti- 
 
 ' , ' ^ ' tution of 
 
 sokens, and guilds, held and governed in the usual way ; the London. 
 manors descending by inheritance, the church jurisdictions 
 exercised under the bishop, the chapter, and the monasteries ; 
 and the guilds administered by their own officers and adminis- 
 tering their own property : as holding in chief of the king, the 
 lords of the franchises, the prelates of the churches, and even 
 the aldermen of the guilds, where the guilds possessed estates, 
 might bear the title of barons. It was for the most part an 
 aristocratic constitution, and had its unity, not in the municiiJal 
 principle, but in the system of the shire. 
 
 The growth of the provincial towns is more distinctly trace- Provincial 
 able. We have in a former chapter seen their origin in the 
 township of Anglo-Saxon times, generally in the dependent 
 
 * It is possible that tlie disappearance of the port-reeve, the conversion of 
 the cnihten-gild into a religious house, and the later particulars mentioned 
 above, signify a civic revolution, the history of which is lost, but which 
 might account for the earnest support given by the citizens to Stephen, and 
 the struggle for the establishment of the Communa which marks the reign 
 of Richard I. 
 
 ^ Gervase, Chron. c. 1371. * W. Malmesb. Hist. Nov. iii. § 46.
 
 4o8 
 
 ConstHuUo7ial History. 
 
 [chap. 
 
 Domesday. 
 
 Jurisdiction 
 
 township wbicli acquired wealth and solidity under the pro- 
 Boroughs in tection of a great earl or bishop, or of the king himself. In 
 the time of the Confessor, as represented to us in Domesday, 
 the boroughs had obtained a clearly recognised status. Their 
 customs are recorded as fully as they would have been in later 
 times by charter; their constitution is set before us as by its 
 judicial character approaching that of the hundred rather than 
 that of the mere township, although the jurisdiction is manorial 
 rather than civic : the existence of guilds is likewise recorded ; 
 the men of Dover have a guild-hall, and there are guilds pos- 
 sessed of land at Canterbury \ 
 
 The first point to be noticed is, however, that of jurisdiction, 
 m the towns, yjrjjig}^ both before and after the Conquest is almost insejjarable 
 from that of tenure. In some of the Domesday towns the sac 
 and soc belongs, as in Lincoln, to the owners of manoi'ial estates 
 which are united within the walls '^. In some it belongs entirely 
 to the king, or to the earl or bishop * ; and in some it is divided 
 between the crown, the bishop, the earl, — each of whom may be 
 regarded as a public magistrate, — and one or more private lords. 
 In all these cases, unless expressly excluded by grant, the sheriff 
 exercised the same superintendence over the towns as he did 
 over the country : they were exempt from the hundred court, 
 either as being themselves hundreds, or as being held by lords 
 possessing sac and soc, but they were not exempt from the 
 shire administration. The sheriff collected from them the rents 
 which formed a portion of the ferm, and watched the royal 
 rights in their courts of justice. The Norman Conquest pro- 
 duced no change in the towns, save this, that the tenure became 
 a more prominent feature of dependence than the jurisdiction. 
 
 Subject to 
 the sheriff. 
 
 Tenure in 
 towns. 
 
 • * WillulniUH filiuH Goisfridi iii. [mansuvas habet] in quibus erat trihalla 
 burgenRiuin.' Ddinesfl. i. r. In Canterbury, ' Ipsi quoque bnrgenses l)abe- 
 bant de rege xxxiii. acran tcrrae in gilda Kiia;' ' liabet archiopiscopus xii. 
 burgciiKCH et xxxii. niansuras quaH tcnciit clerici du villa in gildani suain.' 
 Ibid. pp. 2. 3. 
 
 ^ ' In ip.sa civitate eraiit xii. lagc-niaiini, id est iiabentes sacam ct soc.am.' 
 Lincoln, DonicHd. i. 336. I'oHide-i tliese twelve, several other great pro- 
 prietorH had iboir balls with wac and hoc. 
 
 ^ Sandwich belongs to the Archbishop of Canterbury; Domead. i. 3; 
 Exeter liolorigs to the king; ibid. 100; Warwick to the earl; Madux. 
 I'irnia Burgi, p. 16, where many other cases are given.
 
 xi.j The Towns. 409 
 
 They were regarded as held in demesne by the lords who had 
 the jurisdiction, and where no other lord claimed it, they were 
 held in demesne of the king. The difference between the towns Towtis in 
 
 ^ _ royal 
 
 thus held is not perhaps very great until the age of chaiiers demesne, 
 begins : then, Avhen a town belongs to the kiiig, it has a royal 
 charter ; other towns have charters from their lords which 
 sometimes express the consent of the king to the grant of 
 liberties. Of the boroughs which possess early charters, North- 
 hampton is in the king's demesne ', Beverley in that of the 
 archbishop of York ^ Leicester early in the twelfth century Leicester 
 was divided into four parts, held l)y the king, the bishop of several 
 Lincoln, Simon of Scnlis who represented the old earls of 
 Mercia, and Ivo of Grantinesnil the sheriff and farmer of the 
 king's share ^. Subsequently Count Robert of Meulan got all 
 four shares into his own hands, and left the town as a borough 
 in demesne to the eai-ls of Leicester his descendants. The city Position of 
 
 •^ Winchester. 
 
 of Winchester, like that of London, scarcely appears in Domes- 
 day at all * ; its citizens had already, it would seem, something 
 of the same status as those of London : their support was 
 given to Stephen at his election in the same way, and they 
 shared with the Londoners, and occasionally disputed with them, 
 the privilege of service in the kitchen and the buttery at the 
 coronations ^. One result of the doctrine of tenure in the case The popvi- 
 
 1 Trr /■ • 1 I'lt'On of 
 
 of the towns was to leave the dinerent classes or men m the towns 
 
 miswcrs to 
 
 same condition in which they were in the country: the bur- that of the 
 gage tenure answers to the socage of the rural manors, and 
 the lowest class of townsmen, until admitted into the guild, 
 is on an exact level with the rustici or nativi, the class into 
 which the Normans ultimately threw no small portion of the 
 ceorls and villeins of the Anglo-Saxon days. 
 
 The first step towards a separate administration and distinct 
 organisation is, as usual, one connected with fiscal arrangements. 
 
 * Madox, Firma Biirgi, p. 7. ^ Foedera, i. 40. 
 
 ' Ord. Vit. xi. 2. The Leicester charters, a most interesting series, are 
 translated by Thompson in liis book on EnglUh Municipal History. 
 
 * ' [The customs*, services, and charges of] London, Winchester, Abing- 
 don, and a few others, were omitted probably on account of charters of 
 immunity previously granted ; ' Ellis, Intr. i. 190. 
 
 * Hovedeu, iii. 13, 248.
 
 410 
 
 Constitutional History. 
 
 [chap. 
 
 Fiscal 
 changes in 
 the towns. 
 
 The Pi>~ma 
 liunri. 
 
 Who bought 
 the I''irma 
 liuriji y 
 
 It was quite natural that tlie city communities, growing in 
 wealth and strong in social unity, should wish to be divided 
 from the country districts. The sherift' was answerable to the 
 crown for a certain sum, and whatever he could make above 
 that sum was his own profit : nothing was easier than to exact 
 the whole of the legal sum from the rich burghers, and take 
 for himself the profits of the shire ; or to demand such sums as 
 he pleased of either, without rendering any account. The 
 burghers made it a point then to have such a valuation of their 
 town as Avould show what was really due, apart from the profits 
 of the shire ; and this done, they would pay to the sheriff no 
 more, except as a free gift or in return for special services. 
 The Domesday Survey accordingly gives the profits of the towns 
 at distinct round sums, which had probably been long before 
 agreed on. The next point gained was to take the collection 
 of this sum out of the hands of the sherifi"; which was done 
 by obtaining from the crown a charter letting the town to the 
 burghers at a fee farm rent equal to the sum thus deducted 
 from the ferm of the shire. This was called the firma hurgi, a 
 rent paid to the crown from the borough, for which the burghers 
 were responsible, and which they collected amongst themselves 
 by strict apportionment ■*. 
 
 It must have been however a primary question, to whom could 
 such a charter be granted, and what organisation existed among 
 the burghers that was capable of entering into such an engage- 
 ment. Various answers have been given to the question : some- 
 times the guild, sometimes the leet jury, sometimes the germ of a 
 corporation, the existence of which is somewhat hai^tily presumed, 
 has been assumed as the recipient of the grant. But it seems 
 most natural to refer it to the only organisation of the existence 
 of which we have certain evidence, the fully qualified members 
 of the townshiji or hundred court of the town, as already con- 
 stituted. These were the owners of land, the owners of houses, 
 
 ' See Madox, Firma Burgi, p. i8; Hist. Exch. pp. 226 sq. ; Brady on 
 Bi^rougbs, pp. 40 B<(. ; Giieist, Self-government, i. 104-1 10, 847-850, Ver- 
 walt. i. 134 sq. 'i'lio iirrangeinont might lie cither at fee farm or for a 
 term of years. Thv. Jlriiid /mn/l (totidem vorhi.s) first appears in Domesday 
 in the case of Huntitigiion. The forms of Northamjiton, Wallingford, and 
 Colchester are specified in the Pipe Roll of 31 Henry I.
 
 XI.] Growth of Towns. 41 1 
 
 shops, 01- gardens ; the hurgacfe-tenants, from whose burgages tlie The tenants 
 
 -p • 1 1 11 "* bur(?age 
 
 rent was originally due, and from which it must, if raised legally, were the 
 be paid : these men met in the church-yard or town-hall as the commumtas 
 
 - civiUUis. 
 
 men of the township ; in a trading town they would be the mem- 
 bers of the guild ; and, in the judicial work of the town, they were 
 the class who furnished the judices and juratores, the leet jury in 
 fact, when that jury first comes to light ^ Under the reeve, the 
 praepositus as the Norman lawyers called him, there was already 
 a communitas civitatis, although of a very primitive form. 
 
 The body thus recognised speedily discovered its own Additional 
 . » I'M privileges 
 
 strength, and obtained further grants of perpetual privileges, purchased. 
 
 or purchased the occasional enjoyment of them : the city of 
 London serving as the standard to which all attempted to rise. 
 In A.D. 1130 the citizens of Lincoln paid 200 marks of silver 
 and four marks of gold that they might hold their city of the 
 king in chief ^ : a charter would probably be the result of this 
 payment, or at all events the bestowal of privileges enumerated 
 in the charter of Heni-y II. That king specifies, as one of the cases of 
 existing rights of the burghers of Lincoln, that they had a ^nd Bever- 
 merchant-guild composed of the men of the city and the mer- ^^' 
 chants of the county ^. The charter of Ar('hbishop Thurstan 
 to Bevei'ley places the ' hans-hus' or guild-hall among the fore- 
 most of the privileges conferred on his men. ' I will that my 
 men of Beverley shall have their hans-hus *, that they may there 
 
 * See Gneist, as above referred to. He distinctly regards the communn, 
 the origin of the corporation, as the result of a combination of the firma 
 burgi with the leet jurisdiction. This I entirely agree with, hut the adjust- 
 ment of the relation of these two elements with the guild presents some 
 difficulties as to its universal applicability. 
 
 ^ Pipe Roll 31 Hen. I, p. 114. 
 
 ^ ' Gildam suam niercatoriam de hominibus civitatis et de aliis merca- 
 toi-ibus comitatus, sicut illani babuerunt tempore Edwardi, Willelmi et 
 Henrici regum Angliae.' Foed. i. 40 ; Select Charters, j). 159. 
 
 * The ' bans.' afterwards such a name of power, appears first in England, 
 later in Germany. G. L. von Maurer, Stadteverfassg. ii. 254; Sartorius, 
 Urk. Gesch. d. Deutsch. Hanse, i. 73. It seems to be identical with (juild, 
 and it is also used in the sense of a tax. Sartorius, i. 75, 76. We have 
 here a bans bus at York and another at Beverley. The men of York had 
 in the time of John their guild at home and several hansas both in England 
 and in Normandy. The men of Dunwich have their ha»sa et r/ihla mer- 
 catoria confirmed by the same king. Select Charters, pp. 303, 304. In 
 the second year of Henry III the citizens of Herefonl jiaid for a charter, 
 and to have for ever a merchant-guild, with a hansu and other liberties.
 
 412 
 
 Constitutional History. 
 
 [chap. 
 
 Early 
 
 charters of 
 towns. 
 
 Rise of the 
 guUds. 
 
 Ancient 
 origin of 
 guilds. 
 
 treat of their bye-laws, to the honour of God and S. John, and 
 the canons, and to the improvement of the whole township, 
 freed according to the same law as that which those of York 
 have in their hans-hus.' In other towns the guilds were ali-eady 
 making their way : the Pipe Roll records payments by the 
 weavers of Oxford of two marks of gold that they might have 
 their guild ; the shoemakers pay five that they may recover 
 theirs ; the weavers of Huntingdon pay forty shillings ; those 
 of Lincoln a mark of gold ^. But the most significant indication 
 of gro\\i;h is found in the curious payment of Thomas of York, 
 the son of ITlviet, who gives the king a coursing dog that 
 he may be alderman of the merchant-guild of York : the value 
 of a coursing dog was twenty shillings ^, so that either the position 
 was an unimportant one, or Thomas's hold upon it so strong 
 as to make the king's consent a matter of small value. There 
 is as yet no indication that the guild aspires to modify the 
 constitution of the city. 
 
 The origin of guilds, as has been already remarked, runs 
 back to remote antiquity. The simple idea of a confraternity 
 united for the discharge of common or mutual good offices, 
 supported by contributions of money from each member and 
 celebrating its meetings by a jieriodical festival, may find 
 parallels in any civilised nation at any age of the world. The 
 ancient guild is simply the club of modern manners '. In Eng- 
 
 Madox, Hist. Exch. p. 284. There was a hansa also at Montgomery 
 (Eyton, Shronshire, xi. 134) ; at Liverpool, Wigan, and Preston (Harland'.s 
 Mainecestre, i. 182. 19S, 204"). 
 
 * pipe Roll 31 Hen. I, pp. 2, 5, 48, 109. 
 
 * Itjid. pp. 34, 35. Ulviet, the father of Thomas, was, as we learn from 
 the inquest into tlie customs of the church of York (abovi^, p. 305), a lage- 
 raan or magistrate of the city. Perhaps we may infer from this a gradual 
 change from the lageman to the guild system jiroduced by continuing the 
 substantial powor, under different names, bnt in the hands of the same 
 families. Compare the relations of Loofstan and his son llobert with the 
 cnibten-gild an<l weavers' gild of London, above, p. 406. 
 
 ^ On tlie sulijcct of guilds see an essay l)y Brentano, prefixed to Toulmin 
 Smitli's Eiuilitih GUih, which condenses the results of the investigations 
 of VVdda and others. The rules laid down by Hincmar for the geldoniae 
 or confratriae of his time show that they were identical with the religious 
 guilds of the Anglo-Haxons. Gneist, Self-government, i, 1 10, Verwalt i. 139, 
 thinks that too nurh importance has been .attached to the guilds by modern 
 writers, and tli;it their constitutional importance was much less in England 
 than on the Continent.
 
 XI.] The Guild. 413 
 
 land it appears early, if not first of all, in a religious form, and Guilds of 
 that form it retained througliout the middle ages, although it times. 
 does not engross the name. Thi'ee of these religious guilds are 
 known to us by their statutes, which date from the early years 
 of the eleventh century'. At Abbotsbury in Dorset Orcy grants The Abbots - 
 a guild-hall as property to the guild, in honour of God and 
 »S. Peter, and lays down rules for the members. The con- 
 tributions are to be in wax, bread, wheat, and wood : the wax 
 is for the maintenance of lights in the minster. Fines are 
 ordered for the neglect of duty, for offensive words, and for 
 bringing more than the due number of guests to the guild- 
 feast. The only specified duty is that of contributing to the 
 comfort of the dying, and attending the burial and praying 
 for the souls of deceased members : a steward and ' feormeras,' 
 or caterers for the feast, are the only officers mentioned, but 
 there are two classes of guild brothers, one distinguished by . 
 full membership. The I'ules of the Exeter guild direct three The Exeter 
 annual feasts, with masses and i)salm-singing for quick and 
 dead ; the contributions are in malt and honey ; the fines are 
 for neglect of the feast or the contribution, and for offensive 
 words. On the death of a brother an additional subscription 
 of fivepence is called for ; at a house-burning one penny ; 
 and there is a provision for funeral services. The second 
 order of membership appears under the name of ' cniht.' 
 In these two cases the duties of the members are purely re- 
 ligious, and nowhere concern questions of law or j'olice. The 
 statutes of the thegns' guild at Cambridge^ contain similar 
 
 * The statutes of these guilds are given in English by Kemble, Saxons, 
 i. 511-514. Those of Abbotsbury are in the Cod. Dipl. dccccxlii; and the 
 other two in Hickes, Dissert. Epist. pp. 20-22. The objects of the guilds 
 are thus stated by Hint-mar : ' In omni obsequio religionis conjungantur, 
 videlicet in oltlatione, in luminaribus, in oblationibus niutuis, in exsequiis 
 defunctorum, in eleemosynis et ceteris pietatis officiis;' especially the offer- 
 ing of candles and maintenance of lights. Brentano, p. Ixxxi. 
 
 * Kemble, Saxons, i. 513. The thegns' guild naturally calls to mind the 
 lagemanni of Cambridge, mentioned in Domesday, and referred to above, 
 p. 94. The heriot of the Cambridge lagemanni was eight pounds, a jialfrey, 
 and the arms of a knight. They were certainly thegns, and this guild may 
 be a rudimentary form of a corporation ; for it is observable that the guild 
 bretliren make some rules which, without the aid of the magistrates, they 
 would find it very difficult to enforce.
 
 414 Constitutional Kistory. [chap. 
 
 The Cam- provisions : there are directions for the burial of members, fines 
 ri ge guild, j'qj, misgreeting and violence, and regulations for mutual help 
 in difficulties. But there is much more : if a brother be robbed, 
 the guild undertakes to exact eight pounds from the thief; 
 if a brother slay a man righteously, the guild helps to pay the 
 wergild ; if unrighteously, he bears his own penalty ; if one 
 slay another, he must redeem his place as a guild-brother 
 by a fine of eight pounds ; and if any eat and drink with one 
 who has slain a guild-brother, he pays a pound or clears him- 
 self by compurgation. It can scarcely be doubted that this 
 form of guild had legal recognition : the law of Ethelred pre- 
 scribes a fine for breach of ' peace given in an alehouse,' which 
 apparently refers to something of this kind ^. 
 The ' frith- "^^^ Cambridge statutes thus connect the religious guild with 
 ^^^^' the ' frith-gild,' a form of association of which, although it is of 
 
 a more advanced and complex character, there ai'e even earlier 
 documentary traces. The provision of the laws of Ini and 
 Alfred, that the ' gegildan,' or guild-brethren, of the kinless man 
 should share in the receipt and responsibility of the wergild, 
 may possibly be referi'ed to an institution of the sort existing 
 among the foreign settlers in the seaport towns of "Wessex ^ : 
 it is possible that it may denote a wide extension of the guild 
 system amongst the English, but no further light can now be 
 The J!<d2«a thrown upon it. Under Athelstan liowever we have the complete 
 LundMiae. codc of a ' frith-gild of the city of London, in which may be 
 recognised a distinct attempt on the part of the public authorities 
 to supplement the defective execution of the law by measures 
 for mutual defence'. It is drawn up by the bishops and reeves 
 belonging to London, and confirmed by the pledges of the 
 ' frith-gegildas ; ' and, if it be indeed the act of a voluntary 
 association, forms a curious precedent for the action of the 
 Germanic leagues and the Castilian hermandad of later ages. 
 By this statute a monthly meeting is directed, at which there 
 is to be ' l)ytt-fylling''' and a refection, the remains of which 
 
 ' Ethelred, iii. i. 
 
 ^ Ini, 16. 21 ; Alfred, 27, 28; Scliiniil, CicKctze, .';87-589 ; see above, p. 89. 
 
 ^ AtlielHtaii, vi. § I -12; 'Jiuiicia civitatis Luiidoiiiae.' 
 
 * The bytttyUing is in the Latin version buccellorum imphtio, the filling
 
 XI.] The GtdU. 415 
 
 are to be bestowed in alms : on the death of a member each Social and 
 
 police 
 
 brother gives a loaf and sings, or pays for the singing of, fifty svstem of 
 
 ^ ^ , ,. . -1 1 • the LoiK^on 
 
 psalms. Thus far the common form of the rehgious guild is 'frith-jrild.' 
 
 preserved. The other articles refer to the enforcement of 
 
 mutual defence : each member pays fourpence for common 
 
 purjioses, towards a sort of insurance fund from which the" 
 
 guild makes good the losses of members ; and a contribution 
 
 of a shilling towards the pursuit of the thief. The members Its arraiig:e- 
 
 • • <• -111 ment in 
 
 are arranged in bodies of ten, one of whom is the head-man ; tens, 
 these again are classed in tens under a common leader, who 
 with the other head-men acts as treasurer and adviser of the 
 hundred members. The special objects, for which minute di- 
 rections are given, are the pursuit and conviction of thieves 
 and the exacting of compensation, the carrying out of the 
 law which Athelstan and the witan had passed at Greatley 
 and Thundersfield. It is improbable that any institution on 
 so large a scale existed in any other town than London, 
 although the Cambridge statute* may have been drawn up on 
 the same model ; and it would be rash to connect the ' Cnihten- 
 gild ' of Henry's reign with this guild in particular, although 
 the existence of the one, taken in connexion with the ' cnihts' of 
 the Exeter guild, irresistibly suggests the mention of the other. 
 
 A charter of the reign of Edgar mentions three ' geferscipas ' Guilds at 
 or fraternities existing at Canterbury ^ ; one of these may be bury, 
 the priests' guild which is recorded in Domesday as possessing 
 land, another the ' ceapmanne gild,' the third a cnihtengild ^.' 
 
 of butts or vats : -whether the ale brewed at one meeting was drunk at the 
 same, or at the next, or sold for the benefit of the guild, it ia hard to say. 
 No contribution of malt is mentioned in these statutes, as was the case 
 with those of Exeter. The Chronicle of Battle mentions four guilds, adding 
 that the abbot pays to each the regular contribution of a member ' ad 
 cervisiam faciendam,' and has a poor man to represent him and drink his 
 share at each meeting: pp. 20, 21. Giraldus Cambrensis (Ang. Sac. ii. 397) 
 describes the guildhaU of London as ' Aula publica quae a potorum con- 
 ventu nomen accepit.' See above, p. 29, note. 
 
 ' Somner, Canterbury, part i. p. 1 78, describes a charter of Edgar dated 
 A.D. 956, and attested by Hlothwig the port-reeve, and the congregation 
 at Christ Church, and the coTigregation at S. Augustine's, and the three 
 ' gefergcipas innan burhwara utan burhwara miccle gemittan.' 
 
 ^ Somner, p. 170; below, p. 416. An imperfect Canterbury charter of 
 the reign of Etlielbert (S60-866) is attested by 'ego /Ethelstan and ingan 
 burgware, ego ^-Ethelhelm and cniahta gealdan.' Kemble, C. D. ii. p. 83.
 
 41 6 Constitutional History. [chap. 
 
 The The third form of guild, the merchant-guild, ' ceapmaniie 
 
 guild: gilt^le,' or hansa, must be at least as old as the Conquest. 
 
 The charters of the twelfth century refer to the gilda mer- 
 catoria as existing in king Edward's time ■^. The guild-hall of 
 the men of Dover is not likely to have been merely the 
 owning taeeting-place of a private religious club ^. The guilds of 
 Canterbury possessed messuages and lands at the time of the 
 Domesday Survey ; and the ' ceapmanne-gild ' in the days of 
 Anselm exchanged eight houses with the monks of Clirist 
 Church, each party conveying the right of sac and soc as they 
 and making themselves had held it ^. In the hans-hus of Beverley and York 
 the burghers met to make their statutes, the by-laws by which 
 they regulated the trade and other municipal business of the town 
 which did not fall under the view of the more ancient courts, 
 a supple- A merchant-guild which possessed land, exercised jurisdiction, 
 organisa- ^'^^ enacted by-laws, must have already assumed the character 
 '**"■ of an official organisation, supplementary perhaps in the first 
 
 place to the township administration, but gradually coalescing 
 with it. Possibly the merchant-guild may have sometimes pur- 
 chased the firma burgi. For in the great mercantile towns all 
 the land and houses would be held by merchants and their 
 including all dependents : from the merchant who had made three voyages 
 over the sea at his own cost and so thriven to thegn-right, to 
 the mere retailer, every one who was in the jJosiLion of a free- 
 holder was connected with trade, every one who would have 
 a claim on public office or magistracy would lie a member of the 
 guild *. Further still, the merchant-guild supplied a machinery 
 of enfranchisement; the villein, the nativus of the Norman 
 
 If tliis is genuine it iw the earlifst extant instance of such a guild in 
 Engliind. 
 
 ' Charter of Lincoln, Foedera, i. 40. ' Domesday, i. I. 
 
 * It i.s an agieenicnt ' l)ut\vux than hirede jet Christcscircean and than 
 cnihtan on CJantwarcherig of cepnianne glide ;' and it is attested by Calveal 
 the ' portcgerefa and tlia yldista men of tham heape.' Honiner, p. 179- 
 
 * 'I'lio chartrrs of Henry II and Iliciiard I to Winchester are granted to 
 the citizens of tlie niorcliMnt-guild ; Select Charters, pp. 158, 257. Whether 
 this means that id! the citizens of tlie town were in the guild, or that there 
 wei'e others dependent on the l)isliop who were not in tlie guild, can only 
 be decided liy local records. The privileges granted are much the tamo as 
 thoae generally bestowed on burgenses.
 
 XI.] The Merchant Guild. 417 
 
 times, who could obtain admission into the guild and was un- Enfranchis- 
 claimed by his lord for a year and a day became a freeman^, or the 
 His membership was allowed to give him that status which guild, 
 otherwise the law refused to landless men. 
 
 The merchant-fiuild contained all the traders, whether or no Its mono- 
 
 ° poly of local 
 
 they possessed an estate of land. The charters of Oxford and trade. 
 other towns direct that no one shall exercise any merchandise 
 in the town who does not belong to the merchant-guild or 
 cannot plead ancient custom^. Such a fraternity would of 
 course aim at engrosi^ing among its own membei's the local 
 authority : they would furnish the great majority, if not the 
 whole of the members of the coui't-leet ; they would be the 
 electors of the reeve, the recipients of the charters. There were Craft-guilds, 
 craft-guilds besides, those of the weavers and shoemakers for 
 instance, which might in small manufacturing towns aim at 
 the same position, but wliicli would as a rule content themselves 
 with making regulations for their own crafts and with possessing 
 property to pay the expenses of their own festivals. The fines 
 paid by these bodies show that the king or the sheriff viewed 
 them with jealousy ; the confirmation of their position by charter 
 j)rovcs that they were originally voluntary associations and not 
 the creation of the State. The right of the mei'chant-guild to Relation 
 exclude from the privileges of trading all who were not members mcrchant- 
 of its own body seems to imply necessarily either that these craft- f"jjft.g^ds. 
 guilds originally stood in a filial relation to it, or that the member- 
 ship of the narrower involved also the membership of the wider 
 society. The struggles between the patrician burghers of the 
 merchant-guild and the plebeians of the craft-guilds, which mark 
 the municipal history of Germany, have no exact parallel in 
 
 ' Customs of Newcastle, Select Charters, p. 107 ; charter of Lincoln, ibid. 
 159 ; chai'ter of Nottingham, ibid. 159 ; Glanvili, De Legibus, v. 5, ibid. 155. 
 
 ^ So also that of Montgomery ; Ey ton's Shropshire, xi. 134; and that of 
 Chester; Harland's Mamecestre, i. 189. It is probable that this arrange- 
 ment was of the essence of the guild, and that the power of enforcing the 
 regulation was the great privilege secured by the confinnation of the 
 guilds by charter. The same exclusive right is exercised, occasionally at 
 least, by the craft-guilds: in 1157 the shoemakers of Magdeburg ordained 
 that no shoes should be sold in the city except by members of their guild 
 or by their licence; G. L. von Maurer, Stadteverfassg. ii. 397. Compare 
 the case of the weavers of York, Kot. CI. i. 421. 
 
 £ e
 
 41! 
 
 Constitutional History. 
 
 [chap. 
 
 The 
 
 merchant- 
 guild and 
 tlie craft- 
 guilds. 
 
 Cousti'u- 
 tional posi- 
 tion of the 
 merchant - 
 guild. 
 
 E«lat'on of 
 the guild 
 to the 
 communa. 
 
 Illegal 
 guilds. 
 
 Illffral 
 communa. 
 
 England altliougla there are traces of disputes between the 
 mayor and citizens of London and the guiid of weavers in the 
 fourteenth century which show that the relations of the two 
 bodies were not satisfactorily determined ^. That these rela- 
 tions were created by a separate measure, such as that by 
 which the several guilds at Berwick'' coalesced in a single 
 merchant-guild, is scarcely probable. For the present period 
 however the existence of the merchant-guild and its prominence 
 in the charters are nearly all the data that we possess. In the 
 reign of Henry II there can be little doubt that the possession 
 of a merchant-guild had become the sign and token of muni- 
 cij^al independence : that it was in feet, if not in theory, the 
 governing body of the town in which it was allowed to exist. 
 It is recognised by Glanvill as identical with the communa of 
 the privileged towns^, the municipal corporation of the later age. 
 Yet the merchant-guild and the governing body of the town 
 are not identical in idea ; the chief of the guild is the aldeniian, 
 the chief of the magistracy is the praepositus or reeve. The 
 merchant-guild of York may be recognised, but the communa of 
 London is watched and discouraged ; the formation of new guilds 
 without authorisation is punishable ; they are adulterine like the 
 adulterine castles of the barons ; their object is suspected to be 
 not the maintenance of their craft, or of peace or religion, but 
 the defeating of the king's rights. In the twenty-sixth year of 
 Henry II, eighteen adultei'ine guilds in London are fined in 
 various suras ; amongst these are the goldsmiths, the butchers, 
 and the pilgrims ; each is mentioned as having its own alder- 
 man*. The offence of Ailwin of Gloucester" and of Thomas 
 ' from beyond the Ouse ^ ' at York was probably of the same 
 sort, they had set up a ' communa ' without authoiity. There 
 must have been in London, and in a less number in York and 
 
 * Madox, Firma Burgi, pp. 192 sq. 
 
 * TTouard, Ti-aitds, ii. 467 ; Smith, Engli.sh Gilds, pp. 338 sq. ; Acts of 
 Parliament of Scotland, i. iSy. 
 
 ^ (jlanvill, I)e LcgibuH, v. 5. 
 
 ' ' Admciciamenta de gildis adultorinis ;' Hist. Exch. pp. 39O, 391. 
 
 * ' Ailwinus Merciarius reildit conipotum do £100 pro Communa.' Hot. 
 Pip. 16 Henry \\\ Tli.st. Exuh. p. 391. 
 
 " ' Thomas de Ultrtiusa reddit compuf um de xx. marcis pro Communa 
 quam volebant facerc.' Kot. Pi]i. 22 Henry II ; Firma Burgi, p. 35.
 
 XI.] The Towns. 419 
 
 Winchester also, some other influential men who were not con- 
 nected with trade, and whom the aggressive policy of the guilds 
 would necessarily exclude from municipal jiower : these con- 
 tinued prohablv to hold their own courts as lords of manoi'S or Relation of 
 ,,. " . p ,..,.. „ . . the suild to 
 
 to claim exemption from the jurisdiction of magistrates from the land- 
 
 whose election they were excluded ; but they can never have been community. 
 
 strong enough to oppose the popular current : the great men of 
 
 Lincoln who possessed sac and soc must either have been 
 
 absorbed in the merchant-guild or have been bought up by it 
 
 before Henry II recognised it by charter ; possibly before 
 
 Henry I sold to .the burghers the status of tenauts-in-chief. 
 
 But doubtless every trading town had its own special history, 
 
 and made its own special sacrifices for unity and freedom. In The gi-owth 
 
 London the struggle lasted the longest and took the most corporation 
 
 , 1-11 of London. 
 
 various forms. The communa there did not obtain legal recog- 
 nition until 1 191 ; it was not until the reign of Edward II that 
 all the citizens were obliged to be enrolled among the trade- 
 guilds, and in the reign of Edward III the election of the city 
 magistrates was transferred from the representatives of the 
 ward-moots to the trading companies \ 
 
 The history of this feature of our local institutions will always Political 
 
 . . , . ... importance 
 
 be read with different feelings ; whilst municipal independence of these 
 
 has in many cases helped the cause of liberty, it has in others 
 encroached largely on wider rights ; and so far as it is based on 
 the guild, it must be regarded as the result of a series of infringe- 
 ments on the ancient rights of free inhabitants, as one out of 
 many cases in which an organisation originally created for the 
 pi'otection of the weak has been allowed to monopolise their rights 
 and to usurp the functions of government^. The dislike with 
 which the communa was viewed outside the towns is marked by 
 Richard of Devizes, a free-speaking author, who furnishes some 
 important data for the civic history of the reign of E-ichard I. 
 The communa is ' tumor plebis, timer regis, tepor sacerdotii.' 
 
 * See Dr. Erentano's Essay in Smith's English Gilds, p. cxi. 
 
 ^ That this was the case with the French communes occasionallj' may be 
 seen by the charter of Philip IT, withdrawing the privileges of Etanipes in 
 consequence of the oppression of the churches and knijjhts by the commune ; 
 Ordonnances des Eois, xi. 277. 
 
 E e 2
 
 420 
 
 Constitutional History. 
 
 [chap. 
 
 Gro\vtli The process then by which the guilds gained their municipal 
 
 communes position is obscure ; and it was not comjjleted wdtliin the 
 Norman period. Its history can scarcely be interpreted without 
 reference to the development of town organisation which was 
 going on abroad. In France the communal constitution was 
 during this period encouraged, although not very heartily, by 
 Lewis VI, who saw in it one means of fettering the action of 
 the barons and bishops and securing to himself the support of a 
 strong portion of his people^. In some cases the commune of 
 France is, like the guild, a voluntary association, but its objects 
 are from the first more distinctly political. In some parts of 
 the kingdom the towns had risen against their lords in the 
 latter half of the eleventh century, and had retained the fruits 
 of their hard- won victories^. In others, they possessed, in the 
 remaining fragments of the Karoliugian constitution, some 
 organisation that formed a basis for new liberties. The great 
 Charters of number of charters granted in the twelfth century' shows that 
 the policy of encouraging the third estate was in full sway iu 
 the royal councils, and the king by ready recognition of the 
 popular rights gained the affections of the people to an extent 
 which has few parallels iu Fi-ench history. The French chartei's 
 
 ' Thierry divides the municipalities of France into five zones or i-egions : 
 (i) tlie North, the home of the sworn commune, comprising Picardy, Artois, 
 Flanders, the Isle of France, Champagne, and Normandy; (2) the South, 
 the home of the consular forms, dating (by a hare possibility) from Roman 
 times ; (3) Central Fi'anco, where the administration was generally in the 
 hands of a prevot, and the constitution, something like that of tlie English 
 unchartered towns, based on the ancient usage in the rural districts ; 
 (4) the West, comprising Brittany and the Poictevin provinces; in the 
 former the parish church was the centre of administration, and the system 
 was generally parochial, h;df ecclesiastical .and half civil ; in the latter 
 sworn communes were foun<led on the model of Normandy ; (5) the 
 Eastern, which had been part of the medieval German empire and shared 
 the general history of the Cernian njunici])alities. Tableau de I'Aneienne 
 France Municipale ; Hist, du Tiers J<^tat, ii. 42 sq. 
 
 ^ The commune of Le Mans ap|)ears as early as 1072, ' facta igitur con- 
 apiratione (juam communionem vocabant ;' (Jesta Pont. Cenomann., Ma- 
 billon, Analecta, p. 308 ; that of Caiubray <lates from 1076, and that of 
 Beauvais from 1099. Thierry, IMers l*>tat, ii. 62. 
 
 ^ Many of these may he found in tlie Ordon. des Rois ; in ]?aluze's Miscel- 
 lanea, vols. iii. iv., and in the Kocueil des Monuments Inedits de 1' Hist, du 
 'I'iers Ktat, cd. by Aug. Thierry. See also Kemble, Sa.xons, ii. pp. 521-544; 
 and tlie Historical Illustrations appended to Guizot'a Lectures on Civilisa- 
 tion iu France.
 
 XI.] The Towns. 421 
 
 are in both style and substance very different from the En^dis^li. T)ie charac- 
 
 rni 1-1 • • ter or their 
 
 The uberties which are bestowed are for the most part the same\ liberties. 
 exemption from arbitrary taxation'^, the right to local jurisdic- 
 tion*, the privilege of enfranchising the villein who has been for 
 a year and a day received within the walls*, and the power 
 of electing the officers^. But whilst all the English charters 
 contain a confirmation of free and good customs, the French arc 
 tilled with an enumeration of bad ones". The English recur in Contrasted 
 
 . .,.,.. , , vvith those 
 
 thought to a time when, in tradition at least, they possessed of England. 
 all that is granted, and even more ] the French regard only the 
 present oppressions from which they are to be delivered. The 
 English have an ancient local constitution the members of which 
 are the recipients of the new grant, and guilds of at least 
 sufficient antiquity to render their confirmation typical of the 
 freedom now guaranteed ; the French communia is a new body 
 
 ' Many of the provisions of the communal charters recall the early guild 
 customs ; e.g. the direction that the members shall not abuse one another 
 (Stabilimentum Rothomagense, Duchesne, p. 1066) ; the entrance into the 
 body is cfl'ected by a pa3'ment to the common fund (charter of Noyon, 
 A.D. 1191 ; Baluze, iii. 79). 
 
 * See the ch.arter of Tours, a.d. 1181 ; Baluze, iii. 80 : Chaumont, A.D. 
 1182 ; Ordonnances, xi. 225. In the latter case the words are, ' ut omnes 
 qui in eadem iiermanebunt Communitate, ab omni talliata, injusta captione, 
 creditione et universa irrationabili exactione, cujuscunque siut homines, 
 liberi et immunes jure perpetuo permaneant.' 
 
 ^ Only however where the king's own riglit of demesne was clear; the 
 commune of Beauvais was under the justice of the bishop; Ordonnances, 
 xi. 198. The privilege of not being called to plead outside the town is 
 common ; e.g. charter of Corbie, Ordonn. xi. 216. 
 
 * ' Si quis moram fecerit per annum et diem in Communia Senonensi in 
 pace et sine juris vetatione, et aliquis postea emu requisierit quod .sit homo 
 suus, non illi de eo respondebunt jurati;' Charter of Sens, A.D. 1189; 
 Ordonn. xi. 263. The privilege was not peculiar to communes: ' Quicunque 
 vero in villam venientes, per annum et diem ibi in pace manserint, nee per 
 regem, ncc per praepositum, nee per nionachum justitiam vetuerint, ab omni 
 jugo servitutis deincejjs liberi erunt ;' Charter of the vill of Scans, A.D. 1 153 ; 
 Ordonnances, xi. 199. Cf. tlie cliarter of Voisines, A.D. 11S7 ; ibid. iv. 456. 
 It was prob.abh' an under.'ftood riglit, which required limitation : the free 
 rustic who wished to join the commune of S. Eiquier had to resign his land 
 to his lord; Ordonn. xi. 184. Cf. charters of Koye, ibid. 233; and Bray, 
 ibid. 296. The parish of Lorris has the enfranchising clause; ibid. p. 202. 
 
 ^ Charter of Tours; Baluze, iii. So: Beauvais; ibid. 81 : Chateauneuf, 
 A.D. 118 1 ; Ordonn. xi. 221. 
 
 ® See the charter of Bourges, A.n. 1I45; Ordonnances, i. 9: that of 
 Orleans, a.d. iif)8; ibid. i. 15: that of Amiens: ibid. xi. 264; Baluze, 
 iii. 84: Beauvais, a.d. 1115; Ordonnances, xi. 177: Laon, A.D. 1128; 
 ibid. 187,
 
 422 
 
 Constitutional History. 
 
 [chap. 
 
 contrasted 
 witli the 
 English 
 guild. 
 
 The French which, by the action of a sworn confederacy, has wi'ung from its 
 oiDpressors a deliverance from hereditary bondage ^. The French 
 charters abound in saving clauses protecting the rights of the 
 feudal lords which the grant infringed, or setting aside those 
 , rights in accordance with the principle of alliance between king 
 
 and commune against their common foes. In the English charters 
 there are no signs of such antagonism as marks the one case, 
 or of such cautious liberality as distinguishes the other. The 
 commune lacks too the ancient element of festive, religious, or 
 mercantile association which is so conspicuous in the history of 
 the guild. The idea of the latter is English, that of the former 
 is French or Gallic. Yet notwithstanding these differences, the 
 substantial identity of the privileges secured by these charters 
 seems to j)rove the existence of much international sympathy. 
 The ancient liberties of the English were not unintelligible to 
 the townsmen of Normandy ; the rising freedom of the German 
 cities roused a like ambition in the towns of Flanders^; and the 
 struggles of the Italian municipalities awoke the energies of the 
 cities of Provence. All took different ways to win the same 
 liberties. 
 
 The town life of Germany presents in its mercantile develop- 
 ment a closer parallel with that of England, but there is not 
 between the two systems the direct historical connexion which, 
 through the long union of the Norman, Angevin, and Poictevin 
 inheritances with the English croAvn, subsists between the insti- 
 tutions of France and England. The German hansa may have 
 been derived from England ; the communa of London was 
 certainly derived from France. Hence for points of common 
 history we must look further back, to the township and the 
 mark : the later growth of German city life, the colonial 
 character of the great Saxon towns with their artificial patri- 
 ciate and sirict caste system, the independent mercantile com- 
 
 Town life of 
 Germany. 
 
 * * Universi homines infra murum civitati.s ct in suburbio comniorantes. 
 in cujuscunf|Uo terra nianoant, connnuiiiani jurabunt.' Charter of Beauvais, 
 A.D. 1 182; Biiluzu, Misc. iii. 80: cltarter of Compicgne, A.U. 1153; ibid, 
 p. 83 : of SoiHKonH, a.d. ii8r ; ibid. p. 79. 
 
 * See the l''ienii.sh uliarterH in Keiidde, Saxons, ii. 528 sq. In that of 
 S. Omer the guild has an important place.
 
 xr.] The Towns. 423 
 
 munities of the Rhine and Franconia, the imperial history "f ^^,^|f^onsU- 
 Worms, Cologne, and Frankfort, the mercantile principalities ^^^^^"^ 
 of Augsburg and Nuremberg, have, if some slight coincidences 
 in London history be excepted, no parallels in England. The cities 
 of Spain again, whilst they unite in one form or other most of 
 the elements existing separately elsewhere, — the colonial charac- 
 ter of the Saxon, the communal spii-it of the French, the mer- 
 cantile association of the English town system, — are in the 
 details of their historical growth far removed from the condi- 
 tions of English society ; and they are, it must be added, too little 
 illustrated by accessible documentary history to furnish either a 
 
 parallel or a contrast. The Italian towns have a distinct de- Italian 
 * ... towns, 
 
 velopment of their own, rather owing, it is true, to their external 
 
 relations than to any peculiar element inherent in their institu- 
 tions, but sufficiently mai'ked to make us set them aside in a 
 view so general as that to which we must limit ourselves. Great 
 in mercantile enterprise, great in political ambition, centres of 
 life and progress, they were no integral part of the system in 
 which they were embedded : they were, whether bound to, or in 
 league against imperial power, practically independent of any 
 higher authority than their own ; and by their jealousies, enmities, 
 and ambitions, they constituted themselves political unities, too 
 weak to stand alone, too proud to throw themselves into the 
 general interest of the peoples among which they were placed, 
 destined by their very temper and circumstances to a short and 
 brilliant career, but allowed to claim a very slight share in the 
 benefits, for the winning of which their own history had been 
 both a guiding and a warning light. 
 
 The communa of London, and of those other English towns Kelics of 
 
 ' _ '^ ^ Older sys- 
 
 which in- the twelfth century aimed at such a constitution, was tems survive 
 the old Euclish guild in a new French garb : it was the ancient m'«i«'n cor- 
 
 , . . . porations. 
 
 association, but directed to the attainment of municipal rather 
 than mercantile privileges : like the French commuuia, it was 
 united and sustained by the oaths of its members and of 
 those whom it could compel to support it. The major and 
 the jurati, the mayor and jurats, were the framework of the 
 commuua, as the alderman and brethren constituted the guild,
 
 424 Constitutional History. [chap. 
 
 The mayor, and the reeve and s'ood-men the magistracy of the township. 
 
 and coun- And the System which resulted from the combination of these 
 elements, the history of which lies outside our present period and 
 scope, testifies to their existence in a continued life of their own. 
 London, and the municipal system generally, has in the mayor 
 a relic of the communal idea, in the alderman the representa- 
 tive of the guild, and in the councillors of the wards the suc- 
 cessors to the rights of the most ancient township system. The 
 jurati of the commune, the brethren of the guild, the reeve of 
 the ward, have either disappeared altogether, or taken forms in 
 wliich they can scarcely be identified. 
 
 Chartered Although the importance of this rising element of Ensflish 
 
 towns not ... , . 
 
 numerous in life is sufficiently great to justify the place that we have here 
 
 the Norman .... •> J i 
 
 period. given it, it is not to be supposed that during the period before 
 
 us it Avas very widely diffused. The English municipalities were 
 neither numerous, nor, with the exception of London, in pos- 
 session of much political power : their libei'ties took the form of 
 immunities and exemptions, rather than of substantial influ- 
 ences : they were freed from the exactions of the sheriffs, but 
 not empowered to take a representative share in the adminis- 
 tration of the county; they were enabled to try their own 
 prisoners, to oust strange jurisdictions, to raise their taxes in 
 their own way, but not to exercise jurisdiction outside their 
 walls, or to raise their voice in granting or refusing a contribu- 
 tion to the wants of the State. Even their charters were re- 
 ceived with misgiving, they were purchased with solid gold, and 
 had as a matter of fact to be redeemed in the form of confirma- 
 Their tioii from each successive king. Still the history of the twelfth 
 
 ^rowtn oon- _ ... 
 
 tinuoiis. century is one of distinct and uniform progress. 
 
 Points of The close of the Norman period saw the English towns thus 
 
 develop- n ^ i i • • c i 
 
 nient. far advanced, and aimnig at further growth. They had secured 
 
 the firma burgi, and freed themselves from the pecuniary exac- 
 tions of the sheriffs ; they had obtained a recognition by charter 
 of their free customs, that is of the special rules of local adminis- 
 tration which tlicy had immcmorially observed, especially the 
 exem])tion from the Noimau innovation of trial by battle ; their 
 constitution was still that of the township and the hundred.
 
 XI.] The Towns. 425 
 
 but the relief from tlie financial administration of the sheriff Advantajres 
 
 .... 1 ''caiiy 
 had surfofcsted the possibility of liberation from his judicial secured by 
 
 _ "* _ ^ •'^ _ •' the towns. 
 
 administration also. The guilds were operating so as to pro- 
 duce a stronger cohesion among the townsmen ; they gathered 
 frequently in their drinking-halls, and drew up their own regu- 
 lations for the management of trade ; their leading men pos- 
 sessed the ancient burgages on which the king's dues were 
 payable, and this was enough to entitle them to such social power 
 as was left in local hands ; they possessed, if not the sole right to 
 trade, something very like a monopoly of all mercantile dealings, 
 and a claim to immunity from tolls throughout the shire or the 
 realm, and in some cases even in the foreign dominions of the 
 king. Accordingly the membership of the guild is indispensable 
 to the full and perfect status of the burgher. Some, if not all, 
 the towns so privileged, could confer freedom on the villein by 
 allowing him to stay for a year and a day within their walls, or 
 enrolling him in their guild : the most offensive of the services 
 demanded from tenants of demesne land were remitted to them. 
 They could still be tallaged, taxed at the will of 'the king, but 
 so could the rest of the nation. Except through the agency of 
 tlieir own magistrates they could not be forced by a stranger 
 to appear in the courts of law. Diversities of custom there 
 doubtless were, but in all this there was a strong tendency 
 towards liberty. How well the towns repaid the confidence 
 shown by the kings in the gift of these privileges appears in 
 the history of Henry II and his sons. 
 
 The example set by the sovereign in the cities and boroughs Towns in the 
 that were under his direct control Avas followed by the lords mesne lords, 
 who held boroughs in demesne. The earl of Leicester chartered 
 his town', and the carl of Chester the boroughs of the palatine 
 
 ' Thompson, ^runicip.al Antiquities, pp. 29, 39, 4T, 44. &c. The history 
 of Leicester supplies a story ilhistr.itive of the prncess by which new liber- 
 ties were obtaineil. In order to avoid the necessity of trial by battle, the 
 men of Leicester, in or about the reign of Henry I, petitioned the earl 
 that they might have a body of tw-enty-four men chosen out of their own 
 number to decide all pleas ; and they promised to pay 2,d. yearly for each 
 house in the High-street that had a gable : these twenty-four were the 
 jurors of the portuian-mote ; a court which appears in some other corpora- 
 tions in the north, and answers to the court-leet, or lagh-moot. The story
 
 426 Constitutional History. [chap, 
 
 earldom : Durliam received its privileges from the bishop, and 
 the great prelates whose rights excluded the interference of 
 sheriff and shire-moot were able to bestow on their towns privi- 
 leges scarcely less extensive than those given by the crown. 
 
 Unchartered But there were other town communities outside all these classes, 
 towns. 
 
 depending on mesne lords who were without the power of 
 
 granting immunities, or depending on the crown but not rich 
 
 enough to purchase charters. These subsisted under the ancient 
 
 township or manorial system, and down to a comparatively late 
 
 period were distinguished only by external features from the 
 
 Market rural communities. From this class sprang the largest part of 
 
 tO\TOS. ^ ® , . ° ^ . 
 
 the market towns of the present day : the privilege of having 
 
 a market was not grudged by the rulers whose revenues it 
 
 helped to swell; and once established, the market involved 
 
 a humble machinery of police and magistracy, which gave to 
 
 the place, otherwise undistinguished from the villages around it, 
 
 some semblance of municipal constitution. 
 
 The villein 132. The history of that extensive portion of the population 
 
 which lay outside the classes thus accounted for, is, during the 
 
 Norman period, extremely obscure. The man who had no 
 
 political rights, and very little power of asserting his social 
 
 I'ights, who held his cottage and garden at the will of a master 
 
 who could oppress him if he could not remove him, and could 
 
 claim without rewarding his services, — who had no rights against 
 
 his master, and who could only assert such i'ights as he had 
 
 The nisticus thi'ouffh the aa:cncy of his master, — the rusticus, the nativus, the 
 or nativus. ° . 
 
 servus, — fell only occasionally within the vieAV of the writer who 
 
 chronicled great events, and tlien but to add an insignificant 
 feature to his picture. The villein possessed no title-deeds, by 
 the evidence of which his rights were attested ; he carried his 
 trouliles to no court that was skilled enough to record its pro- 
 ceedings. It is oidy by a glimpse here and there that we are 
 enabled to detect his existence ; and the glimpses are too un- 
 certain to fuiiiish a chie by which his history can be traced. 
 
 is found in an inquest of 39 Hen. Ill, wliicli, I fojir, is not good authority. 
 Compare, however, the chiirtcrs printed in Harland's Maniecestre, i. 182, 
 183, i88, 195, iij8, 199, where important ilhistralions are given from the 
 constitutions of Chester, Preston, Liverjiool, Lancaster, and iSalford,
 
 XI.] The Villenage. 427 
 
 Yet when he reappears, as he does in the thh'fceenth and four- Depression 
 
 teenth centuries, he bears marks of a history on whicli some tude. 
 
 conjectures must he hazarded. Under the Anglo-Saxon system 
 
 there is no difficulty in estimating his position : it is one of 
 
 depression but not of helplessness : when he comes before us in 
 
 the reign of Richard II his condition is one which suggests that, 
 
 however much social causes may have served to ameliorate his 
 
 actual lot, the legal theory of his status has become hardened 
 
 and sharpened so as to warrant almost wanton oppression. 
 
 The Anglo-Saxon laws recognised, as we have seen, a class of Anglo-Saxon 
 o o ' ' servitude. 
 
 serfs, or theows, who Avere the mere chattels of their master. The 
 landless m^n, on the contrary, was free in all personal relations, 
 although he must have a surety or a patron, to answer for his 
 forthcoming, or to assert his rights in all matters of which the 
 law took cognisance. The landless man might settle on the land 
 of another, or take service in his household ; he might act as 
 a liired labourer, or as a small rent-paying tenant ; he might be 
 attached hereditarily to his master, or to the land that his 
 master owned. And the lowest class of landowner, that is, the 
 ceorl who possessed a little alod of his own, had often, perhaps 
 generally, found it necessary to put himself under the protection 
 of his powerful neighbour, who would defend his rights and dis- 
 charge his public services in consideration of a rent paid or labour 
 
 given, or an acknowledfrment of dependence. The barons who took Servitude in 
 " ' o i Domesday. 
 
 the Domesday Survey recognised the existence of all these clashes, 
 and of distinctions among them much more minute than can be 
 interpreted at the present day ^. That record attests the exist- 
 
 ' EllLs, Intr. ii. 511 sq., gives the following numbers: bordarii, 82,119; 
 cotarii, 5054; coscets, 1749; servi, 25, 156; villani, 108,407; besides 
 small numbers of different classes which may be referred to the same heads. 
 The distinctions among these classes are generally based on the variety 
 of services to whicli they were liable or the extent of the l;\nd they were 
 allowed to hold ; but local customs differed, and the warning, ' Videat qui 
 scyram tenet, ut semper sciat quae sit antiqua terraium institntio vel po- 
 puli consuetudo,' wa.-s very necessary. Rectitudines, in the Ancient Laws, 
 ed. Thorpe, p. 186. Most of the terms are explained in the Rectitudines 
 Singularum Personarum ; in Greenwell's edition of Boldon I'uke, pp. 1. sq. ; 
 in Robertson's Scotland under her Early Kings, ii. 158 sq. ; in Hale's 
 Domesday of S. Paul's, and Register of Worcester ; in Pearson's Early 
 and Middle Ages, Thorpe's Lappenberg, and Ellis's Introduction to 
 Domesday.
 
 428 Constitutional History. [chap. 
 
 ence of more than 25,000 servi, who must be understood to be, 
 at the liighest estimate of their condition, landless labourers; 
 over 82,000 bordarii; nearly 7000 cotarii and cotseti, whose 
 names seem to denote the possession of land or houses held by 
 service of labour or rent paid in produce ; and nearly 110,000 
 villani. Above these were the liberi homines and sokemanni, 
 who seem to represent the medieval and modern freeholder. 
 
 Villenagein The villani of Domesday are no doubt the ceorls of the pre- 
 omes ay. ^^jjj^g period, the men of the townsliip, the settled cultivators 
 of the land, who in a perfectly free state of society were the 
 owners of the soil they tilled, but under the complicated system 
 of rights and duties which marked the close of the Anglo-Saxon 
 period had become dependent on a lord, and now under the 
 prevalence of the feudal idea were regarded as his customary 
 tenants ; irremovable cultivators, Avho had no proof of their 
 
 Advantages title but the evidence of their fellow ceorls. For two centuries 
 ' after the Conquest the villani are to be traced in the possession 
 of rights both social and to a certain extent political : their 
 oaths are taken in the compilation of Domesday, their repre- 
 sentatives attend the hundred-moot and shire-moot ; they are 
 spoken of by the writers of the time as a distinct order of so- 
 ciety, who, although despicable for ignorance and coarseness \ 
 were in possession of considerable comforts, and whose immu- 
 nities from the dangers of a warlike life compensated for the 
 somewhat unreasoning contempt with which they wei*e viewed 
 by clerk and knight. During this time the villein could asseit 
 his rights against every oppressor but his master ; and even 
 against his master the law gave him a standing-ground if he could 
 make his comi:)laint known to those who had the will to maintain 
 it. But there can be little doubt that the Norman knight 
 practically declined to recognise the minute distinctions of Anglo- 
 
 Tondency Srtxon dc])eiidence, and that the tendency of both law and social 
 
 df'prcssion hal)it was to throw into the class of nativi or born villeins the 
 whole of the po2)ii]ation described in Domesday under the heads 
 
 ' E.g. ' Servi vero, qnoa vocamus rusticos, ruos ignominiosos et degeneres 
 in artibus eis indebitis enutrire contenilunt, non ut e.xeiint a vitiis sed iit 
 abundent divitiis . . . Rcdimunt suos a dominis servi. . . .' W. Map, de 
 Nugia Curialium, p. 9.
 
 XI.] The Villenage. 429 
 
 of servi, borclarii, and villani ^ Not but that, if it came to a Legal status 
 
 oftlievilleiu. 
 question of law, the local witnesses might in each case draw 
 
 a distinction as to the status of the villein concerned ; the testi- 
 mony of the township or the hundred might prove that this 
 man was descended from a family which had never been free, 
 this from a bought slave, this from a commended ceorl ; but 
 the law administered by Norman jurists classed nativi and vil- 
 lani together^ : the nativus could not be made a knight or a 
 clerk without the leave of his master, or Avithout formal emanci- 
 pation ; the villanus, with his sequela, his service, and his 
 progeny, could be disposed of in the same deed of sale or gift 
 that alienated the land on which he had been settled for ages ' : 
 the villein could not leave his home, for by so doing his lord 
 lost his services. It is true that in a state of society in which 
 the land is far too wide for its inhabitants, and in which accord- 
 ingly the wages of labour may be said to be paid in land, such 
 a state of dependence may be compatible Avith much personal 
 comfort and some social ambition ; but it is in itself a degraded 
 position, and has a tendency to still further degradation. Inci- 
 dentally however it is probable that the influx of Norman ideas 
 helped to raise the lowest rank of dependents ; for although the 
 free ceorl becomes the villein, the servus or theow disappears 
 altogether. Not to anticipate here the fui'ther conclusions which 
 still lie far ahead of us, it may be said that under the Norman 
 
 ' In one entry on the Pipe Roll of Henry I they seem to be treated as 
 part of the stock upon an estate : 'Eestoldus debet £239 15s. 2d. uumero, 
 pro defectu comitatus, videlicet in annona, et domibus, et granijiis, et 
 molendinis, et piscariis, et villanis, et bordariis, et buris et bubulcis et 
 foeno ; ' p. 2. 
 
 ^ The fifth book of Glanvill is devoted to the question of vdllenage, or 
 the status of the nativus : ' Omnia catalla cujuslibet nativi ita intelliguntur 
 esse in potestato domini sui quod propriis denariis suis versus dominum 
 suum a villenagio se redimere non poterit ; si quis vero extraneus eum ad 
 liberandura emeret suis nummis, posset quidem perpetuo versus dominum 
 suum qui eum vendiderat se in statu libertatis tueri.' ch. 5. ' Ascriptitii 
 qui villani dicuntur, quibus non est liberum obstantibus quidem doniinis 
 suis a sui status conditione discedere ;' Dialogus de Scaccario, i. 10. The 
 chattels of the ascriptitii might be sold to pay their lord's debts, but not 
 until all his own saleable property had been sold; and in case of a scutage, 
 those of the knights holding under a defaulting lord might be sold as well 
 as those of the villein. Ibid. ii. 14. 
 
 ' See examples in Madox, Formulare Anglicanum, pp. 416 sq. None 
 of them however belong distinctly to the Normau reigns.
 
 430 ConstiUitional History. [chap- 
 
 Advantages kings such slio'lit indications as we possess of the state of the 
 of the villein .„*. , *^ , ^ . ^ . „ ■^ ^^ 
 
 in the Nor- A'lileuis SHOW them to have been in possession ot consiaerable 
 
 man period. . , . ., ™, „ . , . i? xi • 
 
 social privileges. They were safe m the possession ot their 
 homes ; they had a remedy against the violence of their masters* ; 
 they could, if they chose to renounce their holdings and take 
 refuge in a town, become members of the guild, and there, when 
 unclaimed for a year and a day, obtain the full rights of free men ; 
 they could obtain manumission by the intervention of the Church, 
 which always j)roclaimed the liberation of the villein to be a 
 work of merit on the part of the master. But it by no means 
 followed that manumission was a material benefit, if thereby the 
 newly enfranchised man lost his title to be maintained on his 
 lord's land, and must forthwith look for new service or throw 
 himself on» the chances of war or trade. Under a fairly good 
 lord, under a monastery or a college, the villein enjoyed immu- 
 nities and security that might be euA-ied by his superiors ; he 
 had a ready tribunal for his wrongs, a voice in the management 
 of his village ; he might with a little contrivance redeem his 
 children and start them in a higher state of life. His lord had a 
 peremptory claim on his earnings, but his lord had a lord whose 
 claims on him were as irresistible if not as legally binding. He 
 
 His dis- was excluded from juries and assizes touching property, but by 
 abihties not . ni<. ^ • t e • ■ 
 
 disadvan- that exemption he was freed from the risk ot engaging m 
 
 him. quarrels in which he would be crushed without pity by the more 
 
 powerful neighbour against whom he might have to testify. If 
 
 he was without political rights, so were also the great majority 
 
 of his superiors. 
 
 The few laws of the Norman period do not much affect the 
 
 villein. The manumitting clause of the Conqueror's charter, as 
 
 commonly received, is the interpolation of a latei age^ : it is 
 
 ' ' Aluredus de Cheaffeword reddit compotum de 40s. i)ro rustico verbe- 
 rato/ This must have been bis own rmdcnfi, for an assault on another 
 man's vilh in would not liave been reported in the royal accouuts. Pipe 
 Iloll 31 Hen. T, p. 55. 
 
 ' Thorpe, Ancient Laws, p. 21^: 'Si qui vero velit servum suum liberum 
 
 facere, tradat eum vicecomiti per manum dexteram in pleno coniitatu, 
 
 quietuin illuiii'clam.arc debet a jngo servitutis suae per manuuiissionem, et 
 
 ^ ostendat ei liberas via.s et tradat illi libera anna, scilicet lauceam et 
 
 gladium, dcindc liber homo cfficitur.'
 
 XI.] The Army. 431 
 
 only by a bold inference that we can argue from the words of Lejrnl 
 the charter of Henry I that the villeins came within the pro- the villein, 
 vision that the barons should treat their men as the king treated 
 the barons. The enfranchising power of the borough or the 
 guild may be inferred, but cannot be proved. The restriction 
 imposed by the Constitutions of Clarendon on the ordination of 
 the rustics seems to imply that the practice had reached a point 
 at which it was liable to be abused ^. The exclusion of the 
 villani, cotseti, and ferdingi, of mean and poor persons, from the 
 judicial duties of the shire-moot, Avas a measure which common 
 prudence and policy alike must have dictated^. It may how- 
 ever be doubted whether the word villani had during the twelfth 
 centui'y fully acquired the meaning of servitude which was 
 attached to it by the later laMyers. 
 
 133. The military system of the Normans, so far as it is con- Military 
 nected with their doctrine of tenure, need not be further dis- 
 cussed here. We have seen that the distribution of the laud 
 into knights' fees was a gradual work, which was not completed 
 in the reign of Henry II. "When therefore Ordericus Vitalis 
 describes the regular feudal force of the kingdom as consisting of 
 sixty thousand knights, to whom a proper provision in land had Knights' 
 been assigned by the Conqueror, it is clear that he is stating an 
 inference drawn from some calculations which we do not possess, 
 unless, as seems probable, it was bas-ed on a misunderstanding of 
 the Domesday Survey ^. The apparently inexplicable diversities 
 
 ^ ' Filii rusticorum non debent ordinari absque assensu domini de cujus 
 terra nati dignoscuntur.' Const. i6; Select Charters, p. 134. This legisla- 
 tion however is by no means peculiar to this age or country ; see the law 
 of Charles the Great in Labbe and Cossart, Cone. vii. 1061 ; that of Lewis 
 the Pious, ibid. vii. 14S0 ; and the Lateran Council of 1179, ibid. x. 1730. 
 
 ' See the passage quoted above, p. 396, note 1. In the Pipe Roll of 3 1 
 Henry II are several cases of amercements imposed for placing rustici on 
 juries and assizes. Madox, Hist. Exch. p. 379. 
 
 * It is certain that even the officials of the Exchequer had no certain 
 computation of the number of knights' fees. Alexander Swerford, the 
 original compiler of the Liber Ruber Scaccarii, who wrote in 1230, tells us 
 thiU. Longchamp when Chancellor had endeavoured in vain to ascertain it : 
 ' Illud commune vcrbum in ore singulorum tunc teinporis divulgatum 
 fatuum reputans ct mirabile, quod in regni conquisitione dux Normannorum 
 Rex \VilleImus servitia xxxii. millia militum infeodavit.' Hunter, Three 
 Catalogues, p. 13. Stephen Segrave however, the minister of Henry III, 
 reckoned 32,000 as the number ; Ann. Burton, p. 367. The calculation 
 of Higden in the Polychronicon, lib. i. c. 49, makes the whole number
 
 433 Const itiitional Illdory. [chap. 
 
 Difficulty of in the computation of the acreage of the hide, the variation of the 
 tion. numbers of hides contained in the knight's fee, and the fact that 
 
 the system of assessment by knights' fees furnishes no real clue 
 to the number of warriors actually producible, are sufficient 
 reason for not hazarding a conjectural estimate. The number 
 of knights who could be brought into the field at once was by 
 no means large ; the whole number furnished by the tenants-in- 
 chief from the ten counties south of the Thames and Avon was, 
 as we learn from the Liber Niger, only 2047^: and these counties 
 probably contained a fourth part of the population of England. 
 The official computation, on which the scutage was levied, 
 reckoned in the middle of the thirteenth century 32,000 
 knights' fees, but the amount of money actually raised by 
 Henry II on this account, in any single year, was very far from 
 oiiiiiaration commensurate. The exact obligation of the knight's service was 
 senke. to furnish a fully-armed horseman to serve at his own expense for 
 forty days in the year. This service was not in practice limited 
 to the defence of the country in which the estate lay ; the 
 Norman knights served the Norman king both in England and 
 abroad, nor did the question of foreign service arise during this 
 period of our histor3\ The baron led his own knights under his 
 own banner, the host was arranged by the constable or marshal 
 Union of the under the supreme command of the king : the knights who held 
 under the less than baronial fees under the crown appeared with the rest 
 of the forces of the shires under the command of the sheriffs. 
 The infantry must have been furnished almost entirely by the 
 more ancient fyrd system, or by mercenaries. It is however 
 improbable that an}thiug like a regular force of infantry was 
 maintained by the Norman kings. It was enough, after the 
 
 60,015, of which 2^,015 are held by the religious; but as he makes the 
 parish churches 45,002 in number, his calculation is only a contrivance to 
 reeoiicile tlie 6o,ooo of Onierieus with the 32,000 of popular opinion. From 
 Higden tlie statement is taken by the author of tlie chronicle called Eulo- 
 gium (vol. ii. p. 154), from which work it was taken by a host of copyists : 
 Seidell in his notes on Fortescue quotes it from the Eulogium. 
 
 * Pearson, Early anrl Middle Ages, i. 375 ; ii. 209, 496, 497. Mr. Pear- 
 son's conjecture that the number of 32,000 really apjjlied to the hides, and 
 that the kiiitihts' fees, calculated at five hides each, would be 6400, is 
 ini,'enioiis; ijut tlie statemvut, wherever it is made, is distinctly referred to 
 the knight's fees only.
 
 XI.] The Army. 433 
 
 pacification of the country by the Conqueror, that a force of Obli(?ation 
 knights should be kept together for such hurried expeditions on service, 
 the Welsh or Scottish borders as received the name of wars. 
 The lilve body accompanied the king in his visits to Normandy. 
 Where more was required, as was the case in the struggles of the 
 early years of Henry I, recourse was had to the native popu- 
 lation. Every free man was sworn, under the injunction of the 
 Conqueror, to join in the defence of the king, his lands and 
 his honour, within England and without ^ : nor was any fixed 
 period for such service defined by the law ; although custom 
 must have restricted the demand for it to cases in which the 
 kingdom Avas imperilled by invasion, and must have limited its 
 duration according to the provision made by the county for the 
 force it furnished. The oath thus taken must have legalised 
 the employment of English troops for the war in Maine in 1073, 
 and the summons issued by William Rufus to the English, 
 in obedience to which 20,000 foot-soldiers were fui'nished for 
 war in Normandy '^. Each of these received from the shire a Provision 
 sum of ten shillings, which, compared with the twenty shillings "hire for the 
 which in the county of Berks were paid towards the expenses of ^^^^' 
 each knight for two mouths^, may perhaps imply that two 
 months was the customary period of service. On these terms 
 then it is probable that the English forces which assisted Henry 
 against Hobert of Belesme were collected ; and although the long 
 peace which followed gave but few opportunities for the king to Action of 
 demand the fulfilment of the obligation, the invasion by King ^ 
 David in 11 38 found the Yorkshiremen still mindful of their 
 duty and capable of discharging it successfully *. 
 
 But there can be little doubt that for the Norman wars of Mercenary 
 Henry I, and for the partisan w^aifare which desolated England 
 under Stephen, mercenaries were largely employed. In 1085 
 the Conqueror's army raised for the defence against Canute of 
 Denmark was composed of ' solidarii V footmen and archers 
 collected from all parts of France and Brittany ; and after the 
 
 • Select Charters, p. 80. ' Flor Wig. a.d. 1094. 
 
 ' Above, p, 117, note 2 * Eic. He:diaui, td. Twysden, c. 321. 
 
 ' Flor. Wig. A.D. 1085. 
 
 F f
 
 434 
 
 Constitutional History. 
 
 [chap. 
 
 Emp)oy- 
 ment of 
 mercenaries. 
 
 Unpopu- 
 larity of 
 mercenaries 
 in England. 
 
 II ow much 
 of this 
 system was 
 Norman "r 
 
 first Ci'usade the hosts of veteran adventurers who survived 
 their pilgrimage were at the disposal of Henry I. The mer- 
 cenaries drawn by him from Flandeis gave Stephen and Matilda 
 a precedent for a practice which to a great extent indeed 
 economised the blood and sinew of the native English, but yet 
 was productive of much miseiy and great irritation. The 
 rapacity of the Flemings created in the people an intense feeling 
 of hatred, and one of the most jiopular provisions of the reform 
 carried out by Henry II was the expulsion of these plunderers. 
 The fact that each of these three sources of military strength, 
 the feudal array, the national militia, and the mercenary com- 
 panies, was available on both sides of the channel, placed a very 
 powerful engine of warfare in the king's hands ; and we shall 
 see as we proceed that among the very first steps towards a 
 reorganisation of the national unity were measures which for- 
 bade the introduction of mercenaries into England, a growing 
 reluctance, culminating in a positive refusal, on the part of the 
 feudal tenants to fight the king's battles abroad, and the actual 
 cessation of any attempt to use the English fi'ee population for 
 foreign warfare. 
 
 134. This survey of the history of the Norman sovereigns, 
 whilst it furnishes but a broken outline of their administrative 
 system in general, suggests questions which it is by no means 
 easy to answer. How far was the machinery, the recorded 
 facts of which have been here given, the national s} stem of the 
 Normans in their earlier seats ? how far was it a mere transla- 
 tion of English institutions into Norman forms'? how far was it 
 the result of a combination which forced both elements into new 
 developments ? Wliat was purely Norman, what was purely 
 Englisli, what was new'? The opinions of lawyers and historians 
 have widely differed on this point ; and the differences seem in 
 many cases traceable rather to the mental constitution than to 
 the political or national prepossessions of the writers. One 
 authority insists on the immemorial antiquity of every insti- 
 tution the origin of which cannot be fi.xed by date ; another 
 refuses to recognise the possible existence of a custom before it 
 appears definitely in contemporary records : this writer regards
 
 XI.] Origin of the Norman Law. 435 
 
 the common features of two systems as positive proofs that the Variety of 
 
 ■^ '■ \ opinions. 
 
 one IS derived from the other ; that refuses to receive any amount 
 of analogy as proof of historical connexion. The result has 
 been on the one hand to treat the Norman system of govern- 
 ment as an entire novelty, and on the other to reduce its 
 influences to the merest and most superficial shades of change. 
 The view that has been taken in the earlier chapters of this 
 book has recognised to the fullest extent the permanence of the 
 Anglo-Saxon institutions, and under each head of the present 
 chapter have been noted the features of the Norman reigns 
 which appeared really strange to the older rule. In the policy Ideiofthia 
 of the Conqueror we have traced the existence of an idea of 
 combination, of dovetailing or welding together the administra- 
 tive framework of the two races. In taxation the Danegeld 
 is distinctly English, the feudal aid is as distinctly Norman : 
 William maintained both. In legal procedure the hundred- 
 moot and the shire-moot are English, the custom of trial by 
 battle is Norman ; in military organisation the fyrd is Anglo- 
 Saxon, the knight-service is Norman : in each case the Con- 
 queror introduced the one without abolishing the other. This Prinr-ipie 
 prmciple was dictated m the first instance by the necessity nation. 
 of providing institutions for two distinct nationalities, and 
 was perpetuated as the nationalities coalesced, because it fur- 
 nished the king with a power of holdiug the balance of the 
 kingdom with a firm purpose of strong government. Just as 
 the nationalities combined to produce one nation strengthened 
 in character and polity by the union, so the combination of the 
 institutions produced a new growth in which, whilst much that 
 is old can be detected, there is much else that could not have 
 existed but for the combination. The increase of official records 
 in the reign of Henry II and his sons enables us to trace this 
 influence more accurately as we advance. But there are some 
 points which demand notice at our present stage of inquiry. 
 
