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 LECTURES 
 
 ON 
 
 EARLY ENGLISH HISTORY
 
 BY THE SAME AUTHOR. 
 
 HISTORICAL INTRODUCTIONS TO THE 
 
 ROLLS SERIES. Collected and Edited by Arthur 
 Hassall, M.A. 8vo. 12s. 6d. net. 
 
 LECTURES ON EUROPEAN HISTORY. 
 
 Edited by Arthur Hassall, M.A. Svo. 12s. 6d. net. 
 
 THE EARLY PLANTAGENETS* With 2 
 Maps. Fcap. 8vo. 2s. 6d. (Epochs of Modern 
 History.) 
 
 VISITATION CHARGES. Delivered to the 
 Clergy and Churchwardens of the Dioceses of Chester 
 and Oxford. Edited by E. E. Holmes, Honorary 
 Canon of Christ Church, formerly Domestic Chaplain 
 to the Bishop of Oxford. 8vo. 7s. 6d. net. 
 
 ORDINATION ADDRESSES. Edited by E. E. 
 Holmes. With Photogravure Portrait. Crown 8vo. 
 3s. 6d. net. 
 
 LONGMANS, GREEN, & CO., 39 Paternoster Row, London, 
 New York and Bombay.
 
 LECTURES ON EARLY 
 ENGLISH HISTORY. 
 
 By William Stubbs, d.d., formerly 
 
 BISHOP OF OXFORD AND REGIUS PROFESSOR 
 OF MODERN HISTORY IN THE UNIVERSITY 
 OF OXFORD 
 
 EDITED BY 
 
 ARTHUR HASSALL, M.A. 
 
 STUDENT OF CHRIST CHURCH, OXFORD 
 
 LONGMANS, GREEN, AND CO, 
 
 39 PATERNOSTER ROW, LONDON 
 NEW YORK AND BOMBAY 
 
 1906 
 
 All rights reserved
 
 LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 
 SANTA UARBARA 
 
 PREFATORY NOTE 
 
 This collection of Lectures, delivered at various times by Bishop 
 Stubbs, will prove a valuable addition to our authorities for Early 
 English History. 
 
 The Constitution under the Early English and Norman Kings 
 is described very clearly, and the full explanations given of the 
 technical terms which are used in the Laws and Charters of the 
 Norman Kings are a very noticeable feature in many of the Lectures. 
 
 All students of Stubbs's c Select Charters ' will find in many of 
 these Lectures elucidations of passages which have hitherto pre- 
 sented great difficulty. It is not too much to say that for the first 
 time historians have been presented with a full commentary upon 
 the most difficult portions of the ' Select Charters.' 
 
 The later Lectures are upon general subjects connected with 
 Early English History. An account and comparison of Early 
 European Constitutions, and discussions upon the character of the 
 Early Ecclesiastical Systems in Europe, of the origins of the Euro- 
 pean Land System, and of European Law, represent but a few of 
 the interesting and important topics treated of by the learned writer. 
 The volume closes with an admirable Lecture upon the Beginnings 
 of English Foreign Policy. 
 
 In preparing this invaluable collection of treatises for the press, 
 very great difficulty has been experienced in deciphering the 
 manuscript of the Lectures upon ' The Laws and Legislation of the 
 Norman Kings.' In view of the extreme value of these Lectures, it 
 was, however, thought advisable to publish them, even though some 
 still further revision may be required in a future edition. As they 
 stand these Lectures will be of enormous assistance to students of 
 the Norman period, who will profit greatly from a careful perusal of
 
 VI PREFATORY NOTE 
 
 the weighty remarks of Bishop Stubbs on the administration of the 
 Norman Kings. 
 
 Though much new light has been thrown on many points in 
 the period covered by these Lectures by the works of Professors 
 Vinogradoff, Pollock, and Maitland, and of Mr. Round, it wall be found 
 that in the main the conclusions arrived at by Bishop Stubbs are 
 still accepted by the best authorities, and that in many respects the 
 results achieved by the labours of the above-named distinguished 
 historians not only corroborate the views expressed in this volume, 
 but increase our admiration of the learning which it contains. 
 
 A. H.
 
 CONTENTS 
 
 PAGE 
 
 I. The Anglo-Saxon Constitution 1 
 
 II. Feudalism 18 
 
 III. The Laws and Legislation of the Norman Kings . . 37 
 
 IV. The ' Dialogus de Scaccario ' 134 
 
 V. Leges Henrici Primi 143 
 
 VI. The Shiremoot and Hundredmoot .... 166 
 
 VII. The Charters of Stephen 175 
 
 VIII. The Domesday and Later Surveys .... 184 
 IX. The Comparative Constitutional History of Medleval 
 
 Europe 194 
 
 X. The Elements of Nationality among European 
 
 Nations 205 
 
 XI. The Languages of the Principal European States . 226 
 XII. The Origin and Position of the German, Roman, Frank, 
 
 Celtic, and English Churches 237 
 
 XIII. The Historical Origin of European Law . . . 249 
 
 XIV. Systems of Landholding in Mediaeval Europe . . 261 
 XV. The Early European Constitutions 273 
 
 XVI. The Kings and their Councils in England, France, 
 
 and Spain 285 
 
 XVII. The Functions of the National Assemblies . . . 297 
 
 XVIII. The Growth of the Representative Principle . . 310 
 
 XIX. Early Judicial Systems 323 
 
 XX. The Growth of the Constitutional Principle in the 
 
 Thirteenth and Fourteenth Centuries . . . 335 
 XXI. The Beginnings of the Foreign Policy of England 
 
 in the Middle Ages 354 
 
 INDEX 373
 
 Errata et Corrigenda 
 
 Page 8, line 16, for probable read probably 
 
 70, „ 36, for in the land read in the hand 
 97, „ 30, for Graham read Gratian 
 2-56, „ 17, for wanes read waxes 
 274, „ 24, for attitudes read attributes 
 301, „ 32, for during its period read during this period 
 318, „ 11, read given by the charter ; in unchartered towns 
 probably the magistracy
 
 THE ANGLO-SAXON CONSTITUTION 
 
 The history of our country is in one way of looking at it the history 
 of ourselves ; it is the history of our mind and body — of our soul 
 and spirit also — for it tells how our fathers before us became what 
 they were, and how our ways depart from or resemble theirs — how they 
 won the liberties in which we have grown to be what we are — how 
 they received and modified and handed down to us the inheritance of 
 the old times before them — how the true history of a people is the 
 history of its laws and institutions, more especially of its manners : 
 and manners, as we know, maketh man. 
 
 The knowledge of our own history is our memory, and so the 
 recorded history of a nation is the memory of the nation : woe to 
 the country and people that forget it ; an infant people has no 
 history, as a child has a short and transient memory : the strong man 
 and the strong nation feel the pulsation of the past in the life of the 
 present : their memory is vital, long and strong. Neglect of historical 
 study and knowledge is to a nation what the loss of memory is to a 
 man — a sign of old age and decrepitude, or the effect of some 
 terrible disease in an individual ; it is in a nation a sign of lost 
 independence in manners and ways of thought — a moral decrepi- 
 tude waxed old and ready to vanish away ; or perhaps in this case 
 also the result of some terrible convulsion — a wave of revolution 
 rolling over the land, overthrowing laws and institutions, and washing 
 away old landmarks, as you may see in the France of this day. 
 The lives and memories of no two men are alike : the true life of 
 any one man is fuller of inconsistencies and anomalies than any 
 fictitious or imaginary tale. While we speak time flies, and we 
 cease at the end of a word to be physically the same beings that we 
 were at the beginning. So also history is full of anomalies and 
 single events giving colouring to periods and making things to be 
 what they are ; and as there are anomalies in every history, so there 
 is a history for every anomaly. Our constitution is full of such, 
 so are our time-honoured customs, our laws and liturgy, our terri- 
 torial divisions, our language written and spoken. Each of these 
 
 £ B
 
 2 THE ANGLO-SAXON CONSTITUTION 
 
 is a growth of a thousand years, and every irregularity in each has 
 a history, if we could get at it, more or less precious, and certainly 
 interesting to one who will take the trouble of exploring it. 
 
 The tendency of the present day is to destroy these historical 
 specialities : the Ecclesiastical Commission has done for our eccle- 
 siastical fabric what phonetic science was to have done for our 
 language and what certain persons want to do for our Prayer Book. 
 Much may be said for simplification and equalisation in such things ; 
 but gold itself may be bought too dear, and every improvement 
 based on such principles has a heavy counterbalance in the destruc- 
 tion of historical associations, in the disidentifying ourselves with 
 our forefathers and with what helped to make our country great. 
 We hear of the dead past and the living present : we are bid (and we 
 do well to remember that it is an American poet who so adapts the 
 words) to let the dead past bury its dead. But surely the past lives 
 in the present, the process by which we became what we are is a part 
 of our living being ; if we are cut off from what we were, we only 
 half live. 
 
 The old map of France is full of memories — recollections of 
 Gaul and Rome, the empire of the Caesars, Burgundians and 
 Aquitanians, Franks and Armoricans — Clovis, Charles the Great, 
 and St. Louis — knights, troubadours, saints, and heroes. The 
 history of the land was written on its face. The map of modern 
 France is a catalogue of hills and rivers, a record of centralisation, 
 codification, universal suffrage, government by policemen. Probably 
 the work of simplification will never be carried so far in England, 
 but there is a tendency towards it, which is a sign of the decline of 
 independent thought and character, as I said before. 
 
 Look at an old church, any old church you like ; you will find 
 in every peculiarity of its structure and decoration something that 
 has a history and a bearing on the general history of the place and 
 country it stands in. The tracery of its windows, the moulding of 
 its cornices, tell of different epochs of architecture, each of which 
 has a definite relation to a period of history : the rude work called 
 Saxon work, or even — as in some churches you find — the still earlier 
 remains of Roman brickwork, the round massive columns and 
 arches of Norman art, the elegant Early English lancet, the beauti- 
 ful Decorated work of the Edwardian period, the square-headed 
 Tudor work, the Elizabethan, the Jacobean work of the chancels 
 so common in Essex, and last and least the cheap and dirty work 
 of the reign of George III. The very names of these styles connect 
 the building with the history of the nation. Not to speak of the 
 direct materials for history that may be found in the sepulchral 
 monuments on the walls, there are in every church signs and
 
 THE ANGLO-SAXON CONSTITUTION 3 
 
 tokens of changes in religious thought and ritual — disused furni- 
 ture, such as holy-water stoups and sacring-bell cots, remains 
 of broken windows of stained glass, that could tell, if they might 
 speak, a touching tale of three periods at least of change. Like an 
 old soldier who has a story for every scar that marks him from his 
 brothers, every old building, church or not, has a history for every 
 broken stone. 
 
 How do our parishes come to be bounded with the boundaries 
 that do bound them ? Why are they so different in size and shape 
 and population and endowments ? Why is one part in this manor 
 and another in that ? Why is one in this county and another in 
 Hertfordshire ? Why are we at all in the diocese of Rochester or 
 the hundred of Chafford ? Why and how is Brentwood a hamlet, 
 and South Weald a mother church ? Who burned the original and 
 'not ignoble ' wood that gave name to this place ? Here are a lot of 
 questions that now admit perhaps of very dim and scanty answers, 
 but which tell of the certain existence of causes by the existence of 
 the effects. To explore the minutiae of such things is the province of 
 antiquarian research. Antiquarian topography and genealogy are 
 most interesting studies, and supply the matter in great measure 
 from which history, written history, is obliged to borrow in order to 
 construct and correct itself. It is not my province now and here to 
 go into anything that concerns them. History deals more with 
 generalities, and a short view of history such as can be embraced in 
 a lecture must deal with very wide generalities. I am not, for 
 instance, to tell you why a man is in the county of Essex, or the 
 diocese of Rochester, or the hundred of Chafford, or the parish of 
 Weald ; but I may tell you something as to how it comes to pass 
 that you are here at all — what is a county, a diocese, a hundred, a 
 parish, or a township. When I come to the feudal system we can 
 talk about manors and freeholds and copyholds ; and if you like to 
 follow the stream further down than I intend to take you, you may 
 come in time to unravel for yourselves the equally mysterious 
 arrangements of poor law unions and postal districts and sanitary 
 jurisdictions and boards of works. 
 
 It is to Ancient Germany that we must look for the earliest 
 traces of our forefathers, for the best part of almost all of us is 
 originally German : though we call ourselves Britons, the name has 
 only a geographical significance. The blood that is in our veins 
 comes from German ancestors. Our language, diversified as it is, is 
 at the bottom a German language ; our institutions have grown into 
 what they are from the common basis of the ancient institutions of 
 Germany. The Jutes, Angles, and Saxons were but different tribes 
 of the great Teutonic household ; the Danes and Norwegians, who 
 
 B 2
 
 4 THE ANGLO-SAXON CONSTITUTION 
 
 subdued them in the north and east, were of the same origin ; so 
 were the Normans : the feudal system itself was of Frank, i.e. also 
 German origin. Even if there is still in our blood a little mixture 
 of Celtic ingredient derived from the captive wives of the first con- 
 querors, there is no leaven of Celticism in our institutions. The 
 rights of women were not much respected, one would fear, in such 
 connections. The question whether it is so or not might be in- 
 teresting, but there is next to no evidence either way. 
 
 It is a very fortunate thing for the German races that we have 
 from the pens of two such writers as Caesar and Tacitus a sketch of the 
 institutions of their fathers as they were flourishing 1800 years 
 since : a sketch indeed fragmentary, meagre, and obscure, but all the 
 better for that ; those very faults are a proof of genuineness. They do 
 not guarantee the accuracy, but they do guarantee the good faith of 
 the writers : a man evolving history (as our German cousins are 
 fond of doing) out of his own consciousness would have drawn a 
 much more complete and consistent and clear picture. I am not 
 going now to trouble you with the details of those sketches, we 
 have not time to do so ; and those who know enough Latin to 
 understand them can easily search them out for themselves, while 
 to those who do not it would be unintelligible to enter into them : 
 I must confine myself to the conclusions that the laborious students 
 of those and suchlike sources have arrived at. 
 
 It is a very common thing to speak of Anglo-Saxon laws and 
 institutions as if they were something definite and invariable for the 
 time during which the race was independent and supreme. Just as 
 foolish would it be to consider the Anglo-Saxon language to be as 
 definite and fixed as classical Latin, or Anglo-Saxon architecture as 
 regular and uniform as that of the most formal period of Italian or 
 Greek art. I have heard it observed that history has been written 
 on the assumption that all the Anglo-Saxons were alive at the same 
 time : Hengist and Horsa, Ina and Offa, Edward and Harold are 
 all clubbed together as kites and crows ; for as such John Milton, 
 a great poet but an execrable historian, is pleased to designate the 
 heroes of the Heptarchy. We will guard ourselves at the outset 
 from this silly blunder, remembering that as to time the authentic 
 history of Anglo-Saxon law reaches from Ethelbert to Harold, a 
 space of 460 years : that as to origin, it is indeed all radically German, 
 and the germs of much of it may be discovered in the German 
 customs of the age of Caesar and Tacitus, but that these germs had 
 by the commencement of the historical period developed in different 
 ways among different tribes : so that the laws of the different nations 
 who conquered Britain might, if we possessed them, be found to 
 possess only a family resemblance, as those of successors certainly do :
 
 THE ANGLO-SAXON CONSTITUTION 5 
 
 further, that the conquerors came from different parts of Germany 
 and at different periods, and brought some full-grown insti- 
 tutions with them, of which not even the germs can be traced in 
 the earlier settlers. So far from being an age of uniform stagnation, 
 it was a period of ever varying growth and development, scarcely a 
 century passing that did not bring some new influence to bear on it, 
 scarcely two divisions moving on at the same rate or in the same 
 direction. It would require a long series of volumes to trace these 
 differences as to their historical causes and effects ; and such an 
 investigation would probably interest only legal antiquaries. It is 
 to those most conspicuous developments and most lasting institu- 
 tions that have left their marks on the map of the land or on the 
 manners and customs of the nation, that we must devote the short 
 time allotted to a lecture like this. 
 
 The earliest form of community of which we can find a trace is 
 that described by Tacitus : a body of men living together in separate 
 district dwellings with no several ownership in land, but cultivating 
 the common estate in portions which were changed and redistributed 
 every year. Cassar describes the Suevi as having no several or private 
 estates, and as not inhabiting the same lands for more than a year. 
 This seems to be a sign of earlier customs than Tacitus found 
 existing. Cassar does indeed represent the Suevi as nomads. 
 Tacitus says of the German agricultural races generally : ' The lands 
 are held by the collective community, according to the number of 
 cultivators, turn by turn : afterwards they divide them according to 
 their estimation among themselves — the wide extent of the plains 
 makes these constant partitions a matter of no difficulty — they 
 change their cultivated lands every year, and there is land over.' I 
 have translated the passage literally, and you see how involved it is. 
 I will not lead you into the mazes which contradicting critics have 
 woven round it. It seems to hint, however, at two descriptions of 
 property— the actually divided and allotted property on the one hand, 
 and that held in common by the community — private and public lands. 
 Indeed, it seems almost impossible that a settled community could 
 exist, inhabiting houses such as Tacitus describes, 'not,' he says, 
 ' as in our fashion with buildings joined to and communicating 
 with one another, but each house surrounded by an open space, 
 either for the prevention of fires or owing to their ignorance in 
 building ; ' it seems impossible that a community could exist in this 
 way without private estate in land. Each cottage would demand a 
 garden, a cornfield, a stableyard, an orchard. The race was no longer 
 a nomad race that could dispense with such — settled habitations in- 
 volve privacy, and every man's house is his castle. Imagine, then, a 
 tract of land as extensive as a large English parish ; surround it with
 
 6 THE ANGLO-SAXON CONSTITUTION 
 
 a belt of wood a mile or two in breadth ; dot little cottages or farms 
 about it at consistent distances, each with its hide of land attached 
 to it ; mark out these hides or private properties from the rest of the 
 land. This rest continues to be the property of the community — it 
 will be divided into allotments as the increase of population requires 
 it, or some one who requires rewarding for great services will have 
 a slice cut from it for himself, or, perhaps, in the end, a king or duke 
 may rise up and get it all. Now, however, in the state of primitive 
 equality, some portion of it is arable and let out to the richer and 
 larger families in consideration of bearing certain burdens and pay- 
 ments to the community ; some remains in pasture, and each man 
 has common pasture rights upon it. The woodland round the 
 settlement is not divided nor divisible, but is sacred to the gods ; it 
 is called the mark, and the inhabitants of the settlement have a sort 
 of right to turn out their swine to eat the mast and acorns it pro- 
 duces. The inhabitants of the settlement are probably all akin to one 
 another : in this point of view they are called the magth or kindred. 
 Their land, as well as the boundary round it, is called the mark, and 
 the name is applied to the community itself as a settled occupier of 
 land. Several marks constitute a gau or ga, analogous in some 
 measure to the hundreds of later times; several ga's make up 
 a scyr ; several scyrs in process of time make up a kingdom or 
 county, governed by an ealdorman, earl, or count. Each of these 
 divisions — the mark proper, the gau, the shire, the kingdom — has its 
 proper belt of uninhabited land around it. Cassar tells us that the 
 Suevi in particular held it the highest public glory for the mark to 
 be as wide as possible, as a token that for their prowess no other 
 nation dare come near them. In one place the march on the borders 
 of the Suevi extended 600 miles. These larger marks, or marches, 
 were kept in memory for many ages. The lords president of the 
 marches of Wales were officers of state all through the middle 
 ages. The title of marquis, marchio, markgrave, margrave is still 
 existent. There is still an earl of a march whose ancestors guarded 
 the march between England and Scotland. This wider use of the 
 word is worth remark, but must not cause confusion. 
 
 Whenever I have occasion to speak of a mark in this lecture, 
 I shall mean the first or primary community, the village, the 
 vicus. Well, Britain was a conquered country, and the conquerors 
 as soon as they were settled divided the lands in the way I have 
 described. Every free household had a hide of land of its own, an 
 alod, an ethel : there was besides this the public land held in 
 common now and to be divided in time. On this common land 
 possibly the old British proprietors were suffered to remain as 
 tenants, or possibly it was cultivated by slaves, or still more
 
 THE ANGLO-SAXON CONSTITUTION 7 
 
 probably the cultivation devolved on landless freemen, sons of 
 allodial proprietors who had not yet got an alod for themselves. 
 Of a state of things exactly like this we have, I believe, no direct 
 record : it is not likely that we should, for the use of direct records 
 was primarily to fix the ownership and tenure of lands ; and as soon 
 as direct records begin to exist, the division of land is not simply 
 into allodial and public land, but into bocland and folcland, that is 
 land held by title deeds as freehold of inheritance and land held of 
 the community in consideration of certain services. But the division 
 into bocland and folcland is not an exhaustive one. There were 
 many allodial estates which had existed long before title deeds were 
 invented ; others that were conveyed by the gift of a horn or a 
 clod of grass or some other token, and of these especially were grants 
 for religious endowments. There were therefore three kinds of 
 estates, allodial, and secondly the bocland, and in the third place the 
 folcland. The allodial proprietor held his land of no one : he was 
 bound of no homage : he was free, he owned no lord or king over 
 his estate ; but he was subject to what is called the trinoda 
 necessitas, the duty of contributing to the building of bridges and 
 castles, and of serving as a soldier in defence of the community, 
 pontis et arcis edificatio, et expeditio, The tenants of folcland 
 had, on the other hand, besides these duties, a liability to have 
 strangers, messengers, horses, hawks, and hounds quartered on 
 them by government ; the duty of entertaining and sustaining 
 the king and his officers and servants on their journeys, and of 
 providing them with carriages and horses ; and several others. 
 
 Proceeding from this meagre sketch of the land to the descrip- 
 tion of the persons who hold it and cultivate it, we find of course 
 our first division into free and unfree. The unfree, slaves, theows 
 or eones, were either the remains of the Ancient Britons, called also 
 Wealas or Welshmen, or they were prisoners of war, or criminals 
 condemned to penal servitude, or persons who had sold themselves 
 into captivity for tbe purpose of raising a sum of money, or as the 
 result of gambling transactions, which were not uncommon. 
 
 The free are divided exhaustively into eorl and ceorl, noble by 
 birth and non-noble, but all originally possessed of land as the basis 
 of freedom and citizenship. This simple and primary distinction is, 
 however, early in historic times replaced by others ; the churl, 
 indeed, retains his title, but sinks in position into the villain of later 
 times. The eorl, the noble by birth, ceases to be conspicuous in that 
 dignity, and reappears as the ealdorman, or is revived as the Danish 
 jarl or the Norman earl, or as the gesith, companion, comes or 
 count, or thane and servant of the semi-feudalised court. This 
 calls for an explanation at greater length, and we must look at the
 
 8 THE ANGLO-SAXON CONSTITUTION 
 
 development of an aristocracy of blood into one of power, wealth, 
 and preponderating influence in government. 
 
 We have seen the mark inhabited by its free settlers, friends and 
 
 kinsmen. Among friends and kinsmen even in the patriarchal 
 
 stage quarrels arise, and much more so when the lapse of a few 
 
 generations has loosened the tie of kindred, and spread an increased 
 
 population over a confined space. Every community had a judge — 
 
 perhaps at first the eldest or wisest member of the kin, the ealdorman 
 
 in its primary signification, later the elected magistrate, the reeve, 
 
 graf, or graphio, the origin of whose name is unknown. The mark 
 
 reeve presided in the courts of the mark ; the gau-reeve, if there was 
 
 such a person, in the courts of the gau ; the shire-reeve or sheriff in 
 
 the scyrmote or county court. These were originally all elective 
 
 officers. In time of war each mark and scyr contributed its quota 
 
 to the army — the command of the national army was entrusted to a 
 
 heretoga, herzog, duke or leader, who would probable choose his own 
 
 officers. In this heretogaship or elective commandership originated 
 
 the royalty of the German races. The kings were the elected 
 
 generals in war, chosen from the nobles, mostly of the race of 
 
 Woden. I need not describe the stages by which such an office 
 
 becomes first perpetual, then hereditary in one family, then subject 
 
 to the ordinary laws of succession by primogeniture or otherwise. 
 
 The Anglo-Saxons had arrived at the hereditary stage when they 
 
 came to Britain. 1 They had kings — cyn-ing — the son or child of 
 
 the kin or race. Although in a manner hereditary, the crown was 
 
 not strictly so in our acceptation of the term. When the king died, 
 
 his successor was chosen from his family, sometimes the eldest, 
 
 sometimes the wisest or the richest or most able, not until later 
 
 times necessarily the nearest in blood. The royal domain consisted, 
 
 of course, of the original alod of the leader elected, of such portions 
 
 of the folcland as were allotted to him in consideration of his 
 
 services, and latterly at least the folcland itself, the duties and 
 
 services payable by the tenants of it, such as sustenance &c, but it 
 
 does not appear that the folcland was ever so vested in the king that 
 
 he could alienate it or turn it into bocland without the consent of 
 
 the community in the witenagemot or scyrgemot, parliament or 
 
 county court. 
 
 Given a king, a new order of nobility was sure to arise — nobility 
 by service. The ancient leaders of the Germans surrounded them- 
 selves with a court of brave men, the heroes and wise men of the 
 nation. These are called the king's gesiths or companions, his 
 servants or thanes ; his comites or counts ; his principes or princes. 2 
 
 1 Lappenberg thinks not, and makes 2 King's followers, geferscipe, fol- 
 
 Ml\e of Sussex the first (ii. 308). garth. Lapp. ii. 311 ; Tacitus, Germ.31.
 
 THE ANGLO-SAXON CONSTITUTION 9 
 
 Of course many of these were noble by birth, but it was by no 
 means necessary : they were enriched by the king with estates cut 
 out of the folcland, they were the king's men, and so far forth were 
 unfree. 1 They were not feudal vassals, for the essence of that rela- 
 tion was in the tenure of land : there was no such in the character of 
 the gesith — he was personally, and not by reason of his tenure, the 
 king's man and creature. The king furnished him with a horse and 
 armour to go to war in ; and when he died the gift was returned to 
 the king under the name of the heriot : his lands did not descend 
 hereditarily unless under special deed. 
 
 Of the gesiths or thanes themselves there were two classes, the 
 ealdorman, who owned forty hides of land, and the smaller thane, who 
 owned five ; but these distinctions seem to come in after the nobility 
 by service had become hereditary and the gesithship to have been 
 lost sight of. The thaneship was now even within reach of the 
 churl who could scrape together the five hides of land, the 
 merchant who had made three voyages on his own account, or the 
 British unfree tenant who had acquired the requisite territory. 
 Next in dignity to the king were the aethelings, his sons or near 
 relations, then the ealdormen, then the simple thanes ; next to them 
 the churls. Of course the offices of the court were at first personal, 
 not hereditary : there was the staller, that is the marshal or high 
 constable ; the discthegn, dapifer or high steward ; the pincerna or 
 cupbearer ; the chamberlain or bower thane, who was also the high 
 treasurer ; the hraglthegn or keeper of the robes ; traces of these 
 offices subsist to this day. This was the court. But besides this 
 there were numerous inferior officers, reeves of the king : for 
 the king had his town reeve, and village reeve, and sheriffs to 
 look after his interests, as the elective reeves represented the 
 communities. 
 
 Before we proceed to take a view of the way in which the govern- 
 ment was conducted, we must first give a glance at the church. The 
 conversion of the Anglo-Saxons to Christianity followed immedi- 
 ately upon the establishment of their supremacy in Britain : placing 
 their arrival about 450, 150 years may be allowed for the conquest. 
 In 597 the conversion began, and the ecclesiastical organisation was 
 completed by Theodore before 690. A comparison of these dates 
 will show that as soon as the admitted supremacy of the invaders 
 gave scope for their national institutions to work orderly, they are 
 pervaded and modified by a new influence which had not been 
 present in the land of their origin. The most ancient Anglo-Saxon 
 laws that we possess are the laws of Ethelberht, the first Christian 
 
 1 King Stephen made comites on of the demesne. W. Malmesb. Hist. 
 this principle, and endowed them out Nov. c. ult.
 
 10 THE ANGLO-SAXON CONSTITUTION 
 
 king. Another very important result of the introduction of Chris- 
 tianity and the organisation of the church by Archbishop Theodore 
 in the south and Archbishop Egberht in the north, was this. There 
 was no English state — no commonwealth, no kingdom of England 
 as yet : there were the eight great kingdoms of the Heptarchy, there 
 were the subkingships as of the East and West Kentings, the 
 North and South Gyrvii, the Hwiccas, the Magasastas, and many 
 others. Each of these was independent of his neighbour : they came 
 from different parts of Germany, spoke different dialects, used 
 different laws. There was occasionally a bretwalda, a sort of 
 emperor over the whole, from time to time ; but of his functions, 
 if he had any, nothing at all is known. Every district was inde- 
 pendent of every other. Mercia had no rights in Wessex, or Wessex 
 in East Anglia : there was no bond, no unity in the land. 
 
 On the other hand, the church was one, well organised and 
 regulated and closely united by every possible bond. There were 
 eight kingdoms, but there were only two ecclesiastical provinces, 
 York and Canterbury : the tribes that owned the political sway of six 
 kings all obeyed spiritually the see of Canterbury. Every bishop 
 had as a basis of his authority not the mere nomination or accept- 
 ance of the king within whose dominion his diocese lay, but the 
 unity and fellowship of fifteen or sixteen other bishops under the 
 archbishop, each precisely in the same circumstances, a unity and 
 fellowship over which the royal power had no control. Now we 
 might suppose that such a state of things was likely to lead to quar- 
 rels between church and state. But it was not so : whether it was 
 that the kings were so pious as always to choose good bishops, or 
 that the bishops were so strong that it was no use for the king to 
 contest with them, or that the actual power and efficiency of the 
 church machinery was less prolific of effects than we should expect, 
 I cannot say ; but it is clear that there were very few quarrels between 
 the two powers before the Conquest, hardly any before the time of 
 Egberht and the union of the Heptarchy, except the great one that 
 exalted Lichfield for a few years into an archbishop's see, in the 
 reign of Offa. 
 
 The result of this peaceable working of church and state side by 
 side was twofold. In the first place, it promoted the gradual uniting 
 of the kingdoms. The people were in all spiritual matters one nation 
 already. When one king fell in battle, or one royal family became 
 extinct, and Mercia or Wessex annexed the vacant dominion, there 
 was no repulsion on the part of the people ; it was easy for them to 
 become one politically as they had long been religiously. The other 
 result was this : that the bishops were not only ecclesiastical but 
 civil functionaries. Every bishop sat with the king and his gesiths
 
 THE ANGLO-SAXON CONSTITUTION 11 
 
 in the witenagemot or great council of the kingdoms ; and in the 
 shiremotes the bishop sat and judged with the ealdorman, or, in his 
 absence, the king's shire-reeve or sheriff. Nor was their dignity in 
 any respect less than that of their civil compeers. The life of an 
 archbishop was estimated at the same rate of compensation with that 
 of a prince of the blood ; that of a bishop with that of an ealdorman ; 
 that of a priest who had an endowment of five hides, with that of a 
 thane. 1 But of this we shall have to speak by-and-by. 
 
 The legislative functions of government were discharged by the 
 witenagemot — the meeting of the wise men — the king and his 
 bishops and abbots, the ealdormen of the shires, and such other 
 councillors as they or the king summoned for the purpose. In these 
 meetings laws were proposed and sanctioned, grants of folcland made 
 and ratified, appeals heard in the last resort, and general measures 
 consulted on and taken for the welfare of the kingdom. It was in a 
 witenagemot of Northumbria that Christianity was nationally 
 adopted ; in a witenagemot of all England that Edward the Con- 
 fessor was elected. Probably the elections of bishops and ealdormen 
 were settled at these meetings, if not formally transacted through 
 them. From the witenagemot we must carefully distinguish the 
 ecclesiastical council, although constituted very much of the same 
 persons and held at the same time and place. These assemblies 
 were strictly confined to spiritual matters. Before the consolidation 
 of the Heptarchy there were occasionally national or provincial 
 councils, at which two or three kings were present ; but these were 
 purely religious assemblies, and could not interfere authoritatively 
 in politics. 
 
 In a state of society so simple as that of the Anglo-Saxons a very 
 remote court of appeal was hardly needed ; and probably only a very 
 small proportion of causes reached the appellate jurisdiction of the 
 witenagemot. In general, they went no further than the county 
 court. This, the shiremote or county court, was the great judicial 
 resort of the people. We have seen how the mark was constituted, 
 how a certain number of marks constituted a gau or a hundred, and 
 how a number of gaus or hundreds made up the shire. We must 
 now look at them in the reverse order, and describe the shire as 
 divided into hundreds, and the hundreds into tithings. I do not 
 mean to say that these divisions exactly correspond, for I believe 
 the mark to have been the original unit of community, whereas 
 the tithing does not appear before the age of Canute ; but for most 
 practical purposes they must have nearly coincided. A tithing 
 contained probably ten free families ; and a hundred, ten tithings, 
 i.e. originally a hundred free families. You must know that there 
 
 1 Select Charters, p. 65.
 
 12 THE ANGLO-SAXON CONSTITUTION 
 
 is a never-ending dispute among antiquaries as to the origin of 
 hundreds ; for they are of all sorts and sizes, and no theory will 
 apply to account for all ; some of the small shires having the largest 
 number, and the largest counties the smallest. It appears to me 
 probable that each hundred contained in the first instance ten 
 tithings, or a hundred free families ; and that as soon as the 
 enumeration was made, the shire was divided into hundreds with 
 local names and boundaries. In a few generations, the number of 
 free families increasing, new tithings would be formed ; but instead 
 of forming new hundreds to take them in, and so necessitating a 
 redivision of the whole shire, the most natural course would be to 
 affiliate the new tithings to the hundred in which they locally were. 
 So the institution of tithing remaining, the name of hundred would 
 lose its original applicability, as we know it did in other cases, in the 
 Roman civil centuriae and military centuries especially. Now, each 
 of these divisions had its court : the tithing court was probably 
 little more than a modern vestry meeting — the tithing man, so far as 
 his judicial functions went, was about on a par with a petty constable ; 
 and the court of the hundred and the shiremote were the real admi- 
 nistrators of justice. 
 
 In the shiremote the ealdorman, or in his absence the sheriff, 
 with the bishop presided ; but all the thanes sat as assessors, and 
 the inferior freemen also were summoned to attend. In it the civil 
 and criminal causes of the county were investigated and decided. 
 In its criminal jurisdiction it must be looked on as parallel to our 
 courts of quarter session, and in its civil administration to the opera- 
 tion of the newly restored county courts. It moreover decided 
 causes connected with land which come under neither of these 
 tribunals. The part that the churls had in this jurisdiction was but 
 small, for they did not constitute juries : trial by jury was not yet. 
 Still they had duties : oaths of allegiance to take, frankpledges to 
 enter into, and possibly arbitrations to decide among themselves. 
 The judges were the bishop and ealdorman, with the thanes as 
 assessors. 
 
 The hundredmote, or court of the hundred, was held under the 
 writ of the sheriff, presided over by its hundred-man, and its power 
 was restricted to its own hundred. It punished small offences and 
 exercised view of frankpledge. The mention of frankpledge takes 
 us down again to the tithing. 
 
 Every tithing contained ten freemen : every freeman must 
 belong to a tithing ; every ten freemen constituted a distinct tithing. 
 The members of each tithing were responsible for each other's good 
 behaviour : in this relation the tithing was called a frith-borh, or 
 security for peace, and in later times frankpledge, which seems to
 
 THE ANGLO-SAXON CONSTITUTION 13 
 
 be a corruption of the term. 1 The members of the frith-borh were 
 bound to produce in the court of justice any one of their number who 
 was summoned. They were a sort of perpetual bail for one another. 
 If one of them was accused and failed to appear, they might purge 
 themselves by oath of being accessary to his flight ; if they could 
 not do so, they were obliged to make good the penalty of the offence 
 of which he was accused. This institution is, as I said, of late 
 growth : it was not until the time of Canute that it was made obliga- 
 tory on every freeman. The obligation was examined into in the 
 sheriff's hundred court. This examination or seeing into the frank- 
 pledges was called visus franciplegii, view of frankpledge. One of 
 the ten was called a tithing-man, headborough, or constable, who 
 represented his tithing in the courts and acted as a petty constable. 
 In another point of view the tithing would often be coextensive with 
 the township ; and as a township sent a reeve and four freemen to 
 represent it in the shiremote and hundred court, a tithing was in the 
 north of England called a ten-man's-tale. 
 
 Besides the security of frankpledges every man was bound to have 
 a lord or patron in whose protection or mund he was. As the frith- 
 borh secured his responsibility to justice, the protection of the mund 
 was intended to secure justice for him. If he was slain or injured, the 
 mund was said to be broken, and the culprit had to make a compen- 
 sation to the lord as well as to the relations of the injured person. 
 We shall see presently how the custom of the mund was one of the 
 most efficient preparations for the reception of feudalism. 
 
 I have now glanced at most of the remarkable institutions of the 
 Anglo-Saxon races : it remains to say a few words, at the risk of 
 seeming tedious, on the leading Anglo-Saxon laws and customs. 
 The most cursory view of the subject would be very incomplete 
 without them. 
 
 The first of these is the wergild, the compensation that the crimi- 
 nal was bound to make to the family and protectors of the injured, 
 especially of the slain. Capital punishment was inflicted only in 
 cases of foul murder, 2 arson, and theft : the exaction of the penalty 
 was left to the will and execution of the injured party. But besides 
 the capital penalty, and in cases where it was not exacted, there was 
 a wergild to be paid. This differed according to a regular table of 
 values. The life of a king was esteemed at 7,200 shillings, 3 that of 
 the setheling or the archbishop at 3,600, that of a bishop or an ealdor- 
 man at 1 ,200 shillings, that of an inferior thane at 600, that of a simple 
 ceorl at 200. There were other valuations for Britons and slaves 
 
 1 Frith-borh, corr. fri-borh, tr. frankpledge. 
 
 * Conspiracy against the king's life. L. Alfr. Lapp. iii. 310. 
 
 ' Wergild for king peculiar to Anglo-Saxons.
 
 14 THE ANGLO-SAXON CONSTITUTION 
 
 Besides the wergild, there were the following money penalties in case of 
 murder : the king's niund, or fine for breach of his protection ; heals- 
 fang, or commutation for the pillory ; manbot, compensation to the 
 lord or patron for the loss of his man ; and frith-wite, a fine due to 
 the crown for breach of peace. Besides capital punishment, there 
 were banishment, outlawry, and mutilation for theft. Wergilds or 
 bots were not payable only for murder ; there was a regular tariff of 
 wounds to be compensated by money payments. The piercing of the 
 nose was estimated at 9 shillings, other wounds in it at 6 shillings 
 apiece, 3 shillings a nostril ; 50 shillings an eye ; 12 for an ear — 
 if one ear be deaf, 25 ; a thumb nail, 3 ; the thumb itself, 20 ; the 
 shooting or forefinger, 8 ; the middle finger, 4 ; the gold or ring 
 finger, 6 ; the little finger, 11. Even when the wergild was paid, the 
 manslayer was not safe until he had paid a further bot, by which 
 he redeemed himself from feud or enmity on the part of the relations 
 of the slain. 
 
 The second point I have to remark on is process of trial. It 
 used to be a favourite theory that trial by jury was a legacy of our 
 early Anglo-Saxon forefathers. Modern lawyers have decided that 
 the institution in its true character is not of so early a date. The 
 error arose from a confusion between such trial and that which really 
 took place. The real judges were the bishop and ealdorman 
 or sheriff with the thanes as assessors. The number of twelve 
 thanes was convenient and probably usual : it is fixed by a law of 
 Ethelred II. Obviously it is a very different thing for a ceorl to be 
 tried by twelve thanes and for every man to be tried as now by a 
 jury of his equals. 
 
 There is another point that has lent assistance to the old theory. 
 If a man denied that he was guilty of the act he was charged with, 
 he was allowed to clear himself by producing twelve of his equals 
 who were to swear with him that he was innocent. If he was under 
 a lord, the lord or his reeve might come forward and swear that he 
 had not failed in oath or ordeal since the last court day, after which 
 the accused might clear himself by ordeal, or by his own oath 
 and that of his companions. If the lord could not so swear, thrice 
 the number of compurgators must be forthcoming. Each man's 
 oath had a value proportioned to his rank, and if an accused thane 
 could not find twelve thanes to swear for him, he might make up 
 the number by supplying six ceorls for each. The accuser was 
 obliged also to support his charge by the oaths of compurgators, but 
 a smaller number was sufficient. The germ of the present system 
 may possibly be traced in the number twelve, and in the assumed 
 equality of the compurgators ; it is difficult to find any nearer 
 approach to the custom.
 
 THE ANGLO-SAXON CONSTITUTION 15 
 
 The system of ordeal is probably sufficiently known to you all. 
 Neither trial by combat nor ordeal by the corsnsed, hot water, hot iron, 
 or otherwise, was in common use except in cases where the accused 
 had forfeited his credit by some previous crime or was unable to 
 produce compurgators. 
 
 Almost all the foregoing remarks, although primarily applicable 
 to a country population, are true of the inhabitants of towns and 
 cities : we ought further to notice the origin of municipal institutions 
 during the same period. As, however, this subject will come largely 
 into the next two lectures, in its relation to the feudal system and 
 to the growth of our parliamentary constitution, I will not dwell 
 upon it now at length. The principal influences to be noticed are 
 the ecclesiastical ones, the protection afforded by a great monastery 
 to the town growing up under its walls, and the commercial ones. 
 The latter, which are of course most apparent in maritime towns, 
 are traceable in the frith-gilds, voluntary associations of trade, for 
 mutual security, each governed by an ealdorman, the lineal pre- 
 decessors of the aldermen of the present day. These gilds — and they 
 were religious as well as commercial — acquired first a legal recognition 
 and status, then endowments, subsequently a municipal unity, in 
 consideration of which they were allowed to acquire the franchises of 
 the city, soc and sac &c. on paying a rent or farm to the lord of it, 
 who in most instances was the king. We shall see another day how 
 these franchises ripened into boroughs and cities. The city of 
 London is the best known and most eminent of course among them. 
 These, then, are the laws under which our fathers grew for 450 
 years, and which have left their marks so conspicuous upon our 
 map and statute book. Those of us who live in Essex live not in a 
 department of the Chelmer and Thames, but in the ancient kingdom 
 of Essex, the realm of the East Saxons ; we have at the head of 
 our magistracy not a prefect, but a lord lieutenant much in the same 
 position as the ealdorman of old ; the courts are held by the shire- 
 reeve in the shire hall. Our thanes are represented by county 
 magistrates, the shiremoot by the quarter sessions, the hundred 
 motes by the petty sessions and sheriffs' court of tourn and leet. 
 The old names of hundreds and deaneries retain something of their 
 meaning still. Our bishops and thanes represent us in the witena- 
 gemote ; and our ruler is the cyn-ing, the child of the nation. 
 
 In other respects all is changed. We have a proper system of 
 jurisprudence instead of partial and local statutes ; trial by jury 
 instead of compurgation and ordeal ; local self-government is 
 becoming less and less the rule among us. Still there is much 
 unchanged and much unchangeable. 
 
 A slight knowledge of history is enough to show that these laws
 
 16 THE ANGLO-SAXON CONSTITUTION 
 
 and customs grew up under difficulties, that nearly all the Anglo- 
 Saxon period was a time of war, sometimes internal, more generally 
 against foreign invaders. These invaders were of the same original 
 stock with the invaded. They conquered full half of England, the 
 north and east ; but owing to the system begun by Alfred and 
 perfected by Canute they amalgamated with the Anglo-Saxons so 
 entirely that before the Conquest they were one people. Some of 
 the institutions that I have mentioned were perhaps Danish rather 
 than Anglo-Saxon : they gave as well as received. Notwithstanding 
 all this, the race was great in arms and art ; the Anglo-Saxon 
 merchants were found in all marts, the Anglo-Saxon manuscript 
 painting is of the most refined and elegant description, their gold 
 work was the astonishment of continental artificers. It was by 
 Anglo-Saxon missionaries from the seventh to the eleventh centuries 
 that Germany, Sweden, Denmark, Norway, and Iceland were converted 
 to the gospel. The age of flourishing literature was over long before 
 the Conquest ; but there were still poets and prose writers in the 
 monasteries who kept up the fame of the island of Bede and 
 Alcuin. 
 
 I have left to the last the most interesting inquiry of all. What 
 virtues were these institutions the most likely to foster, and which to 
 neglect ? No doubt their general tendency was to produce indepen- 
 dence of character : local self-government was especially the dis- 
 cipline of self-reliance : the Anglo-Saxon was always a brave man. 
 But the discipline of self-reliance is not the same as that of self- 
 restraint, and we are hardly surprised to learn that our fathers, brave 
 as they were, were temperate neither in appetite nor passion. Then, 
 again, too great independence is incompatible with obedience, and 
 the Anglo-Saxons had but a very poor talent for obeying — for 
 patting their own immediate views, likings, and interests out of 
 sight for the common good. If they had been more disciplined they 
 would have been more united — the battle of Hastings would not 
 have decided the fate of the kingdom. That Harold, who possessed 
 all the qualities needed for a great national leader, was unable to 
 unite the nation, is a proof that something more was wanted to 
 make them great : that discipline they got in the grinding despotism 
 of the Norman kings and under the machinery of the feudal system. 
 Happily the despotism did not grind their independence out of 
 them ; more happily still, the feudal system taught them loyalty and 
 obedience. The admixture of the two is needed to make a great 
 people. Poland was once an independent republic, so independent 
 as to be almost anarchical : it was the standing nuisance of Europe ; 
 its crown was bought and sold ; its princes were Arabs, every man's 
 hand against his neighbour. So when it had made all the world its
 
 THE ANGLO-SAXON CONSTITUTION 17 
 
 enemies, it was found too weak to stand, and has now for about 
 a hundred years been learning obedience by subjection to Russia, 
 Austria, and Prussia. When it has learned it, learned to submit private 
 interests and parties to the general good, to be honourable, open, manly 
 in proceeding and loyal to truth and justice, Poland also may become 
 great. But a mere sense of injustice and tyranny on the part of 
 others is not enough to do this ; the Poles must learn to see their 
 own faults as well as their enemies'. 
 
 Well, that discipline England passed through, as grinding a des- 
 potism as ever depressed a nation ; but in two hundred years from 
 the Conquest it had arisen in might and liberty, strengthened by 
 adversity, and begun that glorious course of self-reliance and self- 
 restraint which is the true nobility of any land, and which we pray 
 may be for ever the true character of our own. 
 
 [Note. — Recent research has in some respects modified and developed 
 certain statements in the above lecture. See Vinogradoff, ' The Growth 
 of the Manor ' ; Seebohm, ' The English Village Community ' ; Maitland, 
 4 Township and Manor ' ; Stubbs, * Constitutional History, 1 vol. i.]
 
 II 
 
 FEUDALISM 
 
 1 1 have remarked,' says Mr. Carlyle, ' that of all things a nation 
 needs first to be drilled, and no nation that has not been first 
 governed by so-called tyrants and held tight to the curb till it be- 
 came perfect in its paces and thoroughly amenable to rule and law, 
 and heartily respectful of the same, and totally abhorrent of the 
 want of the same, ever came to much in this world. England itself, 
 in foolish quarters of England, still howls and execrates lamentably 
 over its William Conqueror and vigorous line of Normans and 
 Plantagenets ; but without them, if you consider well, 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 the golden mountain tops where 
 dwell the spirits of the dawn. Their very ballot boxes and suffrages, 
 what they call their liberty, if these mean liberty and are such a 
 road to heaven, Anglo-Saxon high road thither, could never have 
 been possible for them on such terms. How could they ? Nothing but 
 collision, intolerable interpressure, as of men not perpendicular, and 
 consequent battle often supervening, could have been appointed these 
 undrilled Anglo-Saxons, their pot-belled equanimity itself continuing 
 liable to perpetual interruptions, as in the Heptarchy time.' 
 
 I have read this long extract as pertinent to the remarks with 
 which I concluded my last lecture and as containing the key to the 
 history of the times that succeed the Conquest. I think that it 
 describes very well the need of the fresh discipline that was to bring 
 out the better points of the Anglo-Saxon character. But it does not 
 convey the whole truth. For the merely tyrannical rule of the 
 Norman and Plantagenet kings was not enough to bring out of the 
 nature of the people the self-restraint which, added to their already 
 acquired self-reliance, was to help them on to and make them worthy 
 of greatness. Tyrannical government might force them to unity 
 and drill them to obedience, but could never make them orderly, 
 loyal, or patriotic. The feudal system, with all its tyranny and all
 
 FEUDALISM 19 
 
 its faults and shortcomings, was based upon the requirements of mu- 
 tual help and service, and was maintained by the obligations of honour 
 and fealty. Regular subordination, mutual obligation, social unity, 
 were the pillars of the fabric. The whole state was one : the king repre- 
 senting the unity of the nation. The great barons held their estates 
 of him, the minor nobles of the great barons, the gentry of these 
 vassals, the poorer freemen of the gentry, the serfs themselves were 
 not without rights and protectors as well as duties and service. Each 
 gradation, and every man in each, owed service, fixed definite service, 
 to the next above him, and expected and received protection and 
 security in return. Each was bound by fealty to his immediate 
 superior, and the oath of the one implies the pledged honour and 
 troth of the other. Doubtless there were many hardships, more in 
 theory perhaps than in reality. It would seem hard to the allodial 
 landowner who until now had held his land of no earthly lord, as 
 free as heart might wish or eye might see, to be obliged to own a 
 superior of whom he should hold his land, subject to exactions, fines, 
 reliefs, escheats, forfeitures, without whose consent he could not part 
 with an inch of ground, or raise a sum of money, or even leave his 
 children as he wished at his death. Doubtless it seems a hard 
 thing for necessary military service to be taken and exercised under 
 the command of a foreign nobleman, instead of the leisurely and 
 desultory exercise of the old militia, in which every man was 
 very much like his own master — to exchange the theoretical equality 
 of all freemen for the theoretical bondage of feudal subjection. But 
 if, as we saw partially the other day, the reality of Saxon equality 
 was fast disappearing, and the security of allodial possession coming 
 already to require the maintenance of the superior lord, as the 
 military service was becoming a perpetual grievance instead of an 
 occasional duty, and the protection of law universally required 
 almost as much as its restraints, we may not be far from the truth if 
 we conclude that a well-administered feudalism was better for the 
 people than a continuance in their old state. As to the look of the 
 thing, a theoretic feudalism was better than the practical wretched- 
 ness men were sinking into : the mischief was that the feudalism they 
 got was in its way as far degenerate from the ideal as their old 
 liberty had been, and, to add to the mischief, was administered for a 
 century and a half at least by as strong and as cruel a race of tyrants 
 as ever vexed man's heart. 
 
 I mentioned at the beginning of the first lecture that the origin 
 of feudalism must be sought for among the German nations, and 
 that the germs of it might already be traced in the nobility by 
 service of the gesiths or thanes, and in the distribution of folclands 
 with their additional burdens. Indeed, if we like to refine upon our 
 
 c 2
 
 20 FEUDALISM 
 
 theory, we might say that the feudal system bears to the warlike 
 occupations of the German families the same relation that the 
 allodial system bears to their peaceful ones. The one was based on 
 the cultivation of land, the other on its conquest ; the one was a 
 system for countrymen, the other for soldiers ; the one grew up 
 naturally out of their ancient quiet homes in the forests, the other 
 was forced up by the exigencies of continual war and conquest. 
 The Frank kings, like the rest of the German princes, were sur- 
 rounded by a court of nobles, in Germany and England called, as 
 we said, gesiths, in the Frank countries on the Khine and Meuse 
 called antrustiones or leudes. To these were committed the great 
 offices of state, the governorships of provinces, duchies, and counties ; 
 and they were provided for by benefices out of the lands at the 
 disposal of the crown. These benefices were not at first hereditary, 
 and did not involve any fixed service as due in consideration of their 
 possession, but it is obvious that such a state of things could not 
 continue long : the tendency of all such endowments is to become 
 hereditary, and the tendency of all such services to become fixed 
 matters of obligation. I cannot say whether things had actually 
 reached this point in the time of the Emperor Charles the Great ; 
 but they certainly did in the century that succeeded his death. He, 
 as you know, embraced within his empire France, Italy, Germany, 
 and the greatest part of Spain ; and those are exactly the regions in 
 which feudalism grew up and maintained itself the longest. The 
 necessity for protection and military subordination which began 
 during his conquests became universal and perpetual during the 
 insecure and troublous times that followed. The wars and com- 
 plicated relations of the Karolings are among those passages of 
 history which are most difficult to retain in memory. Fortunately 
 we have no occasion at this moment to enter into them. Sufficient 
 it is to lay down that this system, into whose peculiar details we 
 shall examine by-and-by, grew up in the ninth century in its per- 
 fection in the kingdom of France. It was still German — the race 
 that conquered France was a German race, although the conquered 
 population formed the bulk of the people, and was mixed Celtic and 
 Koman. And here one of the curious facts of history meets us. 
 We say William the Conqueror was not a Frank, neither he nor the 
 Franks, his feudal superiors, were Celtic or Latins, and yet both he 
 and they spoke a Roman dialect, not a German one. Might not 
 their feudal system as well as their language have come from the 
 Roman empire ? It is sufficient answer to say, whatever it might 
 have done, it did not, for, with the single exception of the practice of 
 clientship or commendation (that is, the custom for every freeman to 
 be in the mund or protection of a lord), there is no resemblance
 
 FEUDALISM 21 
 
 between them. But it is a strange thing that the strong and hardy 
 Franks should have exchanged their German tongues for the 
 language of the conquered Gauls and Romans ; and it is stranger 
 still that the haughty Northman should exchange his for the French 
 language of the people he conquered ; but most strange of all is it 
 that this powerful and insidious Roman-Gallic tongue, which had 
 supplanted the German in the mouths of the Franks, and the Norse 
 in those of the Normans, should, when brought face to face with the 
 old Anglo-Saxon, vanish and fly before it. It is not always that 
 the language of the conqueror gives place to that of the conquered, 
 it is not always that the reverse is the case ; but here the twice 
 victorious French has to yield to the oppressed and discouraged 
 English. It is true there are very many words of Latin and French 
 origin in English, but the basis of the language is, and ever will be, 
 Teutonic ; and these importations into the vocabulary are not 
 traceable to the Norman Conquest, but rather to the increased use 
 of Latin in the services of the church, and of Norman French in 
 the courts of law, 1 than either to the use of Latin as the language 
 of the learned world, or to the fact that the English always have 
 been the greatest travellers in Europe. This is a digression, but, 
 I trust, a pardonable one. 
 
 Well, as the Franks had come in their strength and conquered 
 Gaul, so the Norsemen came in their strength on the degenerate 
 Franks and conquered Normandy : with the tongue of the conquered 
 race they learned the feudal system and organised Normandy upon it, 
 and when William the Bastard came to England he brought the full- 
 grown system with him. I have said that things were verging to- 
 wards feudalism already ; the perpetual unrest and disquietude of 
 war was evolving it in England and had done two centuries ago 
 across the Channel ; but it was not so to come, it was not as an 
 indigenous growth that it was to prevail, it was forcibly introduced 
 by quite other means. 
 
 Now we will consider first what the feudal system was ; secondly, 
 how and with what modifications it was introduced. In doing this 
 we shall see how it differed from and entirely superseded the allodial 
 system, and what particular details it took from it and absorbed by an 
 assimilating process into itself ; and so we may find out, as we did in 
 the former case, how it acted on the life of the nation (a thought 
 we have anticipated already), and what parts of its machinery and 
 outer working yet remain to us. 
 
 A feodum or fee or fief is an estate held of a superior lord on 
 
 1 No laws or deeds in Norman during the Norman period (Hallam, 
 
 French are extant earlier than Henry Mid. Ages, ii. 306). Norman French 
 
 III., and the courts of the hundreds lasted in the courts till the time of 
 
 &c. were administered in English Edward III.
 
 22 FEUDALISM 
 
 condition of the performance of certain services and with the right 
 of security and protection. The introduction of the feudal system 
 was the redistribution of all the lands in the kingdom on this prin- 
 ciple. England was a conquered country ; all the land was vested in 
 the king, par excellence, the conqueror, the acquirer, or, as lawyers say, 
 the purchaser ; all was to be held of him by military tenure. ' The 
 essential principle of a fief,' says Hallam, ' was a mutual contract of 
 support and fidelity. Whatever obligations it laid upon the vassal 
 of service to his lord, corresponding duties of protection were im- 
 posed by it on the lord towards his vassal. If these were trans- 
 gressed on either side, the one forfeited his land, the other his 
 seigniory or rights over it.' We have seen that this feudal 
 arrangement was different from the old German freedom ; it was 
 a very different thing also from the highland clanship, in which the 
 bond is not one of spontaneous compact of vassalage, but of imagined 
 kindred and respect for birth. Still less is it like the Kussian or 
 Polish system, in which each nobleman is independent and all equal, 
 all less than noble left in servitude ; it was one of slow and endless 
 gradation. We have mentioned two circumstances in the old system 
 that may have led the way to it : the grants of folcland, and the custom 
 of commendation. But they were not of it, and are to be carefully 
 distinguished from it ; commendation had nothing to do with the 
 tenure of land, and grants of folcland had nothing to do necessarily 
 with military service ; both these are of the essence of feudalism. 
 
 Rome was not built in a day, and it took the Conqueror twenty 
 years to accomplish the work. During these years the repeated 
 rebellions of the nobles placed vast estates at his disposal, and pre- 
 texts were never wanting to get rid of Anglo-Saxon proprietors 
 to make way for Normans. Besides forfeitures, marriages were 
 arranged with the same result. Still, it is a mistake to suppose that 
 all the land in England changed hands. We have in Domesday 
 Book an exact account of every acre of land in the kingdom in 1085 ; 
 and it appears from it that very many estates — nearly half of 8,000, the 
 total of mesne tenants — large and small, were in the same hands that 
 had held them in the time of the Confessor. But all new grants 
 were made on the feudal principle — weak and isolated free allodialists 
 came pouring in ready to exchange their freedom for safe protection 
 — and in 1085 William received at Salisbury the fealty of all land- 
 holders in England, both those who held immediately of him and 
 their tenants. Before this time, all the lands had been subjected to 
 the feudal superiority of Norman lords. In taking the fealty of all 
 the landholders William at once and from the first infringed on the 
 great principle of feudalism. According to it, he ought to have 
 required it only at the hands of his own tenants in capite ; that is,
 
 FEUDALISM 23 
 
 those who held immediately of him ; for the principle of fealty was 
 between every tenant and his next lord, not the superior of that lord. 
 The tenants in capite owed it to the king and required it of their 
 vassals ; those vassals owed it to them, not to the king, and required 
 it in turn from their tenants ; these owed it to the vavassor alone, 
 and required it from their villeins ; and so on, the tie being always to 
 the next superior and to the king only through him, so that if he 
 rebelled the vassal was in strict right bound to follow his lord even 
 against the king. William at once set aside this ; he had seen how 
 the great vassals in France — himself, for instance — had in reliance 
 upon it made themselves independent of the crown. He would not 
 have it so in England, and it was not. The introduction of the system 
 was not then an expedient of tyranny, for it was the system that 
 he was himself subject to for his continental dominions, and was 
 that by which he managed his best friends and most favoured 
 subjects ; nor was it so much a scheme of deep policy, as the 
 reduction of all his dominions alike to the same method, and that 
 the best and wisest that he knew. It is only when viewed in con- 
 junction with his other acts for the systematic depression and 
 degradation of the English race, that it becomes to our eyes a 
 portion of the bitter discipline of conquest. When we find how 
 it was administered, that it was made as heavy and aggravating 
 (purposely) as it could be made, when we see how little dependence 
 the English vassal could place on his lord and how little protection 
 he got from him, when we remember that for a hundred years no 
 Englishman attained the least promotion in either church or state, 
 that bishops were dispossessed and their sees sold, that the heroes of 
 the nation were driven to death and exile on a mockery of law and 
 justice, that the very name of Englishman was a reproach, then we 
 look into it and see how vast a machinery was made available for 
 purposes of oppression and exaction. 
 
 The feudal relation was entered on with three distinct pro- 
 cesses or ceremonies — homage, fealty, and investiture. The act of 
 homage, by which the vassal put himself in the hand of his lord a3 
 his man, homo, consisted in his placing his hands between the 
 hands of his lord with the words, ' Devenio vester homo.' He 
 knelt down, unarmed, belt ungirt, sword and spurs removed, and 
 placing his hands so, promised to become his man henceforward, to 
 serve him with life and limb and worldly honour, faithfully and 
 loyally, in consideration of the lands he held of him. The aot of 
 homage concluded with a kiss. It could be paid only to the lord in 
 person. The act of fealty consisted in an oath of fidelity to the 
 lord : it might be done by proxy. The act of investiture was of 
 two kinds, proper or improper : in proper investiture the lord
 
 24 FEUDALISM 
 
 actually put the vassal into possession of the land by livery of 
 seisin ; in the improper it was done in some symbolical way, as 
 the presenting of a clod of turf or a branch or a stone. 
 
 The service which the vassal by these ceremonies was bound 
 to perform was in the first and most honourable tenure, military 
 service. This was incumbent on all tenants in chief, in capite, that 
 is those who held immediately of the king. It is defined by Thorpe 
 to be the obligation to furnish a certain number of knights com- 
 pletely armed for the king's service and to maintain them in the 
 field for forty days. Every estate of 201. annual value was bound 
 to provide one knight : hence it is called a knight's fee. The 
 greater barons of course had estates to the value of hundreds of 
 these fees, and each was bound to furnish his exact number 
 accordingly. If the estate was worth half the money the knight 
 was bound only to half the length of service. If the estate failed to 
 furnish its quotum it in strict law was forfeit, but in practice the 
 forfeiture was remitted and a fine called escuage was imposed. 1 
 Later on, when money was more needed than knights, the knight 
 service was generally commuted for escuage, which is still paid by 
 all the lands in the kingdom under the name of land tax. The 
 obligation was limited by various usages or customs : in some fiefs 
 the vassal was not bound to go beyond his lord's territories, and in 
 some he must follow his lord on all his expeditions. The actual 
 service was not, however, the only obligation of fealty. The vassal 
 was not to divulge his lord's counsel, to conceal from him the 
 machinations of others, to injure his person or fortune, or to violate 
 the sanctity of his roof or the honour of his family. 
 
 Besides the duty of military service, the vassal had duties of 
 peace : he was bound to do suit to the lord, that is to attend his 
 courts : the great barons attended the king's court, and there heard 
 causes under the presidency of the grand justiciary of the realm 
 (this is the origin of the appellate jurisdiction of the House of 
 Lords) : the minor tenants attended the courts of their mesne lord — 
 courts baron as they were called — and there answered complaints 
 brought against them or formed a homage or jury for hearing 
 complaints against others ; they were called pares curtis or pares 
 curiae — peers — hence not only the name of the peers in the king's 
 court, but the origin of the right of every man to his trial by peers, 
 trial by jury. The vassal could not dispose of his fief, or bequeath 
 it by will except by the permission of his lord ; and, on the other 
 hand, the lord could not dispose of his seigniory without the per- 
 mission of his tenants. Besides all these advantages which the 
 
 1 In lands not held by knight's service, towns &c. this was called tallage, and 
 waB very arbitrarily fixed.
 
 FEUDALISM 25 
 
 superior lord had from the services of his tenants, Hallam enu- 
 merates six others called feudal incidents. 1. Beliefs, a sum of 
 money — a succession duty — paid by everyone succeeding by descent 
 to the possession of a fief. You will remember how in the old 
 Saxon law the representatives of every deceased gesith or noble 
 by service had to return to the king the heriot, the horse, and armour 
 with which he had originally equipped him. The relief due by 
 incoming feudal tenants took the place of the ancient heriot ; but as 
 the amount of it was not fixed, it was a ready method of extortion 
 and was so used. Henry I. promised to fix a proportional amount, 
 but it was not done until the Magna Carta, by which it was settled 
 at about a fourth of the annual value. 
 
 The second class of feudal incidents were fines on alienation — 
 sums paid to the lord by the tenant for leave to alienate his lands. 
 As we saw just now, the bond between lord and tenant could not be 
 dissolved without the consent of both : if the lord alienated the estate, 
 the tenants signified their assent to the act and accepted their new 
 lord, by what was called attornment. When the tenant wished to 
 alienate, he had to pay a fine for leave to do so. Such payments 
 being found oppressive, a custom of subinfeudation crept in, by 
 which the new purchaser became the vassal of the old tenant and 
 held the land of him : thus — A is the superior lord, B the selling tenant, 
 C the new purchaser : if C is to buy all the estate of B, he must 
 become a vassal of A, as his predecessor has been, and B must pay 
 a round sum to get A the lord to consent to the arrangement ; but 
 if B can accept C as his vassal, then the lord need not be consulted 
 about it nor any money paid. This is the custom of subinfeudation, 
 a very decided infringement of the rights of the lord, and as such 
 checked by Magna Carta and forbidden by a statute 18 Edward I. 
 called Quia Emptores, which gave the tenant power to alienate his 
 lands so as to be holden of his own superior lord. 
 
 The third feudal incident was escheat and forfeiture : escheat 
 when the line of the original tenant having died out, the fief reverted 
 to the lord ; forfeiture when it became forfeit to him through the 
 failure of the tenant to perform his feudal duties, or through crime 
 against the state. 1 
 
 The fourth class were aids — which were at first numerous and 
 oppressive, but were restricted by Magna Carta to three occasions 
 on which the lord had a right to call on his vassal for assistance : 
 1. to make his eldest son a knight ; 2. to marry his eldest daughter ; 
 8. to redeem his person out of captivity. 
 
 In the fifth place comes the right of wardship, by which the lord 
 had the custody and guardianship of all orphans of his tenants in 
 1 The most usual in England was to enable the lord to pay his own relief.
 
 26 FEUDALISM 
 
 military fiefs, both in estate and person. This might be alienated, 
 and the king might assign the ward lands and person to the guardian- 
 ship of a stranger, whose only object would be to make the most 
 profit out of the transaction. 
 
 The sixth and last was the right of marriage, that is of tendering 
 to the female wards while under age a husband of his choosing : 
 in case of a refusal the ward forfeited as much money as the intending 
 spouse would have paid to the lord for his goodwill. 
 
 So far I have spoken of the principal feudal tenure, that by 
 military service ; there are two others akin to it, grand and petty 
 serjeanty. In grand serjeanty the tenant held his fief under an 
 obligation to do some special honorary service to the king, as e.g. 
 to carry his banner or sword, or to be his butler or chamberlain at 
 the coronation ; in petty serjeanty the tenure was by a meaner 
 service, as that of forester, cook, goldsmith, &c, in connection with 
 which was the custom by which some estates were held, of present- 
 ing the king with a bow and arrow, or a pair of spurs, and suchlike. 
 Both these tenures as well as the proper military tenures were 
 subject to relief, wardship, and marriages. The tenure by which the 
 under-tenants mostly held, and which we may look upon as the most 
 general, was socage. Blackstone thus divides tenures in general, 
 according to the freedom and certainty of the service involved : 
 1. Military tenure, or tenure by chivalry, in which the service is, as 
 we have seen, free but uncertain ; 2. Free and common socage, in 
 which the service is free and certain ; 3. Villein socage, where it is 
 base but certain ; 4. Pure villenage, in which it is base and uncertain. 
 We have considered military tenure ; there remain three : 1. Free 
 and common socage ; 2. Pure villenage ; 3. Villein socage ; and we can 
 dismiss them in a few words, as they may be described by exceptions 
 or negations as contrasted with military service. 1 
 
 Free and common socage (the word seems to be derived from 
 the obligation to suit at the lord's courts or soken) depended on a 
 fixed and determinate service ; such as the payment of annual rent 
 or the ploughing a certain field in a certain time. Socage tenure 
 was not subject to homage, or to the feudal incidents of wardship, 
 marriage, or relief, at least not in their most oppressive forms, 
 and in socage tenures of the king in capite. It is obvious that this 
 tenure is the one under which the Anglo-Saxon proprietors would be 
 most likely to retain their lands, and under it the lawyers class the 
 Anglo-Saxon custom of gavelkind prevalent in Kent, under which 
 the children succeed in equal shares to the estates of their father ; 
 and borough English, in which the youngest, not the eldest, succeeds 
 
 1 I ought not to omit without notice alms, by which church lands were and 
 the tenure by frankalmoign or free are still held.
 
 FEUDALISM 27 
 
 to a burgage tenement. Burgage tenure is socage in a corporate 
 town. Petty serjeanty is sometimes counted as a socage tenure. 
 Thus much we may say with Blackstone of the two grand species of 
 tenure under which almost all the free lands in the kingdom were 
 held till the Bestoration in 1660, when all free tenures were absorbed 
 in free and common socage — military service and the servile duties 
 of serjeanty were commuted for this. 
 
 The two base or villein tenures cannot be understood without 
 reference to the nature of a manor. When a great vassal was put 
 into possession of an estate he organised it in this way : first, a 
 portion was kept in hand for the use of the family and household — 
 this was the demesne ; secondly, portions were granted to tenants 
 in free and common socage ; a third part was distributed among the 
 labouring inhabitants as tenants at will of the lord ; another part 
 was waste. It is the third part that was held in villenage. These 
 villeins were serfs, not freemen as their Anglo-Saxon forefathers the 
 churls had been, and are said to have been divided into two classes, 
 villeins regardant, that is villeins belonging to a particular manor ; 
 and villeins en gross, belonging wholly to their lord and transferable 
 at his will. There is, however, a good deal of doubt about this, and it 
 seems probable that villeins en gross were never used in England at 
 least. A villein, however, in his worst estate was only villein to his 
 lord, and had the rights of a freeman as regarded other people. Well, 
 this old villein tenure or tenancy on sufferance had a natural 
 tendency towards tenant right, and by-and-by the villeins got a hold 
 on the land that was not to be taken from them ; and the right was 
 further secured to them by the custom of court rolls : they had held 
 their lands so long that the common law gave them a prescriptive 
 right to them ; this claim was enrolled in the court of the manor, 
 and the copy of tbis court roll became the title deed of the villein 
 tenant, the origin of copyhold tenures. Such tenures as they be- 
 came fixed were assimilated with the higher feudal ones — there 
 were reliefs, heriots, escheats, fealty and services according to the 
 original theory of villenage, wardships, and fines : most of these 
 remain to the present day. The differences between villein socage 
 and pure villenage are not very clear or distinct. The former, 
 according to Blackstone, the same as ancient demesne, is an exalted 
 kind of copyhold in which the tenants were bound only to certain 
 determinate services. Such is the outline of the feudal tenure of 
 land on which the feudal system was based. You will see that the 
 notion of self-government was now entirely dropped. Justice had to 
 be obtained from the lord, not from the court of the shire or the 
 hundred. The king's council was no longer the wise and great men 
 of the native race, but his tenants in capite, his own creatures most
 
 28 FEUDALISM 
 
 of them, ready to applaud any decision just or unjust, and back 
 up any tyranny, accountable only to him at whose beck they acted. 
 Perhaps, however, the best way of exhibiting the system in its op- 
 pressive character will be for us to take a short historical sketch of 
 the reigns of the Norman kings. 
 
 William the Bastard claimed the crown of England as heir of 
 Edward the Confessor, and as soon as the alarm and confusion that 
 followed the battle of Hastings had in a measure subsided, the 
 English nation acquiesced in the claim. It was found impossible to 
 rally a party to the boy Edgar, and the ancient custom of the realm 
 did not prescribe direct hereditary succession to the crown. Sixty 
 years before, Canute had been accepted as king of England ; and now, 
 repulsive as the thought must have been to a pure Anglo-Saxon that 
 the throne of Alfred should be filled by the spurious child of the 
 Norman devil, the precedent of the illustrious reign of Canute was 
 suffered to rule the present case, and on Christmas Day 1066 
 William was elected and crowned king of the English at West- 
 minster by Archbishop Ealdred of York : he then gave the arch- 
 bishop a pledge upon Christ's book, and also swore before he would 
 set the crown upon his head, that he would govern this nation as 
 well as any king before him had done if they would be faithful to 
 him. At Lent the king went over to Normandy, leaving England 
 under the government of Odo and William Fitzosbern. Hardly had 
 the king departed when the confusion began again. Eustace of 
 Boulogne, brother-in-law of the Confessor, invaded Kent ; Eadric the 
 Wild with the Welsh broke into Herefordshire ; the Northumberland 
 people rose up and slew their newly appointed earl ; the people of 
 Exeter massacred the king's sailors, and Edgar j-Etheling escaped 
 from custody and fled to Scotland, where his supporters began to 
 prepare for war. The cruel measures of Odo and Earl William had 
 produced all this in a very few weeks : they built castles wide 
 throughout the land and oppressed the people, and ever after 
 it greatly grew in evil. Then King William came back, seized 
 the land of the revolted nobles and distributed it among his followers, 
 and laid heavy taxes upon the people. The next year the rebellion 
 was renewed. North and south were both in arms ; the sons 
 of Harold in Somersetshire, Edgar iEtheling and Gospatric in 
 Yorkshire. In 1069 the Danes sailed into the Humber ; and 
 then the patience of the king was exhausted. He laid waste the 
 whole of Yorkshire, that immense district was utterly desolated ; 
 towns and fields alike laid waste, fruit and grain destroyed 
 by fire and water, and for seventy years after that great county 
 remained desolate and depopulated. This strong and cruel measure 
 following after a series of victories on the king's part produced order
 
 FEUDALISM 29 
 
 and peace. No more organised rebellion was attempted, although 
 the nobles held out long in the Isle of Ely, until 1071, when the king 
 forced them to surrender. From this time the obligation of the oath 
 that he had sworn at his coronation appears to have vanished from 
 his mind, and England was treated as a conquered country. The 
 monasteries and churches were given over to pillage : the patriotic 
 archbishop of Canterbury and several of his brethren were deposed 
 and imprisoned for life. Norman abbots were appointed far more 
 faithless and cruel than their master. The name of Lanfranc, 
 archbishop of Canterbury, shines almost alone among the Norman 
 chiefs : by his advice William governed church matters of the 
 kingdom, and his influence was always used for good. Still, this 
 period was a reign of terror, such as at no other time except during 
 the Commonwealth and reign of Cromwell has ever prevailed in 
 England. But a show of legality was still maintained, and this very 
 year the laws of Edward the Confessor, as they were called, were 
 promulgated in London, and there are several charters extant in 
 which the king promises justice and freedom as fairly as any of his 
 successors were obliged in after years to do. 
 
 We have already seen how the feudal system was organised : all 
 will remember the history of the desolation of the New Forest and 
 the introduction of the Norman forest law. Forty-eight great 
 castles were built in this reign : the king's income was raised to 
 1,060Z. a day, that is nearly 1,200,000Z. a year (in value of silver, or, 
 calculating the difference in price, about 20,000Z. a day). He left 
 60,0002.— 180,0002. silver=equal to 3,600,000/.— treasure at his 
 death. 
 
 The whole annual revenue of the Confessor was 60,000 silver 
 marks, absolute value 40,0002. or relative value 800,000Z. The popu- 
 lation of the country in 1085 was not more than two millions. The 
 amount of revenue seems incredible. 1 The revenue, however, was 
 not raised from the demesne lands only, heavy tallages were imposed 
 on the towns ; the danegelt, which had been abolished by Edward 
 the Confessor, was reimposed, varying from two to six shillings for 
 every hide of land ; the charters of the monasteries were forfeited, 
 even those which were of the king's own granting, and redeemed 
 with large sums wrung from the land ; every mode of extortion 
 was practised by the king and his officers. The spirit of the 
 country was dead apparently, for this poverty was accompanied by 
 peace and order. The Norman police was perfect and effective ; a 
 girl loaded with gold might, as we read, travel from one end of 
 England to the other without hindrance. But all that was good 
 and noble was eliminated : some of the English nobility emigrated 
 •' William had 1,290 manors ; Edward had 165 ; Harold, 118.
 
 30 FEUDALISM 
 
 with Edgar ^theling to Apulia ; many took service at Constantinople, 
 where they were known as the emperor's Varangian guards. 
 
 I need not tell the story of the rebellion of the king's sons and of 
 his awful burial, the details of which are sickening and appalling. 
 
 Terrible as the tyranny of the Conqueror was, it was gentle com- 
 pared with that of his sons. He was a great man, though covetous 
 and unscrupulous : they were monsters of rapine, cruelty, and lust. 
 As long as Lanfranc lived he exercised a salutary power over the 
 mind of William Rufus, who had been his pupil, but on his death he 
 gave rein to his ambition and avarice. 
 
 Yet William Rufus could make fair promises ; but it was indeed 
 only one of his ways of exacting money, in which he was more 
 ingenious and unscrupulous than his father had been. As the 
 Anglo-Saxons had rebelled against the Conqueror, the Norman 
 nobles, his uncle Odo among them, rebelled against him. Their lands 
 were a nice addition to his own. The bishops began to die off, and 
 as the king (who seems to have been a freethinker if not an infidel) 
 did not see the need of having bishops at all, the sees were kept 
 vacant and he enjoyed the revenues in the vacancy. Then he bought 
 or took a mortgage of Normandy of his brother Robert, who wanted 
 to go on the Crusade ; and the treasure needful for this was raised 
 by extortion, the very monasteries being plundered of their plate and 
 jewels. In 1093 the king had a severe attack of illness, in which, 
 with the fear of death before his eyes, he repented, promised an 
 amendment of laws and government, and appointed S. Anselm 
 archbishop of Canterbury, but hardly was he recovered than he began 
 the old system over again and took the first opportunity of quarrelling 
 with his new monitor. He died in 1100. 
 
 The reign of Henry I. lasted thirty-five years ; these were com- 
 paratively speaking years of peace to the English ; his only wars were 
 foreign wars. His absences from England were long and frequent, 
 and the tendency of his cruel and unscrupulous nature was checked 
 by the influences of his queen, the Anglo-Saxon princess Matilda, 
 whom the grateful people remembered for many years as the good 
 Queen Molde. He also began his reign with good promises — he made 
 a promise to God l and all the people before the altar at West- 
 minster that he would abolish the injustice that prevailed in his 
 brother's time, and observe the most equitable of the laws esta- 
 blished in the days of any of the kings befoxe him ; and the 
 charter in which he embodied his promises is the basis of English 
 liberties and the foundation stone of the structure on which was 
 raised the noble fabric of the Magna Carta. Its provisions are 
 as follows, and I will read them as significant of the future rather 
 
 1 Anglo-Saxon Chronicle, 1100.
 
 FEUDALISM 31 
 
 than as for the present amending the condition of the people, 
 
 for the reign of Henry I. does not seem to have witnessed any 
 
 positive improvement in this, but rather a rest under present 
 
 oppression and security from increase of misery. Through the mercy 
 
 of God and with the common advice and consent of the barons of 
 
 England (who are here first mentioned in the place of the old witan) 
 
 being crowned king, he will, as the realm was oppressed by lawless 
 
 exactions, before all things free God's church, so that he will not 
 
 sell or farm, nor on the death of an archbishop, bishop, or abbot 
 
 accept anything from the possessions of the church or its tenants 
 
 until the entrance of a successor ; and will abolish all oppressive 
 
 imposts, so that if any of his barons, earls, or other persons die 
 
 who holds immediately of him, his heir shall not redeem his land as 
 
 in the time of his brother, but with a lawful and just relief. In like 
 
 manner the tenants of his barons shall redeem their lands from 
 
 their lords. And if any one of his barons or vassals shall wish to 
 
 give his daughter, niece &c. in marriage, he shall speak with the 
 
 king, who shall accept nothing for the permission nor forbid the 
 
 marriage unless he proposes to bestow her on the king's enemy ; 
 
 and on the death of a baron or vassal of the king, if he leaves an 
 
 heiress, the king will give her in marriage together with her land 
 
 by the advice of his barons. If a widow is left childless, she shall 
 
 possess her dowry and marriage, and not be given in marriage 
 
 except by her consent. If she is left with children, she shall possess 
 
 the dowry and marriage as long as she leads a spotless life, and shall 
 
 not be given in marriage but with her own consent. And the wife 
 
 or relation of upright character shall be guardian of the children 
 
 and land. And the king's barons shall act in like manner towards 
 
 the sons or daughters or wives of their tenants. False coining is 
 
 prohibited. The debts due to the late king are remitted. The barons 
 
 shall have the power of bequeathing their money by will. If one 
 
 dies intestate his representatives shall distribute his effects to the 
 
 benefit of his soul. The system of amercement of penalties used 
 
 in Anglo-Saxon law, for the minutiae of which one comprehensive 
 
 system of forfeiture had prevailed under the last two reigns, is 
 
 restored. An amnesty up to the day of coronation is proclaimed. 
 
 The forests are to remain as they were. Tenants holding by knight 
 
 service are exempted from payments and works ; and he restores 
 
 finally the laws of King Edward with those emendations they 
 
 received from his father with the consent of the barons. If the 
 
 terms of this engagement had been kept, obviously the worst evils 
 
 of the feudal system in its pressure on all but the very lowest classes 
 
 of society would have been remedied. We have no warrant in 
 
 believing that they were. The iron hand pressed as heavily, although
 
 32 FEUDALISM 
 
 perhaps more evenly, aa it had done during the reigns of the father 
 and brother of Henry. 
 
 The exactions were as heavy as ever : the year 1103 was a year 
 of much distress from manifold taxes ; in 1104 we read, ' It is 
 not easy to describe the misery of this land which it suffered at this 
 time through the various and manifold oppressions and taxes that 
 never ceased nor slackened ; moreover, wherever the king went his 
 train fell to plundering the wretched people, and withal there was 
 much burning and manslaughter. By all this was the anger of God 
 provoked and this unhappy nation harassed.' The next year, 1105, 
 this was a year of great distress from the failure of the fruits, and 
 from the manifold taxes which never ceased, either before the king 
 went abroad, while he was there, or after his return. 1110 was 
 a year of much distress from the taxes which the king raised for 
 his daughter's dowry; in 1115 the nation was many times sorely 
 oppressed by the taxes which the king raised both within the towns 
 and out of them. 
 
 In all these years there were also bad harvests and high prices. 
 In 1124 ' Our Lord God Almighty, who seeth all things, seeth that 
 the miserable people are oppressed with all unrighteousness ; first 
 men are bereaved of their property, then they are slain. Full heavy 
 a year was this ; he who had any property was bereaved of it by 
 heavy taxes and assessments, and he who had none starved with 
 hunger.' These are the notes of the contemporary chronicler, and 
 yet these days were better than those that were to come, for, as he 
 says himself, King Henry was a good man and great was the awe of 
 him, for no man durst ill treat another in his time ; he made good 
 peace for men and deer. The sum of his goodness seems to have 
 been that he oppressed Norman and Saxon alike, a system that was 
 not incompatible with the administration of strict justice between 
 them or with a considerable measure of personal security. 
 
 Stephen, as his uncle had done before him, purchased the adhe- 
 sion of the people by the grant of liberties : the church lands seized 
 by William Ruf us and Henry are restored ; the forests made by Henry 
 are disforested ; ecclesiastics are allowed to make wills, and the other 
 engagements made by Henry are enlarged and confirmed. But if 
 Stephen had the will, he had not the power to keep his promises, 
 and his reign was one continuous civil war ; we cannot enter into 
 the details. The following is the judgment of the chronicler. ' The 
 nobles on both sides cruelly oppressed the wretched men with castle 
 work, and when the castles were built they filled them with 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 prison for their gold and silver, and tortured
 
 FEUDALISM 33 
 
 them with pains unspeakable, for never were any martyrs tortured as 
 they were. They hung up some by the feet and smoked them with 
 foul smoke, some by their thumbs or by the head, and they hung 
 burning things on their feet. They put a knotted string about 
 their heads and twisted it until it went into the brain. They put 
 them into dungeons wherein were adders and toads and snakes, and 
 thus wore them out. Some they put into a crucet house, that is 
 into a chest that was short and narrow and not deep, and they put 
 sharp stones within it and crushed the man therein so that they 
 brake all his limbs. There were hateful and grim things called 
 rachenteges in many of the castles, and which two or three men had 
 enough to do to carry. The rachentege was made thus : it was 
 fastened to a beam, having a sharp iron to go round a man's throat 
 and neck so that he might noways sit nor he nor sleep but that he 
 must bear all the iron. Many thousands were exhausted with 
 hunger. I cannot and I may not tell of all the wounds and all the 
 tortures that they inflicted upon the wretched men of this land, 
 and this state of things lasted all the nineteen years that Stephen was 
 king, and ever grew worse. They were continually levying an 
 exaction from the towns which they called tenserie ; and when the 
 wretched inhabitants had no more to give, they then plundered and 
 burned all the towns, so that thou mightest well walk a whole day's 
 journey nor ever wouldest thou find a man seated in a town or its 
 lands tilled. Then was corn dear, and flesh and cheese and butter, 
 for there was none in the land : wretched men starved with hunger ; 
 some lived on alms who had been erewhile rich, some fled the 
 country. Never was there more misery, and never acted heathens 
 worse than these. At length they spared neither church nor 
 churchyard, but they took all that was valuable therein, and then 
 burned the church and all together. Neither did they spare the 
 lands of bishops nor abbots nor priests, but they robbed the monks 
 and the clergy, and every man plundered his neighbour as much as 
 he could. If two or three men came riding to a town, all the 
 township fled before them and thought that they were robbers. 
 The bishops and clergy were for ever cursing them, but this to them 
 was nothing, for they were all accursed and forsworn and reprobate. 
 The earth bare no corn ; you might as well have tilled the sea, 
 for the land was all ruined by such deeds, and men said openly 
 that Christ and His saints slept.' Of course these evils are 
 not to be charged on the feudal system ; still that system did 
 put men at the mercy of such oppressors, and this was really the 
 discipline by which Englishmen were taught endurance and pre- 
 pared for united effort. The worst period ended with the reign of 
 Stephen 
 
 D
 
 34 FEUDALISM 
 
 Henry II., who was hailed as the restorer of the native line of 
 kings, began by breaking the power of the great vassals : he ordered 
 the destruction of the castles, and sent justices round to the counties 
 to hold assizes. In these measures we trace the English hand of his 
 chancellor, the great Thomas of London, Thomas Becket, to whom, 
 whether or not you esteem him as a saint and martyr, English 
 liberty as asserted against the king and the barons owes an eternal 
 debt of gratitude. As chancellor for the first eight years of Henry's 
 reign he was prime minister, and organised the ameliorating measures 
 by which that king gained his popularity. When he became arch- 
 bishop of Canterbury he went at once into opposition in defence of 
 what he esteemed to be the necessary liberties of the church, and 
 continued in that attitude until he was murdered. Even if, as many 
 of you will think, he was wrong in his estimate of church liberties, 
 and still more wrong in the temper in which he supported them, he 
 was the first Englishman who broke through the hard deaden- 
 ing crust of misery which had burst from the flaming volcano of 
 Norman tyranny, and for that deserves to be counted a hero. We 
 shall not have occasion to pursue his history, for the course of our 
 lectures does not carry us into the transactions between the crown 
 and the papacy ; but I will take advantage of the mention of his name 
 to say a few words respecting the position of the church at this time 
 in relation to the people. The church was not Normanised by the 
 Norman kings ; they forced bishops and abbots of their own into 
 the rich places, and some of these were oppressors, but they were in 
 many cases non-resident, and the conduct of the priests and monas- 
 teries was much as it had been before : they were plundered and per- 
 haps persecuted, but that only made what light they had burn clearer ; 
 in some measure the shield of their oppressors was a defence to them 
 as well — when as much as possible was extorted, the rulers took care 
 that none else should try it. Now these priests and monks were 
 Englishmen, and relations generally of the English families who 
 lived near the monasteries ; they had sympathy of race and blood to 
 keep up the charity that they were bound by their vows to show to 
 those that needed. Hence they were centres of security and civilisa- 
 tion, and the only centres of civilisation during the Norman reigns. 
 Their liberties were looked on by the people as their own ; their sym- 
 pathies were always on the side of liberty, and their freedom was won 
 with the freedom of the people. As we shall see, it was men like 
 Archbishops Langton and Winchelsey who really won liberty both in 
 church and state. 
 
 The day was the darkest just before the dawn : the misery of 
 Stephen's reign was the preparation for the little instalment of 
 freedom that was gained in Henry II.'s. No sooner was the
 
 FEUDALISM 35 
 
 administration of the kingdom in strong hands than law and justice 
 were restored. The old Saxon courts of the shire and hundred had 
 been retained under the feudal system, with the substitution of 
 Norman for English judges. The Conqueror had separated the 
 civil from the ecclesiastical courts ; the bishop no longer sat in the 
 sheriff's court as co-ordinate judge, and justices in itinere had begun 
 to go circuits in the latter end of Henry I.'s reign. But the system 
 of regular assizes was begun in the reign of his grandson, and the 
 system of trial by jury dates probably from this time. Money was 
 becoming more necessary than the services of turbulent and 
 unmanageable vassals ; so escuage was levied instead of personal 
 attendance, and the king fought his foreign wars with mercenary 
 soldiers. There was as yet no word of constitutional government, 
 but the system of the two Williams, personal and despotic, gave way 
 to the restored witenagemot, the great council of the vassals of the 
 crown, the bishops and judges. And yet the following is the picture 
 drawn of the administration of justice during the early Plantagenet 
 reigns by Hallam. ' It was not a sanguinary despotism. Henry II. 
 was a prince of remarkable clemency, and none of the Conqueror's 
 successors were as grossly tyrannical as himself ; but the system 
 of rapacious extortion from their subjects prevailed to a degree 
 which we should rather expect to find among Eastern slaves than 
 that high-spirited race of Normandy whose renown filled Europe and 
 Asia. The right of wardship was abused by selling the heir and his 
 land to the highest bidder ; that of marriage was carried to a still 
 grosser extent — women and men, not as wards, simply as tenants in 
 chief, paid fines to the crown for leave to marry whom they would, or 
 not to be compelled to marry one another. Towns not only fined for 
 original grants of franchises, but for repeated confirmations. The 
 Jews paid exorbitant sums of money for every common right of 
 mankind — for protection, for justice : in return, they were sustained 
 against their Christian debtors in demands of usury which super- 
 stition and tyranny rendered enormous. Men paid fines for the 
 king's good will, or that he would remit his anger, or to have his 
 mediation with their adversaries.' Many fines seem, as it were, 
 imposed in sport, if we look to the cause, though their extent and 
 the solemnity with which they were recorded prove the humour to 
 have been indifferently relished by the two parties. Thus, the bishop 
 of Winchester paid a tun of good wine for not reminding King John 
 to give a girdle to the countess of Albemarle, and Eobert de Vaux 
 five best palfreys that the king might hold his peace about Henry 
 Pinel's wife. Another paid four marks for licence to eat. But of 
 all the abuses which deformed the Anglo-Norman government, none 
 was so flagitious as the sale of judicial redress. The king, we are
 
 36 FEUDALISM 
 
 told, is the fountain of justice, but in those ages it was one which 
 only gold could unseal. 
 
 I have tried to present to you, I feel very imperfectly, a descrip- 
 tion of what the feudal system was in theory and of its real pressure 
 on the English nation. We are not to look on it as done away with 
 by Magna Carta, nor by the statute of Charles II. which abolished 
 most of the remaining evils of it : much of its nomenclature and 
 customs still lives among us. We have seen what it was at its 
 worst, in its most oppressive form, administered by the most un- 
 scrupulous and cruel of men. It taught the English race endurance 
 — it taught them a common sympathy — it blended them together in 
 one community of misery, that, having suffered together, they might, 
 when the time for liberty came, be freed together. It served to 
 amalgamate Norman and Anglo-Saxon, churchman and layman, in 
 common interests. The liberty they were to win was not a class 
 liberty like that of Poland and Hungary ; it was freedom for all 
 from the highest to the lowest. This was the Egyptian bondage of 
 our fathers. Loyalty and patriotism were other lessons of these 
 dark days. Not all lords were cruel oppressors ; those who were 
 faithful to their feudal obligations suffered with their people and 
 won their affection and service. Justice became very precious. 
 Laws were looked on as treasures to be vindicated in spite of tyranny 
 and anarchy. The stubborn independence of the ancient race, 
 leavened with fellow-feeling and sympathy, loyalty, justice, and the 
 love of peace, was forming a character worthy to win and hold fast 
 freedom. We shall see, if you please, in another lecture, how that 
 liberty was won and maintained and handed down to us. Esto 
 perpetua. 
 
 [See Stubbs, ' Constitutional History? vol. i. ; Pollock and Maitland, 
 1 The History of the English Law before the time of Edward J.' ; Mait- 
 land, ' Domesday Book and Beyond ' ; Bound, ' Feudal England.']
 
 Ill 
 
 THE LAWS AND LEGISLATION OF THE 
 NOEMAN KINGS 
 
 No one I hope will suspect me, in offering an informal course of 
 lectures on the Laws and Legislation of the Norman Kings, of any 
 intention of intruding on the ground already fully occupied by our 
 guides, philosophers, and friends of the sister faculty. That is by 
 no means the case. The ways of examining the subject are so 
 different, as they offer themselves to the student of law and the 
 student of history, that there is little chance of collision. Like a 
 certain set of mathematical lines, however closely we may approxi- 
 mate, it is in our nature never to meet. The difference between the 
 historical study of law and the legal study of history is one not of 
 method only, but emanates in the point of view from which the 
 student works. It is not that the one is analytical and the other 
 synthetical ; that is perhaps in the main true, but it is not all the 
 truth. It is that the essence of the historical study is in the working 
 out the continuity of the subject, while the essence of the legal 
 study is in the reducing of it all to certain theoretic principles. 
 You may think perhaps that this is much the same as the difference 
 between synthetic and analytic treatment ; but it really is more ; for 
 the historian has an analytic method as well as the lawyer, and the 
 difference may easily be seen between them. But the student of 
 history has wider sympathies and a somewhat wider grasp. Of 
 course I speak as a student of history, so you will take my account 
 of myself with some grain of allowance. We are both of us set 
 down, we will say, in a garden of facts : it is my business to investi- 
 gate in the case of each fact, where it comes from and what becomes 
 of it ; it is my friend's business to cultivate one particular set of 
 facts until he gets it into the most scientific form and the most 
 sound and effective condition. I have to deal with a good deal that 
 turns out to be weeds, rubbish in fact, only I do not know it to be 
 rubbish until I have worked it out. My friend's purpose is to produce 
 a perfect cabbage, we will say ; mine is to find out all that is worth
 
 38 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 finding out about the whole plot. Of course there are merits in 
 both schemes : the historian is, in the judgment of the -world, a 
 much less useful person than the lawyer ; but educationally he has 
 his uses still, and one of them is to train the mind to careful habits 
 of investigation and to sound judgment on the points that have been 
 investigated. Our friend has the advantage in the point of concen- 
 tration and of professional utility. There is likewise much more 
 competition and both larger profits and, I venture to think, when 
 there are any at all, quicker returns. 
 
 But my object now is not to insult the student of law, nor to 
 puff the constitutional history of England. It is rather to impress 
 upon you the importance, from our point of view, of the method of 
 study which, beginning at the beginning of history, takes especial 
 pains in finding out the causes and consequences of things, where 
 they come from and what becomes of them. And if we want a 
 better example than the cabbage we shall find it in the subject that 
 I have chosen for the course. The history of Norman law is a 
 subject which very well illustrates what I have been saying. It is a 
 phenomenon, not very large, not very clear ; a piece of history lying 
 in a debatable land between Anglo-Saxon law, which is to a great 
 extent matter of antiquarianism and archaeology, and the common 
 law of England, which dates its historical shaping from the reign 
 of Henry II. How much of the Norman law is rooted in antiquity 
 corresponding with that of the Anglo-Saxon law, and how much of 
 it goes on living and incorporating itself in the continuous life of 
 the English common law — where it comes from and whither it 
 goes — this may be regarded as the chief point to be kept in view in 
 the course that lies before us, but it is not by any means the only 
 point on which we shall have to dwell, for there is something in the 
 literary history and more in the constitutional aspect of the thing 
 that will demand continual digression for investigation. And even 
 putting the point as I have put it, I may be laying myself open to be 
 misunderstood. We shall come on examination to find that about 
 much that is called Norman law there is no question, but that it is 
 Anglo-Saxon law pure and simple ; and that instead of ceasing in a 
 mysterious manner to exist at all, it does continue to exist under 
 the comprehensive shadow of the later common law. There is an 
 historical doctrine of the conservation of energy, and it is very strong 
 in these regions of history ; nothing that has once been can be so 
 unmade as to leave everything that follows it to continue as if it had 
 not been : 
 
 ixuvov yap avrov kki Oebs orr€ptcr/c€Tai 
 aycvrjra Troteiv acra' av rj TTCTrpay/xeva. 
 
 (Arist. Eth. 6. 3.)
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 39 
 
 Well, I have no doubt you think the moral of all this is that he 
 is going, where he knows anything about the legal side of things, to 
 tell us about it, and where he does not to say that belongs to the 
 lawyers. I am not at all sure that that may not be the result ; but 
 I may say that that is not the intention with which I set out. I 
 propose to begin with a somewhat detailed examination of the text 
 of the documents that we are going to deal with, so that if possible 
 we may understand what they mean. By doing this I shall have, no 
 doubt, to invite you into a region that is dull and to a certain extent 
 laborious ; the frightful Norman French of one form of the code of 
 the Conqueror's laws is repelling in the extreme, and there are 
 difficulties about the authenticity of even that ; the Latin of the 
 other laws is scarcely more attractive, although it is not quite so 
 unintelligible. We may find some reason to inquire why should this 
 French be so barbarous, and this Latin so extremely bad ? We will 
 leave our speculation on the answer until we come to the question. 
 Then again, there are points of chronology which I know beforehand 
 will never get a firm footing in your notes. A good deal of light 
 may be thrown on the importance of a piece of law by making out 
 the exact date at which it was promulgated ; but alas, alas, as you 
 probably know, the Norman kings did not date their edicts at all ; 
 and the men who transcribed them for our learning, in nine cases 
 out of ten, omitted to transcribe the names of the witnesses, by 
 comparison of which the date of the document might have been 
 approximately ascertained. This is an unfortunate drawback to the 
 interest of our study ; for it is almost impossible to infuse an 
 element of human or national sympathy into the examination of 
 texts that cannot be referred to a distinct place in history : 
 unfortunately we see that every day exemplified in Egyptian and 
 Assyrian antiquities ; and to me it is a very melancholy thing to go 
 to the British Museum and walk up those avenues of alabaster 
 figures, man-headed lions and others, and to think that of the genera- 
 tions that carved them out and walked about among them first, I 
 have no idea, defined by chronology to within one or two thousand 
 years, of who they were, or what they did, or why they set up these 
 wonderful things, or how they made them ; where they came from, 
 or whither they have gone. Well, it is not quite so bad with these 
 Norman laws ; in reading them we are not, as our Assyrian friends 
 used to be, nonplussed by the difficulty of determining whether the 
 cylinder before us is a list of drugs or a royal pedigree, a Christmas 
 bill or a fine and recovery. We know that they all fall within the 
 space of one century, between 1066 and 1166 ; you may say between 
 the battle of Hastings and the assize of Clarendon, and we know 
 that they are laws — although, by the bye, what are laws ? for that
 
 40 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 also is a preliminary point — and that they come midway between two 
 systems, with neither of which they are identical. One cannot be 
 expected to know all about them ; if it were so, what would be the 
 use of historical training ? I can only reply that I wish we did. 
 
 An introductory lecture is always a desultory one. I dare say 
 you will think that some of mine are desultory without being intro- 
 ductory. It may be so. But the first lecture is always desultory, 
 because the professor has to come prepared to say something, and 
 without any notion of what sort of class he will have to say it to, 
 and therefore how he should put it ; with the easy conviviality of 
 sine ulla sollennitate, or with the dignified and attractive air of the 
 man who is quite at home in his subject, or with the majesty, 
 undefined, something like the royal supremacy in ecclesiastical 
 causes, the full undefined majesty of the professorial chair. I 
 cannot get over this. I do not feel convivial, or quite at home, and 
 certainly not majestic. I should very much like a class that would 
 be content to work with me through these documents without find- 
 ing it necessary to tell me that as it is of no use for the schools they 
 do not much care about taking notes ; and I do not much care about 
 the man who comes ready armed with questions from a coach which 
 all the wise men in the world cannot answer. It is obvious that if I 
 were to prepare a lecture for such a class as I want, and find myself 
 when I come here face to face with such a one as I do not want, I should 
 begin by feeling as much at home as if I were at a popular concert. 
 I must, however, during the course lecture on the subject I have 
 set myself, but there must be all the difference in the world in the 
 way in which I shall treat it. Still, there are certain preliminaries 
 which may be as well taken at once. And we may as well lose no 
 more time, but go into these. 
 
 There is a certain number of well-defined pieces of Norman 
 legislation into which we must go first ; there is a certain number of 
 undefined measures of policy, matters, that is, which we know either 
 as recorded facts of history or as the necessary inferences from a 
 comparison of preceding and succeeding history, which is not 
 recorded documentarily ; and there is a region of more minute 
 technical interest, the details of legal procedure and minutiae of 
 archaeological detail. Into these last it is, of course, to-day quite 
 problematical whether we shall have time during the course to 
 adventure ourselves : if we cannot within the compass of our 
 eighteen lectures do this, I can give those of you who wish for them 
 the names of the books on which a more careful reading should be 
 bestowed. But into the first and second of these classes of matters 
 we may, I think, go with profit and at our ease. The actual laws 
 we may read and explain, so far as we can ; the constitutional
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 41 
 
 tendencies that are not to be found in the text of laws we can 
 likewise examine, either as they meet us from time to time, or 
 when we have read through the laws. 
 
 There are about a dozen documents of the reigns of William the 
 Conqueror, Henry I., and Stephen that will have to be first read or 
 reviewed. Some of these — all except three or four — are printed in 
 my ' Select Charters,' which will be our most convenient text-book. 
 The others were too long and of interest so far from constitutional 
 that I could not well introduce them into that book, and indeed 
 they are only to be found in books too cumbrous for me to expect 
 you to bring them. I will give you the names of the books, so that 
 if you can, or wish to do so, you may procure them ; but I intend, if 
 I can do it, to give you in the course of the lectures as m ch of the 
 text as I shall feel myself qualified to dilate upon, and not to puzzle 
 you with too many references. The laws which I am going to work 
 upon, and which are not in (the ' Select Charters,' will be found in 
 these books ; and in all of them, for they are simply recensions of 
 texts of the same documents. I may take them in chronological 
 order, although it is quite unlikely that you may wish to have the 
 earlier ones ; and I shall not mention more obscure editions. 
 
 Lambarde's ' Archaionomia,' a small folio of the seventeenth 
 century, contains all that we shall want ; or Wiikins' ' Leges 
 Anglo- Saxonicas,' of the eighteenth ; or Thorpe's ' Laws and 
 Institutes of the Anglo-Saxons,' of the nineteenth. The handiest 
 form is a German edition, Schmid's ' Gesetze der Angelsachsen,' 
 which contains, beside all that the rest contain, a good index and 
 glossary and some valuable notes, not always to be followed, but 
 always interesting and curious. Any one of these costs from a 
 pound to thirty shillings, but I do not think it necessary that you 
 should bring one ; I hope to do all that we need do without them. 
 
 The list of documents which we shall, if all is well, explore is 
 this : for the reign of William the Conqueror, three texts will be 
 found in the ' Select Charters ; ' the edict on appeal of battle ; the 
 edict on the separation of the courts, and the ten articles of emenda- 
 tion of the laws of England. The edict on appeals of battle, a 
 code of fifty-two articles, will probably be the first thing we 
 take. For the reign of William Rufus there are no documents, but 
 there are some historical details of tendency and inference in the 
 excerpts in the ' Select Charters,' to which I shall call your attention 
 as we find time allows. For the reign of Henry I. there are again 
 three documents in the ' Select Charters,' the coronation charter, 
 the charter of the city of London, and the writ for the holding of 
 the shiremoot ; but besides these there is a somewhat bulky com- 
 pilation, called the ' Leges Henrici primi,' which is only contained
 
 42 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 in the larger collections which I have mentioned, but which will 
 probably supply us with a good deal of matter that to me, at least, 
 seems interesting. Besides these, there are some canons and other 
 writs of Henry I., which may be brought in from other books. For 
 the reign of Stephen, all that we want may, I think, be found in the 
 ' Select Charters ; ' and for the reign of Henry II., so far as we shall 
 find it possible to enter on the legal history of it, all, I think, will 
 be found there. 
 
 There are some other introductory considerations which, although 
 perhaps needless, ought not to be taken for granted. We ought, 
 I think, to begin with getting some idea of what we mean by laws 
 and legislation, and of what material the Norman jurists had to 
 begin with and work upon. That is a wide subject for exploration, 
 and one on which I should not venture to set an unnecessary step ; 
 but as I shall have to speak of law, and of the civil law, the canon 
 law, the laws of the barbarians, and the capitularies of the Frank 
 emperors, it is necessary to define at first what I mean. The first 
 chapter of Justinian's Institutes might form the text of a whole 
 lecture, but I shall not do more than cull from it what I want to set 
 me right with you ; and it will not take a long time for us to see in 
 it how much applies and how much does not apply to a period and 
 a system so far removed in date and so much farther removed in 
 spirit and conformation as that of the Conquest is from Justinian 
 and Tribonian. 
 
 The favourite definition of law in the middle ages was one derived 
 from a saying of Aristotle, which was not intended for a definition, 
 
 6 oe vo/xos dvayKacrTiKrjv e^ct ovvafxiv, Aoyos wv airu TU'os </>/30J'^ct€ojs kcli 
 
 vov, which was inverted in Latin into the form, ' lex coactiva habet 
 potentiam sermonis ab aliqua prudentia et intellectu.' The phrase 
 contains the material for a fair description. Of course you all have 
 many definitions of law at your fingers' ends, but this we may 
 regard as the combination of coercive force with the enunciation 
 of sound reason and practical wisdom, or the enunciation with 
 coercive force of the rules of reason and practical prudence. 
 Justinian's definition of lex as jus scriptum stands on a different 
 point, and involves further the inquiry of what is jus, an idea perhaps, 
 on the whole, too simple to admit of definition. What, however, 
 we have now to do is connected rather with Justinian than with 
 Aristotle. The Eoman jus may not have become lex until it was 
 written ; but the barbarian lex was in its very nature customary, 
 and comes thus under the subsidiary definition of the Institutes, 
 ' diuturni mores, consensu utentium comprobati, legem imitantur.' 
 All our ancient laws, whether written or unwritten, are of this 
 character ; they are the customs of the nations, preserved in the
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 43 
 
 memory of the judge, and, if recorded in writing, not claiming for 
 the record greater authority than resides in the viva vox of the com- 
 munity and its recognised judges. It is curious how long the idea 
 that the English law is primarily an unwritten and customary law 
 lasts. It lasts long after kings and parliaments had begun to pass 
 acts ; the barons in the reign of Edward II. insisted that England 
 was not governed by written law. This saying was perhaps an in- 
 tentional perversion of an old tradition, but it bears witness to the 
 fact of such tradition ; and another evidence of the reality of the 
 idea may be found in the ways in which our kings, when propounding 
 edicts, choose to give them names less imposing and conveying less 
 distinct sanctions than the name of law implies. They are establish- 
 ments, assizes, charters, constitutions, edicts, or statutes ; law under- 
 lies them, not as genus to species, but rather as spirit to matter ; they 
 contain law rather than constitute law, they are records or tentative 
 expressions, or some other function, but not the sovereign ideal of 
 Law. Well, on this matter I am perhaps fanciful, but, if I am under 
 a delusion, I have no doubt you see through it. Anyhow you will 
 see that lex being the expression of jus, and jus being the abstract 
 of cf)p6vr]<Ti? and i/oSs employed in social relations, our ancient 
 institutes, if they did not claim the full force of lex, were still 
 records of jus — the peculiar sort of jus that our ancestors cultivated 
 by custom, stored in memory, cited viva voce, and in so doing 
 imitated, as Justinian says, the laws of their betters. 
 
 That being so, we may again turn to Justinian and see how he 
 divides the oracles of the jus scriptum ; by so doing we shall see 
 how our own laws, as they develop historically, may be arranged 
 under his headings. He makes five sorts of laws— that is, of Roman 
 laws : plebiscita, senatus consulta, principis placita, magistratuum 
 edicta, and responsa prudentum. At first sight it would seem that 
 this division does not contain any heading under which the primitive 
 law of any state could come ; that none of the headings would in- 
 clude, for instance, the law of the Twelve Tables, which was, I 
 suppose, a record of the previously existing customary law of Rome, 
 the primary, fundamental, prehistoric law without the presumption 
 of which we cannot expect society to have existed. I do not think 
 that this matters much, for the author of the Institutes obviously is 
 not analysing all written law, but simply the laws that he had before 
 him codified or edited in the Pandects, the principles of which he 
 was going to enunciate in the Institutes, and he probably considered 
 that under the jus naturale, jus gentium, and jus civile he had 
 accounted for all that it was necessary to account for. Still by a 
 sort of analogy the description may be made sufficient. 
 
 The plebiscita of the Romans were the enactments which were
 
 44 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 made by the plebs, on the proposition of a plebeian magistrate. 
 These decrees by the effect of the Lex Valeria and the Lex Hortensia 
 were made equal to leges, and bound the patricians as well as the 
 plebeians. What processes they went through before they acquired 
 this force, whether they required the confirmation of the senate or of 
 the other sorts of comitia, is beyond my purpose to inquire now ; 
 but it is clear that in their origin they were resolutions of the plebs 
 or commons as we should call it, modifying or enforcing more 
 ancient customary institutions. They were the sort of law that 
 begins from below and rises into the rank of statute ; that is, they 
 were analogous to the customary, innate, inherent laws that proceed 
 from the nation and not from the king. In mediaeval law Latin, the 
 word plebiscitum means a by-law, and a by-law means the custom 
 of a manor or township — the word by being equivalent to the term 
 villata, and having in the north English and Scottish townships an 
 equivalent, bur ; not akin to the same syllable in our word borough, 
 but derived from a root akin to that in the word boor, or cultivator. 
 The bylawmen or plebiscitarii of manorial law were those charged 
 with the enforcement of the customary regulations of the courts ; 
 the remnant and survival of a great system of popular judicature 
 which has become now so attenuated as to be scarcely visible to the 
 eye of anyone who has no interest in the local profits. Thus inter- 
 preted the plebiscitum would represent customary or popular laws. 
 
 The second heading, senatus consultum — quod senatus jubet atque 
 constituit — would represent formal recensions or enactments by 
 superior but still not royal or personal supremacy ; such as were the 
 canons of ecclesiastical councils and the doms of the Anglo-Saxon 
 witenagemots ; in which the king legislated with the advice and 
 assent of his principes, whether bishops or ealdormen or thanes, and 
 which after promulgation in the county courts were incorporated in 
 the treasury of the customary law. 
 
 The third class of laws — principis placita — we may make 
 analogous to the charters of the Norman kings — analogous, not 
 identical — emendations as they are called by the Conqueror and 
 Henry I. of the laws of Edward the Confessor — expressed, however, 
 not in enacting words strictly so called, but rather as favours 
 granted to their subjects. These laws rest on a basis very distinct 
 from that of either of the earlier forms. This is worth your 
 attention. The principis placita of Justinian were the laws which 
 the Koman emperor made by virtue of that devolution of legislative 
 authority which, as a part of imperium, the Roman people conferred 
 by the lex regia. This was the basis of legislative authority in the 
 hands of modern kings. The king who by hook or by crook 
 managed to possess himself of it was an imperator in his own
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 45 
 
 domains. But the kings of the Germanic races, much as they liked 
 to avail themselves of their imperiality, were shy of enunciating it 
 absolutely ; even William and Henry L, therefore, exercise the power 
 of legislating ' with advice and consent of their court.' You may, 
 I think, say that this is a fanciful parallel. We shall see as we 
 proceed how far it holds good ; of course there may be intermediate 
 stages, documents in which transition is obvious, but compare the 
 documents issued by Henry II. with counsel and consent, with those 
 which Alfred, Ethelred, and Canute issued, and you will see at once 
 what is presumed to be the source of authority. The laws of the 
 Anglo-Saxons, like those of constitutional England, are those quas 
 vulgus elegerit ; the charters of Henry I. are condescensions of a 
 royal inexhaustibility of authority, however alike may be the words 
 in which the concession is clothed. 
 
 The magistratuum edicta of the Institutes, the jus honorarium of 
 the elder law, are the rules of justice promulgated by the executive 
 officers of the law. The corresponding enactment in English law 
 to these is the assizes of the early Plantagenet sovereigns, especially 
 Henry II., rules issued for the administration of justice, which in 
 their form perhaps claim to be little more than rules of procedure, 
 but in their substance are material alterations, amendments, or 
 developments or adaptations of the law that is presumed to underlie 
 them. The king, such as Henry II., issues his praetorian edict as 
 the supreme praetor or enforcer of justice, not as the emperor or 
 fountain of legislation. As we may see some day, jurisdiction in 
 the hands of a judge is a very elastic thing, and it is a maxim of 
 the faculty 'boni judicis est ampliare suam jurisdictionem.' No 
 doubt he is so convinced of the divinity and beneficence of his own 
 function that he is warranted in applying his powers even in regions 
 to which they were not originally intended to apply. The assizes 
 of Henry II., and, as we shall see, one of the legal acts of the 
 Conqueror, under the form of a rule of procedure, introduced radical 
 changes. The whole of the mediaeval and modern jury system grew 
 out of assizes, and indeed I am not quite sure whether they may not 
 claim a large share in the paternity or maternity of the mediaeval 
 common law which certainly was the offspring of some sort of 
 union between the ancient popular law and the royal authority in 
 executive justice. 
 
 The last head of Justinian's classification is the responsa 
 prudentum ; that is, not the scientific elucidation of legal points by 
 self-appointed jurists, but the replies by the authorised judges of 
 the state to questions placed before them officially. That at least is 
 the definition which the author of the Institutes gives ; and if we 
 apply it in its simplicity to our own law books, then our responsa
 
 46 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 prudentum would be the year books or registers of judicial sentence 
 in the high courts of justice of England. But we may enlarge it 
 further and comprehend in it the writings of our literary or scientific 
 jurists, most of whom were either at the head of the legal adminis- 
 tration or were commissioned by the king to write on the subject. 
 Glanville's work on the laws may be put in this class, if it is thus 
 widened ; if not, it must fall into the class of collections of formulae. 
 Bracton and Britten and Fleta also may either be counted among 
 the prudentes, or be supposed to have worked on the model of the 
 Institutes themselves. Coke himself in his Institutes comprised 
 very much of a code as well as Institutes, and in his reports gave the 
 world the responsa prudentum of his own time. So long as the 
 law was in the mouth of the judge, the responsa prudentum once 
 admitted as precedent were ipso facto law. These were collected by 
 Justinian in the Pandects — the other four classes form the collec- 
 tion called the Code, from which and its sister Code of Theodosius 
 all bodies of collective enactments have since been called codes. 
 Thus understood, the name belongs to some of the early Anglo- 
 Saxon collections, and in a mixed sense to the fifty-two articles of 
 the Conqueror's laws which will be the subject of our next lecture. 
 
 Our object in this course is to treat the subject-matter histori- 
 cally — the laws and legislation of the Norman kings, with an 
 investigation of where they came from and what becomes of them. 
 This involves some recurrence to earlier history and earlier prece- 
 dents. Not to follow the example of the Oxford tutor who, under- 
 taking to lecture on the French Revolution, had at the end of the 
 first term got only so far as the building of the pyramids, still we 
 must be prepared to run back into considerable antiquity. And 
 especially with this first document, on which I proposed to begin 
 our course to-day — the fifty-two articles of the code or record of 
 laws purporting to be granted or confirmed by William the Con- 
 queror. The text of these fifty-two articles rests upon authority 
 which is by no means trustworthy ; it is found in two forms, two 
 languages, an early Norman French form and an early Latin form, 
 but not in manuscripts whose antiquity at all approaches the date of 
 the Conquest. Unfortunately, one of the forms in which it is best 
 known to the world is that in which it is preserved in the so-called 
 Ingulf, the fabricated history of the Abbey of Crowland : a work 
 which, pretending to be of the eleventh or early twelfth century, is 
 certainly of the fourteenth century at the earliest, and which is so 
 palpable an imposture that it infects with doubts even the more 
 authentic documents that are embedded in it ; but happily the text 
 does not rest on Ingulf alone, it is found also in what is called the 
 Holkham MS., an ancient collection of the thirteenth century which
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 47 
 
 once belonged to Sir Edward Coke, and which anyhow is a century 
 older than the Ingulfine version. The thirteenth century, it is true, 
 is a good way off the eleventh, but as the matter of the text contains 
 nothing that might not be William's, and as it is difficult to say 
 what good it would do to anybody to forge such a document, we 
 accept it as prima facie valid. It does not follow, however, that 
 by accepting it as prima facie valid, we accept its present form as 
 genuine. It is very improbable that the Conqueror would legislate 
 in Norman French for the English people. The use of Norman 
 French for English legal documents is not common until two cen- 
 turies after the Conquest, i.e. until about the date at which the 
 earliest extant manuscript of these laws was written ; and the earliest 
 French document in our records is of the time of Archbishop 
 Langton, a century and a half after the Conquest. I am inclined, 
 therefore, to think that the French version is a translation from an 
 earlier form made for the use of the lawyers of the latter part of 
 Henry III.'s reign or of that of Edward I. What, then, about the 
 Latin form, the manuscripts of which are of nearly the same date ? 
 Dr. Schmid is inclined to trace in the Latin form as well as in the 
 French vestiges of translation ; and, indeed, if we accept the articles 
 as they stand as a direct expression of the Conqueror's will or 
 legislative confirmation, we must suppose that they would be a 
 translation from some lost Anglo-Saxon document. In default of 
 that lost document, we will suppose them to be a collection, made 
 by some Latin-writing collector or historian, of the laws of the elder 
 kings which William was said to have confirmed, and which, as we 
 shall see, he did confirm, but whether in detail or not it is hard to 
 say. 
 
 You see what my conclusion is, that, although there is nothing 
 in the substance of these laws that may not have come from under 
 the Conqueror's hand, there is much in the form of the text and in the 
 character of the sources that have transmitted them that prevents 
 us from accepting them as unquestionably authoritative. 
 
 Let us now turn to the circumstances under which we may 
 suppose the articles (if authentic) to have been formulated. William 
 the Conqueror maintained that he claimed the throne of England as 
 the heir of Edward the Confessor, and, as he received the crown in 
 the legal form from the Anglo-Saxon witan and clergy, we cannot 
 question the fact that he undertook to govern them by their national 
 law — by the law, in fact, which a little later, and possibly as 
 early as his coronation, was known as the laws of the good King 
 Edward. That at an early period of his reign he did undertake so 
 to govern, we know on the evidence of an irrefragable document, 
 which we shall take in an early lecture — the ten articles of emenda-
 
 48 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 tion, as I call them. But it is known that the good King Edward 
 
 was not a legislator ; he simply followed the laws that Canute before 
 
 him had accepted as the national customs, and that without making 
 
 any addition to them. What, then, would be the laws that the 
 
 Conqueror bound himself to follow ? The authorities of the time 
 
 fail us altogether ; but a hundred years later Hoveden, under the 
 
 eye of the great justice Glanville, recorded a story which may have 
 
 been traditional, and on which, a century later, other chroniclers 
 
 added a superstructure which is apparently imaginary. According 
 
 to Hoveden, the Conqueror, in the fourth year of his reign, caused 
 
 an assembly to be held, out of all the counties of the realm, of the 
 
 men instructed in the national laws, twelve from each county, who 
 
 put on record a body, or custumary, of 39 articles, which are 
 
 henceforth received as the laws of Edward the Confessor. Into 
 
 these articles I do not propose to examine, because they are really 
 
 known to us only as edited 120 years after the death of Edward the 
 
 Confessor, because they do not pretend to any higher authority than 
 
 that which, on their own showing, they had under the Conqueror's 
 
 manipulation. It appears from two of these, however, that there 
 
 had been in William's mind a question whether he should conform 
 
 to the English, the Danish, or the Anglo-Saxon laws, and that he 
 
 himself preferred the Danish, but was prevailed upon by the prayers 
 
 of the compatriotcs whom he had brought together to confirm the 
 
 laws of the Anglo-Saxons, which they then put on record as the 
 
 laws of Edward and his grandfather, King Edgar the Peaceable. 
 
 Now, if we attempt to rationalise upon this story, what do we 
 come to ? William has promised to observe the national laws ? 
 What are the national laws? The most recent edition of them 
 that could be laid before him was the law of Canute, the Danish or 
 Norse law, as it would be called, although really little more than a 
 recension of the laws of Ethelred and his predecessors. Suppose, 
 then, the king to have said, ' Shall I confirm the laws of Canute ? ' 
 We may imagine some dissent ; not Canute's laws, but Edward's. 
 But where are Edward's ? Only in the loving memory of the 
 compatriotce. Let them be recorded, and let the king confirm in 
 them what he will. This I offer you only as a rationalisation of 
 the fable or tradition preserved in Hoveden. 
 
