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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
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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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