 We have considered the leading principle of the system of 
 the Conquest to be the combination of the strongest part 
 of the Normau system with the strongest part of the early 
 English system ', the maintenance of the local and provincial 
 
 F f 2
 
 43*^ Constitutional History. [chap. 
 
 Origin of macliineiT of the latter with the central and sovereign autho- 
 
 the Curia . , . . , /. mi 
 
 Repisand viij characteristic of the former. The most important parts 
 of the centralising system of the Norman kings are the Curia 
 Regis and Exchequer ; and here the most opposite opinions 
 have been put forth for many years with the utmost confidence. 
 
 Norman, The Curia Regis has been regarded as the simple reproduc- 
 
 English, or . . " . . 
 
 merely tlie tion in co^jquered England of the Curia Ducis of Normandy^, 
 despotism? which again was a reproduction of the court of the Karoling 
 kings of the West Franks as it existed under Charles the 
 Simple when he bestowed Normandy on Rollo. From another 
 point of view it is represented merely as the English court of 
 Edward the Confessor, the small witenagemot of the Anglo- 
 Saxon kings, which has under the influence of feudal ideas 
 sustained a change rather nominal than constitutional, and 
 which gradually tends to devolve upon the king and his more 
 immediate household the central administration of justice in 
 cases calling for such administration. From another point the 
 whole central administration is viewed as the operation of the 
 personal omnipotence of the king as conqueror and supreme 
 Element of administrator ^. Each of these theories contains a great truth : 
 
 trutli in 1 -NT 1 • • • p 1 • • 
 
 eacli theorj'. the Norman kings were despotic m fact ; their highest attempts 
 at organised government advance in the direction of law no 
 further than that stage which has been more than once described 
 as the stage of routine. The system of routine by which they 
 Avorked was primarily the system ou which they had governed 
 Noi-mandy ; the court of the duke was reproduced in principle, 
 as it was in the persons who constituted it, in the court of the 
 king. The English administrative system was also so far ad- 
 vanced under Edward the Confessor that the transformation of 
 the ancient witcn;igcmot into the great court and council was — 
 after the great change of actors caused by the substitution of 
 Norman for native h)rds and prelates, — possible without any still 
 more violent innovation. I5ut there are other facts to be con- 
 sidered besides theories conceived u 2>non. We possess a large 
 stock of Anglo-Saxon records; laws and charters which shed a 
 
 ' Brunner, in liia Ent.steliung (Jer Schwurgericht, and also in Holtzen- 
 ilorf's Kncyclopiidie. * Gneist, Verwaltungsr. i. 228 sq.
 
 XI.] Origin of Norman Law and Custom. 437 
 
 trreat denl of broken lisclit ou every department of tlie life of our Scantiness 
 
 r. T.T 1 1 1 of Norman 
 
 forefiitliers. The constitutional history of Normandy, and the records, 
 legal history of the whole of that kingdom of which Normandy 
 was a nominal province, is, during the century and a half that 
 intervenes between the extinction of the Karolingian power 
 and the reigu of Lewis VI, illustrated only in a vei*y slight 
 degree by fragments of legislation and scattered charters. The 
 most ancient text -books of Norman law are later than the reign 
 of Henry II, both in composition and in materials ^ No one 
 at the present day would contend that the legal reforms of 
 Henry II were drawn from the Grand Costumier of Normandy, 
 any more than that they were the result of the lessons of his 
 great-uucle King David of Scotland. Yet it would be almost Difficulty of 
 
 • • 1 1 • •! • • p -KT 1 1 J. tracing; the 
 
 as rash to maintain that the similarities 01 JN orman ana later connexion of 
 English law are to be ascribed solely to the fact that both were Karolingian 
 developed under the force of Henry I and under the genius of 
 Henry II. If, again, we ascribe to Norman sources all that is 
 Karolingian in the measures of the Norman and Angevin kings, 
 we are underrating the probable and almost demonstrable 
 influence which the association of the West-Saxon dynasty with 
 the Karoling, Saxon, and Franconian courts must have pro- 
 duced on native custom. Under the circumstances it might 
 seem almost the safest plan to abstain from attempting a con- 
 clusion. But this is scarcely possible. 
 
 The regular action of the central power of the kingdom 
 
 ' Brunner, in an Excursus contained in his woi-k, Das Anglonorman- 
 nische Erbfolgesystein, gives a careful account of the existing origines of 
 Norman law. These are to be found in two books : (i) Stat^ita et consue- 
 tudines Normanniae, printed in French by Marnier in his Etablissements 
 et Cofttunies, Assises et Arrets de I'Exchiquier de Normandie (Paris, 
 1839) ; and in Latin by Warnkonig in the Staats- und Rechts-Gescliichte, 
 vol. ii. This compilation, as Brunner shows, contains two works, (a) a 
 Tractatus de brevibus et recognition] bus, ilrawn up soon after 1218: and 
 (j8) a Trt>s ancienne coiitume de Noruiandie, which belongs to the justiciar- 
 ship of William FitzRalph, about 1 190-1200. (2) The second book is 
 the Grand Coutumier of Normandy, the older form of which appears to be 
 the Latin Somiiia de legibus consuetudinum Normanniae, wlach is found 
 in J. P. de Ludew'g's Reliquiae Manusciiptorum, vol. vii. pp. 149-418. 
 The date of this work, which Brunner shows 1 1 be an original composition, 
 and not founded on the preceding:, as Warnkonig and Marnier supposed, 
 falls between 1 2 70 and 1275. Bruniivr's arguments on the Inquest by Jury 
 are taken from charters of much earlier date.
 
 438 ConstiUctional History. [chap. 
 
 Growth of becomes known to us, as we have seen, first in the proceedings 
 the Exche- . ^1 
 
 querin of the Exchequer. The English Exchequer appears first early 
 
 and in in the reign of Henry I : the Norman Exchequer appears first 
 
 under Henry H. There is nothing in the name to determine 
 whether it was originally given to the court in England or in 
 Normandy. The method of accounting in the English Ex- 
 chequer is based on the English coinage, that of the Norman 
 on the French : both England and Normandy must have had 
 fiscal audits long before the Conquest ; the systems of account, 
 almost all the processes of the two courts, are different. Yet the 
 results have necessarily a resemblance ; the officers of the one 
 were occasionally trained in the work of the other, and when 
 reforms were needed in the one, a change of administrators was 
 easy; the Treasury of Caen could lend an abbot to the Ex- 
 chequer of Westminster, or the Exchequer of Westminster 
 
 The two could lend a baron to revise the accounts of Caen. The same 
 
 Exchequers 
 
 KTow side exigencies, so long as the rulers of England and Normandy 
 
 by side. 11, i 1 
 
 were the same, would be met by much the same measures. 
 There is no evidence but that of tradition for deriving the 
 English Exchequer from Normandy : there is far more ante- 
 cedent probability that whatever the Norman Exchequer has 
 in common with the English was derived from the latter. Yet 
 the English Exchequer was organised by Norman ministers : 
 the Domesday Survey was carried out by Normans : Ivanulf 
 Flambard and Jloger of Salisbury were both natives of the 
 neighbourhood of Caen. If there is no Norman roll of the 
 reign of Henry I, there is but one English roll : in the latter 
 case all but one have perished, so that no one can safely main- 
 tain that in the former case none ever existed. Yet at the 
 time at which the English fiscal system was developed, during 
 the reign of William lUifus and in the early years of Henry I, 
 the two count)i(s were not under the same ruler, 
 concllui'i^n. '^^^^ conclusion seems to depend on a balance of probabilities : 
 it is most ])ro]table that in both countries there was a fiscal 
 court or audit, that the two were developed and more fully 
 organised under the same su[)orin(cndcnce, and each may have 
 borrowed from the other : but there is no historical proof, and
 
 xi.J The Norman Courts. 439 
 
 110 historical neccssitv to assume that the one was an offshoot Name of 
 
 •^ _ Excht'CiutT. 
 
 or a transplantation of the other. The importance of the name 
 
 is only secondary ; it matters little whether the chequered 
 cloth were first used at Westminster or at Caen. It appears 
 only in those countries which are connected with Normandy 
 after the Conquest and with the Norman kings of England, 
 so that from this point of view the English origin seems most 
 prohuhle. The exi.stence of a Sicilian Exchequer is accounted 
 for on one hypothesis as well as on the other ; but the ad- 
 ministration of the Wiscards, so far as it was Norman at all, 
 was modelled on the Norman administration of England, and 
 was carried out in some measure by ministers of English birth ^ 
 
 The history of the Curia Regis, in its judicial aspect, is, as^™^i»of 
 we have seen, even more complicated. The Anglo-Saxon kings thc^Curia 
 heard causes in person : the judgment of the king was the last 
 resort of the litigant W'ho had failed to obtain justice in the 
 hundred and the shire. He had also a court in which the 
 disputes of his immediate dependents were settled, the 'thening- 
 nianna-gemot,' the existence of which is proved, but no more 
 than its existence^. The Norman duke had his feudal court of 
 vassals like every other feudal lord, and a tribunal of supreme 
 judicature which may or may not have been personally identical 
 with the court of vassals. The royal judicature in England was 
 in the reigns of the Conqueror and William Rufus exercised 
 either by the king or justiciar in person on the gi'eat festivals, 
 or by special commission in the shire-moot. The question then 
 is this, Was the Curia Regis as developed under Henry I the 
 Curia Ducis of Normandy ? or was it the king liimself acting 
 as judge with the council of his witan or a portion of them 1 
 or was it not rather a tril)unal in a stage of gi'owth, springing 
 from a combination of the two older systems, and tending to 
 become something very different from either ? 
 
 The report of tlie court lield on Bishop William of S. Carileph, 
 after the rebellion of io88^, supplies us with convincing proof 
 
 * See above, p. 350. note 2. - Ibid. p. 186, note 3. 
 
 * ' De injusta vexatione Willehni episcopi primi ' : printed first by Bedford 
 in an appendix to his edition of Simeon of Durham, pp. 343-375 ; and 
 afterwards in the Monasticon, vol. i. pp. 244-250.
 
 440 
 
 Constitutional History. 
 
 [chap. 
 
 Trial of the 
 bishop of 
 Durham in 
 the Curia 
 £«gis. 
 
 Develop- 
 ment of the 
 Curia Uegis 
 under 
 Henry I. 
 
 that the last is the true account of the matter. The bishop 
 had acted traitorously, and the king's ofl&cers had seized his 
 estates ; he demanded restitution ; the king insisted that he 
 should purge himself of his treason. The bishop pleaded his 
 right to be tried as a bishop, but offered to defend himself 
 from the charge of having broken his oath of fealty. The 
 parties met at Salisbury, where all the bishops, earls, barons, 
 and royal officers assembled. Lanfranc refused to listen to the 
 bishop's plea, and he was appealed of treason by Hugh de 
 Beaumont on the king's part. After mucli deliberation, every 
 stage of which is recorded, the bishop still insisting on his 
 right ^, Lanfranc declares that he must first answer the king's 
 demand : ' We are not judging you in the matter of your 
 bishopric but of j-our fee, and so we judged the bishop of 
 Bayeux before the king's father concerning his fee ; nor did 
 the king in that plea call him bishop, but brother and earP.' 
 The bishop struggles against this and appeals to Rome. The 
 court then deliberates on the sentence, which is finally pro- 
 nounced by Hugh de Beaumont, in the name of the king's court 
 and the barons^: as the bishop will not answer the charge 
 brought against him, he forfeits his fee. The record is drawn 
 up by a friend of the bishop, and is very long ; but these details 
 are sufficient to prove that the court in which the trial was held 
 was the witenagemot acting as a feudal court of peers. 
 
 The Curia Regis of Henry I was a regulated and modified 
 form of that of William Rufus, as that of Henry II was an 
 organised development of that of Henry I. The trial of Henry 
 
 ' At one point the bishop of Durham is sent out of court whilst the 
 barons delihorate whether lie should be restored to hia possi ssions or 
 acquit himself to the kin<,' first. The archbishop of York states the result 
 of the consultati(m : ' Doinine episcope. dominus noster archiepiscopus et 
 regis Curia vol)is judical fjuod rectitudinem regi facere debeatis atitequam 
 de vestro feodo revcstiat.' Bedford, p. 359. 
 
 * ' NoH non de episcopio, sod de tuo te feodo judicamus, et hoc modo 
 judicavimus I'ajoceiisem episcopum ante ]>.atrem hujiis regis de feodo suo ; 
 nee rex vocaVjat eum episcopum in placito illo, sed fratrem et comitem.' 
 P 361- 
 
 ^ ' Domine episcope, regis curia ct barones isti vobis pro justo judicant, 
 (piando sibi vos respomlcro non vultis do hiis de quibus vos per me ap- 
 pellavit, sed dc placito suo invitatis eum Komam, (juod vos feodum vestrum 
 inde foriHCacitis.' The bisho]! demurs: Hugh answers, 'Ego et compares 
 ruei parati sumus judicium nostrum in hac curia confinaare.' p. 362.
 
 XI.] Norman Cudoms. 441 
 
 of Essex early in the reign of Henry II, and that of Robert 
 of Belesme in the reign of Henry I, are h'nks in a series which 
 proves the fundamental identity of the earliest and latest forms. 
 
 But although we may assert an English element in the Ciu'ia The process 
 
 =* '' . ° . ... of tlic Curia 
 
 Regis, and confidently deny its exclusively jSTorman origm, it Rt^KJs was 
 
 must be granted that very much of the new forms of process was especially 
 
 1 • (> T. • TiT'ii- the system 
 
 foreign. Whether Lanfranc brought it from ravia, or William of writs. 
 
 inherited it from the Norman dukes, we can scarcely on existing 
 evidence decide. Lanfranc had been an eminent lawyer ^ before 
 be became a monk, and his Norman home at Caen was the 
 central scat of the ducal administration. However they were 
 introduced, the great development of the system of writs, and 
 especially the custom of inquest by sworn recognitors, are 
 features of Norman jurisprudence which must be traced ulti- 
 mately to Karolingian usage. The provincial visitations of the 
 royal judges, which under Heniy II grow into a regular system 
 of iudicial eyres, are less certainly Norman. They may be of Itinerant 
 
 "> J ' ^J J J judicature 
 
 Karolinjrian orisfin as an expedient of government ; but the of Frank 
 
 . . Tx Til origin, 
 
 historical connexion between the judges of Henry I and those 
 
 of Charles the Great may be traced perhaps wdth as much pro- 
 bability on English as on Norman ground '^ If the Capitularies itinerant 
 of Charles the Bald include the territory which was afterwards ^^^A&t "'^ 
 Normandy in the plan for the operation of the imperial missi, 
 
 * ' Nam, ut fertur, pater ejus de ordine illorum qui jura et leges civitatis 
 asservabant fuit.' Vita Laufranci, c. i. ' Saecuhiiium leguui peritiam ad 
 patriae suae inorein intentione laica fervidus edidicit. Adolescentulus 
 oratiir veteranos adversantes in actionibus causiaruin frequenter praeci- 
 pitavit, torreute facuudia apposite diceudo sunos superavit. In ipsa aetate 
 sententias promere statuit quas gratanter jurisperiti, aut judices aut 
 praetores ci\'itatis, acceptabant.' Ord. Vit. iv. c. 6. 
 
 ^ Lappenberg, ed. Thorpe, iii. p. 4. The argument of Brunner (Schwur- 
 gericht, pp. 152 sq.') for the priority of the itinerant justices of Normandy 
 to those of England will scarcely be regarded as convincing. The reference 
 to the ' Ancient Custom of Normandy,' which belongs to the last decade 
 of the twelfth centur}', for proof that once or twice a year three or four 
 sworn barons or knights held assizes in each Norman viscounty at a 
 period earlier than the judicial reforms of Henr}' II, is unsatisfactmy in 
 the extreme ; and the documf-ntary examples are of still later date. There 
 is the strongest probability that Henry II was as great a legal innovator 
 in Normandy as he was in England. Brunner's use of this argument 
 does not however in the least derogate from the convincing authority 
 of the main argument of his book, which proves the descent of the Norman 
 and English Inquest by Jury from the Karolingian Inqnisitio.
 
 442 
 
 Constitutional R'lstory. 
 
 [chap. 
 
 and under 
 the Norman 
 kings. 
 
 New nomen- 
 clature of 
 the Nonnan 
 period, not 
 a conclusive 
 argument 
 of Norman 
 innovation. 
 
 The laii- 
 Kua^re of 
 Icf-'al pro- 
 cec'diiiKS. 
 
 there is sufficient evidence that a measure of the same sort was 
 taken in England as early as the days of Alfred. But in this 
 point as well as in the others it seems far more natural to sup- 
 pose that similar circumstances suggested similar institutions, 
 than that the latter were historically connected. The judicial 
 visitations of the judges of Henry I were really rather circuits 
 of the royal officers than sjiecial commissions. The special 
 commissions of the Norman pei'iod, such as was the tribunal 
 at Pennenden, already more than once referred to, were, as we 
 have seen, attempts to combine the inquisitorial process of the 
 Norman Curia with the local machinery of the Anglo-Saxon 
 shire. 
 
 Much of the nomenclature of the Noi'man system is of course 
 French ; and the influence of the nomenclature in modifying 
 the character of the offices and processes which it denotes must 
 always be allowed for. The terms justiciar, account, feoffment, 
 amercement, forfeiture, tallage, homage, chattels, assize, seisin, 
 summons, and innumerable others are derived from the Norman 
 usage of Latin as the language of records ; and the Latin of the 
 Norman charters is not the Latin of the Anglo-Saxon charters'. 
 The story that William the Conqueror forljade the use of the 
 native tongue in the courts of law, notwithstanding the high 
 authority of the fourteenth-century schoolman on which it rests, 
 is no doubt a fabrication'^; the popular courts transacted their 
 business in English, and the kings issued their charters in 
 Englisli as well as Latin. Richard I is the first king of whom 
 no English document is preserved'^, and our first French record. 
 
 ' Madox, Hist. Excli. p. 127. 
 
 * ' Narrant liiHtori;ie quod cum* WillolniuH <lux NornKuinorum regnum 
 Angliae conqniRiviHset, deliberavit quoniodo iinguam Saxonicam posset 
 destruere, ct Angliam et Nornianiiiani in idioiiiate concordare ; et ideo 
 ordinavit quod nullns in curia rogi.s j)lacitarct nisi in (jallico, et iternm 
 quod f)uer qnilil)ut potienduH ad littcras addiccret (xallicani et per (iallicam 
 T>alinam, ((uae duo iis(pie hodio olisoivantur ;' Iluhert Holkot (ol). 1349), 
 in liis leotureH on tlie I'ook of Wisdom, Icct. xi. ; cited hy SchJen in liis notes 
 on Fortescue. See too Fortescue, dc liaudHjus, &c., ch. 48. 1'he authority 
 of tlie psfiudo-Tngulf iw worthleHH. 
 
 ' The EiigliHli grants of Sti^])lion and IToriry TT to Canterbury are still 
 preserved. See Mw\. Angl. i. iii; MS. liand)etli 121 2; Hickes, The- 
 saurus, praef. p. xvi. The first French liecnrd is a charter of 1215 of 
 .Stei)hcn Langton, preserved on the Charter Rolls, p. 209.
 
 XI.] Norman Customs. 443 
 
 belongs to tlie reign of John. But ])y far the great majority of 
 the writs and other legal records must have been kept in Latin, 
 as those of the Exchequer certainly were. The question then, 
 so far as it is of significance at all, concerns the thing ratlier 
 than the name : it will be found on careful examination that 
 very many of the Norman-Latin names are merely translations 
 of the Anglo-Saxon, not into the corresponding dialectic forms, 
 but into the forms which represented the ideas which to the 
 Norman mind they most nearly resembled. The Norman trans- Nomiau 
 
 ■'_ "' _ _ transhitiou 
 
 lated the word shire, not by sectio or even provincia, but by of English 
 
 comitatus ; the word scir-gerefa, not by praepositus provinciae, 
 
 but by vicecomes ; the gemot is far more frequently the cui-ia 
 
 than the conventus; the misericordia and amercement have 
 
 their exact correlatives in the Anglo-Saxon laws. The proper Novelties 
 
 feudal terminology stands on a different footing : the oath of terminology. 
 
 fealty in Norman law was different in matter and form from 
 
 the Anglo-Saxon hyld-ath ; the heriot was not the relief; the 
 
 tallage rested on a different principle from the Danegeld ; yet, 
 
 under the combining process that was necessary to the Norman 
 
 king, the one might be prudently taken to represent the other, 
 
 the obligation and the burden l^eing much the same under either 
 
 name. The analogy of the changes introduced by S. Osmund Analogy of 
 
 >r>J o •> ritual with 
 
 into the liturgy of the Church may suffice to show how greatly^ law. 
 under the circumstances of the Conquest, such innovations are 
 magnified in the popular estimation : the mere revision of the 
 service-books is represented as the introduction of a new rite ; 
 the institution of a new cantus i)rovokes a monastic revolution. 
 The fact, however, that the Norman influences introduced at the 
 Conquest are so liable to be exaggerated if they are judged on a 
 superficial view, must not lead us to underrate them. They Transitional 
 
 . . olianicter of 
 
 were strong and penetrating rather than ostentatiously pro- tlie period. 
 
 minent. The careful study of the institutions of this period 
 reveals the fact that not only in England but in Normandy it 
 was a season of growth and transition ; and it is far more 
 consonant with histoiical probability to suppose that the de- 
 velopment of two states so closely connected proceeded, if not 
 by the same, still by equal steps, than that the one borrowed its
 
 444 Constitutional Kistory. 
 
 whole polity from the other : for that England in the twelfth 
 century continued to borrow from Normandy the system of the 
 tenth, whilst Normandy remained stationary, neither developing 
 her own nor imitating her neighbour's growth, seems altogether 
 inconceivable. The absence of records throws us back upon 
 h^^othesis, but no sound criticism will allow us to see in the 
 Norman Coutumier of the thirteenth century the model of the 
 legal measures taken in England by the Conqueror and his sons. 
 Comparison The conclusion that is suggested by the survey of the admi- 
 
 ofconstitn- . . . sso J J 
 
 tionai with nistrative machinery of the period corresponds almost exactly 
 
 P'litical . ... .... _,, , 
 
 history. with that wlucli is drawn from the political hibtory. The royal 
 policy is a policy of combination, whereby the strongest and 
 safest elements in two nations were so united as to support one 
 sovereign and irresponsible lord ; the alliance between the king 
 and the English is reflected in the measures taken to strengthen 
 the Curia Regis and to protect the popular courts. It is the first 
 stage in the process of amalgamation ; a process which Henry I 
 probably never contemplated as possible, but which Stephen's 
 reign with all its troubles helped to begin, and which that of 
 Henry II made practically safe. The age of routine dependent 
 on the will of a despot passes by almost perceptible stages into 
 the age of law secured by the organisation of a people which has 
 begun at least to realise its unity and identity.
 
 CHAPTER XII. 
 
 HENRY II AND HIS SONS. 
 
 135. General features of the period. — 136. Henry II, his character and 
 training. — 137. His accession and first measures. — 138. The years 
 1158-1163. — 139. Tlie contest with Becl<et. — 140. Constitutions of 
 Clarendon. — 141. The Assize of Clarendon. — 142. The year 11 70. 
 — 143. The years- 1171-1173. — 144. The rebellion of 1173-4. — 145. 
 Reforms after the rebellion. — 146. Latter years of Henry II. — 147. 
 Summary of the reign. — 148. Richard I. — 149. William Longchamp; 
 — 150. Administration of Walter of Coutanees and Hubert Walter. 
 — 151. Accession of John. — 152. Loss of Normandy. — 153. Quarrel 
 with the Church. — 154. Quan-el with the barons. — 155. The Great 
 Charter. 
 
 135. Tlie sixty years that followed the death of Stephen General 
 comprise a period of English history which has a special im- iiie reigns 
 portance. It is a period of constant growth, although the Kidiiird. 
 growth is far from being regular or uniform. The chain of 
 events that connects the peace of Wallingford and the charter 
 of Runnymede is traceable link by link. The nation which at 
 the beginning of the period is scarcely conscious of its unity, is 
 able, at the end of it, to state its claims to civil liberty and self- 
 government as a coherent organised society. Norman and 
 Englishman are now one, with a far more real identity than was 
 produced by joint ownership of the land or joint subjection to 
 one sovereign. England has been enabled, by the fortunate 
 incapacity of John, to cut herself free from Normandy ; and the 
 division of interest between the two races has ceased. The 
 royal i)ower has curbed the feudal spirit and reduced the system 
 to its proper insignificance. The royal power having reached 
 its climax, has forced on the people trained under it the 
 knowledge that it in its turn must be curbed, and that they
 
 446 
 
 Constitutional History. 
 
 [chap. 
 
 Growth of 
 the royal 
 power 
 through the 
 people. 
 
 ■who thereby 
 learn their 
 own 
 strength. 
 
 Individual 
 impression 
 made by 
 llenry II. 
 
 Henry II 
 at his ac- 
 cession. 
 
 liave the strength to curb it. The church, the baronage, and 
 the people have found by difiFerent ways their true and common 
 interest. This has not been done without struggles that have 
 seemed at certain times to be internecine. The people, the 
 baronage, and tlie church have been severally crushed, reformed, 
 revived, and reorganised. More than once the balance of forces 
 has been readjusted. The crown has humbled the baronage with 
 the help of the people, and the church with the helj) of the 
 baronage. Each in turn has been made to strengthen the royal 
 power, and has been taught in the process to know its own 
 strength. By law the people have been raised from the dust, 
 the baronage forced to obedience, the clergy deprived of the 
 immunities that were destroying their national cliaracter and 
 counteracting their spiritual work. The three estates, trained 
 in and by royal law, have learned how law can be applied to the 
 very power that forced the lesson upon them. What the king 
 has reformed and reorganised in order to gain a firm and real 
 basis for his own power, has discovered its own strength and 
 the strength of law, and has determined to give its service and 
 sacrifices no longer without conditions. The history is to be 
 worked out in some detail. 
 
 Henry II is the first of the three great kings who have left 
 on the constitution indelible marks of their own individuality. 
 What he reorganised Edward I defined and com])leted. The 
 Tudor policy, which is impersonated in Henry VIII, tested to 
 the utmost the soimdness of the fabric : the constitution stood 
 the shock, and the Stewarts paid the cost of the experiment. 
 Each of the three sovereigns had a strong idiosyncrasy, and 
 in each case the state of things on which he acted was such 
 as to make the impression of personal character distinct and 
 permanent. 
 
 136. Henry II at his accession found the kingdom in a state 
 of dissolution : his only advantage was the absolute exhaustion 
 of all the forces which had jn'oduced that dissolution. The task 
 before liim was one which might have appalled an experienced 
 legislator, and Henry was little more than twenty-one years old. 
 He did not succeed to the inheritance of a baud of veteran
 
 XII.] Character of Henry II. 447 
 
 counsellors ; tbc men with whom he had to work were the 
 
 survivors of the race that had caused the anarchy. He was H'** '^^- .^ 
 
 ■^ _ meter m its 
 
 a young man, of keen bright intellect, pnticnt, laborious, earlier, 
 methodical ; ambitious within certain well-defined limits, tena- 
 cious of power, ingenious even to minuteness in expedients, 
 prompt and energetic in execution ; at once unscrupulous and 
 
 cautious. These characteristics mark also the later stajjes of ^"'i '^ter 
 
 ° develop- 
 
 his career, even when, disappointed of his dearest hopes and ment. 
 
 mortified in his tenderest affections, he gave way to violent 
 passion and degrading licence ; for his private vices made no 
 mark on his public career, and he continued to the last a most 
 industrious, active, and business-like king. There was nothing in 
 him of the hero, and of the patriot scarcely more than an almost 
 instinctive knowledge of the needs of his people, a knowledge 
 which can hardly ever be said to be the result of sympathy. 
 Tims much all the historians who have described him join in 
 allowing ; although they form very different estimates of his 
 merit as a ruler, and of the objects of his policy. These objects His political 
 seem to have been mainly the consolidation of his power, in 
 England the strengthening and equalising of the royal adminis- 
 tration, on the Continent the retention and thorough union of the 
 numerous and variously constituted provinces which by marriage 
 or inheritance had come into his hands. The English nation 
 may gratefully recognise his merit as a ruler in the vastuess of 
 the benefits that resulted from the labours even of a selfish life. 
 
 Henry II was bona at Le Mans on the 5th of JMarch, 1 133 \ lie was bom 
 when his grandfather was despairing of an heir. When cpiite "' 
 an infant, he received the fealty and homage of the barons as 
 their future king. He was the child of parents singularly ill- His parents, 
 matched : his father was of the weak, unprincipled, and impulsive 
 type into which the strong and astute nature of the Angevin 
 house sank in its lowest development ; his mother a Norman lady 
 who had all the strong characteristics of her race, and had too 
 early exchanged the religious training which would have curbed 
 them for the position of the spoiled child-wife of the culd- 
 
 ' Cbron. Aiuleg.avense, in Labbe's Bibliotheca Manuscriptoruin, i. 277'; 
 Ordericus Vitalis, lib. x. c. i. R. de Monte, a.d. 1133.
 
 448 
 
 Constitutional History. 
 
 [chap. 
 
 The 
 
 Empress 
 Matilda. 
 
 Henry 
 
 comes to 
 England in 
 1 141: be- 
 comes duke 
 in 1 15 1, and 
 king in 1154. 
 
 He could 
 not have 
 had much 
 lesral educa- 
 tion before 
 his acces- 
 sion. 
 
 blooded despotic emperor. As empress she had enjoyed the 
 power and splendour of her position too heartily to endure the 
 rule of a husband so personally insignificant as Geoffrey of 
 Anjou, or to submit to the restraints of a policy which would 
 have been desperate but for the craft and energy of Robert 
 of Gloucester. Yet in spite of her imperious behaviour and 
 her want of self-control, Matilda was a woman of considerable 
 ability ; in her old age she was a safe and sagacious counsellor ; 
 and some part at least of her sou's education must be put 
 to her credit. Henry was brought to England when he was 
 eight years old to be trained in arms ^ ; at the age of sixteen he 
 was knighted by his great -uncle David of Scotland - ; in 1 151 he 
 received the duchy of Normandy, and soon after succeeded his 
 father in the county of Anjou ; the next year he married 
 Eleanor, and added Poictou and Guleune to his dominions ; at 
 the age of twenty he undertook the recovery of England, brought 
 Stephen, partly by war and partly by negotiation, to terms which 
 insured his own succession, and in less than a year after the 
 pacification succeeded to the English throne. 
 
 An education so disturbed and so cui'tailed can hardly have 
 contained much legal or constitutional teaching, and Henry's 
 own peculiar genius for such lore could scarcely have been as yet 
 developed; but by the urgency with which he forced Stephen to 
 take in hand the necessary reforms, he showed at least a con- 
 sciousness of the importance of the task, even if we may not 
 venture to ascribe to him an actual share in the draught of the 
 scheme of reform. That Henry acquired at the Scottish court any 
 real acquaintance with the principles or forms of legal know- 
 ledge, that in his titular office of seneschal of France ^ he really 
 discharged any duties of a judicial character, or that he acted as 
 justiciar in England during the latter years of Stephen, are 
 theoi'ies alike improbable, and indeed opposed to historical evi- 
 dence. The court of King David might have furnished training 
 
 ' W. Malmesl). Hist. Nov. iii. § 70. 
 
 « Hen. Hunt. fol. 226. 
 
 ' The cmint of Anjou vva.s hereditary seneschal of France ; li. de Monte, 
 AD. 1177 ; but the oflicu was ahnost always executed by a de[)Uty. Giral- 
 dus Cauibrentiiu lucntioua Gcofliey as seneidclial, de Inst, rrinc. lib. iii. c. 28.
 
 XII.] Accession of Henr?/ II. 449 
 
 foi- either a warrior or a monk, but not for a lawyer or a con- 
 stitutional king ; in France Henry had scarcely spent more time 
 than can be accounted for by the business of his succession and 
 marriage ; and in England he had remained only a few weeks 
 after the pacification. He had in his wife and mother two Henry's 
 counsellors of ability and experience, but his own genius for couuseiiora. 
 government must have been innate ; and next to his genius the 
 most important element in the creation of liis characteristic 
 policy must be looked for in his choice of advisers. Of these 
 the first must have been Earl Eanulf of Chester, with whom as 
 duke of Normandy he had made a close alliance in 1152, but 
 who died before his accession ; the earl of Leicester, Robert de 
 Beaumont, Archbishop Theobald who had been firmly attached 
 to the interests of the empress throughout the later years of 
 the struggle ; Bishop Henry of Winchester ; Nigel of Ely 
 who represented the family and the official training of Roger of 
 Salisbury the justiciar of Henry I. ; and Richard de Lucy, who 
 had charge of the castle of Windsor and the Tower of London 
 at the peace ^ who had possibly acted as justiciar during the 
 last year of Stephen, and who filled the office for the first 
 twenty-five years of Henry's reign. In a subordinate capacity 
 was Thomas Becket of London, the pupil of Theobald and future 
 archbishop and martyr. None of these, except Nigel and Thomas, 
 had as yet given great proofs of administrative skill ; the bishop of 
 Winchester, who had had the fairest opportunity, had made the 
 most signal failure. There must have been in Henry himself some 
 gift that called forth or detected the ability of his sers^ants. 
 
 137. Stephen died on the 25th of October, 1154, and Henry inter- 
 landed in England on the 8th of December ^. Nothing can show stephra's 
 more clearly the exhaustion of society than the fact that the 
 interregnum of two months was peaceful. Archbishop Theobald 
 seems to have taken the helm of state, and notwithstanding the 
 
 ' Foedera, i. i8. The Tower of London and Windsor Castle were pecu- 
 liarly in the custody of the justiciar; and he also signed the royal writs, as 
 we find Richard de Lucy signing the charter of Henry II. The charter 
 of Stephen however, in which he is addressed as justiciar, does not neces- 
 sarily imply that he was chief justiciar. Madox, Formulare Angl. p. 40. 
 
 ^ Gervase, cc. 1375, 1376. 
 
 G 2
 
 45° Constitutional History. [chap. 
 
 presence of Stephen's mercenary troops, which were yet undis- 
 
 Coronatiou missed, no man laid hands on his neis^hbour \ After receiving: 
 of Henry. 
 
 the fealty of the chief barons at Winchester the duke of Normandy 
 
 hastened to London, where he was elected and^ crowned on 
 
 the 1 9th of December, and issued a charter of liberties as bi'ief 
 
 His charter, and comprehensive as that of Stephen had been. He grants and 
 
 confirms all the gifts, liberties, and customs that liis grandfather 
 
 had granted, promises the abolition of all evil customs that he 
 
 had abolished, and enjoins that the church, his earls, barons, 
 
 and all his men, shall have and hold, freely and quietly, well, in 
 
 peace and wholly, of him and his heirs, to them and their heirs, 
 
 all the liberties and free customs that King Henry I had gi-anted 
 
 and secured by his charter^. The reference to the charter of 
 
 Henry is as marked as the omission of all mention of Stephen. 
 
 The charter is attested by Richard de Lucy, who therefore was 
 
 The probably in the office of justiciar. On Christmas Day the king 
 
 mercenaries , , , , . . 
 
 banished, held his court at Bermondsey, and having debated with the 
 
 barons on the measures necessai'y to the state of the kingdom, 
 directed the expulsion of the mercenaries and the demolition of 
 the adulterine castles *. William of Ypres consequently departed 
 with his Fleming soldiers, and the demolition of the fortified 
 Restoration houses was speedily begun. The bishop of Ely was recalled to 
 Exchequer, the Exchequer®; Thomas Becket was made chancellor", and the 
 official dignity of the court was replaced on its old footing. 
 Whether at this assembly new sheriffs were appointed, or that 
 measure had been already taken before Stephen's death, is un- 
 certain ; the persons who are found in the office, so soon as the 
 regular Exchequer accounts furnish us with authentic names, 
 are generally barons of great local importance. In Devonshire 
 
 * Gervase, c. 1375. 
 
 " • Ab omnibus electus est;' R. de Monte, A.D. 11 54. 
 
 ^ Statutes of tho realm, Charters, p. 4; Select Charters, p. 128. 
 
 * ' In nativitate Domini tonuit rex curiam suam apud Beremundeseiam 
 ubi cum principilins suis de statu regni et pace refornianda tractans, pro- 
 posuit aiiimo alieiiigenas gentes de regno propellere et munitiunculas 
 pessimas jier totam Angliam solotenus dissipare.' Gervase, c. 1377 ; R. de 
 Monte, A.I). 1 155. 
 
 * Dialogus de Scaccario, Prol. i. c. 8. 
 
 ' Gervase, c. 1377. states that Thomas was made chancellor at the 
 accession.
 
 XII.] Resumption of Croion Lands. 451 
 
 and Wiltshire, the earls of the county, and in Herefordshire the The new 
 claimant of the earldom, appear as sheriffs ; Richard de Lucy 
 accounts for Essex and Hertfordshire ; but as a rule the sheriffs 
 seem to be persons of local importance only, and chosen from 
 what may be called the second rank of the baronage. The earls Dispiace- 
 
 1 i. 1 1 1 . • • ^ • • T-r ™ent of the 
 
 must have lelt that they were ni a critical position ; Henry was new earls. 
 
 bound to annul the titular creations of Stephen, and it was by 
 no means cei'tain within what limits the promise would be con- 
 strued ^. We have no record of actual displacement ; it may 
 however have taken place at the time of the coronation ; some 
 at least of the fiscal earls retained their dignity ; the earldoms of 
 Bedford, Somerset, York, and perhaps a few others, drop out 
 of the list ; those of Essex and Wilts remain. Some had already 
 made their peace with the king ; some, like Aubrey de Vere, 
 obtained a new charter for their dignity : this part of the 
 social reconstruction was despatched without much complaint 
 or difficulty ^. 
 
 Not so the more substantial part of the work. The great Resumption 
 nobles were not unwilling to see the humiliation of their smaller demesne, 
 neighbours, but very loath to surrender the royal demesne, and 
 especially the castles that had been placed in their hands by 
 the two contending parties^. The command of the king was 
 
 * 'Rex Heni'icus coepit revocare in jus proprium urbes, castella, 
 villas qnae ad eoronam regni pertinebant, castella noviter facta destruendo, 
 et expellendo de regno maxima Flandrenses, et deponendo quosdam iniagi- 
 narios et pseudo-comites quibus rex .Stei)lianus omnia pene ad fiscum perti- 
 nentia minus caute distribuerat.' R. de Monte, a.D. 1155. The earldom 
 of Kent, assigned on insufficient authority to William of Ypres, came to an 
 end on his departure ; and the earldom of York is heard of no more until 
 Richard I bestowed it on his nephew Otto. The earl of Hereford, Roger, 
 died in the first year of Henry, after having obtained a confirmation of 
 his earldom ; but his brother Walter did not succeed ; it was however 
 given to his great-grandson Henry de Bohun many years after. Of the 
 earldoms of Bedford .and Somerset no more is heard. 
 
 ^ The following passage of the Polycraticus probably refers to the tran- 
 sient character of the new dignities, although some of the persons mentioned 
 in it were not of Stephen's promoting : ' Ubi sunt, ut de domesticis loquar, 
 Gaufridus, Milo, Ranulfus, Alanus, Simon, Gillebertus, non tam comites 
 regni quam hostes publici ? Ubi Willelmus Sarisberiensis V Joh. Salisb. 
 Polycr. viii. 21. 
 
 ^ The right of the duke of Normandy to garrison the castles of the 
 barons h:vs been mentioned already, and Henry's exercise of the right ia 
 an important illustration of his action on this occasion. In 1161 he occu- 
 pied and garrisoned the castles of the count of Meulan and others ; in 1 166 
 
 G £r 2
 
 452 Constitutional History. [chap. 
 
 summary and comprehensive ; the royal estates, by whatever 
 
 charters of the late king they were conferred, must be restored ; 
 
 itesumption the royal castles, however obtained, must be surrendered. Charters 
 of castles. '' 
 
 were produced and services pleaded in vain ^. A very few only 
 
 were able to offer any real resistance. This came, as might be 
 Resistance expected, from both sides. The count of Aumale, who had won 
 barons? the battle of the Standard, who was a near kinsman of both kings, 
 who had been generally faithful to Stephen, and was almost sove- 
 reign of the north, declined to surrender Scarborough. E-oger of 
 Hereford the son of Miles, who had been one of the great sup- 
 porters of the empress, fortified the castles of Hereford and Grlou- 
 cester against the king. Hugh Mortimer, who since the fall of 
 the house of Montgomery had been the most powerful man on the 
 Welsh naarch, prepared for o^ien revolt. The Scots too showed 
 no readiness in restoring Northumberland and Cumberland, 
 which King David had undertaken to hold in trust for Henry. 
 
 Henry takes The king lost no time in negotiation; in January 1155 he 
 the castles n 1 i p 1 /vi 
 
 in 1155. went northAvards, and compelled the count 01 Aumale to sur- 
 render Scarborough ^ : on his return he visited Nottingham, 
 where the news of his approach frightened into a monastery the 
 great baron of the Peak, William Peverell, who had been accused 
 of attempting to poison the earl of Chester ^. Early in March 
 Henry was again in London, where he held a great council, re- 
 newed the general peace, and confirmed the old customs'*, but 
 declared his intention of extinguishing every element of disorder 
 
 those of the count of Ponthieu .and Alen9on ; in 1165 ho seized the castles 
 of the Lusignanff in Poictou, and those of the Leonois in Ikittany in 11 71. 
 He also in 1171 resumed the ducal demesnes which had been alienated 
 since the death of Henry I. See 11. de Monte under these dates. 
 
 ' W. Newb. ii. c. 2. 
 
 ■'' W. Newb. ii. c. 3 ; Gervaso, c. 1377. 
 
 ^ Gervase, c. 1377; K. 'le Monte, A.n. 1155. William Peverell's crime 
 had been committed and his puni.shment determined on hmg before this. 
 Henry liad promi.sed his fiefs to the earl of Chester, in case of his proved 
 guilt, in 1 152, in which year the earl died. Foedera, i. 16. 
 
 * 'In HCfiiionti Qiiaiiragesinia eoiigrcgavit generale concilium apud Lun- 
 doniam et rcnov.-ivit ])aeeni et hges et consuetudines per Angliam ah anti- 
 quis teinjioribuH constitutas.' ('hron. de J5ello, p. 72. ' C'onvocatis universis 
 fere regni prirnoribus co(;pit rex rationem poiiere cum eis cpu adhuc tene- 
 bant praesidia regii juris ; erat enim fixa in animo ipsius sententia omnem 
 rebellionum materiam exstirpare et suspicioiium causas submovere.' 
 Gervase, c. 137 7-
 
 XII.] Henry' & Connc'iU in 1155. 453 
 
 and of bringing the contumacious barons to account. The mani- nc reduces 
 festo was no sooner issued than it was enforced ; the terrors of Hereford, 
 the king's approach wrought wonders ; before the middle of the 
 month Roger of Hereford had made his formal submission \ and 
 Hugh Mortimer, with his three castles of Wigmore, Cleobury, 
 and Bridgnorth, alone held out. Eefoi'e proceeding against him Oaths taken 
 Henry held another great assembly, on April 10, at AVallingford ^, 
 where he exacted the oaths of the bishops and barons to the suc- 
 cession of his son William, and in case of his death to Henry 
 his second son. The subjugation of the border proved no easy 
 task, Bridgnorth, which had l^een fortified fifty years before by 
 Robert of Belesme, tasked the skill of the royal forces, and Henry 
 was obliged to call out the whole military power of England 
 before it was brought to submission ^. Hugh Mortimer made his Submission 
 peace in July *. Before the end of his first year Henry had thus Mortimer. 
 disarmed the feudal party, restored the regular administration 
 of the countiy, banished the mercenaries, destroyed the castles, 
 and showed an intention of ruling through the means, if not 
 under the control, of his national council. In September he held Proposed 
 
 Conquest of 
 
 another council at "Winchester, in which he discussed the project Ireland, 
 of conquering Ireland as a provision for his brother William of 
 Anjou ^, and he wound up the business of the year by a solemn 
 gathering at Westminster at Christmas". The history of the 
 year furnishes abundant illustration of the energy and capacity 
 of a king of two-and-twenty. 
 
 The year 1 156 was spent by Hem-yon the Continent. He Expedition 
 
 . 11 T. 1 -.1111^° Fniiice in 
 
 was accompanied by his cnancellor Becket, wno had already W56. 
 
 become his most intimate friend and most influential adviser ". 
 
 The chief object of the expedition was to secure Normandy and 
 
 to bring to submission the king's brother Geoffrey, who had 
 
 * March 13th. Gervase, c. 1378. 
 
 * ' Factus est conventus generalis praesulum et principum totius Angliae 
 apud Walingefordiam.' Gervase, c. 1378; E. de Monte, A.D. 1155. 
 
 ^ Cliron. de Bello, p. 75 ; R. de Monte, A.D. 11 55. 
 
 * 'Mense Julio, nonis ejusdem;' R. de Monte. 
 
 ^ The empress objected and the design was given up for the present. 
 R. de Monte. 
 
 * Chron. de Bello, p. 76. 
 ' Gervase, c. 137S.
 
 454 Constitutional History. [chap. 
 
 claims on Anjou undei' his father's will which Henry denied. 
 England was left under the management of the justiciars. The 
 year is marked by no event of importance, but it furnishes us 
 with the first of an unbroken series of Exchequer Rolls, from 
 which we learn much as to the reconstruction of the adminis- 
 Rfivei.ue of trative system. The Pipe Roll of the second year of Henry II ^ 
 "^ ' exhibits the account for the year ending at Michaelmas, 1156 : 
 
 no sheriff appears for the northern counties, which are still in 
 the hands of the Scots ; the diminished amount of revenue shows 
 that the treasury was but slowly recovering from the exhaustion 
 of the last reign, not more than .£22,000 being raised in the 
 Itinerant gross from the whole kingdom. A general visitation of the 
 1 156. country had not been yet attempted, but the constable, Henry 
 
 of Essex, had heard pleas in eight of the southern counties, in 
 two of them, Essex and Kent, in company with the chancellor, 
 who for the first time appeal's in the character of a judge. The 
 general taxation is of much the same sort as in the roll of 
 Stutage in Henry I, but the term scutage, now first employed, indicates 
 ' ' that the assessment of the knights' fees was coming into use ; and 
 
 as it is mainly in reference to the spiritual baronies that the word 
 occurs, it follows that the liability of these estates to the public 
 duties was not confined to military defence. The practice was, 
 as we learn from John of Salisbury, opposed by Archbishop Theo- 
 bald '^, but it was perhaps advised by the chancellor, who did not 
 until a much later period betray any sympathy with the cause 
 of clerical immunities. 
 Henry's acts 138. Henry returned to England on the 7th of April, 11 57, 
 and immediately found his hands full of work. Some few of the 
 royal castles had been allowed to remain in the hands of the 
 barons who were half trusted, in order perhaps to avoid pro- 
 voking them to rebel. The son of the late king, William count 
 of Mortain, Warcnne and Surrey, whose rights had been secured 
 at the peace, now placed in llic king's hands all the castles that 
 
 ' I'riiited liy IIuiiIit with tlie Rolls of the ^nl and 4th years, in 1844. 
 
 * John of Salishury (i:j). 128) mentions this scutage as levied to enable 
 Henry to make war on liis brother : ' Vcrum interim Hcuta'^ium remittere 
 non jtotcst, et a (juibuHil.tm exactionibus abhtinere, quoniam fratris gratia 
 male sarta nuquidnuam coiit.'
 
 XII,] First Welsh War. 455 
 
 ho possessed both in England and Nonnandy, and received in 
 return the patrimony of his father and mother ^ Hugh Bigod, Restoration 
 the veteran intriguer, who liad yet again to signalise himself as a northern 
 rebel, surrendered his castles ^ ; and king Malcolm of Scotland 
 restored the northern counties. The king made a pilgrimage to 
 8. Edmund's, where he wore his crown on Whitsunday and held 
 a great com-t ^ ; and directly after began to prepare for his first 
 expedition to Wales. In contemplation of this undertaking he 
 assembled the whole baronage at Northampton on the 19th of 
 July ■* ; and having received the ambassadors of Frederick Barba- 
 rossa, and done some legal business, he proceeded into the west. 
 The force necessary for the exiiedition was raised by an arrange- Expedition 
 ment new at least in England — every two knights joined to 
 furnish a third ; so that a third of the whole body took part 
 in the expedition ^. The war was short, and not brilliant. The 
 constable, Henry of Essex, was charged with cowardice in letting 
 fall the royal standard ; and the king returned, scarcely claiming 
 the fame of victory, to meet the king of Scots in the Peak ". In 
 that meeting it is probable that the final surrender of Northum- 
 berhmd and Cumberland was made, and Malcolm received, as 
 the inheritance of his grandmothei', the daugliter of Waltheof, 
 the county of Huntingdon. Henry wore his crown that Coronation 
 Christmas at Lincoln, not however ventui'ing into the cathe- 
 dral, for this was forbidden by a superstition already of old 
 standing, but attending mass in the church of S. Mary Wigford ''. 
 The year is not marked as one of great judicial activity. 
 
 Six months of 1 1 58 were spent in England ; at Easter the The year 
 kincc wore his crown at Worcester ^. In the summer he went 
 
 ' R. de Monte, a.d. 1157. 
 
 « Ibid. 
 
 ^ Chron. de Bello, pp. 84, 85 ; Pipe Roll, p. 107. 
 
 * ' Convocati sunt ad euiu praesules et pi'incipes regni, abbates nonnulli, 
 aliique inferioris ordinis personae.' Gervase, cc. 1378, 1380; Radewic, 
 ap. Urstis. ]>. 325. 
 
 ' ' Circa festivitateni S. Johannis Baptistae rex Henricus praeparavit 
 niaximain expeditionein ita ut duo miiites de tota Anglia tertium pararent 
 ad opprimeu'luni Giialenses terra et iviari.' R. de Monte, A.n. 1157. 
 
 * Pipe Roll, pp. 90, i-;2 : R. de Monte, a.d. 1157. 
 
 ' Pipe Roll, p. 136; W. Newb. ii. c. 9 ; Hoveden, i. 216. 
 ^ Hoveden, i. 216; Pipe Roll, p. 175.
 
 456 
 
 Constitutional History. 
 
 [chap. 
 
 Expedition 
 to France in 
 I IS**. 
 
 Tlie war of 
 Toulouse, 
 in US9. 
 
 Scutate in 
 commuta- 
 tion of 
 service. 
 
 into Cumberland, where he knighted William of Warenne on 
 Midsummer Day ^ ; and in August he went to France, where he 
 secured the inheritance of his brother Geoffrey who was just 
 dead, and negotiated the marriage of his eldest son with a 
 daughter of Lewis VII. Early in the next year he betrothed his 
 second son Richard to a daughter of the count of Barcelona, 
 and formed a plan for enforcing the claim of his wife on tlie 
 county of Toulouse ^ 
 
 Henry's foreign Avars affect our subject only as being the 
 causes which prompted some of those financial measures which 
 illustrate his genius for organisation. And amongst them the 
 war of Toulouse is perhaps the most important : for it is the 
 epoch at which the institution of scutage, as a pecuniary com- 
 mutation for personal service in the host, is fixed by the com- 
 mon consent of lawyers and historians. The king's position was 
 a somewhat difficult one. It was scarcely fair to call on tlie 
 military tenants of England and Normandy to fight as a matter 
 of duty for the aggrandisement of the estates of the duke of 
 Aquitaine. The English baronage might indeed rejoice in the 
 opportunity of signalising themselves before so splendid a king 
 and in a new land ; but not so the bulk of the knightly foice. 
 Still less could the national force of the country be armod in 
 such a cause. Henry was willing to fight with mercenaries, 
 if England and Normandy would provide him with the funds : 
 such a force would be far more manageable during the cam- 
 paign, and less dangerous when it was over. A precedent was 
 found in the ancient fyrdwite, the fine paid by the Anglo-Saxon 
 warrior who failed to follow his king to the field \ But instead 
 of being a punishment, it was now regarded as a pi'ivilege; those 
 tenants of the crown wlio did not choose to go to war, paid a 
 tax of two marks on the knight's fee *. With this, and a very 
 
 * R. de Monte; Hovedcn, i. 216; Cliron. Mailros. p. 168; Pipe IloU, 
 pp. 119, 175. 
 
 ' R. do Monte, A.n. 11 58. 1 1 59. 
 ^ Al)ovc, p. 190. 
 
 * A Hciita'.,'o of two marks on tlio knisjflit'rt fee is accounted for in the 
 Rolls of tlio fiftli year. According to Alexander Swerford, the author of 
 the Liber Ruber, it was for an expedition to Wales; Madox, Hist. Exch. 
 p. 436: but no Buch expedition was made. Gervase, c. 1381, says that the
 
 xii,] War of Toulouse. 457 
 
 large accumulation of treasure from other sources, amounting, p:;xpc(lition 
 according to the contemporary writers, to £180,000, Henry ncg. 
 undertook the subjugation of Toulouse. The whole court ac- 
 companied him : the king of Scots, the first of the tenants-in- 
 chief, AVilliam of Boulogne, son of the late king, and the 
 chancellor Becket, are especially mentioned. The expedition 
 lasted for three months, and, although marked by some brilliant 
 exploits, was unsuccessful. Henry did not take Toulouse, 
 although he reduced most of the territory to submission. He 
 would not bear ai'ms against Lewis VII ■*, who was his feudal 
 
 king exacted £ i So.ooo by way of scutage fiom England this year. The 
 sum is impossible, and is yirobably made by niultiidying the supposed number 
 of knights' fees (60,000) by the sum of sixty shillings, which wastlie amount 
 levied on the knight's fee in Normandy. R. de Monte, a.D. 1159. But 
 the shillings are Angevin, i.e. worth one-fourth of the English ; and the 
 knights' fees were very far from being 60,000. See above, p. 432. Becket's 
 enemies alleged that he advised the impost, and his friends regarded his 
 subsequent troubles as a judgment on that account. See Gilbert Foliot, 
 ep. 194 ; Joh. Sailisb. ep. 145. Tliere is no doubt about the. character of 
 this scutage. John of Salisbury says : ' Tolosam bello aggressurus, omnibus 
 contra antiquimi morem et debitani libertatem indixit ecclesiis, ut pro 
 arbitrio ejus satraparum suorum conferrent in censum.'^ep. 145 : he regards 
 the chancellor as acc<nintal)le for it. 
 
 * Robert dc ^lonte simply says, ' urbem tamen Tolosam noluit obsidere^ 
 deferens honorem Ludovico.' The Draco Normannicus gives more details,, 
 ■which are worthy of note : — 
 
 ' Rex velut orator legiones convocat, adsunt 
 Et regni proceres, militiaeque duces. 
 « « « « 
 
 Orditur, narrat, confirmat, sicque refutat, 
 
 Claudit, et ex istis quatuor ilia regit ; 
 An dominum regem clausum subvertat et urbem, 
 
 An vivum capiat, consul et ipsa mat ; 
 Urgeat an clausos muris ad deditionem, 
 Exspectet potius banc sine rege capi ? 
 » * * * 
 
 Consulit inde duces, quaerit, deliberat, ex his 
 
 Quatuor utilius quid sibi quidve suis. 
 Quidlihet ex jirimis tribus his vis militis audax. 
 
 Expetit, hortatur, id feritate cupit. 
 Ingenium procerum simul experientia rerum 
 
 Ut quartum teneat consulit illud agat ; 
 Regibus Anglorum facinus miserabile regeni 
 
 Frangere Francorum, deditione premi. 
 Clausis parcendum, pietatem solvere victis, 
 Urbem ne repleat planctibus, igne, nece. 
 Consilio procerum rex regi parcit et urbi, 
 Pars patriae fuerat jamque subacta sibi.' 
 
 Lib. i. c. 12.
 
 458 
 
 ConstHutional History. 
 
 [chap. 
 
 Long 
 
 absence of 
 Henry from 
 England. 
 
 Quiet ad- 
 ministration 
 during the 
 years 
 ii?J'-ii63. 
 
 Completion 
 of the 
 scheme of 
 refoi-m. 
 
 lord, and witli whom he was at peace, although Lewis was 
 actively supi^orting the count of Toulouse against him, and 
 the Norman lords were fighting on their own border. This 
 war was however followed by a quarrel between the two kings, 
 which detained Henry at a distance from England imtil the 
 month of January, 1 163. 
 
 During this long period the country was administered by the 
 justices, the queen or the young Henry occasionally presiding in 
 the court or at the councils : the rolls of account show that the 
 business of justice and taxation went on without difficulties, and 
 the historians detail little more than the succession of bishops 
 and abbots. The most important of these was the election of 
 the chancellor to the see of Canterbury, which took place in the 
 presence of the justiciar, in May 1162; the electors on this 
 occasion being the bishops of the province. This event closes 
 the ministerial career of Becket, and forms an epoch in the reign 
 of Henry, which serves to mark off one period of his political 
 activity. 
 
 Up to this time his labours had been confined mainly to the 
 work of restoration. The scheme adopted at Wallingford had 
 been carried out strictl) : the castles had been demolished or 
 taken into the royal hands, the mercenaries dismissed, the fiscal 
 earldoms abolished ; the royal estates had been as far as was 
 possible restored to cultivation, farmliouses and palaces had alike 
 been rebuilt ^ ; the courts of justice had been in full activity, 
 and severe sentences had everywhere been executed upon the 
 malefactors who had enjoyed impunity for many years : in par- 
 ticular the coiners of false or debased money had l)een rigidly 
 punished. The institution of scutage had shown that the king 
 needed an increased revenue, and that he knew how to raise it ; 
 and the measures taken for levying a force against the Welsh 
 in 1 157, and foi- the war of T'oulouse, sliowed that, young as 
 
 ' R. de Monte marks tho year 1161 as a period of building. Among 
 other ercctiotiH, 'dotnnm l^prosornm juxta Cadomum mirabiloin aedificavit : 
 anl;iiu et canu^raH ante turriiii UotliDiiiagi iiiliildniliius renovavit, et non 
 solum in Nnrmaniiia Hod otiam in loyno Angliae, ducatu Aquitaniae, 
 comitatu Andegaviao, (Jenoriianniae, Turonensi, castella, m-insioncH regias, 
 vel uovjv aedihcavit, vel Vetera eniendavit.'
 
 XII.] Legal Acllvity. 459 
 
 Henry was, lie had a plan and policy of his own. Nothing Disarmitiir 
 
 , T ir>ii of tlic leudal 
 
 in lact could have been wiser than to disarm that leudal party. 
 party from which he had most to fear, by accepting their 
 money instead of leaning on their armed support. It is not to 
 I>e sujjpused that during these years Henry showed no signs of 
 that ingenuity in the development of legal institutions which 
 especially marks the next period of the reign. William of New- 
 burgh mentions, among his very first acts, the careful provision 
 made for provincial as well as for central iudicature ^ We Improve- 
 
 " ^ iiients 111 
 
 learn from the lives of S. Thomas that the chancellor himself Judicial 
 
 procedure, 
 was constantly employed in hearing causes ^, and so great was 
 
 the interest which Henry took in such matters that, on one 
 occasion during the constant litigation in which the abbey of 
 Battle was involved, the ordinary form of charter being insuf- 
 ficient for the emergency, the king himself drew up the docu- 
 ment required^. It is almost certain then that some part of 
 the legal reforms of the reign had been set on foot already, 
 although the text of no formal document of the kind is now 
 extant. The references made in the Constitutions of Clarendon 
 to the system of recognitions and juries of presentment, seem to 
 justify us in inferring that, whether or no these customs are 
 rightly described as belonging to the reign of Henry I, there is 
 the utmost probability that they had been recognised as part of 
 the ordinary course of law since the beginning of the reign of 
 Henry II, although not in the complete form which was given 
 them ill his later acts. In Normandy he had been active in the Similar 
 
 *' _ _ reform in 
 
 same way. In the beginning of the year n6o, having held his Normandy. 
 Christmas court at Faluisc, he had ordained that no dean 
 should accuse any man without the evidence of neighbours who 
 bore a good character ; and that in the treatment of all causes, 
 the magistrates of the several districts at their monthly courts 
 
 ' ' Ortlinatisque in cunctis regni finibus juris et legum ministris qui vel 
 improljorum audaciam coercerent, vel interpellautibus secundum causarum 
 niorita justitiaia exhiiierent .... Quoties autem, judicibus mollius agentibus, 
 provincialiuni querimoniis pulsabatur, provisionis regiae reniedium adbi- 
 bebat.' \V. Xewb. ii. c. i. 
 
 * Roger of Poutigny, Vita S. Thorn, (ed. Giles), i. I02. 
 
 ' Chron. de Bello, p. 165.
 
 460 
 
 Constitutional History. 
 
 [chap. 
 
 Law 
 
 reforms. 
 
 The year 
 
 Historj- of 
 Kecket. 
 
 should determine notliing without the witness of the neighbours, 
 ' sliould do injustice to no man, inflict nothing to the prejudice 
 of any, should maintain the peace, and punish all robbers sum- 
 marily ; and that the churches should enjoy their own in peace \' 
 It is improbable that England should not have felt the same 
 innovating policy ; but in the absence of distinct recoi'd it can- 
 not be proved. And accordingly it is impossible to say with 
 certainty that any of the known reforms of the reign were the 
 work of the chancellor, whose influence during these eai'ly years 
 was supreme with the king. 
 
 139. As soon however as Henry returned to England after 
 five years' absence, in January 1 163, he began to apply to public 
 business even more zealously than before. Early in March he 
 is found in council, hearing the wearisome cause of Richard 
 de Anesty, at London ^ ; at the end of the month, at Windsor, 
 lie presided at the trial in which Henry of Essex the Constable 
 was appealed for treason by Robert de Montfort, and having 
 been defeated in trial by battle, forfeited his great inheritance '. 
 After a hurried expedition into "Wales, he was on the ist of 
 July at Woodstock, where the king of Scots and the princes 
 and lords of Wales did homage to the heir, and where the 
 king's first gi-eat trouble, the quarrel with Becket, began *. 
 
 Tiiis famous person, who had been selected by Archbishop 
 Theobald as tlie fittest adviser of the young king, was endowed 
 with many brilliant and serviceable gifts. He was an able man 
 of business, versatile, politic ; liberal even to magnificence ; well 
 t^killed in the laws of England, and not deficient in the accom- 
 
 ' R. de MoTite, a.d. 1160 ; Bouquet, xiii. 304. 'Rex Anglorum Henricus 
 afl Natale Domini fuit ajiud Falrsiaiu ot leges instituit ut nullus decanus 
 aliquam personam accusarct sine testinioiiio vicinorum circum manentium 
 qui bonae vitae fama l.iudahilcs liabercntur. De causis similiter quorum- 
 liljot vcntilandis instituit ut, cum judices singulariim provinciaruni singulis 
 mensihuH ad minus simul convenirent, sine testimonio vicinorum niliil 
 judicarent, injuriam neinini facercnt, prac-iu<licium non irrogarent, pacem 
 tenerent, latrones cunctosKtatim punirent, quaeijue quiete tenereut ecclesiae 
 sua jura possiderent.' 
 
 * I'.algrave, (/VjTrmionwealtli, p. xxii. 
 
 ^ Ibid.; R. de Monte, A.I). 11 63. See also the Chronicle of Jocelin of 
 Brakelond (ed. f'amden >Soc. pp. 50-5?). 
 
 • R. Diceto, 0. 536.
 
 XII.] Thomas Becket. 461 
 
 plishments of either clerk or knight. His singular career illus- L'ccketarc- 
 
 ^ . preseiitutive 
 
 trutes at ouce the state of the clergy at the time and his own man of three 
 
 . . schools. 
 
 power of adapting himself, apparently with a good conscience, 
 
 to each of the three great schools of public life in turn. The 
 clergy of the Norman reigns may be arranged under three 
 classes : there is the man of the thoroughly secular type, like 
 Roger of Salisbury, a minister of state and a statesman, who has 
 received high i)refernicnt in the Church as a reward for official 
 services ; there is the professional ecclesiastic, like Henry of 
 Winchester, who looks to the interests of the Church primarily, 
 whose public course is dictated by regard for clerical objects, 
 who aims at a mediatorial position in the conflicts of the State, 
 and who has close relations with the great ecclesiastical centre 
 at Rome ; and there is, thirdly, the man wdio, not less patrioitc 
 than the first and not less ecclesiastical than the second, acts 
 on and lives up to higher principles of action, and seeks first 
 and last what seems to him to be the glory of God. This last class 
 is represented to some extent by Anselm ; it is not numerous, 
 and in an age of monastic sanctity and pretension is especially 
 exposed to the intrusion of false brethren, such as the fanatic who 
 is ambitious of martyrdom, or the hypocrite who will endure the 
 risks of persecution provided he obtains the honour of popu- 
 larity. Thomas Becket lived through all three phases, and 
 friends and enemies to the present day debate to which of the 
 two divisions of the last class his life and death assign him. 
 His promotion to Canterbury put an end to the first act of his 
 career. Until then he had been the chancellor, the lawyer, 
 judge, financier, captain, and secretary of state. Now he be- 
 came the primate, the champion of the clergy, the agent or 
 patron of the Pope, whom he probably had persuaded Henry to 
 recognise ; the assertor of the rights of his Church and of his 
 own constitutional position as first independent adviser of the 
 
 Crown. The date at which he resigned the chancellorship is un- His aliena- 
 
 t ion from the 
 certain, but it seems clear that, before Heiuy s return from France, king. 
 
 he had made himself enemies among his former associates by 
 
 demanding from them x'estitution of estates belonging to the see 
 
 of Canterbury which, as he maintained, they held unjustly, and
 
 4^2 Constitutional History. [chap. 
 
 Henry's by otherwise assertinsf the temporal claims of his see^. Henry 
 resentment. • • <• i n ti 
 
 was no doubt hurt by the resignation of the chancellor, but was 
 
 scarcely prepared to find his late minister placing himself in an 
 
 attitude of opposition which had no precedent in the histoi'y of 
 
 the last hundred years. Anselm's quarrels arose from spiritual 
 
 questions. Those of Thomas began on a purely secular point. 
 
 J^spute at The account given by the contemporary writers of this first 
 
 on the dispute is very obscure : it concerned however some question of 
 
 revenue of ^ . "^ . . . ^ 
 
 "^3- taxation in which the king was anxious to make a change bene- 
 
 ficial to the royal revenue. Every hide of land, we are told ^ 
 paid to the sheriff two shillings annually, in consideration of his 
 services in the administration and defence of the shii*e. This 
 sum the king wished to have enrolled as part of the royal 
 revenue, intending probably to reduce, as he afterwards did, the 
 power of the sheriffs, or to remunerate them from some other 
 fund. A tax so described can hardly have been anything else 
 than the Danegeld, which was an impost of two shillings on the 
 hide, and was collected by the sheriffs, being possibly comj^ounded 
 for at a certain rate, and paid by them into the Exchequer. As the 
 Danegeld from this very year 1 163 ceases to appear as a distinct 
 item of account in the Pipe Rolls, it is imi)ossible to avoid con- 
 necting the two ideas, even if we may not identify them. Whether 
 the king's object in making this proposition was to collect the 
 Danegeld in its full amount, putting an end to the nominal assess- 
 ment which had been long in use, and so depriving the sheriffs 
 of such profit as they made from it, or whether he had some other 
 end in view', it is impossible now to determine ; and consequently 
 it is difficult to understand the position taken by the archbishop. 
 ' We will not,' he is recorded to have said, ' my lord king, saving 
 your good pleasure, give this money as revenue ; but if the 
 sheriffs and servants and ministers of the shires will perform 
 their duties as they should, and maintain and defend our de- 
 pendants, we will not be behindhand in contributing to their aid.' 
 The king in anger answered, ' By the eyes of God, it shall be 
 
 ' CiervaHfi, c. 7384. 
 
 '■' Orim. Vit'i s! Thorn, i. 21 ; lloger of I'oiitigny, i. 113; Gamier, p. 65 ; 
 Will. Cantuiir. ii. 5.
 
 XII.] Ecclesiastical Discipline. 463 
 
 given as revenue, and it shall be entered in the king's accounts ; Becket's "^ 
 and you have no right to contradict ; no man wishes to oppress ^ the k?n!t 
 your men against your will.' Beckct replied, ' My lord king, by of taxatfony 
 the reverence of the eyes by which you have sworn, it shall not 
 be given from my land, and from the rights of the Church not a 
 penny ^' We are not told further of the immediate result : but 
 the king and his minister never met again as friends. This is, 
 however the details may be understood, the first case of any 
 opposition to the king's will in the matter of taxation which 
 is recorded in our national history ; and it would seem to have 
 been, formally at least, successful. 
 
 Three months after, in October, in the council of Westminster, 
 a fresh constitutional quarrel broke out. Ever since the Con- Council of 
 queror had divided the temporal and spiritual courts of justice, mhister. 
 the treatment of criminal clerks had been a matter of difficulty ; 
 the lay tribunals were prevented by the ecclesiastical ones from 
 enforcing justice, and the ecclesiastical ones were able only to 
 inflict spiritual penalties. The reasonable compromise which had 
 been projiounded by the Conqueror himself, in the injunction that Dispute 
 the lay officials should enforce the judgments of the bishops ^, cdminout 
 had been rendered inefficacious by the jealousies of the two ^'^'■'^^■ 
 estates ; and the result was that in many cases grossly criminal 
 acts of clerks escaped vmpunished, and gross criminals eluded 
 the penalty of their crimes by declaring themselves clerks. The 
 fact that the king took up the question at this moment seems 
 to show that he was already undertaking the reform of the 
 criminal law which he carried into effect three years after. He 
 proposed that the anomalous state of things should cease; that 
 clerical criminals should be tried in the ordinary courts of the 
 country ; if they were convicted or confessed, they should be 
 degraded by the bishops and delivered over to the executioners 
 for condign punishment I Becket resisted ; it was sufficient that 
 the criminal should be degraded ; if he offended again, he 
 
 ' Grim. i. 22. 
 
 * See above, p. 283. If the excom7nunicated person was obdurate for 
 forty days, the king issued a writ to the sheriff to seize him and compel 
 him to satisfy the church. Rot. CI. ii. 166. 
 
 Hoveden.i. 219; Gervase, c. 1384; Grim. i. 22 sq. ; R. Pontigny, i. 
 115 sq. ; Anon. Lambeth, ii. 88.
 
 464 
 
 Constitutional Illdory. 
 
 [chap. 
 
 Henry com- 
 plains of the 
 extortion of 
 tlie ecclesi- 
 astical 
 courts. 
 
 Open 
 quarrel. 
 
 Council at 
 Clarendon. 
 
 (-"onstitu- 
 tions of 
 Clarendon. 
 
 offended as a layman, and the king might take him ; but the first 
 punishment was sufficient for the first offence. The king on the 
 same occasion complained heavily of the exactions of the eccle- 
 siastical courts, and proposed to the assembled bishops that they 
 should promise to abide by the customs which regulated those 
 courts and the rights of the clei'gy generally, as they had beeu 
 allowed in the days of his grandfather. The archbishop saw that 
 to concede this unreservedly would be to place the whole of the 
 clergy at the king's mercy : he prevailed on the bishops to assent 
 ' saving their order,' and the king, irritated by the opposition, 
 left the assembly in anger. Immediately after he ordered the 
 archbishop to resign the honours of Eye and Berkhampsted 
 which had been committed to him as chancellor ^. 
 
 After two or three unsatisfactory interviews with Becket, the 
 king called together at Clarendon, in January 1164, the whole 
 body of the bishops and barons ^ Again the archbishop was 
 bidden to accept the customs in use under Henry I ; and again 
 he declined doing anything unconditionally. Then the king 
 oi'dered that they should be reduced to writing, having been 
 first ascertained by recognition. The recognitors, according to 
 the formal record, were the archbishops, bishops, earls, barons, 
 and most noble and ancient men of the kingdom ; according to 
 the archbishop, Richard de Lucy the justiciar and Jocelin de 
 Bailleul -^ a French lawyer of whom little else is known, were 
 the real authors of the document, which was presented as the 
 result of the inquiry, and which has become famous under the 
 name of the ' Constitutions of Clarendon.' 
 
 140. The Constitutions of Clarendon are sixteen in number, and 
 purport to be, as may be inferred from their production, a codi- 
 fication of the usages of Henry I on the disputed points. They 
 concein questions of advowson and presentation, churches in 
 the king's gift, the trial of clerks, the security to be taken of 
 
 ' HeiV)ert of Piosljani, iii. 11 1. He had held them since 11 56, and pro- 
 bably from his firwt appointment an chancellor. IMpe Roll 2 Hen. II. 
 