 But what have the 39 articles of the Edwardian tradition to 
 do with the 52 articles of William the Conqueror ? We must 
 not be impartial ; but we have not yet got back to the pyramids of 
 Egypt. It is worth while pointing out that traditions like this 
 are not uncommon prefaces to the recensions of early laws. As I 
 have already said, the national laws existed really in the memories 
 and mouths of the people ; and the written codes are simply records
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 49 
 
 of the unwritten customs, called forth and recorded on particular 
 emergencies : compatriota do not like emergencies, and it is natural 
 enough to find these records, which circumstances necessitated, 
 prefaced by fabulous accounts of the legislation in its origin. Thus 
 the most ancient of all the codes of the Germanic nations, the law 
 of the Salian Franks, is said in its preface to be the result of the 
 deliberations of four elected rulers, Wisogast, Bodogast, Salogast, 
 and Windogast, who lived at Bodoheim, Saloheim, and Windoheim, 
 who assembled in three malli and issued the laws, which Clovis 
 afterwards confirmed. Whether these names are imaginary or have 
 local belongings, we need hardly inquire ; all sorts of interpretations 
 re given them, but the story is in parallel with ours. Similar 
 stories are connected with other codes. What historically underlies 
 them seems to be not that any historical data can be alleged for the 
 original legislation, but that for the formal recording some historical 
 crisis may be conjecturally alleged. There is no doubt that the 
 laws, for instance, of Alfred and Guthrum, and of Edward and 
 Guthrum, were an actual concordat and record of the common 
 terms on which the Danish and Anglo-Saxon neighbours were to 
 live side by side. Alfred's own code, containing also as appendix the 
 laws of his ancestor Ine, and possibly also the laws of Offa, was 
 probably the first act of his government restored after the conquest 
 of the Danes, and when he was really, if not by title, lord of the 
 whole of Southern England. Certainly Canute's code is the body 
 of laws to which he was compelled to swear when at Oxford he 
 received the adhesion of all England ; the codes were rewritten and 
 amended and perhaps altered, but they were (1) really the sum of 
 the customs of the nation preserved in memory, and (2) recorded on 
 the particular occasion, frequently an occasion of pacification or 
 change of dynasty. 
 
 Further on we shall see, as the idea of the king as chief and 
 original legislator becomes accepted, more frequent confirmations 
 exacted and vouchsafed, as if, in the newly developed theory of 
 autocracy, it was uncertain whether the new sovereign would be 
 content to act upon laws which it was in his power to set aside 
 until by a solemn promise he had confirmed them. As the king's 
 peace was thought to die with him and not to revive until his 
 successor was crowned, so the laws of the late king seem, if not to 
 expire, at least to require a new infusion of life in the coronation 
 oath or coronation charter of the incoming sovereign. This being 
 so, and being obliged to refer the laws so-called of Edward the 
 Confessor to a later date, we may provisionally and conjecturally 
 suppose the 52 articles of the Conqueror's code to be the redaction, 
 possibly by a lawyer of the court, possibly by an historian, of 
 
 E
 
 50 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 
 
 those parts of the earlier law on which the king notified himself 
 willing to act ; whether those were collected by the evidence of the 
 compatriot® or embodied in a royal manifesto which may possibly 
 have existed in Anglo-Saxon and is certainly now not forthcoming. 
 The reason why I have gone into so much detail on this is, of 
 course, the doubt which I have as to the authenticity of the present 
 form. 
 
 We will now turn to the matter of these laws. They begin thus : 
 ' These are the laws and customs which King William after the 
 conquest of the land granted to the whole people of the English to 
 hold ; the same to wit as those which Edward King, his cousin and 
 predecessor, observed.' This preamble shows, I think, that even if 
 the code is a later redaction of a document of William's, it is older 
 than the compilation known as Edward's laws, which are much 
 fuller, and to which it does not refer. Then follow the 52 clauses. 
 Of these 52, 7 clauses, I think, contain new matter not contained 
 in the laws of Canute, or easy to be found in the codes of the earlier 
 kings. We may then first dismiss the 45 re-enacted clauses, and 
 then say a word or two about the new ones. The whole collection 
 partakes of the character of the earlier codes in being extremely 
 confused. There is no attempt at arrangement such as scientific 
 law-books adopt of distinction of things, persons, and actions, or 
 between criminal and civil enactments ; nor is there the orderly 
 arrangement of offences and penalties that are found in some of the 
 earlier codes. The 1st article, however, as usual both now and 
 long after in codes, charters, and even parliamentary petitions, 
 provides for the peace and immunity of the church ; the 2nd for 
 the king's peace, with its variety of penalties in the West Saxon 
 law, the Dane law, and the Mercian law ; the 3rd is on the law 
 administered to persons who having been put under pledge have fled 
 from justice, with similar distinctions of the local customs in regard 
 to payment of penalties. Not to be too circumstantial, however, 
 clauses 5 and 6 relate to theft or detention of lost or stolen cattle ; 
 7 to 11 to homicide and mutilation, and 12 to adultery ; 18 is on false 
 judgment ; 14, 15, 16 on theft and sacrilege ; 17 on Peter pence 
 or Komescot ; 18, 19 rape and injury to the eyes ; 20 on reliefs or 
 heriots ; 21 on warranty ; 22 on murdrum ; 23, 24 on proceed- 
 ings in courts of justice ; 25 on frankpledge ; 26 on the king's 
 highways ; 27 on the thief caught with his plunder ; 28 on watch 
 and ward ; 29, 30, 31, 32 on the villein cultivators of the land ; 
 33 forbids a pregnant woman to be put to death ; 34 on intestacy ; 
 85, 36 on fornication and poisoning ; 37 on jactura in periculo 
 mortis ; 38 on allowing one co-partner to suffer by the failure of the 
 other in litigation ; 39 on judges ; 40, 41 on capital punishment
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 51 
 
 and selling into slavery ; 42 on refusal to submit to just judgment ; 
 43 forbids application to the king until hundred and shire moot 
 have failed ; 44 is on distraint ; 45 on buying before witnesses ; 
 46 on cases in which witnesses are to be required ; 47 on disobedience 
 to summons ; 48 on the reception of strangers ; 49 on allowing a 
 thief to escape ; 50 on refusing to join the hue and cry ; 51 on pur- 
 gation in the hundred court ; and 52 on the lord's duty to have all 
 his servants in frankpledge. 
 
 You will observe, then, with reference to these : (1) that the 
 provincial distinction of Dane law, West Saxon, and Mercian law 
 still subsists in its fullness, with variations of penalties, and of the 
 value of men's lives or weregeld. (2) That the graduated system 
 of payments for various injuries, the botes or compensations for 
 mutilations, &c, still subsist ; such injuries are not so much 
 breaches of the peace as wrongs compensable between individuals. 
 (3) That in the case of intestates no provision is yet made for the 
 ecclesiastical jurisdiction to determine the administration of the 
 goods ; they are to be divided by the children equally. (4) That 
 the payment of Peter pence to Rome, which in Wessex was tradi- 
 tionally ascribed to Ine, in Mercia was historically referred to Offa, 
 in united South England was confirmed by Ethelwulf, and newly 
 arranged and settled by Canute, was recognised as a permanent 
 institution, as indeed it remained until the reign of Henry VIII. 
 (5) That ancient customs, the usages of the hundred court and 
 shire court, of hue and cry, of compurgation, and compurgatory 
 oaths [of primitive watch and ward] ; the prohibition against the 
 sale of Christians into captivity, which had been forbidden by 
 Canute, but was still alleged to be practised occasionally ; the 
 restraint of appeal to the king until justice has failed in the 
 inferior courts, the requiring witnesses for sales in market, and the 
 requisition of frankpledge or free pledge in a form to which we 
 shall have to recur by-and-by, are all re-enacted, confirmed, or 
 recorded as valid in the words of the more ancient laws. I may 
 have something more to say in a general way about these ; but we 
 will now turn to the enactments which are not discoverable in the 
 older codes. 
 
 The first is No. 4, concerning a thief taken without hue and 
 cry : it seems to refer to the concealment, or not bringing before 
 the courts, of a person known to be guilty of theft, but not captured 
 by the hue and cry. In matter it differs little from No. 49, which 
 deals with the case in which the thief is allowed to escape from 
 arrest, and the material points in it are common enough, although 
 the wording is peculiar ; it contains two words which are new to 
 the English law : the word divise, for a court day, and the word 
 
 E 2
 
 52 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 justice for the presiding magistrate ; in the Latin, diviscz and 
 justitiarius. These words come into regular forms in the reign of 
 Henry I. : of the word justice there is no question ; of the meaning 
 of divisce the most probable explanation is that it was the court 
 held on the boundaries of the estate or district to which the suit 
 belonged. Of course, in intertribal disputes we can understand 
 that a neutral territory was the fit place for decision ; it is less 
 clear in the sense of an ordinary court of justice ; hence another 
 meaning has been sought for it, and it is explained to mean a 
 device, that is a solution or decision of a knotty question — an arbi- 
 tration, in fact. I think myself that it merely means cross-roads, 
 or the point at which several territorial divisions centre, and which 
 would be, as for meetings of foxhounds, so also for hundredmoots 
 and the like, the fittest place. The use of the words, however, is 
 chiefly important here as indicating a possible anachronism, that 
 would be fatal to the authenticity of the text if it were not capable 
 of explanation. But its importance increases when we come to the 
 next article of novelty, No. 22 ; if anyone kills a Frenchman, and 
 the men of the neighbourhood do not within a week take the slayer 
 and bring him before the justices (a la justise) to show why he did 
 it, they, that is the men of the hundred, are to pay for murdrum 
 46 marks. Here you see the neglect to help the carrying into 
 effect of the law is made punishable. But this law has a much 
 more important bearing. For in the first place it is distinctly a 
 new law ; the Frenchman murdered and the concealment of the 
 murderer are new phenomena. It is possible that Canute may 
 have enacted a similar law to protect the Danes ; and indeed, in 
 the laws of Edward the Confessor, the composition of which I have 
 just described, Nos. 14 and 15, such a law is ascribed to Canute. 
 The extant laws, however, of that king contain no such provision, 
 and as in the short and unquestionably genuine record of ten 
 articles which we shall take in a future lecture, this enactment 
 occurs as one of the emendations of the English law introduced by 
 the Conqueror, I am inclined to believe that it really was an innova- 
 tion, and that in it we have the germ of that collective responsi- 
 bility of the hundred about which there have been so many disputes 
 and on which we have a large controversial literature. 
 
 The whole subject of the frith-borh and system of surety is full 
 of difficulties, and I think it will be better if we examine it, as far as 
 can be done in a lecture like this, when we come to the ten articles ; 
 I may just say now that this is, of course, the regulation on which 
 the doctrine of presentment of Englishry depends, the usage which 
 directed that if the slain man could not be proved to be a native 
 Englishman, the hundred in which the body was found was re-
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 53 
 
 sponsible for the murder fine : he was, on the fact of being murdered, 
 supposed to be a Frenchman : the burden of the proof lay on the 
 hundred. You will find the current account of the regulation in 
 the ' Dialogus de Scaccario,' lib. i. c. 10 ; we may say more about it 
 when we come to it again. Anyhow, we may set this down as a 
 piece of new legislation. Art. 23 is new : — if anyone wishes to 
 covenant regarding land tenure with his lord, he shall do so by his 
 peers, whom he shall call to witness, for he cannot do it by strangers. 
 I suppose there need be no question that this enactment belongs to 
 the same class as those of the Francman emperor Conrad the Salic, 
 especially in the passage which I have cited from the Libri Feudorum 
 in the ' Const. Hist.' i. 604, to which I shall have to call your attention 
 again : no knight, miles, greater or smaller, shall lose his benefice 
 except according to the custom of his ancestors and the judgment 
 of his peers. So also the Emperor Lothar in the century following 
 this, and the laws of Henry I. also. Of the fact of judgment by 
 peers — that is, the equals or neighbours of the litigant — there can 
 be, I think, no doubt that it was of the very essence of Anglo-Saxon 
 and Teutonic usage ; but this is an early instance of the use of the 
 form per pares, and may be regarded as anachronistic, although only 
 by a very few years. No. 24 is also new. In every court, save in 
 the king's presence, if it is charged on anyone that he has said in 
 plea something that he says he has not said, unless he can prove by 
 trustworthy witness of eye and ear that he has not said it, his first 
 statement must hold good. There is something in this that accords 
 with the regulation 13 of the assize of Clarendon, and with the 
 law on courts of record as explained by Glanville in the ninth 
 chapter of Book VIII., where it is stated that except the court of the 
 king, no court has record generally, for in other courts if a man has 
 said anything and repented of it, he may against the whole court 
 deny that he has said it, on the assertion of two other witnesses and 
 his own oath ; but the practice in Glanville's own time was changing, 
 and in some cases minor courts had record, by assize of the realm 
 made thereon. The assize of Clarendon, if that be the assize 
 referred to, makes the law more stringent, and the assize of 
 Northampton makes it more stringent still, article 3. Article 28, 
 providing for watch and ward, streetward as it is called, is in this 
 form new, and so new that one feels rather inclined to question its 
 authenticity : four men of every hide in the hundred are to be found 
 to act as streetwards, from Michaelmas to Martinmas, the chief of 
 the guards to have thirty hides quit of tax for his labour. This is 
 very puzzling, for why the streetward should be limited to the weeks 
 between September 29 and November 11 it is difficult to imagine ; 
 and it seems better to give up the passage as corrupt than to waste
 
 54 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 time upon it. That there was such an office as streetward, custos 
 viarum, surveyor of highways, person responsible for the disposal 
 of waifs and strays, we know from other sources ; but unless the 
 particular provision has something to do with watching the roads 
 after or during the later harvest, or providing for the clearing of 
 them when the fences were thrown down and the common lands 
 opened for the cattle, I give it up. 
 
 We go on to article 31. If the lords of the lands cannot procure 
 fit and sufficient cultivators to cultivate their lands, the justices 
 shall do it. This, again, is a very curious provision, to which, so 
 far as I know, we have nothing analogous in earlier or later law ; and 
 I can find no commentator who has touched it. It is an inviting 
 text for a long speculation, and might be used by the agitators of 
 the present day, if they knew of it, with a good deal of the courage 
 that arises from the certainty of not being contradicted. The French 
 of this law is scarcely concordant with the Latin : ' Si les seignurages 
 ne facent altri gainurs venir a lour tere la justice le facet ; ' if the 
 lordships do not make other cultivators come to their lands the 
 justice may do so. Does it mean that the crown, or the law, or 
 the national authority still retained such hold on the land that rather 
 than let it fall out of cultivation, the magistrate was to enter on it 
 and to compel the lords to have it cultivated ; or does it mean that 
 land was to be so free that if the lord refused to admit a strange 
 tenant to unoccupied ground the justices might compel him ? Or 
 does it mean nothing at all, or something quite different that the 
 insertion of a new word or discovery of a new text might explain ? 
 We know from the statute of Merton that the rights of the lord to 
 inclose were limited by the requirements of his tenants for common 
 land ; is it possible that there is some restriction here on the right 
 of the lord to inclose hunting grounds as William inclosed the New 
 Forest ? I cannot decide. 
 
 No. 36 is new. If anyone kills anotber by poison, he shall either 
 be put to death or perpetually exiled. Happily this is new — 
 poisoning was not an English crime, and in the legend of Queen 
 Eadburga, who poisoned her husband Brihtric, is handed down 
 traditionally for detestation. Did the Normans introduce poisoning ? 
 Certainly they introduced the treatment of it as a legal offence. 
 Some of our pessimist friends will perhaps tell us that among the 
 Anglo-Saxons it was no crime; or others that, like parricide in the 
 old Greek story, it was so unheard-of an offence that the law could 
 prescribe no punishment for it. Here it stands as the subject of a 
 new law. We know from Ordericus Vitalis that poisoning was a 
 charge alleged against the Conqueror by his enemies ; putting two 
 and two together, we conclude that it was a crime on the increase,
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 55 
 
 more commonly imputed, more clearly requiring preventive and 
 punitive treatment. 
 
 The next two articles which I shall mention owe their interest 
 to the fact that they relate to matters treated of in the Eoman law 
 but as yet new to English law : art. 37, de jactura metu mortis 
 facta ; if a shipmaster to save his ship throws into the sea lading 
 that belongs to another, he shall purge himself by oath of any 
 other motive than the fear of death, and the salvage shall be 
 divided among the other owners according to their respective shares 
 in the original lading. Now this regulation throws us back on the 
 ancient lex Ehodia de jactu, Digest 14. 2 (where the law is ' ut si 
 levandae navis gratia jactus mercium factus est, omnium contribu- 
 tione sarciatur quod pro omnibus datum est ') ; there is not much 
 correspondence in the words, and the principle is scarcely the same. 
 The English law divides the salvage, the lex Ehodia divides the 
 damage but leaves the salvage to its owners. Now how can this 
 bit of ancient legislation have got into William's code ? The Digest, 
 you are aware, was very little indeed known in the "West until forty 
 years after this ; the legislation of the Theodosian Code, which was 
 to some extent known in France, leaves the decision of all such 
 matters in the hands of the judges, but does not, so far as I can 
 find, prescribe the same rule (lib. xiii. pt. 9). It is an older law 
 far than the Theodosian, and occurs among the sententia of Paulus 
 the legist, who lived soon after Adrian. In all these matters you 
 will find a great deal of illustration in each of the four volumes 
 of Twiss's Black-book of the Admiralty. Of the question bow it 
 got here I can only say that it appears in one shape or another in 
 all the legal systems of the maritime nations which Dr. Twiss has 
 collected in various parts of his work, and may very well be in- 
 digenous. The relation to the law of the Pandects is not fatal to 
 its genuineness here, but I question whether any more ancient 
 regulation than this of William can be found in black and white in 
 any of the Western codes. The laws of Oleron, the assizes of Jeru- 
 salem, and the French sea laws are all later in date, and this Act, 
 if it be genuine, may be regarded as our first Act of admiralty law. 
 
 The question which arises on art. 39 is of a kindred character. 
 ' If two or more divide an inheritance, and one without the other 
 or others, being called to law, out of folly or other cause loses his 
 suit, the partners ought not to undergo loss therefrom, because 
 res inter alios judicata does not prejudice, especially if they were 
 not present.' This is new and has a certain relation to Eoman law, 
 i.e. to book 8 of the Code, c. 45, and 3 Code 86, 1. 8, and indeed 
 must have been suggested by a state of things in which some 
 shadow of the Eoman law was operative as it was in the South of
 
 56 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 
 
 France, and in some respects in the customary law of the North. 
 I can only guess that it crept in with the other from some early 
 law book. Certainly it does not imply any acquaintance with the 
 text of the Code, but with the principle of the Eoman law, prae- 
 judicari non debet alii per alium, it does seem to agree more per- 
 fectly than the text of the laws to which at first sight it might 
 be referred. 
 
 The other points of interest in this Code of 52 articles I shall 
 take in an examination of the 10 short articles of emendation, which 
 we will examine in the next lecture. I will only add now that of 
 all the documents which I propose to investigate in this course, 
 this is the only one about the authenticity and purity of which 
 there can be any question ; many of the details that I have noticed 
 lose all force and bearing when the authority of the document is 
 questioned, and I have been obliged to speak conjecturally and 
 tentatively where I would gladly have worked the matter more 
 deeply had I been sure of my ground. 
 
 WILLIAM I. 
 
 1. De pace ecclesise, 63. 
 
 2. De pace regia, 12-15. 
 
 3. De plegiatis fugientibus. 
 
 4. De latrone capto sine uhtesio. 
 
 5. De averiis quos prepositus hundredi restari fecerit. 
 
 6. De averio errante. 
 
 7. De homicidiis. 
 
 8. De were diversorum. 
 
 9. Quid fiat de were. 
 
 10. De vulnerante alium. 
 
 11. De membrorum mutilatione. 
 
 12. Si quis violat uxorem proximi, 50. 
 
 13. De judicio falso, 15. 
 
 14. De appellatis ex furto, 22. 
 
 15. Si appellatur quis de violatione ecclesiae vel camera, 63, 65. 
 
 16. De forisfacturis. 
 
 17. De denariis S. Petri, 1. 9. 
 
 18. De vi opprimentibus, 53. 
 
 19. De oculo eruto. 
 
 20. De releviis, 71. 
 
 21. De waranto producendo. 
 
 22. De murdre. 
 
 23. Si qui? contra dominum suum terram petat. 
 
 24. Si quis negat in curia se dixisse quod ei imponitur. 
 
 25. De francoplegio, 20. 
 26.. De tribus stratis regiis. 
 
 27. Si furtum cum fure reperitur. 
 
 28. De stretwarde. 
 
 29. De colonis terr®.
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 57 
 
 30. De nativis, 28. 
 
 31. De terra colenda. 
 
 32. Ne quis justum servitium domino subtrahat. 
 
 33. Ne foernina prtegnans judicium mortis subeat. 
 
 34. De sine testamento morientibus, 71. 
 
 35. Si pater filiam, etc. 
 
 36. De veneficio. 
 
 37. De jactura metu mortis facta, Digest 14. 2. 
 
 38. Ne quis ex judicio alterius prasjudicium patiatur, See Code 3. 36-8. 45. 
 
 39. De judiciis et judicibus, 2-2. 15. 
 
 40. Ne quis pro parvo delicto morti adjudicetur, 2. 
 
 41. Ne Christiani extra terram vel paganis vendantur, 3. 
 
 42. De hiis qui justum judicium repellant. 
 
 43. Ne quis regi conqueratur, 17. 
 
 44. Ne quis temere namium capiat, 19. 
 
 45. Ne quis sine testibus aliquid emat, 24. 
 
 46. Ne probatio fiat super testes, 24. 
 
 47. De rectato qui vocatus non comperit, 25, 26. 
 
 48. Ne quis hospitem, 28. 
 
 49. Ne quis furem, 29. 
 
 50. De non insequentibus, 29. 
 
 51. De culpato in hundredo, 30. 
 
 52. Ut dominus in francoplegio, c. 31. 
 
 The document on which I am going to lecture to-day is the 10 
 articles of amendment or emendation by which William the Con- 
 queror altered or added to the laws of Edward the Confessor, as the 
 ancient customs of the nation recorded and confirmed by Canute 
 had now come to be called. The Code which we have already 
 criticised was, as we concluded, a record, or translation of a record, of 
 a similar confirmation by the Conqueror ; but we saw reason, both 
 in the sources from which we derived the text and from the intru- 
 sion of some strange articles into the material texture of the record, 
 to recognise its authenticity only with some distinct reservations and 
 with some misgivings. The document which we take to-day will 
 lead me to recapitulate some similar misgivings. We have it in two 
 forms. One is that printed in the ' Select Charters,' wbich is not in 
 the form of a distinct legislative act, whether as a law, a charter, or 
 an assize ; but in the form rather of a memorandum, a sort of 
 historical appendix to a previously recognised code or historical 
 memoir. The other shape in which we have it is in the form of a 
 charter, in which form the matter of the 10 articles, together with 
 some additional articles to which we shall have to give detailed 
 attention, appears as a sort of letters patent or grant made by 
 William, king of the English and duke of the Normans, to all his 
 homines, French and English ; and in this form contains 17 articles ; 
 assuming moreover to be attested like a proper charter, ' Testibus &c.,'
 
 58 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 but the names not being given. This document, which in this shape 
 is headed 'Carta Regis Willelmi Conquaestoris de quibusdam statutis,' 
 is found in its oldest authority among the materials inserted in the 
 reign of Edward I. in the Eed-book of the Exchequer, that very 
 important treasury from which the ' Dialogus de Scaccario ' and several 
 other invaluable illustrations of constitutional history are derived. 
 The document is in fact the first of a series of additions made to the 
 Liber Ruber after folio 162, where the original hand, of about 1230, 
 ceases. I shall point out to you the features which, in my mind, 
 impress upon it a date of about sixty years later ; but I will here 
 anticipate so far as to say that I think it is a forgery, a fabrication 
 based on the earlier and genuine record of the 10 articles which we 
 have in manuscripts of the early years of the twelfth century, espe- 
 cially in the famous Textus Roffensis, the Codex Diplomaticus of the 
 ancient church of Rochester, of the authenticity of which there 
 cannot be a shadow of a doubt. 
 
 Before entering on the analysis I should like to follow up some 
 of the remarks which I have made on Ingulf, with an observation or 
 two on the nature of mediaeval historical forgeries which I think will 
 interest you ; for they are very numerous, and are not to be judged 
 exactly by the same rule by which you would gauge the impostures 
 of Chatterton or of Ireland in more recent times. Mediaeval forgeries 
 are of several kinds : there are forged Anglo-Saxon and Norman 
 charters, forged royal confirmations and papal bulls, forged and 
 interpolated civic documents, forged and fabricated histories like 
 that of Ingulf, forged writings of tendency like the Modus tenendi 
 parliamentum which is printed at the end of the ' Select Charters,' and 
 forged state documents such as those which were procured or con- 
 structed by the historian Harding in the fifteenth century to support 
 the claim of the English crown to the overlordship of Scotland. Of 
 the forged Anglo-Saxon charters this is the most probable account. 
 All the earliest gifts of land to churches or individuals were made by 
 what was later called livery of seisin before witnesses : if offered to 
 a church, by presenting a sod or something else, a horn or a cup, or 
 suchlike, on the altar ; and if bestowed on an individual, possibly, 
 as in later manorial proceedings, by delivery of a wand : there may 
 be some doubts as to the method of conveyance, but there can be no 
 doubt that it was formal and oral, and in very few cases by the com- 
 position of a written grant. But as the settlement of England under 
 the Anglo-Saxon dynasties gained firmness and permanence, and as 
 the nation increased in knowledge of letters, and conformed to 
 Catholic and continental civilisation, as the churches began to collect 
 their documents and examine the title deeds or titles by which they 
 held their lands, when the possession of a book or libellus became a
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 59 
 
 common if not universally required evidence of title, and it was 
 found that many estates were held without such title, a strong 
 temptation was put before men to construct ex post facto title deeds. 
 That I believe to be the secret of all the early monastic forgeries 
 they were attempts, not to get hold of estates which did not really 
 belong to the churches, but to substitute a written title for the imme- 
 morial prescriptive title that rested on oral witness and a succession 
 of traditions. 
 
 The importance of having a clear view on this head is so great 
 that I must dwell on it in more detail. The idea having been once 
 broached that an antedated title deed would be valid, the occasions 
 for the construction of such title deeds multiplied. The flood of 
 Danish invasion swept over the land, many whole tribes were extin- 
 guished, and many local sanctuaries were left desolate. But when 
 peace returned, as it did under Alfred and Edward, and when the 
 royal authority was re-established universally by Edgar and 
 Dunstan, when settled society in church and state revived, there 
 arose questions about property which were insoluble without written 
 evidence. The churches which were reinstated, reinhabited, and 
 restored looked about for their estates, and a great accumulation of 
 new charters was constructed to vindicate claims to lands which 
 were imperfectly identified : some monastic bodies that were 
 powerful enough to do it, recovered and held fast more than their 
 predecessors had lost, and got valid new charters ; some, I grieve to 
 say, unquestionably fabricated grants for themselves, copying the 
 genuine title deeds of their neighbours and inserting names and 
 boundaries to suit themselves. The moral guilt involved in this 
 proceeding is certainly considerable, but it is not complicated with 
 aggressive wrong doing. That no doubt was occasionally to be 
 found : men forged title deeds to get the property of others secured 
 to themselves ; as a rule these early forgeries were simple fabrica- 
 tions to secure by an additional sanction property that already 
 belonged to the fabricators. The great stock of fabricated charters 
 belong to the age of Edgar, the era, as it was supposed, of monastic 
 revival ; but many much later records are detected, and the founda- 
 tion charters of Westminster among them. 
 
 When, after a generation or two, these very questionable evidences 
 had gained repute for antiquity, the monastic houses began to look 
 out for an historian, and the historian in more or less perfect good 
 faith began to construct a history out of what was known to be the 
 true history of his house, and what inferences he could draw from 
 the evidences. Such was William of Malmesbury in his relation to 
 the history of his own abbey and that of Glastonbury, a writer of 
 perfect soundness and honesty, but obliged to work on material the
 
 60 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 authenticity of which he could scarcely help suspecting. As the 
 centuries passed on and the early history became in memory still 
 more obscured, the growing monasteries, like rising families at the 
 present day, grew more and more anxious about their pedigrees. 
 The process of fabrication, once begun, required ever new fabrications 
 to sustain the old ones, and this necessity produces such a wanton 
 forgery as that of the Ingulfine history of Crowland : a composition 
 partly based on forged charters, partly concocted to give a rational 
 and probable explanation of those forgeries, and partly the result 
 of simple wanton mischief. Ingulf is the greatest example of this 
 sort of wickedness, which is quite different from the half-honest, 
 half-dishonest conduct of the early cartularists ; but the pseudo- 
 Ingulf does not stand quite alone ; and there are in the early 
 chronicles of Peterborough and some other abbeys phenomena 
 scarcely less repulsive ; but let us not get back to the pyramids. 
 
 Another class of forgeries is of even more importance, the class 
 to which belong the forged decretals of the pseudo-Isidore, the 
 collection of fabricated bulls and privileges of the popes, which 
 appeared in the time of Charles the Bald, and, although always 
 suspected, exercised a fatal influence on the policy of the church of 
 Rome until the Reformation. The fabrication of new religious laws 
 was even more abhorrent to our ideas of justice than the forging of 
 title deeds ; and although I would not put the pseudo-Isidorian 
 decretals on the level of the Book of Mormon, for they, like the 
 fabricated title deeds, were probably meant originally to sustain 
 existing but unproven rights, still they sapped the moral sense of 
 legists and set a very bad example. It was found soon as easy to 
 forge papal privileges as to concoct grants of land ; and although, 
 whenever it was discovered, it leads to condign punishment, it was 
 not always discovered, and the fountains of history were, until 
 critical diplomatic power was set to work on them, to some extent 
 corrupted. There was a further and very ancient line of forgery, to 
 entitle a new work by the name of an old writer, and so produce a 
 set of apocryphal books, such as those which are collected in the 
 appendices to Augustine and Jerome ; or even without intentional 
 supposititious fathering, to publish recensions and expansions as the 
 work of original authors of note. Archbishop Theodore was a great 
 authority on penance, and composed a small tract on it. Two 
 centuries later a large and heavy compilation on the subject was 
 current under his name ; also the received works of Archbishop 
 Egbert of York and some of the other penitentialists have only a 
 small substratum of original matter. Now this form of fabrication 
 was easily applicable to books of law, the authority of which 
 depended in a great degree on the name of the legist. Many
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 61 
 
 capitularies were very early in circulation ascribed to Charles the 
 Great and Charles the Bald, the authenticity of which is more than 
 questionable, but which possibly contain a germ of authentic enact- 
 ment. Why men should have cared to forge such things is a 
 problem inscrutable, unless we suppose it to have been done in order 
 to establish some small right in the law courts, and to wrap up the 
 point to be gained in a cloud of obscure probabilities : to produce in 
 support of a false claim a charter or record that contains so much 
 that is probable and respectable that the little but all-important 
 point at issue shall not be seen to have been foisted in inten- 
 tionally. 
 
 This brings us to the last class of forgeries, which is that of 
 state documents ; the adapting a genuine document by garbling or 
 important apparently casual interpolation, to the obtaining of some 
 further point ; and this brings us to the fabrication of the documents 
 before us. I very much fear that the lawyers of Edward I.'s court 
 were not above the trick of introducing into older records little 
 expressions that helped the theories, political or otherwise, that pre- 
 vailed in their own days. In the copies of the laws of Edward the 
 Confessor, which we talked about in the last lecture, preserved 
 among the records of the city of London, there is a distinct inter 
 polation bearing on the right of the counties to elect their own 
 sheriffs, which, if it were necessary, would prove that particular 
 recension to have been written out at a time when the election of 
 sheriffs was a moot point between the crown and the counties ; and 
 in the document we are now to examine we shall find similar points. 
 
 As I have spent so much of our time on these fabrications, 
 I propose that we take the fabricated form of the 10 articles first, 
 and reserve the genuine form for consideration when we have 
 rejected the forged clauses. With the copy of the ' Select Charters ' 
 before you, you will easily follow the text, and recognise the inter- 
 polations in the supposititious document. The so-called charter 
 begins with the salutation ; it is in itself peculiar ; if you look at 
 the genuine charter on the division of the courts, p. 85 of the 
 ' Select Charters,' you will see that it begins with a salutation to 
 definite persons of a definite county and in the first person. The 
 genuine letter is to all my faithful ; the fabricated charter is to all 
 his homines. The form addressed to sui comes in so soon, certainly 
 under Henry I., that not much can be inferred from this, but more 
 from what follows ; there is no preamble, no motive clause, no such 
 order as is always apparent in letters patent, as know ye, or whereas, 
 but simply statuimus super omnia ; the king begins to speak in 
 the first person plural, statuimus, volumus, interdicimus, pro- 
 hibcmtis. Now, whatever may have been the usage in informal
 
 62 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 
 
 writing, in formal letters no king of England before Richard I. ever 
 writes in the first person plural ; from that date it is common. I 
 think that this sign is fatal to the supposition that this is a genuine 
 Act ; but you will tell me, Ah, but look at the form which you 
 assume to be genuine, the 10 articles printed in the ' Select 
 Charters ; ' there you have statuimus in the 1st article and inter- 
 dicimus in the 5th. That is true ; but if you look at the heading 
 of the document you will see that it purports not to be an edict 
 drawn up by the king himself, but an intimation of what was done 
 by him with his chief counsellors. Of the clauses that begin with 
 the plural form, we may very well suppose them to be either the 
 constitutions of a witenagemot or the redaction of a compiler, but 
 they cannot be regarded as the form of an authentic legislative Act. 
 The record of the 10 articles is simply a record of articles ; it is not 
 the imperative and formal precept by which the enactment is made. 
 We will now take the garbled and inserted articles of the charter 
 form ; just premising that while we are quite clear as to the 
 validity of the objections taken on the ground of the wording and 
 on some of the interpolated articles, as against the genuineness of the 
 form, it is not necessary to reject entirely all the matter that is not 
 found in the Textus Roffensis. But I will distinguish as we proceed. 
 The first clause stands thus in what for shortness I shall call the 
 genuine copy as distinct from the Exchequer Charter. In the first 
 place he would that above all things one God should be worshipped 
 through the whole of his kingdom, one faith of Christ be always 
 kept inviolate, peace and concord be preserved between English and 
 Normans. The Exchequer Charter reads : ' We ordain that, using 
 the same words, but adding to the English and Normans, French 
 and Britons of Wales and Cornwall, Picts and Scots of Albany, 
 likewise between the French and the islanders, provinces and 
 countries which belong to the crown and dignity ; defence and 
 observance and honour of our realm and among all our subjects 
 through the universal monarchy of the realm of Britain, be firmly 
 and inviolably observed, so that none injure another in anything 
 upon our full forfeiture.' This very extraordinary amplification, 
 the talk about the Scots and Picts of Albany, and the universal 
 monarchy of Britain, is not indeed impossible in the age of the 
 Conqueror, who certainly at what we must suppose to have been a 
 later period of his reign obtained from Malcolm Canmore the 
 acknowledgment of his feudal superiority over Scotland, and who 
 likewise, as his predecessors had done, kept the Welsh princes under 
 nominal subjection ; but the tone and language of this clause, the 
 distinction between French and Normans, Picts and Scots, and so
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 63 
 
 on, is out of all real harmony either with the history or the diplomacy 
 of the time. I can hardly doubt that the concoction of the article 
 belongs to the reign of Edward L, and possibly to a period as late 
 as the parliament of Lincoln in 1301, when that king drew up in 
 answer to the papal claims his statement of the rights of the 
 English crown over Scotland. Read thus, it is natural enough to 
 speak of the monarchy of the island, for Edward was really king 
 over all Britain, Balliol having incurred forfeiture, and Bruce 
 having not yet been crowned ; for ten years, 1296-1306, there was no 
 titular king of Scots ; Edward I. did not, so far as I am aware, 
 incorporate the title in his legal documents, but he was in his own 
 idea the king as well as the overlord of the escheated fief. If this 
 document had been in existence or known in 1292, I think it must 
 have been adduced in support of the historical claim. I do not for 
 a moment suspect Edward I. of forging it, but that it was done in 
 the interest of some political party among his ministers I have no 
 doubt. If you provisionally agree to this you will find that it 
 explains the use of the words Normans as well as French. I 
 believe that William in genuine documents always uses the form 
 Franci for his own followers ; but in the genuine articles of the 
 Textus Roffensis Normannos is used ; those genuine articles not 
 purporting to be a legal edict would not be confined to legal lan- 
 guage, but the use of Normanni in the genuine form of course 
 accounts for the use of it in the garbled form. But if that is 
 granted, who are the Franci who come afterwards ? Edward had 
 other French subjects, the Gascons and people of Ponthieu ; but 
 William's French subjects were all Normans, or Norman lords of 
 outlying dependencies. And who are the insulani ? In William's 
 reign the Channel islanders were a part of the Norman people, but 
 in Edward's the Norman people were lost, and the men of Jersey 
 and Guernsey were the only Normans left. The Picts and Scots of 
 Albany, that is a pedantic expression, very foreign to the reign of 
 the Conqueror, but not strange to the pen of an antiquary who had 
 been hunting through Bede and Geoffrey of Monmouth and 
 William of Malmesbury to find arguments for the monarchia. The 
 Picts of Galloway and the Scots of Dalnada and the Albans of 
 Central and Eastern Scotland had been forgotten by the time of 
 the Conqueror, who if he wanted to distinguish the various popula- 
 tions would have spoken of the Galwegians and Cumbrians and 
 Scots, possibly throwing in the Picts to make weight ; but between 
 his days and those of the Exchequer Charter, William of Malmes- 
 bury, Geoffrey of Monmouth, and Henry of Huntingdon had 
 written, and made the more ancient names familiar.
 
 64 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 I do not wish to dwell at an unnecessary length upon this point ; 
 but if any of you would like to pursue it farther, I may add that by 
 comparing the form of the laws of Edward the Confessor as given 
 by Hoveden with the form in which they appear in Lambarde's 
 Archaionomia and in the record books of the city of London, 
 printed in the N.R. Series, and put in their present form early in 
 the fourteenth century, you will have no doubt whatever as to the 
 spirit and possibly the hand that formulated this article. I leave 
 the authentic matter of this clause for future comment, and go on 
 to the next, which stands thus in the Textus Roffensis : ' We ordain 
 that every freeman affirm by covenant and oath, that within and 
 without England they will be faithful to King William, will preserve 
 his lands and honour in all fealty with him and before him to 
 defend them against all enemies.' This is a very important article, 
 but I notice now only the point that in the Exchequer Charter 
 the simple word Angliam is expanded into ' universum regnum 
 Angliae quod olim vocabatur regnum Britanniae,' Willelmo regi is 
 supplemented with the words domino suo, and to the word inimicos 
 is added et alienigenas. The universal monarchy of Britain is the 
 idea, of course, that we have stigmatised in the former clause ; the 
 words domino suo seem to substitute the doctrine of feudal obligation 
 for the one of simple allegiance expressed in regi ; but I do not 
 know that, except as a straw showing the way of the wind, that is of 
 any importance, and indeed the word domino is in some earlier 
 copies, but the alienigence, the aliens, the dreaded enemies of the 
 reigns of Henry III. and Edward II., were people who had no political 
 existence in the reign of the Conqueror, and may be regarded as an 
 amplification in this place quite proving by themselves a later date. 
 
 The 3rd article, except for the use of the plural number, and 
 the foisting in the universum regnum, is the same in both docu- 
 ments ; the 4th also, but this in the genuine form closes with the 
 note that it was granted in civitate claudia in the city of Gloucester, 
 which, with the change of London for Gloucester, appears as a note 
 to the 9th article of the Exchequer Charter. Articles 5, 6, 7, 8, 
 and 9 of the Exchequer Charter are not among the genuine articles. 
 Take them one by one. ' We will also and firmly enjoin and grant 
 that all free men of the whole monarchy of our realm aforesaid have 
 and hold their lands and possessions well and in peace, free from 
 all unjust exaction and from all tallage, so that nothing be exacted 
 or taken from them except their free service which they owe 
 and are bound to make to us of right, and as has been appointed 
 to them, and given them by us and granted by hereditary right for- 
 ever, by the common counsel of all our kingdom aforesaid.' Ah, 
 what a wonderful thing is this ! A charter that forbids tallage and
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 65 
 
 unjust exaction, and which in all the contests of the thirteenth 
 and fourteenth centuries was never once appealed to, that forbids 
 tallage long before the word tallage came into use for an English 
 tax, that alleges the commune consilium of the kingdom as a joint 
 authority with the king in establishing hereditary right. I take it 
 there can be no doubt that this clause belongs to the age in which 
 the so-called statute de tallagio non concedendo was framed, and in 
 which it had begun to be believed that as the king was the supreme 
 lord of the land, all land was mediately or immediately held by 
 statutory gift made by him at the Conquest. 
 
 Article 6. — ' "We order and firmly enjoin that all cities and 
 boroughs, castles, hundreds and wapentakes, of our whole kingdom 
 be watched and guarded every night all round, for evil doers and 
 enemies, as the sheriffs, aldermen, and reeves and others our bailiffs 
 and servants shall best provide by common counsel for the interest 
 of the kingdom.' Really and truly, all that ever was practicable in 
 this enactment was the watch and ward, in reference to which 
 I noted the difficulty about streetward in a former lecture, which 
 was provided for between Michaelmas and Martinmas by clause 28 
 in the French laws, but which was made a general and legal police 
 regulation only by the statute of Winchester in the year 1285. The 
 use of the word alderman for an inferior officer to the sheriff is itself 
 a proof of late fabrication, and the final clause, leaving these inferior 
 officers to determine how for the interest of the kingdom they 
 should arrange the discharge of their duties, is one that could not 
 have come from a hand experienced in the ordinary forms of 
 governmental administration. 
 
 The 7th is an unimportant point : that they have through 
 the whole kingdom most faithful and signed measures and most 
 faithful and signed weights as our good predecessors have ordained. 
 William I.'s good predecessors had not regulated weights and 
 measures ; they had accepted the customary weights and measures 
 of the several districts just as they and he accepted the variations of 
 fines and moneys in the Dane law, the West- Saxon law, and the 
 Mercian law. But Edward I.'s predecessors, every one of them since 
 Richard I., had been striving in vain to secure uniformity ; Magna 
 Carta had had a clause, but a feeble one ; Edward I. even fixed his 
 own arm as the standard of measure, at least so the story goes. 
 This is not an enactment of the Conqueror's age, and it is one 
 which is scarcely observed now ; after so long a series of laws as we 
 have on the subject, local weights and measures are not yet extinct 
 in many parts of the universal realm of England. 
 
 The 8th article is one on which a great deal of history would 
 hang if it were genuine. ' We ordain and firmly enjoin that all 
 
 F
 
 66 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 
 
 earls, barons, knights, and servientes, and all free men of our whole 
 realm aforesaid, have and hold themselves always well in arms and 
 horses as becomes and behoves them, and that they be always 
 prompt and well prepared to fulfil and perform for us their entire 
 service whenever the need shall arise, according to what they ought 
 to do to us for their fiefs and holdings of right and as we ordained 
 to them by the common counsel of our whole realm aforesaid, and 
 gave them and granted in fee by hereditary right. Let neither 
 precept be violated in any manner on our full forfeiture.' This last 
 threat is borrowed from another and genuine clause. 
 
 The 8th clause itself is a fairly well drawn exposition of the 
 feudal doctrine as it was held in the reign of Edward I., but not as 
 it was either formulated or executed under the Conqueror ; the 
 wording of the article is in the language of the writs of Edward I., 
 as may be easily seen ; and the reference to a parliamentary security 
 for the grant of the fiefs is redolent of the belief of the same period. 
 The idea that the Conqueror did formally grant or regrant the 
 lands of the country with some novel obligation of service, is older 
 than the reign of Edward I., and may be traced in the Dialogus de 
 Scaccario ; and it was very potent in the fifteenth century, when 
 Henry IV. was implored not to base his title on conquest lest it 
 should unsettle the ownership of land throughout the country ; but 
 there is no historical ground for believing that the Conqueror, how- 
 ever large and numerous the grants he made, or however novel the 
 terms may have been on which he granted them, ever by any general 
 enactment ordained a general hereditary tenure, or introduced any 
 change whatever into the national rules of succession. The clause 
 as it stands has, however, like that on the tallage, bearings far wider 
 than we can take in a lecture like this, which is mainly on textual 
 criticism ; and for those material bearings if we cannot take them 
 in another lecture, I must refer you to what I have said in the 
 Constitutional History on the relation of William's Acts, especi- 
 ally in the Great Council of Salisbury, to the true history of the 
 growth of feudalism. 
 
 The 9th clause runs as follows : ' We ordain and firmly 
 enjoin that all free men of the whole of our realm aforesaid be 
 sworn brethren, sworn to defend to the utmost of their power, and 
 to preserve with their might against our enemies, our monarchy 
 and our kingdom according to their power and means, and to 
 maintain the peace and dignity of our crown, and to do right judg- 
 ment and justice by all means after their power, without dole and 
 without delay.' This decree was established in the city of London. 
 It is a very pretty sentiment we say, and charmingly in concert with 
 the Edwardian view of the duty of the subject. England was to be
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 67 
 
 a sort of sworn guild, a fraternity of goodwill. This is not like the 
 language of the Conqueror, even in his best frame. Poor John in 
 1205, when he expected a French invasion, directed that his subjects 
 should form themselves into a communitas or guild for national 
 defence, and his grandson was quite sufficient of an idealist to con- 
 ceive the same idea in a higher and nobler form ; but neither the 
 guild nor the oath, nor the supposed solidarity of king and people 
 which is traceable in this article as it stands, would have been 
 intelligible in the age of the Conqueror. 
 
 The 10th clause of the Exchequer record is the 5th clause of the 
 genuine articles. The 11th is new, but not important as matter of 
 criticism ; it is against the continuance of markets except in cities 
 and walled towns, and contains a clause stating that castles, burghs, 
 and cities are founded for the defence of the people and of the realm. 
 I am not at all sure that this clause may not preserve some relic of 
 real legislation ; but if it does we may discuss it when we come to 
 consider the bearing of the genuine clauses. The 12th, 13th, 14th, 
 and part of the 15th article are genuine, and answer to articles 6, 
 7, 8, and 9 of the true record. The 15th is this : ' We forbid that any 
 shall sell a man out of his country.' To this the Exchequer record 
 adds : ' If any one wishes to make his servant free, let him deliver 
 him to the sheriff in full county court by the right hand ; and quit- 
 claim him from the yoke of slavery by manumission, and show him 
 free ways and gates ; and deliver to him free arms, that is to say 
 lance and sword ; then he is made a free man.' In connection with 
 this take the 16th article, which is likewise new : ' Also if slaves 
 remain without being claimed for a year and a day in our cities or 
 in burghs and walled towns, or in our castles, from that day let 
 them be made free, let them be free for ever from the yoke of their 
 slavery.' Here we have two plans laid down apparently by royal 
 edict to enable the serf to obtain his liberty. Of these, the second, 
 the emancipating power of the ' year and day's ' abiding in a free 
 town, is a well-known fact of the twelfth-century law ; and if it 
 stood alone would not prove an anachronism in this place. The 
 other, the form of manumission, is curious, and not improbably as 
 old as the Conqueror's time ; it is at all events among the Leges 
 Henrici I., No. 78, and there is a case in the History of Eamsey 
 where the bestower of an estate in the monastery manumits 30 
 men ' quemadmodum eum sors docuit, ut in quadrivio positi per- 
 gerent quocunque vellent.' This, then, whether a part of William's 
 legislation or not, is of pretty nearly the same date. 
 
 The last article is in substance the same in both codes, but with an 
 amplification in tbe Exchequer article which is doubtful. We may 
 
 f2
 
 68 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 consider them both together in the next lecture, which I shall give to 
 the historical bearing of the genuine clauses. 
 
 My objections to the Exchequer version are firstly formal, based 
 on the inconsistency of the language of the articles with the lan- 
 guage of the Conqueror's times ; and secondly material, based on 
 the anachronistic character of the legislation conveyed in them. 
 But it must not be forgotten that while the objections to the lan- 
 guage arise from the employment of forms that warrant the 
 Edwardian assumptions of a monarchy of the whole of Britain, 
 some of the material anachronisms relate to the antedating of Acts 
 which seem to limit the royal power as asserted by that great king ; 
 while others illustrate a feudal theory that all his contemporaries 
 would hold. But, on the other hand, the 10 articles which we 
 shall next examine can scarcely claim to be either the full text or an 
 exhaustive resume of the Conqueror's legislation ; little pieces of 
 despotic legislation may very well have escaped the eye even of the 
 compiler of the Textus ; the mere fact of these articles of the 
 Exchequer record not being in the Rochester record is not fatal to 
 them ; some of the minor ones may be real relics ; if there are any such 
 we may expect to meet with them again among the laws of Henry I. 
 
 I now proceed to take really at last in order the several clauses 
 of the record of 10 articles lying before you in the ' Select Charters.' 
 The first of these is one the importance of which cannot be over- 
 rated, and yet which requires little comment. It is the clause which 
 recognises the duty towards God as the first of all obligations and 
 as the basis of all duties towards men. In the majority of the 
 ancient English codes the first article is a religious regulation. The 
 laws of Ethelbert begin with recognising the rights of the church, 
 and those of Alfred by a recapitulation of most of the bases of 
 moral and religious law that he and his wise men wished to impress 
 on the minds of Englishmen. The direct pedigree, however, of this 
 article begins with the laws agreed upon by Edward the Elder and 
 Guthrum, the Danish king, when they made their great peace. 
 Possibly the form is one that Alfred and Guthrum had used, for it 
 is entitled with Alfred's name, and it was under his auspices that 
 the elder Guthrum received Christianity. The first article is, 
 ' Imprimis est ut unum Deum diligere velint et omni paganismo 
 renuntiare.' Similar words appear at the head of the laws recorded 
 by Ethelred II. in 1008, and in some of the other rescripts 
 issued during his reign by the witenagemot at seasons when, believ- 
 ing that the visitations of the Danes were a judgment of Divine 
 indignation upon them, they strove by recognitions of the authority 
 of the Almighty to set the duty of repentance and good life more 
 strongly before the people.
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 69 
 
 In the laws of Canute, whose father had been a pagan, and who 
 was himself, one might almost say, a neophyte, the words read 
 almost like a concordat with a Christian people. They appear at 
 the head of his laws ecclesiastical, the establishment or confirma- 
 tion which he makes of the joint working of spiritual and temporal 
 government. ' Imprimis est ut Deum et Dominum nostrum tota 
 mente diligamus et unam Christianitatis sanctas fidem Catholicam 
 orthodoxe teneamus.' It is due to Canute to say that the spirit 
 which runs through the whole of his laws is a really religious spirit, 
 quite as much so as that which appears in the legislation of the 
 earlier kings ; but there can be little doubt that there was great 
 significance in his thus putting at the head of his laws the deter- 
 mination to maintain the worship of the Christian's God. Many of 
 his followers were doubtless still pagans, and did not accept the law 
 which their master had accepted with his whole heart ; them he sent 
 back to Denmark when in the third or fourth year of his reign he 
 determined to accept the English laws and to rule England as a 
 national king. 
 
 In the laws of the Conqueror the words have perhaps a less 
 significant force. There was no paganism here, or indeed among 
 the Norman followers of William ; the words are not a renunciation 
 of heathenism or polytheism, nor expressive of a determination to 
 abolish false worship. They read rather as a general assertion of 
 Christian belief, a fit preliminary to a code intended to secure under 
 Divine as well as human sanctions good government, peace, justice, 
 and equity. The corresponding clause in the 52 articles which 
 we reviewed in a previous lecture is a direction to respect the 
 immunities of the church. In the present collocation this clause 
 probably was considered to have an equivalent force, but it does not 
 appear in the words. 
 
 The 1st clause of the 52 is analogous to corresponding 
 legislation in the laws of Edmund and Edgar ; here, as we have 
 seen, the very language is that of Canute, followed by a declaration 
 of the unity of the faith and the peace and security of English 
 and Normans under one sceptre. I do not want to make too much of 
 the wording of this article, but it is to me rather impressive as the 
 declaration of one who, with all his tyrannical and selfish instincts, 
 was desirous to set himself before the nation and the world outside 
 as a true national king. I believe that besides their relation to older 
 laws the words express the meaning and may even reproduce the 
 language of the promises made at the coronation, when the new 
 king undertook to observe three precepts — to keep the peace of the 
 church and people, to put down all iniquities and rapacities, and 
 ordain in all judgments equity and mercy.
 
 70 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 
 
 The 2nd clause prescribes a duty on the part of the nation 
 corresponding with the promise of good government made by the 
 king in the first clause ; just as at the coronation the royal promise 
 of good government is followed by the homages of the lords and 
 people, so here the declaration of religion and peace on the one side 
 is supplemented by the undertaking of fealty on the other. ' We 
 ordain that every freeman shall affirm by covenant and oath, that 
 within England and without they will be faithful to King William, 
 to conserve his lands and honour in all fealty with him, and before 
 him to defend him against his enemies.' This oath of fealty to the 
 king may be very ancient indeed ; it appears in the English laws in 
 the form of an oath first in the laws of Edmund, which you have in 
 ' Select Charters,' p. 67, in a form corresponding to the prescribed 
 oath of allegiance among the forms of oath, Schmid, p. 405. 
 This oath of William's, however, seems to be a little more than the 
 mere oath of allegiance, without amounting to the later oath of 
 fealty that was bound up with the ceremony of homage. It may be 
 a transitional form, or it may be not a form at all, but simply the 
 description of a form ; and that being so, I am not sure whether 
 we ought to say distinctly that the oath prescribed here is exactly 
 analogous to the oath taken by all landowners at Salisbury in 1086 
 (' Select Charters,' p. 82), by which, whosesoever men they were (and 
 whatsoever their tenure, for we must suppose that to be included in 
 the generalisation), they swore that they would be faithful to the 
 king against all other men. But there is no doubt that substantially 
 it is the same oath — the oath of faithful allegiance to the king 
 intended to supersede all minor obligations subsisting by virtue of 
 feudal relations between the vassal and his immediate lord. This is 
 not exactly the place, and it would moreover take us too far from 
 the present subject of study, to go in any detail into the difference 
 between the obligations of allegiance and homage and fealty, or to 
 trace how the one principle, that of allegiance, was, as regards the 
 nation, worked into all administrative action by the kings from the 
 Conquest to the reign of Edward I., while the other, that of homage 
 and fealty, service for land, and feudalism properly so called, was the 
 leading principle and most powerful instrument in the land of the 
 great lords of the Conquest and the almost independent earls of the 
 twelfth century as against the king. It would be a very good 
 thesis for an essay, but for anything like complete treatment would 
 require as large a book as indeed I have given to it in de- 
 voting the first volume of the Constitutional History mainly to its 
 illustration. 
 
 We will therefore go on now to the 3rd clause, which is one 
 the matter of which we touched upon in a preceding lecture.
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 71 
 
 ' I will that all the men whom I brought with me or who have come 
 after me be in my peace and quiet ; and if any of them has been 
 killed, his lord shall have the homicide within five days if he can, 
 but if not he shall begin to pay me 46 marks of silver as long as the 
 substance of that lord shall hold out, and when his substance fails 
 the whole hundred in which the murder has been done shall pay in 
 common what remains.' There are two or three points of interest 
 here : first, the contention that these Norman followers of the king 
 are in the king's peace ; the admission, that seems to be, that there 
 was other peace and protection besides the king's, that is in itself 
 a relic of an idea that was wellnigh obsolete that the peace of the 
 nation, the peace of the shire, the peace of the ealdorman and sheriff 
 were real protections, without the peace of the king. This article 
 places, however, the Norman followers of the Conqueror under a 
 special guarantee ; injuries committed on them were injuries to the 
 crown, and properly speaking their death or damage would have to 
 be accounted for by a fine not to the shire but to the king, for what- 
 ever was the doctrine of the king's peace that was the practical 
 result of the doctrine — if any man injures another, if an Englishman 
 injures another Englishman, it is a matter of ordinary procedure : the 
 wronged person may accept compensation, or the penalty may go to 
 the magistrate, the ealdorman, or whoever else has an interest in the 
 wite or penitential fine ; but in this case the account has to be made 
 with the king, it is his peace that is broken, and the fine for breach 
 of his peace is a royal perquisite, and the man lies at the king's 
 mercy ; going on, you will observe a difference between the wording 
 of this article and that of the corresponding article 22 of the French 
 articles, where the men of the venue or visnetum, that is of the 
 hundred, are made primarily and immediately responsible for pro- 
 ducing the homicide within a week ; here the onus for five days lies 
 upon the lord of the slain man, if he is not taken then he has to pay 
 the fine, if he cannot pay it the hundred must. It would seem from 
 this that the Anglo-Saxon doctrine that every man (not having land 
 of his own) must have a lord was in working at the time that this 
 article was put in its present shape, and that the fact of the man 
 being in the king's peace did not entirely dispense with the lord's 
 duty of protecting and avenging him. But I cannot say that the 
 clause is very clear, and this portion of it scarcely seems to have 
 been acted upon ; not only is the lord's duty not mentioned in the 
 French articles, but in the laws of Henry I., in which very minute 
 regulations are given about the murdrum, the hundred is the body 
 immediately responsible, and in the early pipe rolls, in which in- 
 stances of murder fines abound, there is no mention of the lord, 
 only of the hundred. Either then the lord here is the lord of a
 
 72 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 
 
 franchise, in which case he has hundredal jurisdiction and responsi- 
 bility, or, as I said, he is the lord of the murdered man and has an 
 intermediate duty of revenge and right of fine before the king's 
 mercy comes in. It does not much matter, as we know the actual 
 practice. If, then, the lord within five days or the hundred within 
 a week cannot produce the homicide, a fine is to be levied, which is 
 here 46 marks ; the fines actually recorded as murder fines in the 
 pipe rolls are of different amounts even in the same hundreds, 
 and we must conclude from that that as the matter was really one 
 of the king's miser icordia, where an arbitrary fine was leviable at 
 discretion, sometimes the amount was fixed at the discretion of the 
 sheriff, or the sums noted in the pipe rolls may have been properly 
 only instalments of the whole fine, or possibly a share may have 
 gone to the kindred of the slain man, or possibly the sum is the 
 residue paid by the hundred when the means of the person primarily 
 accountable had failed. 
 
 Observe next that there is in this article no provision for the 
 securing that this penalty shall be exacted only in the case in which 
 the slain man is a Frenchman or Norman ; but the wording is 
 directly addressed only to such a point, and the necessary proof 
 must be taken for granted. That is, the custom of ' presentment of 
 Englishry' must have come on at the same time as the murder 
 fine ; if the hundred could prove that the slain man was an English- 
 man then the fine could not be enacted. Now this ' presentment of 
 Englishry ' is, if not the one institution, at least the most specific 
 and definite legal institution by which the Conqueror showed his 
 mind of dealing with his Norman subjects in a way different from 
 his dealings with the native English : we may be sure that it was a 
 necessary regulation, ugly as the colour of it is. And as it really is 
 so important in this way, we will look at the later practice on it, as 
 it is found in the laws or custumal of Henry I., 13 § 2, 75 § 6, 
 91 § 1, 92 §§ 6, 9, 59 : the first passage merely records 46 marks as 
 the proper murder fine ; the second records the same fine, but allows 
 to the discoverer of the murder the wergild of the slain Frenchman 
 if he has no relations, but adds that if the discovered murderer can 
 prove the victim to be an Englishman he may go to the ordeal of 
 hot iron, or be otherwise punished by the customary common law. 
 The third regulation supplies that element of uncertainty as to the 
 fine which I have noted in the pipe rolls. It repeats the former 
 injunctions, but adds that the ealdorman of the hundred who has to 
 give pledge for the fine is to be dealt with discreetly, according to 
 the case ; it also seems to make the responsibility in the first 
 instance lie on the person on whose land the body is found, in which 
 case the dominus of the text before us may mean that. And a
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 73 
 
 further regulation looks still more that way : if the murder be found 
 in the open fields, the fine shall be paid not only ab eo cujus terra est, 
 but by the whole hundred ; si in divisis, that is on the crossways, 
 both sides, that is both hundreds, shall pay ; if on the king's high- 
 way, the lords of the adjacent lands. Thus the collective responsi- 
 bility of the hundred, as it is called, comes in only after the 
 alderman has failed to exact the fine from the parties more directly 
 liable, which seems fair enough. 
 
 There is, however, another rule (92 § 6) which defines murdrum 
 more clearly. ' Anciently the man was murdritus whose slayer was 
 unknown, wherever or however he was found slain ; but now, even 
 if the slayer is known, if he is not caught within seven days, it is a 
 case of murdrum ' (that is, for the exaction of the murder fine). 
 The rest of the law is very unintelligible, but it seems to mean that 
 this right of exacting the murder fine is to be relaxed only when the 
 murdered person can be proved to be English ; if he is not so proved 
 he is to be accounted French. Even if the murderer obtains the 
 pardon of life and limb from the king, the fine is still to be paid. 
 Then the procedure in the case is briefly sketched. ' If a murdrum 
 be found anywhere, let the hundred be called together with the 
 reeve and the neighbours, and whether it be recognised or not, let 
 it be kept seven days raised on a hurdle, with a wood fire burning 
 round it at night, and rewards are to be promised and given to the 
 helpers. If between the term the malefactor can be caught and 
 delivered to the justice let the hundred be quit ; if he is not and 
 there be no one who can prove him an Englishman on his father's 
 side, the law must take effect. It is held to be murdrum if an alien 
 be slain, and the slayer be unknown or not arrested before the day 
 fixed. If anyone accused deny the charge, let him purge himself 
 with a threefold purgation or judgment of 60 shillings. If the 
 hundred wants to prove that the man was not a Frenchman, it may 
 be done by oath of the twelve best men of the hundred. The person 
 who has been convicted or confessed is to be handed over to the 
 kinsfolk of the murdered man to be at their mercy. If he has no 
 relations the king is to exercise his right.' (That seems to be a relic 
 of antiquity or of the universal vendetta, it can scarcely be a piece 
 of law.) There are a few other regulations which are difficult in the 
 present state of the text to understand, and which do not much 
 illustrate, if they can be guessed at, the subject in hand. It is a very 
 curious question altogether, for the practice in its integrity can only 
 have prevailed for a few years, and yet the enactments or customs 
 that belong to it remain in force for nearly three centuries. 
 
 When the ' Dialogus de Scaccario' was written, about 1188, the 
 difference between English and Norman extraction was so far
 
 74 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 obliterated that except where it was clear that the slain man was a 
 villein he was held to be a Frenchman and the fine was exacted. 
 The 'presentment of Englishry ' was abolished by the Act 14 
 Edward III. c. 4, which, in consequence of the tyrannical amerce- 
 ments laid on the hundred by over-severe justices, abolishes the 
 whole thing with all its circumstances and appurtenances, and blots 
 out for ever thus much of the oppressive doctrine of the Conquest. 
 The great interest of this point must be my excuse for saying so 
 much upon the matter. 
 
 Article 4 : ' Every Frenchman who in the time of my kinsman 
 King Edward was in England partaker of the customs of the 
 English, let him pay, or let be paid, what they call scot and lot 
 according to the law of the English.' This decree was established in 
 the city of Gloucester. Gloucester, by the bye, was not a city in the 
 ordinary sense in the reign of William I., and the word is simply a 
 translation of the Gleaweceaster, or Gloucester, which must have 
 been in the Anglo-Saxon document which was first issued. Now 
 the actual force of this article is obscure ; it is possible that it 
 may be somehow connected with the preceding article, and that it 
 means to restrict the operation of the murder law so as not to 
 include the Normans settled in England before the Conquest. 
 Article 3 refers, you remember, to the men who came with the king 
 or came after him ; this refers to those who came before him — the 
 difference turns on the word persolvat or persolvatur. If you read 
 persolvatur, it may mean, I do not say that it does, let him be paid 
 for. According to the custom of the English, that is let the 
 murder fine to the king not be exacted for him. Then quod ipsi 
 dicunt on lot and on scot is simply an amplification of consuctu- 
 dinem ; but if you read persolvat, it must mean that these first 
 comers are, so far as regards the payment of taxes, to rank as 
 Englishmen ; let him pay what the English call scot and lot. 
 That is perhaps a more reasonable interpretation, but it dees not 
 connect itself so directly with the former article or the distinction 
 between first, second, and third classes of immigrants. 
 
 What is ' scot and lot ' ? It means the due proportion of local 
 taxation, whether it be by way of amercement, as the murder fine 
 would be, or for the trinoda necessitous, the threefold obligation of 
 the castle-building, bridge-mending, and militia service. The law 
 was made at Gloucester, where, as we are told, the Conqueror used 
 to celebrate his Christmas festival. I am not sure whether this 
 date does not belong to the whole of the preceding articles or 
 especially to articles 3 and 4. In either case we are at a loss to 
 determine which of his Christmases is in question here. Mr. 
 Freeman, I see, gives it a wide limit, 1076-1087 ; one would prefer
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 75 
 
 the earliest possible date, but it is possible that the better known 
 assembly of 1081 or 1086 may be the occasion. It is not, indeed, 
 necessary to fix it to the Christmas meeting. There was a great 
 gathering at Gloucester in 1072, at which Archbishop Lanfranc 
 consecrated the bishop of Lichfield. I should, for William's sake, 
 prefer that, as showing a less grudging spirit of recognition of his 
 people's rights. However, if we restrict the date to the articles 3 
 and 4, it makes no great difference where we place it. 
 
 The 5th article is the same as the 45th of the French 
 articles : ' We forbid that any live stock be sold or bought except 
 within towns, and that before three faithful witnesses ; nor any res 
 vetusta without a surety and warrant. If anyone does this let him 
 pay, and pay forfeiture too.' Here the text is difficult ; viva pecunia 
 must mean live stock — cattle, in fact — which should always be 
 bought and sold where there is a concourse and stolen animals 
 may be identified and claimed. That seems fair enough ; but res 
 vetusta is in the Government editions res retita on fair manu- 
 script authority, and seems to correspond with the mortuum 
 of the article 45. Vetitam makes nonsense, for how could the 
 presence of a surety legalise the sale of things which were for- 
 bidden to be sold ? It must be an antithesis to live stock, and mean 
 something, furniture or other chattel, which had a previous owner 
 under the title of theam. In the form toll and theam the Anglo- 
 Saxon law gave to certain jurisdictions the right of inquiry into 
 the ownership of any property which was suspected to be dis- 
 honestly obtained, or the right of which was disputed. By this 
 provision the purchaser, although he might not bar the right of a 
 previous owner, was enabled to clear himself from complicity in 
 theft or other questionable method of acquisition. He was able to 
 call to witness the persons who had seen the sale and transfer in 
 either case, and in the case of the res vetusta he had a warrant on 
 the part of the seller that he had a right to sell. There is nothing 
 in this law which is not given equally circumstantially in the laws 
 of iEthelstan and Canute, and I do not see why the Conqueror 
 thought it necessary to re-enact it unless it was to restrict the 
 buying and selling altogether to the civitates, for Canute's law left 
 it open, ' sit in civitate, sit extra civitatem.' 
 
 In connection with this, it may be as well to note what the laws 
 of Edward the Confessor (that is, as you remember, the compilation 
 of a century after the Confessor's time) say about this : for rem 
 vetustam they read pannum usatum, secondhand cloth, which 
 certainly confirms my reading, vetustam. A careful arrangement 
 is described by which the security of the buyers is provided for in 
 case of buying gold and silver work : the witnesses are to be the
 
 76 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 goldsmiths or silversmiths who would be likely to identify the 
 work supposing it to have been stolen. As to the viva pecunia, they 
 leave no doubt as to what it means, for they tell us that the butchers 
 strongly objected to this form of law, urging that in the fresh meat 
 season they would have to kill daily and so to buy daily, and if they 
 bought daily they could not submit to so stringent a rule. Not 
 only the butchers took alarm, but the townsmen generally com- 
 plained that it was an interference with their freedom to buy beasts 
 at Martinmas to be fattened for their Christmas dinners. The 
 king, it is then said, did not wish to proceed so cruelly as to 
 deprive them of their discretion. It is a curious bit of tradition if 
 it be tradition, or fabrication if it be fabrication. 
 
 The next clause on appeals, and the use of ordeal or trial by 
 battle, is of so wide interest and ranges over so much ground that 
 it will demand a lecture pretty nearly to itself. But in connection 
 with this law we will recur for a moment to the 11th of the 
 Exchequer articles, which I passed over summarily in the last 
 lecture. It seems to have been fabricated as an amplification or 
 explanation of the genuine enactment. ' No market or forum shall 
 be or shall be permitted to be except in the civitates and cities of 
 our realm, and in burghs closed and walled and in castles and in 
 the safest places, where the customs of our realm and our common 
 right and the dignities of our crown which were settled by our good 
 predecessors cannot be lost or defrauded or violated, but all things 
 ought to be done duly and in the open, and by judgment and 
 justice. And therefore castles and burghs and cities were placed, 
 founded, and built, to the protection of the nations and peoples of 
 the realm and to the defence of the realm, and therefore ought to 
 be observed with all liberty, integrity, and honour.' If this addi- 
 tional article has any meaning or any germ of authentic authority, it 
 means that transactions such as are noted in the genuine article are 
 restricted to the town markets, which are under the greatest security 
 of publicity. The right to forbid a market held without royal 
 authority was hereby made or confirmed as a matter of law ; and 
 whatever may have been the rule previously, the granting of a 
 licence to hold a market became a part of the royal right of pro- 
 tecting or interfering with trade. 
 
 The issue of letters allowing markets and fairs, thus constituting 
 the class of towns called market towns, becomes frequent on the 
 rolls of John, and would no doubt be found in the shape of licences 
 in the as yet unprinted pipe rolls of his predecessors ; Madox men- 
 tions one in the reign of Richard I., in which a fine of 10 marks 
 is paid for the grant of a market. I must not stay now, but it 
 would be very interesting to work out what were the real restrictions
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 77 
 
 of trade internal, as the operations with the foreign merchants were 
 on the trade external at this early period. By restriction on or 
 licensing guilds, by forbidding or licensing markets, by exactions 
 at the ports and tolls on internal traffic, bridge dues, &c, we 
 gradually see our way towards the more elaborate institutions of 
 the customs duties, the staple system, and the rigorous enforcement 
 of market dues farmed by particular officers or bestowed by way of 
 endowment on individuals, lords of manors, or even on churches. 
 The mention of churches, to which not unfrequently the grants of 
 markets are made, reminds me that in the early times, the Anglo- 
 Saxon and Anglo-Norman, there was a very common tendency to 
 hold markets and conduct sales in churchyards, which were thus 
 profaned frequently by quarrels and frays, which occasionally in- 
 truded within the limits of the churches themselves. There are 
 many ecclesiastical canons against this profanation, running down 
 into the thirteenth century, when the constitutions of the legate 
 Othobon in 1268 entirely forbade the holding of them in the churches. 
 The practice of holding them in churchyards, however, was too 
 convenient to be given up, and the fact that the fairs were frequently 
 held coincidently with the dedication feast of the churches — as, in 
 fact, the two great fairs here at Oxford are still held — no doubt led 
 to the continued use of the churchyards for the purpose. Possibly 
 this statute may have been intended to restrict the number of these 
 rural adulterine fairs ; but if so, it was practically overridden by the 
 royal right to license the holding of them. 
 
 Article 6 of the genuine form stands thus : ' It is also 
 decreed there, possibly still at Gloucester, that if a Frenchman has 
 appealed an Englishman of perjury, murder, theft, homicide, ran, 
 which is in English open rapine which cannot be denied, the 
 Englishman may defend himself as he best can either by ordeal 
 of iron or by duel, but if the Englishman be infirm he may find 
 another to do it for him. The one who is conquered shall pay 
 40s. to the king. If an Englishman has appealed a Frenchman 
 and is unable to prove it by ordeal or duel, I will that the French- 
 man shall purge himself with an unbroken oath.' The suggestion 
 which I made to you in the last lecture, that the several clauses of 
 this short code may be abstracts of some longer enactments put 
 forth severally by the king in the native language, gains probably 
 from the fact that for this particular enactment we have the full 
 text in both Anglo-Saxon and Latin in the form of letters patent 
 preserved in the Textus Roffensis. It will be the simplest plan to 
 ground our exposition on the full text. ' William, by the grace of 
 God king of the English, to all to whom this writing shall come, 
 safety and friendship.' This is the Latin form ; the English is :
 
 78 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 ' William king greets all those to whom this writ comes over all 
 England friendly, and bids and gives notice to all men over all 
 Anglecynn to hold.' You must see that he retains the old Anglo- 
 Saxon form of giving notice of a public act, but it is needless to 
 dwell further on the verbal variations. ' (1) If an Englishman 
 appeal a Frenchman to battle for theft, homicide, or anything for 
 which battle ought to be held, or judgment betwixt two men, he may 
 have full licence to do so ; and if the Englishman does not wish for 
 the battle, the Frenchman appealed may purge himself by oath 
 against him by witnesses according to the Norman law. (2) If a 
 Frenchman appeal an Englishman to battle for the same things, the 
 Englishman may with full licence defend himself by battle or by 
 judgment of ordeal of iron, if he prefer it ; and if he be unable 
 or unfit for battle, and will not or cannot undertake it, he may 
 seek for himself a lawful champion. If the Frenchman is beaten 
 he shall pay the king 60 shillings ; and if the Englishman will not 
 defend himself by battle or by witnesses, he shall purge himself by 
 judgment of God, i.e. by ordeal of iron. (3) As to all matters of 
 outlawry the king ordains that the Englishman may purge himself 
 by ordeal of iron. And if the Englishman appeal a Frenchman of 
 outlawry, and is willing to prove it upon him, the Frenchman shall 
 defend himself by battle ; and if the Englishman does not prove 
 him by battle, the Frenchman shall defend himself by a full oath, 
 not in observances of words.' 
 
 There are here some things very hard to be understood, but we 
 had better take the straightforward points first. Trial by battle is, 
 I need hardly say, a deeply rooted institution of fallen humanity. 
 It is unnecessary, perhaps, to carry it back as a judicial expedient to 
 the time of Cain and Abel, whom the mediaeval jurists looked upon 
 as the first instance of a formal appeal to the judgment of God in 
 this shape ; but the custom clearly runs back to the early stages 
 of society in which a man had to right his own wrongs, and had no 
 other appeal than to that might which constituted right. The 
 custom is so ancient and so general that there need be no hesitation 
 in referring it to the simplest of all origins. The first restriction 
 upon the exercise of violence, against the simple club law of primi- 
 tive savage society, would be the placing of the appeal to violence 
 under such conditions as would make it if not just yet an orderly 
 tribunal ; and when religion — Christianity — began to leaven the 
 practice of the nations, that proceeding would be developed, where 
 the unreasonable custom itself could not be entirely abolished, by 
 making it as difficult and solemn as it could be made ; making it, 
 in fact, like the ordeal, a direct appeal to God, who would help the 
 weak man to his right, possibly by a miracle, if a miracle were
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 79 
 
 needed. Although some of the churches of the barbarian nations 
 were unable altogether to get rid of it, the whole spirit of Chris- 
 tianity was against it ; but so it was against the ordeal. So 
 deeply rooted were both that it was found practicable only to 
 surround them with such guarantees as would prevent oppression 
 so far as it could be prevented, even at the occasional cost or risk 
 of a pious fraud. 
 
 It is a curious point to note that the trial by battle, although 
 practised by all the Germanic races outside of England, cannot 
 be proved to have been a practice in England at all before the 
 Conquest ; and has generally been held to have been first intro- 
 duced here by this law of the Conqueror. I have heard of some 
 recent speculations which rather set this traditional view on one 
 side, and of arguments that so general a practice could not have 
 helped being known and used here ; but I believe no case really 
 anterior to the Conquest has ever been adduced ; although we have 
 a complete system of ordeal and compurgatory procedure in the 
 laws, we have no order for the ornest, nor any illustration in con- 
 temporary chronicles ; that the idea was not, as an idea, unknown 
 is, of course, proved by the fact that this name ornest is found for 
 it ; unfortunately I am not able to tell you how soon this word 
 appears in this signification in Anglo-Saxon literature ; this is its 
 first appearance in the laws. It is found in the form orrest in the 
 Chronicle 1097, describing a case of trial by battle, when Mr. 
 Earle explains that it is a Danish word, not likely to be unknown 
 in the Dane law. If I am right in supposing that ornest and 
 orrest are akin in origin if not identical words, then I presume 
 we may agree that the word may have come in through the 
 Danes, to whom, as to all the Norsemen, the custom on their 
 own soil was probably familiar enough. It seems thus on our 
 present information to be a foreign custom ; ordeal was deeply 
 rooted in England, so was compurgation, that by battle was not, 
 and in the early charters of the towns, granted at a time when the 
 procedure was in its fullest operation, freedom from liability to the 
 custom was granted by the king as a special favour. So you find it 
 in the charter of London granted by Henry I., ' Select Charters,' 
 p. 108, 'nullus eorum faciat bellum,' a clause which was imitated 
 in the charters of other towns. 
 
 I must add that the trial by battle was not restricted to cases of 
 appeal of accusation of crime ; it was likewise from the Conquest to 
 the reign of Henry II. the ultima ratio in civil suits in which by 
 conflict of evidence or appeal against a simple decision all other 
 means of proof had been found unsatisfactory. The institution of 
 the Grand Assize by Henry II. had the effect of substituting in the
 
 80 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 
 
 most important lawsuits a recognition by jury for this rough and 
 ready method in civil matters ; but in criminal appeals, where not 
 restricted by local privilege or legal reforms providing an easier 
 remedy, or by the good sense of mankind, it still retained its legality 
 and was only abolished with criminal appeals generally by an Act 
 passed within the nineteenth century, 59 George III. c. 46. 
 
 In the document before us the application is only to criminal 
 appeals, and I need not, as not being a lawyer, go beyond the 
 record. The document which I have just read to you proceeds in 
 an orderly way through the alternative cases in the reverse order to 
 that in the 10 articles. It seems to assume that compurgation 
 and ordeal are the English ultima ratio, while duellum or trial by 
 battle is the French ; still, in both cases, it is as a proof of the 
 truth of an assertion primarily, and only secondarily as a proof of the 
 justice of a claim. In the first case the Englishman is the accuser : 
 if he chooses to accuse the Norman of an offence or anything else 
 on which proof is customarily taken by trial by battle, he may do so ; 
 if he will not fight on his claim, the Frenchman may repel the 
 charge by compurgation ; he is not to be made to undergo the 
 ordeal. In the second case, if the Frenchman appeal the English- 
 man, the Englishman has his choice between the ordeal and the 
 battle, and if he be unfit for battle may employ a legal champion. 
 If he cannot or will not defend himself by battle or by testimony, 
 he must go to the ordeal, judgment of God. The Englishman, i.e., 
 may have his choice, but he is not to force the Frenchman to the 
 ordeal. The 3rd clause confines itself to matters of outlawry, and 
 seems to be the one on which the abstract in clause 6 of the 10 
 articles is chiefly framed. In this case if the Englishman appeal 
 the Frenchman, the Frenchman may defend himself by battle ; if 
 the Englishman dare not fight, the Frenchman may defend himself 
 by a compurgation. If the case be reversed, in all cases the 
 Englishman must purge himself by the ordeal. On the whole the 
 law seems quite as much directed towards saving the Frenchman 
 from the ordeal as towards saving the Englishman from trial by 
 battle. It is a curious reversal of our modern creed that one 
 Englishman is worth five Frenchmen, the case of the Frenchman 
 being untrum not apparently being provided for at all. 
 
 The oath by which the Frenchman is to purge himself is spoken 
 of in our short text as sacramento non fracto, for which the manu- 
 scripts of Koger Hoveden reproducing the passage read non ferro 
 the interpretation coming to the same thing really, that the purga- 
 tion was to be by oath, not by ordeal ; but it is clear from the Anglo- 
 Saxon form and Latin translation of the royal edict that non fracto 
 is the right reading, ' piano juramento non in verborum observantiis.'
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 81 
 
 What the unbroken oath is, is a question of deep controversy, so deep 
 and, as I believe, as yet so unsettled that it would be of very little 
 use for me to attempt to penetrate the mystery in a lecture. I will 
 state the explanation given by Mr. Bigelow in his book on Norman 
 procedure, although I confess it seems to me to be only a tentative 
 explanation. He thinks that the sacramentum f rang ens or fr actum 
 was a triple compurgation, three several compurgatory oaths ; while 
 the sacramentum infractum was a simple compurgation ; the non 
 fractum was then a simpler and less solemn act of purgation than 
 the fractum, and it was moreover evidently less formal, being non 
 in verborum observantiis. This likewise is capable of two explana- 
 tions ; for the verborum observantia may have been of two sorts : 
 (1) the formula of oaths were exceedingly minute, and the least 
 failure of a word or syllable was construed as an insufficient fulfil- 
 ment of the law ; but also (2) the thing which was contested was 
 also reduced to a form of the utmost strictness ; the point being, 
 A struck B so many blows on the head ; B swears to a distinct 
 assertion. A if he denies it must swear an exact categorical nega- 
 tive — the least change in the language involved a variatio loquelas, 
 a miskenning apparently, as it is called in the charters, that dis- 
 abled the litigant, and subjected him to fines if he wished to reform 
 his deposition and make it more distinct. 
 
 We must suppose that one or both of these requisites were 
 necessary for the fullest form of oath, the sacramentum fractum et 
 observatum ; and the simpler, looser, more general assertion and 
 denial sufficed for the sacramentum infractum non in verborum 
 observantiis. But, as I have said, none of the books, not even the 
 latest, that I have been able to consult, explain the whole thing very 
 confidently, and perhaps all that is needed for our present purpose is 
 to note that the non fractum oath was one which was simpler and 
 left less room for flaws and stumbling-blocks than the other. That 
 is the opinion of the editors of the laws, both Schmid and Thorpe. 
 It makes good sense here, where the purpose obviously is to make 
 matters comfortable for the Frenchman and not to lay him open to 
 technical difficulties arising on formulas which he would not under- 
 stand. In all this I am presupposing, in you at all events, a know- 
 ledge of what is meant by compurgation, ordeal, and the other 
 technical proceedings, such as may be gathered from our usual text- 
 books. I do not propose, therefore, at this stage to work into further 
 detail. Perhaps when we come to the more minute regulations of 
 the laws of Henry I. it will be as well to get some general idea of 
 the outlines of the subject of procedure, the forms of oath and ordeal. 
 Now I think we must pass on. 
 
 The 7th clause is that in which the king undertakes to main- 
 
 Q
 
 82 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 tain the national laws. ' This also I enjoin and will that all have 
 and hold the law of King Edward in lands and in all things aug- 
 mented by those enactments which I have appointed for the benefit 
 of the people of the English.' I have explained what is meant by 
 the law of Edward ; generally merely the customary law of the 
 nation, more particularly the legislative code or record which had 
 been last recorded by Canute, and prospectively the laws which, as 
 traditionally gathered by report of a body of representatives of the 
 shiremoots, appear in the following century under the title of the 
 Laws of Edward the Confessor. I am inclined to give the words 
 here the first and widest meaning ; for we know from later history 
 how watchwords like this have only had the loosest meaning in the 
 mouths of people. Magna Carta was a watchword for centuries to 
 people who knew nothing of what it contained ; nay, we have Magna 
 Carta associations at the present day. So the cry for the provisions 
 of Oxford, in the barons' wars, really meant the liberties which the 
 provisions were supposed to secure, not at all the provisions them- 
 selves ; the laws of Henry I. were a rallying point to the barons of 
 1215, before Stephen Langton unearthed the charter itself from the 
 record room at St. Paul's : so were the avitas consuetudines to 
 Henry II. long before he had them drawn up and recorded by the 
 recognitors at the council of Clarendon. The ' laga regis Edwardi ' 
 is mentioned several times in the great or coronation charter of 
 Henry I. as regulating monetage and murdrum, as well as in general 
 terms ; although it is most improbable that the murdrum at any 
 rate was in existence in Edward's time. We have lately taken it for 
 granted (p. 72) that the custom was introduced by the Normans, 
 but I mentioned that it might have been in some shape or other 
 known under Canute ; and the reference to it in Henry's charter 
 would show either that there was such a belief current in the year 
 1100, or that the Leges Edwardi, which I have always relegated to 
 a later part of the century, had been drawn up before the death of 
 the Conqueror, possibly in the year 1070, as the tradition alleged. 
 However, here we need not regard it as more than the watchword of 
 national traditional freedom. 
 
 The 8th clause contains two distinct enactments ; united, 
 however, by the fact that they both relate to procedure in the law 
 courts : ' Every man who would wish himself to be held as a freeman 
 must be in pledge, that his pledge shall have him and hold him to 
 justice, if he shall have committed an offence ; and if any such has 
 escaped, let the pledges see that they simply pay what is claimed, 
 and purge themselves of complicity, that they know no fraud in 
 the escaped.' That is the first part. It corresponds with clause 25 
 of the 52 articles. This clause lands us again in the midst of a
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 83 
 
 country full to overflowing of debatable points — the law of frank- 
 pledge, or of frith-borh, or collective responsibility, as it has been 
 called. 
 
 I need perhaps hardly tell you that in the old books on Anglo- 
 Saxon and Norman constitutional matter, the frankpledge occupies 
 a very important position, and, while in some authorities it is treated 
 like the mark, or village community idea, in others it is made a 
 fundamental law, and the fundamental law of Anglo-Saxon society. 
 This has come about by the process of throwing back the mediaeval 
 law of frankpledge to too early a date, and giving it an importance 
 and extension that it cannot be shown historically ever to have 
 possessed. On the extreme view of this side all society was bound 
 together in little associations of ten men, who were responsible for 
 each other's good conduct ; for payment of wergild, for co-operation 
 in compurgation, for appearance in courts of justice, and general 
 good behaviour. The frankpledges again were bound together in 
 hundreds, and the hundred was collectively responsible for the good 
 behaviour of the frankpledges, so all men were under a double 
 bond for obedience to the law. 
 
 I believe that some theorists have gone farther than this, and 
 have regarded the law of collective responsibility as pervading the 
 institutions of the whole German race, in some shape or other ; but, 
 as a matter of fact, the frankpledge or association of tens in its 
 mediaeval form belongs only to England ; the decaniae and con- 
 tubernia of the foreign systems which have been connected with 
 it requiring different explanation. Nor does it appear in England 
 until after the Conquest, according to the best authorities ; possibly 
 not very long after the Conquest, for all identifications of it with 
 local tithings or associations of tens as subdivisions of hundreds, and 
 all frithgilds, voluntary associations for mutual protection, and the 
 like, which have been confused with it, fail to answer the test of 
 criticism such as Dr. Waitz, the great ruling authority on the point, 
 has applied to them. What, then, was the frankpledge ? It was an 
 association of ten men answerable for the production of one another 
 in the court of justice — the visus franciplegii, the examination into 
 the observance of the rule, the securing that every man of the town- 
 ship, who had not material guarantees in the shape of land of his 
 own, and perhaps including such cases also, was a part of the business 
 of the hundred court, and of the sheriff's tourn in the county court ; 
 often also in the manorial courts themselves, where they were 
 exempted from superior jurisdiction. And this seems to be all that 
 the hundred court had to do with the frankpledges, for its own 
 responsibility for the murdrum was quite independent of the frank- 
 pledge responsibility, and all its other collective acts belong to 
 
 o2
 
 84 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 ordinary jurisdiction, or executive energy, that belong by nature to 
 law courts, not to any doctrine of so peculiar a colour as this. 
 
 That the compulsory association of ten men collectively respon- 
 sible succeeded to some earlier form of pledges is very probable, 
 nay it is almost certain ; for although the Anglo-Saxon laws say 
 nothing about the ten men in the frankpledge (they do recognise 
 a frithgild or police defence association in the judicia civitatis 
 Londoniensis). In that document they say a great deal about frith 
 pledges and the duty of some one or other to produce everybody 
 in the courts when needed. The lord was the borh, or surety for the 
 production of his vassal, or sometimes the kinsfolk were collective 
 surety for the kinsman, as they were the sharers in his wergild, and 
 the men of the guild may have been sureties for the members of the 
 guild. The clergy might have the bishop as their protector, but 
 they also were under pledge ; by the laws of the Northumbrian 
 priests, every priest had to find twelve borhs or bondsmen, as 
 sureties that he would keep the law ; and even an archbishop had 
 bondsmen, although whether that was a matter of course, 
 or only a particular expedient in particular suits, I cannot 
 presume to say ; certainly as the oath of a bishop was irrefragable 
 one cannot see what, if his character were unimpugned, he could 
 want with a body of sixty bailsmen. So, however, the north 
 country law directed, and if it was an anomaly, it was only one of 
 many. The accepted theory is that the man who had not in land 
 such a stake in the country as was practical security that he would 
 not fly from justice, should have such sureties as would secure the 
 same end. That being the principle under which a good deal of the 
 Teutonic laws work, serves to explain the passages in the earlier laws, 
 where reference is made to the frithborough, or security for the 
 peace ; the word frankpledge is a bad translation of the word free- 
 borough, which is a corruption of frithborough — frith means peace, 
 franc means free, the other half of the word is right. 
 
 The historical question turns on the point of the compulsory 
 association of ten men ; that institution is not found in the Anglo- 
 Saxon laws before the Conquest, it is found in the laws of Edward 
 the Confessor, drawn up probably, as we have several times held, 
 in the first half of the following century. Was it introduced as a 
 police measure by William the Conqueror, or by William Eufus ? 
 In the 52 articles, No. 25, it occurs only in the simplest form, 
 ' omnis qui sibi vult justitiam exhiberi, vel se pro legali et justitiabili 
 haberi sit in francoplegio ; ' here is the frankpledge, not the ten 
 men. In the French version it is art. 20, and applied only to the 
 villani, ' e puis seient tuz les vilains en franc plege.' (1) You may 
 conclude either that as the association of ten men in frankpledge
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 85 
 
 is not mentioned by the Conqueror and is mentioned in the pseudo- 
 Edwardian laws, and certainly was a part of the common law in 
 the twelfth century, that therefore it was introduced by the Con- 
 queror ; or (2) you may argue that as the Conqueror mentions 
 frankpledge, and as that is the name by which in the following 
 century the ten men were known, that therefore we may understand 
 the word to have the same meaning in his laws. If that is the case, 
 then the institution may have been much older, or it may have been 
 a thing of his institution ; but if it was much older than the Con- 
 queror, still it is a mistake to extend it too far, either to suppose 
 that it was connected with the hundredal responsibility or that it 
 was a universal institution among the Germans. 
 
 I do not wish to influence your opinions, if you will take the 
 pains to form opinions. Many good books have been written on 
 the assumption of the primitive antiquity of the institution, as for 
 instance Schmid's notes on the subject show ; later investigators are 
 inclined to throw it over. My own opinion is that way ; but even 
 if we should be proved right, the particular history of this regula- 
 tion would remain a curious illustration, and a curiously permanent 
 part of our popular customs. For to the present day view of frank- 
 pledge, that is the ascertaining that the men of the manors are in 
 the associations of ten men, is held to be a part of the work of 
 manorial courts, where they continue to go through the form of 
 business. It is but a name and a shadow, but I believe it still 
 exists, or did a very few years ago. 
 
 Taking it for granted that I have said enough about this, let us 
 take the remaining half of the clause : ' Let recourse be had to the 
 hundred and county court as our predecessors appointed ; and let 
 those who ought to come and will not, be summoned once ; and if 
 at the second summons they will not come, let an ox be taken, and 
 let them be summoned the third time ; and if the third time they 
 will not come, let another ox be taken ; and if they do not come on 
 the fourth summons, let what is called ceapgeld, the sum in dis- 
 pute, be taken of the goods of the man who will not come, and 
 besides that the foris factura regis, the king's forfeiture.' The 
 enactment may possibly connect itself with the foregoing clause ; 
 and if so, it would seem to intimate that the view of the frank- 
 pledge was already a part of the duties of the hundred and shire- 
 moot. But I should prefer to take it independently as an order, 
 that judicial proceedings shall continue as they had been of im- 
 memorial time, in the two moots of the hundred and the shire ; 
 recourse being had first to the hundred, then, if justice was delayed, 
 or refused, or impeded by forms that could not be got over, the 
 shiremoot being resorted to. It would be for debt or dispute about
 
 86 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 money matters that these courts would be most frequently employed, 
 and the illustration in the text is taken from a suit of money-claim. 
 If the accused or debtor does not obey the summons to the court, 
 or if, it being his duty to attend without summons, he fails to do 
 so, he is after the second citation to be fined, after the third to be 
 fined again, and after the fourth not only to pay the sum in dispute 
 but an additional fine to the king for having contemned the order 
 of a court which, although not the king's court, is under the king's 
 protection as defender of the law and the peace. Ceapgeld is the 
 worth of the chattel in dispute. The /oris factum is the fine for 
 oferhyrnesse or disobedience to the lawful summons. As to the 
 general importance of the clause : it is a valuable proof that 
 William the Conqueror maintained the ancient English courts in 
 something like their integrity, and that the decay into which they 
 had fallen in or about the year 1108, when Henry I. issued his 
 writ for the regular holding of them, must have been the result of 
 the tyrannical measures of the intervening reign, and the ubiquitous 
 energy of Ranulf Flambard, who, ' driving ' the king's courts over all 
 the realm, most probably weakened as much as he could all such 
 relics of local independent administration. 
 
 There is nothing in the clause that makes it necessary to 
 suppose that the Conqueror introduced any change into these 
 customary courts ; but if he had, he could not have materially inter- 
 fered with their history, for they certainly continued for a century 
 and a half very slightly modified. I may, perhaps, as well note for you 
 in this lecture the principal heads under which the history of these 
 courts should be worked out. According to the generally received 
 opinion of German constitutionalists, the hundred court was the 
 sole and single court of customary popular justice ; there might be 
 township moots in which the business was prepared for the hundred 
 court, but these were not courts of what we should call contentious 
 jurisdiction ; they could allot lands, receive new inhabitants, witness 
 sales and probably prove wills, or whatever form of devise preceded 
 the use of written wills, but except in occasional cases, where the 
 hundredal jurisdiction was granted to the lord of a township, they 
 were not what we should call courts of justice. 
 
 On the Continent I believe the hundredal jurisdiction continued 
 to be the only popular jurisdiction during the whole of the ages the 
 history of which is in analogy with English constitutional history, 
 and possibly longer, but we need not examine that now ; the 
 Karolingian missi and the growth of feudal magistracies create a 
 number of analogies which would only puzzle us if we tried to work 
 them out. But although we may grant that in English history 
 there was no lower court of jurisdiction than the hundred, there
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 87 
 
 was a higher court in the shiremoot or folkmoot, an institution which 
 did not apparently exist in the old Germanic institutions and which 
 probably originated in the fact that many of the English shires 
 were ancient tribal or even monarchical aggregates. 
 
 In England, therefore, before the Conquest, there were hundred 
 courts assembling ; the hundred court met according to the law of 
 Edward the Elder every four weeks, and according to the law of 
 Edgar the shiremoot was held twice a year. Both assemblies 
 were attended by the same persons : all the landowners, lay and 
 clerical, in the hundred, and the men of the townships, the villani 
 represented by the reeve and four best men ; the bishop and 
 ealdorman in person or by deputy attending to explain the law, 
 secular and divine. As the litigation would not always arise 
 between litigants within a single hundred, it was necessary that 
 provision should be made for a tribunal that could enforce its 
 decisions in more than one such area, and this was done, sometimes 
 by collecting three or more hundreds in a central place, cross roads, 
 or open ground in the centre of the territory, but I imagine most 
 frequently in the shiremoot or half-yearly court of the whole county. 
 And thus constituted, the shiremoot was also a court of resort by 
 what we may call appeal from the hundred court. 
 
 You will remember that I told you in a previous lecture that there 
 was no proper appeal in the Germanic courts originally except by 
 challenging the judges ; and as that was not usual in Anglo-Saxon 
 England, we must suppose that the want was met by having, if it 
 were possible, recourse to a higher court to remedy delay or refusal 
 of justice in the lower. The Law of Canute certainly implies 
 that there was such a graduation of appeal. No man might dis- 
 train another until he had three times applied to the hundred for 
 leave. If at the fourth time he fail, he may go to the shiremoot ; but 
 what to do there ? not to reverse the judgment of the hundred, but 
 to insist on another hearing, a fifth term ; if he could not then get 
 authority to distrain, he might proceed on his own responsibility 
 with the leave of the county court. Well, that being the relation 
 between these two gemots, this is the condition in which we find 
 them at the Conquest, a half-yearly shiremoot and a monthly 
 hundred court. As litigation increased, and as the interference of 
 royal justice diminished the powers of these courts, they seem to 
 have been held more frequently ; at least under Henry II. the 
 hundreds are said to have met every fortnight, and under 
 Henry III. they were ordered to meet every three weeks ; the 42nd 
 regulation of the Great Charter of 1217 must be understood 
 as having this meaning ; the term comitatus, which was to be held 
 every month, probably referring to the hundred court, and the
 
 88 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 sheriff's tourn in the hundred, twice a year, with view of frank- 
 pledge in the Michaelmas tourn representing the old proper county 
 court. Already large sections of business were being transferred 
 from the old judicatures to the king's judges, and the process went 
 on by the use of itinerant justices, justices of assize, justices of 
 the peace, and the like, and by excusing the attendance of more 
 important members by the statutes of Merton and Marlborough, 
 until merely the shadow of jurisdiction remained, and the chief 
 function of the hundredmoot was to enable the litigants to recover 
 small debts, the main action of the counties to despatch other 
 business, elections, assays and collection of taxes, affording, however, 
 the basis still of the assembly in which the royal judges in eyre and 
 assize had their constitutional position. Of course you will find all 
 this in my ' Constitutional History ' and much of it in the ' Select 
 Charters,' but sometimes it is as well to make up our accounts. 
 
 Clause 9 : 'I forbid that any should sell a man out of his 
 country on penalty of my full forfeiture.' It is clear from the 
 enactments of the former kings, Ethelred and Canute, that there 
 was among the Anglo-Saxons a sort of contraband slave trade ; 
 this was very largely maintained at Bristol, as is known from 
 the life of S. Wulfstan, and Ireland was the centre to which the 
 English kidnappers took their slaves to market. Lanfranc and 
 Wulfstan have the credit of compelling the abolition of this 
 abominable usage. You will find a good deal about it in Mr. 
 Freeman's fourth volume on the Norman Conquest, where, however, 
 possibly we ought to distinguish between the kidnapping at Bristol 
 and the legal sale of persons who, either as condemned criminals or 
 as lawful slaves, were sold with a profit due to the king on the 
 transaction. The king had Ad. for every man sold in the borough 
 of Lewes, and doubtless in other boroughs likewise ; this he did not 
 like to forgo, but Lanfranc and Wulfstan put it before him in such 
 strong terms that it was renounced. The contraband trade from 
 Bristol must have always been illegal, although we are told of 
 Gytha, the wife of Earl Godwin and mother of Harold, making 
 herself rich by it. We will hope that it was a libel. 
 
 We now come to our last clause, the curious regulation which 
 forbids hanging and legalises blinding and mutilation, and in the 
 Exchequer form ordains a graduated system of mutilations for 
 graduated offences. I think that in the Latin of this law pro 
 aliqua culpa can scarcely mean to prohibit hanging altogether, but 
 simply that it is not to be the only punishment inflicted for every 
 crime. The Exchequer version adds to tbe sufficiently cruel details 
 the cutting off of the hand and foot. This was not uncommon 
 later ; common enough, as also was hanging, under Henry I., and
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 89 
 
 still lawful under Henry II., being authorised by the assize of 
 Northampton, which probably reproduces the penalty which in 
 its predecessor, the assize of Clarendon, was omitted as a mere 
 detail of common law practice. The forest assize of Henry II. 
 likewise refers to Henry I.'s penalties, which were of the most 
 savage and abominable tyranny conceivable. The brutality of the 
 Conqueror was bad enough, but the mutilation of hand and foot, 
 which meant really lingering death, were refinements of savagery. 
 
 This completes our survey of this very important little set of 
 articles, the three most significant and controverted of which are 
 those to which we have given most time — I trust not in vain — the 
 murdrum, the trial by battle, and the law of frankpledge. 
 
 We have now come to the edict, not by any means the least 
 important and interesting of the Conqueror's laws, by which he 
 separated the work of the ecclesiastical litigation from the secular 
 business of the shiremoot and hundredmoot, with which it had 
 become to some extent and in some peculiar ways entangled. In 
 order to see more exactly what was the purport of the Act, I will 
 at once take you into the far more ancient and straightforward 
 region of early Anglo-Saxon history, and ask you to look for a 
 moment at the origin of ecclesiastical jurisdiction. The creation of 
 an ecclesiastical jurisdiction, or, I should rather say, the historical 
 process by which it is developed, is divisible into three elements or 
 processes. We must accept as our first element the Christian 
 religion in that condition and self-contained constitution at which 
 it has arrived when it is first brought into the land over which it is 
 ultimately to gain jurisdiction ; a second process is the acceptance 
 by the body of the people, either by authority of its rulers or by 
 the slow process of missionary enterprise, of the system imported ; 
 and a third stage is attained when to the system thus imported and 
 accepted, powers of enforcing its own legal sentences are given or 
 allowed to be exercised by the national will. First, it is a missionary 
 church ; secondly, it is a voluntary society ; thirdly, it is a national 
 establishment, with laws, tribunals, and an executive authority of 
 its own. It is only in the second stage that it begins to have juris- 
 diction even consensual, that is binding on the conscience of the 
 members who have joined it, and who, in accepting its rules, bind 
 themselves to obey its sentences on penalty of expulsion. In this 
 voluntary stage its authority is simply moral and spiritual, its 
 sentence of excommunication from divine offices is valid only by 
 the consent of those who share in those offices and by the acqui- 
 escence of the delinquent ; it involves no secular penalties, and is 
 executed by no secular arm. The body which exercises it is a 
 recognised body, capable of managing its own affairs, and of holding
 
 90 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 such property as it can hold subject to the common obligations of 
 temporal property, but if it demands tithe or offerings it demands 
 them as a matter of religious or moral, not of legal, obligation ; and 
 where its demand is resisted, it strives to enforce it not by legal but 
 by spiritual sentences. In the third stage, in which it has fully 
 achieved the position of a national church, not only are its estates 
 secured to it by the common law of society, but it is enabled by 
 legal machinery to enforce its claims, to pass and enforce its sen- 
 tences, or to call upon the secular power to do so for it. 
 
 So, you see, on the historical theory of ecclesiastical establish- 
 ment the national church is not merely the nation in its religious 
 aspect, but the nation in a religious aspect as a part of a catholic 
 universal church, other branches or nations of which live, or 
 assume to live, by the same law, and to work together in the world 
 for the same spiritual interests. It is in no sense the creature of 
 the state or the creature of the nation ; but its constitution, its 
 powers of self-government and of self-defence, are varied by the cir- 
 cumstances of the nation which it has gathered in to the general body, 
 and by the decrees by which its hold upon the governmental system 
 of that particular nation is originated, strengthened, or weakened. 
 
 Every historical church in Christendom has of course begun 
 with the missionary stage ; it comes with the Bible and the liturgy, 
 and the rules of church government that are accepted at the moment 
 by the mother church that sends forth the mission. Then it lays 
 hold on the people as a voluntary profession with a voluntary 
 organisation, or rather with its original and inherent organisation 
 voluntarily accepted or rejected. At last it arrives, as a national 
 church, at the power of enforcing its rules and claims by material 
 means. The second stage in the early history of England and most 
 of the Western nations was a very short one ; that is, only a short 
 period elapsed between the acceptance of Christianity by the nations 
 and the bestowal of coercive authority on the tribunals which were 
 in their first aspect consensual ; but there was such a period, and it 
 was in all cases long enough to contradict the possible assumption 
 that the company of voluntary believers created for themselves a 
 new and original constitution. They accepted what came to them : 
 afterwards they increased, and to some extent materialised, its 
 power, but they did not create it. It came with a spiritual law, 
 with a consensual jurisdiction, and an organisation in common with 
 the churches outside. 
 
 In England, as we are constantly told, the church had kings for 
 its nursing fathers and queens for its nursing mothers in a very 
 especial way ; the governing classes, apparently, in most of the 
 Anglo-Saxon kingdoms were the first to receive Christianity, and
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 91 
 
 the heathenism that preceded was so thoroughly worn out that the 
 great body of the peoples without delay accepted the faith, and from 
 the earliest days of it with brilliant examples of sanctity, and great 
 intellectual expansion as well as moral improvement. But the fact 
 that England at the time of the conversion was divided into seven 
 kingdoms had the effect of prolonging the voluntary period of 
 church development, especially in the higher regions of the organisa- 
 tion. By an alliance which was close, vital, and spiritually 
 extremely strong, by a thorough spiritual and moral incorporation, 
 so to speak, the Anglo-Saxon church was one and indivisible in all 
 the seven states, but the union was still in its nature voluntary or 
 consensual ; the same law might be recognised in all the states, but 
 it was not by a common act of the states ; if there was a common 
 act, it was the common act of the churches, the canon of a council 
 or the constitution of an archbishop. The assistance given by the 
 secular arm to the spiritual arm in the several kingdoms might 
 and did vary, no doubt. There is no reason to suppose, when one 
 kingdom gave its bishops the right to enforce Romescot, or tithe 
 even, that the same rule was adopted in every other. For the main 
 spiritual purpose the church was a united spiritual consensual body ; 
 before, its rights had been, on exactly the same lines, recognised 
 and formulated in all the states of the Heptarchy. 
 
 From the time of the union of the kingdoms, which you will fix 
 in the tenth century, in the period of Edward the Elder and his sons 
 and grandsons, the English church in its integrity entered on the 
 full possession, the equalised and universally recognised exercise of 
 the powers which in the several kingdoms it had already enjoyed, 
 but in its central administration had possessed by voluntary or 
 religious cohesion only ; and from that date to the Conquest, partly 
 from the fact that its kings were weak and its prelates strong, it 
 acquired and held such great power, both spiritual and temporal, as 
 has been regarded as the most complete possible union of church 
 and state, the powers of either being almost merged in, confused 
 with, and exercised through the powers of the other. The prelates, 
 bishops, and abbots were the statesmen of the period ; they held 
 great estates, and even provincial governorships, it is said ; certainly 
 they were the chief members of the witenagemots, they declared the 
 spiritual law in the folkmotes, they commanded armies, they con- 
 strained kings to obedience, and it is by no means clear that they 
 themselves or the nation they ruled distinguished very clearly 
 between the religious and the coercive machinery by which they 
 enforced the observance of their rule. 
 
 But when we come to the eleventh century, of which in our own 
 history the Norman Conquest is the great central event, we come
 
 92 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 to a period full of new life and revived intellectual as well as 
 moral energy. The church of Rome, that is the catholic church of 
 Western Christendom, arises in great force under the influence of 
 Hildebrand to purge away its own sins and enforce what it conceives 
 to be righteousness upon the nations ; it insists on the liberation of 
 spiritual machinery from secular control ; nay, it goes farther, and 
 in its extremest pretensions insists on the subordination of the 
 temporal to the spiritual sword ; and the strength of the revival is 
 augmented by the miserable condition of the church within the 
 empire under the Franconian dynasty. With the revived sense of 
 spiritual corporeity, there is a great development of ecclesiastical 
 constitutionalism, church law begins to be studied and codified, and 
 the canonical systems of different countries to be brought into 
 uniformity ; the free and easy union between church and state in 
 countries like Spain and England has to be examined and set 
 right, and the general administration in things spiritual to be 
 brought up to a fair standard, although the full attainment of the 
 Hildebrandine ideal is impossible. Such, speaking generally, was 
 the idea of the period of the Conquest ; what was there in the 
 condition of England to meet that idea ; and what bearing has it on 
 the measure before us ? 
 
 Let us keep before our minds now three points to be observed : 
 first, the existence of a church law, common to all the churches ; 
 secondly, the existence of a church jurisdiction, common as to its 
 framework to all the churches of the West, but modified as to its 
 powers and in details by the particular circumstances of the nations ; 
 and thirdly, an ecclesiastical procedure, in its first elements uniform, 
 but in all its executive details and in the amount of power with 
 which it could exercise its authority differing largely in different 
 countries. Fix these in your minds by an illustration : (1) The 
 same ecclesiastical law governed the whole of the Western Church, 
 that was the Holy Scripture and the canons of the general 
 councils ; (2) the same system of jurisdiction by archbishops and 
 bishops covered as by a network the whole area, and in its essence 
 the authority of these officers was the same, but in its details there 
 were variations, as for example the modifications introduced by 
 provincial and even diocesan canons, the different share of authority 
 exercised in different provinces by archbishops over bishops or by 
 bishops through archdeacons and archpriests ; in one country the 
 whole hierarchical jurisdiction might be fully elaborated, while in 
 another it was simple and unentangled ; in one country it might be 
 exercised with, and in another without, a concordat with the secular 
 power ; it is easy to imagine modifications ; (8) in the separate 
 states, there being no universal law of ecclesiastical procedure, the
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 93 
 
 proceedings of the courts must vary and did vary very largely, the 
 procedure in one being according to the Roman law, the Theodosian 
 Code or even the Code of Justinian, while in another it might still 
 be of the consensual sort, or even closely assimilated to the 
 common popular law of the realm which accepted it. As to 
 executive, too, one state might allow to the bishops the direct right 
 of enforcing their own sentences by their own officers, their own 
 provisions, and so on ; another might agree to enforce all spiritual 
 sentences by the secular arm ; another might insist on examining 
 the spiritual sentences before it executed them itself, or allowed the 
 bishops to exercise them. We have thus drawn the lines on which 
 to frame our answer to the question, what was the state of things in 
 England on which this edict of the Conqueror came ? 
 
 First as to the law : you will see from the words of the edict 
 itself that there was a recognised ecclesiastical law and a recognition 
 of a general system of canons. The episcopal laws, he says, up to 
 my time have not been well kept, nor according to the precepts of 
 the canons. What were the episcopal laws and what the precepts of 
 the canons ? The latter first, the body of canons accepted in the 
 Western Church ; these canons were the basis and germs of all 
 ecclesiastical law ; the canons of the general councils, and more 
 especially the collections of authoritative enactments born of 
 general councils and of provincial councils which by the adherence 
 of particular churches had acquired pretty nearly the same force and 
 universality. The most ancient collection of these was made by 
 Dionysius Gaignus, a Roman monk, who lived early in the sixth 
 century, and may therefore have been in the hands of Augustine 
 when he came to England. There were many similar collections 
 founded on that of Dionysius and in use in different churches ; we 
 have the forged decretals of Isidore in the ninth century, which 
 has a separate and special history of its own, but I mean local 
 collections of received canons such as that which belonged to 
 Dunstan and is now in the Bodleian Library. Besides canons there 
 were penitentials, that is the handbooks of confessional discipline 
 prescribing the punishments for the several sins confessed by the 
 penitents, and there were other authoritative writings of the fathers 
 and the great jurists which possessed great religious authority. 
 Early in the eleventh century Burchard of Worms codified these, 
 and very soon after the reign of the Conqueror, Ivo of Chartres, 
 who was able to use the Corpus Juris of Justinian, while Burchard 
 had only that of Theodosius, drew up a new collection called the 
 Panormia, which was generally received as sufficient until Gratian 
 about the year 1151 issued the renowned Decretum on the same 
 principles. None of the books that I have mentioned was in itself
 
 94 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 
 
 an authoritative code, but each contained the letter of the canons 
 which were authoritative, much of the law now, as ever, residing in 
 the mouth or breast of the judge. But when the Conqueror contrasts 
 the episcopates leges with the prcecepta canonum, what does he 
 mean? Surely simply that the practice of the English ecclesiastical 
 law had not been kept close to the letter of the canons in particular 
 causes that affected the government of souls, had been brought to 
 the judgment of secular men and laymen, and had been allowed to 
 interfere with the laws that belonged to the government of the bishops. 
 
 This leads to another point. What was the jurisdiction of the 
 bishops under the Anglo-Saxons, which William undertook to 
 reform? There is no doubt that throughout the Anglo-Saxon period 
 the bishops had a clear spiritual judicature ; how it was worked is a 
 matter that admits of question, but it is clear they had it, from the 
 penitentials, from the canons of councils, from their participation 
 in the general features of church organisation in other countries. 
 It was very extensive, it covered all questions of morals ; it compre- 
 hended the protection of the clergy, who were all under the mund 
 of the bishop, the vindication of ecclesiastical rights as to persons 
 and things, and extended to the moral conduct of the laity as well 
 as to questions of marriage and legitimacy. Besides this authority 
 exercised by purely spiritual sanction and enforced by purely 
 spiritual censures, the bishops had a place in all the secular 
 tribunals of the country, in the witenagemot, in the shiremoot, and 
 in the hundredmoot, where they sat both to declare the spiritual law, 
 while the ealdorman declared the temporal law, and to secure 
 justice, possibly to administer it also, over clerks accused of 
 criminal offences, and in the case of disputed possessions. In days 
 in which the prelates were all-powerful, we should not be surprised 
 to learn that their functions in these two capacities were sometimes 
 confounded, and that the bishop sitting in the shiremoot sometimes 
 decided causes by the popular method which more properly belonged 
 to his tribunal of spiritual discipline, and sometimes in his spiritual 
 tribunal prejudged questions that belonged to the secular forum. 
 But that there was confusion between the spiritual authority and 
 the secular authority in relation to its source, objects, and proper 
 limits, I for one should deny. 
 
 I have accounted, then, for the law, the ancient canons, for the 
 jurisdiction, in the bishops and archbishops ; how about the 
 procedure ? I conclude from what I have read in the laws and 
 councils of the Anglo-Saxons, that so far as spiritual jurisdiction in 
 its limited sense was concerned — that is, the moral and ceremonial 
 discipline of the clergy and the penitential discipline of the laity — 
 that was exercised by the bishops, either publicly in synods, which
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 95 
 
 were very numerous, or in private and informal sessions in their 
 own churches, chapter-houses, or palaces, where they could act more 
 freely as arbitrators, confessors, or directors, as the particular case 
 before them required. And in those sessions they acted on the letter 
 of the canons or on their own knowledge and responsibility, 
 possibly in accordance with the rules of foreign law procedure, as in 
 the Gallican and Koman Churches, possibly, as the common idea has 
 been, in an informal and paternal way, possibly in ways analogous 
 to the proceedings of the popular courts. But when we look at the 
 edict before us we find that it was intended to correct abuses which 
 arose from the trial of certain ecclesiastical causes before the county 
 court, according to the law of the hundred, and in the laws of 
 Ethelred and Canute it is directed that the bishop and ealdorman 
 should attend in the county court to declare the spiritual and the 
 secular law. It is clear from this that certain ecclesiastical causes 
 did come before the popular courts. 
 
 I will not dwell upon the point that has been by extreme par- 
 tisans maintained, that in the declaring of the law the ealdorman 
 had an equal right with the bishop to declare the ecclesiastical law ; 
 that contention, although it has some great names to support it, is 
 really untenable, and I must not obscure what I have to say by 
 dwelling upon it ; our question is what were these ecclesiastical 
 causes touching the government of souls which were despatched, 
 according to the Conqueror's words, by the judgment of secular men. 
 
 Well, first, you may be quite sure all questions touching the lands 
 of the churches came before the secular courts ; and with them 
 must have come suits that touch the right of appointing to churches, 
 suits of patronage. Secondly, you may be sure that the bishops' 
 synods would frequently coincide with the sessions of the courts ; 
 at a little later time we know that it was so, that the three-week 
 courts of the rural deaneries and the annual visitations of the arch- 
 deacons were framed on the analogy of the three- week courts of the 
 hundred, and the annual tourn and view of frankpledge held by the 
 sheriff ; and as the bishop was a leading member of the hundred 
 court, of course he found it convenient enough to take his eccle- 
 siastical causes at the same meeting of the people at which he took 
 his secular business. I conclude thus that directly large numbers 
 of church property cases, and indirectly some more distinctly 
 spiritual cases of litigation, would come before the county court. 
 And these causes would most probably be decided on the same 
 principles as the simply secular causes ; if a priest was accused of 
 an offence he would have to bring his compurgators and to go to the 
 ordeal just like a layman, the bishop seeing that he had fair play, 
 but the judicial procedure of the court being popular, that is what
 
 96 THE LAWS AND LEGISLATION OP THE NOKMAN KINGS 
 
 William calls here secundum legem hundret. What, then, is the 
 force of the edict primarily? William, with his experience of French 
 litigation, and to some extent under the influence of the Hilde- 
 brandine idea, acting on the advice and counsel of the bishops, 
 archbishops, abbots, and other princes, all or nearly all French and 
 Hildebrandine too, orders that the confusion introduced by these 
 practices shall cease. No bishop or archdeacon shall henceforth 
 hold pleas of episcopal laws in the hundred ; amplius — clearly the 
 suits that have been heard in the popular courts have been held 
 there wrongly, but still it has been the bishop and archdeacon, not 
 the ealdorman or sheriff, that has held them — that is to cease ; nor 
 shall they bring a cause which concerns the government of souls to 
 the judgment of secular men; that they must have done by using 
 the popular methods of compurgation and witness in the customary 
 modes — that also is to cease. And thirdly, as to criminal charges : 
 whoever, according to the episcopal laws, shall be accused of any 
 cause or fault whatsoever, shall come to the place which the bishop 
 shall choose or name, i.e. not to the county court, but to the bishop's 
 court, and shall there do right to God and his bishops, not accord- 
 ing to the hundred, but according to the canons and episcopal laws — 
 not, that is, according to the popular form of fines and penalties, but 
 under the dread of the spiritual sentence of excommunication or 
 suspension. Fourthly, if anyone so summoned refuse to come, in 
 exact analogy with contempt of the summons to the hundred court, 
 he shall be excommunicated after the third disobedience ; and if he 
 still be obstinate, the force and justice of the king or sheriff shall be 
 applied ; while for each act of contempt to the first, second, or 
 third summons he shall be subject to the spiritual censure as the 
 bishop may order it, and be obliged to make amends. Fifthly, no 
 sheriff or reeve, or king's minister, nor any layman, is to interfere 
 with the administration of the laws which belong to the bishop ; 
 the abuse that is corrected, the hearing church suits in the lay 
 courts, had afforded too great opportunity for this confusion ; the 
 direction that it should cease is supplementary to the direction to 
 the bishop to withdraw his suits. And sixthly, the ordeal is only to 
 be administered in the bishop's see, or in the place appointed by the 
 bishop. Here, then, are six points ; all worth remembering. 
 
 Observe, however, two or three more points. First, the bishop 
 and archdeacon are not deprived of their place in the shiremoot and 
 hundredmoot : there are no words to that effect, and as we know 
 from later laws and later writs, the bishops, archbishops, and all 
 clergy who had lands included within the area of the shiremoot were 
 summoned to it and were components of the full assembly. 
 
 Secondly, although the suits that are proper to be tried by
 
 THE LAWS AND LEGISLATION OF THE NOKMAN. KINGS 97 
 
 episcopal law and the canons are removed from the area of the 
 shiremoot and hundred, not all ecclesiastical causes are so removed. 
 We find in the laws of Henry I. in the directions for the arrangement 
 of business in the shiremoot, that the first place is given to the suits 
 which have a bearing on ecclesiastical matters. ' Agantur primo 
 debita veras Christianitatis jura ; ' an extract from a capitulary of 
 Charles the Great, but represented here as a part of the English 
 practice in the early years of the twelfth century. I have mentioned 
 causes of patronage as likely to be the suits pertaining to the 
 regimen animarum which came before the shiremoot ; if it were so, 
 it was sure to lead to difficulties, for rights of patronage are rights 
 of property and cannot be disassociated from them. But it is 
 probable that from 1066 onwards until the Constitutions of 
 Clarendon, it was uncertain to which forum these suits belonged ; 
 Henry II. revindicated them for the lay courts, and appealed to the 
 avitce consuetudines as his warrant ; but it is certain from the letters 
 of John of Salisbury, who acted as secretary or chancellor to Arch- 
 bishop Theobald from 1140 or to 1161, that such suits during the 
 whole of Stephen's reign were tried in spiritual courts and very 
 frequently with appeal to Eome. I infer from this that so far as 
 suits of church property are concerned the Act of the Conqueror 
 did not draw a certain permanent and conclusive line. 
 
 Thirdly, look at the three heads that we marked out for 
 particular comment, Law, Jurisdiction, Procedure. The edict 
 instituted no new laws, bat recognised the episcopales leges and 
 jura canonum. The want of authoritative books of these laws and 
 canons was supplied first by Burchard, whose book was well known 
 in England, as is evident from the large quotations from it in the 
 so-called laws of Henry I., then by Ivo of Chartres, who was at work 
 on his Panormia at this very time : then by Graham and the later 
 decretalists. But this canon law was never regarded as a binding 
 statutory law in England ; the study of it was regarded as a 
 scientific preparation for office, but not as an absolute code to be 
 followed, and to the present day only such parts of it as are 
 received by the English church and nation and are not opposed to 
 the statute law are regarded as influencing the judgment of the 
 courts. 
 
 Then as to jurisdiction ; this edict recognises the jurisdiction of 
 the bishops and the executive if not judicial functions of arch- 
 deacons : it does not result in the foundation of a new system of 
 courts ; but as it certainly had one effect in multiplying ecclesiastical 
 suits and putting the spiritual judges on their mettle, it had the 
 effect of increasing the number of archdeacons. Hitherto one arch- 
 deacon had been enough for one bishop. The Norman bishops with 
 
 H
 
 98 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 the increase of their work increased their administrative staff and 
 broke up their dioceses into numerous archdeaconries and also 
 deaneries ; both subdivisions acquiring by custom either jurisdiction 
 or judicial functions of an executive kind. 
 