 '^ ' Ex mandato re;,'iH, coiicurrentibus cpisc()[)iH et proeeribua.' R. Diceto, 
 c- 5.'.^- Of. (iorvase, c. 1385 ; ' geiiorale concilium ;' W. Fitz-Stephen, i. 215. 
 
 ^ Robertson, Bucket, p. 97.
 
 I 
 
 XII.] Constitutions of Clarendon. 465 
 
 the excommunicated, the trial of laymen for spiritual offences, Contents of 
 the excommunication of tenants-in-chief, the licence of the clergy tutions. 
 to go abroad, ecclesiastical appeals which are not to go further 
 than the archbishop without the consent of the king : questions 
 of the title to ecclesiastical estates, the baronial duties of the 
 prelates, the election to bishoprics and abbacies, the right of the 
 king to the goods of felons deposited under the protection of 
 the Church, and the ordination of villeins ^ Such of these as 
 are of importance to our subject may be noticed elsewhere : it 
 is enough at present to remark that, while some of the Constitu- 
 tions only state in legal form the customs which had been 
 adopted by the Conqueror and his sous, others of them seem to 
 be developments or expansions of such customs in forms and 
 with applications that belong to a much more advanced state of 
 the law. The baronial status of the bishops is unreservedly Their im- 
 asserted, the existence of the Curia Regis as a tribunal of iiius'tnitinp 
 regular resort, the right of the bishops to sit with the other of Henry's 
 barons in the Curia until a question of blood occurs, the use of the reform 
 juries of twelve men of the vicinity for criminal causes and for 
 recognition of claims to land, all these are stated in such a way 
 as to show that the jurisprudence of which they were a part was 
 known to the country at large. Accordingly, the institution of 
 the Grreat Assize— the edict by which the king empowered the 
 litigant who wished to avoid the trial by battle to obtain a re- 
 cognition of his right by inquest of jury — must be supposed to 
 have been issued at an earlier period of the reign : and the use 
 of the juiy of accusation, which is mentioned in the Laws of 
 Ethelred but only indistinctly traceable later, must have been 
 revived before the year 1164. And if this be so, the Constitu- 
 tions of Clarendon assume a character which the party state- 
 ments of Becket's biographers have not allowed them. They 
 are no mere engine of tyranny, or secular spite against a chui'ch- 
 man : they are really a pai-t of a great scheme of administrative 
 reform, by which the dcbateable ground between the spiritual 
 and temporal powers can be brought within the reach of common 
 
 • Gervase, cc. 13S6, 1387 ; Select Charters, pp. 129-134. 
 H h
 
 466 Constitutional History. [chap. 
 
 TheConsti- justice, and the lawlessness arising fi-om professional jealousies 
 Clarendon abolished. That they were really this, and not an occasional 
 general ^^ weapon of controversy, may be further inferred from the rapidity 
 sc erne. ^j^j^ which they were drawn up, the completeness of their form, 
 and the fact that, notwithstanding the storm that followed, they 
 formed the groundwork of the later customary practice in all 
 such matters. 
 Backet's To Becket however and his followers they presented them- 
 
 thMn!^^°° ° selves in no such light. The archbishop had come the year 
 before from the council of Tours ^ in an excited state of mind, 
 of which the council at Woodstock saw the first evidence. He 
 best of all men must have known the beneficial effects which 
 the kingdom at large had experienced from the king's legal 
 measures. Yet he declared them to be incompatible with the 
 freedom of the clergy. At last, moved by the entreaties of his 
 brethren, whom the king's threats had frightened, he declared 
 his acceptance of the Constitutions : but with so much reluctance 
 and with so many circumstances on which no consistent tes- 
 timony is attainable, that the impression given at the time was 
 that he was temporising, if not dealing deceitfully. He sent 
 immediately to ask the forgiveness of the pope, as having be- 
 trayed the interests of the Church". 
 Fatal From this moment the intrigues of the archbishop's enemies, 
 
 quarrel. intrigues for which his own conduct had given the ojiportunity, 
 although it afforded no justification, left him no rest. In vain 
 he appealed to the king : Henry was too deeply wounded to 
 forgive, and was too much determined on his own policy of 
 reform to think of yielding ; and the courtiers were resolved 
 that no reconciliation should take place. In the following 
 October a council was called at Northampton ^, to which the 
 
 ' May 19, Ti6v Gervase, c. 1384. 
 
 ' Robertson, I'ecket, pp. 101-103. 
 
 ' ' Convonerunt illuc episcopi, comites, barones totius regni, mandato 
 regis urgent^.' R. Die. c. 537. ' Soleinnc statuenw celebrare conoilium, 
 omnes qui do rege tcnerent in capite iiiandari fecit; citatus est et arcbi- 
 episcopuB.' Grim, i. 39. ' Generale concilium.' W. Fitz-Stepli. i. 218. 
 ' EpiHCopos et abl)atcH, comites etiani et proceres, et omnes officiales sues, 
 omnesfjue oniiiino (jui alicujus essent auctoritatis vel nominis.' Roger of 
 Pontigny, i. 132.
 
 XII.] Exile of Becket. 467 
 
 archbishop was summoned, not, as was the custom, by the first Council of 
 
 \ . ' / *' Nortliainp- 
 
 suranions issued specially to him as the first counsellor of the ton, October, 
 
 crown, but by a common summons addressed to the sheriff of 
 
 Kent and ordering him to cite the archbishop to answer the 
 
 claims of John the Marshal ^. At that council his ruin was 
 
 completed : he was overwhelmed by the king's demand that he 
 
 should produce the accounts of the chancery, and by the charges 
 
 of his enemies. In despair of iustice, in fear of his life, or in the Becket j^oes 
 
 . . . . . into exile. 
 
 new ambition of finishing the third phase of his career by exile 
 
 or martyrdom, he fled from Northampton and soon after took 
 refuge in France, where, partly by threats of spiritual punish- 
 ment, partly by intrigues, and partly by invoking the legal 
 interference of a pope who had little sympathy with his suffer- 
 ings, he conducted a struggle which fills the chronicles of the 
 next six years. 
 
 During the greatest part of this time Henry also was absent Henry's 
 
 -11 . T . . -KT 1 . movements, 
 
 from England. He paid a hurried visit to Normandy in 1165, ii64-ii()t). 
 
 and on his return made his third expedition to Wales. Early 
 
 in 1 166 he held a council of the clergy at Oxford^, and a great 
 
 assembly of the bishops and baronage at Clarendon ^ He had 
 
 Just negotiated a marriage for his eldest daughter with Henry 
 
 the Lion Duke of Saxony, who was now in close alliance with 
 
 Frederick Barbarossa, and was supposed to be intending to join 
 
 the party of the antipope. Harassed by the attacks of Becket, 
 
 in want of money for the dowry of his daughter, invited by the 
 
 emperor to join the schismatic party, committed to it by his own 
 
 envoys, and drawn back from such a gross mistake by Earl Robert 
 
 of Leicester the justiciar, who refused the kiss of peace to the 
 
 * W. Fitz-Stephen, i. 220. 
 
 * R. Diceto, c. 539; Ann. Theokesb. (ed. Luard), p. 49 ; W. Newb. ii. 
 c. 13. This council is sometimes misdated, as if it belonged to 11 60 or 
 116 1. But the king was abroad in those years, and the direct evidence of 
 Ralph de Diceto is amply sufficient to fix the year. 
 
 ' This assembly is mentioned by Grim, and Roger of Pontigny, as one in 
 which an oath was exacted from the bishops that they would not appeal to 
 the pope. Vit. S. Thorn, i. 55, 156. The Pipe Rolls for the year mention 
 the king's residence at Clarendon, and give several payments made for wine, 
 carriage, fish, etc.; as well as for wax to seal the summonses, for the conduct 
 of approvers, and for the wages of the summoners. See Bened. Pet. ii. 
 pref. Ixi. 
 
 II h 2
 
 468 Constitutional Historr/. [chap, 
 
 archbishop of Cologne when acting as the imperial ambassador ^ 
 The Assize Henry showed himself still the master of the situation. It is 
 don, ii6f.. to this period that we owe the Assize of Clarendon, which re- 
 modelled the provincial administration of justice, and the valu- 
 able series of documents which are contained in the Black Book 
 of the Exchequer. Immediately after the council of Clarendon 
 the king went to France, where he was employed in the acquisi- 
 tion of Brittany and in counteracting the intrigues of Becket 
 until March, 11 70. In these years he lost some of his oldest 
 counsellors; the empress and Geoffrey de Mandeville in 1167, 
 Earl Robert of Leicester in 11 68,. and Bishop Nigel of Ely in 
 The king 1 1 69. He had however now gained sufficient experience in affairs 
 ruinisters. to be independent of his ministers — he never again submitted to 
 the advice of a friend such as Becket had been ; and in the 
 family of the old ministers of the Exchequer he found a number 
 of trained clerks who, without aspiring to influential places in 
 the government, were skilful and experienced in every depart- 
 ment of ministerial work. Bishop Nigel had left a son for 
 whom he had purchased the reversion of his own office of 
 treasurer, Richard Fitz-Neal, the author of the Dialogus de 
 Scaccario, afterwards bishop of London. Another of his clerks, 
 probably a kinsman, earned an unhappy notoriety during the 
 Becket quarrel as Richai-d of Ilchester ^ ; he was a man of con- 
 summate skill in diplomacy as well as finance, acted as justiciar 
 of Normandy, and was constantly employed as a justice and 
 baron of the Exchequer at home. The office of chancellor was 
 not filled up during Becket's life, John of Oxford, another of his 
 ])(!rsonal opponents, acting as protonotary, vice-chancellor or 
 keeper of the seal. The office of justiciar was retained by 
 Richard de Lucy, whose fidelity to the king, notwithstanding his 
 
 • R. l)ic(!tn, c. 5.^9. 
 
 * Kiclianl of Ilchester was a writer or clerk in the Curia and Exchequer 
 from the beginning of the reign of Henry II ; Pipe Roll, pp. 30. 31, 98. 
 He became archdeacon of I'oictiers hofore 1164, and was made bishop of 
 Winchester in 1 1 74. His illegitimate son, Herbert bishop of Salisbury, 
 wa« called J'du/Kr or If I'lmr, a name which l)clonged peculiarly to the 
 faniily of i{oger of SaliHl)iii-y the justiciar. So that it is most probable that 
 Riehard was a kinsman of Nigel, whose son, the bishop of London, 8peal<a 
 of him with great reKp<;ct in the Dialogus de Scaccario. He was a kinsman 
 also of Gilbert 1 oliot ; S. T. C. V. 291.
 
 XII.] The Assize of Clarendon. 469 
 
 devotion to tho memory of Beckett and his frank determination, 
 where he couhl, to assert the rights of the nation, earned him the 
 lionourable title of Richard de Lucy the Loyal ^. 
 
 141. The credit of having drawn up the Assize of Clarendon^ The Assize 
 must be divided between the king and his advisers. Whether don. 
 or no it owes some part of its importance to the loss of the 
 legal enactments that had preceded it, it is the most important 
 document of the nature of law, or edict, that has appeared since 
 the Conquest ; and whether it be regarded in its bearing on 
 legal history, or in its ultimate constitutional results, it has the 
 greatest interest. The council in which it was passed is de- 
 scribed as consisting of the archbishops, bishops, abbots, earls, 
 and barons of all England ; Becket however was not present, 
 and the assembly probably, among its minor acts, issued some 
 sentence against him and his relations. The Assize however 
 contains no mention of him. It is arranged in twenty-two Its contents, 
 ailicles, which were furnished to the judges about to make a 
 general provincial visitation*. Of these the first six describe 
 the manner in which the pi'esentment of criminals to the courts 
 of the justices or the sheriff is henceforth to be made. Inquest The jury of 
 
 Drcscnt" 
 
 is to be held, and juries of twelve men of the hundred, and four ment. 
 men of the township, are to present all persons accused of felony 
 by public report ; these are to go to the ordeal, and to fare as 
 that test may determine. By the other articles all men are 
 
 * He founded the ahbey of Lesnes in Kent in honour of the martyr, 
 and became a canon there after his resignation. Ben. Pet. i. 238 ; Mon. 
 Angl. vi. 456. " 
 
 ^ Jordan Fantosme (ed. Michel), p. 70. 
 
 ' The Assize of Clarendon was long knowTi only through the Assize 
 of Northampton, published ten years later : it was first printed by 8ir 
 F. PiUgrave, Commonwealth, pp. clxvi-clxxi. It will be found, edited 
 from a better MS., in Select Charters, pp. 134-139; also in my edition of 
 Benedict of Peterborough, vol. ii. app. pp. cxli.K-cliv ; Hoveden, ii. cii-cv, 
 248-252. It has not unnaturally been confused with the Constitutions of 
 Clarendon ; and even Gervase, who was a contemporary, describes the 
 Assize of Northampton as a reenactment of the act of Clarendon : ' Pro 
 cujus exsecraudis institutis beatus martyr Thomas Cantuariensis usque 
 in septennium exulavit.' c. 1433. The Assize and the Constitutions have 
 nothing in common. 
 
 * This Assize seems to be referred to in the Dialogus de Scaccario, ii. 
 c. 10: as ' arctior assisa quam rex propter sceleratos constituit;' and 
 ' Regia constitutio quae est pro bono pacis.' Ibid.
 
 470 
 
 Constitutional History. 
 
 [chap. 
 
 Article* of directed to attend the county courts, and to join, if required, in 
 under the these presentments ^ ; no franchise is to exclude the justices, and 
 
 iVssiz6 
 
 no one may entertain a stranger for whom he will not be 
 responsible before them ; an acknowledgment made before the 
 hundred court cannot be withdrawn before the justices ^ ; even 
 the result of the ordeal is not to save from banishment the man 
 of bad character who has been presented by the inquest; one 
 sheriff is to assist another in the pui'suit and capture of fugitives. 
 The sessions of the justices are to be held in full county court. 
 Two curious articles touching the ecclesiastical relations of the 
 State follow; no convent or college is to receive any of the 
 mean people into their body without good testimony as to 
 character, and the heretics condemned at the recent council of 
 Oxford are to be treated as outlaws. The Assize is to hold good 
 so long as the king shall please. 
 Its import- In this document we may observe several marks of the 
 legal nionu- permanence of the old common law of the countiy. Not only 
 is the agency of the shire-moot and hundred-moot — the four 
 best men of the township, and the lord Avith his steward — applied 
 to the carrying out of the edict, but the very language of the 
 ancient laws touching strangers and fugitive felons is repeated ^. 
 The inquest itself may be native or Norman, but there is no 
 doubt as to the character of the machinery by which it is to be 
 carried out. In the article which directs the admission of the 
 justices into every franchise may be detected one sign of the 
 anti-feudal policy which the king had all his life to maintain. 
 It is carried The visitation was carried out in the si)riii'T and summer of 
 judicial eyre. 1166; two justices, the earl of Essex and Richard de Lucy, 
 travelled over the whole country *, and the proceeds of their 
 investigations swell the accounts of the Pipe Roll of the year to 
 an unusual size. The enormous receipts under the heads of 
 
 ' ' HiiiiiincH do TiclioHoura debeiit v. inarci.s i\\na, noluerunt jurare 
 aHsisam rrtris.' Pijie lioll of 1 166. 
 
 * Comparo this witli (U.'uivill, lib. viii. c. 9. It .seems to be the first 
 mention of tin; (listiiiction of a court of record from one not of record. 
 
 ' Coiiiiinro witli tin; clause al)ont strangers, the Laws of Edward the 
 Confessor, c. 23; (Canute, Sec. 28; William J, i. 48; Henry I, 8, § 5. 
 
 * In eighteen counties assizes were hrld by Uieluird de liUcy, wlio was 
 accompanied by the earl of Essex in seventeen out of the number.
 
 XII. Aid pur Jille marier. 47 1 
 
 placita ^, the cliattels of those who failed in the ordeal ^, fines strict en- 
 exacted from the men who refused to swear under the king's 
 assize ^ the goods of those hanged under the Assize of Clarendon *, 
 the expenses of the gaols which the Assize ordered to be built or 
 to be put in good repair'', mark the accounts of this and several 
 succeeding years. These entries, which have nothing correspond- 
 ing with them in the rolls of the earlier years, seem to suggest 
 the conclusion that the act from which they resulted was really 
 a great measure of innovation ; an attempt to invigorate the 
 local administration of justice, and the initiative measure of a 
 newly-developed principle of judicial process ; a distinct step 
 forwards in the policy of bringing the royal jurisdiction into 
 close connexion with the popular courts, and thus training the 
 nation to the concentration of the powers of the people in 
 the representative parliaments of later ages. 
 
 The immediate results of the Assize were by no means Subsequent 
 
 DiGiisurcs of 
 
 transient; the visitation of 1166 was followed by an itinerant provincial 
 survey of the forests in 1167, and in ri68 by a thorough circuit 
 of the shires ^, held by the barons of the Exchequer mainly for 
 the purpose of collecting the aid which Henry demanded for the 
 marriage of his eldest daughter. It is not improbable that the 
 discussion of this aid took place in the council of Clarendon in 
 1x66'', for Henry was not in England between that date and the 
 time when the money was collected ; but it is possible that it was 
 taken as a matter of course under the recognised feudal principle 
 
 ' Some extracts will be found in Madox, Hist. Excli. pp. 235, 236. 
 
 ^ ' De catallis fugitivorum et eoruin qui perierunt in judicio aquae.' 
 Roll of 1 166 : this entry occurs in a large number of counties. 
 
 ^ See above, p. 469 : of. p. 397 above. 
 
 * ' De catallis fugitivorum et suspensorum per assisam de Clarendon.' 
 Roll of 1169. 
 
 •'■ The expenses of gaols at Canterbury, Rochester, Huntingdon, Cam- 
 bridge, S:irum, Malmesbury, Aylesbury, and Oxford are accounted for in 
 the RoUof n66. 
 
 '' Alan de Nevill held the forest courts in 1 167 ; in 1 168 the barons who 
 took the aid were Kichard of Ilcliuster, Reginald of Warenne, WiUiam 
 Basset, and Guy the de.an of W.althani ; besides these, Richard de Lucy 
 acted in Yorkshire and Cuniberl.and, Henry Fitz-Gerold in Kent, and 
 William Fitz-,John in Dorset and Somerset. Roll of 1168. 
 
 ' The purchase of a hutch, 'Una huchia ad custodiendas cartas baronum 
 de militibus' (R<)11 of 1166), would seem to fix the date of the documenta 
 preserved in the Liber Niger; Madox, Hist. Exch. p. 400.
 
 47^ Constitutional History. [chap. 
 
 The aid of ill such cases. The assessment was one mark on the knight's fee^; 
 and the number of knights' fees on which it was assessed was 
 certified by the landholders themselves. The collection of the 
 money occupied the barons for two years ^, and, as appears 
 from the action of the next year, did not satisfy the king, whilst 
 it called forth great complaints on the part of the people. The 
 visitation of the barons was used for judicial as well as financial 
 purposes, the sheriffs had great opportunities of enforcing justice 
 as well as of making perquisites, and the exaction following so 
 close on the severe assize of 1166 led men not unreasonably to 
 regard the mechanism employed for the repression of crime as 
 one of a series of expedients for increasing the receipts of the 
 Complaints Exchequer. The murmurs of the people reached the king in 
 people. Normandy ; and he had by this time other reasons for paying 
 
 a visit to England. 
 Proposal to 142. He was now thoroughly weary of the Becket controversy, 
 heir, in 1170. and the pertinacious underhand hostility of Lewis VII. He 
 had succeeded in compelling the Bretons to submit to Geoffrey 
 his third son, whom he had married to the heiress of Count 
 Conan ; and he was anxious to obtain for his son Henry the 
 right to govern England as viceroy or sharer in the rights of the 
 crown, which could be conferred only by the rite of coronation. 
 With this object in view he returned in March, 1 1 70, and held a 
 great court at Easter at Windsor, and another immediately after 
 Inquest of at London. In this second assembly, which coincided piobably 
 with the Easter session of the Exchequer, he, by an extra- 
 ordinary act of authority, removed all the sheriffs of the king- 
 dom fnjm their offices, and issued a commission of inquiry into 
 their receipts, which was to report to him on the 14th of June, 
 the day fixed for the coronation of the younger Henry '. The 
 commission of intpiiry, the text of which is extant, contains 
 thirteen articles, wliich S2)ecify both the matters to be investi- 
 gated and the paiticular method by which the information is to 
 
 • Madox, Hist. Exch. p. 398. 
 
 * The Hame officers acted as in 1168, with the addition of John Cumin, 
 afterwards arclihishop of Dublin, and Gervase of Cornhell. 
 
 3 Bened. Pet. i. 5.
 
 XII.] Inquest of Sheriffs. 473 
 
 be obtained. The barons to whom it is intrusted are to take Use of the 
 the oaths of all the barons, knights, and freeholders of each 
 county, and to receive their evidence as to the receipts of the 
 sheriffs and the whole staff of their servants, of the bishops and 
 the whole host of their temporal oflficers, of all the special 
 administrators of the royal demesne, of the itinerant officers of 
 the Exchequer, and of all others who have had the opportunity 
 of touching the public money : in particular, inquiry is to be Articles of 
 made into the execution of the Assize of Clarendon, whether it 
 has been justly carried out, and whether the officers employed 
 in it have taken bribes or hush-money; into the collection of the 
 aid pur fille marier, and into the profits of the forests : a supple- 
 mentary article directs inquiry into the cases in which homage 
 due to the king and his son has not been paid\ The great 
 amount of business which thus accrued could not be dispatched 
 in so short a time by the same staff of officers ; the inquest was 
 taken by twelve ' Barons errant,' clerk and lay, in the counties 
 nearest London, and by similar large commissions in the more 
 distant shires ; they were probably composed mainly of the 
 baronage of the district, who would naturally scrutinize with 
 some jealousy the proceedings of both the sheriffs and the 
 
 iudffes^. The result was apparently the acquittal of the officials : Removal of 
 , , , • ,-11 ,1 -• xi tlie sheriffs, 
 
 whether or no this was obtained by purcliase • , no further pro- 
 ceedings were taken against them, but the sheriffs were not re- 
 stored to their sheriffdoms, and had no further opportunity given 
 them of making their office a stepping-stone to greater wealth 
 
 ' Gervase, o. 1410; Bened. Pet. ii. clvi sq. ; Select Charters, pp. 140 sq. 
 On the points of likeness between this document and the Instructions given 
 to the Karolingian Missi, see below, chap. xiii. p. 613. 
 
 ' Gervase gives the names of the commissioners for the counties of Kent, 
 Surrey, Middlesex, Berkshire, Oxford, Buckingham, and Bedford :— the 
 abbots of S. Augustine's and Chertsey ; the earl of Clare, William of 
 Avranches, Manasser of Dannnartin, Ceroid Fitz-Ralph, Gilbert de Piukeni, 
 William Fitz-Helton, William Fitz-Neal, William Fitz-Martin, Ralph of 
 the Hospital, and H.alph de Dene. In Warwickshire and Leicestershire 
 Walter de Insula and Eustace Fitz-Stephen acted ' de Inquisitione Vice- 
 comitum Angliae.' Madox, Hist. Exch. p. 97. 
 
 * William Basset, who had been sheriff of Leicestershire, owed in the 
 19th year of Henry II 100 marks ' pro tine quern fecit cum rege de jurata 
 facta super eum de Inquisitione Vicecomitum Angliae.' Madox, Hist. 
 Exch. p. 97.
 
 474 
 
 Constitutional History. 
 
 [chap. 
 
 New 
 
 sheriffs. 
 
 Coronation 
 of the young 
 king. 
 
 It produces 
 a crisis in 
 tlie Uecket 
 (juarrel. 
 
 Murder of 
 tlie arch- 
 bishop. 
 
 and position \ Henry placed in their vacant magistracies the 
 officers of the Exchequer whom he knew and trusted ; adopting 
 in this respect the plan of his grandfather, who had used his 
 judges for sheriffs, although he avoided throwing too many of 
 the counties into any single hand : the Curia Regis and the 
 shire thus are brought together closer than ever, whilst a blow 
 is struck at the local influence of the feudal lords. 
 
 The Whitsuntide of 1170 was however marked by a more 
 critical event than the inquest of sheriffs. The heir was 
 crowned as Henry III ; the ceremony was performed not by 
 Thomas of Canterbury, but by Roger of York, and the wife 
 of the young king was not crowned with him. This act, which 
 was intended by Henry as a sign and seal of power, was a 
 most unfortunate mistake. He had, not unnaturally, supposed 
 that it would strengthen the supreme authority to have in each 
 division of his dominions a sufficient representative of royal 
 majesty^: he found that he had placed a dangerous weapon 
 in the hands of an undutiful son : the minor irregularities of the 
 coronation-day roused his enemies to frenzy; Thomas Becket 
 asserted that the rights of Canterbury, of the English Church, 
 of Christianity itself, were outraged by Archbishop Roger's 
 intrusion ; and LcAvis VII, hurt at the neglect of his daughter, 
 and backed by the support of the family of Champagne, who 
 (X>ml)ined careful orthodoxy with intense hatred of the house 
 of Anjou, urged the pope to put the kingdom under interdict. 
 Before these invitations took effect, Henry, alarmed as he might 
 well be, hastened into France, reconciled his long quarrel with 
 the archbishop, and authorised his return. Becket returned in 
 December, excommunicated the opposing bishops, provoked the 
 king to utter his angry and liasty wish to be I'id of him, and ex- 
 piated his inq)ru(l(iit iuid unclu-istian violence by a cruel deatli, 
 on the 29111 of l)('((Miil)ci-, 1 1 70. 
 
 ' Tlic (^lironicle of Benedict, i. 5, .says that Home of the slierifFs were 
 Hliortly after rephiced ; but an examin.ation of the lists of tiie sheriffs, given 
 in the thirtieth Report of the Deputy-Keeper, sliows tliat it was done in 
 very few cases, and tiiat none of the sheriffs now removed were employed 
 acjaiti, ex(:ei)t those who were members of the Curia RegLs, a.s tlanulf 
 (Jhiiwill and William Basset. 
 
 '' Benedict, i. 132.
 
 xil] Beckefs Death. 475 
 
 He was at once hailed as a martyr by Lewis VII and the He is imiled 
 
 «/-,,- ^ p r\ ^ uis a uiart.vr. 
 
 count of Champagne ; the monks of Canterbury were ready 
 to accept him as their patron saint after death, although they 
 had cared little about him during his life : the tide of miracle 
 began to flow immediately, and with it the tide of treason and 
 disaffection around the person of the king. 
 
 143. Henry's anger and horror at the muixler of the arch- Henry ap- 
 
 1 • 1 1 • 1 1 1 • • plii's lor 
 
 bishop — an act which showed in its perpetrators not only absolution. 
 
 great brutality, but a profound disregard for the king's 
 
 reputation and for the public safety — urged him to apply at 
 
 once in self-defence to Rome. That done, he must keep out 
 
 of the way of the hostile legation which had been dispatched 
 
 to Normandy. He collected his forces in the duchy, crossed He visits 
 
 . Ireland, 
 
 to England in August, 1171, and thence to Ireland, where he 1171. 
 remained, receiving the homages of the bishops and princes of 
 that divided country, until he heard that the legates who were 
 sent to absolve him had arrived in Normandy. This was in His absolu- 
 March, 1172. On receiving the news he returned as rapidly 1 172'. 
 as he had come, made his submission to the papal representa- 
 tives, clearing himself by oath of all complicity in the death 
 of Becket, renouncing the Constitutions of Clarendon, and swear- Repeated 
 ing adhesion to Alexander III against the antipope. The 1 172." ' 
 submission was completed at Avranches in September ^ As Second 
 
 . . coronation 
 
 one portion of the pacification, the younger Henry was crowned oitiieheir, 
 a second time, on this occasion in company wdth his wife, at 
 Winchester instead of Westminster, and by the archbishop of 
 Rouen instead of the archbishop of York^. The long storm 
 seemed to have ended in a profound calm. The king found 
 time to demand a scutage from those barons who had not joined 
 him in his Irish expedition', and set to work with characteristic 
 elasticity on a scheme for a mai-riage of his youngest son John 
 with the heiress of Maurienne. 
 
 144. But the momentary quiet was preparatory to the real Rebellion. 
 
 * See Benedict, i. 31, 32; floveden, ii. 35-39; and p. 561 below. 
 
 ^ Bened. i. 31. The queen was anointed as well as crowned : the young 
 king was crowned only. 
 
 =• Madox, Hist. Exch. p. 438 : ' De scutagio militum qui non abieruat in 
 Hibernian! nee denarios nee milites pro se miserunt.'
 
 Caiisesof the 
 rebellion of 
 1J73- 
 
 The young 
 king refuses 
 John a pro- 
 vision. 
 
 Ijeapuc 
 against 
 Henry II. 
 
 476 Constitutional History. [chap. 
 
 burst of the storm, which had been long gathering in regions 
 far more dangerous to Henry's power than the council-chamber 
 of the pope. The long sti'ain of the Becket quarrel had worn 
 out his patience, and the humiliation which attended the visit 
 of the legates placed him before his bai-ons in a position which 
 no English sovereign had yet filled. He had become irritable 
 and exacting, had alienated his wife, and failed to secure the 
 love of his children. His very measures of reform had arrayed 
 against him the many whose interests Avere affected by his reforms. 
 A conspiracy against his life, contrived by Adam de Port, was 
 discovered^. The feudal spirit was ready for its opportunity, 
 which Lewis VII was eager to make. The old men who re- 
 membered Stephen's time were passing away, and the young 
 ones were looking forward to the rule of a new generation. 
 The Maurienne negotiation was the spark that set the mass 
 of disaffection in flame. The king's proposition, that a proper 
 provision should be made for John, was o^iposed by his eldest 
 son : he demanded a substantive share in the administration 
 of the government ; he would have England or Normandy to 
 himself, or at least some territory of his own where he and 
 liis wife might be a real king and queen ^. That he was 
 prompted by Lewis VII and encouraged by promises of the 
 lords of Normandy, England, and Anjou, the historian of the 
 time distinctly asserts ^ ; and the result gives some probability 
 to the statement, although it is not probable tl)at in England 
 an actual conspiracy of any wide extent was on foot. At 
 Midlent, 1173, the young Henry fled from his father, and went 
 at once to Lewis. The king immediately suspected treason, 
 and set the castles of Normandy in a condition of defence. No 
 time was lost on cither side. Lewis called a council at Paris, 
 in which he proposed to assist the young king to dethrone 
 his father, and found a ready assent from the counts of Flanders, 
 Boulogne, and Blois : the king of Scots, his brother David, 
 and Hugh Bigod the earl of Norfolk, also undertook to supi)ort 
 him, and received the promise of extensive honours to be 
 
 ' A<l;un wouM not stanil his trial, and waB outlawed, but restored a few 
 years after; Bened. i. 35. He joined the rebels in 11 73 ; J. Fantosme, p. 62. 
 ' Bened. i. 41. ' Ibid. p. 42,
 
 X.I1.] General ReheUion. 477 
 
 bestowed if the rebellion were successful'. Each of the allies Henry's 
 had a different ground of offence : the count of Boulogne had France, 
 a claim on Mortain — he had married the daughter of Stephen, 
 and Henry had tried to purchase his rights over the Norman 
 county ; the counts of Blois and Flanders, besides their ancestral 
 hatred to Normandy and their pious indignation on behalf of 
 the martyr, had each his own private grudge ; Henry had spared 
 no man's interest in his determination to round off his territorial 
 boundaries. 
 
 The war broke out in June ; and the news of the invasion Outbreak of 
 of Normandy provoked an immediate rebellion in England. 1173. 
 The English earls had watched with disgust Henry's pro- 
 gressive measures for the extinction of feudal power. Their 
 castles had been taken from them, their franchises invaded, 
 their military service exacted or money taken in commutation : 
 every advantage that the feudal obligation gave to the king 
 he had used, but he had allowed them no liberty of tyranny 
 in return. The most influential amongst them had still very Henry's 
 
 1 1-1 1 c T • 111 enemies in 
 
 great interests in Normandy : the Earl 01 Leicester had the England. 
 great fief of Breteuil; the earl of Chester was hereditary viscount 
 of Avranches and Bayeux ; William of Aumale, the son of that 
 Stephen who had been set up as a competitor against William 
 Rufus, had both his lordship of Holderness and his great 
 Norman county. Others had the fancied WTongs of a century 
 to avenge ; the Bigods and the Mowbrays, who had risen on 
 the ruins of earlier feudatories, longed to realise their strength 
 and consolidate their local power ; the king of Scots, William 
 the Lion, and his brother David, united the grudges of jealous 
 neighbourhood with those of national dislike and feudal dis- 
 content. The English rebellion comprised nearly all that The English 
 
 . . war was a 
 
 portion of the baronage which inherited the traditions of the rebellion 
 ^ . , of the 
 
 Conquest and the ancient Norman spirit. It was a Norman Normans. 
 
 rebellion on English soil. They hated Henry as count of Anjou 
 
 not less heartily than they feared him as king of England. 
 
 • Bened. i. 44, 45 ; Jordan Fantosme (Surtees Society), pp. 2-6, 15. 
 The latter writer, who was a contemporary, describes a debate held by the 
 king of Scots before waging war in ' sun plenier parlement,' an early use 
 of the word; p. I4.
 
 478 Constitutional Histort/. [chap. 
 
 War in Tlie War of 117^ began in France. The count of Flanders 
 
 France. to b , , a a, 
 
 invaded Normandy from the north, and took Aumale and its 
 
 count, too easily for the credit of the latter; Lewis invaded 
 
 it from the south-east, and besieged Verneuil ; the earl of 
 
 ketones. Chester at the same time raised Brittany in revolt. Henry, 
 who had an army of 10,000 Braban9on mercenaries in his pay ', 
 marched to the relief of Verneuil, and drove Lewis out of 
 the country : he then moved with the utmost rapidity on 
 Brittany, and took the earl of Chester, with a host of Breton 
 nobles, prisoners at Dol. This energetic defence induced Lewis 
 and the disobedient sons to propose peace; but in the intervals 
 of negotiation Henry made the best use of his time ; he brought 
 Vendome to submission, and had completely humbled his 
 enemies before Christmas. 
 
 War in In England the struggle began later, and was practically 
 
 decided without the king's personal intervention. The govem- 
 
 Thefaitliful meut was still in the hands of Richard de Lucy: of the great 
 earls, William de Mandeville of Essex was faithful ; so also 
 were William of Arundel the husband of Queen Adeliza, Re- 
 ginald of Cornwall the king's uncle, and Hamelin of Warenne 
 the king's brother; so too were Strongbow the conqueror of 
 Ireland, and the eai'ls of Salisbury, Warwick, and Northamp- 
 ton, but these earls were by no means a match in power or 
 position for those of Chester, Leicestei', and Derby ^. The earl 
 of Gloucester, the king's cousin, tried to avoid taking part in 
 the struggle. All the bishops on both sides the water were 
 faithful, except Arnulf of Lisicux and Hugh of Durham, who 
 
 Proceedings tried to temporise '. Two of the faithful carls, those of Essex 
 
 justiciar and Arundel, were with the king in France ; and the defence 
 of the country fell chiefly on the justiciar, who, on hearing 
 that the war had broken out in Normandy, determined to strike 
 the first blow. In July, accom])anied by the earl of Cornwall, 
 he besieged Leicester, where the officers of the earl had set 
 up the standard of revolt, and burned the town, but failed 
 
 ' Benedict, i. 51. 
 
 ^ 'Jhe list of the king'n supporters is given in one of the MSS. of Bene- 
 dict (vol. i. p. 51). 
 
 ^ Jord. Fantosme, pp. 26, 73.
 
 XII.] civil War. 479 
 
 to take the castle. Leaving a force to continue the siege, the War in the 
 justiciar, this time in company with Humfrey Bohun the con- 
 stable, advanced on BerAvick, where they were detained until 
 September, when the earl of Leicester with his wife and a 
 large force of Flemings landed in Norfolk, and was welcomed 
 by Hufrh Bigod. On this news the iusticiar hastened south- Capture of 
 
 J o >3 ^ ^ J the earl of 
 
 wards and, having been joined by the earls of Cornwall and Leicester. 
 Arundel, defeated and took prisoner the earl and countess at 
 Fornham, where more than 10,000 of the Flemish mercenaries 
 were slain. The prisoners were sent to the king, who now 
 had in his own hands the two of his enemies who were most 
 dangerous to him ^ 
 
 The contest however was not over. Early in 11 74 the king invasion of 
 of Scots invaded Northumberland, sent his brother David to 11^4. 
 the relief of Leicester, and reduced the border fortresses one 
 by one to surrender. Roger INIowbray who held the castles 
 of Thirsk, Malessart, and Axholm, and the earl of Ferrers who 
 had fortified Tutbury and Duffield, co-operated with the earl 
 of Leicester's knights and with Hugh Bigod, who was ravaging Conduct of 
 his own county with another Flemish army. Norwich and " 
 Nottingham were burned by the rebels, and Northampton, in 
 spite of the gallant defence of the townsmen, was j)lundered ^. 
 The justiciar was detained in middle England, apparently un- 
 certain against which of the enemies he should march first ', 
 and employed himself in besieging Huntingdon : he could not 
 leave the country unsettled behind him ; the king of Scots 
 might be in Northumberland, but the younger Henry and Philip Threatened 
 of Flanders with a great fleet were waiting for a fair wind at from 
 Gravelines ; the king had his hands full in Poictou ; the count "' ^"^^ 
 of Bar had landed with mercenaries at Hartlepool, and it was 
 uncertain which side the great Hugh de Puiset, bishop of 
 Durham, and the most magnificent lord of the whole north 
 country, was about to take *. 
 
 In this great emergency the victory of the royal party was 
 
 ' Benedict, i. 5S-62 ; Jordan Fantosme, pp. 45-50. 
 
 ' J. Fantosme. pp. 53 sq. ' Ibid. pp. 3S. 40. 
 
 * Benedict, i. 64, 65.
 
 480 Constitutional History. [chap. 
 
 Fidelity of secured by the fidelity of the people. The barons of Yorkshire 
 
 shiremen. and the whole force of the county rallied round the sheriff, 
 
 Robert Stuteville ; Archbishop Roger sent his vassals under his 
 
 constable, Robert de Thilli ; Ranulf Glanvill, William de Vescy, 
 
 Capture of and Bernard of Balliol brought up their knights; and the 
 
 Scots. ° assembled army ovei'took King William at Alnwick, took him 
 
 by surprise, and captm-ed him with the leading men of his 
 
 Prowess of court. In Lincolnshire, Geoffrey, the king's natural son, the 
 
 the bishop- . ^ i 1 • i 1 
 
 elect of bishop-elect of Lincoln, collected the army of the shire and took 
 Axholm ; he then marched into Yorkshire, where, his force in- 
 creasing as he proceeded, he captured the other castles of the 
 
 Arrival of Mowbrays ^. In the meantime the king himself had arrived. 
 
 Aug. 7, 1174. Immediately on landing he went on pilgrimage to Canterbury, 
 where he arrived on the day that the king of Scots was cap- 
 tured : at the head of his Braban^ons he hastened to London, 
 and thence to Huntingdon, which surrendered immediately. 
 From Huntingdon he moved against Hugh Bigod, in whom now 
 
 Submission the rebellion centred. The veteran conspirator saw that the 
 
 * contest was hopeless ; without a battle he made his submission 
 
 to the king at Seleham, and surrendered his castles : a week 
 
 after the bishop of Durham arrived, and by a like submission 
 
 and surrender obtained permission for his nephew, the count 
 
 of Bar, to leave the kingdom with his forces : the same day 
 
 the constables of the earl of Leicester, Roger !Mowbray and 
 
 the earl FeiTers, surrendered their fortresses, and the struggle 
 
 was over in England. The king returned hastily to relieve 
 
 Rouen which his son was besieging, but his short stay had been 
 
 enough to prove that the opportunity of his enemies was over. 
 
 Peace, Peace was made in September ^. 
 
 Sept. 30. 
 
 The importance of this struggle, the last which the feudal 
 
 baronage undertook in arms against the royal power, may 
 
 excuse some amount of detail'. The result in France may 
 
 testify to the skill and energy of Henry : the result in England 
 
 • Benedict, i. 65-69. ^ Vo\A. 72-79. 
 
 ' ' Seignurs, en la meie fei, merveille est mnlt ^ant 
 Pur quei li suen demeine le vunt si deineiiaiit, 
 Le plus lionurahle e le plus conijuerant 
 Que fust en nule terre puis le tens Moysant,
 
 XII.] Victory of Henry. 481 
 
 testifies chiefly to the constitutional hold which he had obtained The result of 
 ou the body of the nation, on the Church, and on the newer, less to be 
 thoroughly Norman, portion of the baronage. The gi'cat earls ciiiefly to 
 had indeed conducted their revolt as if they had never intended nessofthe 
 to be successful. They had had no settled plan, no watchword, people. 
 no cry by which they could attract the i)eople. They trod in 
 the very footsteps of the rebel earls under William Rufus and 
 Henry I, and they shared in theu' evil fortune, more happy than 
 they in that they had to deal with a more politic and more 
 merciful conqueror. The bishops had stood firmly on the king's 
 side, with the exception of Hugh de Puiset, whose temporising 
 policy had redounded to his own confusion. The free men of 
 town and country had been faithful at a great cost. Norwich, 
 Nottingham, and Northampton had paid dearly for their fidelity, 
 for the earls, where they had the power, burned and I'avaged 
 the towns with twofold satisfaction. The shires had contributed 
 their force willingly, and had done good work. The baronage 
 which had sprung up since the beginning of the century from 
 the families promoted and enriched by Heniy I, which in many 
 cases were free from the influence of Norman connexion, — pos- 
 sessing no Norman lands, and unaffected by Norman preposses- 
 sions, which was learning the benefit of law and social security, 
 and being amalgamated day by day in sympathy and hopes with 
 the bulk of the English people, — the baronage too had shown 
 both faith and gratitude. The administration itself, the justiciar 
 and his subordinates, had proved equal to the strain : there was 
 no treason among the ministers ; and if they had shown some 
 symptoms of weakness, it was owing to the sudden and be- 
 wildering character of the revolt. 
 
 Henry's victory was so complete that he could aff'ord to be Henry's 
 generous ^ ; he saw that his true policy was not to revenge 
 himself by executions and confiscations, but, whilst he turned 
 
 Fors sule lent li reis Charle, ki poestt^ fud grant 
 Par lea dudze cumpaignuus Olivier e Rodlant.' 
 
 Jordan Fantosme, p. 6. 
 
 ' Dialofjus de Scaccario, ii. c. 2 : • Contra nuinerosam hostium multitu- 
 
 dineni solius Divinae gratiae magnitude subvenit, et qua-si pugnante pro 
 
 se Domino, sic in brevi pane rebelles oinnes obtinuit ut longe fortius 
 
 quam prius, ex eo quo infirmari debuit, coufirmaretur in regno 
 
 I i
 
 482 Constitutional History. [chap. 
 
 Politic his enemies into friends by his mercy, to disarm them effec- 
 
 tually. He kept a tight hand on their castles, many of whicli 
 he dismantled ^ ; he probably exacted considerable sums by way 
 of ransom ; but he shed no blood and seized no inheritances. 
 
 145. He took further advantage of his practical supremacy 
 in the country to go on with the work of organisation which he 
 had begun ; and one result of the rebellion was his more con- 
 Henry stays tinuous residence in England. After his return from France 
 
 in England . ^ . 
 
 during 1 1 75 in 1 175 he stayed two whole years m the country; holding 
 constant councils and enforcing fresh measures of consolidation. 
 He had now filled up the episcopal sees that had been vacant 
 since the Becket quarrel ; Richard of Ilchester and John of 
 Oxford bad become bishops of Winchester and Norwich : the 
 chancellorship, which had long been in abeyance or in com- 
 mission, was given to Ealpih de Warneville, treasurer of York, 
 who lived in Normandy and discharged his duties by means 
 of a vice-chancellor, Walter of Coutances ^. The reality of the 
 king's reconciliation with the Church was exhibited by his 
 attendance with his son at an ecclesiastical council held by 
 the new archbishop, Richard of Dover, at Westminster, the 
 week after his arrival, in May 11 75. That Whitsuntide he 
 held his royal court at Reading^, where he compelled the earl 
 of Gloucester to surrender the castle of Bristol, and showed his 
 consciouj-ness of his own strength by severely enforcing the 
 forest-law against the barons. After a conference with the Welsh 
 princes at Gloucester *, in which he forced them and the border 
 
 . . . Tam enormis sceleris inceiitoribus inaudita pepercit misericordia, ut 
 poruin pauci rerum suarum, nulli vero status sui vel cor^wruiu dispendia 
 suHtinereiit.' 
 
 ' Will. Newb. ii. c. 38. The series of measures touching the castles 
 runs over several years. Or lers were given for dismantling them imme- 
 diately after the war ; R. Diceto, c. 585. The.se were carried out in 1176; 
 liened. i. 121, 124, 126 (see below, pp. 484. 4S5). On the restoration of 
 the earls in 11 77 their castles wore still retained in the king's hands 
 (Bened. i. 134, 135). The same year all the royal ca-;tles in the north 
 changed their officers (Bened. i. 160), and shortly after (ibid, i. 178) 
 the coimcil advised the king to keej) in hand those of the bishop of 
 Diirliam. 
 
 * li. Die. c. 567. He held it till 1181, wh( n the king gave it to his son 
 Geoffrey. 
 
 ' 'Curiam ct festum regium.' Bened. i. 91, 92. 
 
 * 'Magnum tenuerunt concilium apud Gloucestriam.' Bened. i, 92.
 
 XII.] Courts and Councils. 483 
 
 barons to swear peace, he held a gi-eat council at Woodstock \ Councils of 
 
 where he filled up the vacant abbacies, and issued an edict by 
 
 which the persons who had been lately in arms against him Henry at 
 
 „ , . , , . , Wootlstock, 
 
 were lorbidden to come to court without a summons ; no one 
 
 was to remain at the court between sunset and sunrise without 
 
 permission ; and no cue on this side the Severn was to wear 
 
 arms as a part of his ordinary habit ; men had gone about with 
 
 bows and arrows and sharp knives too long '^ Thence he went at Lichfield, 
 
 to Lichfield, where he hanged four knights for the murder of 
 
 a forester : thence to Nottingham, where he held a great visita- at Netting- 
 
 tion of the forests, and, notwithstanding the expostulation of 
 
 the justiciar, exacted large sums as fines for the waste of the 
 
 vert and venison, which he had himself during the war autho- 
 
 lised his supporters to destroy^. This conduct, which was in 
 
 itself unjustifiable, was probably provoked by the extravagance 
 
 with which the permission had been used. He next went to at York, 
 
 York, to receive the submission of the Scots and the homage 
 
 promised by the king at the peace of Falaise. In October he at Windsor. 
 
 held a great council at Windsor *, and concluded a treaty with 
 
 the king of Connaught. Immediately after Christmas he called Assize of 
 
 a great council at Northampton, in which he renewed and ampton. 
 
 amplified the Assize of Clai'endon ^ 
 
 The state of the kingdom since the death of Becket had been internal 
 so unsettled, that the measures which the inquest into the tration. 
 conduct of the sheriffs was intended to pi'omote must neces- 
 sarily have been suspended : but the administration had not 
 for one moment been disturbed in its ordinary course. The Taxes of 
 king had exacted the scutage for the Irish expedition in 1172, 1173- 
 and in 1173 six detachments of Exchequer officers had taken 
 a tallage throughout the country, and held coui*ts of justice at 
 
 ' ' Magnum coram praedictis regibus celebraverunt [episcopi] concilium.' 
 Bened. i. 93. 
 
 * Ibid. : • In ipso autem concilio praecepit rex publico edicto,' &c, 
 ^ Ibid. p. 94. 
 
 * Ibid. p. loi : ' Congreg.itis apud Windeshovers . . . archiepiscopo Can- 
 tuariensi et episcopis Angliae et comitibus et baronibus terrae suae.' 
 
 * 'Magnum concilium de statutis regni.' Bened. i. 107. 'Coram epi- 
 scopis, comitibus, baronibus, militibus et aliis bominibus suis.' R. Diceto, 
 c. 5S8. 
 
 I i 2
 
 484 
 
 Consiiiut'wnal History. 
 
 [chap. 
 
 Visitation 
 of 1175. 
 
 Assize of 
 
 North- 
 
 ainpton. 
 
 New in- 
 
 tlie same time \ The next year, a year of war, left no time for 
 judicial business, but in 1175 the shires were visited by justices 
 again. Each year's account presents a different arrangement of 
 cii'cuits, or a different staff of judges. The Assize of Northampton 
 placed this jurisdiction on a more permanent footing. 
 
 The Assize of Northampton was issued in January, 1176^, 
 and formed, like that of Clarendon, a body of instructions for 
 the itinerant justices. It contains thirteen articles, many of them 
 marked by a severity which contrasts unfavourably with the 
 character of the earlier document, but which was no doubt 
 called for by the condition in which the country had been left 
 by the late war. The punishment of felons is made more cruel 
 theitiiiCTant ^^^^^ before ; stringent measures are directed against fugitives 
 justices. g^j-jj outlaws, and the manner of presenting the report of the 
 inquest is defined in nearly the same language. But the in- 
 fluence of the commission of 11 70 is traceable; the sheriffs are 
 not now associated with the justices as the persons to Avhom the 
 report is to be made, and a particular inquiry is ordered into 
 the receipts of the king's bailiffs. Other articles have special 
 reference to the recent rebellion ; every man, be he earl, baron, 
 knight, freeholder, or villein, is to take the oath of fealty, or to 
 be arrested as the king's enemy ; the castles, the destruction 
 of which had been ordered, are to be really destroyed ; and 
 report is to be made to the king as to the performance of the 
 duty of castle-guard by those who are liable to it. Nor was 
 the visitation confined to criminal jurisdiction ; the judges were 
 to take recognitions of novel disseisin, and to hear every sort 
 of plea that was cognisable under royal writ touching fiefs of 
 half a knight's fee or less. In their fiscal capacity they were to 
 examine into the escheats, wardships, crown lands and churches. 
 The fourth article directs that, in the case of the death of a free- 
 holder, the rights of his family, his will and his debts, are to be 
 provided for before the relief is paid to his lord : and that ques- 
 tions arising as to the nature of his tenure are to be decided by 
 a recognition of twelve men. This clause is probably the text 
 
 ' Pipe Rolls of the several yearn ; Madox, Hist. Exch. pp. 84 sq. 
 
 ' Bened. i. 107 sq. ; Hoveden, ii. 89 sq. \ Select Charters, pp. 143 sq. 
 
 Political 
 articles. 
 
 (Jivil juriS' 
 diction.
 
 XII.] Assize of Northampton. 485 
 
 of the law on which the assise of Mort d'ancesier as a part of Division of 
 the regular process was founded. The execution of the assize jnto'six" "^ 
 of Northampton was committed to six detachments, each con- ^"^'^"' *' 
 sistiug of three judges ^ ; to each detachment a cluster of coun- 
 ties or circuit was assigned : of the eighteen judges, eight were 
 barons acting as sheriffs at the time, and in most cases one of 
 the three was sheriff of one of the counties in his circuit. The 
 lists of sheriffs show a considerable change of officials in the 
 year following the assize, with the marked result of throwing 
 the sheriffdom more entirely into the hands of the court. 
 
 The years 11 76 and 1177 were occuj)ied with constant coun- Councils of 
 oils, in which all sorts of business were transacted : the disputes 1177.* 
 between the two archbishops furnished occupation for more 
 than one^; the marriage of the king's daughter with the king 
 of Sicily was considered in another^ ; in a great council at 
 Winchester, on Michaelmas-day, 1176, the king took all the 
 castles of the kingdom into his hands, not even sparing those 
 of the faithful Richard de Lucy* ; and in a court held at 
 "Westminster, November 12*, he received the ambassadors of 
 both emperorfe, and several minor princes. In 11 77, as in 1176, 
 Northampton was the place chosen for the January council ^ ; 
 
 in a court held in February at Winchester, the king directed Inquest into 
 
 receipts, 
 a new inquest into the conduct of the royal bailiffs, and issued 
 
 summonses for a general feudal levy ^ ; at the beginning of Lent 
 
 I The names of the judges are given in the Chronicle of Benedict, 
 i. 107, 108. 
 
 ^ There was a council of clergy, March 14, at Westminster to meet the 
 llomau legate; there the two archbishops (juarrellod ; on the 15th of 
 August a council of bishops, earls, and barons met to settle the strife ; 
 Bened. 1. 1 12, 118. 
 
 ' On the an-ival of the Sicilian ambassadors Henry called together the 
 archbishops, bishops, earls, and supientiorcs of the kingdom on the 25th of 
 May ; the subject was discussed and ' habito tractatu comniuui' the proposal 
 was accepted. R. Diceto, c. 590; Bened. i. 116. 
 
 * Bened. i. 124; R. Diceto, c. 594. 
 
 ' R. Diceto, c. 595. 
 
 ^ 'Magnum celebravit concilium cum episcopis, comitibus et baronibus 
 suis.* Bened. i. 132. 
 
 ' The sheriffs were to report at the Easter Exchequer : ' Praeterea ibidem 
 per consilia familiarium suorum mandavit omnibus comitibus et baronibus 
 et militibus regni qui de eo in capite tenebant, quod omni occasione reniota 
 assent bene parati equis et armis apud Londonias in octavis clausi Paschae
 
 486 Constitutional Klstory. [chap. 
 
 Spanish a great assembly was held in London, in which Henry arbitrated 
 
 1177! ' between the kings ot Castille and Navarre with the advice of 
 
 his court ^ ; in May the king held a council at Geddiugton to 
 
 treat ' of the peace and stability of the realm,' and another at 
 
 Oxford to witness the nomination of John as king of Ireland, 
 
 and the partition of that country among the barons who had 
 
 Feudal levy joined in the adventure of the conquest ^. The next month at 
 
 pedfuon'to Winchester all the tenants-in- chief were called together to hear 
 
 ™"''*^' the king's purpose of going to Normandy, and to prepare to 
 
 accompany him '. A great expedition was contemplated, but 
 
 the necessity for war was averted for the time, and the forces 
 
 returned home, spared from the danger of affoi'ding a precedent 
 
 for foreign service in time to come. But although the army 
 
 was not needed in Normandy the king's presence was indis- 
 
 Henry pensable, and in August he left England for a year ; during 
 
 which the country enjoyed profound quiet. 
 He returns He returned in the following July, and, as usual, signalised 
 
 in.July,ii7«. . / mi • • 1 • 
 
 his p7"esence by some energetic reforms. This time his zeal 
 took the shape of an attack on the Curia Regis. He had heard 
 that the measures of the justices had been oppressive, that 
 their number was far too great : eighteen judges are said l)y 
 the chronicler to have been acting at once ; poi-sibly the eighteen 
 His changes who had gone on circuit in 1 176. Without actually dismissing 
 
 in the Curia .1. i 1. ,.i- -ii c c -k • 
 
 RcKis. these, the king, by the advice of his council, chose five 01 Ins 
 
 own immediate servants, two clerks and three laymen, before 
 whom he ordtred all the complaints of his people to be brought, 
 
 Hccuturi cum inde in Normanni;ini et nioraturi secum piT unum annum in 
 partibuB tiansmarinis ad custamentum eoruni.' Benod. i. 13S. 
 
 ' ' Mandavit archieiiistopis, episcopis, comitibus et b:uonilius totius 
 Angliae quod esuent ad eum ajjud Lundoniaa Dominica proxima post caput 
 jejunii ; habiturus cnini erat illorum consilia de quodani judicio faciendo 
 inter duoH roLTcs HiK|)aniac.' Bened. i. 139. 'Vencruiit tot al)bateH, tot 
 decani, tot archidiaconi quot snl) numero non cadelianfc. Veneiunt ctiam 
 illuc comitcH et i)arones re;,^ii (|U()rum non est nuinerus.' Ibid. 145. 
 ' ArcldepiscopUH CantuariensJH ot episcopi Aiigliae qui adcrant et conutes 
 et baroncH regni . . . adjudicaverunt.' Ibid. 151. 
 
 '■' Bened. i. iCiO, 162. 
 
 ^ ' Veneruiit etiam illuc ad eum coniitcs et baroncs et militea regni sui 
 per summonitionem suatn. . . . CJongregatis itaque onmibun in urbe Win- 
 teniae rex jier conMilium eorum trauHfretationem auam distulit.' Bened. 
 i. 178. The king IdniHclf Mailed August 17; Bened. i. 190; and returned 
 July 15, 1 178 ; ibid. 207.
 
 XII.] Changes in the Judicature. 487 
 
 reserving: the harder cases for his own hearinsf as before, to The perm of 
 
 . . . . . . f'e •■king's 
 
 be decided with the council of the wi^e ', In this measure is i^ench, and 
 
 jurisdiction 
 
 traced the foundation of the Court of Kin<?'s Bench as a separate of the 
 
 . Council, 
 committee of tlic Curia Regis ; whilst the power of liearing 
 
 appeals, as now reserved to the king, marks an important step 
 
 in the development of the judicial system out of which the 
 
 equitable and appellate jurisdictions spi'tuig. The immediate 
 
 effect of this measure is vincertain, for the two following years 
 
 produced greater change^:, both personal and official. 
 
 Soon after Easter, 1 170, Richard de Lucy, who had been Richard de 
 
 . Lucy resigns 
 
 chief justiciar for twenty-five years, and who had been faithful in 1179- 
 to the king and just to the people during the whole time, re- 
 signed his office, and retired to the monastery of Lesnes, which 
 he had founded ^. Henry took advantage of the event to re- New division 
 
 111 ..,,..,. . -iiii 8'i"' distri- 
 
 niodel the provincial administration : m a great council held at bution of 
 Windsor, setting aside the arrangement of six circuits so lately work. 
 devised, he divided England into four districts. East, West, 
 Midland, and North. To each of these five judges were assigned, 
 one bisho}), one or two chaplains or clerks, and three or four 
 laymen. The northern circuit had no bishop, but six judges, 
 one of whom was Ranulf Glanvill. Of the whole body only 
 eight had been before emploj-^ed in a judicial capacity, and 
 most of the new justices are traceable as succeeding in process 
 of time to sheriffdoms and other high offices ^. The report 
 of the commission was made to the king in August, but 
 the accounts appear in the roll of 1180. Ralph de Diceto 
 explains the measure as an attempt on the king's part to use 
 the bishops of Winchester, Norwich, and Ely as checks on the Three 
 lay officials, or at least so to blend lay and clerical influences in ainon^^he 
 the arrangement as to secure equitable treatment for the liti- ^" "*'''■ 
 gants *. The expedient seems scarcely to have been successful : 
 it was not repeated ; Ranulf Glanvill, the great lawyer, was 
 almost immediately after ai)pointed to the place which Richard 
 
 ' Bened. i. 207. See below, p. 601. 
 
 * Beiied. i. 238. ' Tunc rex congrcgatis episcopis et eomitibus et pro- 
 ceribus regni . . . commnni eorura consilio, coram rege filio suo divisit; in 
 quatiior partes Angliam.' Ibid. 
 
 =• Bened. i. 238, 239. * R. Diceto, cc. 605, 606.
 
 4^8 Constitutional History. [chap. 
 
 Raniilf de Lucy had held \ and under his administration the king's Ions: 
 
 Glanvill . . . » «? 
 
 justiciar, and Varied experiments came to an end. It is probable that, in 
 faithful discharge of duty, and an inventive or adaptative genius 
 for legal proceedings, he came up to his master's ideal of a good 
 judge. 
 
 La^ryeai| 14Q ipj^^ I'emaining years of Henry^ furnish little that is 
 of constitutional importance. He jiaid during the time four 
 long visits ^ to England, and on each occasion left the impress 
 
 New coinage of his presence. In 1180 he ordered a new coinage, the second 
 coinage of the reign ; for the promise made at tlie treaty of 
 
 Assize of Wallingford had been redeemed in 1158^. In 118 1 he issued 
 
 1 181. the Assize of Arms, by which he directed the whole of the fi'ee- 
 
 men of the country to provide themselves with armour ac- 
 cording to their means, and the inquiry by oath of legal juries 
 to determine the liability of each *. The same year he made 
 
 ^ Hoveden, ii. 215. 
 
 ^ The dates are as follows : — In April, 1 180, the king went to Nonnandy; 
 he returned July 27, 1181. He left again March 3, 1182; returning 
 June 10, 1 184. He left again April 16, 11 85, and returned April 27, 
 1 186. Leaving next February 17, 11 87, he returned January 30, II 88. 
 His final departure from England took place July 10, 1188, and he died 
 July 6, 1189. 
 
 ^ See above, p. 334. The offences of the coiners had called forth some 
 very severe measures on the part of Henry I, who by his charter had 
 j)roinised to secure the purity of the coinage. William of Mahnesbury 
 (Hist. Nov. ii. § 34) mentions the depreciation of the coin as an act of 
 Stephen, and the private coinage of the barons was one of the points noted 
 by William of Newbiirgh at the same period (al)ove, ji. 32S). Henry bad 
 very early taken measures to restore the coin to its due weight, and had 
 ordered a common coinage for the whole country to be struck, whicli alone 
 was to be taken at the Exchequer; Dialogus i. c. 3. In the Pi[)e Roll 
 of the second year of the reign are some notices of the punishment of 
 fraudulent nioneyers ; but the first mention of the ' commutatio monetae' 
 ia in I158. The new coinage of 1180 was received by the people with 
 BUHpicion (W. Newl). iii. c. 5) ; but the severe measures against the 
 moneyers were again necessary. An assize was issued by which the 
 ])ayment of the old coin was declared unlawful after Martinmas, and the 
 new coinage, struck under the managemint of Philip Aymar, a native of 
 Touraine, was thus forced into circulation. Unluckily Philip was found 
 conniving at the frauds of the moneyers ; the minor offenders were 
 punished, but he was i)ardonecl, and escaped to France. Ralph Niger 
 lays the blame on the king and the archbishop of CJanterbury : ' Being 
 himself corrupted by Archbishop Richard, he suffered tlie coin to be 
 corrupted, and nevertheless hanged the corru[)tci-s of it ;' Ralph Niger (ed. 
 Anstruther), ]>. 168. CT. K. ]>iceto, c. 611 ; Oorvase, c. 1457; Madox, 
 Hist. Exch. 189 sq.; Penedict, ii. pref pp. ci-civ. 
 
 * Benedict, i. 278 sq.; Hoveden, ii. 261 ; Select Charters, pp. 146-149.
 
 XII.] J^ew Legal Measures. 489 
 
 liis son Geoffrey chancellor. In 1184 he promulgated the Ass^^of the 
 
 Assize of Woodstock, a code of forest ordinances, which were "84. 
 
 very stringent, but somewhat less inhuman than the customs of 
 
 his grandfather \ In 1186 he filled up the vacant churches, 
 
 objecting in a significant way to the election of the officers of 
 
 his court to the bishoprics, and thus delaying the promotion 
 
 of Richard the Treasurer, Godfrey de Lucy, Herbert the Poor, 
 
 and other rising men ^, The same year he assembled an army Scuta^re of 
 
 ° . . Gallowny in 
 
 for an expedition to Gahoway, but at Carlisle he received the nSo. 
 
 Iiomage of the rebellious loi'ds, and returned home, taking a 
 
 scutage of his barons '. In 1 188, after the shock of the capture Saladiu 
 
 of Jerusalem, he obtained from a great national council at iis«. 
 
 Geddington * a promise of a tithe to be contributed towards 
 
 the Crusade, for the assessment and collection of which his 
 
 fiivourite plan of inquest by jury was again employed. But 
 
 although these acts have an importance of their own, the real 
 
 interest of this period of Henry's life lies outside of England, 
 
 ' Benedict, i. 323, 324; Hoveden, ii. 243; Select Charters, pp. 149-152. 
 
 ^ Benedict, i. 346 : ' Eex . . . election! de illis factae consentire noluit, 
 respondens illos satis divites esse, et se de caetero nunquam daturum 
 episcoj)atum alicui ])ro amore, vel consanguinitate, vel consilio, vel prece, 
 vel pretio, sed iilis quos elegerit sibi Doniiiius.' 
 
 ' Benedict, i. .348; Madox, Hist. Exch. p. 441. 
 
 * ' Convojatis archiepiscopo et episco])is et comitibus et baronibus regni.' 
 Benedict ii. 33. The ordinance is in Benedict, ii. 30; Hoveden, ii. 335; 
 Select Charters, pp. \^2, 153. The councils of the later years which have 
 not been mentioned in the above notes, were as follows : — 
 
 In 1184 Kaniilf Glanvill held a council to deliber.ate on the pope's 
 demand of an .aid from the clergy; Bened. i. 311. The king returned 
 to England on the loth of June, and held a council with the bishops and 
 monks, at Reading, Aug. 5 ; at Windsor, Oct. 23 ; and at London, Dec. 2 ; 
 R. Diceto, c. 619. 
 
 In 1 1 85 the king held a council of bishops, abbots, earls, and barons 
 on the 17th of March, at Clerkenwell, to discuss a crusade ; Bened. i. 336 ; 
 R. Diceto, c. 626. At the Ea.ster court he knighted John, and gave 
 the county of Huntingdon to the king of Scots. On April 16 he went 
 abroad. 
 
 In 1 1 86, h.aving returned April 27, he met the bishops ,and clergy at 
 Eynsham, May 25 ; the council, which was lield for the election of bishops, 
 sat for eight day.s ; R. Diceto, 631 : and a similar a.ssembly was held at 
 Marlborough, Sept. 14. At Cliristmaa, at Guildford, a very solemn court 
 was held, and tiie grand-serjeanties usual at the coronations were per- 
 formed ; Bened. ii. 3. 
 
 In 11 87, on Feb. 17, the king went abroad ; he returned Jan. 30. 1188. 
 
 In 1 188, on Feb. 11, he held the council at Geddington; on the lOth of 
 July he went abroad, and never returned.
 
 49° Constitutional History. [chap. 
 
 War in in liis contest with liis disoLedient sons and King Philip of 
 
 France. . . 
 
 France. During these struggles the English baronage, as a 
 rule, was faithful : but had the great earls even wished to 
 renew their pretensions, they were too tightly bound by the 
 Changes royal policy of precaution or by personal gratitude. Hugh 
 earls. Bigod had closed his uneasy career in 1 1 7 7 : the earl of Chester 
 
 had been restored to the royal favour and made useful in 
 Ireland the same j'ear ; he died in 1 1 8 1 : the earl of Leicester 
 had recovered his estates, with the exception of the castles, 
 in 1 177, and continued faithful; although, when the young 
 king rebelled in 1183, it was thought necessary to imprison 
 him as well as his wife \ to keep them out of mischief : and 
 the same precaution was taken Avith respect to the earl of 
 Grloucester and others : Roger Mowbray went on a crusade in 
 1186. 
 Rebellion of There is no trace of any sympathy felt in England for the 
 sons in^ii83. revolt of the king's sons in 1183 ; and if there had been any 
 such feeling, the short duration of the struggle, which closed 
 at the death of the young king in June, would have prevented 
 its manifestation : but the war was really confined to .the 
 Poictevin provinces. The rebellious son, on whom much empty 
 sentiment has been wasted, was a showy and ambitious man, 
 possessed of popular accomplishments, and professing sympathy 
 with the baronial party Avhich his father was constantly em- 
 Character of ployed in repressing '\ He had some gifts that his father 
 Henry. Wanted, or did not take the pains to exhibit ; and either by 
 these, or as a result of his father's unpopulnrity, won from 
 the annalists of the time the charaoto- of a popular favourite. 
 His conduct however was that of an unprincipled, ungrate- 
 ful son, a faitlilcss brotljor, and a contenij)tib]e i)oliti(.ian ; 
 
 ' Bened. i. •294. Tlic iin)^()i-t;uice of tlio countess, wlio is .almost always 
 mentioned as present when; \\vr hushnnd was, is worth notice. She was 
 Petronilla, the heiress of tlie family of (Jruntniesuil. Tlie earl's mother was 
 dauf,'hter of R;il|ih (Jiiader, l>y tl)e (lauf,ditcr of William Fitz-Oshern : he 
 and liis wife thus rejiresented three families which attributed their downfall 
 to the policy of the Con(|U(!ror and his sons. 
 
 '' This appears especially in A(|uitai»e, where ho was regarded as a 
 martyr, ami where it was said th:it miracks were wrought at his tomb. 
 See the extracts from the sermon of Thomas Agnellus, in Hoveden, ii. 
 pref. p. Ivii.
 
 XII.] Henry's Last Years. 491 
 
 he was in fact a i)uppt't in the Imnds of his father-in-law, of 
 his mother, or of the feudal party in England, Normandy, 
 and Aquitaine. 
 
 The contest with Richard, which occupied the last year Quietness r-f 
 of the kin'f's life was watched by the English with even less dminp tlie 
 
 ^ . . kiiitr's la.st 
 
 anxiety ; for they had little fear of the issue, and knew very troubles. 
 little about Richard. The sudden, profound, and fatal discomfi- 
 ture of the king took the nation, as it took the whole western 
 world, by surprise'. 
 
 The internal administration of these vears was regular and Judicial and 
 
 *' . , financial 
 
 peaceful. Year after year the judicial and financial officers progress. 
 make their circuits and produce their accounts : both judicial 
 and financial receipts accumulate ; and the gi'oss income of 
 the last years of the reign reached the sum of £48,000". Ranulf 
 Glanvill also during this time drew up or superintended the 
 composition of the Liher de Legihus Amjliae, on which our 
 knowledge of the Curia Regis in its earliest form depends : 
 to a somewhat earlier period belongs the Dialogus de Scaccario 
 of Richard Eitz-NeaP, and the recension of the English laws 
 which also is ascribed to Glanvill *. It is possible that all 
 three works® were drawn up at the king's command, to put 
 on record the methods of proceeding which had depended too 
 much hitherto on oral and hereditary tradition. 
 
 Henry died on the 6th of July, 1189, having to the last Henry's 
 week of his life refused to allow to Richard the recognition 
 of the barons as his successor, and possibly, in his irritable and 
 exhausted condition, nursing some idea of disposing of his king- 
 dom, as the Conqueror had done, in favour of his younger son *. 
 
 * Hoveden, ii. pref. pp. lix-lxxii. 
 
 ^ Pipe Roll of tlie i.st of Richard I, i. e. the jear ending at Michaelmas, 
 1 189; a month after Richard's coronation. 
 
 ^ It was begun m 1 1 76, but contains notices of events as late a-s 1 1 78. 
 
 * Hoveden, ii. 218 sq. 
 
 •'' The Diah)gus is dedicated to the king: 'Rex illustris, mundanoruni 
 principuni maxinie.' Praef. : Select Charters, p. 161. 
 
 * Tlie story of Giraldus (De Inst. Pr. lib. iii. c. 2), that he intended to 
 annul his marriage with Eleanor and exclude all her children from the 
 succe.ssion, is no doubt a fabrication : tlie same writer attributes to Arch- 
 bishop Geoffi-ey the thought of surviving his brothers, .and putting in a 
 claim to the tiirone notwithstandintr his illenitimacv. (V. Galfridi, Aug. 
 bac. II. 383.)
 
 492 
 
 Constitutional History/. 
 
 [chap. 
 
 SuiTiiTiary of 
 
 Henry's 
 
 reign. 
 
 His preat- 
 ness on the 
 Continent. 
 
 He is 
 
 chiefly dis- 
 ( iiiguished 
 ;i.s a legis- 
 Iiitor iind ad- 
 niini.strator. 
 
 The discovery of John's treachery rendered this of course 
 impossible, and that discovery broke his heai-t. 
 
 147. The examination of the administrative measures of 
 Henry in the order of their adoption, is necessary to enable 
 us to realise at once the development of his policy, and the 
 condition of affairs which comj>elled it. Nor, although in the 
 investigation much detail is needed which at first sight seems 
 irrelevant to the later or to the more essential history of the 
 Constitution, is the minute inquirj^ to be set aside as superfluous. 
 Henry II was, it is true, far more than an inventor of legal 
 forms or of the machinery of taxation. He was one of the 
 greatest politicians of his time ; a man of such wide influence, 
 great estates, and numerous connexions, that the whole of the 
 foreign relations of England during the middle ages may be 
 traced directly and distinctly to the results of his alliances and 
 his enmities. He was regarded by the Emperor Frederick, 
 by the kings of Spain and Sicily, by the rising republics of 
 Lombardy, by the half-savage dynasts of Norway, and by the 
 fainting realm of Palestine as a friend and a patron to be secured 
 at any cost. He refused the crowns of Jerusalem and Sicily ; 
 he I'cfused to recognise the antipope at a moment when the 
 whole influence of the pajiacy was being emploj'cd to embarrass 
 and distress him. His career is full of romantic episodes, and 
 of really great physical exploits. 
 