 And lastly as to procedure. There can be little doubt that to this 
 period we should refer the introduction of such parts of the Roman 
 civil law procedure as were at work in the continental churches ; 
 based just now on the Theodosian Code and customary methods of 
 the courts, but shortly after the rediscovery of the Pandects and the 
 revived study of the Corpus Juris of Justinian to be reformed 
 according to stricter and more developed uniform usage which 
 constitutes the Catholic ecclesiastical procedure throughout the 
 middle ages. 
 
 The importance of the reign of the Conqueror in its bearing on 
 the church history of England is so very great that I shall not 
 apologise for inflicting upon you another lecture on the subject. 
 Not that I need defend myself under the circumstances at all ; for 
 during the age on which we are at work, though the church law may 
 not be the whole of the national law, the church history is nine- 
 tenths of the national history. Witness the action of Anselm in the 
 reign of Henry I., and of Becket in the reign of Henry II. Much of 
 the constitutional history is new, as we understand it, a great 
 superinduction of new elements that have to be forced into union 
 with the old ; the reigning classes are new and alien, and much of 
 their political programme is new also. In the church history there 
 is likewise some considerable infusion of new elements, but there is 
 a much greater preponderance of the old ; the ecclesiastical fabric is 
 not nearly so much modified as the civil, and the ecclesiastical 
 population; so to speak, is more permanently and continuously 
 English than the baronial or the landowning classes of the twelfth 
 century in England. We have not to go far to look for a text f^r 
 another discourse. In my last lecture we confined ourselves entirely 
 to the domestic exercise of ecclesiastical jurisdiction: we have in 
 the political relations of church and king a subject more interest- 
 ing perhaps and better illustrated ; and we find a very good sum- 
 mary of the points that define it in the words of Eadmer at p. 82 
 of the ' Select Charters.' I propose to make them the basis of a 
 short examination of the more general relations of church and state 
 at this time ; adding in other points of kindred interest under each 
 head. 
 
 The first of the new principles which, according to this very 
 trustworthy writer, William imported into the English system was 
 this : he would not suffer anyone settled in the whole of his 
 iominions to receive as apostolic pope the bishop of Borne unless
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 99 
 
 at his command, or to receive letters of the pope on any account if 
 they had not been previously shown to him. In this first head you 
 see you have two points : first, the right of the king of England to 
 refuse recognition to a claimant of the papacy ; secondly, his right to 
 forbid the reception of letters from the apostolic see. Take them 
 in that order. As you probably are aware, England had before the 
 Conquest troubled herself very little about the pope ; the nation 
 professed itself truly catholic and faithful to the mother see, paid its 
 Romescot and sent its archbishops to receive their palls from the 
 pope, but certainly did not inquire much into the rights or wrongs 
 of disputed elections to the chair of St. Peter ; probably any 
 Englishman who went to Eome would have been content to 
 recognise as pope anyone who had told him that he was so. There 
 had been more intercourse since the days of Edgar, but the relation 
 was not one of supreme authority and abject dependence, but of very 
 devout profession and very slight practical interest. Dunstan had 
 refused to allow the marriage of a nobleman who had obtained leave 
 at Rome to marry within the prohibited degrees ; Elfric had in his 
 homilies enunciated a doctrinal statement on the Holy Eucharist 
 that was a good way behind the fully developed view of the Roman 
 theologians ; Canute had patronised the pope rather than been 
 patronised by him, and Edward the Confessor's relations with him 
 had been rather those of a devout recluse than of the king of a great 
 nation. In truth in Edward's time the less England saw of the 
 papacy the better it was for the papacy and the national belief in its 
 authority, for matters at Rome were at a very low ebb ; and those 
 who went there came back as a rule well shorn. 
 
 During Edward's reign of twenty-four years there were seven 
 popes and certainly not less than three antipopes ; the pope who was 
 reigning at the beginning of his reign was Benedict IX., who, after 
 three times reaching the dignity and three times losing it, died in 
 1048. The pope who was reigning at the end of it was Alexander II., 
 who took a lively interest in the acquisition of England by the 
 Conqueror, and who acted, as his predecessor had done, very greatly 
 on the advice of Hildebrand, who succeeded him as Gregory VII., 
 to have a long and fatal struggle with Clement III. as antipope. 
 Edward had not been much troubled about the state of the holy 
 city; but Stigand, his archbishop, had, most unfortunately for 
 himself, accepted his pall from Rome at a time when the see was 
 occupied by the antipope Benedict, and by doing so, and not readjust- 
 ing his position when a more constitutional pope was appointed, 
 had incurred a stain of schism or schismatic irregularity of which 
 the Norman party in 1070, strengthened by the presence of a legate 
 of Alexander II., made use to procure his deposition. It was 
 
 h2
 
 100 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 probably with relation to the events of 1080, when as Clement III. 
 Guibert of Ravenna usurped the papal throne under the influence of 
 Henry IV., that William found it advisable to lay down this principle, 
 for this was the only occasion on which an antipope arose during 
 his reign ; but he seems to have foreseen the importance of the 
 point, which was perhaps more prominent in the reign of his sons, 
 unless the fact be that Eadmer, who wrote under the impression 
 made by the investiture controversy, has antedated a claim which 
 more properly belongs to William Eufus or Henry I. However that 
 may have been, you will observe the importance of the point, not 
 merely as affecting the royal prerogative, but the political position 
 within and without England of the king himself. 
 
 In the first place we have to consider that by accepting the pall 
 from the popes the archbishops of Canterbury and York recognised 
 a dependence on the apostolic see of the closest kind. Whatever 
 may have been the original meaning of the gift, a complimentary 
 offering or an act of honorary recognition, it had long before the 
 Conquest become the type of metropolitan authority, and the recep- 
 tion of it by the archbishops a sort of spiritual investiture with the 
 plenitude of metropolitical jurisdiction. Down to the time of the 
 Reformation no archbishop before he received his pall ventured to 
 perform acts of metropolitical authority such as the consecration of 
 bishops and the like : and there were, besides the customary meaning 
 of the emblem, oaths and promises of obedience to the giver which, 
 although they varied from time to time, were very stringent, binding 
 the archbishop to fealty and other obligations that might not 
 improbably run counter to his obligations to the king. 
 
 Next you have to consider that the archbishops, especially the 
 archbishop of Canterbury, were the first subjects of the realm, the 
 first peers of parliament as they have been the first members of the 
 witenagemot, and the most eminent members of the royal council. 
 If, then, the king were to allow the archbishops to enter into the 
 close relation that I have described with a pope who was linked 
 with his enemies, or who was supported by the powers that were 
 antagonistic if not overtly hostile to England, he would have an 
 enemy in the very inmost circle of his court, council, and parliament. 
 Nor would his difficulties be confined to internal administration. 
 The whole network of European politics was closely interwoven 
 with papal and ecclesiastical administration ; the ambassadors, the 
 international lawyers, were mostly bishops or clerks, and the court 
 of Rome was the tribunal of international arbitration. 
 
 It is worth while to run briefly through the several cases of 
 disputed elections and schisms at Rome in order to see what effect 
 they really had on the policy of the kings. I have mentioned the
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 101 
 
 schism of Guibert of Ravenna, which began with his election in 
 1080 and lasted more or less until his death in 1100. Guibert was 
 never recognised as pope by France or England ; but when, during 
 the vacancy in the orthodox papacy on the death of Victor III., the 
 antipope held possession of Rome or great part of it, and Urban II., 
 who was elected in 1088, was, through a great part of his reign, in 
 a very dubious position of authority, the question became prac- 
 tical. There was nothing in William Rufus's character to make him 
 prefer a good pope to a bad one, but there was something that made 
 him very angry when Anselm on his promotion to Canterbury took 
 upon himself to take it for granted that Urban II. was the true pope. 
 In that case — and it is the first — you see not so much the importance 
 of the matter itself as the use which would be made of it. 
 
 Well, going on, the next important schism is that of 1130, when 
 Anacletus II. and Innocent II. were the rival popes. Henry I. was 
 then king, and he no more than William Ruf us was likely to allow the 
 English church to be committed to a party in Europe that might 
 play into the hands of a rival politician. He was, however, early 
 persuaded by S. Bernard to recognise Innocent II., and the recogni- 
 tion of Anacletus was never within measurable distance in England ; 
 but in Scotland it was not only possible but probable, although not 
 perhaps so long as Henry I. lived and directed more or less the policy 
 of his brother-in-law, King David. But when in 1138 England 
 and Scotland were at war, Richard of Hexham, the historian of the 
 battle of the Standard, distinctly accuses the Scots of favouring the 
 antipope, and even if this is not true it is singularly curious as a 
 forecast of what really happened in the later schisms when England 
 recognised one pope and Scotland with France the other. 
 
 Next we come to the schism of 1159, when Alexander III. was 
 opposed by antipopes in succession lasting until 1176, when by the 
 peace of Venice he reconciled himself with Frederick Barbarossa and 
 his other opponents, and brought about a most important, almost 
 universal European peace. Coincident with that schism was the 
 great struggle in England between Henry II. and Becket. During 
 this struggle, Lewis VII., the most earnest supporter of Alexander III., 
 was also the most zealous supporter of Becket, and Henry II. was 
 more or less in alliance with Frederick Barbarossa. There were many 
 of Henry's advisers who would gladly have brought him over to the 
 side of the antipope ; and indeed, in 1165, in the council of Wurzburg, 
 it was confidently asserted by Becket's supporters that the king's 
 agents had committed him to the cause of the antipope. But if he 
 then advanced a single step towards it, he must instantly have drawn 
 back. He was too great a politician not to see how the struggle 
 between the pope and the emperor must end ; his son-in-law, Henry
 
 102 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 of Saxony, was hereditarily the champion of the orthodox papacy, 
 and Alexander III., by his lukewarmness in support of Becket, did 
 his best to avert the possibility of a rupture. But the crisis is a 
 curious one ; any real support given by Henry to the emperor must 
 have decided the quarrel for the time against the pope, and Henry 
 would have won the victory over Becket and all his supporters ; but 
 he looked further and saw that it would not do. Neither, we must 
 remember, were France and Germany just then, although on different 
 sides of the papal contest, hostile on other grounds ; so far the 
 Hohenstaufen interest had not come, as it did later, into com- 
 petition with that of the French dynasty. 
 
 Well, we pass on over a long time before we come to another 
 real schism ; and when we do, it affects England only slightly. I 
 mean the crisis on the election of Lewis of Bavaria to the empire 
 and the setting up of Peter of Corvara as antipope to John XXII. 
 If that quarrel had fallen a few years earlier or a few years later, it 
 might have drawn in England. Either Edward I. or Edward III. 
 might have been committed. But it really fell within the reign of 
 Edward II. and that part of Edward III.'s reign in which he was on 
 the best terms with France. If it had happened that Lewis of 
 Bavaria had had his great struggle with John XXII. when England 
 was at war with France, we might have antedated the Reformation 
 of the sixteenth century by 200 years. Among Lewis's supporters 
 were not only the great English schoolman, Ockham, but Marsilius 
 of Padua, the philosophic constitutionalist whose conclusions as to 
 the relations between church and state were largely taken up by 
 Cromwell and other reforming ministers of Henry VIII. ; Edward 
 was, moreover, brother-in-law to Lewis, and in the beginning of his 
 long war with France was commissioned by him as vicar of the 
 empire on this side of the Rhine. But, whether fortunately or not, 
 the religious storm was over before the Hundred Years' War began. 
 Still we find Charles IV. the pope's Caesar at the battle of Crecy, 
 where his father fell, and the echoes of his earlier controversy are 
 again and again heard in following years. 
 
 In the year 1378 the great schism of the West began under 
 Urban VI. and Robert of Geneva or Clement VII., the popes at 
 Rome and at Avignon. This is a good illustration of the Conqueror's 
 doctrine becoming practical. Richard II. was then king, and he 
 was a child ; but the parliament of England took on itself to recog- 
 nise Urban VI., and not only to recognise him but to arm a crusade 
 on his behalf under Henry le Despenser, the warlike bishop of 
 Norwich. Urban was recognised by England, Spain, Germany, and 
 Italy ; Clement by France and her allied and dependent states. 
 Scotland and France were, as usual, thorns in the side of England,
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 103 
 
 and the religious element added no small colour to the rivalry. The 
 popes were made to earn the support of the factions that sustained 
 them, often one would imagine with some diminution of their self- 
 respect. In 1388 Urban VI., at the application of the lords appel- 
 lant, translated Archbishop Neville of York, one of the deposed 
 ministers of Richard II., to the see of S. Andrews, which, being 
 within the kingdom of Scotland and recognising the rival pope, was 
 pretty much on the level of a bishopric in partibus infidelium. Ten 
 years later Pope Boniface IX. in the same way, on the request of the 
 king, translated Archbishop Arundel to S. Andrews in the same 
 summary fashion. 
 
 The later history of the schism, although interesting, does not 
 very much affect the point before us, but it is worth while noting 
 the share taken by England at the council of Constance by Henry V. 
 and the Emperor Sigismund in the election of Pope Martin V., and 
 the labours of Henry VI. iD connection with the council of Basel, 
 into all of which, in a more or less remote degree, the royal right to 
 recognise the legitimate successor of S. Peter enters. I need not 
 pursue the subject further. We all know that practically the 
 importance historically of the right came to an end when in 1534 
 the church, at the king's solicitation, declared that the pope has by 
 the word of God no greater authority in the realm of England than 
 any other foreign bishop. 
 
 We will now proceed to the second clause. ' The king did not 
 permit the primate of his kingdom, that is to say the archbishop 
 of Canterbury, if he assembled and presided over a council general 
 of bishops, to enact or forbid anything, except what was agreeable 
 to his will and had been previously ordained by him.'' In connection 
 with this point the same question arises as we mentioned in regard 
 to the first clause. It does seem possible that the writer antedated 
 a difficulty which really arose in the reign of William Rufus and 
 Henry I. ; for we have no information which makes it even 
 probable that the Conqueror had any such understanding or mis- 
 understanding with his great friend and minister Lanfranc, while 
 we know that this, like the last, was a point at issue between William 
 Rufus and Anselm. The explanation would of course be that when 
 William Rufus or Anselm asserted the right to stay or control 
 ecclesiastical legislation, he would most likely refer for a precedent 
 or authority to the practice of his father, and that which the father 
 might have done became historically ascribed to him by this 
 citation on the part of his son. Of course it is possible that there 
 were episodes in the Conqueror's ecclesiastical regime of which we 
 have no record. Well, the right of the archbishop to legislate in 
 council, and the claim of the king to restrict the exercise of it, or to
 
 104 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 deprive it of all effect, were two conflicting elements which certainly 
 affected English history for two centuries from this time ; and then, 
 after two centuries and a half of slumber, woke into importance 
 again in the days of the Reformation. And this is a second point 
 on which the Reformation lawyers may have looked back for a prece- 
 dent to the days of Eadmer. 
 
 Well, the rule thus formulated was not only enforced but 
 exceeded by William Rufus, who never allowed the holding of a 
 council once during the thirteen years of his reign. Henry I. acted 
 with more moderation : in 1102 Anselm was allowed to hold an 
 ecclesiastical council coincidently with the king's council or 
 witenagernot ; and again in 1107, although a stormy period had 
 intervened, the assembly of prelates, in which the question of 
 episcopal homage was settled, was held in the king's palace and 
 presence, as was that of 1108, in which reform was instituted as to 
 the manners and character of the clergy. The best instance, how- 
 ever, of Henry's policy on the subject is that of the year 1127 or 
 1128, in relation to which the king issued a straightforward edict of 
 confirmation : ' Know ye that by my royal authority and power 
 I concede and confirm the statutes of the council celebrated by 
 William, archbishop of Canterbury, and legate of the Holy Roman 
 Church at Westminster, and what was there forbidden I forbid. So 
 if any shall have been a violator or contemner of these decrees, if 
 he shall not have humbly satisfied ecclesiastical discipline, let him 
 know that he must be heavily coerced by the royal power because he 
 has presumed to resist the Divine disposition.' In this the king, 
 I think, duly recognises the proper principle on which alone a free 
 church can exist in a free state ; or an independent church in an 
 independent state. The initiative comes from the church, the 
 executive is regulated by the crown. The crown has a veto on 
 ecclesiastical legislation, but does not originate it. However, on 
 that hangs a whole world of controverted questions. 
 
 Under Stephen the hold which the king had on the church was 
 weakened ; there were two parties within the ecclesiastical body, with 
 both of which he managed to quarrel, so that practically he was 
 unable on the one side and unwilling on the other to interfere much 
 with church councils. It was a church council, held by his brother 
 Henry during his imprisonment, which elected the Empress Matilda 
 lady of the English, and a church council which refused to 
 recognise his son Eustace as heir apparent to the crown. But both 
 these councils were mixed in their actual ingredients, and really 
 acted rather as parliaments than as congregations. Stephen, in 
 the latter part of his reign, acting on a similar right, forbade Arch- 
 bishop Theobald to attend the council held by Eugenius III. at
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 105 
 
 Kheims, but Theobald went in spite of him, and, although there 
 were threats of outlawry and actual sentences of interdict, neither 
 party was strong enough to claim a distinct victory, and the quarrel 
 was settled as between equals and by reconciliation, not by legal 
 sentence. I will not connect this particular point with the vexed 
 questions of state at issue between Henry II. and Becket, for it did 
 not directly enter into them. Becket did not attempt to hold a 
 formal council of bishops during the short period of his authority, 
 except for the most formal business, certainly not to enact canons. 
 After Becket's death his successors held their assemblies with the 
 king's co-operation, and in some cases in his presence. Under 
 Richard, whose ministers were great ecclesiastics, no question arose 
 as in the early days of John, although on one occasion we find 
 Archbishop Hubert Walter forbidden by the justiciar to hold a 
 general council ; but as soon as John's troubles begin this point 
 emerges, and from the year 1207, when we find him issuing a 
 prohibition to the council at S. Albans, forbidding the bishops to 
 venture on any unauthorised proceeding, there is a string of similar 
 interferences reaching down until the end, or near the end, of the 
 reign of Edward I. These inhibitions were not uncalled for ; for 
 some of the archbishops had set themselves determinately the task 
 of increasing the area and pressure of ecclesiastical jurisdiction and 
 of resisting interference from the royal courts, even in matters of 
 the most secular character ; for example, they not only extended 
 their claims to jurisdiction about tithes and advowsons, but directed 
 the issue of sentences against the king's officers whenever they 
 interfered with ecclesiastical procedure, and attempted in every way 
 to defeat the prohibitions issued by the temporal courts to keep the 
 courts Christian within the lines of their own jurisdiction. Some 
 of them went further, Archbishop Peckham even so far as to order 
 the republication of Magna Carta on church doors without leave of 
 the king, and so attempted to get up a constitutional outcry against 
 Edward I. during the most important legislative portion of his reign. 
 In this the king got the better, for he not only persisted in issuing 
 orders to the prelates not to make statutes or constitutions in dis- 
 paragement of national law and royal right, but he compelled the 
 enterprising primate to retract and annul some of the constitutions 
 which he had made. However, after the close of this struggle, and 
 especially after the king had yielded to the clergy the right of voting 
 their taxes in their own convocations, an occasional expression of 
 discontent in parliament is all that we hear of the matter. 
 
 The parliaments of Edward III. once or twice petition that the 
 ordinances of the clergy in convocation may not be allowed to 
 prejudice the rights of the laity, but no peremptory inhibition is
 
 106 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 
 
 issued, nor does any conflict occur. In the prospect of such a con- 
 flict it was that in 1532 Henry VIII. obtained from the clergy in 
 their act of submission the undertaking that the convocations 
 should never henceforth make or attempt to enforce canons without 
 royal licence : a principle which has been acted upon, under circum- 
 stances sufficiently altered, and with various degrees of fairness, to 
 the present day, when some such power of ecclesiastical legislation 
 seems, under the conditions of a parliament largely consisting of 
 men opposed to the discipline of the historic church, to be loudly 
 called for. 
 
 The third clause of this latter formula requires no lengthy 
 exposition : William I. did not permit leave to be given to any of the 
 bishops to compel and prevent, to excommunicate or subject to 
 the punishment of ecclesiastical discipline any of his barons or his 
 servants, even if he were defamed for adultery, incest, or any 
 capital crime, unless by his injunction. This seems a hard saying, 
 but if you look at it closely you will see that it was almost a 
 necessity of the times : in Germany and France, by the excom- 
 munication of the kings, the realm had been thrown into extreme 
 confusion, and although the Conqueror was not himself a man 
 likely to be excommunicated, he knew that the penalties of 
 excommunication extended not only to the inculpated person but to 
 all who held converse with him, while among his courtiers, unless 
 there was a very sudden outbreak of vice under William Rufus, we 
 must needs suppose that there were many who must have deserved 
 the extreme sentence. However this may have been, you will 
 observe how great a danger a king might stand in of becoming 
 excommunicated and losing some part of his claim on the allegiance 
 of his people, especially after the acceptance of the Hildebrandine 
 theory of church and state, almost by accident. 
 
 Well, the practical importance of this point comes into stronger 
 relief later, for one of the Constitutions of Clarendon, the 7th, 
 formally enacts and extends the operation of the principle, which 
 is made to apply there to the lands as well as to the persons of the 
 tenants in chief and ministers of the king. Becket, it is true, 
 contemned it, and attempted by excommunicating from his French 
 place of refuge the chief members of the curia of Henry II. to reduce 
 his master, by a side blow, to the position of an excommunicated 
 person ; later on you may remember how carefully Archbishop 
 Winchelsey, by excommunicating Piers Gaveston in the event of 
 his return from exile, tried to shut out the possibility of the king 
 receiving him, and how Edward II. had to fortify himself with bulls 
 of absolution before he ventured to welcome his friend on his 
 return. The solemn excommunications in genere, that is without
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 107 
 
 naming the persons to whom the sentence was intended immediately 
 to apply, which were issued against all persons who should infringe 
 the charters, under the provisions of the council of Oxford held by 
 Langton and at other dates in the reign of Henry, show how, even 
 when wrapped, so to speak, in olive branches, the sword of the 
 spiritual sentence was brandished against a king and a court that 
 could not be trusted. 
 
 There are some other points of ecclesiastical administration, 
 besides those of which I have already spoken, which have great 
 prospective importance ; in particular the check on the reception of 
 Eoman legations and bulls or other letters from Rome, and the check- 
 ing of appeals, or refusing permission to would-be appellants to leave 
 the country ; but these, I think, may be better connected with a 
 later period of our legal history, and I may have more to say of them 
 when we come to the reign of Henry I. I may, however, add that 
 although Lanfranc had letters from the pope in which he was 
 empowered to exercise the vices meas, the impassible papal powers, 
 he is not therefore styled legate ; while Anselm had to resist the 
 mission of the archbishop of Vienne as an infringement of his 
 privileges. Under the next primate, Ralph, the crown interfered to 
 prevent the right of the primate from being infringed ; and his 
 successor, William of Corbeuil, himself, by way of closing the 
 difficulty, sought and obtained for himself the commission of legate. 
 This measure, which, with some few intermissions, from that date to 
 the Reformation united the ordinary powers of the primate with the 
 extraordinary powers of a legate, confused the view of the eccle- 
 siastical constitution in a very unfortunate way, and indeed made 
 comparatively easy the breakdown of the spiritual authority of the 
 archbishop at the Reformation. But on this point it is scarcely 
 necessary now to enlarge. 
 
 I have said and written so much about Henry I. that I shall not 
 on this occasion spend your time in repeating general remarks 
 on the history of his reign ; and as the first document of the 
 reign is the charter which we generally know as his coronation 
 charter, a document which, owing to its relation to Magna Carta, 
 may be looked upon as one of the most elementary parts 
 of our constitutional study, I shall not go into the minute 
 detail upon it which I have given to the examination of the 
 less well known legislation of William the Conqueror. It is 
 the first of our charters of liberties, not a recognition of existing 
 rights, but a grant or bestowal of rights on the motive of regard to 
 God and love of all his faithful people. Yet this high and mighty 
 beneficence is mainly an acknowledgment that England had been 
 wrongly and unjustly treated by William Rufus, and an undertaking
 
 108 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 that it should be so no more. The church had been enslaved, it 
 was to be made free ; the customs had been bad, they were to be 
 put away ; the exactions had been unjust and the kingdom oppressed, 
 the exactions were to be regulated and adjusted, and the kingdom 
 was to be relieved and kept in peace. It was to be done by the 
 solemn will of the king, now by the mercy of God and the common 
 council of the barons of the whole realm crowned king in his 
 brother's place. Although it is a confession of wrongs and a 
 concession of rights, it has a very sovereign tone about it, as if it 
 were a mere matter of the king's grace and favour to do the rights 
 and undo the wrongs : I make the church free, although on every 
 principle of religion of the time the church had a full right to 
 freedom ; I restore the law of King Edward, although the law 
 of King Edward had never been withdrawn or suspended. It all 
 reads as the outcome of a royal omnipotence which was free to give 
 or withhold ; the counsel and consent of the barons had been given 
 to the coronation, and are alleged as countenancing or warranting 
 certain clauses of the charter, but they do not, as both before and 
 later, enter into the motive clause or take their place between the 
 respect for God and the love of the people which induce the despot 
 to make these welcome alleviations. 
 
 But while we wonder that Henry, who at the moment of his 
 coronation certainly needed all the help that he could get from all 
 classes of the nation, and who might, we think, and would most 
 naturally have availed himself of every opportunity of posing as the 
 national king and countryman of the English people, did not use 
 the old form to which even his father bad condescended, and seem 
 to legislate with the advice and consent of his wisemen, it is of 
 little use to pry too critically into the reasons of an omission which, 
 after all, may be accidental. It may have been thought needless, 
 after stating that it was by common consent that he was crowned, 
 to repeat that by common consent he was going to legislate ; and 
 perhaps the mention of the regard for Almighty God and of the 
 king's love towards his people has the effect of making the charter 
 more of a personal act, more individually stringent and binding on 
 the royal conscience ; as if he would say, ' I am making no new law ; 
 I could if I would with the advice of my wisemen, but I am undoing 
 wrong, I am emancipating myself without law from the unrighteous 
 ways with which my brother encompassed his royalty ; of love of 
 God and man I by myself put away the injustice.' You may 
 remember in relation with this how Henry III. makes a personal 
 matter in the same way of his confirmation of the Great Charter in 
 1225, when he substitutes spontanea et bona voluntate mea for the 
 consilio of the earlier issues, as if willing either to assert a more
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 109 
 
 distinctly sovereign right or to put himself under a more distinctly 
 personal obligation. 
 
 However, we will let that be, and run through the text, and 
 note the less obvious peculiarities of the document before us. 
 The first clause concerns the liberties of the church, which, as 
 you may remember, in the several collections of the Conqueror's 
 articles of legislation, as well as in the elder Anglo-Saxon laws and 
 the later petitions of parliament, has the prerogative place : it is in- 
 structive to note, however, what the king does not give, as well as 
 what he gives. ' In the first place I make God's holy church free,' 
 as free as it was in King Edward's time, when the churches, 
 at least in theory, chose their own bishops. No ; the time has 
 not come for that concession, if it ever is to come. Nor is any- 
 thing said about the church's own courts or immunities from taxa- 
 tion or freedom to legislate. Much may be implied, but the specified 
 relief given is the one that has been felt to be the burning question 
 between king and bishops in the last reign : ' I make the church free, 
 that is that I will neither sell nor let to farm ; nor when an arch- 
 bishop, bishop, or abbot is dead will I take anything of the demesne 
 of the church or of its vassals until the successor shall enter upon 
 it.' Here is a renunciation of simony, I suppose, ' I will not sell,' 
 and of the royal right to delay the election of a prelate in order to 
 lay hands on the profits of the see during vacancy, ' nor will I let to 
 farm ; ' and a renunciation of the right of seizing the property of 
 the church and demanding extraordinary services from its vassals 
 during the vacancy : until the successor is appointed nothing shall 
 be taken. 
 
 Well, we may say, so much the worse for the successor, for how- 
 ever he comes in, the king has not bound himself to show any mercy 
 to him — not less than William Ruf us will Henry expect a handsome 
 douceur from a newly appointed prelate, or it will be worse for him. 
 The importance of the boon, if we consider that the investiture 
 controversy was not yet fougbt out, does not appear very great ; at 
 all events it requires to be supplemented with some substantial 
 additions. We know, looking on, that as a part of the reconciliation 
 scheme of 1107 a show of canonical election was restored to the 
 churches ; that the elections were made by the chapters in the king's 
 chapel before the king or the justiciar as his representative ; that 
 the canonical right of election was in a way recognised by Stephen 
 in his charter of 1136 ; but that the old system of compromise 
 between nomination and election was really maintained as the 
 rule until in 1214 John, in order to detach the bishops from the 
 barons, granted in full the claim of free election, which, whatever 
 it was worth, continued to be the law of the church until, first by
 
 110 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 the popes and after them by the reforming kings, it was snatched 
 out of the hands that were too weak to hold it independently and fairly. 
 
 There are some other points touching ecclesiastical liberties 
 which are more fully stated in Stephen's charter, and which throw 
 light on the scantiness of the interpretation of the present grant, 
 especially the corresponding clause : ' I promise that I will do or 
 permit nothing simoniacal in the church or things ecclesiastical ; ' 
 that, I think, would prove that vendam in this article does not mean 
 alienation, but simoniacal sale. But this and the other points will 
 recur when we come to the Act of Stephen, and we may pass on 
 now. ' All the evil customs with which the kingdom of England 
 was unjustly oppressed I take away from it, which evil customs I 
 here in part rehearse.' Then follow 13 articles, some of which 
 are descriptive of evil customs and some not. For instance, clauses 
 12, 13, and 14 have no direct relation to the misgovernment of the 
 late reign, although the boons which they convey may and probably 
 were suspended by William Eufus. Clauses 6 and 9 are acts of 
 amnesty, the remission of the debts due to William Rufus, and the 
 murder fines still due at the king's accession ; clause 10 is not a 
 boon, but the announcement that such a boon is not to be given, 
 unless we are to suppose, what we are not expressly told, that the 
 king renounced forest encroachments which William Rufus had added 
 to the inclosures made by his father ; and clause 1 1 is put as a new 
 and spontaneous gift of the king himself to the tenants by knight 
 service, which has no relation to anything granted or withheld by 
 the tyrant whose evil customs are abolished. This reduces the 
 express renunciation of evil customs to those clauses which have the 
 negative form, non redimet, defendo, non dabo, defendo, non dabit, 
 that is articles 2, 3, 4, 5, 8, to which we may add clause 7 as by im- 
 plication abolishing a persistent abuse. 
 
 Now let us construe 2 : ' If any of my barons, earls, or others 
 who hold of me, die, his heir shall not redeem his land as he did in 
 the time of my brother, but he shall relieve it by a just and lawful 
 relief ; and likewise the vassals of my barons shall relieve their lands 
 of their lords, by a just and lawful relief.' No doubt the substitution 
 of a just and lawful relief for a vexatious and exorbitant ransom was 
 a great boon ; but who was to be the judge of what the just and 
 lawful relief should be, the payer or the crown ? It would have been 
 a much greater and more trustworthy amendment of evil practice if 
 the king would have established an exact tariff. But it was not yet 
 the time for that ; rather we must be thankful for the appended 
 clause, that the arrikre vassals should have at the hands of their 
 lords exactly the same sort of benefit that their lords now took by 
 the gift of the king. What the evil custom was we see : William
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 111 
 
 Rufus and his precious minister had exacted from the heir of the 
 dead baron such a great payment for permission to enter on his in- 
 heritance as really amounted to a redemptio, a repurchase of the 
 estate. Henceforth the payment required should be just and propor- 
 tionate. Where did this doctrine of relief come from ? We saw in 
 the laws of the Conqueror a relevatio answering to the Anglo-Saxon 
 heriot, and in Anglo-Saxon form. The relief of the baron is four 
 horses, two saddled and bridled, and two suits of arms ; the relief 
 of the earl was double the relief of the vavassor, either a simple 
 heriot or 100 shillings composition ; and the relief of the villein 
 his best ox or horse. Whence, then, comes this new sort of relief, 
 which may amount to a full ransom ? 1 think from William Rufus 
 and Flambard. And what becomes of it ? Well, we know from the 
 ' Dialogus de Scaccario ' that in the reign of Henry II. the relief of the 
 baron remained a matter of composition between the crown and 
 the payer, but the relief of the inferior vassal was 100 shillings on the 
 knight's fee (' Select Charters,' p. 243). Still, in regis beneplacito est, 
 in the case of barony, qua debeat esse summa relevii. Nor was it 
 altered until by the second clause of the Great Charter of 1215 a relief 
 of £100 was fixed as the sum due on this account from earls and barons. 
 A subsequent reading of the time of Edward I. placed earl, baron, 
 and knight in this particular in the relation of pound, mark, and 
 shilling. 
 
 The next evil custom renounced in clause 3 concerns the right 
 of maritagium, also new, or at all events non-apparent among the 
 articles of the Conqueror's legislation. ' If any of my barons or 
 other of my vassals wish to give his daughter in marriage, or his 
 sister or niece or kinswoman, he may speak with me thereon ; but 
 I will neither take anything of his for this licence, nor will I forbid 
 him to give her to whom he pleases except to an enemy of mine. 
 And if on the death of a baron or other my vassal his heir be a 
 daughter, I will give her with her land by the advice of my barons. 
 And if, the husband being dead, his wife survives and be without 
 children, she shall have her dower and marriage, and I will not give 
 her to a husband except according to her will.' This again is new — 
 the Conqueror had not left behind him a word on the subject ; nay, 
 I believe a good deal of it is almost peculiar to England. It came 
 from William Rufus, and we infer from the words in what shape. 
 He must have taken fines for licence for his great lords to give their 
 daughters in marriage ; he must have forbidden them to marry them 
 to whom they would ; just as the lord of the manor long after this 
 took a fine on the marriage of a daughter of a villein, so the king has 
 been used to treat his great lords as villeins, and so much the worse 
 for their dependants.
 
 112 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 
 
 But the 4th clause concerns the same point : ' But if the wife 
 survives with children she shall have indeed her dower and her 
 marriage so long as she keeps chaste, and I will not give her to a 
 husband except according to her will. And of the lands and children 
 the guardian shall be either the wife or another of the relations who 
 has greater right to be. And I enjoin that my barons shall behave 
 with like moderation towards the sons and daughters and wives of 
 their dependants.' There again you have the noble redeeming feature 
 of the whole of this royal grant, that the poorer men shall enjoy 
 every right at the hands of their lords that their lords enjoy at the 
 hands of the king. I need hardly remind you to compare these 
 clauses with clauses 6, 7, 8 of the Great Charter of John. This 
 royal right of interfering with and making profit by the marriage 
 and wardship of tenants in chief was a very tiresome and a very 
 long-lived piece of prerogative, and its historical importance is very 
 great. The disparagement of heiresses by unequal marriages, that 
 is the use of them to enrich a new rising man or favourite minister 
 at court, or the delay of their marriage in order to gather in the profits 
 of minority, was a great subject of complaint under Henry II., whose 
 enemies accused him of giving away noble ladies to the grooms of 
 the court. I do not suppose that Henry literally did anything of the 
 kind ; every unpopular novus homo was spoken of as a groom or a 
 lackey, just as Carlyle would have spoken of a flunkey or Thackeray 
 of a snob ; and it takes a great deal of sympathetic flunkeyism or 
 snobbery to distinguish those disagreeable characteristics in the 
 majority of mankind. But there is little doubt that it was a dan- 
 gerous policy. The marriage of Piers Gaveston with one of the 
 Gloucester heiresses was a great cause of his misfortunes, although 
 she was not what we should call an heiress until after his death, 
 her brother surviving him for two years. The marriage of Hugh 
 le Despenser was likewise regarded as a disparagement, and the cry 
 was no doubt a convenient one for a malcontent aristocracy, as the 
 practice was a convenient one for a king who dared not take the lands 
 of the heiress to himself, and did not wish that it should fall into the 
 hands of a foe or a possible foe. Well, the Court of Wards and 
 Liveries, as we know, lived a long life, not becoming extinct until 
 Charles II. at the Restoration surrendered the remnants of the feudal 
 income and feudal exactions of his predecessors. 
 
 The next article introduces us to some comparatively new matter. 
 ' 5. The monetagium commune, the common mintage which was 
 taken through the cities and counties, which was not in the time of 
 King Edward, that I forbid to be taken from henceforth. If anyone 
 be taken with false money, be he moneyer or other, right justice 
 shall be done upon him.' The early history of the coinage is, com-
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 113 
 
 paratively speaking, obscured rather by the great unlikeness to our 
 present system than by any difficulty existing on the subject. In 
 the Anglo-Saxon reigns we know that the right of coining silver was 
 a royal right shared by the two archbishops and some of the bishops 
 who had ancient privilege or prescription. But it was exercised 
 by a class of persons called moneyers, who received their stamps, 
 punches, or wedges from London, and having paid handsomely for 
 them made as much profit as they could on the metal which they 
 impressed with the king's mark. The towns in which these moneyers 
 were allowed to exercise their functions were fixed by list in the 
 time of Athelstan. Each king exercised the power of altering the 
 coinage, monetam mutare, the calling in of the worn-out silver, 
 and on proportionate payment impressing it with the new stamp. 
 All this seems clear, but it is not quite so clear what is the 
 meaning of monetagium in the text of the law. The explana- 
 tion is that a heavy sum was charged by the crown through 
 or by the moneyers when the coinage was altered ; that may 
 have been very likely done, and the explanation would accord 
 well enough with the rest of the article, which seems to be dealing 
 with the technicalities of the coinage, and especially with the offence 
 of falsifying the coin. 
 
 It so happens that among the few other relics of Henry's legis- 
 lation which are extant we have a complete edict on the subject of 
 the coinage, preserved in the Liber Ruber of the Exchequer, and like 
 the edict for the holding of the county courts addressed to the sheriff 
 and thanes of Worcestershire. That it was a very important Act 
 in the view of the time is clear from the mention made of it by both 
 Eadmer and Florence of Worcester, who enable us to date the docu- 
 ment itself in 1108, seven years, that is, later than the charter before 
 us. I will translate the document. ' Henry, king of the English, 
 to Sampson the bishop and Urso d'Abitot, and all barons, French 
 and English, of Worcestershire, greeting : Know ye that I will 
 and enjoin that all burgesses and all those who dwell in burghs, 
 as well French as English, swear to keep and preserve my money in 
 England, and not to consent to the falsification of my money. And 
 if anyone has been found with false money, if he can vouch a war- 
 rantor for it, let it be taken to him, and if he can prove it my justice 
 shall be done on the warrantor himself ; but if he cannot prove it 
 my justice shall be done upon the falsifier, that is he shall lose his 
 right fist and be otherwise mutilated. And if he can vouch no 
 warrantor for it, he may go to the ordeal therefore to prove that he 
 knows not how to name or recognise the person from whom he has 
 received it. Moreover I forbid that any moneyer shall change the 
 money except in his own county, and that before two lawful witnesses 
 
 i
 
 114 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 of the crown by itself ; and if he shall have been caught changing 
 money, that is altering the coin, in any other county, he shall be 
 treated as a falsifier, falsonarius. And let no one dare to change 
 . . . money except a moneyer. Dated at Westminster at Christ- 
 mas.' It is clear from this that the falsifying of money was a pre- 
 valent evil at the time ; and it was probably falsified not only by 
 clipping, but by the introduction of base alloys into the metal itself. 
 This we know was the case in Stephen's reign, for he is accused of 
 conniving at the debasement of the coin. Henry II. also by his ill- 
 wishers is accused of making undue profits out of the new coinage, 
 and of sacrificing the moneyers whom he had made his tools to the 
 indignation of the people. To him, as you will remember, probably 
 is due the credit of restoring the royal coinage to metallic purity, 
 which it retained to the days of Henry VIII. ; the abuses of the coin- 
 age in the meanwhile being connected mainly with the introduction 
 of foreign coin, Flemish in particular, which gave Edward I. a good 
 deal of trouble, and also with clipping, which so long as the Jews 
 were in England was generally laid to their charge and visited upon 
 them, even by the justest of our kings, with great severity. Some 
 hundreds of Jews were put to death between 1280 and 1290 for 
 clipping. 
 
 The first parliament of Edward II. treated of the coinage as then 
 an important question, and it was there agreed that the coin current 
 under the father should remain current under the son, as if there 
 were some risk even then of an arbitrary calling in of the old coin 
 and some exaction on the ground of a new mintage. That brings 
 us round to the text again ; and accepting the explanation that I gave 
 in the first instance, we understand it to mean simply that on the 
 occasion of recoinage of old silver no exorbitant charge shall be 
 made by the moneyers, but the work shall be done honestly as 
 in the time of the Confessor. There is, however, a further explana- 
 tion of the monetagium, which may be the true one here, and although 
 derived from the former not entirely identical with it. According 
 to this view the monetagium was not so much the payment made to 
 the moneyers when the coin was restamped to enable them to bring 
 it up to the standard value, but an ad valorem increase on all pay- 
 ments of rents, ferms, and other taxes paid to the king, to compen- 
 sate him for the depreciation of the coinage. For example, if your 
 rent to the king was 100 pence, and the depreciation of the coinage 
 at the time owing to wear and tear and clipping was as much as 
 5 per cent., you would be charged 105 pence ; and sometimes, instead 
 of doing it in the single case, a regular impost would be collected on 
 this ground in the form of a general tax. This was done in Nor- 
 mandy under the name oifocagium, or hearth tax, which is supposed
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 115 
 
 to answer to a monetagium or mint tax in England. This explana- 
 tion is very ingenious, and may be the correct interpretation of this 
 article, for, as you will see by reading the ' Dialogus de Scaccario,' 
 the whitening, dealbatio, of the ferm, that is the melting down and 
 weighing of the coin paid in, and the payment of an additional charge 
 to bring it up to the real value, was a very important part of the 
 exchequer business, and so full of occasions of oppression that a 
 substitution of a charge of Qd. in the pound was imposed. You will 
 find a great deal of curious detail on this subject in the ' Dialogus 
 de Scaccario,' and of explanation in Mr. Stapleton's preface to the 
 ' Eotuli Scaccarii Normannise.' Perhaps, considering the importance 
 of the subject, I have said enough about it now. 
 
 The 6th article need not detain us ; it is simple enough : ' All pleas 
 and all debts which were due to my brother I condone, except my right 
 ferms and except those sums which were agreed to be paid for the 
 inheritances of others, or for those things which justly pertained to 
 them. And if anyone has made any bargain for his own inheritance, 
 that I forgive him, and all reliefs which had been agreed upon for 
 right inheritances.' The first part is simple : Henry will not enact 
 the debts due to William Rufus ; but payments due to the crown for 
 certain things he will enforce ; bargains made by heirs for the entry 
 on property directly heritable, and the relief due on the occasion, 
 he will remit, but not the payments for the inheritances of others ; 
 that must be, I suppose, the bargains made by grantees who enter 
 on the inheritance of persons who have incurred forfeiture, as so 
 many did under William Rufus ; and possibly where heirs were 
 instituted or adopted in default of sui heredes. 
 
 Clause 7 : ' And if any of my barons or vassals shall be sick, as 
 he shall give or dispose to give his money, so I grant that it be 
 given ; and if prevented by arms or infirmity he has not given or 
 disposed to give, then his wife or children, or parents and his lawful 
 men, shall divide that for his soul's sake as it shall appear best to 
 them.' This clause is interesting as one of the first pieces of legisla- 
 tion that we have on intestacy and administration of the goods of the 
 dying. We seem to understand from it th&t pecunia alone was suscep- 
 tible of testamentary devise ; that is, that the power of leaving land 
 by will was already supposed by the common law to be withdrawn 
 from the subject, and that whatever had been the case under the 
 Anglo-Saxons, under the Normans bequests of land were impossible. 
 Further, it reads almost as if it were by special favour that a vassal 
 of the king might dispose of his personalty, and that the crown had 
 some sort of claim on the goods of intestates. If that were so, this 
 claim resigns that power — a man may devise his personalty, and the 
 king confirms his will. If he dies without one, his relations, wife, 
 
 i2
 
 116 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 children, or parents, or lawful men may divide it to the good of his 
 soul ; that is, one imagines, making proper provision for masses for 
 his soul, may divide the residue among themselves. The legal 
 importance of this clause is not great, for, as we know from other 
 sources, the jurisdiction over wills and intestates' goods shortly after 
 this fell into the hands of the clergy, and is regulated by clauses 26 
 and 27 of Magna Carta, in which, after the payment of the royal 
 dues, the execution of the rest of the devises of wills is left to the 
 executors, who are bound by religious duty, enforced by spiritual 
 penalties, to carry into effect the will of the testator ; and in case of 
 intestacy the goods of the defunct are to be distributed by his 
 nearest relations and friends under view of the church. So that by 
 the time of John the whole testamentary and intestate jurisdiction 
 is under the view of the church, as indeed we know from Glanville 
 that it must have been several years earlier. But in this article no 
 mention whatever is made of the church or of spiritual matter, other 
 than the duty of devising some part of the intestate's property for 
 the good of his soul. It is therefore held that the doctrine that 
 testamentary jurisdiction is a church right grew up between the 
 reign of Henry I. and that of Henry II. I do not know that we 
 need go so far as that, for there may already have been a common 
 law practice for the bishops and clergy to see that a man's effects 
 were distributed for his soul's sake, and of keeping executors to their 
 duty by spiritual means ; but it is quite certain that the original duty 
 of doing this did not belong to the clergy, but to the manors and 
 perhaps to the early township administration. There are many 
 manors at the present day from which the right of proving wills 
 and granting letters of administration was only taken away by the 
 recent Acts on probate and administration, and which had enjoyed and 
 exercised the right quite as long as any ecclesiastical court had 
 done, running in fact into remote antiquity. That the ecclesiastical 
 jurisdiction on these matters was an unwarranted usurpation is 
 one of the questions on which Prynne, who is in many points a 
 constitutional authority, greatly relied, and which occupies in his 
 tremendously heavy and numerous volumes a place somewhat in 
 excess of its importance. It is, however, interesting, and this article 
 is an interesting contribution to its history. 
 
 The 8th article, like some of the preceding ones, is intended to 
 substitute a reasonable or fixed payment for an arbitrary and pre- 
 carious one, in direct remedy of the tyrannical practices of the late 
 reign. ' If any of my barons or my men has committed transgres- 
 sion, he shall not give wager or pledge in mercy of his money, as he 
 did in the time of my father or my brother ; that is he shall not lie 
 at the mercy of the king to exact entire forfeiture of all his personal
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 117 
 
 estate, but, according to the measure of the delict, he shall make 
 amends as he would have made amends before my father's time, or 
 the time of my other ancestors. But if he be convicted of perfidy 
 or crime, as shall be just, so shall he amend.' Secundum modum 
 delicti, you may remember, was the expression introduced into the 
 Exchequer copy of the 10 articles of the Conqueror, which allowed 
 a man to be mutilated of hands, feet, eyes, &c, according to the 
 measure of his fault. Here the rule is applied to fines and 
 forfeitures, and the principle, which is of considerable importance, 
 is found worked out in clauses 20, 21, 22 of the Great Charter of 
 John. In this clause no standard is set by which the modus delicti 
 can be estimated, and the offender might lie at very uncertain mercy 
 under so loose a clause. But in Magna Carta here, as in other 
 points, the reasonable discretion of the king is set aside for a more 
 trustworthy determinant, and the amercement secundum modum 
 delicti is to be made for ordinary freemen by the oath of good men 
 of the neighbourhood, that is by jury, and in the case of earls and 
 barons by their peers. 
 
 We now proceed with the concluding articles of the coronation 
 charter of Henry I., which will not require much comment : e.g. 
 ' All the murdra, all the murder fines which fell due before the day 
 of my coronation, I condone, and those which from this date shall 
 be incurred shall be justly paid according to the law of King 
 Edward.' Note that this article seems fully to justify our belief, 
 which is founded on the date given at the close of the charter, that 
 it was issued on the day of coronation — retro ab ilia die designates 
 the past ; a modo, from now, designates the future — no provision is 
 contemplated for the cases that occurred between the coronation and 
 the issue of the charter ; therefore we infer that the division is ex- 
 haustive and the charter was issued on the very day ; and this agrees 
 with the statement of Eadmer that on the very day the king issued 
 letters sealed in confirmation of the coronation oath, in which the 
 promise of good government was made in general terms, and in the 
 language used in Anglo-Saxon times. Now Henry, we are told, 
 was crowned on August 5, 1100, that is on the Sunday following 
 the death of William Rufus, which occurred on a Thursday ; so 
 that this extremely important document did not occupy in the draw- 
 ing more than a couple of days : this seems a difficulty, and the 
 date 1101, which appears at the head of the charter, may suggest a 
 possible solution, namely, that although this appears as the corona- 
 tion charter, i.e. the written and sealed declaration of the way in 
 which the king meant his coronation promises to be kept, it is not 
 necessary to suppose that the writing itself issued that day, only 
 that the promises contained in it were to be operative from the day
 
 118 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 of the coronation. That, I say, is a possible solution, but I do not 
 accept it myself. I think that the document, vastly important and 
 comprehensive as it is, bears marks of having been hastily drawn 
 up, and that there is really no reason to question its being the 
 identical manifesto which Eadmer mentions (p. 96) as issued at the 
 coronation. It is not at all necessary to suppose that all the copies 
 which would be sent into the different counties were written on the 
 same day ; but on the coronation the fiat was issued for the publica- 
 tion of these articles pretty much as they stand. The names of the 
 witnesses support the conclusion. Maurice of London, the bishop 
 who crowned the king ; Gundulf of Rochester ; William Giffard, 
 whom on the very day Henry had nominated to the see of Winchester, 
 would all be at the ceremony. Anselm, the archbishop, who 
 returned immediately after and married the king to Matilda in the 
 following November, would have surely attested the charter if it had 
 been issued after his arrival in England. It is a point of more 
 interest than importance, and the charter itself may have been 
 republished from time to time as the king found it necessary to 
 remind the nation of his good will towards them ; but as for the 
 letter as it stands, I am content that it should stand as the con- 
 temporaneous and formal exposition of the king's coronation 
 promises, and issued, or ordered to be issued, on that very day. 
 That is the first point to note. 
 
 A second is the reference to the law of King Edward, on which I 
 said all that need be said when I was commenting on the introduction 
 of the murder fine. That amounts to so much ; there are two points : 
 had the law of Edward the Confessor been drawn up on the recognition 
 of the wisemen of the county courts as described in the Leges Edwardi 
 and assigned to the fourth year of the Conqueror ? — had the system 
 of murdrum really been in existence in England under Edward or 
 under Canute, and was it not introduced by the Conqueror ? Neither 
 question admits of more than a doubtful answer. It is possible 
 either way ; only if the Leges Edwardi were really codified under the 
 Conqueror, I cannot think that we have as yet got hold of a sound 
 text of them. As to the murdrum, I do think it possible that, as 
 those laws tell us, something of the kind had been introduced by 
 Canute ; certainly the wording of this clause shows that a tradition 
 to that effect must have been current when the charter was drawn up. 
 Clause 10 : ' The forests, by common consent of my barons, I have 
 retained in my own hands as my father had them.' There were, as 
 you of course are well aware, two great oppressions connected with 
 the forests — the extension of them and the jurisdiction of them, the 
 enlargement of the forest area and the enforcement of the forest 
 law. The principal force of this article seems to refer to the former :
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 119 
 
 I do not know that besides the words of Stephen's charter there 
 is any evidence that William Rufus inclosed new forests ; he may 
 very likely have done so, and if he did, then this declaration of the 
 king may amount to a renunciation of the forests that his brother 
 had made, with a retention of more which his father had enjoyed ; 
 just as Stephen himself retained the forests of the two Williams 
 and renounced those of Henry I. ; but if it were so, the same 
 evidence would prove that the promise so suggested had not 
 been kept. As to the severity of the forest law, we know from 
 the Anglo-Saxon Chronicle that whereas the Conqueror was satisfied 
 with blinding the deer-stealer, William Eufus made the offence 
 capital, and Henry II. in his Forest Assize refers to the legislation of 
 his grandfather as the settled justice that was to be taken on the 
 criminal ; the plenary justice was mutilation and blinding, as we 
 learn from the Forest Assize of Richard I., issued in 1198, according 
 to the law of his father's grandfather. So far, then, as mutilation 
 and blinding were a modification of capital punishment, Henry I. 
 may be regarded as alleviating the oppressiveness of the forest juris- 
 diction exercised by his brother, but exceeding the severity which 
 marks his father's proceedings. 
 
 The 11th clause requires, perhaps, more careful reading. 'To 
 the knights who hold their lands by the hauberk, that is by knight 
 service, I grant by my own proper gift that the lands of their demesne 
 ploughs be quit of all gelds and of all work ; that as they are relieved by 
 so great an alleviation, they may well equip themselves with horses 
 and arms to my service and to the defence of my kingdom.' The 
 words of the description are not surplusage : the holding the land 
 by the hauberk, that is the duty of serving the king in full armour, 
 is a sort of definition of the tenure of the knights ; the gelds and 
 opera are the money payments and personal services which were 
 required by the Anglo-Saxon law and by the Norman practice from 
 all landowners alike ; the lands of the knights that are so relieved are 
 not all their lands, but those which they kept in hand, their demesne 
 lands, the lands of their demesne ploughs. The exact payments 
 and services from which these lands are relieved would be no doubt 
 the Danegeld and special services of castle guard and the like. I 
 do not know that we can go so far as to say that they would include 
 the services of the trinoda necessitas ; but if the words are to be 
 construed literally, they would relieve them from part of that also, 
 that is the bridge bot and the burh bot, for the expeditio, the fyrd, 
 is the object to which by this general relief they are enabled to 
 devote themselves. In simple words, then, the demesne lands 
 of tenants by knight service are freed from taxation, the duty of the 
 holders being fulfilled by their equipping themselves with horses
 
 120 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 and arms. Unfortunately we know so little about the exact terms 
 or dates of the introduction of the tenure by knight service into 
 England that we are unable to estimate the exact value of this 
 allcvamen. But we do see that it is a moderate one, by no means 
 affecting all the lands held by that service, only the demesne lands ; 
 and we infer from that, that when in Henry IV. 's reign, or even 
 earlier, it became necessary to substitute a money payment for 
 military service, this immunity was lost sight of in the general 
 composition of scutage. I will not now take you into the vexed 
 question whether the scutage was a breach of this law, as has 
 sometimes been maintained. I do not myself think that it was ; for 
 although both the auxilium militum of Henry I.'s pipe roll and the 
 scutages of Henry II. were new taxes, the former cannot be certainly 
 said to have been hard by the king's tenants in chief, and the latter 
 was a commutation of an old obligation, not the imposition of 
 a new one. 
 
 Clause 12 : ' I place firm peace in the whole of my kingdom, and 
 enjoin that it be kept from this day.' Here we have the first of the 
 proclamations of the king's peace that are extant, and the import- 
 ance of which lies in the fact that offences committed between the 
 expiry of the late king's peace and the proclamation of the new 
 king's peace were not regarded as breaches of the king's peace or 
 public law. On this I do not know that I have anything to say 
 that has not been said over and over again ; the peace here pro- 
 claimed is the general peace of the kingdom, not any special 
 protection of places or persons by the king's special peace, but 
 the general undertaking that the law shall be enforced on all 
 breakers of it. Of course the doctrine involved the necessity of 
 making the interregnum between the late king's peace and his 
 successor's as short as possible, and, as we have seen, it was all 
 over on this occasion within a week ; in fact the nation at a very 
 short distance from court would not have heard of the death of 
 William Rufus until they heard of Henry's coronation, the hurry 
 had been so great that only a very few of the magnates had been 
 able to assemble at all. In some of the later cases the space was 
 longer ; stress of weather in Henry II.'s case and business in 
 Normandy in John's lengthened the interregnum. Richard I. 
 seems not to have cared to hurry about his coronation at all. In 
 fact, whenever the government was strong enough, the theory of 
 the interruption of the peace was of little moment ; where the 
 government was weak, it was only alleged as a colourable excuse 
 for misdeeds that would have been done just as much without any 
 theory of excuse. We may, I think, add that the practical import- 
 ance of the point had been altogether forgotten before the accession
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 121 
 
 of Edward I., although the form of proclamation of the new king's 
 peace continued to be kept up as a part of the notification of a new 
 reign to the nation at large. 
 
 Clause 13 : ' The law of King Edward I restore to you with 
 those emendations with which my father amended it by the counsel 
 of his barons.' This clause is worth noting, if it were only for this, 
 that it is a distinct reference to the 7th of the genuine articles 
 of the Conqueror, p. 84, which we examined so much in detail a 
 few lectures ago. The emendations are those contained in that 
 summary of 10 articles, and I think none other ; the mention of 
 the counsel of the barons also seems quite fatal to the supposition 
 that the Exchequer Charter, containing so much additional matter, 
 as we saw, but not the statement of counsel and consent, could 
 have been in existence when Henry I. issued this clause. 
 
 One clause remains to be dealt with — clause 14 : ' And if anyone 
 has taken anything of my goods or of the goods of anyone since the 
 death of my brother William, the whole shall immediately without 
 recompense be restored ; and if anyone has retained anything thereof, 
 he upon whom it shall be found shall make heavy recompense to me.' 
 This clause you understand of course in connection with the procla- 
 mation of the peace. What happened before William's death is 
 condoned. Murder fines before the coronation are condoned, but 
 acts of theft committed in the interregnum on the king or on anyone 
 else are to be punished. A man may if he will make his peace by 
 restoring what he has stolen, but if he is caught retaining it so much 
 the worse for him. We wonder what peculiar mischief this clause, 
 coming as a sort of appendix to other enactments of great and per- 
 manent importance, was intended to serve. Possibly even at this date 
 there was a custom in king's courts for the attendants on the dead king 
 to lay their hands on everything they could and run away with it, 
 leaving the late object of their veneration and flatteries to be buried 
 by the first comer. When we read of William Rufus's dead body 
 being left by the attendants, of whom some went off to defend their 
 homes, others to plunder their neighbours, others to welcome the 
 rising sun, leaving the dead man to be carried by the rustics on an 
 open cart, streaming with blood ; or when we read of the awful 
 scenes at the funerals of William the Conqueror and Henry I. him- 
 self which the historians have recorded for us, we can understand 
 the gist of the article. We remember, too, how Alice Perrers plun- 
 dered the dead Edward III., and how, according to Shakespeare, 
 Henry V. was in too great a hurry to step off with his father's crown. 
 
 However, there it ends, the most important manifesto that we 
 have yet seen of the way in which the Norman sovereigns wished to 
 ruie the kingdom on which they had laid such a heavy hand ; a most
 
 122 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 valuable monument, too, of national history owing to the fact that 
 it was upon its lines that Langton and the associate barons drew up 
 their demands which were embodied in the Great Charter of Runny- 
 mede, copying the general arrangement of the articles, and paraphras- 
 ing, expanding, and defining their meaning. So that what Magna 
 Carta was to England after the consolidating and organising work 
 of Henry II. and his ministers had been accomplished, that the 
 charter of Henry I. was to the nation before the era of reform had 
 begun : it was the promise of a great king and law-giving statesman, 
 who loved method and maintained justice wherever it did not conflict 
 with the one mightier and stronger influence, which was his own 
 despotic will, yet who saw in his hold on the magnates around him 
 the only way as yet of directly benefiting the classes beneath them, 
 the only reasonable hope that in time he might depress their over- 
 weening power. ' What I grant to you, you shall grant to them,' is 
 the keynote of the most important articles, and by comparing that 
 with the sentiment of the barons at Runnymede, who in the 62nd 
 clause of the Charter extended to their vassals all the boons the king 
 granted to them, we may measure the growth of national unity and 
 the difference of idea that had grown up in the 115 years that 
 intervened. 
 
 The next document that I propose to examine will be the charter 
 of the city of London, which, in the manuscripts to which properly the 
 title of Leges Henrici belongs, immediately follows the coronation 
 charter. As I shall have to call your particular attention in a future 
 lecture to the more important literary points connected with that 
 valuable compilation, I will at once proceed to the text of the London 
 charter, only premising a reference to the earlier charter of the 
 Conqueror given in the ' Select Charters,' which simply grants to 
 the bishop and the portreeve of London, as representing the burghers, 
 the continuance of the rights which they had possessed under Edward 
 the Confessor, and the right of inheritance, which, it would seem, 
 if we are to construe this grant as a new privilege, had been some- 
 what limited by royal or municipal interference in King Edward's 
 days. To this latter point I shall have to recur later on. 
 
 The text of Henry's charter runs thus : ' Henry by the grace of 
 God king of the English ' — for Anglia in this place is simply a 
 wrong expansion of the abbreviation Angl. for Anglorum, as you 
 are doubtless aware, John being the first king who called himself in 
 public documents king of England — ' to the archbishop of Canter- 
 bury and the bishops, abbots, earls, barons, and justices, sheriffs, and 
 all his faithful French and English of all England, greeting.' Ob- 
 serve here that we are dealing with a copy ; in the original no doubt 
 the name of the archbishop would be. expressed ; we may have occa-
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 123 
 
 sion to consider this point as elucidating, or at least accounting for, 
 some other difficulties of the text. You will find it convenient to 
 divide the matter of the charter into fifteen subsections, as is done 
 by Dr. Schmid. ' Know ye that I have granted to the citizens of 
 London, Middlesex, to be held to ferm for £300 at account, to them 
 and their heirs of me and my heirs, and that the citizens shall 
 appoint a sheriff such as they may please of themselves and a jus- 
 ticiar such as they please of themselves to keep the pleas of my crown 
 and to plead them, and no other justiciar shall be over the men of 
 London.' That is the 1st clause. The administration of the county 
 of Middlesex is assigned to the citizens of London in ferm. They 
 are to appoint, or rather to be themselves collectively, the sheriff of 
 Middlesex, appointing of course a sheriff to represent them and 
 execute their powers, and a justiciar to keep the pleas of the crown, 
 the justiciar in this respect answering to the later coroner, who in 
 other county courts apparently about the reign of Richard I. was 
 appointed to keep the pleas of the crown, to watch the interests of 
 the crown that is, and so far to limit the jurisdiction of the sheriff. 
 Besides this sheriff and justice no other person is to be justiciar over 
 the citizens of London. We cannot but deplore here the total dark- 
 ness that covers the history of London in the Anglo-Saxon times, 
 and even in the reign of the Conqueror, for it obscures the meaning 
 of what here might seem tolerably clear. We cannot see from what 
 is in the text what has become of the portreeve, who was the head 
 man in the former charter, or whether by the appointing of a sheriff 
 we are to understand merely a sheriff for Middlesex, or one sole sheriff 
 with metropolitan jurisdiction ; but if we look further on we see 
 that when the pipe rolls begin London is under more than one 
 sheriff, there being four in 1131, and during the first fifteen years 
 of Henry II. two. 
 
 I have in the first volume of the ' Constitutional History ' specu- 
 lated on the possible history of the extinction of the portreeve, and 
 the substitution of a shire constitution for the earlier municipal 
 system which his name represents. You will of course understand 
 that that is merely a speculation founded on the fact that we find the 
 property of the cnihten gild, whose head the portreeve was, and whose 
 jurisdiction was over the ward called Portsoken, was transferred by 
 a charter of nearly the same date as the present to the monastery 
 of the Holy Trinity, Aldgate, a priory of Augustinian canons whose 
 prior was henceforth alderman of the Portsoken ward and one of 
 the barons of the city of London. But I will not repeat what is 
 down in print. The one unmistakable point in this 1st clause is 
 that the Londoners are empowered to elect their chief magistrate, 
 the sheriff answerable at the Exchequer for the king's ferm, and the
 
 124 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 justiciar, the officer whose function it is to look after and conserve 
 the king's interests — his share in the fines of the law courts, the 
 murdra, and possibly also the customs, such as they were, payable 
 at the port. 
 
 The 2nd clause is an amplification of these judicial liberties. 
 ' (2) And the citizens shall not plead outside the walls of the city 
 for any plea, and they shall be quit of scot and lot, of Danegeld and 
 murder fine, and none of them shall be compelled to trial by battle.' 
 We can understand the privilege of not being summoned outside the 
 walls of London ; it is a common privilege in later charters. They 
 shall be quit of scot and lot is less clear, for scot and lot simply 
 taken means proportionate taxation, and it is impossible to suppose 
 that this clause means that where a sum is due from the city it is 
 to be raised either by simple poll tax or by an impost levied without 
 regard to the capacity of the payers. We must provisionally, however, 
 understand that it means the arbitrary imposition which a few years 
 later becomes known as tallage, which may from the method of its 
 incidence be here designated by a more general and less appropriate 
 term. We do know, however, that the question whether the citizens 
 should raise their contributions by poll tax or by proportionate 
 assessment was mooted a full century later than this, when William 
 FitzOsbert set himself up as champion of the inferior commons in 
 resisting the use of the poll-tax method prescribed by the magnates. 
 The exemption from Danegeld, from the law of murdrum, and the 
 trial by battle is clear enough. 
 
 ' (3) And if any of the citizens has been impleaded of in any of 
 the pleas of the crown, by the oath which shall have been judicially 
 approved in the city he shall prove himself as a citizen of London 
 exempt from such trial.' I think that this article is constructively 
 connected with the last, i.e. if a citizen be appealed for an offence 
 for which ordinarily he would be liable under the Conqueror's charter 
 to trial by battle, he may obtain exemption by the customary oath 
 of compurgation. This clause has the effect of making the custom 
 of compurgation the most abiding rule in borough and city courts, 
 to which the exemption from the trial by battle is granted in many 
 charters ; so much so that when by the great assize of Henry II. 
 trial by battle in civil causes was generally superseded, and when 
 by the assize of Clarendon compurgation itself in the courts of the 
 itinerant judges was practically abolished, the town courts into which 
 the itinerant judges did not force their way retained the ancient 
 practice. The use of the compurgation in this way for the purpose 
 of denying the adversary's right and traversing his cause, disratio- 
 nancli as here used, was so common that in the Norman law the 
 law of compurgation itself was sometimes called the lex disrationis-
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 125 
 
 Here it seems to comprehend both the appeal ' civis Londoniensis 
 sum ' and the denial of the charge. 
 
 ' (4) And within the walls of the city let no one be lodged, neither 
 of my household nor of another, unless the duty of entertaining him 
 be assigned to some particular person.' That is, I conclude, unless 
 some particular person can be found to be answerable for him, or 
 unless the duty of entertaining him shall have been assigned to some 
 one. The latter interpretation is probably the better. If the stranger 
 came the magistrate had either to turn him out or to billet him on 
 some citizen who would be answerable for him. No one much cared 
 to entertain the members of the king's household, who as a rule 
 treated their entertainers very badly. The practice common under 
 William Eufus of the king's servants making themselves at home 
 wherever they went is described in Eadmer in language of the utmost 
 strength. Whatever they found in the houses of their entertainers 
 they spoiled or carried away. Their wives and daughters they dis- 
 honoured, they burned their furniture, they washed their horses' feet 
 in the wine, and let the casks run out. So bad it was that Henry, 
 in an edict the words of which unfortunately have not been preserved, 
 ordered the offenders to undergo the same punishment of blinding, 
 castrating, and mutilating of hands and feet which was enforced 
 against forgers and deer-stealers. The Latin of this clause, although 
 obscure, is capable of interpretation by later charter law. It was 
 intended to secure the safety and responsibility of the stranger 
 entertained. 
 
 ' (5) And all the men of London shall be quit and free, and all 
 their effects, through all England and the sea ports, of toll and 
 passage and lastage, and all other customs.' Telonium means toll 
 generally, i.e. a duty on the merchandise carried about, more what 
 we should call custom ; passage would answer to the toll paid at 
 gates and bridges, which would be the same whatever was the value 
 of the merchandise admitted ; lastage would properly mean a duty 
 payable on weight. All three terms had better be explained loosely, 
 for they may only mean the same thing applied to different descrip- 
 tions of goods, and they are all more or less obscure. The privilege 
 conferred is a very common one, frequently granted to the tenants 
 of monasteries, and did not fall into disuse for more than a century. 
 I have seen, if I have not got, a parchment pass granted to my great- 
 grandfather, who was owner of a small property that had once be- 
 longed to the abbey of Fountains, by which he was empowered to 
 remove his stock and go where he pleased without payment of the 
 ancient tolls from which Fountains and its tenants were free by 
 charter. I imagine most of those tolls are now extinguished, but 
 the exemption survived the monastery for certainly two centuries.
 
 126 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 
 
 Clause 6 is an interesting one, for it throws some light on the 
 constitution of the city. ' And the churches, barons, and citizens 
 shall hold and have well and in peace their sokens or jurisdictions 
 with all customs, so that the strangers who are lodged in their 
 jurisdictions shall pay their customs to none but to him whose soken 
 it is, or to the servant whom he shall place there.' Here, you see, the 
 city is certainly divided into certain sokens or privileged jurisdictions, 
 which have a right to exact payments, customary payments from 
 strangers and doubtless other rights such as belonged in the country 
 to lords of manors. Some of these belonged to churches, in par- 
 ticular to the church of S. Paul, and the Augustinian canons of 
 Trinity Aldgate, S. Martin's le Grand, and others ; some belonged 
 to hereditary owners, such as the lord of Baynard's Castle, the Baron 
 Fitzwalter, standard-bearer of the city, and the lord of Montfitchet, 
 who also had a castle in London, the warden of the Tower, and 
 others, some of whom were barons of the realm, others barons in 
 the limited sense of tenants in chief of hereditary estates in the city 
 and as hereditary aldermen rejoicing in the title thus given ; others 
 were held by simple citizens. You will, however, observe that 
 although these sokens represent the later wards of the city, there is 
 nothing here that would lead us to suppose them to have either a 
 recognised guild administration or a proper communa ; they may 
 have had what we call leet juries — township organisation, but there 
 is nothing more. The city was a bundle of sokens, or manors, or 
 townships, or parishes ; but it had a collective organisation, as we 
 shall see presently, in its husting court, as well as in its sheriff 
 and justiciar. They have not yet arrived at elective aldermen, 
 or a symmetrical arrangement of wards, or a merchant guild, or a 
 communa. 
 
 Clause 7 : ' And a man of London shall not be amerced in miseri- 
 cordia, except in his were, i.e. 100 shillings. I speak of pleas that 
 concern money.' This means that in suits in which pecuniary 
 punishments or compensations are lawful (i.e. where death or mutila- 
 tion does not come in) a citizen of London is not to be entirely ruined 
 by arbitrary fines — as we saw in clause 8 of the coronation charter 
 was granted to the barons — his weregild will be fixed at 100 shillings, 
 and amercements secundum modum delicti will bear a proper 
 proportion to that just standard. 
 
 Clause 8 : ' And henceforth there shall not be miskenning in hus- 
 ting court or in folkmoot, nor in any pleas within the city.' What 
 miskenning is I have explained ; what is here signified is this : if in 
 the pleading in husting or folkmoot one of the suitors desires to 
 amend either the form or matter of his plea, he shall not be liable 
 to a fine for the liberty of altering it. I am not quite sure that the
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 127 
 
 direct effect of the clause is not to forbid him to make the alteration 
 altogether, and the result would be to make him begin a new suit or 
 be non-suited ; but ordinarily this could be done on payment of a 
 fine. Here the common interpretation refers it to the abolition of 
 the fine ; so it comes to the same thing. 
 
 Clause 9 : 'Husting shall sit once a week, that is to say on Monday.' 
 This is the collective court of the citizens, which still subsists under 
 the same title, although it would not be right to infer anything as 
 to its history under Henry I. from its present business. The three 
 courts of the city noticed in this charter are the folkmoot, the ward- 
 moot, and the husting ; but the wardmote depends on an uncertain 
 reading. I have conjectured that while the folkmoot would answer 
 to the shiremoot in the country districts, the husting would answer 
 rather to the proper meeting of the citizens, but I am not at all dis- 
 posed to maintain this view if a better can be advanced, at least so far 
 as the husting is concerned. Each of the later wardmotes was a proper 
 hundred court, I believe ; but this passage is, to say the least, obscure. 
 
 Clause 10 : ' And I will cause them to have their lands and warde- 
 motum and debts, within city and without.' The word wardemotum 
 seems out of place, and there is a reading vadimonia, which repre- 
 sents a sort of property more naturally associated with lands and 
 debts, i.e. pledges or mortgages. I think we ought to read it so, 
 and understand the passage to mean that the king will see that 
 the citizens have their full rights in these matters. It does not 
 amount to a corporate right, but it is vouched by the king ; and it 
 seems as if clause 11 was intended as a supplementary or compen- 
 satory clause. If the king was to secure them their rights, he would 
 take measures to enforce his own — ' of the lands which they hold of 
 me I will hold right to them by the law of the city ; ' or possibly — 
 ' of the lands which they claim by resort to me, I will administer 
 right to them according to the law of the city.' If the first reading 
 is right, it will mean that the king will exact his rights ; if the second, 
 that he will adjudicate on their claims, according to the constitu- 
 tional custom that has prevailed immemorially in the city. 
 
 Clause 12 : ' And if anyone has taken toll or custom from the 
 citizens of London, let the citizens of London take from the burgh or 
 township where the toll or custom has been exacted, as much as their 
 citizen has paid and has received of damages.' That is simple 
 enough, however difficult to construe. 
 
 Clause 13 : ' And let all debtors who owe debts to the citizens pay 
 them to them, or else prove in London that they do not owe them.' 
 Rather hard lines on the debtors, but consonant with the idea of 
 privileged jurisdiction as maintained above. 
 
 Clause 14 : ' And if they will not pay, nor come to prove that they
 
 128 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 do not owe them, let the citizens to whom they are indebted take by 
 distraint their pledges within the city, or of the county in which the 
 debtor dwells. They must outside the city distrain the county 
 . . . through the sheriff of the county in which the debtor dwells, 
 holding him apparently responsible for producing the culprit.' 
 
 The next clause is the last. Clause 15 : ' The citizens shall have 
 their coursings for coursing as best and full as their ancestors had, in 
 Chiltern, i.e. Buckinghamshire, Middlesex, and Surrey.' No doubt 
 very good for them, and well calculated, according to modern views, 
 to prevent the deterioration of the race. It seems curious that among 
 these sporting districts thus placed at the disposal of the citizens, 
 no mention is made of Essex, which to our fancy would be a better 
 hunting country than any of those named. I think, however, that 
 the citizens were not supposed to hunt the beasts of forest or beasts 
 of venery, i.e. the hart, the hind, the hare, the boar, and the wolf, 
 but the beasts of chase only, i.e. the buck, the doe, the fox, the 
 marten, and the roe ; the former were silvestres, the latter campestres, 
 and venari is the proper word for the one, fugare for the other. 
 Now Essex, close as it was to London, was a forest district, the 
 places mentioned here were open grounds. The forest was reserved 
 for the king, the open grounds for the citizens. That is what seems 
 to me to be the particular meaning of this grant, but it is quite 
 possible that as time went on the privilege of the citizens developed. 
 Now, of course, you will think of the recent transfer of the remnant 
 of Epping Forest to the Corporation of London : a singular reversal 
 of the arrangement which I suppose to have been intended here. 
 I cannot, however, insist very positively on my interpretation of 
 the clause, for although the word fugatio seems to be used in the 
 restricted meaning, I find little or nothing among the civic records 
 that helps to elucidate the point. 
 
 Before we quit this charter it may be as well to refer to the later 
 charter granted by Henry II. to London, and printed in the Liber 
 Custumarum, pp. 31, 32 ; for it will afford one or two points of com- 
 parison and explanation. The first of these is the exception to the 
 general privilege of not pleading outside the walls, 'exceptis monetariis 
 et ministris meis ; ' business that concerned those officers must 
 be liable to treatment elsewhere. The article on reception of 
 guests is amplified by the expression ' nemo capiat hospitium per 
 vim vel per liberationem Marescalli ; ' there is to be no forcible 
 billeting by the king's officers on the citizens ; further on vadimonia, 
 not wardemote, is distinctly read in the clause corresponding to that 
 on which the doubt arises in Henry I.'s charter : the other privileges 
 are confirmed, and the further ones granted that the citizens shall 
 be free of bridtolle or bridge toll ; childwite, the penalty for
 
 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 129 
 
 bastard children ; yeresgive, or new year's gift, a bribe of some sort 
 which the king's officers collected, but the meaning and growth of 
 which is uncertain ; and scotale, that is that the sheriff of London 
 and no other bailiff shall make scotale, that is hold a compulsory 
 beerfeast out of which he should make profit. All these terms are 
 difficult in application, and as they do not specially concern our 
 subject, I will content myself with referring you to the glossaries for 
 such information as they can give. 
 
 We will now turn to what is perhaps the best known of all the 
 documents of the reign of Henry I., the writ to the magnates of 
 Worcestershire in which he orders the regular holding of the shire- 
 moot. It will be found among the ' Select Charters,' and is dated 
 between 1108 and 1112, the former being the year in which Bishop 
 Richard of London was consecrated, and the latter the year of Bishop 
 Sampson's death. The writ begins in the usual way, and it is a 
 general writ, not restricted to Worcestershire, but this happens to be 
 the Worcestershire copy of it. When the other extant copies see the 
 light, we shall probably be able to fix the date more exactly. ' Know 
 ye that I grant and enjoin that from henceforth my county courts 
 and hundred courts sit in those places and at the same terms as they 
 sat in tbe time of King Edward and not otherwise. For I, when 
 I shall wish it, will cause them to have sufficient summons on account 
 of my demesne necessities at my will. And if henceforth there arise 
 a plea touching the division of lands, if it is between my own barons 
 it shall be treated in my court ; and if it is between the vassals of two 
 lords it shall be treated in the county court, and that shall be done by 
 trial by combat, unless there be some obstacle to such proceeding in 
 the parties themselves. And I will and enjoin that all of the county 
 go to the hundred courts and county courts as they did in the time of 
 King Edward, nor for any cause retard my peace or quiet, who do 
 not follow my pleas and judgments or ordeals, as they would have 
 done at that time.' I do not think that there is any document in 
 our history containing in twelve lines so much valuable information 
 as we have here. It is really an invaluable link between the Norman 
 and Anglo-Saxon treatment of the most characteristic of our early 
 institutions, the county court and the hundredmoot ; and although 
 I am pretty certain that I must repeat to you several points on which 
 you are fully informed, I shall venture to give a somewhat lengthened 
 analysis and rationale of it. 
 
 The first point of importance is the order at the beginning and 
 ending of the writ directing the conformity of the two sets of courts 
 to the rule followed in the days of Edward the Confessor. They 
 are to be held at the places, at the terms, and by the same constituent 
 frequenters as had attended before the Conquest. The same rule 
 
 K
 
 130 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 had been ordered by the Conqueror in the article ' Requiratur hun- 
 dredus et comitatus sicut antecessores nostri statuerunt.' If the 
 national system required the reformation implied in the words of 
 Henry L, the abuses must have crept in between the issuing of the 
 Conqueror's order and the date of the present writ. Of course we 
 lay the blame of everything of that kind on the broad backs of 
 William Rufus and Ranulf Flambard, rightly or wrongly. Anyhow 
 we are sure that the multiplication of the king's judicial transactions 
 either in curia or in itinere must have had the effect of throwing 
 the provincial judicature into confusion. Now, however, the old 
 rules are restored. But what were the old rules ? As for the terms, 
 we know them from the laws of Edward and Canute. The hundred 
 court sat every month, the county court twice a year. As to the 
 places, we have no sufficient list of judicial centres for all England, 
 but the cycle of meeting places might be made out from the hundred 
 rolls of Edward I.'s reign, and from the local records of later ages, 
 by which it appears that the several parts of each hundred or wapen- 
 take were visited turn and turn about for the hundred court, the 
 greater county courts being held at the central town of the shire. 
 That, however, is a matter of local archaeology which need not con- 
 cern us to-day ; you will find some account of it in most of the 
 better county histories, like Eyton's Salop and Whitaker's Craven. 
 But the composition of the courts is a point on which unfortunately 
 we have but little exact information on the Anglo-Saxon laws, which 
 seem to state so much of the customs as too well known to need 
 repetition. But it fortunately happens that we have in the Leges 
 Henrici primi a full account of the composition of the county courts 
 drawn up almost immediately after, and in conformity with the rule 
 laid down in this edict. It is the passage printed in the ' Select 
 Charters.' We will only look at the points needful for the illus- 
 tration of our text. ' As it was framed by ancient constitution, by 
 the salutary command of the king, it has been lately confirmed by 
 a true record, that general courts of the counties should be assem- 
 bled at certain places, terms and definite times, throughout the several 
 counties of England, and should not be troubled with any harassing 
 summons any more unless the king's own necessity or the common 
 profit of the kingdom should make it necessary to hold them more fre- 
 quently.' There can be no doubt that the vera recordatio here spoken 
 of is the writ of Henry I., and that the use of the word nuper brings 
 the comment into direct chronological relation with the Act. It is 
 ascertained by a comparison of dates, to which we may refer when 
 we come to examine the Leges Henrici, that that custumary was 
 drawn up between 1112 and 1118, so that you have in the custumary 
 an account of what at the time was meant by the ancient constitution
 
 THE LAWS AND LEGISLATION OF THE NOEMAN KINGS 131 
 
 of the shiremoots ; that is, the book of 1118 tells you what was 
 meant in 1112, when, only forty-six years after the Conquest, the 
 practice of King Edward's time and of the Conqueror's earlier years 
 could not have fallen into oblivion. It is, then, not rash, but as safe 
 as anything can be that is based on continuous links of inference, to 
 believe that the description here given is a valid description of the 
 shiremoots of the eleventh and even of the tenth century, for they 
 are not likely to have undergone any material change since the time 
 of Edgar. And if this be accepted, then every accepted point which 
 it would be impossible to reconstruct definitely from the scanty par- 
 ticulars of the earlier laws may be illustrated and made more real 
 by the casual mention of more early laws. If it were not for this 
 link it would be impossible to prove and dangerous to argue on the 
 presumption that the Anglo-Saxon shiremoots contained any element 
 of representation, or had any fiscal or judicial authority but what is 
 to be detected from laws in which everything of the kind is taken 
 for granted, or on analogies which are by themselves insufficient 
 historic evidence. 
 
 Well, the persons who are to go to the shiremoot are described 
 in clauses 2 and 7, and the constitution of the hundred court in 
 clause 8. The shiremoot is to be held twice a year and the hundred 
 moot twelve times, the summons being issued six days previously 
 unless the public interest or the king's necessities demand an earlier 
 day. All bishops, earls, and lords of lands whatever are to attend. 
 The lord may represent his tenants or may send his steward in his 
 place. Where there is no lord or steward the reeve and parish priest 
 and four best men of the township are to attend. That will do for 
 the present on this point. Later practice will explain that what was 
 here prescribed as an arrangement in case the lord and his steward 
 were absent was really a rule for the representation of all residents 
 within the area of the court's jurisdiction. 
 
 But we will proceed with the other clauses. The two meetings 
 of the shiremoot and the twelve of the hundredmoot are the regular 
 sessions of the court, but when the king's necessities require it they 
 may meet oftener — dominica necessaria, demesne necessities. The 
 word dominica in the language of this and the following century 
 means little more than the word mea, or ipsius, the Greek iSlu } 
 though how the term gets that meaning it is very difficult to say, or 
 when the exact usage comes in. Here, however, it need involve no 
 question of meaning, for if you like to translate it sovereign you can, 
 or royal. The point is that this proves Henry I. to have used the 
 county courts for the purpose of raising supplies. We must not ex- 
 aggerate the importance of it. It does not follow that the courts to 
 which ho applied had the slightest power of refusing to grant what 
 
 k2
 
 132 THE LAWS AND LEGISLATION OF THE NORMAN KINGS 
 
 he asked them. The utmost we can suppose of voluntary action 
 which they had in the matter was the arrangement among them- 
 selves of the way in which the money required for the dominica 
 necessaria should be got together, very much like a parish vestry in 
 later times when a highway rate was made simply had to hear 
 what the sum of money wanted was and then to collect it, its only 
 real voice in the matter being the appointment of the collectors, or 
 a possible appeal against inequality of rating. Even so it was then. 
 Here is order, but not freedom ; permitted action, but no spontaneity ; 
 regular treatment, but not that measure of organisation which really 
 deserves in its most elementary shape the name of self-government. 
 It is a good instance of what in the ' Constitutional History ' I have 
 called routine, a step towards liberty, but only a step — the knowing 
 what you have to expect, the notice of what you are expected to do, 
 not the choice between doing and not doing. It is that first limi- 
 tation of arbitrary despotism which consists in the self-limitation, 
 the restraint of caprice. And so far it is a tbing to be thankful for. 
 To us, however, as I have said, it is most important as showing that 
 fiscal matters were in the country at large despatched in the hundred 
 and shire moots. Perhaps we need hardly have insisted so strongly 
 upon this because we know no other machinery by which this or 
 any other public business could be despatched at all. It is only 
 when we remember how ubiquitous the Norman administration was, 
 how Eanulf Flambard had found it possible to force the royal de- 
 spotism into every county, ' driving ' the king's courts through all 
 England, that is probably superseding for all ordinary business the 
 action of the ancient popular system, that we can see what great 
 tyrannies might be exercised by irresponsible extortion fettered by 
 no ancient machinery and carried into effect by men of character 
 little above that of the bandit. Here we get order — a little order — 
 enough to show how great must have been the disorder on which 
 this is a remedy so acceptable. But the fiscal business, although 
 striking and important, is not all. The dominica necessaria may, 
 nay, no doubt did, include the arming of the shire contingent for the 
 fyrd when it was requisite. We know, however, of no occasion 
 during the reign of Henry I. after the date of this writ on which 
 such an application would be necessary, the first occasion of any 
 historical importance on which the population in mass was called 
 out being the levy for the war against the Scots in 1138 ; but from 
 earlier data of this and the preceding reign we learn that the shire 
 administration was applied in this department. The shires and the 
 hundreds furnished the 10s. viaticum which Flambard and his master 
 extracted from the pockets of the common soldiers, and the provin- 
 cial forces attended Henry I. when he overthrew Robert of Belesme.
 
 THE LAWS AND LEGISLATION OF THE NOKMAN KINGS 133 
 
 Still the judicial matters were the natural province of the courts. 
 ' If hereafter there arise any plea touching the division of lands, if 
 it is between my barons, barones meos do?ninicos,' where you see the 
 word dominicos has no special meaning, the tenure in chief being 
 adequately expressed by barones meos, ' the plea shall be treated in 
 my court, that is either in that court of me or my justiciary which 
 is held attendant on my person, or subject to the view of that court 
 by an inquisition held under my writ by the officers of my court in 
 the province itself.' The commission for hearing and ascertaining 
 the truth as to trials about lands would be exercised in the presence 
 of the county court, but by methods proper to the king's court — 
 sworn recognitors of some sort, such as are found in some few writs 
 of this and the preceding reign, anticipating the larger measures of 
 judicial reform introduced by Henry II. If the suit arise between 
 the vassals of two lords it will be settled in the county court — that 
 is by the customary proceeding of the county court and the popular 
 law — compurgatory oaths and ordeal, or more generally trial by 
 battle. Here trial by battle is prescribed as the regular practice, 
 recourse to other methods being exceptional, ' nisi in eis remanserit,' 
 that is unless the objection to use that expedient arise from the 
 litigants themselves. 
 
 The last clause we have considered in connection with the first : 
 ' I will and enjoin that all of the county come to the counties 
 and hundreds as they did in the time of King Edward, and do 
 not delay for any cause my peace and quiet unless they are em- 
 ployed in following my courts and judgments ; or otherwise so 
 that men who do not follow my courts and judgments shall not 
 delay for any cause my peace and quiet.' The construction is a 
 little doubtful ; we know that the persons employed in the king's 
 judicial and fiscal business were excused attending the popular 
 courts, and also from paying popular taxes such as Danegeld and 
 the like. These words may refer to the exemption, or they may be 
 used simply as a description of the persons who are most likely 
 to defeat justice by non-attendance, and who therefore are to be 
 compelled to obedience. 
 
 [See Stubbs, ' Select Charters ' ; Pollock and Maitland, ' The History 
 of the English Law before the time of Edward /.'; Vinogradoff, 
 1 Villeinage in England.']
 
 IV 
 
 THE 'DIALOGUS DE SCACCARIO ' 
 
 I propose now to examine those passages of the ' Dialogus de 
 Scaccario ' which are supposed to throw light on the history of 
 the Conqueror and on the legislation of the Norman period 
 proper. It is probably unnecessary for me in a lecture like this 
 to go into the elementary points of the history of the 'Dialogus,' 
 but I may for a moment dwell on the reasons which should induce 
 us to set a special value upon its statements, and at all events not 
 to dismiss any of them as unfounded without careful examination 
 and allowance for our own possible misapprehension of their mean- 
 ing. The ' Dialogus ' is the work of Richard, bishop of London 
 from 1189 to 1198, who had been treasurer of the Exchequer under 
 Henry II., and was son of Nigel, bishop of Ely, who had filled the 
 same office under that king, as well as under Stephen and Henry I. 
 Nigel was nephew of Bishop Roger of Salisbury, and was the 
 original organiser of the Exchequer, the confidential minister of 
 Henry I. before his accession, and his chancellor during part of his 
 reign. As all the administrative work of that department was, before 
 the ' Dialogus ' was written, conducted simply by the personal ex- 
 perience of the officials and guided by the forms of the rolls of 
 account, it is obvious that there was no small amount of traditional 
 matter in circulation within a very narrow circle of officials. The 
 body of ministers, and not the office of the Exchequer only, was a sort 
 of family party, or a guild and mystery, and to some extent con- 
 tinued so for a generation after this book was written. The know- 
 ledge that was thus kept up in the family of the treasurer was not 
 that of mere official routine ; the men who worked that routine were 
 statesmen, as the time was capable of producing statesmen as well 
 as civil servants. Specialisation had scarcely begun in the region 
 of government. Judges and bishops were as often employed as 
 ambassadors or even commanders ; a man like Glanville was not 
 only a jurist, but a general ; Richard FitzNeale himself was a bishop, 
 a judge, a financier, and an historian too. Little bits of history almost 
 of necessity intruded into even the most stupid routine of public
 
 THE 'DIALOGUS DE SCACCAEIO ' 135 
 
 office, and Richard was not a mere official ; he wrote or compiled a 
 history which he called ' Tricolumnis,' which is lost, and the loss of 
 which is, for English history at least, one of the greatest losses of 
 the middle ages ; it must have been early lost, as not one of the 
 many annalists of the next century cites it, and indeed may never 
 have been in circulation at all, unless we suppose, as has been 
 conjectured, that it may have been merged in one of the circum- 
 stantial histories of the reign of Henry II. which are known by the 
 names of other authors. However this was, the author of the 
 ' Dialogus ' is connected, with but one intervening life, with the age 
 of the Conqueror. His father, Bishop Nigel, may very well have 
 conversed with men, like S. Wulfstan, who had been bishops, or with 
 men, like Ranulf Flambard, who had been settled in England under 
 Edward the Confessor. He must have had a good chance of know- 
 ing as much as any man did know, not only of the external history 
 such as found its way into the pages of the monastic annalists, but 
 of the legal history as developed in the public offices, and even of 
 the secret motives of the court, with which as the king's most 
 private counsellors the chief members of his own family had been 
 very closely associated. This reason prepares us to give the greatest 
 consideration to any fact which he mentions, unrecorded by the 
 ordinary historians ; and even where it cannot be explained con- 
 sistently with received history, to search for an interpretation that 
 may be regarded as subjectively possible. We are not going to 
 regard him as infallible, because there is hardly any period of history 
 about which a man is ordinarily so ignorant as the time of his own 
 youth and early manhood, when as a rule he is too busy about his 
 own concerns to look very far afield, and when the books are not 
 yet written to which later generations will refer as authorities. But 
 this must be allowed for in detail, and not set up as an objection 
 to our author's general credibility. 
 
 The first of the passages on which I shall comment is that which 
 concerns the resettlement of the land of England after the Conquest, 
 and which can be read in the ' Select Charters.' ' After the conquest of 
 the kingdom, when the king himself and his lords traversed the new 
 territory, a careful inquest was made as to who, having been in arms 
 against the king, saved themselves by flight : from all these, and like- 
 wise from the heirs of those who fell in the battle, all hope of retaining 
 the lands and revenues which they had before possessed was taken 
 away ; for they thought it a great boon to enjoy the benefit of life 
 under their enemies. As for those who, having been summoned to 
 the war, had not come together, or had been prevented by private or 
 other necessary business from taking part in it, when in tract of 
 time they had by dutiful obedience won the favour of their lords,
 
 136 THE 'DIALOGUS DE SCACCAEIO 
 
 they began to possess their property for themselves alone, without 
 hope of succession, and at the pleasure of their lords. In process 
 of time, when those who were odious to their lords were everywhere 
 dispossessed, and there was no one to restore what was taken from 
 them, a common complaint of the natives was brought up to the 
 king, as if, being hated by all and plundered of everything, they 
 would be compelled to go to the foreigners. Counsel being taken 
 on this, it was decreed that such property as by the intervention of 
 a lawful bargain they could on their deserts obtain from their lords, 
 should be conceded to them by inviolable right, but that they should 
 claim nothing for themselves under the title of succession from the 
 time of the Anglo-Saxon monarchy. How wise this provision was 
 is clear, especially as thus for their own sakes they would be obliged 
 for the future to purchase their lords' favour with dutiful service. 
 Thus, then, whoever of the conquered race possessed land or any- 
 thing of the kind, obtained it not because it was his due by hereditary 
 succession, but because either by meritorious service or by some 
 distinct bargain he obtained it.' 
 
 Now with this statement it would be well to compare what Mr. 
 Freeman at great length has drawn out from the chroniclers and 
 from Domesday about the redemption of the land ; it seems almost 
 certainly to be the explanation of what is described in the Chronicle 
 as taking place about the time of the coronation, when men are said 
 to have paid the king tribute, and delivered him hostages and bought 
 their land. There was no absolute confiscation of land except in 
 the case of those who had been in arms against the king at Hastings ; 
 but there was, if we understand the passage right, a general re- 
 settlement. Those who recognised the king, and against whom no 
 charges of rebellion were made, retained their lands by repurchase. 
 As I have suggested in the 'Constitutional History,' the proceeding 
 might be construed differently by different parties — the redemption 
 broke the continuity of the title without necessarily breaking the 
 continuity of the possession. But much more seems to be involved 
 in the words of our author. It appears as if on the first negotiation 
 the right of succession was taken away from the conquered race ; 
 that is as if the Anglo-Saxon owners who were allowed to remain 
 in occupation of their lands enjoyed them only at the capricious will 
 of the lords, or at the utmost, to borrow a later expression, retained 
 them only by a customary tenure at the will of the lord. I think 
 that we are led into a slight misunderstanding of this by assuming 
 this passage to contain a full account of the resettlement. It is 
 really only an obiter dictum intended to explain the existence of the 
 servile or villein class. You see how it arises — in the discussion on 
 the murder fine. The legislation on that point drew a sharp
 
 THE 'DIALOGUS DE SCACCARIO ' 137 
 
 distinction between Englishman and Norman — a much sharper 
 distinction than subsisted a century later, when our author wrote. 
 In his days Englishman and Norman had blended, and the result 
 was that in every case of murder, every dead body found was supposed 
 by custom to belong to the Norman or higher race, unless it could 
 be proved English, and the only indisputable proof of its being 
 English was to prove its being villein. What, then, was the 
 rationale of villenage ? Then follows the passage. It is an expla- 
 nation of the customary tenure of villein property, at the will of the 
 lord, without the right of hereditary succession. It is possible that 
 more may at some time have been intended ; the charter of the 
 Conqueror to London, in which the king allows the citizens to have 
 hereditary succession from father to son, may imply the presumption 
 that even that proud civic aristocracy, in its lower members, was 
 subject to the ordinary condition of succession in villenage — namely, 
 the will of the lord, controlled only by custom of the place. But it 
 would be unsafe to argue very positively about it ; and, indeed, the 
 further back we go into the primitive institution of land tenure, the 
 more difficult we find it to disentangle the custom and law of 
 succession as it must have existed in communities in which the land 
 was regarded as the property of the tribe or township from the 
 custom and law where it was regarded as all held at the will of a 
 lord. 
 
 If, however, we are content to take the passage I have read with 
 its context, confining its particulars to the point which it is intro- 
 duced to illustrate, we shall conclude that it is a rationalised history 
 of one portion of the Conquest proceeding. We know, from the 
 later history both of reliefs in the freehold estates and of the creation 
 of copyhold titles in the region of customary tenure, that the 
 apparent severity of the accepted law was greatly modified in practice, 
 and that the custom of the manor imposed a very strong and sub- 
 stantial check on the tyrannical caprice which might be supposed 
 to underlie the voluntas or voluntas dominorum. 
 
 The next passage in importance is that referring to the mur- 
 drum, in relation to which this account of villenage is introduced ; 
 but as I have exhausted the interest of it in what I have said in 
 previous lectures on the murder fine, I shall pass over it now. 
 
 The next is the account of the Danegeld. The account of 
 the origin of the tax is only approximately correct. There can 
 be little doubt that the origin of the Danegeld was to raise 
 money to bribe away the invaders ; for this purpose two shillings 
 on the hide of land were exacted ; after the exact pressure of the 
 danger was removed the tax was retained, and possibly was repre- 
 sented, as it is here described, as a fund appropriate to national
 
 138 THE 'DIALOGUS DE SCACCARIO ' 
 
 defence, to the use of the mighty men who watched the coast and 
 kept the maritime defences of the realm in efficient order. It was 
 unquestionably one of those agreeable imposts, like the income tax, 
 which, having been originally imposed for an occasion of emergency, 
 have proved so convenient that they have been retained long after 
 their original occasion has passed out of sight — have, in fact, become 
 permanent. According to our author this tax was paid for the 
 maintenance of national defence until the Conquest, when the Danes 
 out of fear of William ceased to devastate the coasts ; the Conqueror 
 then gave up the annual collection, but retained the right to use it 
 for occasional emergencies. And there the author stops, as he does 
 in some other places, in a very disappointing way ; but we must 
 remember that the mention of the Danegeld, like that of the redemp- 
 tion, only comes in incidentally, to explain a word or particular 
 exemption which the master and pupil have found in the old pipe 
 roll they were using. As a matter of fact, we know that Danegeld 
 was abolished by Edward the Confessor, and that it was reimposed 
 by the Conqueror, not perhaps regularly, as our author seems to have 
 been aware, but intermittently, and therefore in larger amounts ; that 
 it was continued under William Rufus and Henry I., who in an 
 alarm arising from a terrible dream he had in 1130, and in dread 
 of shipwreck, made a vow to abolish it. There is no reason to 
 suppose that he fulfilled his vow, or that Stephen's coronation 
 promise to put an end to it for ever was really kept. Henry of 
 Huntingdon, indeed, who records Stephen's promise, says that it 
 was not kept. So Danegeld went on in the old name and in the 
 old character of an ordinary tax until in 1163, in consequence 
 apparently of the quarrel between Henry II. and Archbishop Becket 
 at Woodstock, it ceases to appear in the accounts. 
 
 I will not now anticipate the controversy that arises on that 
 discussion, but it is interesting just to refer to the words of the 
 biographer given in the ' Select Charters.' There the tax in 
 dispute is not named Danegeld, but is described as a payment made 
 to the king's ministers who keep the counties in the place of sheriffs ; 
 in other words, it is described as a payment to the sheriffs for the 
 conservation of the counties, a form which agrees closely with the de- 
 finition of the ' Dialogus ' as a payment to the/or^e.9 viri who provided 
 for the efficiency of defence. The exact point at issue between Henry 
 and Thomas does not come into our view just now, but I may add 
 that I think the most reasonable explanation of it is that, the Dane- 
 geld being farmed by the sheriff at a fixed sum, the balance collected 
 was either pocketed by him or spent on defence ; or probably 
 appropriated on the understanding that he was responsible for the 
 defence, which for more than a century had been a nominal thing.
 
 THE 'DIALOGUS DE SCACCAEIO ' 139 
 
 I conclude that Henry II. wanted to get this balance out of the 
 hands of the sheriff— that Becket would not agree, and that in the 
 event the character of the impost was changed, and a carucage sub- 
 stituted which all found its way into the Exchequer, no part being 
 intercepted either by farming or by allowance of customary per- 
 quisites to the sheriffs. 
 
 The next passage we will turn to is in clause 16, in the portion of 
 the chapter introductory to the account of Domesday — it refers to 
 the character of the Conqueror as legislator and to the traditional 
 accounts of his enactments. When that illustrious subduer of 
 England had brought the further regions of the realm under his 
 empire and had subdued the minds of the rebels with terrible 
 examples, that no facility for error might be given henceforth, he 
 determined to subject the people to written right and law. Having, 
 therefore, proposed the English laws according to their tripartite 
 distinction, that is Mercian law, Dane law, and West Saxon law, 
 some he rejected, some he approved and added to them the trans- 
 marine laws of Normandy which seemed most likely to be efficacious 
 for peace. Here, you see, you have the traditional story already 
 referred to, and resting on the very apocryphal statements of the 
 laws so-called of Edward the Confessor ; according to which the 
 Conqueror gave the nation the choice of laws, only adding to King 
 Edward's his own amendments. This is not one of the valuable 
 passages of the ' Dialogus ' — it shows, in fact, that the writer did not 
 care by analysis unnecessary for the development of his thesis to go 
 into the material points of the legislative history. 
 
 Look next at the account of the Domesday survey and Domes- 
 day Book in the same section. This is very clear and circumstantial, 
 and, like every other passage of the book which can be compared with 
 other documentary evidence, is exact. Set by the side of this section 
 the heading taken from the Ely Domesday, and you will see 
 by the exact agreement that our author had Domesday before him. 
 I will not stay to construe the passage, for it is all quite straight- 
 forward, and as it does not give us any additional information, 
 it need not detain us. 
 
 The speculation on the name of Domesday which immediately 
 follows is worth a passing note. It is clear from it that the survey 
 had already acquired its name of Domesday in the twelfth century. 
 I think it is certain that the appellation is taken from the solemn 
 day official account ; for in the Anglo-Saxon dictionary I find no 
 use of Domesday for a day of man's judgment ; it always refers to 
 the day of judgment at the end of the world. Therefore we must 
 not suppose that the name belongs to any other book of dooms or 
 legal proceedings — it is the title of the great day of final account
 
 140 THE 'DIALOGUS DE SCACCAMO ' 
 
 borrowed here from its primary usage as a term of religion, not 
 vice versa. We must, therefore, accept our author's explanation of 
 it as used 'per mctaphoram, for as the sentence of that strict and 
 terrible last account can be evaded by no art of tergiversation, so 
 when in this kingdom controversy arises about the things which are 
 here noted, when reference or recourse is had to this book its 
 sentence cannot be explained away or disobeyed with impunity. 
 
 This, then, is the primary application in secular matters of the 
 word Domesday. After this it is not unfrequently ascribed to other 
 similar compilations — there is a Domesday of S. Paul's drawn up 
 in 1180, and a Domesday of Canterbury also containing extracts from 
 Domesday and collections of documents accounting for the different 
 grants of land and the particular tenures of estates held under the 
 monastery. One more observation on this. You will notice that 
 our author describes the proceedings of the Domesday commissioners 
 in language which contains no words expressive of any very 
 exceptional proceeding. The king communicato consilio, that is 
 having laid his plan before his barons or sapientes, sent the most 
 discreet men from his own side through the kingdom in circuit. 
 Whether he did this or not is not the point — he probably did — but 
 if he did it was not in the eyes of Richard FitzNeale an extraordi- 
 nary proceeding. It was a mission of fiscal commissioners exactly 
 answering to the fiscal commissions of his own day and to the 
 itinera of the justices or barons of the Exchequer. We should 
 not infer from it that the practice of those times was in his eyes a 
 novelty even in the days of the Conqueror. 
 
 This leads to a further point, the Rotulus exactorius of the 
 18th chapter. Domesday was the final rate book or valuation 
 book of the country, the Rotulus exactorius was the special rate 
 roll of the royal ferms — an abstract or summary of the several 
 amounts due from the sheriffs and other financial collectors of 
 the royal revenue. The existence of such a roll implies, as you 
 see from the words of the definition, a previous settling of the ferms. 
 This settling of the ferms belongs to the reign of Henry I. That 
 we know, not only because we find them fixed in the pipe roll of 
 1130 at pretty nearly the same amounts that appear in the rolls of 
 Henry II. 's reign, but from the exact account which our author 
 gives at p. 193. In Domesday the royal rights are often represented 
 as consisting of ferms, that is provision for so many days and nights ; 
 and besides that, much of the rent paid by the tenants of the 
 crown lands was also paid in kind. The author himself had seen 
 men who had seen the country people bringing up their dues in hay 
 and straw, corn and meat, which was taken at a distinct valuation 
 in payment of the sums fixed in money. Well, of course that was a
 
 THE 'DIALOGUS DE SCACCAEIO 141 
 
 very wasteful system, oppressive to the poor and embarrassing to 
 the government. Henry I. by a similar expedient, deffinito mag- 
 norum consilio, sent prudentiores et discretions men through the 
 country to put a pecuniary estimate on the ferms, and by valuing 
 the customary payments in kind to enable the payers to commute 
 universally. The result of that measure was the fixing of the ferms 
 — the Rotulus exactorius — a record and proceeding second in 
 importance only to the Domesday survey itself. So far as touches 
 our financial history, I am not aware that the original Rotulus 
 exactorius exists, either in genuine copy or transcript ; but as the 
 ferms are easily ascertainable from any of the early pipe rolls it 
 would not be difficult to reproduce it, and in the calculations of 
 Norman and Plantagenet revenue which I have made in the ' Consti- 
 tutional History ' I have used a rotulus exactorius which I compiled 
 myself from the rolls. 
 
 And this brings me to the last point which I shall particularly 
 notice, the account of the institution of the Exchequer itself given 
 in the ' Select Charters ; ' this is the vexed question whether the fiscal 
 system of the Norman kings was brought from Normandy or grew 
 up in England before and after the Conquest. It is said to have 
 begun from the conquest of the kingdom by King William, its 
 method, however, having been taken from the transmarine Exchequer ; 
 it is said so, but the English and transmarine Exchequers differ in 
 many points, and those almost the points of greatest importance. 
 There are some who say that it was a usage of the days of the native 
 kings ; that rests upon the institution of the blanch ferm, which some 
 old men know from their fathers was an immemorial usage in their 
 time ; but that would prove only the nature of the ferm and not the 
 sessions of the Exchequer to be older than the Conquest ; and even 
 that may be doubted, for Domesday does not say a word about the 
 blanch ferm, neither is it mentioned in such finance rolls of Edward 
 the Confessor as were extant in our author's time. 
 
 Now this being so it is not fair to quote the ' Dialogus ' as authority 
 for the Norman origin of the special Exchequer methods which the 
 author is describing. When he wrote there was a Norman Exchequer, 
 and the processes in it were, as he says, and as we know from the 
 extant rolls of it, quite different from the usages of the English 
 Exchequer. Still, as exchequer was a foreign word, it was not at all 
 unreasonable to suppose that it may have come from Normandy into 
 England. But we know now that no evidence has been produced 
 from the vast mass of Norman charters of the reign of the Conqueror 
 and his sons, that the word exchequer was used for the financial 
 account court of Normandy until long after it was in use in England, 
 not only for the great Exchequer of the kings, hut for the audit court,
 
 142 THE "DIALOGUS DE SCACCAEIO ' 
 
 also of the lords, such as the earl of Leicester and the archbishop 
 of York. The name is older in England than in Normandy : the 
 usages in England are different from the usages in Normandy, and 
 the institution of the blanch ferm, which is not adopted in Normandy 
 at all, is so inherently and intimately bound up with the Exchequer 
 process in England as to prove that, except as both being audits of 
 account, the two exchequers have nothing in common but the name, 
 which, as I have just said, is older here than there. 
 
 I do not know that the matter is of other importance than as 
 illustrating the growth of peculiarly Norman institutions on English 
 soil ; a matter which has been rather complicated by the jealousies 
 of French and Italian archaeologists-; for the fact that the Norman 
 kings of Sicily had an audit analogous to these exchequers, to which 
 sometimes and loosely the name of exchequer is given, has been used 
 as an argument that it was derived from a continental Norman 
 source, and therefore that the English practice was also. But all 
 this rests on a baseless conjecture ; the word scaccarium is not 
 applied properly to the Sicilian fiscus, and if in its proceedings any 
 resemblance to the English method of account could be traced, it 
 might fairly be ascribed to Master Thomas Brown, the English 
 counsellor of the great King Roger ; but the Sicilian antiquaries, 
 either in their dislike to the idea of Thomas Brown, or wishing to 
 maintain an independent origin for their own institutions, are intent 
 on proving that the system of their Dohana is Saracenic rather than 
 Norman, and try to attenuate Mr. Brown's importance in a very 
 ungrateful way. But there we leave it. That Sicily was in the 
 twelfth century indebted to England for her bishops, judges, and 
 finance ministers, we know ; it was not to Normandy but to England ; 
 the kings only were Norman, and they had been Italianised for more 
 than a generation. Therefore if there is any common material, Sicily 
 got it from England. If there is not, then the whole hypothesis 
 falls to the ground. Certainly on no hypothesis can the introduction 
 of Norman principles into Apulia be made the basis of an argument 
 as to their introduction into England. 
 
 [' De Necessariis Cbservantiis Scaccarii Dialogus,' commonly called 
 4 Dialogus de Scaccario,' by Bichard, son of Nigel, Treasurer of England 
 and Bisliop of London. Edited by Arthur Hughes, C. G. Crump and 
 C. Johnson. 8" Oxford, 1902.]
 
 V 
 
 LEGES HENEICI PEIMI 
 
 We have now come to the hardest, if not also to the dullest 
 and driest, perhaps also the most remunerative, part of the work 
 which we have set ourselves, the examination of the so-called 
 Leges Henrici primi. The subject is so full of matters of question 
 that it is difficult to know which to take first. Perhaps the name 
 has the first claim. Here is a collection of legal materials, extracts 
 from early codes, canons, law books of all kinds ; here a sentiment, 
 there a statement of principle ; here a list of names, and there a 
 quotation from Scripture : possibly the commonplace book of a law 
 student who has neglected to make an index ; possibly the notes of 
 lecture of a student of the age of Yacarius ; anyhow a congeries of 
 legal cram, and to it the title is given Leges Henrici primi, and, 
 what is more, a preamble containing the praises of the great king 
 and prayers for the welfare of his wife and children. To cut this 
 part of the matter short, let me say that while there may be doubts 
 as to the proper application of the title to the whole body of the 
 book, there can be no doubt that it applied to the first two docu- 
 ments contained in it, which are the charter of Henry I. granted at 
 his coronation, on which we have been commenting at length, and 
 the charter of the city of London, which I have already treated. 
 These are the first morsels of the collection, and it is even 
 within the bounds of possibility that they were all to which the 
 compiler in the first instance intended to apply the title. Mr. Free- 
 man, in his essay on this topic in the fifth volume of the ' History 
 of the Norman Conquest,' evidently inclines to a doubt whether 
 there is anything more than an accidental connection between this 
 part of the collection and the miscellaneous matter that follows. 
 That doubt I myself do not share, because it would lead, as it seems 
 to me, to still greater difficulties if we supposed the writer to have 
 intended the panegyric of his preamble to apply only to two tran- 
 scripts of tolerably well known documents. Perhaps, too, I am 
 influenced by the fact that it is partly to the preamble that we owe 
 the material for fixing the date of the compilation, which so far as
 
 144 LEGES HENRICI PRIMI 
 
 date goes seems to hang sufficiently well together. This considera- 
 tion takes us so far. 
 
 Little important light arises from the question of manuscript 
 sources, all of which seem to be of at least a century later date 
 than the compilation itself, and are of the thirteenth century at the 
 earliest ; but no valid objection arises in this to the genuineness of 
 the work as a work of Henry's time, for we have in a much earlier 
 Cottonian MS. a full copy of the preamble, which, as I have said, 
 to the best of my belief belongs to the whole collection. External 
 evidence throwing little or no light on the date, we come to the 
 question of internal evidence, which has been discussed at different 
 times by very different persons with a singular tendency to a 
 common opinion. It has been discussed not only by the early 
 collectors, as Lambarde, Selden, and suchlike, but by Phillips in his 
 German history of the English law, by Allen the eminent Whig 
 constitutionalist, by Palgrave, by Freeman, and last of all by 
 Dr. Liebermann, who seems to me to have overcome all the difficul- 
 ties that presented themselves to the earlier critics, and, as nearly 
 as anything of the kind can be settled, to have settled the question. 
 
 There are several points of literary as well as legal interest 
 touched in this settlement. The preamble, for instance, contains, as 
 I have said, a prayer for the life of Queen Matilda, and some expres- 
 sions that seem to relate to the glories of the imperial marriage of her 
 daughter. If this were met by no questioning, it would fix the date 
 between 1110, when the empress was married, and the year 1118, 
 when her mother died. But upon this arose certain doubts as to 
 the character of the contents. In one place the number of English 
 bishoprics is stated as fifteen, which number was not reached until 
 the foundation of the see of Carlisle in 1133. In another place 
 references were made to decrees of the popes which were supposed 
 to be found only in the Decretum of Gratian, which was not put 
 into circulation before the year 1151. These considerations threw 
 the date on, and led Mr. Freeman to fix the compilation early in the 
 reign of Henry II., a supposition to which I also inclined at one 
 time, being, however, puzzled by the fact that the writer should 
 have been able to steer so clear of the legislation of that king as in 
 no case, even accidentally, to stumble across it. Dr. Liebermann 
 has got rid of both these points, calling attention to the fact that the 
 number fifteen is a various reading, with multos as the alternative ; 
 and that even if fifteen be accepted, still by counting in the see of 
 Whithern, which was in the ancient lists at the end of the ordinary 
 historical compilations such as Florence of Worcester, that number 
 might be made up without counting in Carlisle. What is of more 
 importance, he shows very distinctly that the quotations supposed
 
 LEGES HENKICI PEIMI 145 
 
 to come from the Decretum of Gratian are found with more literal 
 exactitude in the Panormia of Ivo of Chartres, which I mentioned 
 to you in an early lecture as the contemporaneous compilation of 
 ecclesiastical laws. These difficulties being cleared away, he falls 
 back on the dates of the preamble, and adduces in confirmation of 
 his conclusion the use of the word nuper in the description of 
 Henry I.'s writ for the holding of the hundred court, which also 
 I have already mentioned. This being accepted, the date would 
 fall between 1112, when Bishop Sampson died, and 1118, the 
 date of Queen Matilda's death, and this is the conclusion now 
 received. Of course the discovery of other manuscripts and the veri- 
 fication of other citations may lead to a review of this decision, but 
 the old conclusion is now the favourite one ; it is the one which 
 Phillips early in the century inclined to, and is of course well 
 accordant with a guess, made merely as a guess by some writers, 
 that the real author of the compilation was a no less well-known 
 person than our old friend Ranulf Flambard, who, surviving his 
 wicked master and living a princely life as bishop of Durham, only 
 died in 1129, six years before Henry I. There is no evidence, 
 internal or external, that he was the author ; but he certainly may 
 have been, there is no evidence against it ; still, it is a mere 
 guess. 
 
 Leaving this, then, we come to the preamble. This is not 
 printed in any English book, but was copied by me many years ago 
 from the Cottonian MS., and has been very recently printed in Ger- 
 many by Dr. Liebermann in the ' Zeitschrift der Savigny Stiftung,' 
 iii. Its chief interest, as it seems to me, is that of a curious 
 relic of literary work, but we may find that it has some value 
 in relation to the question whether or no the preamble belongs 
 to the whole compilation or only to the first two charters. The 
 doubt which I have before mentioned as occurring in Mr. Freeman's 
 discussion has been further noted by Dr. Brunner, the author 
 of the very useful books on the origin of jury and on the Norman 
 jurisprudence generally in Holtzendorff's Encyclopaedia. I will 
 read a freeish translation of this document : ' That the king of 
 England is by singular majesty lord of his kingdom is recognised 
 both by the intuition of manifest truth and the practical ex- 
 perience of individuals.' The king is emperor with singular majesty 
 in his own island — a declaration of the peculiarly imperial cha- 
 racter of Norman royalty as not only a fact of experience but 
 a first principle of intuition. We go on to see how this arises 
 from the renowned excellence of the king himself and from 
 the fealty due to him of right from his subjects, but it is also 
 promoted by the position of the country, shut in by the benefits of
 
 146 LEGES HENRICI PItlMJ 
 
 nature and vicinity of the sea, so that without the licence of its 
 lords no one can come in, no one can go out. ' Whence so great is 
 the security of the people, so great the abundance of all good 
 things, that if it were ruled by the honesty of true reason it would 
 reproduce the pristine times of the golden age.' The silver streak, 
 you see, struck our friends forcibly. The king was lord ; the people 
 were in the trap tight enough ; as well make the best of it. But 
 even he seems to be struck that it is rather ludicrous to speak of 
 this reign as the golden age ; he remembers that there have been 
 battles and such a person as Eobert of Belesme ; and not so long ago. 
 ' This, however, is a sort of drawback on so great privileges, and its 
 blessings are almost too much for it ; when it is all free from molesta- 
 tion from without, yet such is the miserable condition of mortals 
 always inclining to evil and prone to a fall, it has always been troubled 
 with intestine seditions of ambition and a blind striving after 
 novelties.' So true ; almost a forecast of the cloture. ' Hence from 
 the very origin of the new-born world, those whom the Almighty 
 Creator has enriched with equal liberty, have been cast out by the 
 motives of inflammatory disobedience, as Adam and Eve were turned 
 out of paradise, and those who could not bear the Lord of Heaven are 
 made to serve the will of evil men, continually forced on from bad 
 to worse in the prosecution of their evil courses. But although 
 they are undeserving, divine pity so contrives the conformation 
 of their masters that vile slavery may not annihilate them or 
 impunity and security too great may not absolutely ruin them. 
 Even kings who excel all others in ceremonial pomp, that they 
 may not become insolent by the greatness of their powers, are 
 frequently harassed by infirmities of the flesh and human neces- 
 sities for a very useful purpose. For it is not ... or raging 
 madness, or infinite acres, or ingenious luxury, or money extorted 
 from the lamenting people ; it is not tho Tyrian vestments, nor 
 gilded ceilings, nor the colour of the forehead or any royal mark 
 that constitutes a king ; a king is he who has laid aside fears and 
 the evils of a gloomy conscience, who is not moved by ungovernable 
 ambition, or by the ever varying favour of the hasty multitude ; a 
 king is he who casts away the sickening impulses of a selfish heart 
 and desires in his benignity to benefit all. Such kings as have 
 recently been raised to this pitch of dignity not by popular ambi- 
 tion, not by courting the favour of the people, but by moderation, 
 are regarded and valued by good men.' 
 
 As Horace has said, ' If a man is a cobbler by nature, it is little 
 use to call him a king.' Ah, well, we proceed. 'Temperance is 
 good for lords and discipline is good for subjects ; for after the 
 sagacious intention of men has penetrated all things, and nothing
 
 LEGES HENEICI PEIMI 147 
 
 appears inconvenient that can be referred to a standard of money, 
 with the increase of wealth, increases envy ; from envy grows hatred, 
 from hatred war ; faith and almsgiving cease to have any virtue. 
 But if any monuments of native goodness remained, men established 
 laws and rights of living, built cities and trustworthy refuges where 
 innocence might be safe among the wicked, and those who would 
 not be kindled by exhortations to probity might at least be com- 
 pelled to dread punishment.' 
 
 This passage is evidently an extract, possibly from some pseudo- 
 Augustinian document which has not been verified, and of which the 
 sense is more accessible than the grammar, although it is not easy 
 to see what induces the writer to place it here. What follows is 
 simpler. ' Law is of two kinds : one natural, which is the same 
 among all ; another of constitution, in which each several country 
 has some vernacular rule of life of its own ; but law we generally 
 agree to call what is chosen by way of preference provided it be 
 consonant with religion, agreeable with discipline, and profitable 
 for the safety of men.' This is the emendation of King William on 
 the English laws : ' Whatever you have proved honourable and useful 
 on every side, our blessed king and lord ceases not to illustrate with 
 daily praises, whence this book which I have compiled for the 
 reproof of our times, I have arranged with a beginning only, not an 
 end, as if in a garden of delights, among all the odorous pigments of 
 pleasure, I would gather a single flower, and not like a thirsty Tan- 
 talus straining at flying waters, would praise the streams that flow 
 conveniently enough for my lips. The king's successes in war and 
 the glory of his children I have left for more skilful muses, thankful 
 enough myself to contribute a pure stream of peace to the symposium 
 of readers.' 
 
 Well done, Flambard, if Flambard it is ; you may imagine how 
 flowery his episcopal charges would be. Then follow the few lines 
 that have been long in print. ' These then are the jocund dances 
 of peace and longed-for liberty which the glorious Caesar Henry 
 by his writings and exhibition of good works pours down in 
 radiance on his people, the king, moderate, prudent, righteous, 
 and brave, whom may God with happy auspices and every 
 wholesome blessing of body and mind, with his famous wife 
 Matilda the Second and their children, make to reign for long 
 ages of ages, and with the eternal peace of our nation.' The jocund 
 dances that follow are the two charters which we have been 
 commenting on. No doubt great national benefits, but scarcely to 
 our minds answering the description. Yet there are men who 
 regard legal writs as better than sensational novels, as our old friend 
 Prynne found the brevia de expensis and other returns to parliament, 
 
 l'2
 
 148 LEGES HENRICI PFJMI 
 
 desirable, delightful, and most useful, and the Tower of London 
 merely a paradise of princely delights. 
 
 I hope that I have not spent too much time on this lively pro- 
 logue, in which, perhaps, you may not feel quite so much interest as 
 I do ; but it is new, and, like every discovery of a relic of a most in- 
 teresting age, a little likely to exaggerate itself in the eyes of one of 
 the first who gets sight of it. I will only add that, absurd as it 
 seems as the preface to a law book, it would be more incredibly 
 absurd if we retained it merely as the preface to a transcript of a 
 couple of charters. Whether it belongs to the whole of the following 
 material, or the original unus flos has been added to by successive 
 commentators until it reached its present size, I dare not venture 
 categorically to decide. It contains no less than ninety-four chapters, 
 all of them subdivided and paragraphed, but so far as one can ascer- 
 tain arranged on no very definite principle, and extremely confusing 
 to work at without an index. I imagine that one of the first 
 exploits of our rising school of historical lawyers will be to give us 
 a thoroughly critical edition, with every extract referred to its author, 
 and all the difficulties of the text fully stated. 
 
 We will begin by a general survey of the materials used by the 
 compiler. These are primarily the laws of the Anglo-Saxon kings, 
 or rather, as Canute is the chief of them, the laws of the Anglo- 
 Saxon period ; of course, in translation, which makes the exact 
 identification of particular passages more difficult, and possibly not 
 directly drawn from these sources, but from some intermediate Latin 
 codification or arrangement of them not now accessible. There does 
 not seem to me to be any distinct evidence that the so-called laws 
 of Edward the Confessor were known to the compiler, for the occa- 
 sional coincidences of language may be explained on the reverse 
 theory, and even without supposing any direct connection between 
 the two, through some intermediate work. But the laws of the 
 present reign, that is the charter of London, the coronation charter, 
 and the writ for holding the hundred court, are referred to in exact 
 citations. Next to this source of information come the canonical 
 collections of the eleventh and twelfth centuries, through which 
 alone also the civil law of Justinian seems to be known to the com- 
 piler. Of these collections that of Burchard of Worms was the first 
 of much importance known in England, and the commentators on 
 these laws both in the Government edition and in Schmid's are in- 
 clined to trace all the more important canonical extracts to Burchard. 
 Dr. Liebermann, whom I have so often referred to, prefers to look 
 to the Panormia of Ivo of Chartres, the difference between the two 
 being mainly this, that whereas Burchard knew the Roman civil 
 law only through the Theodosian Code, Ivo had been able to use the
 
 LEGES HENKICI PEIMI 149 
 
 Code and Pandects of Justinian. On this particular point we have 
 not much light, because there are very few extracts, if indeed there 
 are any, from the Koman civil law in this compilation. But it has 
 importance in this way : these laws do contain several citations from 
 the early canons in a form nearly approaching that in which they 
 are found in the Decretum of Gratian, which was published in 1151. 
 Hence the supposition, which I have more than once referred to, that 
 the book was drawn up after that year. Dr. Liebermann, by a careful 
 examination of these, has come to the conclusion that they may all 
 be derived from Ivo, whose work was an anticipation of the Decretum, 
 and supplies several passages in a text in which they are not found 
 in either Burchard or the Decretum. As I have not myself been 
 able as yet to complete the analysis, I rest content for the present 
 with Liebermann's theory, but I am bound to mention a third source 
 which may have furnished not only these canonical articles, but some 
 more distinctly secular ones. Burchard and Ivo were not the only 
 collectors of ecclesiastical laws, and it may be questioned whether 
 our compiler did not live so near the date of Ivo that it would be 
 doubtful whether the Panormia had yet won the authority which it 
 possessed a little later. There is a very famous collection of canons 
 called the Collectio Hibernica, because it begins with some synods of 
 S. Patrick, and may have been a compilation of Irish monks settled 
 in England or in Germany, which, like the collections of Burchard 
 and Ivo, incorporates extracts from secular legislation, such as the 
 capitularies of the Frank emperors. We have in the Bodleian, in 
 the Liber Sancti Dunstani, a copy of this collection written in the 
 ninth or tenth century, containing, as it seems to me, more material 
 than is contained in the two better known collections, and certainly 
 containing large extracts from the capitularies. Without, then, 
 denying that our author used Ivo — and, indeed, I should not deny 
 that he had used Burchard — I am inclined to add this as a rather 
 more probable source ; and some day, when I have less to do than 1 
 have just now, I hope I maybe able to work out the supposition into 
 something like a fact. Well, through these mediums, whichever is 
 the first in importance, our compiler has access to the penitentials 
 of the early Anglo-Saxon Church, to the decrees of the popes, to the 
 civil law, and to the capitularies of the Frank kings and emperors. 
 The other books which he quotes, such as Isidore of Seville, and 
 occasionally early popes and fathers, come from the same source. 
 In saying this I am not denying our compiler the claim to original 
 treatment. He has in most places made the material his own by 
 verbal alterations which leave the sense only of the common passages, 
 and that sometimes impaired. But enough has been said, I think, 
 to show that his work is curious, and full of, at all events, second-
 
 150 LEGES HENKIC1 PRIMI 
 
 hand research ; a work likely, as the study of ancient law progresses, 
 to attract more careful attention than it has yet attracted, and with 
 possibly some more curious results. 
 
 Having said all this as to its merits, I must now add that so far 
 as arrangement goes it is a labyrinth of difficulties, so puzzling and 
 unsatisfactory that it would be a waste both of my time and of yours 
 to attempt a rationale of it. The best course, I think, will be to 
 regard it for the most part as an undigested mass of detail, and to 
 fix certain points of our own on which we may look for information 
 running through the whole of the work. However, so far as the 
 possibility of a general idea is concerned, we may run through the 
 headings, a few of the first of which are coherent and orderly. 
 
 There are 94 clauses, including the two charters with which the 
 compiler begins : clauses 3, 4, 5 are on the nature of causes ; 6, 7, 8 
 on the divisions of England and the character of provincial jurisdic- 
 tions. Clause 9 returns to the classification of causes ; clauses 10, 
 11, 12, 13 are on the royal jurisdiction in general, in ecclesiastical 
 causes, in matters capable of being settled by payment of damages, 
 and in matters criminal, in which the person convicted lies at the 
 king's mercy ; clause 14 is on relief of heriots ; 15-20, explanations of 
 the vernacular terms of the Anglo-Saxon law ; and 21 returns again 
 to causes ; 22 onwards to 42 are concerned with more minute 
 directions for legal proceedings, crossing backwards and forwards 
 with bewildering repetitions, and returning often in the same words 
 to subjects that have been treated of before, such as royal rights, 
 summons to popular courts, contempt or oferhyrnesse, and definitions 
 of obsolete expressions ; 42 is on summons again, and with the 
 same absence of order the articles down to 61 may be said to be ex- 
 pansions of the earlier rules for trials, both in the county and in the 
 proper courts of the king ; 62 is on the distinction of legal terms, 
 the division of the year into legal days and non-legal ; 64 is on the 
 division and classification of oaths ; 66-76 are on homicide, includ- 
 ing the murder fine ; 77-79 on emancipation of the unfree ; 
 80 returns to homicide ; 81, 82 are on the giving of peace, reconcilia- 
 tion, and the termination of blood feuds ; 83-90 on similar questions 
 connected with the practice of private war, chiefly extracted from 
 the capitularies, and referring to a state of society about which we 
 are generally assured that it never prevailed in England, except 
 under King Stephen ; 91 and 92 return to the murder fine ; 93 is a 
 list of the payments to be made for injuries of limbs, and 94 on 
 injuries inflicted without drawing of blood. There is no envoy or 
 epilogue, the subject ends as abruptly as it begins. 
 
 If you trace any principle of arrangement here, you are more 
 successful than I can claim to be ; all that I can see is this : the
 
 LEGES HENRICI PEIMI 151 
 
 author begins with a classification of causes, and immediately runs 
 into confusion between the forms of procedure and the matter of the 
 cause ; he then attempts the distinction of courts and runs into a 
 cross division again ; he then goes to the subject of offences, and 
 from that comes round again to procedure ; the last 30 chapters 
 seem to have a common factor, the treatment of murder, mutilation, 
 bloodshed, and bloodless assault. You will have noticed that, while 
 there is a show of distinction between secular and ecclesiastical 
 business, the two are mixed together whenever there is a chance of 
 doing so ; often the heading of the chapter refers only to the first 
 clause, the later sections, or sub-sections, referring to something 
 only incidentally connected with the matter. On the whole, I think, 
 my first definition of the work as a lawyer's commonplace book 
 without an index, or, perhaps, notes of a professor's lectures on 
 Anglo-Norman legislation that have not been submitted to the 
 lecturer for correction and arrangement, would be a fair account of 
 the thing. Bad and confused, however, as the method is, there can 
 be no doubt that the whole is a mass or a mine of information, out 
 of which we may get some ore in the remaining lectures, if we can 
 ourselves supply the principle on which to conduct the search. 
 
 The first of the selected points on which I now propose to dig 
 into the mine of information which the Leges Henrici primi contain, 
 will be that of the royal jurisdiction. And I take it first, partly 
 because it is the department of Norman legislation which seems 
 most distinctive, and, secondly, because it is the point which, 
 on account of the wonderful prologue, seems to have occupied 
 in the mind of the compiler the most important place. I will 
 add, by the way, that we shall find in this department most 
 abundant illustration of the conclusion which I came to, that 
 the author of the prologue was likewise author of such portions 
 of the work as are not simple extracts from other books ; the 
 style of these passages is so very similar, and is, in fact, so very 
 much like the style of the prologues to Anglo-Saxon charters, that 
 it almost suggests that our author was an English and not a 
 Norman or French jurist. Well, as popular or customary law is 
 one great feature of Anglo-Saxon constitutional history, the royal 
 jurisdiction is a great feature of Anglo-Norman administration, and 
 in this idea I propose to set to work first ; other points which we 
 may take will be the relation of ecclesiastical judicature to secular 
 judicature, and the actual procedure of the popular courts ; these 
 subjects cross one another, as you may well suppose from what 
 I have already said, and will involve repetition, but by this time 
 you will have learned to endure that minor evil. 
 
 The section with which we will begin is partly printed in the
 
 152 LEGES HENRI CI PKIMI 
 
 ' Select Charters.' The kingdom of England is divided into three ; the 
 words in regno Britannia seem redundant, and may probably be one 
 of those interpolations which were made about the time that we 
 date our extant manuscripts. If not redundant, they are an expansion 
 of the regnum Anglia, and yet any regnum Britannia must have 
 included Scotland and Wales, which do not come under any of the 
 three divisions — these three are Wessex, Mercia, and the province of 
 the Danes ; the kingdom has two archbishoprics, fifteen bishoprics, 
 and thirty-two counties or shires. The counties are divided into 
 hundreds and tithe socns ; the hundreds into deaneries or tithings and 
 pledges of lords, that is into either collective frankpledges or manorial 
 jurisdictions, in which the lords are sureties for their vassals. 
 
 We then proceed. Of English law there is a threefold division 
 after the same lines. There is a law of Wessex, another of Mercia, 
 another is the Dane law ; and besides this we recognise the tre- 
 mendous imperium of royal majesty which we read of as continually 
 presiding over the rest, and which we attend upon, or observe, as 
 a rule to be regarded for the sake of security or public safety. 
 This tremendous imperium Dr. Schmid freely acknowledges that he 
 does not understand, and it is possible that it may be referred to the 
 divine law. But I think from what follows it most probably is 
 intended to represent the royal law or jurisdiction as presiding over 
 and regulating the three customary laws, and in fact the very next 
 words represent the four in terms that could hardly include a refer- 
 ence to the divine law, for he goes on, ' But in many things they 
 differ, but in many they agree ; and even in the several provinces 
 the rules of law of the several counties often differ, according as the 
 greediness and malignant researches of professors have added to 
 the legal statutes heavier kinds of offences ; that is, as the ingenuity 
 of lawyers has invented distinctions of crimes and penalties. For 
 so great is the perversity of the world and the overflowing of evil, 
 that the definite truth of the law, and the permanent providence of 
 healing art, can be rarely found out ; but to the greater confusion of 
 all, new methods of impleading are sought out, new methods of 
 injury are found, as if the old ones did not do mischief enough, and 
 that man was to be judged of most value to society who had inflicted 
 on it the greatest hurts.' Our friend now becomes so bitter as to be 
 unintelligible ; ' nevertheless, to those whom we cannot do without, 
 we do, by a sort of infernal hypocrisy, profess love and reverence ; 
 whatever does not answer pari passu to our own crudelity (possibly 
 credulity), nobis natum or non reputamus.' The reading is uncertain, 
 and the sense absolutely lost. 
 
 The sentiment and the style belong alike, I am sure, to the 
 author of the prologue. In accordance with the division given
 
 LEOES HENEICI PEIMI 153 
 
 above, he now goes into the organisation of the local courts, clause 7, 
 the chapter printed in the ' Select Charters,' which we shall recur to in 
 discussing another head, if necessary, going on now to clause 9 : ' The 
 quality of causes is manifold ; amendable, non-amendable, and those 
 which belong solely to the jurisdiction of the king. The amendable 
 are those which may be ended by the payment of a compensation ; 
 the non-amendable those which require punishment by mutilation 
 or death ; and besides these, which within certain limits are regulated 
 by local and customary law, there is a department that belongs 
 especially to the crown.' The same division is made in the fifth 
 clause of the same chapter. The difference of causes is manifold : 
 capital causes, causes in which pecuniary redemption is admissible ; 
 transient, permanent, or mutual (that is apparently where one side 
 is as much in fault as the other), and thirdly, those which belong to 
 the jus regium. 
 
 Clause 9. — While the usages of the West Saxon law, Mercian, 
 and Danish law are opposed to or vary from one another, the pleas 
 of the king's court are in pretty much the same relation to them 
 all, which court everywhere maintains its uses and customs in an 
 unchangeable uniformity or uniform immobility. Then follows 
 another division: the soke of pleas, that is the local jurisdiction and 
 profit of lawsuits belongs either, first, singularly and solely to the 
 king's fiscus or exchequer ; or, secondly, partly to that tribunal, the 
 king having only a share of the profits ; or, thirdly, to the sheriffs 
 and bailiffs of the king in their ferms ; or, fourthly, to the barons, 
 who have sac and soke. That is another principle of arrangement, 
 and is illustrated by abundant evidence. The first division is 
 exercised in the curia regis ; the second by participation in the 
 work done in the county courts by the sheriffs and judges itinerant 
 as royal justices, in the way described by Glanvill when he draws 
 a distinction between the two sets of functions of the sheriffs ; the 
 third in the strictly popular courts farmed to the sheriffs ; the fourth 
 in the private franchises of the territorial nobles. In connection 
 with this I will read the first chapter of Glanvill's first book, which 
 harmonises with this : ' of pleas, one sort is criminal, another civil ; 
 of criminal, one pertains to the crown of the king, another to the 
 sheriff of the county.' In his commentary or expansion of this passage 
 Bracton, hi. 35, writing, you will observe, long after the jurisdiction 
 of the coroner to keep the pleas of the crown had been introduced, 
 explains that beside his functions as sheriff, the sheriff had others, 
 non ut vice comes seel tit justiciarius regis, under which title would 
 come all the jurisdiction that fell to him under new writs or in 
 newly developed procedure under the system of recognitions. 
 
 To go into dehiil on this would be to run much too far ahead,
 
 154 LEGES HENRICI PRIMI 
 
 and we ought now to be getting to our point, the illustration, viz., 
 of what are called the pleas of the crown, the special points on which, 
 for the sake of justice or for the sake of profit, have been even under 
 the Anglo-Saxon kings withdrawn from the common law of the 
 county and hundred ; offences which were either in whole or in part 
 infractions of the king's peace, and in which the pecuniary fines, 
 either in whole or in part, accrued to the royal exchequer. The next 
 clause gives us ample information on this, clause 10, de jure regis : 
 ' These are the rights which the king of England alone and over all 
 men has in his land retained for the sake of security : breach of the 
 king's peace given by hand or by writ ; Danegeld ; pleas of contempt of 
 writs or precepts ; murder or injury of his servants ; unfaithfulness 
 and betrayal ; every despite or evil speaking about him ; castellatio 
 trium scannorum [whatever trium scannorum may mean, castellatio 
 has reference to the right of licensing the fortification of castles, 
 the exact term is not explained] ; outlawry, theft unpunished by 
 death, murdrum ; falsifying the king's money ; burning, whether 
 arson or merely ravaging with fire and sword ; hamsoken or house- 
 breaking, forestel or assault, stopping in the way or highway robbery ; 
 fyrthinga, the penalty of fyrdwite or disobedience to the summons 
 to the host, flemenfyrthe, the sheltering of fugitive criminals, 
 premeditated assault, robbery, stretebreche, usurpation of the king's 
 land or money ; treasure trove, shipwreck, seaweedrape, plunder ; 
 forest rights, reliefs of barons ; fightings in the king's house or 
 family, breach of peace in the host ; neglect of burghbote, brigebote 
 and fyrd ; the entertaining of the excommunicate person or outlaw ; 
 breach of the king's protection ; flight in battle by land or sea ; 
 unjust judgment ; defect of judgment ; prevarication of the king's 
 law. All the great highways are the king's, and all places of 
 public executions are altogether the king's and in his soke. And 
 to all men in holy orders, aliens, poor and abject, the king 
 ought to be a kinsman and advocate or patron if they have none 
 other. These are the demesne pleas of the king, and do not belong 
 to the sheriffs, apparitors, or other servants of the king in their 
 ferms, without definite instructions. That is, they may be seen 
 to by the sheriffs and others, but not ex officio, only when specially 
 empowered. The proper officers for the administration are the 
 officers of the exchequer or the curia, and the very existence of such 
 a class of jurisdictions involves the existence of a tribunal and 
 jurisdiction which is only to be found in the curia regis. 
 
 This, then, is the sum of the king's criminal jurisdiction, and the 
 points enumerated are the original pleas of the crown. There seems 
 to be very little change, as far as the list is concerned, from the 
 usage of the Anglo-Saxon reigns ; the list will be found, although
 
 LEGES HENEICI PEIMI 155 
 
 not quite so long, in the laws of Canute, and of the additions many 
 seem to be mere repetitions of the same points in different forms of 
 Latin and English. One or two of the concluding ones may be 
 worth-noticing, especially the distinction between injustum judicium, 
 defectus justitice, and prcevaricatio legis regies,. All three of these 
 would, I conceive, come under the head of what in modern language 
 we should call appeals, but on different grounds : injustum judicium 
 could only be a decision which contained substantial injustice, 
 the sort of case which in earlier times could be appealed only by a 
 challenge of the court itself, but might now by writ of special grace 
 be brought up for review before the curia regis, or have its execution 
 stopped by a writ from the king himself ; defectus justitice, would mean 
 the delay or refusal of justice, either by the obstinate refusal of the 
 local judges to hear the cause, or by delays interposed by the opponent, 
 or by the failure of qualified judges in the court of first instance, 
 or by inability in the court to come to a decision at all ; prcevaricatio 
 legis regies would mean perversion of the letter of the law to counte- 
 nance unjust decision and would thus contain cases in which the 
 receiving of bribes could be charged against the judge. I do not 
 know that these distinctions are in legal history of much importance, 
 but men are fond of such definitions, and much substantial injustice 
 may be done even where forms are most carefully observed ; in the 
 three, however, one may include all defeat of justice, whether by 
 neglect of form, perversion of law, or material injustice. 
 
 The question arises, if these are merely reliefs of the more 
 ancient law, what ligbt can they be made to throw on the innova- 
 tions of the Conquest ? I think they do throw light, if not on the 
 innovations of the Conquest, at least on the new policy of Henry I. 
 Under the Anglo-Saxon kings, the right of the crown in these 
 criminal pleas had been little more than a financial right ; the sheriff 
 conducted the trials and collected the fines. Now, we are told, except 
 by special commission, the sheriff did not entertain them. Who 
 did ? Surely the justitice errantes, the travelling justices of the time, 
 whose visits are traceable now and then in the annals of the time, 
 whom we have seen mentioned here and there in the ' Dialogus de 
 Scaccario,' and who, few in number perhaps, and irregular in their 
 proceedings under Henry I., were thoroughly organised and made a 
 most important part of the judicial system under Henry II. 
 
 The next chapter, entitled ' De placitis ecclesias pertinentibus ad 
 regem,' will be under our view more minutely when we come to that 
 point of inquiry which concerns the church ; but I will call attention 
 to it now, as it illustrates the participation the share which the king 
 had in the jurisdiction and profits, of which he did not claim the 
 whole. Just as in the customary popular jurisdiction he had a
 
 156 LEGES HENKICI P.RIMI 
 
 share in the fines paid in the popular courts, so also he had in 
 the ecclesiastical. Neither the popular court nor the church court 
 owed its jurisdiction to him, although it would not be able to 
 execute its sentences without him or in contradiction to him ; but 
 in neither was he the source of judgment or justice, but he has a 
 share in the fines and in the punishments, and this chapter tells us 
 what that share was in the church courts. If murder is done in a 
 church, the peace of both king and church is broken ; both peaces 
 have to be amended ; the king and the bishop have the weregild, the 
 church has £5. If tithe be detained, the king's officer shall enforce 
 payment and share the penalty ; if Romescot is not paid, the king, 
 as well as the bishop, has a fine ; if churchscot is not paid, the same ; 
 if a married man commits adultery, the king has the man, the bishop 
 the woman ; perjury, false evidence, murder of clergy, refusal to 
 hear confession of the dying, working on holy days, detention of 
 church property, assaults and murders on church lands, and other 
 offences in which the church cannot secure her own without the aid 
 of the secular arm, there the king has a right to share in the fines 
 that his executive justice has enforced on the offender. 
 
 But we shall see by and by a better statement of the case than 
 this. The chapter on the king's rights in suits touching the church 
 is followed by two on the two classes of offences that may and may 
 not be compensated by pecuniary payments ; introduced by a transi- 
 tionary section, which is worth reading at length. ' Wherever 
 rightful obedience is refused to the law of God, according to the 
 statement of the bishop, there compulsion by the secular power may 
 be applied. Secular justice and compulsion are necessary in both 
 Divine and human institutions, since many cannot be otherwise 
 recalled from their vices, and many are unwilling to be inclined to 
 the worship and service of God ; whence for the greater punishment 
 of the evil, it is provided by the convenient dispensation of peace 
 that heavier offences and those worthy of higher punishment should 
 be assigned to the justice or mercy of the sovereign alone, that 
 pardon may be more freely given to penitents and punishment to 
 wilful sinners ; while in cases capable of compensation it is permitted 
 by the mercy of the saints that the lords of lands may venture by 
 their licence to exact pecuniary fines according to the law of the 
 country.' You will observe an attempt made in this section, con- 
 fused as it is, to set secular justice on a religious basis, and to 
 establish thereby a somewhat closer connection than is ordinarily 
 allowed between ecclesiastical and temporal treatment of offences. 
 In point of fact every offence at common law which involves moral 
 guilt is also an offence against ecclesiastical law ; the common law 
 takes cognisance only of the damage, according to the idea of these
 
 LEGES HENPJCI PRIMI 157 
 
 times ; therefore the damage being compensated, the offender is left 
 open to ecclesiastical penance, but towards this it is questionable 
 whether the temporal law would ever be called in to enforce the 
 observance if the injured party were satisfied and the infraction of 
 the king's peace atoned for. Such, it seems to me, is the intention 
 of the paragraph, which for inversion of style and complication of 
 idea is well worthy of the author of the prologue. It is followed 
 then by the chapter on amendable offences against your neighbour, 
 atoned some by were and some by wite ; that is some by payment 
 of weregild, some by penalty, and some by a fine of 100s. I need 
 not analyse this. 
 
 Clause 13 concerns the offences which place a man at the 
 king's mercy ; it is an expansion of the former brief enumeration, 
 but contains some small points of interest besides. The unjust 
 judge is condemned to a payment of 120s. and is to lose his dignity 
 of judge. You seem to learn from this that there still was in the 
 popular courts that class of judices or assessors of the sheriff which 
 answers to the scabini of the continent, and of which I have spoken 
 in the ' Constitutional History ' as one of the difficulties in the early 
 inquiry as to the development of the jury system. I do not think 
 that a passage like this can be interpreted with reference to the 
 judges of the curia regis, who certainly would not be let off for a 
 fine of 120s. at any time, and who when they were disgraced fell 
 with a heavier fall, like Geoffrey Ridel in the reign of Henry I., 
 Glanvill himself at the accession of Richard, and Weyland, Hengham 
 and Stratton under Edward I. Who these judices were we shall see 
 better when we examine the structure of the shiremoot ; another 
 note — offenders who have neglected the observance of the trinoda 
 necessitas have a choice of two procedures : they may either pay 
 a fine of 120s., a weregild really, at once and have done with it, or 
 they may go through a process which had been practised under 
 Canute — let fourteen men be named by the court, and obtain eleven 
 votes out of the number to back up his denial. This is one of the 
 curious bits of procedure in which the system of compurgation 
 approaches in appearance very near the system of jury, and on which 
 accordingly the older investigators of the history of jury relied in 
 support of their theories. Looked at carefully, however, and with 
 caution against being misled by accidental analogies, it is seen really 
 to be only a modification of compurgation, and not to have in it the 
 essence of the inquiry by sworn witnesses which is indispensable to 
 the historic jury. 
 
 I now proceed more rapidly to gather up the particular notes 
 of the royal jurisdiction that occur in later chapters. 
 
 Clause 16, the king's peace, i.e. the peace of the court which is
 
 158 LEGES HENRICI PRIM! 
 
 under his peculiar jurisdiction and special sanctions, extends in a 
 radius of three miles three furlongs nine acres nine feet nine palms 
 and nine barleycorns. That is curious, and likely when you come 
 to the barleycorns to give rise to some disputes about measurement. 
 
 Clause 17, on the forest law, is perhaps the first authentic pro- 
 nouncement since Canute ordered that every man should be entitled to 
 his own hunting. It is clearly older than any text that we have on the 
 subject and seems to be very true. Pleas of the forest are encompassed 
 with sufficiently multiplied inconveniences ; they concern essarts, cut- 
 ting wood, burning wood, hunting, carrying bows and darts — de misera 
 canum expeditatione — if any one does not come to the hunt, if anyone 
 leaves his stock shut up, buildings in the forest, neglect of summons, 
 meeting men in forest with dogs, and the finding of hides or flesh. 
 The section is merely a summary of the headings of a series of 
 articles answering to the later forest assizes, but now lost. When I 
 referred to Canute's law of the forest, I meant the single article that 
 is found in his collected code, not the Latin articles which with an 
 extraordinary neglect of all critical inquiry are still kept among 
 the genuine laws of the Anglo-Saxon period, but which are obviously 
 a forgery of much later date, and which, if they had contained any 
 germ of genuine forest law, would have been discoverable either in 
 this compilation or in the later assizes. 
 
 Clause 19, ' de justitia regis.' This refers to the extension of the 
 royal jurisdiction locally. The king exercises immediate jurisdiction 
 in all his demesne lands : where he gives a manor he sometimes 
 gives soken with it, sometimes not ; and sometimes he retains the 
 whole jurisdiction, sometimes only a part. Archbishops, bishops, 
 earls, and other potentates have sac and soke on their own private 
 lands, and on lands otherwise held they have manorial jurisdiction 
 over their own tenants, the higher branches being apparently 
 reserved for higher tribunals, as the hundredmote, the shiremote, 
 and the king's justices. Over all capital cases arising in the 
 courts of barons, senators, clerks and lay, whether the other 
 parts of the jurisdiction belong to the king or not, he has 
 direct control. This seems to me to make a difference between 
 hmde justice, power of life and death, belonging to the greater 
 lords of franchises, and lower justice, belonging to lords of less 
 dignity, among whom the baroncs are enumerated ; but by barones 
 here I understand a translation of some such word as thegen in 
 the corresponding Anglo-Saxon laws, and interpret it as merely 
 meaning lords of manors ; and yet even to them occasionally 
 judgment of life and death is allowed by special favour or on the 
 ground of their peculiar merits : the lovely excellence of the king 
 rather promotes than overthrows liberty, and therefore we may
 
 LEGES HENEICI PEIMI 159 
 
 presume gives to those who deserve it by propinquity or dignity of 
 deserts a right to hang one another. 
 
 Clause 29, on the king's judges, I propose to examine in another 
 lecture. 
 
 Clause 35 refers to cferhyrnesse, or contempt of the king's 
 summons, which also occupies clause 42. 
 
 Not much to notice in clause 43 : that no one impleaded by the king 
 shall answer any other litigant. The king has the first right to be 
 heard against any debtor or offender. No one impleaded by the 
 king is compelled by law to answer anyone until he has satisfied 
 him who is lord of all ; and by corollary the king can warrant or 
 act as warrantor for anyone in his service. Just as no one in the 
 king's service can be excommunicated without his leave, so anyone 
 in his service may depend on his protection. 
 
 So again in clause 52. A man impleaded by the king, whoever 
 may be his immediate lord, must give security at once, or fall into the 
 offence of contempt : his lord cannot intervene to save him from so 
 much of responsibility. The great majority of the following articles 
 are either expansions of the earlier ones or simple repetitions, and we 
 go on to clause 81 without finding anything that much illustrates the 
 royal power ; that chapter is entitled, ' De pace regis danda in pota- 
 tione.' This chapter might open a very curious piece of archaeology, 
 bearing on the scotales and guild meetings in which money was 
 raised for local purposes, and local disputes settled extra- judicially. 
 I wish we knew more about it. ' In every potatio prepared for giving 
 or buying, or of guild, or for any purpose of the kind, first the 
 peace of God and the king shall be set among those assembled, and 
 request shall be made that if any avoids any other then on any 
 account, he will, if he please, make it known, and security shall be 
 given him for his rights as shall be just to him. If they do not 
 admit immediate agreement, let the man whose conduct has given 
 offence retire from the company ; if, after the peace has been thus 
 set, anything shall be done by the drinkers [any wrong, I suppose], 
 the penalty of oferhyrnesse is to be given to the master of the house 
 or the person to whom such penalty is due if such person there be.' 
 Now, this seems at first sight simply to refer to the maintenance of 
 peace in public alehouses or fairs or the like ; but it certainly throws 
 a curious light on the purposes for which these drinking meetings 
 were gathered ; and it runs very far back, for similar provisions are 
 contained in the laws of Ine as well as in those of Ethelred, where 
 the peace given in an alehouse has its special sanctions. But clause 87 
 concerns the same matter, and goes back farther still, even to the 
 Salic law, which it is most curious to find quoted in an English 
 custumary (§§ 9, 10).
 
 160 LEGES HENEICI PEIMI 
 
 The two subjects on which we should look for special informa- 
 tion in the Leges Henrici which come next in importance to the royal 
 judicature, are the relations between the ecclesiastical and secular 
 jurisdictions and the history of the composition and proceedings of 
 the county court. Both of these subjects we have examined in some 
 detail in special reference to the innovations of the Norman period 
 in the earlier lectures of this course, and, as there can be no possible 
 reason for a recapitulation of the points taken in those lectures, it 
 is not necessary for me to make any preface to the examination with 
 which I am now going to proceed. I may, however, say that while 
 we attempted to establish the fact that there was in the Anglo- 
 Saxon Church an inherent and common ecclesiastical jurisdiction, 
 and a sort of religious engagement on the part of the kings to give 
 coercive force to spiritual sentences, there was some confusion or 
 intermixture in the business of the courts on mixed questions, and 
 possibly on simply ecclesiastical ones, which seemed to the advisers 
 of the Conqueror to be opposed to the spirit of purely ecclesiastical 
 jurisdiction. Suits were tried in the shiremoot by the bishops and 
 archdeacons and with the co-operation of laymen which touched 
 the regimen animarum. For that reason the Conqueror directed 
 that the prelates should hold their courts apart from the shiremoot 
 and hundredmoot, and according to the episcopal laws and canons, 
 engaging the assistance of the temporal power to enforce their 
 decisions. But it was not quite easy even under this peremptory act 
 of reform to separate at once ecclesiastical from civil causes, or to 
 determine what preponderance of the spiritual element gave an 
 essentially ecclesiastical character to a particular plea ; e.g. questions 
 about advowsons certainly touched the regimen animarum, and yet 
 as certainly touched temporal rights of property ; accordingly ques- 
 tions of advowsons long constituted a debatable ground ; during the 
 reign of Stephen it would seem they were constantly tried in the 
 ecclesiastical courts ; Henry II. reclaimed them for the secular court 
 by his Assize of Darrein presentment ; in the next century attempts 
 were made to recall them to the forum ecclesiasticum, but in vain. 
 And so with regard to offences committed by or against clergy, or in 
 holy places or with reference to possessions of the church : where 
 there was a breach of the king's peace there would be a question 
 whether the plea came rightfully before the king's court, or because 
 there was a spiritual point interested must come before the court 
 ecclesiastical. Obviously there would be variations of dealing with 
 these ; a strong lay minister of the type of the modern lawyer would 
 insist on every plea that would bring the suit before the lay court, 
 or would stop every proceeding that would claim it for the court 
 Christian. And correspondingly, as boni judicis est ampliare juris-
 
 LEQES HENEICI PEIMI 
 
 161 
 
 dictionem, a powerful archbishop or ecclesiastical minister would 
 draw every cause, in which spiritual man or thing was in question, 
 into the court of the church, as Becket did with regard to criminal 
 clerks, and the bishops of the next generation wanted to do with 
 personal tithes. 
 
 In the passages quoted above describing the special rights which 
 the king had in ecclesiastical trials, we saw some data for conclu- 
 sions as to the state of things under Henry I. ; namely, that while 
 the trial of the offender in an ecclesiastical suit was conducted 
 for the most part by ecclesiastical judges, the king's share in the 
 penalties was distinctly vindicated, and the king's duty of assisting 
 in the enforcing of sentences was distinctly recognised. The pas- 
 sages to which I am now going to call attention presuppose so 
 much ; the light which we shall look for in them will be on the 
 matter of procedure, with reference to which you have to remember 
 that the study of the Roman civil law procedure, on which the later 
 process of the courts of the church was framed, had not yet to any 
 extent made its way in England. 1 We begin with clause 5, of which 
 the following is an abstract as touching this point. In all causes 
 ecclesiastical and secular there should be accusers, defenders, wit- 
 nesses, and judges ; and careful attention should be given to the 
 nature of the cause, the intention of the accusers, the mode of testi- 
 mony, and the choice of judges. There is an initial difference in 
 the proceedings in secular and ecclesiastical suits : in secular suits, 
 after a plea has begun, it cannot be withdrawn until the cause is 
 finished ; in ecclesiastical suits, if it be necessary, it is possible to 
 reject the judge as a suspected person, or to appeal on the ground of 
 gravamen. The judges are to be persons whom the defendant is 
 willing to accept ; they are to be persons well qualified to discharge 
 the duty, and are not to act without a formal accuser. The accusers 
 and witnesses are to be persons of good character, for none who is 
 unfit to be a priest ought to accuse a priest ; if the first count in 
 charges against the priest fails, the accuser is not to be allowed to 
 
 1 Almost all these articles are 
 drawn from the canon law, which 
 must be supposed, therefore, to be so 
 far received in England. The article 
 which allows the clerk to appeal 
 against gravamina is from the epistles 
 of Pope Felix I. They are either 
 derived directly from Burchard and so 
 from the pseudo-Isidorian or other de- 
 cretals, or through what is called the 
 Excerptiones Ecgberti ; they are in- 
 teresting enough, but cannot be read 
 without a doubt whether they are 
 really practical. No proper English 
 
 manual of practice could possibly con- 
 tain a regulation for trying a pope or 
 cardinal ; and this obliquity affects a 
 good deal besides. In point of fact, I 
 should scarcely venture to go further 
 than to say that they illustrate the 
 knowledge of Roman canon law which 
 had penetrated into England rather 
 than anything which was actually in 
 force in this church. It is, however, 
 of the earlier canon law that I 
 speak, not of the improved study 
 under the influence of the revived 
 civil law. 
 
 M
 
 162 LEGES HENRICI PRIMI 
 
 proceed with the others : a certain number of witnesses must prove 
 a charge against a bishop ; the pope may be judged by no man. 
 A prelate living against the faith should be accused before the 
 pope ; if he be accused of crimes he is to be heard before the 
 bishops of the province ; appeal is to be allowed him — some autho- 
 rities allow a year and six months for such a defendant to prepare 
 his case ; before a suit is canonically adjudicated the clergy are to 
 be replaced in their rights, as in the case of appeal. I have given 
 what seem to be the principal provisions. You will see at once that 
 those of them which are excerpted from the old canons, such as the 
 provision for the trial of a pope or cardinals, could only in a very 
 limited sense be said to have any relation to English jurisprudence ; 
 but those which refer to the selection of judges may be supposed to 
 have such a meaning. 
 
 But what was the method of trial ? We know what we now 
 mean by judges ; we have an idea of the proceedings of the popular 
 courts at this time by compurgation and ordeal ; and we know that 
 under the Roman law, after the preliminary work of the institution 
 of the suit had been completed, and the work in jure had proceeded 
 as far as the litis contestatio, or determination what point was to be 
 decided, the praetor proceeded to dare judices, i.e. to nominate the 
 persons by whom the point was to be decided. To which class of 
 judices do the words of our laws refer ? I confess that the subject 
 always has to my mind been one of extreme difficulty ; and it is one 
 which it seems to me most of our commentators shirk. It is perhaps 
 of less importance in reference to ecclesiastical matters because the 
 period of its continuance is short, and we know that from a date 
 very shortly following this, and possibly also before this, the only 
 proper ecclesiastical judges were the bishops, and their officials arch- 
 deacons and chancellors, or the ordinaries as commonly known. 
 But the judices here are not judges ordinary, but nominated or 
 selected, and liable to be refused by the person impleaded as suspect. 
 Unless we suppose these provisions to have been inserted without 
 being understood from some canon that incorporated the Roman 
 idea of judices, which is, I think, improbable, we must conclude 
 that the judices who tried these cases were persons qualified in the 
 same way as the judices of the shiremoot, the jtidices and juratores 
 of the county court ; i.e. the persons qualified to act as assess- 
 ors with the bishop and sheriff. We must, then, conclude either 
 that the process in the ecclesiastical courts was in analogy with that 
 in the shiremoot, or that these provisions referred only to that class 
 of mixed trials which were still tried in the shiremoot. I think that 
 the first is more probable, and the probability may be strengthened 
 perhaps by the fact that it is more in analogy with the Roman law
 
 LEGES HENEICI PRIMI 163 
 
 procedure. But on the whole it is most likely that they are simply 
 a canon transferred from the collections without special reference to 
 English usage ; although there are in Glanvill traces of ecclesiastical 
 judices who are not the bishops. However inviting, then, is the 
 theory that the judices mentioned here may be the judices and jura- 
 tores of the county courts, I fear we should be unwise to argue more 
 than an analogy between them. They are the judices or delegates 
 of appeals under the decrees of the pseudo-Isidorian decretal. 
 
 The next provision to which I will call attention is that 
 which occurs in the order how business is to be taken in the 
 hundred and shire moot (chapter 7) : in which the first place is 
 given to the causes that concern religion, ' agantur itaque primo 
 debita verae Christianitatis jura : secundo regis placita.' First 
 church pleas, then crown pleas, third common pleas. What the 
 pleas of Christianity were we have argued already : (1) They 
 may either be the mixed pleas which, notwithstanding the edict 
 of the Conqueror, had not yet found their way into the proper 
 courts of the bishop ; or they may be (2) the properly temporal 
 actions in which subordinately ecclesiastical questions were 
 entangled ; or (3) supposing the bishops' courts to be held 
 coincidently with the shiremoot, the bishops' business was to be 
 taken first. It is possible that c. 11 may be intended as an 
 amplification of this rule, 'De placitis ecelesiaa pertinentibus ad 
 regem ; ' the chapter which I have already referred to in some detail 
 as illustrating the cases in which the king, in courts in which he 
 was not the source of justice, still had rights of fines and the power 
 of enforcing sentences. The pleas noticed in this chapter are called 
 pleas of Christianity, and yet many of them seem only to concern 
 Christianity in that they accidentally concern the rights and wrongs 
 of its ministers ; they may, however, be the jura verce Christianitatis 
 that were still tried in the county court — they are homicide on 
 sacred ground, detention of tithes, Romefee, churchscot, adultery, 
 perjury on relics, false witness, injuries to ordained persons, refusal 
 of confession, working on holy days, forcible detention of church 
 goods, marriage of widows, reception of excommunicates. All 
 these may be described as lying in the debatable ground between 
 civil and spiritual judicature ; and if their spiritual character be 
 taken at its highest, they are different in kind from the merely 
 spiritual pleas of immoral life, neglect of duty, non-residence, 
 plurality, heresy, and canonical disobedience, or the penitential 
 discipline of the confessional with regard to laity as well as clergy. 
 
 In the shorter articles that follow there are one or two particulars 
 to be gathered up. C. 23. An abbot is responsible for his monks ; 
 i.e. in the same way as the lord is responsible for his villeins. 
 
 M 2
 
 164 LEGES HENFJC1 PFJMI 
 
 C. 31. The bishops, as well as the earls and other potentates, are still 
 to attend the shiremoot ; ' after this there is little on the matter 
 until we come to c. 64, which has to do with oaths and ordeals. 
 § 3. The oath of the mass priest and the secular thegn are of equal 
 value ; the mass priest, I suppose, includes all ordained priests, 
 whether monks or regulars, but there is a section for the regulars. 
 § 8. A priest who leads a regular life may swear alone in a 
 simple accusation, in a triple one he must do it with two of 
 the same order : a deacon in simple purgation must have two 
 companions ; in a triple one, six. A plebeian priest is on the same 
 terms with a regular deacon ; a priest accused by his bishop or 
 archdeacon must have six lawful priests, as compurgators, prepared 
 for mass. That clause shows that compurgation was in full opera- 
 tion as regards the trials of the clergy. C. 66. If anyone slays a 
 minister of the altar he shall be an outlaw to God and man and pay 
 very heavy weregild ; if a minister of the altar kill a man he is to 
 be deprived of order and dignity and go on pilgrimage and do 
 penance as the pope enjoins, or he may purge himself with a three- 
 fold compurgation ; so also in assaults on men in orders. If a man 
 condemned to death desires to confess and is refused, a fine of 120s. 
 is due to the king, or the refusing priest must purge himself with 
 six compurgators. C. 68. § 3. Every priest, from whatever extrac- 
 tion he may be, if he leads a canonical and regular life, is in secular 
 matters to have the estimation or rank of a thegn ; but if he is killed, 
 his iveregild is to be estimated according to his real birth : if he 
 comes of thegn's blood, he has the weregild of a thegn ; if of villein 
 blood, he is to have the weregild of a villein ; his weregild is to be 
 decided in all estates by the rank of the father, not of the mother. 
 § 4. No one born in servitude may be admitted to holy orders before 
 he has been lawfully emancipated ; there you have a piece of much 
 older law, best known, however, by being incorporated in the 
 Constitutions of Clarendon, 2 and about which at various times 
 much nonsense has been talked. But, § 5, although the slain priest 
 has only the weregild of his birth, there is a graduated tax additional 
 put on him according to his orders, one pound on the first grade, 
 up to seven pounds on the seventh grade, of orders ; and beyond 
 that, if any man kills a bishop, the final disposal of him is to be at 
 the discretion of the king and his brother bishops. He who kills a 
 clerk or monk is to be deprived of arms and serve God, that is be 
 imprisoned in a monastery ; if a deacon or priest kill a man he is to 
 do penance and be deposed. These two directions are from the 
 most ancient penitentials, and cannot be regarded as descriptive of 
 
 1 Select Cliarters, p. 106. - Ibid. p. 1 0.
 
 LEGES HENRICI PEIMI 165 
 
 existing law in Norman times, being merely added by way of 
 illustration. 
 
 This is nearly the last article that concerns this subject. At c. 79, 
 § 5, however, we find that homicide in a church makes a man ipso 
 facto an outlaw ; the crime cannot be atoned by any compensation ; 
 anyone who chooses may pursue and punish the culprit, unless he 
 can obtain specially from the king the grant of his life, in which 
 case he may, after proper penance, fine for breach of peace, and pay- 
 ment of weregild, manbote, and ivite, be received again into society.
 
 VI 
 THE SHIEEMOOT AND HUNDBEDMOOT 
 
 The next subject to which we will now proceed is not less dry, 
 but it may, perhaps, take your fancy better ; I mean the constitution 
 of the popular judicature, our old friends shiremoot and hundred- 
 moot. The first articles on this head we have already examined, 
 i.e. the edict ordering the courts to be held as in King Edward's 
 time, and have argued from the words of it the identity of the later 
 county court with the Anglo-Saxon institution of the same character. 
 But there are still some minor points to note : in the description of 
 the persons who are to attend, you get some curious names, not only 
 bishops and earls, but vicarii, centenarii, alclermanni, praefecti, 
 praspositi, barones, vavassores, tungrevii ; and in some manuscripts 
 herehohei, treingrevii, leidegrevii. This enumeration seems to be 
 intended to include exhaustively all persons who, either as land- 
 owners or officials of any kind, could be expected to put in a personal 
 appearance ; it does not follow from it that there really were officials 
 of all these names, or that, if there were, they were more than local 
 names for the same functionaries. Vicarii, for instance ; the only 
 vicarii that we know of in England are the ecclesiastical vicars or 
 curates of parishes : here it obviously does not mean that ; if it 
 means anything at all, it, as well as vicedomini, means the sheriff's 
 deputies ; but not at all improbably the terms may be borrowed 
 direct from some foreign capitulary. Centenarii and aldermanni are 
 both probably officers of the hundred, the hundredman and the 
 hundred's ealdor ; for the old ealdorman of great rank was extinct, or 
 merged in the comes or earl, and the modern alderman of the town 
 corporation had scarcely come into existence. Prasfecti and 
 propositi again are reeves apparently of large jurisdictions, or they 
 would not be put before the barones and vavassores ; possibly of 
 the king's franchises. The barones and vavassores seem to be lords 
 of manors in their feudal relation ; or the barones lords of manors, 
 and vavassores freeholders or franklins holding under them. 
 Tungrevii are the town reeves, tungerefas of rural townships. The 
 other names given as additional, the herehohei, can be nothing else
 
 THE SHIREMOOT AND HUNDREDMOOT 167 
 
 but heretogas, the old title of the ealdorman ; the treingrevii are 
 the reeves of the trithings or ridings into which Yorkshire and 
 Lincolnshire were divided ; the leidegrevii, the lathe reeves, the 
 reeves of the lathes of Kent. These additional names, I conclude, 
 are simply fancy additions put in t3 give an air of completeness to 
 the summary, and probably interpolated. In c. 31 the attendance of 
 these superior persons is included in the term potestates, which is at 
 once clearer and quite as comprehensive. 
 
 These potestatcs, then, with the representatives of the townships, 
 the reeve and five best men, constitute the popular courts ; but the 
 greater lords, who, having estates in different shires, could not be 
 expected to attend every court in every shire, were at liberty to send 
 their stewards to represent them and their men. The courts were 
 to be held, the shiremoot twice a year, the hundredmoot once a 
 month : notice was to be given six days beforehand — whether that 
 was a summons addressed to every member, or only to those whose 
 special duty, either as judices and juratores, or as representatives, or 
 as litigants, was to attend, one cannot on the face of the thing say. 
 It is more reasonable to suppose that, unless the place for the sitting 
 of the court required to be notified six days beforehand, this sum- 
 mons must have been intended only for those whose attendance was 
 indispensable. Certainly, where the summons was disobeyed there 
 were heavy fines, heavier fines than we can suppose possible for 
 casual disobedience, for not only does the Conqueror prescribe for 
 the second neglect the seizing of an ox and so on, but these laws 
 under the head of neglect of summons are strict enough in their 
 demands. C. 51 is ' De summonitione hundredi.' If the person 
 duly summoned does not come he pays 30d. for the first two 
 neglects, and for the third a full wite or forfeiture ; contempt of 
 the summons of a lord to his court is equally criminal; and, c. 53, he 
 who neglects to come when summoned to the shiremoot is guilty of 
 contempt of the king. 
 
 We may doubt, however, whether these penalties would be 
 ordinarily exacted so long as a sufficient number of judices 
 and juratores were present to carry out the business of the court. 
 Sometimes it was not so ; then in the hundred court the business was 
 transferred to the joint consideration of two or three hundreds or even 
 more. But if this arose from the non-attendance of those who 
 ought to attend, they were punished. Of course the power of fining 
 for non-attendance was one which an unjust sheriff could use very 
 despotically, and did so ; for it is a ground of complaint to the king 
 for at least two centuries after the Conquest, especially after the 
 king began to grant to the knights exemptions from the duty of 
 serving on recognitions.
 
 168 THE SHIREMOOT AND HUNDREDMOOT 
 
 Wo may, however, make one guess further, and suppose that there 
 was in each shire and hundred a regular list of men capable of 
 serving as judices and juratores, just like the list of men capable of 
 serving on juries that is drawn out and stuck on the church door in 
 every parish at the present day : from that list the constituent 
 officer of the hundred court summoned those who either from 
 proximity could most easily attend, or by wisdom and experience 
 were most likely to be useful. 
 
 Anyhow, the persons so qualified constituted a special class of 
 officers, and to them we must now turn. C. 29 is devoted to the 
 question who ought to be the king's judges. ' The king's judges are 
 the barons of the counties who have free lands in them, by whom the 
 causes of individuals ought to be dealt with by alternate treatment ; 
 but villeins or cotseti or ferdings, or those who are vile or poor, are 
 not to be counted among the judges of the laws ; whence neither in 
 hundred nor in county do they forfeit their money or their lord's if 
 they leave justice without judgment (that seems to mean that their 
 attendance is not compulsory on penalty) ; but the lords of the lands 
 having been summoned, the plea shall be enforced at the competent 
 term, whether or no they have been summoned.' ! These judges are 
 also called senatores, and it is on them apparently that the penalties 
 for non-attendance are intended to fall, for they are repeated here as 
 in c. 51, which I have already noted ; and in § 4, if sufficient 
 numbers are not in attendance, the business may be delayed rather 
 than those present should undertake the examination of matters on 
 which they are incompetent to judge. 
 
 If you would allow me to make another guess, I should like to 
 advance the theory that those persons who are described as obliged 
 by their tenure to attend the shiremoot and hundred, i.e. who 
 held their lands by the service of attending at the three weeks' court 
 of later times, were those whose services as juratores and judices 
 would be most especially in requisition. 
 
 We ask very naturally, now that we know who these judices and 
 juratores are, what is their function. I am strongly inclined to 
 believe that their first duty, and that in which they reach backwards 
 farthest into antiquity and onwards into the present, was the duty 
 of presentment. I know that some doubt and some ridicule have 
 been thrown on the old idea of the twelve senior thegns of the law 
 of Ethelred, who had to swear that they would accuse no one 
 unjustly, and who are popularly supposed to be the ancestors of the 
 modern grand jury; but I still think that the existence of these 
 jitdices can be accounted for most easily by supposing the institution 
 to be continuous. 2 
 
 1 Select Charters, p. 106. 2 Ibid. p. 72.
 
 THE SHIREMOOT AND HUNDREDMOOT 169 
 
 I will supply two parallels, one from the juries of the court 
 leets of manors, a customary institution so ancient that no statute 
 law even of the Norman reigns can be adduced as either creating it 
 or modifying it, the other from the practice of the most ancient 
 episcopal visitations, which followed unquestionably some popular 
 or immemorial process of the temporal courts : in both those 
 systems the first piece of business is to form bodies of inquisitors, 
 who take an oath to conceal no criminal for love or for fear, but to 
 declare the witness of the district on the point on which they 
 may be interrogated. We may call these assessors of the 
 sheriff if we like ; but they are so, not as declaring the law, but as 
 qualified to report the facts or belief of the district, and in that 
 aspect the direct ancestors of the recognitors under the Assize of 
 Clarendon and the later grand jury. 
 
 Having thus constituted our court, the first thing is to examine 
 the order of business, in which come first the ecclesiastical trials. 
 Next to them come the royal pleas : the subject-matter of them I 
 have already spoken on, and we have now only to add one or two 
 points which require further elucidation. We have seen the nature 
 of the points reserved to the crown, and the means taken to secure 
 the whole or a share of the jurisdiction and of the profits. C. 43 
 enacts that no one impleaded by the king shall answer any other 
 litigant ; the king has the first right to be heard against any debtor 
 or offender. ' No one impleaded by the king is compelled by law 
 to answer anyone until he has satisfied him who is lord of all ; ' 
 and by corollary the king can warrant or act as warrantor for any 
 one in his service : just as no one can be excommunicated without 
 his leave who is in his service, so everyone in his service may 
 depend on his protection. This rule is enlarged by Glanvill, lib. 1, 
 c. 27 ; and as a principle is the same as that which protects members 
 of parliament, acting as they are under the king's summons, from 
 being arrested. So, again, c. 52, a man impleaded by the king, 
 whoever may be his immediate lord, must give security at once or 
 fall into the offence of of erhyrnesse ; his lord cannot intervene to save 
 him so much of responsibility. 
 
 The majority of the following articles are expansions or repeti- 
 tions. However, although the king bad these rights in court, it 
 does not follow that offences against him, or causes in which he was 
 the complainant, would be treated in any other way than the placita 
 singulorum, which form the third item of county business, would be 
 treated. It is very probable that if we could get a lawyer to put 
 down for us in simple language the principal features of Anglo- 
 Saxon and Anglo-Norman process, we should find that they did not 
 much differ except after the introduction of writs, of which we have
 
 170 THE SHIREMOOT AND HUNDREDMOOT 
 
 very few examples in Anglo-Saxon times and a very great number 
 under the Anglo-Norman kings. I will for our immediate purpose 
 postpone what little I have to say about the writ process, for after 
 all it only guided and stimulated, did not alter the material character 
 of the popular process. And I must repeat what I have already 
 said, that at this stage there is no very deep difference between 
 civil and criminal process, except where the criminal process is set 
 going by presentment, if such were the case. The trials were trials 
 of the evidence, the truth of the speakers ; if it was an appeal of 
 murder, the accused and accuser exchanged challenges as to the 
 truth of the charge, and the compurgators swore to the truth of the 
 oath of their principal. If it were a demand of right, the demander 
 and the defendant exchanged challenges in the same way, and the 
 compurgators swore again to the truth of the respective oaths. And 
 if the oaths were insufficient, recourse was had to the ordeal in the 
 case of the English, and to trial by battle in the case of the Norman, 
 unless the court thought it necessary to call in witnesses. If the 
 point in debate were a question on which the attestation of public 
 witnesses was required, i.e. witnesses of a transaction which by law 
 was ordered to be transacted in the presence of witnesses, as those 
 cases of sale which we saw ordered in the laws of the Conqueror, 
 such evidence would be at once procurable ; but other evidence was 
 given by the report of the neighbourhood de visu et auditu — they 
 did not give evidence to fact, but to the report or belief of the neigh- 
 bourhood as to the transmission of property and like matters of 
 repute. These witnesses were produced by the parties litigating, 
 not by order of the court, in Anglo-Saxon times ; but in the Norman 
 times, by the introduction of recognitions and records of court, or the 
 simpler process which preceded the full-grown recognition, the im- 
 portance of such party evidence was diminished, and the third sort 
 of witness, court witness, as contrasted with transaction witness and 
 community witness, was introduced and gradually supplanted the 
 other two. Of course none of these (except in a modified way the 
 transaction witness) answers to the modern idea of a witness de- 
 posing to his knowledge of a fact. 
 
 All these points would be no doubt much clearer to the legal 
 mind ; but the legal mind is very prone to take two things for 
 granted : first that the non-legal mind is incapable of understanding 
 a legal point, and secondly that, as it is hopeless to make it under- 
 stand it, it is absolutely necessary that it should be made to accept 
 it whether it understands it or no. This being so, I can only refer 
 you for further distinctions and definitions on these points to the 
 legal minds, and return now to the text of our authorities. I think 
 we have examined all the places that mention classes of offences
 
 THE SHIREMOOT AND HUNDREDMOOT 171 
 
 and variations of penalties and the right to exact fines, with the 
 arrangements for the divisions of the fines. And we have likewise 
 examined the practice of reckoning the lord responsible for the pro- 
 duction of his vassal in court, and the collective responsibility of the 
 frankpledge, which would seem in these laws of Henry to be then 
 in full working. I think the main points that yet need to be 
 touched on are those connected with the forms of oath and ordeal ; 
 and yet upon these in the earlier lectures I said perhaps as much as 
 is in proportion to the rest of our treatment. However, on this I 
 will read a part of chapter 64, of the Christian custom concerning 
 spoken statements secundum quod sunt. ' Every accusation should 
 be treated with a foreoath, piano vel observato, single or repeated 
 as the custom of the place shall be ; for all things are varied by the 
 custom of places, the pleading of causes, and the method of the 
 litigants. In some places there is much difference between oath and 
 foreoath, as in informations and the like. In Hampshire he who 
 swears verborum observantiis has to swear but once and stands or 
 falls by his oath. In some places as often as he pleases he repeats 
 the oath until he proves or fails to prove his point. It will also 
 happen that the character of the foreoath may be altered by the 
 nature of the matter in question, or by the dignity, nationality, or 
 merit of the person who takes it. But owing to the violence 
 of wicked men, and the conspiracy of perjurers, the f rang ens jura- 
 mentum, the convincing and settling oath apparently in verborum 
 observantiis, has been laid aside, and the accused prefers to appeal to 
 the judgment of God, and goes to the ordeal of hot iron instead of 
 purging himself with a company of ten compurgators. In Wessex, 
 in cases of theft, murder, betrayal, fire, and housebreaking, and other 
 crimes that are punished by mutilation, all swear by the sacramentum 
 fractum ; except thegns, priests, and others, who have never done 
 anything to diminish their legal credit. These last, whatever the 
 nature of the charge may be, swear the simple oath with of course 
 the proper number of compurgators and due regard to the value of 
 the oaths of their peers ; the oath of the thegn being equal to that 
 of six villeins, and his wergild being that of six villeins. The oath 
 of the mass priest is equal to that of the thegn by English law. 
 Frenchmen and other foreigners do not use the oath in verborum 
 observantiis. If a man is accused of homicide and wishes to purge 
 himself, he must produce compurgators according to his luerc-lada ; 
 those on his father's side to take the fractum juramentum, and those 
 on the mother's the planum.' 
 
 Perhaps that will be enough. You will remember the difference 
 between the planum and the fractum, which we came to the con- 
 clusion was the true theory. The fractum is the solemne jura-
 
 172 THE SHIREMOOT AND HUNDREDMOOT 
 
 mentum containing certain prescribed and dictated solemnities, 
 dictated either by the parties, by the law, or by the judge, with a 
 certain regulated form of words, from which the swearer may not 
 diverge, or if he does his oath will go for nothing. The simple 
 planum oath is a summary one, sine delectu verborum aut locorum. 
 It would add very much to the interest of this part of our investiga- 
 tions if we could point to good examples of these oaths being 
 formally taken. This we cannot do exactly, but our books do furnish 
 us with a series of formulae touching both oaths and ordeal which 
 are worth knowing as illustrations of the sort of matters on which 
 oaths were required, as well as the formalities of taking them. These 
 forms are not contained in express terms in the Leges Henrici, but 
 are preserved among the Anglo-Saxon laws, and are unquestion- 
 ably the forms which are referred to in the Leges, and which continued 
 to be in use with modifications of language as long as any part of 
 the popular common law procedure continued. 
 
 As I have pretty nearly exhausted all the matters of interest in 
 the Leges to which I should invite you, save and except the matters 
 of mere archaeology, it will be no waste of time to look back at these 
 oaths and rules of ordeal. Eleven forms of oath are given, of 
 which the first is the oath of fealty, a form which is tolerably well 
 known both from its first appearance in the laws of Edward the 
 Elder, which contain the injunction on the man who wishes to be in 
 the king's peace, and from its later history in times which are more 
 distinctly feudal. The oath as it here stands has no reference to 
 homage for land tenure, but is a promise of faithfulness made by the 
 subject to the lord and is called the hyld-ath, the distinctive words 
 being the undertaking ' to love what he loves and hate what he hates, 
 according to God's law and the world's judgments, and never of 
 will or of power, by word or deed, to do anything which may injure 
 him ... as was in our agreement when I bowed to him and chose 
 his will.' The oath is not, you see, exactly an oath of allegiance, for 
 it assumes an initial contract, but it is not an oath of that sort of 
 fealty which accompanies homage, examples of which you will find 
 in the ' Constitutional History ' in the discussion of the law of 
 treason in vol. iii. 
 
 The second form is the oath by which a man asserts his right to 
 a piece of property stolen from him and discovered in unlawful 
 hands : ' I swear by God, to whom this relic is consecrated, that 
 I prosecute my cause without fraud, without guile, and without 
 any deceit, that this animal of which I speak has been stolen from me 
 and that I found it in possession of so and so.' As a pair to this is 
 the oath of disavowal No. 3 : ' By the same God I was not by rede 
 or deed, by wit or work, where by injustice he was robbed of his
 
 THE SHIREMOOT AND HUNDREDMOOT 173 
 
 property. But I hold that animal as I by right acquired it, and I so 
 claim it as he sold it to me, in whose hand he put it, and I so hold it 
 as he sold it to whom of right it belonged ; and I so have it as it came 
 to me of my own, and as by folk right it is my own property and my 
 own rearing.' 
 
 The next pair of oaths contain the charge and repudiation of 
 charge of theft, the accuser disavowing personal malice, and stating 
 the charge as his belief, the other simply denying it. No. 6. The next 
 is the oath of compurgation, which is simple and straightforward 
 enough. By the lord, the oath is clean and unperjured, clan and 
 unman, which N. has sworn. No. 7 is the oath of the man who 
 swears that when he bought a thing he bought it as sound and clean 
 and with warranty against any other claim. No. 9 is the corre- 
 sponding oath of the seller. No. 8 is the oath de visu et auditu, or 
 party witness. ' In the name of Almighty God, as I stand here, for 
 N. in true witness, unbidden and unbought [sine prece et pretio], so 
 I with my eyes oversaw and with my ears overheard that which 
 I with him say.' There you see the oath of witness, altogether dif- 
 ferent from the oath of evidence now in use as a promise to speak 
 truth on questions put to you. This is simply a conjuratory 
 oath to a particular fact, as the compurgatory oath was to the general 
 deposition of the principal litigant. Nos. 10 and 11 are concerned 
 with debt, the creditor's oath : ' In the name of the living God as 
 I money demand so have I lack of that which N. promised me when 
 I mine to him sold.' The denial is unhesitating. 'In the name of 
 the living God I owe not to N. scat or shilling or penny or penny- 
 worth, but I have discharged to him all that I owed him so far as 
 our verbal contracts were at first.' 
 
 There were, as we know from other parts of our work, other 
 oaths of a more modern character, such especially as the oath of the 
 twelve senior thegns, which I have supposed to be the oath of the 
 judices, senatores, or juratores of the county court ; and the oath of 
 the peace, taken by all subjects of the age of fourteen, not to be 
 a thief or receiver of them. But these oaths of good behaviour 
 belong to another class, and not to the oath required in judicial 
 procedure. From the brevity and simplicity of the forms here 
 given we may, I think, conclude that they are the planum oaths and 
 not the fractum, an example of which we still desiderate. The form 
 for the ordeal is interesting, and we see in it how completely the 
 institution was regarded as an ecclesiastical matter, and a solemn 
 appeal to God as the righteous judge ; and so understand why the 
 Conqueror in the edict we have so often referred to puts it entirely 
 in the hand of the bishop : ' Concerning the ordeal we enjoin by 
 command of God and of the archbishop and all the bishops, the
 
 174 THE SHIKEMOOT AND HUNDKEDMOOT 
 
 fire is lighted in the church, and the church is closed to all but the 
 mass priest and the person who is to go to the ordeal. A distance 
 is to be marked nine steps, according to the steps of the accused, 
 from the mark to the stake on which the ordeal, i.e. the hot water 
 or hot urn, is placed. The kettle that contains the water may be of 
 iron or brass or lead or clay [one would think that a lead kettle 
 would insure a safe trial] ; the water is to bubble up before boiling, 
 a stone is placed in the kettle. The culprit bares his hand ; if the 
 accusation requires simple purgation, it is enough if he plunge it up 
 to his wrist ; for a threefold one it must go in up to the elbow. 
 Before the critical step is taken two men of each side are to go in 
 and test whether the water is as hot as the rule enjoins ; then let 
 a certain number of each party go in and stand in a row along the 
 sides of the church. These witnesses must be fasting . . . the 
 priest is to sprinkle them with holy water, and let them taste it, 
 and give them all the book and the crucifix to kiss.' I do not know 
 that we get the kissing of the book much earlier than this ; of 
 course you will remember it in the history of Becket and John the 
 Marshall. ' In the case of the ordeal of hot iron, the order is even 
 more minute. The service begins with benediction ; the fire has 
 been lighted, and the iron laid thereon. After the beginning of the 
 benediction the fire is not to be stirred : the service proceeds to the 
 last collect ; when that has been said, it is to be taken from the 
 fire and put on the staple or stool, and there is to be solemn silence. 
 Let there be no other speaking within, except that they earnestly 
 pray to Almighty God that He make manifest what is soothest ; 
 and let him go thereto, making the nine steps. At the first signal 
 he must put his right foot on the staple, at the second the left foot, 
 then grasp the iron at the third signal, and throw it forward, then 
 hasten to the altar and have his hand covered and sealed to the 
 third day. According to the state in which it shall be found on 
 the third day, his guilt or innocence is proved. There is a good 
 deal of literature on the ordeal, which went on as a regular institu- 
 tion until the Lateran Council of 1215, when it was forbidden. 
 The prayers used on the occasion seem sufficiently long to warrant 
 the belief that the water or iron might get comfortably cool during 
 the ceremony. Baluze gives from the Benedictional of S. Dunstan 
 the full ceremonial. In the case of the iron, it is carried to the fire 
 during the singing of the Benedicite, after which the benediction 
 begins. At the third prayer it is placed on the fire, then mass 
 begins, the culprit being made to communicate. After the prayers 
 are over, the priest again blesses the iron, and sprinkles it with holy 
 water, after which the accused takes it in hand.'
 
 VII 
 THE CHAETEES OF STEPHEN 
 
 The reign of Stephen, I need hardly say, presents very little 
 documentary material for either legal or constitutional history, and 
 even the little which it does afford, in the shape of the two charters 
 printed in the ' Select Charters,' is hardly of a character to detain us 
 after the thorough examination that we have now given to the legis- 
 lation of the preceding reign. There is indeed scarcely a point 
 mentioned in these charters to which I have not by way of antici- 
 pation called your attention already in some earlier stage. As, 
 however, both the class and the subject are becoming very much 
 attenuated, and as the college statutes warn us, ' visibiliter tendunt ad 
 non esse,' it would be useless to begin an altogether new subject now, 
 and perhaps we shall find, as commonly is found, that however care- 
 fully we have gone over the same ground before, a new reading of 
 the charters may find us some food for reflection, or suggest some 
 new point of interest. Of the first of the two, that printed at p. 119 
 of the ' Select Charters,' nothing, I think, will come. It ranks among 
 the charters of liberties, but is so extremely brief and so very 
 jejune as scarcely to suggest a question. There are no difficulties 
 in the construing, no difficulties in the form. All that King Henry 
 had granted Stephen continues, and all the good laws and good 
 customs that England had had in the days of King Edward he 
 yields to his people, enjoining moreover on all that they have and 
 hold these good laws and liberties of him and his heirs to them and 
 their heirs, in freedom, quiet, and fullness, and forbidding that any 
 one should do mischief, impediment, or diminution upon them. It 
 is obvious that in the hurry of the accession or usurpation — for 
 already to the mass of Englishmen the accession of Stephen must 
 have seemed a usurpation — there was no time, nor any champion 
 of the rights of the nation, nor any possibility of making any but 
 the most general bid for the support of the nation, no opportunity, 
 in fact, for making any definite step forwards. No doubt Stephen 
 would have promised anything ; no doubt, as the historians tell us, 
 he did promise everything that was put before him, but in his
 
 176 THE CHARTERS OF STEPHEN 
 
 charter he bound himself to very little. At the accession of Henry I. 
 four days had been sufficient to enable the king and his advisers to 
 draw up a manifesto, which was to secure him the support of the 
 baronage, and to protect him from any rival claim that might in 
 time to come be set up for his brother Robert. On that occasion 
 there was indeed ample room for hurry and anxiety ; there might be 
 troubles ahead, but there was no imminent personal risk ; no oaths 
 of fealty had ever been taken to Robert, no stain of perjury was on 
 the men who elected and crowned Henry. 
 
 It was different now. The late king had taken every possible 
 means to secure the crown for his grandson ; no mention seems to 
 have been made of the possibility of Stephen's succession in the 
 public deeds of his uncle's life. He had been the first to take the 
 oath of fealty to Matilda and her infant son. We may be quite 
 willing to take the most charitable view of his proceedings, and to 
 attenuate to the utmost the guilt of the archbishop and the 
 ministers Roger the justiciar and Nigel the treasurer, and we may 
 even admit the probability of the truth of Hugh Bigod's story that 
 Henry I. before he died had disinherited Matilda and authorised 
 the succession of Count Stephen of Mortain. But were theory and 
 fact more conclusive than they are, it is certain that the burden of 
 the oath betrayed, and the necessity of making provision for their 
 own security, would prevent the prelates and ministers engaged on 
 Stephen's side from attempting to make with the king they were 
 creating any further terms than would indemnify themselves. 
 Possibly they sold their chance for the promise of continuance in 
 office ; possibly, like the old reformers, Bishop Roger of Salisbury 
 thought that reform had gone far enough, and that even reaction was 
 better than letting the guidance of affairs pass out of his hands. 
 The excellence of routine, which was all that he and his master had 
 yet conceded to liberty, was contained in custom, and a promise to 
 retain good customs was all that was needed to bind the conscience 
 of the king. But it is quite possible that he also was carried away 
 by the simple desire of self-preservation, and that, in his heart 
 believing in the truth of Matilda's claims, he simply temporised, 
 and that to very little purpose. 
 
 Setting this aside, however, and granting that there are marks of 
 hurry and unpreparedness about the whole proceeding, let us go on 
 to consider what are the exact relations of the second to the first 
 charter. The chronology of the year is a little perplexing. Accord- 
 ing to Henry of Huntingdon, at the close of the Christmas festival 
 Stephen came down to Oxford and renewed the promises made at 
 his coronation, especially undertaking to renounce the unjust re- 
 straint on the free election to bishoprics, the Danegeld, and the
 
 THE CHARTERS OF STEPHEN 177 
 
 forest encroachments of his uncle. While at Oxford he heard news 
 from Scotland that compelled him to go north and meet King David 
 at Durham. After a hasty run to Durham and back, Stephen held 
 a solemn court at Easter in London ; shortly after Easter, Earl 
 Eobert of Gloucester, not yet having done homage to Stephen, came 
 to England, and a few days after his arrival the king, at Oxford 
 again, issued the new charter, the first witness to which among the 
 earls of England is Robert himself. That is apparently the sequence 
 of the events ; the exact dates may perhaps be approximated to 
 thus. They are curiously crowded, as our dates will be next term, 
 by the occurrence of a very early Easter. Easter is on March 22, 
 as early as it can be. Stephen's coronation was either on De- 
 cember 22 or on December 26 ; the evidence is conflicting. Before 
 the end of Christmas he was at Oxford. What brought him there ? 
 Well, perhaps it was the funeral of the late king that brought him to 
 Reading ; that took place within twelve days of Christmas, i.e. before 
 January 6, 1136. At Reading it is not unlikely that he would come 
 on to Woodstock or to Oxford for the hunting. Anyhow, he did 
 come, and before the end of the vacation, possibly that is before 
 Epiphany, a day or two after the funeral, he received the news that 
 led him to go northwards. John of Hexham gives us the date when 
 he was at Durham ; it was on Ash Wednesday, February 5, that he 
 met King David, and he stayed a fortnight after leaving Durham, 
 therefore on or about February 20. This gives him a month to 
 come south and keep Easter, March 22, with great pomp at London, 
 and then to come back to Oxford. There he had collected the 
 barons and prelates for a great council, a ge?ierale concilium, as it is 
 called. I have no hesitation in fixing this in the month of April ; 
 for having crowned the queen at Westminster on Easter Sunday, 
 he seems to have brought the court with him. 
 
 After all this was done, just before the rogation days, the first 
 of which was April 27, Hugh Bigod rebelled in Norfolk. When he 
 was put down the king went into Devonshire against Earl Baldwin, 
 and yet by the month of August he was able to go to France. The 
 dates follow fast, but you will see they present no great difficulty. 
 Stephen's marches must have been rapid, but we need not suppose 
 that he led great forces about with him, or that the roads, as they 
 then were, made any great difficulties in rapid cavalry movements. 
 
 A first look at the second charter will reveal to us something 
 else that was being done at the same time. 1 We place it then at 
 Oxford early in April 1136. It begins thus, in strict following of 
 the precedent set by Henry I. in rehearsing his title ; and this lets 
 us into a good deal : ' I Stephen, by the grace of God, by the assent 
 
 1 Select Charters, p. 120. 
 
 N
 
 178 THE CHARTERS OF STEPHEN 
 
 of clergy and people, elected king of the English, and consecrated 
 by William, archbishop of Canterbury and legate of the holy Roman 
 see, and confirmed by Innocent, pontiff of the holy Roman see, of 
 respect and love to God grant that holy church be free and confirm 
 to it due reverence.' What has Innocent, pontiff of the holy 
 Roman see, got to do with the matter? We have already seen 
 him recognised by Henry I. as apostolic pope under the pressure 
 of Saint Bernard, who had supported him against Anacletus ; 
 he was owing then everything to Henry I., and now he is 
 obligingly confirming the election of the nephew who has usurped 
 the rights that Henry had so carefully conserved for his grand- 
 son. This is what has been doing in the meantime. The pope 
 was at Pisa ; there must be time for an embassy there to get the 
 pope's recognition and to come back. No doubt one part of the 
 business was to free from the stain of perjury the conscience of the 
 prelates who had joined in the coronation ; another was to obtain a 
 clear recognition of the king's right. This was obtained, and Richard 
 of Hexham gives a copy of the bill which contains it and which 
 might form an important link in the catena of evidence that illus- 
 trates the relations between our kings and the popes. Henry I. had 
 signified to Pope Paschal II. in 1103 his reception of the news of 
 his election, and had promised that he should have in England all 
 the honours that his predecessors had enjoyed under the reign of 
 the Conqueror, but with this significant addition, called forth, no 
 doubt, by the circumstances of the investiture struggle which was 
 going on at the time. ' Your holiness will be pleased to take notice 
 that as long as I live, God helping me, the dignities and uses of the 
 realm of England shall not be diminished ; and if I, which God 
 forbid, should place myself in such abject condition, my optimates, 
 yea the people of all England, would in no wise suffer it. Take 
 therefore, dearest father, more useful counsel, and let your benignity 
 so moderate itself towards us that you may not compel me to do 
 what I should be very unwilling to do, depart from your obedience. 
 That was plain speaking, very Henrician indeed ; but now the tune 
 has changed, and the king chosen by the English has, as it seems, 
 to apply to Pisa for confirmation. 
 
 This is what Innocent says : ' The King of kings changes times 
 and transfers kingdoms. The great King Henry we hear is dead, 
 under whom religion and peace flourished. On his death religion 
 and peace were endangered, and the kingdom was given over to evil 
 men. Then Divine mercy put into the hearts of prelates, magnates 
 and people, communi voto et unanimi assenstc, to choose you Stephen 
 for their king ; so at least I am well assured by the letters of the 
 bishops, of the king of France, and Count Theobald, your brother ;
 
 THE CHARTERS OF STEPHEN 179 
 
 and considering that at your coronation you promised obedience and 
 reverence to S. Peter, and because you are known to be of near 
 degree of relationship to the late king, we receive you as the special 
 son of the Eoman church and S. Peter, and will that you should 
 retain all the privileges of honour and friendship which your pre- 
 decessor had at our hands.' A special son of the Roman church 
 making at coronation special promises of obedience to the chair of 
 S. Peter ! Surely if Peter of Blois had seen this, it was sufficient 
 warrant for him to tell Henry II. that he was as king of England 
 in a special filial relation to the pope, and might extenuate, if it did 
 not justify, the submission of John to Innocent III. Read this in 
 conjunction with the claim set up by Gregory VII. and repudiated as 
 distinctly by the Conqueror, and you will see that the times have 
 changed. 
 
 Well, so much for Pope Innocent. Now how about the promises 
 that the king had made on his first visit to Oxford, about canonical 
 elections and Danegeld and forests? The first point is not abso- 
 lutely left out of the charter. We shall see directly how very 
 clerical in its character the charter is ; but just now we may observe 
 that the only mention made of elections here is in the three or four 
 words, ' donee pastor canonice substituatur.' About the Danegeld 
 not a word. ' As for the forests, those of my grandfather and uncle 
 William, I mean to keep ; those of my uncle Henry, I surrender ; 
 I give them up free to the churches and to the kingdom.' l Again 
 you see how little that was wanted was really granted ; and then, 
 again, how little that was granted was really given. The case of the 
 Danegeld was very hard, for it was believed, nay known, that King 
 Henry had vowed to release the people from it. The story is told 
 on the best authority imaginable ; it was not the king's lawyer, but 
 his doctor, that stood sponsor for it. As he was in Normandy in 1130 
 he saw three visions : first he saw in his dreams a multitude of 
 rustics with their instruments run and jump on him and demand 
 their dues ; then he saw a cohort of armed men rushing at him 
 with their weapons aimed direct ; then he saw a company of 
 prelates with their pastoral staves threatening him. So startled was 
 he at each dream that he jumped out of bed, cried for help, and 
 drew his sword. Finding nobody handy to kill, he sent for the 
 doctor, Grimbald, who told him to imitate Nebuchadnezzar, and 
 redeem his sins by alms. Whether he took Grimbald's physic or not, 
 he was in no hurry to take his advice, and it required a sound 
 shaking in a storm at sea two years after to bring him back into the 
 right mind. Then he vowed that for seven years he would release 
 the Danegeld and do justice ; but whether justice or not was 
 
 1 Select Charters, p. 120. 
 
 n'2
 
 180 THE CHARTERS OF STEPHEN 
 
 done, the Danegeld was left alone, and now Stephen contented him- 
 self with the custom of his uncle, vowed and did not pay. 
 
 But what, we further ask, did the charter contain ? Again we find 
 the chief lesson of these early charters is what the evils were that 
 wanted remedy, rather than the nature of the remedies to be applied. 
 The people without any difficulty could tell the evils, the king's 
 ingenuity was tasked to invent the remedies. However, as we might 
 expect considering the influence by which Stephen had reached the 
 object of his ambition, the first and longest section of the charter 
 relates to the clergy. So far as it goes it is very good. ' I promise 
 that I will do and will permit nothing to be done simoniacally in 
 ecclesiastical things.' Simoniacally, even under the better administra- 
 tion of Henry I., very much had been done. Freedom of election in 
 an ideal state of church polity meant everything honest and true ; 
 but were the people, or the clergy either, fit for the use of such a 
 privilege ? The cathedral chapters were family parties, the monks of 
 the conventual chapters were at the king's mercy. No doubt prefer- 
 ment was sold by the crown. No doubt the votes of the chapters, 
 and even of the monks, were in many cases bought and sold too. 
 Even a fair bishop did not think it a very bad sin to distribute 
 among the members of the chapter which elected him the purse that 
 he had been making by similar little transactions while he was one 
 of their number. 
 
 Well, so far as royal promises go, simony was not only 
 renounced, but forbidden ; there is to be no more of it. Whatever 
 we may think of the conduct of the leaders on the occasion of the 
 usurpation, or election by surprise, as it would be more just to call 
 it, it is certainly to the credit of the bishops that the first point of 
 remedy they asked for was this grievous religious and social abuse. 
 But the abolition of simony is by no means all that is demanded 
 or granted. 
 
 The next sentence contains a recognition of the fullest kind of 
 the right of the clergy to an independent administration and inde- 
 pendent judicature. ' 1 recognise and confirm that the justice of 
 ecclesiastical persons, and of all clerks and their property, and the 
 administration and distribution of goods ecclesiastical, be in the 
 hand of the bishops.' ' The word perhibeo is peculiar — it is some- 
 times used as equivalent to grant, more frequently it means to assert 
 — here it seems to be used in order to escape the actual use of the 
 word grant, which would imply that this was rather the concession 
 of a new privilege than the allowance of an old right. Anyhow, the 
 right is allowed and recognised, and it would seem to some purpose ; 
 for not only are church councils much more free under Stephen 
 
 1 Select Charters, p. 120.
 
 THE CHAKTERS OF STEPHEN 181 
 
 than they had been under Henry I., but church courts also are more 
 active and independent. The legation of Henry of Winchester, 
 which was set up about three years after the issue of this charter, 
 and which was regarded by the contemporary writers as an era 
 of innovation in the practice of ecclesiastical appeals ; the history 
 of Archbishop Theobald and his attempts by means of the teaching 
 of Vacarius to introduce the study of the Eoman civil law ; the 
 correspondence of John of Salisbury, who, as Theobald's chancellor 
 and secretary, transacted an immense amount of judicial business 
 which would come under the justitia potestas and distributio, here 
 recognised as belonging to the bishops : all show that the reign of 
 Stephen was what Henry II. believed it to be, a period during which 
 the limitations of his grandfather and great-grandfather had been 
 forgotten or set aside, and the avitcz consuetudines, which had 
 regulated the relations of spiritual and temporal power, had been 
 practically disregarded. 
 
 This sentence, although it is not very much noticed by historians, 
 is perhaps the first and most definite statement of the doctrine of 
 ecclesiastical independence translated into fact. In comparison with 
 it the next article is of smaller import. The dignities of the churches, 
 confirmed by their privileges and their customs, had by ancient 
 holding — ' I ordain and grant ' — to remain inviolate : the privilegia 
 are royal and papal charters, which for the most part granted to the 
 privileged churches and monasteries corporate rights, exemptions 
 from ordinary jurisdictions spiritual and temporal, as well as their 
 property and other honours. You will observe the distinction 
 between the rights ascertained by charter, privilegiis, and those which 
 depended for their validity on ancient prescription. Tbe property, 
 however, is subject to another clause : ' All the possessions of 
 churches and their holdings, which they had on the day that 
 William my grandfather was alive and dead [that is on the day of 
 his death], without any counter-claim of other claimants, those 
 I grant free and absolute ; but if the church shall hereafter demand 
 restitution of lands had or possessed before the Conqueror's death, 
 of which she has now lost possession, those I reserve for my own 
 indulgence and liberty of bestowal, to restore or to apportion 
 between the claimants. Whatever since his death by the liberality 
 of kings or the largess of princes, by offering, or purchase, or 
 exchange at the hands of the faithful, has been bestowed on the 
 churches, I confirm.' l 
 
 These three clauses divide the church claims into three divisions : 
 the lands held from the days of the Conqueror with undisputed 
 tenure ; the lands the right to which accrued in the Conqueror's 
 
 1 j Select Cliarters, p. 120.
 
 182 THE CHARTERS OF STEPHEN 
 
 days, but is disputed; the lands which have accrued since the 
 Conqueror's days. The first and last are freely confirmed ; as to 
 the second, the king reserves to himself the right of determining 
 whether they shall be restored or discussed, subjected apparently to 
 legal investigation and determination. The clergy were not to have 
 everything their own way, but they do secure a good deal. This was the 
 great era of Cistercian endowment, and unquestionably the king had 
 the right to limit the bestowal of new endowments. The next 
 article is the declaration of the peace, in much the same purpose as 
 the proclamation of the peace at the accession of a new king, in 
 accordance with the promises made at the coronation, and following 
 the precedent set by both the Conqueror and Henry I. 
 
 The forest article which follows I have mentioned already several 
 times in this course. ' The forests which William, my grandfather, 
 and William, my uncle, instituted and held, I reserve to myself. 
 All the others which King Henry added, I restore and concede quiet 
 to the churches and to the realm.' ' We learn from this that Henry 
 had made new forests as well as the Conqueror and William Rufus ; 
 and we learn from the express language of the historians that 
 Stephen did not keep his promise, but almost immediately after 
 making it, hunted in the grounds inclosed by Henry I. in Leicester- 
 shire. The quarrel about forest boundaries that seems to have 
 revived at the accession of every king went on, as you may 
 remember, a sort of perpetual sore, between the king and the land- 
 owners until the close of the reign of Edward I., when the final 
 perambulations were made which defined the forest territory and left 
 the unauthorised forest accretions under the name of purlieus or 
 purallee, subject to a modified operation of the forest law, the study 
 of which was a special subject of jurisprudence. The revival of 
 forest claims under the Tudors and Stuarts should not be left out 
 of consideration in a complete view of this point : a point which, 
 although constitutionally simple and now obsolete, was practically 
 a matter of very great significance long after the close of the 
 mediaeval period proper. 
 
 After making his futile promise about the forests, Stephen 
 returns to church matters : ' If any bishop, abbot, or other ecclesias- 
 tical person before his death has made a reasonable distribution, or 
 fixed that such distribution should be made, I grant that it hold 
 good ; but if he has been surprised by death before doing so, let 
 distribution be made for the safety of his soul by the counsel of the 
 church.' 2 The curious privilege which the kings claimed of seizing 
 the personal property of ecclesiastics after their death, of giving 
 them power to make wills, and of authorising either beforehand 
 1 Select Charters, p. 120. 2 Ibid.
 
 THE CHARTERS OF STEPHEN 183 
 
 or afterwards the execution of their wills, is an old and curious 
 prerogative which I have nowhere seen fully discussed. It was 
 certainly acted upon long after Stephen had pretended to surrender 
 it. Henry II. seized the goods and money of Archbishop Roger of 
 York, although before his death he had authorised him to devise 
 it. So did John the property of Hubert ; so did Edward III. 
 the property of Archbishop Stratford ; constantly we come across 
 letters of licence allowing the prelates to make wills. Some time 
 we must make it our business to try to get to the bottom of this. 
 Certainly it seems to show that whatever extent of privilege the 
 crown was willing to concede to the church as a sacred corporation, 
 it would endeavour to make the utmost it could out of the individual 
 parson alive or dead. 
 
 But we go on. 'While the sees are vacant of their proper 
 pastors I will commit them and all their possessions into the hand 
 and custody of the clerks or goodmen of the same church, until a 
 pastor be canonically substituted.' This last article seems to be 
 added as an additional guarantee against the misuse of the royal 
 prerogative of prolonging vacancies of bishoprics and abbeys, 
 of interfering with elections, and confiscating temporalities during 
 vacancies. We have already noticed that the words donee pastor 
 canonice mbstituatur are the sole words in the charter which seem 
 to refer to the promise made by the king at Oxford, of allowing free 
 elections ; nor is there any promise made not to hinder the election 
 so as to prolong the vacancy. Perhaps Stephen thought that the 
 word canonice implied not only freedom, but observance of the 
 ancient canon which ordered elections to be made within three 
 months. The guardianship of temporalities was a more distinct 
 royal right, and one which for a long time occupies an important 
 place in documentary illustrations of history. To conclude : ' All 
 exactions and injustices and miskennings ' — that is, as you re- 
 member, fines for not observing the exact terms of pleadings — 
 'whether wrongfully introduced by sheriffs or by any others, 
 I altogether extirpate. Good laws and ancient and just customs in 
 murder fines, pleas, and other causes I will observe and enjoin to be 
 observed, and ordain.' l We gather from the special mention of the 
 murder fine that Norman and Englishman were not so thoroughly 
 welded together as the ' Dialogus de Scaccario ' forty years after this 
 represents them ; no doubt they needed the civil war of the next 
 twenty years to produce the desired amalgamation. Consistently 
 enough the charter ends with a saving clause : ' All these I grant and 
 confirm saving my royal and righteous dignity.' 
 
 ' Select Charters, p. 121.
 
 VIII 
 THE DOMESDAY AND LATER SURVEYS 
 
 Thebe is one sort of authority on the laws and customs of the 
 Norman kings, of which we have made in this term's lectures less 
 use than we might have done. I mean, of course, the Domesday 
 survey. It is full of interesting matter, more or less directly bearing 
 upon our subject ; but to have attempted to read any part of it in the 
 only way in which such things can be read in lecture would have been 
 futile, and the few extracts from it which are printed in the ' Select 
 Charters ' are not selected as a specimen of the contents of the three 
 huge folios that are known as the published Domesday, but are chosen 
 as mere illustrations of the points (mainly set before the reader in the 
 other parts of the volume) which are of constitutional importance. Of 
 course I am not going in the last lecture of the term to attempt any 
 general account of these volumes ; but it has struck me that I might, 
 by giving a few minutes to the several surveys of the century with 
 which we have been dealing, set before you some of the points in 
 which, when you have time and if you have the will, you may find 
 your way to do some useful research. Among the day dreams in 
 which I have indulged in the intervals of terminal courses, has been 
 one of a Domesday Society : a devoted little band of forty savants 
 of research, who might each undertake a separate county, and by 
 adding up the sums, arranging the names and measurements, and 
 identifying the localities, pave the way for a really true Domesday 
 map. Then I have thought, by the help of later surveys such as I 
 am going to speak of by-and-by, we might get a manorial map, 
 which would show how the land of England was shared between the 
 crown, the clergy, and the nobles at different critical periods of our 
 history, and on that we might frame an ' honour ' map, showing the 
 distribution of family inheritances and local influences, some of which 
 subsist to the present day. The thing would be possible now, for, 
 notwithstanding the proceedings of late years, which have, by 
 encouraging the enfranchisement of copyholds, done almost all that 
 can be done for the effacing of manorial boundaries, those boundaries 
 still subsist in men's memories and in court rolls, that still have
 
 THE DOMESDAY AND LATER SURVEYS 185 
 
 some shadow of usefulness and legal force. But it may not be so 
 much longer, especially if local self-government is, as seems likely, 
 to be restored under new conditions and with little regard to 
 organisation which is becoming archaeological. Still, at the present 
 day there is a great deal of interest felt in these local matters, and 
 if we were to add to the concoction of a manorial map a codifica- 
 tion of manorial customs, we should have erected a monument 
 are perennius of the continuity of English local institutions from 
 the earliest times, to last until our American cousins have annexed 
 us ; and possibly longer still, for those cousins, even more than most 
 of our own countrymen, show a very lively interest in everything, 
 legal, customary, or historical, that illustrates the cradle of the race, 
 out of which evolution is going to produce the ideal man. 
 
 Well, that is a day dream, perhaps, quite as much as my 
 Domesday Society may be ; but, returning to that, I propose to 
 run over the materials that exist for reproducing surveys of 
 this kind, with special reference to Domesday, but not with any 
 attempt to analyse the idea of that work, or to present any 
 of its results. We will make it just a lecture on documentary 
 research. Of course Domesday is the beginning, but there are in 
 the volume appended to the printed Domesday two documents which 
 are historically prior to it, and out of which some portion of its 
 materials were selected. These are what is called the Exeter 
 Domesday and the Ely or Cambridgeshire Domesday. The Exeter 
 Domesday is properly called the Geld Inquest, and if we only had it 
 complete we should have a record which, as illustrating local history 
 and nomenclature, would not be inferior to the great Domesday 
 itself. It is a portion of a survey made in the year 1084 for the 
 payment of Danegeld ; which, you will remember, William the 
 Conqueror, according to the historians, in that year collected at the 
 rate of six shillings on every hide of land. The Exeter Domesday 
 then contains, with various degrees of exactness, a survey of the 
 hidage of Devon, Somerset, Dorset, and Wilts, and nearly the 
 whole of ancient Wessex ; and from it we get the hundreds 
 and townships of some of those counties drawn out with great 
 completeness. Although this Geld Inquest has no close connec- 
 tion with Domesday, it is one of the surveys cited in Domes- 
 day as an authority for the geld payable by every estate, and 
 affords most useful illustrations and supplementary particulars 
 additional to those which are in some cases given very sketchily in 
 the more famous record. Domesday itself was the product of a 
 survey made two years after the Geld Inquest, in the year 1086, and 
 contains very much more information on social and economical 
 points, as well as on local laws, customs, and privileges, although in
 
 186 THE DOMESDAY AND LATER SURVEYS 
 
 the geographical information it might be improved if it had followed 
 more closely the plan of 1084. The description of it given by 
 Florence of Worcester, in the passage printed in the ' Select 
 Charters,' answers so closely to the reality of the book, that we are 
 tempted to conclude that he took it directly from a local survey of 
 the county of Worcester analogous to the survey of the county of 
 Cambridge preserved in the Ely Domesday. 
 
 As the preface to the Ely Domesday is also printed in the 
 'Select Charters,' • I need not now read it at length, but tell you 
 simply what its relation is to the Great Survey, or Exchequer 
 Domesday as lawyers call it. The Great Survey was made by small 
 committees of surveyors, the barones errantes, or justiciarii errantes 
 of the period, who went into every hundred and township and took 
 the evidence of representative men from each district as to the 
 extent, fertility, and agricultural value of every holding ; the inquiry 
 is made on the oath of the sheriff of each shire, of all the barons, 
 lords of manors, and Frenchmen, and assembly of every hundred, and 
 of the reeve and six villani of every township. The villani here are 
 the men of the township, the name not necessarily implying 
 servitude, but simply that the six were representative hunagers of 
 the manor, or members of the local organisation of the township. 
 When each county had made its return by this machinery, the 
 whole was abridged and codified and arranged. Unimportant par- 
 ticulars, or such as presented themselves to the codifiers at the 
 Exchequer as being irrelevant, although to us they are very 
 interesting indeed, were omitted, and the whole was arranged in the 
 two beautiful parchment volumes which you may see any day at the 
 Record Office in Fetter Lane, in a glass case and fireproof room. 
 
 Well, the Ely Domesday, of which I was speaking, is the earlier 
 report of the commissioners for Cambridgeshire, out of which the 
 chief commissioners made their abridged survey for the great book. 
 It is in every respect much more full than the Exchequer Domesday, 
 but of course its chief interest is local or nearly so. These, then, 
 are the three great relics of the Conqueror's economical administra- 
 tion ; two imperfect, the other as perfect as when it was written, 
 and constituting for Englishmen, perhaps, the most interesting 
 record in existence ; on religious grounds less interesting than 
 the gospels given by S. Gregory to Augustine, or some of the 
 early collections of laws and chronicles, but in its completeness and 
 uniqueness beyond all comparison with any record of this or any 
 other nation of Europe. It is indeed to English history what the 
 books of Numbers and Joshua are to the Bible. Domesday, as the 
 
 1 Select Charters, p. 86.
 
 THE DOMESDAY AND LATEE SURVEYS 187 
 
 chief valuation book of England, was never during the middle ages 
 surrendered, and so long as the ancient systems of tenure had any 
 practical importance was appealed to as an authority that could not 
 be gainsaid. In particular all questions connected with the customs 
 of ancient demesne, or the extent of that sort of holding, were 
 resolved by Domesday. But it was not at the time regarded as 
 possessed of such permanent authority ; and one of the measures 
 attributed to Kanulf Flambard, the famous minister of William 
 Rufus, was the compilation of a new survey, in which the loose 
 measurements of the hidage should be reduced to greater uniformity, 
 and a basis laid for closer and heavier taxation. You probably know 
 that it is one of the vexed questions of the reign of William Rufus, 
 whether or no this second Domesday was ever drawn up, or whether 
 the whole story may not have arisen on a mistaken notion as to the 
 share taken by Flambard in the work of the real Domesday. It is 
 said that there is still in manuscript a portion of a survey of the 
 lands of the abbey of Evesham, which bears some signs of being 
 part of such a second survey. Whether these signs are not merely 
 indications of an improved and revised extract from the original 
 Domesday, or whether the relic be not one of the many local surveys 
 or rent rolls of the abbeys which were drawn up for the use of the 
 monastery itself in the twelfth century, I cannot say, not having seen 
 the manuscript, but it is most likely that it is an ordinary terrier or 
 list of estates, with the special tenure, services, and rents of the 
 monastery, and not a part of a general government survey. There 
 are many such books, more or less complete, but generally somewhat 
 later than the date of the Evesham fragment. The marquess of 
 Bath has recently printed such a survey of the estates of the abbey 
 of Glastonbury, framed very much on the lines of Domesday, but of 
 at least a century later. 
 
 Archdeacon Hale, some years ago, edited for the Camden Society 
 a Domesday of S. Paul's, drawn up by the Dean Ralph de Diceto in 
 1181, and the famous Boldon Book or Domesday of Durham, which 
 is printed by the Surtees Society and also in the appendix volume 
 to the Exchequer Domesday, contains an exact survey of nearly the 
 same date of the lands, tenures, and services of the county palatine. 
 But all these belong to a later system. There is, then, no certain 
 evidence that the Domesday said to have been projected by Flam- 
 bard, was ever really drawn up, and there is no producible portion 
 of such a survey certainly forthcoming. But it is more than pro- 
 bable, almost an inference of necessity, that the changes of 
 taxation and the improved administration of the reign of 
 Henry I. would involve the drawing up of lists and rates which 
 would, to some extent, be imitations of Domesday. Thus for
 
 188 THE DOMESDAY AND LATER SURVEYS 
 
 the great aid taken by that king on the marriage of his daughter 
 with the emperor, there no doubt was made a list of tenants of 
 land, and of the number of carucates if not of exact knight's fees. 
 I think that for the reign of Henry I. there must have been at least 
 two such surveys, one in which the carucate-arrangement was 
 adopted, and a second in which the knight's fees and their holders 
 were enumerated. 
 
 The Liber Niger, the Black Book of the Exchequer, printed by 
 Hearne in the eighteenth century, contains a survey of the carucates 
 of Lincolnshire, made not later I think than 1127, and possibly 
 as early as 1117, which must have been part of a general survey 
 made to determine the incidence of a carucage or some tax 
 levied on the carucate and oxgang. This is a very valuable local and 
 genealogical record, and we owe to it nearly all we know of the 
 hundredation and trithing arrangement of Lincolnshire. It is 
 accounted by genealogists also as the most important temporal docu- 
 ment that exists between Domesday and the first extant roll of the 
 pipe, that of the thirty-first year of Henry I. But it is simply a 
 survey of one single point, not a general description of the land and 
 its capacities, and it is confined to a county which, although very 
 large and full of anomalies, lay at the time outside of the more 
 exciting acts of the historical drama. 
 
 The next thing of the kind is the pipe roll of which I have 
 just spoken. This is the only roll of the kind earlier than the 
 reign of Henry II., after whose accession there is a complete 
 series, and for the most part in duplicate. It was published by 
 the Record Commission in the early years of the nineteenth 
 century, edited by Mr. Hunter, and contains an almost perfect 
 account of the royal revenue of the year 1180, the amount of the 
 ferms, and the sheriffs' expenses, the nature and profits of pro- 
 ceedings in the courts of law, the nature and incidence of general 
 taxation, and light on almost every particular of interest in the con- 
 stitutional history of the times. It is from it, combined with the 
 Leges Henrici and the writs contained in the chartularies of the 
 time, that we are able, so far as we are able, to reconstruct the public 
 administrative system of the Norman period. Yet, curiously enough, 
 it was not until Mr. Hunter edited it that the proper date was 
 assigned to it. It was very commonly cited as belonging to the fifth 
 year of Stephen, and is so quoted by Madox, the historian of the 
 Exchequer, in a way which confuses the reader and unfortunately 
 damages, to some extent, the usefulness, although not the authority, 
 of Madox ; for that most industrious writer invariably gives his refer- 
 ences, and so saves us from the risk of accepting his inferences as 
 authoritative categorical statements. One result of the mistake was
 
 THE DOMESDAY AND LATER SURVEYS 189 
 
 to represent the reign of Stephen as a much more orderly period 
 than it was, a notion which still is traceable in some books, the 
 writers of which were not aware of the error into which the misdate 
 was leading them. But valuable as this pipe roll is, and although 
 in many respects it supplies the place of a survey and furnishes the 
 information that we look for in a survey, it is not a survey, only a 
 most important link in the chain that connects Domesday with the 
 later developments of the Exchequer economy. For an account of 
 its contents and arrangement I must refer you to the 'Dialogus de 
 Scaccario,' the second book of which contains a most lucid and 
 exhaustive account of the method of account at the Exchequer ; or to 
 my own account of the book in the section on the Exchequer in the 
 first volume of the ' Constitutional History.' 
 
 I said that the reign of Henry I. must have had two surveys 
 made, but I mentioned only the fragment of the Lincoln carucage. 
 The other, I think, must have been a complete list of the knight's 
 fees of the kingdom, for that there was such a fist we infer from the 
 distinction between the old and new feoffment that is found in the 
 accounts of the reign of Henry II. The knights of the old feoffment 
 were those who had received their knight's fees in the reign, or before 
 the end of the reign, of Henry I. The new feoffment included all 
 that had been cut out and bestowed on knights from the accession 
 of Stephen to the year 1166, the next date at which we have distinct 
 memorials. This is, however, only an inference. No such list is 
 now known to exist, nor have we any document of a similar character 
 belonging to the reign of Henry I. or Stephen, besides those I have 
 mentioned, and possibly early terriers of the monasteries and cathe- 
 dral churches. When we come to the reign of Henry II. we are 
 better off. Not only have we the perfect series of pipe rolls, which, 
 although still unprinted, have furnished both local and constitutional 
 archaeologists with great wealth of material, but we have, in the col- 
 lection known as the Liber Niger of the Exchequer, an assembly of 
 documents which approach to the character of a new survey. One 
 of Henry's reforms, as you may remember, was the substitu- 
 tion of scutage or taxation by the knight's fee for certain purposes 
 for taxation by the hide, for the purpose of discovering what sum 
 could be so raised, and who were the persons on whom it should be 
 charged. Henry in or about 1166 issued writs to all the tenants in 
 chief directing them to report how many knights they had of the old 
 and new enfeoffments holding land under them. The letters in 
 answer, one of which is printed in the ' Select Charters,' were collected 
 in the Black Book, and occur also, I believe, in the Red Book, which is 
 still in manuscript. These are most valuable as giving the skeleton of 
 the feudal map of England ; and our lawyers and antiquaries have
 
 190 THE DOMESDAY AND LATER SURVEYS 
 
 followed them up by tracing in the pipe rolls the transmission of 
 knightly property wherever it is noticed. 
 
 Besides this record there is the Boldon Buke, or survey of the 
 county palatine of Durham on the plan of Domesday, a survey of 
 great importance socially as capable of comparison with Domesday, 
 showing the differences which a century of important events had 
 produced in the condition of classes, or at least between north and 
 south England in corresponding classes of society. This and the 
 other surveys, like the Domesday of S. Paul's and the volume on 
 Worcester which Archdeacon Hale also published, are our chief 
 authorities as to the condition of husbandry and agriculture in the 
 latter part of this century, and thus have a value for that purpose 
 far beyond mere lists of names and measurements of estates. And 
 they take us a long way. 
 
 Alexander Swerford, the original compiler of the Red Book of 
 the Exchequer, marks the next era and sort of material, although I 
 should not forget the attempt made by Richard's ministers in 1198 
 to get a new survey made which would prove a more profitable rate- 
 book than the Domesday. Nothing, however, came of that. In the 
 Liber Ruber, Swerford not only copied our dear ' Dialogus de 
 Scaccario,' but the returns of the Liber Niger to the writ of 1166, 
 and continued lists from the pipe rolls of all the tenants in chief 
 and knights accountable for scutage. It is probable that during the 
 long reign of Henry III. there would be, as taxation increased or 
 varied, new valuations of property. Certainly there were new valua- 
 tions of church property, especially that called the Norwich taxation, 
 drawn up by Bishop Suffield of Norwich about the middle of the 
 century, and used for taxing the clergy until a new one was made in 
 1291 or 1292, but the Norwich taxation exists only in fragments, 
 and would be of little use as illustrating secular territory. 
 
 With the reign of Edward I., as we might expect, we find our- 
 selves again on sound economical footing and forthwith look out for 
 new surveys. And this is the case from the very beginning of the 
 reign. Very early in it, before the king had returned from France, 
 where he was detained during the first year after his accession, it 
 became necessary to ascertain what had become of tha demesne 
 estates of the crown under the lavish prodigality of Henry III. In 
 order to obtain the requisite information, as soon as the king 
 returned, commissions were issued for the purpose of examining 
 into the condition of the local popular courts, the hundredal and 
 manorial courts that claimed jurisdiction and profits. The result of 
 that commission was the production of what are known as the 
 ' Rotuli Hundredorum ' or hundred rolls, a large return from every 
 county in England, giving an account of the hundredal divisions
 
 THE DOMESDAY AND LATER SURVEYS 191 
 
 and of the ancient courts that continued under that name to drag on 
 an attenuated existence. This very valuable return is printed by the 
 Record Commission in two large folios, and although, like other 
 returns of the kind, it is a little puzzling, taking for granted on the 
 part of the researcher a greater knowledge of contemporary law than 
 is easily accessible, it is extremely valuable. What the Domesday 
 survey is for general purposes, and the returns of the Black Book for 
 the feudal allotment of estates, the hundred rolls are for the history 
 of the surviving local jurisdictions. On these returns was based an 
 Act of Parliament, passed in 1278, called the statute of Gloucester, 
 and out of the statute of Gloucester arose another similar series of 
 returns known as the quo warranto rolls, the result of a visitation 
 under the statute, and this linked on to the rotuli hundredorum 
 serves to complete the contemporaneous history of the subject.. 
 
 A second great survey of Edward I.'s reign was what is called 
 Kirkby's Quest, a grand record drawn up in or about 1284 or 1285, 
 for the purpose of making out the tenures and numbers of knight's 
 fees. Great part, if not the whole, of this record has been published. 
 It will perhaps strike you that some of these surveys may have been 
 very ordinary pieces of work, and that the extant remains of them 
 owe their importance to the fact that most similar reports have 
 perished, and not to any peculiar merit of their own. That may 
 very well be the case, but without at all diminishing the historical 
 value to us of the relic that has survived. 
 
 The third great survey of the reign is the ecclesiastical taxation, 
 the taxation of Pope Nicolas, a new assessment of all church 
 property, whether temporal or spiritual, that is whether consisting 
 of landed estates or of tithes, offerings, and voluntary payments, 
 capable of being reduced to audit. This was made in 1291 for tbe 
 purpose of a papal grant which the king shared. It is very thorough 
 and complete, and was the valuation book on which all ecclesiastical 
 taxation was based until the reign of Henry VIII. With this the list 
 of our great surveys ends, and nothing like a complete census of the 
 landowners or taxpayers was as a census taken until modern times ; 
 but the place of such a document for practical purposes was 
 supplied by the extremely close and accurate way in which the 
 returns for the taxes were kept, in what are called the subsidy rolls, 
 immense masses of which occur in the Public Record Office, and some 
 few of which have been printed by various archaeological societies. 
 
 You may remember, if you have read that part of my ' Constitu- 
 tional History,' that after the year 1334 no new valuation or assess- 
 ment for the rating of grants from personal property was made 
 but the sums levied that year on each hundred and township became 
 the regular amounts henceforth demandable from such hundred or
 
 192 THE DOMESDAY AND LATER SURVEYS 
 
 township, and so far as its separate incidence was concerned was 
 reapportioned from year to year among the individual contributors by 
 the local machinery. The subsidy rolls are the returns made, for each 
 tax, by the officers employed in the collection, and they give the names 
 of the payers and the amount paid. Some of them are extremely 
 full, as, for instance, the roll of the poll tax of 1379, which contains 
 the names of all persons above the age of sixteen on whom that 
 unpopular impost was levied. This roll is extant for the West 
 Riding of Yorkshire, and has recently been printed by one of the 
 Yorkshire societies. Unfortunately other counties do not possess 
 such a record, but this is for all questions genealogical and 
 economical a repertory of facts of the greatest interest. Well, so 
 long as records of this kind were regularly made up from year to 
 year, anything like a new survey for the purposes of practical 
 business was unnecessary ; and as political economy had not yet set 
 itself up as a science, men did not feel the want of a census for 
 purposes of speculation and argument. Still they might have found 
 it useful at times ; if such a survey had been in the hands of 
 Edward III.'s parliament of 1371 the ministers could not have 
 made such a mistake as to suppose that there were 40,000 parishes 
 in England, and the absurd numbering of knight's fees which was 
 reputed in those times would have shared equal contempt. 
 
 So it is, however, that by the help of subsidy rolls, civil and 
 ecclesiastical, we run down to the age of the Reformation without 
 a new survey, and from the days of the Reformation onwards to the 
 last century without the taking of anything like a census. The 
 great survey of church property taken between 1536 and 1540, and 
 known as the valor ecclesiasticus, was one of Henry VIII.'s mea- 
 sures ; taken in connection with the dissolution of the monasteries, 
 it superseded the taxation of Pope Nicolas, and continued to be the 
 valuation known as the king's books, on which the payment of 
 certain tenths, first to the crown, and after the time of Queen Anne 
 to the augmentation of small livings, is made. For other ecclesias- 
 tical purposes it is superseded by the returns made annually by the 
 clergy, and by the particulars returned in the decennial census, in 
 the tithe apportionments and the reports of the Ecclesiastical 
 Commission. Into the history of the census returns I am not 
 going to intrude. The return of the landowners of Great Britain, 
 popularly called the New Domesday, was made in the middle of the 
 nineteenth century to an order of the House of Commons, which 
 wished to obtain clear knowledge as to the proportions of land held 
 by large and small landowners. It is a useful book for people who 
 want to know what their country neighbours are worth, but for the 
 real purposes of a Domesday scarcely worth even an incidental
 
 THE DOMESDAY AND LATER SURVEYS 193 
 
 mention. Of course it does not lie within the scope of legal and 
 historical inquiry at present to examine the numerous returns on 
 agriculture which are annually furnished, and which form for 
 economical purposes the closest analogy to the ancient Domesday ; 
 or the Ordnance Survey, which, if it would lend a hand to such 
 historical maps as I have dreamed of, would add an invaluable 
 section to national history.
 
 IX 
 
 THE COMPARATIVE CONSTITUTIONAL HISTORY 
 OF MEDIEVAL EUROPE 
 
 In beginning a course of lectures the purpose of which is to trace 
 the evolution of the chief European constitutions, and by compari- 
 son of their developments to attempt some view of the general 
 character of the growth of free government as exemplified in them, 
 it is perhaps necessary and certainly advisable that I should state at 
 some length some postulates or principles which will be usefully 
 kept in view by those who intend to follow my train of thought. 
 It is obvious at the outset that I must lay down an idea or two 
 which seem to me to be true, and on the hypothesis of which I shall 
 say much that I shall have to say, but which I by no means wish 
 to inculcate upon you as infallibly true, or indeed as my own view 
 so perfect as not to admit or even to require modification. 
 
 In the first place, however, I need hardly tell you that I am 
 
 no believer in what is called the philosophy of history. Philosophy 
 
 in its modern use is generally nothing but an attempt to discover 
 
 the wrong reasons for events or phenomena, to elaborate processes 
 
 by which the things that we see or know to have happened could be 
 
 accounted for, supposing that everything that produced them was 
 
 something else than what it is. History is, on the other hand, the 
 
 tracing of recorded effect and recorded cause ; and such philosophy 
 
 seems to me to be a contradiction in terms of the true readings of 
 
 history. If you think that I misrepresent in this definition the 
 
 philosophy of history, I bow to your decision, and will say only in 
 
 the second place that I am opposed to the school of thinkers which 
 
 exalts the generalisations of partially informed men into laws, and 
 
 attempts out of those laws to create a science of history. And the 
 
 reason of this is simple. I fully believe in the government of the 
 
 world by Divine Providence, and that the Divine Providence, acting 
 
 always for that which is right and best, by its very nature acts with 
 
 some uniformity of cause and consequence. But I also believe that 
 
 the Divine Providence acts in the government of the world through 
 
 secondary agencies, and the chief agency in the department of
 
 CONSTITUTIONAL HISTOEY OF MEDIEVAL EUROPE 195 
 
 history which we are attempting is the will of men, the aggregate 
 of wills of individual men, than which no agencies can be conceived 
 more capricious, more uncertain, more incalculable. It is the portion 
 of history to trace the workings of these secondary agencies, and 
 even to generalise from them ; but to enter into the higher regions 
 of Divine Providence is the portion of faith rather than of science, 
 and I for my part should be very loth to bind as by a law the action 
 of Divine Providence with any generalisation of mine from men's 
 doings, as regards either past or future. No one believes more 
 sincerely than I do in ' God in history ; ' but I believe in Him so 
 strongly that I dare not exalt even the most certain generalisations 
 of history into laws by which to a certainty either past, present, or 
 future is guided. Putting, however, aside the theological element, 
 it is certain that greater and more minute knowledge reveals endless 
 differences — leads to an impression rather of infinite diversity than 
 of elemental unity ; that although the eye of genius can descry the 
 one in nature and the one in history, the admission must be made 
 with two serious drawbacks : first, that it is not every student of 
 history or one in a thousand who possesses the eye of genius ; 
 while generalisation is a most tempting process to all minds, and 
 thence in nine cases out of ten a generalisation is founded rather on 
 ignorance of the points in which the particulars differ than on any 
 strong grasp of the one in which they agree. The more you know of 
 any two persons or events, the less alike they seem ; perfect knowledge 
 is independent of, and even inconsistent with, any generalisation at all. 
 We cannot study history without generalisation, but it is a great 
 and fatal error to depend on such generalisations as a perfect and 
 sufficient reading of history, still more to exalt them into laws, into 
 necessary conditions of the moral government of the world. On 
 this view you will not expect me to profess myself a believer in the 
 1 education of the world,' as it is called, or in the ' unity of history.' 
 On both these cardinal points I am to a certain extent a heretic. With 
 regard to the former I need not say more than this, that I am 
 averse to setting out ingenious and fanciful analogies as even 
 guesses as to the way in which the world is led on from the worse to 
 the better, and that independently of the agency of the church I can 
 see no general progress of the kind in the world's history at all, 
 nothing whatever that entitles us to regard the most advanced portion 
 of mankind as representative of the whole race, the vast majority of 
 nations and ages lying outside the sphere of the assumed process of 
 the second. I may say a word more, because I was accused of having 
 in my inaugural lecture neglected or despised a great truth, and 
 also because the point lies close at the foundation of the subject we 
 now have in hand. In my view as then expressed, the modern and 
 
 o2
 
 196 THE COMPARATIVE CONSTITUTIONAL HISTORY 
 
 ancient world are divided, and ancient and modern history set one 
 against the other : in the opinion of my critics they are continuous, 
 one of the chief links being the influence of the imperial idea of Rome. 
 
 Now, I do not for a moment dispute the continuity of many 
 important influences, such as are describable under the general term 
 of civilisation, including Grecian ideas of art, and the language and 
 even the law of Rome ; but now, as then, I repeat that, firstly, the 
 geographical area of modern history is for the most part outside of 
 the geographical area of ancient history. Rome and Greece are 
 secondary and insignificant in the ages in which the chief place is 
 occupied by England, France, Spain, and Germany ; and the Italy 
 of modern Europe is a very different thing from the Italy of Roman 
 times. Secondly, I repeat that the actors in the drama of modern 
 history are different from the ancient ; that the nations are new to 
 history at the opening of the new period, and that the main in- 
 fluences of their historical life are inherent in their own condition — 
 are not derived from the continuous influences of the ancient world : 
 the nations of modern history are new, and the chief characteristics 
 of their history are their own, neither borrowed nor learned from 
 the elder times. But thirdly, and this I have always strongly 
 insisted upon, the influence of Christianity, of the church, and 
 Christian civilisation belongs far more to modern history than to 
 ancient ; and in modern history it is one of the chief, if not in all 
 respects the chief, ingredient. In these three things, geographical 
 area, national origin, and distinctive Christian civilisation, the 
 world of modern history is self-contained, is divided from the old. 
 Of course these things did not come into existence at the point of 
 time at which modern history begins : Britain, Gaul, Spain, and 
 Germany were portions of the known world, and the nations that 
 come on the stage after the Christian era were known to the world 
 before ; and the influence of the church itself, the spiritual process 
 of successive dispensations which were leading up to the final one, 
 were, or rather are, now traceable in the sacred history ; but for 
 all that, the decision is a true one, and the distinction real for the 
 purposes of study such as ours. Nor is the continuity of the idea 
 of Greek art and Roman law to be set in comparison for a moment 
 with the entire novelty of scene, of action, and of influences which 
 are what we have undertaken to examine. 
 
 Again, then, I say, our work of learning is here to deal with 
 actual events, most efficient and powerful influences, and these are 
 new, modern in every sense. To take one example. There can be 
 no doubt that in many respects the ancient history of Greece affords 
 parallels and analogies with modern history, especially in such con- 
 stitutional questions as the formation of republics and the relations
 
 OF MEDIAEVAL EUKOPE 197 
 
 of sovereign and democratic or popular governments ; and as men 
 and aggregations of men are, whatever their actual history, amen- 
 able to limited sets and series of influences, there can be no diffi- 
 culty in showing points in which modern and ancient institutions 
 can be made to illustrate one another. But there is all the differ- 
 ence in the world between a casual coincidence or parallel such as 
 might be traced between Carthage and Venice, for instance, however 
 close the analogy, and a real case of recorded cause and effect. 
 Even where, as in more modern times, the resuscitation of a poli- 
 tical idea has really influenced the process of events, as we may 
 imagine the mythical history of the Roman republic to have affected 
 the actions of the founders of the mediaeval Italian republics, or of 
 the American republics, or even of the French revolutionary one, 
 such an influence is itself a creation of the circumstances in which it 
 finds room for itself ; it is but an illustration, but a distant beacon 
 fire which might have burned for ever and ever but for the existence 
 of far stronger and innate influences which made the condition of 
 things in which its usefulness became possible. 
 
 The freedom of modern Europe is based not on the freedom of 
 Greece or Rome, but on the ancient freedom of the Teutonic nations, 
 civilised, organised, and reduced to system by agencies of which 
 Christianity and the system of the church are far the greatest and 
 most important, in which the civilisation of later Rome is a minor 
 influence, and that an influence apparent in the way of restriction 
 rather than of liberation ; in which the ancient philosophic freedom 
 such as is exemplified in ancient Greece is an influence too infini- 
 tesimally small and remote to be worth calculating. And in general 
 it seems to me that the bearing of the elder on the newer world was 
 of this kind. I adduced this as an illustration : in reality it brings 
 me to the point on which we are now going to set to work. If my 
 principles are true, or even approximately true, or practicably useful for 
 the study of one side even of modern history — and this much I may 
 claim for them, I think, without gainsaying — we shall have to begin 
 our study of the constitutional history of Europe with an investi- 
 gation of the origins of the nations : that view we must illustrate 
 by the history of their languages ; and proceed through the history 
 of their Christianising and progressive civilisation to the considera- 
 tion of their common and written laws, their land system and their 
 methods of government. The tracing of the changes, developments, 
 or revolutions will form the main subject of the course, although 
 I am not prepared to say that it will by itself occupy the largest 
 number of lectures. I am induced to treat these questions in this 
 way partly because I think that it may supply an element of life 
 which is wanting in Hallam, and partly because it is to me the most
 
 198 THE COMPARATIVE CONSTITUTIONAL HISTORY 
 
 fertile in interest, and that of a character not at present exhausted or 
 likely to be so. 
 
 Now, no one can read Hallam without being sensible of two 
 or three very astounding things ; in the first place, he deals with 
 men and nations very much as if they were wooden figures pulled 
 about by agencies and influences with which they themselves have 
 very little to do. It may be that he was so deep a thinker that 
 he took the distinctions of national origin and temperament for 
 granted ; but if he did, it spoils the use of his work as a text-book. 
 But it is more probable that he did not fully realise them — had not 
 profited by the investigations of such writers as Palgrave, or even 
 Allen and others whom he quotes so much, as at first sight would 
 appear ; but in the second place he restricts, by giving so small a 
 portion of his book to Spain and Germany, the interest of consti- 
 tutional study altogether to England, France, and Italy ; while in 
 his way of treating early English history he has shown his bias by 
 giving to feudal history a share of attention not greater than it 
 deserves, but out of all proportion to the importance of the earlier 
 institutions, antecedent to feudalism, with which much that is of 
 supreme importance in the mediaeval constitutions is closely allied. 
 Nor is there in Hallam any attempt at a comparison or gene- 
 ralisation on constitutional matters, except the most superficial 
 and obvious ones between the effects of feudalism in England 
 and France. Great as are our obligations to him, they are con- 
 fined to the fact that he has brought together materials for 
 generalisation. He has not even attempted the curious problem, 
 how comes it that the barbarian nations, starting from very similar 
 beginnings, and in possession of similar institutions, worked their 
 way through not dissimilar histories to altogether different results 
 in the way of government ; while others have arrived at a similar 
 condition springing from different origins and disciplined by histo- 
 rical experiences which superficially viewed seem entirely dissimilar ? 
 