 Yet tlie consent of the historians of the time makes him, 
 first and foremost, a legislator and administrator. Ralph Niger, 
 his enemy \ tells how year after year he wore out men's jiaticnce 
 
 ' ' Nactus autcm regnum Anglorum servos, spurios, caligatos, cubili, 
 mensae, regno praefecit et ex iis (luaestores, praetores, procoiLsules, tri- 
 bunoH, municipes, foru.st;irios su[)er provincias coustituit: illustros igno- 
 niiniis oneratos, sed caeteris rebus Vixcuos, patrinioiiiis oumino privavit 
 vel subdole portiouibus detractis decrustaiido sensim adnihilavit. Ex 
 cubiciilariis et .aulae nugatoribus episcopos, abbatcs, factos auctoritate 
 pr()i)ria ad officiuiri apparitonini revocavit, ct (pieni praesuleni cnarat a 
 j)raesidc, in praesidatuui recroavit ex praesule. . . . Null! infra inetas forestae 
 iialjitanti in lucia ])r')priis aut virgas colligondi, aut sylvestria et invia in 
 agriculturain agcndi, i)otestateni conccHHit sine forestariis. Legem (juoque 
 de forestis inauditarn dedit, qua delicti alieni imuiuiies perpotuo mulc- 
 tabnntur. . . . llhistribuH uxoros ducere, filias nuj)tui dare, i)raeter regis 
 conscientiara iidiibuit et transgressores tanquaui reos laesae niajestatis 
 punivit. Haeredes oniniuui quos avus suus extulerat et qui ei in subigenda
 
 XII.] Lecjal Genius of Henry. 493 
 
 with his annual assizes ; how he set up an upstart nobility ; 
 how he abolished the ancient laws, set aside charters, overthrew 
 municipalities, thirsted for gold, overwhelmed all society with 
 his scutageg, his recognitions, and such like. Ralph de Diceto 
 explains how necessary a constant adaptation and readjustment 
 of means was to secure in any degree the pure administration 
 of justice, and lauds the promptness with which he discarded 
 unsatisfactory measures to make way for new experiments'^. 
 William of Newburgh '^ and Peter of Blois ^ praise him for the 
 
 Anglia constanter adsistebant, cognatos quoque suos quasi aspides exosos 
 habuit. . . . Nullo quaestu satiatus, abolitis legibus antiquis, singulis annis 
 novas leges quas assisas vocavit edidit. Danegeldum avitum innovavit. . . . 
 Corruptus a Ricardo archiepiscopo nionetam corrunipi permisit, corruptores 
 taudem suspendio decedere compellens. Avibus coeli, piscibus fluminum, 
 bestiis terrae immunitatem dedit et sata pauperuin loca pascuae fecit, 
 Causam fidei laesae et advocationis ecclesiarum in curia decidi constituit. 
 Tributarius exteris, in doniesticos praedo, scutagiis, recognitionibus et 
 variis angariarura alluvionibus fere onmes depressit. Omne jus poll jure 
 fori dennitavit. Scripta authentica omnium enervavit, libertatibus omnium 
 insidians, quasi e specula, solotenus egit innoxiorum municipia. Filias 
 miserae conditionis, corruptas et oppressas, copulans clarissimis, haeredes 
 oranes mechanicos creavit. . . . Haereditates retinuit aut vendidit. ... In 
 causis differendis cavillantissimus ut saepe jus venderet.' R. Niger (ed. 
 Anstruther), pp. 167-169. 
 
 ' ' Rex pater Anglorum his plurimum quaerens prodesse qui minimum 
 possunt . . . de communi salute magis et magis sollicitus . . . intentissimus 
 ad justitiam singulis exhibendum . . . animum a proposito non immutans 
 circa personas mutabiles immutabilem semper saepe mutavit sententiam.' 
 R. Die. c. 605 ; Select Chai'ters, p. 125. 
 
 - ' Fuit enim in illo regni fastigio tuendae et fovendae pacis publicae 
 studiosissiinus, in portando gladium ad vindictain malefactoruni. . . Nullum 
 grave regno Anglorum vel terris suis transmarinis onus unquam imposuit 
 . . , tributuni more aliorum principum . . . ecclesiis . . . nunquam indixit.' 
 W. Newb. lib. iii. c. 26, See too John of Salisbury, Polycrat. lib. vi. 
 c. 18. 
 
 ^ ' Non enim sicut alii reges in palatio suo jacet, sed per provincias 
 currens explorat facta omnium, illos potissiiuuni judicans quos constituit 
 judices aliorum. Nemo est argutior in consiliis, in eloquio torrentior. . . . 
 Quoties enim potest a curis et sollicitudinibus rosjiirare, secreta se occupat 
 lectione aut in cuneo flericorum aUquem moduni quaestionis laborat 
 evolvere. . . . Apud dominum regem Auglorimi quotidiana ejus schola est, 
 litteratissimorum conversatio jugis et discussio quaestionun). . . . Rex noster 
 pacificus, victoriosus in bellis, gloriosus in pace, super omnia hujus mundi 
 desiderabilia zelatur et procurat pacem populi sui. . . . Nullus mansuetior 
 est afflictis, nullus affabilior pauperibus, nullus importabUior est superbLs ; 
 quadam enim divinitatis imagine semper studuit opprimere fastuosos, op- 
 pressos erigere et adversus superbiae tumorem continuas pei-secutiones et 
 exitiales molestias suscitare. . . .' Pet. Bles. Epp. (ed. Busaeus), ep. 66. 
 Giraldus Cambreusis, like Ralph Niger, takes the opposite view : ' Fuerat 
 enim et ab initio et usque ad finem nobilitatis oppressor, jus et injuriam,
 
 494 
 
 Constitutional History. 
 
 [chap. 
 
 His politic 
 frovernment 
 
 How far was 
 lie an 
 orig-inal 
 learislator? 
 
 very measures that Ralph Niger condemns ; his exactions were 
 far less than those of his successors ; he was most careful of the 
 public peace ; he bore the sword for the punishment of evil- 
 doers, but to the peace of the good ; he conserved the rights 
 and liberties of the churches ; he never imposed any heavy 
 tax on either England or his continental estates, or grieved the 
 Church with undue exactions : his legal activity was especially 
 meritorious after the storm of anarchy which preceded. In 
 every description of his character the same features recur, 
 whether as matters of laudation or of abuse. 
 
 The question already asked recurs, Hoav many of the in- 
 novating expedients of his policy were his own % Some parts 
 of it bear a startling resemblance to the legislation of the Frank 
 emperors, his institution of scutage, his assize of arms, his inquest 
 of sheriffs, the whole machinery of the jury which he developed 
 and adapted to so many different sorts of business, — almost all 
 that is distinctive of his genius is formed upon Karolingian 
 models, the very existance of which within the circle of his 
 studies or of his experience we are at a loss to account for. 
 It is probable that international studies in the universities had 
 lesal study, attained already an important place ; that the revised study 
 of the Roman law ^ had invited men to the more comprehensive 
 
 fasque nefasque pro commodo pensans' (De Inst. Pr. ii. c. 3); ' acer in 
 indoiiiitos, clemens in snbactos, durus in domesticos, effusus in extraneos ; 
 largua in publico, parens in privato. . . . Auctor pacis diiigentissimus et 
 observator . . . humilitatis amator et superbiae calcator . . . zelo justitiae 
 Bed non ex scientia regui sauerdotiiquu jura conjuugens vel confundens 
 potius. . .' (Ibid. c. 29.) 
 
 * ' Magister Vacarius gente Longobardus, vir honestus et juris perilus, 
 cum leges Komanas anno ab Incariiationu Domini 1 1 49 in Anglia dis- 
 cipulos doceret, et nmlti tain divitos (piam pau))eres ed euin discendi 
 confluerent, suggestione pauperuni de Codice et Digesta excerptos novem 
 libros coinposuit (jui sufiiciunt ad onines leguni lites quae in scliolis fre- 
 quentari solent deoidendas, si ijuis eos porfecte noverit.' 11. de Monte, 
 A.D. 1149. ' Tunc leges et causidici in Au'^diam pi-imo vocati sunt cpioruni 
 primus erat magister VacariuH. !Iic in Oxcnfonlia legem docuit ; ' Ger- 
 vase, c. 1665. He was silenced by Stephen : ' Jlex quidani Atigliae 
 Stephanus allatis legibus Italiae in Anglian) publico edieto j)rohibuit ; ' 
 Roger Bacon, Opus Minus (cited by Selden in bis notes on Fortescue, 
 P- 39)- 'Tempore regis Stoj)liaid a regno jussae sunt leges Ivomanae quas 
 in I'ritanniam <lomus venerabilis j)atris Theobaldi Britanniarum primatis 
 asciverat; ne (juis <;ti:ini liliros relineret edieto jegio prohibitum est et 
 Vacario nostro iiulictum silcntiuni;' John Salisl). Polycr. viii. c. 22. 
 Glanvill's preface to his book on the laws is adapted from the Institutes 
 
 General 
 n;vival of
 
 XII.] Accession of Richard. 495 
 
 examination of neiiilibourin'^ iuiisprudonce. But whilst the Ron:'" 'aw 
 
 ' . . ^ discoui-afreil 
 
 Koman law met with a cold rcceptiou in England, and whiljit in iiiisiaud. 
 
 the minutiae of feudal legislation as it was then growing up 
 
 gained admission only at a later peiiod, and were under Henry 
 
 repressed rather than encouraged, we here and there come across 
 
 glimpses of the imperial system which had died out on the soil 
 
 from which it sprang. The illustration of this phaenomenon 
 
 will come in its own place. 
 
 148. Richard had no opposition to fear in any of his father's Accession of 
 ^ 1 . . -^ . Richard 
 
 dominions, and he was already in possession of his mother's 
 
 inheritance ; but he had to make terms with Philip his late ally, 
 who from the moment of his succession saw in him only his 
 father's son and his own hereditary enemy. In England the 
 public peace was maintained by the queen, who, acting in con- 
 junction with the justiciar, put forth a proclamation in her 
 own name directing the release of prisoners and claiming the 
 allegiance of the whole nation for her son \ The archbishop 
 who had been in Fiance at the time of Henry's death, was 
 sent home to prepare for the coronation. As soon as Richard He is in- 
 
 vested fls 
 
 had concluded his treaty with Philip, and received investiture duke, and 
 as duke of Normandy, he crossed over to England. From his England, 
 first arrival it was clear that his mind was set upon the Crusade, 
 and his whole policy directed to providing funds and making 
 the necessaiy arrangements for the kingdom during his own 
 absence. He began by seizing his father's treasures, which 
 amounted to a fabulous sum^; he called Ranulf Glanvill to a Glanvill 
 strict account, and imprisoned him until he had paid a heavy 
 ransom ' and resigned the justiciarship ; he disposed in marriage 
 
 of Justinian; many extracts from the civil and canon law are found in 
 the so called Leges Henrici Primi ; and before the end of tlie reign of 
 Henry II the procedure of the Roman civil law had become well known by 
 the English canonists, although its influence was not allowed much to 
 affect the common law of the kingdom. See the case of the monks of 
 Canterbury, drawn up by a civilian, in Epistolae Cantuarienses, jtp. 
 520 sq. 
 
 * Bened. ii. 74, 75. 
 
 ^ More than nine hundred thousand pounds, Beued. ii. 77 ; more than 
 one hundred thuu.saiul marks, Hoveden, iii. S : the former estimate seems 
 much too high and the latter too low. 
 
 ^ R. Devizes, p. 7. According to this writer, Glanvill paid a ransom of 
 ^15,000.
 
 496 
 
 Co}istitulional Histori/. 
 
 [chap. 
 
 lie makes a 
 progress and 
 is crowned 
 Sept. 3. 11S9. 
 
 Council of 
 Pipewell. 
 
 Ways of 
 
 raising 
 
 money. 
 
 Release of 
 Scotland. 
 
 Richard's 
 policy. 
 
 of most of the royal wards, and in a magnificent progress 
 through the west of Enghmd Aviled away the three weeks 
 which intervened between his landing and the coronation. 
 The latter event took place on the 3rd of September, in such 
 splendour and minute formality as to form a precedent for all 
 subsequent ceremonies of the sort. But although every detail 
 of the ancient rite was preserved and amplified, — the crowning 
 and anointing, the solemn oath of the king and the consequent 
 homage and fealty of bishops and barons, — whilst the form of 
 election, although not specially mentioned by the liistorians, was 
 no doubt performed ; no charter of liberties was issued, as had 
 been done at the last three coronations. Richard was frankly 
 accepted by the people as well as by the barons as his father's 
 heir ; nor was there during the whole of his reign any attempt 
 made by any one in the kingdom, except John, to overthrow, 
 either in name or in substance, his royal authority. After the 
 coronation he continued his royal progress, visiting the must 
 famous English sanctuaries. On the i6th of September he 
 brought together a great council at Pipewell in Northampton- 
 shii-e \ where he gave away the vacant bishoprics, appointed a 
 new ministry, and raised a large sum of money by the sale of 
 charters of confirmation. Shortly after he changed the sheriffs 
 in almost every county ^. The acquisition of treasure seems to 
 have been the chief object of these measures ; for although the 
 offices were transferred to different holders, the same persons 
 remained in authority. Richard had no desire to disgrace his 
 father's friends, and had voiy few of his own to supply their 
 places. He stayed two months longer in the country, and after 
 selling to the Scots their freedom from the obligation which his 
 father had extorted, left for Palestine on the nth of December. 
 Richard was not at this ])eriod of his life an accomplished 
 politician. He had two distinct objects to provide for before 
 he went — the inaintcniince of the administration of the kingdom 
 in faithful hunds, and the securing of his brother John in his 
 
 • IJcned. ii. 85. 
 
 * R. Devizt'H, J). 8 ; Bencil 
 nation of Glanvill at tliis point 
 
 ii. 90. Tlie latter historian places the resig-
 
 XII,] RicharcVs Ministers. 497 
 
 reluctant allegiance. The means he took for these ends were 
 inadequate. John was indulged with a considerable gift of His provi- 
 revenue and authority : besides the great Gloucester inheritance John. 
 which he received with his wife, he was put in possession of so 
 many counties and royal honours as seriously to impoverish the 
 crown ^, while the only restraint imposed on him was the 
 retention of some of his castles in the hands of the govern- 
 ment, and an oath by which he undertook to absent himself for 
 three years from England. From this oath John was released 
 before Richard left France ; but his ambition was further tanta- 
 lised by the recognition of Arthur of Brittany as heir to Richard, 
 The king seems to have trusted mainly to his mother's influence 
 to keep his brother out of mischief. The other object was to be 
 provided for by the choice of ministers. A chancellor the king The new 
 had already found in William Longchamp, a clerk of Nomian 
 extraction, who had been in the service of his brother Geoffrey, 
 and whom he promoted at Pipewell to the see of Ely. The 
 justiciai-ship was bestowed on William Mandeville, earl of Essex William 
 and count of Aumale, who had been unswervingly faithful to " 
 Henry ; a share of the power, probably the administration of 
 the noi-thern counties, being reserved for Hugh de Puiset, the 
 aged bishop of Durham, The arrangement however was broken 
 up by the death of the earl soon after his appointment, and 
 England was left nominally in charge of Bishop Hugh ^, Husfh de 
 although the chancellor and several of the justices were asso- 
 ciated with him as colleagues. The bishop of Durham had paid 
 heavily for his honours ; he had bought the justiciarship and 
 the earldom of Northumberland^ 3 the chancellor too had paid 
 for the chancery £3,000'', although he was the king's most 
 
 * He hatl the county of ^lortain in Normanth', the honour of the earldom 
 of Gloucester, the castles and honours of Marlborough, Lancaster, Ludgers- 
 hall, the Peak, and Bolsover; the town and honour of Nottingham, and 
 the honours of Wallingford and Tickhill without the castles ; the counties 
 of Derby, Devon, Dorset, Somerset, and Cornwall. See Hoveden, iii. pref. 
 
 p. XXV, 
 
 ' Bened. ii. loi. 
 
 * He gave 2,000 marks for the county; and for the justiciar.ship a large 
 sum which is described in Benedict (ii. 91) as 1,000 marks; but Richard 
 of Devizes fixes the whole sum wrung from him at £10,000 ; p. 8. 
 
 * Reginald the Lombard had bidden £4,000. E. Devizes, p. 9. 
 
 K k
 
 498 
 
 Constitutional History. 
 
 [chap. 
 
 struggle 
 between the 
 Bishops of 
 Durham and 
 Ely. 
 
 Career of 
 Longchainp. 
 
 He main- 
 tains peace 
 until 
 Eleanor's 
 departure 
 to Sicily. 
 
 Quarrel 
 about 
 Gerard 
 Cauiville. 
 
 trusted friend. Scarcely however had E,ichard left England 
 when the two bishops quarrelled at the Exchequer. Both had 
 recourse to the king in Normandy, and in March a new appoint- 
 ment was made ; William Longchamp became chief justiciar, 
 and to Bishop Hugh the jurisdiction of the north was again 
 entrusted ^ . But on the return of the latter to England he was 
 arrested by his colleague, no doubt under the king's orders, and 
 kept in forced retirement as long as the power of the chancellor 
 was maintained ". 
 
 149. Longchamp was now both justiciar and chancellor: in 
 the June following he was made papal legate ^, and, as the arch- 
 bishop of Canterbury had gone on crusade, whilst Geoffrey of 
 York, the king's half-brother, was unconsecrated and in disgrace, 
 he was supreme in both Church and State. He took full advan- 
 tage of his opportunities, lived in pomp and luxury, obtained 
 great wardships and rich marriages for his i-elations, sold judicial 
 sentences, exacted money by every possible title from every 
 possible payer, and offended both the baronage and his own 
 colleagues in the government. But he was faithful to his 
 master ; and his public policy, as distinct from his personal be- 
 havioui% was intelligent and energetic. His rule kept the king- 
 dom in peace so long as Eleanor, whether in France or in 
 England, was able to keep John in order. On her departure 
 to Italy, whither she had to convey Richard's betrothed wife, 
 John took the opportunity of overthrowing his brother's minis- 
 ter and securing to himself a prospect of constitutional succession 
 to the defeat of the pretensions of Arthur. 
 
 In the spring of 1 1 9 1 Longchamp was attempting to get 
 into the king's hands some of the castles * whose owners or 
 governors he suspected of treason : one of these, Gerard Cam- 
 
 ' Bened. ii. 106. 
 
 ' Iknod. ii. 109, no; R. Diccto, c. 655. The king gave him full powers 
 by letter dated at IJayonne, June 6: 'Mandamus vobis et praecipimus 
 quod sieut de noi)iH consulitis et sicut vos ipsos et omnia vestra diligitis, 
 Hitie omiiino intendenteH dilccto ct fidoli eancollario nostro Elyensi episcopo 
 super oinnil)u.s (juao ad iio.s ypeotant, et pro ij)so faciatis .sieut pro nobismet 
 ipsis faeeretis, de omnibus fjuae vobia e.x. parte nostra dixerit.' 
 
 ^ Ii. Dieeto, 0. 655. 
 
 * Gloucester (K. Devizes, p. 13), Wigmoro (ibid. p. 30),
 
 XTi.] LongcJiamp' s Administration. 499 
 
 vllle, the sheriff of Lincolnshire, was a friend of John, who took 
 up arms in his favour. Twice during the summer war seemed Civil war 
 imminent ; but as Eichard had ah-eady been informed of the 
 unpopuhuity of his representative, and as the barons and prelates 
 cared little for either John or Longchamp, the actual use of 
 force was avoided, and means were taken, by arbitration, of pre- 
 serving the balance of power between the two \ Before the 
 second occasion however presented itself, the king's envoy, Walter 
 of Coutances, archbishop of Rouen, had arrived from Messina 
 with mysterious instructions, to act on the king's part as cir- 
 cumstances should dictate. He took a share in the second truce Truce at 
 
 A(\^ i Tid h cs t€ r 
 
 which was concluded at Winchester in v July, and which placed July ngi. 
 the principal royal castles in the hands of safe men, bishojis and 
 barons, who were all inclined to support Richard's authority, 
 although they differed as to the policy of securing John's suc- 
 cession. In September however a new difficulty arose : the 
 archbishop of York returned from Tours, where he had been 
 consecrated, alleging that he as well as John had been released 
 from his oath to stay away from England. Immediately on 4"?'!*'.°/ 
 
 •' •' ® •' _ Archbishop 
 
 landing he was arrested by Longchamp's order, and treated with Geoffrey, 
 vinnecessary ignominy. He at once appealed to John, who on 
 this occasion found the sympathy of the barons and bishops on 
 his side. The chancellor, speedily discovering his error, disavowed 
 the action of his servants and released Geoffrey, but he had 
 given his enemies their opportunity. A council of the barons " P]^"h*"^°s 
 was called at London, and John laid the case before them : a 
 conference was proposed near Windsor, but the chancellor failed 
 to present himself. Excommunicated by the bishops and 
 deserted by his colleagues, he hastened to London and shut him- 
 self up in the Tower. John, who was now triumphant, brouofht Longchamp 
 ■^ . I ' o accused, 
 
 together a great council at S. Paul's ^, and there, before the Oct. )*. 
 barons, bishops, and citizens of London, accused Lcmgchamp. 
 
 * On the' sequence of these events see Hoveden, iii. pref. pp. Iviii. sq. 
 The first truce was ai-ranged April 25, JI91, at Winchester, before the 
 archbisliop of Rouen arrived ; the second, in which he took part, on the 
 28th of July. 
 
 - Bened. ii. 212. 
 
 ' ' Fere omnes episcopi et comites et barones Angliae, et cives Lund niae 
 cum illis.' Bened. ii. 213. 
 
 K k 2
 
 500 Constitutional History. [chap. 
 
 bi'sli^'^^'f Then the archbishop of Eouen produced a commission signed 
 Rouen \y^ Richard at Messina in the preceding February, appointing 
 
 justiciarship. him supreme justiciar, with William Marshall, Geoffrey Fitz- 
 Peter, Hugh Bardulf, and William Briwere as coadjutors ^. The 
 nomination was welcomed with delight ; the archbishop had 
 been vice-chancellor to Heniy II, and was known to be an 
 honest man of business, with no ambition to be a statesman. 
 John was hailed as simimus rector totius 7-egni, but he saw him- 
 self deprived of the fruit of his victory over the chancellor, and 
 Flight of acquiesced for a time with a good grace. Longchamp, after a 
 ' protest somewhat more dignified than was to be expected, sur- 
 rendered his castles, and was allowed to escape to the Continent, 
 where he excommunicated his enemies and inti'igued for his 
 return. He contrived to purchase the consent of John and 
 Eleanor, but was repelled by the firm attitude of the baronage '^ 
 who were alike disinclined to submit to his dictation and to 
 Return of afford John a new opportunity. Eleanor soon after returned 
 Feb. 1 192. to England, and, although constantly harassed by the underhand 
 conduct of Philip and by the treachery of John, she contrived to 
 maintain the peace of the kingdom until the news of Richard's 
 capture reached her in February 1193. 
 Constitu- The deposition of Longchamp, although it scarcely merits the 
 
 tional ini- .... i-i- • • • ^ 
 
 portance of Constitutional importance which is sometimes given to it, has a 
 certain significance. It shows the hold which legal system had 
 on the barons ; irregular as was the proceeding of John, and 
 inexplicable as was the policy of the archbishop of Rouen, the 
 assembly at S. Paul's acted as a council of the kingdom, heard 
 the charges brought against the minister, and defined the terms 
 of his submission ; debated on and determined in favour of the 
 archbishoj)'s nomination. Their action was in substance uncon- 
 stitutional ; there was as yet neither law nor custom that gave 
 them a voice in the appointment or deposition of the justiciar, 
 nor could they even assemble constitutionally M'ithont a sum- 
 mons, which the existing justiciar would never have issued. 
 
 ' Bened. ii. 213; Hoveden, iii. pref. p. Ixi. p. 96; R. Diceto, c. 659; 
 Gir. Camb. V. Galfr. Anj:;. Sac. ii. 396. 
 * Bened. ii. 239, 257; K. Devizes, p. 57.
 
 xiT.] Administration (luring RicharcVs Captivity. 501 
 
 Yet they acted on that critical principle which more than once 
 in our later history has been called into play, where con- 
 stitutional safeguards have proved insufficient to secure the 
 national welfare ; and the result justified their boldness : they 
 acted as if in substance, though not in strict form, they repre- 
 sented the nation itself. 
 
 150. The government of Walter of Coutances subsisted, The Arch- 
 
 . . . • /• T 1 • 'jishop of 
 
 although with some difficulty, during the rebellion of John in Rouen insti- 
 ll 93 and the rigorous measures taken for the raising the king's 
 ransom, — being sustained by the presence of Eleanor, the adhe- 
 sion of the barons, and the general good-will of the nation. 
 The ransom, as one of the three ordinary feudal aids, scarcely Ransom of 
 required from the national council more than a formal recog- 
 nition of liability ; but the amount was too great to be raised 
 by a mere scutage on knights' fees. The sum required was 
 £100,000; double the whole revenue of the crown \ The 
 national assent was taken for granted ; and the justiciars pro- 
 pounded a somewhat complicated scheme : an aid was taken on Means taken 
 
 . . . , , „ . for raising 
 
 the principle of scutage, twenty shillings on the knight s fee ; it was the money, 
 supplemented by a tallage, hidage, and carucagc, which brought 
 under contribution the rest of the land of the country : the wool 
 of the Gilbertincs and Cistercians was also demanded, and the 
 treasures of the churches, their plate and jewels : but the heaviest 
 impost was the exaction of one-fourth of revenue or goods from 
 every person in the realm, a most important and dangerous 
 precedent, although justified on this occasion by the greatness of 
 the necessity. The result proved inadecpuitc, although sufficient 
 
 ' A. meeting; was held at Oxford on the 28th of February, I193 ; 
 messengers were sent in April ft-om the king to all archbi.--hops, bishops, 
 abbots, earls, barons, clerks, and freeholders, asking for an aid, but not 
 specifying the amount require!. The same month the king wrote to his 
 mother and the justices, sayiilg that the sum required was 70,000 marks; 
 thereupon the queen and justices, by a public edict, ordered the p;i\iuent 
 of afourtli of moveables, a scutage of 20j.'. on the knight's lee. and the seizure 
 of the wool of the Cistercians and the treasures of the churches. The 
 .sum ultimately fixed was 150.000 marks. Hoveden, iii. 20S-217. See 
 Hoveden, iv. pref. pp. Ixxxii-lx.xxv; W. Newb. iv. c. 38. Ralph de Diceto 
 says that the arrangement for raising the money ' statutum e.st communi 
 assensu,' c. 670; but this does not necessarily imply any deliberation in 
 the national council, nor is there any distinct proof that such an assembly 
 was held. But the chronicles ai-e not very full on the subject.
 
 502 Constitutional Kidory. [chap. 
 
 Hubert mouey was raised to secure the release of the king. But before 
 justiciar. this was done the archbishop of Rouen resigned the justiciar- 
 ship, being succeeded by Hubert Walter, archbishop of Canter- 
 bury, at Christmas 1193^ 
 
 Previous Hubert Walter was an old servant of the court, the nephew 
 
 career of • r^ •^■^ 
 
 Hubert. and pupil of Ranulf Glanvill, and a constant attendant on 
 
 Henry II. Richard had at the beginning of his reign given 
 him the bishopric of Salisbury, and had taken him with him to 
 Palestine, where he exhibited the due admixture of religious 
 zeal, charity, and prowess that befitted the prelate on pilgrimage. 
 He had acted as chaplain, as captain, as treasurer, and as 
 ambassador. On the failure of the crusade Hubert had led back 
 the English army, had visited his master in captivity, and had been 
 sent home by him to raise the ransom, and to be made arch- 
 bishop. He had proved his right to Richard's confidence by 
 the energy he had shown in the cause ; and his appointment as 
 His victory justiciar was almost immediately followed by a complete victory 
 Feb. 1194. over John, whose rebellion on the news of Richard's release he 
 quelled by the prompt use of spiritual as well as temporal arms : 
 in one week he obtained from the clergy a sentence of excom- 
 munication and from the assembled barons a declaration of out- 
 lawry against him, and he was engaged in the reduction of the 
 castles when Richard landed, 
 llichajd's Richard's second visit bore a strong resemblance to his first. 
 
 second visit ® 
 
 i*^!! 1 104''""^ ^'^ ^'^^ occupied mainly with attcm])ts to raise still more money ; 
 
 an object easily made consistent with a show of judicial severity 
 
 (Jreat and a politic caution against tlie treachery of John. After 
 
 council of ^ ° •' 
 
 dotting- tlie surrender of the last of John's castles, a great court and 
 council was held at Nottinghau), attended by the queen mother, 
 both the archl)ishops, and several bishops and earls'^. The 
 business lasted four days, from the 30th of March to the 2nd 
 of April. On the first day Richard removed the sheriffs of 
 Lincolnshire and Yorkshire, and put up the offices for sale. 
 Yorkshire fell io Archbishop Ceofirey, whose bid of an imme- 
 diate payment of 3,000 marks and 100 marks of increment 
 
 ' II. Diccto, o. 671. 
 
 * Hovcdeii, ill. 240 si|. ; Select Charters, pp. 245 sq. 
 
 IKIIII.
 
 XII.] RichanVs Second Visil. 503 
 
 was accepted in preference to the lower offer of the chancellor, Sale of 
 
 , . ollices. 
 
 who proposed 1,500 naarks for Yorkshire, Lincolnshire, and 
 
 Northamptonshire, with an annual increment of 100 marks 
 
 from each. On the second day the king demanded from his Jo^'i antl 
 
 *' _ f his friends 
 
 court a sentence of outlawry against his brother John, and sentenced. 
 
 Hugh of Nunant bishop of Coventry, who had been his chief 
 
 adviser. The court determined that they should be summoned ; 
 
 and in case of their non-appearance within forty days, John was 
 
 to be banished, and Hugh to be tried as a bishop by the bishops, 
 
 and as a sheriff by the lay judges. The third day, the 1st of Financial 
 
 April, was devoted to finance : Richard asked for a carucage, — 
 
 two shillings on each carucate of land, — a third part of the service 
 
 of the knights, and the wool of the Cistercians. For the latter 
 
 item he accepted a pecuniary fine. On the last day of the Accusation 
 
 council he devoted himself to hearing the complaints made bisiiop 
 
 against his brother Geoffrey the archl)ishop of York, and to the Ocmrd 
 
 trial of Gerard Camville. The archbishop refused to answer, 
 
 and Gerard, after summarily denying the charges laid against 
 
 him, gave security for a trial by battle. The king before the 
 
 assembly broke up announced his intention of being crowned at 
 
 AVinchester on the Sunday after Easter. The political meaning 
 
 of the several measures taken on tliis occasion is probably this : 
 
 Richard recognised distinctly tlic fidelity of the chancellor, and 
 
 thought it necessary to displace all the officers who had shown 
 
 any sympathy with John. But he was not prepared to continue 
 
 to Longchamp the confidence which he by his imprudence had 
 
 so dangerously abused. The sheriffs, as we learn from the Removal of 
 
 Rolls \ were nearly all displaced ; and in particular William 
 
 Briwere, Hugh Bardulf, Geoffrey Fitz-Peter, William Marshall, 
 
 Gilbert Pipard, and others who had taken a prominent part in 
 
 the removal of Longchamp, were transferred to other counties, 
 
 as if the king, although he could not dispense with their services, 
 
 wished to show his disapproval of their conduct in the matter. 
 
 Richard however was never vindictive, and would condone any 
 
 injury for a substantial fine. 
 
 * Thirtieth Report of the Deputy-Keeper of the Kecords.
 
 504 Constitutional Hidory. [chap. 
 
 Richard's g^fg second coronatioii was undei'stood to have an important 
 
 second _ -^ 
 
 coronation, siofnificauce. He had by his captivity in Germany, if not, as 
 
 Apr. 17, 1 194. ® J I. J Ji ■> 
 
 was alleged, by a formal surrender of the kingdom of England 
 to the emperor to be received again as a fief, impaired or com- 
 promised his dignity as a croAvned king^. The Winchester 
 coronation was not intended to be a reconsecration, but a 
 solemn assertion that the royal dignity had undergone no 
 diminution. The ceremony of anointing was not repeated, nor 
 was the imposition of the crown a part of the public rite. 
 Richard went in procession from his chamber to the cathedral, 
 and there received the archbishop's blessing^. The occasion 
 resembles the crown-wearing festivals of the Norman kings, and 
 was a revival of the custom which had not been observed since 
 Heniy II wore his crown at Worcester in 1158. The few 
 remaining days of the king's stay in England were occupied 
 in arranging the quarrel of the chancellor with Archbishop 
 Negotiations Grcoffrey, and in negotiation with the king of Scots. Hugh de 
 King of Puiset surrendered the county of Northumberland, and William 
 the Lion offered the king 15,000 marks for the succession. 
 Richard would have accepted the bid, but would not surrender 
 the castles, and this disgraceful negotiation fell to the ground^. 
 Richard Qu the 1 2th of May the kinff sailed for Normandy, where he 
 
 leaves EnR- , . -^ ^ ^ . •' 
 
 land, and is was almost immediately reconciled with John, and soon after 
 
 reconciled . /.-.r • ^ 
 
 with John, restored to him the county of Mortain, the earldom of Gloucester, 
 and the honour of Eye, giving him a pension of eight thousand 
 pounds Angevin in lieu of his other e.states and dignities *. No 
 more is heard from this time of Arthur's rights as heir to the 
 crown ; the immediate danger of Richard's death was over, and 
 it was by no means unlikely that he might have children. For 
 the remainder of the reign, those persons whose rivalry con- 
 stitutes the interest of the early yeai's fall into insignificance ; 
 Richaid liiniseir iuid his eliaiuollor leave the kingdom to return 
 no more 3 Hugh de Puiset dies shortly after; the archbishop 
 
 ' Roe the next cliaptor of this work, p. 561. 
 
 ' See It. Coggenlialu, j). 138; Guivasc, 1586, 1587. Tlovcden, iii. 247. 
 
 ' Ibid. 249. ■• Ibid. 286.
 
 XII.] Judicial Eyre of 1194. 505 
 
 of Rouen returns to liis province ; John intrigues in secret ; .iiid Temporary 
 Archbishop Geoffrey, whose calamities fill the annals of the 
 time, scarcely conies as yet within the ken of constitutional 
 history. 
 
 The kingdom was practically for the remainder of the i-eign Administra- 
 under the rule of Hubert Walter, who became papal legate in Hubert 
 1 195, and acted as justiciar until 11 98. The period, as might 
 be expected from the chai'acter and training of the minister, 
 was devoted mainly to the expansion and modification of the 
 plans by which Hein-y II had extended at once the j^rofits and 
 the operations of justice. The constant appeals of Richard for 
 money gave the archbishop constant opportunities of developing 
 the machinery by which money coiild be procured, with as little 
 oppression and as much benefit to the State as were compatible 
 with the incessant demand \ Immediately after the king's de- The Iter of 
 parture a visitation by the justices was held in September 11 94, 
 under a commission of the most extensive character. By the Articles of 
 articles of this 'iter-' the constitution of the grand jury of the 
 county is defined ; four knights are to be chosen in the county 
 court, these are to select on oath two knights from each hundred, 
 and these two, also on oath, are to add by co-optation ten more 
 for the jury of the hundred ; a long list of pleas of the Crown and 
 other agenda of the judges is furnished, which is comprehensive 
 enough to cover all occasions of quarrel and complaint since the 
 beginning of the reign. The sheriff's are forbidden to act as 
 justices in their own shires. The election of officers to keep the 
 pleas of the Crown, which is ordered by another article, is the 
 origin of tlie office of coroner, another limitation of the im- 
 portance of the sheriffs. The justices are empowered to hear 
 recognitions by great assize, where lands are concei'ned up to 
 the amount of five pounds of annual value : the Jews and their 
 
 * Ralph of CogEteshale says of him : ' Crudelia edicta in quantum potuit 
 repressit et delenivit, afflictorum miseratus calamitatem et exactoriam 
 detestans servitutem ;' p. 162. 
 
 * Hoveden, iii. 262-267; Select Charters, pp. 250-255 ; Gervase, c. 1588, 
 1590. Gervase gives an account of the session of these justitiaril errantes 
 at Canterbury : they were Oger Fitz-Oijfer, Geoffrey nf Sundriclge, and 
 Hugh of Dudington ; Henrv of Cornhell was the sheriff. They tried pleas 
 under the Assize of Clarendon.
 
 5o6 
 
 Constitutional Histori/. 
 
 [chap. 
 
 Feudal and 
 other 
 articles of 
 inquiry. 
 
 Importance 
 of this Iter. 
 
 Oppressive 
 acts of 
 llichard. 
 
 His new 
 
 seal. 
 
 Licences for 
 
 touma- 
 
 nients. 
 
 persecutors, the dead crusaders, the friends, debts and malversa- 
 tions of John are to be brought into account. Inquiry is to 
 be made into the king's feudal claims, wards, escheats, ferms, 
 and churches : and the financial work of the judges is to be 
 completed by the exaction of a tallage from all cities, boroughs, 
 and demesnes of the king. It was further intended that a 
 general inquest into the conduct and receipts of the sheriffs, 
 such as had taken place in 1 170, should form part of the busi- 
 ness, but the archbishop, thinking the work of the judges suffi- 
 cient already, cancelled for the time that article of the commis- 
 sion. This visitation, which comprehends almost all the points 
 of administrative importance which mark the preceding reign, 
 constitutes a stage in the development of the principles of 
 election and representation. The choice of the coroner, and 
 the form prescribed for the election of the grand jury, whether 
 this act originated them or merely marked their growth, are 
 phaenomena of no small significance. 
 
 "Whilst this measure was in contemplation llichard was busily 
 employed in his French provinces in forcing his bailiffs and 
 other officers to account for their receipts and to redeem their 
 offices. j\mongst other oppressive acts he took the seal from 
 his unscrupulous but faithful chancellor, and, having ordered 
 a new one to be made, proclaimed the nullity of all charters 
 Avhich had been sealed Avith the old one \ He also issued 
 licences for the holding of tournamcnls, which were expected 
 to bring in a considerable revenue. One act of justice was 
 however done; the chalices of the churches which had sur- 
 
 * Hoveden, iii. 267 ; 1?. C-ogfT'^shalo, p. i<^2. Richard's first seal was 
 lost when the vice-chancellor was dniwiu'd hetwecn liliodcs and (Cyprus 
 in 1190; but it was recovered witli liis dead body. The seal that was now 
 broken must have been tlie one which the cliancellor had used during the 
 king's absence. Richard however, when he was at Messina, had allowed 
 his seal to lie set to various grants for which he took money, but which he 
 never intended to confirm. Thrrefore probably he found it convenient 
 now to have a new seal in lieu of both tlu; former ones, although he threw 
 the blame of the transactions annulled upon the chancellor. 'I^ho im- 
 portance of the seal is already very great. Archbishoj) Geoffrey was 
 credibly accused of sealing writs with the seal of Henry II after the 
 king's death.
 
 XII.] Oath of the Peace. 507 
 
 rendered their plate for the royal ransom were replaced by the 
 king's special command \ 
 
 The following year was one of peace and consequent activity. Proceedings 
 The tallage of 11 94 was followed by a scutage in 1195, levied year 119;. 
 on those tenants-in-chief who had not accompanied the king to 
 Normandy. Tliis is the second scutage of the reign ; the first was 
 taken in the king's first year on the pretence of an expedition 
 to Wales ^. The justiciar, immediately on the reception of hisHul^ertat 
 
 X Ol'K US 
 
 legatine commission, in June, proceeded to York, where he held.i"sticiaraiid 
 a great court of the most ample description for four days. On June 12-15. 
 the first he directed his servants to hear pleas of the Crown and 
 assizes, whilst he himself and his officials held a spiritual court 
 and heard pleas of Christianity; on the second he acted as 
 legate and visited S. Mary's abbey ; on the third and fourth he 
 held a provincial council, which passed fifteen important eccle- 
 siastical canons ^. One document of interest was issued the The oath of 
 . - 1 p 1 1-1 the peace. 
 
 same year ; a proclamation of an oath 01 the peace, which was 
 to be taken by all persons above the age of fifteen. They swore, 
 according to the old law of Canute, not to be thieves or robbers, 
 or receivers of such, and to fulfil their duty of pursuing the thief 
 when the hue and cry is raised*. The enforcement of the edict 
 was conmiitted to knights assigned for the purpose; this is 
 probably the origin of the office of conservator of the peace, out 
 of which, in the reign of Edward III, the existing functions of 
 the justices of the peace were developed ; and the record thus 
 forms an interesting link of connexion between the Anglo- 
 Saxon jurisprudence and modern usage. 
 
 The steady iudicial and financial pressure had its usual effect. Effect of 
 
 "" _ pecuniary 
 
 The archbishop was unable to satisfy the king, and he offended exactions, 
 the people. He had constant difficulties with his subordinates, 
 and the Church, which should have been his especial care, was 
 
 * Hoveden, iii. 790. 
 
 ^ Madox, Hist. Exch. p. 444. The tax raised on the knirfht's fee for 
 the king's ransom was called an aid, and not a scutage : a proof that the 
 latter term was now becoming restricted to the payment made in com- 
 mutation of sei'vice. 
 
 ^ Hoveden, iii. 293-208; Gervase, 1589; W. Newb. v. c. 12. 
 
 * See the Laws of Canute, ii. 21 ; Hoveden, iii. 299; Select Charters, 
 pp. 255, 256, and p. 206, above.
 
 508 Constittitional History. [chap. 
 
 Intended disturbed by quarrels which he had not time to attend to. 
 
 into^t^ Early in 11 96, Richai'd, impatient at the delay of the inquiry 
 
 frustrated!' which he had directed in 1194 to be made into the receipts of 
 
 the royal officers, sent over tAvo of his confidential servants, 
 
 Philip of Poictiers the bishop-elect of Durham, and the abbot of 
 
 Caen, to conduct the investigation ^. The purpose was defeated 
 
 by the death of the abbot, but the archbishop seems to have 
 
 Hubert re<jarded the mission as a sign of the kiny-'s distrust. He offei'ed 
 offers to ® . .... . . , ., , 
 
 resign. to resign the justiciarship ; and with some difficulty prevailed on 
 
 the king to accept the offer: but before the resignation was 
 
 completed he saw reason to withdraw it, and, having represented 
 
 to the king the enormous sums which had been raised during 
 
 his administration, continued two years longer in office^. Almost 
 
 at the same moment the discontent felt by the poorer citizens 
 
 of London at the way in which the taxes were collected broke 
 
 Riot of into open revolt. William Fitz-Osbert, who was an old cru- 
 
 AA illiam ^ 
 
 Fitz Osbert. sader and apparently a hot-headed politician, took the lead in 
 the rising. The poorer citizens complained that the whole 
 burden fell upon them : the tallages were collected by poll, ' per 
 capita ;' William insisted that they should be assessed in pro- 
 portion to the property of the payers. Unfortunately for the 
 citizens, their leader by his violence brought down upon him 
 the vengeance of the archbishop, and having fallen a victim in 
 the strife, was regarded by the one party as a felon and 1)y the 
 other as a martyr ^. We do not learn that the Londoners re- 
 ceived any benefit from the outbreak. The monks of Canter- 
 bury however, who hated the archbishop, took advantage of the 
 fact that the blood of the rioter had been shed at the command 
 of the justiciar in their peculiar church of S. Mary le Bow, and 
 
 • Hoveden, iv. 5 ; W. Newb. v. c. 19. 
 
 ' Hovc'len, iv. I 2, i.v 
 
 " llovcdcn, iv. 5 ; Jt. Diceto, c. 691 ; W. Newb. v. c. 20; Gervase, c. 
 1391. Hovcdi^ii, unluss lie is speaking ironically, applauds the conduct of 
 William FitzOslK-rt : Ralph de Diceto, the dtan of 8. Paul's, who was 
 an eye- witness, speaks of liini as a mere demagogue. William of New- 
 burgh gives a long account of the events, and treats him judicially. He 
 was a disreputable man who, having failed to obtain the king's consent to 
 a piece of {>rivato spite, made political capital out of a real grievance of 
 the people. The whole story is worked out by Palgrave in the preface 
 to the liotuli Cuiiae Kei/is.
 
 XII.] Opposiiion to a Tax. 509 
 
 added a fresh accusation to tlie list of chari^es on account of Scutage of 
 
 IiyO. 
 
 which Innocent III ultimately ordered Hubert to resign his 
 secular office. A third scutate was levied in this year. In 1 1 07 Assize of 
 
 . . . . Measures. 
 
 the justiciar issued an assize intended to secure the uniformity 
 of weights and measures in all parts of the kingdom. This 
 proposition was unable to make way against the usages of the 
 nation : the amount of traffic was not yet so gi'eat or so generally 
 diffused as to make it indispensable, and the severity of some 
 of the j)enalties induced the judges to set it aside early in the 
 reign of John. But it had considerable importance in itself, 
 and formed the basis of one of the articles of the Great Charter^. 
 
 The histoiy of the next year, 1198, furnishes two events of ln",9Sthe 
 great importance. In a council of the barons held at Oxford, demand for 
 
 . . , . money is 
 
 the archbishop laid before them a demand made by the king refused ; 
 that they should provide him a force for his war in Nor- 
 mandy ; three hundred knights were to be furnished, each to 
 receive three English shillings every day and to serve for a year. 
 There can be no doubt that the demand was unprecedented, 
 whether we consider the greatness of the amount, £16,425, or 
 the definiteness of the proposition. But neither point caused 
 the actual objection. The bishop of Lincoln, S. Hugh of Avalon, opposition of 
 the Carthusian friend of Henry II, declared that he would not Lincoln, 
 assent to the grant. In vain the archbishop, and the treasurer 
 the bishop of London, pleaded the royal necessities ; the inde- 
 pendent prelate declared that the lands of his church were 
 bound to render military service within England and there 
 only : he had, he said, fought the battle of his church for 
 thirteen years ; this impost he would not pay ; rather than do 
 
 so, he would oro back to his home in Burgundy. To the arch- and Herbert 
 _' » o J of Salisbury. 
 
 bishop's further discomfiture, the example of S. Hugh was fol- 
 lowed by Bishop Herbert of Salisbury, who had had the regular 
 ministerial training and was closely connected with the ruling 
 officers of the Exchequer. The opposition was so far successful Resignation 
 that the archbishop withdrew the proposal, and shortly after justiciar, 
 resigned ^. This event is a landmark of constitutional history : 
 
 ^ Hoveden, iv. 33, 34, 172. 
 
 ■■' Hoveden, iv. 40 ; Vita S. Hugonis, p. 248 ; Select Charters, pp. 247, 248.
 
 510 
 
 Constitutional History. 
 
 [CHAIV 
 
 The scheme 
 for collect- 
 ing the 
 cai-ucage 
 of 119S. 
 
 A new 
 
 Domesday 
 
 Inquest. 
 
 for the second time a constitutional opposition to a royal 
 demand for money is made, and made successfully. It would 
 perhaps be too great an anticipation of modern usages to sup- 
 pose that the resignation of the minister was caused by his 
 defeat. 
 
 The other remarkable matter of the year is the imposition of 
 a carucage — a tax of five shillings on each carvicate or hundred 
 acres of land. This was the Danegeld revived in a new and 
 much more stringent form ; and, in order to carry out the plan, 
 a new survey on the principle of Domesday was requisite. Even 
 from this the justiciar did not shrink. A knight and a clerk were 
 sent out into each county, to report on the 31st of May on the 
 extent, liability, and tenure of the land to be taxed : these officers 
 were, in conjunction with the sheriff in each county, to call before 
 them the members of the county court, the stewards of barons, loi'ds 
 and bailiffs, the reeve and four men of each toAvnship, whether 
 free or villein, and two knights for every hundred : an oath was 
 to be taken from all parties, that they would speak the truth, and 
 declare how many carucates, or what wainage for ploughs, there 
 were in each township. Even the words of the Domesday com- 
 mission wei'e repeated. Tlie account was registered in four rolls ; 
 three kept by the knight, the clerk, and the slieriff, and one divided 
 among the stewards of the barons wliose interests it concerned. 
 The money was collected by two knights and the bailiff of each 
 hundred, who accounted for it to tlie sheriff; and the sheriff 
 accounted for it at the Excliequer'. The incjuiry, which so 
 forcibly recalls that of 1086, has a significance which does not 
 belong to the gi'cat precedent, unless we regard the machinery 
 of the oatli taken by the representatives of the townships and 
 liundrcds in the two commissions in contrary lights. It may be 
 questioned whether the jui'ors of 1086 or those of 1 198 had greater 
 freedom and responsil>ility : but we look on the former as part 
 of an institution then for the first time adapted to the adminis- 
 tration of the English government; whilst the latter appear as 
 I)art of a system the disciplinary force of which had nearly com- 
 
 ' Ilovoden, iv. 46 sq.
 
 XII.] Besignatiofi of the Justiciar. 511 
 
 pleted its wovk : the plan adopted in the Assize of Arms and in Its im- 
 the ordinance of the Saladin tithe is now applied to the assess- 
 ment of real property ; the principle of representation is gra- 
 dually enlarging its sphere of work, and the process now used 
 for the calculation will before long be applied to the granting of 
 the tax, and ultimately to the determination of its expenditure. 
 
 This demand of carucage is by no means the last constitutional 
 act of the reign. It is not known whether the survey was really 
 carried out. The resignation of the archbishop took place a few 
 weeks after the day fixed for the report ^ ; and the tax was not 
 collected without difficulty. The religious houses having de- The rcli- 
 murred to the payment, the king directed a proclamation to be compelled to 
 made by which the clergy were practically outlawed : if any ^^^ 
 man injured a clerk or regular he was not to be forced to com- 
 pensate him ; but if the clerk or regular were the aggi-essor, he 
 must be brought to justice. The threat was sufficient to bring 
 the monks to submission, and they purchased a reconciliation^. 
 
 Geoffrey Fitz-Peter, the successor of Hubert, who came into Geoffrey 
 office on the nth of July, 1198, began his career as minister by justiciar. 
 a severe forest visitation, in the conducting of which he reissued 
 and enlarged the Assize of Woodstock^. He also directed a new Iter of 1 198. 
 ' iter' of the justices on nearly as large a scale as that of 1 194 *. 
 The agenda of this ' iter ' contain a direction for the elections of 
 the nominators of the Great Assize to be made befoi'e the jus- 
 tices : a proof that these functionaries were not now appointed 
 by the sheriffs, but elected by the suitors of the county court. 
 The Forest Assize also directs that the whole body of the suitors 
 of that assembly shall attend at the sessions of the forest 
 lustices ^, These two measures, together with the severe treat- ^eventy of 
 
 •' _ . tl^c fiovcrn- 
 
 ment of the clergy just mentioned, seem to mark the character meut. 
 of the new justiciar as austere and even oppressive. Richard no 
 doubt found in him a servant Avhose conscience was less strict 
 than Hubert's, and whose position as a layman and an earl was 
 less assailable than that of the archbishop. His real importance 
 as a public man belongs to the next reign. 
 
 1 Hoveden, iv. 47, 48. - Ibid. 66. =■ Ibid. 63. 
 
 * Ibid. 61. » Ibid. 63.
 
 512 
 
 Constitutional History. 
 
 [chap. 
 
 Richard 
 dies, Apr. 6, 
 1 1 99. 
 
 His 
 
 character. 
 
 His repu- 
 tation. 
 
 Compamtive 
 peace of 
 England. 
 
 Quietness of 
 the barons. 
 
 The laborious and quarrelsome career of Richard came to 
 an end in April, 1199. Sis subjects, fortunately for them- 
 selves, saw very little of him during the ten years of his reign. 
 They heard much of his exploits, and reconciled themselves in 
 the best way they could to his continual exactions. Under his 
 ministers they had good peace, although they paid for it heavily : 
 but the very means that were taken to tax them trained them 
 and set them thinking. The ministers themselves recognised 
 the rising tendency to self-government in such measures as those 
 we have described. To Richard the tendency would be probably 
 unintelligible. He was a bad king : his great exploits, his 
 military skill, his splendour and extravagance, his poetical tastes, 
 his adventurous spirit, do not serve to cloak his entire want of 
 sympathy, or even consideration, for his people. He was no 
 Englishman, but it does not follow that he gave to Normandy, 
 Anjou, or Aquitaine the love or care that he denied to his 
 kingdom. His ambition was that of a mere warrior : he would 
 fight for anything whatever, but he would sell everything that 
 was worth fighting for. The glory that he sought was that of 
 victory rather than conquest. Some part of his reputation rests 
 on the possession of qualities which the English had no oppor- 
 tunity of testing : they were proud of a king whose exploits 
 awakened the wonder of Christendom, they murmured against 
 ministers whose mediation broke the force of an oppression 
 which would otherwise have crushed them. Otherwise the 
 latter years of the reign were years of progress in wealth and in 
 the comfort which arises from security : a little respite before 
 the tjTanny that was coming. The reign of Richard is marked 
 by no outbreak of feudal insubordination ; had there been any 
 such, the strength of the administration would have been suffi- 
 cient to crush it. But the great nobles were, like the king 
 himself, jiartly engaged abroad ; those of them who were left at 
 home had learned the lesson of submission ; they saw themselves 
 surrounded by a new body of cfjuals, sprung from and working 
 with the ministerial families, and they were assimilating them- 
 selves to this now nobility in forming hopes and ambitions more 
 truly national. The feeling towards union that was working in
 
 XII.] Interregnum on Jiichardh Death. 513 
 
 society generally was affecting the barons not less than the people 
 whom they were to lead on to liberty. 
 
 151. The death of Richard was so sudden, and the order of inten-eg- 
 
 . num after 
 
 the kingdom so complete at the time, that John, who had the death of 
 received the fealty of the barons by his brother's order ^, might 
 have secured the throne without difficulty before the country 
 generally knew that it was vacant. Instead of doing this he 
 allowed an interregnum of six weeks. Secure, as it would seem, 
 of England, he spent the time in taking possession of the trea- 
 sures of Kichard, and attempting to obtain the continental 
 provinces on which Arthur, as the son of his elder brother, had 
 a half-acknowledged claim. Whilst he was receiving the sur- 
 render of the castles of Anjou and Maine and the investiture 
 
 of the duchv of Normandy, Archbishop Hubert and William Archbishop 
 •^ . /' ^ .... Hubert and 
 
 Marshall were doing their best to strencrthen his position m William 
 
 -^ . , , , . T^ ® IT Marshall en- 
 
 England ^ John's SIX weeks delay in France gave to the dis- force order. 
 
 contented barons an opportunity of reviewing their grievances. 
 The traditional principle, that when the king dies the peace dies 
 with him, was now in full force : seventy years were to elapse 
 before it was superseded by the doctrine of the immediate succes- 
 sion of the heir, expressed later in the maxim that the king 
 never dies : now it had time to work. All who had castles in 
 their hands fortified and garrisoned them ; and not a few broke 
 out into open rapine immediately on hearing of the fate of 
 Richard^. The archbishop found it no easy task to enforce 
 order, when once the spell was broken. His first measure was 
 to direct that the oath of fealty and peace should be everywhere 
 taken : the sheriffs brought together the force of the shires for 
 the purpose, and all attempts at resistance were put down, the 
 spoil restored, and the offenders brought to justice ■*. It was 
 
 * Hoveden, iv. 83 : ' Cum autera rex de vita desperaret, divisit Johanni 
 fratri sue regnum Angliae, et fecit fieri praedicto Johanni fideli tales ab 
 illis qui a'leraut.' John w;is not present; there is surely in this anxiety 
 of the dying king to provide for liis brother and for the succession at 
 least one redeeming trait : Richard knew how to forgive. R. Coggeshale, 
 p. 170. 
 
 * Hoveden, iv. 86. 
 
 * R. Coggeshale, pp. 169, 170. 
 
 * Hoveden, iv. 88 ; R. Coggeshale, p. 1 70. 
 
 L 1
 
 514 
 
 Constitutional llistorif. 
 
 [chap. 
 
 Apprehen- 
 sions of the 
 great earls. 
 
 The arch- 
 bishop pro- 
 cures their 
 adhesion to 
 John. 
 
 Arrival of 
 John. 
 
 His corona- 
 tion. 
 
 Spec<5h of 
 
 Hubert 
 
 Walter. 
 
 more difficult to allay the apprehensions and secure the adhesion 
 of the earls and other great vassals, who, althougli they had 
 acquiesced in Richard's oppressions, were by no means inclined 
 to accept the same treatment from John. He had made himself 
 personal enemies during his short tenure of power ; some feared 
 and some despised him. The feudal spirit was not extinct, and 
 every one who had anything to gain thought this li fair time 
 for the attempt. The king of Scots might press his claim on 
 the northern counties, the earl of Chester might even support 
 the cause of his stepson Arthur ; Roger de Lacy had hanged 
 two knights for betraying his castles to John ; the earl of Hert- 
 ford had claims on the earldom of Gloucester, which John held 
 in right of his wife ; the earl Ferrers held his earldom with no 
 very sure hand. The archbishop, acting in conjunction with 
 the justiciar and William Marshall, called together at Northamp- 
 ton all those of whom any apprehension was entertained, and 
 made them the most ample promises on behalf of John : not a 
 grievance, public or private, was to remain without redress. 
 Even the Scottish claims should receive due attention ; and 
 wherever a right was in danger the king, as soon as there should 
 be a king, would confirm and enforce it ^. The promises of the 
 three ministers were accepted as sufficient security, and all the 
 barons, including Earl David of Huntingdon, the brother of the 
 king of Scots, took the required oaths. In the meanwhile 
 John, having made good his hold on Normandy, crossed over to 
 England for his coronation, which took place on the feast of the 
 Ascension, May 27, 11 99. 
 
 The ceremony was performed with the same pomp as had 
 been used for Richard : the form of election and the solemn 
 promises of good government were repeated. But a speech is 
 preserved by Matthew Paris, which, whether or no the words 
 are genuine, seems to show that there was something exceptional 
 in the proceedings ; some attempt on the archbishop's part to 
 give to the formality of the election a real validity, which per- 
 haps might be useful if the claims of Arthur should ever be 
 revived. Hubert declared, the historian tells us, that the right 
 * Hovedcn, iv. 88.
 
 XII.] Formal Election of John. 515 
 
 to reign is conferred by the election which the nation makes Principle 
 . . . of election 
 
 after invoking the grace of the Holy Ghost : Saul and David enunciated. 
 
 were made kings, not because they were of royal race, but the 
 
 one because of his strength and fitness, the other because of his 
 
 sanctity and humility. Still, if in the royal stock there were 
 
 one of distinct pre-eminence, the choice should fall more readily 
 
 on him. Richard had died without an heir ; the grace of the 
 
 Holy Ghost had been asked for : in John were united royal 
 
 blood, and the good qualities of prudence and energy : all together 
 
 then elected John. The cry ' Vivat rex' was the answer of the 
 
 assembled crowd. The archbishop moreover, when he received Oath of good 
 
 '■ government. 
 
 the coronation oath, adjured him on God's behalf that he would 
 not take the honour to himself without a full purpose to keep 
 his oath, and John replied that by God's help in good faith he 
 would keep all that he had sworn ^ Later events gave to both 
 these declarations a character which, in the case of ordinary 
 kings, they might not have had. Matthew Paris supposes that 
 the archbishop, warned of John's utter faithlessness and fore- 
 seeing the troubles of his reign, wished to impress upon him 
 and upon the people that as an elected king he must do his 
 duty under pain of forfeiture. But the speech of Hubert was 
 probably in itself nothing more than a declaration of John's 
 fitness to be elected, the recollection of which would naturally 
 recur to those who heard it when they found out how unfit he 
 was to reign. The enunciation however of the elective character 
 of the royal dignity is of very great importance. The circum- 
 stances too of John's accession recall forcibly those which attended 
 that of William Rufus, when Lanfi-anc strove in vain to bind the 
 conscience of the prince in whose exaltation he had so large a 
 share. In more than one respect Hubert Walter played the part 
 of Lanfranc to John. 
 
 The business of the coronation was followed by the inves- investiture 
 
 . . 19°*' saris. 
 
 titure of William Marshall and Geoffrey Fitz-Peter as earls ^ ; a 
 
 ceremony which had been long delaj'ed. The chancellorship was ^^''^''j,., 
 
 * Matthew Paris (etl. Wats), p. 197. Tn the declaration made by Lewis, 
 on his invasion of England in 1216, long before Matthew Paris wrote, this 
 speech of Hubert is distinctly referred to as affecting the claim of in- 
 heritance. See Foedera, i. 140. * Hoveden, iv. 90. 
 
 L 1 2
 
 5i6 
 
 Conditutional History, 
 
 [chap. 
 
 Faithfulness 
 of Hubert. 
 
 John goes to 
 Normandy, 
 but makes 
 peace and 
 returns early 
 
 New taxes. 
 
 John re- 
 turns to 
 Frunoc in 
 April and 
 marries a 
 new wife. 
 
 undertaken by the archbislioji, notwithstanding the warning of 
 Hugh Bardulf, who told him plainly that he was derogating 
 from his dignity and making a dangerous precedent. Hubert 
 probably saw that John would need both advice and restraint, 
 which no one of inferior position or weaker character would be 
 able to enforce. The justiciar continued in office ; but most of 
 the sheriffs were either removed to other counties or dismissed 
 altogether. No charter of liberties is known to have been 
 issued ; if any such had existed it could scarcely have failed to 
 be brought forward in the struggle that followed. 
 
 John had no time to lose in England : he huxTied to Notting- 
 ham to meet the king of Scots, who did not come ; and then, on 
 the 2oth of June, left England, taking with him a large number 
 of the barons to prosecute the war in Normandy ^ Immediately 
 on his arrival he made a truce with Philip, who for the moment 
 was supporting the claims of Arthur in Anjou and Maine : after 
 Christmas a treaty was concluded between the two kings, and 
 John returned to England to raise money for the purchase of 
 peace, a sum of 30,000 marks. He stayed in the kingdom from 
 the 27th of February to the 28th of April, and took a carucage 
 of three shillings on the hide ; a scutage of two marks had just 
 been taken on account of the expedition to Normandy. Both these 
 exactions were in excess of the usual rate ^, and the chi'oniclers 
 furnish us with no further evidence of the way in which they 
 were imposed and levied, than that the king demanded the aid, 
 and an edict went forth from the justices that it should be paid ; 
 a grant of a fortieth of moveables for the Crusade was obtained 
 in the following year by letters addressed by the king to the 
 barons and by the justiciar to the sheriffs^. After a second 
 vain attcmjit to secure the homage of the king of Scots, John 
 again sailed for France, where he remained until September ; 
 employed, after the conclusion of the peace in May, cliiefly 
 in divorcing his Avifc, Hawisia of Gloucester, and marrying 
 Isabella of Angouleme, — acts which caused in England the 
 alienation of the whole of the Gloucester influence from the 
 
 • Hoveden, iv. 92, 93. 
 
 * Ibid. 107 ; R. Coggushalc, p. 180. 
 
 =■ Hoveden. iv. 188, il
 
 XII,] Loss of Normamly. 517 
 
 king, and in France the active and malicious hostility of the 
 house of Lusignan, to whose head Isabella had been betrothed. 
 The month after his return John and liis wife Avere crowned at On his re- 
 Westminster ^ ; the fealty of the king of Scots was finally re- crowned, 
 ceived in a great council of bishops and barons of the two king- ceives the 
 doms, and the court made a progress through the north ^ At homage, 
 Easter, 1201, the coronation ceremonial was again performed at is crowned a 
 Canterbury'; and the state of peace and order which had lasted Mar. 25,1 201. 
 for two years began almost immediately afterwards to break 
 up. The remainder of the history of the reign may be briefly 
 examined under the three heads of foreign affairs, the great 
 ecclesiastical quarrel, and the struggle which led to the granting 
 of Magna Carta. 
 
 152. John possessed in his mother. Queen Eleanor, who was Foreign po- 
 now nearly eighty, a counsellor of much experience in continental John's early 
 politics, of great energy and devoted faithfulness. As long as ^^^^' 
 she lived his fortunes in France were not hopeless ; she had 
 herself headed an army against Arthur, and her last public act Pea<;eini2oo 
 was to fetch her granddaughter, Blanche of Castilie, from Spain, 
 in order to strengthen the new alliance between Philip and 
 John by a royal marriage. Unfortunately the peace so made 
 was very shortlived ; (juan-els on the Norman frontier called John goes to 
 John from England in June, i2or, and he did not return until in 1201. 
 the inheritance of his fathers had passed away from him. Early 
 in 1202 Philip, having obtained a respite from his matrimonial Phihpin 
 
 i 202 cicclftrc 
 
 troubles, and found time to listen to the complaints of Hugh that he has" 
 of Lusignan, summoned John to trial for oppressing the barons liefs. 
 of Poictou *. John refused to attend, and was declared to have 
 forfeited his fiefs as a contumacious vassal. Arthur, taking 
 advantage of the confusion, raised a force and besieged his 
 grandmother in the castle of Mirabel, where he was captured by Arthur 
 John ; and after some mysterious transactions, disappeared finally '^^^ '" 
 
 • Hoveden, iv. 139. R. Coj^geshale says more particularly that the king 
 wore his crown, but the queen was consecrated; p. 182. R. Diceto says, 
 * ipse rex eadem die pariter coronatus est;' c. 707. - Hoveden, iv. 140 sq. 
 
 ^ Ibid. 160. R. Diceto, c. 709: ' instinctu archiepiscopi.' 
 
 * Rigord (Bouquet, xvii. 54) ; R. Coggeshale, p. 20S ; R. Wendover, 
 iii. 167; Alberic of Trois Fontaines, p. 423; Will. Armoric. (Bouquet, 
 xvii. 75).
 
 51 8 Constitutional History. [chap. 
 
 second time ^^ '^^ 3^'^^ ^^ April, 1 203. Philip, who believed with the rest of 
 
 to'forfeiture ^^ worlcl that John had murdered him, summoned him again 
 
 to be tried on the accusation made by the barons of Brittany ^ 
 
 Again John was contumacious, and this time Philip himself 
 
 Loss of Nor- undertook to enforce the sentence of his com't. City after city 
 mandy. _ "^ '' 
 
 castle after castle, fell before him. The Norman barons were 
 unwilling to fight the battles of a king who wasted bis oppor- 
 tunities and would scarcely strike a blow for himself. In 
 John re- November, 120^, John returned to Eng-land and left Normandy 
 
 turns to . 
 
 England to its fate "' : lie distrusted the barons, and they distrusted him. 
 in 1203. ' _ y J 
 
 In the following spring both Noi'mandy and Anjou were lost ; 
 John pi-etending to raise an army in England, and selling to the 
 barons his licence to absent themselves, or exactinof scuta^cs on 
 
 Death of t^\^Q pretence that they had deserted him. Eleanor died on the 
 ist of April, 1204 ^ ; and the month of July saw Philip supreme 
 in the whole of Normandy, Maine, Anjou, and Touraine. John 
 never again set foot in Normandy: in 1205 he raised an 
 
 John's famt army, but dismissed it. In 1206* he made an attempt to re- 
 
 &ttj€lll])tiS to 
 
 recover his cover Poictou, where he still had some ground, but was obliged 
 to purchase a truce of two years by surrendering his last hold 
 on the Norman and Angevin inheritance. In 12 14 again, after 
 his quarrel with the Church was settled, he made an expensive 
 and fruitless expedition to Guienne, which likewise ended in 
 a truce, 
 of rf™-''"" Normandy Avas at last separated from England. The Norman 
 En"iand'^'*"^ barons had had no choice but between John and Philip. For 
 the first time since the Conquest there was no competitor, son, 
 jjrother, or more distant kinsman, for their allegiance. John 
 could neither rule nor defend them. Bishops and barons alike 
 welcomed or speedily accepted their ncM' lord. The families 
 that had estates on both sides of the Channel divided into two 
 branches, each of which made terms for itself; or having 
 balanced their interests in the two kingdoms, threw in their lot 
 
 * Sec Le Baud, ITJHt. Bret. p. 210 ; Morice, Hist. Bret. i. 132 ; Foedera, 
 i. 140 ; K. Wendover, iii. 273 ; M. Paris, p. 2S3 ; Cliron. Lanercost, p. 2 ; 
 Ann. Margani, p. 27 ; Walter of Coventry, ii. pref. xxxii, xxxiii. 
 
 " M. PariH, p. 209. ^ Ann. Waverley, A.D. 1204. 
 
 * M. Paris, p. 214; Foedera, i. 95.
 
 XII.] JohrCs Quarrel with the Clergy. 519 
 
 with one or other, and renounced what they could not save. Importance 
 ... - . .of the sepu- 
 
 Almost immediately Normandy settles down into a quiet pro- ration. 
 
 vince of France ; a province which Philip was willing to govern 
 
 by Norman law, and to indulge in such free customs as the 
 
 Normans could challenge as their own. For England the result 
 
 of the separation was more important still. Even within the ConsoHda- 
 
 . IIP! tionofthe 
 
 reign of John it became clear that the release of the barons English 
 
 -. . .iiz-i. nationality. 
 
 irom their connexion with the Continent was all that was 
 wanted to make them Englishmen. With the last vestiges of 
 the Norman inheritances vanished the last idea of making 
 England a feudal kingdom. The Great Charter was won by men 
 who were maintaining, not the cause of a class, as had been the 
 case in every civil war since 1070, but the cause of a nation. 
 From the year 1203 the king stood before the English people The king 
 
 iiTiT • 1 lUCC to I8C6 
 
 face to face; over them alone he could tyrannise, none but thev with his 
 
 . " people, 
 were amenable to Ins exactions : and he stood alone against 
 
 them, no longer the lord of half of France, or of a host of 
 
 strong knights who would share with him the spoils of England. 
 
 The royal power and the royal dignity that had towered so 
 
 haughtily over the land in the last two reigns was subjected to 
 
 a searching examination : the quarrels of the next few years 
 
 revealed all the weakness of the cause which had lately been so 
 
 strong, and the strength of the nation which had so lately been 
 
 well contented to sustain the strength of its oppressor. 
 
 153. As the death of Eleanor marks the collapse of John's The death 
 
 '^ of Hubert 
 
 continental power and the end of the dynastic system of the Walter pi o- 
 
 ^ . . fluces the 
 
 Conqueror ^, that of Hubert Walter marks the termination of quarrel be- 
 
 tween Jchn 
 
 the alliance between the king and the clergy which bad been and tiie 
 
 clergy, 
 cemented by Lanfranc, and had not been completely broken by 
 
 the quarrel of Ansel m, or even \>y that of Becket. The arch- 
 bishop died in July, 1205; John lost his wisest adviser b}^ an 
 event which itself launched him in circumstances requiring the 
 
 • The prophecy of Merlin was fulfilled, ' Gla'lius a sceptro separatus 
 est ;' the sword of the duchy was separated from the sceptre of the king- 
 dom. E. Coggeshale, p. 219. An illustration of the process of separation 
 may be found as early as 1 199, when the earls of Pembroke and Clare 
 divided the Giffard estates, the foiiuer taking the ' esnecia et caput ' in 
 Normandy, the latter in England.
 
 520 Constitutional Kistory. [chap. 
 
 John \vith a most prudent counsel. Eno^ao-ed in a quarrel from which a 
 fair cause ,. , . . t i • i i 
 
 puts himself httle Circumspection would have saved him, he chose to enter 
 
 in the wrong. , ,. . _ ___ , . , . 
 
 the lists against Innocent III ; matching his o-wti low cunning 
 
 at once against the consummate diplomacy of the Curia and the 
 aspiring statesmanship of the greatest of all the popes. Foiled 
 in his attempt to place a creature of his own on the throne of 
 Canterbury, and unwilling to agree in a compromise which he 
 had himself made imperative, he refused to receive the newly- 
 consecrated archbishop, and exposed the countiy to the shame 
 and horrors of an interdict. 
 Chronology Not to dwell in this place on the important questions of the 
 struggle. bearing of this quarrel on the history of the Church, it may be 
 sufficient to mark the epochs of the struggle, during the whole 
 of which John continued in the . British islands. Hubert 
 Walter died on the i2tli of July, 1205; the appeals of the 
 monks of Canterbury and of the suffragan bishops, with an 
 application from John for the confirmation of his nominee, were 
 carried to Rome before Christmas. The pope decided against 
 all the claims in December, 1206, and, taking advantage of the 
 presence of the monks with letters of authorisation from .John, 
 prevailed on them to elect Stephen Langton. John refused the 
 royal assent, and Innocent chose to regard it as dispensable. 
 In June, 1207, he consecrated the new archbishop. John per- 
 severed in his refusal to receive Langton ; the kingdom was 
 Thelnte:- placed under interdict on the 23rd of March, 1208; and in 
 1209 the king was declared excommunicate. Year after year 
 the pope attempted to renew negotiations, but each year the 
 John '9 use attempt failed. The king seized the estates of the clergy, and 
 money. many of the bishops fled from the kingdom \ The large 
 revenues thus made available were used by John in making 
 enormous military preparations : he made expeditions to Wales 
 and Ireland, and grew richer and stronger as he grew more 
 Threat of contumacious. In 1 2 11 the pope declared that unless the king 
 would submit he would issue a bull absolving his subjects from 
 their allegiance, would depose him from his throne,. and commit 
 the execution of the mandate to Philip of France. The news of 
 
 ^ Walter of Coventry, ii. pref. pp. liv-lix. 
 
 deijosition.
 
 XII.] Johns Alarm and Submission. 531 
 
 this determination brought into action a widely-spread fceh'ng of Neutrality 
 disaffection which, if it existed before, had not yet found vent, barons. 
 The barons had sat still whilst the bishops were plundered. 
 Some of the ministers, if not all, sympathised with John, and 
 made their profit out of the spoil. But the great majority of 
 the people, noble as well as simple, watched in anxious suspense 
 for the event of the struggle. 
 