 This, then, is the theorem which we are going now to investigate ; 
 and please to remember that we are going to attempt the task on an 
 historical, not on a philosophical, plan ; to look at the facts as they 
 are, not as they ought to be on the general laws of the science of 
 history ; and that even in our abstractions and generalisations, 
 when we shall draw off our attention from the points in which 
 the histories we are comparing differ, concentrating it on those only 
 in which they agree, we shall feel bound to adhere to historical, not 
 merely theoretical, resemblances and connections, distinctions and 
 differences. I shall not expect you to take what I say for gospel, 
 but shall not overburden my text with authorities : authorities I 
 shall be always ready to give when they are asked for. As to the
 
 OF MEDIEVAL EUROPE 199 
 
 method, I shall not bind myself to either the synthetic or the 
 analytic ; but the latter will of course be the chief in an investiga- 
 tion naturally so short as can be given in a term's lectures to so large 
 a subject : several points will have, however, to be treated in direct 
 narration, and therefore synthetically. Illustrations, I fear, I can 
 only give through the medium of reference. As to proportion, if 
 I seem to give more than is requisite to the history of Spain and 
 Germany, you will understand that it is because these countries are 
 less clearly and exhaustively treated in our text-book, Hallam. I shall 
 then proceed to examine our subject in the following order. 
 
 First we shall ask what is the origin of the populations that, 
 within the ages we regard as the sphere of mediaeval history, have 
 been known as the English, French, Spanish, and German nations ? 
 That question we shall treat with reference to both what history 
 records of these origins and also to the ordinary theories at present 
 in vogue about them, which theories in some cases, based on the 
 evidences of archaeological conjecture, must either be met with sound 
 reference to existing authorities, or be left in suspension until new 
 data turn up. From this I shall proceed, secondly, to the question 
 of language as illustrating the historical origin, and show how that 
 which is puzzling and perplexing in the relations of language to 
 nationality may be cleared up by the plain reading of history with 
 ever so little recourse to conjectural causes. The third point to be 
 discussed will be the variety of sources from which the medi- 
 aeval nations received the gospel and civilisation in union with 
 Christianity : we shall see how the source affected the full flow of 
 the stream, and how the church affected the state in various ways 
 determinable by the character of the initial source. The fourth 
 point will be the investigation of the origin of the laws or legal 
 system of the four typical nations ; in which I shall, in brief out- 
 line, attempt to give the relative amounts of barbarian, Roman, and 
 feudal law that are to be found in the mediaeval law books, and to 
 draw some generalisations as to the ways in which they are develop- 
 ments and expressions of the genius of the several nations, or super- 
 strata imposed by conquest or imitation, or adaptations by the 
 national spirit of such superstratum when it has been laid over the 
 original customs of the race, which in time have had strength and 
 opportunity to grow through and assimilate that which was 
 adventitious. Fifthly, I shall attempt to show how the tenure of 
 land, the base of the great mediaeval constitutions, varied in the 
 different nations and in different ages of the same ; how the mixture 
 of the two great tenures in different quantities affected the political 
 history, and how the constitutional history altogether springs out of 
 their combinations and oppositions. I shall try to show what
 
 200 THE COMPARATIVE CONSTITUTIONAL HISTORY 
 
 characteristics, moral and legal, belong to the two systems of tenure, 
 historically and theoretically, and thence how the political or con- 
 stitutional history varies with the working of those characteristics. 
 We shall then look into the position of the sovereign as he was in 
 the earlier and later middle ages, more especially with reference to 
 his making and unmaking, his election, and the means by which his 
 responsibility to his subjects for good government was secured. 
 
 In the following lectures I shall work out the constitution of the 
 national council, first as to its powers, and secondly as to its con- 
 stituents. The last lecture I shall devote to the question of 
 judicature and a general summing-up of the course. You will 
 observe that in this arrangement I have taken it for granted that 
 there are a few very distinct and pronounced factors or ingredients, 
 on the proportions of whose combinations the variations in the 
 history of these nations largely depend : the land and the landless, 
 the noble and the non-noble, the town and the country, the 
 indigenous and the foreign, the Roman and the Teuton, the allodial 
 and the feudal, the nation at home and the nation abroad, the nation 
 heathen and the nation Christian, the power spiritual and the power 
 temporal. On the working of these factors constitutional history is 
 based ; but outside of these there is a great field of investigation, 
 not the mere history of the factors and the proportions of their 
 combinations, but how the factors come to be what they are, and 
 how they are mixed in the proportions in which our survey of results 
 sees them. This great field is that of political or general as opposed 
 to, or rather as in itself distinct from, constitutional history ; and 
 indeed it might, if our constitutional history could be made at all 
 an adequate view of facts, be called the analytic, while the political 
 would be the synthetic history of the same set of things. In this 
 idea I should have been glad if I could, as I have done in the course 
 of English and German history, have included within the scope of 
 the series all that is essential in history, excepting wars and fightings 
 and treaties. Almost everything else either belongs to the internal 
 or constitutional side of history, or may be treated in illustration of 
 it. Even wars and fightings and peaces sometimes are worth tracing 
 in this view, as the constraining causes of internal movements, either 
 by way of taxation, or of the levying of armies, or of the political 
 action of parliaments. But, upon consideration, I found at once that 
 this was impossible, and that at least four terms' lectures would be 
 required for even the most scanty exhibition of such a design. 
 
 I have therefore, as I said before, without lending myself to either 
 plan exclusively, drawn up this course on a comparative and therefore 
 analytic plan, which will, I trust, serve as a programme for those who 
 are beginning Hallam, and as a help to the critical understanding
 
 OF MEDIAEVAL EUKOPE 201 
 
 of his real value, and of the relation of the different portions of his 
 ' History of the Middle Ages,' while those who have read their Hallam 
 will be able to criticise me, and, comparing my views with their 
 own derived from him or from elsewhere, get new lights on the more 
 general and wider portions of the great field before them. It would 
 indeed be a very valuable work if some of our historical writers 
 would, as Sir Francis Palgrave began to do, take the history of any 
 one of the four typical nations and show how its great features were 
 really developed. It stands to reason that the form of government 
 into which a nation has educated itself must be the expression of the 
 natural spirit and genius of that nation ; supposing always that the 
 nation has had a free development, has not been tyrannised over and 
 brutalised by the dominion of another far greater than itself. We 
 might almost say that where this has been so, the result has brought 
 out the weakness as well as the strength of the particular national 
 spirit. Take Ireland for instance, where the national genius has 
 been, as it says, oppressed by centuries of English tyranny, by a little 
 over-nursing, and by constant misrule. Notwithstanding the tyranny, 
 the over-nursing, and the misrule, the Irish spirit is unassimilated ; 
 it is not certainly what it would have been had it been left alone. 
 Foreign dominion has been one very influential factor in its history ; 
 it has brought out its bad points most certainly, and it has not less 
 certainly, if we would take pains to investigate it, brought out the 
 good. 
 
 On the relations of Hungary to Austria, and of Bohemia to 
 Germany generally, you may draw distinct conclusions. In Hungary 
 neither race, or rather none of the three races, has been able to 
 extinguish the other ; in Bohemia, although it has been part of 
 Germany for nearly a thousand years, we see in these days the Czech 
 distinct in language : we know that three centuries ago there was 
 every probability that he would be distinct in religion ; and we can 
 with a little guessing foresee that, small as his nation now is, he 
 will not long be content without making a struggle for a distinct 
 political existence, and perhaps a distinct political system from that 
 of his neighbours. But this is not the case in any of the four 
 nations that we shall discuss now. In all the four, whatever may 
 have been the original elements, we have arrived at an amalgamation 
 which is equivalent to a new identity. The Spaniard is a Spaniard, 
 the Englishman an Englishman, the Frenchman a Frenchman, and 
 the German a German ; his national character may or may not be 
 resolvable into conjectural elements, and it may be read different 
 ways according to the particular prejudice with which we approach 
 the study of it, but there is no question about the perfect amalga- 
 mation, there is no difference in England proper between Celt and
 
 202 THE COMPAEATIVE CONSTITUTIONAL HISTORY 
 
 Roman, Briton, Saxon, Angle, Jute, Dane, or Norman ; nor in France 
 between Celt, Aquitanian, Belgian, Frank, Visigoth, and Norman. 
 The population is one, and the constitution, although its history 
 requires investigation into its origins, is also one. As for the modern 
 character of the several nations, we may, I think, add that it also is 
 one ; but we must not forget that it is as much indebted to the 
 historic training it has received as the line of constitutional develop- 
 ment is to it. 
 
 National character may be regarded as the result of national 
 history, or national history as the development of national character ; 
 either way we cannot fail to recognise the closest connection between 
 the two. Now, of all the evidence that can be taken, and that we 
 shall attempt to take in this course, of the actual origin of each 
 nation and of the persistence of the original character, by far the 
 most clear and decisive are the customs of common law. These 
 customs spring out of the first movements of the race towards social 
 and civilised life ; although not recorded in books, they are the most 
 ancient portion of its lore, but they are not the earliest monuments 
 of its literature. They are indeed often not written at all until they 
 are becoming obsolete, until the use of them is less absolutely 
 necessary, and oral tradition in danger of dying out. In the relics 
 we have of the earliest unwritten jurisprudence, it may be we have 
 only small portions of a much wider subject-matter ; but it may 
 also be that, as nations feeling their way to a civilisation of their 
 own take only short steps and use but little apparatus, we have a 
 very large proportion of the whole. And as the more closely we 
 trace the origins of the modern nations, or say simply of the Teutonic 
 elements in them, the more surely we come upon a few everywhere, 
 and those common customs, I think we may fairly infer that these 
 are nearly all that there is to know. The modes of proving guilt and 
 innocence, the modes of transferring or holding land, the assemblies 
 of the tribe for counsel, for judicial work, or for military expeditions : 
 these are common to the race, and they involve almost all the law 
 that is needed by races in the condition in which we first find them. 
 But how about their persistency ? Of course by their persistency 
 I do not mean their absolute conservation — to expect that would 
 be to expect a perpetual barbarism. But I do mean that the changes 
 and adaptations which the warm air of civilisation invites and 
 necessitates should be developments from the original institution, 
 should not be something merely mechanically added to it. Train 
 your plant in a particular way, if you please ; graft upon it, if you 
 like, institutions which, because of their common and radical identity, 
 there is no difficulty in adapting and making fruitful by the adapta- 
 tion ; but do not hollow out your apple tree and make a tulip bed
 
 OF MEDIAEVAL EUKOPE 203 
 
 of the trunk, and then call the tulips a persistent growth from the 
 apple stock. The English nation was at one time greatly in danger 
 of having this done to it, but happily the tulip roots rotted, and the 
 apple trunk put forth new branches and leaves and fruit. We might 
 almost, I think, say that in the case of the thoroughly Eomanised 
 races of ancient Europe the process did take effect, and both perished 
 together ; but in England the old customs really continued, and 
 new ones were developed out of them as the ages went on, and new 
 occasions arose, and they showed their persistency and their vitality 
 by taking new forms and bearing more abundant practical fruit. 
 
 Now, where there is this persistency and vitality of common law 
 customs, this historical development of the new out of the old, we 
 are surely very strongly tempted to argue a close connection between 
 nationality of character and nationality of custom ; and as there can 
 be no question but that judicial machinery has been historically the 
 training apparatus of constitutional working, we are equally tempted 
 to discover in the constitutional development the characteristics of 
 the national spirit : if persistent, strong and vital ; if much changed, 
 pliant and feeble ; if altogether effaced, either too weak to live or 
 crushed to death by some great affliction. It is, perhaps, natural to 
 look for a greater degree of freedom, and therefore a more regular 
 and natural development of these customs, this national spirit and 
 character, where there has been less foreign interference, and there- 
 fore the purest breed, the most insulated history, will exhibit them in 
 their most orderly growth ; and we are therefore inclined to ascribe 
 to the strength of the character somewhat that might be as justly 
 attributed to the freedom of the developments. In such cases one 
 cannot be too cautious, but also one must not be too critical ; of 
 course the strongest plant will grow the most freely, and of course 
 the plant whicb has the most liberty to grow in will prove the 
 strongest. Our freedom may be indebted to the vitality and per- 
 sistency of our primaeval customs, or their persistency and vitality 
 may be a consequence in some measure of our liberty of free growth ; 
 but for all that, if on examining more customs we find that they 
 are in themselves, and not merely accidentally, akin to freedom ; if 
 we place them side by side with those of other races of distinct origin 
 and character, and without denying to those other races the credit 
 which they claim, and which on the verdict of history they deserve, 
 see that they really are based on a sounder principle of liberty and 
 equality before the law, and on a clearer sense of a man's responsi- 
 bility for his own acts, and on a fairer provision for the security of 
 life and property than the other, we are bound to regard them as 
 having the root of the matter in themselves. Nor shall I be going 
 so far as to anticipate what I shall have to lay before you by and by
 
 204 CONSTITUTIONAL HISTOKY OF MEDIAEVAL EUROPE 
 
 if I say now that I do trace in the old Teutonic system more germs 
 of real liberty than I can in the Celtic system, so far as we know it, 
 or in the Sclavonic, or in the Eoman itself, with respect, be it said, 
 to all those who find nothing in civilisation that is not Eoman. I 
 do think that in the free tenure of land, the fixed obligations of 
 allodialism, the relation of the freeman to history as the impersona- 
 tion of the race, the combination of the frankpledge, nay, I will add 
 the compurgation and the ordeal and the wergild, is to be found a 
 more likely basis of freedom than in the community of land, the close 
 tie of patriarchal or family unity, the enormous and disproportionate 
 estimate of blood nobility, and the clannish spirit that one finds in 
 the Highland Scot and Irishman, or in the Pole or Hungarian. 
 
 Of course you will understand there are two sorts of freedom ; 
 when I speak of these institutions as more akin, and the others as 
 less akin, to freedom, I do not mean that the Scot or Irishman 
 would fight for his country less bravely, determinately, or obstinately 
 than the Englishman, the Spaniard, or the German. The love of 
 one's country's independence is one thing, the vital necessity of 
 political freedom is another. One man will fight for his country, 
 another will fight for his master, another for the head of his house, 
 another for the one who pays him best, and all honestly and com- 
 paratively with honour. But the Englishman and the German, 
 when they are fighting for their country, know and feel that they 
 are fighting for themselves, and even here the two sorts of freedom 
 show that they are very close akin. The freedom that we contend 
 for as springing from our ancient free customs is, then, not freedom 
 from external control merely, but a freedom for internal development 
 and unfettered action, unfettered, that is, but by just laws and a 
 sound sense of responsibility : laws which are just because they are 
 accepted by those whom they rule as their own laws, which they and 
 their fathers have made and proved, and altered when they wanted 
 altering, and known by long experience to be good and fair to all ; 
 and a sound sense of responsibility, based on a knowledge of the 
 law, and a conviction of its fair dealing and experience of its honest 
 execution : influences which are no small powers in the training of 
 an active conscience, although they cannot supply the vital principle 
 of the active conscience when unhappily it is wanting. These 
 remarks perhaps are more fitting for the conclusion than the 
 beginning of a course which will have in it little to relieve the 
 technicalities of the subject, but it is fair that you should know 
 my views at starting. 
 
 [See Maitland, 'Domesday Book and Beyond' ; Bound, 'Feudal 
 England ' ; Stubbs, ' Constitutional History,' vol. i. ; Stubbs, ' Historical 
 Introductions to the Bolls Series,' ed. by A. Hassall.]
 
 THE ELEMENTS OF NATIONALITY AMONG 
 EUEOPEAN NATIONS 
 
 At the very outset of our inquiry we are met by the common 
 initial difficulty of all historical research. Naturally our first step 
 is to determine, or to attempt to determine, the elements of the 
 nationality of the several nations of Europe whose development we 
 are studying, during the period of this development ; and the main 
 elements we shall have no difficulty in identifying. Nor perhaps 
 will there be much that is problematical in the discovery of the pro- 
 cess of civilisation in its main current and in its most pronounced 
 influences. But we cannot wisely set aside the earlier question. 
 None of the great nations of mediaeval Europe can be said in the 
 strictest sense to be indigenous ; even the Germans, although within 
 historic times Germany has always been German, have moved so 
 much about the territory which bears their name that scarcely a 
 tribe can be said to remain in the same seat in which we find it at 
 the beginning of history. And as for England, France, Spain, and 
 Italy, we know that a series of waves of conquest has passed over 
 them, double, triple, and sometimes even still more complex. We 
 cannot doubt that the earlier inhabitants of these lands had manners 
 and customs and laws, as they had a language of their own. And 
 yet we know of them from history only the names by which the 
 Roman geographers called them, and have to elaborate from the 
 scanty and uncertain data of archaeology the details of their differ- 
 ences, their progress from the period of stone to that of bronze, and 
 from that of bronze to that of iron ; or the growth of the several 
 tribes from hunting to pastoral, from pastoral to agricultural 
 pursuits. 
 
 At every stage of such an inquiry we are met by tempting paths 
 of research, each and all of which end after a few windings in the 
 same perplexing obstacle. We cannot doubt that in each country 
 the process of conquest and reconstitution involved a displacement 
 of the original people and its civilisation, approaching at various
 
 206 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 degrees to, but in all cases stopping short of, complete extermination. 
 Some relics of primeval custom must have been left, as some inter- 
 mixture of indigenous blood must be allowed on any theory to have 
 followed every wave of conquest or of change. We ask in vain how 
 far had the original genius of the primeval races developed before it 
 was overrun by the barbarism of a conquest, or forced into assimi- 
 lation by the process of foreign civilisation. We ask in vain how 
 far could the development of the genius of Celt or Cantabrian have 
 advanced towards civilisation had it not been forced into the common 
 groove of Roman customs, or what would have been the character of 
 its civilisation, its arts and literature — for Celts and Cantabrians as 
 well as Chinese and Japanese had arts and something like a literature 
 — had it not been forced to bow before the transcendental but adven- 
 titious genius of Rome and Greece and the more ancient sources in 
 the East. We ask the questions, I repeat, in vain. We are forced 
 to content ourselves with a few generalisations, or to sacrifice, as we 
 cannot now do, the real practical lessons of history to the minutiaa 
 of archaeology. We have not time for both. We set out with two 
 generalisations : one that, whatever were the actual developments of 
 the primeval races, or whatever their possible ones might have been, 
 they all had in common a defect or want of what we, educated by 
 modern institutions, term civilisation proper, they were without the 
 institutions of historical civilisation, they were in common barbarian ; 
 the second that, whatever may be the proportion in which the blood 
 of a primeval race is intermingled with that of the conquering or 
 colonising race, and in whatever measure the manners and customs 
 of the one may affect and modify those of the other, that must, for 
 the purposes of constitutional history at least, be counted the paternal 
 element of the race, whose laws, language, religion, customs, and 
 institutions have succeeded in the historical period in working 
 themselves to the chief place of importance in the national polity by 
 an historical, not a philosophical or adventitious, process. 
 
 A people of German elements may be leavened largely by Celtic 
 or Slavonic infusions ; but if, in spite of those infusions, the Ger- 
 man element in language, law, and custom succeeds in winning for 
 itself by historical steps the first place in the constitution of that 
 people, I claim it as German, and German as the paternal element. 
 If Roman or Celt has done the same, then that nation is of Roman 
 or Celtic origin paternally and in the main. But, of course, I am not 
 so foolish as to attempt so to determine the elements of a nationality 
 or of an empire which is not thoroughly amalgamated. The German 
 may be the strongest element in Hungary, and the English in 
 Ireland, but the Hungarian population is not, strictly speaking, a 
 nation, but a congeries of races, German, Slavonic, and Magyar.
 
 ELEMENTS OF NATIONALITY AMONG EUEOPEAN NATIONS 207 
 
 Ireland is Celtic, notwithstanding the prevalence of Teutonic institu- 
 tions and the intermixture of English blood. And I add that the 
 prominence of the paternal element must have been won, not by a 
 single measure or by a succession of separate measures, but by a 
 steady continuance of custom and growth of principle. A Celtic 
 nation may be conceived as adopting by one legislative act a German 
 constitution, but that does not make it German. A German nation 
 may, by successive developments and modifications, so vary its 
 ancient programme that it can hardly be recognised as identical, 
 except by painful antiquarian investigation, but it does not therefore 
 lose one jot of its original Teutonism. This is not an unimportant 
 point to remember, as we shall see, especially when we come to talk 
 about feudalism. 
 
 There is all the difference in the world between a home-grown 
 and an adventitious institution, as illustrating or illustrated by the 
 subject of nationality. It will, however, not be lost time if, as we 
 attempt to determine the national origin of our great peoples, we look 
 by the way at the races that preceded them in their present seats, 
 and point out their comparative degrees and sources of civilisation. 
 As I said in the last lecture, I am not one who is tempted to 
 exaggerate these influences. Modern civilisation is the work of 
 Christianity, and has inherited nothing from ancient civilisation 
 except what Christianity has gathered up into itself and preserved. 
 Ancient civilisation, as we read history, springs from the East, whence 
 Greece and even Carthage and Egypt believed themselves to have 
 drawn the elements which, as modified by them in turn, were spread 
 over the West, even before the iron sway of Rome forced Europe to 
 accept her laws and institutions as supreme. Egyptian and Phoeni- 
 cian civilisation had reached Spain, and perhaps Britain, before the 
 Roman — had modified the indigenous growth before they were them- 
 selves overpowered and assimilated or annihilated by that of the 
 universal empire. But for our subject these things lie very remote : 
 as, when our work begins, the Roman civilisation is falling before 
 barbarism, as the earlier civilisation and earlier barbarism had fallen 
 before it. Christianity brings a new life to the new races, and a new 
 beginning to the world's history. Still, it is not wise to overlook 
 these deep and most ancient differences. 
 
 Of the four nations to which we shall have most particularly to 
 direct our attention I shall take the German first, then the English, 
 then the French, speaking by the way of Italy, and last the Spanish. 
 We shall try to determine two points : first, the nationality of the 
 historical nation ; secondly, its final settlement in its historical seat. 
 1. Of Germany I might content myself by saying that it always has 
 been German. Various as are the differences between the accounts
 
 208 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 of Csesar and Tacitus, and the scattered notices of the other Roman 
 writers, they are all traceable to a series of developments or to varieties 
 of developments in a race that continues substantially the same. The 
 Germans doubtless came in prehistoric times from the East westward, 
 according to what may be regarded as the normal process of migration. 
 Before them there were perhaps a Gaulish people, or some forgotten 
 stock that fell before a short wave of Gaulish migration as the Gauls 
 pressed on with the Germans behind them ; such a race as may have 
 furnished the lake dwellers of Switzerland and the earliest war- 
 riors of the flint arrows and hatchets. In historic times modern 
 criticism gives Germany entirely to the Germans ; engaged in war- 
 fare often enough with the Gauls on the West, pressed on, and 
 sometimes even hardly pressed, by Slavonic races all along the 
 eastern frontier; subject to invasions from Gaul, Roman, Slav, 
 Turk, and Tartar, but gradually, or at once, repelling the foreign 
 element, and revindicating to themselves all the territory in its widest 
 acceptation known as German. 
 
 In more ancient times, as the same modern criticism now decrees, 
 the Teutonic race must have covered a far larger extent of territory 
 eastward ; the Getse and the Daci, even the Thracians, were akin 
 in origin to the modern people, the Getae and the Goths ; the 
 Daci and the Danes seem to have an original relation in nomen- 
 clature and affinity at least of origin. The student of Grimm will 
 be able to adduce from the fragmentary notices of ancient writers a 
 mass of vocabulary proving the kindredship of a language of the 
 tribes known by these names. So far forth, then, the Germany of 
 the middle ages has always been Teutonic, but the conformation of 
 its territories and the location of its several tribes have varied, the 
 former from conquest and the latter from migration. Its frontiers 
 have been readjusted from age to age, east, west, and south, as they 
 have been pressed on by Slav, by Gaul, France, or by Rome herself, 
 for eighteen centuries, from the times of Caesar to the congress of 
 Vienna. Since, however, the settlement of the nations, which may 
 be placed roughly between the ninth and eleventh centuries, these 
 variations of the frontier have been small, and diplomatic rather than 
 national. But the interior of Germany has been very variously re- 
 arranged within and on both sides of that period, and to attempt an 
 exhaustive account of those rearrangements would be work for years. 
 I shall not meddle with it now further than it affects general or 
 tribal nationality. 
 
 Germany at the moment that it became united politically was 
 arranged in four nations, and this arrangement may be very usefully 
 retained in the whole investigation of its history. The four are the 
 Saxons, the Bavarians, the Alemanni or Swabians, and the Franks ;
 
 ELEMENTS OF NATIONALITY AMONG EUKOPEAN NATIONS 209 
 
 the fifth nation, the Lotharingians, is a political rather than a tribal 
 creation, and it falls to pieces in time, losing itself in the kindred 
 races out of which it was formed. Of these four the Saxons cover 
 the north of Germany from the Rhine eastward, and southward as 
 far as Hesse and Thuringia ; the Bavarians extend from the river 
 Lech to the eastern frontier, southward to the Alps, northward to 
 the same border nations. The Franks occupy the northern half of 
 Western Germany along the Rhine as far as the Main ; south of the 
 Main and west of the Lech are the Alemanni, the northern half of the 
 Alemannian country becomes Frank. Now, all these are new names, 
 or if not new, of new application. The races that bore them were 
 confederations of tribes that earlier bore a different name, and they 
 had migrated considerably before they reached their modern seats. 
 The Franks appear in history first in the time of the Emperor 
 Gallienus ; they are already too strong to allow the supposition 
 that they are a new people ; they are doubtless races allied under 
 the name of Freemen. The Alemanni, also a confederation of 
 the tribes that had earlier borne the name of Suevi, and later 
 fulfilled their mission under that of Swabians, appear to have been 
 driven south in the time of Caracalla. The Bavarians also were 
 the ancient Marcomanni, who had moved south through Bohemia 
 into the modern Bavaria, pressed on behind by the Czechs and 
 "Wends, and displacing the Boii, who left their name to both 
 Bohemia and Bavaria. The Saxons were a confederacy of northern 
 and eastern Teutons moving on before the Wends. 
 
 I do not intend to pursue these tribes into the minutiae of their 
 migrations, as I did in the course of lectures on German history. 
 These are the four historic nations of Germany : the little tribes 
 such as the Thuringians, Hessians, Lusatians, and Misnians, them- 
 selves perhaps reconstitutions of the Elderenes, which lay between 
 these greater ones, were politically unimportant in comparison with 
 them, and were perhaps more anciently settled in their present 
 seats ; but there is no question of nationality among them. Their 
 language, history, and laws, are all akin, are all German ; nor do 
 they affect the main current of German history otherwise than as 
 slightly varying by their adhesion or separation the balance of power 
 existing between the greater races. 
 
 How to account for these migrations is the one remaining point. 
 The devastations of Roman conquest created a vacuum southwards, 
 and the pressure of Slavonic tribes from the north and east forced 
 the Teutonic races into that vacuum : a process repeated when the 
 Gothic, the Lombard, and other barbarian conquerors had overrun 
 and deserted the intervening spaces. So we have until the final 
 settlement a constant pressure southwards and westwards. The 
 
 p
 
 210 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 Alenianni settle in the agri limitanei of the Roman veterans, 
 pressed south as far as Speyer ; the Bavarians are settled in Bavaria 
 by Theodoric as a counterpoise to the Franks ; the Franks themselves, 
 consistently though with varying degrees of earnestness allies of 
 Rome, gain settlement and recognition from the emperors until they 
 are strong enough to take their place. The Saxons only, unsubdued 
 and enthralled by no engagements, are independent and self-dependent 
 until the German power is itself becoming Christian, and preparing 
 for its great mission of reconstructing Christendom and founding 
 the new civilisation. 
 
 I have said on this, perhaps, more than enough already, but 
 I must repeat that in German history there is no occasion to look 
 for any other tribal element than the German. The race is pure, 
 and although it may not from diverse circumstances be the Teutonic 
 nation which develops with the most purity the original institutions 
 of the stock, that result, if it be a fact, must be attributed to political 
 and historical causes other than the influence of blood and race. It 
 is to its association with the empire, and to a history which never 
 succeeded in blending into one a congeries of tribes, one in origin 
 and laws, but one also in a spirit of independence so strong that it 
 refuses to coalesce even with its most close affinities : there were 
 times when it might have been so, but the hand that should have 
 done it was not there, and a national German unity has never been 
 realised, nor, although it seems perhaps nearer now than it has often 
 seemed before, can it be regarded as a certainty even in the future of 
 which it is so strongly predicted. So far, however, as Germany is 
 concerned, we have not to take into calculation the influence in 
 blood, law, or custom of any antecedent races occupying the same 
 soil ; the only intrusive element is, as I said before, the Roman, which, 
 however great as regards law and politics, is, and can be, held only 
 in an infinitesimal degree to affect the blood of the race. 
 
 It is true that on each frontier of Germany there is, and has been 
 for ages, an intermixture of German with foreigner, and a variation 
 in language and physique as the German or Italian, German or 
 Frenchman, German or Slav or Wend, has predominated in the 
 mixed people. But this has only remotely affected politics, these 
 border lands being held generally by the German princes with a 
 strong hand. There are differences in this respect : German and 
 Italian, or German and French, blend sooner, it would seem, than 
 German and Slav ; hence the Italian border varies, and the frontier 
 has a mixed population, German in name, Italian in language, or 
 vice versa. But the antagonism in Bohemia and Hungary between 
 the German and the Slav seems to last, or to create at least a 
 strong mark of separation. Hence the difficulties of Austrian and
 
 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 211 
 
 Prussian governments, and the sad history early and late of Poland. 
 But I have said enough about this, and can only repeat that it is 
 from Roman influences that we have to expect the principal disturb- 
 ances of the regular development of Teutonic institutions in the 
 Fatherland itself. 
 
 2. We will proceed secondly to England, of which I have ventured 
 to affirm that it is the country in which the Teutonic genius has 
 most freely developed, notwithstanding the intermixture of the blood 
 and the disturbances of foreign influences. And here the proposition 
 that I have to lay down is briefly this : that the main and paternal 
 stock from which the English and their constitution spring is 
 Teutonic : Teutonic in source, as from the Angles, Saxons, and 
 Jutes of the first conquest ; and Teutonic in the additional streams 
 poured in from subsequent invasions by the Danes and Normans, 
 who, although by their different history and discipline they were 
 made at the time of their introduction into England to exhibit an 
 antagonism in language and institutions to the earlier stock, showed 
 by the ease with which they mingled with it, and the rapidity with 
 which within a century and a half they returned to it, that they were 
 originally closely akin. In intermixing with the English the Dane 
 within a very few years cast off all that was Scandinavian, and the 
 Norman retained in some few departments of language only what he 
 had contracted during two centuries of a French home and appren- 
 ticeship to French institutions. The Teutonic is the paternal element 
 in the English race, as shown in physique, in language, in law, and 
 custom. This is my firm conclusion. I need not tell you that it is 
 one which has been and is still fiercely contested, nor could I lecture 
 on the subject ever so superficially without devoting some time to 
 argument on the points. 
 
 One or two topics I must put aside as too minute and remote 
 from our general subject to be considered now, although in them- 
 selves of importance, especially the question to what extent was the 
 British population before the great wave of Saxon conquest inter- 
 mingled with German races from the opposite coast : were the Roman 
 legionaries who occupied and may have helped in peopling Britain 
 any of them of German origin ? Were the Belgas or the Coritavi of 
 Britain akin to the German or half-German tribes that are said to 
 have borne similar names abroad, or were the pirates of the Saxon 
 shore tenants or only depredators of the British coast ? If these be 
 answered one way, they strengthen my argument ; if they be answered 
 the other, they do not weaken it. To constitutional history in the 
 remotest way they cannot be said to belong. Between them and the 
 Anglo-Saxon system spreads the wave of Roman occupation. 
 
 Granted, then, that Britain when we first hear of it was inhabited 
 
 p2
 
 212 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 by a race of Celts, tc whom, perhaps, the name of Cymru is the 
 proper tribal name, and who were broken up into little states, 
 bearing names most of which are capable of reference to Celtic 
 roots ; that this race, partly by its own development, partly by com- 
 merce with the civilised nations of the Mediterranean and partly by 
 intercourse with semi-civilised Gaul, had arrived before the Roman 
 invasion at a sort of rude semi-civilisation which kept its enemies at 
 bay ; that it was subjugated by Rome with that cunning and cruelty 
 which marked all Roman aggression, and when conquered consoli- 
 dated with that strong and kind policy that marks as distinctively 
 the hold which Rome maintained where she was certain that she had 
 conquered ; granted that when, in the decay of Rome, Britain was 
 deserted by those who had defended and developed her, she was left 
 with a mixed population and semi-Romanised institutions to work 
 out her destiny alone ; granting all this, what does history tell us 
 followed ? Like the other provinces of the empire, deserted by the 
 legionaries and incapacitated by long tutelage from self-defence, 
 this province lay open to the attacks of the barbarians of the land 
 and sea — to the Picts and Scots on the north and west, to the pirates 
 of Germany on the east. The ravages of the Picts and Scots 
 depopulated a country void of the power of defence. The immigra- 
 tion of the Angles, Saxons, and Jutes repeopled the desolate country, 
 and perhaps advanced even a step further the extermination of 
 the Britons. The Britons are driven gradually and at historic 
 dates westward ; their cities for the most part become deserts, and, 
 if not destroyed, are lost among the forests of the Anglo-Saxon 
 dominion. Their Christianity disappears all along the eastern half 
 of Britain, so does their language, so do their territorial boundaries, 
 so in a great measure the nomenclature of towns, rivers, and 
 hills. The pertinacity with which these things have maintained 
 their hold on the western side of Britain for 1,400 years, during 
 which the Welsh language and its local nomenclature have stood out 
 against English aggression, showing the strength and vitality of 
 the race as they do, show with it its utter extermination in those 
 regions where it has finally disappeared. I confess that I do not see 
 how such an argument can be answered. 
 
 If British elements continued to exist in the eastern half of 
 England after the Anglo-Saxon conquest, they were so small that 
 history knows nothing about them. Of course, in the west, along 
 the frontiers of what is now Wales and England, there was a greater 
 predominance of the ancient race, and more intermixture of blood. 
 The West Saxon kingdom, for instance, in Cornwall and Somerset, 
 included a large British population, and received Christianity in some 
 measure from it. But it was otherwise eastward, and what is more
 
 ELEMENTS OF NATIONALITY AMONG EUEOPEAN NATIONS 213 
 
 it was otherwise in the main current. The main power was with the 
 Teutonic race : they redivided the land, they renamed the towns 
 and villages and rivers and mountains ; they accepted Christianity 
 from a distinct source, not from the Britons ; they developed their 
 own institutions without any mixture of aboriginal influence, and 
 worked out the problem of liberty for themselves : it is from them that 
 we have our language, our constitution, our names, and as I believe, 
 for the most part, our blood. This theory of the repopulation of 
 Britain by the English demands as its complement the further 
 assertion, that the process was not one of mere conquest, but of 
 colonisation, nay, of immigration rather, on the part of the new 
 people. And such I believe to have been the case. 
 
 I believe, first, that the new names given by the Angles and 
 Saxons to their new settlements are distinctly family or Gentile 
 names, and simply the migration of a portion of the family 
 in its integrity with wives and children. And I believe that the 
 honour given to women among the ancient German races, although 
 it was not such as to preclude the custom of polygamy and of 
 concubinage, was still so vital an institution among them that it 
 would preclude any indiscriminate intermingling with the subject 
 race, supposing that subject race to have supplied material enough 
 for a repopulation. I do not think that the Angles and Saxons are 
 likely either to have married British wives, or to have admitted the 
 children of British concubines to an equality of right, or to a share 
 in the name and privileges of the race. Nor do I think that the 
 Britons, proud and averse to intercourse with their masters as we 
 know them to have been, would have endured an intermixture so 
 degrading. It is, however, perhaps enough to say for it that it has 
 no historical warrant. As soon as we find Angles and Saxons in 
 Britain at all, we find their women with them. A woman, Rowena, 
 plays as great a part in the traditionary history as do Hengist 
 and Horsa : as soon as the country is settled we find princesses and 
 abbesses in all their German dignity ; but far more than this we 
 rely on the tribal and family organisation as exhibited in the names 
 of places and in the primeval institutions of the race transplanted in 
 their integrity. 
 
 This is, then, a brief outline of the affirmative argument. It is 
 capable of much corroboration ; it would be enough to insist on the 
 point of primeval custom as showing the main constituent, the 
 leading influence. But because it is so ardently controverted it 
 must be examined from the other side. In opposition to it there 
 are two considerable sets of arguments, for Mr. Matthew Arnold's 
 ingenious attempt at the recognition of a Celtic element in our 
 poetry as contrasted with that of Germany proper I set aside as
 
 214 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 simply an elegant theory, a peg for hanging clever criticisms, but 
 unprovable and of no great importance if proved, for no one can 
 doubt that there must be some intermixture of blood and constitution 
 in races which have dwelt side by side for 1,400 years. That is not 
 the question ; it is whether there is enough intermixture to make it 
 reasonable to affirm that the characteristics of the English and their 
 genius and development are largely indebted to such an intermixture. 
 
 The two lines of argument are marshalled in two books, ' The 
 Origin of the English : a Prologue to English History,' by Mr. 
 Lewis Pike ; and ' A Neglected Fact in English History,' by Mr. 
 Coote. I say two lines, not because the train of thought is different, 
 but because the two books supplement one another. Mr. Coote is 
 strongest where Mr. Pike is weakest, and vice versa. Mr. Coote's 
 arguments rest on the proportion of the influence of Konian law on 
 the Anglo-Saxon system ; he attempts to trace all the distinctive 
 features of Anglo-Saxon law to the civil law of Theodosius and 
 Justinian ; and from that infers that Britain retained enough of the 
 system of the earlier conquerors to leaven the whole policy of the 
 newer race ; that the vast majority of the population during the 
 Anglo-Saxon period was British or Romano-British ; that the 
 Anglo-Saxon invasion was simply the assault of an armed post, of 
 limited numbers but preponderating power ; that these succeeded in 
 forming a sort of military oligarchy, not mingling with the subject 
 people ; that these Romano-Britons continued Christian, and that to 
 this may be ascribed the rapidity with which the missions of the 
 seventh century are related to have accomplished their work, the 
 real work done being simply the conversion of the kings, who were 
 more than half converted by Franco- Gallican intercourse already. 
 Such are the really monstrous conclusions of the book : so monstrous, 
 so dead in the teeth of recorded history, that one is tempted to 
 regard the argument as a joke, but that it is really supported with 
 learning and acuteness, and supplies considerable matter for thought 
 in its own strong line — that of law — which I shall examine in a 
 subsequent lecture. 
 
 Mr. Pike's book is much less chimerical in its conclusions, and 
 more moderate in its tone ; but I believe that it is, so far as its 
 arguments are true, unimportant, and in the main line of its argu- 
 ment erroneous. I shall not analyse it, but say that its principal 
 arguments are founded on physical phenomena, on the psychological 
 analysis of the Celt and the Englishman, and on language ; that the 
 most is made of the few historical particulars which seem to favour 
 the writer's theory ; and that the argument does barely touch our 
 great point, the customs of common law and polity. The question 
 of language will come before us later ; the general sense of history
 
 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 215 
 
 seems to me to be what I have stated already ; the arguments from 
 physical and psychological analysis are too wide to enter upon in 
 detail, but I must say, once for all, that all arguments of this kind, 
 if they are to be applied to history at all, must be applied histori- 
 cally, and involve a great number of points which are historical as 
 well as many that are physical. 
 
 In the first place, take any given skull, or any given brain, and 
 determine which you will say are the German and which the Celtic 
 elements in it. But you do not know the history of the owner by 
 merely looking at it ; true, his remote ancestors may have been 
 mainly Celts, quite as probable that his grandmother was Welsh or 
 Irish. You must know the pedigree of your skull before you con- 
 clude on its relative proportions, and infer its remote origin from 
 them. And, in the second place, you cannot argue there are more 
 black-eyed men than blue-eyed men in England, and more blue-eyed 
 than black-eyed in Germany, therefore the English are Celts and 
 not Teutons, until you have determined that the causes, physical and 
 other, the air of the country, the nature of the food, the iron 
 or other ingredients of the water, which Englishmen have been 
 breathing, eating, and drinking for 1,400 years alongside with 
 Welshmen, may not have produced in them the same physical con- 
 formation which it produces in the Celt, and which the German, 
 with different food and water, does not experience. But it is 
 impossible to argue on such data seriously ; nor is there any nation 
 in Europe of which physical uniformity can be predicated, or of 
 which the ruling type, if there be one, is not broken so often by 
 intermixture, that it is impossible to distinguish with certainty 
 which is the rule and which the exception. 
 
 We have considered, so far as seems necessary to our main 
 purpose, the question of the nationality of the two German -speaking 
 races with whose institutions we have now to do. Our next task is 
 to discuss the three Latin- speaking nationalities — the French, the 
 Italian, and the Spanish, putting off, however, for the moment, the 
 subject of the language. The theory in question is that the Angles 
 and Saxons were a mere handful of military adventurers who suc- 
 ceeded in engrossing all political power in Britain, while the bulk 
 of the population, Romanised Celts or Britons, subsisted continu- 
 ously, gradually absorbed the German conquerors, and were the 
 progenitors of the historic English, the people of the middle ages 
 and our own selves ; this being so, not only the influence of the 
 original settlers, but that of the Norsemen and Danes and Normans, 
 also Teutonic by race, becomes reduced to a minimum. The present 
 English would be Celts or Britons mainly, with various infusions 
 of Teutonic blood. The conversion of England in the seventh
 
 216 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 century was but the conversion of the chieftains. Now this theory, 
 which appears to me to be with regard to England the wildest 
 chimera, is to a large extent true with respect to France. 
 
 8. In France, as we shall see, the Teutonic conquerors only very 
 partially mingled with the inhabitants of the subjugated provinces ; 
 and those provinces were inhabited by Celts, brought under the 
 sway, and civilised and Christianised under the influence, of Kome. 
 There were, in fact, in France exactly the conditions assumed by the 
 theory that I am combating to have been present in England : a 
 large substratum of Celtic blood, a superficies of Roman education, 
 a dislocating and disturbing superior flux, as we may call it, of 
 German conquerors. This is historical, not theoretical, in France. 
 If it were the case in England as in France, from the same elements 
 the same results ought to have proceeded, the elements being ex 
 hypothesi in about the same proportion. But there can be no 
 greater contrast physically or mentally than the average Englishman 
 and the average Frenchman ; therefore, what is true of the origin of 
 the one is not likely to be true of that of the other. Or if the differ- 
 ences are to be ascribed to the climate, the food, the water, and other 
 incidents of the country, then are all arguments that tend to disprove 
 the Teutonic origin of the English based on the variety of physique 
 &c. to be answered in the same way. I do not see how this 
 dilemma is open to the usual answer, the tertium quid, unless you 
 suppose a difference of proportion in the two or three ingredients in 
 the respective races ; and if that be done, it reduces the question 
 between us to one of local differences and variations, about which it 
 is scarcely worth while, as a question of history, to argue at all. 
 
 Putting aside, however, the theory, let us look at the history of 
 the French. I need hardly remind you that existing France has not 
 a geographical unity, such as England, Spain, and even Italy, have. 
 It has on the whole north and east but a conventional boundary, 
 one that has varied largely, and may vary still more. It is thus 
 one of the youngest political formations if we regard its territory, 
 although it may be nearly the oldest state in Europe ; for its whole 
 eastern side was within a few centuries a portion of the empire ; 
 its northern boundary is settled by a more ancient arrangement, but 
 by one which has no confirming warrant in the natural features of 
 the soil ; and of the south, a large part was, during most of the 
 middle ages, Spanish, Italian, and German by affinity, and can 
 scarcely be said to have become permanently a part of France 
 before the middle ages close. 
 
 Whoever may have been the inhabitants of France — and we 
 will use the word in its loosest application just now — before the 
 Gauls, we must leave for the archaeologists to settle. We know
 
 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 217 
 
 from Greek and Eoman history that the Gauls were a strong 
 and warlike people four centuries before the Christian era, and 
 although they may then have been in migration and not have fully 
 and permanently occupied the country that they covered in the 
 time of Caesar, we have no reason to doubt that they were the 
 identical race which that conqueror found in the Gallia which he 
 describes as divided between Aquitania, Belgica, and Celtica. We 
 have but few data as to the differences between the inhabitants of 
 these three divisions ; but we may argue from the name of the 
 Aquitani, as well as from their subsequent history, that they were 
 akin to the inhabitants of the Spanish peninsula, or intermingled 
 with the Iberian races ; of the Celts of the centre we may safely 
 conclude that they were less mingled with border races, however 
 much they may have modified their characteristics by mixture with 
 the incalculable because unfixable earlier element ; and as to 
 the north, the Belgic portion, bordering as it did on a dis- 
 tinctly German population, and becoming as it did in historic times 
 the stronghold of the Frankish kingdom, it may be fairly presumed 
 that if not of Teutonic stock, as has been sometimes suggested, the 
 Belgae were somewhat intermixed with the Batavi and other hardly 
 distinguishable Teutonic tribes who lived on the south of the Rhine 
 and the Meuse. I think it is clear that the Belgae were Gallic in the 
 time of Caesar, and as we have no other guide to follow, it would be 
 manifestly unsafe to argue on the supposition that they ever were 
 anything else but Celtic in the wider application of the name. 
 
 Well, the Romans conquered Gaul, this omnis Gallia, from the 
 Rhine to the Alps, the Pyrenees, and the sea ; the France, that is, of 
 modern French aspirations, if not of future history, certainly not 
 of the past ; and when they had conquered it they subdivided 
 it on a theory of their own into several provinces, Aquitania, 
 Narbonensis, Lugdunensis prima, secunda, tertia, and quarta, 
 Belgica prima and secunda, Germania prima and secunda, and 
 Maxima Sequanorum. Into the land thus subdued and subdivided 
 they introduced the whole machinery of Roman government, laws, 
 language, municipal institutions, and therewith the elements more 
 difficult of transplanting, arts and literature. Gaul was thoroughly 
 Romanised, and in many particulars after the influx of the barbarians 
 it was as Roman or even more Roman than Rome itself. Certainly 
 much of the later Latin literature, over which the glory of classi- 
 cality still seems to finger, was produced in Gaul ; perhaps the larger 
 portion of the later poets were either Gauls or Gallicised Romans. 
 Now, what has this to do with the question of race ? Why, this. 
 It shows how completely a nation can be altered by exterior treat- 
 ment ; how it can be civilised, and tutored, and taught, so as to
 
 218 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 forget its former self, its history, and language and manners, with- 
 out any considerable intermixture of the blood ; for we cannot 
 suppose that the Romans ever were so numerous as to afford to people 
 to any appreciable extent the countries that they conquered. You 
 may say, does not this apply to the Saxons and Britons, and may not 
 the Britons have become Teutonised in language and polity without 
 any considerable intermixture of Saxon blood, as you are here 
 supposing of the Gauls ? I answer, the cases are not parallel ; for, 
 first, in Gaul it is the uncivilised race losing their own superficial 
 characteristics before a civilised one — in Britain the case is reversed ; 
 and in the second place, we have historical evidence for the state- 
 ment, we know that the Romans were few and did not migrate, 
 and that the Saxons were many and did migrate ; we know also 
 that the Gauls were a flourishing and the Britons a perishing 
 people ; and in the third place, we may add what I was coming to 
 before, that the Gauls remained Gauls notwithstanding Roman 
 institutions, and retained much of their ancient arrangements not- 
 withstanding the remodelling of the omnipotent Roman administra- 
 tion. This will appear most clearly if you will remember that the 
 Roman redivision and subdivision did not obliterate the ancient 
 landmarks or tribal divisions of the Gauls. Narbonensis and 
 Lugdunensis and Aquitania had subdivisions, and these subdivisions 
 were drawn on more ancient lines, the lines of the little tribal 
 kingdoms which were incorporated one by one as each was con- 
 quered. These little divisions subsisted down to the Revolution, 
 through the Frank conquest and the Karling administration, and 
 came again out of the Medean cauldron of the great break-up of 
 that empire ; nay, they exist still in the shape of the dioceses of the 
 French bishops. Not merely the names of the cities, but the limits 
 of the dioceses that belong to them, are Gallic for the most part, and 
 even if there were no convincing proof that no general change has 
 ever displaced the great mass of the Gallic people, they would be 
 enough to make the history of the Celts under Roman government 
 a contrast to that of the Britons under the Saxons and Angles. 
 
 "Well, granted that the population of Roman Gaul continues 
 throughout the Roman period Celtic or Gallic, civilised into the 
 closest similitude with the real Roman, but yet identically Celtic in 
 race, how does it pass through the ordeal of the barbarian invasion ? 
 To what extent is the race modified by Visigothic, Burgundian, and 
 Frank conquest ? The Visigoths occupied the south-west of France 
 for the whole of the fifth century ; the Burgundians conquered the 
 south-east of it and never left it ; the Franks extinguished the Roman 
 power over the whole extent of it, swallowing up the Visigoths and 
 Burgundians after a short series of wars in the sixth century. Did
 
 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 219 
 
 these nations to any considerable extent intermingle with the Gallic 
 people, or change the proportion of Celtic blood in the race itself, 
 the predominance of the Celtic or Gallo-Roman elements in the 
 national character ? 
 
 Take the Visigoths first, as the first in importance and also in 
 time. They were the most likely of the three to amalgamate, 
 because they were the most civilised and the most Romanised : 
 we must suppose that already from their long association with the 
 Romans they had come to use the Latin tongue as their own ; at all 
 events, whatever remains of them in writing is Latin. Matters of 
 law and religion are rather beyond our present inquiry ; but as we 
 have not very distinct data otherwise, we must use them here. Of 
 the Visigoths we know that their law was an adaptation of Roman 
 law, that their Christianity was Arian. We know that they 
 succeeded in imposing their law, and that they failed to impose 
 their religion ; the elements that were Roman amalgamated, those 
 which were not Roman did not. The cities remained Romano- 
 Gallic ; the country was subject to Gothic lords ; the bishops bore 
 Roman names, the generals were Goths : this tells of no real 
 amalgamation. Nor is there any need to look for it : the stream of 
 Visigothic empire, Arianism with it, passed the Pyrenees, and left 
 Septimania or Landgothia with indelible marks of Gothic occupa- 
 tion, but to all appearance tenanted by the same race that the 
 Romans had found there, Gallic in base, but akin to the mixed 
 population across the mountains, in which the Visigothic was only 
 one ingredient additional to the Basque, the Iberian, the Celt, and 
 the Roman. 
 
 The history of the Burgundians is more obscure ; of their laws 
 and religion the same may be said as of the Visigoths, but they were 
 less civilised and less Romanised. Their tenure of their territory 
 was a permanent tenure, unlike that of the Goths, but their numbers 
 and power were smaller, and their struggles with the Franks much 
 more pertinacious, their extinction as a nation more determinate 
 and complete. Their name survived, and their law by the vitality 
 of its Roman elements, but their language perished, and so far were 
 they from being strong enough to impose Arianism on the people 
 they found Catholic, that they were compelled to accept Catholicity 
 themselves. They sink into the congeries of mixed peoples that 
 inhabit modern Switzerland, so far as concerns the bulk of them ; 
 the nobles, where not extinguished by war, seem to lose themselves 
 in the general body of Frank nobility after they once had succumbed 
 to and became incorporated with the Frank state. 
 
 This brings us to the Franks themselves, who also have given 
 their name to the great country they conquered, and imposed their
 
 220 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 law, but have failed to introduce their language, and have suc- 
 cumbed to the religion and the tongue of the conquered. Here the 
 question narrows itself to very much one of proportion, and that 
 varying proportion. In the centre of France the Franks simply 
 succeeded to the position of the Eoman masters, in the south-west 
 to that of the Visigoths, and in the south-east to that of the Burgun- 
 dians ; it was a conquest, not an immigration. In the north and 
 north-east, the countries which had been their own original seat or 
 the seat of the kindred tribes which had formed with them the 
 aggregate Frank nationality, there can be no doubt that the Frank 
 blood must have been stronger than elsewhere, yet it was not there 
 strong enough to assert itself as it did on the other side of the 
 Rhine against the Roman elements, and cannot therefore be regarded 
 as unmixed. The Frank race continued an aristocratic race ; it 
 ruled the land with pure feudalism, more pure towards the north, 
 where it was less intermingled with Roman institutions. The 
 nobles down to the Revolution prided themselves on Frank extraction, 
 and bore the high old Teutonic names ; but the common people bore 
 still mainly the apostolic names which had come down to them with 
 Roman Christianity, or those of local saints, many of them equally 
 Roman. There is no doubt much Frank blood in the French people 
 now, for the Frank wave never passed away like the Visigothic ; but, 
 arguing on the analogy of history, there is but a small proportion 
 compared with the whole ; nor is there in manners, customs, or 
 character anything that would assert the paternity of the race to be 
 Teutonic. Still, 1,400 years of close intermixture and an historical 
 discipline of singular uniformity have given to the people called 
 French a more pronounced national character than any other 
 European race can claim ; so far also as German elements are trace- 
 able in the polity, they are of a peculiar character — Frank as con- 
 trasted with the wider Teutonic type, feudal instead of allodial, but 
 far more distinctly Roman in many important regards than Teutonic 
 at all. We conclude, although the proportion of Teutonic blood 
 varies in the north, south, east, and west of France, France, however 
 young or old we may consider her, has a history and a national expe- 
 rience that seem to make her one and a peculiar people. It may be 
 that the German element is worn out ; more probably it may be that 
 it never to any very great extent existed in the bulk of the people. 
 
 For Italy a very few words must suffice. It would be very 
 difficult indeed to assert for any single race a principal share in the 
 origination of the modern Italian. Italy, like Rome, has been 
 always a colluvies gentium. From the earliest times, when our 
 school books teach us to refer the Etruscans, the Pelasgi, the Oscans, 
 and so on to different tribal divisions of one great race, or to different
 
 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 221 
 
 great races altogether ; down through the Roman times, when the 
 blood of the slaves of the great patrician houses must have mingled 
 in vast proportion with the native blood of the born Italians ; through 
 the barbarian ages when first the Goth, then the Lombard, then the 
 Frank, then the German for century after century conquered, 
 occupied, and governed the land ; through the later ages when it 
 has been the refuge of strangers from all countries, the resort of 
 perpetual pilgrimages, the geographical expression whose capital as 
 the spiritual mistress of Christendom was thronged by crowds of 
 foreigners as varied, if not as numerous, as when it was the home of 
 the Caesars ; through all these times the Italian people, so far as one 
 can regard them as a nation, has been a mixture, a compound of 
 endless different elements in the way of origin. That a race, 
 undoubtedly so mixed, should develop into such a form as the 
 Italian both physically and mentally has presented throughout 
 history, is, to say the least, a curious phenomenon ; the process of 
 natural selection must have been carried out on a large scale, or else 
 the influences of climate and soil and so on exercise a power on 
 the conformation of men and women more efficacious than that of 
 race, and purity of race is no necessary condition of nobility either 
 of body or mind. The Italian peasant, that class which must have 
 sprung most completely from these intermixtures, is a nobler being 
 in most respects than the Italian noble, whose blood in theory at 
 least is less adulterated. Fortunately, however, we have not to 
 pursue this question ; for, endless as are the varieties of race, endless 
 also are the political types into which Italian constitutional history 
 would have to run in anything like a general view. It is only by 
 way of illustration that I adduce Italian affairs at all, and when 
 I do adduce them it will be enough to indicate any relation that 
 may exist between the polity and the nationality of the instance 
 adduced ; for although Italian historians may assert that Italy has 
 led the way of liberty in modern times, and exemplified every type 
 of free government in its most perfect symmetry, it needs but a 
 steady reading of history to see how utterly baseless this is, how 
 little there is of original political action, and how little of constructive 
 genius in the region of politics, in the Italian pure and simple. 
 The feudalism of Naples and Sicily is Norman : that of North 
 Italy is imperial, Frank or German : the republicanism of Lombardy 
 with all its noble traits and all its wretched results is perhaps 
 original, but it grew historically out of a system which was imperial 
 and not Italian. There is no unity about the history, as there is no 
 unity in the race. 
 
 4. So we come in the last place to Spain ; and of Spain much is 
 true that has been said of France, and somewhat also that has been
 
 222 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 said of Italy. It would be useless for me to attempt to enumerate 
 the different theories as to the original inhabitants of Spain. We 
 may say that they were Iberians and Celts, or a mixture of the two ; 
 but which were Iberians and which were Celts, and whether the 
 Iberians may not have been Celts, or in fact anything at all about 
 the matter, is utterly in the dark. Two points I may mention in 
 which the darkness, although not less dark, is more definite in its 
 outline : first, the existence in the north of Spain of the Basque 
 people and language, unique, I believe, on the face of the earth, and 
 so possibly the relic of an earlier population existing before the Celts 
 and Iberians, whom it may have successfully resisted, as it seems to 
 have done both the Eomans and the barbarians ; and secondly, the 
 fact that the ancient Spaniards, having from the Carthaginians and 
 the Phoenicians learned some of the lessons of civilisation, were more 
 a match for Roman aggression than most of the other Western 
 countries which they attacked. We may, I think, observe with 
 regard to the Roman conquests that the more civilised the conquered 
 race was, the more complete was the extinction of all former poli- 
 tical life when the conquest took place : perhaps the civilised ele- 
 ments tended to amalgamation, perhaps they prompted to a stouter 
 resistance and a more perfect extermination. In Spain it was the 
 latter, so far as history has preserved any memorials. The Spaniards 
 were more able to resist Rome, had better weapons and stronger 
 fortifications, had stouter hearts, underwent greater hardships, and 
 were more utterly and entirely Romanised. The conquest of Spain 
 can only be compared, so far as the hardships of the Spaniards go, 
 with the conquest of Judaea, and in some respects it is parallel ; but 
 the Jews resisted the amalgamating power of Rome when they 
 were conquered ; the Spanish nature, stout as it was, succumbed, 
 having not the point and basis of unity and separation which 
 the Jews had. Spain became Roman, exclusively and distinctly 
 Roman ; all vestiges of earlier times, except in the remotest regions, 
 were lost in one equable acquiescence in the Roman system ; 
 nowhere was the resistance longer or stouter, nowhere was the 
 subjection, nay the identification, more complete. Nowhere were 
 the Romans more at home, or the colonies of Romans more frequent 
 and prolific. In Spain we look for the largest infusion of Roman 
 blood, the closest adherence to Roman traditions, the most entire 
 solidarity with Roman Christianity, the purest dialect of the Roman 
 language. The three best emperors of Rome were Spaniards : Trajan, 
 Adrian, and Marcus Aurelius. Lucan and Seneca were Spaniards. 
 
 From the conquest of Spain to the reign of Honorius there is 
 little in Spanish history of any interest as touching secular matters. 
 It was thoroughly imperial, thoroughly Roman : perhaps as purely
 
 ELEMENTS OF NATIONALITY AMONG EUKOPEAN NATIONS 223 
 
 Roman, or with as few ingredients other than Roman, as Italy 
 itself at that period was. And when the break-up of the empire came 
 Spain was the first to suffer and suffered the worst. In the year 
 260 a.d. it had had an experience of twelve years of ravages by the 
 Franks and Suevi ; but it had recovered from that before the great 
 flood of the barbarians came. At the end of the fourth century it fell 
 a prey to the Suevi, the Alans, and the Vandals : at the beginning 
 of the fifth it was surrendered by Honorius to the Visigoths. The 
 three smaller nations who first occupied it carried on a war of 
 extermination against the Latin inhabitants : they were nations who, 
 like the Saxons in England, were in search of a settlement, they 
 migrated in mass, and depopulated the countries in which they 
 intended to plant themselves. They proceeded to divide Spain 
 among them : the Alans took the west, which is now Portugal ; 
 the Suevi, Galicia and the north ; the south fell to the Vandals, 
 from whom it is called Andalusia. There can be little doubt that 
 Spain would have been entirely repeopled by these nations, which 
 were, it would seem, of kindred origin with the German barbarians, 
 had it not been for the arrival of the Goths as representatives of 
 Rome. These mighty barbarians saved the remnant of Spaniards, 
 and retaliated on the Suevi, the Alans, and the Vandals the cruelties 
 they had inflicted on the natives. The Alans were extinguished, the 
 Vandals were driven into Africa, there to work more terrible 
 destruction still ; and the Suevi settled down alongside of the Goths, 
 under the nominal patronage of Rome. But the Goths did not yet 
 emigrate, and the population, relieved from the Vandals and Alans, 
 had time to look up. The Spanish Romans of this period do not 
 make a great figure in history, but they did increase and multiply, 
 and when at the end of the century the Visigothic monarchy migrated 
 from Southern France into Spain altogether, it did not furnish a 
 population large enough to displace or to exterminate the existing 
 one. The Visigoths amalgamated with the Spaniards as the Romans 
 had done, lost their language and their peculiar form of Christianity, 
 and although they retained their ancient common law customs, as we 
 shall see, and even after the invasion of the Moors reconstituted 
 Spanish liberty on a basis which was Teutonic and not Roman, still 
 we cannot view them, historically, as giving the leading element in 
 the present population. 
 
 The great peculiarity of Spanish history as compared with that 
 of the rest of Europe is, of course, the Moorish invasion, with its 
 attending circumstances and consequences. At present I am only 
 concerned with it as touching a narrow point ; but it is worth while 
 observing and anticipating what I shall have to remark later — that 
 great stress must be laid on the period at which it occurred. The
 
 224 ELEMENTS OF NATIONALITY AMONG EUROPEAN NATIONS 
 
 Visigoths had only removed into Spain at the end of the fifth 
 century, and the constructive effects of their policy, such as it was, 
 could only then begin to be felt, and a thorough mixture with the 
 people have commenced. The further fact that the Visigoths were 
 Arians, while the natives were Catholics, until the year 587 a.d., 
 when the whole peninsula became Catholic, must have retarded that 
 intermixture for a century still ; nor was the reputation of the 
 Eoman in the eyes of the Goth such that the two nations would mix 
 on an equality. Before the distinction was forgotten, in a hundred 
 and twenty years after the acceptance of the popular form of 
 Christianity by the ruling nation, the Moorish conquest came. The 
 Goths, enervated and demoralised, fell under it ; but they had not 
 forgotten that they were Goths ; they could not combine with these 
 conquerors as they might have done with the conquered, as the latter 
 rose and their own national spirit declined. So the Gothic popula- 
 tion was driven northwards, while the native continued under 
 Moorish rule, and the task of recovering Spain for freedom and 
 Christianity was left to the Goths as Goths, and before they had 
 sunk the character of the Visigoth in that of the Spaniard. 
 
 Of the loss of language and of other points of interest I shall 
 speak later, nor need we follow the history of Spain further at 
 present than to remark one little point. I mentioned Christian 
 names as illustrating the relations between Frank and Gaul. We 
 may notice the same in Spain ; although the language is Eoman, 
 the Christian names of the historical heroes of Spain are German ; 
 Alfonso is Hadefonsus, and its equivalent Hildefonsus, both pure 
 German names ; so is Ferdinand, so are Bermudo and Weremund, 
 so is Roderick. Of course there are others, such as Garcias, 
 Ramiro, and suchlike, the origin of which is obscure, and may be 
 native ; but I am inclined to look on Christian names as one of the 
 most indelible marks of a nation's ancestry. I regard, then, the 
 Moorish invasion as having stopped the process of absorption of 
 the Visigoths into the Romano-Spanish people, as having thrown 
 on the Gothic nobles the responsibility of recovering freedom, and 
 as having led to the perpetuation of Gothic or Teutonic common 
 law in Spain. I think it may also have driven in the Gothic race 
 upon itself, and kept it purer than it would otherwise have been. 
 Kept in the north, where also the Suevic race was more numerous, 
 its Teutonic character strengthened until the whole population 
 amalgamated, the distinction between Goth and Roman was for- 
 gotten, and a new era of national life began in the thirteenth and 
 following centuries of which neither Gothicism nor Romanism can 
 be distinctly and exclusively predicated. 
 
 Glancing back now at the ground we have gone through in these
 
 ELEMENTS OF NATIONALITY AMONG EUEOPEAN NATIONS 225 
 
 two lectures, I hope you will not think that we have wasted time, 
 although I have done little else than recapitulate and marshal 
 bits of information which I doubt not you had already. We thus 
 get clearly several stages of variation in our great mediaeval nations 
 as regards nationality. First, the German, pure and unadulterated 
 Teutonic, with no infusion of conquering blood, moving about but 
 not migrating beyond its own circle, unmixed with foreign immi- 
 grating races ; its varieties of development therefore to be traced to 
 the variety of historical experience — law, dynasty, religion, war, 
 and alliances. Secondly, the English, almost as pure and un- 
 adulteratedly Teutonic as the German itself, but unlike the German 
 a transplanted and colonising, an immigrating race ; settling within 
 its new circle for a permanency, mixed in a small degree with 
 British elements, but modified in a far greater one by various succes- 
 sive infusions of Teutonic blood, as of Teutonic institutions — 
 Dane, Norwegian, and Norman — developing itself since its last 
 infusion, with no intrusion of foreign elements, and gradually 
 eliminating all that could not amalgamate, amalgamating all that it 
 was not necessary to eliminate ; Dane, Norwegian, and Norman 
 either losing their differences in the common race, or strengthening 
 the weaker elements with an infusion of hardiness, or after a 
 generation or two returning to the common type. In France you 
 have a different state of things : a Koman population or a Celto- 
 Roman population, with a Teutonic superstratum nowhere thoroughly 
 united with the native race, but so modified by its relations to that 
 native race as to lose all vestiges almost of its original Teutonism. 
 In Spain the process is reversed : a Teutonic superstratum on a 
 Roman substratum, but so modified by its relations to that race as 
 to bring into relief its original Teutonism ; to create out of the 
 mass when it does amalgamate a new nation which distinctly could 
 never have been what in its glorious period of history it was without 
 the Teutonic element in it. As we proceed we shall see more 
 distinctly how the German and English, the French and Spanish 
 histories, diverge, and how the various influences expand or are 
 restricted by other influences. So far as we have gone, however, 
 do not think that I am speaking in parables. Nationality merely as 
 nationality is a small motive power in history, but nationality con- 
 sidered as exemplified or expressed in customs, language, affinities, 
 even in names, expresses a number of mighty influences, equivalent 
 to all that move as mainsprings the internal life of nations, and affect 
 in a great degree their external history also, their relations to other 
 nations, their development in arts and literature as well as politics, 
 their propension to or repulsion from ideas of political things and 
 all that forms the historical interest of their national life. 
 
 Q
 
 XI 
 
 THE LANGUAGES OF THE PKINCIPAL 
 EUKOPEAN STATES 
 
 Any examination of the origin of the languages of the European 
 states in a course of lectures like the present must be short and to 
 a certain extent superficial ; we can but look at them as they in 
 their formation illustrate or are illustrated by history ; it is quite 
 beyond our province, and quite unnecessary to our present subject, 
 that we should look at them from the point of philology. But some 
 knowledge of their origin and growth is an almost essential requisite 
 to complete our view of the nationalities, and there are some few 
 questions touching the subject of nationalities which this will be 
 found remarkably to illustrate. I will begin by a very short review 
 of the history of the four languages of the four nationalities, and 
 proceed then to the solution of the questions of their relations to 
 one another and their illustration of the conclusions that we have 
 arrived at on the nationalities in the two preceding lectures. And 
 1 will take them in the same order. The German language, the 
 High German as it is perhaps more correct to call it, although by 
 philologists it is divided and subdivided into periods and dialects, is, 
 taken as a whole, one language from beginning to end, the lineal 
 descendant of the Gothic or of some sister Indo- Germanic or Aryan 
 dialect of which the Gothic is the nearest and most ancient repre- 
 sentative. The Piatt- Deutsch, or Low German, spoken in one dialect 
 in Holland and in another prevailing at one time over the northern 
 borders of Germany, is an offshoot from the same stock, differing in 
 pronunciation and vocabulary somewhat, but not to be regarded as 
 a different language unless you are prepared to give the title of 
 language to every dialect. Very remote, even on the very borders 
 of modern history, as must the period have been at which the Low 
 German and High German separated, it is probable that the diver- 
 gences have increased more rapidly since High German began to 
 rank as a classic language, and to be the language of literature. 
 This, however, is beyond us.
 
 THE LANGUAGES OF THE PRINCIPAL EUROPEAN STATES 227 
 
 The German language is the language of the German people ; it 
 is historically one notwithstanding much alteration in grammatical 
 forms and much innovation of vocabulary ; there is no case in 
 which a German nation continuing on German soil has changed it 
 or modified it by the adoption of any other language, and although 
 it has freely absorbed into its vocabulary foreign words, especially 
 Latin, it has not suffered the Latin to affect its structure either in 
 the forms or in the arrangement of its words. The modifications 
 of German have been no doubt affected by the literary line that was 
 taken by the writers of it from time to time ; and there is perhaps 
 hardly any language which has been more constantly in flux, or 
 later in acquiring a classical standard ; much of its literature is or 
 has been imitative, and many of its developments dialectic, but all 
 this only serves to bring out more the essential unity and purity of 
 it ; we may say of it as of the German people, that though divided 
 and divisible, and seldom attaining a demonstrable uniformity, it 
 has an essential unity and singular purity from all foreign in- 
 gredients. And the language is the only point, in addition to the 
 purity of the race, of which in German history this can be said : the 
 fatal union with Italy and the influences of the empire have 
 adulterated German life and institutions in every other particular ; 
 nor is the literature itself otherwise than a marked contrast in this 
 respect to the language in which it is clothed. 
 
 Turn next to the English. The English language as we have it 
 now is a language of Germanic basis and structure, but with a 
 vocabulary very largely intermingled with words of Eoman origin, 
 and some few very ancient forms of Cymric or Briton extraction. 
 The question for us is how far can the introduction of these Eoman 
 words be associated with the historical or political changes that 
 have befallen England ; and it may be a minor question how far the 
 Celtic words in our vocabulary are of primeval or modern introduc- 
 tion. As to this question I do not propose to say anything ; it is 
 evident that the Anglo-Saxons coming into a new country must 
 have adopted in many cases the native names for places, and even 
 for articles of use and furniture which were not familiar to them at 
 home and for which they had no specially proper expression ; it is 
 also evident that terms of domestic life and furniture would be most 
 easily introduced by the persons who were enslaved, and who might 
 have the fostering of their masters' children, as agricultural ones 
 would be by the men who were made to till their masters' fields. 
 But the proportion even of these words to the original Teutonic 
 ones is very small : far too small for us to suppose that this enslaving 
 of the Britons could have been very extensively carried out ; far too 
 small and in too humble regions of language to allow us to suppose 
 
 Q2
 
 228 THE LANGUAGES OF THE PRINCIPAL EUROPEAN STATES 
 
 that the two races could have allied themselves on anything like 
 equality. In spite of the arguments of the Welsh advocates, I must, 
 from a study of the language from its earliest to its latest forms, 
 conclude that it is as I have described it, German in structure and 
 German in the base of its vocabulary, although that vocabulary has 
 been and is still being modified by the introduction of Roman words. 
 The Anglo-Saxon remains, the remains that is of the earliest dialect 
 of Teutonic England, are distinctly the precursors and lineal ancestry 
 of the existing language. The first of these are more ancient than 
 any Teutonic remains, save the Gothic Bible of Ulfilas, or perhaps the 
 Malberg glosses : the fragments of Anglo-Saxon preserved in Boni- 
 face, Aldhelm, and in the life of Bede, are the most ancient written 
 Teutonic, and from them we have in poems, or translations, or 
 original works, or charters, a distinct and continuous current of 
 English down to the present day, modified, as I have said, by an 
 infusion of new vocabulary. Even, however, had the vocabulary 
 been much more largely affected than it has been, so long as the 
 structure of the language, its inflexions, its grammar, and the 
 furniture of it, such as its prepositions and auxiliary verbs, remain 
 what they are, it would seem impossible for anyone who is not 
 very ignorant or very prejudiced to assert for it any other origin 
 or the existence of any other strong influence in its origination. It 
 is, however, very possible that a modification of vocabulary may be 
 carried to such an extent as in time to put out of sight the funda- 
 mental structure of a language, and reduce it to a matter of theory. 
 Happily this is not yet the case with English. In a language of 
 whose literature we have such an abundant and continuous supply, 
 we ought to be able to say whether the infusion of new vocabulary 
 coincides in time with the political changes by which the external 
 history of the people has been affected, and which may be regarded 
 as possibly affecting the purity of the race and nationality. 
 
 Let us just look at this. We have as a nation passed through 
 several phases of this kind : Anglo-Saxons to begin with, we have 
 been crushed by Danes, Norwegians, and Normans ; we have been 
 converted by Romans, Scots, Burgundians, and Franks ; we have 
 been governed by successive dynasties of Frenchmen, Englishmen, 
 Welshmen, Scots, and Germans. Are the infusions of new words 
 synchronistic with any of those changes ? Having abundant remains 
 of literature to refer to, we ought to have no difficulty in replying. 
 This question, although it sounds rather big as I have stated it, 
 when analysed depends for its answer on a very small issue ; for 
 all the successive conquests, except the Norman, were by nations 
 purely Teutonic, and so served, if they modified the language appre- 
 ciably, only to introduce a few words which were as unmistakably
 
 THE LANGUAGES OF THE PRINCIPAL EUROPEAN STATES 229 
 
 German as those with which they mingled. The Norman Conquest 
 was carried out by leaders of Teutonic origin, whose posterity 
 quickly consolidated themselves with the English, but it also con- 
 tained a large infusion of French adventurers, who mixed with the 
 English but did not speak the same language, and it further was 
 the beginning of a series of connections with France which imported 
 a large number of French ideas, customs, and legal doctrines. The 
 question then narrows itself to this, did the Norman Conquest bring 
 in such a flood of new words as to alter the character of the language 
 from German purity to modern semi-Latinity or anything like it ? 
 for if it did it may also have largely affected the blood of the race. 
 Now I believe I am perfectly justified in saying that the Norman 
 Conquest did not so affect the English language. It introduced a 
 race of conquerors who spoke the French language full of Roman 
 words and forms, and it led the way to a series of developments 
 one of the remotest of which was the development in a Latin direc- 
 tion of one side of the modern English language. But the foreign 
 language it introduced did not mingle with the English ; they con- 
 tinued side by side ; the English a century after the Conquest was 
 as purely Teutonic as it was before the Conquest, and the English 
 language was the language of courts of law and of charters during 
 that century ; at least, charters were written in Latin and English 
 co-ordinately down to the accession of Henry II. French was the 
 language of the court, Latin the language of the church, English 
 the language of the people. The courts of law and the sermons of 
 the clergy were, of course, adapted to the understanding of the 
 majority. No doubt the Norman Conquest did in a remote degree 
 conduce to the adopting of Norman French as the legal language in 
 the reign of Edward I., and matters had been looking in that direc- 
 tion since the reign of John, when our first English- French docu- 
 ment now existing was written. Only mark, the infusion of French 
 blood must, if it ever occurred, have immediately followed the Con- 
 quest ; the infusion of French into the language does not follow until 
 nearly two hundred years. It is then to the adoption of French as 
 the government language and as that of the courts of law, which 
 began under Edward I. and continued until the time of Edward III. 
 unbroken, and much later in different departments of the state, and 
 to the use of Latin as the language of ecclesiastical ritual and 
 general literature, that we are to ascribe the Roman element in our 
 ordinary vocabulary. 
 
 Between the beginning and the end of the fourteenth century is the 
 century of the influence of lawyers and the growth of universities, the 
 century of continuous French war fought by English yeomen, each of 
 whom, if he ever returned home, returned with a tongue accustomed
 
 230 THE LANGUAGES OF THE PKINCIPAL EUROPEAN STATES 
 
 to French forms and a quantity of new fashions of which the only 
 names he knew were French. Thus we find in that century the 
 causes of the modification of the language which is traceable in 
 Wiclif and Chaucer, and which in a constantly increasing ratio has 
 gone on until the present clay, when we are privileged to see a strong 
 reaction in favour of what is called pure Saxon English. The 
 change is not connected with any modification of race or nationality, 
 except in so far as it is a remote consequence of tbe Conquest, 
 a consequence which might have resulted equally probably if there 
 had never been a conquest, from other causes. The foreign 
 element of race was sunk in the native stock nearly a century 
 before the foreign element of language enters into spoken English. 
 Until then the two languages were spoken by different classes, 
 but French was constantly being restricted to the court language. 
 English was making its way upward, and strengthening downward, 
 until our great English king by his use of the foreign tongue placed 
 himself in the position of the father of modern English, as he is of 
 modern constitutional history. It is a curious thing that tbat 
 English document of which so much has been, mistakenly I think, 
 made, the proclamation of Simon de Montfort, should have been 
 made by a foreigner, as Simon was ; but it is still more curious that 
 Edward I., a truly English sovereign, should have introduced 
 French into the laws and the courts. I can only account for it by the 
 great influence that the lawyers had with him, and suppose that as 
 the legal views of Breton, Bracton, and Fleta were decidedly con- 
 tinental, their language was affected by that profession also. 
 
 I shall not dwell on tbe subject of ecclesiastical language ; the 
 infusion of Latin words through it was of course as old as Anglo- 
 Saxon Christianity itself. The English was a learned church : 
 the English people throughout the middle ages was fertile in learned 
 men ; every little district had its monastery, the accounts of which 
 were kept in Latin ; the monks were drawn from the body of the 
 people and associated with it. Hence the people were accustomed 
 to hear and learn new religious and learned words. In Germany 
 this was less the case ; learning was less active ; the monasteries 
 were more widely scattered ; the monks and canons were drawn less 
 from the body of the people ; above all, the literature was of later 
 growth, and it is through literature, whether religious, legal, or 
 ordinary, that new words are introduced. The vocabulary of German 
 was longer in becoming infected with Latin because it was longer in 
 rising to the dignity of a literary language : as it was slow to rise, 
 it was thrown more on its own fertility for the words to express 
 new things ; it is by itself, whether from the freedom of its develop- 
 ing or not, I cannot say, a more fertile language in new forms than
 
 THE LANGUAGES OF THE PEINCIPAL EUEOPEAN STATES 231 
 
 the English, which has ever been prone rather to accept foreign 
 names for new things than to coin them from its own mint. 
 
 As for the subsequent history of English, I need not say more 
 than that in common with the other European languages it made 
 a great step towards fixity under the early printers ; and before their 
 influence was exhausted had taken up in the English version of the 
 Bible, and in the unsurpassable diction of Elizabethan literature, a 
 standard which it has been slow to alter, and to which probably it 
 will look for some ages to come as the jus et norma loqtiendi. All 
 modifications, developments, additions, since that period have been of 
 small account as to the essence of the language itself. With matters 
 of literature pure and simple, we have at present nothing to do. The 
 question of language thus viewed does not affect our conclusions as 
 touching the origin of the English. It would have been highly improb- 
 able that the language of the most adventurous, the most maritime, the 
 most mercantile, the most warlike nation of Europe considering its 
 population and the area of its occupation, should have remained un- 
 adulterated or unenriched, as you may choose to state it, by foreign 
 ingredients. There are abundance of these, most of them of com- 
 paratively modern introduction, words of travel, of sea-craft, of 
 commerce, of diplomacy, of war and military exercises. Most words 
 of home use, however, are Anglo-Saxon still ; and the vast majority 
 of words in any given paragraph of any familiar writer on non- 
 technical subjects will, I think, be found to be English, notwithstand- 
 ing all that has been said to disprove this. But anyhow I think we 
 have seen that it is impossible to connect the ideas of a modification 
 of the language with a modification of the main elements of the 
 nationality. The French of Edward I., which marks the most dis- 
 tinct period of modification, a period at which England was more 
 thoroughly English than she had been for 250 years, was a distinct 
 and remote thing from the French of the Conquest. 1 
 
 But it is time to go on to the French, Spanish, and Italian. 
 These three languages, I need hardly tell you, are the own children 
 of the Latin. It may be a question whether they are not the Latin 
 itself a little knocked about in different ways. They all, I believe, 
 are now regarded as standing in the same relation to the Latin ; 
 that is, they are not derived from one another, but irrespective of 
 one another from the parent Latin ; and I may add that they are 
 all derived immediately from the Latin without any intermediate 
 stage such as once was held to have intervened, on a theory by which 
 the whole Latin world was supposed to go through a stage in which 
 a uniform corrupt Komance language was spoken from which the 
 
 1 Select Charters, p. 449.
 
 232 THE LANGUAGES OF THE PRINCIPAL EUROPEAN STATES 
 
 Italian, Spanish, and French were formed as the grandchildren, not 
 the own children, of the Latin. Anyone who wishes to investigate 
 this matter on philological grounds may do so in Sir George Corne- 
 wall Lewis's ' Essay on the Origin of the Romance Language,' and 
 he will there find also what little historical evidence is forthcoming 
 on the same point. The acceptance of this view simplifies matters 
 a good deal. We have only to regard the Latin as having become 
 the ordinary vernacular language of Spain and France, and to deter- 
 mine as well as we can the cause of the disruption of uniformity, 
 and the date and modifying influence that resulted in the formation 
 of the new languages. The Latin from which these languages were 
 derived was not, in vocabulary at least, what we are accustomed 
 to regard as classical Latin : it was the vulgar Latin spoken over 
 the empire as well as in Italy itself, during the whole time of which 
 we have any data ; no doubt it was the Latin of the lower classes 
 as opposed to the literary Latin of educated society : the Latin of the 
 camp and farm and suburb, just as in the modern language of 
 America all that is regarded as distinctly American is vulgar and 
 provincial English, the English spoken by or descended from that 
 spoken by the Essex and Suffolk tradesmen and farmers who were 
 the first settlers. As to this vulgar Latin and the process by which 
 French was derived from it, you cannot do better than read 
 Brachet's 'Historical Grammar,' a most entertaining little book, 
 which has been translated by Mr. Kitchin, and which will furnish 
 you with abundance of philological and historical thoughts that 
 cannot fail to interest and be useful in your general reading. You 
 will of course distinguish between the existence of a vulgar form of 
 Latin existing universally wherever the Roman language prevailed, 
 side by side with the literary Latin ; and the existence of a Romance 
 language succeeding to the Latin throughout the area of its extension, 
 the idea disproved, it would seem, by Sir George Lewis. We may 
 conceive, then, this vulgar Latin extending over the whole West as the 
 vernacular of the countries under Roman sway. It had completely 
 supplanted the original language of Spain and France, except 
 where the Basque retained its hold, as it has done to the present day : 
 it had as certainly not extinguished the British language in Britain, 
 seeing that it subsists still in Wales, and probably covered at the 
 very least a much larger breadth of the western side of the island. 
 For several hundreds of years, from the time of the first conquest to 
 the time of Honorius, it had been rooted in these provinces : the 
 language that was spoken before these conquests was forgotten : here 
 and there a few words remained to puzzle archaeologists, some of 
 which owed their preservation as Gallic words to the fact that they 
 were not originally Gallic but German : such words as ambactus, for
 
 THE LANGUAGES OF THE PEINCIPAL EUROPEAN STATES 233 
 
 instance, which had been embedded in the Gallic language from the 
 German and remained a Gallic word when the rest of the language was 
 lost. The intercourse with Rome was continuous during these ages, 
 and literature had its language in Spain and Gaul as well as in Italy. 
 Probably the Latin of the empire went through as little organic 
 change during these six centuries as any written language has ever 
 gone through : idioms changed doubtless, but not grammatical 
 forms. The event that put an end to this uniformity was of course 
 the break-up of the empire under barbarian invasion. I do not 
 mean the Goths merely, but the barbarian period generally from the 
 fifth to the eighth century. That broke up the unity of the Latin 
 language as it broke up the unity of the Latin empire : from that 
 time Spanish, Italian, and French begin and go on diverging. The 
 nature of the change was also disruptive ; it broke up the synthetical 
 character of language, that is the character which gives variations of 
 case, tense, mood &c. by inflexion, and substituted for it an analytical 
 character, which gives the same by the use of prepositions, adverbs, 
 articles, and auxiliary verbs. It is true that in the more modern 
 forms of these languages these auxiliary words have in many cases 
 grown to the roots, and so made a second or new synthetic process. 
 But the immediate effect of the Teutonic shock was disruptive. 
 Instead of saying scripsi, for instance, they began to say ego habeo 
 scriptwn, j'ai ecrit : instead of scribam, ego scribere habeo, j'ecrirai, 
 I have to write, for example. This process affects all the languages, 
 and so far forth their history is one. This analytic character belongs 
 to German in all its forms, and to this extent it affected the Latin to 
 assimilation with itself ; it furnished also a small number of new 
 words to the vocabulary of the reformed languages. Anyone who 
 knows French will by analysing a single paragraph be able to say 
 how small the proportion of Teutonic words is in French ; and 
 I believe it is smaller still in Spanish, and still less in Italian. 
 
 Thus far, then, the history of the languages is one : here it 
 divides. We may not forget that besides these three there were 
 other Romance languages with quite as good right to be called 
 daughters of the Latin, formed by the same process, some of which 
 exist, such as the Provencal and the Latin of the Grisons ; others 
 too which are probably extinct. Italy itself has a number of such, 
 dialects they are called, as we speak of Greek dialects, meaning 
 co-ordinate languages, equally legitimate, although it has fallen to 
 one of the lot — in the Italian to the Tuscan, as in Greek to the 
 Attic — to be regarded as the language of culture. Well, the 
 differences to be observed in the three main languages seem to have 
 originated in three influences : 1. The period at which they cease to 
 be Latin, and become what we call Spanish, French, and Italian ;
 
 234 THE LANGUAGES OF THE PEINCIPAL EUROPEAN STATES 
 
 2. The nationality of the race by whose impact, if I may so say, 
 the change was produced ; and 3. The character and circum- 
 stances of the people in whose mouths the language was so changed. 
 1. The Gothic invasion may have produced the original shock ; but 
 the subsequent developments were worked out under the races that 
 followed the Goths : in France, under the Franks ; in Spain, later, 
 under the Visigoths ; in Italy, latest, under the colluvies bar- 
 barorum. This — and I think I have said something like it before — 
 was probably owing to the fact that the Goths were becoming 
 rapidly Romanised in language and manners before they conquered 
 the West. They seem to have taken to Latin both in Spain and 
 Gaul as their ordinary language ; and it is to the Frank conquest 
 and the Frank empire that we trace the change in French. Hence 
 it is the eldest of the three languages, and has also the most 
 Teutonic words. The Spanish, which is Latin only modified by 
 one Teutonic, the Visigothic, stock, is later in origin and has fewer 
 Gothic words. The Italian is the youngest. The French appears 
 in formation in the middle of the ninth century ; the earliest bit of 
 French being, I think, the oath taken by Lewis the German at 
 Strasburg in 842. 2. The earliest Spanish, such as would be 
 called Spanish proper, is of the twelfth century ; and the earliest 
 Italian is little if any later. There is much difficulty, however, in 
 arriving at anything like certainty about these matters, simply 
 because of the dearth of linguistic monuments. Charters are always 
 in Latin, and charters are all that are preserved until something 
 worthy of preservation as literature is produced. A language may 
 have been spoken for centuries before it is written. But if we make 
 the same allowances in all the three cases, we shall find the 
 same results ; literary French is a century and a half earlier than 
 literary Spanish or Italian ; the language itself is probably of 
 as much earlier growth, and this earlier growth is owing to the 
 fact that the Franks were less Latinised than the Visigoths or 
 Lombards. Something is due, secondly, to the character of the race 
 producing the change ; no question that the peculiar character in 
 which the mixture of Frank and Gaul has resulted has had to do 
 with the elliptic and elisive character of French, both in struc- 
 ture and pronunciation. Most probably the difference between 
 Suevian and Visigoth has affected the relations of Galician to Cas- 
 tilian Spanish, and so that of Portuguese to Spanish proper. The 
 process in Italian seems rather to have been one of natural decay 
 and development, the foreign element, as distinct from the intrusive 
 force, being less distinctly apparent. 3. The elements of difference 
 which may have been produced by the original constitution of the 
 original race, or which may have been modified by the various
 
 THE LANGUAGES OF THE PKINCTPAL EUEOPEAN STATES 235 
 
 natural causes which we imagine do modify language in mountainous 
 and plain countries, in maritime and inland ones, difference of air, 
 of food, of water, of training and physical conformation, obscure as 
 these are physically, are obscurer still historically, and making due 
 allowance for them, you will not expect me to theorise upon them : 
 the sonorous and dignified Spanish, the rapid, elliptic, incisive 
 character of French, and the liquid, distinct, and musical Italian, 
 are different in intonation and general effect, with a difference that 
 causes purely historical, as opposed to physical, cannot account for. 
 When more is known of the physical causes, we shall find an historical 
 theory to account for it. 
 
 Of course you will understand that with these causes the great 
 first cause of divergency and disruption was the break-up of inter- 
 course and unity which had been maintained while the Roman 
 empire lasted. As that intercourse ceased, the languages diverged 
 and began to grow each according to its own genius. I think that 
 we have now materials enough to enable us to answer the questions 
 that arise from the fact that Europe is with so much common 
 experience still divided into Latin-speaking and German-speaking 
 nations ; to account for the facts at first sight so puzzling that in 
 England the Teutonic tongue has beaten out of the field that of the 
 British aborigines, of Eoman civilisation, and of French conquest 
 and migration ; that in Spain the Latin has maintained its hold after 
 a German and a Moorish conquest ; that in France it has also 
 maintained its hold, first upon a people whose native tongue it dis- 
 placed and extinguished, and secondly on the conquering race, whose 
 speech served to modify, but only to modify, hardly at all to alter 
 materially, the speech of the conquered. That race and language 
 do not vary together we must consider proved. The Celtic tongue, 
 that has in Wales withstood Eoman and German alike, in France 
 and Spain has become extinct before the two. There can be little 
 doubt of the Celtic origin of the bulk of the modern French, yet 
 their language is Latin ; or that what in them is not Gallic is 
 Teutonic ; yet the language of high and low is one. So great the 
 power of the old Roman name and administration ; as Greece 
 conquered her conquerors, so Rome in language at least assimilated 
 both conquerors and conquered. Yet what the Roman has done, 
 the Teutonic in the Anglo-Saxon form has done also in England. 
 If we listen to the hypothesis of the Welsh scholars, it has assimilated 
 the natives ; it has certainly assimilated the Norman race imported 
 at the Conquest. But, as I have said before, this I do not uphold. 
 I do not believe that the Britons were assimilated, but driven out 
 or exterminated ; * and as for the Norman conquerors, I believe 
 1 This view has been contested by'Seebohm and many other historians. — A. H.
 
 236 THE LANGUAGES OF THE PRINCIPAL EUROPEAN STATES 
 
 them to be greatly overrated in numbers and in extent of influence. 
 I believe the Anglo-Saxon tongue had room to develop freely, and 
 was never greatly disturbed by a foreign infusion in the way of 
 admixture of race or forcible intrusion of new elements. 
 
 But the negative conclusion remains : we have seen that 
 language and national origin do not vary together always, and we 
 shall see as we proceed that neither do language and religion, nor 
 race and religion, neither language and law, nor race and law, and 
 in the same way politics and civil institutions. But here I am 
 anticipating. The whole subject is full of anomalies that would 
 puzzle anybody but a philosopher ; a philosopher will, of course, 
 shut his eyes and so see nothing to puzzle him. It seems to me 
 very curious that the Latin language with its hold on the church 
 service, the law and literature, a hold so strong that it was able to 
 permeate even the English vocabulary and very sensibly to affect 
 the German itself, was not able to maintain its hold against dis- 
 solution and modification upon its own soil — in Italy, for instance, 
 and in Spain. There it had every advantage ; it converted its 
 conquerors, it preached to them, it administered their laws, and 
 expounded their histories ; they forgot their mother tongue to use 
 it, they went on using it, writing it, praying in it, and so on, and yet 
 for ordinary purposes of life it varied and varied until it became 
 new and mutually unintelligible languages, in different lands in 
 which very much the same developments might have been looked 
 for, and at very nearly the same period, as if it took just so many 
 centuries to change from Latin into Spanish, and from Latin to 
 Italian, and from Latin to Portuguese. After this same period 
 of organic change it becomes literary ; it becomes vocal in all 
 three countries, first in verse and then in prose. If there is a 
 law in these things, it is in its working at least as curious as a 
 chance. Well, the same thirteenth century saw the consolidation, as 
 the fourteenth saw the complete regeneration, of the European 
 languages : the English in its growth from the earliest ballads to 
 the polished poetry of Chaucer; the French through its poetical 
 stage, past the period of its historical prose — the ' Chronique 
 d'Outremer,' Villehardouin, and Joinville — to what is almost modern 
 French ; the Spanish, like the English, from the ballads and poetical 
 chronicles, under the creative genius of Alfonso the Wise, to the 
 sonorous and majestic dignity of pure Castilian. As we proceed we 
 shall see the significance of these names and analogies. We have, 
 however, still another matter to discuss, and that in some detail : a 
 matter that pervades every relation of mediaeval life and runs into 
 every political complication of constitutional history proper — the 
 origin and variety of the relations of the church to the peoples.
 
 XII 
 
 THE OKIGIN AND POSITION 
 
 OF THE GEKMAN, KOMAN, FKANK, CELTIC, 
 
 AND ENGLISH CHUKCHES 
 
 We have all been educated on a system and under the influence of a 
 civilisation which owes a great deal to Greece and Rome. In arts 
 and literature our taste is formed in a great measure upon the prin- 
 ciples and the models of the ancient world. It is so much so that 
 in architecture alone perhaps of the arts will our artistic authorities 
 admit any excellence to exist which is not calculated on the rules 
 and lines of classical antiquity or developed from them. It is there- 
 fore difficult for us quite to realise the fact that historically the 
 great civilising influence of our forefathers and of European fife in 
 one-half of its area was not that of Greece and Rome, but of 
 Christianity. Northern Europe owes its civilisation to the church, 
 and Southern Europe owes everything that is vital, sound, and good 
 to the influence of the North one way or another exerted upon it. 
 This is not the time for us to attempt any estimate of the old Roman 
 civilisation. I stated my own opinion upon it strongly enough in the 
 first lecture ; it was a civilisation of a class at the expense of all 
 other classes — a civilisation that had except for selfish purposes no 
 power whatever or inclination to extend itself ; it was not incompati- 
 ble with the most debased life, the most tyrannical policy, the most 
 monstrous vices, the most oppressive slavery and servility. It had 
 no root of good in it, it had no religious element, its best ingredient 
 was a philosophy which had no mainspring of benevolent action, no 
 love of mankind, no principle of fife in itself. This civilisation was 
 in itself too far gone for Christianity to save it. Christianity 
 supplied new motives of action, a new spirit of freedom and hatred 
 of oppression, a thought of higher than sensual enjoyment, and an 
 ideal of empire better than that of universal subserviency to the will 
 of one pampered voluptuary or a hundred such. But the civilisation 
 of the empire was decrepit, the system was rotten before Christianity 
 forced its way even to toleration, much more when it had become
 
 238 THE ORIGIN AND POSITION OF THE GERMAN, ROMAN, 
 
 supreme. Nor could Christianity nerve the hands and hearts of a 
 people which for generations had been sodden with vice and infamy. 
 The church moreover was not unaffected by the state of decay, the 
 atmosphere of rank and rotten civilisation in which it fought its way 
 to the air ; and what with heresy and contention for civil power on 
 the one hand, and the influence of asceticism drawing better and 
 purer souls out of the filth of the arena on the other, the church 
 hardly seems to have exerted any quickening influence on the mass. 
 It was the reductio ad absurdum of the idea of progress, to end in a 
 mass of unsoundness which even the living influence of the Gospel 
 ijtself failed to vivify. Then came the avalanche of the barbarians, 
 and the sons of the conquerors of the world were nowhere. The 
 church itself, so far as it had rested on the temporal power of its 
 proselytes, fell with them, and the work of evangelising and civilis- 
 ing the world had to be begun anew — to begin from a new principle, 
 and to make a conquest of its conquerors. 
 
 It is not a part of my programme in this course to give a detailed 
 account of the evangelisation of mediaeval Europe, but only to sketch 
 in outline the story and to go in detail into those points which affect 
 constitutional liberty and life, such as the position of the clergy and 
 the relations of church and state. You all must know that it was 
 by the struggles of the church for liberty that during the middle 
 ages the remembrance of liberty was maintained at all. I shall try 
 to show how the church and the clergy came to be in a situation to 
 claim and struggle for it. Incidentally we shall come on several 
 matters that would illustrate a wider view. With this idea I shall 
 depart from the order in which I have taken the nations in the former 
 lectures, and take them in the order of conversion, or nearly so — Gaul, 
 Spain, England, and Germany. Both Gaul and Spain were Chris- 
 tianised while they remained parts of the ancient empire, and their 
 early Christianity has with a character derived directly from Rome 
 a character of its own that implies a relation to Eome rather of 
 co-ordination than derivation. It is certain that Christianity 
 came to Gaul and Spain direct from the East, although there 
 was doubtless a stream from Rome after it became settled 
 and established in Rome. The church of Lyons, for example, 
 under Irenaeus was in close connection with the churches of Asia 
 almost as soon as anything is known of a church of Rome after 
 apostolic times. The church of Spain has always claimed to be 
 apostolic, as the mission field of St. James, and although such a 
 mission was almost an impossibility, and may with that of Dionysius 
 the Areopagite be set down as quite apocryphal, the very tradition 
 proves an origin of unknown antiquity and irrespective of Roman 
 influence. The traditions are themselves the fruit of a spirit, a
 
 FRANK, CELTIC, AND ENGLISH CHURCHES 239 
 
 desire of proving antiquity of origin, which itself springs from an 
 independence of Rome which is the major point in question. With 
 the acceptance of Christianity by Constantine, the church of Eome 
 became the rule and model of Christian churches, and the system of 
 imperial Rome became closely allied with the ecclesiastical organisa- 
 tion. Hence in Spain and Gaul the dioceses of the bishops and the 
 provinces of the metropolitans were exactly conterminous with the 
 fiscal or political divisions of the imperial administration. The 
 bishops in the cities became either the protectors of the people 
 against the wanton tyranny of magistrates, or in many cases the 
 chief magistrates themselves ; the episcopate being a position of so 
 great importance, both spiritually and temporally, fell hereditarily 
 into the hands of great families and sometimes went in direct suc- 
 cession from father to son. Hence the clergy put on a secular 
 character very injurious to their spiritual usefulness, and became 
 imperial functionaries, statesmen, and even warriors. And in Gaul 
 this state of things survived the Frank conquest. 
 
 You will remember how we remarked the strength of the town 
 or municipal organisations as marks of the vitality of Roman 
 institutions and of the strongholds of the Gallo-Roman society, or 
 race, if it can be called a race. In the maintenance of that idea the 
 early bishops under the Frank sovereigns are conspicuous ; they bore 
 Roman names, they were the chief citizens in the Roman cities, they 
 obtained from the Frank kings privileges and endowments in the 
 cities and in connection with them which gave tbem a secular 
 character that they have never lost. This secular character is, it 
 appears to me, more innate and inherent in the Gallican system 
 than in the Roman itself ; at all events, it is coeval with it 
 historically. In the court of Charles the six lay peers are matched 
 by six bishops — Rheims, Laon, Langres, Noyon, Beauvais, and 
 Chalons. The voice of Romance sounds not out of accord with that 
 of History. With the secular power the clergy, after the Frank 
 conquest, seem to have taken up much of the barbarism of the new 
 regime ; and if it had not been for the rise of the monastic system 
 the civilising power of the church might have been deemed to be 
 exhausted. But, partly by the influence of monasticism, and partly 
 by the working of Christianity from a new centre, which through 
 Britain and Germany affected for the better France also, this result 
 was averted. The chief point to be noticed in the Frank church is 
 its secularity and its close implication in all the evils of both the 
 Roman and the Frank systems. It was in too close connection with 
 a state which it failed either to strengthen or, beyond certain limits, 
 to civilise. The Frank sovereigns on their conversion accepted 
 Christianity in its Catholic form, and immediately they came in the
 
 240 THE OKIGIN AND POSITION OF THE GERMAN, ROMAN, 
 
 closest connection with the prelates. After a generation or two 
 Franks succeeded to the position, secular and ecclesiastic, of the 
 Gallo-Roman prelates ; to them also it was a matter of importance 
 to secure hereditary hold on a spiritual dignity so strong in temporal 
 appliances ; and hence the exceptional strength of the clergy in 
 French politics from time immemorial. Their power and interest 
 were perpetual, in the midst of a world whose sovereigns and dynas- 
 ties were ever changing. The measures of Charles the Great, who 
 would be master of the clergy as well as of the people, were ineffec- 
 tive under the rule of his posterity, and the same characteristic that 
 is traceable from the beginning pervades the history throughout. 
 By the influence of monasticism, and in a measure by the restoration 
 or foundation of a central power in reformed Rome, a religious 
 change for the better was brought about ; but its old form is not 
 eliminated. Secularity is the great mark of the churches which 
 sprang up under imperial Rome. 
 
 With the church of Gaul and France may be compared that of 
 Spain, for their origin was very much the same, and the first four 
 centuries of their history ; after that they diverge widely and signi- 
 ficantly. Of this early period what is true of France is true of Spain ; 
 there was an Eastern origin, and a constant flow of Roman influence ; 
 there were severe persecutions and martyrdoms of singular heroism. 
 There was great care for the maintenance of orthodoxy, greater 
 perhaps in Spain than in Gaul, because of the indigenous character 
 of the Spanish heresies. There were councils of great authority for 
 the same reason. Spanish scholars were of great weight in contro- 
 versy. A Spanish bishop was the chief of the council of Nicea ; 
 nowhere was discipline more elaborated or conciliar deliberations 
 more generally accepted as authoritative. And we cannot doubt 
 that the same causes which led to secularism in Gaul were doing so 
 in Spain, when the shock of the barbarians altered the whole state 
 of affairs and gave to Spanish church history a peculiar character 
 that is quite its own. The barbarians overwhelmed Spain, and the 
 barbarians were Arians ; they were earnest supporters of that heretical 
 sect which the Spaniards at Nicea had been the first to condemn. 
 Now, how did this operate ? Why, thus : it made the Spanish 
 church, the bishops and clergy, so long as the Goths were Arian, 
 the leaders of opposition to the royal power in the Romano-Spanish 
 population ; and it prevented that extreme weighting of the church 
 by royal benefactions and secular privileges which we have seen was 
 too much for the Gallo-Roman church. The clergy could not be 
 sycophants to an heretical prince, nor was the heretical prince likely 
 to augment the powers of those who kept up the popular feeling 
 against his tenets. And this had a great effect in the maintenance
 
 FKANK, CELTIC, AND ENGLISH CHURCHES 241 
 
 of a Christian standard in the Spanish people in morals and doctrine 
 alike. The progress of the victory of the conquered over the con- 
 querors was slow but steady ; first the Suevi, and a few years later 
 the Visigothic sovereigns themselves, became Catholic, and with that 
 event a new tide set in. The clergy, who had been before in oppo- 
 sition, now became the most influential and trusty counsellors ; 
 without losing their hold on the people they became all-powerful 
 with the kings ; their secular power rose at once to the highest 
 pitch ; it became, as the school-books say, a theocracy, a perfect 
 union of church and state ; ecclesiastical councils made laws for 
 Spain ; ecclesiastical ministers governed the country ; the old Gothic 
 aristocracy lost political weight beside them ; they were all-powerful. 
 But with power came also a decline in moral and spiritual position. 
 The kings, Catholic as they had become, had not laid aside their 
 royal lust, or thirst for blood, or love of money and oppression ; nor 
 did they give their confidence or depute their power without a price. 
 The church, by having to tolerate the vices of the princes, laid 
 herself open to the influx of the same. There is no question that the 
 moral condition of Spain during this theocratic period was bad, was 
 becoming rapidly worse and worse, church and state conniving at 
 each other's dereliction of duty, confounding their respective powers, 
 and mutually buying of each other licence to sin ; when another 
 avalanche came down and altered everything, that Moorish invasion 
 of which I have spoken before as the influence which, at the cost of 
 seven centuries of toil and trouble, yet gave Spain an heroic history 
 and a national character that in the present century could scarcely 
 be said to be effete. 
 
 In some respects the secular power of the Spanish clergy is, up to 
 this point, analogous to that of the French. It originates partly in 
 the confidence of the subject population and partly in the patronage 
 of the barbarian conquerors whom it has civilised ; but the history of 
 the struggles through which the position is achieved is different, and 
 the catastrophe of the Moorish invasion has a consolidating influence 
 as well as a salutary and reformative influence on the church as on 
 everything else. Henceforth it becomes a portion of the intense 
 Spanish national feeling : I might almost say of the intense 
 Spanish nature. Henceforth Spain, under the Visigothic nature 
 revived, and informing the mass, becomes intensely national and 
 orthodox : the mass is welded together ; the Christianity is a part of 
 the heritage that has to be struggled for for seven centuries ; the 
 church and the people and the kings ; Romano- Spaniard, Visigothic, 
 and Sueve ; Castilian, Arragonian, Galician, Navarrese, all are, in 
 spite of territorial and dynastic divisions, one people, one church, 
 one language, one outpost and defence of Christendom, one perpetual 
 
 R
 
 242 THE ORIGIN AND POSITION OF THE GERMAN, ROMAN, 
 
 unrelaxing, unflinching, watchful crusade. There is enough here 
 to mark Spain off once for all from the rest of Christendom. As to 
 the points in which her history may be compared with that of 
 England in this respect, I shall speak after I have sketched the con- 
 dition of England in the church aspect, as I shall now proceed to do. 
 In Britain there had been, no doubt, a native or Romano-British 
 church before the collapse of the empire and the invasion of the 
 Angles and Saxons. The thing is provable from the writings of the 
 Fathers, from the proceedings of councils, and from a few — very few 
 but very distinct — evidences of monumental and literary sort. It 
 would be absurd where we know so little to define anything as to 
 the relations of this church with the secular government ; it would 
 be, no doubt, characterised by the same features as the Gallo-Roman 
 church was. Perhaps, as the civil organisation of Britain was less 
 minute and elaborate than that of Gaul, so far at least as we know, 
 it was not in a condition to be tempted with secular advantages, as 
 was the case with the sister church. If the town influence was less 
 developed, so also must have been the municipal power of the clergy. 
 This conclusion seems also deducible from a comparison of the con- 
 dition of the Celtic churches when they first come into daylight ; 
 there is a patriarchal tinge about them, where secular and spiritual 
 power are united, which is utterly unlike anything Roman. But 
 the obscurity of the subject is great, and we have at present nothing 
 to say about it except that, whatever it was, the Anglo-Saxon con- 
 quest must have made a clean sweep of it. It swept away its 
 churches and their districts, its dioceses and provinces, if there were 
 any ; it swept away its bishops, clergy, and people, with their 
 literature, their language, and their ritual. The church of England 
 has to be built from the very foundations after the beginning of the 
 sixth century ; it is not that the seed of the Word has to force itself 
 up through thorns, but that it has to be sown again as in a virgin 
 soil. The mission of Gregory the Great was the beginning, and it 
 was followed up, as soon as its success was ascertained, by a series 
 of missions from other churches. Kent was converted by Romans, 
 Wessex by an Italian mission, East Anglia by a Burgundian one, 
 Northumbria from Kent. Subsequently, after an apparent collapse 
 of the Roman missions, the task was taken up by the Scoto- Celtic 
 church and carried out by it with such success that the work of 
 organisation and consolidation was completed by Archbishop Theodore 
 within considerably less than a century after the mission of Augustine. 
 In this entire independence of imperial Roman influence, and in the 
 variety of the agencies by which the conversion was accomplished, 
 we see the first distinct characteristic of English church history ; a 
 second is to be found in the fact that the evangelisation begins from
 
 FEANK, CELTIC, AND ENGLISH CHURCHES 243 
 
 the kings, is carried on by their action, is adopted by their consti- 
 tutional machinery and diffused effectively by them through the bulk 
 of the people. It is not the religion of the conquered race forcing 
 itself up, as in Spain and France, and conquering the conquerors. 
 A third characteristic is the monastic garb of its ministers, which 
 more than anything else prevents their assumption of that sort of 
 secular power which is fatal to the spiritual work of the clergy in 
 Gaul and Spain. 
 
 And I will add a fourth point ; it was by the machinery of the 
 church thus founded and consolidated that England became one 
 kingdom ; so much, at least, the prophetic genius of Theodore fore- 
 saw, and so it came to pass. The dioceses of the English church 
 were the kingdoms and sub-kingdoms of the Heptarchy ; but the 
 provincial arrangement, according to which, from the seventh 
 century to the Conquest, the whole, although divided into two pro- 
 vinces, was canonically subject to a single primate at Canterbury, 
 did anticipate and lead the way up to a real union of the several 
 kingdoms under one king. The churches had a unity under the 
 successor of Augustine ; in the great councils of the church men 
 learned the way to hold great councils for the state ; as in later 
 times the principles of election and representation were maintained 
 by the church to be the basis of future liberties for the people in 
 general, so in earlier ones and in other ways the path of progress 
 towards unity and good government was led by the ecclesiastical 
 organisation. These things being so — and as they are known to 
 most of you at least from your reading of English history, it is 
 of no use my going into detail about them now — considering the 
 great and speedy growth of Christianity in England, the humility 
 and piety of its first apostles, the zeal and energy of its first nursing 
 fathers the kings of Kent, Northumbria, and Mercia ; considering the 
 great learning and science politically and morally developed within 
 the first generation of its converts in such men as Bede and Aldhelm ; 
 considering also that these, the kings and the clergy, seem to have 
 had the same objects in view, and stood together in opposition 
 rather to the uncivilised independence than the intentional hostility 
 of the temporal chiefs, we cannot be surprised to find, both in eccle- 
 siastical and civil concerns, the utmost harmony and the closest 
 union between church and state. Ecclesiastically the kings sit in 
 the church councils, nominate the bishops and abbots, divide the 
 dioceses, and confirm ecclesiastical law. Civilly the bishops sit in 
 the witenagemot, are, in fact, the leading advisers of the king, act 
 as judges in the courts of law, sitting with the ealdorman and sheriff 
 as the presidents of the folkmote ; act throughout the Anglo-Saxon 
 period as the standing council to the king ; and after the Conquest 
 
 r2
 
 244 THE ORIGIN AND POSITION OF THE GERMAN, ROMAN, 
 
 take their old place in the parliaments of the new regime. Nay, to 
 such an extent is this carried before the Conquest that ecclesiastical 
 causes are themselves tried on the folkmote, the bishops and clergy 
 by their influence there being able to secure fair treatment, and not 
 yet requiring, as was granted by William the Conqueror, a separation 
 of jurisdiction, the expulsion of the bishop from his seat in the 
 county court, and the consequent withdrawal of ecclesiastical causes 
 into spiritual courts. That for spiritual offences the bishop always 
 had his court may, I think, be regarded as certain ; but until the 
 Conquest ecclesiastical causes, as distinct from spiritual ones, were, 
 it is believed, tried in the courts of the people. Are we to regard 
 such a system as this as a theocracy, as at all an equivalent to the 
 system of Spain under the Visigothic kings ? I think not. To a 
 certain extent they were alike ; in both the union of temporal and 
 spiritual authorities worked with very few difficulties, and in both 
 there was some confusion as to the limits of the secular and the 
 spiritual, which contributed to this easy working. In both the 
 numbers of the prelates were small considering the extent of the 
 territory they ruled, and thus contrasted with the countless hierarchy 
 of Italy and France ; in both the weight of episcopal counsel in 
 the national assemblies was out of all proportion to that of lay 
 advisers. 
 
 But mark the difference. The councils of Spain, by which 
 Spain was governed, in which the laws were made and promulgated, 
 and on which depends the chief argument for the identity of church 
 and state in Spain, were primarily church councils ; they are even, 
 as I have said, church councils of especial authority, those of Toledo 
 ranking but little below general ones. The forger of the decretals 
 thought the name of Isidore of Seville a good name to recommend 
 his forgery, so great was the reputation of Spain in church law. It is 
 as church councils that they govern and direct the government of 
 the kingdom. The clergy are all in all in them ; the laity, except as 
 represented by the king, are of insignificant importance in them. 
 There is abundance of governmental machinery, but the spiritual 
 has dwarfed the temporal. The laws are of what is called the most 
 clerical complexion ; the spiritual authority is accounted supreme. 
 In the Anglo-Saxon church, on the other hand, although the per- 
 sonal influence of the clergy is perhaps as great, it is primarily as 
 wise men, witan, counsellors, that they exercise it. The councils are 
 national in character quite as much as ecclesiastical. In the witena- 
 gemot the bishops take a leading part as sapientes, not as spiritual 
 potentates. The distinctively ecclesiastical councils do not bind the 
 laity without consent of the witenagemot. As the bishops and 
 clergy are so strong in the witenagemot, and the civil and eccle-
 
 FRANK, CELTIC, AND ENGLISH CHUECHES 245 
 
 siastical councils can but consist of the same people in different 
 characters, it is not always easy to say which is a council of the 
 church and which a witenagemot ; but there is in all decrees of 
 such assemblies, I believe, a distinction. The witenagemot does not 
 ground its claim to legislate on its character as an assembly of 
 spiritual men, but as being the collective wisdom of the people and 
 the counsellors of the king. Is not this in strict consonance with 
 what I have said as to the unsecular character of our early church, 
 notwithstanding its close union with the state ? It was indeed so 
 closely united with the state that it needed no secular authority 
 exclusive of tbe state, but could safely leave the state to act by its 
 own religious instincts. Close as is the resemblance with the 
 Spanish system at first sight, it vanishes when the first test is 
 applied. 
 
 As I can in this lecture only indicate, scantily I fear, the initial 
 influences of Christianity on the politics of the nations, I must put 
 off any discussion of the developments of these influences in later 
 history. English church history is indeed almost the whole of 
 early English history, and one might spend terms on the illustra- 
 tion of it. As it is, we have hardly left time for the sketch of 
 German history which is necessary to complete our view. The 
 history of the German church lacks the unity wbich the other three 
 that we have discussed have, and so shares the difficulty of German 
 history generally. We may, however, roughly regard it according 
 to the national divisions which we adopted before — the Franks, 
 Bavarians, Alemannians, and Saxons. Of the church through the 
 Rhine countries, including the western half of the Franks and the 
 Alemannians, I cannot say anything more than I have said already 
 in speaking of the Romano-Gallic church. These countries had 
 been no doubt Christianised under the imperial influence. Treves, 
 Cologne, and Mainz were three great Roman centres, and they pre- 
 served the traces of their origin ecclesiastically, in the leading secular 
 position which their prelates maintained down to a late period. 
 What is true of the Gallic bishops is true of those of the Rhine, the 
 Mosel, and the Main. The Christianising of the rest of Germany 
 was due to other agencies, and has different characteristics ; but it 
 has this in common, that it was never Arian. Although the earliest 
 Teutonic nations that were Christian were Arian, the Goths, the 
 Suevi, and the Vandals, yet the soil of Germany proper was never 
 polluted with that heresy. Those tribes either, like the Lombards, 
 Suevi, and Vandals, learned Arianism after they had quitted their 
 German seats, or, like the Goths, came from the East, took a southward 
 direction, avoiding Germany, and through Italy and France passed 
 away into Spain. In this way one influence which has considerably
 
 246 THE ORIGIN AND POSITION OF THE GERMAN, ROMAN, 
 
 affected Spanish history is eliminated altogether. Bavaria might, 
 from its connection with the Lombards and Ostrogoths, have become 
 Arian if it had been converted early ; but it was suffered to continue 
 heathen until the seventh century, and was then Christianised by 
 the orthodox agency of the Austrasian Franks. Alemannia and 
 Franconia were converted partly by the spread of Christianity and 
 civilisation from their Western neighbours, and partly by the political 
 measures of the Frank kings, but the spiritual part of the work was 
 done by missions from Celtic churches of Ireland and Northern 
 France under the discipline of Columbanus. Saxony remained 
 heathen until it was conquered by Charles the Great, and it was 
 then evangelised by missions from Saxon England ; Frisia, the 
 western part of Lower Saxony, by Northumbrian ; and Saxony proper 
 by West Saxons, under the influence of Pepin and Charles. It was 
 to Boniface, the devoted English missionary, and we must remember 
 also the devoted papal partisan, that these northern churches owed 
 the character impressed on them throughout the middle ages, as 
 most strongly national, most strongly German, and most strongly 
 papal, in all points the least imperial. 
 
 Such, then, are the origins of the German churches, Boman, 
 Frank, Celtic, English, so far as spiritual teaching with all its vast 
 influences goes, and therefore unlikely to blend, in fact from the 
 beginning arranged under different systems of organisation. The 
 old Roman churches surviving in the three ecclesiastical electorates, 
 their power strengthened and pampered with secular privileges by the 
 emperors as a counterpoise to the power of Borne, and in secular 
 politics faithful to the emperor, only liable to be checkmated after 
 all successes by the spiritual powers of excommunication and depri- 
 vation exercised from Rome. The churches of Saxony, which had 
 learned their first lessons of church policy from England, as I just 
 said, were very religious, very papal, very national. In this relation of 
 Saxony to pope and emperor, a relation so rooted and grounded in 
 religious zeal, we have the key to the German history of the middle 
 ages. The Saxons loved the pope, and unless the emperor were a 
 Saxon they cared not a whit for the emperor ; if he were a Saxon, 
 then they were jealous of every moment he spent away from Saxony. 
 Hence every anti-Ccesar was either Saxon or supported by Saxony ; 
 the an ti -pope was strong only in the Bhine lands, and in the here- 
 ditary dominions of the emperors generally, that is, in the south. 
 This is the great clue to Saxon history, and it is largely affected by 
 the church relations in their origin and developments. For can we 
 forget that this very Saxony, so Catholic while pope and Csesar 
 are struggling against one another, is the birth-land of Luther, 
 greedily hurries into the Beformation, and most ruthlessly carries out
 
 FRANK, CELTIC, AND ENGLISH CHUECHES 247 
 
 the extermination of the older system which it had supported so 
 long ? The national spirit of Saxony is strong against imperialism, 
 and now that the papacy and the empire are at one the religious 
 spirit of Saxony is strong against the papacy. 
 
 But here we get beyond the limits of ruediasval history. And 
 perhaps in what I have said I have gone rather beyond what is 
 strictly constitutional history. The church in South Germany, 
 in Swabia, and Bavaria has less individuality, and considering the 
 large proportion of the number of emperors that were taken from 
 the south, we cannot expect so much freedom of action. The 
 Ghibelline spirit was stronger in the south than in the north 
 Bavaria had always an eye towards Italy, as Austria has had in the 
 later history, and even the character of southern religion is different 
 from that of northern. The only prelate in the south whose position 
 resembles at all that of the great prelates of the north and west, 
 was the bishop of Salzburg, and he plays the same game with 
 them. The laws, then, that had been the most imperial become 
 at the Reformation the most papal. There the imperial hand 
 is the strongest, and the religious instinct turns more readily 
 southwards. 
 
 As regards the constitutional position of the prelates in Germany 
 and the relations of church and state, I do not know that they 
 present points of contrast or resemblance with the other churches 
 that we have discussed to make it worth while to dwell on them. 
 The German prelates are constitutionally secular princes, and their 
 secular principalities are not their dioceses, but the accretions of 
 endowments made at various times by the emperors to purchase 
 their support, and confirmed for the same purpose by successive 
 popes. The Saxon emperors founded great archiepiscopates in Saxony, 
 to complete the system that they found existing on the Rhine, 
 and to civilise, consolidate, and attach the north ; but Hamburg 
 and Magdeburg never equalled Cologne and Mainz, perhaps because 
 the later emperors were southern and found that no such measures 
 could propitiate the jealousy of the north. In the south the southern 
 emperors were strong enough without this, and perhaps were afraid 
 to strengthen the church too much. Hence there were differences 
 of rank among the German bishops quite independent of their 
 spiritual character. We have archbishops, electors, and prince arch- 
 bishops, prince bishops, count bishops, and bishops simply. In a 
 word, it was secular endowment and secular position that gave them 
 their political status. They governed their states and commanded 
 their armies as princes. The realising of so much of this is im- 
 possible without a reference to the history of the empire, which lies 
 rather outside of my present speculations, and the peculiar character
 
 248 GERMAN, ROMAN, FRANK, CELTIC, AND ENGLISH CHURCHES 
 
 of the German ecclesiastical system is owing so much to its perfect 
 assimilation with the German secular system, and both these are so 
 foreign in later times to what we regard as constitutional history in 
 other countries, and I may add I have so lately lectured at great 
 length on them, that for the present I shall leave them alone, and 
 only treat of them where they especially illustrate our comparative 
 view.
 
 XIII 
 THE HISTORICAL ORIGIN OF EUROPEAN LAW 
 
 One of the first questions that meet us in tracing the progress of 
 civilisation, and it is one that lies at the root of all government, is 
 the historical origin of the laws of the particular nation or nations 
 that we are contemplating. In theory this question, with reference 
 to mediaeval Europe, might take precedence of the religious one, 
 which we examined in the last lecture, for, so far aa the possession 
 of a code of laws went, civilisation had gone to great lengths before 
 the introduction of Christianity. But historically the civilisation of 
 modern society begins with its Christianising, and we have therefore 
 taken one aspect at least of that subject first. Our knowledge of 
 the laws of the nations before their conversion is very small, and 
 since their conversion Christianity and the institutions of earlier 
 Christianised society have, of course, had a conspicuous and in some 
 cases a controlling influence. The subject of law divides itself into 
 two — legislation and judicature — and of these legislation divides 
 itself into the process of law making and the substance of the laws 
 made. These cannot be considered in a single lecture even in the 
 most summary way. I shall begin, then, with the substantive ques- 
 tion — the origins of the written laws of the middle ages ; I shall 
 treat the question of legislative process partly under this head, but 
 more at length when we come to the subject of government, and 
 that of judicature must in the same way be postponed. 
 