 John however had made private enemies as well as public John's mis- 
 
 ErivinsTSa 
 
 ones; he trusted no man, and no man trusted hira. The 
 
 threat of deposition aroused all his fears, and he betrayed his 
 
 apprehensions in the way usual with tyi'ants. The princes 
 
 of Wales had just concluded a peace with him ; they were 
 
 the first to take advantage of the papal threat, and renewed Welsh war. 
 
 the war. John hanged their hostages and summoned an army 
 
 for a fresh invasion of their country ; the army assembled, but 
 
 John, warned of the existence of a conspiracy, did not venture 
 
 to lead it into Wales. In panic fear he dismissed his host, and 
 
 shut himself up in Nottingham Castle. Gathering coui-age after He seizes 
 
 a fortnight's seclusion he arrested some of the barons, whom he of the barons 
 , , » . . /• 1 • I ^vl^oin he 
 
 suspected not so much of conspirmg as of having power to suspects. 
 
 injure him, and seized their castles^. This proceeding alarmed 
 
 the few nobles who had really entertained designs against him. 
 
 Eustace de Vesci and Robert Fitz-Walter, the chiefs of the 
 
 party, fled to France. The king next tried to propitiate the He courts 
 . . . the people, 
 
 people : he remitted the fines Avhich had been exacted during 
 
 a recent visitation of the forests ; he abolished some vexatious 
 customs which prevailed in the ports ; and took other mea- 
 sures for the preservation of peace. He then compelled those 
 bishops who still remained in England to acknowledge by 
 letter that the suras of money which he had exacted from them 
 since the beginning of the reign had been paid by them as their 
 
 own free gift '. In the meantime he was negotiating con- and neeoti- 
 f . . . . atcs with the 
 
 tinually with the pope ; and Philip of France was collecting his pope. 
 
 forces for an invasion. 
 
 The spring of 1 2 1 3 saw the close of this part of the struggle. 
 
 ' Walt. Cov. ii. 207 ; M. Paris, p. 231. 
 ^ Walt. Cov. ii. 207 ; M. Paris, p. 232.
 
 522 
 
 Constifjitional Kistory. 
 
 [chap. 
 
 crown to 
 the pope. 
 
 In 1213 he Jolin had every reason to fear the strenorth of Philip, and no 
 prepares to ■ t 
 
 submit. reason whatever to trust in the attachment of his people. In 
 
 spite of his own scoffing disregard of religion, he trembled at 
 the papal excommunication, the dire effects of which he saw in 
 the downfall of his nephew the Emperor Otto ; but above all 
 he dreaded the fulfilment of the prophecy of Peter of Wakefield, 
 that on the approaching feast of the Ascension he should be no 
 longer king ^. In abject alarm he surrendered every point for 
 which he had been struggling. He made his submission to the 
 pope, acceiited Langton as archbishop, undertook to repay the 
 money exacted from the churches, and, as a crowning humilia- 
 ^r^h"^*^^' *^^°' surrendered his kingdom to the see of Rome, receiving it 
 again as a pajoal vassal subject to tribute, and swearing fealty 
 and promising liege homage to the pope. The pacification was 
 arranged on the 15th of May. For a moment it was accepted 
 as a solution of all difficulties ^ : no one seemed to see that it 
 created a new one which was greater than all and comprehended 
 all that had preceded it : but it was only for a moment ; before 
 the first measures preliminary to the execution of the treaty 
 were taken, a new and still more formidable question arose, 
 from the determination of the barons not to obey John's com- 
 mand to serve in France. 
 
 154. The attitude of the barons had been more or less threaten- 
 ing since the beginning of the I'cign : they had indeed acquiesced 
 in the plunder of the churches, partly because they saw in it one 
 way of diverting the king's oppressive policy from themselves. 
 The moment the ecclesiastical difficulty was overcome, the ques- 
 tion of their rights and of the king's infringement of them 
 emerged. We have seen that their adhesion to John at his 
 accession had been purchased by a promise that he would do 
 them justice : they had claimed the fulfilment of the promise in 
 1 20 1, when, on their refusal to go to Normandy until they were 
 satisfied, John seized their castles and demanded their sons as 
 hostages ^ Since then their grounds of complaint had been 
 
 Formidable 
 attitude of 
 the barons. 
 
 Their 
 grievances, 
 
 ' Walt. Gov. ii. 208; M. I'aris, p. 232. 
 
 * Walt. Gov. ii. 210, 211 ; M. Paris, pp. 234-237. 
 
 ' Hoveden, iv. 161.
 
 XII.] Johns Exactions from the Barons. 523 
 
 accumulating. They had been shamelessly taxed : the carucage 
 had been in John's first year raised from two to three shillings 
 on the carucate ; the scutage from a pound to two marks Heavy 
 on the knights' fee : year after year the scutage had been 
 taken as a matter of course, and when Geoffrey of York had 
 raised his voice against the imposition of the carucage he 
 had been summarily silenced ^ In 1203 the king had exacted 
 a seventh of the moveable property of his barons^; in 1204 
 he had taken an aid from the knights ^ j in 1207 a thir- 
 teenth of moveables from the whole covmtry. In this last Resistance 
 case Archbishop Geoffrey of York, following the example of bishop 
 S. Thomas and S. Hugh, resisted the demand when it was 
 laid before the council ; the clergy refused to give, but the king 
 exacted the tax notwithstanding, and sent their chamjjion into 
 exile *. Again and again he had demanded the military service 
 of the barons, and each time he had shown his distrust and 
 cowardice. In 1201 the forces assembled at Portsmouth were 
 allowed to return home on payment of money to the king ^ ; in Dissust of 
 1202 and 1203, when they reached Normandy, they found the 
 kinjr unwilliuGf to fight, and having returned home in disgust 
 found themselves obliged to redeem their desertion by enormous 
 fines". In 1205 he had brought another great host together at 
 Portsmouth, and had even pretended to sail for France ; but he 
 had gone no farther than Wareham, and on his return had 
 accepted money and dismissed the army ". The barons were not 
 without the military pride natural to a wai-like race ; they 
 despised the king who dared not lead them ; they hated him for 
 his mistrust of them ; they looked with disgust on the mean 
 trickery by which he qualified his capricious despotism. But 
 they endured it all. 
 
 Geoffrey Fitz-Peter, the earl of Essex, had continued to be cimracter 
 
 T 1 , . .. • • 1 • • XT ofGeollrey 
 
 Johns justiciar ever since his accession. Jie was a man Fitz-Peter. 
 
 trained in the school of Henry H under Glanvill and Hubert 
 
 Walter, had attained his earldom partly by a fortunate marriage 
 
 and partly by making the best of his opportunities as one of the 
 
 ' Hoveden, iv. 140. * M. Paris, p. 209. ^ Ibid. 
 
 * M. Paris, p. 221 ; Ann. Waverley, p. 258. See p. 579 below. 
 
 * Hoveden. iv, 163. * M. Paris, p. 209. ' Ibid. p. 212.
 
 524 Constitutional History. [chap. 
 
 He acted as king's counsellors ^ He had shown the qualities necessary to 
 
 a restraint ... , . . 
 
 on John. the minister of such a king, had carried out his master's plans, 
 and allowed the unpopularity which they involved to fall upon 
 his own head. It must be said in excuse for him, as for Hubert 
 Walter, that he probably retained his position partly from a feel- 
 ing that, if he resigned it, it would fall into worse hands. Both 
 ministers were hated by the king, who felt that they restrained 
 him; yet both were indispensable. Hubert had governed both 
 the Church and the nation, Geoffrey governed the nation and 
 allowed the king to ruin the Church. He had won by age and 
 ability a commanding position even amongst those who were 
 at first inclined to regard him as an upstart ^ ; and the extent of 
 his influence must be calculated from the permanent breach 
 which followed his death. 
 
 John pre- To return however to the events of the vear i2iq. The sub- 
 
 pares to go , . JO 
 
 to France: mission of the king to the pope had been accomplished ; the fatal 
 
 the barons, anniversary had passed over, and John was still a king : Peter 
 of Wakefield was hanged. It was time to reply to the threats of 
 Philip ; and this could not be done better than by an expedition 
 to France. John, elated by the naval victory at Damme, pro- 
 posed it to the barons ; they alleged that he was still excommu- 
 tion'^ami"" *'^'^'^*^> ^^^^ refused to follow him I This plea Avas soon set aside : 
 new oath, the archbishop landed on the i6tli of July, and absolved the king 
 at Winchester, exacting from him an express renewal of his coro- 
 nation oath and a promise to abolish all evil customs*. Again 
 
 ^ Hoveclen, iii. pref. pp. xlviii, xlix ; W. Cov. ii. pref. Ixi, Ixii. 
 
 ^ M. Paris, p. 243: ' Erat auteni firmissima regni columna, utpote vir 
 genero.Hus, leirum peritus, thesauris, re(litil)us et ((iniiibua bonis instauratus, 
 omnihuH Angliae niagnatilniH sanguine vol aniicitia confoederatus, unde rex 
 ipsuin i)rac oinnil)\i3 niortalibu.s sine dilectionc formidabat, ipse enim lora 
 rcgiii guliernaliat.' 
 
 '^ M. r.-uis, i.|). 2,vS, 239. Ralph of Coggeshalo and the monk of Barn- 
 well, cojjied by Walter of Coventry (ii. 212), give other reasons for the 
 refusal of the barons ; the literal terms of their tenure, their exhaustion 
 after their long march, and their poverty, ' Barones Northanhumbrenses 
 invitavit ut Hcciun transfrotarent : at iili pari aninio eademque sententia 
 contradixerunt aHHerentes non in hoc ei obnoxios esse secundum inunia 
 torrarum suarurn, sod ot in expeditioriibiis Anglicanis se nimis exhaustos 
 et voliomentcr extcnuatos." R. Coggcsiude, pp. 242, 243. ' (Juippe qui 
 louKa exjjeditidne vexati non facile possent tantum opus exhaustis aggredi 
 ci.starchiis.' W. Cov. ii. 212. 
 
 * M. Paris, p. 239 : ' Juravit rex, tactis sacrosanctia evangeliis, quod
 
 XII.] The Barons refuse Foreign Service. 525 
 
 the king laid his proposals before the barons, and again he was met The barons 
 by a refusal : this time the northern barons declared that their foreign 
 
 service. 
 
 tenure did not compel them to serve abroad and that they would 
 not follow the king ^. It was the same ground which had been 
 taken up by S. Hugh in 1 198, and, although deficient in historical 
 proof, was in accordance both with equity and with the altered 
 state of things. It might be fair enough, when John was duke 
 of Normandy, for his English barons to maintain him by arms 
 in his existing rights ; but when Normandy was lost, and lost 
 by his fault, it by no means followed that they should engage in 
 war to recover it. Whether he had a right to take them to 
 Poictou was more than doubtful. The northern barons who Conduct of 
 
 the northern 
 
 alleged this plea were for the most part members of that second barons, 
 aristocracy which had grown up on the ruins of the Conquest 
 families and had no stake in Normandy. They had been trained 
 under the eye of Glanvill and Richard de Lucy ; had been 
 uniformly faithful to the king against the gi*eater feudatories ; 
 had manfully discharged their duties in the defence against the 
 Scots ; and had already begun to show that propension towards 
 political liberty and self-government which marks them during 
 later history ; for they were the forefathers of that great 
 north country party which fought the battle of the consti- 
 tution during the fourteenth and fifteenth centuries. Indignant John Boes 
 at their attitude of resistance, John preimred to take his usual north, Aug. 
 
 ' } ^ 25to!Sept.:8. 
 
 prompt vengeance. He marched rapidly northwards : at North- 
 hampton the archbishop overtook him and prevailed on him to 
 promise a legal and judicial investigation before proceeding to 
 extremities ". John however went on his way ; advanced to 
 
 sanctam ecclesiam ejusque ordinatos diligeret, defenderet et manuteneret 
 contra onines adversarios sues pro posse suo, qiiodque bonas leges anteces- 
 soruni suoruni et praecipue leges Edwardi regis revocaret, et iniquas de- 
 strueret, et omnes lioniines suos secundum justa curiae suae judiciajudicaret, 
 quodque singulis redderet jura sua.' 
 
 ' M. Paris, p. 239, refers to this second application the excuse of poverty 
 alleged by the barons : .ind no doubt the reasons mentioned by Ralph and 
 Walter belong to this juncture ; see p. 524, note 3. 
 
 - W. Cov. ii. 212; M. Paris, p. 239. Kalph of Coggeshale says that the 
 king was pievailed on to renew his promises to the northern barons : 
 ' Northanhumbrenses regi concordantur, mediantibus legato, archiepiscopo 
 Cantuariensi et aliis episcopis et baronibus ea conditione ut liceat eis gaudere
 
 536 Constitutional History. [chap. 
 
 He does Durham by way of a demonstration, but returned without doing- 
 homage to -^ '' ' <5 
 
 the legate, anything, in as great haste as he had gone ^. On the 3rd of 
 October he completed his transactions with the pope by doing 
 homage to the legate Nicolas at London ^. 
 
 Assembly at WTiilst John was thus employed, a series of vei-y important 
 
 August 4; meetmgs had been held by the justiciar and archbishop. In 
 order to ascertain the amount due by way of restitution to the 
 plundered bishops, a general assembly was called at S. Alban's 
 on the 4th of August, which was attended not only by the bishops 
 and barons, but by a body of representatives from the townships 
 on the royal demesne, each of which sent its reeve and four legal 
 men. In this council, for such is the name given it by the 
 historians ^, a much wider range of subjects was discussed than 
 
 in which the assessment of the losses of the Church. The justiciar laid 
 
 the laws of , . " 
 
 Henry I are before the whole body the kinsf's recent promise of good govern- 
 uientioned. . -^ . , . ,. ^ •^^ ^ • 
 
 ment, he issued an edict forbidding the illegal exactions, and 
 
 refen-ed to the laws of Hem-y I as the standard of the good 
 
 customs which were to be restored *. This is the first occasion 
 
 on which the laws of Henry I are recurred to as a basis of 
 
 liberty, and it may be regarded as a mark of the vast increase 
 
 in royal power which had accrued since the early years of Henry 
 
 11. Probably few knew what the laws of Henry I were ; but 
 
 the archbishop took care that they should soon be informed. 
 
 Another council was called at S. Paul's on the 25th of August, 
 
 atavis libertatibus.' But lie ])laces the agreement after the arrival of Car- 
 dinal Nicolas. 
 
 ^ See Sir T. D. Hardy's Itinerary of John, in the Introduction to the 
 first volume of the Patent Kolls. 
 
 ^ W. Cov. ii. 214; M. Paris, p. 247. 
 
 ' M. Paris, p. i^i) : ' In crastino (sc. May 16) autem misit rex litteras ad 
 omnes vicecomites regni Anyliac praecipiens ut de singulis dominicorum 
 suorum villis (jiiatuor leg;des homines cum jiracposito ajuid Sanctum Al- 
 banum pridie nonas Augiisti facerent convenire. . , Interfucrunt huic 
 concilio apud Sanctum Albanum Galfridus filius Petri et episcopus Winto- 
 niensis cum arcliiepiscopo et episcopis et magnatibua regni.' 
 
 * Ibid. : 'Ubi cunctis pace regis denunciata, ex ejusdem regis parte firmi- 
 ter praeceptum est quatenus leges Henrici avi sui ab omnibus in regno 
 custodircntur et omnes leges iniquae penitus enervarentur. J^enunciatum 
 est praeterea vicecomitibus, forestariis, aliisquc ininistris regis, sicut vitam 
 et memljra sua diligunt, ne a quoquam aliquid violenter extorqueant, vel 
 alicui injuriam irrogare praesumant, aut scotalla alicubi in regno faciant 
 sicut facere consueverunt,'
 
 XII.] Council of S. Alhan's. 527 
 
 and there Henry's charter was produced ^ It was seen at once Council of 
 that it furnished both a safe standing-ground and a precedent The charter 
 for a deliberate scheme of reform. The justiciar laid before the produced. 
 king the claims of the council, and died almost immediately 
 after, on the 2nd of October ^. 
 
 With him the king lost his hold upon the baronage, but his The king's 
 first thought was one of relief : ' When he arrives in hell,' he th™deatirof 
 said, 'he may go and salute Hubert Walter; for by the feet of ^^"^ "^"^'^' 
 God, now for the first time am I king and lord of England.' 
 This speech recalls the words addressed by the English to Henry 
 I when he had humbled Robert of Belesme : but the circum- 
 stances were very different. The people had then rejoiced in 
 the humiliation of a tyrant who was jiersecuting the king and 
 themselves alike ; John rejoices in the death of a faithful servant 
 who had until now stood between him and the hatred of the 
 people, — between the tyrant and his destined victims ^. GeoflFi'ey's Peter des 
 successor was a foreigner ; the king, to the great disgust of the succeeds, 
 barons, confided the justiciarship to Peter des Koches, the 
 Poictevin bishop of Winchester *. 
 
 The meeting at S. Alhan's is the first occasion on which we importance 
 find any historical proof that representatives were summoned to sembiyat 
 a national council. The reeve and four men were probably 
 called upon merely to give evidence as to the value of the royal 
 lands ; but the fact that so much besides was discussed at the 
 time, and that some important measures touching the people at 
 large flowed directly from the action of the council, gives to 
 their appearance there a great significance. To the first repre- 
 sentative assembly on record is submitted the first draught of 
 the reforms afterwards embodied in the Charter : the action of It is a gene- 
 this council is the first hesitating and tentative step towards of represen- 
 that great act in which Church, bai'onage, and people made 
 their constitutional compact with the king, and their first sensible 
 realisation of their corporate unity and the unity of their rights 
 and interests. How the justiciar would have carried on the 
 
 * M. Paris, p. 240. 
 
 ' M. Paris, p. 243 ; W. Cov. ii. 215 ; R. Coggeshale, p. 243. 
 
 ' M. Paris, p. 243 ; see above, p. 308. * R. Coggeshale, p. ;43,
 
 528 Constitutional History. [chap. 
 
 Obscurity undertaking we cannot even guess. Unfortunately, as is so often 
 
 historians, the case in great crises of history, the attention of the historians 
 
 is devoted to points of minor interest ; and when we should 
 
 hear of great constitutional debates, we find only the record of 
 
 the doings of the legates and the bishops. The one significant 
 
 The writ of fact is this, — that the kinc; on the 7th of November summoned 
 
 November?, . '^ . ' 
 
 1213. a council at Oxford to which, besides the armed force of the 
 
 knights, each sheriff is directed to send four discreet knights 
 
 from his county to discuss with the king the business of the 
 
 country^. The four legal men of the demesne townsliips are 
 
 replaced by the four discreet men of the shire : the very words, 
 
 ' ad loquendum nobiscum de negotiis regni nostri,' are an omen 
 
 of the institution of representative parliaments. Again however 
 
 the historians forsake us, and we do not even know that the 
 
 assembly was ever held. 
 
 ini2i4John The eventful year came to a close without overt action. 
 
 until Oct. 19. Early in 12 14 John went abroad and stayed thereuntil October; 
 when immediately on his return he called the northern barons 
 to account for not accompanying him. But they had been 
 
 Confedera- beforehand with him. They had met on the pretence of pil- 
 
 baronsat grimage at S. Edmund's, and had there sworn that if the king 
 delayed any longer to restore the laws and liberties, they would 
 withdraw their allegiance, and would make war upon him until 
 he should confirm the concession by a sealed charter. The pro- 
 positions Avere to be laid before him immediately after Christ- 
 mas ; in the meantime a force 'w^as to be raised sufficient to 
 begin if not to decide the struggle '^. The king however accele- 
 rated the crisis by demanding a scutage, which the barons 
 refused to grant *. 
 
 ' Report on the Dignity of a Peer, App. i. p. 2 ; Select Charters, p. 279. 
 
 * M. Paris, pp. 252, •253. Tlie northern barons .again took the lead. 
 ' BaroncH Nortlianliunibriac in unam coeuntesscntentiani utregem compelle- 
 rcnt ad roforinaiidani ecclcniae et rcgni libcrtateni et ad abolentl.as pravas 
 consuctudiiicH, (|uaH .ad dcjux'SHionem ecclesiae et rcgni tain pater quara 
 frater rcgiw, cum lii.H abusionibus quas idem rex .adjecerat, olim suscitaverant, 
 secundum quod rex anno pr.actcrito juraverat, regcm super liis .... orant 
 et adJKirtantur, insuper et cartam Henrici primi proferunt.' R. Cogges- 
 hale, p. 246. 
 
 '■' ' Dissensio orta est inter .Tohanncm regcm Angliae ct quosdam de pro- 
 ceribus pro scutagio (juod petcbat al) illis qui non iorant noc miscrant cum 
 
 S.Edmund's.
 
 XII.] The Great Charier. 529 
 
 John's first tliouglit was to attempt to divide his enemies. John grants 
 The clergy might be detached from the barons by a promise of election to 
 the freedom of election which had been so long withdraMTi from '^ '^ ^^^' 
 them; and on the 21st of November a charter was issued to 
 that effect \ This failed of its purpose ; for the bishops, with 
 Langton at their head, had of course not taken pai't in the oath 
 at S. Edmund's ; they were one in counsel with the barons, but 
 had not been compelled to break off relations with the king; 
 nor could they have armed their retainers in the cause without 
 throwing the country at once into civil war. Nothing more was 
 done until after Christmas. On the feast of the Epiphany, John He receives 
 at the Temple received a deputation from the barons and heard Jan. 6, isij. 
 their demands : smothering his indignation, he requested a truce 
 until the first Sunday after Easter ^. This was agreed to ; and 
 the king employed the respite in renewed attempts to sow dis- 
 trust among his enemies. He again issued the charter of free- His mea- 
 
 SUTGS of 
 
 dom to the Church ^, directed the oath of allegiance and fealty precaution. 
 to be taken throughout England * to him alone, and demanded 
 a renewal of homage from his tenants-in-chief. Not content 
 with this, he took the vow of Crusade ", involving in the guilt of 
 sacrilege all who should raise their hands against him. But the Progress of 
 barons were undismayed ; they collected an army at Stamford, 
 and marched as soon as the truce expired to Brackley in 
 Northamptonshire. The king, who was at Oxford, sent the 
 archbishop and William Marshall to demand their conditions ; 
 and the messengers brought back a long schedule of demands, 
 which the king at once refused to grant. The barons, on the 
 
 ipso in Pictaviam. Dantibus enim illud plurimis, contradixerunt ex 
 Aquilonaribus nonnulli, illi videlicet qui anno praeterito regem ne in 
 Pictaviam transiret impedierunt, dicentes se propter terras quas in Anglia 
 tenent non debere regeni extra regnuni sequi nee ipsum euutem scutagio 
 juvare. E contrario rege id tanquam debitum exigente, eo quod in diebus 
 patris sui necnon et fratris sic tieret, res ulterius processisset nisi legati 
 praesentia obstitisset. Prolata est carta quaedani libertatum ab Henrico 
 primo Anglis data, quani quasi in observ.andam cum sibi confirmari a rege 
 proceres jam dicti postulai'ent, dilata est res iu annum alterum.' W. Gov. 
 ii. 217, 218. 
 
 ^ Statutes of the Realm, i. 5; Select Charters, pp. 279-281. 
 
 ^ M. Paris, p. 253. 3 I^^ paHs, p. 263. 
 
 * M. Palis, p. 253; W. Cov. ii. 218. ' W. Cov. ii. 219. 
 
 M m
 
 5S<^ 
 
 Constitutional Histori/. 
 
 [chap. 
 
 The barons 
 
 enter 
 
 London. 
 
 John is 
 deserted by 
 his court 
 and grants 
 the Charter. 
 
 Summary of 
 the articles 
 of the 
 Charter. -* 
 
 Its treaty 
 character. 
 
 It includes 
 the whole 
 people. 
 
 receipt of this news, proceeded by way of Northampton, Bedford, 
 and Ware to London, where they were received with a hearty 
 welcome on the 24th of May. The adhesion of the Londoners 
 was followed by a great defection from the king's party ; nearly 
 all the members tf his court and household obeyed the sum- 
 mons addressed t» them by the confederacy, and left John with- 
 out any ptwer •f resistance. Under these circumstances he 
 set his seal t» the articles proposed by the barons, and issued 
 the Great Charter of liberties on the 15th of June at Runny- 
 mede \ 
 
 155. The Great Charter, although drawn up in the form of a 
 royal grant, was really a treaty between the king and liis sub- 
 jects ; it was framed uptn a series of articles drawn up by them ^, 
 it contained the provisitn usual in treaties for securing its execu- 
 tion, and although in express terms it contained only one part of 
 the covenant, it implied in its whole tenour the existence and 
 recognition of the other. The king granted these privileges on 
 the understanding that he was to retain the allegiance of the 
 nation. It is the collective people who really form the other 
 high contracting party in the great capitulation, — the three 
 estates of the realm, not it is true arranged in order accoi'ding 
 to their profession or rank, but not the less certainly combined in 
 one national purpose, and securing by one bond the interests and 
 rights of each other severally and of all together. Tlie Charter con- 
 tains a clause similar to that by which Henry I tried to secure 
 the rights of his subjects as against the mesne lords ; but now the 
 provision is adopted by the lords themselves for the security of 
 fair and equal justice : ' All the aforesaid customs and liberties 
 that we have granted to bo held in our kingdom, so far as pertains 
 to us, with reference to our vassals, all men of our kingdom, as 
 well clerk as lay, shall observe, so far as pertains to them, Avith 
 reference to their men ^' The barons maintain and secure the 
 
 * M. Paris, pp. 252-255; W. Coventry, ii. 219-222; R. Coggeshale, 
 pp. 247-249. Tlic host account of the crisis is to be found in the preface 
 prefixed by B!ackstone to bis eilitiou of Magna Carta. 
 
 * Select Charterx, ji]). 2<Sl-2S8. 
 
 * Articles of the Barons, § 48 ; Magna Carta, § 62. Sec above, p. 306.
 
 XII.] The Great Charter. 531 
 
 right of the whole people as against themselves as well as against it prot«cts 
 their master. Clause hy clause the rights of the commons are of the 
 provided for as well as the rights of the nobles ; the interest of 
 the freeholder is everj'vphere coupled with that of the barons 
 and knights ; the stock of the merchant and the wainage of the 
 villein are preserved from undue severity of amercement as well 
 as the settled estate of the earldom or barony \ The knight is 
 protected against the compulsory exaction of his services, and 
 the horse and cart of the freeman against the irregular requisi- 
 tion even of the sheriff ^. In every case in which the privilege of 
 the simple fi-eeman is not secured by the provision that primarily 
 affects the knight or baron, a supplementary clause is added to 
 define and protect his right ; and the whole advantage is ob- 
 tained for him by the com])rehensive article which closes the 
 essential part of the charter. 
 
 This proves, if any proof were wanted, that the demands oP The barons' 
 
 ifi • p ■ •^ !• ^ 1 did lint act 
 
 the barons were no selfish exaction 01 privilege for themselves ; selfishly. 
 it proves with scarcely less certainty that the people for whom 
 they acted were on their side. The nation in general, the people The people 
 of the towns and villages, the commons of later days, the English- their side. 
 men who had fought the battles of the Norman kings against 
 the feudatories, had now thrown themselves on the side of the >'• 
 barons : John's tyranny had overthrown that balance of the 
 powers of the State which his predecessors had striven with so 
 much earnestness and so much policy to adjust. We do not 
 indeed find, in the list of those who forced the king to yield, any 
 names that prove the commons to have been influential in the 
 drawing up of the articles : the conspicuous names are those of 
 the northern barons, of the men of the great ministerial houses, 
 and of that remnant of the Conqueror's baronage that had cut 
 themselves loose from Normantly and Norman principles and 
 reconciled themselves to the nobler position of leaders of their 
 brother Englishmen. It was probably by the bishops, Langton Debt of the 
 
 '^ DC tulc to 
 
 in particular, and the legal members of the confederacy, that the the bishops 
 rights of the freeholder were so carefully fenced round with pro- 
 
 * Art. Bar. § 8 ; Magna Cart.a, § 20. 
 
 "^ Art. Bar. § 20 ; Magna Carta, § 30. 
 
 M m 2
 
 532 
 
 Constitutional History. 
 
 [chap. 
 
 The barons 
 as leaders 
 of the 
 people. 
 
 The Great 
 Charter, a 
 corporate 
 act of the 
 nation. 
 
 It is based 
 on the 
 Charter of 
 Henry I. 
 
 Motive 
 clause of 
 the Charter. 
 
 Grant of 
 Church 
 
 liberties. 
 
 visions. Tliese men and tlieir successors led the commons and 
 acted for them until the Keformation, with little discord and 
 still less jealousy of theii- rising influence ; and it was the ex- 
 tinction of the class Avhich furnished their natural leaders that 
 threw the Church and the nation under the tyranny that followed 
 the Wars of the Roses. 
 
 The Great Charter is the first great public act of the nation, 
 after it has realised its own identity : the consummation of the 
 work for whicli unconsciously kings, prelates, and lawyers have 
 been labou.riug for a centmy. There is not a word in it that 
 recalls the distinctions of race and blood, or that maintains the 
 differences of English and Norman law. It is in one view the 
 summing up of a period of national life, in another the starting- 
 point of a new, not less eventful, period than that which it 
 closes. 
 
 Magna Carta in its completed form attests the account given 
 by the historians of its origin and gi'owth. It is based on the 
 charter of Henry I ; it follows the arrangement of that famous 
 document, and it amplifies and expands it, so as to bring under 
 the principles, Avliich were for the first time laid down in a.d. 
 iioo, all the particular rights, claims, and duties which had 
 come into existence during the developments of the inter- 
 vening century. As the whole of the constitutional history 
 of England is little more than a commentary on Magna Carta, 
 a brief summaiy of the articles, regarded as the outgrowth of 
 the previous history, is all that is necessary or possible at this 
 stage of our work. 
 
 The king declares himself moved to issue the charter, as his 
 gi-eat-grandfather had done, by bis pious regard for God and 
 his desire for the Ijcnefit of his people : the counsellors by Avhose 
 advice he acts, and whose names lie enumerates, are the bishops 
 and barons who had not taken an overt part against him, or 
 who only at tlie last moment had joined the confederation which 
 compelled him to yield. 
 
 The first clause, again, as in the charter of Henry I, secures 
 the rights of tlic Clmrch ; re])eats and confirms tho charter, 
 twice issued already, for the free election to bishoprics, and the
 
 XII.] The Great Charter. 533 
 
 great principle so often appealed to both earlier and later, ' quod 
 Anglicana Ecclesia libera sit\' 
 
 This is followed by a series of clauses- protecting the tenants- Remedy of 
 
 •^ , . feudal 
 
 in-chief of the Crown fi'om the abuses of feudal right : a fixed abuses in 
 
 !• c • TO! the matters 
 
 sum IS determined for the rehef, as ' the ancient relief, the very of reii. f, 
 
 ., PI . 91 ^^ p • wardship, 
 
 statement betraying the nature 01 the grievances , the reliei is and 
 
 altogether abolished where the right of wardship is exercised ; 
 
 the latter right is carefully limited ; the disparagement of heirs 
 
 by unequal marriages is forbidden ; and the widow is secured 
 
 against spoliation as well as against compulsion to take another 
 
 husband^. The latter concession John had already declared 
 
 himself willing to grant in that scheme of abortive reforms 
 
 which he propounded, before his submission to the pope, in 
 
 A.D. 1212. This portion of the charter closes with three articles Remedy 
 
 . . . of the 
 
 in which the king renounces the oppressive means which had tyiannical 
 
 1 f> 1 1 ^ /~i ^ exaction of 
 
 been used to secure the payment of debts to the Crown and to debts, 
 the Jews, in whose debts the Crown had an ulterior and con- 
 tingent interest. These clauses show that the king's servants 
 had departed from the rules which had prevailed in the Ex- 
 chequer under Henry II, and which had been carefully drawn 
 up so as to secure the rights of the Crown with the greatest 
 regard to the safety of the debtor*. 
 
 The twelfth and three following articles are those to which The consti- 
 
 . tutional 
 
 the greatest constitutional interest belongs ; for they admit the articles. 
 
 right of the nation to ordain taxation, and they define the way 
 
 in which the consent of the nation is to be given. No scutage Limitation 
 
 c 1 1 • 1 • 1 r ii of aids and 
 
 or aid, other than the three regular feudal aids, is hencetorth to scutages. 
 be imposed but by the common counsel of the nation, and the 
 
 * Magna Carta, § i. Cf. the charter of Henry I, § i ; Stephen, Cliarter 
 ii. ; Select Charters, pp. 97, 1 14. 
 
 ' Magna Carta, §§ 2-4; Ai-t. Bar. §§ 1-3. Cf. Charter of Henry I, 
 § 2 ; Assize of Northampton, § 4 ; Dialogus de Scaccario, lib. ii. c. 10 : 
 where the rule that a relief is not to be taken on the coming to age of 
 a royal ward, is laid down as it is in the charter itself. 
 
 ^ Art. Bar. §§4, 17; Magna Carta, §§ 6-8. Cf. Charter of Henry I, 
 §§ 3, 4. Walter of Coventry says, ' sed et viduis dicitur propitius exsti- 
 tisse,' of the reforms proposed in T212 ; ii. 207. 
 
 * Magna Carta, §§ 9-11 ; Art. Bar. §§ 5, 15, 16, 34. 35. Cf Charter of 
 Henry I, §§ 6-8; Dialogus de Scaccario, ii. 12-17; Assize of Northamp- 
 ton, § 4.
 
 534 
 
 Constitutional History. 
 
 [chap. 
 
 Method of 
 summons to 
 the national 
 coimcil. 
 
 Historical 
 importance 
 of these 
 clauses. 
 
 Aids of 
 mcHtie lords 
 
 iuiitoil. 
 
 common counsel of the nation is to be taken in an assembly 
 duly summoned ; the archbishops, bishops, abbots, earls, and 
 greater barons are to be called up by royal writ directed to 
 each severally ; and all who hold of the king in chief, below the 
 rank of the greater barons, are to be summoned by a general 
 writ addressed to the sheriff of their shire ; the summons is to 
 express the cause for which the assembly is called together ; 
 forty days' notice is to be given ; and when the day has arrived 
 the action of those members who obey the summons shall be 
 taken to represent the action of the whole ^. This most im- 
 portant provision may be regarded as a summing-up of the 
 history of parliament so far as it can be said yet to exist. It 
 probably contains nothing which had not been for a long time 
 in theory a part of the constitution : the kings had long con- 
 sulted their council on taxation ; that council consisted of the 
 elements that are here specified, and had been summoned in a 
 way analogous to if not identical with that here defined. But 
 the right had never yet been stated in so clear a form, and the 
 statement thus made seems to have startled even the barons ; 
 they had not ventured to claim it, and when they had the reins 
 of power in their own hands they seem in the subseqvient editions 
 of the charter to have shrunk from repeating the clauses which 
 contained it^. It was for the attainment of this right that the 
 struggles of the reign of Henry III were carried on ; and the 
 realisation of the claim was deferred until the reign of his suc- 
 cessor. In tliese clauses however tlie nation had now obtained 
 a clear, or comparatively clear, definition of the right on which 
 their future political power was to be based. 
 
 The limitation of royal exaction is supplemented by a cor- 
 responding limitation of the power of the mesne lords ; the 
 king is not to cmjiower them to take aids except for the three 
 recognised ])uri)oses, and then oidy such sums as arc reasonable : 
 
 * Ma^na Carta, §§ 12-14; Art. I'.ar. § .^2. The provision for the sum- 
 raonin;^ of tho council is not anionj^ tho barons' articles, and probably 
 exproHHcH the earlier practice ; hco above, p. 467. 
 
 '■* This clauHc is not found in any of tho numerous confii-mations of the 
 Great Charter.
 
 XII.] The Great Charter. 535 
 
 nor is any one to be distrained to perform more than the proper 
 service of his tenure ^ 
 
 The next series of clauses concern judicial proceedings : the Judicial 
 
 clmiscs ' 
 
 suitors who ai'e involved in Common Pleas are no longer to be common 
 compelled to follow the Curia Eegis'^ : the trials are to be heard assizes, 
 in some fixed place. The recognitions of novel disseisin, mort ments, 
 d'ancester, and darrein presentment are henceforth to be taken 
 in the county courts, before two justices who will visit each shire 
 every quarter, and four knights chosen by the county court for 
 the purpose ^. The freeman is not to be amei'ced in a way that 
 will ruin him, the penalty is to be fixed by a jury of his neigh- 
 bourhood ; earls and barons are to be amerced by their peers, 
 and clerks only in proportion to their non-ecclesiastical pro- 
 perty *. Such a clause proves that the careful provisions of the 
 Exchequer on this point had been transgressed by the king, who 
 had, as we learn from the historians, imposed amercements of 
 scandalous amount and with wanton tyranny, just as he, com- 
 pounded by fines for imaginary oftences. The sheriffs, constables, limitation of 
 coroners, and bailiffs of the king are forbidden to hold pleas the sheriff, 
 of the Crown ^ ; a further limitation on the power of the local 
 magistrates, which had been already curtailed by the direction 
 issued in Richard's reign that no sheriff should be justice in 
 his own county. Such a provision shows some mistrust of the 
 sheriff's on the part of both king and barons ; but it was 
 probably disregarded in practice. This is the first of a series 
 of articles by which the abuse of the sheriff's authority is 
 
 * Magna Carta, §§ 15, 16; Art. Bar. §§ 6, 7. 
 
 * Magna Carta, § 17 ; Art. Bar. § 8. 
 
 3 Magna Carta, §§ 18, 19; Art. Bar. 8. See the Assize of Northamp- 
 ton, § 5. 
 
 * Magna Carta, §§ 20-23; Art. Bar. §§ 9-11. Cf. Dialogus de Scac- 
 cario, lib. ii. c. 14, where the order to be observed by the sheriffs in sales 
 is prescribed : ' j\Iobilia cuj usque primo vendantur, bobus autem aiantibus, 
 per quos agricultura solet exerceri, quantum poterint parcant, ne ipsa 
 deficiente debitor araplius in futurum egere cogatur.' This is a piece of 
 Henry's special legislation; Select Charters, p. 229. 
 
 * Magna Carta, § 34 ; Art. Bar. § 14. The barons had asked that the 
 sheriffs should not interfere in pleas of the Crown sine coronatorlhu--' : the 
 charter forbids both sheriffs and coroners (vel coronatores) to ludd such 
 pleas; a fact which seems to suggest that there was some jealousy of 
 the elective ofi&cer. Cf. Assize of Kichard I, A.D. 1194, art. 21; and see 
 above, p. 505.
 
 53^ 
 
 Constitutional Ilistory, 
 
 [chap. 
 
 Remedy of 
 Exchequer 
 abuses, and 
 petty 
 exa ctions. 
 
 Miscel- 
 laneous 
 articles. 
 
 Writ of 
 
 I'riucijM! : 
 measures : 
 inquests. 
 
 Privileges of 
 merchants. 
 
 Escheats. 
 
 restrained ' ; the farms of the counties and other jurisdictions 
 are not to be increased ; the debts due to the Crown which are 
 collected by the sheriff are to be collected under the view of the 
 lawful men of the neighbourhood ; the goods of intestates are to 
 go to their natural heirs ; the royal officers are to pay for all 
 the provisions which they take by requisition ; they are not to 
 take money in lieu of service from those who are willing to 
 perform the service in person ; they are not to seize the horses 
 and carts of the freeman to do royal work, nor his wood without 
 his consent ; the lands of convicted felons are to be held by the 
 Crown for a year and a day, and then to revert to the lords ^ ; 
 and the weirs in the Thames, the Medway, and the other rivers 
 of England are to be removed. 
 
 The remaining articles of general application are of a 
 miscellaneous character ; some laying down great principles, 
 and others defining points of minute and occasional import. 
 The use of the writ of Praecipe is limited ^ : the uniformity 
 of weights and measures is directed in the words of Richard's 
 assize*; the writ of inquest in cases where life and limb are 
 concerned is to be granted freely ^ : the king will not claim 
 the sole wardship of the minor who has other lords, except 
 where he is the king's tenant by knight service ® : no bailiff 
 is to force a man to compurgation or ordeal without faithful 
 witnesses ''. Merchants may go out and come in without paying 
 exorbitant customs ; and all lawful men may leave the kingdom 
 and return except ia time of war, or when the traveller belongs 
 to a nation at war with the king *. The vassals of an escheated 
 honour are not to be treated by the king as tenauts-in-chief 
 
 ' Macrna Carta, §§ 25-33; -'^'"t- ^'^^- §§ 14-16, 18-23. 
 
 * Soo Dialoffiis (le Scaccario, lib. ii. c. 10; Assize of Clarendon, § 5. 
 
 '■' Art. I'.ar. § 24; Magna Carta, § 34; Glanvill, lib. i. c. 6. .See Black- 
 stone, (!onini. iii. 274; l>runner, Scliwurgericht, pp. 405-407. It is a 
 peremptory writ enjoining tlie Kheriff to command the person in question 
 to Jo Home act, or sliow why he should not be compelled. It was in 
 fact an evocation of tlie particular cause to tlie king's court. 
 
 * Art. Bar. § 12 ; Magna Carta, § 35 ; Hovcden, iv. 33. 
 
 "> Art. 15!ir. § 26; M. C. § 36. ' « Art. Bar. § 27; M. C. § 37. 
 
 ' Art. I?ar. § 28 ; Magna Carta, § 38. 
 
 * Art. Bar. §§ 31, 32 ; Magna Carta, §§ 41, 42. A similar privilege had 
 been granted by charter <is early as Aj)r. 5, 1200. See Charter Rolls, p. 60.
 
 XII.] The Great Charter. 537 
 
 of the Crown, but only to pay such reliefs and aids as they 
 
 would owe to the mesne lord if there were one^. The forest Remedy of 
 
 the forest 
 
 courts are not to compel the attendance of any man who is abuses, 
 not directly concerned in the forest jurisdiction : this clause 
 relieves the people of the shires in which the foi'ests lie from 
 the compulsory attendance directed by the Assize of Wood- 
 stock ^. It is followed by a still greater concession ; all the 
 forests made in the present reign are disforested, and all rivers 
 placed in fence are thi"o\vn open ; a thorough investigation of 
 all the forest usages is to be made by an inquest of twelve 
 sworn knights, and all the bad customs are to be abolished 
 forthwith^. By these clauses, which form the only forest charter 
 issued by John*, a great yet reluctant concession is made to a 
 demand which had been increasing in intensity and listened 
 to with stubboi'n disregard for a centurj'^ and a half. 
 
 Other clauses are of a more general character. The thirty- Enunciation 
 nmth and fortieth are famous and precious enunciations 01 principles 
 principles. ' No free man shall be taken, or imprisoned, or 
 disseized, or outlawed, or exiled, or any wise destroyed ; nor 
 will we go upon him, nor send upon him, but by the lawful 
 judgment of his peers or by the law of the laud. To none 
 will we sell, to none will we deny or delay, right or justice ^' 
 The judicium parium was indeed no novelty ; it lay at the The>«di<;i«»i 
 
 parium. 
 
 foundation of all German law ; and the very formula here used 
 is probably adopted from the laws of the Franconiau and Saxon 
 Caesars ; but it was no small gain to obtain the declaration 
 in such terms from a king who by giving the promise made 
 a confession of past misgovernment *. 
 
 ' Art. Bar. § 36 ; Magna Carta, § 46. 
 
 ^ Art. Bar. § 39 ; ISIagna Carta, § 44. See the Assize of Woodstock, 
 § II ; Select Charters, p. 151. 
 
 " Art. Bar. § 47; Magna Cart.a, § 47. Cf. Charter of Henry I, § 10; 
 and Stephen's second Charter. 
 
 * The Forest Charter ascribed to him by Matthew Paris belongs to 
 Henry HI. 
 
 '■> Art. Bar. §§ ^Q, 30. 
 
 * Compare the following passages from the Libri Feudorum : Conrad the 
 Salic (a.D. 1024-103'')) says, ' Praecipimus . . . ut nuUiis miles . . . tarn de 
 nostris majuvibiis valvassoribus quani eorum niilitibus sine certa et con- 
 victa culpa suum beneficium peidat nisi secundum consuetudinem ante-
 
 53^ 
 
 Constitiitional History. 
 
 [chap. 
 
 Judges to 
 be skilled 
 in the law. 
 
 Rights of 
 patrons. 
 
 General 
 application. 
 
 Temporary 
 provisions. 
 
 Dismissal of 
 mercenaries. 
 
 Tlie Scots 
 and Welsh. 
 
 Mciins of 
 execution. 
 
 Another significant article pledges the king to confer the 
 sheriffdoms and other judicial offices of the local courts only 
 on men skilled in the law^. Another secures to the founders of 
 religious houses their rights of custody during vacancy^ ; and 
 another forbids that any one should be taken or imprisoned on 
 the appeal of a woman, except for the death of her husband^. 
 
 Such, with the provision for the application of the rules 
 thus enunciated to the whole nation, are what may be called 
 the general articles of the Charter. The remainder is composed 
 of clauses of special and transient interest : the king undertakes 
 to surrender all charters and hostages placed in his hands as 
 securities, and to dismiss the detested group of foreign servants 
 whom he had gathered round him either as leaders of mer- 
 cenaries or as ministers of small tyrannies. As soon as the 
 pacification is completed he will dismiss all his mercenaries, 
 forgive and recall all whom he has disseized or exiled ; he will 
 then reform, on the principles already adopted, the forests made 
 by his father and brother, and do justice in other ways, for 
 many of the promises made in the earlier part of the Charter 
 had no retrospective validity. The rights of the Welsh who 
 have been oppressed are at the same futui'e period to be de- 
 termined and recognised ; the Welsh princes and the king of 
 Scots are to have justice done ; and a general amnesty for all 
 political offences arising out of the present quarrel is to be 
 given''. 
 
 The enforcement of the Charter is committed to twenty-five 
 barons, to be chosen by the whole baronage. These are em- 
 
 ces.sorum nostrorum et judicium parium suorunri. ... Si contentio fuerit 
 de beneficio inter capitaneos, coram imperatore definiri debet ; si vero 
 fuerit contentio inter ininorc-i valvassoros et majores de lieticficio, in judicio 
 parium suorum dciiniatur ])er judicem cnrtis.' Lib. Feud. J. xviii. — Lothar 
 II Hays, ' Saiiciinus ut Tienio miles adimatur de pusse.ssioue sui beueficii 
 nisi convicta culpa quae sit laudanda per judicium parium suorum sicut 
 Hupra dictum est.' Ibid. c. xxii ; Pertz, Letrg. ii. 39 ; app. p. 1S5. In the 
 law.s of Henry I (so called) the same princijile i.s laid down : ' Unusquisque 
 j)er pares kuos judicandus est.' 
 
 ' Art. P.ar. § 42; M:igna (!arta, § 45. On this princij)lc the steward of 
 a courtdeet must be a learned steward. 
 
 ■■' Art. I'ar. § 43 ; Magna (/arta, § 46. 
 
 ' MaLcna Carta, § 54. 
 
 * Magna Carta, §§ 49-59, 62; Art. Bar. §§ 44-46.
 
 XII.] The Great Charter. 539 
 
 powered to levy wai' against the kiiiff himself, if he refuse to The 
 
 . .. p,-. /•!• twenty-five 
 
 do justice on any claim laid before him by four of their number ; executors. 
 and in conjunction with the communa — the community of the 
 whole realm — to distrain him, saving his royal person and 
 queen and children^. 
 
 The last clause contains the enacting words, ' We will and Enacting 
 
 " words and 
 
 firmly enjoin,' and the oath to be taken on the part of the oath. 
 king and on the part of the barons, that all these articles 
 shall be observed in good faith and without evasion of their 
 plain construction ^ 
 
 In this mere abstract of the Great Charter we have the Recognition 
 summing-up of the rights and duties that have been growing national 
 into recognition whilst the nation was growing into conscious- 
 ness. The Communa totius terrae, which is to join with the 
 twenty-five barons in the execution of the Charter, has at last 
 entered vipon its career of constitutional life. 
 
 So great a boon as Magna Carta might almost excuse the inqui^- 
 
 o ° ° _ as to the 
 
 men bv whose agency it was won from a trial at the bar of pers(jns who 
 
 JO- _ won the 
 
 history. But so much of the earlier fortunes of the constitution Cliarter. 
 
 turns upon personal history, on the local, official, and family 
 connexions of the great men, that we cannot dismiss the sub- 
 ject without the inquiry, Who were the men, and what was 
 their training 1 Who were the barons that now impose limits 
 on royal tyranny, and place themselves in the vanguard of 
 liberty 1 How have they come to sit in the seats and wield 
 the swords of those whom so lately we saw arrayed in feudal 
 might against king and people 1 
 
 The barons who took part in the transactions out of which Fourfold 
 
 classification 
 
 Magna Carta emerges — and the whole baronage was in one way of the 
 
 . .... , , baronage, 
 
 or another directly concerned in it — fall into four classes : those 
 
 who began the quarrel in a.d. i 2 i 3 by refusing to follow the 
 
 king to France ; those who joined them after the councils held 
 
 at S. Albaii's and in S. Paul's ; those who left the king in the 
 
 spring of a.d. 1215 after the adhesion of the Londoners; and 
 
 those who continued with him to the last. Each of these 
 
 I Magna Cai-ta, § 6i ; Art. B;u:. § 49. * Magna Carta, § 63.
 
 540 
 
 Constitutional Hidory. 
 
 [chap. 
 
 The first 
 class ; the 
 northern 
 lords. 
 
 The second 
 class ; tlie 
 feudal and 
 ministerial 
 lords. 
 
 divisions contained men Avho acted on the gi'ound of public 
 right, and others who were mainly influenced by private friend- 
 ship and gratitude, or by the desire of avenging private wrongs. 
 
 The fii-st class was chiefly composed of the north country 
 barons, the Northimbrani, Norenses, Aquilonares of the chroni- 
 clers. No list of them is given, but they can be easily dis- 
 tinguished in the roll of chiefs enumerated by Matthew Paris 
 in connexion with the assembly at Stamford : they are Eustace 
 de Vesci, Eichard de Perci, Robert de Ros, Peter de Bruis, 
 Nicolas de Stuteville, AVilliam de Mowbray, Simon de Kyme, 
 Gilbert de la Val, Oliver de Yaux, John de Lacy the constable 
 of Chester, and Thomas of ]\Iulton. All these are well-known 
 names in the north ; many of them appear in Domesday ; but, 
 with the exception of Mowbray and Lacy, not among the gi'eater 
 tenants-in-chief at the time of the Survey. They had sprung 
 into the foremost rank after the fall of the elder house of 
 Mowbray, and had many of them done service under Richard 
 de Lucy and Ranulf Glanvill in the defence of the north. 
 Eustace de Vesci, however, was closely connected by marriage 
 with the king of Scots, and is said to have had, like Robert 
 Fitz- Walter and William of Salisbury, cruel wrongs to avenge 
 upon the king. 
 
 The second division, containing the rest of the confederates 
 Avho met at Stamford, embraced the remnant of the Conquest 
 l)aronage, and the representatives of the families which had 
 earned lands and dignities under Henry I and Henry II. 
 Amongst these the most prominent is Robert Fitz-Walter, a 
 grandson of Richard de Lucy and a descendant in the male line 
 from the Norman house of Brionne. With him arc Saer de 
 Quenci earl of Winchester, the possessor of half the inheritance 
 of the great house of Leicester ; Henry Bohun earl of Hereford, 
 and Roger Bigod earl of Norfolk, who appear side by side as their 
 descendants did when they defied Edward I ; Richard of Clare 
 earl of Hcrtfoid, the brother-in-law, and Geoffrey de Mandeville 
 earl of Essex, the husband, of the king's divorced wife ; William 
 Marshall the younger, the son of the great earl whose adhesion 
 was the main support of John ; Roger de Creissi, William
 
 XII.] The Barons of the Charter. 541 
 
 Malduit, William de Lanvalei and others, whose names recall The stam- 
 
 ' , ford con- 
 
 the justices of Henry II's Curia ; and with them Eobert de federates. 
 
 Vere, Fulk Fitz-Warin, William Mallet, William de Beau- 
 champ, two of the house of Fitz-Alan, and two of the house of 
 Gant \ Many of these have names the glories of which belong 
 to later history : such of them as are of earlier importance may 
 be referred to the two sources already indicated ; the great 
 baronial families that had been wise enough to cast away the 
 feudal aspirations of their forefathers, and the rising houses 
 which had sprung from the ministerial nobility. 
 
 The third class, which clung to John as long as he seemed Tiie third 
 
 ' ° ° class, who 
 
 to have any hope in resistance, was headed by those earls joined the 
 
 '' ■■• _ _ barons after 
 
 who were closely connected by blood or by marriage with the their eutry 
 ■' . '' . '' .° into London. 
 
 royal house : Earl William of Salisbury, the king's natural 
 brother ; William of Warenne, the son of Earl Hamelin and 
 cousin of John, and Henry earl of Cornwall, grandson of 
 Henry I. With them were William de Forz, titular count of 
 Aumale and lord of Holderness, a feudal adventurer of the worst 
 stamp, whose father had been one of the captains of Richard's 
 crusading fleet ; Ranulf earl of Chester, and William Marshall 
 earl of Pembroke, two men of long and varied experience as 
 well as great social importance, who seem up to the last moment 
 to have hoped that their own influence with the king might 
 make it unnecessary for them to go into open opposition. In The present 
 the second rank come Geoffrey de Lucy, Geoffi-ey de Furnival, 
 Thomas Basset, Henry de Cornhell, Hugh de Neville, and 
 William Briwere, the men who were at present in power in the 
 Curia Regis and Exchequer ; who were bound in honour to 
 adhere to their master or to resign their dignities, and who had 
 in many cases been too willing ministers of the iniquities that 
 provoked the struggle. 
 
 The few who adhered to John to the last were chiefly those The fourth 
 who had everything to fear and nothing to hope from the victory personal 
 of the confederates ; Richard de ]\Iarisco, the chancellor, Peter 
 de Mauley, Falkes de Breaute, Philip son of Mark, Gerard de 
 Atie, Engclard de Cygonies, Robei-t de Gaugi, and others whose 
 
 * M. Paris, pp. 253-255.
 
 542 ConstitiUional History. [chap. 
 
 names testify to tlieir foreign extraction, and some of whom 
 were expressly excluded by the Great Charter from ever holding 
 office in England ^ 
 The king's Of the bishops, Peter des Roches the justiciar was probably 
 
 party among 
 
 the bishops, the only one who heartily supported John : he was a foreign 
 favourite and an unpopular man. Pandulf the papal envoy was 
 also on the king's side ; and some of the bishops Avho had been 
 lately consecrated, such as Walter Gray of Worcester, who had 
 been chancellor for some years, and Benedict of Rochester, 
 probably avoided taking up any decided position. Even arch- 
 bishop Langton himself, although he sympathised with, and 
 partly inspired and advised the confederates, remained in 
 attendance on the king. 
 
 ciassifica- It is worth while to compare with these lists the names of 
 
 tion of the ^ 
 
 twenty-five those counsellors bv whose advice John declares that he issues 
 executors. '' 
 
 the charter, as well as those of the twenty-five barons to whom 
 
 the execution was committed. The former body is composed of 
 
 the bishops, with Stephen Langton and Pandulf at their head, 
 
 and those earls and barons Avho only loft John after the adhesion 
 
 of the Londoners : it contains none of the northern barons, none 
 
 of the second list of confederates, and the selection was perhaps 
 
 made in the hope of binding the persons whom it includes to the 
 
 continued support of the hard- won liberties. The twenty-five 
 
 executors ai-e selected from the two latter classes ; they are as 
 
 follows : of the north country lords, Eustace de Vesci, William 
 
 de Mowbray, Robert de Ros, John de Lacy, Richard de Percy ; 
 
 of the Stamford confederates, the earls of Hertford, Gloucester, 
 
 Winchester, Hereford, Norfolk, and Oxford ; Robert Fitz- 
 
 Walter, AVilliam Marshall the younger, Gilbert de Clare, Hugh 
 
 Bigod, William Mallet, John Fitz-Robert, Roger de Mumbezon, 
 
 Richaid de Muntfitcliet, William dc Huntingfield. Two of the 
 
 third list, William of Aumalc and William of Albini, represent 
 
 a body less hostile to John. Gcoff"rey de Say, who is found 
 
 shortly after in arms against John, and the mayor of London, 
 
 complete the number^. 
 
 ■ Art. 50. 
 
 * M. Paris, p. 262; Select Charters, p. 298.
 
 XII.] The Barons of the Charter, 543 
 
 In a further stacce of our inquiry we shall be able to trace the Importance 
 , , , . of these lists. 
 
 subsequent divisions of party and policy that sprang out of these 
 
 several combinations, in that altered state of affairs which fol- 
 lowed the French invasion, and through the difficulties which 
 beset the minority of Henry III. The analysis of the lists con- 
 firms the evidence of the historians, and proves that the first cry 
 for freedom came from the North, that it was taken up and 
 maintained by the strength of the baronial party, which had 
 learned the benefit of law, peace, and good government, and that 
 the demands of the confederates took a definite and defensible 
 form under the hand of the archbishop, and on the model of 
 Henry I's charter : that this basis of agreement was accepted 
 by the people at large, and especially by the Londoners, who to 
 some extent represent the town population of the kingdom; and 
 was finally adhered to by the most important members of the 
 government, with William Marshall at their head. John re- 
 mained contumacious till all but his foreign creatures had for- 
 saken him, and when he yielded, he yielded with a full intention 
 of eluding by papal connivance all his promises. The Great 
 Charter is then the act of the united nation, the church, the 
 barons, and the commons, for the first time thoroughly at one. 
 It is in form only the act of the king : in substance and in 
 historical position it is the first effort of a corporate life that 
 has reached full consciousness, resolved to act for itself and able 
 to carry out the resolution.
 
 CHAPTER XIII. 
 
 ADMINISTRATIVE AND REPEESENTATIVE INSTITUTIONS. 
 
 156. Character of the period, 1155-1215; amalgamation and national 
 unity; — in blood. — 157. In language and law. — 158. The king. — 
 159. The national Council. — 160. Legislation. — 161. Taxation. — 
 162. Military organisation. — 163. Judicature. — 164. The institution of 
 Juries.— 165. The Towns.— 166. The Clergy.— 167. Conclusion. 
 
 SSr 1S6. The great cliaracteristic of the English constitutional 
 constitution, system, in that view of it which is offered in these pages, — the 
 principle of its growth, the secret of its construction, — is the 
 continuous development of representative institutions fi'om the 
 first elementary stage, in which they are employed for local pur- 
 poses and in the sim2)lest form, to that in which the national 
 parliament appears as the concentration of all local and pro- 
 vincial machineiy, the depository of the collective powers of 
 Anglo-Saxon the three estates of the realm. We have traced in the Anglo- 
 tutious. Saxon history the origin and growth of the local institutions, 
 and in the history of the Norman reigns the creation of 
 a strong administrative system. Not that the Anglo-Saxon 
 Norman I'ule had no administrative mechanism, or that the Norman 
 institutions, polity was wanting in its local and provincial organism, but 
 that the strength of the former was in the lower, and that 
 of the latter in the upper ranges of the social system, and that 
 the strong(!r parts of each were permanent. In the reigns 
 of the three kings, whose history was sketched in the last 
 chapter, wc trace a most important step in advance, the inter- 
 penetration, the growing together, of tlic local macliincry and 
 the administrative organisation. AVe have aheady examined the 
 great crisis by which they were brought together ; now we begin
 
 Period of Amalgamation. 545 
 
 to trace the process by which the administrative order is worked Period of 
 
 • •, ,• interpeiie- 
 
 into the common law of the people, and tlie common institutions tration. 
 
 of the people are admitted to a share in the administration of 
 
 the state ; the beginning of the process which is completed in 
 
 national self-government. 
 
 The ])eriod is one of amalgamation, of consolidation, of con- 
 tinuous gi'owing together and new development, which dis- 
 tinguishes the process of organic life from that of mere mechanic 
 contrivance, internal law fi-om external order. 
 
 The nation becomes one and realises its oneness ; this real- Realisation 
 
 of national 
 
 isation is necessary before the growth can begin. It is com- unity. 
 pleted under Henry II and his sons. It finds its first distinct 
 expression in Magna Carta. It is a result, not perhaps of the 
 design and purpose of the great king, but of the converging lines 
 of the policy by which he tried to raise the people at large, and to 
 weaken the feudatories and the principle of feudalism in them. 
 Henry is scarcely an English king, but he is still less a French 
 feudatory. In his own eyes he is the creator of an empire. The result 
 
 '' '' _ '^ ot Henry s 
 
 He rules England by Englishmen and for English purposes, policy. 
 Normandy by Normans and for Norman purposes ; the end of all 
 his policy being the strengthening of his own power. He recog- 
 nises the true way of strengthening his power, by strengthening 
 the basis on which it rests, the soundness, the security, the sense 
 of a common interest in the maintenance of peace and order. 
 
 The national unity is completed in two ways. The English Union of 
 have united ; the English and the Norman have united also. 
 The threefold division of the districts, the Dane law, the West- Extinction 
 
 .,,.,, , . of Icsal dis- 
 
 Saxon and the Mercian law, which subsisted so long, disappears tinotions. 
 after the reign of Stephen. The terras are become archaisms 
 which occur in the pages of the historians in a way that proves 
 them to have become obsolete ^ ; the writers themselves are 
 uncertain which sliires fall into the several divisions. Traces 
 of slight differences of custom may be discovered in the vary- 
 ing rules of the county courts, which, as GlanvLll tells us, are 
 so numerous that it is impossible to put them on record - ; 
 
 • Simeon of Durham, ed. Hinde, i. 220-222. 
 '^ Glanvill, De Legibus Angliae, lib. xii. c. 6. 
 N n
 
 54^ 
 
 Constiiutiotial History. 
 
 [chap. 
 
 Inter- 
 marriages. 
 
 Uncertain 
 infusion of 
 Norman 
 blood. 
 
 Value of 
 Norman 
 name and 
 linease. 
 
 Increa.se of 
 English 8ur- 
 nauieii. 
 
 but tliey are now mere local by-laws, no real evidence of per- 
 manent divisions of nationality. In the same way Norman and 
 Englishman are one. Frequent intermarriages have so united 
 them, that without a careful investigation of pedigree it cannot 
 be ascertained, — so at least the author of the Dialogus de 
 Scaccario affirms, — who is English and who Norman *. If this 
 be considered a loose statement, for scarcely two generations 
 have jDassed away since the Norman blood was first introduced, 
 it is conclusive evidence as to the common consciousness of 
 union. The earls, the greater barons, the courtiers, might be of 
 pure Norman blood, but they were few in number : the royal 
 race was as much English as it was Norman. Tlie numbers of 
 Norman settlers in England are easily exaggerated ; it is not 
 probable that except in the baronial and knightly ranks the 
 infusion Avas very great, and it is very probable indeed that, 
 where there was such infusion, it gained ground by peaceable 
 settlement and marriage. It is true that Norman lineage was 
 vulgarly regarded as the more honourable, but the very fact 
 that it was vulgai'ly so regarded would lead to its being claimed 
 far more widely than facts would warrant : the bestowal of 
 Norman baptismal names would thus supplant, and did sup- 
 plant, the old English ones, and the Norman Christian name 
 would then be alleged as proof of Norman descent. But it is 
 far from improbable, though it may not have been actually 
 proved, that the vast majority of surnames derived from English 
 places are evidence of pure English descent, whilst only those 
 which are derived from Norman places afford even a presumptive 
 evidence of Norman descent. The subject of surnames scarcely 
 rises into prominence before the fourteenth century ; but an 
 examination of the indices to the Ilolls of the Exchequer and 
 Curia Regis shows a continuous increase in number and import- 
 ance of persons bearing English names : as early as the reign of 
 Henry I we find among the barons Hugh of Bochland, Eainer 
 
 ' *Jam cohahitantibuH Anglicis ot Normannis et alterutrum uxores 
 flucentibuB vel nubentibiiH, hIc permixtae sunt nationes ut vix iliscerni possit 
 hodie, de liberin l(i(|uor, quis Anylious quis Normannus sit genere ; exceptis 
 dunitaxat ascrii)titiiH qui villani dicuntur.' Dialogus, i. c. lo ; Select 
 Charters, p. 1^3.
 
 XIII.] Union of Blood. 547 
 
 of Bath, and Alfred of Lincoln, with many other names which English 
 
 sliow either that Englishmen had taken Norman names in 
 
 baptism, or that Normans were willing to sink their local 
 
 surnames in the mass of the national nomenclature. 
 
 157. The union of blood would be naturally expressed in Unity and 
 
 unity of language, a point which is capable of being more strictly Lnguape. 
 
 tested. Although French is for a long period the language of 
 
 the palace, there is no break in the continuity of the English as 
 
 a literary language. It was the tongue, not only of the people 
 
 of the towns and villages, but of a large proportion of those who 
 
 could read and could enjoy the pursuit of knowledge. The Modifica- 
 
 , . Ill tions of ver- 
 
 growth of the vernacular literature was perhaps retarded by the nacuiar lite- 
 influx of Norman lords and clerks, and its character was no doubt 
 modified by foreign influences under Henry II and his sons, as 
 it was in a far greater degree affected by the infusion of French 
 under Henry III and Edward I : but it was never stopped. 
 It was at its period of slowest growth as rapid in itt> develop- 
 ment as were most of the other literatures of Europe. Latin 
 was still the language of learning, of law, and of ritual. The 
 English had to struggle with French as well as with Latin for 
 its hold on the sermon and the popular poem : when it had 
 forced its way to light, the books in which it was used had their 
 own perils to undergo from the contempt of the learned and 
 the profane familiarity of the ignorant. But the fact that it Continuity, 
 survived, and at last prevailed, is sufficient to prove its strength, victory of 
 The last memoranda of the Peterborough Chronicle belong to 
 the year 1154 : the last extant English charter can scarcely be 
 earlier than 1155. There are English sermons of the same 
 
 century, and eai*ly in the next we reach the date of Layamon's Fragment- 
 ary cha- 
 Brute and the Ormuhnn. These are fragments of the literature racter !ic- 
 
 ,.,. ., ., „ counted for. 
 
 of a language Avhich is passing through rapid stages of giowth, 
 
 and which has not attained a classical standard. Only frag- 
 ments are left, for the successive stages pass so quickly that the 
 mouuments of one generation are only lialf intelligible to the 
 next. The growth of the language and that of the literature 
 proceed in an inverse ratio. If we were to argue from these 
 fragments, we should infer, that whilst in the department of 
 
 N n 2
 
 548 
 
 Constitutional History. 
 
 [chap. 
 
 Relation of 
 language 
 and litera- 
 ture in the 
 process of 
 develop- 
 ment. 
 
 Scraps of 
 English in 
 conversa- 
 tion. 
 
 law the use of the native tongue was necessarily continuous, it 
 had to rise through the stages of the song and the sermon to 
 that point of development at which those who required history 
 and deeper poetry demanded them in their own language. 
 Such a sequence may imply the increase of education in the 
 English, but it more probably implies the disuse of French 
 in the classes that had a taste for learning : and it is still 
 more probable that the two literatures advanced by equal steps 
 until the crisis came which banished French from popular 
 conversation. There are traces that seem to show that English 
 was becoming the familiar conversational language of the higher 
 classes. The stoiy of Helewisia de Morville, preserved by 
 William of Canterbmy in his life of Becket, exhibits the wife of 
 one of the mui'derers as using English. ' Huwe of Moi-vill, war, 
 war, Liulf haveth his sword ydrawen,' was her cry when she 
 invoked the aid of her husband to punish the stubborn virtue of 
 her English favourite^. Giraldus Cambrensis, a man of liigh 
 Norman descent, could not only read but criticise the language 
 of the Chronicles and of Alfred, and compare the dialects of 
 northern and southern England ^. Hugh of Nunant, a Norman 
 of the Normans, mentions it as a strange thing that "William 
 Longchamp the chancellor was ignorant of the language of the 
 people, and regai'ds it in special connexion with his hatred and con- 
 tempt of the English ^ Latin was the ordinary language of the 
 monks of Durham, yet they conveised in English with S. Godric, 
 who spoke French only by miracle*. The hymn which the 
 Blessed Virgin taught the same saint was in English'', and in 
 English it is recorded for the reading of bishop Hugh de Puiset. 
 At Canterbury, in the miraculous history of Dunstan, written by 
 Eadmer, it is tlie devil that speaks French" and con-ects the indif- 
 ferent idiom of an English monk. S. Hugh of Lincoln, who was 
 a Burgundian by birth, did not understand the dialects of Kent 
 
 ' Will. Cant. aj). Giles, ii. 31. '^ Gir. Cam. 0pp. vi. 177, 178. 
 
 ' Ben. Pet. ii. 219: ' lile non resijondohat quia lin;.;iiuni An(,dicanani 
 prorsuH ignorabat.' See alwo Gir. Canib. V. (ralf'ridi, in Anglia Sacra, 
 ii. 407. 
 
 * V. S. Godric, pp. 203, 206. * Ibid. p. 208. 
 
 * Eadmer, V. S. Dunstani, p. 236.
 
 XTii.] Uniformity of Lmo. 549 
 
 and Huntingdonshire, but he was addressed by the natives as if English 
 it were naturally to be expected that he would comprehend spoten." ^ 
 what they said \ Little can be safely inferred from such 
 scattered notices, but that it was not uncommon for educated 
 people to speak both languages. Of any commixture of French No commix- 
 and English at this period there is no trace : the language of French with 
 Chaucer owes its French elements to a later infusion : the 
 structure of our language is affected by the foreign influence as 
 yet in a way which may be called mechanical rather than 
 chemical : it loses its inflexions, but it does not readily accept 
 new grammatical forms, nor does it adopt, to any great extent, 
 a new vocabulary. 
 
 The uniformity of legal system in its ajjplicatiou to Norman ConsoMa- 
 and Englishman alike, w^ould of necessity follow from a state of legal system, 
 society in wliich Norman was undistinguishable from English- 
 man : but except in one or tAvo points of transient interest, it is 
 not likely that any great distinctions of legal procedure had ever 
 separated the two races. The Norman character of the Curia 
 Regis and the English character of the shiremoot stand in con- 
 trast not so much because the former was Norman and the 
 latter English, but because of the different social principles from 
 which they spring. The Englishman where he is a tenant-in- 
 chief has his claims decided in the Curia Regis ; the Norman 
 vavassor and the English ceorl alike are treated in the shire- 
 moot^. The trial by battle and the inquest by jury in its 
 several forms are, after the first pressure of the Conquest is over, 
 dealt with by both alike. The last vestige of difference, the 
 presentment of Englisluy, loses what significance it ever had. 
 The tenures are the same for all ; the Englishman is not dis- 
 qualified from being a tenant in chief : the Norman may hold 
 land in villenage : the free and common socage of the new 
 system is really the free possession of the old, and the man 
 who holds his acres by suit and service at the county court ^ is as 
 free as if he continued to call his land ethel or hociand, over 
 
 ^ Magna Vita S. Hiigonis, pp. 157, 26S. 
 ^ Writ of Henry I, quoted above, p. 390. 
 
 ' ' Per sectani comitatus et de liendemot, unde scutagium dari non 
 debet.' Kot. Pip. 3 Job. ; Madox, Hist. Exch. p. 467.
 
 55© Constitutional History. [chap. 
 
 The villein which none but the king had soken. The one class which is an 
 exception to all these generalisations, that of the rustici or nativi, 
 is, it would appear, exclusively English : but even these, where 
 they have recognised claims to justice, claim it accordinG: to its 
 fullest and newest improvements. The system of recognition is 
 as applicable to the proof or disproof of villein extraction as to 
 the assize of mort-d'ancester or novel disseisin : nor does the 
 disqualification under which the rustic lies, for ordination or for 
 the judicial work of the jury and assize, arise from his nation- 
 ality, but from his status. The claims of his lord forbid him to 
 seek emancipation by tonsure ; the precarious nature of his 
 tenure forbids him to testify in matters touching the freer and 
 fuller tenure of other men's property. 
 Enelislimen Still great promotion in Church and State does not yet com- 
 moted. monly fall to the lot of the simple Englishman. Wulfstan of 
 
 Worcester, the last of the Anglo-Saxon bishops, dies in 1095 ; 
 Robert, the scholar of Melun, the first English bishop of auy 
 note after the Conquest, belongs to the reign of Henry II'. 
 The Scot, the Welshman, and the Breton reach episcopal thrones 
 before the Englishman. Archbishop Baldwin, who was pro- 
 moted to Cautei'bury by Henry II, seems to have been an 
 Englishman of humble birth ; Stephen Langton was also an 
 Englishman, but by this time the term includes men of either 
 descent, and henceforth the prelates of foreign extraction form 
 the exceptions rather than the rule. In the service of the State 
 however it is, as we have seen already, by no means improbable 
 that English sheriffs and judges were emi)loyed by Heniy I : 
 and English scholars and lawyers were rising into distinction in 
 Sicily and even in France. 
 