 Now, the fundamental systems of European law are threefold in 
 origin — are referable to three distinct sources : the original laws of 
 the Teutonic tribes exemplified in the more ancient portions of the 
 Leges Barbarorum, which may be explored at length in the collec- 
 tions of Lindenbrog, Canciani, and others ; secondly, the imperial or 
 civil law of the Romans, which must be studied in the Theodosian 
 Code and in the Corpus Juris Civilis containing the legal works 
 edited under Justinian ; and, thirdly, the feudal law, which, as being 
 customary, varies of course very much with locality and date, but 
 which may perhaps be found in its purest form, in its most theo- 
 retical perfection that is, in the Assizes of Jerusalem, the great body
 
 250 THE HISTORICAL ORIG-IN OF EUROPEAN LAW 
 
 of law of the feudal colonies established during the Crusades, in 
 Palestine and Cyprus, and in the Grand Custurnary of Normandy. 
 These three sources, the law of the barbarians, the imperial, and 
 the feudal law, lie at the root of all existing systems, and according 
 as the intermixture of blood, of language, and of feudal institutions 
 has varied, so will these elements be found to vary, although the 
 two sets of influences do not vary together directly, or in some cases 
 even approximately. Of these three — the barbarian, the imperial, 
 and the feudal — the first and third might be described more properly 
 as customs, partly written and partly unwritten, and according to 
 date and locality more or less interpenetrated by one another and by 
 the civil law. In the first, the Leges Barbarorum, which, of course, 
 belong to an early stage of society, the element of custom is the 
 strongest ; in the civil law it is the will of the princeps, quod 
 'princi'pi placuit legis vigorem habet ; in the feudal law it is a com- 
 bination of the two ; as we should say in reference to copyholds, in 
 which the feudal system has left its most distinct marks to the 
 present day, it is the will of the lord and the custom of the manor. 
 In truth, feudal law is a development of one part of the ancient 
 barbarian law under the influence of partly Romanised institutions, 
 and in the garb to a certain extent of Eoman legal language. 
 
 Of this I shall have more to say when I speak of the feudal 
 system in its original meaning in reference to the tenure of land ; 
 but it is impossible in a matter so involved as constitutional history 
 is, to avoid occasionally anticipating. Now, there are theories of 
 law which derive all modern law from that of Rome, either directly 
 or indirectly, tracing both the allodial and feudal systems with their 
 customs to the perversion or development of the institutions of the 
 civil law. These theories are historically untenable, as I hope we 
 shall see in this lecture, but at the same time it cannot be said to 
 be easy to estimate the effect of Roman law. You must remember 
 that, as we have just seen, all the leading nations of Europe begin 
 mediaeval history in barbarism, and out of various sorts of barbarism 
 all have to win their way by one path to civilisation ; that civilisa- 
 tion is won under Roman influences, the Christianity that effects 
 it is Roman Christianity, speaking the Latin tongue and bringing 
 in her hand the Roman law, suggesting new wants and new rela- 
 tions, new liberties and new restrictions, and clothing everything 
 that is new in the new language. As the Latinised nations learned 
 civilisation they lost their native tongue, as we have seen, in Gaul 
 and Spain ; that is, Roman civilisation had a retrospective and 
 assimilating influence ; even what these nations knew before and 
 used before, they now learned to speak of in Latin language and 
 incorporated with Latin usage. Just so the barbarians learning
 
 THE HISTOBICAL ORIGIN OF EUROPEAN LAW 251 
 
 civilisation under the teaching of the Latin church : they learned to 
 make new laws, and clothed them in the formulas of Eome ; if the 
 substance of the law was not imitated from Eome, the language of it 
 was; much that is common to all civilised society thus got a 
 specially Roman dress, and by retroaction and assimilation they 
 began to write their earlier history in Latin and to assimilate their 
 earlier law to a Roman shape. Hence the difficulty of estimating 
 the real as opposed to the superficial influence of the civil law ; 
 hence it is that only by insisting upon those particulars of judica- 
 ture and practice which have no part whatever in the civil law, such 
 as the ordeal, the iveregild, and compurgation, we can distinctly 
 eliminate Roman influence and say this or that nation's civilisation 
 is not Roman, is at the base Teutonic ; and observing this, we 
 look rather to the customary or common law of our nations than to 
 the statute or written law, as a clue or as one of many clues to the 
 identification of their origin. 
 
 With so much of preface, we will now go on to the laws them- 
 selves ; and I will here take England first, because our laws are the 
 most ancient and purest specimens of the most ancient non-Roman 
 law, and because our modern laws have developed from our ancient 
 ones by a process into which very little that is Roman has ever 
 filtered ; unlike Germany, which by the fatal union of its kingship 
 with the imperial dignity became subject to the Roman law so far 
 as it had any common system of law at all ; unlike France and Spain, 
 which had the full benefit of the earlier law of Rome, and whose 
 conquerors learned to legislate for themselves in the form of selection 
 from the Code of Theodosius. You will remember that I am sketch- 
 ing very summarily, and not pretending to give you the substance 
 of the laws whose authors I enumerate. Of the early English laws 
 we have extant codes of considerable length from the hand of 
 Ethelbert, the first Christian king ; Wihtraed and other kings of 
 Kent ; Ina, king of Wessex, Alfred the Great, Edward the Elder, 
 Athelstan, Edmund, Edgar, Ethelred, Canute, Edward the Confessor, 
 Wilham the Conqueror, Henry I., and every other sovereign from 
 Henry II. downwards. The earliest of these are merely registers 
 of customs. There were local judicatures and local usages pre- 
 served by oral tradition. As long as these sufficed, it would be 
 hardly needful to have written laws ; but as the population grew 
 thicker, and the little states coalesced, and superior jurisdictions 
 limited the action of the local courts, and centralisation introduced 
 conflicting tribunals, the need of written laws and the constant 
 accumulation of new ones to suit new emergencies supervened. 
 Hence the early laws are simply enumerations of fines and punish- 
 ments for offences ; they then go on to prescribe and limit
 
 252 THE HISTORICAL ORIGIN OF EUROPEAN LAW 
 
 jurisdictions. They proceed finally to define almost all relations and 
 direct the conduct of men in every province in which law is 
 applicable. So far as the influence of Eoman law goes, it is only 
 very remotely and indistinctly traceable in any of the early laws ; 
 even the canon law failed to introduce it in any considerable degree, 
 except in the ecclesiastical courts : these were only established in 
 their modern form at the Conquest, and the canon law itself is nearly 
 a century later in origin. The study of the civil law as science 
 dates in England from the time of Stephen. Putting aside the 
 indirect influence of Roman law, as traceable or said to be traceable 
 in the feudal system, I should place the date at which the civil law 
 began to affect English legislation and the proceedings of the English 
 lawyers as late as the reign of Henry III., just about the time at 
 which French began to be our legal language. 
 
 It is unnecessary that I should repeat what I have said as to the 
 influence of Roman institutions on our early history. I believe that 
 they had no more effect on England than was involved in the fact 
 that the common lessons of civilisation were affected by them 
 superficially rather than substantially. As our language at the 
 early period has no trace of such influence, and as there is no such 
 in the Anglo-Saxon blood, there is no such in the Anglo-Saxon law : 
 there is everything in the Anglo-Saxon law that speaks to its being 
 pure Teutonic : it is indeed of the purest Teutonic. It is not 
 uniform : the differing elements of Jute, Angle, and Saxon originally, 
 and the two conquests, or partial conquests, by the Danes in the 
 ninth and eleventh centuries made local and partial differences, so 
 that down to the reign of Henry I. local customs varied as the venue 
 lay in Wessex, in Mercia, or in what was called the Danelaw, the 
 eastern half of England ; but these differences only show how 
 thoroughly Teutonic the whole fabric was : differences in the murder 
 fine, and in the value of the oaths of the compurgator, and slight 
 differences as to the wager of law and ordeal. All these laws are 
 made by the king and people : from first to last there is no such 
 thing as a pretor's edict, a law made by the king on his own 
 authority : counsel and consent are the watchwords of Teutonic legis- 
 lation ; quod principi placuit is by itself unknown to English law, 
 even at the time of the greatest abeyance of popular rights when 
 the king promulgated the decisions of his court in the shape of an 
 assize or a charter. And perhaps we may couple with this the fact 
 that English law throughout the middle ages was constantly grow- 
 ing : it was not codified, it was not restricted by statute law except 
 on certain points and at late periods : it was still in itself essentially 
 customary, and how great the customary element was may be inferred 
 from the growth of the practice of trial by jury, a mode of trial as
 
 THE HISTOEICAL ORIGIN OF EUROPEAN LAW 253 
 
 to the working of which we cannot argue in any particular case, 
 unless we know the exact date of it, so rapidly did the plan and 
 custom change. 
 
 The great English law books of the middle ages are not codes : 
 the written laws remain clothed in the terminology of Acts of Par- 
 liament: Glanvill, Fleta, Breton, and Bracton, however high their 
 authority and the authorisation under which they were published, 
 are not codes but manuals of practice, attempts to embody the 
 common law with its modifications ; not generally very successful 
 or intelligible attempts, seeing that they fail altogether in giving us 
 information as to points of the greatest interest. In all these points, 
 in its antiquity, in its substance, in its characteristic differences, in 
 its enacting authority and its character of growth and elasticity, the 
 legal system of England is distinctly contrasted with that of the 
 Eoman law. Of course it has much in common in principle, if, as 
 it is said, the Roman law is the clearest exposition of the common 
 principles of all jurisprudence, of law in all the ways in which it 
 affects all the relations of human life. English law and Roman law 
 must have at all events enough in common to make them both 
 entitled to the name of law. 
 
 As to the influence of feudal law on English law proper, I shall 
 say only thus much, leaving further questions for future consideration. 
 Feudalism touches the question of law rather in substance than in 
 form : feudal government as affecting the enactment of laws, and 
 feudal judicature as affecting the execution of them, I shall consider 
 later on ; the feudal influence after these restrictions affects only the 
 laws of land : as affecting the tenure of land only has feudalism had 
 any influence in England since the reign of Henry II., and this 
 influence has, like the rest of the customary law of England, been 
 developed with the common law, restricted and modified in the 
 written law, and embodied in the manuals of process. We have no 
 book of English feudal law like the Grand Custumary or the Assize 
 of Jerusalem, unless you regard Littleton's Tenures as such ; but at 
 the utmost in England it is only a department of law, not a body of 
 law distinct from the common law. There is no part of the country, 
 nor any important interest, except land tenure, which is affected 
 solely, or even principally, by customs of purely feudal origin. As 
 it affects the tenure of land, I shall speak of it in discussing that 
 subject. 
 
 In France the questions before us are much more complicated 
 and abstruse. We have to recognise at the outset the permanent 
 existence of a thoroughly civilised Roman society throughout Gaul : 
 a society framed upon the older law which existed as the basis of the 
 Theodosian and Justinian systems, a society which, though modified,
 
 254 THE HISTORICAL ORIGIN OF EUROPEAN LAW 
 
 subsists in its descendants and results to the present moment. 
 Eoman law is the mos 4 ; ancient basis of law in France. We have 
 next to recognise* the fact that the barbarian systems which in a 
 measure superseded, but only in a measure, this earlier Roman law, 
 were themselves also Romanised. The Visigoths and the Burgundians 
 had clothed these laws in the shape of Roman law ; they had selected 
 from or adopted the Theodosian Code as soon as they began to feel 
 the necessity of a law in their settled seats ; and if, as I cannot 
 positively say, the Franks themselves had not done something of the 
 same kind, the Franks were becoming Romanised when they made 
 their conquests, and when they became Christian became very 
 distinctly Roman. Hence a great part of France was governed by 
 civil law direct and immediate ; the country of the written law as 
 distinct from the law of custom — written law, i.e. Roman law as 
 modified by the capitularies of the earlier Frank kings and emperors, 
 and by the ordinances of the latter. The country of custom, or 
 North France, was that in which the pure Frank and Teutonic were 
 stronger ; but, as I have said already, Frank as distinct from 
 Teutonic, feudal as distinct from allodial. As in England so in 
 France, feudality as touching law is rather a matter of administration 
 than of substance, except with respect to land tenure ; but where 
 every provincial count and duke has a right to judge his own vassals, 
 without the restriction of an ancient system like the Roman law, 
 a various growth of customs does arise, and these when tabulated 
 assume the appearance of distinct codes. Such are the Great 
 custumary of Normandy, and the customs of Beauvoisis, the best 
 known of the French custumals, a body of legal usages based on 
 feudal jurisdiction, originally relating to tenure, but gradually extend- 
 ing to every relation in which land tenure touches the intercourse of 
 mankind, and every sort of question which could be brought before 
 the feudal court, a court bent, like every other law court, on asserting 
 and exerting to the utmost its own rights and powers, powers that by 
 their exercise became rights, too often tyrannies in practice, with that 
 slight check that routine once learned imposes on irresponsible 
 authority. 
 
 French law is, then, (1) Roman civil law, pure, and as filtered 
 through the barbarian versions of the Roman codes ; (2) customary, 
 the law practised in the feudal tribunals ; (3) the modifications of 
 these laws, as exemplified in the capitularies of the early kings and 
 emperors ; (4) the ordinances of the kings of the third race, as they 
 are called, especially such as had a general bearing, as the establish- 
 ments of St. Louis and the acts of Philip the Fair and Philip of 
 Valois, modifying and restricting the others. Of course the Revolu- 
 tion did away with all this, and the empire substituted for this
 
 THE HISTORICAL ORIGIN OP EUROPEAN LAW 255 
 
 variety the Code Napoleon. There is one peculiarity of French legal 
 history which I have not noted — the fact that for several centuries 
 after the Frank occupation the law was personal, not local ; the 
 decision, that is, of the law by which any person was to plead or to 
 be impleaded, was according to his nationality, not according to the 
 locality in which the trial occurred. It is thus opposed to the 
 practice of English law, whose distinctions were local. This personal 
 system seems to have existed in full force at the beginning of the 
 ninth century, to have declined during the progress of it, and to have 
 become entirely extinct in the eleventh. It is to this, moreover, that 
 the accuracy of the separation of the pays de droit ecrit from the 
 country of custom is due. The population south of the Loire was 
 chiefly Eomanised ; that north of the Loire was more thoroughly 
 feudalised. In each case the personal law of the minority gave place 
 to the personal law of the majority. Eoman law became the rule 
 of the south, feudal law the custom of the north. 
 
 The law of Spain, the common and fundamental law of the 
 Visigoths, out of which, after the Moorish conquest, the Castilian 
 and Aragonese jurisprudence developed, was of course originally 
 Teutonic. The common law of Spain, the customary procedure, was, 
 like the Lombard, the Burgundian, the Saxon, and the English, 
 originally a table of wergilds, compurgatory regulations, and the 
 like ; but as the Visigoths very early became subject to Eoman 
 influences, their first written laws wear a Eoman dress. The Visi- 
 gothic kings adapted the Theodosian Code to the wants of their 
 people, and embodied them with portions of the more ancient Eoman 
 law. Euric (466-483) was the first recognised lawgiver of the 
 Visigoths ; his laws, called sometimes leges Theodoriciance, were 
 improved on by his son Alaric, 483-506, the king who was conquered 
 by Clovis, and with large additions also from the Code of Theodosius 
 were incorporated in the compilation called Breviarium Aniani, the 
 text-book of Visigothic law for both South France and Spain ; each 
 successive king after him added to this enactments bearing still 
 more prominent marks of Teutonic origin, being, in fact, the ad- 
 mixture of the as yet unwritten common law with the adventitious 
 Eoman law. The body of law thus formed was called the Forum 
 Judicum or Liber Judicitm, in Spanish Fuero Juezzo ; it was ratified 
 by the councils of the Spanish church and in assemblies of the 
 Visigothic people, and it formed the basis of the revived juris- 
 prudence after the first shock of Moorish conquest had passed away. 
 Between the development which it took in Castile and that which it 
 took in Aragon, we may draw the same distinction as existed between 
 Eoman and feudal law in France. In Castile the Fuero Juezzo 
 continued to be the body of law until it was superseded by the
 
 256 THE HISTORICAL ORIGIN OF EUROPEAN LAW 
 
 legislation of Alfonso the Wise and his successors ; in Aragon it 
 was very early superseded by the fueros or charters of towns and 
 districts which answer to the customary laws of France both as to 
 local operation and as to feudal origin. Aragon was, as you re- 
 member, feudalised ; Castile was not. Well, the Fuero Juezzo, 
 although in some degree superseded by the laws of the Siete 
 Partidas, written by Alfonso, was not abrogated by them ; it con- 
 tinued to be law until the present century, modified, of course, by 
 the decrees of councils and by special charters and ordinances. The 
 Siete Partidas was published by Alfonso in 1258. It is in this that 
 the influence of the civil law proper, that of Justinian, first appears. 
 Alfonso has in seven books drawn up an orderly digest of all the 
 elements of law that previously existed : the Forum Judicum, the 
 civil law, the local fueros, the decisions of councils, and the sayings 
 of philosophers and saints. It is clear that in such a mass the early 
 simple relics of Teutonic law would be very liable to be lost sight of, 
 and in proportion as the civil law element wanes the old national 
 common law wanes. We must not, however, suppose that even this 
 elaborate treatise was accepted at once as the code of the nation ; we 
 may rather compare it with the works of our own great jurists who 
 lived about the same time and brought similar influences to bear upon 
 the modification of old English law ; but, unlike the Siete Partidas, 
 these never received any sort of legislative sanction. Alfonso was 
 never able to promulgate them as a code ; nay, they were discarded 
 by his subjects as an attempt at innovation, and as by themselves 
 unconstitutional ; what legislative sanction the Siete Partidas re- 
 ceived was by the act of Alfonso XI. in the middle of the following 
 century. 1 
 
 It is interesting to compare the spirit, for it is impossible to do 
 it in detail, of the three great legal works of this same age : the 
 Establishments of St. Louis, strictly feudal ; the Siete Partidas of 
 Alfonso ; and the manuals published under Edward I., so strongly 
 tempered with Roman elements. Perhaps we are inclined somewhat 
 to undervalue the Roman element in the Establishments and to 
 exaggerate it in the English law books, because it was to a degree 
 natural in the former and adventitious in the latter ; but the general 
 impression derived from the literary or historic (for I cannot pretend 
 to any legal) knowledge of them is what I have stated. But our 
 Spanish and English books may be compared in a point still more 
 interesting : I have just said that the latter never obtained legislative 
 sanction, and the former only after long opposition, and then a quasi- 
 
 ! An early compilation of his, the mulgated by charter, as a privilege to 
 Fuero Real of 1250, was more generally the communities that were willing to 
 received, but even it was only pro- receive it.
 
 THE HISTORICAL ORIGIN OF EUROPEAN LAW 257 
 
 sanction only ; surely this points to the existence of a strong system 
 of common or customary law in both countries which could not be 
 set aside in a hurry, much less altered to suit the elaborate views of 
 the civilians. The Teutonic element was still too strong for the 
 lawyers, and it continued to be so in England ; nolumus leges 
 Anglice, mutari was the answer of the parliament of Merton when 
 the lawyers wished to introduce the retrospective operation of 
 marriage from the civil law. Although Breton writes in the name 
 of Edward I., we do not receive him with the authority of Edward I. 
 Edward I.'s laws are written not there but in the Statute Book, 
 and that only is the proper exposition of his views, limited by the 
 advice and consent of his parliaments, perfectly organised and duly 
 summoned. To the civil law pure and simple, as to the canon law 
 also, there was in England the greatest antipathy ; nor were they 
 ever introduced except into particular courts of technical law, as the 
 ecclesiastical and admiralty courts. In Castile the introduction of 
 the practice of Boman law was due to Alfonso XL, 1312-1350. 
 Alfonso the Wise had given the professors of the civil law the rank 
 of nobles ; Alfonso XL still further encouraged them, and gradually 
 they undermined and eliminated the ancient Teutonic customs. 
 With the growth of absolutism the practice of the civil law grew ; 
 with the disuse of the Teutonic customs the national hold on the 
 conduct of the sovereign grew weaker and weaker ; the old Spanish 
 law remained, but it remained a dead letter. Happily this never 
 became the case in England. 
 
 In Aragon, as I said, we see a different state of things ; there 
 the laws that were in real operation were simply special charters or 
 fueros, like the assizes of the Plantagenet sovereigns, or still more 
 like the Charter of John. The most ancient law of Catalonia is the 
 Usages of Catalonia published by Raymund I. in an assembly of 
 nobles in 1068. This is a mixture of Boman with Visigothic law ; 
 as usual the Gothic law prevails in the criminal part, the Boman in 
 the civil portions ; the laws of land are feudal. The Fuero of 
 Sopoarbe, which belongs to both Navarre and Aragon, is probably of 
 nearly the same date, and its elements of the same sort. Both were 
 derived, no doubt, in great measure from the Fuero Juezzo. The 
 laws of Portugal are little known, if at all, in this country ; we can 
 only infer from the tenour of the history that they contained less of 
 the popular and free custom and more of the absolute authority of 
 the king and his great barons. I have dwelt on the Castilian part 
 of the story longer, both because its history is more accessible and 
 its likeness to English law in many matters gives it additional 
 interest. This likeness appears strongest, of course, in the funda- 
 mentally Teutonic customs I have glanced at. I believe that these 
 
 s
 
 258 THE HISTOEICAL ORIGIN OF EUROPEAN LAW 
 
 are to be traced more distinctly in the fueros or supplementary 
 charters than in the body of the codes : in fact, the codifier, from 
 his altitude and the sublimity of his point of view, would naturally 
 take the more advanced and refined form of expression, while the 
 fuero, calculated for an occasional emergency or a local purpose, 
 would be more distinctly of the race, racy. It is in the fueros, 
 according to Sir Francis Palgrave, that we trace the long continuance 
 of compurgation and the elaborate regulations of ordeal ; compurga- 
 tion is not admissible into trials in the Fuero Juezzo. 
 
 But I have said perhaps more about Spain than I should have 
 done considering the proportion that it deserves. Only please to 
 remark that as in England, just as the national elements work their 
 way through feudal law, and against the influx of the civil and 
 canon law, liberty increases, the national genius for self-government 
 expands and asserts itself, so unhappily in Spain the reverse takes 
 place ; as the influence of the civil law increases under Alfonso X. 
 and Alfonso XI., the Teutonic element fading out, even when no 
 connection of fact can be traced between the two, absolutism in- 
 creases, the influence of the nation in legislation and politics declines, 
 and the way is made open as in France for a thorough tyranny. 
 Surely here is more than a fanciful analogy. The history of Italian 
 law is extremely complex, nor is there much besides its complexity 
 that is peculiar. The Lombard law, like the Visigothic, is a mixture 
 of civil and Teutonic legislation, and the Norman law of Naples and 
 Sicily is distinctly feudal in its origin ; but the same causes that 
 affected Spain affected Naples, and the same cause that affected 
 Lombardy affected the great body of the empire. 
 
 The Norman laws of Roger Guiscard are extant in the shape 
 of Constitutions, incorporated with those of Frederick II. in the 
 collection of Peter de Vinea ; they were established in parliaments 
 or general assemblies of the vassals, and had their authority from 
 this source : although they included much from the civil law of 
 Justinian, it was not as Justinian, but as the laws made, with 
 counsel and consent of his barons, by King Roger, that they had 
 their legal force ; and the same may be said of Frederick's legal 
 enactments. The tendency of Frederick's laws, as may well be 
 imagined, was, like that of the English the century before, opposed 
 to feudal aggression, and directed towards the emancipation of royal 
 power, coupled with a recognition of popular rights, the only certain 
 bar to feudal tyranny and consequent disruption. The feudal law 
 of the Milanese lawyers, which regulated feudal transactions, not 
 only in Italy, but to a great extent in Germany also, is referable to 
 the end of the twelfth century ; it contains far more of the Roman 
 law than the feudal customs of England and France, as, indeed,
 
 THE HISTOEICAL OEIGIN OF EUEOPEAN LAW 259 
 
 might well be expected, seeing that it was a part of the imperial 
 system. This law, embodied in what are called the Libri Feudales, 
 is often found appended to the Corpus Juris Civilis ; it is not of the 
 nature of a code, but, as I have described the customary books of 
 France, the legal treatises of England, and the Siete Partidas of 
 Alfonso, an authoritative compilation to regulate customary practice 
 in matters of feudal business. 
 
 We turn, however, in the last place to Germany ; and here, I 
 am sorry to say, we can only look at the subject briefly, and in the 
 points in which it contrasts with what has been said. The several 
 nations of Germany had originally, that is, as soon as they became 
 known to us, their own laws, varying in expression and custom, but 
 with the general likeness of the race. The laws of the Saxons, of 
 the Bavarians, of the Alemanni, of the Thuringians, of the Mecklen- 
 burgers, or what were afterwards so called, are extant either in their 
 earliest forms, or else as modified by the Karling emperors, under 
 whom they were combined and permutated, and sometimes treated as 
 one nation. I need not add that these laws, wherever we know them to 
 be modified or added, were modified or improved in the national 
 assemblies. Well, as in France, so in Germany, the substratum of 
 native law was overruled by the capitularies of the Frank kings and 
 emperors ; and what elements of Roman law were introduced into 
 the Saxon Code were so introduced. The Bavarian and Alemannian 
 Codes were much derived, like the Visigothic, from the Theo- 
 dosian ; but the Saxon was free. Unfortunately, with the termina- 
 tion of the capitularies we lose all unity of law in Germany, save 
 and except what the civil law created, or the imperial constitutions 
 supplementing the civil law. As the capitularies had altered the 
 written law of the nations, so the action of the Missi Dominici or 
 of the Comites Palatini altered, generally in the direction of the civil 
 law, the customs of judicature and civil process. But with the same 
 paralysis of central power that puts an end to the capitularies, the 
 central jurisdiction, both in itself and in its provincial operation, 
 is paralysed too ; everything, both law and judicature, falls gradu- 
 ally into the hands of the princes or the cities that are strong 
 enough to extort or rich enough to purchase from the emperors 
 exclusion from their nominal jurisdiction, or from all intermediate 
 jurisdiction that is neither more nor less than perfect independence. 
 
 To trace the history of German law would be to trace the history 
 of law in every little state, every little municipality, in Germany, 
 and this is for us out of the question if we were to give our lives to 
 it. Few of the German princes of the middle ages were lawgivers. 
 From Frederick II. to Albert II. and Maximilian, no general law 
 was passed affecting the whole empire. The Golden Bull and a few 
 
 s2
 
 260 THE HISTORICAL ORIGIN OF EUROPEAN LAW 
 
 similar documents are not worthy of the name of law, either from 
 their scope or from the efficiency of their operation. During this 
 long period also the courts of central jurisdiction were extinct ; 
 although the idea of such central jurisdiction lived, and attempts 
 were made at times to establish general peace and a common 
 supreme tribunal ; but it is not until the time of the Keformation 
 that we see the diets actually uttering edicts, and expecting them to 
 be obeyed. The result of this was to leave the law to the mercy 
 of the lawyers. Some few princes were lawyers enough to draw up 
 codes, Lewis of Bavaria, for example, but few were strong enough 
 to get them obeyed. The lawyers became a privileged caste, and as 
 the tendency of the lawyers always was to adopt the hard and sharp, 
 the lucid and definite, principles of the Roman laws, the Roman 
 laws gained a general, though not universal, acceptance, to the 
 exclusion of the ancient but varying and obsolete traditions. This, 
 I believe, has extended so far that modern German law has less in 
 common with the ancient system than any other in Europe. The 
 difference, however, of allodial and feudal still subsists in the matter 
 of tenure. So much, then, for the present.
 
 XIV 
 
 SYSTEMS OF LANDHOLDING IN MEDIAEVAL 
 
 EUKOPE 
 
 It is upon the possession of land that the governmental system 
 in all the medieval nations depends ; and it is according to the way 
 in which land is possessed that the character of many of their 
 political institutions is determined, their political feelings turned 
 one way or another, and their party combinations formed. There 
 are but two ways in which, on first principles, land can be held : it 
 can be held allodially, of God alone ; that is, the original title being 
 in the possessor ; or it can be held feudally of some person or 
 persons, the original title being in the gift of the one to the other, 
 and being maintained by the performance of certain duties by way 
 of acknowledgment. In the one case the proprietor is his own 
 master ; his land is a sign and token of freedom ; he is a member 
 of the nation to which he belongs, in the fullest sense of member- 
 ship, and his possession of land involves him only in the duties 
 that a subject owes to his sovereign or to his people ; as an indivi- 
 dual he is subject to the laws of his country, but as a landowner 
 he is no otherwise subject than if he had none ; nay, in general 
 he is more entirely free. In the other case, the feudal possessor 
 is subject to a lord who may or may not be the sovereign of the 
 country that he belongs to ; that is, he has at least one lord over 
 him besides the king, unless his lord be the king ; his land is a sign 
 and token of service and obligation instead of freedom, and besides 
 his duties as a subject to the sovereign and to the law, he has 
 obligation and duties to his lord which may or may not always agree 
 with those which he has as a subject. 
 
 Now, both these systems of landholding may be found all over 
 the world. It is, indeed, an exhaustive division of all possible 
 tenures ; a free possession with no service other than that which 
 every subject owes to his state, and a non-free service where the 
 title comes from some other source, and that source a single over- 
 lord, or a whole nation, or an association of people, or a particular
 
 262 SYSTEMS OF LANDHOLDING IN MEDIEVAL EUKOPE 
 
 family. You get something like feudalism in Turkey and India, 
 and in fact everywhere where there has ever been a conquest or 
 an immigration ; but although this distinction is a logical one, 
 historically, for the purposes of mediaeval history, both allodial and 
 feudal tenure are traceable to ancient German institutions, trace- 
 ablo in the earliest accounts we have of our ancestors through 
 German, English, French, and Spanish history ; that is, although 
 viewed generally it is a distinction in the nature of things, viewed 
 historically it arises out of the nature of things as they existed in 
 the ancient home of the Teutonic races. The allod or ethel was the 
 piece of land which each head of a family possessed as entirely his 
 own ; the feod or fief was that which the powerful lord or warrior 
 bestowed on his retainer by way of fee or reward for his services, 
 and to be held on the condition that those services should be con- 
 tinuously performed ; the obligation on the lord's part being to 
 maintain his vassal in possession of the land that he had given him, 
 and that of the vassal to defend his lord. The foundation in this 
 case of the tie between lord and vassal is land held by both in good 
 faith ; the privilege of the allodial is the freedom from all earthly 
 service. 
 
 Now, it is obvious that according as either of these systems 
 existed in any particular country, it must form the local or national 
 character very considerably. In the allodial system is inherent the 
 germ of all the institutions of freedom. In the feudal is inherent 
 all that generally we should loosely term loyalty ; that is, all that in 
 rude ages furnished the cohesive influence in a nation, the sub- 
 ordination of classes by an actual hold of one upon another, over 
 and above the tie of race, language, and religion ; and with the sub- 
 ordination, all the benefits and also the evils that are sure to arise 
 where men are entrusted with power over one another which there 
 is no central force strong enough to regulate. Land, as I said, is in 
 the one case the sign and pledge of freedom, in the other it is the 
 bond of union but the type of service. Each has its political 
 characteristics : therefore, with the allodial we invariably associate 
 the patriarchal rule of the king, the fixed obligations which no sub- 
 ject of the state can elude, the trinoda necessitas as it is called : the 
 right and duty of all free men to bear arms ; the divisibility of 
 estates of land ; the equality of all free men in the national 
 councils, the limitation of the royal power by the collective wisdom 
 of the nation. Morally the characteristics are the love of the soil, 
 the hearty attachment to the national leader as the head of the race 
 or the chosen magistrate, and the preference of the life of the 
 country to that of the town. The corresponding phenomena in 
 the feudal tenure are the substitution of homage and fealty for the
 
 SYSTEMS OF LANDHOLDING IN MEDIAEVAL EUEOPE 263 
 
 voluntary and genuine tie of tribal unity — that is, of an artificial 
 for a natural bond ; the infinite subordination of classes each less 
 than free in relation to its superior, with the inevitable curse of 
 servitude at the bottom of the scale ; the limitation of central power 
 by councillors whose qualification is not wisdom but the feudal 
 relation to the lord and to each other, and who each is jealous of 
 both inferior and superior ; the balance of power between the king 
 and vassals — a balance of power which is never preserved, for when 
 the king is strong enough to enforce authority the vassals are too 
 weak to keep him responsible for the use of it, and vice versd ; 
 the substitution of the feudal court of justice for the popular one, 
 of the indefinite aid for the fixed obligation, of a strict succession 
 by primogeniture for the divisibility of estates ; and morally, the 
 love of the court and camp, the essentially military policy of a 
 nation governed in accordance with it, and servility instead of 
 freedom. 
 
 It is obvious on such a view that the allodial system is that 
 of a nation abiding in its native lands, with no foreign element to 
 deal with, at home and in peace ; if moving at all from home, 
 moving in mass and carrying all the institutions of home with it 
 into an empty land. The feudal as clearly belongs to a nation at 
 war, a nation of warriors, of lords who have to reward their 
 followers by gifts of land, and to maintain their hold upon the 
 land by such followers so rewarded ; or of settlers who by the 
 strong hand have taken the mastery to themselves, and allow the 
 old owners to cultivate their lands or parts of them subject to service 
 to themselves. The allodial system we are accustomed to regard as 
 exemplified either in the Germans who stayed at home, or in the 
 Anglo-Saxons who migrated in mass ; the feudal, in the Franks, whose 
 dominion was founded in military conquest and held by military 
 tenure. And although other barbarian conquerors, the Burgundians, 
 for instance, and the Visigoths, maintained their hold on the lands 
 they conquered in the same way, still, as the feudal system of 
 history was the result of the Frank conquest and worked out its 
 characteristics most conspicuously in the Frank empire, we do not 
 generally apply the name of feudal to any system but what was 
 either Frank or derived from the Frank, as the Norman in Italy 
 and England. 
 
 It does not, however, follow necessarily that because the land 
 in a particular country is held feudally, the country is governed 
 feudally ; but as a nation's form of government generally, where 
 the nation is independent, is coloured by its political and moral 
 principles, and as these are considerably affected, as we have just 
 seen and as we all know, by the way in which land is held, we
 
 264 SYSTEMS OF LANDHOLDING IN MEDIiEVAL EUROPE 
 
 may be sure that the instincts of government which are peculiar 
 to these tenures, and the capacity which each has of being made 
 the machinery of a system of government, are not thrown away. 
 The system of land tenure is not in itself a governmental system, 
 but as a matter of fact it has generally proved the basis of one 
 
 generally and ultimately, but not without considerable growth 
 
 and modification. Both these principles, then, are German ; the 
 allodial remains distinctly so ; the feudal system, presenting points 
 of analogy to Roman law, becomes modified by it, and that to a 
 degree which has caused the civil lawyers to claim it entirely as 
 their own ; for in Roman law there is a theory called emphyteusis, 
 under which a double title to land is held to subsist, a superior title in 
 the lord and a subordinate one in the holder ; and it is said by the 
 lawyers that we must regard this as the origin of the fief. Com- 
 bine with this double title the practice of commendation among the 
 Germans, by which an inferior placed himself and his land in the 
 protection of a powerful lord, making himself thereby less than free 
 on condition of being supported by a stronger hand than his own, 
 and you get, we are told, the idea of feudalism. 
 
 I do not quite hold this, although I am willing to believe that in 
 many cases such has been the process, in England especially before 
 the Conquest ; but strictly speaking the feudal tie ought to originate 
 in the gift of land by the lord, not in the adoption of a lord by the 
 vassal. The relation, as I said, is one of universal occurrence, and 
 hence I am rather inclined to regard the civil law theory as the 
 Roman version of a common condition, and am quite willing to 
 grant that as the barbarians became acquainted with Roman law, 
 tbey adopted its formulas and translated their own customs into its 
 precise and definite language ; and I also hold that as the relation of 
 clientship subsisted at Rome, it would be as fair to reverse the order 
 of this theoretic combination and suppose the double title to be 
 originally German. But I have said enough of this and on this 
 principle in the other lectures. 
 
 We have now to see how the tenure becomes the key to the form 
 of government"; and first as to theory. We may imagine a 
 government based on the freedom which we associate with allodial 
 ownership : such a government as is drawn in outline in the 
 ' Germania' of Tacitus, and elaborately filled up in Kemble's ' Saxons 
 in England ; ' in which tribal assemblies exercise the powers of 
 judicature, legislature, and military councils ; in which magistracies 
 are elective, and public business the business of every free man. We 
 may imagine a feudal state such as that exhibited in the Assize of 
 Jerusalem, in which all the land is divided in strict subordination 
 between lord and vassal, in which every lord rules and judges his
 
 SYSTEMS OF LANDHOLDING IN MEDIAEVAL EUEOPE 265 
 
 vassals in peace, and leads them in war ; in which the king is 
 supreme lord, supreme judge, supreme lawgiver, supreme general, 
 and supreme politician. In such a condition of things we should 
 say that government was worked altogether by the machinery and 
 on the tenure of land ; but historically, as opposed to theoretically, 
 there are other things to be considered. The alod and the feod 
 may be an exhaustive division of land tenure, but the allodial and 
 the feudal are very far from an exhaustive division of governments. 
 Not only may there, must there be countries in which the two land 
 tenures are intermingled, and in which practical views conflict, and 
 the government is determined by a balance between them ; but 
 the historical German or allodial system of government makes its 
 appearance in a world governed on a totally different plan at the 
 beginning of mediaeval history, and historically the feudal system 
 of government, so far as it has ever existed at all, has grown up into, 
 through, and out of another system quite foreign in origin to it. 
 I mean, of course, the imperial system which the barbarians found 
 governing Europe when they conquered it, and which, when they 
 had taken to themselves the empire, they in a manner adopted 
 and modified and Teutonised, and ultimately feudalised, within 
 certain limits. There is thus another principle or set of principles of 
 government, which belongs entirely to neither of these ideas of land 
 tenure, but which may grow out of either system, or from a balance 
 of the two, in which the managing and regulating power of the 
 nation is placed in the hands of a sovereign or a ministry, who 
 do not owe their position or define it by the possession of land, 
 which may develop out of either system, or may even subside 
 into either, may dispense with the governmental agency or may 
 unite what is useful in both. For such a government, entirely inde- 
 pendent of land considerations, we have to go back to earlier than 
 mediaeval times : in mediaeval and modern times it has grown in very 
 different ways out of feudalism, by the elimination of feudal 
 judicature, legislation, finance, &c, as in England during the Plan- 
 tagenet period, and in an increasing ratio down to the present day : 
 in France it may be said to have been the result of a series of re- 
 actions ending in the military one, which is at present supreme. In 
 general the chances are greatly in favour of tyranny, resulting from 
 the forcible destruction of the old basis ; England alone has a history 
 in which ancient freedom has made its way through, and utilised all 
 that is good in feudalism, widening from precedent to precedent into 
 perfect political liberty. 
 
 But I am becoming too general. I return to the point at which 
 historically feudalism begins to be a system of government. I have 
 said that it belongs to Frank government, that is to the Frank
 
 266 SYSTEMS OF LANDHOLDING IN MEDIEVAL EUKOPE 
 
 empire in its later developments : therefore the geographical extent 
 of historic feudalism is co-extensive with that empire, or extends 
 beyond it only in cases where its system was imported by colonisa- 
 tion and conquest, as by the Normans and the Crusaders. In Eng- 
 land, then, it existed only after the Norman Conquest for a short 
 time. In the greater part of Spain it never existed at all strictly 
 speaking, only a system analogous to it ; but in France and Germany 
 it did exist and, although in different ways, worked out its destiny. 
 We will, then, take France and Germany first and at length, and 
 then say a word about Spain and England. The Frank conquerors 
 both in Gaul and Germany found a system of law and government 
 existing : they found in Gaul the Roman, and in Germany various 
 systems ; in Saxony, for instance, and Bavaria, pure German govern- 
 ments, barbarian if you like, but still systematised, and in the more 
 Romanised regions systems more or less approaching the model of 
 Roman civilisation. We do not imagine that either Clovis when he 
 conquered the Alemanni, or Charles when he conquered the Saxons, 
 repartitioned the whole of the lands or introduced full-grown 
 feudalism ; but they did carve out feudal estates for their chieftains, 
 to provide for the men who had to govern the conquered countries 
 as their representatives : they provided for their followers by the 
 gifts of such fiefs, and where it was expedient to forfeit great 
 tracts of land they planted them with feudal colonies. 
 
 Now, the problem is to trace from these small beginnings of 
 feudalism the growth of a system of government such as I have de- 
 scribed as feudal. How did feudal estates grow into the size and 
 secure for themselves the jurisdiction of imperial provinces or 
 nations, or groups of nations, and finally expel the imperial 
 jurisdiction altogether ; the risk of escheat or forfeiture being the 
 only hold that the central power had on the great feudatories, and 
 the suzerain himself being only primus, and sometimes infimus as 
 well, inter pares ? And how, this growth being thus traced, are we 
 to account for the difference of the result in France and Germany ; 
 in the one ending in complete union, in the other in complete dis- 
 ruption and disunion? These things are among the most in- 
 teresting and not at all the most obscure questions of mediaeval 
 history. (1) The gift of the early benefice bestowed by the Frank 
 chief on his vassal as a reward for faithful service ; (2) the office of 
 an imperial minister employed in provincial jurisdiction ; and (3) 
 the position of an allodial owner living among his own dependants, 
 are in theory three different things, yet in practice the three would not 
 unfrequently be found together. Take, for instance, such a case as 
 conquered Saxony in the time of Charles the Great. Suppose 
 him anxious to maintain his hold on the conquered land by
 
 SYSTEMS OF LANDHOLDING IN MEDIAEVAL EUEOPE 267 
 
 fair means, and that he finds among the chiefs able and well- 
 endowed men willing to be faithful ; or that he marries one of his 
 own retainers to some Saxon heiress, and establishes him as imperial 
 lieutenant in the conquered land. This imaginary vassal will unite 
 the local influence of an allodial or indigenous noble with the bene- 
 ficial or feudal provision of a comzs of the great king, and may add 
 to that the title of an imperial officer. Let the benefice become 
 hereditary, and the chance is the imperial office will become here- 
 ditary too ; the three characters interpenetrate one another, the whole 
 tenure becomes feudal, the jurisdiction becomes hereditary instead 
 of deputed, and the local influence strengthens him still more ; the 
 prince, duke, or count becomes practically irremovable ; and when 
 the central power is removed, which originally set up this provincial 
 power, he becomes independent. And the character of the jurisdic- 
 tion will itself become feudal, that is the duke will judge his vassals 
 not in that he is their king's deputy, but in that they are his own 
 dependants. This was so much the case already even under the 
 Karhng emperors, that they found it necessary to assert their own 
 central jurisdiction by the mission of counts palatine or imperial 
 judges ; but so inveterate is the tendency that these also quickly be- 
 came hereditary and feudal officers, the rivals of the dukes of the 
 nations who had originally possessed a title analogous to their own. 
 
 Now, this became very early the rule in France : the counts and 
 dukes very early became hereditary princes, engrossed all provincial 
 jurisdiction, and reduced their sovereign to a nullity. In Germany 
 it became so more slowly, and other causes were at work to modify the 
 result. And how ? In France all the land was held feudally, and 
 the nation, although its constituent elements were widely different, 
 speedily took a tolerably uniform character. In Germany the 
 allodial ownership of land continued much longer ; consequently an 
 indigenous nobility continued to exist in the midst of their own 
 people ; and the five nations of which the body of Germany was 
 composed grew less and less coherent. Every Frenchman was 
 primarily a Frenchman, but a German was primarily a Saxon or a 
 Bavarian or a Swabian. The ancient tribes of Gaul had under the 
 Eoman domination moreover been ground and welded together, 
 while the nations of Germany had until the conquest by Charles 
 scarcely anything in their history in common, however much they 
 might have in law and language. We might imagine in France a 
 perfect system of feudal government set up at once : we cannot 
 imagine the same in Germany : the disruptive tendency in France 
 grew up from feudalism, and when feudalism became effete the dis- 
 ruptive tendency ceased ; but in Germany the disruptive tendency 
 was anterior to feudalism, and survived it. The indigenous nobility,
 
 268 SYSTEMS OF LANDHOLDING- IN MEDIAEVAL EUEOPE 
 
 the allodial tenure, and the strong sense of national independence 
 existed before the feudal system of government was introduced, and 
 it exists still now that the feudal system has been long extinct. 
 
 Now, there are in the theory of the thing four stages of feudal 
 government, and to one or other of them almost every phase of it 
 may be referred, although every feudal nation does not by any 
 means go through all the stages. In the first of these we may 
 suppose every lord and vassal doing their duties to one another 
 without infringement of right or dereliction of duty. In the 
 second we may suppose the vassals to have taken advantage of the 
 weakness of the central power, to render themselves independent in 
 all but name, and possessed of entire jurisdiction, the right of private 
 war, coinage, and other powers belonging properly to sovereignty. 
 In the third we suppose that the central power, which is in every 
 conceivable case the longest-lived, and has at its weakest some power 
 of manipulating the vassal states by escheat and perhaps marriages 
 also, has succeeded in creating for itself a real dominion, is able to 
 engross to itself jurisdiction and all the other powers of which we 
 have seen it deprived, and, in fact, to create a tyranny. A fourth 
 state is when the subjects of this absolute prince have compelled 
 him to give way to constitutional restraints, and have vindicated for 
 themselves constitutional rights. When this is the case feudalism 
 will remain only, as in England, a machinery of land tenure. 
 
 Now, as to the first of these stages, we may say that it existed 
 perhaps in Germany under Frederick Barbarossa, and he had some 
 difficulty in maintaining it ; in theory perhaps it existed even in 
 France under the Karlings. The second stage existed in France from 
 the tenth to the thirteenth century, when Philip Augustus and 
 St. Louis began to absorb the great fiefs : in Germany it was the 
 normal condition of things from the deposition of Frederick II. in 
 the council of Lyons. It was never so in either Spain or England, 
 but it was so in Italy almost continuously from the break-up of the 
 Eoman empire ; but in this last case it was not owing to feudalism, 
 the feudal character was superinduced on the original condition of 
 disunion, and we may leave it out of the calculation. The third 
 stage was arrived at in France under Louis XL and continued 
 without much change to the Revolution : if it ever existed in 
 England, it was under John. And the fourth stage is peculiar to 
 England, in which kingdom only has constitutionalism worked its 
 way out of feudality ; but even here we must make the exception 
 that feudal government, strictly so called, never existed in England 
 at all ; it was rather that the national spirit worked itself free of 
 trammels that were feudal in character, and might have enslaved it. 
 I connect, then, the distinction between French and German history
 
 SYSTEMS OF LANDHOLDING IN MEDIAEVAL EUEOPE 269 
 
 with the difference of the degree in which, first, the constituents of 
 the population were amalgamated, and, secondly, the institutions of 
 the constituent races maintained their ground, the index of which is 
 allodial tenure, with the continuance of an indigenous proprietary 
 and system of law. In short, France under a feudal government 
 breaks up into hereditary principalities which only require escheat 
 to unite them ; Germany, a collection of four or five distinct nations, 
 unites under a thin superficies of feudalism to break up for all 
 history into its original constituent tribes. And I believe that this 
 might be exemplified at length by a comparison of the different parts 
 of Germany, and that I could show how strongly the Saxons and 
 Bavarians retained their peculiar and contrasted policy ; how each 
 had its own attitude to the empire or imperial centre, and how in 
 each this feeling varied with the rise or extinction of the allodial 
 nobility. Henry the Lion of Saxony was a great feudatory, an 
 imperial deputy, and an allodial prince ; and his attitude towards 
 Frederick Barbarossa was distinctly that of the Saxon nation from 
 the time when they ceased to give an emperor to the empire, that 
 is since the middle of the eleventh century. 
 
 England before the Conquest retained the allodial tenure of 
 land with such modifications as grew naturally out of it by the 
 processes of commendation and subinfeudation, as princes grew 
 powerful and received independent landholders as their clients, or as 
 they divided their overgrown estates among their children and 
 dependants. The truth of this statement would not be affected if it 
 were true that not an acre of land was held allodially in England 
 in the reign of Edward the Confessor ; for the results I have men- 
 tioned grow naturally, and are not properly or historically termed 
 feudal, though in the eye of the law they come to the same thing. 
 The feudal tenure of land was historically a result of the Conquest, 
 when the Conqueror and his successors took to themselves the 
 ultimate title, and the custom grew up and prevailed that all land 
 was held either mediately or immediately of the king : the state of 
 things under Canute and Edward no doubt rendered the change 
 easy, but the change came all at once and did not grow up out of 
 those circumstances. One result of the Conquest was the extinction 
 of allodial tenure, although many of the customs connected in idea 
 with it continued. Unless, then, William had been very careful in 
 his policy with respect to his vassals, this universality of feudal 
 holding might have introduced a general feudal judicature, and 
 feudal government with its universal disruptive result. But 
 he avoided this, as is well known, by distributing the fiefs of his 
 great feudatories over widely extended districts, in which no very 
 considerable continuous tract belonged to one noble ; by dividing
 
 270 SYSTEMS OF LANDHOLDING IN MEDIAEVAL EUROPE 
 
 the offices of provincial administration from the possession of feudal 
 estates, and hy retaining the ancient laws and methods of pro- 
 cedure in the law courts. He knew what feudal vassalage was in 
 France, and would have nothing of the kind in England. The 
 object of the feudatories during the reigns of William Rufus and 
 Henry I. was to emancipate themselves from these checks, to unite 
 great continuous estates, to make provincial jurisdictions heritable, 
 and to establish feudal customs in the courts ; and in the anarcby 
 of Stephen's reign they succeeded in a measure, and every baron, 
 as the chronicler tells us, was king in his own castle : he coined 
 money, judged, tortured, taxed, and hanged his dependants, and 
 fought private wars with his equals. But Stephen's reign was 
 short ; the estates of the barons were not large enough to enable 
 them to resist the uniting policy of a strong sovereign, and their 
 anarchy and pretensions were put an end to by Henry II., who 
 pulled down their castles, abolished their coinage, and by the 
 mission of his judges altogether superseded in important causes 
 their jurisdictions. Under him, too, many of the great Norman fiefs, 
 either by escheat or forfeiture, fell in, and he was able to create out of 
 them a new ministerial nobility, which readily recognised the central 
 authority and its duty of supporting and guiding the people. It was 
 this nobility that armed against the kings John and Henry III. when 
 they were disposed to misuse the authority that Henry II. had won 
 for them, and preserved, or rather developed, the constitutional 
 liberties of Englishmen from the combination of all that was free 
 and living in the older system with what was uniting and forbearing 
 in the feudal. So it came to pass that in England there is and has 
 long been feudal tenure, but not feudal government. The judicature 
 of the country is developed from allodial Anglo-Saxon, Teutonic in- 
 stitutions ; the representative system has arisen out of the judicial ; 
 and the power of taxation, legislation, and political deliberation of 
 the nation has been vindicated and exerted through the representative 
 system. 
 
 But this is to anticipate. You will mark how, the ancient tenure 
 ceasing, the ancient institutions by the policy of William the Con- 
 queror and Henry II. survive. They place, in fact, a feudal super- 
 structure on an allodial substructure ; they take the strongest and 
 most cohesive parts of each, and make their pyramid strong through- 
 out with the king at the apex. As England, never having been part 
 of the Frank empire, escaped altogether the evils of feudal govern- 
 ment, and only tasted the fruit of the system at all by a sort of 
 violent dose administered by the Normans, so Castille also escaped 
 the horrors of historic feudalism. Yet there was very much in the 
 land system of Castille during the middle ages that closely re-
 
 SYSTEMS OF LANDHOLDING IN MEDIEVAL EUEOPE 271 
 
 sembles feudalism. Castille had in great measure to be conquered 
 from the infidel. The conquests so made were bestowed on barons 
 to be held feudally — that is, with the duty and burden of defence — 
 and this system grew up into something like general usage. But the 
 same causes that in England prevented the further steps worked in 
 Castille. The fiefs were scattered and the central administration 
 strong ; the barons were strong enough to thwart and overwhelm 
 the royal authority, but never strong enough to oust it altogether ; 
 while the system of the Cortes, which, as we shall see, rested funda- 
 mentally on the royal charters of privilege, not on the feudal tenure 
 of the land, had a tendency to deprive the great nobles even of what 
 might seem their legitimate share of administration. This country 
 lies, then, very much outside the scope of our present discussion. 
 And perhaps Aragon scarcely less so, for although the land tenure 
 is feudal, and the composition of the Cortes also feudal, the terri- 
 tory is too small to allow of rival principalities existing ; nor is there 
 in Aragon that contrast of feudal and allodial tenures which existed 
 in England and Germany, and probably also in Castille. The ten- 
 dency in Spain was not at any time to disruption : although the 
 kingdoms were long in uniting, they were distinct in origin, and 
 long maintained their separate condition and their separate institu- 
 tions. The kingdom of Aragon contained, for instance, three sub- 
 kingdoms or provinces : Aragon proper, Catalonia, and Valencia ; 
 and these each had its own Cortes, and did not unite like the 
 German states, which also had distinct provincial assemblies, in a 
 single diet, or like the French in the States-General. But the 
 absence of a disruptive tendency is not equivalent to the presence of 
 an amalgamating one. It was seven centuries from their foundation 
 before the kingdoms became permanently one ; and even when so 
 united they retained their distinct constitutions. When they united, 
 it was by a royal marriage, not by a movement of political sympathy 
 or by an exertion of central authority. 
 
 But in these remarks I am straying away from the point in dis- 
 cussion, which is but little illustrated by the history of Spain at all. 
 Whether the influence of Teutonic customs originally connected 
 with land tenure, and long preserved in Spain — preserved, in fact, 
 until the advance of the principles of absolutism and the practice 
 of the civil law together wiped out all that was Teutonic in the 
 Spanish institutions — may not have contributed to give somewhat 
 of the sturdy independence and self-possessed dignity that is said to 
 be the character of the pure Spaniard, quite as much as the conscious- 
 ness of the long battle that his people had to wage for very existence 
 against the Moors, and quite as much as the extensive privileges 
 by which the kings sought to interest their subjects in the acquisition
 
 272 SYSTEMS OF LANDHOLDING IN MEDIEVAL EUROPE 
 
 and maintenance of new territory, I do not know sufficient about 
 Spain and Spanish character to enable me to say ; but if we may 
 believe the statements of legal writers such as Palgrave and Hallam, 
 and the recondite authorities on which their conclusions were based, 
 I should hold that this was not by any means unlikely, nay, that it 
 was probable in the highest degree that a nation which was so 
 isolated from Teutonic influences, and so formed and affected by 
 others quite foreign to them, and yet retained its Teutonic customs 
 for so many centuries, must have been very tenacious of its nation- 
 ality, and most likely to gather from those customs all the strength 
 and nerve that the nationality itself possessed. Its tenacity and the 
 nature of that of which it was tenacious must have combined to give 
 it an air of self-possession and self-respect.
 
 XV 
 THE EARLY EUROPEAN CONSTITUTIONS 
 
 We are now come to a point at which we shall be able, I hope, to 
 utilise the speculations that we have gone through — to that point of 
 constitutional history to which the name is frequently, but wrongly, 
 as I conceive, appropriated, the department of government ; and 
 I propose to give this lecture to the consideration of the upper 
 range of government, the king and his highest class of counsellors, 
 leaving the later and lower developments, such as the origin of repre- 
 sentation and the origination of bodies to be represented, to another 
 lecture. We have seen, if not explicitly, by inference that in all the 
 mediaeval European constitutions of which we are taking cognisance, 
 the ruling people is Teutonic, the Anglo-Saxon, the Frank, the 
 Visigoth, and the German generally. We look, therefore, in this 
 highest range of personnel for German institutions least modified 
 by Roman ones ; and even where we do find coincidences in this 
 latitude between Roman and German, we incline to ascribe the 
 actual origin of the questioned point to a German source. We begin, 
 then, with the king, and ask, what is the origin and the limit of his 
 power, what are his actual powers, and where are they circumscribed ? 
 Now, a king in the old Teutonic sense was not an irresponsible ruler, 
 nor an unlimited one ; he was at the top of the social scale, but he 
 was not supreme as regards influence, either in war or in judicature ; 
 he did not name the magistrates who acted under him, nor could he 
 determine without check the policy of his people ; he was not the 
 primary landowner as in feudal times, nor the head of the religious 
 system, nor the generalissimo, nor the fountain of justice. Nay, 
 although he was a very desirable and influential appendage to a 
 state, he was not indispensable. Although in the time of Tacitus 
 most of the Teutonic nations — not all, for he mentions some tribes 
 especially as qua regnantur — had kings, by the time of Bede many 
 of them had found out, as the states of Germany have constantly 
 found in modern times, that they could do very well without 
 one, and that the whole machinery of their simple polity could 
 work without a head. This is very different from the Roman 
 
 T
 
 274 THE EAKLY EUEOPEAN CONSTITUTIONS 
 
 imperial system, in which the emperor stood alone, irresponsible and 
 without limit to his power ; separated, however, not the less from 
 the older machinery of government, the senate and the popular 
 assemblies, or only united to it by the frail link of the Lex Regia, 
 the supreme lawgiver and supreme judge. Still less does it resemble 
 the feudal idea, in which the king is the sole and supreme landowner, 
 general and judge, the source and fountain of justice and the 
 supreme politician. Nor can we trace the feudal idea to a combina- 
 tion of the two. The feudal king historically owes his character to 
 the fact that he superadded to the functions of the old Teutonic 
 king those of the successful herzog or leader of armies, and elimi- 
 nated in the increase of his power the old Teutonic checks ; he came 
 into a new land and left behind him many of the most precious 
 institutions of his fathers ; his servants become his counsellors, his 
 word becomes, with certain limitations, law. 
 
 The first point to be considered is the selection of the king, and 
 by corollary from it the power of deposition. Tacitus tells us the 
 principle : lieges ex nobilitate sumunt : that is, first, the kings are 
 chosen, they do not succeed by right ; secondly, they are chosen 
 ex nobilitate, that is, for descent ; in other words, they are elected 
 out of a single noble house or group of houses — noble, as we know 
 from later history, by a presumed descent from the gods, from 
 Woden as in England, or perhaps from some other-named imper- 
 sonation of Woden's attitudes in other lands. 1 This restriction of 
 selection accounts for the extinction of royalty in some of the 
 German tribes of which Bede speaks, the semi-divine house died out, 
 and the people found they could get on without one ; of course only 
 for a short time, for in peace some neighbouring king would always 
 be happy to annex or revendicate ; and in war, if a dux or herzog 
 had to be chosen, he would not rest, as the mayors of the palace did 
 not, until he had the name as well as the substance of sovereignty. 
 The same was the case in England in one or two cases — in North- 
 umbria, and especially in Kent, where the royal house died out — and 
 after an interval of anarchy the kingdom was annexed. Within this 
 family, then, the king had to be chosen, in England a son of Cerdic ; 
 among the Goths an Amal ; among the Franks a Meroving or a 
 Karling. The tendency under the circumstances is always (1) to a 
 gradual extinction of the semi-divine house ; (2) to the trans- 
 mission of the chieftainship from father to son. Jealousy of power 
 and frequent intermarriages tend to extinguish a family every 
 member of which may be rival to every other ; and if the king fives 
 out his life, he has, in nine cases out of ten, a son to leave behind 
 
 1 Select CMrters, p. 56.
 
 THE EARLY EUROPEAN CONSTITUTIONS 275 
 
 him who is fitted by education and an inchoate possession of power 
 to fill his place. The tendency is thus to hereditary government, 
 and the son will scarcely ever be set aside if he be grown up and not 
 labouring under some disgraceful defect. That rule we see operates 
 in all these states. In England, even under the Heptarchy, it is the 
 rule, with very occasional exceptions ; and after the consolidation of 
 the kingdom it is the rule with only such exceptions as are necessi- 
 tated by the difficulties of the case. If Alfred succeeds, to the 
 detriment of his nephews, and Eadred, to the damage of the children 
 of Edmund, you must remember, first, that those children were 
 minors ; and, secondly, that it was a time of war and trouble, 
 while against these we have the case of Ethelred to set, a minor 
 and the son of a murderess. In the former cases the nation wanted 
 a leader as well as a king ; when they only wanted a king, the claim 
 of the child Ethelred was admitted. So also in the case of Harold, 
 although there they went out of the house of Cerdic to seek for one. 
 Now, in France you do not find this except in the great cases of 
 change of dynasty, when the Karlings set aside the Merovings, and 
 the Capetings set aside the Karlings ; the descent was hereditary 
 because the mayor of the palace supplied the place of the herzog or 
 leader, and the king was a cypher. Son succeeded father. In the 
 imperial succession in Germany it was the same, except in one or 
 two later cases down to the extinction of the house of Hohenstaufen, 
 when the empire became a burden rather than a prize. The Saxon 
 house from Henry the Fowler went on to Otto III. and Henry II. ; 
 the Franconian followed, when the Saxon became extinct, repre- 
 senting it, however, in the female line. So on the death of Henry V., 
 after the intercalation of a single reign, the Hohenstaufens enter 
 representing the Franconian house, and hold the sceptre for four 
 generations ; nay, in the empire so far is the elective system, until 
 the middle of the twelfth century, liable to be overridden, that the 
 dying emperor sometimes names his successor, and that not always 
 his own son. In Spain the case is different. The theory of election 
 and the practice of hereditary succession were broken into by frequent 
 revolution and usurpation : the chiefs supplant the king by a chosen 
 leader, and the king, instead of being superseded as in France by a 
 nominal servant, is murdered or sent to a convent. With all this 
 distinction, however, the theory of election remains, and in form and 
 ceremony subsists, in England at least, to the present day. With 
 the introduction of Christianity an ecclesiastical sanction is added 
 to the simple act of choice ; and with the influence of feudalism a 
 further recognition and the renewal by the vassals of the oaths of 
 homage and fealty. These three things are part of our coronation 
 service, and although the crown is now and has been for ages 
 
 t 2
 
 276 THE EARLY EUROPEAN CONSTITUTIONS 
 
 hereditary in certain lines, they are legally necessary to the full title. 
 Until the reign of Edward I. the idea of the heir becoming king on 
 his father's death was unheard of, unless a previous election had 
 been made of him. Henry II. and Richard I. and John are only 
 dukes of Normandy and lords of England until they are elected, and 
 then crowned, and finally have homage done to them. Hence the 
 extreme solicitude of the Norman kings to have their sons recognised 
 before their deaths ; the great pains taken by Henry I. to secure the 
 crown to Matilda and her son ; Henry II. 's securing of the succession 
 to his sons William and Henry in their infancy, and his refusal 
 until he was dying to allow the same to be done for Richard. The 
 succession of John can hardly be regarded otherwise than as a 
 usurpation. 
 
 And we may add a further parallel to this. The kings of France, 
 for several generations, did not content themselves with obtaining 
 the succession for their sons, but actually had them crowned and 
 admitted to a partnership of power. Philip I. so shared the power 
 of Henry I., Louis VI. was king seven years with Philip I., 
 Louis VII. was consecrated king at Rheims six years before the 
 death of Louis VI., and Philip II. was actually sole king before the 
 death of Louis VII. Henry II. tried the same plan in England by 
 having his son crowned, and although it turned out fatally for him, 
 still the plan was in itself not an unreasonable one. It prevented a 
 disputed succession, and it also prevented the recurrence and pro- 
 longation of the periods of anarchy between the death of one king 
 and the proclamation of peace by his successor, which occurred once 
 or twice in England, to the great suffering of the people and damage 
 of the royal influence. This plan of securing the succession was 
 probably imitated from the Byzantine court, in which it was usual 
 to have two or three co-ordinate emperors ; it had been adopted also 
 by the Karlings, and at a later period became the rule in the 
 Germanised empire, the heir of the possessions of the reigning 
 emperor becoming by election king of the Romans and coadjutor with 
 the right of succession ; not to be set aside, therefore, although not 
 fully recognised until coronation at Rome made him sole emperor. 
 Against this the German princes struggled as long as the imperial 
 title conferred any substantial power. Though the emperor was 
 called emperor and king, he was in reality also the elected general, 
 the herzog of earlier days, to the perfectness of whose character it 
 was necessary that he should be elected for a fitness which could not 
 be hereditarily transmitted ; nor as a rule was a man allowed to 
 become king of the Romans who had not shown himself possessed 
 of some of the qualifications, or the promise of them, that befitted 
 a future emperor. The idea of the military fitness, of the character
 
 THE EARLY EUROPEAN CONSTITUTIONS 277 
 
 of the herzog chosen ex virtute, as Tacitus says, as well as ex 
 nobilitate, may also be supposed to enter into the idea of homage 
 paid by the feudal vassals to the newly crowned king ; it had become 
 a condition of the tenure of their lands, but the oldest theory of 
 land tenure of the kind was that of the comites or companions of 
 the successful general, not merely of the king ; for the herzog they 
 fought, and by him out of his domain they were provided for. 
 Probably the idea, which might be historically worked out, never 
 occurred to a single one of them throughout the middle ages. As 
 the homaging, however, it may have been considered, was in its very 
 nature the act of the warriors of the nation, the coronation, unction, 
 and consecration were in their history and theory ecclesiastical. It 
 was the bestowal of the power, or the recognition of the bestowal of 
 power from above, as the election and homaging were from beneath. 
 Into the origin of it I cannot go ; it may have been taken from 
 Scripture history, or it may have been one of the universal customs 
 of antiquity ; but it is the same throughout. The emperor must 
 receive the crown of Germany at Aix-la-Chapelle and the imperial 
 crown at Eome ; the king of France must be crowned and anointed 
 with the heaven-descended oil from the sacred ampulla at Rheims ; 
 the king of England must be crowned by the archbishop of Canter- 
 bury, and in later times necessarily at Westminster, and on the 
 sacred stone which had been Jacob's pillow at Bethel. Each king- 
 dom had some sacred relic which formed part and often the typical 
 part of the regalia. The iron crown of Lombardy was made of the 
 nails that fastened our Lord to the cross ; the lance of St. Maurice 
 was the sign and token of the royalty of the kingdom of Aries ; the 
 spear of Constantine was given to Henry the Fowler with the king- 
 dom of Germany ; so in England there is still St. Edward's crown, 
 and in Hungary that of Stephen. 
 
 But a more important part of the office by which the consecration 
 was conferred was the oath taken by the king to govern well and 
 do justice. This is found in the earliest pontificals in the form of 
 an adjuration or an exhortation, but it early assumes the character 
 of an oath, a compact with God and the people to maintain peace 
 and to do justice. It is emphatically a limitation of irresponsible 
 power, imposed before the responsible power is conferred ; for the 
 king is not king until he is crowned, nor is he crowned until he has 
 taken the oath. Our own coronation service is in origin the oldest 
 in Europe, that of France being taken from it ; in it the archbishop 
 exacts the oath in a twofold character, first as high priest, and 
 second as chief of the king's counsellors ; he represents for the time 
 both God and the people, and the theory of the oath is that it is to 
 God for the people. I need hardly remind you how much import-
 
 278 THE EARLY EUROPEAN CONSTITUTIONS 
 
 ance this position of the primate has occasionally assumed ; the case 
 of Lanfranc and William Eufus is enough : then we know that not- 
 withstanding William the Conqueror's bequest of the crown of 
 England, William Eufus could not obtain it until he had taken to 
 Lanfranc the three oaths, Justitiam cequitatcm et miscricordiam in 
 omni re servaturum ; pacem libertatcm securitatem ecclesiarum 
 contra omnes defensurum ; prceceptis atque consiliis ejus per omnia 
 et in omnibus ob temper aturum, 1 which so long as Lanfranc lived he 
 compelled Rufus to keep, though he broke them all once and for ever 
 as soon as the archbishop was dead. So Archbishop Theobald 
 secured the succession of Henry II. Thomas Becket, on the ground 
 of the primate's right of crowning, upset the whole policy of the 
 same king, lost his own life, and posthumously avenged his own 
 death. So Hubert Walter, in a speech of truly Teutonic freedom, 
 obtained the election of John ; and Stephen Langton, a true English- 
 man, although a papal nominee and a cardinal, secured the rights of 
 the child Henry III. 
 
 I need hardly, except as a matter of archaeology, refer to the 
 claims put forth by Henry of Blois, that the crown of England is 
 the special gift of the church ; or that of the monks of Canterbury, 
 that it was their privilege and right to bestow it. But these matters 
 are of interest when you compare the theory of the thing with the 
 theory of the present day, when the king of Prussia crowns himself, 
 or of that of Napoleon Bonaparte, who, having dragged the pope to 
 Paris to crown him emperor, took that honour unto himself without 
 a call, and set the crown upon his own head. The coronation had 
 anciently always a religious connection : even when the emperor by 
 his word recognised a duke as a king, such as in Bohemia, Hungary, 
 or Armenia, the pope sent the crown, and the pope sent crowns 
 to the anti-Csesars in a more venturous way and with less happy 
 results. 
 
 Connected with the question of election is that of deposition. 
 I have not said anything yet about the people who were supposed to 
 have the right of electing the king ; but it now becomes necessary 
 because only they could have the right to depose who had the right 
 to elect. No doubt anciently, prehistorically, when the German 
 kingdoms were small and education and rank pretty equal, the 
 election was made by the people ; in theory all the people, but as 
 the hereditary principle prevailed and there was less occasion for 
 speculation or room for competition, the election, which was often 
 only the recognition of a previously settled arrangement, devolved 
 on the wise men of the race : after the feudal system prevailed, 
 
 1 Select Charters, p. 92.
 
 THE EARLY EUROPEAN CONSTITUTIONS 279 
 
 when it was necessary to depart from the hereditary succession, it 
 fell to the feudal baronage and the prelates ; and as parliament in 
 England has succeeded to that position constitutionally, it has been 
 settled by parliament. In Germany the crown was settled by the 
 nations first, speaking through their dukes, then by the dukes 
 themselves, and lastly the electoral body composed of three prelates 
 and four electoral princes, the same composition of clergy and barons, 
 although on a much restricted scale. In France and Spain the suc- 
 cession has been strictly hereditary since the beginning of the historic 
 middle ages ; and although there have been disputed successions, the 
 strong hand has generally decided them. In the great changes in 
 the Frank sovereignty, that from the Merovings to the Karlings, and 
 that from the last French Karling to the house of Hugh Capet, 
 although there was unquestionably some process of election gone 
 through, as well as the process of deposition, the acceptance and 
 confirmation of the new aspirant by the nation and by the pope 
 occupy a more prominent part in history than the election. We can 
 easily see how that is ; few kings have ever been deposed for their 
 own demerits unless there were some prominent person at hand to 
 push the measure and take advantage of it. He is strong enough to 
 prevail on the nation to depose his predecessor, but the element of 
 choice does not come much into the acceptance of the successor, a 
 point which I think is worth observing throughout modern as well 
 as mediaeval times. As a matter of fact, then, we may allow that 
 the same persons or powers that could choose a king for a nation 
 could also depose him ; but it does not follow that in the received 
 theory of the kingship any such provision was contemplated, or that 
 the right was ever regarded as a part of the common law of any 
 country. It was not, so far as I am aware, a part of any mediasval 
 constitution that the king was responsible to his subjects for his 
 good behaviour. There is no doubt that if it had been so, much 
 bloodshed might have been spared, and much tyranny that was 
 patiently endured for fear of civil war would have been effectually 
 prevented. But it was not, the person and office of the king were 
 always sacred. When it was necessary to get rid of him, the dagger 
 or the poison cup was the easiest and most efficacious way ; or a 
 forced submission to monastic vows, which involved for all classes 
 alike a civil death. Otherwise the change of a ruler was both in 
 fact and in theory a revolution ; and a revolution is a thing not pro- 
 vided for in any constitutional system. It is a suspension of the 
 constitution, be the constitution rough or thoroughly and definitely 
 organised. 
 
 We cannot afford to run through all the cases of deposition in 
 detail, but take them together : the many changes in the sovereignty
 
 280 THE EARLY EUROPEAN CONSTITUTIONS 
 
 of the Visigoths were simply usurpations : the successful usurper 
 put his predecessor out of the way, and the council of the kingdom 
 received him as successor, elected him if you please to say so, but 
 elected him because there was no one strong enough to compete with 
 him : the whole proceeding, so frequently repeated, was one of force, 
 and cannot be pleaded on constitutional grounds. In France, the 
 setting aside of the Merovings and Karlings on account of their 
 faineancy was quite justified by the facts ; but, as I just said, the 
 necessity was made to appear only by the urgency of the new 
 competitor. In England between the union of the heptarchic 
 kingdoms and the Conquest there was only one case, that of 
 Ethelred the Unready, who was deposed by the witenagemot of 
 England in order to make room for Sweyn, who had virtually con- 
 quered the country, and who, if he had not been elected, would 
 have easily dispensed with the process. This case is one, if not 
 of revolution, of conquest. Nor can I allow that either the case 
 of Edward II. or that of Richard II. can be regarded as legally 
 justifiable. There was in neither case a simple act of deposition 
 uncomplicated by actual treason or rebellion : in neither case was 
 there fair trial : in both the subsequent murder of the deposed king 
 must be regarded as a proof that the usurping successor was not 
 satisfied with his constitutional title until his predecessor was 
 destroyed. In point of fact the obtaining of a fair trial for a king in 
 the condition of either Edward or Richard was impossible : when a 
 king has fallen so low that he is liable to be tried by his subjects, he 
 has fallen too low to expect fair treatment ; but he cannot fall so 
 low as not to be dangerous as long as he lives, and thus death is 
 the natural consequence and supplement of the deposition. 
 
 This, then, is what I conclude with regard to England : the theory 
 of deposition may exist involved in the theory of election ; but the 
 power has never on that ground been constitutionally used, it is 
 not in the nature of things that it should be. The only case in 
 which it is conceivable that it would be is the case of insanity, and 
 there may have been insanity in Richard II., although he was not 
 deposed for it. In such a case there would generally in modern times 
 have been not a deposition, but either a regency or a devolution by 
 the mad king, or his counsellors acting in his name, on the next heir 
 if one was at hand, or if not on some able and prominent noble 
 willing to conserve the succession for the lawful heir. So it was in 
 the insanity of Henry VI. : the arrangements for his lunacy were 
 strictly provisional ; nor was his deposition broached. His sub- 
 sequent deposition is quite a distinct matter, the cause alleged being 
 usurpation not lunacy, and the whole proceeding violent and 
 revolutionary, to a greater degree than was the case with either
 
 THE EAKLY EUKOPEAN CONSTITUTIONS 281 
 
 Edward or Richard. The proceedings against Charles I. were not 
 only revolutionary, but in the very highest degree illegal and uncon- 
 stitutional : they may be justified, by those who take the opposite 
 view, by necessity, or by the declaration that the case was one for 
 which the constitution had not provided, and that there is an 
 expediency and a necessity above both law and constitution, but no 
 special pleading can justify the sentence of death passed on Charles. 
 The revolutionary proceedings in James II. 's case I need not go into : 
 the question is not, has the constitution provided for a deposition ? 
 but, have the transgressions of the prince reached such a pitch as to 
 justify revolution ? There is in the selection of a king, or in the 
 acceptance of an hereditary succession to a dead one, in the form of 
 election or in the homage of the vassals, or in the oath of allegiance 
 of a free people, and in the coronation oath of the king, an express 
 compact of obedience on the one side and justice on the other : each 
 makes the promise to cleave to the other, and the coronation and 
 consecration were regarded as the sealing by God of a compact that 
 was indissoluble except by death. The breaking of the compact by 
 either might morally justify the other for the dereliction of his 
 part, but neither could abolish the Divine sanction : the king might, 
 however, shirk the difficulty by abdication, which was of course a 
 mutual renunciation of it. Such a condition of the relation may be 
 held to justify the deposition of a king, and in some cases it certainly 
 does so. 
 
 Turning to Germany, we find the question complicated by other 
 influences than constitutional ones : one especially is the claim of 
 the popes to ratify the election of an emperor ; another is the com- 
 plicated character of the emperor himself as emperor and king of 
 Germany ; and another the equally complicated law of election, 
 which rendered it almost impossible to produce a title in which no 
 jurist could find a flaw, and consequently the deposition would be 
 rather a declaration of nullity than an actual deprivation. The case 
 of Charles the Fat is an exception to this generalisation, but then it 
 falls outside of the period during which we can look at the imperial 
 dignity, as thus complicated by election, papal acceptance, and the 
 German kingship. Charles the Fat certainly was deposed, but he 
 was insane, and it was necessary that his person should be under 
 restraint : he was not set aside in favour of any pretender. It was an 
 act of necessity, and may perhaps be regarded as an instance of the 
 exercise of an admitted right on the part of the nations over which 
 he claimed to rule. If you just run through the list of deposed or 
 deposable emperors after the reconstitution of the empire by Otto I. 
 you will see what I mean about the complication. Henry IV. was 
 deposed, but by whom ? By the pope assuming to dissolve the tie
 
 282 THE EARLY EUROPEAN CONSTITUTIONS 
 
 which God had been held to sanction at the coronation at Aix-la- 
 Chapelle, and denying to the king the character of an emperor, which 
 indeed he had never duly received. True, there was a party, a large 
 party, in Germany that accepted the papal release ; but the influence 
 of a pope so exerted is not an element considered in the compact 
 between a king and his people. The pope could deny the title of the 
 emperor, and could absolve his subjects for a breach of their oath, 
 but that did not constitute legal deposition, nor as a matter of fact 
 did legal deposition often result from such a mixed procedure. 
 Like complications affect the cases of Otto IV. and Frederick II. 
 Otto IV. was first the favourite and then the victim of the popes, 
 and they succeeded in depriving him to a large extent of the status 
 into which they had helped to force him. But Otto's election was a 
 disputed election, and it is questionable how far he can be regarded 
 as having ever received the acknowledgment of the German 
 people. The pope had crowned him, it is true, but the mere word of 
 the pope could not uncrown him : in this case you get the threefold 
 complexity — uncertainty of original title, complication between the 
 offices of emperor and king, and complication between the pope's 
 claim to confirm the imperial election and his claim to release 
 nations from their allegiance. The deposition of Frederick II. by 
 Innocent IV. is a simpler matter, but equally out of the pale of 
 constitutional law : historically you can but view it as a piece of 
 ecclesiastical assumption, which was taken advantage of by the mal- 
 contents of Germany to bring about their own revolutionary ends. 
 
 But as we proceed we do find cases more colourable : that of Adolf 
 of Nassau for instance, and that of Wenzel, one at the end of the 
 thirteenth and one at the end of the fourteenth century. These 
 cases are free from the papal complication ; Adolf and Wenzel were 
 only kings of the Komans or kings of Germany, not emperors. 
 Adolf, by his want of management and unprincipled conduct, had 
 incurred the hatred of the princes who had chosen him ; and Wenzel, 
 by his drunkenness and neglect of Germany, had justified the same 
 feeling generally ; and in the latter case there was no prominent 
 candidate for the position that Wenzel forfeited. In both these 
 cases — and they are very exceptional — I think the diet and electors 
 acted fairly and justly ; and in neither was deposition followed by 
 murder, as in England and Spain. Adolf fell in battle, and Wenzel 
 enjoyed many years more of tyranny and revelry. The case of 
 Lewis of Bavaria is one of the most complicated imaginable ; it was 
 a disputed election, it had no papal sanction : the coronation was by 
 an anti-pope ; the empire was divided, it was indeed practically as 
 well as legally in abeyance. These cases of Adolf and Wenzel are 
 the really important ones because in them the process was not
 
 THE EAELY EUEOPEAN CONSTITUTIONS 283 
 
 revolutionary, but steady, fair, and legal ; putting together the facts 
 that at these times the imperial dignity was really elective, and the 
 depositions legally carried out, you have the strongest cases of the 
 inter-relation of the two rights. 
 
 Now, although I cannot, as you will see, hold so strongly as some 
 historians do, the actual right of subjects to depose bad rulers, as 
 being an explicit constitutional right, I am far from disputing the 
 necessity and expediency of such processes : only I believe them to 
 be cases supra legem and extra legem. But there were some peculiar 
 cases in which the subjects had on their king a constitutional hold 
 that almost amounted to the same thing : a conceded right on the 
 part of the king that if he failed to do his duty in certain matters, 
 his vassals might compel him to do it by force of arms. This right 
 you will find in Magna Carta, not as a general stipulation, however, 
 only as a provision for the carrying out of that particular agreement ; 
 and Magna Carta has it not as a charter, which it is primarily, but 
 as a treaty between John and his barons, which it is virtually, as 
 may be seen if you look for a moment at the articles presented by 
 the barons and prelates on which it is founded. It was a treaty 
 made after a struggle ; and like every treaty of those days it contained 
 a provision for the machinery by which its execution was to be 
 enforced. You will find, in the treaties for instance of Henry II., a 
 certain number of bishops and barons always introduced as sureties, 
 who swear that if their king fails to perform the obligations he 
 enters into in the treaty, the barons will renounce his allegiance and 
 the bishops will put his lands under interdict until he complies. 
 Now the clauses in Magna Carta are not so strong as this, but they 
 do provide that the execution shall be put in the hands of twenty- 
 five barons, and, if the king or his officers shall transgress the charter 
 and persist in transgression after due remonstrance, then the twenty- 
 five, with the communa of the whole land, shall distress and 
 aggrieve the king by all means in their power, by seizing his castles, 
 lands, and property until they shall receive amends, ' saving the person 
 of the king and queen and their children.' 
 
 Now, I do not know of any other case in English history in which 
 this implement was used, but it was quite reconcilable with the 
 feudal theory of mutual obligation. Here, however, it is a concession 
 by the king for a particular emergency : the barons acted on it : John 
 did transgress : they rebelled and renounced allegiance, going so far 
 as to bring over Louis, the crown prince of France, as a rival to 
 John. This looks like a rough exercise of constitutional right, as 
 exceptional as were the circumstances of John's election to the 
 crown ; but the origin actually of the right and its justification must 
 be sought in that executory clause of the charter. Now with this
 
 284 THE EARLY EUROPEAN CONSTITUTIONS 
 
 you must compare the privilege of union of Aragon, which was 
 granted by Alfonso III. in 1287, and was not abolished until 1348. 
 This was not an occasional article, but a deliberate concession of 
 constitutional right : it contained two articles ; one absolved from 
 their oath of allegiance the members of the union of nobles, in case 
 the king should proceed in arms against them without the sentence 
 of the justiciary : the other related to the holding of the cortes, 
 which they bound him to do every year at Saragossa. You will find 
 the history in Hallam, ' Middle Ages,' ii. 46. This is a very curious 
 coincidence, and may be partially explained by the thoroughly 
 feudal character of the Aragonese government. Some such provision 
 exists also in the coronation ceremonial of the Hungarian kings, I 
 believe, but I am not able to give the words. In England, you are 
 aware doubtless, the allegiance of the barons, as feudatories, was 
 never the sole tie between the king and his subjects : there was over 
 and above the homage and fealty an oath of allegiance to be taken 
 by every free man from the reign of William the Conqueror down- 
 wards, continuing on the analogy and in imitation of the oath 
 prescribed in the Anglo-Saxon laws, and determining the king's 
 position to be not merely that of sovereign landowner and feudal 
 superior, but the king, the cyning, the child of the race, the accepted 
 ruler and father of the whole free nation. 
 
 [See Stubbs, 'Historical Introductions to the Bolls Series,' ed. by 
 A. Hassall.]
 
 XVI 
 
 THE KINGS AND THEIE COUNCILS IN 
 ENGLAND, FEANCE, AND SPAIN 
 
 The constitutional limit of the power of the king is the council of 
 the nation, and the effect of that constitutional limit will vary 
 according as the council is composed of men who owe, or do not 
 owe, their place there to causes within the king's power to control. 
 In the freest ideal state the councillors will be men who do not owe 
 their position to the king ; in the most despotic, the councillors owe 
 their position altogether to the king's will, and may be removed at 
 his pleasure. In every form of government which comes between 
 these two there must be some sort of compromise, tacit or expressed, 
 between the irresponsible authority of a king and the powers of the 
 nation as expressed in its chosen councillors, or by councillors who 
 do themselves without election represent the acting and paying part 
 of the community. We have seen how limited was the power of the 
 king in the primeval German constitution as described by Tacitus ; 
 that he was not the determiner of peace or war, nor the general, nor 
 the judge ; that he did not appoint provincial rulers, or exercise 
 without limit any function of modern royalty. He was simply the 
 representative of the unity of the race, simply a man with great 
 opportunities and influence who might by innate gifts take to him- 
 self power as a general, a judge, or a statesman, which he had not, 
 and was not supposed to have, ex officio. The constitutional limit 
 on his action was the deliberation of his counsellors, of which 
 Tacitus, in a short way, describes two sorts : De minoribus rebus 
 principes consultant, de majoribus omnes ; ita tamcn ut ea quoque 
 quorum penes plebem arbitrium est, apud principes pcrtractentur. 1 
 On minor matters the princes consult ; on greater matters all (that 
 is, all the grown-up free men) ; but the princes also give a thorough 
 discussion to the matters, the absolute decision of which rests with 
 the mass of the people. We may infer from this that there were 
 two sorts of councils, one of the principes, and one of the whole 
 
 1 Select Charters, p. 56.
 
 286 THE KINGS AND THEIR COUNCILS 
 
 mass of the people, including principes, nobiles, ingenui, and all 
 liberi ; that in the more select assembly ordinary matters of routine 
 were managed, and other measures prepared for the acceptance or 
 rejection of the people ; in the wider assembly apparently every 
 matter of national importance was, after previous handling perhaps 
 by the chiefs, deliberated, discussed, and decided. Tacitus further 
 describes the way in which the greater assemblies were held. He 
 tells us that they were judicial assemblies, and that in them were 
 chosen provincial rulers, who were to administer justice in the 
 smaller divisions of the territory. 1 It is, in fact, clear that most of 
 the business of a small free nation at peace must be of such a 
 character that it will have little more to do than to elect magistrates, to 
 try criminals, and to regulate the transfer of lands. Taxation there 
 is none that is not amply provided for by the trinoda necessitous ; 
 and as for legislation, the laws existing are immemorially sacred, and 
 require no improvement or alteration. It may appear that Tacitus 
 describes a state of things necessary in a condition of semi- 
 barbarism, and by no means peculiar to the German genius ; but it 
 is no drawback to the truth of the description that it is more 
 generally applicable. 
 
 But it is obvious enough that a state of affairs in which all the 
 free men can join and deliberate in a single assembly belongs only 
 to a very small organisation, and that as civilisation increases, the 
 share of the great mass in deliberation will be confined to assenting 
 to or differing from the conclusion of the chiefs ; their attendance 
 will become impossible, and at last, unless some system is devised 
 in which representation can be substituted for actual presence, the 
 whole authority will be engrossed by the chiefs. Such was the case 
 in every great nation : the general assembly with universal suffrage 
 survived through the middle ages in some of the smallest com- 
 munities, such as the little republics of Switzerland ; but we may 
 trace the existence of the idea in the twofold annual meetings of the 
 Frankish and German kings, in one of which national questions 
 were treated by the princes, and in the other a military levy of the 
 whole force of the nation was held. Now, in the earliest witena- 
 gemots in England you can still trace the presence of the plebs, the 
 folk ; and it is rehearsed in the preamble of the laws that were made 
 in them, that they had the assent of the whole people. They were 
 made by the great men, with the suffrages of all ; King Ina of 
 Wessex, with the counsel and teaching of his bishops and earldormen 
 and the most distinguished wise men of his kingdom, and also with 
 a large assembly of God's servants, does command so and so. 2 It is 
 
 1 Select Charters, p. 57. 2 Ibid. p. Gl.
 
 IN ENGLAND, FKANCE, AND SPAIN 287 
 
 probable that in all these early parliaments, and in all countries 
 where they were used, there were considerable concourses of people 
 who were loosely held to represent the nation ; but the supreme 
 deliberation was engrossed by the smaller class, the principes of 
 Tacitus, the witan or sapientes of historic German institutions. 
 The meeting of these was in England called the witenagemot, and 
 on the Continent was known by similar names, concilium sapien- 
 tum, or mallus ; or magnum concilium, or curia, and so on. You 
 will remember that it was not a representative assembly as we now 
 understand the word ; taken altogether, it did represent the people, 
 but it was because, by a sort of fiction, it was supposed to be the 
 people ; the members of it did not sit as delegates, nor were they 
 chosen by any larger body to represent their interests there. 
 
 In the lower courts of the nation representation was a regular 
 institution. The judicial function was entrusted to a select body 
 of judges or assessors of the judge in the folkmote, and the districts 
 were at a later time represented in it by some of their own members 
 elected so to serve ; but the principle of representation reaches the 
 highest order of assembly last of all. The members of the 
 witenagemot owe their position to their personal qualities. They 
 are what are called the wise men, the sapientes. Who now are 
 they ? First : after the conversion of the nations, wisdom is almost 
 engrossed by the clergy, and the nations have a very proper 
 consciousness that it is so. With the introduction of Christianity 
 war has ceased to be the normal state of things, and the council of 
 warriors the only practicable council ; the arts of peace are those in 
 which most of the work lies, and these the clergy understand, they 
 also know the laws, and have the art of writing. The bishops 
 are an indispensable element in the witenagemot ; so are the 
 ealdormen, that is, the great magistrates who administer the justice 
 and taxation, and lead the armies, the magistrates who are either, 
 as the theory suggests, elected by the people in their provincial 
 assemblies, or nominated by the king and witan, magistracies 
 with a constant tendency to become hereditary, and therefore to 
 constitute an hereditary nobility. Besides these two there is a third 
 element, the king's friends and servants, his comites or gesiths, or 
 antrustiones or thanes, those counsellors who owe their position 
 to his choice, his vassals as under a feudal government we should 
 describe them. 
 
 The assembly of these three classes, bishops, princes, and comites 
 or ministri, is the witenagemot — is the assembly that canvasses 
 with the king every national measure, makes laws, levies taxes, 
 determines war or peace, nominates bishops and ealdormen, executes 
 high justice, gives or forfeits lands, and regulates the transfer of
 
 288 THE KINGS AND THEIE COUNCILS 
 
 them, and on a vacancy or on misbehaviour chooses and deposes 
 kings. It is limited in number, neither bishops, nor great nobles, 
 nor the immediate dependants of the sovereign being very numerous 
 at the early time. It is elastic also, for it will admit, besides these, 
 princes of the blood royal, and even foreign advisers whose ability 
 and good faith can be relied on. The qualification of the councillors 
 is wisdom. Time advances and matters change. The king becomes 
 more powerful ; his comites, thanes, or ministri increase in number ; 
 all the public land in the country goes under his name, and he 
 bestows it as he pleases, and the new holders are bis vassals, and the 
 ealdormen whom the witan appoint are chosen from his vassals ; and 
 either gradually the whole system becomes feudalised, or by change 
 of dynasty, as in England, feudalism comes in per saltum ; and then 
 the character of the royal council changes, or is seen to be changed, 
 and it is now one in which every member holds his place by a title 
 flowing from the king. Even the bishops, the most ancient 
 element, are made to hold their lands feudally, and to risk the loss 
 of their immemorial character by joining to it the baronial. The 
 witenagemot ceases to be an assembly of the wise, and becomes 
 the assembly of the king's tenants in chief, his barons, his feudal 
 council, who, like the homage of a manor, are attached to him by 
 attornment, by homage and fealty, the basis, however, of the tie and 
 the basis of their qualification being land, the title to it derived from 
 the king as supreme landholder. 
 
 So far, I think, the development of this principle runs pretty 
 equally through all the polities ; as feudalism or its equivalent 
 prevails, the supreme national council changes its character. In 
 some countries it develops still further into representative institu- 
 tions ; in others it breaks up into groups of feudal jurisdictions ; in 
 some it advances a certain way in either direction, and ends in the 
 monopoly of power by the king. In our typical states we may say : 
 in England and Spain it developed into representative institutions ; 
 in France and Germany it broke up into an infinitude of feudal 
 jurisdictions ; the form of the royal council subsisting, however, for 
 certain purposes, and with a certain deceptive appearance of unity. 
 But the steps of these developments were very different, and no 
 generalisation will comprehend all. Each has a history of its own, 
 and to get some idea of this in outline we must go now into separate 
 detail ; and for this purpose it is unnecessary to recur to the older 
 state of things, during which the councils were of a character 
 common to the four nations. We saw that in Spain the church 
 element under the Visigothic kings was supreme ; and we may say 
 that during that period in France and Germany the military element 
 was, in conjunction with the clerical, the most influential. In
 
 IN ENGLAND, FRANCE, AND SPAIN 289 
 
 England the wisdom which gave name to the assembly could hardly 
 be of a more advanced sort in either direction than it was abroad. 
 It may have originally implied acquaintance with the laws, and 
 prudence in affairs ; but if it did, it simply implied qualities that 
 were supposed to belong to all counsellors. 
 
 We will therefore now suppose all these distinctions to have 
 merged in the feudal qualification ; the king is the head of the 
 state, and his council is the assembly of his tenants in chief. Let us 
 sketch very briefly the history of the institution, first in England, 
 second in Spain, third in France, and fourth in Germany. Taking 
 for granted that the feudal tenure became under the Norman kings 
 the common tenure in England, their council was composed of their 
 tenants in chief. But neither William I. nor William Rufus 
 troubled himself much with other men's advice. They went their 
 own way, they held their courts and wore their crowns, and pub- 
 lished laws as had been done before with the counsel and consent of 
 their wise men ; but they were despots, and even under Henry I. 
 the only restrictive power of the king was that of routine and a 
 strong determination on Henry's part to enforce law : the enforce- 
 ment of law implies a law to enforce and a habit of respect for it. 
 During this period the great feudatories were constantly rebelling, 
 desirous to establish their own minor jurisdictions and to break up 
 the kingdom into their own fiefs independent of a central jurisdic- 
 tion, or only nominally, as in France, dependent on the king. The 
 failure of these rebellions and the forfeiture and breaking up of 
 estates increased in a very large ratio the number of tenants in chief 
 of the king ; and accordingly, when in the reign of Henry II. the 
 liberties of the nation began to look up, and the great council to 
 show some opposition to royal caprice, it became necessary to 
 regulate in some way or other the numbers and nature of the 
 assemblies ; nor was it easy or advisable to compel the attendance 
 of all the vassals, many of whom were poor and uninfluential. To 
 secure, however, a meeting of barons, and perhaps to give the king a 
 proper influence in selection, the form of summons was adopted. 
 The greater barons were summoned specially, and the minor tenants 
 were summoned generally by the sheriffs in the county court. This 
 plan enforced the attendance of the barons, whose presence was 
 really important, and left it open to the minor tenants to attend or 
 not as they happened to have business or leisure to make the journey. 
 This is the system described in Magna Carta, and was probably 
 devised during the reign of Henry II. 1 
 
 In the reign of John first, and in that of Henry III. in an 
 
 1 Select Charters, pp. 163, 299.
 
 290 THE KINGS AND THEIR COUNCILS 
 
 increasing ratio, the principle of representation, which had been 
 previously adopted for judicial and financial business in the county 
 court, was applied to this ; a custom had grown up of electing in the 
 county court two knights to select the juries for the great assize, to 
 assess or assist in assessing the taxes, and for other such business. 
 Now, in order that the minor personages who in theory had the right 
 to be present at the national councils might be really represented, 
 each county was ordered to appear by two knights ; and these knights, 
 being chosen in the county court, in which every freeholder had a 
 vote, were really representatives, not merely of the king's tenants, 
 but of the whole county, and as such they voted supplies that 
 affected the whole county which they represented. This is the origin 
 of knights of the shire, the first representative element, to which 
 were added, first by Simon de Montfort and afterwards by Edward I., 
 representatives of the towns. These two representative elements, 
 conjointly with the barons, lay and ecclesiastical, composed the 
 parliament of England ; if in addition the judges and other advisers 
 of the crown were called in, it took the title of great council ; but 
 great councils differed from parliaments both in the manner of 
 summons and in the extent of their powers. 
 
 Early in the fourteenth century these elements split off into two 
 houses, and although each estate continued to tax itself separately 
 for several years, it remains still the parliament of England — the 
 house of lords and the house of commons. By these are repre- 
 sented the three estates of the realm — the clergy, the barons, and 
 the commonalty — the clergy represented by the bishops, the barons 
 representing themselves, and the house of commons representing 
 the commonalty of both country and town. Without the joint 
 assent of the two houses, no measure since the reign of Edward I. 
 can become law ; no taxation can be legally made without the same 
 since the confirmation of charters by Edward I. in 1297 ; and on 
 all subjects of national interest the two houses have, except by 
 mutual agreement, a right to be heard and to discuss — a right 
 enforceable by them against the ministers, whose supplies they can 
 stop, or whom by votes they can displace, on a principle of usage 
 and compromise generally understood, although not a formal part 
 of constitutional law. This is an outline of the growth in England 
 of the limit on royal power merely as touching form ; the exact 
 details of the steps by which each part of the constitution got its 
 present place, by which it was qualified for power, and by which it 
 obtained, held, and increased it, involve a long series of narrations 
 which, if I were to attempt now, would destroy all chance of our 
 being able to compare the history of other states with them. Be it 
 sufficient to say that Henry II. defeated the disruptive working of
 
 IN ENGLAND, FRANCE, AND SPAIN 291 
 
 feudalism as we shall see it in France and Germany, and that 
 Edward I. consolidated by representation of counties and boroughs 
 a symmetrical and definite constitution of parliament which, having 
 the command of the purse-strings and the confidence of the people, 
 was sure in the long run to make tyranny impossible. It had a 
 hard struggle to realise all its rights, and under both Tudors and 
 Stewarts the older history of both king and parliament was obscured ; 
 but in theory little has been assumed beyond the letter of law and 
 authority of precedent as it was recognised by Edward I. The 
 constitution was complete then as regards its machinery ; it has 
 only added strength and elaboration of detail and power of easier 
 working. 
 
 Thus in England, out of the feudal court of the king, which 
 succeeded to the place and incorporated the elements of the old 
 witenagemot, which by successive steps received the modifications 
 which made it a fair representation of the church, the nobles, and 
 the commons, sprang, defined and completed by the genius of this 
 great king, the modern English parliament. Mark, however, three 
 points before we proceed. 
 
 1. The name of parliament properly signifies, not the assembly, 
 but the purpose or employment for which it is called, as we might 
 say, the session. Hence the word parliament, when it does become 
 applied to the members of the assembly, as in each country where it 
 was used it did come to be applied, may have a different meaning 
 according to the actual constitution of the body, or the purpose for 
 which it was called. It means simply a talking, and when it is 
 applied to the talkers its meaning varies. The parliament of 
 England, the parliament of Paris, and the parliament of Naples 
 were three very different things. 
 
 2. Observe that although the English parliament is a practical 
 representation of the three estates, it is not called together on the 
 same principle on which the states-general in France and the 
 Netherlands were called. We have traced the process and seen how 
 it sprang from the combination of the witenagemot with the king's 
 council and the representatives of the counties and boroughs. That 
 the organising and defining genius of Edward would gladly have 
 made it also a representative assembly of the three estates, we know 
 from the fact of his summoning the clergy to appear by their repre- 
 sentatives, a summons which, known by the name of the clause 
 prcemtmientes, appears still in the writ addressed to every bishop at 
 the beginning of a new parliament, and which has not since the 
 fourteenth century been attended to. This summons is altogether 
 different from the summons to the convocation, which is a purely 
 ecclesiastical assembly. If Edward's plan had taken effect, we should 
 
 u2
 
 292 THE KINGS AND THEIR COUNCILS 
 
 have had either three chambers of parliament — the lords, the clergy, 
 and the commons — or the two houses of lords and commons, the 
 latter divided into the knights of the shire, the proctors of the 
 clergy, and the burgesses. As the thing came to nothing, we cannot 
 argue as to what line it would have taken had it really succeeded. 
 As it was, you know the clergy neglected to send deputies, and the 
 right of taxation therefore by a compromise devolved on the house 
 of convocation, which retained it until the reign of Charles II. ; 
 the bishops sitting in the house of lords was regarded as political 
 influence enough for the clergy at the time ; and considering their 
 other ways of affecting politics, it certainly was, for at the time the 
 ministers of state were always clergymen, and they had moreover 
 the right of sitting in the house of commons as representatives of 
 shires or towns. If, however, the plan had been successful, we 
 should have had in our parliament, besides its character of witena- 
 gemot and of the king's court, a perfect theoretical representation 
 of the three estates. 
 
 3. Mark that although in England we had for certain purposes 
 provincial or county courts, we had never since the days of the 
 heptarchy provincial assemblies of estates either for legislation or 
 taxation ; the provincial courts shared the judicature but not the 
 other powers of a national assembly ; the elements were the same, 
 but the powers were different. Had it been otherwise, no doubt the 
 hold of feudalism, slight as it was, on the provincial jurisdictions 
 would have broken up the national unity as it did in other lands. 
 I mention these three points because by pointing them out before 
 we proceed to sketch the national councils in other countries, we 
 have points of contrast made clear which will save much repetition. 
 
 We will now look at France ; and as I have said so much about 
 the early French system, which became extinct with the Karlings, 
 I will very shortly characterise the proceedings of the third race. 
 Up to the reign of Philip the Fair there was no national council in 
 France except ecclesiastical ones, with which we have not now to 
 do, except in so far as they may have afforded a pattern for the lay 
 councils. During this time the king had a feudal court of his own 
 great vassals, which seldom met, and then not for much business ; 
 he had also a court of the vassals on his own demesne states, in 
 which he despatched business like any other lord of the manor, 
 or any duke of Normandy or count of Anjou. And in each of the 
 feudal principalities which had made out for themselves a practical 
 independence under the nominal suzerainty of the king at Paris, 
 there were feudal courts often partaking of the character of assemblies 
 of estates. But there was no general assembly and no estates-general 
 until 1302. As the kings Philip II. and Lewis IX. gathered in the
 
 IN ENGLAND, FRANCE, AND SPAIN 293 
 
 great fiefs, they did not collect the provincial estates into one assembly ; 
 they conducted their deliberations just as when they had inde- 
 pendent rulers, the king merely stepping into the seat of the count 
 or duke. Philip the Fair, perhaps observing the reforms of Edward I., 
 or perhaps seeing the expediency of extinguishing the irregularities 
 of government produced by these multitudinous assemblies — having, 
 moreover, a purpose to serve, to unite the whole spirit of his nation 
 against the outrageous proceedings of Boniface VIII. — summoned 
 the three estates to meet in 1302, and sometimes afterwards, for the 
 purpose of taxation. These estates were the prelates and the repre- 
 sentatives of the clergy, the nobles, and the deputies from the 
 chartered towns. 1 Of the functions and later history of this council 
 I shall have something, not much, to say in other lectures. You 
 will observe, however, that it differs radically from the development 
 of English institutions which were almost contemporaneous with it ; 
 it does not grow out of any preceding assembly, national or feudal ; 
 it had, no doubt, its prototype in the petty provincial assemblies, but 
 it did not develop out of them, and from the beginning its history 
 is different. Nor did it extinguish the provincial estates either. 
 
 Now, Philip the Fair instituted or developed another assembly, 
 which I merely notice now that you may not be tempted to con- 
 found it with the states-general — that is, the parliament of Paris : 
 remember the distinction I have drawn as to the use of the word 
 parliament. In France it was applied to the merely judicial sittings 
 of the king's court, the aula regis ; this Philip, by the admixture of 
 a large number of lawyers, erected into a supreme court of judicature, 
 which, moreover, had the privilege of registering, for it had no power 
 in modelling, the ordinances which under the despotic rule of the 
 kings of the third race took the place of laws. The parliament of 
 Paris was simply analogous to the curia regis (judicial council of the 
 Plantagenet kings) and other courts of Westminster ; it had nothing 
 to do with the government, although it sprang directly from an 
 organisation (the curia or aula regis) which might under favourable 
 circumstances have grown into something like a real national 
 assembly. I say it might have done so, because if we look to Spain, 
 or indeed if we look to Flanders and other provinces actually cut off 
 in the middle ages from the body of France, we see that a similar 
 institution was the germ of a real parliament of the English form. 
 In Aragon, certainly, out of a feudal council of the king's vassals 
 grew the Aragonese cortes, a definitely organised and definitely 
 empowered national assembly. 
 
 1 States-general in 1302, barones, custodes ecclesiarum collegiatarum, 
 prrelatos, duces et comites, abbates et vieedominos, castellanos, majores et 
 procuratores capitulorum, decanos et scabinos civitatum.
 
 294 THE KINGS AND THEIR COUNCILS 
 
 But we will take Castile the first, because it is the largest and 
 has the most importance in history ; it springs too more certainly 
 than that of Aragon out of the old Gothic liberties. The origin of 
 the cortes is in the ancient national assemblies ; but the whole 
 history of the transition from the thoroughly ecclesiastical organisa- 
 tion which under the Visigothic kings assumed the character and 
 powers of the national assembly, to the state of things in which we 
 find the mediaeval cortes in full working, is very obscure indeed. We 
 can merely say that, while in the beginning of the eleventh century 
 we can find only bishops and barons taking part in it, some time 
 before the end of the twelfth century it contained a very large 
 ingredient of the deputies of towns and chartered districts. These 
 towns and chartered districts or communities were, as we shall see, 
 privileged corporations established by the kings for the consolidation 
 of the country newly wrested from the Moors, and one part of their 
 privileges was that they should not be taxed without their own 
 consent given by their deputies in the general council of the nation. 
 They had reached this eminence before the year 1188, at a time 
 when no other people in Europe practically enjoyed the like liberty, 
 and no doubt they had gained it from the policy and the exigencies 
 of the kings, their need of money, which the growth of settled 
 commerce enabled the towns to supply, and the desirableness of 
 interesting such important bodies in the business of the kingdom. 
 They owed their summons, then, not to their indefeasible character 
 as freemen, not to their tenure of lands and houses as feudal 
 dependants of the crown, but to distinct acts of royal policy, 
 recognising natural right and sound policy, but not developing the 
 system out of a previously existing one, as in England and elsewhere. 
 And, strange as it seems to us, as time went on, the representative 
 elements of the cortes ousted the two elder estates from a share in 
 their deliberations ; the bishops and nobles were free from taxation, 
 and of course it would have been on first principles unfair for them 
 on the strength of their own immunities to join in taxing the people ; 
 but there was no reason why they should have been deprived of their 
 right to legislate. The prelates were excluded from the cortes in 
 a long series of sessions which Hallam enumerates from 1295 to 1505, 
 and from most of these the nobles also ; but it does certainly seem 
 that such an exclusion was founded on an abuse, and that the 
 deliberations of the cortes must have lost greatly in importance 
 when so influential a constituent of the nation took no part in them ; 
 while their determinations must have been weakened in point of 
 efficiency when such large bodies of interests would feel themselves 
 free to act in opposition to them. 
 
 And this probably explains the fact that through the middle
 
 IN ENGLAND, FRANCE, AND SPAIN 295 
 
 ages the deliberations of the cortes are far more important as de- 
 liberations than they are efficacious as political causes. They were 
 brisk fighters, and they discussed all manner of business, but in the 
 end, in struggles with the royal power, well backed by the nobles, they 
 had to give way. It is evident, however, that the natural tendency 
 of the Castilian cortes was somewhat democratic ; but the king had 
 the great advantage in being able to determine how many and 
 which of his communities should be summoned to each cortes ; 
 and in general the plan, as well as its principle, was too flexible to 
 be in itself a lasting check on a powerful monarchy. 
 
 In Aragon the cortes was the feudal court of the king divided 
 into four branches or estates : ricos hombres, or greater barons ; 
 infamones, or lower barons ; prelates and clergy, and representa- 
 tives of towns. If you consider that the first two branches were 
 simply two divisions of the same class, you get a symmetrical meet- 
 ing of three estates, just as they were in the provincial estates of 
 France or Flanders. In Aragon, I believe, the existence of these 
 may be traced further back than in France, but the thing is the 
 same. Now, in England, by Magna Carta, you may remember, 
 a distinction is drawn between the greater and lesser barons, the 
 former of whom are to be summoned to parliament by writ, and 
 the latter by a general summons addressed to the sheriff ; these 
 greater and lesser barons may be supposed to answer to the ricos 
 hombres and infanzones ; but there is the radical distinction that 
 in Spain all these were noble, while in England nobility of blood 
 gave no title whatever to a share in government apart from the 
 tenure of land and the royal summons. Moreover, while the 
 English lower barons came soon after Magna Carta to be repre- 
 sented by the knights of the shire, the infanzones in Aragon were 
 not represented ; they appeared in person, as iu theory all the free 
 tenants of the crown appeared in Henry II. 's great courts in Eng- 
 land. Into some of these points I shall have to go again in our 
 further lectures. 
 
 The parliaments of Naples and Sicily were also strictly feudal ; 
 there the distinction into estates, however, was not adopted : the 
 members sat in two houses, the lords and the commons, according to 
 Giannone ; the upper including bishops and barons, the latter lower 
 clergy and representatives of towns ; but I cannot be confident about 
 this, because the tendency of all constitutionalists of Giannone's age is 
 to try to bring the ancient form of the continental constitutions into 
 as close a conformity as possible with that of England, at that time 
 the model free government in Europe. 
 
 The Germanic diet sprang out of the assemblies of the nations at 
 the imperial court on the great days of the year ; the assembly that we
 
 296 THE KINGS AND THEIR COUNCILS IN ENGLAND, ETC. 
 
 saw assisting at the promulgation of the capitularies, and also taking 
 part in the election or ratification of the election of the German kings. 
 As the feudal idea advanced, the diet got some of the characteristics of 
 a feudal assembly ; but it was far too unwieldy to exercise much real 
 influence except where it expressed the real sentiments of the nation, 
 as it did once or twice in the deposition of impracticable sovereigns. 
 The details of the early diets are obscure in the last degree ; they are 
 stated in the same general terms which make the history of the 
 early English parliaments so hard to unravel. "We may, however, 
 safely conclude that they contained all the elements of the national 
 life, and that those elements which at a later period are not found in 
 them have been excluded by neglect or superseded by some other 
 organisation. When the diet appears definitely arranged, we have it 
 in three branches or divisions : the bishops, the princes, and the towns ; 
 the lower nobles are not allowed to take parr in the deliberations and 
 are not represented. This is the case, I believe, as early as the last 
 decade of the thirteenth century, which is indeed the time to which 
 we should naturally look in any attempt to compare the rising institu- 
 tions of freedom in our pattern nations. 
 
 I should not omit to mention that in all the constitutionally 
 governed nations, besides the great council of the nation, which only 
 sat intermittently, there was an ordinary or privy council, an 
 assembly of ministerial advisers who attended on the king to de- 
 spatch the regular business of government : a body often viewed with 
 jealousy by parliaments and cortes, but of course indispensable 
 to the conduct of public affairs. But the history of this council is 
 distinct from that on which we are now employed, and I either have 
 noticed it already under the question of the royal power, or shall 
 hereafter in discussing the powers of parliaments.
 
 XVII 
 
 THE FUNCTIONS OF THE NATIONAL 
 ASSEMBLIES 
 
 The functions of the national council, parliament, assembly of 
 estates, diet, or cortes may be resolved into four : legislation, taxa- 
 tion, judicature, and deliberation on politics generally. Taking 
 these in their widest sense, legislation implies every act of law- 
 making or amendment, whether it proceed directly through the 
 legislature or only by the restriction of the king's action, and all 
 alterations in the common law of the country where such altera- 
 tions proceed from the competent authority ; in taxation also we 
 will include finance generally, and that both in the form of collect- 
 ing revenue and in that of controlling expenditure. I do not of 
 course mean to say that each of the nations that we are at work on 
 had a national council possessed of power to discharge all these. 
 We take our own as the best specimen, and then measure how 
 far those of the other countries come short of it. 
 
 As for legislation, I must, at the risk of a little repetition, run 
 through the history of English legislation, but I will make it as short 
 as possible. (1) The earliest English laws are made by the kings 
 with the advice and help of their witan ; of that we saw examples the 
 other day : they were published in the shape of codes of law, and 
 articled like the canons of a church council, on the model of which 
 they were perhaps drawn up. Such, with some minor variations, 
 is the form of enactment until the eleventh century, when Canute 
 adopted a more imperative style, but still retained the form cum 
 consilio sapientum. (2) The second form adopted by our lawgivers 
 is that of charter, and this comes in at the Conquest. There are two 
 forms of William the Conqueror's acts : one is a confirmation of the 
 laws of the English as stated to him by a jury of each shire sworn to 
 declare the ancient customs ; that is, in the form of their declaration, 
 and his confirmation is stated historically ; on the whole nothing can 
 be argued from it for want of historic authority. 1 The other is 
 
 1 Select Charters, p. 81.
 
 298 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 
 
 directly in the form of a charter : Willelmus &c. to all whom 
 it may conc3rn. Know ye that I, with the advice and consent of 
 my barons, have established so and so. (3) A third form is that of 
 the assize, which was in use under Henry II. and Richard I. This 
 is rather of the nature of a praetor's edict, the laying down of certain 
 rules to be observed in judicial matters, or for the collection of a tax ; 
 and it is published in this way : This is the assize which Henry 
 made at Clarendon with the advice and consent of his arch- 
 bishops, earls, barons, and all his freeholders. (4) The new legisla- 
 tion of the thirteenth century takes the form of articles, and there- 
 fore of a sort of compact between the king and the nation. This is 
 really the case with Magna Carta, although it is technically in the 
 charter form, and it is the form of the Provisions of Oxford and some 
 other documents of the kind issued by the king with what is called 
 counsel and consent, but is really the strong compulsion of his 
 barons. 1 (5) With the reign of Edward I. the modern form of 
 enactment begins, the king stating at the opening of the act 
 that he with the advice and consent of his barons and prelates 
 assembled in parliament enacts so and so ; but in this reign we find 
 examples of almost every form ; nor is it easy to distinguish be- 
 tween the statutes drawn up with consent and counsel of parliament, 
 and ordinances published with the advice of the royal council. 
 
 (6) The reign of Edward II. witnessed several improvements. 1. It 
 saw the introduction of petitions which had to be embodied in new 
 laws or ordinances ; 2. The preamble of the acts begins as a rule to 
 express the participation of the commons in the legislation ; and 3. 
 By an act of the seventeenth year it was provided that nothing should 
 be received as law which did not pass both lords and commons. 
 
 (7) Under Edward III. we have a more precise clue to the share 
 ascribed to the commons ; the acts are made by the king with the 
 advice and consent of the lords, and at the request of the commons ; 
 bills are framed thus on the petitions of the commons. This goes on 
 with some variations until the twenty-seventh year of Henry VI., 
 when it becomes advice and consent of lords, request of commons, 
 and authority of parliament. It was in this reign also that the 
 commons' initiative ceased to be clothed in the form of petition and 
 took that of a bill. The request of the commons, however, is speci- 
 fied until the first year of Henry VII., when the form becomes what 
 it has generally continued, the assent and counsel of lords and 
 commons in parliament, and by authority of the same. 
 
 You may observe if you please that the more important of these 
 
 1 A similar conclusion may be drawn tandum, or ad consultandum, or ad 
 from the writs of summons — ad trac- faciendum.
 
 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 299 
 
 alterations are introduced coincidently with the assumption of 
 greater powers by the parliament or by any branch of it ; but all I 
 can stay to remark now is, the permanence of the form counsel and 
 consent, the necessity which even a despotic king like the Conqueror 
 felt to express it in what was intended to be received as law, and the 
 usefulness of the term itself to express the function continuously 
 assumed by the national council in legislation, whether that national 
 council be tbe witan of the allodial king, or the barons of the 
 feudal one, or the estates, the parliament, of the constitutional one. 
 How the same form seems equally to have covered every degree of 
 strength and weakness in both the parties contending for power, we 
 cannot now explain in detail ; it is enough that counsel and consent 
 are the theory of the thing, and such a theory obviously could not 
 coexist with the great principle of Roman law, quod principi placuit 
 legis vigorem habet, the legislative power being, with no restraint of 
 counsel, with one consent devolved on the emperor. In other words, 
 the principle of the constitution was Teutonic ; the enacting power 
 on which the laws rested was not Roman, but German, Anglo- 
 Saxon, English. 
 
 Let us look now at the case in France, where also the historical 
 government begins from the German starting point. The early 
 capitularies of the Frank kings are edicts, published frequently in 
 synods, and no doubt with the advice of the synods, but on the royal 
 authority. I do not wish to argue strongly from these, because I am 
 not certain as to the genuineness of the existing forms, but so far as 
 I can judge by the absence of the expression of counsel and consent, 
 I should say that in principle they resemble the imperial rescripts 
 from which they were probably copied. It is under Carloman, the 
 brother of Pepin, in 742, that I first find the form ; that is, under 
 the Austrasian, thoroughly German, as opposed to the semi-German 
 influence of the Neustrian court. ' Ego Karlomannus dux et prin- 
 ceps Francorum, cum consilio servorum Dei et optimatum meorum,' 
 his chief bishop being Boniface, mark you, an Englishman ; it may be 
 observed, however, that Carloman was not king, only dux and pr bi- 
 ceps ; and secondly, that his capitularies were issued in ecclesiastical 
 councils. But you get the same form under Pepin two years later : 
 ' Pepin cum consensu Francorum et procerum ' divided his king- 
 dom ; Charles the Great enacts ' hortatu et consultu ; consentiente 
 sancta synodo : omnes unanimiter consenserunt ; ' but when Charles 
 became emperor he changes the tone ; he publishes the laws for the 
 Lombards by his own authority, and in several of the capitularies 
 omits the mention of any counsel but his own. But these may be 
 explained as referring to matters of private authority : Lombardy he 
 held as a conqueror, and so legislated. But there is an act of a.d. 813
 
 300 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 
 
 preserved in due form, modifying the Salic and Roman law on some 
 points, and particularly declared cum consensu consilioque ; the 
 council containing bishops, abbots, dukes, counts, and all faithful. 
 This is as strongly expressed by Louis the Pious, Charles the Bald, 
 and Louis II. ; and of these, all but the last refer to Germany as well 
 as France. 
 
 From the time of the Emperor Louis there is little material 
 to argue on until we come to the third race of the kings ; the 
 form still subsisting, and even strengthened occasionally by a de- 
 claration of Pragmatic Sanction. But under St. Louis and the 
 following kings we lose sight of the form with the reality of the 
 influence, and instead of the counsel and consent of the bishops 
 and nobles, the style becomes par nostra conseil, just as in 
 the English ordinances the king allows his council — that is, his 
 private council — to be mentioned. It is the feudal council, in fact, 
 reduced to little more than the ministers and specially appointed 
 advisers of the crown. Hallam does not hold that the form had 
 any real meaning in France from the end of the Karling dynasty, 
 and it certainly was not made a reality by the proceedings of Philip 
 the Fair : his assembly of the states-general was simply for the 
 purpose of taxation, and as these states-general are the only occasion 
 on which the representative principle was tried in mediaeval France, 
 we may conclude that the influence of the nation on legislation had 
 long ceased. It had while it lasted rested on the feudal principle 
 alone, and that was not sufficient to give it vitality. If the estates 
 in 1302 had had the power or the will to imitate the conduct 
 of the English parliament in 1297, they might have turned the 
 history of France altogether in a different direction ; but they failed, 
 and with them the representative theory failed. 
 
 The ordinances of the kings of France run henceforth as done 
 by themselves and their council. The parliament of Paris, how- 
 ever, exercised in modifying the form of the royal ordinances an 
 important check on legislation of this sort ; still it was regulative, 
 not initiative ; it was rather suffered than recognised as a right ; 
 and the body which exercised it was a body of professional lawyers, 
 not national representatives or even feudal barons. The immense 
 influence gained by the kings through their consolidation of the 
 great fiefs, on which they entered by succession, escheat, or forfeiture 
 (and entered into not the mere reality of royal powers, but the 
 inheritance of all the privileges which the former holders had 
 wrested from them in the time of their weakness), made the kings 
 rich as well as independent ; and the advantage was improved by 
 them until they became absolutely despotic. 
 
 Looking next at Germany, we fail to find after the end of the
 
 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 301 
 
 Karling dynasty any instance of collective participation in legisla- 
 tion. The nations had retained very much their own laws, and over 
 these was laid a superficies of the immutable civil law. The civil 
 law was occasionally modified by an imperial recess or rescript 
 drawn upon the model of those of Constantino and Justinian, and 
 the local laws by the action of tbe local rulers ; but there was no 
 central life, no real centralisation for any of the functions of 
 government except judicature, and the ministers of that function 
 were not strong enough to carry the imperial jurisdiction into the 
 feudal states. The emperor might hold a diet at Nuremberg or at 
 Frankfort, and in it publish a recess or a rescript in German or in 
 Latin, but they were imperial acts, such as the inoperative pro- 
 clamations of Frederick II. and the Golden Bull of Charles IV. In 
 Italy he might do the same at Koncaglia if he could bring the 
 assembly together ; but in general we may say that as in France 
 the feudal system, so in Germany the imperial system, was fatal to 
 the exercise by the nation of this first and most important of its 
 functions. 
 