 Ciiamcter of The union of the races resembles not merely tliQ mechanical 
 
 tlu; union • .• 11-1 1 1 p 
 
 oiracv-s. union (it two l)odi('S Ijound togctlicr l)y force, or even by nmtual 
 
 attraction, in which, however tight the connexion, each retains 
 
 its individual mass and consistency : it is more like a chemical 
 
 commixtui'e in wliich, ultliougli slullcd analysis may distin- 
 
 ' Robi-rt is diatinctly described by Robert de Monte, as genere Anglicus 
 (ed. Pertz, vi. 51.3); John of F.-igham, who w;)h made bishop of Worcester 
 in 1 151, may also have been English.
 
 XIII.] The King. 551 
 
 truish the injrredients, thev are so united both in bulk and Result of 
 
 " o ' J .... the commii- 
 
 iw qualitie?!, that the result of the commixture is something ture. 
 
 altogether distinct from the elements of which it is composed. 
 
 The infusion of a little that is Norman affects the whole system 
 
 of the English, and the mass which results is something different 
 
 from either the one or the other. True the great proportion of 
 
 the bulk must be English, but for all that it is not, and nothing 
 
 will ever make it, as if that foreign element had never been 
 
 there. 
 
 The commixture of institutions is somewhat similar : the Commixture 
 
 of institu- 
 
 new machinery which owes its existence to the new conception tions. 
 of royal power, the Curia Regis and Exchequer, does not remain 
 side by side and unconnected with the shiremoot and the 
 kindred institutions ; it becomes just as much a part of the Growth of 
 
 c 1 1 • • theoomuioii 
 
 common law as the other : the ancient system of the shire rises law. 
 to the highest functions of government ; the authority of royal 
 justice permeates the lowest regions of the popular organisation. 
 The new consolidating process is one of organism, not of mere 
 mechanism : the child's puzzle, the perfect chronometer, the 
 living creature, symbolise three kinds or stages of creative skill, 
 order, organisation, law ; the point that our history reaches at 
 the date of Magna Carta may be fixed as the transition from the 
 second to the third stage. 
 
 In tracing the minute steps of the process by which the com- Plan of the 
 
 . , ~ .... 11, 1 following 
 
 mixture 01 race and institutions was so completed as to produce Chapter, 
 an organisation which grew into conscious life, we may follow a 
 principle of arrangement different from that used in the eleventh 
 and earlier chapters ; and after examining the position of the 
 king, divide the discussion under the four heads of legislation, 
 taxation, the military system, and judicature ; closing the history 
 of the period with an attempt to trace the origin and develop- 
 ment of that representative principle, which we shall find run- 
 ning through all the changes of administrative policy, and form- 
 ing as it were the blending influence which enables the other 
 elements to assimilate, or perhaps the breath of life which turns 
 mere organism into living and conscious personality. 
 
 158. The very idea of kingship had developed since the age The King.
 
 552 Constitutional Kidory. [chap. 
 
 Growth of of the Conqueror. This had been one result of the sti'uggle 
 kingsliip. with the Chui'ch. The divine origiia of royalty had been insisted 
 on as an argument to force on the kings the sense of responsi- 
 bility. This lesson had been familiar to the ancient English 
 rulers, and its application had been summarily brought home. 
 Edwj', like Rehoboam, had spurned the counsels of the fathers, 
 and the men of the north had left him, and taken Edgar to be 
 king. But the truth was less familiar, and the application less 
 impressive to the Norman. The Conqueror had won England 
 by the sword ; and though he tried to rule it as a national king, 
 it was not as one who would be brought to account : William 
 Rufus had defied God and man : Henry I had compelled Anselm 
 to give him a most forcible reminder of the source from which 
 both king and prelate derived their power : Stephen had sinned 
 against God and the people, and the hand of supreme power was 
 traced in his humiliation. The events that were taking place 
 Moral and on the Continent conveyed further lessons. In the old struggles 
 sition of the between pope and emjDcror the zeal of righteousness was on the 
 side of the latter : since the reign of Henry IV the balance of 
 moral influence was with the popes ; and the importance of that 
 balance had been exemplified both in Germany and in France. 
 Scholastic The power of the pen was in the hands of the clergy : Hugh of 
 viewo -ing J^-]^^,yJ.y Ijj^j elaborately explained to Henry I the duties and 
 rights which his position owed to its being ordained of God\ 
 John of Salisbury, following Plutarch and setting up Trajan as 
 the model of ])rinces, had urged the contrast between the tyrant 
 and the king such as he hoped to find in Henry II '^. Yet these 
 influences were thwarted by another set of ideas, not indeed 
 running counter to them, but directed to a different aim. The 
 clergy had exalted royalty in order to enforce its icsponsibilities 
 
 Logal theory ou the conscience of the king ; the lawyers exalted it in order to 
 of ahaoluto . . ' , . . , . 
 
 sovereignty, strengthen its authority as the source ot law and justice; making 
 
 the law honourable by magnifying the attributes of the law- 
 giver. And as the lawy(!rs grew more powerful as a class, the 
 theory of royalty approuclied more closely to absolutism : their 
 
 ' Sec liis work in I'aluzo's Miscellanea, ii. 184 sq. 
 ^ lu the PolycFiiticus , tluougliout.
 
 XIII.] Idea of Royalty. 553 
 
 lansfiiaffc has a tone, a force, and a consistent logic tliat is Influence of 
 
 ® » ' ' ° the imperial 
 
 wanting to the exhortations of the churchmen. Yet even to the idea, 
 lawj^er this ideal king was not the man who sat on the throne, 
 but tlie power that would enforce the law. Glanvill cites and 
 applies to Henry II the maxim of the Institutes, ' quod principi 
 placuit, legis habet vigorem,' — a principle which, as Fortescue 
 points out, is absolutely foreign to the ideas of English law^; 
 and the author of the Dialogus de Scaccario, who, although 
 himself a priest, represented both in life and in doctrine the 
 ministerial lawyer, lays down that the deeds of kings are not to 
 be discussed or condemned by inferior men, their hearts ai'e in 
 the hands of God, and it is by divine not by human judgment that 
 their cause must stand or fall ^. Happily a theoiT of absolutism Practical 
 
 ., , . , ,.,.... . limitations. 
 
 IS compatible with very strong and strict limitations m practice : 
 yet it was probably under the idea that the king is the sovereign 
 lord of his people that Richard I and John forsook the time- 
 honoured practice of issuing a charter of liberties at the coro- 
 nation. John's idea of his own position was definitely that of John's idea 
 an absolute prince : when he heard the demands of the barons position. 
 he inquired why they had not asked for the kingdom also, and 
 swore that he would never gi-ant them such liberties as would 
 make him himself a slave ^ : yet the liberties they asked were 
 those which his forefathers had been glad to offer to their people. 
 Curiously enough it is in John that the territorial idea of royalty 
 reaches its typical enunciation : all the kings before him had 
 called themselves on their great seals kings of the English : John 
 
 o o o 
 
 is the first whose title appears on that solemn and sovereign em- 
 blem as Rex Angliae. 
 
 The growth of real power in the king's hands had advanced Growth of 
 "^ _ ^ " ^ _ real power. 
 
 in proportion to the theory. Every measure of internal policy 
 
 by which the great vassals had been repressed, or the people 
 strengthened to keep them in check, had increased the direct 
 influence of the crown ; and the whole tendency of the minis- 
 terial system had been in the same direction. Hence it was 
 that John was able so long to play the i)ait of a tyrant, and that 
 
 ' De laudibus Lecfura Angliae, ch. 9. 
 ' Dialogus, praef . i Select Charters, p. 161. ^ M. Paris, p. 254.
 
 554 
 
 Constitutional History. 
 
 [chap. 
 
 Claim of the 
 king to the 
 rule of the 
 British 
 islands. 
 
 Homage of 
 Wales. 
 
 Ecclesiasti- 
 cal depend- 
 ence of 
 Wales. 
 
 the barons had to enforce the Charter by measures which for the 
 time were an exercise on their part of sovereign power. 
 
 Somewhat of the greatness of the royal position was owing 
 to the claim, which at this period was successfully urged, to the 
 supreme rule of the British islands ; a claim which had been 
 made under the descendants of Alfred, and was regarded by 
 tradition as really established by Edgar. The princes of Wales 
 had acknowledged the suzerainty of the Conqueror, and had 
 been from time to time forced into formal submission by 
 William Rufus and Henry I : but Stephen had been able to 
 do little on that side of the island. The three Welsh wars of 
 Henry II were not amongst his most successful expeditions, yet 
 by arms or by negotiations he managed to secure the homage 
 of the princes \ on one of whom he bestowed his own sister in 
 marriage ^ On Richard's accession the homage was again de- 
 manded, and a scutage was raised on the pretext of an expedition 
 to enforce it. Yet when Rhys ap Griffith, the king of South 
 Wales, came to Oxford for the purpose of negotiation, Richard 
 refused to meet liim^, and it does not appear that he ever 
 renewed his homage. On the death of Rhys, the disputed 
 succession to his principality was settled by archbishop Hubert 
 as justiciar*, and (iriftith his successor appeared as a vassal of 
 the English king at the court of John ^. There seems to have 
 been no reluctance to accept the nominal superiority of England, 
 so long as it was compatible with practical independence. But 
 the fact that ilicir bishops received their consecration at Canter- 
 bury, and were, from the reign of Henry I, elected and admitted 
 under the authority of the kings of England, is sufficient to prove 
 that anything like real sovereignty was lost to the so-called kings 
 
 * Henry's three Welnh w.ir.s were in 1157, 116,',, and 1165. Homage 
 was jK-rforined by the princes Jit Woodstock July i, 116.^: and they 
 attended his court at Gioucoster in 1 175. In 1177 they swore fealty at 
 Oxford in May. In 1 1 84 they ])rovokpd the kint,' to prepare for another 
 (xpediUon ; i)ut wlicn ho iiad re.ichod Worcester, Rhys a]) (Jrifhth met him 
 and did homMt,^!. 'IMjc Soutli Welsli were auain in anns in 1 186. The 
 ])rin(;(;s of Noilh Walrs, allcr tin; marriage of David with tlie king's sister, 
 wen; faitliful, and adhered to iliiiryin the rehellion of JI7.^' 
 
 ■•' J'xned. i. 162. " ]icncd. ii. 97. "' Hoveden, iv. 21. 
 
 " Hoveden, iv, 142.
 
 XIII.] Homage of the King of Scots. ^^^ 
 
 of Wales. Tliey were divided amonf^st themselves, and the I'olicyof 
 . ... . . thtf Welsh 
 
 highest object of theii' political aims was from time to time to princes. 
 
 throw their weight on the side of the disaffected barons who 
 were their neighbour's : creating difficulties in the way of the 
 king of England, which prevented him frojn meddling with them. 
 But his formal suzerainty was admitted. ' What Christian,' says 
 Matthew Paris, ' knows not that the prince of Wales is a petty 
 vassal (vassalulus) of the king of England ^ 1 ' 
 
 It was very different with Scotland, although Malcolm Can- Q^^^*^'"" °f 
 more had under the spell of the Conqueror's power done formal homage. 
 homage to him, and each of the sons of Margaret had in turn 
 sought support against his competitors at the court of Henry I. 
 The complicated question of the Scottish homage, an obligation 
 based, it is said, on the commendation of the Scots to Edward 
 the Elder, on the grant of Cumberland by Edmund to IMalcolm, 
 and on the grant of Lothian by Edgar or Canute to the king of 
 Scots, was one of those diplomc\};ic knots which are kept unsolved 
 by mutual reservations until the time comes when they must be 
 cut by the sword. And to these obscure points a new compli- Its compli- 
 cation was added when David of Scotland, who had obtained the 
 English earldom of Huntingdon, succeeded to his brother's throne. 
 Henry the son of David received the earldom of Northumbei'land 
 from Stephen, and his father kept during the whole of Stephen's 
 reign a hold on that county as well as Cumberland and West- 
 moreland, partly in the alleged interest of his niece the empress, 
 partly perhaps with the intention of claiming those territories as 
 rightfully belonging to his Cumbrian principality. Henry II 
 not only obtained the restoration of the northern counties from 
 Malcolm IV, but compelled him to do homage-: William the 
 Lion, who succeeded Malcolm, acted throughout his whole reign 
 as a vassal of England, attending the royal courts and acquiescing 
 for the most part in a superioritj' which it would have been folly 
 
 1 M. Paris, p. 626. 
 
 - Malcobu IV did homage to Henry II at Chester in 1157 ; he attended 
 him :it the siege of Toulouse, and was knighted by him at Tours in 1159- 
 He did homage to tlie younger Henry at Woodstock in 1163. These 
 homages were apparently due for the county of Huntingdon.
 
 ^^6 Constitutional History. [chap. 
 
 hom*-e to disputed After the unsuccessful attempt in 1174 to assist 
 from 1 1 74 the rebellious earls, in which he was defeated and captured, 
 
 to 1 189. ' 
 
 Henry II imposed on him the most abject terms of submission : 
 compelling him to surrender the castles of Lothian, and to 
 enforce on his bishops and barons a direct oath of fealty to the 
 Enoflish crown. From that obligation Richard released him for 
 the sum of ten thousand marks ; but neither Henry's exaction 
 of the homage, nor Richard's renunciation of it, affected the 
 pre-existent claims. With William the Lion it was a far more 
 important object to recover Northumberland, Cumberland, and 
 "Westmoreland, than to vindicate his formal independence. The 
 states he ruled or claimed to rule were as yet unconsolidated : 
 he had little authority in the real Scotland that lay beyond the 
 Forth, and from which his royal title was derived. The English- 
 speaking provinces, which he held as lord of Lothian and of 
 Strath Clyde, were as yet no more Scottish than the counties 
 which he wished to add to them. Yet both he and his people 
 Tiic Scottish aimed at an independence very different from that of Wales, 
 immediately The Scottish bishops, who from the beginning of the tAvelfth 
 on Rome. century had struggled against the attempt to reduce them to 
 dependence on York or Canterbury, refused to submit them- 
 selves to the English Church, even when they swore fealty to 
 the English king ; and actually obtained from Pope Clement III 
 a declaration that they were subject immediately and solely to 
 the apostolic sec itself. The Scottish barons, even before tliey 
 
 ' William succeeded his brother in 1165 ; in 1 166 he followed Henry II 
 to Nonnaiidy, according to llio (Chronicle of I\lulr<i.se, as a vas^sal, but re- 
 turned shortly lifter. In 1 1 70 ho and his brother David did homage to the 
 younger Henry, according to Jjord Hailes for Huntingdon, according to 
 Lord Jjyttelton for Lothian : there is no decisive evidence on the point. 
 After luH release from imj)risoiiment he frequently attended the English 
 court; es|ieciiilly at NorLh.amiiton in 1176, at Winchester in 1177, at 
 Nottingham in ii'j(j,in Normandy in iiSi,.it Nottingliam in the same 
 year, at liondon in 1 1S5, at Marlborough in I 186. He attinded on Richard 
 at Cariterbui'y in Il8f), and was there I'elieved from the bondage imposed 
 by Henry Jl ; and wius again at court in 1194 at Nottingham. In 1200 
 he did homa'^e to .John iit Lincoln, 'salvo jure suo.' At this time the 
 county of Huntingdon was in the hands of his brother David; it is there- 
 fore difficult to see foi' what the homiige coidd h.ive been due, unless it 
 were for tlie traditionjil claim. I'ossibly William yielded it in the lioj)e of 
 recovering the northern counties, in which he did not succeed.
 
 XIII.] Galloioay and Ireland. 557 
 
 liad been released by Kicliard, refused to be bound by the R<;fiisal to 
 
 ■n T 1 1 • " a t ■\- -11 -iTT-i • • pav the Sala- 
 
 xLuglish undertaking to pay the baladm tithe \ vVhen it is din tithe, 
 remembered that a large portion of" these barons were adven- 
 turers of Norman descent, who had obtained estates in the 
 Lowlands, too far from the English court to fear royal inter- 
 ference, it is not difficult to sec how the feudal principle gained 
 its footing in Scotland in such strength as to colour all its later 
 history. The Scottish constitution, as it appears under king Enfrhsh in- 
 David, was a copy of the English system as it existed under Scotland. 
 Henry I, but without the safeguards which the royal strength 
 should have imposed on the great vassals. Hence the internal 
 weakness which so long counteracted the determined efforts of 
 the people for national independence. 
 
 The anomalous condition of the principality of Galloway, which. Relation of 
 
 as an outlving portion of the Strath Clyde kinadom, clung to Kngiandand 
 
 . , . . . e- ' S Scotland. 
 
 English protection to evade incorporation with Scotland, and was 
 
 from the beginning of the twelfth century subject ecclesiastically 
 to York, gave the English kings another standing-point beyond 
 the border". But although Henry II raised an army for the 
 reduction of Galloway in ii86, and even marched as far north- 
 wards as Carlisle, his successors did not regard the question as 
 worthy of a struggle. Alan of Galloway appears amongst the 
 barons by whose counsel John issued the charter, and the bishops 
 
 ' Bened. ii. 44. 
 
 "^ Galloway was under the rule of Fergus, an almost independent 
 prince (princeps), who was connected by niarriase with Henry I, until the 
 year iif)0, when the country was subdued by Malcohn. Fergus tlien be- 
 came a canon and died the next year. On the outbreak of war in 1173, 
 the sons of Fergus expelled the Scottish officers from their country, 
 and in 11 74 Henry sent envoys to invite them to become his vassals. 
 They however quarrelled among themselves, and Henry, finding that they 
 intended to make a tool of him, abstained from further negotiations ; and 
 William did homage for Galloway as well as Scotland. In 11 76 the 
 king of Scots compelled Gilbert of Galloway, who had murdereJ his 
 own brother Uhtred, to do homage to Henry, as a Scottish baron, under the 
 terms of the treaty of Falaise. In 1184 Gilbert rebelled against William 
 tlie Lion, and died before tlie w^ar was over, in 11 85, leaving his heir in 
 Henry's hands. The territoi-y was seized by his nephew, Ronald, against 
 \vhom Henry marched in 1186. Ronald however met liim at Carlisle and 
 did homage: he retained tlie principality until he died in 1200 at tlie 
 English court. Alan, his son and succet^sor, married a daughter of David 
 of Huntingdon, and was the father of Dervorguilla Balliol. Galloway 
 furnished a portion of Henry H's mercenary troops.
 
 ^^S Constitutional History. [chap. 
 
 Galloway of Wliitliern received consecration and mission at York, down 
 
 <lei)endent ■ i t\ e -i e 
 
 ecclesiasti- to the middle or the lourteenth centuiy ; but the territory was 
 York. gi-adually and completely incorporated with Scotland, as Scot- 
 
 land gradually and completely realised her own national identity : 
 Dervorguilla, the heiress of the princes of Galloway, was the 
 mother of John Balliol, king of Scots. 
 Claims of the Over Ireland as a whole the claims of the Anglo-Saxon kings 
 
 kines on ,.._,, ■ ^ ^ 
 
 Ireland. w^ere only titular. Edgar however, who had obtained the sub- 
 mission of the Northumbrian Danes, had apparently acted as 
 patron also of the Ostmen in Ireland ■■. Canute may not im- 
 probably have done the same ; and when those settlers sought 
 and obtained an ecclesiastical organisation in the reign of the 
 Conqueror they received their bishops from Canterbury. But 
 nothing more had been done ; and it is uncertain whether in 
 the most extensive claims of the Anglo-Saxon kings to the ' im- 
 perium ' of all the British isles -, Ireland was even in thought 
 included. Henry II however, veiy early in his reign, conceived 
 
 The bull the notion of conquering the sister island. In his first year he 
 
 Lauddbiliter. . . . 
 
 obtained from the English Pope, Adrian IV, the bull Lauda- 
 hiliter, in which, ])y virtue of a forced construction of the 
 forged donation of Constantinc, the pontiff, as lord of all islands, 
 Henry pro- bestowed Ireland on the English king ^ In the council of 
 quest of Winchester, held the same year, Henry proposed an expedition 
 to conquer the country as a kingdom for his brother William, 
 but was dissuaded by the empress''; and the gift remained a dead 
 letter until 1167, when the quarrels of the native princes opened 
 the Avay for the piratical attempts of Richard of Clare. In 1171 
 Henry himself, determined to avoid the Roman legation, went, 
 
 * CoinB of Etlielred and Canute, if not also of Edjfar, were struck at 
 Dublin ; ]{oI)ertson, Essays, p. 198 ; Rudifig, Annals of the Coinage, i. 262- 
 276; and Nicholas of Worcester in a Ittter to Eadmer counts the king of 
 Dublin iiniong Edgar's vassals ; Memorials of Dunstan.p. 423. Cf.Kemble, 
 Cod. Di])l. ii. 404. 
 
 * 'Ego Aeihelred gentis gubernator Angligenae totiusque insulae co- 
 regulus Jiritantiicae tt caeterarum insularuni in circuitu adjacentiuni.' 
 Kenible, Cod. Dipl. iii. 323; cf. 348, iv. 23. 
 
 * GiralduB Cambrensis, 0pp. v. 316. Cf. .loh. Salisl). Metalogicus, iv. 
 c. 42. Jolin of Salisbury brought an emerald ring from the pope to 
 Henry II by way of investiture. 
 
 * liobert de Monte, A.O. 1155.
 
 XIII.] Lordship of Ireland. 559 
 
 as we have already seen, to Ireland and received the formal The sub- 
 obedience, of both kings and prelates, the king of Connaught, ^le Irish 
 who alone resisted, making his submission by treaty in 1175'. thlffcudai" 
 In 1 177 John was made lord of Ireland, and received the homage Ireland '^'^ 
 of some of the barons, amongst Avhom his father portioned out 
 the country, which was as yet unconquered '^. In 11 85 he was 
 sent over to exercise authority in person, Ijut he signally failed 
 to show any capacity for government, and was recalled in dis- 
 grace. Henry seems to have thought that a formal coronation 
 might secure for his son the obedience of the Irish, and obtained 
 from Urban III licence to make him king, the licence being 
 accompanied by a crown of gold and peacock's feathers^. But -lohn and his 
 
 successors 
 
 although a special legate was sent for the purpose in 1187, John lords of Ire- 
 was never crowned, and the kings of England remained lords 
 only of Ireland until Heniy YIII took the title of king without 
 coronation. John, during the years of the Interdict, made an 
 expedition to Ireland, in which he had some success, bringing 
 the English settlers, who already aimed at independence, into 
 something like order. But the lordship of Ireland was little 
 more than honorary ; the native population were driven into 
 semibarbarism, and the intruding race were scarcely subject even 
 in name to the English crown. The resignation of the kingdom 
 of England to the pope in 1 2 1 3 was, however, accompanied by 
 the surrender and restoration of Ireland also ; and of the annual 
 tribute of a thousand mai'ks, three-tenths were assigned to Ire- 
 land, whilst seven-tenths were to be paid for England. The fact New eccle- 
 that Ireland had in 1 1 5 1 received a new ecclesiastical consti- constitution 
 tution from Pope Eugenius probably saved it from annexation 
 to the province of Canterbury, or to the jurisdiction of the 
 primate of England. 
 
 Whilst the king of England was thus asserting and partially Homages 
 T • • • 1 1 • 1 . • 1 1 • -1 -r^ . . , paid by the 
 
 realismg imiierial claims over his neighbours in the British kincs for 
 
 islands, he was in his continental relations involved in a net of 
 homages and other kindred obligations, which might seem to 
 derogate from the idea of royalty as much as the former mag- 
 nified it. As duke of Normandy he was a vassal of the king 
 
 ' Benedict, i. 101-103. ^ lb. i. 161, 165. * Hoveden, ii. 307.
 
 56o 
 
 Const itutio7ial History. 
 
 [chap. 
 
 Homage for of France: and as dukes of Aquitaine, counts of Poictou, and 
 
 Normandy. _ ... 
 
 counts of Anjou, Henry II and his sons stood in still more com- 
 plicated feudal connexion. The Norman kings had avoided as 
 much as possible even the semblance of dependence. The Con- 
 queror was not called on after the Conquest to do homage to 
 his suzerain, and William E,ufus never was duke of Normandy. 
 Henry I claimed the duchy during the life of Robert, but he 
 avoided the necessity of the ceremony by making his son receive 
 the formal investiture ^ ; and Stephen followed the same plan, to 
 secure Normandy for Eustace^. In these cases the royal dig- 
 nity was saved by throwing the duty of homage upon the heir ; 
 David king of Scots had allowed his son Henry to take the oath 
 to Stephen, and thus avoided a ceremony which, although it 
 might not have humiliated, would certainly have compromised 
 Homage of him ^. Henry II had performed all the feudal ceremonies due 
 Normandy, to Lewis YYL before he obtained the English crown* ; and on 
 Aquitaine. the succession of Philip would willingly have devolved the re- 
 newal of hemage on the sons amongst whom his great foreign 
 dominion was to be divided ^ When however, after the death 
 of his eldest son, he found himself in 1183 obliged to make a 
 fresh settlement of his estates, with that politic craft which he 
 embodied in his saying that it was easier to repent of words 
 than of deeds, he sacrificed his pride to his security, and did 
 formal homage to his young rival ". Richard had done the 
 same before his accession, and was not called on to repeat it ''. 
 Homage of John, after in vain attempting to avoid it, and after seeing 
 Arthur invested with Noiniandy and the other paternal fiefs, 
 yielded, as his father had done, to expediency, and performed in 
 
 • William the Etheling did homage for Normandy in 11 19. Cent. F. 
 Wi?. ; W. Mahnosl). (;. U. v. § 419. 
 
 ' In 11.^7: Hon. Hunt. fol. 232 ; Hoveden, i. 192. 
 ' Hen. liunt. fdl. 221, 222; Hoveden, i. 190, 191. 
 
 * He did lioniago for Normandy in 1151 to Lewis VII. R. de Monte 
 (Bouquet, xiii. 292). 
 
 '' The younger Henry acted as seneschal of France at the coronation of 
 Philij) II. Beticd. i. 242. 
 
 •"■ Hoveden, ii. 284; Bcned. i. 306. 
 
 '' At loawt no mention is made of the rej)etition of the ceremony in the 
 account of hia interview with Philip immediately after his father's death, 
 Bened. ii. 74.
 
 XIII.] Resignation of the Crown. 561 
 
 A.D. 1200 the homage which was a few years hiter made one of 
 
 the pleas for his forfeiture ^. His mother was still alive, and 
 
 from her he chose to hold Aquitaine, she in her turn doing the 
 
 homage to the suzerain'-. 
 
 If the roval consecration was supposed to confer such dignity Disparape- 
 • ,.1 ., .„ .,11- /merit of the 
 
 that it was a point 01 honour to avoid, if possible, the simple Crown by 
 
 suiTGndGr. 
 ceremonies of homage and fealty for fiefs for which it was justly 
 
 due, it was only in the greatest emergency and under the most 
 humiliating circumstances that the wearer of the crown could 
 divest himself of his right and receive it again as the gift of his 
 temporary master. Yet this, if we are to believe the historians, 
 happened twice in the short period before us. Richard was Cases of 
 compelled to resign the crown of England to Henry VI during John. 
 his captivity ; and John surrendered his kingdom to Inno- 
 cent III : in both cases it was restored as a fief, subject to 
 tribute : and in the former case the bargain was annulled by 
 the emperor before his death, although Richard was regarded 
 by the electors who chose Otto IV as one of the principal 
 members of the empire '. It has been stated that Henry II 
 made a similar surrender, or took a similar oath to the pope 
 on the occasion of his absolution at Avrauches : this however No such act 
 was not the case; the fealty which he swore was merely promised Henry II. 
 to Alexander III as the Catholic pope, not as his feudal lord, 
 and the oath simply bound him not to recognise the antipope*. 
 John during his brother's life was said to have undertaken to 
 hold the kingdom as a fief under Philip II if he would help him 
 to win it ; but this may have been a mere rumour '''. It can view of the 
 scarcely be thought probable that either Henry VI or Inno- empeiw. 
 cent III, although both entertained an idea of universal empire, 
 deliberately contrived the reduction of England to feudal 
 dependence ; both took advantage of the opportunity which 
 
 ' ' Recepit homagiiun regis Angliae de omnibus terris et feodis et 
 tenementis quae unquam rex Ricardus aut Henricus pater ejus tenuit de eo 
 vel de praedecessoribus suis ;' R. Coggeshale, p. 172. Cf. Hoveden, iv. 115. 
 
 ^ Rot. Chart, p. 130; Rigord (Bouquet, xvii. 50); W. Covent. ii. 
 pref. xxsiv. ^ Hoveden, iii. 202, 203 ; iv. 37, 3S. 
 
 * It is not clear however that the pope did not intend Henry to bind 
 himself to homage and fealty, and so to hold the kingdom of the papacy. 
 See Robertson's Eecket, p. 303. ' Hoveden, iii. 204.
 
 5^2 Constitutional History. [chap. 
 
 Humiliating deprived their victims for the moment of the power of resistance. 
 
 character of . 
 
 the act. Kichard made his surrender with the advice of his mother, his 
 most experienced counsellor ; and John accepted his humiliation 
 with the counsel and consent of all jiarties, bitterly as they felt 
 it, and strongly as they resented the conduct by which he had 
 made it necessaiy ^. In neither case would much heroism have 
 been shown by resistance to the demand : Richard's misfortune 
 and John's misgovernment had left them practically without 
 alternative. 
 
 Disuse of The ceremonial attributes and pomp of royalty changed but 
 
 the corona- ,.,, ,, . rmc 
 
 tion-days. little under these sovereigns, ihe lorm and matter oi the 
 coronation service remained, so far as we have documentary 
 evidence, unaltered : Henry II during his first three yeai's wore 
 his crown in solemn state on the great festivals, though he so far 
 varied the ancient rule as to hold his court on those days at 
 S. Edmund's, Lincoln, and Worcester: but after a.d. 1158 he 
 gave up the custom altogether. Richard only once, after his con- 
 secration, wore his crown in state ; and John went through the 
 ceremony twice, once on the occasion of his wife's coronation ^. 
 The venerable practice was distasteful to Henry II, who dis- 
 liked public ceremonial and grudged needless expense. Richard's 
 constant absence from England, and John's unfriendly relations 
 with Archbishop Langton and the barons, prevented its revival. 
 
 The custom The improvement in the legal machinery of the kingdom had 
 deprived it of its former usefulness, and the performance of the 
 grand serjeanties which were due at the coronations might by 
 agreement take ])lace on other occasions, as at the great court 
 
 Pomp of held at (Juildford in 1186 ^. In other points both Richard and 
 
 John. John showed themselves inclined to advance rather than abate 
 
 the pomp of their position. Richard is the first king who 
 regularly uses the plural ' wc' in the granting of charters; John, 
 
 ' Matthew Pariw Hays that the Hurrender was made by the unanimous 
 consent of all i)artie.s (p. 235). The P.arnwell canon, copied by Walter of 
 Coveiitry, allows that the act was politic, although it appeared to many an 
 •ignominious and enormous yoke of slavery' (ii. 210). In the document 
 itself .fohn states tliat he acts ' communi consilio baronum suorum.' 
 
 ^ Jlovedcn, iv. 169, 182; above, p. 517. 
 
 ^ lienedict, ii. 3 ; above, p. 489, n. 4.
 
 XIII.] Jiegency in the K'wrjs Absence. ^^6^) 
 
 as we have seen, is tlie first who formally calls himself the king johu is loic 
 of the land instead of the king of the people. 
 
 The long ahsences of the kings threw additional power, or a Rcg-ency in 
 firmer tenure of power, into the hands of the justiciars. Yet it absence. 
 may be questioned whether Henry II did not contemplate the 
 institution of a jn-actice according to which either himself or his 
 eldest son should be constantly present in England. The younger The .voiuifrer 
 Henry is found, both before and after his coronation, acting in 
 his father's pLice : not only as the centre of courtly pomp, but 
 transacting business, issuing writs, presiding in the Curia, and 
 discharging other functions which seem to belong to regency \ 
 During the interregnum which followed Henry's death, his Queen 
 widow acted in her son's name, proclaiming his peace and 
 directing the oaths of fealty to be taken to him ; and during his 
 captivity she is found at the head of the administration both 
 in England and Normandy, acting with rather than through 
 the justiciai'. John, after the fall of Longchanip in 1 191, was John, 
 recognised by the barons as ruler of the kingdom ' in his 
 
 brothei''s stead. These facts seem to indicate that the viceregal The justi- 
 ciar, 
 character which the justiciar certainly possessed, was not with- 
 out its limits : whilst from the fact that earl Robert of Leicester 
 is found acting together with the justiciar Eichard de Lucy^ 
 during the absence of Henry and his sons, it may be argued that 
 the king avoided trusting even that most loyal servant with a 
 monopoly of ministerial power. But we have not sufficient 
 evidence to define the exact position of either the members of 
 the royal family or the justiciar ; and it is very probable that it 
 was not settled even at this time by any other rule than that of 
 temporary convenience. 
 
 159. The national council under Henry II and his sons seems 
 
 ^ He was present at Becket's election to the primacy ip 11 62; E. de 
 Diceto, c. 532 : also when Becket reeeiveil the quittance, in the Exchequer, 
 of his accounts as chancellor; Vita S. T. C, Grim, p. 15; Rotter of Pon- 
 tiajny, pp. 107, loS. He must have been quite an infant at the time. After 
 his coronation he had a cliancellor and a seal-bearer or vice-chancellor, and 
 that at a time when his father had dispensed with a chancellor. 
 
 ^ ' Summus rector totius regni ;' R. Devizes, p. 38 ; above, p. 500. 
 
 ' As for example in 1 165, when he refused the kiss of peace to the arch- 
 bishop of Cologne as a schismatic ; R. Diceto, c. 539. 
 
 2
 
 5^4 Constitutional History. [chap. 
 
 The national in one aspect to be a realisation of the principle wliich was intro- 
 
 two aspects ; duced at the Conquest, and had been developed and grown into 
 
 court and as consistency under the Norman kings, that of a complete council 
 
 towards the of feudal tenants-in-chief. In another aspect it appears to be in 
 
 tionof " a stage of transition towards that combined representation of 
 
 the three estates and of the several provincial communities 
 
 w^hich especially marks our constitution, and which perhaps was 
 
 the ideal imperfectly grasped and more imperfectly realised, at 
 
 which the statesmen of the middle ages almost unconsciously 
 
 aimed. The constituent members of this assembly are the same 
 
 Gradual as under the Norman kings, but greater prominence and a more 
 
 the position definite position are assigned to the minor tenauts-in-chief ; there 
 
 tenants. is a growing recognition of their real constitutional importance, 
 
 a gradual definition of their title to be represented and of the 
 
 manner of representation, and a growing tendency to admit not 
 
 only them, but the whole body of smaller landowners, of whom 
 
 the minor tenants-in-chief are but an insignificant portion, to the 
 
 same rights. This latter tendency may be described as directed 
 
 towards the concentration of the representation of the counties 
 
 in the national parliament, — the combination of the shiremoots 
 
 with the witenagemot of the kingdom. 
 
 Possible ar- The royal council, as distinct from the mere assembly and 
 
 of the court of the household, might consist of either the magnates, the 
 
 greater barons, the ' pi'oceres ' of the Conqueror's reign ; or of 
 
 the whole body of tenants-in-chief, as was the accepted usage 
 
 under Henry II ; or of the whole body of landowners, whoever 
 
 their feudal lords might be, which was the case in the great 
 
 councils of 1086 and 11 16, and which, when the representative 
 
 principle was fully recognised, became the theory of the medieval 
 
 constitution. These three bodies were divided by certain lines, 
 
 The (greater although those lines were not very definite. The greater barons 
 
 and lesser , , , , , . 
 
 barons. held a much greater extent of land than the mmor tenants-in- 
 chief : they made a separate agreement with the Crown for their 
 reliefs, and probably for their other payments in aid * ; they had 
 as we learn from Magna Carta, their several summonses to the 
 great councils, and they led their vassals to the host under their 
 • Dialogiis de Scaccario, ii. cc. 10, 24.
 
 XIII.] The National Council. 565 
 
 own banner. The entire body of tenants-iu-chief included besides The entire 
 
 , body of 
 
 these the minor barons, the knightly body, and the socage tenants tenants-in- 
 of the crown, who paid their reliefs to the sheriff, were sum- 
 moned to court or council through his writ, and appeared under 
 
 his banner in the military levy of the county. The general body Thp general 
 "^ / . liodyoffree- 
 
 of freeholders comprised, besides these two bodies, all the feudal iioUiers. 
 
 tenants of the barons and the freemen of the towns and villages, 
 
 who had a right or duty of appearing in the county court, who 
 
 were armed in the fyrd or under the assize of arms, who wei'e 
 
 bound to the Crown simply by the oath of allegiance taken in 
 
 the shiremoot, and were qualified to determine by their sworn 
 
 evidence the rights of their neighbours, the assessment of their 
 
 goods, and the report of their neighbourhood as to criminals. 
 
 These three possible assemblies may be regarded again as the Ordinary, 
 
 assembly in its ordinary, extraordinary, and theoretical form : dinary, and 
 
 • 1 •! 11 -111 theoretical 
 
 the natioual council usually contained only the magnates ; on forms. 
 great occasions it contained the whole body of the tenauts-in- 
 chief ; in idea it was the representation of the nation ; and on one 
 or two very rare occasions that idea was jiartiully realised. But 
 there were departments of national action in which the uncer- 
 tainty and indefiniteness of such a theory were inadmissible. 
 For the payment of taxes all men must be brought under con- 
 tribution ; for the efficiency of the national host all men must be 
 brought together in arms. For the first of these pur])0ses they 
 might be visited in detail, for the second they must be assembled 
 in person. Accordingly we find that the military levies in which Military 
 Henry II brought together the whole kingdom in arms, as for general as- 
 
 . . . . . semblyof 
 
 the siege of Bridgnorth in 1155 or for the expedition to the nation. 
 Normandy in 1177, may have really been steps towards the 
 assembling of the nation for other purposes ; and when, as in 
 the latter case, we find the king acting by the counsel of the 
 assembled host \ we recur in thought to that ancient time when 
 
 ' Benetl. i. 178: ' Venerunt etiam illue ad eum comites et barones et 
 milites regni per summonitionem suani, paniti eqiiis et arinis secuin trans- 
 fretare in Nornianniam. . . . Congregatis itaijue omnibus in urlie Wintoniae 
 rex pfr consilium coram transfretationeni suam distulit.' Immediately 
 after, the ' consiliarii ' of the king ai-e mentioned as advising him about the 
 garrisons of the castles.
 
 566 
 
 Constitutional History. 
 
 [chap. 
 
 National 
 concentra- 
 tion in arms, 
 
 Constitution 
 of the 
 national 
 council as 
 stated ill 
 the Great 
 Charter. 
 
 A staRe of 
 transition. 
 
 Writs of 
 suiniuons. 
 
 tlie only general assembly was that of the nation in arms. But 
 the nation in arms was merely the meeting of the shires in 
 arms : the men who in council or in judgment made up the 
 county court, in arms composed the ' exercitus scii'ae :' on 
 occasion of taxation or local consultation they were the wise 
 men, the legales homines of the shiremoot. The king's general 
 council is then one day to comjDrise the collective wisdom of the 
 shires, as his army comprises their collective strength. But it 
 is very rarely as yet that the principle of national concentration, 
 which has been applied to the host, is applied to the council. 
 
 The point at which the growth of this principle had arrived 
 during the period before us is marked by the fourteenth article 
 of the Great Charter : ' To have the common council of the 
 kingdom' for the assessment of extraordinary aids and scutages, 
 ' we will cause to be summoned the archbishops, bishops, abbots, 
 earls, and greater barons singly by our letters ; and besides we 
 will cause to be summoned in general by our sherififs and bailiffs 
 all those who hold of us in chief; to a certain day, that is to 
 say, at a term of forty days at least ; and to a certain place ; 
 and in all the letters of such summons we will exj)ress the cause 
 of the summons ; and the summons having been so made, the 
 business shall on the day assigned proceed according to the 
 counsel of those who shall be present, although not all who have 
 been summoned shall have come.' The council is thus no 
 longer limited to the magnates : but it is not extended so as to 
 include the whole nation, it halts at the tenants-in-chief : nor 
 are its functions of advising on all matteis recognised, it is 
 simply to be assembled for the imposing of taxation. The pro- 
 vision, that the (lotcrmiiiation of the members present shall be 
 regarded as the i)rocccding of the whole l)ody summoned, enun- 
 ciates in words the principle wliich bad long been acted upon, 
 that absence, like silence, on sucli occasion implies consent. 
 
 The use of a written sunmions to call together the council 
 must have been very ancient, but we have no evidence of the 
 date at which it became tlie rule;. The great courts held on tlie 
 festivals of the Church might not indeed require such a sum- 
 mons, but every s])ecial assembly of the sort — and very many
 
 XIII.] Writs of Summons. ^6y 
 
 such occur from the earliest days of the Norman reigns — must Two sorts or 
 
 . •'. . ° writs of 
 
 have been convoked by a distinct writ. Such writs were of summons: 
 ,.,, „ ., 11' 1 ^^^ special, 
 
 two kinds : there was first a special summons declaring the 
 
 cause of meeting, addressed to every man whose presence was 
 
 absolutely requisite ; thus for the sessions of the Exchequer each 
 
 of the king's debtors was summoned by a writ declaring the 
 
 sum for which he was called upon to account ' : and secondly and the 
 
 general. 
 there was a general summons such as those addressed to the 
 
 several counties through their sheriffs to bring together the 
 
 shiremoot to meet the justices or the officers of the forest ^. 
 
 The former was delivered directly to the person to whom it 
 
 was addressed ; the latter was proclaimed by the servants of 
 
 the sheriff in the villages and market towns, and obeyed by 
 
 those who were generally described in the writ itself, as their 
 
 business, inclination, or fear of the penalty for non-attendance, 
 
 might dispose them. On this analogy the writs of summons to Summons of 
 
 ° . ^"^ theereatcr 
 
 the national council were probably of two sorts : those barons who barons. 
 
 in their military, fiscal, and legal transactions dealt directly with 
 
 the king were summoned by special writ : those tenants-iu-chief Summons of 
 ° •' '^ _ the mmor 
 
 who transacted their business with the sheriff were convened, tenants. 
 not by a writ in which they were severally named, but by a 
 general summons. Of the greater barons the first person sum- ^^^^gP^^^^^g 
 moned was the archbishop of Canterbury, and it is from the 
 mention by the historians of the offence offered to Becket by 
 neglecting this customary respect that we learn the existence of 
 the double system of summons in tlie early years of Henry II ^. 
 The Pipe Rolls however contain very frequent mention of pay- 
 ments made to the summoners, and that in direct connexion with 
 meetings of the council''. In 1175 Henry went so far as to 
 forbid those who had been lately in arms against him to a})pear 
 at his court at all without summons'^. It is a strange thing tliat 
 
 * See tlie chapters on Summons in tho Dialo;|US de Scaccario, i. cc. i, 2. 
 
 ^ Such are the ' counnune.s suinmouitiones ' mentioned in Ait. 44 of the 
 Great Charter. 
 
 ^ See above, p. 4C1J. There is still earlier' evidence of the special sum- 
 mons; Gilbert Foliot, in reference to the homage and oaths taken to 
 the empress, tays, 'eorum nainque qui statute consilio propriis, ut dicitur, 
 consueverant appellari nominibus, nemo plane relictus est qui non ei con- 
 silium de obtinendo et tuendo post regis obitum regno . . . promitteret. 
 S. T. C. V. 98. * P. 467, note 3. * See above, p. 483.
 
 ^68 Constitutional History. [chap. 
 
 First extant SO very few of these early writs are now in existence : the most 
 ancient that we have is one addressed to the bishop of Salisbury 
 in 1205, ten years before the granting of the charter. This 
 document fixes the date of the assembly, which is to be held at 
 London on the Sunday before Ascension Day, and the cause of 
 the meeting, which is to discuss the message brought by the 
 envoys from Philip of France ; and it also contains a clause of 
 general summons, directing the bishop to warn the abbots and 
 priors of his diocese to be present on the occasion ^ Of the general 
 forms of summons addressed to the sheriffs, we have no speci- 
 mens earlier than the date at which representative institutions 
 had been to a great extent adopted ; buf if we may judge of 
 their tenour from the like writs issued for military and fiscal 
 purposes, they must have enumerated the classes of persons 
 summoned in much the same way as they were enumerated in 
 the writs ordering the assembly of the county court '^. Of this 
 
 Summons of howcver it is impossible to be quite certain. That the coimty 
 
 the county t „„, „ . 
 
 court. court had a special form of summons for the purpose of taxation 
 
 we learn from a writ of Heiuy I, which has been already 
 quoted ^. It is probable that the clause of Magna Carta repre- 
 sents no more than the recognised theory of the system of sum- 
 mons ; a system which was already passing away ; for besides 
 that council at S. Albaii's in 12 13 in which the several town- 
 ships of royal demesne were represented as in the county court 
 by the reeve and four best men, a council was called at Oxford 
 Summons of in the same year in which each county was represented by four 
 kniKhts in discreet men, who were to attend on the king ' to talk with him 
 on the business of the kingdom.' In the writ by which this 
 council is summoned, and which is dated on the 7th of No- 
 vember at Witney, wc have the first extant evidence of the 
 representation of the counties in the council'* ; they were already 
 accustomed to elect small numbers of knights for legal and fiscal 
 purposes, and the practice of making such elections to expedite 
 
 ' Select ChartLTH, p. 274. 
 
 ^ Examples, of the reign of Henry III, are in the Select Charters, pp. 
 334, 349. 365. &c. 
 
 ^ Above, p. 393. * Select Charters, p. 279; above, p. 528.
 
 XIII.] Constitution of Councils. 569 
 
 the' proceedings of the itineraut justices is confirmed by the 
 Great Charter itself. It is then just possible that the 14th 
 clause may have been intended to cover the practice of county 
 representation which had been used two years before. The 
 further development of the system belongs to a later stage of 
 our inquiries. 
 
 The character of the persons summoned requires no com- Members of 
 ment : the archbishops and bishops were the same in number as 
 before, but the abbots and priors were a rapidly increasing body. 
 The number of earls increased very slowly : it may be questioned 
 whether Henry II founded any new earldonjs, or whether the 
 two or three ascribed to him were not merely those which, 
 having been created by his mother or Stephen, he vouchsafed to 
 confirm ^ None were created by Richard ; and by John only Earldoms 
 the earldom of Winchester, which was founded in favour of one baronies, 
 of the coheirs of the earldom of Leicester, the latter title being 
 taken by the other coheir. The number of great baronies how- 
 ever was probably on the increase, although we have not suf- 
 ficient data, either as to the possessors or as to the exact character 
 of such baronies, to warrant a very positive statement. The Minor 
 number of minor tenants-in-chief who attended cannot even clergy, 
 be conjectured : but, as the clergy of inferior dignity formed 
 an appreciable part of the council, it is probable that the 
 knights who, without j'et jiossessing a representative chai'acter, 
 came up from the shires in consequence of the general sum- 
 mons, were a considerable body : and sometimes they were very 
 numerous. The presence of a large number of deans and arch- 
 deacons is mentioned on some special occasions", which seem to 
 indicate a plan of assembling the three estates in something like 
 
 * William of Albini of Arundel was made earl of the county of Sussex 
 by ch.arter II55 ; and Aubrey de Verc, earl of Oxford, about tlie same time. 
 Henry contirnied the earldoms of Norfolk and Hereford, and the grant to 
 Aubrey de Vere was no doubt a confirmation also. Richard gave charters 
 to William of Arundel and Koger Bigod : John restored the earldom of 
 Hereford in favour of Henry de Bohun, and created that of Winchester for 
 Saer de Quincy. See the Fifth Report ou the Dignity of a Peer, App. 
 pp. 1-5- 
 
 * For example on the occasion of the Spanish award in 11 77, Bened. i. 
 145 ; and at S. Paul's in 1213, M. Paris, p. 240.
 
 51^ 
 
 Constitutional History. 
 
 [chap. 
 
 Times of 
 
 holding 
 
 councils. 
 
 iS'aine of 
 parliament. 
 
 Suhiccts of 
 dflioeration, 
 
 completeness : but we have uo reason to suppose that they were 
 ever summoned as a matter of right or as tenants-in-chief. 
 
 The times of assembly were very irregular. In many cases, 
 especially in the early years of Henry II, they coincided Avith the 
 great festivals, or with the terminal days which were already 
 beginning to be observed by the lawyers. But so gi'eat a num- 
 ber of occasional councils were called by Henry, and so few by 
 his sons, that obviously no settled rule can have been observed. 
 And the same remark is true as regards the place of meeting. 
 The festival courts were still frequently kept at "Winchester and 
 Westminster ; but for the great national gatherings for homage, 
 for proclamation of Crusade, or the like, some central position, 
 such as ISTorthampton or its neighbourhood, was often prefei'red. 
 Yet some of Henry Il's most important acts were done in 
 councils held in the forest palaces, such as Clarendon and Wood- 
 stock. Richard's two councils were held in middle England, 
 one at Pipewell in Northamptonshire, the other at Nottingham ; 
 both places in which the weariness of state business might be 
 lightened by the royal amusement of the chase. 
 
 The name given to these sessions of council was often ex- 
 jiressed by the Latin colloq^iiuvi ^ : and it is by no means 
 unlikely that the name of parliament, which is used as early as 
 1 1 75 by Jordan Fantosme ^, may have been in common use. 
 But of this we have uo distinct instance in the Latin Chroniclers 
 for some years further, although when the term comes into use 
 it is applied retrospectively ; and in a record of the twenty- 
 eighth year of Henry III the assembly in which the Great Charter 
 was granted is mentioned as the ' Parliamentum Kunimedae.' 
 
 The subjects on which the kings asked the advice of the body 
 thus constituted were very numerous ; it might almost seem 
 that Henry II consulted his court and council on every matter 
 of importance that arose during his reign ; all the business that 
 Kichard personally transacted was done in his great councils ; 
 
 ' E. g. M. PariH, p. 240. 
 
 ^ Jordan KantoHiiio, j>. 14. It is used also by Wace. It is applied 
 by Otto Morena to tlio diet or parliament of llonca<,dia held by Frederick 1 
 in 1154- ; Leibnitz, Scr. Her. Brunswic. i. 809. It is first used in England 
 by a contemporary writer in 1246, namely by M. Paris, p. 696 : see Hody, 
 History of Convocation, p. 326.
 
 xiir.] Subjects of Deliberation. ^yi 
 
 aud even John, who acted far more in the manner and spirit of" General dc- 
 a despot than did his father or brother, did little in the first 
 half of his reign without a formal show of respect towards his 
 constitutional advisers. Nor is there any reason to su])pose that 
 such a proceeding was, in the great proportion of instances, 
 merely a matter of form : a sovereign who is practically absolute 
 asks counsel whenever he wants it ; and such a sovereign, if he 
 is a man of good sense, with reason for self-confidence, is not 
 trammelled by the jealousies or by the need of self-assertion 
 which are inseparable from the position of a monarch whose 
 prerogatives are constitutionally limited. Hence it was per- Miseella- 
 liaps that those kings, besides constantly laying beiore their ters. 
 barons all questions touching the state of the kingdom^, — 
 matters of public policy such as the destruction of the illegal 
 castles and the maintenance of the royal hold on the for- 
 tresses, matters relating to legislation, to the admiiiistratiou of 
 justice, to taxation, and to military organisation, — also took 
 their opinion on peace and war, alliances, royal marriages, 
 and even in questions of arbitration between foreign powers 
 which had been specially referred to the king for decision^. Of 
 such deliberations abundant instances have been given in the 
 last chapter. It is very rarely that any record is preserved of 
 opposition to or even remonstrance against the royal will. In Opposition 
 1 175 Richard de Lucy ventured to remind Henry II, when he will. 
 was enforcing the law against the destroyers of the forests, that 
 the waste of vert and venison had been authorised by his own 
 writ ; but his mediation was summarily set aside ^ : the remon- 
 strances likewise of the one or two counsellors who during the 
 Becket quarrel interposed on behalf of the archbishop, were 
 either tacitly disregarded or resented as an advocacy of the king's 
 enemy. Still less are we to look for any power of initiating 
 
 ' Such was the assembly at Bermondsey in 1154 ' de statu regni :' 
 Gervase, c. 1377: tliat 'de statutis regni' at London in 1170, and that 
 at Northampton in 1 1 7^) ; Bened. i. 4, 107. 
 
 - In 1 1 76 Henry II consulted his council before assenting to the mar- 
 riasre of his daughter Johanna; in 11 77 he consulted the great a.«senibly of 
 feudal tenants hekl at Winchester, on the expediency of proceecUns with 
 the war. In il-;5 he had consulted them on an expedition to Ireland. 
 In 1 177 he took their advice on the Spanish arbitration. Benedict, i. 116, 
 142, 178 ; R. dc Monte, a.d. 1155. ' Bened. i. 94.
 
 ^1"^ 
 
 Conditiitional Histori/. 
 
 [chap. 
 
 Position of 
 the justiciar 
 as spokes- 
 man of the 
 council. 
 
 I'osition of 
 the Church 
 councils. 
 
 measures of either public policy or particular reform in any 
 hands but those of the kiug^. The justiciar however probably 
 advised the king on all these matters, and perhaps suggested 
 the administrative changes which he had to work out in their 
 details ; in this respect acting as the spokesman of the barons, 
 as the archbishop acted as the spokesman of the Church, and 
 exercising over the king a less overt but more effectual in- 
 fluence than could have been asserted by the barons except at 
 the risk of rebellion. John certainly chafed under the advice of 
 the justiciar, without venturing to dismiss him. In all these 
 matters the regard, even if merely formal, shown by the king to 
 the advice and consent of his barons has a constitutional value, 
 as affording a precedent and suggesting a method for securing 
 the exercise of the right of advising and consenting when the 
 balance of power was changed, and advice and consent meant 
 more than mere helpless acquiescence. The part taken by the 
 national council in legislation, taxation, and judicature may be 
 noticed as we proceed Avith the examination of those departments 
 of public work. 
 
 The ecclesiastical councils of the period did their work with 
 very little interference from the secular power, and with very 
 little variation from the earlier model. Their privilege of legis- 
 lating with the royal acquiescence was not disputed, and their 
 right to a voice in the bestowal of their contributions toAvards 
 the wants of the state came into gradual recognition in the reign 
 of John : but although his expedients for the raising of money 
 may now and then have served as precedents u2:)on which the 
 claim to give or to refuse might be raised on behalf of the 
 several orders in Church and State, no complete system of 
 separate action by the clergy on secular matters was as yet de- 
 vised, nor was tlicir position as a portion of the common council 
 of i\\v rcabii (Icliiicd l»y ilie Great Charter apart from that of 
 the other tcnants-in-chief. The tlicory of the Three Estates had 
 yet to be worked into practice ; although there were signs of its 
 growing importance. 
 
 * Yet the assize of uicaHures in 1197 was made not only with the advice 
 but by i\\Q j)dition of the magnates. fcSee i)agc 575.
 
 XIII.] Assizes of Henry II. 573 
 
 160. Great as was the legal reputation of Heury II, and greatly Legislation, 
 as the legal system of England advanced under him and his 
 sons, tlie documcntaiy remains of the legislation of the period are 
 very scanty. The work of Gllauvill is not a book of statutes, 
 but a manual of practice ; and although it incorporates no doubt 
 the words of ordinances which had the force of laws, it nowhere 
 gives the literal text of such enactments. The formal edicts Form of 
 known under the name of Assizes, the Assizes of Clarendon and the Assize. 
 Northampton, the Assize of Arms, the Assize of the Forest, and 
 the Assizes of Measures are the only relics of the legislative 
 work of the period. These edicts are chiefly composed of new 
 regulations for the enforcement of royal justice. They are not 
 direct re-enactments or amendments of the ancient customary 
 law, and are not drawn up in the form of pei-petual statutes : 
 l)ut they rather enunciate and declare new methods of judicial 
 procedure, which would either work into or supersede the pro- 
 cedure of the common law, whether practised in the popular or 
 in the feudal courts. In this respect they strongly resemble 
 the Capitularies of the Frank kings, or to go farther back, the 
 edicts of the Roman praetors : they might indeed, as to both 
 form and matter, be called Capitularies. The term Assize, which 
 comes into use in this meaning about the middle of the twelfth 
 centur}', both on the Continent and in England, appears to be 
 the proper Norman name for such edicts ^ ; but it is uncertain 
 
 ' Looking at the word asnsa simply we might incline to retjard it as 
 the li-x assiiia or sentcntia assisa, the settled edict of the king, just as the 
 redditus assism was tlie fixed or assessed rent of an estate. It is however 
 used so early in the sense of a session that the former cannot be regarded 
 as the sole explanation. In the Assize of Jerusalem it simply means a law: 
 and the same in Henry's legislation. Secondarily, it means a form of trial 
 established by the particular law, as the Great Assize, the Assize of Mort 
 d'Ancester ; and thirdly, the court hekl to hold such trials; in which sense it 
 is commonly used at the present day. Yet it occurs in the Norman law books 
 in the twelfth century, and apparently in the Pipe Roll of 2 Hemy II, in the 
 sense of a session, and that is taken by many antiquaries as the priinarymean- 
 ing. The formation of assisus fi-om a barbarous use of assido or assideo (instead 
 of assessus) might be paralleled with the derivation of tolta in malatolta 
 from tollo in the sense of taking toll ; but the word accido, to tax, may, so 
 far as the assisus j-cdditits is concerned, be the true origin of this form, as 
 it is of the modern excise. On the other hand, it is impossible not to 
 associate the assize of Henry II with the asetniss of Ina and Edmund. 
 Possibly the use of the word in so many senses may point to a confusion 
 of three different origins. Cf. the derivation of taxv, to tax, from rdaaw,
 
 574 Constitutmial History. [chap. 
 
 Origin of the whether it received this particular application from the mere 
 fact that it was a settlement like the Anglo-Saxon asetniss or 
 the French etahlissement, or from a verbal connexion with the 
 session of the court in which it was passed, or from the fact that 
 it furnished a plan on which sessions of the courts reformed by 
 it should be held. The assize thus differs widely from the 
 charter of liberties, the form which the legislation of Henry I 
 and Stej)hen had taken, and is peculiar in English history to 
 the period before us, as the form of Provisions marks the legis- 
 lative period of Henry III, and that of Statute and Ordinance 
 
 Its character belongs to that of Edward I and his successors. It possesses 
 
 of edict or .,.„,. 
 
 <iecree. moreover the characteristic ot tentative or temporary enact- 
 
 ment, rather than the universal and perpetual character which a 
 law, however superficially, seems to claim ^ : its duration is 
 specified in the form ; it is to be in force so long as the king 
 pleases ; it may have a retrospective efficacy, to be applied to 
 the determination of suits which have arisen since the king's 
 accession, or since his last visit to England ^ ; it is liable to be 
 set aside by the judges where they fuid it impossible to ad- 
 minister it fairly. But, on the other hand, it is to the assize 
 that the most important legal changes of the period owe their 
 origin : the institution of jury and the whole procedure of the 
 Curia Regis can have come into existence in no other way. 
 In the di-awing up of the assize, the king acted by the advice 
 
 to ordain, or regulate : and the use of the word tallare = accidere, taxarc. 
 The form osslsia suggests further difficulties, but there is no reason to look 
 for an Arabic derivation, as is done in the editions of I)u Cange. 
 
 * The special sanctity of the term law, as used in Holy Scripture and in 
 the Roman jurisprudence, may p; rliaps account for the variety of expres- 
 sions, such as tliose (pioted above, by means of which men avoided giving 
 the title of law to tlieir occasional enactments. The Assizes of England, 
 Jerusalem, Sicily, and Itomania, the Establishments of S. Lewis, the 
 Recesses of the German diets, and many other like expressions, illustrate 
 this reluctance. 
 
 '■^ The Assize of f !hucndon is to be held good as long as it pleases the 
 king. Tliat of Nortliatn])ton directs inquiry into disseisins made since the 
 king's last coming to England ; and the view of this Assize is to extend 
 from the date of the Assize of ( Jlarcndon to tlie time of its own publication ; 
 ' atenobit a tern[iore (pio a>sisa facta fiiit apud Clarendonam continue usque 
 ad hoc tempus.' Ricliani's Assize of Measures was set aside by the justices 
 because the merchants declared it to be impracticable. Sec Select Char- 
 ters, pp. 1 39, 144 ; Hoveden. iv. 172. John's Assize of Wiues was set aside 
 in the same way; ibid. p. 100.
 
 xin.] Legislation. 575 
 
 and consent of bis national council. This is distinctly stated in Assizes 
 the preamble or title of the Assizes of Clarendon and Wood- the counsel 
 
 , 1,1/. • ^ , -I 1 • • • and consent 
 
 stock : tlie lormer is made ' de assensu arcluepiscoporuni, epi- of the 
 scoporum, abbatum, comitum, baronum, totius Angliae^;' the 
 latter ' per consilium et assensura archiepiscoporum, episcoporum 
 et baronum, comitum et nobilium Angliae^.' The Assize of 
 Northampton Avas the woik, -we are told, of the king, made by 
 the counsel of King Henry his son and by the counsel of his 
 earls, barons, knights, and vassals (homines) in a great council, 
 consisting of bishops, earls, barons, and the rest, held ' de statutis 
 regni ^.' The ordinance by which trial by the Great Assize 
 was instituted, was, according to Glanvill, an act of royal bene- 
 ficence, bestowed on the nation by the clemency of the jjrince 
 
 according to the counsel of the magnates *. The Assize of Mea- instances of 
 
 Assizes* 
 sures was issued in the name of Richard I by the justiciar in 1 197, 
 
 as made by the lord Richard king of England at Westminster, 
 although the king was at the time in France, by the petition 
 and advice of his bishops and all his barons^. In this act of 
 legislation the justiciar represented the king. The iustnictions 
 given to the itinerant justices had likewise the force of laws, and 
 might with justice be termed Assizes. They too were issued by 
 the justiciar in the king's absence, and contained old as well as 
 new regulations for the courts. The Assize of Arms issued in 
 1 181 is not distinctly said to be framed under the advice of the 
 council, and it may possibly have been regai'ded by the barons 
 with some jealousy as putting arms into the hands of the people ; 
 but when John in 1205 summoned the nation to arms in con- 
 formity with the principle embodied in his father's assize, he 
 declares that it is so pi'ovided with the assent of the 'arch- 
 bishops, bishops, earls, barons, and all our faithful of England ".' 
 These instances are sufficient to prove the share taken by the 
 national council in legislation. The duty of proclaiming the 
 law in the country fell upon the sheriffs and the itinerant 
 
 ' Select Charters, p. 137. * Ibid. p. 150. ^ Ibid. p. 124. 
 
 * ' Est autein magna assisa regale quoddam beneficium, dementia prin- 
 cipis de consilio procerum populis iiidultum.' Glanvill, ii. c. 7. 
 
 * Hoveden, iv. 33. « Select Cku-ters, p. 273.
 
 57^ Constitutional History. [chap. 
 
 I'roclama- iustices, whose credentials contained perhaps the first sfeneral 
 
 tionofthe . ° 
 
 new lav.s in promulgation. The Great Charter was read, by the king's 
 the countrj'. . ... 
 
 order, publicly m every county, no doubt m the shu'emoot 
 
 and hundred coui"t ^ ; duplicates of it were deposited in the 
 cathedral churches. 
 
 In all this there was nothing new : it was simply the main- 
 tenance of ancient forms, which prove their strengih by re- 
 importance taiuins: their vitality under the stronj^est of our kings. The 
 
 ofconstitu- ° '' ° ° 
 
 tional forms advice and consent of the council may have been, no doubt 
 in many cases was, a mere formality : the enacting power was 
 regarded as belonging to the king, who could put in respite 
 or dispense with the very measures that he had ordained. 
 Yet in this an advantage may be incidentally traced. If the 
 barons under Henry II had possessed greater legislative power, 
 they might have kept it to themselves, as they did to a cei'tain 
 extent keep to themselves the judicial power of the later par- 
 Lepisiative liament ; but as it was, legislation was one of the nominal rights 
 really ac- that belonged to the whole council as the rejiresentative of the 
 Parliament nation, and the real exercise of which was not attained until the 
 become re- barons had made common cause with the people, and incor- 
 ' porated their representatives in their own assembly. The 
 period of national as distinct from royal legislation begins when 
 the council has reached its constitutional development as the 
 national jiarliamcnt. The legislation of the Great Charter was 
 to a certain extent an anticipation, a tj-pe, a precedent, and a firm 
 step in advance towards that consummation. 
 Taxation; l^l- The subject of taxation may be arranged under three 
 
 three jmnts. j^g^ds, — the authority by which the impost is legalised, the de- 
 scription of persons and property on which it is levied, and the 
 determination of the amount for which the individual is liable ; 
 in other words, the grant, the incidence, and the assessment. 
 Norman The reticence of historians during the reigns of the Norman 
 
 kings leaves us in doubt whether the imposts which they levied 
 were or were not exacted simply by their own sovereign will. 
 Two records have been mentioned, however, of the reign of 
 
 ' Select CliarterH, p. 298 : ' quam etiam legi publice praecipimus per 
 to tarn bailliam veHtraiu.' tSee above, pp. 115, 116.
 
 XIII.] Grant of Taxes. e^'j'j 
 
 Henry I, in one of which the king describes a particular tax as Fonn of 
 
 1 • 1 1 • 1 1 > 1 •! • imjwsing 
 
 ' the aid which my barons gave me, whilst in another he speaks a tax, by 
 
 of the summoning of the county courts in cases in which his the king's 
 
 own I'oyal necessities require it\ From the two passages it 
 
 may be inferred that some form was observed, by which the 
 
 king signified, both to his assembled vassals and to the country 
 
 at large through the sheriffs, the sums which he wanted, and 
 
 the plea on which he demanded them. The same method was 
 
 observed by Henry II and Richard I ; and it is only towards 
 
 the end of the reign of Richard that w^e can trace anything like 
 
 a formal grant or discussion of a grant in the national council ^. 
 
 It is commonly said that the king took a scutage, an aid, or a 
 
 cainicage ; and where the barons are said to have given it, the 
 
 expression may be interpreted of the mere payment of the 
 
 money. Of anv debate or discussion on such exactions in the Cases of 
 
 I ■ 1 M • T • • p debate on 
 
 national council we have rare evidence : the opposition oi taxation. 
 
 S. Thomas to the king's manipulation of the Danegeld, and the 
 
 refusal by S. Hugh of Lincoln to furnish money for llichard's 
 
 war in France, are however sufficient to prove that the taxation 
 
 was a subject of deliberation, although not sufficient to prove 
 
 that the result of such discussion would be the authoritative 
 
 imposition of the tax ^. For the shadow of the feudal fiction, Want of 
 
 that the tax-payer made a voluntary offering to relieve the of repre- 
 
 wants of his ruler, seems to have subsisted througliout the 
 
 period : and the theory that the promise of the tax bound only 
 
 the individual who made it, helped to increase the financial 
 
 complications of the reign of John. Archbishop Theobald had 
 
 denounced the scutage of 1156, and it is doubtful whether it was 
 
 1 Above, pp. 371, 393. 
 
 * In 11.S9 Henry ' scutagium accepit ;' Gerv. c. 1381 : in 1194 Ricliard 
 'constituit sibi dari ' a carucage ; Hoveden, iii. 242 : in 1198 ' cepit . . . 
 quinqiie solidos de auxilio ; ' ib. iv. 46. In 1201 we find the word 'ex- 
 postulaiis ' used of the king's proposition of a tax for the collection of 
 which ' exiit edictuni a justitiariis; ' R. Coggeshale. In 1203 John 'cepit 
 ab eis septimam partem omnium mobilium suorum ; ' M. Paris, p. 209. In 
 1204 ' concessn. sunt auxilia militaria ; ' ibid. 209. In 1207 ' convenit 
 episcopos et abbates .ut perniitterent personas dare regi certam summam ; ' 
 Ann. Waverl. p. 258. A gradual change in the tone of demand may be 
 traceable in this, yet John was really becoming more despotic all tlie time. 
 
 ' See above, pp. 463, 509, 
 
 pp
 
 578 
 
 Constitutional History, 
 
 [chap. 
 
 Opposition 
 to taxation, 
 personal 
 not repre- 
 sentative. 
 
 Taxes for 
 Richard's 
 ransom. 
 
 Growth of 
 the idea of 
 connecting 
 taxation 
 with repre- 
 sentation. 
 
 raised on his lands. S. Thomas had declared at Woodstock that 
 the lands of his church should not jjay a penny to the Danegeld ; 
 the opposition of S. Hugh was based not on his right as a mem- 
 ber of the national council, but on the immunities of his church ; 
 and when Archbishop Geoffrey in 1201 and 1207 forbade the 
 royal officers to collect the carucage on his estates, it was on 
 the ground that he himself had not promised the payment. The 
 pressing necessity of raising the ransom of Richard probably 
 marks an epoch in this as in some other points of financial 
 interest. The gentle terms donum or auxxlium had signified 
 under his father's strong hand as much as Danegeld or tallage ; 
 but now not only was the king absent and the kingdom in a 
 critical condition, but the legal reforms in the matter of assess- 
 ment had raised up in the minds of the people at large a growing 
 sense of their rights. The taxes raised for the ransom were im- 
 posed by the justiciar, probably but not certainly, with the 
 advice of the barons^, and were no doubt collected without any 
 general resistance ; but both the amount and the incidence were 
 carefully criticised, and in some cases payment was absolutely 
 refused. The clergy of York, when the king's necessities were 
 laid before them by the archbishop in their chajiter, declared that 
 he was infringing their liberties, and closed their church as in 
 the time of interdict ^ 
 
 This idea, which is indeed the rudimentary form of the prin- 
 ciple that representation should accompany taxation, gained 
 ground after the practice arose of bringing personal property 
 ajid income under contrilmtion. It was the demand of a quarter 
 of their rcveimcs, not a direct tax upon their land, that provoked 
 the opposition of tlic canons of York ; and although Archbishop 
 Geoffrey is found more than once in trouble for forbidding the 
 collection of a carucage, the next great case in which resistance 
 was offei'ed to the demands of the Crown occurred in reference 
 to the exaction of a thirteenth of moveable property in 1207. 
 
 ' Above, p. 501. 
 
 2 Hovodcn, iii. 22J : ' Vncavit, monuit ct ropavit ut quartam partem 
 redditninn auoruin ad prac^C-iti rof^is liberationein confeiTcnt ; . . . qui re- 
 nuentes ot concanonicos hiios in partes Huas trahentes, asserebant eum . . . 
 libertatea ecclesiae suae velle aubvertere.'
 
 XIII.] Grant of Taxes. 579 
 
 On this occasion it was not an isolated chapter, but a whole Protest of 
 estate of the i-ealm that protested. The king in a great council apainst""^*^ ' 
 held on January 8 at London proposed to the bishops and 1^^207" 
 abbots that they should permit the jiarsons and beneficed clerks 
 to give him a certain portion of their revenues. The prelates 
 refused to do so. The matter was debated in an adjourned 
 council at Oxfoi'd on February 9, and there the bishops repeated 
 their refusal in still stronger terms. The king therefore gave imposition 
 up that particular mode of procedure, and obtained from the thirteenth, 
 national council a grant of an aid of a thirteenth of all chattels 
 from the laity. That done, having forbidden the clergy to hold 
 a council at S. Alban's, he issued, Llay 26, a writ to the arch- 
 deacons and the rest of the clergy, informing them of the grant 
 of aid, and bidding them follow the good example^. Archbishop Exile of 
 Geoffrey, who acted as the spokesman of the clergy, now gave ^ ^' 
 up the struggle and went into exile ; other circumstances were 
 leading to a crisis : the thirteenth was no doubt generally 
 collected ; but early in the following year the interdict was 
 imposed and constitutional law was in abeyance during the 
 
 remainder of the reign. The twelfth article of the charter. Growth of 
 
 . , . the taxative 
 
 in which the king promises that no scutage or aid, save the principle, in 
 
 three regular aids, should henceforth be imposed without the the Great 
 advice and consent of the national council, does not explicitly 
 mention the imposition of a tax on moveables, nor does it pro- 
 vide for the representation in the council of the great majority 
 of those from whom such a tax would be raised. But in this, 
 as in other points, the progress of events was outstripping and 
 superseding the exact legal definitions of right. The fourteenth 
 article does not provide for the representation of the shires, or 
 for the participation of the clergy as an estate of the realm, 
 
 * Ann. Waverley, p. 258; M. Paris, p. 221. The writ addressed to the 
 archdeacons, after reliearsing the grant made by the archbishops, bishops, 
 abbots, priors, and magnates, proceeds : ' Verum quia de vobis confidimus 
 quod nos et honorem nostrum diligitis et defensionem regni nostri et 
 recuperationem terrarum nostrarum affectatis, voa roganius attentius, 
 quatenus tale auxilium nobis ex parte vestra faciatis ut inde vobis gratiaa 
 dare debeamus ; et quod alii rectores ecclesiarum vicini vestri ad auxilium 
 nobis fjxciendum exeniplo vestro facilius invitentur.' May 26, 1207. Patent 
 Roll, 8 John; ed. Hardy, i. 72. 
 
 P p 2
 
 58o 
 
 Constitutional History. 
 
 [chap. 
 
 The prin- 
 ciple of 
 taxation by 
 the nation 
 itself not yet 
 enunciated. 
 
 Indirect 
 taxation of 
 the period. 
 
 Incidence 
 of taxation. 
 
 Realty and 
 personalty, 
 lay and 
 clerical. 
 
 All early 
 taxation 
 borne bv 
 the land. 
 
 distinct from their character as feudal freeholders, yet in both 
 respects the succeeding history shows that tlie right was be- 
 coming practically established. So neither is the principle as 
 yet formally laid down that a vote of the supreme council is 
 to bind all the subjects of the realm in matter of taxation 
 without a further consent of the individual. The prevalence 
 of the idea that such consent was necessary brings the subject 
 of the grant into close connexion with that of the assessment. 
 But before approaching that point, the question of incidence re- 
 quires consideration. 
 
 The indirect taxation of this period is obscure and of no great 
 importance. The prisage of wine, the fines payable by the 
 merchants for leave to import particular sorts of goods, the 
 especial temptation which the stores of wool held out to the 
 king's servants, the whole machineiy of the customs, although 
 referred to in the Great Charter as ' antiquae et rectae consue- 
 tudines^,' were, so far as touches constitutional history, still 
 in embryo. The existing practice rested on the ancient right of 
 toll, and not on any historical legislative enactment. Although, 
 then, these sources furnished an appreciable revenue to Eicinard I 
 and John^, the general taxation of the country may for our 
 present purpose be regarded as direct taxation only. 
 
 The taxable property may be divided into land and moveables, 
 and again, according to the character of their OAvners, into lay 
 and clerical ; these may be subdivided in the former case ac- 
 cording as the layman is a tenant-in-chief, a knight, a freeholder, 
 a burgher, or a villein, in the latter according as the possessor 
 is a prelate, a beneficed clerk, a chapter, or a religious house. 
 Each division of property was brought under contribution at 
 a different period, and for each there was a distinct name and 
 method of taxation. 
 
 All the imposts of the Anglo-Saxon and Norman reigns were, 
 so far as we know, raised on the land, and according to com- 
 putation by the hide : the exceptions to the rule would be only 
 in the cases of those churches which claimed entire immunity, 
 and those boroughs which paid a composition for their taxe 
 
 ' Article 31. ^ Madox, Hist. Exch. pp. 529 sq.
 
 xni.] Incidence of Taxation. 581 
 
 in a settled sum, as they paid the composition for the fenn in Taxation 
 
 the shape of an annual rent. This generalisation covers both 
 
 the national taxes like the Danegeld, and the feudal exactions 
 
 by way of aid ; both wei-e levied on the hide. Henry I had 
 
 exempted from such payments the lands held in demesne by 
 
 his knights and barons, in consideration of the expenses of their 
 
 equipments^ ; but this clause of his charter can have been only 
 
 partially observed. Henry II, from the very beginning of his 
 
 reign, seems to have determined on attempting important changes. 
 
 He brought at once under contribution the lauds held by the Of Church 
 
 ° . *^ lands. 
 
 churches, which had often claimed, but had never perhaps secured 
 immunity. 
 
 In the Assize of Arms in 1 1 8 1 he took a long step towards Taxation 
 
 11 1 1 1- • <» 1 of Roods 
 
 taxmg rent and chattels, obliging the owner of such property introduced. 
 to equip himself with arms according to the amount which he 
 possessed"'^. In the ordinance of the Saladin Tithe personal 
 property is rendered liable to pay its tenth ^. Under Kichard I 
 the rule is extended : for the lung's ransom every man pays a 
 foui'th part of his moveables* : in 1204 .John exacted a seventh Sevenths 
 of the same from the barons®, and in 1207 a thirteenth from thirteenths, 
 the whole of the laity *. This change in the character of taxa- 
 tion serves to illustrate the great development of material wealth 
 in the country which followed the reforms of Henry II. The 
 burdens would not have been transferred from the land to the 
 chattels if the latter had not been found much more productive 
 of revenue than the former. 
 
 But this was not the only change. Henry II adopted the New system 
 
 ■'_ ° _ "^ '■ ot ratnig 
 
 knight's fee instead of the hide as the basis of rating for the laud, 
 knights and barons : and on this basis established a somewhat 
 minute system of distinctions. As early as his second year w.e The scutage. 
 find him collecting a scutagc, a new form of taxation, at twenty 
 shillings on the 'scutum' or knight's fee, from the knights who 
 held land under the churches". In 11 59, for the war of Tou- 
 louse, he raised a much larger sum under the same name, from 
 the tenants by knight service ; as a commutation for pergonal 
 
 » Above, p. 305. 3 lb. p. 488. 3 jb. p. 480. * II). p. 50J- 
 
 '•' lb. p. 523 ; M. Paris, p. 209. ^ Above, p. S23. '' lb. p. 454.
 
 582 
 
 Constitutional History. 
 
 [chap. 
 
 Tlie scutage. 
 
 disappear- 
 ance of 
 Danegeld. 
 
 Its reap- 
 pearance as 
 carucage. 
 
 Class 
 taxation. 
 
 Customaiy 
 amount oi' 
 scutage 
 and aid. 
 
 .service he accepted two marks from each, and with the proceeds 
 paid an army of mercenaries ^. The word scutage, from its use 
 on this occasion, acquired the additional sense of a payment in 
 commutation of personal service, in which it is most frequently 
 used. In 1163, as has been already mentioned^, the ancient 
 Danegeld disappears fi-om the Rolls ; but it is succeeded by a 
 tax which, under the name of donum or auxilium, and probably 
 levied on a new computation of hidage, must have been a repro- 
 duction of the old usage. Such a change must indeed have l)een 
 necessaiy, the Danegeld having become in the long lapse of years 
 a mere composition paid by the sheriflF to the Exchequer, while 
 the balance of the whole sums exacted on that account went to 
 swell his own income. Under Richard the same tax appears 
 under the name of carucage : the normal tax being laid on the 
 carucate instead of the hide, and each carucate containing a fixed 
 extent of one hundred acres ^ 
 
 Each of these names represents the taxation of a particular 
 class : the scutage affects the tenants in chivalry ; the donum, 
 hidage or carucage, affects all holders of land ; the tenth, 
 seventh, and thirteenth, all people in the realm. Each has its 
 customary amount; the scutage of 11 56 was twenty shillings 
 on the fee*; those of 11 59 and 1161 were two marks; the 
 scutage of Ireland in 1 1 7 1 was twenty shillings, and that of 
 Galloway in 11 86 at the same rate. The scutages of Richard's 
 reign, — one for Wales in the first year and two for Normandy 
 in the sixth and eighth, — were, in the first case ten, in the other 
 cases twenty shillings. John in his first year raised a scutage 
 of two marks ; on nine other occasions he demanded the same 
 sum, besides the enormous fines which lie extorted from his 
 barons on similar pretexts. Otiier aids to which the name is 
 not commonly given were raised in the same way and at similai* 
 rates. Such were especially the aid pur fiUe marier, collected 
 by Henry in 11 68 as twenty shillings on the fee, and that for 
 the ransom of Richard I at the same amount. 
 
 * Above, p. 456. ' II). p. 4^)3. ' Hovedcn, iv. 47. 
 
 * 'I'he following particulars are from the Pipe Rolls and Ked Book of 
 the Exchequer, aa cited by Madox.
 
 XIII.] Methods of Taxation. 583 
 
 The caruca^^e of Richard was probably intended, as the Dane- Rate of 
 
 CtLrUC£U?6* * 
 
 geld had been, to be fixed at two shillings on the carucate. In 
 1 198 however it was raised to five, and John in the first year of 
 his reign fixed it at three shillings \ 
 
 Under the general head of donum, auxilium, and the like, The tallages, 
 come a long series of imposts, which were theoretically gifts of 
 the nation to the king, and the amount of which was determined 
 by the itinerant justices after separate negotiation with the 
 payers. The most important of these, that which fell upon the 
 to\vns and demesne lands of the Crown, is known as the tallage. 
 This must have aff'ected other property besides land, but the 
 particular method in which it was to be collected was determined 
 by the community on which it fell ^, or by special arrangement 
 with the justices. 
 
 It was only on rare occasions that all these methods of raising Varieties 
 money were resorted to at once. Such an occasion might be the programme. 
 aid to marry the king's daughter, or to ransom his person ; but 
 not the ordinary contributions towards the regular expenses of 
 the Crown. On those great occasions, the knights paid aid or 
 scutage, the freeholders carucage, the towns tallage : the whole 
 and each part bore the name of auxilium. More frequently only The liudoet 
 one tax was raised at once ; a year marked by a scutage was 
 not marked by a donum or a carucage. It was the a'ccumulation 
 and increased rate of these exactions that created the discontenf 
 felt under Hubert Walter's administration in the later years of 
 Richard and the early years of John. In this division of burdens, Growth of 
 
 . , , , system of 
 
 and distinction of class interests, may be traced another step estates. 
 towards the system of three estates : the clergy and laity were 
 divided by profession and peculiar rights and immunities; scutage 
 and carucage drew a line between the tenant in chivalry and the 
 freeholder, which at a later time helped to divide the lords from 
 the commons. The clergy had in their spiritual assemblies a 
 vantage-ground, which they used during the tliirteenth centuiy, 
 to vindicate great liberties ; and their action led the way to 
 general representative assembling, and made easier for the com- 
 mons the asseiiion of their own definite position. 
 
 1 Above, p. 516. ' See below, pp. 585 sq.
 
 584 Constitutional History. [chap. 
 
 Assessment The method of assessment varied according to the incidence 
 
 of the tax. So long as all the taxation fell on the land, Domes- 
 
 Komesday Jay book continued to be the rate-book of the kingdom^ : all 
 
 the rate- "^ . . 
 
 bx>k of land, assessments that could not be arranged directly by it, such as 
 the contributions of the boroughs, were specially adjusted by the 
 sheriffs, or by the officers of the Exchequer in their occasional 
 visitations", or were permanently fixed in a definite proportion 
 and at round sums ^. This system must have proved sufficient 
 so long as the changes of occupation, which bad occurred since 
 the Domesday Survey, could be kept in living memory. As soon 
 however as Henry II began to rate the land by the knight's fee. 
 The tenants a new expedient was requisite. Hence, when he was preparing 
 service are to Icvv the aid pur fille marier, the king issued a writ to all the 
 
 called on . ... 
 
 to declare tenants-in-chief of the Crown, lay and clerical, directing each of 
 
 their several „, Tfi.ij 
 
 liability. them to senci m a cartel or report of the number of kniglits 
 fees for the service of which he was legally liable*. This was 
 done, and the reports so made are still preserved in the Black 
 Book of the Exchequer, to which reference has been more than 
 once made in former chapters. The scutages continued to be 
 exacted on the same assessment, compared from year to year 
 with the Pipe Kolls, until the reign of John, who on several 
 occasions took advantage of the reluctance which his barons 
 showed for foreign war to make arbitrary exactions. A clause 
 of the Great Charter issued by Henry III in 1 2 1 7 directs that 
 the scutages shall be taken as they were in his grandfather's 
 time. A few years after this, Alexander of Swerford, who com- 
 piled the Red Book of the Exchequer, reduced the computation 
 
 * Dialogus de Scacc. i. c. 16. 
 
 ' ' Noveri.s itaque quod plurimum interest si donum vcl auxilium civi- 
 tatis per siii^^ula c.-ipita coumiorantiuni in ea a justitiis constitiiatur, vel si 
 elves sumniam aii juain quae i)rincipe digna videatur justitiariis ofFerant et 
 ab eis accipiatur.' Dialogus, ii. c. 13. 
 
 ' See aliove, ]). 3R2. 
 
 * One of tlie answers to tins demand probably preserves the exact words 
 of the writ : ' Mihi et aliis conqjaribus ineis per iitteras vcstras innotuit, ut 
 per fidem et ligantiain quaiu vobis debemus, vobis per breve nostrum 
 j)enden8 extra 8i;;inum mandarenius quot niilites habemus de veteri feoda- 
 mento de tempore Henrici avi veslri, et qu(jt milites liabcanius de novo 
 feodamento po^t teuq)U8 regis Henrici avi vestri, et quot milites habeamus 
 super dominium nostrum.' Liber Niger, i. 148.
 
 XIII,] Assessment of Taxes. 585 
 
 of knights' fees to something like order by a careful examination Assessment 
 ° _ ° "' ofscutage. 
 
 of the Pipe Rolls ; but so long as scutages were collected at all, 
 
 the assessment of the individual depended very much on his 
 
 own report, which the Exchequer had little means of checking. 
 
 The douuni, auxilium, or tallage, which Henry imposed in Assessment 
 lieu of the ancient Danegeld, was assessed by the officers of the by itinerant 
 Exchequer. In 11 68 the whole of England was visited by a the Ex- 
 small commission of judges and clerks, who rated the sums by 
 which the freeholders and the toAvns were to supplement the 
 contributions of the knights. In 1173 a tallage on the royal 
 demesne was assessed by six detachments of Exchequer officers, 
 and throughout the remainder of the I'eign the fiscal circuits 
 correspond with those of the justices, or the fiscal business is 
 done by the justices in their judicial circuits. This method of 
 assessment, like that of scutage, failed to secure either party 
 against the other ; either the justices had to accept the return 
 of the tax-payer, or the tax-payer had to pay as the judges 
 directed him '. Little help could be expected from the sherifi", 
 who indeed was generally an officer of the Exchequer, The 
 assessment of the justices sometimes varied considerably from 
 that of the payer, and in one recorded instance we find the 
 tender of the former accepted in preference to the valuation of 
 the latter. In 1168 the men of Horncastle pay £29 13s, 4c?. 
 for an aid, ' quod ipsi assederunt inter se concessu justitiarum 
 aUter quam justitiae ".' It is obvious that an exaction, the 
 amount of which was settled as in these two cases by the state- 
 ment of the paj'er, was removed by only one step from the 
 character of a voluntary contribution. That step might be a 
 very wide one, and the liberty which it implied might be very 
 limited, but the right of grant and the right of assessment were 
 brought into immediate juxtaposition. 
 
 "When however, as was the case under the Assize of Arms Personal 
 and the Saladin Tithe, personal property was to be rated, it rcqured 
 became clear that no safe assessment could be based either on assessment, 
 the taxpayei-'s statement of his own liability, or on the uuin- 
 
 ' See above, p. 5S4, note 2. 
 
 ' Pipe Roll, 14 Hen. II; Madox, Hist. E.'ich. p. 407.
 
 585 Constitutional History. [chap. 
 
 Application formed opinion of the sheriff and iustices. To remedy this, 
 
 or the jury '- '' . 
 
 principle to Heurv had recourse to his favourite expedient of the jurj'. He 
 
 assessment iii • i-ii. 
 
 of personal directed that the quantity and character of armour which each 
 man Avas to provide should be determined by the report of a 
 number of sworn knights and other lawful men of each neigh- 
 bourhood, who were to draAV up a list of the men Avithin their 
 district, with a distinct statement of their liability ^ In the 
 collection of the Saladin Tithe, in which the king himself took 
 an active part, the same plan was adopted : where suspicion 
 arose that any man was contributing less than his share, four 
 or six lawful men of the parish were chosen to declare on oath 
 what he ought to give ^. The great precedent for this pro- 
 ceeding was found of course in the plan by which the Domesday 
 Survey had been made, and the occasional recognitions of fiscal 
 It is applied liability which had been taken under special writs. The plan 
 carucage. " was SO successful that in 1198 it Avas applied to the assessment 
 of the carucage, an account of which has been given already'. 
 The assessment of the thirteenth in a.d. 1207 Avas however not 
 made by juries, but by the oath of the individual payer taken 
 before the justices*; the contributions of the clergy being a 
 matter of special arrangement made by the archdeacons ^. The 
 carucage of 11 98 is then the land-mark of the progress which 
 the rc'jjreseutative principle expressed by the jury had as yet 
 attained in the matter of taxation. 
 Question of The further question, which arose chiefly in the towns, how 
 of tallages, ^he sums agreed to between the special community and the 
 Exche(iuer Avere to be adjusted so as to insure the fair treat- 
 ment of individuals, also came into importance as soon as per- 
 sonal ])ropcrty Avas liable to assessment. Wc learn from the 
 story of William Fitz-Osbcrt, that in London the taxes were 
 raised by capitation or poll-tax, every citizen poor or rich con- 
 tributing the same amount, the unfairness of the rule being 
 compensated by the lightness of the burden which so many 
 
 ' Bened. i. p. 278; Select Cliarters, p. 147. 
 
 ^ Bened. ii. 31 ; Select CJliarters, p. 152. 
 
 ' Above, p. 510. 
 
 * Patent Rulls, od. Hardy, i. 72 ; Select Charters, p. 275. 
 
 " Above, p. 579, note 1.
 
 XIII.] Mll'ilary Organisation. ^^ 
 
 ioined in bcarinff. William came forward as the advocate of William 
 ■' ° Fitz-Osbert 
 
 the poor, and declared that an assessment should be made by and 
 
 1 • 1 11 • • 1 • 1111. praduated 
 
 which each man should pay m proportion to his wealth : but we taxation. 
 
 ai'e not told by what means he intended to carry out the idea, 
 
 and his intemperate conduct produced the riot with which our 
 
 knowledge of the matter terminates \ 
 
 The whole subject of taxation illustrates the gradual way in Summary of 
 
 . 1 • -1 n 1 /* tnc subject. , 
 
 which king and people were realising the idea of self-govern- 
 ment. The application of a representative scheme to the work 
 of assessment, and the recognition that the liabiHty of the payer 
 was based on his own express consent, either to the grant itself or 
 to the amount of his own contribution, mark a state of things in 
 which the concentration of local intei'ests in one general council 
 was all that was needed to secui'e the tax-payer from arbitrary 
 treatment on the part of either the sovereign or his ministers. 
 This becomes still more evident as we approach the wider but 
 equally important sphere of judicial action, in which not only 
 the princi])le, but the actual details of the representative system 
 seem progressively to assert themselves. Before entering upon 
 this, however, some notice must be taken of the military system 
 of Henry II and his sons, which, as exemplified both in the 
 scutage and in the Assize of Arms, may be regarded in close 
 coimexion with his expedients of taxation. 
 
 162. Henry found on his accession tlie three kinds of military Themilitarj' 
 
 system. 
 force, which we have described in a former chapter'-, in full exist- 
 ence, but very incompletely organised, and in consequence of the 
 I'ecent troubles, either burdensome to the nation or thoroughly 
 inefl'ective. The standing army of mercenaries he was bound 
 by the treaty, which secured him the succession, to disband and 
 banish ; the general body of tenants in chivalry was broken up 
 among the feudatories who had been fighting each for himself; 
 and the national force of the fyrd, which by its very nature was 
 capable of only slight discipline and occasional usefulness, had 
 shared in the general disorder of the country consequent on the 
 paralysis of government. Henry from the very first years of 
 his reign saw that peace was his true interest, but that with so 
 
 ^ Above, p. 508. - Above, p. 431 sq.
 
 588 
 
 Constitutional History. 
 
 [chap. 
 
 Policy of 
 Henry II 
 in military 
 matters. 
 
 The mer- 
 cenaries, 
 employed 
 by Henry, 
 Richard, 
 and John. 
 
 wide an extent of territory to defend, and so many jealous 
 enemies to keep in check, he could have no peace unless he 
 were strong enough to prevent war. Each then of these three 
 expedients he saw would have its uses, whilst each had its 
 defects. The mercenary force was hateful to the nation ; the 
 feudal levy was divided according to the interests of its leaders, 
 was not trustworthy in emergency, and, owing to the strict rules 
 as to the nature and duration of service, was incapable of being 
 freely handled : the national militia was either useless for foreign 
 warfare, or could be made useful only by being treated as a 
 mercenary force, an expedient which wasted at once the blood 
 and the treasure of the kingdom. The obvious policy was to 
 use mercenaries for foreign warfare, and to employ the national 
 militia for defence and for the maintenance of peace. The 
 feudal levy, like the rest of the machinery of feudalism which 
 could not be got rid of, might be made occasionally useful in 
 both ways, but would be more useful still, if it could be made 
 to contribute to the support of the crown in ways which would 
 leave the king unembarrassed by the minutiae of feudal custom. 
 This policy Henry maintained more or less continuously. 
 He fought his wars on the Continent by means of mercenaries ^ : 
 he had a standing force of 10,000 Braban9ons, and a large 
 number of Welsh and Galwegian soldiers. Kichard followed 
 the example, and in addition to these embodied a force of 
 Basques and Navarrese, two races whose military malpractices 
 had been condemned by the Lateran Council of 1179, and who 
 with the Braban^ons and Catalans enjoy the evil reputation of 
 being the forerunners of the free companies of the next age. 
 Many of these were probably Crusaders who had returned pen- 
 niless from the East, or mere bandits and brigands who by 
 taking foreign service had escaped the justice of their native 
 lords. John, like his father and brother, maintained a great 
 host of these adventuiers, and with them fought the battles and 
 conducted tlio cruel ravages which mark the close of liis reign. 
 
 ' ' Mavult enira princeps Btipendiarios qiiam domesticos bellicis apponere 
 casibuH.' DialogiiH, i. c. 9. ' NolenH vcxare a^rrarios militea nee burgen- 
 
 Hoin ncc rusticoiuin iiiultitudiiiom duxit, Bolidarios vero uiilites 
 
 iiinumeroB.' li. de Monte, A.D. 1 159.
 
 XIII.] Military Organisation. 589 
 
 The mercenary force only comes within our view in two points : Mercenaries 
 
 ... brought to 
 
 it was a breach of the compact of "Wallingford, in spirit at least, England 
 
 that such a host ever set foot on English soil ; and it was only exceptional 
 
 from the revenue of his kingdom that Henry could draw funds 
 
 to pay its exi^enses. The king faithfully observed the condition : 
 
 on one occasion only were his mercenaries brought to England, 
 
 and then it was to repel invasion, for the purpose of which 
 
 a force of Flemish soldiers had already landed. They stayed 
 
 in England for a month, and left with the king on his return 
 
 to France^. Richard had no inclination, as he had indeed no 
 
 temptation, to break the rule : and John's mercenary army, 
 
 raised to repel the Fi-ench invasion of 12 13, in itself perhaps 
 
 justified by the emergency, became one of the great occasions 
 
 of his downfall. The direct question of the payment of the mer- Payment of 
 
 mercenaries 
 cenaries only once arises, that is in 1198, Avhcn the justiciar refused. 
 
 proposed that it should be met by a grant for the express purpose 
 of maintaining a body of knights, and was defeated by the resolu- 
 tion of S. Hugh ^. But in this case the force required was asked 
 rather as a substitute for personal service than as an engine of 
 national defence, and on that ground it was refused. 
 
 Henry's manipulation of the feudal host is a more complex Henrj-'s 
 
 . manage- 
 
 matter, for there can be little doubt that he desii'ed to weaken mentofthe 
 
 feudal force, 
 the great feudatories by disarming their vassals, as well as to 
 
 obtain a more complete command of the i-esources that lay 
 
 within his reach. The first expedient to which he had recourse Joint 
 
 was to break through the net of feudal custom by demanding 
 
 that every three knights should, instead of serving in person, 
 
 equip one of their number, probably for a threefold term of 
 
 service. This was done in the Welsh war of 1 157, and furnished 
 
 the king with a body of knights, one-third of the whole knightly 
 
 force of the kingdom, for a space of four months instead of 
 
 the usual forty days^. A similar, if not the same, plan was 
 
 adopted by Richard, who in the council of Nottingham in 1194 
 
 demanded a third part of the kuight-scrvice of the kingdom 
 
 for his war in Normandy*: and John in 1205, by the advice 
 
 ' Bened. i. 74. ^ Above, p. 509. ^ R. de Monte, a.d. 1157. 
 
 * Hoveden, iii. 242.
 
 59° 
 
 Constitutional History. 
 
 [chap. 
 
 Combination 
 for purpose 
 of equip- 
 ment. 
 
 Coincidence 
 of the Frank 
 laws. 
 
 Scuta ge as 
 commuta- 
 tion of 
 service. 
 
 of the council, directed that every nine knights should join to 
 equip a tenth with wages of two shillings a day for the defence 
 of the country ^. The principle involved in this arrange- 
 ment is exactly analogous to that adopted by Charles the Great 
 in the capitulary of a.d. 807, in which he directs that when 
 there is war in Spain or with the Avars, every five Saxon 
 warriors are to join to equip a sixth ; when the war is in 
 Bohemia, every two are to equip a third ; for the direct defence 
 of the country each is to present himself in person ^. This I'ule 
 is in direct agreement with the Frank system of armament by 
 which the poorer landowners combined to equip a fully-armed 
 warrior, as was the Berkshire custom recorded in Domesday ^. 
 The coincidence may be accidental, but it forms one of a great 
 number of small points in which Henry's administrative expe- 
 dients seem to be borrowed from the Karolingian laws. 
 
 A second and more comprehensive measure is found in the 
 institution of scutage, which we have already examined under 
 the head of taxation. The transition by which the fyrdwite or 
 penalty for neglecting the summons to arms, — a fine which was 
 provided for also in the most ancient laws of the Germanic 
 races*, — was so modified as to become an honourable commutation 
 for personal service, was not so great as might appear at first 
 sight. Richard Fitz-Neal distinctly ascribes it to Henry's wish 
 to spare the blood of his subjects ^ ; it had however the further 
 merit of providing the king with money to pay an army which 
 he could handle as he pleased ; it helped to disarm a dangerous 
 element in the country ; and it solved, or rather waived for the 
 time, the already threatening question of the liability to foreign 
 service. That it was used by John, like everything else, as an en- 
 gine for extortion, or that in later reigns it was made an excuse 
 for unrighteous exaction is no ai'gumeut against its original 
 usefulness. The land-tax of the present day is the link which 
 binds us, directly in this point, with the custom of our forefathers. 
 
 • Patent RoIIh, i. 55 ; Select Charters, pp. 273, 274. '^ Baluze, i. 318- 
 ^ }!:iluze, i. 317, 31S; above, p. 1 17; Waitz, D. V. G. iv. 471 sq. 
 
 * Sue Waitz, ]>. V. (J. iv. 470 ; T'aluze, i. 299, 300. The lioribanniim of 
 the l''r:iiiks, in tlie Kensc of a fine for not goinj,' to war, corresponds with 
 the Anglo-Saxon fyrdwite. "* Above, p. 588, note i.
 
 XIII.] Military Organisation. 591 
 
 The Assize of Arras in 1 1 8 1 was intended to reform and Assize of 
 re-arm the national force of the fyrd. It directed that the whole consti'tutitn 
 free population, the communa liherorum hominum, should fur- 
 nish themselves with arms. The owner of a knight's fee must 
 possess a coat of mail, a helmet, a shield, and a lance ; the free- 
 man possessing sixteen marks of rent or chattels must have the 
 same ; the owner of ten marks must possess a hauberk, a head- 
 piece of iron, and a lance ; and all burgliers and freemen a 
 wambais, head-piece, and lance ^. Hei'e again we find a strict 
 analogy with the Karolingian system, which no doubt had had in 
 this respect a continuous existence on the Continent ; a similar 
 assize was issued by Philip of Flanders and Philip of France at 
 the same time ^. Every man who possessed twelve mansi was, 
 by the capitulary of a.d. 805, obliged to possess a brunia or coat 
 of mail " : by one of a.d. 779 it is forbidden that any should give 
 or sell such arms to a stranger'*: by that of a.d. 812 he who 
 possesses more than the necessary equipment must employ it, or 
 alienate it, in the royal service ^ : all these are minor points in 
 which the language of the Assize almost exactly coincides. It 
 stands however in still closer relation to the system of the 
 Lombard kings. 
 
 The Assize of Arms embodied a principle of perpetual utility. Importance 
 ... •" of the Assize 
 
 and one the history of which is easily traceable, from the first of Arms. 
 
 germ of the obligation in the trinoda necessitas, down to the 
 
 militia armament of the present times : the several questions, all 
 
 of them important in their day, connected with distraint of 
 
 knighthood, the commission of ax-ray and the like, directly 
 
 * Bened. i. 278. - Bened. i. 269, 270. 
 
 ' Baluze, i. 297, 301, &c. Tlie capitulary ' de expeiiitione Romana,' 
 which directs tliat each man shall have a brunia for everj- ten mansi, is a 
 fabrication ; Pertz, Legg. ii. App. p. 3 ; but the edict of the Lombard king 
 Haistulf (a.d. 750) furnishes a very imjiortant parallel : ' Stetit ut ille homo 
 qui habet septein casas massarias habeat loricam suam cum reliqua concia- 
 tura sua, debeat habere et cavallos ; et si super habmrit per isto nuinero 
 debeat habere caballos et rtliqua amiatura : item placuit ut illi homines 
 qui non habent casas massarias et habent 40 jugis terrse habeant cavallum 
 et scutum et lanceam ; item de minoribus hominibus principi jdacuit ut, 
 si possunt habere scutum, habeant coccora cum sagittas et arcum ; item 
 de illis hominibus q\u negotiantes sunt et pecunias non liabent, qui sunt 
 majores et potentes habeant loricam et cavallos, scutum et lanceam; qui 
 sunt sequentes habeant caballos scutum et lanceam ; et qui nnnores habeant 
 coccoras cum sagittas et arcum.' Edictus, &c. Longobardorum, ed. Bluhme, 
 Hanover, 1S69. * Baluze, i. 277, 297, 301. ^ lb. i. 340.
 
 592 Constitutional History. [chap. 
 
 connect themselves with it. It has however in its i-elation to 
 the maintenance of the peace another important bearing, which 
 
 The Assize connects it directly with the agency of the county com'ts. The 
 ' jurati ad arma,' the freemen sworn under the Assize to furnish 
 themselves with arms, were under the special charge of the 
 sheriff, and come into prominence again under Henry III. In 
 the writ of 1205, already referred to, John directs the general 
 armament of the people to resist invasion, but without minute 
 instructions, under the severe penalty of being reduced to per- 
 petual servitude. The duty of watch and ward, of following the 
 hue and cry, and of taking the oath of the peace, prescribed in 
 1195, serve to connect the several duties of the freeholder with 
 the obligation of the ancient allodial owner ; but they come 
 before us in other places. 
 
 Mainten- Whilst Henry however thus attempted to unite the whole 
 
 ance of the ,..,. -in/- 
 
 feudal force, free people under proper discipline for national defence, he 
 
 maintained the show at least of the feudal force: in 11 77 he 
 
 brought the whole of the knights to Winchester, and made a 
 
 grand demonstration of the military strength of the kingdom ^ : 
 
 the plan was followed on several occasions by John, although, 
 
 as we have already seen, the only result of the assembly, and 
 
 perhaps the only purpose for which he brought it together, was 
 
 the extortion of money, by way of fine or in commutation of 
 
 further service ^. 
 
 Naval force Tlie naval force of the kiuffdom during the twelfth century, so 
 of the '^ .... 
 
 kingdom. far as it can be regarded as a national institution, must have 
 depended for existence on the three principles by Avhich the 
 army was sustained, but in difierent proportions and com- 
 binations. The usage of the reign of Ethelred, according to 
 which eacli shire furnished its quota of shi])S ■*, liad dis!ipj)eared 
 before the Domesday Survey, although England had continued 
 to be a naval power throughout the reign of the Confessor. 
 Possibly the licet liad l)Ccomc less iin})ortant as the danger of 
 Danish invasion was less constantly imminent. The great 
 vassals of the Contjuest had, it is said, merited their great 
 rewai'ds by their contributions to the Norman fleet'', but none 
 of them received or lield their English lands on the condition of 
 ' Above, p. 565. * lb. p. 523. ' lb. p. 116. * lb. p. 257.
 
 XIII.] Naval Organisation. 593 
 
 service by sea. The inland counties in some cases reported in Ships of 
 
 . . . Dover. 
 
 Domesday book special services due when the king went to sea ; 
 
 and Dover held its liberties in return for a provision of twenty 
 
 ships to be kept for fifteen days annually in the king's service \ 
 
 The fleet however is not a prominent object in the Survey. 
 
 Yet the kings, possessing so extensive a sea-board in both Eng- The nects 
 land and France, were never at a loss for ships ; and the ships when according to 
 assembled were, like the fyi'd, ranged according to the counties from which 
 from which they came. The crusading expedition of a. d. 114 7, ^^^ ^™^' 
 by which Lisbon M'^as taken, was to a certain extent a volunteer 
 expedition, and may not be a fair instance of the usual practice : 
 in it however the ships of Norfolk and Suflfblk sailed under 
 Hervey Glanvill, a local magnate ; those of Kent under Simon 
 of Dover ; those of London, Hastings, Southampton, and Bristol 
 under their own captains^. The London crusaders of 1188 and 
 H90 seem to have had an organisation of their own, although 
 in the latter case they formed part of a fleet commanded by 
 royal officers who bore the names of justiciars and constables ^. 
 Richard made laws for this fleet, with the counsel of his ' probi Richard 
 homines,' and enjoined the observance of them on his own sub- for the fleet, 
 jects in the strictest terms, compelling them to swear obedience, 
 and commanding them as they cared for their fortunes at home 
 to act in proper submission to their justiciars. 
 
 Even of the fleet of 1190 a large projjoi-tion was in noThebefrin- 
 respect national property : the vessels of transport which com- permanent 
 posed no small part of it were no doubt hired by the king, 
 or possibly impressed for the occasion. Dover and Hastings 
 held their liberties by furnishing twenty ships each for the 
 king's service, and the rest of the Cinque Ports doubtless 
 contributed in proportion. The vessels of war however, the 
 galleys, must have been the property of the king, and it is pro- 
 bably to this crusade that we owe the germ of a permanent navj'. 
 Such a navy must have been from remote antiquity an iustitu- 
 
 * Domesd. i. i. Sandwich owed the same service; and Romuey with 
 other ports owed sea-service. 
 
 '^ Expugnatio Lyxbonensis, Chron. Rich. I, i. p. cxliv. 
 
 ^ Hoveden, iii. 46 sq. ; Benedict, ii. 120 sq. The commanders are called 
 constables by Hoveden, iii. 36, justiciars by Bened. ii. no. 
 
 Q q
 
 594 Constitutional History/. [chap. 
 
 Growth of tion amonff the MediteiTanean powers; at this moment the 
 navies. _ ° ^ ' 
 
 Pisans, the Genoese, and the Venetians possessed large fleets of 
 armed transports, which were hired by the French and German 
 Crusaders : the king of Sicily had his ' stolium fortunatum,' for 
 whose commander he borrowed the Arabic title of Emir or 
 Admiral ^ The Danes and the Flemings likewise possessed 
 naval forces, but these probably belonged to individual ad- 
 venturers, amongst whom the king or the count might be the 
 first. In England itself Hugh de Puiset, the bishop of Durham, 
 had his own gi-eat ship, which became royal property at his 
 death ^. Except for the distant expeditions to Palestine, the 
 kiug needed only such a squadron as would carry him and his 
 court from time to time across the Channel ^ : the defence of the 
 coast must have been maintained as of old by local resources, 
 nent^eet a" ^^^ permanent fleet then was from its very origin a fleet of 
 c^ariesf*^'^' mercenaries, and was maintained from the royal revenue just as 
 a band of Braban9ous might have been, although, as the English 
 merchant service was the readiest resource for recruits, the 
 royal fleet was chiefly manned by Englishmen. John's naval 
 armament was organised on this plan ; but it is not until after 
 the date of the Charter, which limits our present inquii'ies, that 
 its importance comes into historical prominence. The legisla- 
 tion of the Admiralty, which is referred to the present period 
 by writers of the fifteenth century, is either antedated, or so 
 modified by translation and adaptation that it is not to be 
 recognised as twelfth-century work. 
 
 The kin^ It is clear from what has been said that the mercenary force 
 
 was the pay- _ '' 
 
 master. of army and navy was, so far as its maintenance is concerned, 
 
 dependent on no authority but that of the king, who paid its 
 
 expenses, as he did all other national and personal expenses, out 
 
 of the general fund accruing to the Exchequer, over which the 
 
 national council neither possessed nor as yet claimed control. 
 
 Judicature. 163. The judicial measures of Henry II constitute a veiy im- 
 
 ' Bened. i. 171 ; ii. 128. 2 Madox, Hint. Exch. p. 493. 
 
 * Henry II had one Hliip of his own until Becliet ordered three very 
 good onsH to he built and eijuii)ped ; these he presented to his master. 
 W. Fitz-Stephen (V. S. Thoin.), i. 193. llie full number furnished by the 
 Cinque Porta under Edward III was fifty-seven, twenty-one each by 
 Dover and Haatinga, five each by Bomney, Hythe, and Sandwdch.
 
 XIII.] Judicial Institutions. 595 
 
 portant part of his general policy. They have been noticed in Recapituia- 
 their personal and political bearing in the last chapter. We have judicial 
 there seen how the original impulse was given to his reforms Henry li : 
 by the terms on which the Crown was secured to him, how 
 those reforms were moulded by his peculiar genius or by the 
 influence of well-chosen advisers, the tradition of the Exchequer 
 forming an important element ; how the sevei'al steps in advance 
 were partly guided by a desire to limit the judicial power of the 
 great feudal vassals, and to protect the people against the misuse 
 by the local magnates of that influence in the county courts 
 which had fallen into their hands. "\Ve have accordingly noted 
 the chief occasions on which the sheriffs, and even the royal 
 judges, were brought to special account, and displaced to make 
 Avay, either for men who had received a better legal training, or 
 for such as were less closely connected with the ruling families 
 of the district, or for those who would bring the shire adminis- 
 tration into more thorough concert with the supreme adminis- 
 tration, if not completely under its control. We have traced, and of 
 
 ^ •' Richard's 
 
 under the history of Hubert Walter and Geoffrey Fitz-Peter, a ministers, 
 growing spirit of legal reform, a rapid invention of new ma- 
 chinery or adaptation of the old machinery to new ends, not 
 indeed free ft'om the imputation that it was chiefly stimulated 
 by fuiancial considerations, but still in its ultimate results con- 
 ducive to the growth and conscious realisation of the idea of 
 self-government. And we have further inferred that the attitude 
 taken by the clergy, the barons, and the commons at the date of 
 the Great Charter was produced by the altered circumstances in 
 which the kingdom was placed by these changes : that whilst 
 on the one hand they had given to the king an overwhelming 
 power, they had on the other revealed to the Three Estates the 
 unity of their interests, and the possibility of erecting a well- 
 comi>acted fabric of liberty. We have now to trace the mecha- 
 nical workings involved in this histoiy. 
 
 Hem-y at his accession found the administrative system in the Condition of 
 •' '' things in 
 
 most attenuated state. Twenty years of misrule had seen th 1155- 
 
 polity of his grandfather broken up rather than suspended, and 
 
 very few of the old seiTants of the State survived. Such judicial 
 
 Q q 2
 
 59^ 
 
 Constitutional History/. 
 
 1_CHAP. 
 
 Eefonns of 
 Henry II, 
 his own 
 work. 
 
 Division of 
 the su))ject 
 of judica- 
 ture. 
 
 Tlie Exfhe- 
 (luiT and 
 Curia Regis. 
 
 machinery as existed seems to have been sustained by Richard 
 de Lucy, but the year which had elapsed since the pacification 
 had only given time to attempt the uprooting of the evils of 
 misrule, not to lay the foundations or to rebuild the fabric of a 
 sound government. Hence Henry's reforms, although, so far as 
 he was able to get aid from his grandfather's ministers, they 
 were based upon the older system, owe very much to the king 
 himself, and, from the outset of the reign, exhibit marks of 
 decided growth and difference from the former state of things. 
 The Exchequer was restored under Bishop Nigel as it had existed 
 under Bishop Roger, but the Curia Regis from the first presents 
 a much more definite appearance than before. Still one with 
 the Exchequer in its personal staff, it has much more inde- 
 pendent action and a wider sphere ; it developes a new and 
 elaborate system of rules and customs. The king's personal 
 tribunal continues to be a supreme and ultimate resort, but the 
 royal judicature from time to time throws off offshoots, which 
 before the end of the period constitute a system of courts and 
 jurisdictions that with some developments and modifications 
 subsist to our own day. 
 
 The judicature may be divided into three branches, the central 
 and supreme court or courts, the provincial, popular, or common 
 law tribunals, and the visitatorial jurisdiction by which the first 
 interfered with, regulated, and remodelled the second : and these 
 may be noticed in the order of their authority ; first, the king's 
 courts; secondly, the itinerant justices; thirdly, the local tribunals. 
 
 The Exchequer and the Curia Regis continue throughout this 
 period to exist in that close union which ])roves their original 
 identity ; but whereas under Henry I the financial character, 
 under Henry II the judicial aspect, of the board is the most 
 prominent. In the former reign the Curia Regis, except when 
 the king takes a personal share in the business, seems to be a 
 judicial session of the Exchequer, an adaptation of Exchequer 
 machinery to judicial purposes ; under the latter the Exchequer 
 seems to be rather a financial session of the Curia Regis. The 
 king is ostensibly the head of the one ', the justiciar the principal 
 
 ^ 'Kegia Curia, in qua ip-se in i)roi)ria persona jura decemit ; . . ex officio
 
 XIII.] Judicial Inditutions, 597 
 
 actor in the other ; but still the fabric is the same : the judges Close union 
 are the same ; the transactions of the Curia frequently take 
 place in the chamber of the Exchequer, and are recorded in its 
 Rolls ; and, through all the changes by which the Curia is 
 modelled and divided, the Exchequer forms a rallying-point, 
 or common ground, on which all the members of the supreme 
 judicature seem to meet, as in the more modern Court of Ex- 
 chequer Chamber at the present day. 
 
 The financial system of the Exchequer, as it existed under Continuity 
 Henry I, has been already described, and illustrated from the quer usapes. 
 single Pipe Roll of the reign as well as from the Dialogus de 
 Scaccario ^ The latter work describes the practice of the year 
 1178, in language which shows a substantial agreement with the 
 system presented in the Roll of 1130. This organisation there- 
 fore it is unnecessary to recapitulate here. The points in which 
 change and development are traceable are either minute matters 
 of procedure, which scarcely come within the view of constitu- 
 tional history, or matters of legal interest which belong more 
 
 strictly to the history of the Curia Regis and itinerant jurisdic- Special legal 
 
 . . business in 
 
 tions. The Court 01 Exchequer, taking special cognisance of theExche- 
 
 ciuer. 
 suits touching the revenue, possessing a different body of judges 
 
 and a distinct code of customs, has not yet a separate existence ; 
 but it may be justly presumed that where such suits were enter- 
 tained, the judges before whom they were tried would be those 
 who were most familiar with the financial work. The fines levied 
 for legal purposes, which were originally the determinate agree- 
 ments between litigants drawn up and recorded in the king's 
 couii, and were a source of constant income to the Crown, 
 were regularly concluded ' ad scaccarium - ;' but the judges who 
 witnessed the transaction were not a permanent committee of 
 officers ; they were apparently a selection for each occasion from 
 the whole body of the Curia, all of wliom were, it is probable, 
 equally eligible and of equal authority. The records of the 
 Exchequer grow during the period in bulk and in number : the 
 
 principaliter residet [in scaccario] immo et praesidet primus in reg^no 
 capitalis scilicet justitia.' Dialogus, i. c. 4. • Above, p. 377. 
 
 * See illustrations of business done 'ad scaccarium' in the reign of 
 Hemy II in Madox, Hist. Exch. pp. 144, 145.
 
 598 
 
 Constitutional History, 
 
 [chap. 
 
 Increase of 
 Exchequer 
 Records. 
 
 Growth of 
 the Curia 
 
 Regis. 
 
 Personal 
 sessions of 
 the king. 
 
 The Chan- 
 cellor. 
 
 Pipe EoUs of Henry II ^ are supplemented under John by- 
 Oblate, Liberate, and Mise Rolls^, in which the particular out- 
 goings on the heads of royal allowances, benefactions, and other 
 payments are circumstantially recorded. The Great Rolls of the 
 Pipe however continue to contain the summaries and authori- 
 tative details of the national account. 
 
 The Curia Regis of Henry II attained its ultimate constitution 
 by a long series of somewhat rapid changes. In the early years 
 of the reign it appears to be, as it had been under Henry I, a 
 tribunal of exceptional resort to which appeals, although increas- 
 ing in numbei', were still comparatively rare, and the action of 
 which is scarcely distinguishable from that of the national 
 council. The king himself took a leading part in the business, 
 much of which was done in his presence; and even in his 
 absence the action of the justiciar seems to depend on the royal 
 pleasure as indicated by special writs. Such at least is the 
 impression made by the long details of litigation contained in 
 the Chronicle of Battle, and in the account of Richard de Anesty, 
 who has preserved the record of his delays and expenses in 
 a suit which lasted from 1158 to 1163^. Yet side by side 
 with this there appears a show of judicial activity among the 
 subordinate members of the household, the court, and the 
 Exchequer. The Chancellor, as we learn from the Lives of 
 S. Tliomas, was constantly employed in judicial work, whether 
 in attendance on the king, or, as the Pipe Rolls also testify, in 
 provincial visitations. As early as the second year of the reign, 
 
 * Only three Pipe Rolls of Henry II are in print, one of Richard, and 
 one of tlie reign of John : it is greatly to be desired that the whole series 
 for the two former reigns niiglit be published. They are the only com- 
 plete series of records for the period, and throw a great deal of light on 
 every department of history, although commoidy known only through the 
 medium of Madox's work. 
 
 ''■ The Fines of the reigns of Richard and John were edited by Hunter 
 among the jiuhlications of the Record Commission, in 1S35 and 1844; the 
 llotuli de oblatis of .lohii .'ind the Kotuli 'de Liberate ac do Misis et 
 I'racstitis ' in 1S44 iiy Sir T. nufl'ns i lardy ; the llotuli Curiae Regis of 
 Richard and .John by Sir F. J'algrave in 1835 ; and tlie Close and Patent 
 Rolls of John betsveeri 1833 and 1844 by Sir T. D. Hardy. 
 
 ^ Tliis important record is only to be found in Sir F. Palgrave's Rise 
 and J'rogress of the English Commonwealth (vol. ii), where it is illusti'ated 
 by moat interesting notes.
 
 xiii.] Judicial Institutions. 599 
 
 Henry of Essex the Constable, Thomas the Chancellor, and the Trials in the 
 earl of Leicester the cojusticiar, are found hearing pleas in 
 different counties ^. The Chancellor, if we may believe the con- 
 sistent evidence of his biographers, habitually relieved the king 
 of the irksome part of his judicial duties ^. From the Con- The Curia in 
 atitutions of Clarendon again we learn that the Curia Regis 
 possessed the organisation of an established tribunal, the action 
 of which in ecclesiastical cases must be held to prove a still 
 wider action in secular causes. In 1 165, the year after the enact- 
 ment of the Constitutions, we have an agreement between the 
 abbots of "Westminster and S. Alban's attested by several of 
 the ministers of the Exchequer vmder the title of justices ^, and 
 in 1 166 we come to the Assize of Clarendon, which marks an Inii66, 
 epoch in the administration of, at least, the criminal law. 
 During these j^ears — for such is the reasonable inference — the 
 judicial work of the Curia Regis had been growing until it was 
 more than the king and his regular ministers of state could dis- 
 patch, and was thus falling, even niore completely than it had 
 done under Henry I, into the hands of the officers of the 
 
 Exchequer. The system of recognitions was, as the Constitu- Increase of 
 
 business. 
 tions of Clarendon jirove, in full play, and the superior chances 
 
 of justice which that system afforded were drawing larger 
 
 business to the court, and at the same time involved a vast 
 
 'officina brevium,' with a body of trained clerks* and a regular 
 
 code of practical jurisprudence. Unfortunately we are unable 
 
 to discover the date at which the Great Assize was issued; if 
 
 this were known, it would probably be found to coincide with 
 
 one of the periods at wliich great changes were made in the 
 
 judicial staff. 
 
 The first however of these epochs is the year 11 66. The 
 
 ' Pipe Rolls of Henry II, pp. 17, 26, 65. An assize of the Chancellor 
 and Henry of Essex is mentioned in Essex, pleas of the Chancellor and the 
 earl of Leicester in Lincolnshire, in the second year. In the fourth year 
 are entered pleas of the Chancellor in MiiMlesex. 
 
 " Roger of Pontigny (V. S. Thom. ed. Giles), i. 102 ; W. Fitz-Stephen, 
 ibid. i. 170, 186. 
 
 ^ Madox, Hist. Exch. p. 30 ; Formulare Angl. p. xix. 
 
 * Under Becket as Chancellor were fifty-two clerks ; some of them how- 
 ever belonged to bis private retinue. W. Fitz-Stephen, i. 196.
 
 6oo 
 
 Constitutional Htstorr/. 
 
 [chap. 
 
 Itiiif^rant 
 iustices in 
 1166. 
 
 In 1 168. 
 
 In 1176. 
 
 Growth of 
 the staff of 
 judges. 
 
 changes in the Curia Regis at this date were so great as to call 
 for especial notice from John of Salisbury, even in the height of 
 the Becket controversy ^; and the Assize of Clarendon, which 
 belongs to the same year, denotes the character of the changes. 
 Yet the Assize of Clarendon was directed to the improvement 
 of provincial justice ; and it was carried out, not by a new body 
 of judges, but by two of the king's ministers, the justiciar and 
 the earl of Essex, with the assistance of the sheriffs, who, acting 
 under royal writ as administrators of the new law, still engrossed 
 the title of 'justitiae errautes ".' The development of the 
 central jurisdiction is traceable by inference from that of the 
 provincial judicature. The four Exchequer oflScers ^ who assessed 
 the aid 'jjmr fille marier in 1168 are found hearing placita and 
 attesting concords shortly after ; it follows that they acted not only 
 as taxers but as judges. The six circuits of the tallagers of 1 173 
 were no doubt suggestive of the two circuits of the justices in 
 II 75 and the six circuits of the judges in 1 176 *. It is then to 
 these years, from 11 66 to 1176, that we must refer the creation 
 or development of the large staff" of judges in the Curia Regis 
 which we find acting in 11 78. All the eighteen justices of 
 1 1 7 6 were officers of the Exchequer ; some of them are found 
 in 1 1 75 holding 'placita Curiae Regis' in bodies of three or 
 four judges ^, and not in the same combinations in which they 
 took their judicial journeys. We can scai'cely help the con- 
 clusion that the now jurisprudence was being administered by 
 
 ' ' Quae autem circa Anglorum curiam innovantur, ubi reruni crebrae 
 mxitationes sunt, vobis notioni esse arbitror quam nobis.' John of Salisbury 
 writes thus to Bartliolomew bishop of Exeter ; Ep. 145. 
 
 '^ Above, p. .^89, note I. 
 
 ^ Jiiclianl of Ilchoster, Wido clean of Waltham, Rerrinald of AVarenne, 
 and William Basset, were tho four. See Madox, Hist. Exch. pp. 102, 145. 
 
 * Sue the lists for II 76, in Bcnod. i. 107; Madox, Hist. Exch. ]). 86; and 
 those for 1 1 73 are in tlie I'ipe Ivolls only. In I17.S, Kanul|ih (ilanvill and 
 Hu},di de (!reKsi visited tlie eastern and midland counties, William de 
 Laiivalei anil 'I'lmmas 1 '.asset tho south and west. Ibid. p. 85. 
 
 •'' For instance, in 1 1 76 William Fitz-llalpli, Bertram de Verdun, and 
 William Basset hear pleas in Curia Regis touching Buckinghamshire and 
 Bedfordshire ; yet, on the eyro, these two counties are visited l)y three 
 other judges ; moreover Bertram de Verdun visited Worcestershire, and tho 
 otlier two with Ilugli de (jundeville visited seven midland counties. The 
 first placita Curiae Regis mentioned by Madox are in 1175. Hist. Exch. 
 pp. C4, 65.
 
 xiii.] The Curia Regis. 601 
 
 committees of the general body of justices, who were equally 
 qualified to sit in the Curia and Exchequer and to undertake 
 the fiscal and judicial work of the eyre. 
 
 The year 11 78 furnishes another epoch. Henry finding that H^^v^l^e- 
 the eighteen judges of the Curia were too many, that they caused number in 
 entanglements in the business of the court, and expense and 
 distress to the suitors, reduced them at once to five\ Some 
 were dismissed perhaps for misconduct ; but very many of the 
 existing judges reapj^ear again in functions scarcely distinguish- 
 able from those which they had discharged before. Yet the 
 statement of the diminution of their number, which is made by 
 a historian singularly well infonned as to the affairs of the 
 court, has considerable significance. From this date we may The Curia 
 fix the existence of the sittings of the Ciu'ia Regis ' in Banco.' banco.' 
 Their proceedings are still nominally transacted ' coram rege,' 
 but nominally only. ' The five are to hear all the complaints 
 of the kingdom and to do right, and not to depart from the 
 Curia Regis.' Questions which are too hard for them are to be 
 referred to the king in person, who will decide them with the 
 advice of the wise men of the kingdom. 
 
 The year 1179 witnessed another change, possibly however of Changes in 
 persons rather than of system. The great justiciar had resigned, 
 and Heni'y bad put the office as it were into commission, em- 
 ploying the bishops of Norwich, Ely, and AVinchester as heads 
 of three bodies of itinerant judges, each containing two clerks 
 and three knights. A fourth body, to which the northern 
 counties Avere assigned, contained Ranulf Glanvill, who was to 
 succeed, the next year, to the justiciarship, with five other 
 judges. This fourth committee, according to the chronicler, 
 
 * Benedict, i. 207 : ' Itaque dominus rex nioram faciens in Anglia quae- 
 sivit de justitiis quos in Anglia constituerat, si bene et niodeste tractave- 
 runt homines regni ; et cum diilicisset quod terra et homines terrae niniis 
 gravati essent ex tanta justitiarum multitudine, quia octodecim erant 
 numero ; per consilium sapientium regni sui qninque tantuni elegit, duos 
 scilicet clericos et tres laicos : et erant onines de privata familia sua. Et 
 statuit quod illi (juinque audirent omnes clamores regni, et rectum facerent, 
 et quod a Curia Regis non recederent, sed ibi ad audiendum clamores 
 hominum remanerent, ita ut, si aliqua quaestio inter eos veuiret quae per 
 eos ad finem duci non posset, auditui regie praesentaretur et sicut ei et 
 sapientioribus regni placeret terminaretur.'
 
 6oa Constitutional History. [chap. 
 
 The Curia entered into the place assigned iu 1178 to the five judges 
 
 in ii79> 
 
 retained in the Curia ; ' these six are the justices constituted in 
 the Curia Eegis to hear the complaints of the people ^ : ' why 
 the circuit most remote from the capital was assigned to them 
 we are not told, but as the whole business of the eyre was con- 
 cluded between April i and August 27, there could have been 
 no insuperable difficulty. 
 
 This is the last notice of the constitution of the Curia Regis 
 which the historians of Henry's reign have preserved to us : and 
 the modifications wliich are traceable in records from this point 
 to the date of Magna Carta are of personal rather than legal 
 importance. The work of Glanvill furnishes us with the rules 
 of procedure 3 the Rotuli Curiae Regis which begin in 1194 
 aff'ord a record of the actual business done, and the names of the 
 judges employed are discoverable from these and other records. 
 General con- So far then as concerns the framewoi'k of the supreme judi- 
 the ^owth cature, our conclusion for the present is this : from the year 
 " 1179 sessions of 'justitiarii in Banco ^' are regularly held in the 
 Curia Regis, nominally but not actually ' coram rege.' These 
 justices are a selection from a much larger staff, before whom 
 Exchequer business is done, and who undertake the work of the 
 circuits : and it would appear probable that the selection was 
 altered from time to time, possibly from year to year. Their 
 work was to hear all suits that were brought before the king, 
 not only criminal but civil, cases in which the revenue or rights 
 of the king Avere touched, and cases of private litigation with 
 which the king, except as supreme judge, had no concern : all the 
 business in fact which came at a later period before the courts 
 of King's Bench, Exchequer, and Common Pleas. Although 
 
 ^ Bened. i. 238 ; K. de Diceto, c. 605. 
 
 * Glanvill, lib. ii. 6 ; viii. c. I ; xi. c. i : ' coram Justitiis Domini Regis in 
 banco re«identilius.' Coke's notion that by this session of the judges the 
 Common Bench or Court of Common Pleas is meant, is mentioned by Madox 
 only to refute it ; Hist. Exch. p. 546, Foss also argues conclusively against 
 it; Judges of England, ii. i6i. See also H.ardy's Introduction to the Close 
 KoUs, vol. i. pp. XXV. sq. Instances of Final Concords made before the 
 justices of the tluria, answering to those described by Glanvill as made before 
 the justices in Banco, will be found in Madox, Fonnulare Anglicanum, pp. 
 317 sq., and in the Fines published by the Record Commission ; above, 
 p. 598, note 2.
 
 XIII.] The Curia Begis. 603 
 
 their deliberations were not held in the king's presence, they The later 
 
 1 . , , divisions of 
 
 followed his person, or the justiciar in the king s absence ; a rule the courts, 
 which must have been most burdensome to ordinaiy suitors, and 
 which accordingly, so far as touches private civil suits or ' com- 
 munia placita,' was abolished by Magna Carta. The fixing of 
 the Common Pleas at "Westminster broke up the unity of the 
 Curia ^ ; but it was not until the end of the reign of Henry III 
 that the general staff was divided into three distinct and per- 
 manent bodies of judges, each under its own chief. 
 
 But the court or courts thus organised must no longer be The court of 
 regarded as the last resource of suitors. The reservation of audience, 
 knotty cases to be decided by the king with the coimcil of his 
 wise men^, cases which, as we learn from the Dialogus de Scac- 
 cario, included questions of revenue as well as of law in general^ 
 continues the ancient personal jurisdiction of the sovereign. The 
 very act that seems to give stability and consistency to the 
 ordinary jurisdiction of the Curia, reduces it to a lower rank. 
 The judicial supremacy of the king is not limited or fettered by The judicial 
 the new rule ; it has thrown off an offshoot, or, as the astro- of the king. 
 nomical theorists would say, a nebulous envelope, which has rolled 
 up into a compact body, but the old nucleus of light remains un- 
 impaired. The royal justice, diffused through the close personal 
 council*, or tempered and adapted by royal grace and equity 
 under the pen of the chancellor '', or exercised in the national 
 
 ^ By the seventeenth article of M.agna Carta. The Provisions of the 
 Exchequer, 1 2 Eilw. I, and the Articuli super Cartas, 28 Edw. I, c. 4, forbid 
 Common Pleas to be holden henceforth in the Exoliequer. 
 
 ^ Above, p. 601. Tlie same principle is stated in the Articles of the Assize 
 of Northampton : ' Ni.si tam grandis sit querela quod non possit deduci sine 
 domino rege, vel talis quam justitiae ei reportent pro dubitatione sua.' 
 
 * Dialogus, i. c. S : ' Si . . . fieri contigerit, ut inter ipsos majores dissensi- 
 onis oriatur occasio . . , honnu omnium cognitio ipsi principi reservabitur.' 
 
 * See Sir Francis Palgrave's Essay on the Jurisdiction of the King's 
 Council, and Dicey's Essay on the Privy Council. 
 
 ' The growth of the Chancellor's jurisdiction does not fall within the 
 present period ; but the increa-sed importance of his position is remarkable, 
 and the germ of his future functions was in being already. William Eitz- 
 Stephen, who was one of Becket's clerks, writes thus : ' Cancellarii Angliae 
 est ut secundus a rege in regno habeatur, ut altera parte sigilli regii, quod 
 et ad ejus pertinet custodiam, propria signet mandata ; lit capella regis in 
 ipsius sit dispositione et cnra, ut vacantes archiepiscopatus, episcopatus, ab- 
 batias et baronias cadentes in mauu regis ipse suscipiat et couservet ; ut
 
 6o4 Constitutional History. [chap. 
 
 Its con- assembly as in the ancient wit ena gemot, or concentrated in the 
 
 tinuity. . . . . 
 
 hands of an irresponsible executive in the Star Chamber, has for 
 
 many generations and in many various forms to assert its 
 
 vitality, unimpaired by its successive emanations. 
 
 The growth In tracing the history of the central judicature we have had 
 
 oftheitme- . . * / ^ . *' . 
 
 rantjudica- to anticipate the leading points of interest in the development 
 
 of the visitatorial jnrisdiction. The whole may be briefly 
 
 summed up. The circuits of the royal ofiicers for fiscal and 
 
 judicial purj^oses, which we have traced in the reign of Henry I, 
 
 continue to have the same character under Henry II, the judicial 
 
 forms following rather than preceding the fiscal. In 1 1 66 the 
 
 itinerant court receives new and full instructions fi'om the 
 
 Assize of Clarendon, but it is still the Curia Regis in progress, 
 
 Formation a great part of the work being done by the sheriffs^. In ii'76 
 
 and changes ... „ i • i ■ ^ • n 1 1 «• • 
 
 of circuits. Six circuits are lormed, eighteen judges are specially told on in 
 
 six detachments, as had been done in the fiscal iter of 1173 : in 
 
 1 1 78, 1 179, and 1 180 there seem to be four circuits, and the 
 
 arrangements in the later years vary between two and six. 
 
 Under Richard we have still further modifications, and the same 
 
 in the early years of John, none of them however involving a new 
 
 principle of construction, but all perhaps implying a restriction 
 
 omnibus regis adsit consiliis, ut etiam non vocatus accedat ; ut omnia 
 sigilliferi regii clerici sui nianu signentur, omnia cancellarii consilio dis- 
 ponantur ; item ut, suffragan tibus ei per Dei gi-atiam vitae meritis, non 
 moriatur nisi arehiepiscopus aut episcopus, si voluerit. Inde est quod can- 
 cellaria emenda non est.' V. S. Thoni. i. 1S6. The Dialogus de Scaccario 
 represents the justiciar as 'primus post regem ;' tlie term 'secundus a 
 rege ' probably means next after the justiciar ; the form is frequently used 
 by Becket's friends. Tlie Dialogus (lib. i. c. 5) confirms most of the state- 
 ments of the biograi)her just cited; nothing is done without his consent 
 and advice either in the Curia or in the Kxcheipier ; he has charge of the 
 royal seal, sealing it up into its loculus or purse, which is kept by the 
 treasurer. 
 
 •The statement that the chancery is not purchaseable is disproved by some 
 important excej)tions. See above, ])p. .^84, 497. The fact that the chancellor 
 was always in attendance on the king led to the petitions for royal grace 
 and favour being entrusted to him, first for custody, and afterwards for 
 hearing. Hence arose the equitalde jurisdiction by which he remedied the 
 ' summum jus' of the conunon law or i)roiiiiscd remedies in cases which 
 were not provided fur l>y the common lawyers. 
 
 * Tlie action of a justice itinerant at Bedford in 1 163 was one of the 
 grounds of the quarrel between the king and Becket; the judge was Simon 
 i'itz-reter, who had cea-sed to be sheriff of Bedfordshire two years before. 
 Rog. Pout. S. T. C. i. 1 14.
 
 XIII.] The County Courts. 605 
 
 of the local jurisdictions of the sheriff and the sliire-moot ^ At itinerant 
 
 justices, 
 last, in the eighteenth clause of Magna Carta, the king under- 
 takes to send two justices four times a year to take the assizes 
 of Mort d'ancestor, Novel disseisin, and Darrein presentment. 
 This arrangement proved no doubt far too burdensome to be 
 continued, but the changes indicated in the re-issues of the 
 Charter and carried into effect in periodical iters of the judges 
 lie beyond our present inquiry. The justices of the year 
 1 176 are the first to whom the name Justitiarii Itinerantes is 
 given in the Pipe Rolls: the commissioners of 1170 are called 
 Barones errantes : ' perlustrantes judices' is the term used by 
 the author of Dialogus; the sheriffs were the 'errantes justitiae ' 
 known to John of Salisbury in 1159. The various applications 
 of the terms may mark the growth and consolidation of a 
 system by which the sheriffs were deprived of the most impor- 
 tant of their functions. 
 
 The visits of the itinerant justices form the link between the The courts 
 Curia Regis and the Shire-moot, between royal and popular tices are^fuU 
 justice, between the old system and the new. The courts in courts. 
 which they preside are the ancient county courts, under new 
 conditions, but substantially identical with those of the Anglo- 
 Saxon times. The full shire-moot consists, as before, of all the 
 lords of land and their stewards, and the representatives of the 
 townships, the parish priest, the reeve and four men from each ; 
 but the times of meeting, the sphere of business, and the nature 
 of procedure during the period before us have undergone great 
 and significant changes, some of which can be minutely traced, 
 whilst others can be accounted for only by conjecture. 
 
 The Anglo-Saxon shire-moot was held twice a year : the Times of 
 county court of Henry I was held as it had been in King county 
 Edward's days, that is, according to the ' Leges Henrici I,' twice 
 a year still. Yet in the confirmation of the Great Charter, 
 issued by Henry III in 12 17, it is ordered that the county court 
 shall meet not more than once a month, or less frequently where 
 such has been the custom. It is not easy to determine the date 
 
 ' Above, pp. 505 sq.
 
 6o6 Constitutional History. [chap. 
 
 Increase of or the causes of SO great a cbanffe. Possibly the sheriffs had 
 
 small suits . ° ... 
 
 in the abused their power of summoning special meetings and of fining 
 
 courts. absentees; a custom which comes into prominence in the reign 
 of Henry III, and which shows that it was the direct interest 
 of the sheriffs to multiply the occasions of summons. Possibly 
 it may have arisen from the increase of business under the new 
 system of writs and assizes, which involved the frequent adjourn- 
 ment of the court for short terms : possibly from an earlier usage 
 by which the practice of the county court was assimilated to 
 that of the hundred with the special object of determining suits 
 between litigants from different hundreds or liberties. Or it 
 may have been caused by the gradual withdrawal of the more 
 important suits from the shire-moot, the natural result of which 
 would be the increase of the number of less important meetings 
 for the convenience of petty suitors. 
 Limitations The power of the sheriff, again, had been very much limited, 
 of the sheriff, not only by the course of political events noticed in the last 
 chapter, but by the process of centering the administration of 
 justice in the hands of the itinerant justices and the Curia 
 Regis, — a process the stages of which may be more easilj"^ traced. 
 At the beginning of the period the sheriffs were the ' errantes 
 justitiae,' only occasionally superseded and superintended by the 
 itinerant justices. As sheriffs, probably, they presided in the 
 court of the county in which the suitors were the judges, and 
 were answerable for the maintenance of the peace : as royal 
 justices they acted under special writ, managed the pleas of the 
 Crown, and conducted the tourn and Icct, or the courts which 
 were afterwards so called. In 1166 they were still in the same 
 position; the itinerant justices by themselves, and the sheriffs by 
 themselves, received and acted on the presentment of the grand 
 juries. But from 11 70, after the great inquest into their exac- 
 tions ^, their authority is more and more limited. In the Assize 
 of Northanij)ton they are rather servants than colleagues of the 
 itinerant justices; in 1194 it is provided that they shall no 
 more be justices in their own counties, and the elective office of 
 
 ' Above, p. 472.
 
 xiii.] The Sherljjh Jurisdiction. 607 
 
 coroner is instituted to relieve them from the duty of keeping The sherifT 
 the pleas of the Crown ^. In 1 195 the duty of receiving the oath hold pleas of 
 of the peace is laid, not on the sheriffs, but on knights assigned 
 in each county, the duty of the sheriffs being only to receive and 
 keep the criminals taken by these knights until the coming of 
 the justices. In 12 15 the barons propose that the sheriffs shall 
 no longer meddle with the pleas of the Crown, without the 
 coroners ^ ; whilst the Great Charter, in the clause founded on 
 that proposal, forbids either sheriff or coroner to hold such pleas 
 at all. We may question whether these regulations were strictly 
 observed, especially as before the year 1258 the sheriffs seem to 
 be as powerful as ever, but they show a distinct policy of sub- 
 stituting the action of the justices for that of the sheriffs, a 
 policy which might have led to judicial absolutism wei-e it not 
 that the growing institution of trial by jury vested in the free- 
 men of the county far more legal power than it took away from 
 the sheriffs. These officers too had long ceased even remotely 
 to represent the local feeling or interest. 
 
 The shire-moot which assembled to meet the itinerant judges The fullest 
 Avas, however, a much more complete representation of the court held 
 county than the ordinary county court which assembled from rant jus- 
 month to month. The gi*eat franchises, liberties, and manors 
 which by their tenure were exempted from shire-moot and 
 hundred were, before these visitors, on equal terms with the 
 freeholders of the geldable, as the portion of the county was 
 called, which had not fallen into the franchises. Not even the 
 tenants of a great escheat in the royal hands escaped the obli- 
 gation to attend their visitation^. The representation was 
 thoroughly organised : side by side with the reeve and four 
 men of the rural townships appeared the twelve legal men of 
 each of the chartered boroughs which owed no suit to the 
 ordinary county court ^. In the formation of the jury of pre- 
 
 ^ Above, p. 505. 
 
 - Articles of the Barons, art. 14; Magna Carta, art. 24. 
 
 ^ Assize of Clarendon, art. 9,11. 
 
 * Charter of Dunwich, Select Charters, p. 303. Customs of Kent, 
 Statutes of the Realm, i. 223. Instances of this sort of representation taken 
 from the Assize Rolls will be found in Eyton's History of Shropshire iu
 
 6o8 Conditidlonal History. [chap. 
 
 Eepresenta- sentmeiit tlie same ])rinciple is as clear ; each hundred supplies 
 tive juries. . 
 
 twelve legal men, and each township four, to make report to the 
 
 justices under the Assize of Clarendon, and in 1194 twelve 
 knights from each hundred answer for their hundred under all 
 the articles of the eyre, whether criminal, civil, or fiscal ^. The 
 court thus strengthened and consolidated, is adopted by the 
 royal ofl&cers as an instrument to be used for other purposes. 
 All who are bound to attend before the itinerant justices are 
 compelled to attend the forest courts ^; and they probably form 
 the ' plenus comitatus ' which elects, according to Magna Carta, 
 the knights who are to take the assizes, and the twelve knights 
 who are to inquire into the abuses which Magna Carta was 
 designed to reform. 
 Institution 164. It is in the new system of recognition, assizes, and present- 
 step in the ments by jury that we find the most distinct traces of the gi'owth 
 representa- of the principle of representation ; and this in three ways. In 
 tive system, ^j^^ ^^^ place, the institution of the jury was itself based on 
 a representative idea : the jurors, to whatever fact or in whatever 
 capacity they swore, declared the report of the community as to 
 the fact in question. In the second place, the method of inquest 
 was in England brought into close connexion with the procedure 
 of the shire-moot, and thus the inquisitorial jiroccss, whether its 
 object was the recognition of a right or the i)resentment of 
 a criminal, was from the moment of its introduction carried on 
 in association with the previously existing representative in- 
 stitutions, such as were the reeve and four best men, the twelve 
 senior thcgns, and the later developments of the same practice 
 which have been just enumerated in our account of the formation 
 of the county court and the usage of legal assessment. In the 
 third place, the particular expedients adopted for the regulation 
 
 considerable niimherH. Writs of Tlonry Til, from 1217 onwards, are found 
 among tlie Close llolls, ordering the summons to the county court to 
 be addressed to 'iireld)islio])M, bishops, abbots, juiors, earls, barons, knights, 
 and freeholders ; four men of each township and twelve burghers of each 
 borough to meet the justices.' Hot. CI. i. 380, 403, 473, 476; Select 
 Charters, p. 349. 
 
 ' Hoveden, iii. 262 ; above, p. 505. 
 
 * Assize of Woodstock, art. 11. Cf. Magna Carta, .art. 44; Carta de 
 Foresta, art. 2 ; Assize of Arms, of 1253 ; Select Charters, p. 365.
 
 XIII.] Origin of Juries. 609 
 
 of the inquests paved the way in a remarkable manner for the 
 system of county representation in the parliament as we saw it 
 exemplified on the first occasion of its appearance in the reign 
 of John. The use of election and representation in the courts 
 of law furnished a precedent for the representation of the 
 county by two sworn knights in the national council. On each 
 of these heads some detail is necessary which may throw light 
 incidentally on some kindred points of interest. 
 
 The history of the Jury has been ti'eated by various writers Trial byjurj' 
 
 . . . .... variously 
 
 from every possible point of view^: its natural origin, its his- treated.' 
 torical development, the moral ideas on which it is founded, and 
 the rational analysis of its legal force, have all been discussed 
 many times over with all the apparatus of learning and the 
 acute penetration of philosophical research. Some of these 
 aspects are foreign to our pi'esent inquiry. Yet the institution 
 is of so great interest both in itself and in its relations that 
 some notice of it is indispensable. 
 
 We have sketched, in an earlier stage of this work, the forma- Modes of 
 
 » , . . . ^, Mil- ''''''^' amonpr 
 
 tion 01 the primitive Orerman courts : they were tribunals 01 the German 
 fully qualified members of the community, a selection it might 
 be from a body of equally competent companions, able to declare 
 the law or custom of the country, and to decide what, according 
 to that custom, should be done in the particular case brought 
 before them. They were not set to decide what was the truth of 
 facts, but to determine what action was to be taken upon jjroof 
 given. The proof was itself furnished by three means, the oaths Oaths, 
 
 cvidcncG 
 of the parties to the suit and their compurgators, the production ordeal. 
 
 of witnesses, and the use of the ordeal : the practice of trial by 
 
 battle being a sort of ultimate expedient to obtain a practical 
 
 decision, an expedient partly akin to the ordeal as a judgment 
 
 of God, and partly based on the idea that where legal measures 
 
 had failed recourse must be had to the primitive law of force, 
 
 — the feud or right of private war, — only regulated as far as 
 
 ' See Palgrave, Rise and Progress of tlie English Commonwealth ; Forsyth, 
 History of Trijil by Jury ; Biener, das Englische Gesclnviwnengericht ; 
 Gneist, Self-Govemment, i. 74 sq. ; K. Maurer in the Kritische Ueberschau, 
 V. pp. 180 sq., 332 sq. ; and Brunner, Entstehung der Schwiirgerichte. 
 