 Into the history of legislation in Spain we went sufficiently in 
 a former lecture. There, if the influence of the cortes was great in 
 other matters, it could be brought to bear on the administration of 
 the law as well ; but the modifications of the laws themselves were 
 few so long as the real strength of the cortes lasted : the regula- 
 tion of everything by royal charter and the codification of the 
 charters by Alfonso the Wise in the Siete Partidas, the introduc- 
 tion of the civil law by Alfonso XI., are the great features. But 
 every new law and modification of the old had to pass the cortes : 
 the Siete Partidas did not receive even their formal confirmation 
 until 1348. The theoretical perfection of the code of Alfonso the 
 Wise once accepted left little to be altered, and hence it is that this 
 is the function in which the influence of the cortes appears least. 
 Such, however, Avas their power during its period in all branches of 
 state that we may be sure, if a modification of an existing law had 
 been required, it would have been done with their counsel and con- 
 sent, for the Teutonic idea so far forth was as prevalent in the south 
 as in the north of Europe. 
 
 I will proceed to our second head, that of taxation, and pass the 
 four states in review as before. There is no point on which the 
 allodial, the feudal, and the constitutional systems are more dis- 
 tinctly separated and more easily distinguishable than this of taxation. 
 Under the allodial system there are three distinct obligations, beyond 
 which all taxation must be granted by the witenagemot. The 
 trinoda necessitas, the obligation to build and repair bridges and 
 castles and to take part in the national armament, was incident to
 
 302 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 
 
 all possession of land, and these obligations are in fact the inse- 
 parable mark of an allodial tenure. Whatever was needed over and 
 above this was matter of legislation ; nor under the Anglo-Saxon 
 kings was much needed. They were rich in domain and they were 
 frugal ; for any increase of a permanent character in their own 
 expenditure a new grant of folkland could be made, as was made 
 to Ethelwulf. There were no great occasions of expenditure except 
 for war, and for war a tax of two shillings on the hide of land was 
 sufficient. Such was the tax raised to bribe off the Danes, and in the 
 same way money was raised for the maintenance of the ships. 
 These taxes were laid on by the witan under the general name of geld 
 (Danegeld and shipgeld), and apportioned by them also ; sometimes 
 with the assessment payable in arms and ships, sometimes with a 
 demand for money. With the feudal tenure of land William the 
 Conqueror and William Rufus introduced the feudal taxation : of 
 this, also, one part was fixed and settled, another depended on an 
 act of the person who would have to pay it. Aids and reliefs were 
 specific incidents of feudalism ; but even aids were commonly asked 
 as a matter of courtesy — not taken without asking ; and reliefs, 
 marriages, wardships, and suchlike were the only source of revenue 
 which the king could take without a gift from his barons. The 
 Norman kings, entering into the position of the old English sove- 
 reigns, did not commute the allodial taxation for the feudal, but 
 simply added the one to the other. They still exacted all the rents 
 that had been paid from the shires to the kings in lieu of corn 
 and produce ; they exacted the allodial obligations ; and they per- 
 petuated the Danegeld. These things they found in use ; they 
 added the reliefs and the profits of wardship and marriage, which 
 they took quite capriciously, and having taken these, they came with 
 irresistible courtesy on their feudal lords for aids, and on their 
 towns in demesne for taillages. The limitation of this irrespon- 
 sible tyranny was begun under Henry I. He by his great charter 
 of compact with his people consented to limit the reliefs to a reason- 
 able amount, and abate the other hardships on women and children. 
 He condescended to ask for an aid to marry his daughter, and 
 received no denial. But the maintenance of Danegeld and the 
 recurrence of bad seasons during several years made his reign a 
 period of poverty and hardship. Stephen's was one of anarchy. 
 Henry II. abolished Danegeld like a true English king, but he asked 
 for and got large aids — the same thing under a less hateful name. 
 Richard I. and John collected large sums by aids, asked for gene- 
 rally in a tone that admitted of no denial. 
 
 At last Magna Carta stopped the progress of royal assumption 
 that way. By it, as you know, John was compelled to assent that
 
 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 303 
 
 besides the three customary aids none should be taken or any tax 
 levied without the consent of the common council of the nation to be 
 summoned for the purpose in a particular way. Although that clause 
 does not appear in the confirmations of the charters, it was struggled 
 for and vindicated during the reign of Henry III., for notwithstanding 
 the unlawful levying of large sums, they were not levied without 
 discussion or declamation ; and had it not been that the demesne 
 lands were not yet freed from arbitrary taxation in the shape of 
 tallage, the crown might have been starved into submission. It is 
 just at the time that the towns began to be regularly summoned 
 that tallages are distinctly abolished, and from the reign of Ed- 
 ward I. no tax has been constitutionally levied without the consent 
 of parliament, the estates rating themselves separately for a long 
 period, but at last joining in a regular administration of taxation, 
 pulling together to make taxation a leverage for all reforms, and 
 finally in modern times leaving that taxation entirely to the represen- 
 tative or commons house. In England, then, the development of 
 legislation and taxation has moved in a groove with the increase of 
 freedom and free institutions. Exactly as feudalism is eliminated, 
 representative taxation is introduced. Henry II. instituted scutage 
 instead of personal service, and destroyed the military power of 
 feudalism thereby. For a century the counties and towns were 
 asked for their contributions separately, when the king and barons 
 made the laws ; as soon as they were assembled for taxation they 
 vindicated their claim to a share in legislation. 
 
 There are several points of secondary importance which make 
 the process of taxation in England extremely interesting to trace : 
 the changes from fixed aids and gifts, entirely dependent on the 
 tenure of land, to the grants of tenths and twentieths of movable 
 or personal property, a change which by itself would mark the 
 extinction of the feudal idea ; the change of tenths and fifteenths 
 for subsidies of wool, wool fells and leather ; the progress from 
 direct to indirect taxation ; the different proportions in which the 
 barons, knights, and burghers taxed themselves, together with the 
 progress of self-taxation before it began to be transacted in the 
 national council or parliament, when the king treated with the 
 several towns singly for their grants, and each baron rated himself 
 by a cartel of his freeholds ; the long-continued severance of the 
 taxation of the church from that of the body of the nation, trans- 
 acted in convocation ; but many of these points are remote from 
 our immediate subject, the power of the national council, and 
 demand to be treated at large. We will therefore proceed to take a 
 glance at the power exercised in this direction in the continental 
 states.
 
 304 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 
 
 And first in France. The revenue of the French kings was 
 chiefly derived from lands in demesne, or from the gift of the states 
 of the provinces which the king ruled immediately without a feudal 
 middleman. These gifts were granted by those states on the 
 ordinary feudal principle, as aids or donatives, some of them ex- 
 pressly demandable without process of consultation as the feudal 
 rule was everywhere, some requiring a special grant, and therefore 
 applied for only in special emergencies. From the time that feudal- 
 ism became fully established, and the old allodial taxation, which of 
 course had been used under the Merovings and Karlings, was entirely 
 superseded (as, you remember, was not the case in England), the 
 support of the king and of the framework of government depended 
 legally on demesne lands and the proceeds of the feudal incidents. 
 While the kingdom was very weak, it made government cheap and 
 war difficult, and taxation accordingly small. Hallam, however, 
 points out that some of the kings, by debasing the coinage and 
 exacting money from the Jews, managed to do without any direct 
 taxation, except of their demesnes, which could be tallaged at their 
 will. Philip Augustus, following the example of Richard and John, 
 levied taxes on the vassals to the amount of a third part of their 
 goods. But the precedent was too dangerous ; and the following 
 kings down to Philip the Fair were greatly enriched by the acquisi- 
 tion of new provinces. But Philip the Fair, having called together 
 the states-general for a political purpose, would fain utilise them for 
 a financial one. In 1314 they granted him a subsidy, in which both 
 nobles, clergy, and towns joined, the barons thus surrendering their 
 privilege of immunity, and the towns for the first time being con- 
 sulted whether they would give or no. The towns before this had 
 been tallaged at the will of the king, now they vote money as a 
 free estate. 
 
 Hallam has traced in detail the history of the influence of the 
 states-general on taxation, and their remonstrances as affecting 
 political business. It would seem that the kings occasionally asked 
 their consent, as they occasionally consulted their opinions, but 
 quite as frequently taxed without consulting them, and acted without 
 asking advice. The power was practically reduced to remonstrance ; 
 redress of abuses must be seized by the strong hand, not pleaded for 
 or bought. It was under John and during his captivity that the 
 remonstrances were most efficacious ; on one occasion, in 1857, 
 Charles, the son of the king, being regent, was obliged to enact an 
 ordinance conformable to the petition of the states ; but the general 
 tenour of the history is a struggle against overwhelming odds and 
 rapid strides of the kings towards absolutism. In 1380 Charles VI. 
 repealed all taxation that had been imposed since the reign of Philip
 
 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 305 
 
 the Fair ; but there is no question that he and his successors did 
 impose taxes at their will. The deputies of the towns, moreover, do 
 not seem to have had full power ; their constituents had to confirm 
 the grant when the states had made it ; it being uncertain whether 
 they could guarantee payment, they could not of course insist on 
 the fulfilment of their petitions ; they fell, therefore, into contempt, 
 and so into disuse. The states of Tours in 1484 were a remarkable, 
 and the last remarkable, assembly of the kind. This was divided 
 for the time into six nations, Normandy, Burgundy, Paris, Aquitaine, 
 and Languedoc and Languedoil ; and demanded that no tax should 
 ever be levied again without the consent of the states. They tried 
 for too much and came to an end in a not altogether inglorious way. 
 Henceforth the king took his taxes as he wanted them. The failure 
 of the states-general to make good their ground was doubtless owing 
 to the fact that it was for taxation alone that they were summoned ; 
 they had never possessed the right of legislation, that the king 
 could do without them ; nor had they any way but petition of 
 remonstrating ; it may be added that they never seem to have 
 reached the point of refusing a tax demanded. 
 
 It was different with the cortes in Castile and Aragon ; a word 
 will suffice to show it. In Castile, as I have several times remarked, 
 the nobles and clergy were free altogether from taxation ; only the 
 communities were taxed, and these were therefore the most impor- 
 tant element in the cortes from an early period. Legislation and 
 political deliberation required the consideration of the united body, 
 taxation required the deputies alone ; but this did not result in the 
 deputies losing their right to interfere in the two higher branches of 
 government, possibly it might have been so had they been called up 
 only to be taxed. It resulted in the withdrawal of the other two 
 estates, and leaving the whole business to the deputies ; the nobles 
 and clergy by their immunity lost the power of affecting either 
 legislation or politics in the same way as the third estate ; they saw 
 that their counsel was valueless because they were not going to 
 back it with a grant. Up to the close of the middle ages and to 
 the middle of the reign of Charles V. the cortes retained their 
 independence ; but it was rudely shocked by the wars between 
 nobles and the revolutionary junta which in 1522 attempted to 
 bring them under taxation, and it came practically to an end in 
 1538, when the emperor, in great need of money, found them obdurate 
 as to making a grant, and dismissed them in great indignation. 
 From that time only eighteen cities were summoned to the cortes ; 
 and means were taken of making the thirty-six votes certain as soon 
 as money was wanted ; the third estate was not really strong enough 
 to stand by itself. In Aragon the taxation was strictly feudal ; the 
 
 x
 
 306 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 
 
 independence of the cortes there came to an end about the same 
 time. 
 
 Germany remains, and there it would be difficult to say that 
 there was any general taxation through the middle ages commonly 
 so called ; the emperor was, as a matter of fact, entirely dependent 
 on the proceeds of his own estates and on the money voted by his 
 hereditary provinces. These estates were originally very large ; but 
 by the time that the Hohenstaufens came to an end, they were all 
 either given away or sold. Conradin parted with the last of his 
 paternal allods to make his expedition into Italy ; and from that time 
 the hereditary succession ceased. The emperor, if popular, could 
 sometimes get a gift from the imperial towns ; and could, until that 
 resource was exhausted, improve his position by selling privileges 
 to princes, prelates, and cities ; but as a rule the imperial court 
 was very poor. The institution of circles by Maximilian placed 
 a small revenue and a small standing army for certain purposes 
 at the command of the emperor ; he could raise 4,000 horse 
 and 20,000 foot, and about 100,000 crowns as procurations for 
 his journey to Rome ; but none of the successors of Maximilian 
 took the journey. The diet also during the reign of Charles V. 
 voted him considerable sums in supply for wars against the Turks ; 
 but these were certainly extraordinary efforts, and so far as I 
 know there is no precedent for them before the reforms begun by 
 Maximilian. 
 
 A necessary corollary to the right of taxation is that of directing 
 expenditure and exacting an account of it ; impeaching dishonest 
 ministers, and making the grants of money dependent on the redress 
 of grievances. I think it would be difficult to find that any real traces 
 of such privileges lasting a long time or in an increasing ratio existed 
 anywhere else than in England ; nor in England were they secured 
 within the limit of the middle ages beyond the risk of gainsaying. 
 In France hardly an attempt was ever made to acquire the right. 
 Germany gave no scope for any such action. In Spain the parallel 
 with England holds good part of the way ; but if we may judge of 
 the earlier by the later history of the cortes, it does not hold good 
 in these respects. The cortes of Aragon in 1519 granted Charles V. 
 a sum of 200,000 ducats to be applied to the payment of the debts 
 of the crown ; but it does not appear that unless money was 
 demanded for a special purpose, it was usual to make special mention 
 of it in the grant. If the Spanish cortes ever attempted to make 
 their powers of taxation a leverage for the removal of abuses, the 
 king with the nobles and clergy would be strong enough to resist 
 them successfully ; and hence we cannot rate their influence in 
 general politics, the fourth of the heads under which we ranked
 
 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 307 
 
 the powers of the national council. 1 It was, of course, always 
 and everywhere in the power of the kings to determine what 
 should be brought before them, nor until late on in the constitu- 
 tional history of the middle ages had the parliament, cortes, or 
 diet any way of initiating measures except petition ; beyond that 
 stage the states -general of France never got. Even in England 
 and Spain only legislative improvements were otherwise initiated. 
 If the king wanted political advice, he asked for it ; if not, he did 
 without it. If he wanted advice and money too, the people had 
 their chance of giving the one and withholding the other. In the 
 earlier times, the twelfth century for instance, before the third 
 estate was summoned to the royal council, it may be remarked that 
 in England the king asked advice of his parliament on subjects 
 which now could not come in that shape before it : the marriages of 
 his children, even where no parliamentary provision was asked for ; 
 and occasionally a question of arbitration between foreign powers. 
 It does, indeed, show that the king's confidence in his own absolute 
 power was too great to allow him to be jealous of advice, and he 
 was therefore consciously free to ask it when he thought he wanted 
 it. Much later than the twelfth century, however, even in the 
 fourteenth, we find the commons trying to avoid advising the king 
 on the subject of war and peace, as matters too wonderful and 
 excellent for them ; doubtless had war or peace been made without 
 such communication their jealousy must have been roused. From 
 this period, however, there is no public matter in which, when they 
 are strong enough, or sufficiently excited about it, they are not able 
 to prove their right to interfere. I should say that generally the 
 diets of Germany were more like political councils than merely 
 taxative or deliberative ones ; they took cognisance certainly of the 
 behaviour of their emperor, and joined with him in the publication 
 of his recesses or edicts, which generally had reference to internal 
 politics ; they certainly advised him about wars from the crusade 
 of Frederick Barbarossa to the wars of Charles V. with the Turks ; 
 and, as we saw a lecture or two ago, they visited his incapacity or 
 neglect with remonstrance and even with deposition. 
 
 In the last place we have to notice the office of the national 
 council as touching judicature. I cannot now attempt to show how 
 the judicature of the English councils led the way to their organisa- 
 tion for other purposes, but we must start from the point that the 
 
 1 Hallam, ii. 33. Inter alia, cortes weighty matters he has always acted 
 of John II. in 1419 claimed the right and shall act in conformity with 
 of being consulted in all matters of their advice, 
 importance ; the king replies that in 
 
 5(2
 
 308 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 
 
 feudal council of the king was his high court of judicature. That 
 feudal council was the court to which all his vassals had to do suit 
 and service, and in which in the last resort their quarrels with one 
 another had to be decided. Out of this feudal court, which we have 
 seen took on itself the character of the witenagemot or national 
 council also, were developed the royal courts of justice, the curia 
 regis, the exchequer, the king's bench, the court of common pleas. 
 All these courts were either a selection of the learned lawyers out of 
 the body of the royal council, or committees, as we should say, of 
 the feudal court itself. But however many courts of justice were 
 cut out of it, it retained, in its own integrity, the character of the 
 highest judicature. The great council of the nation, as called under 
 the Plantagenet kings before it was superseded by parliament strictly 
 so called, contained all the elements and exercised all the powers of 
 the feudal court. After it was superseded by parliament, its juris- 
 diction seems to have fallen partly to the house of lords and partly 
 to the inner royal council, out of whose jurisdiction the court of 
 chancery sprang. The house of commons was as jealous of the 
 appellate jurisdiction of the house of lords as it was of the right 
 of the privy council to legislate in the shape of ordinances or to 
 try causes as a supreme court co-ordinate with the house of lords, 
 but it never succeeded in getting judicial power into its own hands. 
 The judicial power of parliament as the king's court is exercised by 
 the peers, so far as it continues to exist. It is only by impeachment 
 or by act of attainder that the commons can take part at all in an 
 act of judicature. 
 
 Compare with this the state of things in France. The abeyance 
 of the national assemblies, which caused the calling of the states- 
 general to be regarded as a new invention, had left the judicial power 
 of the king's feudal court to be exercised by lawyers and clerks ; yet 
 that power was exercised by them under the title of parliament. The 
 parliament of Paris was the assembly of the king's legal advisers, 
 and the organisation of it was a reform of Philip the Fair, and a pair 
 to his summoning of the states. The title of parliament alone seems 
 to survive to show that in the distant past both inventions had a 
 common forgotten origin. It is enough to say for this that this 
 parliament was not the national council, and that the states-general 
 made no pretence of or claim to judicature. Nor was judicature 
 any part of the regular business of the German diet, although it 
 was ready to decide disputes between the states of which it was com- 
 posed, to declare public enemies, and to put to the ban of the empire 
 those who were accused before it. But otherwise Germany had no 
 central judicature for many centuries. The diet was the feudal court 
 of the emperor, and in the general indeterminateness of its functions
 
 THE FUNCTIONS OF THE NATIONAL ASSEMBLIES 309 
 
 it is impossible to say that any business whatever was withdrawn 
 from its jurisdiction. We cannot now discuss the power of the 
 cortes in this respect, but you will remember that in Aragon the 
 power of the justizia was supreme in judicature — a check on the 
 tyranny of the king as well as on the feudal judicature of the cortes 
 and the distinct tribunals of the nobles, while in Castile the king 
 was regarded as the fountain of justice, and his magistrates, the royal 
 alcaldes, had a supreme jurisdiction, with which any such power on 
 the part of the cortes as the house of lords retained in England 
 would seem to be inconsistent. 
 
 [See Stubbs, • Constitutional History,'' Vols. I. and II. ; Hallam, 
 The Middle Ages:}
 
 XVIII 
 
 THE GROWTH OF THE REPRESENTATIVE 
 
 PRINCIPLE 
 
 The origin of the idea of representation we need not attempt to 
 define, it would seem to lie at the foundation of social life ; but the 
 history of the introduction of the principle into a particular depart- 
 ment of a particular national government is fair matter for inquiry. 
 One portion of that inquiry we have already investigated ; we saw 
 how and when the representative system was applied to the national 
 council in the countries in which the necessity of a limit on royal 
 authority was recognised. There still remain two portions of the 
 inquiry : (1) The origin of the communities which became repre- 
 sented in the national council, parliament, cortes, states-general, or 
 whatever the form might be ; and (2) the growth of the principle of 
 representation itself before it was introduced into this the highest 
 function of the body politic. We can afford, I fear, to give only a 
 very succinct account of either. The three estates of the realm 
 are the clergy, the nobles, and the commons ; this is a principle 
 recognised in the European constitutions, although some divide 
 the commons into peasants and burghers, and so make a fourth 
 division. Into the representation of the clergy and nobles I do not 
 propose to enter : the former would open a series of discussions about 
 councils and convocations, synods, and so on which would take us 
 away from our main point ; and as to the nobles, it is only on a very 
 limited scale that the principle of representation has been applied to 
 them. In England they always appeared in person without repre- 
 sentation except by the custom of proxy ; in Germany the orders 
 which did not appear in the diet were not represented at all. 
 
 The representation of the third estate will be sufficient for us to 
 discuss now, and this question breaks itself up at once into two — the 
 burgher and the peasant ; the burgesses and the knights of the shire ; 
 the town and the country ; the origin of the country communities and 
 the origin of the towns. Now, although in England the system of re- 
 presentation was applied to both these sorts of communities within a
 
 THE GEOWTH OF THE REPRESENTATIVE PRINCIPLE 311 
 
 very short space of time, it is scarcely too much to say that up to that 
 time they had had hardly anything in common. The country or 
 village communities are a system common to all Teutonic races, and 
 their whole administration is founded in freedom, in the spirit and 
 discipline of the ancient free allodialism. The town or burgher com- 
 munities are, on the other hand, founded on privilege, spring from a 
 state of servitude through a stage of protection into a stage of freedom 
 that we may compare with what S. Paul says about his own — the cities 
 with a large sum of money obtained their freedom, but the country 
 communities were free-born. The village or country communities 
 originate in the primeval condition of settled life. The unit of this 
 settled life in the Teutonie system was the mark, that is the circle 
 of inclosed and cultivated land which was surrounded by the forest 
 out of which it had been cleared, and was arranged for the use and 
 property of the handful of freemen who had cleared it, men pro- 
 bably of one mcegth or kindred, among whom the eldest of the 
 race would be the natural magistrate. In this mark we may suppose 
 there would be ten or a dozen families, each with its homestead and 
 allodial estate, each with rights in the common wood or pasture. 
 This is the origin of the English township ; and when the country 
 became Christianised this was the basis of the parish. Also for 
 judicial purposes it would be the district of the tithing, the ten men 
 would be bound for one another with the frankpledge ; and when 
 the land became feudalised that which had been the free jurisdiction 
 of the mark would become the manor. I do not mean, of course, 
 that townships, parishes, tithings, and manors are identical, but you 
 will as a rule find them divisible into the same subdivisions. One 
 manor may contain several parishes, and one parish several manors ; 
 but generally you will find that the one division is divisible into the 
 others without remainder. A number of these townships — ten, per- 
 haps, originally — formed the hundred, a division common like the 
 mark to the Teutonic races, and with a like organisation. The hun- 
 dred judicially has its hundred court for trial of offences, and it also, 
 as the country becomes feudalised, changes its administration into 
 the form of a bailiwick. Ecclesiastically it is a deanery. In the 
 court of the hundred the townships appear by representation ; the 
 reeve and four men represent each township in the English hundred 
 court, and I believe the same sort of arrangement was German also. 
 Well, rising higher, we come to the shire, or as it was in Ger- 
 many, the gau, which was a collection of hundreds, with its own 
 officers, the shire reeve or sheriff as judge, the ealdorman as military 
 leader, the archdeacon as ecclesiastical bead, or, where the dioceses 
 were small, the bishop. The court of the shire is emphatically the 
 folkmote or meeting of the people ; but the hundreds are represented
 
 812 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 
 
 by the hundred men, the townships also by their reeve and four 
 men, the church by the parish priests, and the feudal lords by their 
 stewards. The court of the shire has a regular organisation : for 
 judicial purposes the sheriff, ealdorman, and bishop preside ; but there 
 are twelve assessors, who hold the law in memory, and sit with them 
 to declare the law. In these two points, the representation of the 
 hundreds and townships by the reeve and four men, and in the re- 
 presentation of the whole body for the judicial purpose by the asses- 
 sors of the sheriff, the scabini as they were called in France, dchevins, 
 and by other names, we get the earliest employment of the principle 
 in the direction which it ultimately took. Thus far the rural organi- 
 sation is common to England and Germany. In Germany it went 
 no further, for at an early date the rural communities fell into the 
 hands of hereditary reeves, or grafs, under whom they were quickly 
 feudalised into little territorial principalities. But in England the 
 sheriffdom never as a rule became hereditary, and the whole bent of 
 the law was to make it an annual office ; nor was it allowed to fall 
 into the hands of the largest proprietors of land, as it would have 
 done had it been simply elective. The sheriffs were during the 
 historic times appointed by the crown from year to year with few 
 exceptions. Higher than the f olkmote the principle of representation 
 did not rise. The witenagemot was not actually representative ; it 
 may be that in the primeval times, when the shire was an independent 
 organism, or a little kingdom, the supreme council may have been 
 representative; in historic times it was not till the growth of freedom 
 had made it so. 
 
 Still, I think when the time came for the country to be 
 governed by representation, the machinery was at hand. The 
 institution of a new method of judicature by Henry II. substituted 
 for many purposes the election of two knights to direct the busi- 
 ness of the shire ; these two knights nominate the grand jury, 
 and become therefore the highest form of representation in the 
 shire : they are elected in the county court, they are consulted by the 
 crown as to the feelings of the county, and finally they are brought 
 together in a single assembly to express the wishes of the county, to 
 tax themselves, to join in the making of laws, to direct and control 
 politics, to make themselves indispensable as a part of the con- 
 stitution. In this development of the rural element we get a history 
 unparalleled in Europe, the direct growth of the perfect system from 
 the earliest forms and origin of ancient liberty : it is truly Teutonic 
 without a taint of the Roman, truly free without a touch of the 
 feudal. And it is peculiar to England among the four countries that 
 we are discussing : a representation of the peasant class did exist in 
 Scandinavia generally, and does still, I believe, in Sweden ; but as to
 
 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 313 
 
 our four countries, we may say that in France and Germany the 
 towns only were represented in the assembly of estates : the country 
 was indeed feudalised under the nobles ; while in Spain two plans 
 were adopted : in Aragon every tenant in chief appeared in person, 
 whether noble or not, and the under-tenants were nowhere ; in 
 Castile the country districts were represented, but it was not on the 
 basis of ancient freedom, but by the operation of a royal privilege, 
 exactly analogous to the charters by which in England, Spain, 
 France, and Germany the towns and cities were incorporated and 
 made into units capable of voting by representatives. 
 
 Now, the origin of towns is quite different, and is altogether the 
 result of privilege ; but the history of towns is so different in the 
 different countries of Europe that we must separate our inquiry as 
 usual into four branches. In the Eomanised parts of Europe, that 
 is in France and the Rhine country of Germany, many towns or 
 cities have been towns and cities from the Roman times, and so have 
 retained an administration which, whatever changes have been intro- 
 duced into it in machinery, may still historically claim a corporate 
 identity. In the north of France, England, and Spain such places 
 did exist under the imperial system, but they were extinguished 
 uuder the Teutonic barbarians, and even if they ever revived, they 
 revived with institutions altogether altered, there is no corporate 
 identity about them ; most frequently, however, in England and 
 Germany the modern cities are on different sites from the ancient. 
 
 We will, however, divide and take England first. Now, in England 
 a borough grew up under the protection of a lord : it might be the 
 king, or a bishop, or a great landowner, and the centre of population 
 may have been constituted by a castle or a church, or a port, or con- 
 venience of trade ; but as a rule the boroughs were demesne lands of 
 the king and nobles, inhabited by people desirous of their patronage 
 and protection : the soil on which they were built, the jurisdiction of 
 the district belonged to the lord, and he was their judge in peace and 
 their leader in war. As tenants on the demesne of the lord they 
 were his homagers, less than free therefore ; their reeve was his 
 steward, and by him and his reeve they appeared in the county court. 
 He could demand and take of them what feudal dues he chose. 
 They were, in fact, vassals of the lowest degree. Some organisation 
 was necessary for them, and that organisation they had in common 
 with the shire ; they had a reeve and his assessors, sometimes twelve 
 in number, who maintained peace and order by the lord's authority. 
 By the time of the Conquest most of the towns of England had 
 become demesne lands of the crown : there were not a large number, 
 but there were of course the county towns and the ports ; a few of 
 these were in the demesne of the bishops and earls, but most in that
 
 314 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 
 
 of the king, and the kings were always ready to sell privileges, even 
 if they were not, as the wiser ones were, anxious to foster the towns 
 for the sake of trade and the revenue derivable from it. The steps 
 by which the towns emerged from absolute servitude to comparative 
 independence in the two hundred years that followed the Conquest 
 are traceable. The liberation had begun, indeed, before the Conquest, 
 for under the semi-feudal jurisdiction of the native lords there were 
 towns which had made a good stride towards emancipation : the 
 first step, however, at the Conquest was to obtain a confirmation of 
 their existing status, such as William the Conqueror granted to the 
 city of London. 1 We do not know very much about that existing 
 state, for London is quite an exception, more like an aristocratic 
 republic than a mere capital city ; but the earliest town charters 
 generally are confirmations of the existing state of things. The 
 first step in advance is the purchase by the burghers of the firma 
 burgi : that is, instead of paying individually their taxes to the 
 sheriff for the king, they compound for a regular sum, which they 
 apportion afterwards among themselves. They became answerable 
 to the sheriff as a unit. 
 
 Now, the question is, what body was already in existence in the 
 boroughs that had a personality, that was representative enough to 
 deal on behalf of the whole community with the sheriff or the crown ? 
 and the answer is, that in some places there were merchant guilds, 
 voluntary associations with their own privileged organisation, con- 
 taining, in days when merchandise was restricted and trade quite 
 elementary, all the chief men in the place ; and in other, if not in 
 all, places there was the ordinary judicial machinery, the reeve and 
 the lawmen, the scabini, the assessors of the lord's steward in the 
 court leet. Of course where there was a merchant guild, the 
 members of it, as the most influential and richest burghers, would 
 be the leading men in the leet ; so that either of these bodies, or the 
 same men in either character or both, would be fit and able to deal 
 as representative bodies ; they were in fact the magistrates of the 
 borough. When, then, the guild of the town by its leet had bought 
 of the lord the firm of the borough, they had got a basis of 
 independence on which to go much further : they were now excepted 
 from the machinery of the county as regarded taxation, they next 
 procured an exemption as regarded judicature, and so emancipated 
 themselves altogether from the rule of the sheriff: the series of 
 charters begins with the reign of Henry L, and you can trace in 
 them the gradual purchase of new privileges, the largest under 
 Richard I. and John. First the privilege that the burghers shall 
 
 1 Select Charters, p. 82.
 
 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 315 
 
 not be compelled to plead outside of the main walls ; then that they 
 shall have the merchant guild and hanshouse, that is their right of 
 making by-laws and executing justice among themselves ; then that 
 they shall be allowed to choose their own magistrates : this point 
 they reached under John : they had common property then, and a 
 common chest ; they could make and enforce their own by-laws ; 
 they could resist the sheriff, or even refuse to receive the king's 
 judges, except at legal times. They grew stronger and richer, and 
 more inclined to a freedom every step of which they had purchased ; 
 and the last remnant of servitude pinched them in the tenderest 
 part, for since they had bought the firma burgi taxation had grown 
 amain, and the towns, as parts of the king's demesne, were Liable to 
 him for tallages in a way which the country had been freed from by 
 Magna Carta : hence their struggles for freedom, and the importance 
 to the royal cause of propitiating them. When Simon de Montfort 
 wanted an assembly sure to provide funds, he summoned the towns ; * 
 and when Edward I. found that to exact tallage without a grant of 
 the people's representatives was becoming an impossibility ; that the 
 voice of the knights of the shire was not enough to warrant the collec- 
 tion of taxes from communities which were out of the shire, although 
 these were in it ; when he found that the old plan of canvassing the 
 towns individually for money was made an excuse for hanging back 
 rather than a reason for rivalry in benevolence and patriotism ; 
 when in fine he found that he must work England in a repre- 
 sentative parliament if he was ever to be strong and just, he made 
 the representation of the towns a part of the constitution ; and as 
 he summoned two knights for each shire he summoned two burghers 
 from each town to his parliaments. 2 But until modern times the 
 variations in the borough representation have testified to their 
 foundation in privilege and servitude ; for the king could increase 
 or diminish at will the number of towns sending representatives, and 
 even the sheriff or the boroughs themselves could limit this branch 
 of the legislature. The towns were glad to be excused the expense, 
 the sheriff could arrange matters as suited his party. There was 
 not the same unaltered basis of representation that there was in the 
 counties : the franchises differed in the towns ; sometimes the 
 magistrates, sometimes the tenants of the btirgage houses on which 
 the original firma burgi was fixed, sometimes the whole body of 
 freemen returned the members ; sometimes the lord of the manor, 
 the town continuing still in private demesne. If it had not been for 
 the county representatives forming a body of independent men, 
 unvarying in number and position, the representative system might 
 
 1 Select Charters, p. 415.   Ibid. p. 486.
 
 316 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 
 
 have died out altogether, or become powerless as it did in other 
 countries. Of the subsequent developments of the boroughs ; of 
 their being incorporated, that is made capable of perpetual succession 
 instead of personal only ; and of their becoming in several instances 
 counties in themselves, I need not speak here, for they do not affect 
 the point of representative government at all. 
 
 The history of the estates which in the other countries of Europe 
 were represented in the national assemblies, is somewhat simpler 
 than that of England, because either the towns alone were repre- 
 sented as in Germany, and, as compared with the country, in France 
 also, or where, as in Spain, the rural districts were represented, they 
 owed their right to the concession of privilege by the sovereign, and 
 not to the old Teutonic birthright. There were of course towns 
 which more or less represented the rural interest, but they did not 
 represent it as country, but as towns privileged by charter or fuero. 
 We need not, then, say anything about the other elements of the 
 states-general, the diet, or the cortes, but confine ourselves to the 
 origin of the towns and cities. 
 
 And first France. Hallam, in a very good note on the history 
 of French municipalities, taken in great measure from Guizot, gives 
 four distinct origins for the French towns : 1. The prescriptive 
 possession of civic right, handed down from Eoman times, in the 
 government of decurions, with a defensor iirbis : the cities which had 
 this ancient constitution were all in the South of France, where the 
 Roman and Gothic elements were stronger than the Frank, and 
 where the greater proportion of people were living in the personal 
 enjoyment of the privileges of the civil law. 2. The German 
 system of guilds spreading to the whole community for a common 
 end : this is analogous to the influence of guilds in the early 
 English towns, but I cannot agree in making it an independent 
 source of civic organisation ; the reeve and his assessors, the 
 schultheiss and the scabini, the schout and the schepens, were not 
 necessarily connected with the idea of the guild, but with that of the 
 township or vill, which was no doubt indebted to its identification 
 with the guild for much of its cohesive power, but was not originally 
 the same thing. 3. The forcible insurrection of the inhabitants 
 against their feudal lords ; and 4. The bestowal of privileges by 
 charter. Now, the two latter divisions are illogical ; they are in fact 
 only two of the ways in which the privileges otherwise originated 
 were secured. There are really only two origins, the Roman and 
 the Teutonic : the Teutonic may be worked into a perfect develop- 
 ment either by the voluntary act of the ruler, or by the extorted 
 privilege, for actual independence won by insurrection is not a result 
 ever found in the French municipalities. The history of the Roman
 
 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 317 
 
 municipalities is peculiar to itself ; that of the others has every 
 element in common with that of the English towns which we have 
 just discussed : the emancipation from external jurisdiction, purchased 
 by the payment of regular imposts ; the by-laws of the individual 
 community, confirmed by charter ; the privilege of electing magistrates 
 and conducting their own judicature. The distinction between the 
 commune and the bourgeoisie, of which Hallam says a good deal, 
 and on which the French jurists are strong, is almost exactly 
 analogous to the difference in England between chartered towns and 
 boroughs in demesne. Both have a good deal in common ; but the 
 borough in demesne and the bourgeoisie are not, as we should now 
 say, incorporated : they have not the communa or corporate identity 
 which in mediaeval times was the great feature, the essence in fact, 
 of a chartered borough ; and in France, where more frequently than 
 in England they were subject to other lords than the king, I question 
 whether they were represented in the states-general, though they 
 doubtless would be in the provincial estates. The distinction of 
 communes and bourgeoisies is a cross division to that of Roman and 
 Teutonic cities ; for both the latter might belong to either class, 
 according to the tenour of their charters. If they had no charters 
 they necessarily belonged to the bourgeoisie class. It is hardly 
 necessary to account for the fact that the lower nobles and the towns 
 only were represented in France, the noble class being so large, and 
 all the land except the towns belonging to the noble owners ; for the 
 lower order of freeholders, which must have existed at one time, was 
 either altogether lost sight of, or sank in the general mass of 
 servitude which lay at the root of this perfectly feudalised 
 constitution. 1 
 
 1 Thierry divides France municipally into five zones : 
 
 I. North — Pays des communes juries, communes proper — filiation of 
 charters in Picardy as in the model charters of Derby, Norwich, 
 Oxford, in England. 
 Rouen, mayor, 12 ^chevins, 12 counsellors, 75 peers. 
 
 II. South — Italian, consular regime. 
 
 Podestat in Marseilles, Anguen, and Aries, a foreigner, as in Rome. 
 Consuls established, Aries 1131, B^ziers 1131, Montpellier 1141, 
 
 Nismes 1145, Narbonne 1148, Toulouse 1188 (first appearance). 
 Bordeaux, mayor, 50 jurats, 30 counsellors, 300 defenseurs. 
 
 III. Centre— Orleans, Maine, Anjou, &c. 
 
 Constitutions won by revolt ; aimed at commune or consular, but 
 
 not reaching it ; emancipated towns. 
 Chartres, 10 prudhommes. 
 Orleans, 10 prudhommes. 
 Le Mans, first case of insurrection ; against bishop ; chartered by 
 
 Louis XL 
 Tours, 2 boroughs, with 4 prudhommes each. 
 Bourges, also 4 prudhommes, freely elected for a year.
 
 318 THE GEOWTH OF THE EEPRESENTATIVE PRINCIPLE 
 
 But it is interesting to ask in what measure were the towns 
 represented in the states-general, and by what machinery were the 
 representatives elected ? l I wish that we had data for forming such a 
 conclusion as would give a reality to our idea of the thing ; but all 
 I can say is that, so far as I know, all chartered towns, all bourgeoisies 
 or boroughs, and sometimes even unwalled towns and villages, 
 appeared by deputies in the states-general ; and as these chartered 
 towns had by their charters the right of electing their own officers, 
 the deputies to the states-general were so far certainly elective, and 
 elected by that part of the community to which the privilege was 
 given by the charter in unchartered towns ; probably the magistracy, 
 by whatever form appointed, were the most likely persons to appear 
 as deputies, so that it matters little whether the deputies were 
 specially chosen to be deputies, or were, as in later times, the chiefs 
 of the local magistracy ex officio. I need hardly tell you that it was 
 for purposes of taxation only that the states -general were ever 
 called after their first summons by Philip the Fair ; that they 
 had no political authority, except the very indirect one of stop- 
 ping supplies, only a part of which they furnished, and in the 
 voting of which they were largely outnumbered by the clergy and 
 nobles ; and that consequently they are of less constitutional 
 importance than the corresponding branch in any other national 
 system of Europe. The dates are simple : the Koman municipalities 
 and the bourgeoisie towns are of remote antiquity, the former springing 
 from the ancient empire, and the latter from the feudal system in 
 its first stages : the charters of the communes or corporate towns 
 begin under Louis VI., almost at the same time as they begin under 
 Henry I. in England. The states-general were called first by Philip 
 the Fair in 1302, and from time to time during the century, but the 
 
 IV. West— Brittany, Poitou, Saintonge, Angoumois, &c. 
 
 1. Peculiar Breton institutions, regime alafois ecclesiastique et civil ; 
 
 parish church the centre. 
 
 2. Poitou &c. derived the constitution from Normandy, on the plan 
 
 of the Rouen system ; under English domination. 
 V. Alsace. 
 
 Enemies hostile to municipal independence where it was created by 
 
 revolutionary means ; acts of Frederick II. against them. 
 Besancon. 7 quarters or bannieres ; each chose 28 notables, who 
 named 14 magistrates for the year ; prudhommes ; the 14 current 
 prudhommes + the 14 of last year + 28 notables were the council 
 of state. 
 
 Lyons — Droit Italique (Jus Italicum) charter in 1320 from Peter of Savoy 
 preserves ancient status ; sec. 13 ; council of fifty = Roman curia ; 
 concentrated in council of 12 ; called sometimes echevins, some- 
 times consuls. 
 
 1 Hallam says the lower nobles were represented in the states-general by 
 deputies,
 
 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 319 
 
 king gradually engrossed the power of taxation, as well as of 
 legislation, which the states never had possessed. The history of 
 Philip the Fair is a curious travesty of that of Edward I. 1 
 
 The history of the German towns is in some respects opposed 
 to this ; some points it has in common. As in the case of the 
 churches, so here, those districts which had been thoroughly Roman- 
 ised retained the institutions which the South of France re- 
 tained. The great cities of the Rhine retained the character of Roman 
 municipalities, in some cases overlaid by ecclesiastical or feudal 
 superincumbrances, but still a continuous identity. The Germans 
 themselves were not a city-loving race, and accordingly in those 
 regions which had never been Romanised there were very few cities 
 or towns with any constitution at all until Henry the Fowler and 
 Otto I., by way of colonising and consolidating the north, founded 
 cities with very extensive privileges, intended to invite settlers. The 
 two points to be remarked as to these are : (1) That the purpose 
 of foundation was well defined ; (2) the civic constitution did not 
 grow up, but was a creature full-grown at its birth, the creation of 
 royal policy and privilege. The subject territory, the noble 
 burghership borrowed from the Roman patriciate, the titles, perhaps 
 Teutonic in sound, but meaning far more than merely met the ear, 
 the very great extent of the favours heaped upon them, purchased by 
 them, or given in gratitude for the help so freely and constantly 
 bestowed on the emperors by the cities, all these things marked 
 out a great future for the German cities, a future shared and most 
 brilliantly exemplified in those of the Netherlands and Flanders, 
 the origin of which is partly Teutonic, partly French. And the 
 German cities, instead of being excluded by the nobles from the 
 diet, actually superseded a great part of the native nobility. The 
 diet consisted of the prelates, the princes, and the cities ; counts 
 that were not of the rank of princes did not sit there and were not 
 represented. 
 
 In theory, then, the German diet was a very popular assembly ; 
 that is, the popular or representative element in it was strong. And 
 occasionally we do find the election of an emperor, although it was 
 not a point on which the diet as a diet was competent to treat, con- 
 siderably affected by the support or antipathy of such a city as 
 Nuremberg or Frankfort, much as might be the case with London 
 in the chance of a disputed succession in England. But the diets, 
 as you know from your German history, were a very disunited body 
 and were called together but seldom ; when called together they had 
 
 1 States-Gen. 1302. W. de Nangis. decanos et custodes ecclesiarum col- 
 Barones, proelatos, duces et comites, legiataruru, vicedominos, castellanos, 
 abbates et procuratores capitulorum, majores et scabinos civitatum.
 
 320 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 
 
 little power to execute their own sentences. The country which 
 they were supposed to help to govern was really divided into a 
 variety of independent states, each of which had a little diet or 
 assembly of estates of its own, just as was the case in Flanders and 
 in France also. The provincial estates were more lively and 
 influential as a rule than the diets or states-general. And as they 
 were also more squeezable, great part of the business that could be 
 transacted without general discussion was transacted in them. The 
 diet was very often merely a magnificent show ; where it was not 
 merely that, it was in many cases a tumultuous gathering. The 
 cities, however, as I said, were in most cases on the side of the 
 emperor, from whom they could expect only privilege, and against 
 the local ruler, whom they resisted as an aggressor even to the 
 waging of war. The appearance of the cities in the diet of the 
 empire dates from the end of the thirteenth century. Here, also, 
 the right of representation belongs only to imperial cities, and there 
 is no doubt that the election of the deputies was made by the ruling 
 class or burghers. 1 
 
 What I have said of these is true, and to a larger degree, of the 
 Netherland cities, the charters of which raise them to the rank 
 almost of independent states confederated voluntarily for certain 
 purposes. There are differences as to the extent of privilege and as 
 to the purposes for which they were granted, and as to the ways in 
 which they were extorted, but there is little difference as to their 
 origin. And here the provincial estates were powerful. It was not, 
 indeed, until the gathering in by the dukes of Burgundy of this 
 large agglomeration of territory that any framework of unity was 
 formed ; and when it was, the states-general were but the repre- 
 sentatives or proxies of the several provincial bodies. 
 
 The history of the Italian cities lies outside of our present subject, 
 but I may say of the northern ones that their origins differed, as did 
 the French. Some were Eoman, some were the creation of the 
 German emperors, but they were all separatist in tendency and 
 character ; they would not combine except under a force seldom 
 strong enough to exert itself, such as Frederick I. could bring to 
 bear when he held his diets at Roncaglia. Then the Italian system 
 was in its infancy ; but it was disruptive, as was the German : dis- 
 ruptive, with a strong dislike to the empire, and herein opposed to 
 the German, to which not unfrequently the empire was indebted for 
 its continued existence. As to Southern Italy, there is, I believe, no 
 doubt that Frederick II. did summon representatives of his cities in 
 Naples and Sicily to his great courts. It would be improbable that 
 
 1 The votes in the diet of the towns were reduced to two in 1474, the 
 Rhenish and Westphalian benches.
 
 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 321 
 
 a plan which was already in use in Spain, and was coming into use 
 in England, should have no recommendations in the eyes of so 
 ingenious an organiser and so far-sighted a politician ; but the facts 
 are obscure, and the duration of the system depended on his own 
 energy. Whatever he organised perished with his dynasty. 
 
 We come, then, last, to Spain ; that is, (1) Castile ; (2) Aragon, 
 with its three constitutions, the Aragonese, the Catalonian, and the 
 Valencian. (1) In Castile, as in North Germany, the origin of the 
 towns is historical. They were created for defence and colonisa- 
 tion ; they were created by privilege, fuero or charter, not by the 
 operation of common law. One of their privileges was the right of 
 being represented in the cortes ; their charters and their enjoyment 
 of this privilege are as old as the eleventh century at least. Nor 
 were the towns the only communities possessed of this right. The 
 country was carved into behetrias or chartered divisions, privileged 
 by fuero in the same way. And this is the only one of the four 
 countries in which the rural as well as the urban population is repre- 
 sented except our own. It differs from ours because our representa- 
 tion of the counties is not a matter of charter, but of the very 
 essence of the constitution. The representation of the behetrias, as 
 that of our towns, is the result of privilege. And it was in Castile 
 a privilege which varied according to the exigencies of the times. 
 The cortes were complete whether the number of communities repre- 
 sented was great or small. The sovereign had thus power far too 
 great to allow the cortes to be a perfect or an independent repre- 
 sentation. Still the cortes had for five centuries very great power, 
 and in them the great power was not that of the nobles or clergy, 
 who were reduced to insignificance by their privilege of freedom 
 from taxation. The cortes represented the taxpayers, and so were 
 able to make their influence felt. They were not outnumbered by 
 the non-taxpayers ; their authority extended to all the business of 
 the nation ; laws were subject to their approval, and all political 
 matters discussed in them. They came, in fact, the nearest of all to 
 our English parliament ; but their history is not that of the 
 English parliament, for it both begins and ends differently. Yet 
 through mediaeval history the Castilian cortes are a great power. 
 They fell before Charles V. ; but rather by intrigue, such as the 
 nature of their constitution left them liable to, than by any mis- 
 conduct of their own. Their later history in their revived form is 
 not such as to deserve praise. 
 
 I should not omit to mention that in Castile as in Germany, in 
 times of weakness of the central authority, volunteer combinations 
 were both sanctioned and patronised by the law. The Hermandad 
 under Ferdinand and Isabella, for the maintenance of justice in 
 
 Y
 
 322 THE GROWTH OF THE REPRESENTATIVE PRINCIPLE 
 
 troubled districts, is exactly paralleled by the leagues of the counts, 
 cities, and bishops of Germany in the fourteenth and fifteenth 
 centuries, the league of St. George's Shield, or the Swabian League, 
 or the Wetterau League. And as, when peaceful times came, the 
 Catholic princes Ferdinand and Isabella restored to the cortes the 
 functions that the Hermandad had usurped ; so Albert II. and Maxi- 
 milian constructed out of the leagues the system of the circles by 
 which Germany was regulated as long as the empire continued to 
 exist. 
 
 (2) In Aragon the cortes consisted of four states : the ricos 
 hombres or barons, the infanzones or knights, the clergy, and the 
 chartered towns. The constitution was entirely feudal ; the barons 
 were the large holders of land ; the cities were chartered towns in 
 demesne ; the infanzones were the class which in England sent the 
 knights of the shire to parliament, and in Castile the deputies from 
 the country behetrias ; but in Aragon, as in England under 
 Henry II., they were not represented except by their own personal 
 attendance. Moreover, they were very few in number, and although 
 they escaped the extinction which the corresponding class met in 
 France, they did not develop, as in England, into a county repre- 
 sentation at all. In Catalonia and Valencia the cortes consisted of 
 three estates only, there being no infanzones, but the system was 
 purely feudal, as in France and Aragon. The actual power of these 
 bodies in these small kingdoms was, however, disproportionately 
 great, as we shall see, or have seen already, under our other heads.
 
 XIX 
 
 EAKLY JUDICIAL SYSTEMS 
 
 The subject of judicature lies so deep at the root of all constitu- 
 tional development, and it is so commonly through the machinery of 
 judicature that the constitutional instincts of people are trained and 
 modelled, that we must not, even at the risk of compressing and 
 omitting other important matters, let the course finish without some 
 attempt at the examination of it on the principle which we have 
 hitherto followed. We have seen in several points the assistance 
 that it has given in English history to the growth of the represen- 
 tative system, and how in all the municipal systems powers bestowed 
 for the carrying out of judicial proceedings in the newly chartered 
 communities have been the basis of the independence afterwards 
 erected there. Nor would it be difficult to show how it was in this 
 department of civil administration that the three ideas of delega- 
 tion, representation, and election became combined. But any such 
 lengthy speculation we have not time for now. I shall therefore 
 briefly sketch, at some little detail in the case of England, but in 
 the others as shortly as possible, the growth of the more elaborate 
 judicial system. 
 
 Judicature is among the Anglo-Saxons purely a matter of 
 local or self-government. The court of the township, or, as it was 
 afterwards called, the court leet, settled disputes between the men of 
 the township ; the reeve, the elected head of the village, or tithing, 
 or township, or if it were a village in the franchise of a lord his 
 steward, presided ; the law was declared by the oral testimony of the 
 elders ; the compurgators swore to the innocence of the accused, 
 as the witnesses deposed to his guilt ; not much judgment was 
 required, the guilt or innocence being decided by the value of the 
 oaths, and in some cases by ordeal. Above the court of the town- 
 ship, the business of which was of course very small and unim- 
 portant, was the court of the hundred, and above that of the 
 hundred that of the shire or folk mote, in each of which the 
 township was represented by the reeve and four men, while the 
 presence of the thanes, the parish priests, the bishop, sheriff, and 
 
 y 2
 
 324 EARLY JUDICIAL SYSTEMS 
 
 ealdorman gave to the united body a completeness which for the 
 most part satisfied the litigants. Very few causes ever went higher 
 than the shiremoot ; the sheriff, within historical times a nominee 
 of the king, represented the judicial element in the presiding trio, 
 the bishop the religious sanction, the ealdorman the national recogni- 
 tion ; but the suitors were themselves the judges, the functions of 
 the body being confided to twelve thanes sworn to declare the law, 
 as assessors of the sheriff. 
 
 The compurgatory system decided guilt or innocence. If any 
 cause could not, either from the equality of the compurgations or 
 from the ambiguity of the law, be settled in the folkmote, there was 
 no other resource but the king in person, who from time to time 
 made judicial journeys, or could be caught and made to act as 
 assessor while he was travelling about to his different allods. This 
 was a primitive mode of action, and before the Conquest we find 
 cases (1) of the king appointing high reeves to hear and settle 
 matters occasionally in the provincial courts ; and (2) by writ calling 
 the suitors to his own audience, or otherwise interfering with local 
 procedure. This is not very certain, however, but it does seem clear 
 that no cause could on the theory of the law come before the king 
 except by way of appeal. After the Conquest, the local courts con- 
 tinued to maintain their jurisdiction side by side with the manorial 
 courts of the feudal lords. No doubt in these latter some feudal 
 customs were introduced, but the main processes continued for nearly 
 a century the same, compurgation and ordeal, wager of law and 
 wager of battle ; the act of William the Conqueror also modified 
 the constitution of the national courts so far as to relieve the 
 bishops from taking part in them. 1 These local or national courts 
 were strictly representative bodies, and their judicial authority was 
 from beneath and not from above ; their jurisdiction was not derived 
 from the king, although by nominating the sheriffs and other func- 
 tionaries he gradually absorbed the management into the supreme 
 government. But under the Conqueror and William Rufus the 
 supreme sovereign or appellate jurisdiction of the king became a 
 great feature of government, and as the business increased the royal 
 justiciar took his master's place at the head of the curia regis, that 
 curia regis being, as it is commonly stated, the feudal vassals of the 
 king in the first instance, but devolving its legal business on certain 
 learned members of its own body, who in their judicial character 
 were called justices of the curia, and in their financial capacity 
 barons of the exchequer. At the head of these, in both their 
 capacities, was the chief justice or justiciar, who acted as the 
 
 1 Select Charters, p. 85.
 
 EAELY JUDICIAL SYSTEMS 325 
 
 king's representative in all matters, just as the reeve or steward of 
 a manor represented the lord of the manor, and as the sheriff or 
 vicecomes represented the royal functions in the shire at the head 
 of all business, judicial, taxative, military. The chief justiciar 
 was regent in the king's absence, judge of the court, prime minister 
 of the treasury, commander-in-chief of the forces. By the justices 
 of the curia and the ' barons of the exchequer,' Henry I. began to 
 exercise provincial jurisdiction over the heads of the county courts, 
 not as a regularly settled system but rather by an occasional special 
 commission. 
 
 An assize or provincial session of the justiciar is mentioned in 
 the Anglo-Saxon Chronicle under the name of witenagemot, and one 
 of them signalised itself even in those murderous times by hanging 
 eighteen robbers, a fact which shows that they were acting judicially, 
 even if, as would seem from the pipe roll of Henry, their expedi- 
 tions into the country were chiefly and primarily financial. We 
 gather from this that the taxative machinery of the exchequer — that 
 is, the visits of the barons to the different towns and county courts 
 for the purpose of rating the feudal aids and assessing Danegeld — 
 was made available for judicial purposes also, and that thus was 
 laid the foundation of a new system, emanating from the king as 
 fountain of justice, which gradually absorbed all the important 
 functions of the ancient folkmotes, while it superseded in all 
 serious matters the action of the feudal courts of the great vassals. 
 If in this we see cause to grieve over the diminution of the im- 
 portance of the old national institutions, we must set against that 
 loss the great gain of the reducing to insignificance the manorial 
 courts of the nobles, whose jurisdiction had a tendency to constant 
 extension and interference with the rights of the people. This was 
 accomplished by Henry II. 's organisation of itinerant judges, who 
 united financial with judicial powers, and who under his successive 
 assizes of Clarendon and Northampton introduced a new system of 
 process superseding compurgation everywhere but in the chartered 
 towns, and retaining in the institution of the grand jury the prin- 
 ciple of election and representation. The same points were kept in 
 view in the institution of the grand assize l and in the several modifi- 
 cations of it under Richard I. and John. Out of these reforms we 
 might, if we had time, trace the growth, on the one hand, of trial 
 by jury ; on the other, of self-government in matters of taxation, 
 the representation of the taxpayers for the purpose of assessment, 
 step towards their being assembled for the purpose of voting the 
 taxes. All this is familiar enough to you who have read English 
 
 1 Select Charters, p. 161.
 
 326 EAELY JUDICIAL SYSTEMS 
 
 history with me. I cannot now state it at length without displacing 
 matters that have a prior claim to our present discussion. 
 
 In these systems we have the germ of modern provincial 
 jurisdiction by royal judges ; in the curia regis and exchequer that 
 of the supreme central judicature ; the royal audience constantly 
 throws off new courts, still retaining its own supremacy. Henry II. 
 limits the number of justices of the curia, reserving appeal cases to 
 himself ; under John the curia breaks up into three permanent 
 courts, the bench, the exchequer, and the court of pleas ; under 
 Henry III. each of these has a staff of judges to itself, and at last a 
 chief of its own, the ancient justiciarship being broken up into 
 three. The royal audience, again, under John, remains, as under 
 his father, the personal tribunal of the king and his curia ; under 
 Henry III. it is united with the great council of the nation, giving 
 the origin of the appellate jurisdiction of the house of lords, but 
 still continues to exist by itself. Under Edward I. it originates the 
 equitable jurisdiction of the chancellor ; under the later princes that 
 of the privy council, the star chamber, the judicial committee of 
 privy council that exercises us so strongly at the present day. The 
 principle is that of a central power, constantly, as it were, throwing 
 off from itself functions of jurisdiction, but as constantly retaining 
 its own original power unimpaired. 
 
 Now, there is not, I believe, in any other nation anything so 
 complete as this ; but it has many complexities, and from beginning 
 to end there must be difficulties where there are so many co-ordinate 
 jurisdictions. It is far from easy to determine the mutual relations 
 of the courts of the hundred and shire, and those of the manor and 
 honour, or the co-ordinate departments of the bench, the pleas, and 
 the exchequer, or the rival merits of the chancery, the house of 
 lords, and the judicial committee of privy council. But that very 
 complexity is a sign of growth ; simplicity of detail signifies 
 historically the extinction of earlier framework. That which springs 
 up, as our whole system has done, on the principle of adapting 
 present means to present ends, may be complex and inconvenient 
 and empiric, but it is natural, spontaneous, and a crucial test of 
 substantial freedom. Perhaps, however, in our present connection, 
 the point we have chiefly to remark is, the entire prevention of the 
 feudal lords from obtaining jurisdictions over their vassals in causes 
 of any kind. It is only in very unsettled times and in very un- 
 certain conditions of the law that any feudal baron can hang, fine, 
 or beat his own dependant, even the poorest and the meanest. Of 
 course, where law is paralysed, such things are done, but not by 
 virtue of the law, as in foreign countries where the feudal tenure 
 has carried feudal jurisdiction, either under the royal supervision or
 
 EAELY JUDICIAL SYSTEMS 327 
 
 independent of it. Neither as under the king nor as against the 
 king could the possession of land or heritable jurisdiction give one 
 man any judicial hold upon another save according to a common 
 process of law. 
 
 Now, in France the case is very different : both in France and 
 Germany we find the great feudatories ousting the royal jurisdiction 
 from their domains. In the Karling empire, much that I have 
 described as Anglo-Saxon, but which was really Teutonic or allo- 
 dial, subsisted and worked fairly. There was thus abundant local 
 machinery, while for the central machinery there was the imperial 
 court with its officers, and, as a link between the two, there was the 
 jurisdiction of permanent counts palatine, exercising their functions 
 in the several nations, and occasional missi dominici, whose com- 
 missions were special and extraordinary. We saw that the tendency 
 of the palatinates was to unite with the local hereditary jurisdictions 
 and split off into territorial principalities ; the paralysis of the centre 
 gave them complete independence ; the missi dominici came to an 
 end ; and the rest worked without control. Such was the state of 
 affairs in France until the monarchy began to gather the provinces 
 and clothe itself in administrative strength. Such was the permanent 
 condition of Germany from the restoration of the empire by Otto 
 to the fall of Frederick II., under some control ; from the fall of 
 Frederick II. to the reign of Maximilian, without any. The point 
 of time at which the territorial judicature became a matter of 
 feudal privilege cannot be ascertained, or rather it grew up during 
 a long period, and only acquired its full growth when the central 
 power became paralysed or extinct. In France not only the great 
 feudatories had high justice, but the barons and castellans also : 
 a right which the turbulent barons of England were prevented from 
 obtaining by the policy of William I. and Henry II., the middle and 
 lower justice being held by the vassals of lower rank over their 
 unfortunate dependants. The cruelties of these feudal courts were 
 ameliorated by several expedients, but the title to jurisdiction was 
 the same, and all great feudatories ignored any supreme centre. The 
 attempt to recover the royal status in this respect was made in 
 France by Louis VI., whose institution of itinerant judges, almost 
 contemporaneous with the like act of Henry I., may have had a 
 common origin. Philip Augustus in 1190 established royal courts 
 of justice in his domains, on the plan of feudal courts rather than 
 of the provincial extension of central jurisdiction as it was practised 
 in England, and thus made each of his demesne baronies a fixed 
 centre of law and justice, which attracted and gradually engrossed 
 the great share of territorial judicature. 
 
 On the other hand, the royal council of barons, which in England
 
 328 EAELY JUDICIAL SYSTEMS 
 
 took the form of the curia regis with its manifold developments, 
 f*rew up in France later and less spontaneously into the parliament 
 of Paris, a strictly legal body, formed on the basis of the court of 
 peers, but gradually adding lawyers and eliminating barons, until 
 it consisted of the former only. The history of this parliament is 
 important, not only judicially but legislatively, for in its character 
 of registering the royal ordinances it acquired a power of wording 
 or modifying them, just as in England the chancellor made his 
 way to jurisdiction by having the duty laid on him of drawing up 
 the writs of the king's court. And there can be no doubt that as 
 the knowledge of jurisprudence marched along with the growth of 
 the power of the parliaments, very much that was unjustifiable in 
 the local and feudal courts was remedied and prevented. It was by 
 these means the extension of royal demesne till it covered the whole 
 area of France, the establishment of royal courts gradually as the 
 demesne increased, acquiring supreme territorial jurisdiction, and 
 the growth in power and fame of the parliament as the central and 
 highest court, that took away the abuses of baronial jurisdiction, 
 and made impossible the excesses of royal tyranny. It is clear, 
 however, that in France the judicial system had retained very little 
 of the ancient character ; it was overlaid in the north by feudal 
 custom, and in the south by Roman law ; and accordingly it was 
 scarcely able in the slightest degree to modify the constitutional 
 process. It was, in fact, extinguished ; and the restoration of law 
 and order was managed irrespective of it ; law and order were 
 restored not by the workings of the nation, but by the increase of 
 the power of the king, and they ended as the royal power must ever 
 end when the needful checks are wanting and the deeper forces 
 depressed and bound down in despotism, resulting in an explosion, 
 a revolution, anarchy, and, as action and reaction are correlative, a 
 series of such phenomena, which has never in this world's history 
 been summed up except in national extinction. It remains to be 
 seen whether the experience of the ages and the development of 
 political knowledge has anything better in store for France in our 
 own time. 
 
 As for Germany, it would be hopeless to attempt to discriminate 
 the various petty and local jurisdictions which the princes, each 
 supreme in his own territories, and the barons, subject only to their 
 princes and sometimes not even to them, had engrossed in their 
 own hands ; nor can I pretend to say what amount of local inde- 
 pendence remained during the middle ages as a check on this from 
 below ; but probably there was some everywhere, and through North 
 Germany, where both the allodial tenure and the local self-govern- 
 ment retained their vitality, as in Friesland and Holstein, that check
 
 EAKLY JUDICIAL SYSTEMS 329 
 
 was doubtless very considerable. But there was no check from 
 above. Between the princes and nobles the right of defiance and 
 private war flourished for three centuries, the very measures taken 
 for the prevention of it being used to legalise and strengthen it. 
 Nor were the central courts established by Maximilian, the imperial 
 chamber and the aulic council, accessible to the subject except 
 through long and tedious transactions and by way of appeal. Their 
 chief object was to settle disputes between the states, and the 
 territorial jurisdiction of the states was left to themselves. Thus 
 every state in Germany has a separate history ; nor can any gene- 
 ralisations be drawn from them illustrative of a state of things which 
 in England, and indeed in France also, was so very different. 
 
 More important analogies, in this as in all other constitutional 
 matters, meet us when we turn to Spain. Spain, in its two kingdoms 
 of Castile and Aragon, does in the article of judicature afford some 
 most important parallels with the English practice in its two stages 
 of Anglo-Saxon and feudal, and to the French systems of the two 
 great periods of the second and third race. Taking Castile first, we 
 distinctly get in the scanty sketch given by Hallam both the ancient, 
 local and the modern central system, the former of which preceded 
 in England, and the latter of which superseded the feudal judica- 
 ture. The alcaldes of the towns, at first elected by the community 
 and later by the governing body, seem to answer exactly to the 
 reeves or provosts of the early English townships, or the steward 
 of court leet in the rudimentary municipalities ; the officer who in 
 the county communities was elective because they were free, and in 
 the towns was nominated by the lord because they were less than 
 free, until by charter the right of choosing their provost or mayor, 
 or town reeve, or port reeve, was conferred upon the community. 
 Sir Francis Palgrave has shown that one peculiarity of the Castilian 
 system was the election of both military and naval commanders by 
 oath of twelve men ; that is, the principle of election was recognised, 
 and the principle of representation by jury, although applied there 
 in the choice of officers, here in the declaration of law or fact at 
 different times. We cannot, then, doubt that the institution of 
 lawmen in some shape or other was germane to the Spanish 
 system. The jury of good men was indeed an actual part of 
 trials, in which the decision of the single judge who first heard 
 the case did not content the parties. The existence of a chosen 
 judge and a jury of twelve men to declare the law was thus common 
 to the Anglo-Saxon and Visigothic systems ; and so were the more 
 ancient expedients of compurgation and ordeal. This is perhaps as 
 far as it is wise to carry this point, because it might be difficult to 
 show an exact analogy in the application of these factors.
 
 330 EAKLY JUDICIAL SYSTEMS 
 
 Again, as in England before the Conquest there were lords of 
 franchises not strictly feudal, but possessing summary jurisdictions, 
 so in Castile there were communities where the lord nominated the 
 alcalde. This he did, says Hallam, not by feudal privilege of 
 common law, but by express gift of the king, just as at home it was 
 by royal charter that the Anglo-Saxon franchises were conferred, 
 sac and soc, tol and them, infangtheof and outfangtheof. These 
 were feudal in character, not in origin, in both countries. In the 
 thirteenth century, Hallam proceeds, the king began to appoint 
 corregidores, local judges with royal jurisdictions ; the same prin- 
 ciple which in England was worked by the king's nomination of 
 sheriffs, and the later supersession of the sheriffs by judges of 
 assize ; although the analogy is more strictly with the former. 
 Alfonso XI. is requested to remove all corregidores from chartered 
 communities that had not petitioned for them ; in England the 
 same appears in the exemption of chartered towns from the sheriff's 
 jurisdiction, and their refusal, except at intervals of seven years, to 
 receive the visits of the itinerant justices. An appeal from all these 
 lower courts lay to the adelantado of the province, and thence to 
 the tribunal of the royal alcaldes, if we suppose the jurisdiction of 
 the adelantado to correspond in range (for it did not in origin, and 
 we happily had no adelantados or counts palatine) with that of the 
 judges of assize ; you get the appeal from them to the courts of 
 royal audience, the king's bench, the exchequer, and common 
 pleas of later days : this court of the royal alcaldes continues an 
 ultimate appeal in criminal matters, civil ones being transferred in 
 the fourteenth century to a new court of king's audience, just as in 
 England in the thirteenth crown causes continue to belong to the 
 king's bench, civil ones go to the exchequer and common pleas. 
 At the head of justice in Castile is the constable, who here, as in 
 England the justiciar, is supreme representative of the king on the 
 land. Curiously the Spanish and English systems of judicature 
 retain the same title, the latter in the lowest, the former in the 
 highest, department of justice ; we have to recall the fact that the 
 judicial use of the word constable in England has descended from 
 the lord high constable to the humblest parish officer ; both are 
 derived from the Byzantine comestabuli, an office that would be 
 difficult to distinguish in itself from the marshalship, which has 
 had somewhat the same history. 
 
 The Spaniards long and steadfastly maintained in their common 
 customs of law the ancient Teutonic superstitions of compurgation 
 and ordeal, and if you read the history of Spain carefully you will 
 find in it the reason why the countries that longest retained the 
 customs of which these are a part were those which made the longest
 
 EARLY JUDICIAL SYSTEMS 831 
 
 and most effective fight for political liberty. Now, in Aragon you 
 get a purely feudal judicature, with a justiza at the head, answering 
 so far as the extent of his office goes to the English justiciar, at the 
 head of the king's feudal council, and supreme over all courts feudal 
 or otherwise ; but the justiza of Aragon has a long history of his own, 
 and does make historically a more important figure than his English 
 counterpart. Two important and peculiar points Hallam mentions 
 in which the power of the justiza was used for purposes which in 
 England were otherwise met : the process of juris firma or power of 
 withdrawing a cause from the lower to the higher court, and in the 
 meantime issuing an injunction for the protection of the suitor at 
 whose instance the writ is issued ; this is distinct from the right of 
 appeal, it is an appeal perhaps before sentence ; the second, that of 
 manifestation, which applied to the person the same protection 
 which the juris firma applied to property, analogous, perhaps, to our 
 court of habeas corpus ; in these two points the Aragonese law 
 seems a little in advance of the English in point of time. The 
 power of the justiza has been in some books a good deal exaggerated ; 
 up to 1348, when it became tenable for life, the office does not really 
 differ much from the chief justiceship ; and even when held for life, 
 it did not exempt its holder from responsibility or even from a 
 commission of inquiry at the demand of the king and cortes. In 
 1461, th& justiza had a court of seventeen councillors appointed to 
 hear complaints against him ; as the courts of Westminster are 
 liable to review by the exchequer chamber, and the house of lords 
 in its appellate jurisdiction. These particulars help the parallel, and 
 serve to complete the illustrations I have given already of a royal 
 central judicature superinduced on a lower feudal one. 
 
 This, then, is as far as we can for the present go in our attempt to 
 compare the constitutional origins of the mediaeval nations, and it 
 is as far as I propose to carry this course on this plan. At some 
 future time we may perhaps attempt a comparative view of the 
 political history of the four nations, or even take one or two more 
 into the list ; but to do that with good effect, it would be necessary 
 to have more thoroughly in hand the general history of the nations 
 than can fairly be expected from an elementary course like this. I 
 feel that even as it is I have attempted too much, and must send 
 you back to your Hallam for much of the material that will fill up 
 the sketch that I have attempted to draw. If, however, you have 
 given me a fairly reasonable amount of attention, you will find your 
 Hallam much more easy, connected, and interesting reading than 
 is wont to be to those who begin Constitutional History in it, and 
 are perplexed at the want of method and unity which is the most 
 evident fault of the book. You will begin by seeing how much the
 
 332 EARLY JUDICIAL SYSTEMS 
 
 nations of medieval Europe have in common, and how very much of 
 what they differ in can be and should be accounted for by the events 
 of their history. But you will also see how persistent the genius 
 of the paternal race is in one nation, and how pliant in another ; 
 and you will venture to allow that that persistency may be owing to 
 the blood, the language, the freedom from external conquest, or 
 the growth through the conquering stratum by the conquered, and 
 the assimilation of the former to the latter. You will not miss 
 the lesson, distinct enough in itself — and perhaps rather obscured 
 than brightened by the halo of universal praise — that of all con- 
 stitutional systems the English combines the greatest political with 
 the greatest personal liberty. You will accept this on the testimony 
 of foreign writers on politics, to whom for centuries our polity was 
 the model of free institutions. You will not be less likely to accept 
 it after reading the history of the newer constitutions in Europe 
 and in America which have copied many of the leading features of 
 our own, but have not tempered them or adapted them so wisely to 
 their own circumstances that they seem a natural and spontaneous 
 growth, or have not calculated their forces so well as to secure an 
 equable and uniform working. You will further, I think, realise 
 the fact that a national polity is not the creation of a single brain 
 or of a royal commission of brains, but grows with the growth and 
 strengthens with the strength of the nation ; cannot be changed 
 without changing much of the spirit of the people, and is strong in 
 proportion to the distinctness of its continuity. 
 
 Our own English constitution is like many old country houses 
 which have a great history of their own if they could tell it ; 
 have been now castles, now abbeys, now manor houses, or farm 
 buildings ; in which every room has often changed its destination, 
 and the granary become a dining-room, the chapel a billiard room, 
 and the dairy a bath ; about which many little turrets have been 
 run up and tumbled down ; some have been battered down by 
 enemies, and some pulled down because they made the chimneys 
 smoke ; in which chimneys themselves are a novelty, and drains 
 and hot-water pipes a new development of luxury ; in which no one 
 room now answers the purpose for which it was built, but has 
 answered many others and more useful ones that were not con- 
 templated. Such a house is generally beautiful, sometimes a little 
 inconvenient to people whose ideas are bounded by a front door and 
 five square windows, but it has its history, it has seen a great deal 
 of happiness, and would not be what it is unless it had seen and been 
 adapted to many changes. 
 
 Well, so the constitution begins with the little farmhold in the 
 Teutonic clearing ; it grows up and becomes a feudal manor ; it
 
 EAELY JUDICIAL SYSTEMS 333 
 
 builds a national church and a court of justice, and towers and 
 crenellates its roofs and walls ; the church becomes the mother and 
 nurse of liberty, and then liberty takes on itself to reform and 
 remodel the church ; the court of justice develops into a parlia- 
 ment ; trial by jury grows out of compurgation and ordeal. It 
 retains much that it could do without, and goes without much that 
 might be well added if it were not that the addition would stop the 
 working of some more important part. It will, however, like an old 
 house, also stand a great deal of alteration and adaptation with- 
 out losing its identity. To put away the parable, however. You 
 have seen how small are the early institutions of a race in the 
 process of civilisation, but how great is the difference between 
 working out the civilisation of which the germs are in its rude 
 condition, and receiving civilisation even ever so tenderly by the 
 teaching of a more advanced race ; and from first to last the lesson 
 has been, the more continuous the growth the stronger the result. 
 I do not mean to tell you that the knowledge of this is in itself as 
 valuable as the discussion by which we arrive at it ; if it were, all 
 knowledge might be distilled into a few brief rules, and the world 
 need do nothing more than write and read novels, or pictorial 
 histories evolved by the light of nature. Such principles are but 
 guides and clues in the pursuit of real fact knowledge, and to 
 the student who tries to apply them so they will be useful clues, 
 because as he realises the application of them in one branch, he 
 will use them more skilfully and confidently in the investigation of 
 another. But the very generality of such generalisations is in 
 itself a proof of their insufficiency to convey real knowledge. The 
 scantiness of the generalisation surely suggests the consideration 
 not merely of the existence of some common formula, but the 
 infinite variety that history must afford when its chief formula is 
 so very general : if the national histories have so much in common, 
 how infinitely more must they have that is peculiar to each ; if on 
 that common formula so much can be ranged, how diversified must 
 the histories be that have created the enormous differences. 
 
 You may have been sometimes impatient when I have gone 
 into detail about petty legal institutions or small municipal distinc- 
 tions ; but when you put all together and see how often a petty 
 little institution comes to answer a purpose which was never con- 
 templated at its creation, and how out of the petty distinctions of 
 municipalities have arisen differences of training of the men who 
 were to work out, or to fail to work out, real liberty, you will think 
 that nothing of the kind is too small to be worth remembering, and 
 grieve that one memory cannot contain more of what is so full 
 of what is memorable. You may also think that I have an unwise
 
 834 EAKLY JUDICIAL SYSTEMS 
 
 and undue bias against ascribing civilising and politicising influences 
 to the Roman Empire. To an aversion to ascribe anything directly 
 to that agency that cannot be shown by probable evidence to belong 
 to it, I certainly own ; and I think that I have read enough to 
 warrant me in that aversion. I prefer to refer the civilisation of 
 England and Germany to the working of non-Roman causes — to 
 the ancient land system with its judicial and social peculiarities, 
 and to the teaching of the church, through which teaching most 
 of the Roman elements that are at all traceable are to be traced. 
 In France and Spain I grant that it is very different ; both those 
 countries were thoroughly Romanised and got their civilisation 
 that way ; but the distinction in history between France and Spain 
 is not owing to the difference of Roman ingredients — they were 
 the same in each — but to the difference of Teutonic ingredients, 
 and to the fact that it was by the Teutonic- Visigothic ingredients 
 that Spain worked her way so far as she did work it to liberty ; 
 while it was by Teutonic-Frank ingredients, or feudalism, that 
 France worked her way to absolutism and servility. It is easy to 
 say, and within certain limits it may be true, that Europe learned 
 a lesson from each system ; from the Roman the equality of all 
 men before the law, and from the Teutonic the right of every man 
 to join in making the law that is to bind him. But I do not see 
 that we learn much from the generalisation, and I think that it 
 would be a very difficult one to prove inductively or circumstantially. 
 I do not wish you to leave me with the impression that I like to 
 knock down other people's nine-pins, only to set up my own instead 
 of them. It is not my place to force upon you principles which 
 I can give no reasons for. I am to lead you on to make out such 
 generalisations for yourselves, and to read history intelligently. 
 I naturally exhibit most prominently the principles in which, as it 
 seems to me, the truth of history has shown itself to me, but you 
 are quite at liberty to get out of my premisses conclusions diametri- 
 cally opposite to mine. The good will have been done by your going 
 critically and honestly through the work.
 
 XX 
 
 THE GKOWTH OF THE CONSTITUTIONAL 
 
 PRINCIPLE IN THE THIRTEENTH AND 
 
 FOURTEENTH CENTURIES 
 
 True patriotism is like that true self-love which builds its 
 happiness on a good conscience : it is not like that base self-conceit 
 which can never see or own itself to be in the wrong. It does not 
 require of any man to believe that his own country is in the right 
 always ; it does not require him to go with public opinion against his 
 better judgment ; but it does require that he shall himself do his best 
 to make and keep his country in the right. Whether he succeeds 
 or is obliged to yield, he can still do his duty, and this duty is 
 in a soldier obedience, in a citizen submission to government in all 
 things lawful. So neither does a patriotic view of history, of the 
 history of our own country, at all require us to take always the side 
 of the victorious cause : ' Victrix causa Diis placuit sed victa Catoni ; ' 
 nor does it at all when we have taken a side require us to see no faults 
 or weakness in that side, and no virtue or truth in the other. 
 History has been written very much in this style, but it is not history 
 that the matured conscience of a people can ever approve as 
 true. In particular, in viewing the struggle by which our fore- 
 fathers won their liberty, we ought to be careful in this respect. 
 They were our countrymen on both sides. Honour and truth, and 
 perhaps also dishonour and falsehood, were peculiar to neither : it 
 may be that the object in present dispute did not, to their minds, 
 fall incontrovertibly into one of two classes, right or wrong ; perhaps 
 at times both sides were seeking only private ends ; rather, we may 
 gladly believe, at other times, both were fighting for what they be- 
 lieved sincerely to be the right cause. 
 
 There is an Almighty Judge and Ruler of nations who gives 
 victory to which He will ; but the victory is no more a necessary 
 token of His favour than the chastisement of defeat. He sees men 
 fighting for the shadow of good, and oftentimes gives the reality to 
 those who have striven lawfully. There is in the Carolinenplatz at
 
 336 THE GROWTH OF THE CONSTITUTIONAL PRINCIPLE 
 
 Munich a monument set up by King Ludwig to the memory of those 
 Bavarian soldiers who fell in Napoleon's army in the Russian cam- 
 paign. The inscription is (I cannot remember the exact words) 
 to this effect : ' These also died for the deliverance of their native 
 land,' an expression which is puzzling enough to those who look only 
 at the outside of things. They died under the banner of the tyrant, 
 but fighting bravely and enduring manfully for what they believed 
 to be the right cause. They were mistaken in their cause, but God 
 saw and gave to their country the liberty for the shadow of which 
 they perished. So also in the review of every struggle for freedom 
 that has been fought out at home, we can claim great and noble 
 spirits on both sides, high and honourable motives. In the Great 
 Rebellion some fought for what seemed to them religion on either 
 side, some for fancied freedom, some for loyalty ; when the time 
 came peace and freedom were granted, though not the peace or the 
 freedom that either had pictured as the object of his struggles. 
 The blood honestly shed in pursuit of the shadow did not lose 
 its reward when the substance of peace and freedom was bestowed. 
 
 The cause of freedom in England has been a consistently 
 triumphant and progressive cause, and so has been checked by fewer 
 mistakes and disgraced by fewer crimes than are to be found in the 
 struggles of other nations for freedom in the whole of history. Those 
 crimes that have disgraced the partisans of liberty have never 
 been ultimately conducive to liberty itself. The murder of 
 Charles I. was not only a crime but a blunder, and it is impossible 
 even for the most acute advocate at this day to prove that the act 
 was in any way or degree conducive to the freedom of the country : 
 nay, more, the horror that it inspired and still does inspire gave 
 rise to a reactionary feeling that will see nothing but admirable in 
 the martyr, nothing but what is detestable in the persecutors. Most 
 happily, however, such crimes and blunders are rare. There were 
 no unlawful means used in the real winning of our liberty : we have 
 no causeless rebellions, no secret assassinations, no going to war for 
 ideas, no sentimental conspiracies, no justifications of means by ends. 
 We are indebted to no foreign interventions, no bloody revolutions, 
 no violent revulsions. If there were nothing else in our constitu- 
 tion of which we might be proud and happy, we might glory in the 
 way in which it was won, grew up rather, we thank God when we 
 say it, without a stain if not without a flaw. The fabric of the con- 
 stitution was, as I understand it, perfect under the Tudor sovereigns ; 
 whatever crimes or errors have taken place in our internal govern- 
 ment, have been rather owing to the mistakes and faults of those 
 who had to work the machine, than to any vice of the machine 
 itself. The Tudors were strong tyrants ; the Stuarts, it may be,
 
 IN THE THIRTEENTH AND EOUETEENTH CENTUEIES 337 
 
 were weak tyrants ; but neither spoiled the old machinery. Crom- 
 well is looked on by some as a liberator, William the Third by others ; 
 but neither introduced anything new into the machinery of the 
 constitution. The Declaration of Rights was, as its name implies, 
 a declaration, not an institution or enactment. What these later 
 struggles did was this : they made it impossible for the machinery 
 of the constitution to be worked by men merely for private and 
 selfish ends, they produced a better state and atmosphere of 
 political morality in England. 
 
 We think at the present day that we could not bear to be 
 governed as Lord Liverpool governed ; but compare Lord Liver- 
 pool's government with Lord North's, Lord North's with Sir Robert 
 Walpole's, Walpole's with Harley's, Harley's with that of the 
 statesmen of the Revolution ; theirs, again, with that of the Cabal, 
 with the military despotism, the reign of terror of the Rebellion, 
 the unprincipled extravagance and caprice of Buckingham, and the 
 Machiavellism of James I. I think that we must see a gradual 
 change — an elimination of bad means and measures, a greater and 
 more widespread purity of political character. Not but that men 
 are at all times men ; not but that the progress of political morality 
 has been often and may again be disturbed and wayward ; still 
 I think we should be undervaluing our own happiness if we refused 
 to recognise it. Whig as we may be, or Tory as I am for my part, 
 we would not exchange a government by Palmerston or by Derby 
 for one either by Strafford or Cromwell ; nay, more, highly as we value 
 order, we have no desire to be ruled by Metternich ; precious as 
 liberty is, we are glad that for us it was not won by a Cavour. 
 
 True liberty is the freedom for every man to do as he likes 
 within the limits of right defined by laws which he has a hand in 
 making ; the liberty of doing what you please, without infringing 
 the liberty of other people. We have seen in our first lectures how 
 far our fathers were in possession of the conditions requisite for the 
 winning of it : their German origin and the institutions that the 
 Anglo-Saxon race had developed being a very strong basis of inde- 
 pendent character, and the discipline of the feudal system a pretty 
 strong training towards self-restraint. We may say that as Anglo- 
 Saxons they had a good notion of doing as they liked, and that 
 under the Norman princes they were broken in to the habit of 
 regarding the likings of other people. They were taught unity, 
 loyalty, sympathy ; they found out that they were one people. We 
 have seen also in our last lecture the terrible slavery under which 
 they found themselves when they awoke to this truth ; and how with 
 the commencement of Henry II.'s reign they began to get glimpses 
 of the dayspring.
 
 338 THE GROWTH OF THE CONSTITUTIONAL PRINCIPLE 
 
 Our first question must be, what elements of freedom were now 
 existent ; where were the memories, where the hopes of freedom in 
 this latter half of the twelfth century ? The first circumstance that 
 was beginning to make freedom possible was the amalgamation of 
 the people : Anglo-Saxon and Norman were becoming one English 
 nation ; nobles, freemen, and villeins were drawing nearer to one 
 another, and finding out that personal security, limited taxation, and 
 some check on the irresponsible power of the government were alike 
 needed by all three classes. Let us see how this was coming about. 
 The union of the royal blood of both races in Henry II. was typical 
 of a like union going on among the older nobility. Many of the 
 followers of the Conqueror had been mated with English heiresses ; 
 the impoverishment of the Anglo-Saxons was not so great but that 
 still the fortunes of the daughters of the richer natives were an 
 object of ambition to the younger sons of the great houses ; half Eng- 
 lish, perhaps, by birth themselves, they were content that their children 
 should be more than that — three-quarters English ; and this acted 
 in two ways : not only did the descendants of the Norman nobles 
 become anglicised, but by the peculiarity of English custom, the 
 titles and offices of nobility being settled by primogeniture, the 
 younger sons settled down at once into the rank of commoners, so 
 that noble Norman fathers had sons who were not only commoners 
 but English, surrounded by English of the same rank, and united 
 more by sympathy and common interests with them than with their 
 more elevated relations. In like manner, though by a different 
 process, the villeins were being raised nearer to the rank of free- 
 men. Not only were they gaining a vested interest in the lands 
 they had cultivated from generation to generation, becoming in fact 
 copyhold tenants instead of serfs ; but the work of emancipation 
 was going on to a great extent by which the serf rose at once to 
 eedom. Immense numbers of monasteries were founded by the 
 repentant warriors of the Norman kings, and slavery was a thing 
 always discouraged and to the utmost forbidden by the church even 
 in its greatest depression. The emancipation of serfs followed 
 almost immediately on the founding of a monastery. 
 
 Again, the nobles were, partly by extravagance and partly by 
 extreme taxation, almost as much impoverished as the native land- 
 owners : they were glad to sell a serf his own liberty if he could 
 produce the money to buy it ; further, a service in arms on a 
 crusade made a man free ; the towns held out safe asylums for run- 
 away villeins who being unclaimed by their masters for a year and 
 a day became free men ; pious people on their deathbed freed their 
 servants ; many ways were open now for the abolition of servitude, 
 and -nhile it continued, the serfs were beginning to have relations
 
 IN THE THIKTEENTH AND FOUETEENTH CENTUEIES 339 
 
 and friends in the class of freemen who would not stand by and see 
 them oppressed. 
 
 In the second place, the liberties of the church, though oppressed 
 by the Norman sovereigns, had never been quite extinguished 
 and were now beginning to revive : I do not mean only those 
 pernicious liberties which were the subject of the contention between 
 Henry II. and Becket, but the more reasonable ones which had 
 existed under the Anglo-Saxon kings. Among these was one in 
 particular, the election of bishops and abbots. This right, as far as 
 bishops were concerned, had not been exercised in the churches 
 under the Anglo-Saxon kings — the bishops were nominated by the 
 king and witan, and elected by the chapters of the churches much 
 as they are now. But the Norman kings, by always thrusting 
 Norman prelates into these places of trust and honour, had provoked 
 the spirit of resistance among the clergy, who were almost universally 
 English by birth and always supported the native party. Men who 
 had no notion of supporting the pope against the king in general, 
 yet supported Anselm in his struggle for investitures : to them the 
 choice was not only between a nominee of Henry or William Rufus 
 and one of their own election, it was the choice between a Norman 
 allied in birth and habit with the tyrants, and an Englishman 
 united in sympathy and blood with themselves. Anselm, fighting 
 the battle of the pope as he thought, was in reality fighting the 
 battle of the inferior clergy and of the nation through them. In 
 like manner every act of plunder and oppression exercised against 
 the church was exercised against the nation, and as the clergy had a 
 stronger esprit de corps, firmer organisation, and more united action 
 than the laity, they were the first to cry for liberty and to understand 
 that against a Norman ruler the liberty of one is a hope at least of 
 liberty for all. I have already referred to the liberalising tendencies 
 of monastic education and civilisation, and to the work of emanci- 
 pation carried on by the clergy and monks. 
 
 The third element of liberty is to be found in the rise and 
 increase in power and independence of the towns as contrasted with 
 the country population. The towns were not, as you must have 
 remarked from my omission of mention of them, a prominent element 
 in Anglo-Saxon society ; still there were towns and boroughs united 
 perhaps for purposes of commerce and mutual defence, and enfran- 
 chised in Anglo-Saxon times. Either they grew up on demesne lands 
 of the king or under the castle of some lord, who saw a little 
 further than his neighbours ; or they were on the sites of old Roman 
 cities like Colchester, and retained some sort of measure and 
 recollection of municipal independence. In Domesday Book the 
 burghers of the towns are already a different class from country
 
 340 THE GROWTH OF THE CONSTITUTIONAL PRINCIPLE 
 
 churls : their tenure— burgage tenure — was akin, as we saw, to socage 
 tenure, and the service they paid for protection was free and fixed : 
 they were, however, subject also to tallages, arbitrary taxation at the 
 demand of their king or lord. Their first step towards independence 
 was to exchange the many fixed rents due from the single burgage 
 tenants for one settled rent for the whole borough, and that a per- 
 petual and fixed rent. This was done in Huntingdon before the 
 Conquest, possibly in others also : a town thus let to the burgesses 
 at perpetual rent was said to be let at fee farm to them and their 
 successors for ever. The lord ceased to have any right of property 
 in the town, and the tallages which he continued to set were always 
 regarded as an oppression. 
 
 The next step was to incorporate these boroughs, a measure 
 largely carried out under the first three Plantagenets — it gave them 
 local self-government and exclusion of every foreign jurisdiction : 
 they elected their own sheriffs and justices. The material ground- 
 work for these corporations is often found in the guilds which for 
 purposes of commerce or religion had existed from very early times : 
 hence the guild hall is equivalent to corporation court house. It is un- 
 necessary for me to go to first principles to show how such communities, 
 once formed and enfranchised, were sure to become centres of liberty, 
 and, acting singly or together against oppression from king or 
 lord, to attract multitudes of new citizens. The city of London e.g. 
 has always been strong on the popular side in all public questions, 
 right or wrong. To these three elements, the memory of liberty in 
 the church, the amalgamation of all classes of society, and the 
 foundation and development of towns, we are to look for the origin 
 of English liberty, as revived under the Plantagenets, and flourishing 
 and to flourish we trust as long as the world lasts. I have given 
 a loose definition of liberty — it would take volumes and years of 
 lectures to go into detail either of law or history on the development 
 of these little seeds into the full-grown tree : I shall not attempt to 
 do it : but supposing that the three great gifts of the English 
 constitution are, security of life and property by law, the right of 
 taxation and taxing ourselves, and the existence of a supreme court 
 of parliament, to which all officers of government are responsible 
 and in which all classes are represented, I propose that we sketch 
 shortly the process by which these possessions were won. 
 
 And first, of personal security and freedom. You have not 
 forgotten, I hope, the description from the Anglo-Saxon Chronicle 
 of the wretchedness and misery of the people in the reigns of Henry I. 
 and Stephen. 1 The worst troubles of these times fell on them in the 
 
 Select Charters, p. 116.
 
 IN THE THIETEENTH AND FOUETEENTH CENTUEIES 341 
 
 civil war, but there was throughout the feudal period, throughout 
 the reigns of the Norman princes, no adequate prevention, no 
 adequate remedy ; it was the weakness of the feudal system that to 
 be properly administered it required angels and not men. The 
 barons in their strong castles, in a thinly inhabited country, un- 
 fettered by public opinion, unchecked by equal neighbours, presiding 
 in their own courts, with assessors too much in their power to 
 venture a word against their decisions, at once the aggressors and 
 the judges, they were to all intents and purposes irresponsible. If 
 they did an injury, imprisoned or ill-treated a vassal, they were 
 strong enough to get their own way in the county courts ; they 
 were their own judges in their courts baron ; it was a long way to 
 the king's court, and there even, when it was reached, much was 
 done by money. A poor man had little chance against a rich one. 
 It was better to submit than to provoke further oppression by 
 appealing to so distant and untrustworthy a protector. On the 
 king's own lands it was little better : his officers were of the same 
 class and sympathies as the barons : justice was only to be bought, 
 and, unhappily, injustice was quite as ready to be sold. Thus it 
 was not so much the existence of any institution hostile to per- 
 sonal freedom as the absence of remedies and securities that caused 
 the evil. 
 
 There were thus two things peremptorily required : 1. A re- 
 cognition of the rights of freemen to liberty and security ; 2. Free, 
 cheap, open, impartial administration of justice on that principle. 
 Neither of these could be sufficient without the other ; yet it was 
 tried first to make justice acceptable without the previous recognition 
 of the right. Besides the courts of the hundred and the shire 
 which remained from ancient times, and the manorial courts and 
 franchises, which were, as I have said, almost inoperative for good 
 and certainly afforded no guarantee against unjust administration, 
 there was until late in the reign of Henry I. only the king's court 
 to appeal to — that is, the assembly of princes and lawyers and state 
 officers who attended the king whithersoever he went ; a man might, 
 if he was not shut up in prison, appeal to the king, after he had 
 been cast in the courts of the shire ; when the king was absent 
 from England the grand justiciary supplied his place. This court 
 consisted of the grand justiciary, the chancellor, the constable, the 
 marshal, chamberlain, steward, and treasurer, with any others whom 
 the king might appoint. In one apartment of the palace they sat 
 as a court of exchequer, and judged all suits arising from questions 
 of revenue ; in the reign of Richard I. it began under another 
 form to take cognisance of common pleas, i.e. matters cognisable 
 by common law ; under name of the court of common bench it
 
 342 THE GROWTH OF THE CONSTITUTIONAL PRINCIPLE 
 
 took cognisance of all matters in civil disputes in which the king's 
 interest was not concerned, and no matter of a criminal nature. 
 Here you have the origin of the three courts — king's bench, ex- 
 chequer, and common pleas. It was certainly a great step in 
 advance that there should be such courts, but their efficiency was 
 greatly impaired by the fact that they were obliged to follow the 
 person of the king or his vicegerent : by Magna Carta the courts 
 of law were settled at Westminster. But previous to this — as early 
 as the reign of Henry I. — justices of assize, justices in itinere, 
 were commissioned to go through the country and hear appeals 
 from the county courts, or other suits which the suitors on the 
 payment of a fine were allowed to bring before them. The imme- 
 diate benefit of this institution was, of course, delayed by the civil 
 war of Stephen's reign, but the permanent establishment of these 
 courts we owe to the early years of Henry II., and we may ascribe 
 them, as well as the destruction of the strongholds of the tyrant 
 barons, to the powerful administration of Thomas Becket. These 
 judges went their circuits annually, and their assizes were expressly 
 confirmed and their jurisdiction enlarged by Magna Carta. To the 
 same great foundation of liberties we owe the recognition of the 
 right which I spoke of as the necessary complement of accessible 
 justice. It declares as follows : ' No freeman shall be taken or 
 imprisoned, or be disseised of his freehold or liberties or free 
 customs, or be outlawed or exiled or any otherwise destroyed, nor will 
 we pass upon him nor send upon him but by lawful judgment of 
 his peers or by the law of the land. We will sell to no man, we 
 will not deny or delay to any man justice or right.' 1 Trial by jury is 
 thus recognised as a part of the rights of freemen. We have seen 
 that it was not of Anglo-Saxon origin. It had been growing up in 
 the meantime. It was in the development of amelioration in civil 
 justice that we find instances during this period, where a small 
 number were chosen out of the county court to declare the truth in 
 civil suits. Thus, in suits for the recovery of property the public 
 mind was gradually accustomed to see the jurisdiction of the free- 
 holders in these courts transferred to a more select number of well- 
 informed men : it did not become a matter of right, however, until 
 Henry II. brought in the assize of novel disseisin in 1176. 2 We owe 
 it to Eanulf de Glanvill. 
 
 The use of juries in criminal cases dates from the reign of 
 Henry II. Thus personal liberty was secured in its simplest form ; 
 it took ages more to get the ordinary rights recognised which we 
 connect almost inseparably with it, such as the right of disposing 
 
 1 Select Charters, p. 301. 2 Ibid. pp. 152, 164.
 
 IN THE THIRTEENTH AND FOURTEENTH CENTURIES 343 
 
 of property by will or transfer, into which as matters of law rather 
 than history we cannot enter. We shall see by and by how Magna 
 Carta was won ; but before we turn to that we will consider the 
 subject of taxation, a matter which also was regulated on the side 
 of freedom by that great act. We have had occasion to remark in 
 our first lecture that under the Anglo-Saxon system the only 
 universal taxes were for the building of fortifications and bridges, 
 and for the maintenance of the militia. All lands were subject to 
 taxation for these purposes : the folcland, so long as it continued to 
 be let out in benefices to the nobles by service, paid other dues 
 analogous to feudal reliefs and aids ; but the whole expense of the 
 administration was very small. The king was supported by his 
 demesne lands ; justice was administered on the spot at no cost 
 whatever ; the only tax that could be construed into an oppression 
 was the Danegelt, wbich was originally a sum collected to purchase 
 peace and immunity from Danish invasion, but was continued, like 
 most taxes, long after the original occasion for it had passed away. 
 These taxes (those of the trinoda necessitous and the Danegelt) were 
 levied on the whole people — so much for each hide of land, the sum 
 required being most probably declared by the witenagemot, and the 
 collection and assessment of it being left to the local magistrates. 
 With the Norman kings this system was partially continued ; but 
 the weight of taxation, as we saw the other day, terribly increased : 
 Danegelt was continued and increased sixfold, and besides it all 
 the land, being placed on a feudal footing, became liable to those 
 feudal exactions, reliefs, fines in aid &c. under the colour of which 
 any extortion might be, and was, practised. Tallages were imposed 
 on the towns ; the king or lord announced to his tenants that he 
 wanted so many thousand pounds, and they were obliged to raise it, 
 sometimes by a poll tax, more frequently and justly by an income 
 and property assessment on all the tenants of the town. As soon 
 as military service was commuted for escuage, the lands of the 
 church and the estates of the nobles became liable to similar 
 arbitrary calls for money ; tallage and escuage were levied by the 
 justices in itinere when they were established, and this may be 
 considered as one step towards remedy. 
 
 There were also from time immemorial other taxes exacted by 
 the crown, tonnage and poundage on the import and export of 
 merchandise, of which the prisage of wine, two casks out of each 
 ship, was the most important. This, with the Danegelt, was probably 
 a remnant of Anglo-Saxon taxation ; escuages, tallages &c. were 
 strictly feudal and arbitrary. I told you that William the Conqueror 
 professed to restore Edward the Confessor's laws ; one of the articles 
 of his charter was relative to taxation : ' We will enjoin and grant
 
 344 THE GROWTH OF THE CONSTITUTIONAL PRINCIPLE 
 
 that all freemen of our kingdom shall enjoy their lands in peace, 
 free from all tallage and from every unjust exaction, so that nothing 
 but their service lawfully due to us shall be demanded at their 
 hands. 1 We have seen how this promise was kept — not at all ; still 
 it is important as a recognition of the right. Henry I. made still 
 better promises, for he undertook to fix the amount of feudal inci- 
 dental taxes, so that they should be no longer arbitrary. He did 
 not keep his word any better than his father. Stephen bought the 
 crown with still better ones, but these he had not the power, if he 
 had the will, to fulfil. Henry II. confirmed at his accession the 
 charter of his grandfather. His long and troublous reign was, 
 owing to the difficulties of his position and the weakness which was 
 consequent on his quarrels with the church and with his own 
 children, not a very oppressive one. Noble, gentle, and simple were 
 being drawn together, and the commonwealth was gaining strength. 
 But with Richard I. troubles and exactions began again : he was in 
 constant want of money ; he wanted it first for his crusade, then 
 for his ransom, then for his wars with Philip Augustus ; he raised 
 what he could by torturing the Jews, by feudal exactions, and by 
 the sale of dignities ; he sold the earldom of Northumberland to 
 the bishop of Durham, his right to the homage of Scotland to the 
 king of Scotland, and, what is more to our purpose, he granted a 
 great number of charters to corporations, a measure which, we have 
 seen, was destined ultimately to conduce in no small degree to 
 liberty. 1 Well, Richard died, and John followed him on the throne, 
 and in his days matters came to a head. He waged wars in France, 
 Wales, and Scotland : he was generally unlucky, but his defeats 
 cost the country quite as much as other men's successes ; instead 
 of learning wisdom by adversity, he fought and intrigued so much 
 the harder. All this, however, and all the tyranny and exaction 
 that he brought to bear on the nation, were borne for years, until, 
 after the country had been under an interdict and matters were 
 everywhere wearing the complexion of the old Norman reign of 
 terror, he was compelled to grant the Magna Carta, one of the 
 provisions of which was that all feudal aids should be fixed and 
 definite according to the estate of the tenant, so also should all 
 amercements in punishment be made according to the magnitude 
 of the offence, and required the great vassals to concede to their 
 dependants all customs and liberties as freely as they were granted 
 to themselves ; that no aid or escuage except the three great feudal 
 aids should be imposed without consent of parliament. Tallages, 
 however, were not mentioned. Still, the right of the taxpayer to 
 
 1 Select Charters, p. 265
 
 IN THE THIRTEENTH AND FOURTEENTH CENTURIES 345 
 
 be taxed only by the expressed will of the national assembly was 
 recognised. 1 
 
 Now, how was Magna Carta won? Stephen Langton, arch- 
 bishop of Canterbury, and the barons of England met on November 20, 
 1214, and drew up their demands for a redress of grievances. The 
 king first tried to divide the confederates, to set them one against 
 another, but failed ; then he tried to set the church against the 
 barons by first emancipating it — that failed too ; then he tried to 
 get the pope to censure the archbishop and barons ; the pope 
 complied, but the archbishop was firm ; the king continued to 
 shuffle. May 24, 1215, the barons entered London. June 15, Magna 
 Carta was signed — signed, but not secured. As soon as it was 
 signed the king began to intrigue against it ; hired mercenary troops 
 to put down the barons ; he even offered the Saracens to turn 
 Mahometan for assistance ; persuaded the pope to annul the charter, 
 excommunicate the barons, and suspend the archbishop. Then 
 came the crash. One party among the barons had recourse to the 
 king of Scotland, others to the king of France ; the crown was even 
 offered to Louis, the son of the king of France, and he was in arms 
 in England when John most happily saved the constitution and 
 liberty and the very independence of the nation by dying. His son, 
 Henry III., was a child ; the ministers of the new king were glad 
 to gain unanimity by renewing the charter ; the French invader was 
 sent about his business, and from that time to this the Magna 
 Carta has been held as the basis of the constitution. It is still, 
 says Hallam, the keystone of English liberty. All that has since 
 been obtained is little more than a confirmation or commentary, 
 and if every subsequent law were to be swept away there would still 
 remain the bold features that distinguish a free from a despotic 
 monarchy. It has been lately the fashion to depreciate the value of 
 Magna Carta as if it had sprung from the private ambition of a 
 few selfish barons, and redressed only some feudal abuses : it is, 
 indeed, of little importance by what motives those who obtained it 
 were guided ; the real characters of men most distinguished in 
 the transactions of that time are not easily determined at present ; 
 yet if we bring these ungrateful suspicions to the test, they prove 
 destitute of all reasonable foundation. An equal distribution of 
 civil rights to all classes of freemen forms the peculiar beauty of 
 the Charter. In this just solicitude for the people, and in the 
 moderation which infringed upon no essential prerogative of the 
 monarchy, we may perceive a liberality and patriotism very unlike 
 the selfishness which is sometimes rashly imputed to those ancient 
 
 1 Select Charters, p. 296 seq.
 
 346 THE GKOWTH OF THE CONSTITUTIONAL PEINCIPLE 
 
 barons ; and so far as we are guided by historical testimony, two 
 great men, the pillars of our church and state, may be considered 
 as entitled beyond the rest to the glory of this monument — Stephen 
 Langton, archbishop of Canterbury, and William, earl of Pembroke. 
 To their temperate zeal for a legal government England was in- 
 debted during that critical period for the two greatest blessings that 
 patriotic statesmen could confer — the establishment of civil liberty 
 upon an immovable basis, and the preservation of national inde- 
 pendence under the ancient line of sovereigns which rasher men 
 were about to exchange for the dominion of France. 
 
 We are now come to the third article of our liberty — political 
 liberty as secured by the existence of a representative parliament. 
 It is obvious that, notwithstanding the great admissions and 
 concessions of the Charter, in the hands of a strong, irrespon- 
 sible, and unscrupulous king, all would be a dead letter unless 
 supported by an authority that could limit the actions of the 
 monarch within the bounds of law and public expedience. Nor 
 could any council nominated by the king himself have authority 
 strong enough even if inclined so to limit bis power and compel the 
 observance of his promises. An assembly was required which 
 should represent the taxpayers and check public expenditure by 
 drawing the purse strings close or relaxing them in emergency — 
 a council, moreover, which should fairly represent the wealth and 
 wisdom of the country as well as the land, and so should be able to 
 advise and compel the redress of grievances, draw up bills for the 
 king to authorise as laws, and see to their execution, not by minute 
 interference, but by securing the responsibility of the king's 
 ministers. Now, such an institution could not grow up all at once, 
 nor were all the parts of its machinery instituted with a direct view 
 to the ends which in process of time they were made to serve. Our 
 constitution in parliament is not the creation of any one mind or 
 the expedient of any one crisis. 
 
 There was, as we have seen, a general council and assembly of 
 the people in Anglo-Saxon times, called the witenagemot, or meet- 
 ing of the wise. It was attended by the king and the bishops and 
 ealdormen of the shires ; perhaps by the thanes of higher rank, 
 each in a manner representing the freemen under bis protection, but 
 not either an elected nor a theoretically representative assembly. 
 The witenagemot regulated the amount of taxation, enacted laws, 
 heard appeals, and acted as council to the king in all measures 
 domestic and foreign. With the Anglo-Saxon dynasty the witena- 
 gemot passed away. But the early Norman kings, well aware 
 that none of their dependants dare lift up a finger against them, 
 assembled a similar court every year at the great festivals, and
 
 IN THE THIRTEENTH AND FOURTEENTH CENTUKIES 347 
 
 made a show of consulting them on measures on which the apparent 
 concurrence of the country seemed desirable, so that the notion of a 
 great national council was never lost. As the power of the king 
 was weakened either by personal character or by quarrels such as 
 Henry II.'s with his family and the church, it became necessary to 
 the monarch to gain the real as well as the apparent support of his 
 council. True, the council was composed of his feudal dependants, 
 but these were now becoming quickly rather united with the body 
 of the people by sympathy and affinity than slavishly bound 
 to a superior who always when strong enough was an oppressor. 
 Stephen was elected king by a parliament of this sort, and compelled 
 to grant a charter. Henry II. made use of it to pass all his great 
 measures : the constitutions of Clarendon, the council of North- 
 ampton, in which Becket was tried, and the great parliament of 
 Northampton of 1176, to which I have referred as passing the 
 statutes by which the assize of novel disseisin was established. 
 Eichard I. also held parliaments at Pipewell before his crusade, and 
 at Winchester after his return. John was elected king by a parlia- 
 ment to the prejudice of his nephew Arthur ; and if it had not been 
 for his subsequent cruel conduct to him, would never have been 
 counted as a usurper. Magna Carta was forced upon him by the 
 great council of the king, which was becoming, and soon to be, the 
 great council of the nation. 
 
 This council, court, or parliament was composed of very different 
 ingredients from those which we look on as necessary to a constitu- 
 tional assembly. It was, for instance, but one chamber ; lords 
 and commons were not divided ; nor was the representation of the 
 commons anything like what it was shortly to become. It seems 
 that it was little mere than the assembly of the king's feudal 
 tenants ; the barons holding their estates directly from him, the 
 bishops and abbots not appearing by virtue of their wisdom as in 
 the Anglo-Saxon witenagemot, but as tenants in barony of the 
 crown. But besides the barons, that is those noble landholders 
 who held sufficient fiefs to entitle them to the baronage, there were 
 smaller holders also, holding directly by knight service of the king. 
 These, by the breaking up of the original great fiefs, and by sub- 
 infeudations where the principal fief had become forfeit or escheated, 
 had become very numerous by the time of King John, so numerous 
 that it was desirable for their own sakes that they should not be put 
 to the expense of attending parliament, and that it was desirable for 
 the parliament's sake that it should not be overcrowded with unwise 
 and inexperienced countrymen. There are records extant which 
 tend to show that these smaller tenants, holding directly of the 
 crown, were on some occasions represented in parliament by certain
 
 348 THE GKOWTH OF THE CONSTITUTIONAL PRINCIPLE 
 
 elected out of their number — knights of the shire, as they were 
 called — even as early as the reign of John ; but it does not appear 
 that their presence was thought necessary to the constitution of 
 parliament until the forty-ninth year of Henry III., 1265. In that 
 year the arrangement by representation, to which I have referred, 
 became a part of the parliament ; two knights were summoned from 
 every shire to represent the body of the county. It is a matter of 
 doubt among lawyers by whom these county members or knights 
 of the shire were elected. Perhaps, at first, it was only by the 
 tenants in capite, the lords of manors ; but later, as the dis- 
 tinction between these and ordinary freeholders became less and 
 less, all the freeholders joined in the election, until, in the eighth 
 year of Henry VI., 1430, an act was passed which, reciting that 
 elections of knights of shires have now of late been made by very 
 great outrageous and excessive number of people dwelling within the 
 same shires, of the which most part were people of small substance 
 and of no value, confines the elective franchise to freeholders of 
 lands or tenements to the value of forty shillings. There is reason 
 to believe that before the passing of this act the county members 
 were elected not by the freeholders only in whom the right was 
 vested, but by all persons whatever who came to the county court. 
 
 The representation of the towns in parliament dates from the 
 same year, 1265. Before that time there are no trustworthy traces 
 of any such thing ; but then Simon de Montfort ordered the sheriffs 
 to return two citizens or burgesses for every city or borough con- 
 tained within their shires. I have explained to you the origin of 
 boroughs or corporations ; the exaction of tallages which they were 
 subject to from their royal masters ; the promise of Magna Carta 
 that escuages should only be taken by consent of parliament, and its 
 silence with regard to tallages. In 1265, fifty years after the sign- 
 ing of Magna Carta, the principle was admitted by the summoning 
 of the borough members, that town and country alike ought not to 
 be taxed without their own consent. 1 These borough members were 
 no doubt from the beginning elected properly by the burgage 
 tenants ; but the privilege easily fell into the hands of the managing 
 body, the corporation, by whom in some cases it was retained even 
 until the Reform Bill. But, you will ask, how came it about that 
 this year 1265 was signalised by so great an event ; and who was 
 Simon de Montfort, who had the wisdom or policy to found so 
 exceedingly important a part of the institutions of the country as the 
 house of commons ? To clear up this, we must return to the 
 accession of Henry III. He came to the crown, as you know, very 
 
 1 Select Charters, p. 415.
 
 IN THE THIRTEENTH AND FOURTEENTH CENTURIES 349 
 
 young : as people who come early into their property, he learned 
 habits of extravagance ; he had a large connection of half-brothers 
 and sisters. So had his wife. She was extravagant too. The 
 pope was sorely in want of money, for he was an extravagant pope ; 
 or, rather, there was a run of them, and no money to be got but out 
 of the English nation. In vain were the Jews forced to ransom 
 their teeth ; in vain were the clergy taxed to the very utmost, and 
 the livings of the church given away to pay the pope's debts. 
 Money could not be got ; and so the kingdom went on for no less 
 than forty years, the king begging, borrowing, and extorting all he 
 could get from the parliament, and spending it quicker than he got 
 it. The barons, who then constituted the parliament, kicked very 
 hard : sometimes they refused money altogether, but generally were 
 persuaded or forced to give in after a remonstrance that the king 
 ought not to undertake wars and expenses without their knowledge 
 and advice, and expect them to pay for them. At length, however, 
 things came to a head. King and pope together were too much for 
 English patience. In 1255 Pope Innocent IV. offered the kingdom 
 of Sicily to Henry's second son, Edmund. Without asking the 
 advice of his people the king accepted the offer, and borrowed money 
 of the pope to pay the expense of the war in which it involved 
 him. The pope had not the power to secure the kingdom of Sicily 
 to his nominee ; that nominee was brought forward merely to gratify 
 his personal dislike to the house of Frederick II. No result followed 
 as far as Sicily is concerned, except the spending of the 14,000 marks 
 for which Henry had pawned the credit of the kingdom. Judge of 
 the indignation with which, in this year 1257, the king was received 
 by the parliament when he informed them that, without advising 
 with them, he had pledged their honour to repay the money ; that 
 his son Edmund was made a king at their expense ; and that the 
 pope had granted him the tenths and first-fruits of all benefices in 
 England. The nobility of the realm were indignant to think that 
 one man's folly should thus bring them to ruin. It was not so 
 much the amount, though that was very great, as the principle that 
 was at stake ; grant this, and another year might see them sold to 
 the Jews. The barons insisted that a council of twenty-four persons 
 should be nominated, half by the king and half by themselves, to 
 reform the state of the kingdom. In consequence, a council of 
 state was formed, with Simon de Montfort, earl of Leicester, the 
 king's brother-in-law, at the head, which named the chancellor, 
 justiciar, and great officers, and assumed all the functions of govern- 
 ment. The king and the prince of Wales swore to this constitution, 
 called the Provisions of Oxford ; but the foreign favourites, who had 
 been enriched by Henry's lavishness, refused, and seceded to France.
 
 350 THE GROWTH OF THE CONSTITUTIONAL PRINCIPLE 
 
 Matters remained in this uneasy state for about a year, when, 
 in 1260, King Henry being on a visit to France, in which he sold 
 Normandy to the French, the prince of Wales began to hire mer- 
 cenaries ; De Montfort quarrelled with the other lords, and a civil 
 war broke out. In 1261 the king repudiated the new constitution, 
 seized the Tower, and held it with troops against the country. 
 From the Tower next year he went to France, and on his return 
 swore again to the Provisions of Oxford, but brought back his 
 foreign relations, who were particularly disagreeable to the English, 
 and in 1263 provoked another outbreak. The barons consented to 
 an arbitration ; the king of France was to decide, and he decided 
 that the Provisions of Oxford should be abolished, but that an 
 amnesty should be declared, and that the people should preserve 
 their ancient liberties. This very fair decision offended both sides, 
 and directly after war broke out in earnest. On May 13, 1264, at 
 the battle of Lewes the king and the prince were taken prisoners, 
 and De Montfort became virtually the ruler in the name of Henry. 
 The pope excommunicated the barons and all who adhered to the 
 Provisions ; and this is the triumphant moment when De Montfort 
 assembled the parliament on its present basis — two knights from 
 every county, two burgesses from every city and borough. The tide 
 of fortune soon turned. This same year De Montfort fell at the 
 battle of Evesham. But his great work did not perish. The 
 system he had introduced was found too effective and too strong to 
 be dispensed with. He himself, although a foreigner, was looked on 
 as a popular martyr ; although excommunicated, he was canonised 
 by the national affection ; and his tomb was visited by the pious 
 country people for ages as the scene of wonderful miraculous cures. 
 It is remarkable that the very barons, who from their dislike to 
 De Montfort had restored Henry to the crown, forced upon him 
 when victorious the most important of the Provisions of Oxford. 
 The long reign of Henry is remarkable for the fact that during 
 its convulsions Magna Carta was suffered to last untouched, nay 
 was confirmed by several special confirmations extorted from the 
 king in consideration of the subsidies that he could not dispense 
 with. The principle was firmly established that money should not 
 be had without consent of parliament ; and parliament was founded 
 on a reasonable principle, a lasting basis. 
 
 The reign of Edward I. saw these principles strengthened by 
 constant trial. This king, like his father, was an extravagant 
 prince ; unlike him, he was a faithful and honourable man. He 
 was a great legislator, but his chief acts in that capacity do not fall 
 within the range of our subject. He wanted, however, to reign 
 despotically, and the country not only would not let him, but com-
 
 IN THE THIRTEENTH AND FOURTEENTH CENTURIES 351 
 
 pelled him to confirm Magna Carta, with the additional clauses that 
 no taxes whatever should be taken without consent of the realm, 
 save the ancient aids and prisage ; tallages are abolished, and the 
 toll upon wool, which had formerly been exacted by prerogative, was 
 released. This great confirmation — a second and more effective 
 Magna Carta — was granted in the 25th of Edward I., 1297. It 
 was obtained in the usual way : the king was waging war abroad, 
 the people were oppressed with taxation at home ; the barons met 
 together and refused to serve in the war or to grant any money for 
 it. Edward was forced to give way. The names of these great 
 liberators are : Roger Bigod, earl of Norfolk ; Humphrey Bohun, 
 earl of Essex ; and Robert Winchelsey, archbishop of Canterbury. 
 From this moment English liberty may be considered achieved. 1 
 
 The weak reign of Edward II. gave it time to grow ; the civil 
 war weakening the royal authority without being waged at all for 
 purposes of liberation. Liberty profited by the quarrels of those 
 who united might have oppressed her. 
 
 The reign of Edward III. established three great principles by 
 bringing them into actual usage: 1. That it was illegal to raise 
 money without consent of the nation ; 2. That both lords and 
 commons should agree before an act should become law ; 3. The 
 commons established their right of inquiring into public abuses 
 and impeaching public counsellors. All this was done quietly, 
 without bloodshed or an appeal to popular violence. It is impos- 
 sible now to go into detail on these particulars : the brunt of the 
 battle was already over when the country was strong enough and 
 united enough to enter on such an issue ; but those who wish to 
 see how it was done must go to their books to find it. It is not a 
 constitutional history, but the several steps towards liberty, that I 
 proposed to trace in this lecture. I have done enough when we 
 have seen the purse strings in the hands of the representatives of 
 the people. 
 
 And now let us in conclusion ask our question again, how 
 was English liberty won ? It was not won all at once ; it was not 
 a paper constitution written out at the will of a liberal sovereign, 
 or extorted from a needy one according to the will and pleasure of 
 a school of theorists. It was the growth of two hundred and thirty 
 years of labour and sorrow ; it was not designed by any one master 
 mind ; it is in its best aspect a bundle of expedients devised by 
 their authors to meet cases which they never did meet, but which 
 in the process of time were found to answer purposes for which they 
 were never designed. It is a work of very fallible men, a result 
 brought out of weakness by the strength of the Wise Ruler, King 
 
 ' Select CJiarters, p. 494.
 
 352 THE GROWTH OF THE CONSTITUTIONAL PRINCIPLE 
 
 of kings. We are proud of it, and rightly : no other nation in the 
 world has its like to compare with it. We may be prouder still 
 when we see how our fathers won it. There was no foreign inter- 
 vention here : no foreign liberator fought our battles. The thought 
 of invasion had and has, at any moment of our history, the effect of 
 uniting every contending element in the realm in defence. It was 
 not done by secret conspiracy. There is not one such to record, 
 effectual or ineffectual, in the period I have spoken of to-night ; nor 
 if you search our history through will you find such contrivances 
 successful either for or against freedom. Conspiring is not an 
 English characteristic, and we may be thankful that tyranny has 
 never forced us to learn it. It was not won by any one man's 
 ambition, making his countrymen believe him a liberator while on 
 the way to make a tyrant ; step by step, line by line, it was written 
 by men who had no personal ambition, but abundant patriotic 
 honour and moderation. Their works abide, while the flimsy 
 edifices of men who have had but their own aggrandisement at 
 heart perish. It was not won by one class at the expense or to 
 the loss of another ; the nobles and the church won it, but not for 
 themselves only : their cause was the people's cause, and by them 
 the people was freed. It was not won by rebellion or cemented by 
 perjury ; it was a gradual limitation of oppression and oppressive 
 power that was indeed in itself a usurpation, but was a discipline 
 needed to bring strength out of weakness ; and as it was won in 
 moderation, and unselfishly and truly, it was stained by no great 
 crimes or excesses. The men who earned it were not likely to sully 
 it with disgrace ; the people for whom it was earned were gradually 
 trained for it before it came. There was nothing in the full growth 
 of it to turn a people from despair to extravagant excesses. We 
 thank God that it was so ; we hope and pray that as it was won 
 and balanced, so it may be maintained, confirmed, and extended. 
 By the light that it gives us we can read and grieve over the 
 abortive efforts of foreign races to win what was won for us. We 
 cannot have much hope of freedom forced upon an unwilling 
 people, undisciplined, unprepared to receive it. We cannot hope for 
 lasting freedom founded upon personal ambition, maintained by 
 perjury and cruelty. We can grieve over the oppressed, but there 
 are worse things even than oppression, things more precious even 
 than liberty — truth and honour and honesty. By these our rights 
 were won : when these are lost, we are slaves indeed. 
 
 Love thou thy land, with love far-brought 
 
 From out the storied Past, and used 
 
 Within the Present, but transfused 
 Through future time by power of thought.
 
 IN THE THIRTEENTH AND FOURTEENTH CENTURIES 353 
 
 True love turned round on fixed poles, 
 
 Love, that endures not sordid ends, 
 
 For English, natures, freemen, friends, 
 Thy brothers and immortal souls. 
 
 This is the land that freemen till, 
 That sober-suited Freedom chose, 
 The land where girt with friends or foes 
 
 A man may speak the thing he will ; 
 
 A land of settled government, 
 
 A land of just and old renown, 
 
 Where Freedom slowly broadens down 
 From precedent to precedent : 
 
 Where faction seldom gathers head, 
 
 But by degrees to fullness wrought, 
 
 The strength of some diffusive thought 
 Hath time and space to work and spread. 
 