 R r
 
 6io 
 
 Constitutional History. 
 
 [chap. 
 
 Formalism 
 of the 
 system. 
 
 possible by law and regard for the saving of life. For each of 
 these methods of proof there were minute rules and formalities, 
 the infringement or neglect of which put the offender out of 
 court. The complainant addressed his charge to the defendant 
 in solemn traditional form ; the defendant replied to the com- 
 plainant by an equally solemn verbal and logical contradiction. 
 The compurgators swore, with joined hands and in one voice, to 
 the purity and honesty of the oath of their principal ^. "Where 
 the oath was inconclusive, the parties brought their witnesses 
 to declare such knowledge as their position as neighbours 
 had given them ; the court determined the point to which the 
 witnesses must swear, and they swore to that particular fact ^. 
 They were not examined or made to testify all they knew ; but 
 swore to the fact on which the judges determined that evidence 
 should be taken. If the witnesses also failed the ordeal was used. 
 And where the defeated party ventured to impugn the sentence 
 thus obtained, he might challenge the determination of the court 
 by appealing the members of it to trial by combat. This prac- 
 tice, however common among some branches of the German stock, 
 was by no means universal, and, as has been pointed out, was 
 not practised among the native English. 
 The germ of In these most iirimitive proceedings are found circumstances, 
 
 the jury not . „ . . 
 
 contained in which on a sui)erncial view seem analogous to later trial by 
 this. . ^ ... ... 
 
 jury : but on a closer inspection they warrant no distinct im- 
 pression of the kind. The ancient judges who declare the law 
 and give the sentence — the rachinburgii, or the scabini — are not 
 in any respect the jurors of the modern system, who ascertain 
 the fact by hearing and balancing evidence, leaving the law 
 and sentence to the presiding magistrate : nor are the ancient 
 witnesses who dejxtse to the precise point in dispute, more nearly 
 akin to the jurors who have to inquire the truth and declare 
 
 • The Anglo-Saxon forms of oath may be found in the Ancient Laws, 
 ed. Thorpe, jiji. "](), 77. The oath of the cotnpurf^rator runs thus : ' On thone 
 Driliten hc atli is cla'ue and unniii'ne tlie N. swor.' 
 
 ''' 'I'hc number of witncHHOH rcMjuirod varied in the different nations; the 
 Saxon and Ijoinbard lawH rciiuired two at k;ast : tlio Bavarian, three or 
 more : tlie Frank laws, seven or twelve, according to the importance of the 
 matter in question. Brunner, Schwurgericht, p. 51.
 
 XIII.] Orif/in of Juries. 61 1 
 
 the result of the inquiry, tliau to the modern witnesses who 
 
 swear to speak not only the truth and nothing but the truth, but 
 
 the whole truth. The compurgators again swear to confirm the 
 
 oath of their principal, and have nothing in common with 
 
 the jury but the fact that they swear \ Yet although this is Yet the oatii 
 ,. . 1 , . . . • ii and evidence 
 
 distmctly the case, the procedure in question is a step m the are of a re- 
 
 .,.,,. presentative 
 
 history of the jury: the first form in which the jury appears character. 
 
 is that of witness, and the principle that gives force to that 
 
 witness is the idea that it is the testimony of the community : 
 
 even the idea of the compurgatory oath is not without the same 
 
 element ; the compurgators must be possessed of qualities and 
 
 legal qualifications which shall secure their credibility. 
 
 Beyond this stajje, modified it is true here as elsewhere by Anglo-Saxon 
 '' o ' •' system. 
 
 different circumstances and local usages, the Anglo-Saxon system 
 
 did not proceed. The compurgation, the sworn witness, and 
 
 the ordeal supplied the proof j and the sheriff with his fellows, 
 
 the bishop, the shire-thegns, the judices and juratores, the 
 
 suitors of the court, declared the law. Only in the law of The twelve 
 
 ' _ •' the,snsinth3 
 
 Ethelred, by which the twelve senior thegns in each wapentake shire-moot. 
 
 are sworn not to accuse any falsely ^, do we find the germ of 
 
 a more advanced system, in which the community seems to 
 
 undertake the duty of prosecution : but the interpretation of 
 
 the passage is disputed, and its bearing contested, although it 
 
 seems to imply no more than that the English were not far in 
 
 arrear of the Frank jurisprudence. 
 
 The whole system of recognition by sworn inquest, with the Recognitions 
 
 . "^ . *= i . ^ . introduced 
 
 single exception, if it be an exception, which has just been into England 
 mentioned, was introduced into England by the Normans : the nians. 
 laws of Edward, the Domesday Survey, the fiscal recognitions 
 of the reigns of William Ilufus and Henry I ^, are distinctly 
 a novelty, a part of the procedure of the newly-developed 
 system of government. Various theories have been invented 
 for their origin. Many writers of authority have maintained 
 that the entire jury system is indigenous in England, some 
 
 Forsyth, Hist, of Jury, p. 83. ^ Above, pp. 115, 396. 
 
 3 Above, pp. 385, 394, 395. 
 
 R r 2
 
 6 12 Constitutional History. [chap. 
 
 deriving it from Celtic tradition based on the principles of 
 Roman law and adopted by the Anglo-Saxons and Normans from 
 Various the people they had conquered ^ Others have regarded it as 
 the national a product of that legal genius of the Anglo-Saxons of which 
 jury!"° Alfred is the mythic impersonation; or as derived by that 
 nation from the customs of primitive Germany or from their in- 
 tercourse with the Danes. Nor, even when it is admitted that the 
 system of recognition was introduced from Normandy, have legal 
 writers agreed as to the source from which the Normans them- 
 selves derived it. One scholar maintains that it was brought by 
 the Norsemen from Scandinavia ; another that it was derived from 
 the processes of the canon law ; another that it was developed 
 on Gallic soil from Roman principles ; another that it came 
 from Asia through the Crusades, a theory whicli has little more 
 to recommend it than the still wilder supposition that it is of 
 Slavonic origin, and borrowed by the Angles and Saxons from 
 their neighbours in Northern Europe. But all these theories on 
 examination show that their inventors have either been misled 
 by superficial coincidences, or argue on hypothesis only. The 
 only principle which the systems on which the theories are built 
 have in common is the use of the oath as an instrument of 
 judicial procedure, and this use is universal. The truth seems 
 to be that the inquest by sworn recognitors is directly derived 
 
 * According to Brnnner, pp. 11-T9, the origin of the jury among the 
 Welsh, from whom it was borrowed by the Anijlo-Saxons, is maintained by 
 Philipps (On Juries) and Probert (On the Ancient Laws of Cambria) ; 
 Selden, Spelman, Coke, Turner, Phillips, and G. L. von Maurer regard it 
 as a product of Anglo-Saxon genius. Of the authors who Iiold th.at it was 
 imported from primitive Germany, Brunner mentions Bacon, Mcmtesquieu, 
 Blackstone, Savigny, and Nicliolson in the preface to Wilkins' Anglo-Saxon 
 Laws ; Wormius and Worsaae held that it was derived from the Norsemen 
 through the Danes ; Hickes, Reeves, and others, that it was derived from 
 the Norsemen through the Normans of the Ctmquest ; and Konrad Maurer, 
 who has investigated the analogous system in use among the Norsemen, 
 argues for a common AV>r//(, Gennan origin, from which the princijjle of jury 
 has been developed in different ways by the several races in which it is 
 found. Of those writers who allow that it is of Norman introduction, 
 Daniels maintained that the Normans found it existing in Finance ; Mohl 
 derived it from the usages of the canon law ; Meyer sujiposcd that it came 
 from Asia by way of the Crusades; Maciejowski claimed it fortlie Sl.avonic 
 neighbours of the Angles and Saxons. The theory given in the text is 
 mainly that of Palgrave, but corrected and adjusted by the recent writings 
 of Dr. Brunner.
 
 XIII.] Origin of Jtiries. 613 
 
 from the Frank Capitularies, into which it may have been Theinguests 
 
 ^ 1 , . of the Frank 
 
 adopted from the fiscal regulations of the Theodosian Code^, kings. 
 and thus own some distant relationship with the Koman jui'is- 
 prudence. The Karolingian kings issued instructions to their 
 Missi very much as Henry II issued instructions to his itinerant 
 justices, and they gave special commissions of inquiry into fiscal 
 and judicial matters to be answered by the oath of sworn wit- 
 nesses in the district court ^. These answers then embodied 
 the belief or knowledge of the local court as representing the 
 community, every qualified member of the community being 
 a member also of the court. The persistence of the inquisitorial 
 system is proved not only by Norman charters and customs, but 
 
 * Palgrave, English Commonwealth, p. 271 ; Brunner, p. 87. The fol- 
 lowing passages from the Theodosian Code are cited by Brunner: 'Super 
 vacantibus ac caducis . . . certi etiam dirigantur qui euncta solerter inquirant 
 et cujus fuerint facultates, et si nemo eas sibi jure nititur retentare. Ac 
 si locum fisco factum esse claruerit occupatis prius bonis et rerum omnium 
 descriptione perfecta . . .' Cod. Theod. x. 10. 1. 1 1. ' Ex privatorum . . . sol- 
 licitudine coiitractuum . . . illis . . . personis a quibus pnblici muneris injuncta 
 curantur, nullum fomitem calumniae patimur litis accendi. Cur enim 
 continentiam venditionis alienae inquisitio palatina rimetur ?' Ibid. 1. 29. 
 
 ^ The following instances show thiit this usage was applied primarily to 
 cases in which the royal interests were concerned, and that the witnesses 
 supplied the evidence of the neighbourhood : ' Item volumus ut omnis inqui- 
 sitio quae de rebus ad jus fisci nostri pertinentibus facienda est, non per 
 testes qui producti fuerint sed per iUos qui in eo comitatu meliores et vera- 
 ciores esse cognoscuntur, per illorum testimonium inqui.sitio fiat, etjuxta 
 quod ilii itide testificati fuerint vel contineantur vel reddantur.' Capit. 829. 
 § 2. ' Ut pagenses per sacramentum aliorum hominum causas non inquiran- 
 tur nisi tantum dominicas.' Capit. 819. § i ; Brunner, p. 88; Baluze, i. 
 p. 409. ' Ut in omni comitatu hi qui meliores et veraciores inveniri possunt 
 eligantur a missis nostris ad inquisitiones faciendas et rei veritatem dicen- 
 dam et ut adjutores comitum sint ad justitias faciendas.' Baluze, i. 449. 
 The best instances for comparison .are the Assizes of Clarendon and 
 North.ampton, the Inquest of Sheriffs, and the Capitula of 1 194 ; they may 
 be compared with tlie capitula data missis in 802, e.g. ' de fidelitate jusju- 
 randum ut omnes repromittant ; ' Baluze, i. 267. ' Inquir.atur qui sunt qui 
 debent domino regi homagium et non fecerunt ; ' Inquest of Sheriffs, art. xi. 
 'Item justitiae capi.ant domini regis fidelitates;' Ass. North.ampt. art. 5. 
 Or again on the subject of criminals, fugitives, strangers, forgers, the effects 
 of war, abundant coincidences of the most striking character will be found 
 in the capitularies of 802, 806, 819, 829, 854, 860, 865. The following ex- 
 tract from a capitulary of 868 is in close parallel witli the instructions for 
 the Domesday Inquest : ' Inquirant quoque quot (canonici, etc.) tempore 
 avi nostri Karoli et domini genitoris nostri Hludovici unoquoque in loco 
 fuerint et quot modo sint ; et ubi loca a Nortmannis sive a quibuslibet aliis 
 destructa ot penitus adnullata, quot ibi nunc propter paucititem rerum et 
 devastationem eorundem constitui vel ordinari possint ; ' Baluze, ii. 1 39.
 
 6 14 Constitutional History. [chap. 
 
 The Inquest by the existence of the kindred principle, undeveloped indeed 
 perpetuated -> ■, ^ .,.. i^i p-n i 
 
 in Nor- and early forgotten, in the jurisprudence of the rest oi France\ 
 
 mandy from i i i i • i • -».t "i 
 
 the Karo- The order to hold such inquest was a royal, or in JSormandy 
 times. a ducal privilege, although it was executed by the ordinary local 
 
 officers ; primarily it was employed to ascertain the rights and 
 interests of the Crown ; by special favour permission was ob- 
 tained to use it in the concerns of the churches and of private 
 individuals ^. Even under this system the sworn recognitors 
 were rather witnesses than judges ; they swore to facts within 
 their own knowledge ; the magistrate to whom the inquiry was 
 entrusted was the inquirer, and he inquired through the oath 
 of men sworn to speak the truth and selected in consequence of 
 their character and local knowledge. 
 This was the Such was the instrument which, introduced in its rough sim- 
 
 sourcG of 
 
 trial by jury.jilicity at the Conquest, was developed by the lawyers of the 
 Plantagenet period into the modern trial by jury. Henry II 
 expanded and consolidated the system so much that he was not 
 unnaturally regarded as the founder of it in its English character. 
 From being an exceptional favour, it became under his hand a 
 part of the settled law of the land, a I'esource which was open to 
 
 ^ The continuance of the system in France from the Karolingian times 
 and tlirough the Nonnan period is proved by Dr. Bruiiner in his work so 
 frequently referred to above. The most curious phaenomenon in connexion 
 with it is the fact that it was only on English soil that it gained much 
 develojmient, the Norman lawyers seeing themselves rapidly outstripped by 
 those of England, and the institution withering away in the rest of France 
 until it became extinct. 
 
 ' The coincidences between the practice described by Glanvill and the 
 usages of the Great Coutumier of Normandy have of course led to two 
 opposite theories ; one that the Norman usage was a faulty imitation of 
 the English ; the other that tlie system was transjdanted full-grown from 
 Normandy to Jiiigland. Neither is true ; the system of recognition existed 
 in Normandy before it was brought to England, hut it was developed in 
 England, and that (levclo|)ment prol)ably liad a reflex influence on Nor- 
 mandy. It would be wrong to suj)pose that the (ircat C!ofltuniicr affords 
 an exact jiicture of the Normandy even of Henry II's reign, much more 
 that the I'^tiglish system developed from a germ which is represented by 
 the Great ('outumier. There are however in the minute legal peculiarities 
 of the Norman recognitions as described in tliat work, signs of a primitive 
 character, a simi)licity .and general a])plicability which seem to show that 
 it had ln;en naturaliseii there in a much I'arlier form than it was in 
 England, and this confirms the historical and documentary evidence. The 
 whole subject is interesting, but it involves a great quantity of minute 
 legal details which have very slight connexion with our present inquiries.
 
 XIII.] Origin of Juries. 615 
 
 every suitor. The recognitions are mentioned by Ralph Niger ^ Recogni- 
 as one of his expedients of tyranny ; by Ranulf Glauvill as a said to be 
 
 , . . an invention 
 
 boon conierreu by royal benevolence on the people, and with the of Henry II. 
 counsel and consent of the nobles. John, in a charter granted 
 to the church of Beverley, forbids that the rights of that church 
 should be damaged by assizes or recognitions, and adds that the 
 pleas shall be held in the court of the provost as they were in 
 the reign of Hemy I, before recognitions or assizes had been 
 oi'dained in the kingdom ^. So early had Henry II acquired 
 the fame of having instituted the system, which he had indeed 
 remodelled and made a part of the common right of his subjects, 
 but which had certainly existed under his four predecessors. 
 
 The application of the principle to legal matters — for we have His use of 
 
 1 • 1 • o 1 11 ■. 1 1 , it in the 
 
 already noticed its fiscal use — may be placed under two heads : assizes. 
 
 the inquest in civil matters exemplified in the Great Assize 
 
 and in the Assizes of Novel disseisin, Mort d'ancester. Darrein 
 
 presentment, and others ; and the inquest of presentment in 
 
 criminal matters, which appears in the Assizes of Clarendon and 
 
 Northampton. The Great Assize was, according to Glanvill, a The Great 
 
 . . . Assize, 
 
 royal boon by which wholesome provision was made for the lives 
 
 of men and the integrity of the State, so that in maintaining 
 
 theii' right to the possession of their freeholds the suitors may 
 
 not be exposed to the doubtful issue of trial by battle. This 
 
 institution proceeds from the highest equity, for the right which 
 
 after much and long delay can scarcely be said to be proved by 
 
 battle, is by the beneficial use of this constitution more rapidly 
 
 and more convenicntlv demonstrated ^. It is in fact the most An equitable 
 
 institution. 
 
 distinct mark of the original equity with which the royal juris- 
 diction, as civilisation and legal knowledge advanced, was applied 
 to remedy the evils inherent in the rough and indiscriminating 
 formality of the popular tribunals : such the inquest had been 
 under the Karolings, such was the recognition or assize under 
 
 ' Above, p. 492, note i. 
 
 * ' Ubi placita inde fuerunt et esse consueverunt tempore regis Henrici 
 patris nostri vol tempore Henrici regis avi patris nostri, antequam recog- 
 nitiones vel assisae in resfno iiostro e.ssent coiistitutae . . . d . . 8° Oct. anno 
 regni nostri quarto.' Houard, Anciennes Loix, ii. 288. 
 
 * Glanvill, de Legibus, ii. 7 ; above, p. 575.
 
 6i6 
 
 Constitutional History. 
 
 [chap. 
 
 Trial by 
 battle dis- 
 liked. 
 
 Process of 
 the Great 
 Assize. 
 
 Oath of the 
 
 recognitors. 
 
 the Plantagenets. The trial by battle was in England an in- 
 novation ; it was one from which the English recoiled as an 
 instrument associated with tyranny, if not devised for the pur- 
 poses of tyrants ; and the charters of the boroughs frequently 
 contain a provision, dearly bought no doubt but greatly valued, 
 that the burghers shall not be liable to its use^. In the place 
 of this barbarous foreign custom, the following machinery is 
 applied ; the possessor of the freehold in dispute applies to the 
 Curia Regis to stop all proceedings in the local courts until a 
 recognition has taken place as to the right of the claimant^ : 
 and thereupon a writ is issued to the sheriff to that effect. The 
 party in possession is thus said to have placed himself on the 
 assize ; and the next step is taken by the claimant, who demands 
 a writ by which four lawful knights of the county or neighbour- 
 hood shall be empowered to choose twelve lawful knights of the 
 same neighbourhood, who shall declare on oath which of the two 
 litigants has the greater right to the land in question ^. The 
 writ accordingly is issued, addressed to the sheriff, directing 
 him to summon four knights to appear at Westminster to choose 
 the twelve. They appear in due course, and under oath nominate 
 the twelve recognitors, who are tlien summoned to appear before 
 the king or his justices prepared to make their declaration*. On 
 the day fixed they present themselves, and the suit proceeds ; 
 if the twelve are acquainted with the circumstances in dispute 
 and are unanimous, the transaction is complete ; they are sworn 
 'that they will not speak falsehood nor conceal truth' according 
 to knowledge gained by eye-witness or ' by the Avords of their 
 fathers and by such words as they are bound to have such con- 
 fidence in as if they were their owii^.' The declaration made, 
 the sentence is issued. If liowevcr the twelve kniglits or any 
 of them are ignorant, or if tliey disagree, otlieis are to be called 
 in wlio have tin; requisite infoimation ; and wlien the complete 
 number of twelve unanimous witnesses will depose to the fact, 
 
 ' See the Charter of London, Select Charters, p. 103 ; Wincliester, ib. 
 p. 257 ; Lincoln, ib. p. 258 ; above, p. 425, uotc i. 
 
 * (Jlanviil, ii. 7. 3 j],ij ^ jq 
 
 ' Ibid. c. 12. 5 Ibid. c. 17.
 
 xiTi.] Assizes of Henry II. 617 
 
 their verdict is of the same account. The proceedings in the Other 
 
 assizes. 
 other assizes are of the same kind, save that the twelve recognitors 
 
 are nominated hy the sheriff himself without the intervention of 
 
 the four knights electors'. 
 
 The date of the oris^nal enactment of the Great Assize is un- Recopni- 
 
 ° , . . tions before 
 
 known ; but the use of reco2:nition by twelve sworn witnesses the itinerant 
 
 * , justices. 
 
 is prescribed in the Constitutions of Clarendon for cases of dis- 
 pute as to lay or clerical tenure ^. It there appears as a part of 
 the work of the ' capitalis justitia.' From Glanvill it is clear 
 that such litigation might be transacted before the itinerant 
 justices ; and the Assize of Northampton of 1 1 7 6 places among 
 the agenda of the ejTC recognitions of the seisin of heirs, and 
 of 'disseisin upon the assize,' under which descriptions we may 
 detect the cases of Mort d'ancester and Novel disseisin''. In 1 194 
 the grand jury of the hundred are empowered to act on all the 
 business of the session, in which are included all recognitions 
 and assizes ordered by the king's writ, and even recognitions 
 under the Great Assize where the property in dispute is worth 
 five pounds a year or less*. In 1198 the sum is raised to ten 
 pounds, and the elections under the Great Assize are to be made 
 before the itinerant justices. The great charter of John likewise 
 retains the three recognitions of Novel disseisin, Mort d'ancester, 
 and Darrein presentment, to be heard in the quarterly county 
 courts by the justices and four chosen knights* : and the charter 
 of 12 17 orders the same rule to be observed once a year*, except 
 in cases of Darrein presentment, which are reserved for the 
 justices of the bench. The recognitions have become a per- 
 manent and regular part of the county business. 
 
 The development of the jury of presentment is, after its The jury of 
 
 1 TT Tx 111 IJi-esontnient 
 
 reconstitution or creation by Heniy 11, marked by con-e- of criminals. 
 sponding stages of progress. But its origin is less clear. By 
 some jurists it is brought into close connexion with the system 
 
 ' Glanvill, lib. xiii. cc. I, 2 sq. 
 
 ^ 'Recognitione duodeeim legalium hominum.' Art. 9; Select Charters, 
 
 P- 133- 
 
 ^ Art. 5 ; Select Charters, p. 145. 
 
 * Articles 2 and 18; Select Charters, pp. 252, 253. 
 
 * Art. 18. * Articles 13 and 15 ; Select Charters, p. 336.
 
 6i8 
 
 Constitutional History. 
 
 [chap. 
 
 Theory of 
 the origin 
 of jury in 
 criminal 
 
 Assize of 
 Clarendon. 
 
 of compurgation, the jurors who present the list of criminals 
 representing the compurgators of the accuser \ and the jury 
 which at a later period was impannelled to traverse the pre- 
 sentment, representing the compurgators of the accused. Others 
 again connect it with the supposed institution of the collective 
 frankpledge, the corporate responsibility of the tithing, the 
 hundred, and the shire for the production of offenders, which 
 has played so large a part in constitutional theories, but which 
 rests on very slight foundation of fact ^. The frithhorh was 
 neither a body of compurgators nor a jury of presentment. As 
 a matter of history it seems lawful to regai-d the presentment as 
 a part of the duty of the local courts for which an immemorial 
 antiquity may be claimed with at least a strong probability. 
 The leet juries of the small local courts do not draw their origin 
 from anj;- legal enactment, and bear every mark of the utmost 
 antiquity. By them amercements are still made and present- 
 ments offered under oath, although their action is restricted and 
 superseded by newer expedients. But their procedure affords 
 some warrant for believing that the twelve senior thegns who 
 swore in the county court to accuse none falsely were a jury of 
 presentment. If such a theory be accepted, the mention of the 
 juratores of- the shire and hundred which occurs in the Pipe Roll 
 of Henry I is accounted for, and with it the mention of a 
 criminal jury in the Constitutions of Clarendon^. The obscurity 
 of this side of the subject may be regarded as parallel with the 
 scantiness of evidence which we have already noticed as to the 
 recognition. From the year 1166 however the history of the 
 criminal jury is clear. By the Assize of Clarendon inquest is 
 to be made through each county and through each hundred, by 
 twelve lawful men of the hundred and by four lawful men of 
 each township, ' by their oath that they will speak the truth.' 
 
 * This is the theory of Eogge, as stated by Brunner, pp. 25, 26. Hickes 
 long ago Htated tlic fact tliat tlicre is no real connexion between jury and 
 compurgation. The common use of the number twelve is misleading. 
 
 * The theory of (1. L. von Maurer; Brunner, p. 26. 
 
 ^ Const. Clar. art. 6 : ' Et si tales fuerint qui eulpantur quod non velit 
 vel non audcat alif{uiH eos accusare, vicecomes re(iuiHitus ab episcopo faciet 
 jurare duodccini legales hominen dc vicineto, seu do villa, coram episcopo, 
 quod iudo veritatein secundum conscientiam suani manifestabunt.'
 
 XIII.] The Grand Jury. 619 
 
 By these all persons of evil fame are to be presented to the Procedure 
 
 1 1 •!< 1 y •! • ii on present- 
 justices, and then to proceed to the ordeal : it they iail in the ment. 
 
 ordeal they undergo the legal punishment ; if they sustain the 
 ordeal, yet, as the presentment against them is based on the evi- 
 dence of the neighbourhood on the score of bad character, they 
 are to abjure the kingdom ^ The jury of presentment is reduced 
 to a still more definite furm, and i-eceives a more distinct repre- 
 sentative character in the Assize of Northami^ton'^, and in the Assize of 
 
 i ' Northaiui)- 
 
 Articles of Visitation of 11 94 : in the latter capitulary the plan ton, and eyre 
 
 used for nominating tlie recognitors of the Great Assize is 
 
 applied to the Grand Jury, for so the body now coni-tituted may 
 
 be termed : — 'In the first place, four knights are to be chosen 
 
 from the whole county, who by their oath sliall choose two lawful 
 
 knights of each hvmdred or wapentake, and those two shall choose 
 
 upon oath ten knights of each hundred or wapentake, or if knights 
 
 be wanting, legal and free men, so that these twelve may answer 
 
 under all heads concerning their whole hundred or wapentake^.' 
 
 The heads on which they answer include not only the assizes 
 
 which have been already referred to in connexion with the jury, 
 
 but all the pleas of the Crown, the trial of malefactors and their 
 
 receivers as well as a vast amount of fiscal business. The later Later deve- 
 lopment of 
 development of these juries does not fall under our present in- thejurj-. 
 
 quiry, but it may be generally stated thus : at an early period, 
 even before the al)olition of ordeal by the Lateran Council of 
 1 2 15, a petty jury was allowed to disprove the truth of the pre- 
 sentment, and after the abolition of ordeal that expedient came 
 into general use^ The further change in the character of the 
 jurors, by which they became judges of fact instead of witnesses, 
 is common to the civil and criminal jury alike. As it became 
 difficult to find juries personally well informed as to the point at 
 issue, the jurors summoned were allowed first to add to their 
 number persons who possessed the requisite knowledge, under 
 
 1 Assize of Clarendon, art. i ; Select Charters, p. 137. 
 
 * Assize of Northampton, art. I ; Select Charters, p. I43. 
 ' Hoveden, 'i'. 262; Select Charters, p. 251. 
 
 * On the subsequent history of criminal jury, see Forsyth, Trial by 
 Jury, pp. 199 sq., where the legal growth of the institution is traced with 
 admirable clearness.
 
 620 Constitutional Histori/. [chap. 
 
 Later the title of afForcement. After tins proceeding had been some 
 
 character . . , _ i <• i • 
 
 of jury. time in use, the afForcing jurors were separated from the unin- 
 formed jurors and relieved them altogether from their character 
 of witnesses. The verdict of the jury no longer represented their 
 previous knowledge of the case, but the result of the evidence 
 afforded by the witnesses of the fact ; and they became accord- 
 ingly judges of the fact, the law being declared by the presiding 
 officer acting in the king's name. 
 Judicium In all these points we see distinctly the growth of a principle 
 
 panum. / _ . 
 
 of representation, especially applied to the work of the county 
 courts or growing up in them. The 'judicium parium' however, 
 which is mentioned in Magna Carta, has a wider application 
 than this. It covers all cases of amercement in the county, the 
 hundred, and the manorial courts, and exhibits a principle which, 
 rooted in primitive antiquity, is capable of infinite development 
 and beneficial application ; and this we have seen exemplified in 
 the assessment processes described above. 
 Connexion of It remains then briefly to point out the direct connexion 
 
 jury with the , ^i . i • t ^i 
 
 represents- between the jury system and county representation, in the 
 earliest existing records of recognitions, the way in which the 
 jurors are to be selected is not clearly laid down\ The re- 
 cognitions of the Norman reigns are regarded as acts of the 
 county court, and the possibility of election by the suitors is 
 not excluded : it is however more probable that the recognitors 
 were selected by the sheriff, possibly by rotation from a general 
 list, possibly according to their nearness to the spot or acquaint- 
 ance with the business in hand. On the institution of the 
 assizes of Novel disseisin, Mort d'ancestcr, and Darrein pre- 
 sentment, the sheriff summoned the requisite number of jurors 
 at his discretion, and the i)lea was held at a place named in 
 the writ of summons, in such a way as to imply that it was to be 
 heard not in the legular county court, but in a special session''', 
 
 ' In the early instances given by Palgrave, pp. clxxviii sq., we have 
 (i) '(luibuH (kc. HcyrJH) con)Tregjatin, clvjantnr plnres de illis Anglis qui 
 Hciunt quoniodo terrao jacubaiit,' S;c. ; (2) ' I'raucipio quod praecipias 
 Hanioneni filiuin Vitalis et probis vicinis de Santwic, qaos JJaiiio 7wminabit, 
 ut dicant veritatem.' See above, j). 395. 
 
 ^ (jllauvill, xiii. 3 : ' Ab initio eligondi sunt duodecim liberi et legales
 
 XIII.] Principle of Representation. 621 
 
 The Great Assize was differently constituted : there the sheriff The RecoK- 
 
 , , , . , nitioiis lield 
 
 nominated tour electors to ciioose the twelve recognitors, and inthe county 
 the trial took place before the justices itinerant in the county, 
 or before the court at Westminster ^ The articles of 11 94 place 
 the election of the recognitors, with all the other business of the 
 eyre, in the hands of the grand jury^ ; those of 1 198 direct that 
 it shall take place before the justices in the full county court ' ; 
 Magna Carta completes the process, enacting that the assizes 
 shall be taken quarterly in the county court before two justices 
 sent by the king, and four knights of the county, chosen by the 
 county*. The constitution of the grand jury of inquest is Method of 
 similarly developed. The twelve legal knights of the sliire, the Grand Jury, 
 twelve lawful men of the hundred, and the four men of the 
 township mentioned in the Assize of Clarendon, may have ap- 
 peared in rotation, or may have been selected by the sheriff or the 
 hundredman or the reeve: but in 11 94 they are nominated, 
 through a process of cooptation, by four elected knights". These 
 elected knights may still have been nominated by the sheriff, but 
 it is more probable that they were chosen by the suitors, first Probably a 
 because the appointment of coroners, which is directed in the by the 
 same document, was made by election of the freeholders, and 
 intended as a check on the power of the sheriff " ; and, secondly, 
 because the term ' eligendi ' may be reasonably interpreted by 
 the clause of INIagna Carta just referred to''. The mode of 
 nominating the grand jury was modified in later practice, and 
 
 homines de vieineto secundum formam in brevi expressam.' The writ 
 merely orders the sheriff to summon and ' imbreviate ' twelve recognitors. 
 Even here however there was room for a real election. 
 
 * Glanvill, ii. 10-12. 
 
 * Art. 2 : 'Item de omnibus recognitionibus,' &c. Above, p. 617. 
 
 ' ' Et capientur coram eis electiones magnae assisae per mandatum 
 domini regis vel ejus capitalis justitiae.' Hoveden, iv. 61. 
 
 * Art. 18. 
 
 * ' In primis eligendi sunt quatuor milites de toto comitatu, qui per 
 sacramentum suum eligant duos legales milites de quolibet hundredo vel 
 wapentacco, et illi duo eligant super sacramentum suum x. milites de 
 singulis hundredis vel wapentaccis ; vel si milites defuerint, legates et 
 liberos homines, ita quod illi xii. in simul respondeant de omnibus capitulis 
 de toto hundredo vel wapentacco.' Hoveden, iii. 262. 
 
 " Ibid. p. 263. Art. 20. 
 
 '' ' Cum quatuor militibus cujuslibet comitatua electis per comitatum.' 
 Art. 18.
 
 623 
 
 Constitutional History, 
 
 [chap. 
 
 Elective 
 principle. 
 
 Illustration 
 from fiscal 
 usages. 
 
 Magna Carta 
 executed on 
 inquest by 
 twelve 
 chosen 
 knights of 
 each shire. 
 
 Council at 
 Oxford in 
 1213- 
 
 the element of popular election was altogether eliminated; in 
 the period before us, however, it furnishes an important illus- 
 tration of the usage of election which was so soon to he applied 
 to parliamentary representation. In both the systems of judicial 
 jury we have thus the same result, a body of four knights repre- 
 senting the county court for this special purpose, in one case 
 certainly, and in the other probably, chosen by the county court 
 itself. In the fiscal business we have another analogy ; the 
 carucage of 1198 is assessed before a knight and a clerk of the 
 Exchequer acting on behalf of the Crown, and the sheriff and 
 lawful knights ' electi ad hoc ' acting on behalf of the shire : it 
 was collected by two knights of the hundred, who paid it to the 
 sheriff, and he accounted for it at the Exchequer ^ We are thus 
 prepared for the great executory measure of 1 2 1 5, under which 
 the articles of the charter were to be carried out by an inquest 
 of twelve sworn knights in each county, chosen in the county 
 court and of the county itself '^ : and we understand the summons 
 to the council at Oxford of 12 13, in which the sheriff of each 
 county is ordered to send four discreet men of his county to 
 speak with the king on the business of the realm '. In the four 
 discreet men of the shire we detect the old representative idea 
 of the four good men of the township, who ajjpeared in the 
 shire-moot : now they are summoned to a national assembly 
 which is itself a concentration of the county courts. It is not 
 however yet certain whether the four discreet men, the pre- 
 decessors of the two discreet knights of later times, were on this 
 occasion elected by the shire. On the analogy of the other 
 elections it might be presumed that they were ; but the fact 
 that only a week's notice was given to the sheriffs seems to pre- 
 clude the possibility of a general election. Nor is it necessary 
 to antedate tlic growth of an institution, when the later steps 
 
 ' Hovedcn, iv. 46 h((. ; Select Cliartcrs, p. 249 ; above, p. 510. 
 
 ''■ Art. 48: ' Statini in([uiratitiir per duodecirii niilitcH juratos de eodem 
 comitatn, (pii deiiunt cligi per ])rc>boM lioniino.s ejusdeni couiitatus.' See 
 also Patent RoIIh, i. 180; Select CliartcrH, p. 29S. 
 
 " Report on the Dignity of a Peer, App. i. p. 2 : ' Et quatuor diHcretos 
 homincH de coniitatu tuo illuc venire facias ad no.s ad eundeni terniinuin ad 
 lo<iuenduni nobiscuni de negotiin rcgni noHtri.'
 
 XIII.] The Groioth of Towns. 623 
 
 of its development are distinctly traceable. Whether or no the Theele- 
 
 fourteenth article of the Great Charter intended to provide for representa- 
 
 • 1 • p 1 1 1 r ^'^® system 
 
 a representation 01 the minor tenants-in-chiet by a body ot at work 
 1 • 1 1 1 • ,1 j^i ii • before the 
 
 knights elected in the county court, we see now the three prin- Great 
 
 ciples involved in such representation already in full working, 
 
 although not as yet distinctly combined for this purpose. We 
 
 have a system of representation, we have the practice of election, 
 
 and we have a concentration of the shires in the great council. 
 
 The struggle of eighty years which followed the act of Runny- 
 
 mede not only had to vindicate the substantial liberties involved 
 
 in that act, but to sharpen and perfect and bring into effective 
 
 and combined working every weapon which, forged at different 
 
 times and for different purposes, could be made useful for the 
 
 maintenance of self-government. The humble processes by The process 
 
 of training, 
 which men had made their by-laws in the manorial courts and 
 
 amerced the offenders ; by which they had assessed the estates 
 
 or presented tlie report of their neighbours ; by which they had 
 
 learned to work with the judges of the king's court for the 
 
 determination of questions of custom, right, justice, and equity, 
 
 were the training for the higher functions, in which they were 
 
 to work out the right of taxation, legislation, and political 
 
 determination on national action. 
 
 165. The history of the towns presents some points of marked Growth of 
 
 contrast with that of the shires ; and these shed light on the later 
 
 separation of interest between the two classes of communities. 
 
 The whole period was one of great development in this respect ; 
 
 Henry II and the ministers of his sons encouraged the gro^vth 
 
 of the mercantile spirit, and reaped the benefit of it in a very 
 
 great increase of revenue. The privileges of self-go vernment Their privi- 
 
 ® r & b leges bought 
 
 and self-assessment, exemption from the interference of the by lines. 
 
 sheriffs and their arbitrary exactions, the confirmatioii of guilds, 
 the securing of corporate property, the free election of magis- 
 trates, and the maintenance of ancient customs, in many cases 
 to the exclusion of the general rcfomis, are all of tliera matters 
 
 of grant liberally bestowed or sold without reservation. The Charters of 
 
 '^ _ "^ towns, 
 
 charters of Richard and John are very numerous ; those of 
 
 Henry II are fewer in number, and do not furnish us with a
 
 634 
 
 Constitutional History. 
 
 [chap. 
 
 Privileges of clue to any progressive policy on the king's part, sucli as might 
 
 tainedby have been inferred from his general practice in other matters, 
 flne and . 
 
 charter. In those few to which an approximate date can be assigned, the 
 privileges granted are not much greater than was the case in 
 the reign of Henry I : but the Pipe Rolls contain great numbers 
 of instances in which the purchase of additional favours is 
 recorded. In some of these, perhaps, the favour is obtained 
 merely for the single occasion, and in such cases no charter need 
 have been drawn up. In others, where a permanent privilege 
 was bought, the charter in which it was contained must have 
 been lost or destroyed, when its importance had been diminished 
 by a new grant of still greater favours. The charters of Richard 
 belong chiefly to his early years, especially to the first year, 
 when he was anxiously raising money for the Crusade. Those 
 of John, however, extend throughout the reign, and being 
 enrolled among the royal records *, have survived in great 
 measure the dangers in which the earlier grants perished. They 
 exhibit the town constitution in almost every stage of develop- 
 ment, and in every part of the kingdom. Helston and Hartle- 
 pool are alike striving for municipal organisation^ : one town 
 is rich enough to purchase a constitution like that of Oxford or 
 Winchester, another is too poor or too humble to ask for more 
 than the merchant guild, or the firma hurgi, or the condition of 
 a free borough^. Amongst the more privileged communities 
 great varieties of custom prevail, and provincial laws of con- 
 siderable antiquity probably underlie the customs of the larger 
 towns. London, Winchester, Oxford, Norwich, and others, 
 appear as typical constitutions on the model of which privileges 
 are granted to the more humble aspirants * ; and to their 
 
 Charters of 
 John. 
 
 ^ llotuli Cliartariim, edited by Sir T. Duffua Hardy in 1837. 
 
 '^ Rot. Chart, j)}). 86, ^3 ; Select Cliarters, pp. 305, 306. 
 
 ' The Hartlepool cliartcr confirms to the hmahu's of Hartlepool that they 
 be free bur^diurH ; that of Helston begins with a grant that it be a free 
 horoutrh, and have a incrcliant guild : a second cliarter to Helston con- 
 tains the settlement of the ferm. The charter of Kingston lets the ferm to 
 the homiiicx; Rot. Ciiai't. p. 52. 
 
 * Hartlepool is to have the same rights as Newcastle; Beverley as 
 York ; Norwicli, Lincoln, and Northampton as Lfnidon ; Winchester is the 
 model town for Wallingford, Andovcr, Salisbury, llchester ; Oxford for
 
 XIII.] Charters of Towns. 625 
 
 practice the newly-enfranchised boroughs are referred, in case of Growth o( 
 
 '^ •' _ _ ° 'a burgher 
 
 a dispute as to the interpretation of the charter. Thus, beside spirit. 
 the common instinct which would lead the mercantile com- 
 munities to act together in cases in which there was no ground 
 for rivalry, and beside the common privilege which exempted 
 them from the jurisdictions to which their country neighbours 
 were amenable, they possessed in common a quantity of peculiar 
 customs, which kept the hurgenses of the kingdom as a class by 
 themselves, although they never, as was the case in Scotland 
 and in Germany, adopted a confederate bond of union or 
 organised themselves in leagues. 
 
 The boroughs under Henry I had probably, when they The 
 obtained any privilege at all, obtained the confirmation of the obtain the 
 merchant guild, and by the agreement for the firma hurgi had ine: their 
 limited the exactions of the sheriff, so far as regarded the ferm, and exciud- 
 although the taxes properly so called, especially the tallage, were meddling of" 
 still collected by him. They had also in some cases obtained a 
 right to have all causes in which they were engaged tried with- 
 in their own boundaries. If then the sheriff still retained 
 judicial authority over them he must come and hold his court 
 among them. But such a practice, whilst in one respect it 
 saved them from the risks of the county court, in another 
 exposed them to the exactions of the sheriff, who might come 
 and hold ' scotale ' at his convenience, and so wring money from 
 his entertainers. It was therefore a great point to exclude the 
 sheriff altogether ; and in order to do this, an independent 
 magistracy must be founded, the right of election obtained, and 
 a power to treat directly with the royal officers on the questions 
 of taxation. These then are the points most commonly secured 
 by fine or charter. 
 
 The right of excluding the sheriff and having their own pleas 
 decided on their own ground ^ involved their exemption from 
 
 Yarmouth and Lynn; Winchester or Oxford for Portsmouth and Marl- 
 borough ; Winchester or London for Wilton ; Launceston for Helston ; 
 York for Scarborough ; Bristol for Dublin ; Northampton for Grimsby ; 
 Hastings for Konmey. 
 
 * E. g. in the thirty-first year of Henry II the men of Cambridge pay 
 300 marks of silver and a mark of gold to have their town at ferm and 
 
 S S
 
 626 Constitutional History. [chap. 
 
 They are the ordinary sessions of the county court ; and, as their customs 
 from the were confirmed by the same act that served to exempt them, 
 aud hull- they lost the benefit, or escaped the burden, of innovation. The 
 exemption of the citizens of London, Winchester, and other 
 towns from the duellum^, after it had been introduced into the 
 shire-moot, no doubt arose in some degree from this : when the 
 Assize of Clarendon, by introducing the inquest by presentment 
 into the county court, abolished there the practice of com- 
 purgation, sending the accused persons directly to the ordeal, 
 the burghers lost the benefit of the change, and long retained 
 compurgation as the customary mode of defence guaranteed to 
 They are them by their charters ^. From the visitations of the itinerant 
 
 represented . . . 
 
 m the courts justices however they were not exempted ; but in their courts 
 itinerant they obtained special privileges. The burghers of Dunwich and 
 other towns were represented by twelve lawful men just as if 
 they were independent hundreds ; and they were amerced by 
 a mixed jury, six men of their own body and six strangers^. 
 They obtaiu These privileges involved almost of necessity a remodelling of 
 electing the local magistracy : the right of electing their own reeve or 
 trates. praepositus was not the least important of the royal gifts. This 
 
 does not appear in the charters of Henry II ; it is found occa- 
 sionally in those of Richard *, and very commonly in those of 
 John. It does not however seem certain that this difference 
 implies an advance towai'ds freedom in the matter; and it is not 
 improbable that whilst the boroughs continued under the 
 management of the sheriff, an office of so little practical import- 
 
 'ne vicccomes se inde intromittat ;' here hide may refer only to the ferin. 
 John's charter (Rot. Chart, p. 83) grants to them 'quod nullus eorum 
 placitet extra muros burgi (K; Canteliruge de ullo placito praeter placita de 
 tenuris exteriorihuH, exce|)ti.s monetariis et ministris nostris.' Tlie charter 
 to Dunwich granlH tliat tlic burghers ' nuUani sectam faciant comitatus vel 
 hundredoruiii nisi coram justitiis nostris.' lb. p. 51. 
 
 ' ' Quod nullus eorum faciat duellum, et (piod de placitis ad coronam 
 pertinentil)us se possint disrationare socundum consuetudinem civium 
 civitatis Londoniarum.' Charter of Northampton, Rot. Chart, p. 45. 
 
 ^ .See Palyrave, English Common wealth, pp. 217, 259. 
 
 ^ 'Et cum sunimoniti fucriiit esse coram justitiis, mittant pro se xii 
 legales homines do burgo suo (jui sint pro eis omnibus; et si forte amerciari 
 debuerint, per sex j)robos homines de burgo suo et ])er sex probos homines 
 extra burgum aniercientur.' Rot. Chart, p. 51. See above, p. 607. 
 
 * 'Et cives Lincolniae faciant piaepositum quem voluerint de se per 
 aniium, qui »it idoneus nobis et eia.' Eoedera, i. 52.
 
 XIII.] Privileges of Towns. 627 
 
 ance as that of the reeve may have been filled up by election. Election of 
 When however the reeve and the probi homines became the *//«« or 
 governing body, it may well be supposed that the appointment 
 would be a matter of serious question. The citizens of Lincoln 
 are empowered by Richard to make their own reeve, who is 
 however to be a person qualified to serve both them and the 
 king ; by John they are directed to choose two, who will be re- 
 ceived as their representatives at the Exchequer. The burghers 
 of Nottingham, according to John's charter, may appoint their 
 reeve annually, but the king resei-ves the power of removing an 
 unfit person : those of Shrewsbury choose two, of whom the 
 sheriff presents one at the Exchequer : those of Northampton, 
 by the common counsel of the town, are to choose two fit persons 
 and present them to the sheriff, who will present one of them 
 at the Exchequer to pay their own ferm\ Both Lincoln and Election of 
 Northampton are to choose four coroners, to keep the pleas of the coroners. 
 Crown and be a check on the reeves. Under these magistrates 
 the old local courts retained their organisation, or modified it 
 only by the mixture of the guild customs, which were also of 
 great antiquity '^. The new borough courts were the old courts ^ 
 of the township, the hundred, and the shire under new names *. 
 
 The financial arrangements of the towns have been akeady Nesotiatious 
 mentioned under the head of taxation. From the. Pipe Rolls roufths \vith 
 and the Dialogus de Scaccario we learn that they made their qugr. ^^ "* 
 separate terms with the justices of the Exchequer. Besides the 
 common payment however, the richer burghers were often 
 
 * Tlie Charters will be found in the Rot. Chartarum ; that of Shrews- 
 bury, p. 46 ; Northampton, p. 45 ; Nottingham, p. 39 ; Lincoln, p. 56 ; 
 Gloucester, p. 57 ; Ipswich, p. 65. 
 
 * See above, pp. 41 2 sq. The passages in charters which refer to the men 
 of the merchant guild .is distinct from the body of burghers, .as at Win- 
 chester and Gloucester, probably indicate that in those towns the private 
 jurisilictions of the bishop or other lord remained apart from the general 
 borough organisation, or were not consolidated with the guild. 
 
 ' John grants to the burghers of Leicester tliat all sales of land of the 
 town that take place in the portmanmotc shall be valid; Rot. Chart, p. 32. 
 The courts-leet of the Lancashire boroughs are often called lagh-moots : 
 and there are many other forms. See above, p. 425. 
 
 * I have not thought it necessary to recapitulate what was said above, 
 pp. 416, 417, about the clause of enfranchisement : which became probably 
 
 a part of the common law before the reign of John. x' 
 
 S S a
 
 628 
 
 Constitutional History. 
 
 [chap. 
 
 Taxation prevailed on, by force or persuasion, to promise additional sums 
 boroughs, to relieve the king's necessities ^ : as demesne of the Crown, for 
 such most of them continued to be even by the terms of their 
 enfranchisement, they were subject to tallage which, although it 
 might be occasionally mentioned in the national council, was 
 The scotale. levied by the feudal right of the king as lord. Next to this the 
 ' scotale ' seems to have been the most burdensome local custom. 
 The nature of this exaction is very obscure. It was however 
 levied by the sheriff for his own emolument, probably as a 
 reward for his services in maintaining the peace ; and was 
 raised by a process similar to that by which the guilds raised 
 their common funds. Whether the sheriff could compel the 
 burghers to make offerings of malt from which a ' scotale ' was 
 brewed, the proceeds of which went into his purse ; or the name 
 simply means a gathering of the burghers at which they were 
 compelled to promise contributions to the same end, or at wliich 
 heavy fines for non-attendance were inflicted, it is difficult to 
 say^. Whatever it was, however, it was a burden from which 
 the towns were anxious to be relieved, and the relief was either 
 a step towards, or a result of, the exemption from the authority 
 of the sheriffs ^. Free election of magistrates, independent ex- 
 
 ' Like the benevolences or the compulsory loans of later times : e.jj. 
 in the 19th of Henry II, after the citizens of London had paid £666 13s. ^d, 
 de novo dono, Heiner son of Berengar ])ays 100 marks de promisulone sua. 
 These promises are however more frequent in the cases of ecclesiastical 
 persons, in which it might be more important to recognise the voluntary 
 character of the payment. See Madox, Hist. Exch. })p. 404, 405. 
 
 * ' Scotales were abuses put upon the king's people by liis officers, who 
 invited them to drink ale, and then made a collection to the intent that 
 they should not vex or inform against them for the crimes they had com- 
 mitted or should commit.' Brady, I5oroughs, App. p. 13. The deiivation 
 of the word is questionable : Sj)elman thought that it might be derived 
 from Scot and tallia, in the sense of a payment : it is possible that the 
 latter syllable may be connected with hall (as in Gildlialla) ; but the con- 
 nexion with the drinking customs is quite clear, so that the probability is 
 in favour of the more obvious derivation from scot (payment) and ale. 
 Tlie Constitutions of 1236 forbid scotallac along with aliae potationes. 
 Wilkins, i.636. The later church-ale was a custom of collecting contributions 
 of malt from the parishioners, with which a quantity of ale was brewed, 
 and sold for the payment of church expenses. The custom of fining ab- 
 sentees and drinking tiie fines may also be connected with it. 
 
 * K. g. see Richard's charter to Winchester, Select Charters, p. 258. 
 Other officers however could make scotale besides the sheriff, and the pro- 
 
 * hibition is generally extended to the reeve and other royal officers. Sad
 
 XIII.] City of London. 629 
 
 ercise of jurisdiction in tlieii' own courts and by their own Summary 
 
 customs, and the direct negotiation of their taxation with the privileges. 
 
 ofl&cers of the Exchequer, were no unimportant steps in the 
 
 attainment of municipal independence. Nor was any such step 
 
 retraced ; every new charter confirmed, and many of them 
 
 rehearsed in detail, the customs allowed by the earlier grants 
 
 which they superseded. 
 
 The city of London still furnishes the type of the most Changes in 
 *' _ . . the consti- 
 
 advanccd privilege, and the greatest amount of illustrative tution of 
 . . London, 
 
 detail. Yet even the history of London is obscure. We can 
 
 trace changes in the constitution of the sheriffdom, we have the 
 date of the foundation of the communa and the mayoralty ; we 
 come upon occasional marks of royal jealousj^ and exaggex'ations 
 of civic independence ; we can see two parties at work, the one 
 moved by the court, the other by the municii^al instinct ; we 
 can discern the points at issue between the rich and the poor. 
 Still these features scarcely blend into a distinct picture, or 
 furnish a consecu^ve story. 
 
 London was represented at the Exchequer, during the first The sheriffs 
 fifteen years of Henry II, by two sheriffs, instead of the four 
 who appeared in 1 1 30, and who reappear in the sixteenth year. 
 In 1 174 the smaller number recurs: from 1182 to 1189 only 
 one sherifi" acts\ At the coronation of Richard I the two 
 sheriffs are Richard Fitz-Reiner and Henry of Cornhell, the 
 latter of whom was Master of the Mint and sherifi" of Kent^; 
 the former was the head of a great civic family; his father Reiner 
 had been sheriff from 1155 to 1170, and Berengar his grand- 
 father may not improbably have served before him. In the 
 struggle between John and Longchamp in 1 1 9 1 these two 
 
 to say, even the archbishop of Canterbury occasionally did it, as is shown 
 bv the followini; passage from Somner on Gavelkind, wliich ftirther illus- 
 trates the nature of the burden : ' Item si domiims archiepiscopus fecerit 
 scotallam infra boscum, quilibet terram tenens dabit ibi pro se et uxore sua 
 52 ob. et vidua vel kotarius I ob. ;' 'memorandum quod preilicti teneiites 
 debent de consuetudine inter eos facere scotalium de i6 den. et ob. ita 
 quod de singulis 6 denariis detur unus denarius et obolus ad potanduin 
 bedello domiiii ai-chiepiscopi supra dictum feodum.' 
 
 ^ See the thirty-tirst Report of the Deputy Keeper of the Records, pp. 
 307, 308; Madox, Firma Burgi, pp. 164, 165. 
 
 ^ Madox. Hist. Exch. p. 631 ; Hovedeu, iii. pref. pp. Ixxvii, Ixxviii.
 
 630 
 
 Constitutional History. 
 
 [chap. 
 
 Two parties 
 among the 
 citizens. 
 
 Establish- 
 ment of the 
 communa 
 under a 
 mayor. 
 
 The mayor 
 
 annually, 
 
 elected. 
 
 Supremacy 
 of the mer- 
 cantile 
 element. 
 
 magnates are found on diffei-ent sides : Richard Fitz-Reiner is 
 the host and supporter of John, Henry, as his duty to the court 
 compelled him, takes the part of the chancellor. "Wlien accord- 
 ingly in the midst of the stiTiggle John took the oath to the 
 communa of London and was followed by the whole body of 
 barons who adhered to him, it is probable that he acted at the 
 suggestion of Eichavd Fitz-Eeiner, and gave completeness to a 
 .mimicipal constitution which had long been struggling for recog- 
 nition^. Immediately after this confirmation of the communa 
 we find Henry the son of Alwyn mayor of London^: the sheriffs 
 cease to be the ruling officers, and become merely the financial 
 representatives of the citizens, who are themselves properly the 
 'fermei's' or sheriffs of London and Middlesex^. It is a saying 
 among the citizens, that ' come what may, the Londoners should 
 have no king but their mayor.' Henry Fitz-Alwyn is mayor for 
 life : two years after his death, when John, a month before the 
 Great Charter was extorted from him, was buying help on 
 eveiy side, he granted to the 'barones' of the city of London 
 the right of annually electing the mayor*. The privilege was 
 ineffectual so far as it was intended to win the support of the 
 Londoners, for a fortnight after it was granted they received the 
 barons with open arras ^. The duty of sustaining their privileges 
 fell accordingly on the barons : their customs were guaranteed 
 by the thirteenth article of the Charter, and a clause was added 
 preserving like rights to all the cities, boroughs, towns, and 
 seaports of the realm. Lastly, as one of the twenty-five barons 
 chosen to execute the Charter, appears the Mayor of London. 
 
 The estaljlishment of tlie corporate character of the city under 
 a mayor marks the victory of the communal principle over the 
 more ancient shire organisation which seems to have displaced 
 early in the century the complicated system of guild and 
 franchise. It also marks the triumj)]! of tlie mercantile over 
 
 ' Gir. Camb. Ang. Sac. ii. 397. Cf. R. Devizes, p. 38 ; R. Diceto, p. 664. 
 
 * Liber de Antiqui.s LegibuH, ji. i. He was one of the treasurers of the 
 .sum raised for the king's rarmom ; Hoveden, iii. 212. 
 
 ' Madox, Firma Burgi, [). 165. 
 
 * Rot. Cliart. p. 207; Hulect Charters, p. 306. It is dated May 9, 1215. 
 ' On the 24th of May. M. Paris.
 
 XIII.] City of London. 631 
 
 the aristocratic element. Henry Fitz-Alwyn may have been an Mercantile 
 hereditary baron of London, but his successors, Serlo le Mercer, the city. 
 Ralph Eswy the goldsmith, and others, were clearly tradesmen ^ 
 It would, doubtless, be unsafe to argue that mercantile pursuits 
 were at this time regarded with anything like contempt in 
 England. The feeling is one of the results of the growth of 
 fictitious and superficial chivalry in the fourteenth century. 
 The men of London had made their pilgrimages to Palestine, 
 and fought their sea fights on the way, in company or in 
 emulation with the noblest of the Norman lords. The story of Expeditions 
 Gilbert Becket may be fabulous, but Andrew of London and his citizens. 
 fellow-citizens in 1147 had done good work for Christendom at 
 the capture of Lisbon, the only real success of the second 
 Crusade^; and in 11 90 William Fitz-Osbert and Geoffrey the 
 goldsmith of London were among the chief men of the fleet 
 which saved the infant kingdom of Portugal from Moorish con- 
 quest '. The struggle, so far as we can trace it, was not between 
 nobility and trade, but between the territorial franchise and the 
 mercantile guild. Nor was the victory of the communa to any 
 appreciable degree a victory of the Englishman over the foreigner. 
 The population of London was less English probably than that Foreign 
 of *he other great towns such as Wiuche.-ter and York. The the city. 
 names of the leading citizens who are mentioned throughout 
 the twelfth century ai'e with few exceptions, such as Henry 
 Fitz-Alwyn, of alien derivation. Richard the son of Reiner the 
 son of Berengar was very probably a Lombard by descent : the 
 influential family of Bucquinte, Bucca-uncta, which took the lead 
 on many occasions, can hardly have been other than Italian * ; 
 Gilbert Becket was a Norman. The form of the communa in 
 which the corporate life asserted its independence was itself 
 
 * Liber de Antiquis Legibus, pp. 2, 3, sq. 
 
 "^ Expug^atio Lvxbonensis, p. cxliv. Henry of Huntinfjdon specially 
 remarks that this great victory was won not by the nobles, but by men of 
 middle rank. 
 
 ' Hoveden, iii. 42 ; Bened. ii. 116. 
 
 * Andrew of London, the leader of the Londoners at Lisbon in 1147, is 
 not improbably the Andrew Bucquinte whose son Richard was the leader 
 of the riotous young nobles of the city who in 1 1 77 furnished a precedent 
 for the Mohawks of the eighteenth century. Benedict,!. 155. Cf. Pipe 
 Roll 31 Henry- \, pp. 145, 147.
 
 632 Constitutional History. [chap. 
 
 foreign. From the beginning of its political impoi'tance London 
 acts constantly as the purse, sometimes as the brain, never perhaps 
 
 A mercantile in its whole history as the heart, of England. The victory of the 
 commiina is no guarantee of freedom or fair treatment to the 
 poorer citizens ; we no sooner find it in supreme authority than 
 the riot of William Fitz-Osbert occurs to prove that an oligarchy 
 of the purse has as little of tender mercy as an oligarchy of the 
 sword. The real importance of London in this region of history 
 is rather that it affords an examj)le of local independence and 
 close organisation which serves as a model and standard for other 
 towns, than that it leads the way to the attainment of general 
 liberties or peculiarly English objects. Still its position and the 
 action of its citizens give it no small political power, and no 
 insignificant place in history. 
 
 Importance 166. The action of the clergy in the great struggles of the 
 
 ' period has been already noted, in its proper proportion to the 
 
 general detail. They by their vindication of their own liberties 
 
 showed the nation that other liberties might be vindicated as 
 
 well, and that there are bounds to the power and violence of 
 
 princes. They had fought the battle of the people in fighting 
 
 their own. From them too, as subjects and not merely as 
 
 churchmen, the first movements towards national action had 
 
 Their inde- come. They had bound ui) the wounds of the perishing State 
 pendence. • p tt x 
 
 at the accession of Henry II ; they had fuinished the first if 
 
 not the only champions of freedom in the royal councils, where 
 S. Thomas, S. Hugh, and Archbishop Geoffi-ey had had courage 
 to speak where the barons were silent. They had, on the other 
 side, not, it may be fairly allowed, without neglecting their 
 spiritual work, laboured hard to reduce the business of govern- 
 ment to something like the order which the great ecclesiastical 
 organisation of the West impressed on every branch of its 
 Their sense administration. What the Church had boiTowod from the 
 o uni y. Empire in this respect it repaid with tenfold interest to the 
 rising State system of Europe. And this was especially the 
 case in England. Wc have seen that the Anglo-Saxon Church 
 made i)().ssible and opened the way to national unity: it was 
 the common Church which combined Norman and Englishman
 
 XIII.] The Clergy in Secular Office. 633 
 
 in one service, when law and lanfmage, land tenure and political Their sys- 
 
 ' OS' 1 tematic 
 
 influence, would have made them two races of lords and slaves, routine. 
 
 It was the action of Lanfranc and Anselm that formed the 
 
 strongest link between the witenagemot of the Confessor and 
 
 the court and council of the Conqueror and his sons. It was 
 
 the hard and systematic work of Roger of Salisbury that gave 
 
 order to the Exchequer and the Curia. The work of Becket as 
 
 Chancellor is thrown into the shade by his later history, but he 
 
 certainly was Henry's right hand in the initial reforms of the 
 
 reign, and the men who carried out those reforms in a direction 
 
 contrary to the policy which Becket as archbishop adopted, were 
 
 men who trod in the footsteps of his earlier life. Hubert Walter, 
 
 the administrator of Henry's system, who under Richard and 
 
 John had completed the fabric of strong government by means 
 
 of law, and Stephen Langton, who deserves more than any other 
 
 person the credit of undoing the mischiefs that arose from that 
 
 system, maintaining the law by making the national wiU the 
 
 basis of the strength of government, were both representative 
 
 men of the English Church. No doubt there were evils in the Evil of 
 
 o secular em- 
 
 secular employments of these great prelates : but if for a time p'oyment, 
 the spiritual work of the Church was neglected, and unspiritual 
 aims fostered within her pale, the State gained immensely by ^"S^h' 
 being administered by statesmen whose first ideas of order were usefulness, 
 based on conscience and law rather than on bi'ute force. Nor 
 was the spiritual part of the work unprovided for. Three arch- 
 bishops of Canterbury, Anselm, Ralph, and William, all of them 
 belonging to the religious rather than the secular type, had 
 sanctioned the employment of Bishop Roger as justiciar ; and 
 without the consent of the Pope, it is said, he refused to bear 
 the titled Innocent III, when he insisted that Hubert Walter 
 should resign the like office, showed that the growing sense of 
 the age forbade what so great a saint as Anselm had connived 
 at ; but that gi'owing sense had been educated in gi'eat measure 
 by the system which it was soon to discard. 
 
 It is however in the details of mechanical work that these 
 remarks help to illustrate the subject of this chapter. The 
 » W. Malmesb. G. R. v. § 408 ; K. Diceto, c. 606.
 
 634 ConstiUifional History. [chap. 
 
 Bearing of sj'stematic order of the growing polity was not a little indebted 
 
 clerical in- " ^ , • i • 1 /-11 i i r 
 
 fliienceon to the lact that there existed in the Church system a set 01 
 models of work. The Church had its ranks and degrees, codes 
 of laws and rules of process, its councils and courts, its central 
 and provincial jurisdictions, its peculiar forms of trial and arbi- 
 tration, its system of ■writ and record. In a crisis in which 
 representation and election were growing into importance, and 
 in which all forms were manipulated by clerical administrators, 
 the newer forms must needs be moulded in some degree on the 
 
 on legisla- older. The legislation of the period, the assizes and constitu- 
 tions, bear, in common with the Karolingian capitularies, a strong 
 resemblance to ecclesiastical canons, a form which was universal 
 
 local orgaui- and vigorous when the capitulary was forgotten. The local and 
 territorial divisions of the dioceses made indelible the civil 
 boundaries which feudal aggression would have gladly oblite- 
 rated. The archdeaconries, deaneries, and parishes preserved 
 the local unities in which they had themselves originated, and 
 the exempt jurisdictions of the convents were in their nature an 
 exact parallel Avith the franchises of the feudal lords, and in the 
 case of great ecclesiastical establishments, possessed both cha- 
 
 legal prac- racters. The assemblies of the clergj' kept up forms that were 
 
 easily transfeiTcd to the local moots : the bishop's visitation was 
 
 a parallel to that of the sheriff ; the metropolitical visitation to 
 
 that of the Curia or Exchequer ; spiritual excommunication was 
 
 parallel with civil outlawry ; clerical procurations with royal 
 
 purveyance and the payments to the sheriff for his aid ; the 
 
 share of the clergy in determining their assessments suggested 
 
 the like action on the part of the lay communities, or at least 
 
 familiarised men with a system of the kind. 
 
 onrepre- In no particular is this more apparent than in the very im- 
 
 sentation. . „ , . , • t 1 1 
 
 portaiit question of election and representation. In the latter 
 
 point we shall Ix' able to trace, as we proceed, very close analogies : 
 the fact that the early representative members in the national 
 council were frequently, if not always, invested with the cha- 
 racter of procurators or proxies, bearing letters of credence or 
 ratification that empowered them to act on behalf of their con- 
 stituents, suggests at once that the custom was borrowed from the
 
 XIII.] Methods of Election. 6^^ 
 
 ecclesiastical practice of which such procuratorial representation Clerical use 
 
 of r6Dre- 
 
 was a familiar part, in negotiation with the Holy See, and in the sentation 
 formation of Church councils at home. The appearance of the 
 proctors of the cathedral and diocesan clergy in the central 
 assemblies of Church and State precedes by a few years the 
 regular incorporation of the knights of the shire in parliament ; 
 and Convocation as well as the House of Commons owes its 
 representative chai'acter to the great period of definition, the 
 reign of Edward I. In the case of election the connection is per- 
 haps less close : but there can be little doubt that the struggles 
 for ecclesiastical freedom of election kept in use forms which 
 made the extension of elective liberty possible in other quarters. 
 The Church recognised three modes of election : the 'via com- Modes of 
 promissi,' by which the electors deputed to a small committee of election. 
 their body — an uneven number, three or five — the function of 
 choosing the bishop or abbot ; the ' via scmtinii,' in which the 
 several votes were taken in order and the choice determined 
 by the majority ; and the ' via inspirationis Sj^iritus Sancti,' in 
 which at one moment, and in one breath, the whole body uttered 
 the name of the same person, just as in the court of justice the 
 
 compurgators took their oath. The last-mentioned method in Analogy of 
 
 . lay elections, 
 
 its exact form was of course inapplicable to the cases of popular 
 
 election ; but the acclamations of the crowd of suitors at the 
 
 county court represents a similar idea ; the show of hands con-e- 
 
 sponds with the ' via scrutinii ' ; and the ' via compromissi ' has 
 
 its parallel doubtless in the gradual reservation of the choice 
 
 of members, both in town and shire, to a small deputed bodyV, 
 
 who in the former case finally engrossed the right of election. 
 
 The common arrangement of the early medieval courts, by System of 
 
 record. 
 
 which the king's chapel was made the depository of writs and 
 records, and his clerks or chaplains the fi'amers and writers of 
 such documents, illustrates another side of the same general 
 truth. The ecclesiastical system of writ, summons, and record 
 
 ^ It is not perhaps too much to say that the election of the s\rom 
 knights to nominate the recognitors of the Great As-ize was a distinct 
 parallel with elections made 'via compromissi.' Tlie deputies of the con- 
 vent at Canterbury who carried full powers to the Curia Regis or to Kome 
 were compromissarii, proctors in fact of that church.
 
 6'>^6 Constitutional History. [chap. 
 
 Records and was probably, in England, derived from the extensive docu- 
 gis ers. jjigQ^ai-y machinery of the Church of Rome, which in its turn 
 was derived fi-om the similar practice of the later Empire ^. The 
 writs of the Norman Curia may not improbably have been 
 drawn by continuous practice from the formulae of the impe- 
 rial system of the Franks, great stores of which are to be found 
 in the collections of Maixulf and other jurists ^. The growth of 
 the system is accordingly complex, the written forms of pro- 
 cedure, both lay and clerical, being developed side by side, or in 
 constant entanglement with one another, as might well be the 
 case when they were drawn up by the same writer. It is however 
 interesting to observe that the custom of registering the acts of 
 court, and retaining copies of all letters issued by the king, 
 seems to have been introduced either late in the reign of 
 
 Increase Henry II or under Richard and John, under whom, as has been 
 
 accession of already mentioned, the great series of national records begin. 
 John. _ , •' ' o ... . 
 
 William Longchamp, the chancellor and justiciar of Richard, 
 
 who with all his great faults must have also had a great capacity 
 
 for business, and who, as we learn from the Red Book of the 
 
 Exchequer ^, took pains to make himself familiar with its details, 
 
 must have authorised, pei'haps suggested, the enrolment of the 
 
 acts of the Curia : it was cai'ried out under his vice-chancellor 
 
 Episcopal ^^d successor Bishop Eustace. The enrolment of charters and 
 
 registers. ^f letters patent and close begins in the chauccllorsliip of Hubert 
 
 Walter, and is carried out by Walter de Grey, afterwards ai'ch- 
 
 bishop of York, who has left in the register of his archiepi- 
 
 scopal acts one of the earliest existing records of the kind. The 
 
 Lincoln registers begin with the acts of Bishop Hugh of Wells, 
 
 who had been a deputy of the chancellor from 1200 to 1209*. 
 
 ' On the rej^nstration of papal letters see the preface to .Taffc's Regesta 
 Pontificuin, and also to his Monumenta Gregoriami. Gregory VII, in a 
 letter to Hubert of Teroiianne, mentions his own register. The practice 
 existed at Rome from tiie days of (iregory I or earlier; the most ancient 
 remains however are those of the registers of Gregory I, John VIII, and 
 Gregory VII. 'I'lie series from Innocent III to i'ius V is complete. 
 
 ''■ Illustrations of this will be found in Brunner, as quoted above, p. 391. 
 
 ^ (Quoted above, p. 431, note 4. 
 
 ' Of course there may have been episcopal registers, as there may have 
 been royal records, earlier, but there is no evidence that such existed. The 
 York and Lincoln registers are the most ancient : those of Canterbury
 
 XIII.] Begistration of Records. 6^y 
 
 If the episcopal registers were drawn up in imitation of the Papal 
 royal rolls, the latter owed both idea and form to the papal 
 registry, the influence of which was under Innocent III supreme 
 in Europe, and which could trace its method through the 
 ' regesta ' of Gregory VII and the earlier popes, to the practice 
 of the ancient republic. In such matters it would not be fair 
 to say that Church and State borrowed from each other; each 
 had a vitality and a development of its own, but each gained 
 strength, versatility, and definiteness from their close union ; 
 and that close union was made closer still whilst the business 
 of the two was conducted by the same administrators. 
 
 167. We have now, however imperfectly, traced the process Summary of 
 of events by which the English nation had reached that point of national 
 
 , . , . , . , , . p -J. • growth and 
 
 conscious unity and identity which made it necessary tor it to organisa- 
 act as a self-governing and political body, a self-reliant and 
 self-sustained nation, — a power in Europe, basing its claims for 
 respect not on the accidental position or foreign acquisitions of 
 its kings, but on its own internal strength and cohesion, its 
 growth in good government, and its capacity for a share in the 
 common polity of Christendom. "We have also tried to trace 
 the process by which its internal organisation had been so 
 framed, modified, and strengthened, that when the occasion 
 came it was able to answer to the strain : by which, when the 
 need of representative institutions made itself felt, the mere 
 concentration and adaptation of existing machinery supplied all 
 that was required. The century that follows Magna Carta was 
 an age of growth, of luxuriant, even premature, development, 
 the end of which was to strengthen and likewise to define the 
 several constituent parts of the organic whole. The three estates 
 made their way, through this time of training, to a realisation 
 of their distinct identity, and gained such a consciousness of their 
 
 begin in 1278; Winchester in 1282; Exeter in 1257; Hereford in 1275; 
 Worcester in 1268; Salisbury in 1297; Lichfield in 1296; Norwich in 
 1299 ; Carlisle in 1292 ; the other sees have records beginning early in the 
 next century. The collection of letters, such as those of Lanfranc, Anselm 
 and Becket, seems to have been a literary work and not a registration, 
 although in many points it answers the same purpose.
 
 638 Constitutional History. 
 
 Summary of distinct s])heres of work as enabled them to act without entan- 
 
 the jiomts of ^ . 
 
 national glement of machinery or waste of power. The constitution 
 
 Avhich reached its formal and definite, maturity under Edward I 
 
 had to learn easy and economic working under his successors. 
 
 In that lesson it had also severe experiences of struggle, defect, 
 
 and failure : its representative men lose the grace and simplicity 
 
 of the earlier times ; personal and territorial aims waste the 
 
 energies of the better and wiser, and divide into permanent 
 
 factions the ignorant and more selfish. Yet the continuity of 
 
 life, and the continuity of national purpose, never falls : even 
 
 the great struggle of all, the long labour that extends from the 
 
 Reformation to the Revolution, leaves the organisation, the 
 
 origin of which we have been tracing, unbroken in its conscious 
 
 identity, stronger in the strength in which it has persevered and 
 
 grown mightier through trial. The further investigation of this 
 
 history in its political as well as in its mechanical aspect must 
 
 begin from Magna Carta, as a new starting-point. 
 
 END OF VOL. I.
 
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