 We are a people yet. 
 Though all men else their nobler dreams forget, 
 Confused by brainless mobs and lawless Powers ; 
 Thank Him who isled us here and roughly set 
 His Briton in blown seas and storming showers, 
 We have a voice with which to pay the debt 
 Of boundless love and reverence and regret 
 To those great men who fought and kept it ours. 
 
 [Sec Stubbs, 'Introductions to the Bolls Series,' ed. by A. H assail ; 
 Round, ' The Commune of London, and other Essays ' ; McKechnie, ' The 
 History of Magna Carta.' 1 ] 
 
 A A
 
 XXI 
 
 THE BEGINNINGS OF THE FOREIGN POLICY 
 OF ENGLAND IN THE MIDDLE AGES 
 
 I fear that I have been too ambitious in my choice of a subject for 
 the present lecture, and that I should have done better if I had taken 
 a more confined period than ten centuries to discuss in an hour's 
 desultory talk. I fear that it will be impossible for me to give more 
 than a meagre outline of a great history, one too that is not often 
 looked into, and stands all the more therefore in need of detail. But, 
 as we have chosen as we have, I will try to point out the most 
 striking points of the subject in hand, and hope that I may excite a 
 curiosity concerning them that will not be satisfied to-night, but 
 may lead you on to read and think for yourselves. 
 
 I have spoken of history as the memory of nations. I should 
 like to find out where is the conscience of nations. Coleridge, in 
 one of his most brilliant aphorisms, describes conscience as the 
 court of equity established by God in man : at this rate the con- 
 science of the nation ought (by simple conversion) to be found in 
 the high court of chancery. But this, of course, refers only to the 
 internal conduct of affairs — domestic law ; and some perhaps may 
 think that the parallel holds in the case of abuse as well as of use ; 
 for some consciences are as long and elastic as chancery suits. Per- 
 haps the international conscience should be found in the Foreign 
 Office — perhaps, and too likely, there is no such thing ; indeed, writers 
 on international law, starting with the principle that there should be 
 between nation and nation the same conscientious and equitable 
 dealing that there is between man and man in a well-ordered 
 commonwealth, are obliged to confess that there is no such perfect 
 standard, no such perfect code in existence between nations as the 
 duty towards your neighbour is between a man and his fellow-men. 
 However much we could wish it to be otherwise, we cannot in 
 common sense expect otherwise. We cannot expect one nation to 
 treat another as it should itself be treated in return, if it is perfectly 
 certain that such treatment, such reciprocity, is a Utopian expecta-
 
 FOKEIGN POLICY OF ENGLAND IN THE MIDDLE AGES 355 
 
 tion. The expediency of the moment must be the rule in very 
 many transactions ; but I hope you will agree with me that it should 
 not be so in all. I think that treaties should be as sacred as the word 
 of private honour ; that the goodness or badness of a cause should 
 determine us as a nation as to which side our help or sympathy 
 should be given ; that we should not look at foreign questions only 
 from the point of view that examines which side will be the stronger 
 friend to ourselves ; that the best of all good causes, call it what you 
 will, liberty, civilisation, constitutional government, or what not, is 
 not worth winning if it is to be purchased by lying words, broken 
 treaties, bloody coups d'etat, assassinations, conspiracies, and judicial 
 or extra-judicial murders. 
 
 I could wish that, in looking through the history of the period 
 that we have chosen for to-night, we could reasonably hope to see in 
 it a proof that England, whatever share she has taken in former 
 times in foreign politics, has always been on the right side. I wish, 
 I say, that we could reasonably hope to find it so. But as there 
 are two sides to every question, and as the justice or injustice of a 
 cause is seldom apparent at the outset of the quarrel — as there are 
 many, nay most, quarrels of which all that we can affirm is that both 
 sides are in the wrong ; and, further, as there are many quarrels as to 
 which it will never be seen till Doomsday which was the right side 
 and which the wrong — we will not carry our patriotic ardour to any 
 such extreme. We will content ourselves if we find that the foreign 
 conduct of England has been such as to advance the cause of Chris- 
 tianity, civilisation, rational order, and liberty where her influence has 
 extended, and, secondly, such that we can confidently say of our 
 fathers that in the long run they supported the right cause in the 
 right way, and even when they were fighting on the wrong side fought 
 in good faith and truth and honour and honesty. 
 
 It will be convenient, for reasons which will appear as we proceed, 
 to divide the period of our investigation into two parts — the first 
 from the beginning of the middle ages to the year 1066, which may 
 be called the Anglo-Saxon period ; and the second from 1066 to 
 about 1500, when the middle ages are generally considered to end. 
 The Anglo-Saxon period will furnish us with very considerable 
 matter of interest as to foreign nations and affairs under the heads 
 of — 1. Ecclesiastical matters ; 2. Royal and noble connections ; and 
 3. Political alliances. You will remark that I have not mentioned 
 military affairs : during the whole time comprised in our first period 
 England was free from foreign wars. It was, in fact, a period of 
 defence against Scandinavian invasion and internal disruption. 
 Neither the wars with the Danes, nor the constant quarrels first 
 among the princes of the Heptarchy and afterwards with the Welsh 
 
 A A 2
 
 356 THE BEGINNINGS OF THE FOREIGN POLICY 
 
 and Scotch, have anything to do directly with the general politics of 
 Europe. 
 
 First, then, of ecclesiastical matters. I will remind you, for 
 the sake of starting clearly as to chronology, that the conversion of 
 the Anglo-Saxons began in 597, and that the church establishment 
 was finally settled on its present basis about 680 under Archbishop 
 Theodore. It is most pleasing to find that our forefathers had no 
 sooner organised the church in their own country than they began 
 to turn their attention to foreign missions. Europe was still for the 
 most part unconverted ; in France, Christianity was so curiously 
 mixed up with statecraft that a great portion of the true spirit of it 
 evaporated. The bishops and clergy were ambitious, venal, and 
 immoral : the state of Italy was little better ; that of Spain was 
 still worse, for there even the form of sound doctrine was lost, and 
 the Arian heretics had it all their own way. In Germany, heathenism 
 practically prevailed almost everywhere : there were a few solitary 
 churches and abbeys, but the whole of the north and centre of that 
 vast country was as heathen as it had been in the time of Caesar. 
 The Anglo-Saxons saw in this last country the field for their reli- 
 gious labours. In the first place, the people were their kinsmen ; 
 they worshipped the same gods as those within a century they and 
 their fathers had renounced. They had themselves not been so long 
 away from the Fatherland as our American relations have been away 
 rom England — only 250 years at the most ; and during those years 
 the language of the two countries, not being refined or fixed from 
 time to time by writers of classical authority, had developed its 
 powers under similar circumstances ; there is no reason to doubt 
 that Anglo-Saxon and German were at this period, say about 700, 
 mutually intelligible. The Anglo-Saxon apostles did not need a 
 miraculous gift of tongues to start them on their work. The first 
 country to which missionaries were sent was Friesland, a country 
 answering very much to the modern Holland. St. Wilfrid, arch- 
 bishop of York, was in 678 turned out of his see, and appealed to 
 the pope for restitution. On his way to Rome he was driven by 
 contrary winds to Friesland ; there, says Bede, he was honourably 
 received by that barbarous people and their king, to whom he 
 preached Christ and instructed many thousands of them in the 
 way of salvation. He stayed only a short time, and his labours, such 
 as they were, only paved the way for others. Egberht, afterwards 
 the reformer of Iona, then organised a mission to Friesland, and 
 himself set out at the head ; he was, however, prevented by contrary 
 winds from landing, and being warned, as it was said, in a vision that 
 his work lay in another direction, withdrew from the undertaking ; 
 he sent however one of his companions, Wictberht, who preached
 
 OF ENGLAND IN THE MIDDLE AGES 357 
 
 for two years without effect to King Radbod and then returned to 
 his monastery. Wilfrid now took up the cause again : in 693 he 
 consecrated St. Swidberht as bishop for Frieslahd, and at the same 
 time Egberht sent out a new mission under Wilbrord, who in 696 
 was consecrated bishop of Utrecht at Rome, and who was supported 
 by the authority of Pepin, the duke of the Franks, who had recently 
 subjugated King Radbod. Swidberht and Wilbrord together com- 
 pleted the conversion of the Frisians, and now extended their labours 
 into North Germany among the Old Saxons. Swidberht laboured 
 among the former ; the other mission was conducted by the two 
 Hewalds, the white and the black, who both suffered martyrdom and 
 were burned at Cologne. Wilbrord continued his labours until the 
 year of his death, about 740. Long before this, however, Wessex 
 had sent out the famous Winfrid or Boniface, the apostle of the 
 Germans. As early as 716 he had joined the Friesland mission, 
 and in 723 he was consecrated at Rome as a missionary bishop. He 
 became archbishop of Mainz about 738. He did a very great work 
 both as a reformer in tbe degraded Frankish church and as a 
 missionary to the heathen ; in his old age, when he had settled the 
 German church, he started again as a missionary and died the death 
 of a martyr in Friesland in 755. He founded very many episcopal 
 sees, in which he placed Englishmen as bishops. Lullus, his suc- 
 cessor, was a scholar of Malmesbury ; Willibald, the first bishop 
 of Eichstadt, was a Ripon man. Burkhard of Wurtzburg was a 
 Wessex man ; and there were many others. 
 
 I have stated this matter at length as it is sufficient to show 
 that during this age the church of England was the light of the 
 Western world. To the present day these names are great names 
 in Germany : at Mainz the successors of Boniface became primates 
 and arch- chancellors of Germany ; at Munich you see a church, 
 one of the finest in the world, ornamented with fresco pictures of 
 his life, and on the bridge of Wurtzburg you see the statue of 
 SS. Kilian and Burkhard, both our countrymen. Charlemagne in 
 consolidating his great empire sought the aid of English ministers ; 
 the great Aleuin, the light of the eighth century, was an Englishman 
 of York ; he carried the learning and elegance of the islanders 
 into the court of the Frank emperor. It was from England that 
 Charlemagne sought aid in his controversy with the Eastern 
 church about image worship, and English councillors were called 
 into the famous council of Frankfort, at which he repudiated that 
 practice. And here for a time the missionary effort ceased, for the 
 Danish invasions very soon gave the church employment enough 
 at home ; the Danes in England were converted by King Alfred, 
 and amalgamated with the English by his successors, but as soon
 
 358 THE BEGINNINGS OF THE FOREIGN POLICY 
 
 as this was completed the work began again. Sweden was con- 
 verted 950-1000 by St. Siegfried, a priest of York, Norway by 
 English priests under Canute 1016-1035, Iceland in the same 
 century. Thus the whole of the north-west and centre of Europe 
 owes its Christianity to English missions. The missionary spirit 
 was not quenched by the Normans ; down to the reign of Ed- 
 ward III. there are notices of missions to India and Ethiopia which 
 are of the highest interest but unfortunately exceedingly obscure. 
 If we like to descend still lower, we find the germ of the German 
 Reformation sown by Wicliffe ; and lest we should omit the con- 
 sideration that the good influence exercised by our countrymen 
 has not been unalloyed, we may remember that the German 
 infidelities and unbeliefs of which we now hear so much are 
 lineally traceable to those of David Hume, who happily for us was 
 a Scotchman. 
 
 We will turn now to the enumeration of the foreign alliances in 
 marriage made by our sovereigns, and these may be quickly dis- 
 missed. The wonder of them is that when our kings were among 
 the smaller potentates of Europe and harassed with constant inva- 
 sions and rebellions, they should have stood so high in esteem as 
 to have intermarried frequently with the highest ruling houses. 
 Ethelwulf, the second king, married into the family of Charles the 
 Bald ; one daughter of Alfred married Baldwin II., count of Flanders ; 
 of Edward the Elder's daughters, one married Hugh, count of Paris ; 
 another, Otto, king of Germany, afterwards emperor; another, a 
 prince of Aquitaine ; another, Charles the Simple, king of France. 
 Edward the Confessor was brought up in Hungary : two of his 
 nephews are said to have married princesses of that country and nieces 
 of the emperor. Canute's family formed not inferior alliances : 
 one of his daughters married the emperor Henry III. The house 
 of Godwin also strengthened itself by German alliances : Tostig 
 married a daughter of the count of Flanders ; and Gytha, daughter 
 of Harold, married Wladimir, son of Usewold, tsar of Muscovy. 
 You will have inferred from these two classes of facts that it was 
 with Germany that political affinity chiefly existed. Egberht was 
 brouoht up in the court of Charlemagne, and continued a faithful 
 ally of that monarch's house all his life ; Ethelwulf the same. Louis 
 d'Outremer, son of Charles the Simple, was brought up at the court 
 of Athelstan, and was conducted to his kingdom by Odo, afterwards 
 archbishop of Canterbury. Later on, towards the Conquest, a 
 German alliance seems to have been courted by the national party. 
 German and Lorraine prelates filled a great many of the episcopal 
 sees at the time of the Conquest. Edward the Confessor took up 
 arms for the only time in his life, and set himself at the head of
 
 OF ENGLAND IN THE MIDDLE AGES 359 
 
 his fleet to support the Emperor Henry III. against the count of 
 Flanders. His ambassador, Aldred, resided a year at Cologne as 
 minister to the same monarch. Nor was the connection repudiated 
 when the English were in trouble. 
 
 The connection of England with the East was less, of course, 
 during this period. Yet King Alfred sent an annual mission to 
 India during his prosperity, and considerable knowledge of eastern 
 countries was kept up by means of pilgrimages ; for the English, 
 both for good and evil, were great goers on pilgrimage even down to 
 the Reformation. Archbishop Aldred just before the Conquest went 
 to Jerusalem ; innumerable nobles and persons of inferior rank 
 went to Rome — in fact, that pilgrimage seems to have been a part of 
 the grand tour. Some few went to Constantinople, where their 
 countrymen emigrated in great numbers at the Conquest and took 
 service in the Varangian Guard. 
 
 To these notices I ought to add that there are a few signs of 
 a tolerably brisk commercial intercourse with Germany. A corpora- 
 tion of German traders was settled in England in 1016, for King 
 Ethelred, who died in that year, secured by law to the natives of 
 the countries under the rule of the emperor the same rights when 
 they entered English ports as these that the native English pos- 
 sessed, in return for which they were bound to make a donation at 
 Christmas and Easter of two pieces of grey and one of brown cloth, 
 ten pounds of pepper, five pairs of men's gloves, and two barrels 
 of vinegar. These enactments probably laid the foundation of that 
 corporation of German merchants called afterwards the Hanseatie 
 Steelyard in London, which ceased to exist only a few years ago. 
 So much for our first period. I am conscious that we have run 
 very cursorily over it, but I do not know that we have omitted any 
 point of importance. Our second period requires a few introductory 
 remarks as to the general state of Europe. 
 
 The feudal system had grown up and, if we may use the term, 
 run to seed in the dominions of Charlemagne, which comprised 
 nearly the whole of then civilised Europe. The system was now 
 nearly three hundred years old, and had wrought in France and 
 Germany its most injurious effects. You may remember the two 
 especial dangers against which the prudence of William the Con- 
 queror guarded when he introduced it into England : first, that 
 which arose from the vassals of the great nobles being bound to 
 fealty not to the lord paramount but only to their immediate supe- 
 rior, by which means a great noble choosing to rebel could carry 
 with him all his vassals against his suzerain ; and secondly, the 
 danger which arose from the entrusting of large contiguous pro- 
 vinces to one noble. William guarded against this by giving to his
 
 300 THE BEGINNINGS OF THE FOREIGN POLICY 
 
 largest feudal tenants holdings in different counties, so that it was 
 never even attempted in England to elevate earldoms into inde- 
 pendent principalities. Well, the two evils that he thus guarded 
 against had prevailed to a very great extent in all the countries that 
 had constituted the empire of Charlemagne. In France, for in- 
 stance, the dukes of Normandy and Brittany and Aquitaine, and the 
 counts of much smaller provinces, were independent of the crown 
 to all intents and purposes as soon as they had received investiture, 
 and so far as the king was not able by physical force to reduce them 
 to obedience. And more especially was this the case in Normandy 
 and Brittany, in which countries the native inhabitants were of a 
 different stock from the French-Gallic people, and were rather 
 hostile to them than otherwise. Still more was this the case in 
 Germany. There the princes of the several districts were in many 
 instances sprung from the blood of the old royal races that Charle- 
 magne had conquered : the races of inhabitants were different and 
 very far divergent branches of the Teutonic stock ; and the duchies, 
 although nominally fiefs held under the emperor, were almost if not 
 quite as independent as they are at the present day under the title 
 of kingdoms. Both in France and Germany the domains belonging to 
 the suzerain were small. Before the Caroling family ceased to be 
 called the kings of France, their dominions had shrunk to a very 
 small compass about the city of Laon. The family called from 
 Hugh Capet, which succeeded the Carolingians, were richer as 
 counts of Paris and dukes of France than they were as kings. For 
 two hundred years and more the struggle between the royal race 
 and the great vassals continued, but at length, partly by escheats 
 and partly by well-adjusted marriages, the royal house gathered 
 together all the great fiefs into itself, and the French kingdom 
 became one of the great powers of Europe. This was about the 
 thirteenth century. Before that time, before the age of St. Louis, 
 many of the vassals possessed more territory than the crown, and 
 especially the English possessions in France gave to our Planta- 
 genet kings a power equal to the native monarch on his own soil. 
 
 In Germany matters turned out differently. There the form of 
 the empire and its claims over Italy and the large district that lay 
 between the then France and Germany, called Lorraine and Bur- 
 gundy, were kept up ; but the empire was an elective empire, and 
 although an elective monarchy always has a tendency to become 
 hereditary, it so fell out that not one of the great houses to which the 
 great trust was confided turned out to be long-lived, and at the 
 termination of each elective dynasty a disputed and long-contested 
 election took place. Now, under such circumstances, it was ex- 
 ceedingly difficult for any real German unity to exist. A weak
 
 OF ENGLAND IN THE MIDDLE AGES 361 
 
 emperor was pretty sure to fall under the influence of the pope ; 
 a strong one was sure to have difficulties in his path constantly 
 arising from the insubordination of the princes, his equals, who had 
 elected him as their superior, but were not at all inclined to let him 
 keep them in order. Then, again, the emperor's rights in Italy 
 were always at variance with what the pope assumed to be his 
 rights : strong emperors claimed and exercised the power of nomi- 
 nating the popes ; but, on the other hand, strong popes claimed, and 
 in some cases exercised, the power of nominating the emperor. 
 In Germany an elected monarch until he was crowned by the pope 
 was known as king of the Romans ; and the emperors in return 
 claimed the right of at least vetoing the election of the pope. 
 
 Now, this state of things, the contest between pope and emperor, 
 or, as it was called in Italy, between Guelf and Ghibelline, lasted 
 during the whole of our period, at the termination of which the 
 house of Austria managed to make the empire completely hereditary 
 and put an end to the Guelf and Ghibelline controversy by giving 
 entire support to the pope against all enemies spiritual and 
 temporal ; but during the space of about five hundred years there 
 was a continual contest going on, a sort of triangular duel between 
 the emperor, the pope, and the princes. You must not conceive of 
 an emperor as of the fashion of these days : in those times there was 
 but one in the West and one in the East of Europe, the successor 
 of Constantine at Rome or in Germany, and the successor of Con- 
 stantine at Constantinople. Nor were they merely as now the 
 equals of kings, or differing from them only as despotic from con- 
 stitutional sovereigns. An emperor was a great deal greater man 
 than a king, and his power was of a very much more constitutional 
 character and origin. Kings and great prelates were proud to be his 
 ministers, and although he might be both poorer and of lower de- 
 scent than many of his vassals, still his court was the first in the 
 civilised world, and his ambassadors had precedence of all other 
 potentates' ambassadors. He was Imperator Ccesar semper Augustus, 
 as Julius and Augustus had been ; and yet he was very often only a 
 very small proprietor in point of demesne. 
 
 To make the contrast greater between France and Germany at 
 this period, we may add that while a good king of France was a 
 very rare exception to the general rule, a bad emperor was as rare 
 in German history. Whether it was that the elective system was 
 a check upon tyranny and open vice, or that the German sovereigns 
 represented really the better tendencies of their race, and the French 
 the worst of theirs, I cannot say, but the result is the same. The 
 emperors were generally righteous and honourable men ; the French 
 kings, with the exception of St. Louis, were quite the reverse.
 
 362 THE BEGINNINGS OF THE FOREIGN POLICY 
 
 Germany was then divided into a great number of principalities, 
 some of them spiritual and the great majority temporal ; and of these 
 princes, seven had by the time our period opens got the power of 
 electing the emperor into their own hands, and were called electors, 
 three archbishops, Mainz, Cologne, and Trier, and four imperial 
 princes, the duke of Saxony, the margrave of Brandenburg, the 
 count palatine of the Rhine, and the king of Bohemia. It is 
 obvious that if one of the temporal electors chose to vote for him- 
 self, he might by the aid of the ecclesiastical electors carry the day, 
 and so it frequently happened ; in other cases, the temporal electors 
 being equally divided, the election was entirely in the hands of the 
 three archbishops. This fact, which might at first sight seem 
 to give the pope a chance of coming in as umpire, had the contrary 
 effect, as there was always in the German church and nation a 
 strong dislike to the interference of the Italian potentate in their 
 affairs. 
 
 The other countries of Europe may be briefly dismissed. The 
 northern states, Sweden, Norway, and Denmark, had little to do 
 with the general politics of Europe. Spain and Portugal were split 
 up into little kingdoms, of no weight either singly or collectively. 
 The south of Spain was for the most part Mahometan. Hungary was 
 employed in Turkish and barbarian struggles. Italy, though it has 
 a history most interesting in itself, both in its northern republics and 
 in its southern politics, only comes across our line of vision as it is 
 connected now and then with France, Germany, and later with Spain. 
 It wall thus be seen that there was room for a great and abiding 
 influence in European politics, a place that neither the emperor nor 
 the king of France could quite fill. Often enough that place was 
 unfilled. Sometimes the king of England filled it, and at all times 
 his alliance and influence were of importance enough to be an object 
 of earnest desire in both France and Germany. I will, if you please, 
 shortly detail first the connection of England with France, and then 
 go on to the less known and more interesting branch of the subject, 
 the early connection of England and Germany. 
 
 It is almost a misapprehension to speak of a connection between 
 England and France under the early Norman and Plantagenet 
 kings, for it was simply that the kings of England had also large 
 possessions on the Continent. There was no consolidation of the 
 nations, no attempt to bring them under the same laws and institu- 
 tions. This portion of our history occupies so great a part in 
 ordinary books of education that I shall barely skim over it. 
 William the Conqueror and his two successors owned Normandy ; 
 Henry II. added to it Anjou, and, in right of his wife, Aquitaine, 
 the greater part of the south of France. John lost Normandy and
 
 OF ENGLAND IN THE MIDDLE AGES 363 
 
 a good deal besides. Henry III. scarcely kept what his father left 
 hiin. Edward III. reconquered that and a good deal more, strangely 
 basing his right to the French crown on his mother's descent. 
 Henry V. conquered nearly the whole kingdom. All was lost under 
 Henry VI. Thus the state of things between the two neighbouring 
 princes was a chronic state of war from 1066 to 1453, when 
 Bordeaux, the last English possession in the south, was taken, 
 or, if you like, until 1558, when Calais fell to the French. The 
 effect of these French wars on the English was twofold : evil, 
 in that they caused a constant drain of men and treasure ; good, 
 inasmuch as every strait to which the royal power was reduced was 
 an opportunity for the assertion of old liberties. Viewed so, our 
 connection with France was a remote cause of good ; in all other 
 respects it was an unmitigated evil. During this long period the 
 English did not become Frenchified, nor did the Anglo-French 
 provinces, however much they might be attached to the persons 
 of particular sovereigns, become in any way Anglicised. You 
 may trace in the architecture of their churches a resemblance 
 to that of ours, but there is none in their institutions or laws, and 
 no advance towards anything like a resemblance in national character 
 or unity in national feeling. Very few French families took root in 
 England ; no English ones took root in France : English bishops 
 were only in very rare cases introduced into French sees ; French 
 bishops were never translated into English ones. In case of a 
 schism in the papacy, England recognised one pope, and France 
 another, but it by no means followed that the same pope was recog- 
 nised in England and in the English provinces in France. 
 
 Under these circumstances of chronic hostility we can hardly 
 expect that any good influence should be exercised by England in 
 the internal politics of France, and yet the evil influence that was 
 from time to time apparent was that of the king rather than that of 
 the people. Occasionally the king of England backed a rebellious 
 vassal against the king, but if he did it was as often as not repre- 
 sented as a support of his own right against the intruding monarch 
 at Paris, for, as you all know, from Edward III. to George III. our 
 kings called themselves kings of France as well as of England. 
 France, on the other hand, was almost always in the closest 
 alliance with Scotland, and that kingdom was a thorn in the side 
 of English greatness for 500 years. Whatever injury England did 
 to France was repaid by way of Scotland, which had formerly 
 borne to the crown of England a semi-feudal relation not unlike 
 that by which the English kings held their continental possessions 
 of the French crown. Into these disputes, which had very little to 
 do with Europe generally, I shall not go.
 
 8fi4 THE BEGINNINGS OF THE FOREIGN POLICY 
 
 We will now turn to Germany. The first family which 
 maintained any lengthened hold on the imperial crown was the 
 house of Saxony, which, founded by Henry the Fowler in 919, came 
 to an end in Otto III. in 1002 ; he was succeeded by his cousin 
 Henry II. from 1002 to 1024, and the whole family became extinct. 
 I have already mentioned the marriage of Otto I. with a sister 
 of Athelstan, and the alliance which continued between our sove- 
 reigns and the Franconian emperors. The Franconian family 
 under Conrad the Salic, Henry III., IV., and V., were also closely 
 connected with England. Canute went to Rome to the corona- 
 tion of Conrad the Salic in 1026. Henry III. married Canute's 
 daughter Gunhilda ; Henry V. married Maud, the daughter of our 
 Henry I., so well known as the Empress Maud. The last two of 
 these emperors were engaged in a lifelong and internecine quarrel 
 with the popes ; but in spite of the connection between the two 
 countries — or, rather, in consequence of a cessation of it in the 
 reigns of the two Williams — the English did not support the 
 imperialist antipope. William the Conqueror had got a papal com- 
 mission to conquer England, and his minister, Lanfranc, was an 
 Italian. William Rufus had no religious instincts, and swayed 
 by intense hatred towards Anselm, who was a thorough supporter of 
 the Italian pope, somehow or other never recognised the German 
 one. In the subsequent quarrels of this nature we generally find 
 England and Germany pulling together. The reign of Stephen 
 was an eventful one at home, but an insignificant one in Europe. 
 During it the imperial power was first swayed by Lothaire II. 
 (1125-1138), and after him by Conrad III., the founder of the house 
 of Hohenstaufen. Lothaire has no connection with English history; 
 he was not the founder of a dynasty ; but his daughter Gertrude 
 was the mother of Henry the Lion, duke of Saxony and Bavaria, 
 who married a daughter of Henry II., and was the ancestor of 
 the house of Hanover. Through Henry the Lion almost every 
 reigning house in Europe traces its descent to Alfred the Great. 
 Lothaire, who was a weak and poor prince, had during his reign 
 the escheats of some important fiefs, which he bestowed on his 
 son-in-law, thus raising up a powerful opposition to the house of 
 Hohenstaufen, which had nearly defeated his election and was 
 anxiously looking for his succession. The Saxon -Bavarian or 
 Guelfic house naturally took the opposition side in religious politics 
 to their rivals, and it is from them that the papal party in Germany 
 and Italy had the name of Guelfs. After Lothaire's death the 
 Hohenstaufens did come in, and tried to recover the fiefs that came 
 to Henry the Lion. He was expelled from his dominions and sought 
 a refuge with his father-in-law, Henry II., who assisted him also
 
 OF ENGLAND IN THE MIDDLE AGES 365 
 
 with men and money. There is something rather striking in this 
 position of affairs. Henry II. in England, and Frederick Bar- 
 barossa in Germany and Italy, were contending against the aggres- 
 sive power of the papacy ; Frederick had supported four antipopes 
 in succession, while the strength of the papal party was in Henry 
 the Lion, Henry's son-in-law. This seems to have had the effect of 
 keeping our king straight ; he clung to the pope whom his son-in- 
 law supported and not to the one to whom similarity of position and 
 principles with Barbarossa might have inclined him. In 1181 the 
 schism ended, and a few years later the second crusade was preached, 
 to which both Henry and Frederick bound themselves. Henry, how- 
 ever, never attempted to keep his vow, and Frederick, one of the 
 noblest heroes of the age, started at the head of his forces, but 
 perished in the river Calicadnus in Cilicia in 1190. Henry died 
 in 1189. Bichard Cceur de Lion succeeded to the crown and 
 obligations of Henry II., and immediately went on crusade. 
 Henry VI., the successor to Frederick Barbarossa, thought it best to 
 stay at home, and left the command of the imperial forces in Syria 
 to Leopold, duke of Austria. We all know how Richard and 
 Leopold quarrelled at Acre ; how Leopold took him prisoner on his 
 return and delivered him up to the emperor, who was glad enough 
 to be able to secure the brother-in-law of Henry the Lion in a 
 German prison. We are accustomed to feel a good deal of righteous 
 indignation at this, but it is impossible to overlook the fact that the 
 hardship was provoked in some measure by the conduct of Richard, 
 who seems to have been one of the worst specimens of his unhappy 
 and vicious family. Leopold was an estimable prince in other 
 respects. He was not connected at all with the present house of 
 Austria, and is chiefly remembered as performing an unparalleled 
 surgical operation on his own foot. Henry VI. had probably 
 interests both in Germany and Sicily, to which his wife had a claim, 
 that ran very counter to Richard's. It is said that the ransom of 
 Richard was applied to the building of the walls of Vienna. 
 Henry VI. died in 1197, and Richard I. in 1199. The heir of the 
 house of Hohenstaufen was a child, and the Brunswick Guelfic 
 interest was strong enough to raise Otto, the son of Henry the 
 Lion, grandson of our Henry II. and nephew of King John, to the 
 imperial crown. Now again matters were complicated. Otto was 
 in close alliance with his uncle John ; Otto was the pope's candi- 
 date ; John was the pope's enemy. Philip Augustus, the king 
 of France, against whom the two were allied, was also an ex- 
 communicated man. However, to make matters simpler, the 
 pope in 1211 turned round on Otto and set up the heir of 
 Hohenstaufen as emperor ; two years after he reduced John to
 
 366 THE BEGINNINGS OF THE FOREIGN POLICY 
 
 resign the crown of England and accept it again as a papal fief. 
 This, however, did not break the alliance between England and the 
 empire, and it was not until after the battle of Bouvines, in 
 which the French king defeated the united forces of England 
 and Germany, in 1214, that the pope and his party decidedly got the 
 upper hand. 
 
 In 1216 John died, and his son Henry III. became king : 
 Frederick II. succeeded quietly to the empire on the death of Otto. 
 This Frederick, the ' wonder of the world ' as his contemporaries 
 called him, is very famous for his genius and misfortunes. One 
 of his many wives was an English princess, a daughter of John 
 and sister of Henry III. (1235). His name occurs very frequently 
 in the histories of England of the time, but he had difficulties at 
 home all his life that prevented him from rendering any aid to his 
 brother-in-law, and Henry III. was not a man to help anybody. 
 Indeed, the part he took in continental politics was one of sub- 
 serviency to the pope, and a great part of his debts were incurred 
 in the support of the papal power against his own brother-in-law. 
 On the death of Frederick in 1250 began the long interregnum 
 which is sometimes looked on as the termination of the empire as 
 established by Charlemagne. One of the competitors for the 
 vacant crown was Richard, earl of Cornwall, brother of our King 
 Henry III., and the richest prince of the age, as his brother was the 
 poorest. Richard was elected in 1256, and shortly afterwards was 
 crowned king of the Romans. 
 
 Henry, although quite unable to manage his own dominions, 
 was very anxious to fill a great place in Europe. He accepted the 
 kingdom of Sicily, part of the spoils of the Hohenstaufen, in 1257, 
 for his second son, Edmund, and soon saw his brother on the high 
 way to the empire. Richard, however, never was actually emperor. 
 He spent a good deal of money in Germany, and granted charters 
 to some of the Rhenish cities. He also brought German miners 
 from the Harz to work his Cornish mines ; but he did not find it 
 pay to be a king without a kingdom. He returned to England in 
 1259 and lived at Berkhamsted in Herts till 1271, known and 
 recognised still as the king of the Romans and king of Germany. 
 Three years after his death the Germans elected the celebrated 
 Rudolf of Hapsburg, the ancestor of the present Austrian house, 
 as emperor, and one of his first measures was to seek an English 
 alliance. In 1276 it was proposed that Hartmann, the second son 
 of Rudolf, should marry Joanna, daughter of Edward I. of England. 
 The young princess was to have a dowry of 10,000 marks ; Hartmann 
 was to present her with a nuptial gift of 2,000Z. He was also to 
 succeed to the imperial crown, and in the meantime to be elected
 
 OF ENGLAND IN THE MIDDLE AGES 367 
 
 king of Aries, in which character his dominions would lie very 
 near the French possessions of Edward, and he might be a useful 
 neighbour. Somehow or other the negotiations hung fire, and the 
 marriage was delayed from time to time until it was finally broken 
 off by the death of Hartmann, who was drowned in the Rhine in 
 1281. This catastrophe did not, however, prevent the friendship of 
 Rudolf and Edward continuing. The diplomatic intercourse was 
 very continuous and close as long as Rudolf lived. He died in 1292. 
 His successor, Adolf of Nassau, was also a friend of England, at 
 least for his own purposes. Edward I. hired him as an ally in his 
 war with France, and Adolf spent the money in the purchase of 
 Misnia and Thuringia. The transaction is not very creditable to 
 either side. Edward was moreover called in to arbitrate between 
 the Flemings, the emperor, and the king of France. In this he 
 was very unsuccessful, and the French king, as usual, got the advan- 
 tage. Adolf was assassinated in 1298 by Albert of Hapsburg, who 
 succeeded him, and was murdered by his own nephew after a reign 
 of ten years. Henry VII., who succeeded him, was the founder of 
 the house of Luxemburg, a very great and noble prince, but his reign 
 was spent in a struggle with Italy, in which country he was poi- 
 soned in the sacramental cup in 1313. His successor was Lewis IV. 
 of Bavaria, who reigned from 1315 to 1347. Lewis was the heir of 
 the policy and principles of the Hohenstaufen, and had to maintain 
 a lifelong struggle with the papal party and the French in con- 
 junction : the popes were now entirely under French influence, 
 and even lived at Avignon from 1305 to 1367. These circumstances 
 are enough to account for his being a close ally of England, and 
 the connection was drawn still closer by Lewis's marrying the sister 
 of Queen Philippa, wife of Edward III. The interests of England and 
 Germany in Flanders were of course the same — a resistance to French 
 aggression. Flanders also was conveniently near to the French 
 frontier, and a standing point from which Edward could make his 
 claims on the French crown heard and felt. In 1337 Lewis and 
 Edward formed a very close alliance. Lewis had plenty of soldiers ; 
 Edward had very good credit, which, however, was very soon ex- 
 hausted. The emperor and the Fleming democratic party under 
 Jacob van Artevelde were to lend very efficient assistance to the 
 English king. The latter monarch went over to Flanders in 1338, 
 and thence into Germany, where he tried hard to reconcile the 
 opposing powers, but only succeeded in getting further and further 
 into debt. At Coblentz, Lewis invested Edward with full powers as 
 the vicar of the empire — a most important position if he could 
 have made it good, as it would have enabled him to employ all the 
 forces of Rhenish Germany on his side in his war with France.
 
 368 THE BEGINNINGS OF THE FOREIGN POLICY 
 
 Unfortunately the German princes did not like to be ordered about 
 by a foreign monarch, and Edward got very little assistance from 
 the empire. With the best of wills Lewis had enough to do at 
 home, where he was kept in a constant ferment by the Austrian, 
 Luxemburg, and papal parties. We always at this period find 
 England and Germany recognising the same pope, and France and 
 Scotland the other. 
 
 It was during this transaction that the English navy won its 
 first victory at Sluys in 1341. Edward's pecuniary difficulties 
 went on increasing ; he pawned his crown jewels to German mer- 
 chants, but his credit was still so good that money was never 
 wanting for military purposes. In 1346 the pope set up a new 
 emperor against Lewis— Charles, the son of the blind king John of 
 Bohemia, who of course took the part of France against England. 
 Both he and his father were present at the battle of Crecy on the 
 French side. The father was killed, but the emperor-elect fled. 
 Lewis died the next year. Charles IV. continued to be a tool of the 
 pope all his life ; his principal aim was to aggrandise his own 
 family, and his politics accordingly came very little in contact with 
 the English. He was, however, the father of the good Queen Anne 
 of Bohemia, wife of our Richard II. ; and his two sons, who were 
 emperors after him, were closely allied with us. Sigismund, who 
 reigned in Germany from 1413 to 1437, spent a long time in 
 England in the year 1416. He was received with great pomp, but 
 soon became unpopular, got into difficulties, and had to be smuggled 
 away into France. He failed in the object of his mission to Eng- 
 land, which was to engage the king in his plan of giving peace to 
 the church and empire at the council of Constance, but he did 
 conclude a treaty offensive and defensive with Henry V. He was 
 faithful to his engagements, and the friendship between the two 
 kings was ardently sincere. Sigismund was present at the treaty of 
 Troyes, which ended for the time the war of Henry with France, 
 and the Icing in his will characterised him as the most faithful 
 defender of the church and faith, and left him a magnificent sword. 
 The death of Henry V. did not put an end to the alliance ; in 1427 
 Cardinal Beaufort led an army into Bohemia against the Hussites. 
 Soon, however, the troubles of England and France, followed by 
 the Wars of the Roses, kept the people at home ; and the death of 
 Sigismund in 1437, in whom the house of Luxemburg came to an 
 end, prevented any assistance reaching us from that side. The 
 Austrian family which followed was in its earlier years sufficiently 
 occupied in keeping its own footing, and it was not until the acces- 
 sion of Charles V. that any great and active cordiality between 
 England and Germany prevailed.
 
 OF ENGLAND IN THE MIDDLE AGES 369 
 
 This brings us to the end of our period. I am afraid that you 
 will think such a mere skeleton catalogue of names and dates in the 
 highest degree uninteresting. The very brief notice that we can 
 give to them is really the cause ; they might in extenso give you 
 some very curious and interesting details ; as it is, I can only use 
 them as premisses to the conclusions towards which I hope to carry 
 you. I have not, as you will see, made any mention of the 
 crusades : both those earlier ones in which the English under 
 Robert of Normandy, Richard L, and Edward I. made so great a 
 figure ; nor the later ones under the Teutonic knights in Prussia 
 and Poland, and under the Knights Hospitallers of Rhodes and 
 Malta in the south. In both of these the English were among the 
 foremost champions. Henry IV., when earl of Derby, fought 
 several campaigns in Prussia, and the English Knights Hospitallers 
 were so numerous as to constitute a separate langue or division of 
 the order. But these were private adventures, and do not touch the 
 main interest of our subject, to which I have felt bound to keep as 
 close as possible. I might also have noticed the literary intercourse 
 between England and the Continent, the connection of the uni- 
 versities and schools of learning, which seems at one time to have 
 been very close ; but we must stick to politics, and that field of 
 observation restricts itself to our relations with France and Ger- 
 many. No great war was waged by England but in connection with 
 those powers. The war of the Black Prince in Spain is the only 
 exception that I remember, and that was in a measure a French war 
 rather than an English one. 
 
 What conclusions do we draw from these facts ? The first is, 
 I think, that there was, by a community of interest, sympathy, and 
 race, a friendship between England and Germany throughout the 
 middle ages which contrasts very strongly with the inbred hostility 
 between England and France. The friendship was not owing only 
 to the intimate relations of the princes, to royal marriages, and such- 
 like. It was partly a political necessity, but it was a necessity that 
 was gladly and heartily recognised by the people. This is proved 
 by the fact that no dynasty of emperors was without its English 
 alliance. Saxon, Franconian, Brunswick, Hohenstaufen, Bavarian, 
 Luxemburg, Austrian, each, however in other respects they reversed 
 one another's policy, sought among their first objects English 
 support. And this they did quite irrespective of the actual amount 
 of assistance that was got from England. The English people, who 
 grumbled at foreigners in general, were very good friends with the 
 Germans whether soldiers or merchants : they heartily sympathised 
 also with the imperial as opposed to the papal policy. Henry III., 
 the only English king who set himself in earnest against this 
 
 B B
 
 370 THE BEGINNINGS OF THE FOKEIGN POLICY 
 
 instinct of his subjects, incurring most of his debts in supporting 
 the pope against the Hohenstaufen, found nothing that made him so 
 unpopular and compelled him to greater shifts than the fact that he 
 was sacrificing the German friendship to the Roman. 
 
 I am anxious not to go into ecclesiastical matters, but I must 
 observe that there was an independence in the German and English 
 churches that did not exist in the French and Italian, that led them 
 alike to resist the aggressive power of the papacy, if not in concert 
 at least in sympathy. I think, however, that we must go deeper 
 than common enmities to find the real secret of this sympathy. 
 The German and English alike are non-aggressive nations : order 
 and peace are and always have been in their eyes far before 
 conquest : both are successful in colonisation, both are strongly 
 patriotic, both full of independent zeal for freedom. Is it necessary 
 to go further to find a key to the continuous hostility between the 
 two and the French people ? It may be true that up to the time 
 of the French Revolution there can hardly be said to have been 
 a French people ; but such as that people has shown itself since 
 it struggled into visible existence, such was the spirit of its 
 rulers and leaders from time immemorial — aggressive, unscrupulous, 
 false. 
 
 I have referred before to the fact that the French kings were 
 probably the very worst set of kings that ever disgraced the name ; 
 and that among the German emperors there are very few that 
 were actually bad, many that were very good, and some, like Frede- 
 rick Barbarossa and Henry VII., who would have shed glory and 
 honour on any race or country. But it was more than the personal 
 character of the emperors that made their side the right one and the 
 French the wrong one : it was the pressure of opinion, of balancing 
 powers and able counsellors ; it was the constant state of defence 
 in which the aggressive power of the French on the one hand and 
 the papacy on the other kept them ; and these characteristics they 
 shared, if not with the English kings, at least with the English 
 people. The English looked on the right they had to hate the 
 French as an article of faith. You will remember Lord Nelson's 
 three rules of faith and duty : 1. To obey commands without asking 
 the reason why ; 2. To look on anyone who spoke ill of the king as 
 an enemy ; 3. To hate every Frenchman as the devil. That was 
 certainly a strong point of practical belief through these ages. The 
 miseries which England had endured first from the oppression of 
 the Normans, whom they looked on as a French or Frenchified race, 
 and after the Norman times from the French wars in which their 
 children were sacrificed and their money wasted, produced an effect 
 on us which lasts still. In some respects the friendship of that race
 
 OF ENGLAND IN THE MIDDLE AGES 371 
 
 was looked on as worse than their hostility. The marriages between 
 the royal families of the two countries were proverbially unlucky. 
 Henry III. owed his difficulties, or some of them, to his Proven9al 
 marriage ; the she-wolf of France murdered Edward II. ; Richard II. 
 married a French princess, and was betrayed and murdered (though 
 in this case superstition alone could trace a connection). Henry V. 
 survived his French marriage only a couple of years. Henry VI. 
 owed all his troubles to Margaret of Anjou. These things were not 
 forgotten when Charles I. made his ill-starred match, and there 
 is not a shadow of a doubt that it was to their French predilec- 
 tions and connections inherited with their Scottish blood that the 
 Stuarts owed the loss of their throne. 
 
 On the other hand, probably no war was ever so popular in 
 England as the one in which James I. engaged in support of the 
 king of Bohemia, his son-in-law, and we know how cheerfully our 
 fathers endured the taxation by which the English and German 
 races were enabled to destroy the fabric of power raised by the first 
 Napoleon. Still, as of old, England and Germany, whether repre- 
 sented by Prussia or Austria, were found fighting the battles of 
 freedom, and still successful. God send that we never see another 
 such war ; but if we do, may we find still the old allies on the same 
 side, with the same good cause, and we need never fear for the same 
 result. 
 
 I have now to draw my remarks to a conclusion. I have not 
 proved that England has always been on the right side in all her 
 foreign wars, but I have put before you facts into which, if you will 
 search for yourselves, you will find, I think, that for the most part 
 it has been so. I am sure you will find that in every European 
 perturbation our country has been on the side of order and freedom. 
 I am sure you will find that, whatever have been the mistakes and 
 sins of her statesmen and soldiers, the strong spirit of the nation 
 and the main current of her policy — which could not flow if it 
 were not sustained by the strong spirit of the nation — strong in endur- 
 ance as well as action, has still been so. And I think this is a thing 
 we may be proud of. And those aims have not been sought by evil 
 means. Englishmen may point with pride, too, to the way they 
 have kept their treaties and supported the cause they took up. I do 
 not say without fear and without reproach, but with a manly fear of 
 all that is dishonest and untrue, and in spite of every reproach that 
 envy and hatred have dictated. Our sympathies are often engaged for 
 aims the means towards which our national conscience cannot, dare 
 not, approve. I suppose I need not go further for proof of this than 
 to our neutrality in the Italian and American struggles (1859-1871). 
 Non tali auxilio nee defensor ibus istis, we say, in spite of every 
 
 D B 2
 
 372 FOREIGN POLICY OF ENGLAND IN THE MIDDLE AGES 
 
 accusation of cold-heartedness and interested policy. May it be so 
 always. Such purity is the great glory of a nation, far more than 
 victorious armaments or perfectly symmetrical institutions. ' Right- 
 eousness exalteth a nation ; ' and the righteousness of a nation is in 
 this — truth and justice, honour and faithfulness. 
 
 [Stubbs, 'Introductions to the Rolls Series,' ed. by A. Hassall ; 
 Pollock and Maitland, ' The History of the English Law before the 
 time of Edward I.']
 
 INDEX 
 
 Adolf of Nassau, 282, 367 
 
 ^Elle of Sussex, 8 note 1 
 
 iEthelings, 9 ; weregild for, 13 
 
 Agriculture, information as to, 190 
 
 Aids, 25, 302, 344, 351 
 
 Albert II., Emperor, 322 
 
 Alcuin of York, 357 
 
 Alderman, 65 ; meaning of term, 166 
 
 Aldred, Abp., 359 
 
 Alexander II., Pope, 99 
 
 Alexander III., Pope, 101-102 
 
 Alfonso the Wise, King of Spain, 256 
 
 and note, 257, 301 
 Alfonso III., King of Spain, 284 
 Alfonso XI., King of Spain, 256-258, 
 
 301, 330 
 Alfred, King : 
 Danes converted by, 357 
 Daughters of, 358 
 Indian missions of, 359 
 Laws of, 49, 68, 251 
 Royal descents from, 364 
 Alienigence, 64 
 Anacletus II., Pope, 101 
 Anglia (see also England) : 
 Name, use of, 64, 122 
 Three divisions of, 152 
 Anglo-Saxon Chronicle cited, 325, 340 
 Anglo-Saxons : 
 
 Administrative system of, 8 
 Art and commerce of, 16 
 Characteristics of, 16 
 Class divisions among, 7 
 Conversion of, to Christianity, 9,356 
 Court officials, 9 
 King : 
 
 Conspiracy against life of, 13 
 
 and note 2 
 Domain of, 8 
 Laws confirmed by, 49 
 Mund of, 14 
 Name, origin of, 8 
 Weregild for, 13 
 Land system of, see Land tenure 
 Laws of, see under Laws 
 "Military system of, 8 
 Normans : 
 
 Amalgamation with, 338 
 Distinction from, 72, 74 
 
 Anglo-Saxons : 
 Normans : 
 
 Oppression by, 16-17, 23, 29-30, 
 
 32-36, 337 
 Origin of, 3 
 Period of, 4, 5 
 Wars of, 16 
 Anselm, Abp., relations of, with 
 William Rufus, 30, 101, 103, 364 ; 
 investiture struggle, 339 ; other- 
 wise mentioned, 98, 104, 107, 118 
 Appeal : 
 Law of, 87 
 Meaning of term, 79 
 Aragon, see under Spain 
 Archbishops (see also their names) : 
 Coinage rights of, 113 
 Jurisdictions of, 158 
 Legates, powers as, 107 
 Legislation of, limited by royal 
 
 power, 103-105 
 Palls, gift of, 100 
 Weregild for, 11, 13 
 Architecture, ecclesiastical, 2 
 Arianism, 240, 245, 356 
 Arnold, Matthew, cited, 213-214 
 Arundel, Abp., 103 
 Assemblies, national, see Councils 
 Assize of Clarendon, sec Clarendon 
 Assize of Darrein presentment, 160 
 Assize of Northampton, 53, 89, 325 
 Assizes : 
 
 Establishment of, 35 
 Form of, 298 
 Nature of, 45 
 Assizes of Jerusalem, 249 250, 264 
 Athelstan, King, 113, 251 
 Avita* consnetudines, 82, 97, 181 
 
 Bailiwick, 311 
 
 Baldwin, Earl, 177 
 
 Barones, meaning of term, 158, 166 
 
 Barons : 
 
 Counsel of, 108, 121 
 Pleas between, hearing of, 129, 133 
 Power of, under Stephen, 270 
 Relief to be paid by, 111 
 Suppression of, by Henry II., 270
 
 374 
 
 INDEX 
 
 Basques, 222 
 
 Battle, trial by, 77-80, 12!) ; London 
 
 exempted from, 124 
 Bavaria, Christianising of, 246 
 Beaufort, Cardinal, 368 
 Beauvoisis, customs of, 254 
 Becket, Thomas, policy of, 34 ; rela- 
 tions with Henry II., 101-102, 
 106, 138-139, 339 ; judicial reforms 
 of, 342 ; otherwise mentioned, 98, 
 105, 161, 174, 278 
 Benedict IX., Pope, 99 
 Bequests, see Wills 
 Bernard, St., 101, 178 
 Bigod, Hugh, 177 ; cited, 176 
 Bigod, Roger, 351 
 
 Bishops, Gallic, position of, 239-240 
 Bishops in England (sec also their 
 names) : 
 Administrative staff of, 98 
 Charges against, procedure in, 162 
 Coinage rights of, 113 
 Election of, right of, 109-110, 180, 
 
 183, 339 
 Hundredmoot attended by, 87, 94, 96 
 Judicature, removed from, 324 
 Jurisdiction of : 
 
 Administrative division of dio- 
 ceses, 97-98 
 Extent of, 94, 158 
 Stephen's charter as to, 180 
 William I.'s reforms as to, 96 
 Missionary, 357 
 
 Number of, in 12th century, 144, 152 
 Oath of, 84 
 
 Parliamentary writ issued to, 2!>1 
 Political functions of, 10 11, 134 
 Shiremoot attended by, 12, 87, 91, 
 
 94, 96, 131, 164 
 Synods, times of holding, 95 
 Weregild for, 11, 13 
 Witenagemot attended by, 10 11, 
 87, 91, 94, 96, 243, 244, 287, 346 
 Bishops in Germany, 247 
 Black Book of the Exchequer, 188, 189 
 Blackstone cited, 26, 27 
 Blinding, 119, 125 
 Bohemia : 
 
 Mixed population of, 210 
 Separateness of, 201 
 Bohun, Humphrey, 351 
 Boldon Book (Domesday of Durham), 
 
 187, 190 
 Boniface (missionary), 246 
 Boniface VIII., Pope, 293 
 Boniface IX., Pope, 103 
 Borough English, 26 
 Boroughs, see Towns 
 Bot, see Weregild 
 Brachet cited, 232 
 Bracton cited, 253 
 
 Breton cited, 253, 257 
 Bretwalda, 10 
 Bridtolle, 12S 
 Bristol, slave trade at, 88 
 Britons, relations of, with Anglo- 
 Saxons, 7, 212-215, 227 
 Brown, Master Thomas, 142 
 Burchard of Worms, 93, 97, 148 
 Burgundians, 219 
 Burgundy, 320, 360 
 By-law, meaning of term, 44 
 
 Cesah cited, 4-5 
 Canciani cited, 249 
 Canute, King : 
 
 Laws of, 48, 49, 52, 75, 251, 297 ; 
 as to appeal, 87 ; as to murder, 
 118 ; as to hunting, 158; religious 
 spirit of laws, 69 
 Papacy, relations with, 99 
 
 otherwise mentioned, 13, 51, 88 
 358 
 Capital charges, 13, 158 
 Carloman, edicts of, 299 
 Carlyle, Thos., quoted, 18 
 Carucage, 139 
 Castile, see under Spain 
 Castles, 67, 76 
 Causes, see Pleas 
 Ceapgeld, 85, 86 
 Celtic language, 212, 232, 235 
 Celts, relations of, with Teutons, 7, 
 
 212-215, 227 
 Ceorls, see Churls 
 Chancery, court of : origin of, 308 ; as 
 
 national conscience, 354 
 Channel Islands, 63 
 Charlemagne, Emperor, 299, 357 
 Charles IV., Emperor, 102, 301, 368 
 Charles V., Emperor : 
 
 Cortes, relations with, 305, 321 
 Diet, relations with, 307 
 English relations with, 368 
 Supplies voted to, 306 
 Charles I., King, French marriage of, 
 
 371 ; execution of, 281, 336 
 Charles VI., King of France, 304 
 Charles the Bald, Emperor, 300, 358 
 Charles the Fat, King of Germany, 
 
 281 
 Charters : 
 
 Forms of, 297-298 
 Towns, of, see under Towns 
 Chase, beasts of, 128 
 Child-wite, 128 129 
 Christianity (see also Church) : 
 
 Anglo-Saxons, conversion of, 9, 356 
 Arianism, 240, 245, 356 
 Bavaria, in, 246 
 France, in, 356
 
 INDEX 
 
 375 
 
 Christianity : 
 
 Influence of, on modern history, 
 
 196, 197, 207, 237 
 Italy, in, 356 
 
 Missionary enterprises, 356-358 
 Spain, in, 356 
 Church (see also Christianity) : 
 Canons : 
 
 Collections of, 93, 148, 149 
 Episcopates leges contrasted with, 
 
 93,94 
 Laws drawn from, 161 note 
 Legal position of, 97 
 Cistercian endowments, 182 
 England, in : 
 
 Abbots, responsibility of, 163 
 Advowson, pleas as to, 160 
 Archbishops, see that title 
 Archdeacons, increase in, 97 98 
 Bishops, see that title 
 Cases : 
 
 Advowson, 160 
 
 Appeal to Home, 97 
 
 Clergy, status of, in trials &c, 
 
 11, 164 
 King's rights as to, 156 
 Patronage, 95, 97 
 Pleas of Christianity distin- 
 guished from, 163 
 Popular courts, hearing in, 95 ; 
 removal from, 96, 244 ; reten- 
 tion in, 97 
 Secular cases compared with, 
 
 as to procedure, 161 
 Secular compulsion as to, 156- 
 157, 161 
 Characteristics of, 242-243 
 Clergy : 
 
 Charges against, rules as to, 
 
 161-162 
 Oaths of, 164, 171 
 Reform of character of, 104 
 Status of, as to weregild &c, 
 
 11, 164 
 Taxes of, voting of, 105 
 Councils : 
 
 Freedom of, under Stephen, 
 
 180 
 Political acts of, 104 
 Scope of, 11 
 Separation of, from secular 
 
 councils, 244 
 Spanish councils contrasted 
 with, 244-245 
 Courts : 
 
 Activity of, under Stephen, 16 1 
 King's share in fines of, 156 
 Secular arm to enforce sentences 
 
 of, 156-157, 161 
 Separation of, from secular 
 courts, 96, 160 
 
 Church : 
 England, in : 
 
 Excommunication : 
 
 Contempt of court, for, 96 
 
 In genere, 106-107 
 
 Restrictions on, by royal power, 
 106, 159, 169 
 Forgeries of title deeds by, 59 
 Founding of, 242 
 Freedom of election, right of, 109- 
 
 110, 180, 183, 339 
 Guardianship of temporalities, 
 
 109, 183 
 Henry I.'s coronation charter in 
 
 regard to, 109 
 Homicide in a church, 165 
 Jurisdiction of : 
 
 Administrative division of dio- 
 ceses, 97-98 
 
 Confusion of, with secular 
 authority, 89, 94 
 
 Procedure, methods of, 94-95, 
 98 
 
 Stages of development of, 89 
 90 
 
 Testamentary, 116 
 
 Variation in, 92 
 
 Vigour of, before 11th century, 
 91 
 
 William I.'s reform of, 96 
 Land : 
 
 Assessment of (1291), 191 
 
 Frankalmoign tenure, 26 note 
 
 Three classes of, in Stephen's 
 time, 181-182 
 Language of, modifying English, 
 
 230 
 Legislation of archbishops limited 
 
 by royal power, 103- 105 
 Learning of, 230 
 Liberty fostered by, 339 
 Markets granted to, 77 
 Missionary zeal of, 356-358 
 Papacy, relations with, 98-100 
 Patronage, 95. 97 
 Pleas concerning, see sub -lie ailing 
 
 England : Cases 
 Position of, under Norman Kings, 
 
 34 
 Priests, see sub-heading England : 
 
 Clergy 
 Privilegia, 181 
 Property Assessment : 
 
 Nicolas IV., Pope, taxation of 
 (1291), 191 
 
 Norwich taxation, the, 190 
 
 Valor ccclesiasticus, 192 
 Recognition of, in early English 
 
 codes, 68-69 
 Reformation, the, 103. 104. 107 
 Simony, 180
 
 376 
 
 INDEX 
 
 Church : 
 England, in : 
 Slavery : 
 
 Discouragement of, 338 
 Holy Orders prohibited to those 
 in, 164 
 Spoliation of, by William I., 29 
 Synods, times of holding, 95 
 Unity of, in Anglo-Saxon times, 
 10, 91, '243; under Normans, 
 339 
 Valor ecclesiasticus, 192 
 Wills, powers as to, 11G, 182-183 
 European politics in relation to, 100 
 Gaul, in : 
 
 Bishops, position of, 239-240 
 Origin of, 238 
 
 Secular character of, 239-240 
 Germany, in : 
 
 Bishops, position of, 247 
 Independent spirit of, 362, 370 
 Origin of, 246 
 Orthodoxy of, 245 
 Position of, 230 
 Gratian's Decretum (1151), 93, 97, 
 
 149 ; date of circulation of, 144 
 Influence of, predominant in modern 
 
 history, 196, 197, 237 
 Law, 92 
 
 Panormia, the, 93, 97, 145-149 
 Papacy, see tliat title 
 Penitentials, 93 
 Pilgrimages, 359 
 Procedure, variation in, 92-93 
 Spain, in : 
 
 Character of, before Moorish in- 
 vasion, 240-241 
 Councils, 244-245 
 Moors, relations with, 240-241 
 Origin of, 238 
 Churls (ceorls) : 
 Condition of, 7 
 Shiremoot duties of, 12 
 Thaneship possible to, 9 
 Weregild for, 13 
 Cities, see Towns 
 Clanship, 22 
 Clarendon : 
 Assize of : 
 
 Compurgation abolished by, in 
 
 certain courts, 124, 325 
 Form of, 298 
 
 Miskenning, provision as to, 53 
 Recognitors under, 169 
 Constitutions of, 106, 164 
 Clement III., Pope (Guibert of Ra- 
 venna), 99-101 
 Clement VII., Pope, 102 
 Coinage, 112-115 ; debasing of, 304 
 Coleridge cited, 354 
 Combat, trial by, see Battle 
 
 Commendation (mund system), 13, 20, 
 22; Roman origin claimed for, 
 264 
 Compurgation : 
 
 Assize of Clarendon on, 124, 325 
 
 Borough and city courts, retention 
 in, 124 
 
 Clergy, for, 164 
 
 Form of oath for, 173 
 
 Jury system compared with, 157 
 
 Spain, in, 258, 329, 330 
 
 System of, 14 
 
 Otherwise mentioned, 251, 323 
 Conrad III., Emperor, 364 
 Conradin, Emperor, 306 
 Conscience, definition of, 354 
 Constable, origin of title, 330 
 Constitution, English, development 
 
 of, 333 
 Coote, Mr., cited, 214 
 Coronation relics, 277 
 Coronation service : 
 
 Age of, 277 
 
 Essentials of, 275 
 
 Oath at, 277-278 
 
 Self-crowning at, 278 
 Coroners, 123 
 Councils : 
 
 Common counsel, 64-66 
 
 Ecclesiastical, see under Church : 
 England 
 
 Feudal, see Feudalism : King's 
 Council 
 
 Functions of, 297 
 
 Great council, 290 
 
 Parliament, see that title 
 
 Politics, attitude towards, 307 
 
 Privy council, 296, 308 
 
 Two sorts of, 285 
 
 Witenagemot, see that title 
 Coursing, 128 
 Court leet, 169, 314, 323 
 Court officials, 9 
 Crusades, 369 
 
 Curia regis, 308, 324, 326, 341 
 Cyn-ing, 8, 15 
 
 Daneqeld : 
 
 Amount of, 302 
 Farming of, 138 
 Henry I.'s promise as to, 179 
 Increase of, under Normans, 343 
 London exempted from, 124 
 Origin and continuance of, 137-138 
 Reimposition of, 29 
 Relief from, granted to knights, 119 
 Stephen's promise as to, 176, 179 
 Survey for (Exeter Domesday), 185- 
 186 
 
 Danelaw, 252
 
 INDEX 
 
 377 
 
 Danes : 
 
 Conversion of, to Christianity, 357 
 
 Incursions by, 68 
 
 Orrest a custom of, 79 
 
 Position of, in England, 49 
 David, King of Scotland (1136), 177 
 Debt, oaths as to, 173 
 Debts to the king, remission of, 115 
 Declaration of Eights, 337 
 Dialogus de Scaccario : 
 
 Authorship of, 134-135 
 
 Cited, 111, 115, 155, 183, 189 
 
 Copied in Liber Euber, 190 
 
 Date of, 73 
 
 Examination of, 135-136 
 
 Importance of, 134-135 
 
 Origin of, 58 
 
 Traditional story in, 139 
 Dionysius Gaignus, 93 
 Disratio, 124 
 
 Divise, meaning of term, 51-52 
 Domesday, Exchequer : 
 
 Authority of. 187 
 
 Commission, nature of, 140 
 
 Compilation of, 186 
 
 Dialogus de Scaccario on, 139 
 
 Ferms mentioned in, 140 
 
 Preservation of, 186 
 
 Significance of name, 139-140 
 Domesday, New, 192 
 Domesday society, project of, 184 
 Dominica, meaning of term, 131 
 Drinking meetings, 159 
 Duel, 77-80, 124 
 Dunstan, Abp., 99 
 Durham, Domesday of, 187, 190 
 
 Eadeuhoa, Queen, 54 
 
 Eadmer cited, 98, 100, 113, 117-118, 
 
 125 
 Eadric the Wild, 28 
 Ealdormen : 
 
 Frith-gilds governed by, 15 
 Position of, 8, 11 ; in shiremoot, 
 
 87, 94, 95 
 Weregild for, 11, 13 
 Ealdred, Abp. of York, 28 
 Edgar, King, forgeries of reign of, 59 ; 
 
 laws of, 251 
 Edgar yEtheling, 28, 29 
 Edmund, King, laws of, 251 
 Edward the Confessor, King, 11, 358 ; 
 relations with the Papacy, 99 ; 
 Danegeld abolished by, 138 
 Edward the Confessor, laws of : 
 Cited, 61, 75 
 Doubt as to, 118 
 Maintenance of, promised by 
 
 William, 82 
 Meaning of term, 48, 82 
 
 Edward the Confessor, laws of : 
 Promulgation of, 29 
 Ke-enactment of, by Henry I., 121 
 Tripartite division of, 139 
 Edward the Elder, King, 68, 172, 251 
 Edward I., King : 
 
 Coinage in reign of, 114 
 Ecclesiastical policy of, 105 
 Forest perambulations in reign of, 
 
 182 
 Forgery of the time of, 63 
 French language adopted by, 229- 
 
 231 
 German alliance of, 366-367 
 Judicature under, 326 
 Law manuals of, 256 
 Legislative formula? of, 298 
 Parliamentary reforms of, 290-291, 
 
 315 
 Relief system in reign of, 111 
 Scottish claims of, 63 
 Surveys in reign of, 190-191 
 Taxation reforms under, 350-351 
 Otherwise mentioned, 25, 28, 65 
 Edward II., King : 
 
 Deposition of, 280, 371 
 
 Legislative formula' of, 298 
 
 Reign of, 351 ; papal struggle 
 
 during, 102 
 Otherwise mentioned, 43, 64, 106 
 Edward III., King : 
 French conquests of, 363 
 German alliance of, 367 
 Legislative formula? of, 298 
 Parliamentary development under, 
 
 351 
 Stratford's property seized by, 183 
 Otherwise mentioned, 21 note, 74, 
 102, 105, 192 
 Egberht, Abp., 10 ; forged treatise 
 
 ascribed to, 60 
 Egberht, King, 358 
 Egberht (reformer), 350 
 Elfric, 99 
 
 Ely Domesday, 186 
 Emperors : 
 
 Coronation of, 277 
 Deposition of, 281-283 
 Dynasties of, 360 
 Election of, 276, 279, 362 
 English connections with, 364 
 Poverty of, 306 
 
 Qualifications necessary for, 276 
 Rivalry of, with popes, 361 
 Status of, 274, 361 
 Succession of, 275-277, 279 
 England (see also Anglia) : 
 
 Colonisation of, by Teutons, 213 
 Language of, 227-231 
 Nationality of, 211. 225 
 Population of, in 1085, 29
 
 378 
 
 INDEX 
 
 Englishry, presentment of, 52, 72, 
 
 137; abolition of, 74 
 Eorls, 7 
 
 Escuage, see Scutage 
 
 Essex, forest land in, TJ.s 
 
 Ethel (allod), meaning of term, 262 
 
 Ethelbert, King, laws of, 9, 08, 251 
 
 Ethelred, King : 
 
 Laws of, 159, 251 ; judicial pro- 
 cedure under, 168 
 
 Succession of, 275 
 
 Mentioned, 88 
 Ethelred II., King, 14, 68 
 Ethelred the Unready, King, 280 
 Ethelwulf, King, 51, 302, 358 
 Eugenius III., Pope, 104 
 Evesham, battle of, 350 
 Evesham Abbey survey, 187 
 Excerptiones Ecgberti, 161 note 
 Exchequer : 
 
 Accounts of, cited, 189 
 
 Barons of the, 324, 325 
 
 Bishops as treasurers of, 134 
 
 Origin of, 134, 141-142 
 Exchequer Charter in Liber Ruber, 
 
 58, 68, 121 
 Exchequer Domesday, see Domesday 
 Excommunication, see under Church : 
 
 England 
 Exeter Domesday (Geld Inquest), 
 185-186 
 
 Fealty and allegiance, oaths of, 70, 
 172, 284 
 
 Felix I., Pope, 161 note 
 
 Ferdinand and Isabella of Spain, 321, 
 322 
 
 Ferrns, commutation of, 140-141 
 
 Feudalism : 
 
 Allodial land system compared 
 
 with, 20 
 Boroughs under, growth of, 313 
 Ceremonies of, 23-24 
 Characteristics of, 19, 23, 261-263 
 Dangers of, 359 
 Discipline of, 33, 36 
 Four stages of, 268 
 France, in, see tinder France 
 Frankish origin of, 263, 265-266 
 German origin of, 4, 19 
 Germany, in, see under Germany 
 Homage and allegiance, principles 
 
 of, 70 
 Incidents, feudal, 25, 26 
 Introduction of, into England, 21 
 Italy, in, 258-259, 268 
 Judicial checks on, 326-327 
 Judicial courts of, 324-325, 327 
 King's council under, 308, 324, 347 ; 
 summons to, 289 
 
 Feudalism : 
 
 King's position under, 274 
 
 Land tenure, see that title 
 
 Law of, nature of, 250 
 
 Military requirements of, 24 
 
 Restriction of, in England, 270 
 
 Bights of royal grant to be enjoyed 
 by dependants, 110, 112, 122 
 
 Roman origin claimed for, 264 
 
 Serjeanty, grand and petty, 26, 27 
 
 Services required in, 24 
 
 Servitude at the root of, 317 
 
 Socage tenures, 26-27 
 
 Spain, in, 256, 270-271 
 
 Taxation under, 302 
 
 Tyranny under, 341 
 
 Villein tenures, 27, 136-137 
 
 Witenagemot under, 288 
 Fief (feod), meaning of term, 21-22, 
 
 262 
 Fines : 
 
 Abuse of system of, 35 
 
 Murder, for, 71, 72 
 FitzNeale, Bp. Richard, 134, 140 
 FitzOsbert, William, 124 
 Flambard, Ranulf : 
 
 King's courts extended by, 86, 132 
 
 Leges Henrici Primi attributed to, 
 145, 147 
 
 Work of, on Domesday, 187 
 
 Otherwise mentioned, 111, 130, 135 
 Flanders : 
 
 Cities of, 319 
 
 English interests in, 367 
 
 States-general in, 293, 295 
 Fleta cited, 253 
 Florence of Worcester cited, 113, 144, 
 
 186 
 Focagium, 114 
 Folkmoot, see Shiremoot 
 Forests : 
 
 Enclosures, extensions of, 118-119 
 
 Hunting rights in, 128 
 
 Laws as to, 182 ; administration of, 
 119 
 
 Pleas as to, 158 
 
 Purlieus of, 182 
 
 Stephen's broken pledge as to, 182 
 
 Tudor and Stuart claims as to, 182 
 Forgeries, mediaeval, 58-61 
 Fiance : 
 
 Administrative system of, 1"> 
 
 Ancient subdivisions of, persisting, 
 218 
 
 Boundaries of, 216 
 
 Burgundians in, 219 
 
 Christianity in, 356 
 
 Commune and bourgeoisie distin- 
 guished, 317 
 
 Eclievins, 312, 318 note 
 
 English possessions in, 362-363
 
 INDEX 
 
 379 
 
 France : 
 
 Feudalism in : 
 
 Development of, 266-268, 334 
 Duration of, 20 
 Effects of, 359-360 
 Frank, 219-220 
 Historical memory lost in, 1, 2 
 Hostility of, 101, 102, 363 ; hostility 
 
 to, 370 
 Judicature in, 308, 327-328 
 Kings of : 
 
 Despotic power of, 300 
 Succession of, 275-276 
 Law in : 
 
 Personal nature of, 255 
 Roman and other elements in, 
 253-255 
 Legislative formula in, 299-300 
 Matrimonial alliances with, 371 
 Mayors of the palace in, 275 
 National assemblies in, 292-293, 
 
 300 
 Nationality of, 216-220, 225 ; Celtic 
 
 origin of, 235 
 Parliament of Paris, 293, 300, 308, 
 
 328 
 Petition, right of, 304-305, 307 
 Representative principle in : 
 
 Nobles, representation of, 317- 
 
 318 
 Towns, representation of, 313, 
 316-318 
 Romanisation of, 217-218 
 Scotch alliance with, 101, 102, 
 
 363 
 States-general : 
 Constitution of, in 1302, 293 and 
 
 note 
 Financial acts of, 304 
 Position of, after St. Louis, 300 
 Representation in, 318 
 States of Tours (1484), 305 
 Status of, 318 
 Taxation in, 304-305 
 Towns in, 313, 316-318 
 Visigoths in, 218-219 
 Zones, Thierry's division into, 317 
 note 
 Frankalmoign, 26 note 
 Frankpledge : 
 
 Derivation of term, 13 note 1 
 Description of, 12-13, 82-84 
 Norman enactments as to, 50, 51 
 Origin of, 84-85 
 Survival of, 85 
 Franks : 
 Feudalism cf, 203, 265 266 
 Influence of, 219-220 
 Royal house among, 274 
 Fraternity, charter enjoinin?. 66-67 
 Frederick I., Emperor, 320 
 
 Frederick II., Emperor : 
 
 City representation under, 320 
 
 Deposition of, 282 
 
 Fame of, 366 
 
 Laws of, 258 
 
 Papal hostility to, 349 
 
 Otherwise mentioned, 268, 301, 327 
 Frederick Barbarossa, Emperor : 
 
 Feudalism under, 268 
 
 Papal policy of, 365 
 
 Otherwise mentioned, 101-102, 307, 
 370 
 Freedom : 
 
 Conditions fostering, 203-204 
 
 Definition of, 337 
 
 Kinds of, 204 
 Freeman cited, 74, 136, 143, 144 
 French language : 
 
 Earliest English record in, 47 
 
 Origin and development of, 231- 
 232, 234-236 
 Friesland, missions to, 356-357 
 Frith-borh, see Frankpledge 
 Frith -gilds, 15 
 Frith-wite, 14 
 
 Gaul : 
 
 Church in, see under Church 
 Romanisation of, 217-218 
 Gauls, 208, 217-218 
 Gavelkind, 26 
 Gaveston, Piers, 106, 112 
 Geld Inquest (Exeter Domesday), 
 
 185-186 
 Germany (see also names of Pro- 
 vinces) : 
 Anjdo-Saxon origin in, 3 
 Church in, see under Church 
 Cities in, 319-320 
 Counts palatine in, 259, 207 
 Diet: 
 
 Functions of, 307 
 Infrequent sessions of, 320 
 Judicature not a business of, 308 
 Origin and constitution of, 295- 
 
 296 
 Popular element in, 319 
 Electors of, 362 
 Emperors, see that title 
 Empire, maintenance of, dependent 
 
 on, 320 
 England : 
 
 Affinities with, 370 
 Friendship with, 369-371 
 Traders in, 359 
 Feudalism in : 
 
 Development of, 266 268 
 Effects of, 312,359, 360 
 Five nations of, 208-210, 267, 269 
 Frontiers of, variable, 210
 
 380 
 
 INDEX 
 
 Germany : 
 Hohenstaufen house, 275, 364 
 Italy, effect of union with, '227, 
 
 251, 360-361 
 Judicature in, 328, 329 
 Karling rule in, 259, 267, 268, 276 
 Language of, 226-227, 230 
 Law, origin and development of, 
 
 259-260 
 Leagues of, 322 
 Literature of, 227, 230 
 Migrations of tribes in, 209 
 Missions to, 356-357 
 National unity of, not realised, 210 
 Nationality of, purity of, 207-210, 
 
 225 
 Papal interference disliked by, 362, 
 
 370 
 Provincial estates, 320 
 Remonstrance, right of, 307 
 Representative principle : 
 
 Restricted application of, 300-301 
 Towns, representation of, 313, 
 316, 319-320 
 Revenue, methods of raising, 306 
 Royalty and nobility in, origin of, 8 
 Gesith, see Thanes 
 Giannone cited, 295 
 Giffard, Bp. William, 118 
 Gilds, 15 (see also Guilds) 
 Glanvill, Ranulf de, fall of, 157 
 judicial reforms due to, 342 
 cited, 53, 116, 153, 163, 253 
 otherwise mentioned, 46, 48, 134 
 Gloucester, 74-75 
 Gloucester, statute of, 191 
 Godwin, Earl, 358 
 Golden Bull, 259, 260, 301 
 Goths : 
 
 Romanisation of, 234 
 Royal house among, 274 
 Spain, in, 223, 224 
 Government, systems of, 265 
 Gratian's Decretum, 93, 97, 149 ; 
 
 date of circulation of, 144 
 Great Rebellion, 336 
 Greece : 
 
 Analogies from history of, 196-197 
 Civilisation of, character of, 207 
 Greek language, dialects of, 233 
 Gregory VII., Pope (Hildebrand), 92, 
 
 99, 179 
 Guelf and Ghibelline feud, 361 
 Guests : 
 
 Entertainment of, 125, 128 
 Payments from, 126 
 Guibert of Ravenna (Clement III.), 
 
 99-101 
 Guilds, merchant, 314 ; halls of, 340 
 Gundulf of Rochester, Bp., 118 
 Guthrum, King, laws of, 49, OS 
 
 Gyilia (mother of Harold), 88 
 Gytha (daughter of Harold), 358 
 
 Hal,e, Archdeacon, cited, 187, 190 
 Hallam, cited, 22, 25, 35, 272, 284, 
 300, 304, 307 note, 316-318 note 1, 
 329-331, 345; estimate of work 
 of, 198, 331 
 Hampshire, oath custom in, 171 
 Hanging, prohibition of, 88 
 Harold, 16, 358 
 Heals-fang, 14 
 
 Hearth tax in Normandy, 114 
 Hengham, Weyland, 157 
 Henry I. (the Fowler), Emperor, 275, 
 
 277, 364 ; cities founded by, 319 
 Henry II., Emperor, 364 
 Henry III., Emperor, 358, 359, 364 
 Henry IV., Emperor, 364 ; deposition 
 
 of, 281-282 
 Henry V., Emperor, 364 
 Henry VI., Emperor, 365 
 Henry VII., Emperor, 367, 370 
 Henry I., King : 
 Accession of, 176 
 Coronation Charter of : 
 
 Character of, 107-108, 112, 122 
 Date of, 117-118 
 Provisions of, 109-121 
 Danegeld under, 138 
 Documents of reign of, 41-42 
 Ecclesiastical cases under, 97 
 Ecclesiastical policy of, 101, 104 
 Forest law of, 119 ; forest enclo- 
 sures of, 182 
 Funeral of, 121, 177 
 Innocent II., relations with, 101 
 
 178 
 Leges Henrici Primi, see that title 
 Paschal II., relations with, 178 
 Penalties in force under, 88-89 
 Promises of, 25, 344 
 Provincial jurisdiction of, 325 
 Reforms of, 110-111, 302 
 Reign of, 30-32, 340 
 Surveys under, 187-189 
 Towns under, 314 
 Visions of, 179 
 
 Otherwise mentioned, 79, 86, 98, 
 132, 276, 289, 341 
 Henry II., King : 
 Archbishop's property seized by, 
 
 183 
 Assizes of, 45 ; trial by battle super- 
 seded in, 124 
 Barons suppressed by, 270 
 Becket, struggle with, 101-102, 106, 
 
 138-139, 339 
 Coinage in reign of, 114 
 Danegeld abolished by, 302
 
 INDEX 
 
 381 
 
 Henry II., King : 
 
 Documents issued by, 45 
 Ecclesiastical cases under, 97, 160 
 Forest law of, 119 
 French possessions of, 362 
 Grand assize instituted by, 79 
 Judicial system of, 155, 32-5, 326, 
 
 342 
 Laws of, 251 
 
 Marriage rights in reign of, 112 
 National Assembly under, 289 
 Papal policy of, 101-102, 365 
 Parliamentary Council of, 347 
 Penalties in force under, 89 
 Pipe rolls of reign of, 188, 189 
 Reign of, 33-35, 344 
 Relief system under, 111 
 Representative principle under, 312 
 Treaties of, 283 
 
 Otherwise mentioned, 82, 87, 98, 
 105, 120, 276, 278, 290, 298, 322, 
 327, 337 
 
 Henry III., King : 
 
 French marriage of, 371 
 Judicature under, 326 
 Magna Carta confirmed by, 108 
 Parliamentary reforms of, 348 
 Provisions of Oxford, 349-350 
 Sicilian policy of, 366 
 Otherwise mentioned, 21 note, 64, 
 87, 190, 270, 278, 289, 303, 345, 
 363 
 
 Henry IV., King, 66, 369 
 
 Henry V., King : 
 
 French conquests of, 363 
 German alliance of, 368 
 Mentioned, 103, 371 
 
 Henry VI., King : 
 Deposition of, 280 
 Ecclesiastical policy of, 103 
 French marriage of, 371 
 French possessions lost under, 
 
 363 
 Parliamentary reform under, 348 
 Mentioned, 298 
 
 Henry VII., King, 298 
 
 Henry VIII., King, Survey of Church 
 property under, 192 
 
 Henry le Despenser, Bp., 102 
 
 Henry of Blois, 278 
 
 Henry of Huntingdon, cited, 138, 
 176 
 
 Henry of Winchester, Legation of, 
 181 
 
 Henry the Lion of Saxony, 269, 364- 
 365 
 
 Herehohei, 160-167 
 
 Heriot, 9, 25 
 
 Hewald, 357 
 
 Hildebrand, Pope (Gregory VII.). 92, 
 99, 179 
 
 History : 
 
 Ancient and modern, divided, 196 - 
 197 
 
 Constitutional and political, com- 
 pared, 200 
 
 Definition of, 354 
 
 Generalisation in, 195 
 
 National, in relation to national 
 character, 202 
 
 Nature of, 1 
 
 Philosophy of, 194 
 Holkham MS., 46-47 
 Holland, language of, 226 
 Homage, 70 
 Honour, court of, 326 
 Hospitality to strangers, 125 
 Hoveden, Roger, cited, 48, 80 
 Hugh le Despenser, 112 
 Hume, David, 358 
 Hundreds : 
 
 Assessment of, 191-192 
 
 Collective responsibility of, 52, 71, 
 73,83 
 
 Constitution of, 11-12 
 
 Rolls of, under Edward I., 190 
 Hundredmoot : 
 
 Attendance at, enjoined, 129, 133 ; 
 penalties for non-attendance, 167 
 
 Bishops' attendance at, 87, 91, 94, 
 96 
 
 Constitution of, 87. 131, 166-167 
 
 Ecclesiastical cases in, 95 ; with- 
 drawal of, 96, 244 ; retention of, 
 97 
 
 Fiscal matters treated in, 131, 132 
 
 Functions of, 12; under Henry I., 
 131-133 
 
 Henry I.'s treatment of, 131-132 
 
 Jivdices and juratores for, 168 
 
 Jurisdiction of, scope of, 86, 87 
 
 Language employed in, 21 note 
 
 Notice of, 167 
 
 Places of assembly of, 130 
 
 Representation in, 311 
 
 Resort to, enacted by William I., 
 85 
 
 Several hundreds, for, 87 
 
 Times of meeting of, 87, 130, 131, 
 167 
 
 Wardmote equivalent to, 127 
 Hungary : 
 
 Coronation ceremonial in, 284 
 
 Mixed population of, 201, 206, 210 
 
 Turkish struggles of, 362 
 Hunter cited, 188 
 Hunting : 
 
 Canute's regulation as to, 158 
 
 Henry II. 's regulation as to, 128 
 
 Pleas concerning, 158 
 Husting court, 126-127 
 Hyld-ath, 172
 
 382 
 
 INDEX 
 
 Iceland, conversion of, to Christianity, 
 
 358 
 Ina (Inc), King of Wessex, 49, 51 ; 
 
 Laws of, 159, 251, 28(5 
 India, intercourse with, 359 
 Ingulf, 46, 58, 60 
 Innocent II., Pope, confirms Stephen's 
 
 succession, 101, 178-179 
 Innocent III., Pope, 179 
 Innocent IV., Pope, 282, 349-350 
 Intestacy, 51, 115-116 
 Ireland : 
 
 History of, 201 
 Nationality of, 207 
 Slave trade in, 88 
 Isidorian decretals forgery, 60 
 Italy : 
 
 Christianity in, 356 
 
 Cities in, 320 
 
 Feudalism in, 258-259, 268 
 
 Germany, result of union with, 227, 
 
 251 
 Language of, 231-232, 234-236 ; 
 
 dialects of, 233 
 Laws of, 258-259 
 Mixed population and political ideas 
 
 of, 220-221 
 National movement in, 372 
 Ivo of Chartres, 93, 97, 145, 148 
 
 James I., King, 337, 371 
 James II., King, deposition of, 281 
 Jerusalem, assizes of, 249-250, 264 
 Jews : 
 
 Extortions from, 304, 344, 349 
 
 Position of, under Norman kings, 35 
 
 Severity against, regarding coinage, 
 114 
 John XXII., Pope, 102 
 John, King : 
 
 Aids exacted by, 302, 304 
 
 Barons' revolt from, 283 
 
 Charter of, 257 
 
 Ecclesiastical policy of, 105, 109 
 
 Election of, 278, 283 
 
 Foreign policy of, 365 
 
 French losses of, 362, 363 
 
 Guilds for defence organised by, 67 
 
 Hubert's property seized by, 183 
 
 Innocent II., submission to, 179 
 
 Judicature under, 326 
 
 Magna Carta wrested from, 344- 
 345, 347 
 
 Title of, 122 
 
 Towns under, 76, 314-315 
 
 Otherwise mentioned, 120, 268, 270, 
 276, 289 
 John, King of France, 304 
 John of Hexham cited, 177 
 John of Salisbury cited, 97, 181 
 
 Judges : 
 
 Nominated, rejection of, 161, 162 
 Penalties for, 157 
 Judicature : 
 
 Chancellor, power of, 328 
 Chief Justiciar, 324-325 
 Curia regis, 308, 324, 326, 341 
 Development of, in England, 323- 
 
 326 
 France, in, 308, 327-328 
 Germany, in, 328-329 
 Haute justice, 15S 
 Itinerant justices, 155, 325, 342 ; 
 
 towns' attitude towards, 330 
 Jury system : 
 
 Changes in, 252-253 
 Compurgation compared with, 157 
 Grand jury under Henry II., 325 
 Magna Carta provisions as to, 
 
 117 
 Origin of, 14, 35, 45, 342 
 Spain, in, 329 
 Local nature of, 323 
 Perversion of justice, 155 
 Pleas, see that title 
 Representative principle in, 312 
 Spain, in, 309, 329-331 
 Three chief courts, origin of, 308, 
 
 326, 342 
 Trials, see that title 
 Judicature, high court of, origin of, 
 
 308 
 Judices, meaning of term, 162-163 
 Jury system, see under Judicature 
 Justice, earliest use of term, for judge, 
 
 52 
 Justinian : 
 
 Classification of law by, 42- 46 
 Code of (Corpus Juris), 46, 93, 98, 
 214 ; Libri Feudales appended to, 
 259 
 Pandects of, 43, 46, 98 
 
 Kaklings : 
 
 Deposition of, 280 
 
 Rule of, 259, 267, 268, 276 
 
 Succession of, secured, 276 
 
 Kemble cited, 264 
 
 Kent, lathes of, 167 
 
 Kings : 
 
 Anglo-Saxon, see under that title 
 Church courts, share in fines of, 156 
 Coronation of, 275 
 Definition of, in a preamble, 146 
 Deposition of, 278-283 
 Election of, 274-276, 278-279 
 Hereditary succession of, 8, 274-275 
 Judicial position of, 324-325 
 Jurisdiction of, 151, 154-159, 3241 
 325
 
 INDEX 
 
 383 
 
 Kings : 
 
 Marriages of, 358, 371 
 
 Origin of families of, 274 
 
 Peace of, 71, 120; extent of, 157- 
 
 158 
 Plural verb, use of, 62 
 Position of, in Teutonic polity, 273, 
 
 285 ; in twelfth century, 307 
 Priority of right in litigation, 159, 
 
 169 
 Singular majesty of, 145 
 Tremendum imperium of, 152 
 Tudors, 336 
 Kirkby's quest, 191 
 Knights, privileges granted to, 110, 
 
 119-120, 167 
 Knights' fees, see under Land tenure : 
 
 Feudal 
 Knights of the Shire, 290, 348 
 
 Land : 
 
 Alienation of, 25 
 
 Bequests of, impossible, 115 
 
 Church, see under Church : Eng- 
 land 
 
 Compulsory cultivation of, 54 
 
 Demesne : 
 
 Boroughs developed from, 313 
 Extent of, 27 
 Taxation of, 303, 304 
 
 Maps, Domesday, and manorial, pro- 
 ject of, 184, 193 
 
 Surveys, sec that title 
 
 Transfer of, by livery of seisin, 24, 58 
 Land tenure : 
 
 Allodial : 
 
 Ethel (allod), meaning of term, 
 
 262 
 Nature of, 261-262 
 Position of proprietors, 6, 7 
 Taxation under, 301, 302 
 
 Basis of freedom among earliest 
 Anglo-Saxons, 7 
 
 Bocland, 7 
 
 Burgage, 340 
 
 Copyholds : 
 
 Creation of, 137 
 
 Law of, 250 
 
 Modern enfranchisement of, 184 
 
 Villein socage a form of, 27 
 
 Emphyteusis, 264 
 
 Escheat, 25 
 
 Feudal : 
 
 Folcland grants allied to system 
 
 of, 22 
 Frankalmoign, 26 note 
 Incidents, 25-26 
 Knights' fees: 
 List of, in Henry I.'s reign, 189 
 Numbering of, 192 
 
 Land tenure : 
 Feudal : 
 
 Knights' fees : 
 Origin of term, 24 
 Beliefs granted to, 110, 119-120 
 Scutage in commutation of ser- 
 vice, 24, 35, 120, 189, 303, 343 
 Survey of, 189 
 
 Nature of, 261-262 
 
 Origin of, 264 
 
 Serjeanty, socage, and villenage, 
 26 
 Feudalism dependent on, 9 ; re- 
 stricted to, in England, 253, 270 
 Folcland : 
 
 Feudal system allied to that of 
 grants from, 22 
 
 Kings' rights as to, 8 
 
 Liabilities attached to, 7 
 Forfeiture, 25 
 
 Hereditary, charter as to, 66 
 Knight service, by, 24, 110, 119-120 
 
 {See also sub-heading Feudal : 
 
 Knights' fees) 
 Eedistribution and tenure after the 
 
 Conquest, 135-137 
 Reliefs, system of, 110-111, 302 
 Succession : 
 
 Duty, 25 
 
 System of, 136-137 
 Suevian, in ancient Germany, 5-6 
 Tax, see Scutage 
 Title deeds, forgeries of, 59 
 Villeins, by, 27, 136-137 
 William I.'s code as to, 53 
 Witenagemot, qualification for, de- 
 rived from, 288 
 Laniranc, Abp., relations of, with 
 
 William I., 29, 103 ; denounces 
 
 slave trade, 88 ; influence with 
 
 William Bufus, 30, 278; papal 
 
 powers of, 107 ; mentioned. 75, 36 1 
 Lan 'ton, Abp. Stephen, Magna Carta 
 
 extorted by, 34, 122, 344, 346 ; 
 
 Henry III.'s succession secured 
 
 by, 278: otherwise mentioned, 47, 
 
 82, 107 
 Language : 
 
 Analytic and synthetic, 233 
 
 English, 21, 227-231 
 
 French, origin and development of, 
 
 231-232, 234-236 
 (,; nnan, 226-227,230 
 Italian, 231-232, 234-236 
 Latin : 
 
 Charters in, "J". 1 
 
 Church use of, 21, 230 
 
 Different developments of, in 
 Latin countries, 236 
 
 English derivatives from, 21 
 
 Vulgar, 232
 
 384 
 
 INDEX 
 
 Language : 
 
 Law, of, 21, 30, 47, 229, 230 
 
 Norman French, 21, 229 
 
 Provencal, 233 
 
 Romance, 231-232 
 
 Spanish, 231-232, 234-236 
 
 Teutonic writings, earliest, 22S 
 
 Welsh, 212, 232 
 Lastage, exemption from, 125 
 Latin, see under Language 
 Law : 
 
 Admiralty, 55 
 
 Anglo-Saxon : 
 
 Confirmation of, 47, 49 
 Nature of, 45 
 
 Appeal, of, 87 
 
 Breviarium Aniani, 255 
 
 By-laws, 44 
 
 Church, 92 
 
 Codes, origin of term, 46 
 
 Codification of, 48-49 
 
 Customary and unwritten, 43 
 
 Customs of, in relation to national 
 character, 202-203 
 
 Definitions of, 42 
 
 Development of form of, in 
 England, 297-299 
 
 Divisions of Justinian, 43-46 
 
 English, early : 
 
 Codes of, cited, 46, 251 
 Customary nature of, 252-253 
 Spanish law compared with, 256- 
 
 257 
 Teutonic elements in, 252 
 
 European systems of, threefold 
 origin of, 249 
 
 Feudal, nature of, 250 
 
 Forest, 119, 182 
 
 France, in : 
 
 Personal nature of, 255 
 Soman and other elements in, 
 253-255 
 
 Germany, in, origin and develop- 
 ment of, 259-260 
 
 Historical study of, 37-38 
 
 Italy, in, 258-259 
 
 Jus and lex distinguished, 43 
 
 Kinds of, 147 
 
 Language of, 21, 39, 47, 229, 230 
 
 Leges Barbarorum, 250 
 
 Norman : 
 Origin of, 38 
 Period of, 39 
 
 Promulgation of, form of, 45 
 Study of, difficulties of, 39 ; 
 scope of, 41-42 
 
 Partnership, as to, 55-56 
 
 Portugal, of, 257 
 
 Horn an : 
 
 English contrasted with, 253 
 Feudalism traced to, 264 
 
 Law : 
 Roman : 
 French law based on, 253-254 
 Influence of, 250-251 
 Survival of, in Britain, theory as 
 to, 214 
 Salian Franks, of, 49 
 Spain, in, see Spain — subheadings 
 Castile and Law 
 Law courts, location of, 342 
 Laws of English kings, see Leges 
 Henrici Primi and under names 
 of kings 
 Lecturing, methods of, 40 
 Leet, court, 169, 314, 323 
 Leet juries, 126 
 Leges Henrici Primi : 
 
 Authorship of, 151 ; theory as to 
 
 Flambard, 145, 147 
 Confused arrangement of, 150-151 
 County courts, on— as to composi- 
 tion, 130 ; as to procedure, 161- 
 174 
 Date of, 143-145 
 
 Ecclesiastical and secular jurisdic- 
 tions, on relation between, 160 
 Heterogeneous 'character of, 143 
 Materials for compilation of, 148- 
 
 149 
 Murdrum, on, 71, 72 
 Preamble of, 143-148 
 Royal jurisdiction, on, 151, 154-159 
 Leidegrevii, 167 
 Leopold, Duke of Austria, 365 
 Lewes, battle of, 350 
 Lewis IV. (of Bavaria), Emperor, 102, 
 
 260, 282, 367 
 Lewis the German, 234 
 Lewis. For Kings of France see under 
 
 Louis 
 Liberty : 
 
 Achievement of, in England, 265, 
 
 351-352 
 Essentials of, 340 
 Towns as centres of, 340 
 Liebermann, Dr., cited, 144, 145, 148, 
 
 149 
 Lincoln, Parliament of (1301), 63 
 Lincolnshire, carucage of, 188 
 Lindenbrog cited, 249 
 Littleton cited, 253 
 Lombardy, Charlemagne's legislation 
 
 in, 299 
 London, City of : 
 
 Charters of : under William I., 122, 
 137, 314 ; under Henry I., 122- 
 128 ; under Henry II., 128 
 Cnihten gild of, 123 
 Coursing rights of, 128 
 Entertainment of strangers in, 125, 
 128
 
 INDEX 
 
 385 
 
 London, City of : 
 
 Exemptions and privileges granted 
 
 to, 124-126 
 Popular sympathies of, 340 
 Portreeve of, 122, 123 
 Sheriff and justiciar of, 123 
 Sokens of, 126 
 Succession rights in, 137 
 Vadimonia rights of, 127, 128 
 Weregild in, 126 
 Louis I. (the Pious), Emperor, 300 
 Louis II., Emperor, 300 
 Louis VI., King of France, 276, 318, 
 
 327 
 Louis VII., King of France, 101, 276 
 Louis IX. (St. Louis), King of France, 
 268, 292, 300 ; Establishments of, 
 256 
 Louis XL, King of France, 268 
 
 Madox cited, 76, 188 
 Magna Carta : 
 
 Aids restricted by, 25 
 
 Basis of, 30, 122 
 
 Confirmation of, by Henry III., 108 
 
 Executory clause of, 283 
 
 Form of, 298 
 
 Hundredmoots, regulation as to, 87 
 
 Law courts located by, 342 
 
 Marriage rights, on, 112 
 
 Parliamentary summons described 
 
 in, 289, 295 
 Penalties, on, 117 
 Provisions of, 344-345 
 Reliefs fixed by, 25 
 Signing of, 345 
 
 Subinfeudation checked by, 25 
 Taxation regulated by, 302-303, 
 
 315, 343, 344 
 Wills, on, 116 
 Malcolm Canmore, 62 
 Manbot, 14 (see also Weregild) 
 Manors : 
 
 Allodial equivalent of, 311 
 Courts of : 
 
 Customs and tendency of, 324, 325 
 Juries of, 161) 
 View of frankpledge in, 85 
 Jurisdiction of, 152, 158 
 Nature of, 27 
 Manumission, 67, 338 
 Maps, Domesday and manorial, pro- 
 ject of, 184, 193 
 Mark (march) : 
 Extent of, 311 
 Meanings of term. 6 
 Suevian, 6 
 Markets: 
 
 Churchyards, holding in, 77 
 Regulation of, 67, 75-76 
 
 Marlborough, Statute of, 88 
 Marriages : 
 
 Exactions as to, 26, 111-112, 302 
 Lords' eldest daughters, of, 35 
 Royal, 358, 371 
 Wards, of, 26, 302 
 Marsilius of Padua, 102 
 Martin V., Pope, 103 
 Matilda, Empress (daughter of Henry 
 
 I.), 104, 144, 176. 276 
 Matilda (Molde), Queen (wife of Henry 
 
 I.), 30, 118, 144, 145, 147 
 Maurice of London, Bp., 118 
 Maximilian, Emperor, 327, 329 ; insti- 
 tution of circles by, 306, 322 
 Merchant guilds, 314 ; halls of, 340 
 Merton : 
 
 Parliament of, 257 
 Statute of, 54, 88 
 Mintage, 112-115 
 Miskenning, 53, 126-127, 183 
 Missi Dominici, 259, 327 
 Monetagium, 114-115 
 Moneyers, 113-114 
 Mund system, see Commendation 
 Munich, monument at, 336 
 Murdrum : 
 
 Fines and procedure in cases of, 52, 
 71-73, 170; fines remitted by 
 Henry I., 117 
 French and English, distinction 
 
 between, 136-137 
 London exempted from law of, 124 
 Origin of system, 82, 118 
 Mutilation : 
 
 Abuse of hospitality, for, 125 
 Blinding, 119, 125 
 Deer-stealing, for, 119 
 Legalisation of, 88-89 
 Penalties for, 14 
 Secundum modimi delicti, 117 
 
 Naples : 
 
 Parliament of, 295 
 Representation of, at court, 320 
 Nationality : 
 
 Christian names, evidence from, 
 
 220, 224 
 English, 211, 225 
 Exemplifications of, 225 
 French, 216-220, 225 
 German, 207-210. 225 
 Italian, 221 
 
 Paternal element in, 206 
 Physical analysis of, 215 
 Spanish, 222-225 
 Netherlands, cities of, 319, 320 
 Neville, Abp., 103 
 Nicolas IV., Pope, 191 
 Nigel, Bp., 134-135, 176 
 
 C C
 
 386 
 
 INDEX 
 
 Norman-French language, 21 and note, 
 
 39, 47, 229 
 Normandy, grand custumary of, 250, 
 
 254 
 Normans : 
 
 Amalgamation of, with English, 338 
 Distinction between English and, 
 
 72, 74, 136-137 
 Feudal tenure as introduced by, 
 
 269-270 
 German origin of, 4 
 Language modifications introduced 
 
 by, 228-229 
 Laws of, see under Laws 
 Tyranny of, 16-17, 23, 29-30, 32- 
 36, 337 
 Northampton, assize of, 53, 89, 325 
 Norway, conversion of, to Christianity. 
 
 358 
 Norwich taxation, the, 190 
 
 Oaths : 
 
 Fealty and allegiance, of, 70, 172 
 
 Foreoath, nature of, 171 
 
 Forms of, 172-173 
 
 Fractum juramentum, 171-172 
 
 Mass priests, of, 164, 171 
 
 Non fractum, 80-81 
 
 Planum juramentum, 172 
 Ockham, William of, 102 
 Odo, Abp., 358 
 Oferhyrnesse, 86, 159, 169 
 Offa, King of Mercia, 10, 49, 51 
 Ordeal : 
 
 Anglo-Saxon idea, 79, 80 
 
 Bishops' jurisdiction as to, 96 
 
 Cases where used, 14-15 
 
 Form prescribed for, 173-174 
 
 Spain, in, 258, 329, 330 
 
 Otherwise mentioned, 72, 77-78, 
 171, 251 
 Ordericus Vitalis cited, 54 
 Ornest (Orrest), 79 
 Otto I., Emperor, 358, 364 ; cities 
 
 founded by, 319 
 Otto III., Emperor, 275, 364 
 Otto IV., Emperor, 282, 365 
 Outlawry, 78, 80, 165 
 Oxford : 
 
 Provisions of, 298, 349-350 
 
 Stephen's charters issued at, 176- 
 177 ; his general council at (1136), 
 177 
 
 Palgeave, Sir F., cited, 201, 258, 272, 
 
 329 
 Pandects, 43, 46, 98 
 Panormia of Ivo of Chartres, 145, 
 
 148-149 
 
 Papacy : 
 
 Avignon, residence at, 367 
 
 British relations with, 98-100 
 
 Coronation claims of, 278, 281 
 
 German attitude towards, 362, 370 
 
 Kivalry of, with Emperors, 361 
 
 Schisms in, 101-103 
 Parishes : 
 
 Basis of, 311 
 
 Number of, 192 
 Parliament : 
 
 Acts of, development of form of, 
 298-299 
 
 Development of, 290-291, 349-351 
 
 Ecclesiastical influence in, 292 
 
 John's reign, in, 347 
 
 Judicial powers, allocation of, 308 
 
 Knights of the shire in, 290, 348 
 
 Meaning of word, 291 
 
 Origin of, 290 
 
 Summons to, 289, 291, 295, 298 note 
 
 Taxation controlled by, 303 
 Parliament of Lincoln, 63 
 Parliament of Merton, 257 
 Parliament of Naples, 295 
 Parliament of Paris, 293, 300, 308, 
 
 328 
 Partnership, law as to, 55-56 
 Paschal II., Pope, 178 
 Passage, exemption from, 125 
 Patriotism, nature of, 335 
 Patrons, 13 
 Peckham, Abp., 105 
 Peers, trial by, 24, 53, 117. (See also 
 
 Judicature : Jury system) 
 Pembroke, William Earl of, 346 
 Penalties : 
 
 Amercements, 116-117, 126 
 
 Capital, cases for, 13, 119 
 
 Judges, for, 157 
 
 Mutilation, see that title 
 
 Non-attendance at county court, 
 for, 167 
 
 Outlaws, on, 165 
 
 Secumhim modum delicti, 117, 126 
 Pepin, King, 299 
 Perrers, Alice, 121 
 Peter of Corvara, 102 
 Peter pence, 51 
 
 Peterborough Abbey, forgeries as to, 60 
 Philip I., King of France, 276 
 Philip II., King of France, 276 
 Philip IV. (the Fair), King of France, 
 States -General summoned by, 
 292-293, 304, 308, 318-319 
 Philip Augustus, King of France, 304, 
 
 327, 365 
 Picts and Scots, 63, 212 
 Pike, Lewis, cited, 214 
 Pilgrimages, 359 
 Pipe roll, earliest, 188-189
 
 INDEX 
 
 387 
 
 Pleas (see also Judicature) : 
 
 Capital charges : 
 Jurisdiction over, 158 
 Nature of, 13 
 
 Christianity, of, 163 
 
 Civil and criminal, likeness between, 
 170 
 
 Classification of, 153 
 
 Crown, of the, 154-155 
 
 Ecclesiastical, see Church : Eng- 
 land — Cases 
 
 Forest, of the, 158 
 
 Procedure, method of, 161-174 
 
 Soke of, 153 
 
 Unjust judgment &c, 155 
 
 Witnesses, kinds of, 170 
 Plebiscitum, 43-44 
 Poisoning, 54 
 Poland, 16-17, 22, 211 
 Political morality, 337 
 Poll-tax, 124, 192 
 Population of England in 1085, 29 
 Portugal, laws of, 257 
 Potatio regulations, 159 
 Prsefecti, 166 
 Presentment of Englishry, see Eng- 
 
 lishry 
 Priests, see Church : England — Clergy 
 Privy council, 296, 308 
 Progress, theory of, 195 
 Provencal, 233 
 
 Provisions of Oxford, 298, 349-350 
 Prynne cited, 116, 147 
 Punishment, see Penalties 
 
 QUO WARRANTO rolls, 191 
 
 Ralrh, Abp., 107 
 
 Recognitors, 169, 170 
 
 Red Book of the Exchequer : 
 
 Coinage edict in, 113 
 
 Compilation of, 190 
 
 Exchequer charter in, 58, 68, 121 
 
 Importance of, 58, 62 
 
 Letters in, as to knights' enfeoff- 
 ments, 189 
 Reeves : 
 
 County courts attended by, 8, 131, 
 313, 3-J4 
 
 Kinds of, enumerated, 8, 166-167 
 
 Kings', 9 
 
 Lords' stewards as, 313, 323 
 Reformation, the, 103, 104, 107 
 Reliefs, 110-111, 302 
 Representative principle : 
 
 France, in, see under France 
 
 Germany, in, see under Germany 
 
 Judicial and financial matters, for, 
 287, 290, 312 
 
 Representative principle : 
 
 Parliamentary franchise, 348 
 
 Scandinavia, in, 312 
 
 Shires, in, 290, 311-312, 315, 348 
 
 Spain, in, 313, 316 
 
 Towns, in, 315 
 
 Witenagemot lacking in, 312 
 Research, documentary, 185 
 Richard I., King : 
 
 Forest law of, 119 
 
 Imprisonment of, 365 
 
 Judicature under, 341 
 
 Money-raising by, 302, 304, 344 
 
 Towns under, 314 
 
 Otherwise mentioned, 76, 105, 120 
 123, 190, 276, 298 
 Richard II., King, 102 ; French mar- 
 riage of, 371 ; deposition of, 280 
 Richard of Cornwall, King of the 
 
 Romans, 366 
 Richard of Hexham cited, 101, 178 
 Richard of London, Bp., 129, 134-135 
 Ridel, Geoffrey, 157 
 Robert of Belesme, 132, 146 
 Robert of Geneva, 102 
 Robert of Gloucester, Earl, 176, 177 
 Rochester record (Textus Roffensis), 
 
 58, 68, 77 
 Roger, Abp. of York, 183 
 Roger of Salisbury, Bp., 134, 176 
 Roger, King of Sicily, 142, 258 
 Romance language, 231-232 
 Rome (city): 
 
 Coronation of Emperors at, 277 
 
 Cosmopolitanism of, 221 
 Rome (empire) : 
 
 Britain, civil organisation in, 242 
 
 Civilisation of, 237-238 
 
 Conquest by, methods of, 212, 222 
 
 Influence of, estimated, 196, 197, 
 334 
 
 Law of, see under Law 
 
 Supremacy of, 207 
 Rotulus exactorius, 140-141 
 Rudolf of Hapsburg, Emperor, 366-367 
 
 Sac and soke, 153, 158 
 St. Paul's, Domesday of, 187, 190 
 Sales, regulation of, 75-76, 173 
 Salvage, law as to, 55 
 Sampson, Bp., 113, 129, 145 
 Saxony : 
 
 Feudal position of, 269 
 
 Political and religious character of, 
 210, 246-249 
 Scabini, 157, 312, 314 
 Scandinavia, representative principle 
 
 in, 312 
 Schmid, Dr., cited, 81, 85, 152 
 Scot and lot, 74, 124
 
 388 
 
 INDEX 
 
 Scotale, 129 
 Scotland : 
 
 Bishops translated to St. Andrews 
 
 (1388 and 1398), 103 
 Edward I.'s claims as to, 63 
 French alliance with, 101, 102, 
 363 
 Scots, 63, 132, 212 
 Scutage (escuage) : 
 
 Institution of, by Henry II., 189, 
 
 303 
 Majma Carta, provisions as to, 35, 
 
 343, 348 
 Nature of, 24, 120, 189 
 Otherwise mentioned, 35, 343 
 Scyr, see Shire 
 Seebohm, cited, 235 note 
 Self-government, local, 15, 27 
 Serfs, see under Slaverv 
 Serjeanty, 26, 27 
 Sheriffs : 
 
 Assessors of (to declare the law), 12, 
 
 157, 162, 312, 314 
 Assessors of (to report the facts), 
 
 169 
 Danegeld farmed by, 138 
 Deputies of, 166 
 Election of, forgery as to, 61 
 Exactions by, 167 
 Functions of, two sets of, 153 
 London, of, 123 
 Towns emancipated from, 314 
 Shipgeld, 302 
 Shire (Scyr), extent of, 6 
 Shiremoot (Scyrmote, folkmoot) : 
 Attendance at, enjoined, 129, 133 ; 
 penalties for non-attendance, 167 
 Bishops' attendance at, 11, 12, 87, 
 
 91, 94, 96, 131, 164 
 Constitution and jurisdiction of, 12, 
 
 87, 88, 131, 166-167, 323-324 
 Ecclesiastical cases in, 95 ; aboli- 
 tion of, 96, 244 ; retention of, 97 
 Fiscal matters treated in, 131-132 
 Henry I.'s treatment of, 131, 132 
 Judices and juratores for, 168 
 London, in, 127 
 Notice of, 167 
 Places of assembly of, 130 
 Presidents of, 8, 11 
 Representation in, 311-312 
 Resort to, enacted by William I, 84 
 Times of meeting of, 87, 130, 131, 
 167 
 Sicily : 
 
 English relations with, in twelfth 
 
 century, 142 
 Henry III.'s policy as to, 349, 366 
 Parliament of, 295 
 Representation of, at Court, 320 
 Sigismund, Emperor, 103, 368 
 
 Simon de Montfort : Proclamation of, 
 230; towns summoned by, 290, 
 315 ; reforms of, 348-350 
 Slavery : 
 Ecclesiastical attitude towards, 338 
 Emancipation from, 67, 338 
 Holy Orders prohibited to those in, 
 
 164 
 Sale into, prohibition of, 88 
 Serfs, classes of, 27 
 Sluys, victory of, 368 
 Socage, 26-27 
 Spain : 
 Aragon : 
 
 Charters in, 256, 257 
 Constitutions of, 321 
 Cortes : 
 
 Check on, 309 
 Constitution of, 322 
 Feudal nature of, 271 
 Origin of, 293, 295 
 Sums voted by, 306 
 Feudalism in, 256, 271 
 Judicial system of, 309, 331 
 Law charters in, 257 
 Privilege of union of, 284 
 Representative principle lacking 
 
 in, 313 
 Sub-kingdoms of, 271 
 Taxation in, 305 
 Arianism in, 356 
 Barbarians in, 223 
 Castile : 
 
 Alcaldes, 309, 329, 330 
 Behetrias, 321 
 Cortes : 
 Basis of, 271 
 Influence of, 301, 306-307 note, 
 
 321 ; cheek on, 309 
 Origin and development of, 294- 
 
 295 
 Representation of towns in, 
 
 321 
 Taxation controlled by, 305 
 Elective principle in, 329 
 Feudalism in, 270-271 
 Hermandad, 321-322 
 Judicial systems of, 309, 329-330 
 Language modification in, 234- 
 
 236 
 Law in : 
 
 English law compared with, 
 
 256-257 
 Fuero juezzo in, 255 
 Roman, 257 
 
 Siete Partidas, 256, 301 
 Representative principle in, 313 
 Taxation in, 304 
 Towns in, 321 
 Church in, see under Church 
 Language of, 231-232, 234-236
 
 INDEX 
 
 889 
 
 Spain : 
 
 Law in (see also under sub-heading 
 Castile) : 
 Catalonian, 257 
 
 Codes and fucros contrasted, 258 
 Origin of, 255 
 
 Mahometanism in, 362 
 
 Moorish invasion : 
 Church, effect on, 240 
 Influence of, 241 
 Period of, 223-224 
 
 Nationality of, 222-225, 271-272 
 
 Eepresentative principle in, 316 
 
 Komanisation of, 222-223 
 
 Royal succession in, 275 
 
 Separateness of states in, 271 
 
 Visigoth ic rule in, 294 
 Stephen, King : 
 
 Accession of, 175, 176 
 
 Baronial anarchy under, 270 
 
 Charters of : first, 176-177 ; second, 
 177-183 
 
 Coinage debased by, 114 
 
 Comites of, 9 note 
 
 Danegeld under, 138 
 
 Ecclesiastical cases in reign of, 97, 
 160 
 
 Ecclesiastical policy of, 104, 109, 
 180-183 
 
 Election of, 347 
 
 Papacy, relations with, 178 
 
 Promises of, 175, 344 
 
 Reign of, 32, 189, 302, 340, 342, 364 
 Stigand, Abp., 99 
 Strangers, see Guests 
 Stratford, Abp., 183 
 Stratton, 157 
 Streetward, 53-54, 65 
 Subsidy rolls, 191-192 
 Suevi, 5, 234 
 Suffield, Bp., 190 
 Surveys : 
 
 Black Book of the Exchequer, 188, 
 189 
 
 Domesday, see tliat title 
 
 Ecclesiastical, 190-192 
 
 Ely, 186 
 
 Evesham Abbey, 187 
 
 Exeter, 185-186 
 
 Hundred rolls, 190 
 
 Kirkby's Quest, 191 
 
 Knights' enfeoffments, 189 
 
 Lincoln carucage, 188 
 
 New Domesday, 192 
 
 Pipe rolls, 188-189 
 
 Quo Warranto rolls, 191 
 Sweden, conversion of, to Christianity, 
 
 358 
 Swerford, Alexander, 190 
 Sweyn, King, 280 
 Swidberht, St., Bp.. 357 
 
 Switzerland : 
 
 Lake dwellers in, 208 
 Mixed population of, 219 
 
 Tacitus cited, 4-5, 264, 274, 277, 
 
 285-286 
 Tallage : 
 
 Abolition of, 303, 351 ; in France, 
 
 304 
 Charter forbidding, 64-65 
 Magna Carta silent as to, 344, 348 
 Methods of raising, 343 
 Nature of, 24 note, 340 
 Parliamentary check on, 315 
 Scot and lot perhaps equivalent to, 
 
 124 
 Taxation : 
 
 Allodial, 301-302 
 Danegeld, see that title 
 Demesne lands, of, 303, 304 
 Edward I.'s reforms of, 351 
 Features of, in England, 303 
 Feudal, 302 
 Firma burgi, 314 
 France, in, 304-305 
 German substitutes for, 306 
 Income tax under Normans, 343 
 Magna Carta provisions as to, 302- 
 
 303, 343, 344 
 Parliamentary control over, 303, 
 
 306 
 Poll-tax, 124 
 Prisage, 343, 351 
 Scutage, see that title 
 Shipgeld, 302 
 Spain, in, 305 
 Tallage, see that title 
 Tonnage and poundage, 343 
 Trinoda necessitas, see that title 
 Thanes (thegns) : 
 Classes of. 9 
 Oath of, 164, 171 
 Rise of, 8 
 
 Sheriffs' assessors, see tinder Sheriffs 
 Weregild for, 11, 13, 164 
 Theam, 75 
 Theft : 
 
 Interregnum, during, 121 
 Oaths as to, 173 
 Punishments for, 14 
 Theobald, Abp., 97, 278 ; relations of, 
 
 with Stephen, 104-105 ; Roman 
 
 law taught by, 181 
 Theobald, Count, 178 
 Theodore. Abp., church organisation 
 
 of, 9, 10, 242-243, 356; forged 
 
 treatise ascribed to, 60 
 Theodosian Code, 93, 98, 214, 251 ; 
 
 adapted by Visigoths. 255 
 Thierry cited, 317 note
 
 390 
 
 INDEX 
 
 Thorpe cited, 24, 81 
 Tithing (tything), 11-13, 311 
 Toll, exemption from, 125 
 Tortures for extortion, 33 
 Tourn, Sheriff's, 88, 95 
 Towns : 
 
 Charters of, 314 ; in Spain, 256 ; in 
 France, 317 ; in the Netherlands, 
 320 
 
 Fee farm lease of, 340 
 
 Firma toirgi, 314 
 
 France, in, 313, 316-318 
 
 Germany, in, 319-320 
 
 Incorporation of, 313, 316, 317, 340 
 
 Italy, in, 320 
 
 Netherlands, in, 319-320 
 
 Origin of, 313 
 
 Parliamentary representation of, 
 290, 315, 348 
 
 Representative principle in, 315 
 
 Rise of, 303, 304, 314-316, 339- 
 340 
 
 Spain, in, 321-322 
 
 Tallage, see that title 
 Township moots, 86 
 Trade : 
 
 Merchant guilds, 314, 340 
 
 Restrictions on, in early Norman 
 reigns, 76-77 
 Treaties : 
 
 Executory provisions of, 283 
 
 Sacredness of, 355 
 Treingrevii, 167 
 Trial : 
 
 Battle, by, 77-80, 124, 129 
 
 Jury system, see under Judicature 
 
 Peers, by, 24, 53, 117 
 
 Perversion &c, of judgment, 155 
 
 Pleas, see that title 
 ' Tricolumnis,' 135 
 Trinoda necessitas : 
 
 Incidence of, 262, 301, 343 
 
 Nature of, 7, 74 
 
 Penalties for non-payment of, 157 
 
 Relief from, partial, 119 
 
 Sufficiency of, in Anglo-Saxon 
 times, 286 
 Tungrevii, 166 
 Twiss, Dr., cited, 55 
 
 Ulfilas, Gothic Bible of, 228 
 Urban II., Pope, 101 
 Urban VI., Pope, 102-103 
 
 Vadimoaia, 127, 128 
 Vandals, 223 
 Vavassores, 166 
 Venery, beasts of, 128 
 Vicarii, 166 
 
 Villani, work of, in Domesday Survey, 
 
 186 
 Villeins : 
 
 Classes and position of, 27 
 
 Judicial work not entrusted to, 168 
 
 Land tenure by, 136-137 
 Visigoths : 
 
 France, in, 218-219 
 
 Laws of, 255 
 
 Spain, in, 223-224 
 
 Waitz, Dr., cited, 83 
 Wales : 
 
 Position of Wealas, 7 
 Survival of language and nationality 
 in, 212, 232 
 Walter, Abp. Hubert, 105, 278 
 Wardmotes, 127 
 
 Wards and liveries, court of, 112 
 Wardship, right of, 25, 35, 302 
 Watch and ward, 53-54, 65 
 Wealas (Welshmen), 7 
 Weights and measures, regulation of, 
 
 65 
 Wenzel, King of Germany, 282 
 Weregild : 
 
 Allocation of, 72, 156 
 Assessment of, 11, 164 
 Nature of, 13 
 
 Offences atoned for by, 157 
 Origin of, 251 
 Table of values, 13 
 Variations in, 51 
 Wessex : 
 
 Domesday of, 185 
 Oath custom in, 171 
 Wihtraed, King, laws of, 251 
 Wilbrord, 357 
 Wilfrid, St., Abp., 356-357 
 William I., King : 
 Charter of, 343-344 
 Code of laws of : 
 Articles of, 56-57 
 Authenticity of, 46-50, 56 
 Matter of, 50-56 
 Danegeld under, 138 
 Documents of reign of, 41 
 Ecclesiastical reforms of, 96, 103 
 Emendation, ten articles of : 
 Examination of, 61-89 
 Forms of, 57-58 
 Frankpledge regulation in, 83 
 Murdrum regulation in, 52, 71-73 
 Trial by battle regulation in, 77-80 
 Undertaking made in, 47 
 Wording of fabricated form, 61-63 
 English Courts maintained by, 86 
 Feudal system of, 22-23 
 Fiefs granted by, 269 
 Forest law of, 119
 
 INDEX 
 
 391 
 
 William I., King : 
 Funeral of, 121 
 Income of, 29 
 
 London charters granted by, 137, 314 
 Nationality of, 20 
 Papal Commission of, 364 
 Papal relations regulated by, 98-100 
 Reign of, summary of, 28-30 
 Relief system under, 111 
 Otherwise mentioned, 182, 251, 324, 
 327 
 
 William Rufus, King : 
 
 Anselm, relations with, 30, 101, 103, 
 
 364 
 Coronation oath of, 278 
 Danegeld under, 138 
 Death of, 117, 121 
 Ecclesiastical policy of, 104 
 Forest law of, 119 
 License of servants of, 125 
 Misgovernment of, 30, 107-108,110- 
 
 111 
 Otherwise mentioned, 101, 119, 130, 
 182 
 
 William Fitzosbern, Earl, 28 
 
 William of Corbeuil, Abp., 107, 17S 
 
 William of Malmesbury, 59 
 
 Wills : 
 
 Ecclesiastics' powers as to, 182-183 
 Henry I.'s decree as to, 115-116 
 
 Winchilsea, Robert, Abp., 34, 106, 35] 
 Winfrid (Boniface), Abp., 357 
 Wite, 71, 157 
 Witenagemots : 
 
 Archbishops' position in, 100 
 
 Assize so called, 325 
 
 Bishops' attendance at, 10-11, 87, 
 
 91, 94, 96, 243, 244, 287, 346 
 Character of, 287, 312 
 Constitution and functions of, 11, 
 
 287-288, 346 
 Continental equivalents of, 287 
 Enactments of, 44 
 Feudalisation of, 288 
 Restoration of, under Henry II., 35 
 Witnesses, kinds of, 170 
 Women, position of, among Angles and 
 
 Saxons, 213 
 Worcestershire, writ for holding of 
 
 courts in, 113, 129 
 Wounds, compensation for, 14 
 Wnlfstan, St., Bishop, 135; life of, 
 cited, 88 
 
 Yeuesgiye, 129 
 
 Yorkshire : 
 
 Devastation of, by William I., 28 
 Poll-tax roll of West Riding, 192 
 Tiithings of, 167 
 
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